PEABODY COAL CO.  v OSM; Docket No. KC 9-1-P  (April 10, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: April 10, 1979  

CASE-NO: Docket No. KC 9-1-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation # 78-IV-1-04  

COUNSEL: Gregory J. Leisse, Esq., 301 North Memorial Drive St. Louis, Missouri, for the Applicant.  Bruce E.
Cryder, Esq., and Gerald A. Thornton, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Kansas City,
Missouri, 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), Peabody Coal
Company, Petitioner, petitioned on October 17, 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 accordance with the requirements of 43 CFR Section 4.1152(b)(1) paid the full amount of the proposed
civil penalty ($3,000.00) 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 before the undersigned in St. Louis, Missouri, on January 15, 1979, a schedule for the submission
of posthearing briefs was established and all such briefs have now been received.  

   FACTS

{2}  Notice of Violation No. 78-IV-1-04 was issued by the Office of Surface Mining for Power Mine No. 062 in Henry
County, Missouri.  This notice was for failure to passall surface drainage from disturbed areas through a sedimentation
pond or a series of such ponds before leaving the permit area, in violation of 30 CFR 715.17(a).  A proposed
assessment of $1,500.00 was sent to Petitioner on August 9, 1978.  Petitioner requested an informal conference to
review this proposed assessment pursuant to 30 CFR 723.17 and a conference was held on September 28, 1978.  At the
conclusion of the conference the conference officer raised the proposed penalty to $3,000.00 acting pursuant to 30 CFR
723.17(b).  Petitioner petitioned for a review of the modified assessment on October 13, 1978.  This petition was
consolidated for hearing with that involving Notice of Violation No. 78-IV-1-02.   

  The remedial action of designing and constructing necessary sedimentation ponds was required to be accomplished no
later than August 7, 1978.  Such time for accomplishment was subsequently extended.  The notice of violation was
terminated on August 21, 1978, upon a finding that the remedial action had been accomplished.  This tribunal was
advised by posthearing brief of petitioner and by attachments thereto that the assessment worksheet of the assessment
office showed the following point assignment.  Fifteen points for probability of occurrence, twelve points for potential
or actual damage, eight points for negligence, and no points for history of previous violations or for good faith in
attempting to achieve compliance.  The total of 35 points led to a proposed penalty of $1,500.00.  The conference report
from the conference officer however  indicated the assignment of fifteen points for probability of occurrence was too
high and that he assigned thirteen points for that category.  The conference officer found the violation to be intentional
and increased the points assigned for negligence from eight to 25.  These changes resulted in a net increase of fifteen
points and a corresponding increase of the penalty from $1,500.00 to $3,000.00.  Full payment of the proposed
assessment of $3,000.00 has been placed in an escrow account pending final determination of this matter.  

   ISSUES

 The following issues are presented: (1) Was the enforcement of the general sedimentation pond requirement of Section
715.17(a) enjoined by the order issued by Judge Flannery on May 3, 1978?  (2) Do the facts warrant the assessment of a
civil penalty and if they do what is the proper amount of such penalty?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

{3}  Was enforcement of the general sedimentation pond requirement of 30 CFR 715.17(a) enjoined by the order issued
by Judge Flannery on May 3, 1978?   

  On December 13, 1977, OSM promulgated its final rules for the initial regulatory program required by the Act (42
Fed. Reg. 62675).  Included in those regulations was Section 715.17(a) lwhich stated in part:  

  "All surface drainage from the disturbed area... shall be passed through a sedimentation pond or a series of
sedimentation ponds before leaving the permit area...  Sedimentation ponds required by this paragraph shall be
constructed in accordance with paragraph (e) of this section.."  

  Section 715.17(e) referred to in the above quotation stated the design, construction and maintenance criteria for the
sedimentation ponds.  On February 27, 1978, OSM promulgated amended criteria under Section 715.17(e) as "interim
final rules." (43 Fed. Reg. 8090).  These interim final rules were effective on publication. However, OSM requested
public comments in these rules and held a public hearing after which final rules were to be published.   

  Before these final rules for sedimentation pond design and construction were published, Judge Thomas A. Flannery of
the Federal District Court for the District of Columbia enjoined the enforcement of the design and construction
standards under Section 715.17(e) promulgated on February 27, until such time as final rules were promulgated and
judicially reviewed.  He also enjoined the enforcement of Section 715.17(a) to the extent that it superseded, amended,
repealed or modified the provisions of the Federal Water Pollution Control Act (FWPCA).In re Surface Mining
Regulation Litigation, 452 F. Supp. 327 (D.C.D.C. May 3, 1978).   

