DELIGHT COAL CORP. v OSM;  Docket No. CH 9-4-P    (June 29, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: DELIGHT COAL CORP., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: June 29, 1979 [Amends January 29, 1979 decision]  

CASE-NO: Docket No. CH 9-4-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 78-I-17-3, Orders of Cessation No. 78-I-18-1, No.
78-I-18-2, No. 78-I-18-3  

OPINIONBY: Administrative Law Judge Allen  

OPINION: REVISED DECISION  

   An appeal having been filed from a decision of the undersigned dated January 29, 1979, by the Office of Surface
Mining Reclamation and Enforcement (OSM), and the Interior Board of Surface Mining Reclamation and Appeals
having rendered a decision on said appeal in the above-stayed case June 5, 1979 (1 IBSMA 186), reversing said
decision of January 29, 1979, and remanding same for a revised decision in conformity with their findings, now
therefore the decision of January 29, 1979, is hereby vacated, and this amended decision is substituted in lieu thereof:  

   BACKGROUND  

   In accordance with section 525 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.  1201 et seq.
(1977)) (the Act), Delight Coal Corporation (applicant) applied on October 21, 1978, for review of a notice of violation
containing five violations and three orders of cessation issued by the Office of Surface Mining Reclamation and
Enforcement (respondent) under sections 521(a)(2) and 521(a)(3) of the Act.  

   An inspection of the property and mining area was conducted on August 17, 1978.  On August 18, 1978, respondent
issued Notice of Violation No. 78-I-17-3 containing the following violations:  

   1.  The applicant failed to have mine identity signs which would meet the requirements of 30 CFR 717.2(b);  

   2.  The applicant failed to remove topsoil as a separate operation from certain areas as required by 30 CFR 717.20(a);
{2}
 
   3.  The applicant failed to retain earth or nonwaste material on the solid portion of the bench as required in 30 CFR
717.14;  

   4.  The applicant failed to pass all surface drainage from the disturbed area through a sedimentation pond as required
by 30 CFR 717.17(a); and  

   5. The applicant failed to comply with the construction and maintenance requirements of access and haul roads as
provided in 30 CFR 717.17(j)(2)(iii) and 30 CFR 717.17(j)(2)(iv).  

   Also, on the same day, respondent issued Cessation Order No. 78-I-18-2 pursuant to section 521(a)(2) of the Act for
mining within 300 feet of an occupied dwelling, in violation of "30 USC 1272 (Section 522(e)(5) of Public Law 95-87."  

   Again, on the same day, respondent issued a third Cessation Order No. 78-I-18-3 pursuant to section 521(a)(2) of the
Act for causing significant environmental harm to occur to water quality by allowing debris and earth to cause excess
sedimentation in a stream in alleged violation of "30 USC 1271 (Section 502(A) of Public Law 95-87)." This violation
was modified on September 13, 1978, to be a violation of "30 CFR 710.11(a)(2)(iii)." After an informal hearing on
September 13, 1978, the cessation orders were affirmed by the hearing officer.  

   Notice of proposed assessments on the violations were sent to applicant on September 18, 1978, and,
contemporaneously with the filing of its application, the applicant, in accordance with the requirements of 43 CFR
4.1152(b)(1), paid the full amount of the proposed civil penalties ($12,600) to the Assessment Office, Office of Surface
Mining, to be placed in escrow pending a final determination of the proposed assessment.  A hearing was held in this
matter on January 5, 1979, in Abingdon, Virginia.  At the conclusion of the hearing, both sides agreed to an oral order
from the bench, which was issued.  

   CONFIRMATION OF DECISION OF JANUARY 5, 1979  

   At the conclusion of the hearing on January 5, 1979, counsel for both parties waived their right to submit findings of
fact and conclusions of law and agreed that the undersigned would rule from the bench.  In the decision of January 29,
1979 (the decision reversed by the Board), the undersigned was of the opinion it had no jurisdiction after the Cessation
Order No. 78-I-18-1 was complied with and applicant had ceased all mining activities, and therefore the undersigned
did not confirm the ruling made from the bench on January 29, 1979.  {3}
 
   The position taken by the undersigned having been declared error by the Interior Board of Surface Mining and
Reclamation Appeals, the undersigned now affirms that decision of January 5, 1979, and attaches a verbatim copy of the
transcript of the order containing findings of facts and conclusions of law. The same is attached as Appendix No. 1.  

