BURGESS MINING & CONSTRUCTION CORP. v OSM; Docket No. NX 9-28-R (June 29, 1979)

 TYPE:  ALJ HEARING: Decision  

NAME: BURGESS MINING & CONSTRUCTION CORP., Applicant v OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE:  June 29, 1979  

CASE-NO: Docket No. NX 9-28-R  

PROCEEDING: Application for Review, Notice of Violation No. 79-II-16-4  

COUNSEL: Mr. W. E. Prescott III, Vice President-Administration, Burgess Mining & Construction Corp., P.O. Box
26340, Birmingham, Alabama 35226, for applicant; Charles P. Gault, Esquire, Office of the Field Solicitor, U.S.
Department of the Interior, Knoxville, Tennessee, for respondent.  

OPINIONBY: Administrative Law Judge Shepherd  

OPINION: DECISION  

   BACKGROUND  

  As provided in Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Burgess Mining &
Construction Corp. applied on February 26, 1979, for review of a notice of violation issued by the Office of Surface
Mining Reclamation and Enforcement under Section 521 of the Act.  A hearing was held on May 10, 1979, in
Birmingham, Alabama, and neither party chose to file briefs.  

   FACTS

   On February 1, 1979, the respondent issued a notice of violation alleging two violations.   

   {2}  Violation No. 1 alleged that the operator failed to salvage all topsoil on lands to be affected by mining contrary to
the provisions of 30 CFR 715.16.  Violation No. 2 alleged that the operator failed to clearly mark the perimeter of the
permit area as required by the provisions of 30 CFR 715.12. 

   DISCUSSION, FINDINGS AND CONCLUSIONS  

   The applicant operates a surface mine located in Bibb County and Shelby County in Alabama for which the State of
Alabama Surface Mining Reclamation Commission has issued a permit.  The permit in effect at the time of the issuance
of the notice of violation was Permit No. P-1491 and is a renewal of P-1134 (Respondent's Exhibit No. 4).  The permit
had an effective date of March 24, 1978, and expired on March 23, 1979.  The notice of violation was issued as a result
of an inspection made on February 1, 1979. 

  The evidence regarding the applicant's failure to salvage all topsoil was based upon the conditions found by the
inspector on February 1, 1979, and as reported by him in his testimony as well as several photographs which were
received into evidence.  These included Respondent's Exhibits Nos. 3-1, 3-2, 3-7, 3-8, 3-9 and 3-13.  These are
photographs of spoil piles which partially covered trees.  The exhibits establish that the trees were not removed and, by
inference, the topsoil was not removed prior to disturbing the area.   

  In addition, Respondent's Exhibits Nos. 3-10, 3-11 and 3-12 are photographs of all of the same area, showing that the
upper several inches of the A horizon (or topsoil) had been scalped from a knoll.   

  The evidence regarding the trees and the spoil piles was that the area began to be disturbed prior to December 6, 1977,
in preparation for mining (Tr. 191).  The mining was completed following the coal miners' strike which began on
December 6, 1977, and continued through March 25, 1978.  Regardless of the effective date of the interim regulations, 
there was no evidence establishing that any of the spoil piles from which the trees were growing had been placed there
after the effective date of the interim regulations or on any particular date.  The spoil piles in question could have been
deposited prior to December 6, 1977, or after March 25, 1978.   

   {3}  This, however, is not the case as to the scalped area, photographs of which are Respondent's Exhibits Nos. 3-10,
3-11 and 3-12.  It was established that the superintendent, Mr. James McCoy, who accompanied the inspector began
working for Burgess approximately May 24, 1978 (Tr. 168).  The inspector in reporting on his inspection tour related a
conversation he had with Mr. McCoy in which Mr. McCoy made an admission that the soil from the scalped area had
not been saved (Tr. 20 and Tr. 31).  This established that this topsoil was not saved on a date following which Mr.
McCoy began work and prior to the inspection (Tr. 32), any one of which would be a date during the effective period of
the interim regulations.   