  Petitioner contends: 

1) The general sedimentation pond requirement of Section 715.17(a) is so interconnected with the design and
construction standards of 715.17(e) that the enjoining of the enforcement of those standards effectively enjoined
enforcement of the general sedimentation pond requirement insofar as that requirement would necessitate the design and
construction of new ponds, and;  

2) The general sedimentation pond requirement in effect supersedes, amends, repeals or modifies the provisions of the
FWPCA in such a way as to be enjoined under the terms of the injunction.   

  Petitioner argues that it is the enforcement of the sedimentation pond requirement, per se, that would be held to have
been enjoined by the decision of Judge Flannery.  OSM should be held to be empowered to require sedimentation ponds
where a violation of the effluent limitations is proven.  But where no such effluent violation is established, OSM should
be held to be enjoined from requiring the designing and construction of sedimentation ponds pending the promulgation
of final, enforceable standards for the design, construction and maintenance of such ponds.   

{4}  Section 515(b)(10) of the Act requires operators to "minimize disturbances to the prevailing hydrologic balance at
the mine site and in offsite areas... by  

  (B)(i) conducting  surface coal mining operations so as to prevent, to the extent possible using the best technology
currently available, additional constributions of suspended solids to streamflow, or runoff outside the permit area, but in
no event shall constributions be in excess of requirements set by applicable State or Federal law;  

  (ii) constructing any siltation structures pursuant to sub-paragraph (B)(i) of this subsection prior to commencement of
surface coal mining operations, such structures to be certified by a qualified registered engineer to be constructed as
designed and as approved in the reclamation plan;  

  (c) cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after
disturbed areas are revegetated and stabilized; and depositing the silt and debris at a site and in a manner approved by
the regulatory authority;  

  It is clear from this language that Congress contemplated a major use of "settling ponds or other siltation structures" at
surface coal mining operations.  Sedimentation of streams is to be prevented "using the best technology currently
available." It was left up to OSM to flesh out these requirements by regulations.  

   Pursuant to Section 501(a), OSM promulgated regulations on December 13, 1977, which, inter alia, did these two
things:  

  1.  By 30 CFR Section 715.17(a) and 717.17(a) OSM determined that sediment ponds should always be used (with
severely restricted exceptions) because they are the best technology currently available for sediment control.  See 42
Fed. Reg. 62653 (item 27) December 13, 1977; also items 4 and 8, pp. 62649-50.   

2.  By 30 CFR Sections 715.17(e) and 717.17(e) OSM determined how these ponds should be built.  As noted in item
27, 43 Fed. Reg. 62653, many commenters on these regultions felt that design criteria should not be specified.   

{5}  Conceptually, these requirements are entirely distinguishable.  The first determines that a type of well-known
technology is the best available for achieving a result mandated by Congress, and that it must be employed.  The other
attempts to detail how that general technology shall be employed.  It is possible to disagree with the latter without
disagreeing with the former.  That is precisely what many in the coal industry did, arguing that company engineers were
in the position to design functional, result-oriented ponds based on particular site conditions that would give better
results than design standards intended for nationwide applicability. 

  In the challenges to the December 13, 1977, rules in the U.S. District Court for the District of Columbia, the coal
industry successfully argued that the Secretary had not adequately demonstrated upon the record why he had chosed the
particular design criteria specified in 30 CFR 715.17(e) and 717.17(e).  This is what Judge Flannery discussed at 452 F.
Supp. 343 item (a) in his May 3, 1978, opinion.  He did not enjoin nor even discuss the Secretary's determination that
sediment pond technology is, in concept, the best technology currently available for sediment control.  Under item (b),
Judge Flannery implicitly left in effect those effluent regulations that did not "... supersede, amend, modify, or repeal the
provisions of the FWPCA. .." Operators continued to be responsible for having ponds that would prevent violations of
the sediment effluent requirements (suspended solids).   

  Therefore Judge Flannery did not "interconnect" the design criteria and the requirement for sediment control by use of
ponds in any way.  Petitioner, like all other companies, was free to design sediment ponds that would "prevent...
additional contributions of suspended solids to streamflow, or runoff outside the permit area..." Section 515(b)(1)(B)(i)
of the Act.   

