CONSOLIDATION COAL CO. v OSM;  Docket No. IN 9-9-R (May 29, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: May 29, 1979 [Amended by November 28, 1979 Decision]  

CASE-NO: Docket No. IN 9-9-R  

PROCEEDING: Application for Review, Notice of Violation, No. 78-III-5-12  

COUNSEL: APPEARANCES: Mr. Daniel E. Rogers, Esq., Pittsburgh, Pennsylvania, for Applicant; 
 
Nina Rose Hatfield, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Indianapolis, Indiana, for the
Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: DECISION  

   BACKGROUND  

   In accordance with section 525 n1 of the Surface Mining Control and Reclamation Act of 1977 n2 (the Act),
Consolidation Coal Company {2} (Applicant) applied on December 21, 1978, for review of the notice issued by the
Office of Surface Mining Reclamation and Enforcement (Respondent) under section 521(a)(3) n3 of the Act.  A hearing
was held before the undersigned in Evansville, Indiana, on April 11, 1979.  

   n1 30 U.S.C. Section 1275 (1977).  That section provides, in part:  

   "(a)(1) A permittee issued a notice or order by the Secretary pursuant to the provisions of subparagraphs (a)(2) and
(3) of section 521 of this title * * * may apply to the Secretary for review of the notice or order within thirty days of
receipt thereof or within thirty days of its modification, vacation, or termination.  Upon receipt of such application, the
Secretary shall cause such investigation to be made as he deems appropriate.  Such investigation shall provide an
opportunity for a public hearing, at the request of the applicant * * * to enable the applicant * * * to present information
relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof. 
The filing of an application for review under this subsection shall not operate as a stay of any order or notice.  

   "(2)(b) Upon receiving the report of such investigation, the Secretary shall make findings of fact, and shall issue a
written decision, incorporating therein an order vacating, affirming, modifying, or terminating the notice or order, or the
modification, vacation, or termination of such notice or order complained of and incorporate his findings therein."  

   n2 30 U.S.C. Section 1201 et seq. (1977).  

   n3 30 U.S.C. Section 1271(a)(3) (1977).  That section provides, in part: "When, on the basis of a Federal inspection,
* * * the Secretary or his  authorized representative determines that any permittee is in violation of any requirement of
this Act * * *; but such violation does not create an imminent danger to the health or safety of the public, or cannot be
reasonably expected to cause significant, imminent environmental harm to land, air, or water resources, the Secretary or
authorized representative shall issue a notice to the permittee or his agent fixing a reasonable time but not more than
ninety days for the abatement of the violation and providing opportunity for public hearing."  

   FACTS

   Notice of Violation No. 78-III-5-12 was issued on November 27, 1978, by the Office of Surface Mining for
Consolidation Coal Company's Burning Star No. 4 Mine in Perry County, Illinois. This notice alleged that Consolidation
Coal Company had violated the provisions of 30 CFR 715.17 on November 20, 1978.  The nature of the violation was
that "discharge from disturbed area fails to meet effluent limitations for total suspended solids." A laboratory test
indicates total suspended solids of about 220 mg/1.  

   Applicant contends in its Application for Review that the inspection by OSM on November 20, 1978, was contrary to
Section 517(b)(3) of the Act and contrary to 30 CFR 721.12(a) because OSM entered the property of Applicant without
notifying anyone of their presence and without presenting appropriate credentials to anyone.  Applicant requests that the
Notice of Violation be declared null, void and of no effect.  Applicant also contended that said activity by OSM
constituted an illegal search contrary to the Fourth Amendment to the United States Constitution.  Upon motion by
Respondent said allegation of Applicant was dismissed by the undersigned for lack of authority to pass on a
constitutional question.  {3}
 
   ISSUES

   The following issues are presented:  

   (1) Did OSM personnel comply with 30 CFR 721.12(a) in making their inspection of November 20, 1978?  

   (2) If they did not, should the notice of violation be vacated?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

   Marvin Utsinger, an authorized representative of the Secretary of the Interior, testified: that he made his initial
inspection of Applicant's Burning Star #4 Mine on November 8, 1978; that he noticed somewhat of an odd occurrence
in that while it had been dry for several days he did not expect to see water flowing in the ditches (Tr. 10); that the
dishes were approximately ten minutes travel time away from the mine office (Tr. 10); that there was evidence that there
had been pumping in the ditch area just prior to his observation (Tr. 15); that it appeared that water had been pumped
from a depressed area to across the road and that the pump had just been pulled (Tr. 15); that it was not possible to take
a water sample on November 8 and without a sample he was unable to determine whether Applicant was violating the
effluent standards (Tr. 16); that he returned on November 20, 1978, and took a water sample which revealed  suspended
solids of 224.5 whereas the standard was 70 milligrams per liter (Tr. 17 & Exh. 6); that after taking the water sample he
approached the first company truck he saw, identified himself, and then drove to the mine office (Tr. 18); and that while
it is his normal procedure to check in at the mine site office and identify himself before making an inspection, he felt
from his initial inspection that the pump could be turned off while he was at the office thus preventing him from taking a
sample (Tr. 19).  