   ORDER  

   Notice of Violation No. 78-I-17-3, violation No. 4, was properly issued. Cessation Order No. 78-I-18-3 is vacated. 
Violation Nos. 1, 2, 3, and 5 of Notice of Violation No. 78-I-17-3, having been admitted, are hereby affirmed that the
violations were properly issued.  The violations cited in Cessation Order No. 78-I-18-1 and No. 78-I-18-2 having been
admitted are also affirmed.  

   All of the findings required under 43 CFR 4.1157 and 30 CFR 723.12 being contained in the transcript, the total
assessment against the applicant is affirmed at $6,100, and it is ordered that the sum of $6,500 with interest at the rate
of 6 percent or with interest at the prevailing Department of the Treasury rate, whichever is greater, be remitted to the
applicant.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   Gerald L. Gray, Esq., Attorney for Applicant, Main St., Box 238, Clintwood, VA 24228 (Certified Mail)  

   Marye L. Wright, Esq., Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, 950
Kanawha Blvd., E., Charleston; WV 25301 (Certified Mail)  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240 (Certified Mail)  

   Assessment Office-OSM, ATTN: Alan Palisoul, Room 215, So. Bldg., U.S. Department of the Interior, Washington,
DC 20240 {90}
 
   [Attachment]  

   JUDGE ALLEN: Anything further?  

   MR. GRAY: No.  

   JUDGE ALLEN: Will Counsel for Respondent repeat the waiver?  

   MS. WRIGHT: Yes.  Counsel for Respondent hereby waives its right to findings of fact and conclusions of law, and
request a ruling from the bench on the issues submitted.  

   JUDGE ALLEN: Counsel for Applicant?  

   MR. GRAY: The Applicant is willing to waive submission of findings of fact and conclusions of law.  

   JUDGE ALLEN: Are you willing for me to rule from the bench?  

   MR. GRAY: Yes, sir.  

   JUDGE ALLEN: First, let me say that 78-I-18-3 first cited Section 502, sub-paragraph (a), of Public Law 95-87,
referred to as 91 Statute 445, that particular section reads as follows: "No person shall open or develop any new or
previously mined or abandoned site for surface coal mining operations on land on which such operations are regulated
by a state unless such person has obtained a permit from the state's regulatory authority."  

   78-I-18-3 was modified on September 13th to provide "The provisions of the regulations, Act or permit violated, is
restated as follows: Section 710.11(a)(2)(iii), 30 CFR, of the rules and regulations," which hold as follows: {91}

The first caption (a) cites in italics, "Operations on land on which such  operations are regulated by a state." And then,
when you get to (2)(iii), "A person conducting coal mining operations shall not engage in any operations which result in
a condition or constitute a practice that cause or can reasonably be expected be cause significant, imminent
environmental harm to land, air, or water resources."  

   If there were no drainage ditch on this property at the time the inspectors were there, I feel absolutely certain that there
would have been only one violation issued there, and that would have been failure to pass all surface water through,
from the area, through a pond or a series of ponds.  And I'm sure that they would have cited that the dumping of spoils
into the creeks or the allowance of suspended solid matters into the creek was sufficient to present a question of
imminent and immediate harm and danger to the environment.  

   So, I cannot see why a double jeopardy situation should apply.  And since that charge is already brought, I am
prepared to rule that under violation 78-I-17-3, violation No.4. was in fact property kissued iin the first instance, and by
ruling that that was proper, then I am hereby vacating 78-I-18-3 as being duplicative; and that it would be unjust and
unfair to assess a penalty against the Applicant for the same offense, when one is nothing more {92} than an extension
of the other.  

   Also, under Section 710.11. which generally has to do with the obtaining of permits and abiding by the Act, and the
fact that this Act is applicable to these people -- as a matter of fact, that's the title of 710.11, is Applicability so, I cannot
rule that it is a distinguishable offense.  

   Violations 1, 2, 3, and 5, of 78-I-17-3 have been admitted, and therefore they are affirmed that they were in fact in
violation at the time the violations were issued.  

   78-I-18-1 also has been admitted; and therefore I find that that violation was in fact in existence at the time that the
cessation order was issued.  The penalty assessed for 18-1, I'll speak of later.  

   78-I-18-2 has been admitted; therefore I find that the violation was in fact in existence at the time the cessation order
was issued; and the same was proper.  However, by agreement of Counsel, the points are less than 31, and there is no
penalty.  

   I have already ruled on 78-I-18-3; and therefore since that violation, and cessation order following it, have been
vacated, then no penalty shall be assessed.  