  The alleged violation regarding the failure to mark the perimeter of the permit area, thereby violating 30 CFR 715.12,
in part resulted from a disagreement between the Alabama state authorities and the Federal regulations regarding the
definition of the permit area.  According to the applicant's application for review, the State of Alabama defines the
perimeter of the permit area as being "the perimeter of the land to be disturbed by the mining operation." 30 CFR
715.12(c) requires that "[the] perimeter of the permit area shall be clearly marked by durable and easily recognized
markers, or by other means approved by the regulatory authority." The term "permit area" is defined by the Act at
Section 701(17) as an "area of land indicated on the approved map submitted by the operator with his application,
which area of land shall be covered by the operator's bond as required by section 509 of this Act and shall be readily
identifiable by appropriate markers on the site." 

   In turn, Section 509 states, in part, as follows:  

  The bond shall cover that area of land within the permit area upon which the operator will initiate and conduct surface
coal mining and reclamation operations within the initial term of the permit.  As succeeding increments of surface coal
mining and reclamation operations are to be initiated and conducted within the permit area, the permittee shall file with
the regulatory authority an additional bond or bonds to cover such increments in accordance with this section.   

  It would appear that the Act contemplates that the area bonded would be that upon which mining and reclamation is
conducted.  In the instant case the total area in the application contained approximately 840 acres  

 {4}  (Respondent's Exhibits Nos. 1 and 5).  However, the permit resulting from said application (Respondent's Exhibit
No. 4) allows only 75 acres to be mined (the orange area on Respondent's Exhibit No. 1).  Under the circumstances of
this case, little purpose would be served to mark the outline of the permit area and not the area to be mined and
reclaimed.  

   However, the regulation also requires that the permit area shall be clearly marked by durable and easily recognized
markers.  

   In the instant case there was evidence of various flags of various colors in various locations.   

   For instance the day before the hearing the inspector visited the premises and found new red flags and blue flags, and
he also made references to blue flags, orange flags, old red flags and new red flags (Tr. 60).   

  The inspector was not the only one who shared the uncertainty regarding the colors of the flags and the locations of the
flags.  Mr. Jeffrey Brassfield, the employee of the applicant who did most of the flagging, stated that the limit of the
disturbed area (the LDA) was flagged with blue flags in August or September 1977 (Tr. 114).  Mr. Brassfield at that
time also found  yellow flags.  Mr. Brassfield further reflagged the LDA with red flagging in March 1979.  These flags
apparently had various meanings to various people, none of which was totally clear from the testimony.  Nor did any one
witness appear to know the reason for all of the flags, what the various flags delineated or when they were put in place
(Tr. 114-115).  

  In addition, when the inspector entered the permit area, he found a sign which stated that the perimeter was marked by
flagging (Tr. 57).  It is obvious from the cross-examination of the inspector, Mr. Ellis (Tr. 57 et seq.), that there was
confusion regarding the colors of the flags that witnesses had seen in just the previous 24 hours.  

 The purpose of the perimeter flags is to give notice to various people, including equipment operators.  42 FR 62642
(December 13, 1977).  This would be impossible in a situation where there were various colors of flags, some of which
colors were for one purpose such as ownership lines, another color for another purpose such as an LDA and another
color for another purpose such as a perimeter marking and with no real key to the flag color and some evidence that no
color was used exclusively for any one purpose.  

   ORDER  

{5}  It is, therefore, my finding that Notice of Violation No. 79-11-16-4 (Violation No. 1) is sustained and that the
operator did not salvage the topsoil in regard to the scalped area as shown on Respondent's Exhibits Nos. 3-10, 3-11 and
3-12 but that the evidence did not sustain that part of Violation No. 1 pertaining to the salvaging of topsoil which was
evidenced by the trees growing from the spoil piles inasmuch as there was no evidence that this failure occurred in any
of those places after the effective date of the regulations or for that matter on any specific date.   

  Violation No. 2 is also sustained on the basis that the markers used by the applicant and the system of marking used by
the applicant did not clearly mark the permit area, was not durable and was not easily recognized.  

Sheldon L. Shepherd, 
Administrative Law Judge