  Did the general sedimentation pond requirement supersede, amend, repeal, or modify the provisions of the FWPCA? 
Judge Flannery, on May 3, 1978, enjoined the enforcement of Section 715.17(a) to the extent that it superseded,
amended, repealed or modified the provisions of the FWPCA.  Judge Flannery in  his Memorandum Opinion and Order
issued August 9, 1978, on Consolidation Coal Company's motion for temporary restraining order on the enforcement of
the effluent limitations of Section 717.17(a) ruled that enforcement of the effluent limitations of Section 715.17(a) did
not supersede, amend, repeal or modify the provisions of the FWPCA program and enforcement of the effluent
limitations was not enjoined.  Petitioner contends that considerations which influenced the Judge's determination of the
effluent limitations do not apply in the case of the general sedimentation pond requirement.  Judge Flannery found that
neither the EPA nor the states had acted to apply such standards to non-point source discharges.  Petitioner points out
that states have acted on the question of the requirement for sedimentation ponds.  OSM lists West Virginia,
Pennsylvania, Kentucky and Montana as being among the states requiring sediment ponds as part of mining operations. 
43 Fed. Reg. 52739 (November 14, 1978).  Thus, OSM's sedimentation pond requirement, argues Petitioner, is not one
that "fills a gap" where states have failed to act.  It is one that attempts to supersede a state's determinations as to
whether sedimentation ponds are to be required for mining operations within its boundaries.  As such, the general
sedimentation requirement would supersede the Federal Water Pollution Control Act which grants states the discretion
to make such determinations.33 U.S.C. Section 1288.  For that reason, concludes Petitioner, the general sedimentation
pond requirement of Section 715.17(a) should be held to be enjoined under the terms of Judge Flannery's injunction. 
Respondent contends that what Judge Flannry said on August 9, 1978, should be considered irrelevant to Peabody's
degree of negligence in June and July, 1978, based on its inter-pretation of the May 3, 1978, decision.   

{6}  The August 9, opinion, however, is a verification of OSM's power to require sediment ponds.  The court said, in
effect, that the states, not the EPA, had the responsibility for regulation non-point discharges under Section 208 of the
FWPCA and that since no state had acted under Section 208, OSM was free to fill the gaps in the FWPCA program,
"with respect to non-point discharges." The sediment pond requirement of Section 715.17(a) turns nonpoint discharges
into point source discharges which must meet the effluent standards of both OSM and EPA, ths filling the regulatory
gap.  Said Judge Flannery:  

   "This is precisely the type of situation envisioned by the Act where the Secretary of the Department of Interior would
step in and regulate in order to prevent water pollution by the mining operations." (Memorandum Opinion p. 2.)  

 This point was reaffirmed in Judge Flannery's final opinion of August 24, 1979. In Re Surface Mining Litigation, 436
F. Supp. 1301 (D.C.D.C., 1978).  There the court added, at p. 1314: 

...  Thus, the court cannot conclude that the requirements of Sections 715.17(a) and 717.17(a) repeal, amend, supersede,
or modify the provisions of Section 208 of the FWPCA because the Scretary has filled a regulatory gap where the EPA
has no authority to act and the states have not yet promulgated a regulatory program...  

   The court spoke of all of "... the requirements of Sections 715.17(a) and 717.17(a)... "without qualification.   

  The fact that at least four states required surface coal mines to have sediment ponds prior to the proposed rules of
November 14, 1978, is not proof that Missouri had decided, as part of its Section 208 regulatory program, not to require
sediment ponds.  The Petitioner has not shown that the four states mentioned enacted their laws in an attempt to comply
with Section 208.  More to the point, the state of Missouri has not yet submitted a Section 208 plan to the FEA for
review and approval, and thus has not assumed any regulation under Section 208.   

{7}  Even when Missouri and the  other coal states finally get around to regulating non-point discharges under Section
208, it may well be decided that any rules enacted pursuant to Section 515(b)(10) of P.L. 95-87 will remain in effect
unless they weaken or nullify particular EPA rules.   

  The above argument that OSM regulations fail because they attempt to supersede the state program constitutes a de
novo challenge to the regulations and should be attacked by an original civil action in the U.S. District Court for the
District of Columbia.  Section 526(a) of the Act (30 U.S.C. 1276).   

  In conclude that the enforcement of the general sedimentation pond requirement of Section 715.17(a) was not enjoined
by the May 3, 1978 Order of Judge Flannery.   

  The Notice of Violation was for failure "to pass all surface drainage from the disturbed area through a sediment pond
or ponds before leaving the permit area." This is required by 30 CFR 715.17(a).  The Notice of Violation was issued by
Michael C. Wolfrom of the Office of Surface Mining.  Mr. Wolfrom testified: that upon inspecting the mine on July 13,
1978, he found at the northernmost operation that an estimated eighty to one hundred acres had been disturbed (Tr. 51);
that spoil had been deposited in the small drainageways all the way around the operation (Tr. 52); that sediment had
come from the spoil piles and entered into the small drainageways (Tr. 52); that there was evidence that through puming
water out of the pit, spoil was caused to erode and sediment was carried downstream (Tr. 52-53); that the mining
operation had numerous drainage areas and to adequately treat the surface water run-off several small sediment ponds
would be required or a diversion-like structure to catch drainage entering the drainageways and divert it to a
sedimentation pond prior to discharge off the permit area (Tr. 53-54); that pepitioner had no pond on this operation and
that its personnel had no plans for such construction (Tr. 54); that if it rained, untreated surface water run-off would
enter the streams in the area (Tr. 55) and; that surface water run-off would eventually leave the bounds of the permit
(Tr. 54).   