   Now, going back to 78-I-18-1 -- the Act provides that where a cessation order has been in fact issued, that a penalty
shall be imposed.  The penalty that was --  

   MS. WRIGHT: The original penalty proposed was {93} $3500.  

   JUDGE ALLEN: That has not been given to me -- was $3500?  

   MS. WRIGHT: Yes.  

   JUDGE ALLEN: Was it reduced by any amount?  

   MR. GRAY: We agreed the points would be reduced from 55 to 45, and the amount would be reduced from $3500 to
$2500.  

   JUDGE ALLEN: I first must find that there is no evidence of any history of previous violations by this group,
submitted on the record.  I further must find that the seriousness of the offense and the probability of the occurrence is
such that it has in fact occurred.  And I must find that the potential extent of the damage would be a danger to the
environment.  The total points that were issued on that particular one -- have you got that?  

   MR. GRAY: It was 55 points.  

   JUDGE ALLEN: Let me have what you have under (a)(1) then.  How many points under (a)(1)?  

   MS. WRIGHT: Fifteen.  

   JUDGE ALLEN: Under (a)(2)?  

   MS. WRIGHT: Fifteen.  

   JUDGE ALLEN: Under total seriousness would be 30?
Under negligence would be what?  

   MS. WRIGHT: The original was 25, and it was agreed {94} to reduce it to 15.  

   JUDGE ALLEN: And good faith has not been considered?  

   MS. WRIGHT: That's correct.  

   JUDGE ALLEN: I must find from the evidence that the negligence involved in this, as being reduced from 25 to 15, is
fair.  I probably would not have reduced it that much.  But the reduced assessment is affirmed, of $2500.  

   Now, let's go back to reverse order, 78-I-17-3, violation No. 5.  This says, "The operator has failed to comply with the
construction requirements of access haul roads in that there are no ditches or ditch relief drains in place, and the road is
not surfaced with durable materials." There has been testimony as to the possibility of harm to the public by mud on the
streets, which all of us know; and I think I could take judicial notice of the fact that wet, slippery mud is more likely to
cause automobile accidents than no mud at all; and it would create a hazard.  The evidence has not been specific,
though, in the responsibility for those haul roads, under 71.17(j)(2).  "Haulroads, insofar as possible shall be located on
ridges or on flatter and more stable slopes to minimize the erosion.  Stream are prohibited unless they are specifically
approved by the regulatory authority as temporary routes across dry streams  that will not adversely affect the
sedimentation, and that {95}
will not be used for coal haulage.  Other stream crossings shall be made using bridges, culverts, or other structures
designed and constructed to meet the requirements of this paragraph.  Roads shall not be located in active stream
channels, nor shall they be constructed or maintained in a manner that increases erosion or causes significant
sedimentation or flooding.  However, nothing in this paragraph will be construed to prohibit relocation of stream
channels in accordance with paragraph (d) of this section."  

   3(i) -- "All access and haul roads shall be adequately drained using structures such as, but not limited to, ditches, water
barriers, cross drains, ditch relief drains.  For access and haul roads that are to be maintained for more than one year,
water control structures shall be designed with a discharge capacity capable of passing the peak run-off from a 10-year,
24-hour precipitation event.  Drainage pipes and culverts shall be constructed to avoid plugging or collapse, and erosion
at inlets and outlets.  Drainage ditches shall be provided at the toe of all cut slopes formed by construction of roads. 
Trash racks and debris basins shall be installed in the drainage ditches wherever debris from the drainage area would
impair the function of drainage and sediment controlled structures.  Ditch relief and cross drains shall be spaced
according to grade.  Affluent limitations of paragraph (a) of this section {96} shall not apply to drainage from access
and haul roads located outside the disturbed area, as defined in this section, unless otherwise specified by the regulatory
authority."  

   And (iv) cites, "Access and haul roads shall be surfaced with durable materials; toxic or acid-forming substances shall
not be used; vegetation may be cleared only for the essential width necessary for road and associated ditch construction;
and to serve the traffic roads."  

   In this case, as in so many cases, I know we're going to come, and have already come -- there's a problem that exists. 
What do you do when you come up on something that is already there?  What are your responsibilities?  Now, in some
areas we know that when you assume a responsibility for removing coal from off a high wall, you incur responsibilities
for replacing the high wall to a certain extent, and for other requirements of the Code.  But in this particular situation,
there is no evidence that the Applicant constructed the haul road. However, in another section, they're required to
construct haul roads.  