   Applicant admits that a violation did take place but contends that the notice of violation should be vacated because of
the failure of OSM to follow the procedures set forth in the Act and the regulations (Tr. 63). It argues that when
inspectors go on mine property without notifying the Applicant they are there, then a real danger of personal injury is
involved (Tr. 4, 61).  This risk to safety need not take place if the regulations are adhered to (Tr. 4-5).  

   Respondent contends that an inspector does not have to give advance notice of an inspection and that checking in with
the mine office first is merely a courtesy (Tr. 64).  

   The question here presented was described as simple (Tr. 65), I find it anything and everything but simple.  The
applicable regulation is {4} 30 CFR 721.12(a) and reads:  

   "(a) Authorized representatives of the Secretary, without advance notice and upon presentation of appropriate
credentials and without a search warrant, shall have the right to entry to, upon, or through any surface coal mining and
reclamation operations or any premises in which any records required to be maintained are located."
 
Neither advance notice nor a search warrant is required for a right of entry.Said right is acquired "upon presentation of
appropriate credentials". This wording is taken directly from the Act.  

   A number of questions fairly rush to be considered: Is the presentation of credentials a condition precedent to the right
of each entry?  Is a such presentation superfluous once a working relationship has been established between the
inspector and mine personnel?  Applicant would concede this to be so (Tr. 27).  If the presentation of credentials
becomes superfluous, does the inspector nevertheless first have to present himself to mine personnel before inspecting? 
If the presentation of person and/or credentials is required, is such requirment nonetheless nullified by section 721.14 n4
which provides that a failure to give notice prior to inspection is not grounds for vacating a notice of violation.  

   n4 30 CFR 721.14  

   "No notice of violation or cessation order may be vacated by reason of failure to give notice required by the Act or
these regulations prior to the inspection; or by reason of a subsequent determination that prior to the inspection the
Office did not have information sufficient to create a reasonable belief that a violation had occurred."  

   Here Mr. Utsinger altered his normal procedure and did not first check in at the mine site office.  He did this to insure
that he obtain a water sample.  The question then that must be answered is whether an inspection may ever be made
without an inspector first presenting appropriate credentials? The answer is yes! Mr. Utsinger had established himself
by identification and with credentials on November 8, 1978, the date of his initial inspection.  The right of entry,
previously referred to, is found in 30 CFR "Part 721 - Federal Inspections." The first section of said part, Section
721.11, provides the bases for such inspections.  In part it reads:  

   "(c) On a ramdom basis of at least one complete inspection each 6 months.  A complete inspection is an onsite review
of the operator's compliance with {5} all applicable standards in these regulations within the entire area disturbed or
affected by mining."
 
Mr. Utsinger, in taking a water sample on November 20, 1978, was merely completing an inspection which was begun
on November 8, 1978 and I so find. Without such water sample it would not be possible to determine Applicant's
"compliance with all applicable standards in these regulations." Under these facts I conclude that the regulations did not
require the presentation of credentials prior to taking the water sample.  I further find, that since the sampling depended
on the availability of pumped water, the length of time required to complete the inspection was reasonable.  

   Should the presentation of credentials, after an initial inspection, be viewed as a requirement upon OSM to give notice
of its presence for the purpose of inspection, the result would be no different.  The same conclusion would be reached. 
The taking of a water sample was merely a concluding act in the continuing inspection for which no prior notice of
presence was required.  A right of entry once established continues a reasonable length of time without the need for
renewal or reestablishment.  

   Actually when presentation of credentials is converted to a notice of presence the argument against advance notice
becomes even stronger.  Advance notice of the commencement of an inspection is one thing.  Certainly it would be
initiated by OSM with an announcement of its presence and the presentation of credentials.  Such would not be
construed as advance or prior notice.  But even such notice I conclude to be advance notice under the facts of this case
and thus specifically excluded. Here a notice of a matter of minutes could have prevented OSM from performing its
duty under the regulations.  

   The regulatory history also indicates that the prior presentation of person or of credentials for each inspection activity
was not intended.  Comment 11 n5 to Part 721, reads in part as follows:  

   "It is not intended that inspections be restricted to 'normal business hours' if the exigencies or violations justify
inspection at other times.  An example would be attempts to detect illegal discharges or other night-time activities which
are prohibited by the Act or regulations."  

   n5 42 FR 62664 (December 13, 1977) {6}

   ORDER  

   Notice of Violation No. 78-III-5-12, November 27, 1978, is affirmed.  

   William J. Truswell  
   Administrative Law Judge
 
Distribution: (Certified Mail - Return Receipt)  

   Mr. Daniel E. Rogers, Esquire, Consolidation Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh,
Pennsylvania 15241.  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240.  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, Federal Courts Building,
Room 521, Indianapolis, Indiana 46204.  

   by regular mail:  

   Assessment Office, Office of Surface Mining Reclamation and Enforcement, U. S. Department of the Interior,
Washington, D.C. 20240, Attn: Harriet Marple.  

   Director, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240, Attn: Special Assistant
to Director