STANDARD SIGN & SIGNAL CO. v OSM; Docket No. NX 9-11-P (April 6, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: STANDARD SIGN & SIGNAL CO., Applicant v. OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: April 6, 1979  

CASE-NO: Docket No. NX 9-11-P  

PROCEEDING: Civil Penalty Proceeding, Cessation Order No. 78-II-18-2  

COUNSEL: Appearances: C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell, Charleston, West Virginia, for
Applicant; 
 
J. T. Begley, Esq., Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION  

   BACKGROUND  

   In accordance with section 518 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.  1201 et seq.
(the Act), Standard Sign & Signal Co. (Applicant) applied on December 29, 1978, for review of a proposed civil
penalty assessment issued by the Office of Surface Mining Reclamation and Enforcement. This proposed assessment
was based on Cessation Order No. 78-II-18-2 dated August 17, 1978.  Contemporaneous with its 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 penalty ($2,800) 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 Charleston, West Virginia, on February 12, 1979.  

   On August 17, 1978, Respondent's inspectors visited Applicant's mining site and issued a cessation order for "failure
to protect the hydrologic system. Specifically, failure to pass all surface drainage through a sedimentation pond, placing
spoil in such a manner that it may slide and obstruct the stream. Provision(s) of the Regulations, Act, or Permit violated
'717.17.'" {2}
 
   On the cessation order, the square is checked that "The condition practice, or violation is causing or can reasonably be
expected to cause significant, environmental harm to land, air, or water resources."  

   Notice of proposed assessment was given Applicant dated September 15, 1978, for an assessment of $2,800.  The
undersigned has no knowledge of an Assessment Conference being held other than mentioned in Applicant's Brief filed
March 30, 1979.  

   FACTS

   The "Facts" as taken from testimony and evidence show that Applicant held two mining "Permits" for opening of two
underground mines in Pike County, Kentucky, from the Department of Mines (Tr. 70-71).  No permit for surface
mining had been received from the Kentucky Department of Natural Resources (Tr. 72).  

   On August 30, 1978 (Exhibit received after hearing on February 21, 1979, for Applicant marked "Court's Exhibit
A"), Applicant received a "Temporary Authorization for Surface Disturbance Mining Existing Underground Coal
Mine" from Bureau of Surface Mining Reclamation and Enforcement, Division of Permits, covering 4 acres in Pike
County.  

   Prior to May 3, 1978, Applicant had conducted mining preparation operations on the area for both No. 1 Extended
Portal and No. 7 Portal (Tr. 52-54).  Spoils were pushed onto the downslope (Tr. 52-54).  

   The "spoil area" exists between the bench and a "county road." Twenty feet on the other side of the road is Chloe
Creek (Tr. 10-11, 60-63; Appl. Exh. 2).  

   Although Applicant had no surface mining permit, it believed its previous permits for deep mines were sufficient (Tr.
59).  
   It is undisputed that no sedimentation pond had been constructed by Applicant to catch all drainage from the affected
areas, and that surface water was flowing across the affected area down the downslope from the bench, down and across
the road into the creek.  

   It is unclear, however, from the evidence of Respondent's inspector McKenzie exactly where water was coming from
that entered the creek on the date the cessation order was issued (Tr. 29, 30).  

   It is apparent that the water in Chloe Creek was "murkey" (Tr. 13, 29), but beyond that it is difficult to determine the
point source of the surface water or the sedimentation (Tr. 13).  

   There were no tests performed by Respondent, no samples of water from Chloe Creek taken, no compaction test made
of the downslope and no other violation issued (including mining without a permit) at the time of the cessation order.
{3}
 
   There was no evidence presented by the Respondent in regard to the penalty assessment.  Applicant introduced the
copy of Notice of Assessment (Appl. Exh. 1) but did not inquire further.  

   ISSUES

   Although several issues were raised as to the validity of a cessation order for failing to pass drainage through a
sediment pond, those issues are moot.  

   DISCUSSION AND CONCLUSIONS OF LAW  

   43 CFR 4.1155, Burden of proof in civil penalty proceedings, provides: "In civil penalty proceedings OSM shall have
the burden of going forward to establish a prima facia case and the ultimate burden of persuasion as to the  fact of
violation and as to the amount of the penalty."  

   OSM not only failed to carry the burden as to the amount of the penalty, no evidence was introduced at all regarding
the points or amount.  

   43 CFR 4.1157(a) provides: "The administrative law judge shall incorporate in his decision concerning the civil
penalty, findings of fact on each of the four criteria set forth in 30 CFR 723.12, and conclusions of law."  

   30 CFR 723.12 refers to 30 CFR 723.11 for the four criteria which are:  

   (c)(1) The permittee's history of previous violations at the particular coal mining operation;  

   (2) The seriousness of the violation;  

   (3) Whether the permittee is negligent; and  

   (4) The demonstrated good faith of the permittee in attempting to achieve rapid compliance after notification of the
violation.  The Office shall make this determination by use of a point system described in section 723.12 of this Part.  

   There is no evidence available to the undersigned which will allow all findings required.  

   Regardless of this lack of evidence, Respondent failed to show, by a preponderance of Evidence, what the significant,
environmental harm to Chloe Creek would be had no cessation order been issued. {4}
 
   The granting of an additional 30 days at the mine site hearing by Mr. Superfesky (Tr. 40) to "abate the violation"
cannot be viewed by the undersigned as corroborating evidence that the creek was in danger of being "significantly"
harmed.  

   Since Applicant had no permit at the site, it would probably have been more correct to issue a cessation order for
mining without a permit.  

   Not only was the cessation order an improper exercise of authority under the evidence in this case, but the absence of
evidence as to penalty leaves the undersigned little choice but to find for the Applicant.  

   The remaining issues raised by Respondent and Applicant in their briefs are moot.  

   ORDER  

   The civil penalty against the Applicant is dismissed, and the sum of $2,800 with interest at the rate of 6 percent or
with interest at the prevailing Department of Treasury rate, whichever is greater, be remitted to the Applicant.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell, P.O. Box 553, Charleston, WV 25322  

   J. T. Begley, Esq., Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, P.O. Box
15006, Knoxville, TN 37901  

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

   Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240