   Now, there's no question but what, if it's used, then it must be used in accordance with the regulations.  If it's going to
be there for a long time, for a year or less, and it's going to be continually hauled, it has to be maintained.  So, when you
know about it, then I think that {97} it should be maintained.  But when we're talking about the penalty, I think some
latitude should be given where perhaps the Applicant did not know, or was not aware, of what he had to do with that
road, since he did not construct it.  The fact that the haul road was there, and it was in violation, and it did occur, I think
the finding of 15 points is sufficient for that.  As to the potential or actual damages, I do not find that those existed this
time.  But there was damages; and I think that a proper point allowance for that should only be five points.  

   As to negligence, since a cessation order was issued on this job, there really wasn't much of an opportunity to do it;
and upon getting a permit at a later time; and upon learning of all this, they did do it.  And I'm not able to consider good
faith, as to whether or not there was or was not an absence of good faith, because of the circumstances involved. 
However, it is my opinion that the negligence in this case would equal at least perhaps the intent of good faith, if they
were allowed to do it.  But I think a fair assessment for negligence however would be five points.  

   So, the amount of the total points is to be reduced accordingly, which would make 26 points.  Is that correct?  

   MS. WRIGHT: Twenty-five.  {98}
 
   JUDGE ALLEN: Twenty-five.  And in accordance with the chart, I will assess a penalty of $500 for that violation.  

   Under the circumstances, I find that the probability of the occurrence of the violation of No. 2 has in fact occurred; and
therefore a 15-point assessment is satisfactory; that the extent of potential or actual damage has in fact been proven --
the evidence sustained it -- and the amount of six points on that is in fact sufficient; the total seriousness there being 21
points.  

   However, as to the negligence; because of the fact that top soil in the western part of Virginia is still a mystery, and the
mine owners really don't know what they should do with it, because there's not that much of it; I think he should be
given some credit, because it did not extend that much.  So, I'm going to reduce that to seven points -- to eight points --
excuse me -- which would make a total of 29 points; and assess a penalty of $900 on the 29 points.  

   Have I covered each and every point?  

   MS. WRIGHT: There's violation No. 4, 78-I-17-3.  

   JUDGE ALLEN: All right.  Let's go to that one.  

   Violation No. 4 is perhaps one of the most serious ones.  There is no question about that.  Failing to pass all of the
water or drainage from the disturbed area through a sedimentation pond before leaving the disturbed areas, is {99}
 
perhaps one of the most important of all the regulations.  I want the Applicant to understand something else too.  I hope
that you will check with your attorney about another potential violation that may exist right at this moment.  And before
anybody has a chance to go out there and do anything about it, you're getting a free shot.  But you have been in deep
mining for a long time; therefore you should know that you've got acid run-off coming across any water that touches
coal face.  Normally you're going to have acid.  The extent of that acid, we do not know -- I do not know.  

   And by allowing water, coming off a coal face, to go into a stream, it's going to increase the acidity of that stream,
which may kill all the vegetation downstream.  You're not being charged for that violation, and I'm not even  considering
it; but I want you to know that this is one of the most important things.  And that is one of the reasons that a
sedimentation pond is so devilishly important.  Not only does it control the suspended solids, but it gives you an
opportunity of making sure that your ph is within the limits set by the statute, before it leaves your property; so you have
no fear of problems with damaging the environment below.  But that's why -- that's one of the reasons why it is so
important.  

   In Kentucky and West Virginia, hundreds and hundreds of streams have been absolutely killed, with no {100}  fish
and no vegetation, simply because of acid mine run-off.  There's no question at all about the occurrence.  The violation
did occur, and was admitted to by the parties -- no, it was not -- the violation did occur.  I find that; and I also find that
the notice of violation was in fact properly issued. I find that the seriousness of it warranted the award of 15 points, and
that the extent of the potential or actual potential damage was sufficient to create a hazard; and that I am increasing the
number of points on that to 15 instead of 14, which puts it at a total seriousness of 30.  

   Now, as to negligence, I could assign up to 25 points on negligence.  I could increase it to that.  I think, however, that
the negligence assigned, of 12 points, is going to be sufficient.  I am tempted, however, because if it wasn't for the fact
that you were not there when this thing began; if you had been there when it began; I would have assessed 25 points for
negligence, simply because of your knowledge of acid mine run-off.  And I can't tell whether they would have that
knowledge or not.  But I'm going to say that the 12 points on that is sufficient.  