  I find that there was no sediment pond or ponds on the permit area.  I further find that the Notice of Violation was
validly issued.  Having reached this point it is now incumbent upon this tribunal to concern itself with the civil penalty
and to make findings of fact on each of the four criteria set forth in 30 CFR 723.12.  I find under Section 723.12(b) that
Petitioner has no history of previous violations and therefore no points should be assigned.  I further find under Section
723.12(e) that no points should be added or subtracted for good faith in attempting to achieve compliance.  Here the
original abatement period was extended by 14 days and the abatement occurred within that extended period.  The next
criterion to be considered is that of Seriousness, Section 723.12(c).  Probability of Occurrence: There is no evidence
that sedimentation off the permit area or in the receiving stream actually occurred.  There is evidence, however, that
probability of the occurrence of sedimentation was likely.  An estimated eighty to one hundred acres had been disturbed,
spoil had been deposited in the small drainageways all the way around the operations.  There is also evidence that
through pumping water out of the pit, spoil was caused to erode and sediment was carried downstream and that if it
rained surface water run-off would enter the streams in the area.  I find that off permit sedimentation was likely to occur
and that the assignment of twelve points for probability of occurrence by the conference officer was both reasonable and
proper and is hereby adopted.   

{8} Extent of potential actual damage: It is clear that the impact against which the violated standard is designed to
prevent would extend outside the permit area. For such impact there is to be an assignment of eight to fifteen points
depending on the duration and extent of the damage or impact.  There is no evidence of damage or impact of
sedimentation off the permit area.  The potential, however, for such damage or impact is definitely there.  From  eighty
to one hundred acres had been disturbed.  Spoil was in and near the drainages and there was nothing to prevent rain
from moving it.  Against this must be contrasted the fact that a notice of violation was issued and not an order of
cessation.  Had significant imminent environmental harm been expected it would have been the duty of OSM to issue an
order of cessation.  The July 13 Notice of Violation granted until August 7 for the required remedial action to be
accomplished even though OSM believed such work could be done in from eight to sixteen hours.  Now, add to this the
fact that the long, original abatement period was extended by fourteen days and it becomes readily apparent that OSM
did not consider the violation to be overly damaging.  OSM made no estimate of the duration or extent of damage.  Mr.
Wolfrom testified that sediment control may have been attained in some areas because of the vegetation.  He also said
that a drainageway could act as a sediment control measure and that there was evidence that solids had dropped into the
drainageways.  I realize of course that such depositions may be temporary and that sediment run-off would not be
controlled thereby.  Under these facts it appears improper to assign more than the minimum required by Section 723.12
(c)(2)(ii) to wit, eight points.  I therefore find that eight points would be the proper assignment under the facts. 

  Negligence: It is not unreasonable to believe that Petitioner was confused by the facts as they then existed: questions
regarding Judge Flannery's Order, Consolidation Coal Company's pending motion for a temporary restraining order on
the enforcement of the effluent limitation of Section 717.17(a), and the possibility that the Judge Flannery opinion might
cause the Secretary to rethink the pond requirement.  It is understandable that it wished to delay the construction of
sedimentation ponds until there were final rules for sedimentation pond design and construction.  While I am willing to
give weight to these concerns of the Petitioner, I cannot understand why it neglected to do anything to prevent sediment
deposits beyond the permit area.  It must have realized the inevitability of such deposits.  At very little cost in time or
money, Petitioner could have erected barriers which would have held back surface run-off.  With such minimum
protection it could have then taken more time to decide what would be in its best interest.  The environment would not
have been totally ignored.  To have done nothing under the circumstances constitutes negligence and I so find.  I feel
however that the assignment of eight points for negligence by the assessment office is nearer to being correct than is the
assignment of twenty points by the conference officer.  I find therefore that the assignment of twelve points would more
nearly conform with the assessment procedure of Section 723.12(d).  

   I find that the total number of points assigned under 30 CFR 723.12 to be 32 and that said number of points converts
to a civil penalty of $1,200.00.  

   All proposed findings and conclusions presented and not otherwise incorporated in this decision are herewith denied.  

   ORDER  

{9}  It is therefore ordered: that Notice of Violation No. 78-IV-1-04, July 13, 1978, is affirmed; that the proposed civil
penalty assessed against the Petitioner be reduced from $3,000.00 to $1,200.00 and; that the balance of $1,800.00 with
interest at the rate of six percent or with interest at the prevailing Department of Treasury rate, whichever is greater, be
remitted to Petitioner.  

William J. Truswell, 
Administrative Law Judge