CENTRAL UTILITY COAL CO., INC. v OSM;   Docket No. IN 9-3-P (May 1, 1979)

TYPE:  ALJ Hearing: Decision  

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

DATE: May 1, 1979  

CASE-NO: Docket No. IN 9-3-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 78-III-002-3(3)  

COUNSEL: Roger Eiteljorg, Esq., 4567 Cold Spring Road, Indianapolis, Indiana, for Applicant; Nina Rose Hatfield,
Esq., Office of the Field Solicitor, U.S. Department of the Interior, Indianapolis, Indiana, for the Respondent.  

OPINIONBY: Adminstrative Law Judge Truswell  

OPINION: DECISION  

   BACKGROUND  

  In accordance with Section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Central Utility
Coal Company, Inc., Petitioner, petitioned on December 26, 1978 for review of a notice of proposed civil penalty
assessment issued by the Office of Surface Mining and Reclamation, Respondent.  Contemporaneous with the filing of
its petition the Petitioner in compliance with the requirements of 43 CFR Section 4.1152(b)(1) paid the full amount of
the proposed civil penalty ($1,600.00) to the Assessment Office, Office of Surface Mining to be placed in an escrow
account pending final determination of the assessment.  

   A hearing was held before the undersigned in Indianapolis, Indiana, on March 29, 1979.  

   FACTS{2}

  Notice of Violation No. 78-III-002-3(3) was issued by the Office of Surface Mining for Trayler Mine #3 in Daviess
County, Indiana.  This notice was for "discharge of pumped water from treatment facility whose quality exceeds
discharge parameter for total suspended solids" in violation of 30 CFR 715.17(a).  This Notice of Violation actually
contained four separate violations, three of which had been otherwise disposed of prior to the hearing (Tr. 4).  The
assessment worksheet from the assessment office sets forth the following point assignments: Seriousness - fifteen points
for probability of occurrence and fifteen points for extent of potential or actual damage; Negligence - six points; and no
points for history of previous violations or for good faith in attempting to achieve compliance.  The total of 36 points
converted to a proposed penalty of $1,600.00.  Petitioner did not contest the amount of the penalty based upon a
misapplication of the civil penalty formula, either in the pleadings or at the hearing.  

   ISSUES

   The following issues are presented:  

   (1) Does Notice of Violation #78-III-002-3(3) state a violation of 30 CFR 715.17(a)?  

   (2) Was the sampling of discharge water sufficient to establish noncompliance with 30 CFR 715.17(a)?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

  Petitioner contends that the Notice of Violation is defective in that it does not state that the discharge water "was
leaving the permit area" and therefore should be vacated.  John C. Kathmann of OSM, who inspected the mine and
issued the Notice of Violation, testified that the space provided on the form is cramped and that he did not put it in (Tr.
19).  The Notice of Violation does state, however, that the regulation violated is 30 CFR 715.17(a).  Actually this
regulation could be more clear.  It speaks of "discharges from areas disturbed by surface coal mining and reclamation
operations".  OSM has interpreted this language to mean leaving the permit area (Tr. 43).  Respondent, of course, also
interprets this regulation to so provide (Tr. 42 - 43).  Mr. Kathmann testified that the point at which he took the sample
of the discharge was off the permit area (Tr.21).  Petitioner neither alleges nor contends that it was misled by or did not
understand the notice.  In fact it was able to accomplish the remedial action required and obtain a termination of the
notice (Tr. 32 and Ex. #6).  
Section 512(a)(5) of the Act provides that notices "shall set forth with reasonable specificity the nature of the violation". 
 

{3}  I find that Notice of Violation No. 78-III-002-3(3) is in conformity both with the Act and with the regulations
issued thereunder.  I further find that said Notice of Violation does state a violation of 30 CFR 715.17(a).   

  Mr. Kathmann took but one sample of water being discharged from the permit area.  Petitioner contends that one
sample alone is not a representative sampling.  The analysis of the one sample taken, however revealed suspended
solids of 1,560 milligrams per liter. (Ex. #1).  The maximum allowable under 30 CFR 715.17(a) is 70.0 milligrams per
liter.  Said "maximum allowable" is but one of two effluent limitations therein provided for.  The other is an average of
daily values for 30 consecutive discharge days and is established at 35.0 milligrams per liter.  It thus becomes apparent
that while sampling over a period of time would be required to obtain an average of daily values, one sample alone
would be sufficient to determine whether the effluent limitation for total suspended solids exceeded the maximum
allowable.  This is particularly true here where the maximum allowable of 70.0 mg/1 was exceeded by more than 22
times.   

  I find that there was a discharge off the permit area from a locality disturbed by Petitioner's surface coal mining and
reclamation operations and that such discharge exceeded the maximum allowable effluent limitation for suspended
solids.  I further find that the Notice of Violation was validly issued.   

  Petitioner did not contest the amount of penalty based upon a misapplication of the civil penalty formula.  I therefore
adopt, as my finding of fact on each of the four criteria set forth in 30 CFR 723.12, the point assignment of the
Assessment Office, Office of Surface Mining.  This results in a total assignment of 36 points and converts to a civil
penalty assessment of $1,600.00  

   ORDER  

  It is therefore ordered that Notice of Violation No. 78-III-002-3(3), July 14, 1978, is affirmed and the proposed
assessment of $1,600.00 is herewith established as the amount of the civil penalty.  

William J. Truswell, 
Administrative Law Judge