   As to all of the penalties, the question of good faith in all of those was not considered properly, except where I've
mentioned it.  

   And as to the others that I did not mention, there was no history of any previous violations which would {101}  add to
the point system.  Therefore, this is affirmed.  The amount of the assessment being 42 points, is $2200.  

   Have I concluded everything?  

   MS. WRIGHT: Respondent believes so.  

   JUDGE ALLEN: Have I overlooked anything?  Have I failed to rule on anything?  

   (No response.)  

   JUDGE ALLEN: Is there any request by either party?  

   MS. WRIGHT: Respondent has no request.  

   JUDGE ALLEN: Do you have any request?  

   MR. GRAY: Your Honor, one of the things, of course, I know that you've taken into account here, is to try to
determine a fair and just balance between the  parties.  What I would urge upon Your Honor is that you suspend a
portion of the penalty which was assessed on No. 4 of 17-3.  And the reason I would ask for that is that we've shown
that in fact the sediment ponds have been constructed; that there is -- it's not likely that there will be a future violation by
this operator of this type.  I believe that they understand the seriousness of the violation.  I believe they understand what
the intent of the law is at this time.  And I believe that the intent of the law will be met, or has been met at this point.  In
addition to all of the penalties which are being levied here, these people had equipment {102}  payments to make; they
had men who were employed by them, that they had to lay off during this entire period of time, before the sediment
ponds were constructed.  And they have suffered a severe financial penalty far beyond the $2200 penalty which you are
proposing.  And I would request, Your Honor consider suspending all or a portion of that.  

   JUDGE ALLEN: Let me say, first of all, that it is mandated by Congress, and by the Secretary of the Interior, and not
by me -- absolutely mandated -- that economic loss cannot be considered.  Economic consideration cannot be given in
an after-the-fact situation.  There just is absolutely no room anywhere in the regulations or the Act for that.  And it is so
mandated.  

   It's unfortunate that these things have occurred at the early stages of the act, where most of the damage is really being
done out of more ignorance than anything else.  There's no reason why anybody, as of today, however, should not know
what's in the regulations.  And they're not that severe.  They are not that expensive.  They're not that costly.  Perhaps the
only real expensive thing involved in all of this, other than the time, the labor of constructing these things, is the
purchase of lime or limestone for controlling ph.  I won't say that the construction of a valley fill is not expensive, or a
head-of-hollow fill, but this is part of the recovery process that's built into the {103}  price of the coal, and built into the
overhead.  

   In order for me to suspend it, I've got to have evidence of the fact that there's a likelihood that future violations would
not occur.  In one case that I did, I had testimony, because it was very very simple -- as a matter of fact, there wasn't but,
I think, two violations on it.  And I had something that was positive there, that I could hang my hat on and go to sleep
with, and say, well, now I'm not going to worry about these people, because I feel sure that they have done it, because
they corrected their mistakes as quickly as humanly possible.  At least, I felt that.  And so, I gave them a break on that.  

   The disturbing thing about this particular case is; first of all, they were mining without a permit, right off the bat; and
secondly, there was no attempt to control anything on the mine site.  I fell sure that there possibly could have been other
violations issued.  And if the coal is owned by Clinchfield, and if this company is paying Clinchfield a royalty, I think
Clinchfield ought to be the ones that ought to have their hands slapped for not informing you of what's going to be
expected of you, if you go and mine their coal, because they know. I would venture to say they have a rather high priced
group of lawyers that are constantly on staff that will keep track of the rules and regulations.  And it's the small operator
that's getting hit {104}   with these things.  

   Have you totalled the total amount?  

   MS. WRIGHT: Yes, I have.  By my calculations, the total amount assessed pursuant to His Honor's ruling, $6,100. 
And in that event, the proposed assessment of $12,600 having been reduced by subtracting $6,100, would mean that the
Secretary of the Department of the Interior must remit to Applicant $6,500 of the $12,600 that was placed in escrow.  

   JUDGE ALLEN: I think, under the circumstances, that what's been done here today has been fair and equitable.  I will
order that the Secretary of the Interior remit, with legal interest, the sum of $6,500.  And upon signing the record, this
will constitute the order.  However, I will write a supplemental order, and this will be attached to the supplemental order
as a full and complete order; so you will receive copies of the transcript, which will be attached to about a one-page, or a
page-and-a-half order.  

   JUDGE ALLEN: The record is closed.  

   (Whereupon, at 3:20 p.m., the hearing in the above-entitled matter was closed.)