EARLE MINING JOINT VENTURE v OSM;  Docket No. NX 8-20-R (March 19, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: EARLE MINING JOINT VENTURE, Applicant v OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT (OSM), Respondent  

DATE: March 19, 1979  

CASE-NO: Docket No. NX 8-20-R  

PROCEEDING: Application for Review, Notice of Violation # 78-II-3-5 n1  

COUNSEL: Dean A. Hall, Hawesville, Kentucky, for Applicant; J. T. Begley, Esq., Field Solicitor, Department of the
Interior, Knoxville, Tennessee, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell

OPINION: DECISION  

   BACKGROUND  

   In accordance with Section 525 n2/ of the Surface Mining Control and Reclamation Act of 1977 n3/ (the Act), Earle
Mining Joint Venture (Applicant) applied on August 18, 1978, for review of a notice issued by the Office of Surface
Mining Reclamation and Enforcement (Respondent) under Section 521(a)(3) n4/ of the Act.  

   n2/ 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."  

   n3/ 30 U.S.C. Section 1201 et seq. (1977)  

   n4/ 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."  

   A hearing was held on February 27, 1979, in Owensboro, Kentucky.   2  On August 14, 1978, Respondent issued a
notice of violation, pursuant to Section 521(a)(3) of the Act.  This notice alleged two separate violations by Applicant:
1.  "All topsoil is not being removed in such a way as to prevent topsoil from being contaminated by spoil and other
waste material" as is required by 30 CFR 715.16; 2.  "The topsoil storage area has been exposed to excessive water
erosion" contrary to 30 CFR 715.16.  

   Subsequently an assessment conference was held at which time Respondent agreed that Violation No. 1 should be
vacated.  (Tr. 8-9).  

   ISSUES

   The issue is whether the topsoil storage area has been exposed to excessive water erosion contrary to 30 CFR
715.16(c).  

   DISCUSSION, FINDINGS AND CONCLUSIONS  

{2}  The applicable regulation, 30 CFR 715.16(c), provides that "the stockpiled topsoil... will not be... exposed to
excessive water, wind erosion... Stockpiles shall be selectively placed and protected from wind and water erosion... by a
vegetative cover... or by other methods..." 

{3}  Respondent contends that the topsoil storage area has been exposed to excessive water erosion and that the
remedial action took an excessively long time to complete (Tr. 25).  

   Applicant contends that the topsoil storage area suffered no excessive water erosion (Tr. 24).   

  The evidence is that presented by the two witnesses: Michael Vaughn, a field supervisor for the Office of Surface
Mining and Deal Hall, the Executive Vice-President of Applicant.   

  Mr. Vaughn testified: that the topsoil stockpile drained in two directions - toward the open pit and into the silt basin
below the stockpile (Tr. 29); that the outslope which faced the silt basin was eroded along the face (Tr. 30); that on the
side which faced the pit there were several locations where water was standing and the balance would have drained into
the pit or down the road (Tr. 30); that half of the stockpile was covered with weeks while the remainder was unvegetated
(Tr. 30); that gullies on the outslope of the stockpile were probably 8 to 9 inches deep along the base of the stockpile
and there was an area which he thought became wet and sloughed off, a minor slide at the base of the stockpile due to
the steepness of it (Tr. 31); that a portion of the drainage from the top of the slit basin had eroded an area on the side
more extensively than the rest of it in that water was collected and ran off in one given location (Tr. 32); that the
remainder was sheet erosion (Tr. 32) and; that topsoil which washed into the pit, or settled among the spoil down the
haul road, or settled in the silt basin would not be  usable (Tr. 35).   

  Mr. Dean Hall testified: that there had been heavy rains and he had pictures which show no excessive erosion, if any
erosion at all (Tr. 56); that Dennis James, a geologist with the Teegarden Company, said there was no erosion (Tr. 57);
that weeds will stop erosion quicker than grass (Tr. 61); that for some strange reason there was no erosion problem on
this stockpile (Tr. 62); that the texture of the topsoil was not runable and it was left roughly graded and the water could
not run fast (Tr. 63); that if there was erosion it was so minor it was not noticeable (Tr. 64) and; that excessive erosion
is a matter of opinion, that there was no excessive erosion so "I disagree with Michael Vaughn's testimony" (Tr. 65). 
Mr. Hall in his closing argument asserted that the prosecution carries the burden of proof, and that it has not provided
documentation or pictures showing a nine inch gully (Tr. 73).   

  I find that one-half of the stockpile of topsoil was covered with weeds while the other half was unprotected by a
vegetative cover or by other methods.  I further find that the stockpile of topsoil, as a whole, was exposed to excessive
water erosion and that therefore the Notice of Violation was validly issued.  

   ORDER  

   Notice of Violation No. 78-II-3-5, August 14, 1978, is affirmed as to Violation No. 2.  

William J. Truswell, 
Administrative Law Judge