ALABAMA BY-PRODUCTS CORP. v OSM; ALABAMA BY-PRODUCTS CORP. v OSM; Docket Nos. 
     NX 8-26-R, NX 8-27-R (March 13, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: ALABAMA BY-PRODUCTS CORP., Applicant v OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT (OSM), Respondent; ALABAMA BY-PRODUCTS CORP., Applicant v OFFICE OF
SURFACE MINING RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: March 13, 1979 [Amended by March 10, 1980 decision]  

CASE-NO: Docket Nos. NX 8-26-R, NX 8-27-R  

PROCEEDING: Docket No. NX 8-26-R, Application for Review, Notice of Violation No. 78-II-14-1, Knob Mine, Pit
50; Docket No. NX 8-27-R, Application for Review, Notice of Violation No. 78-II-14-2, Knob Mine, Pit 50-A  

COUNSEL: APPEARANCES: J. Fred McDuff, Esq., P.O. Box 10246, Birmingham, Alabama 35202 and Mr. F. J.
Gale, Esq., Cabaniss, Johnston, Gardner, Dumas and O'Neal, 1900 First National Southern Natural Building,
Birmingham, Alabama 35203, for Applicant; J.T. Begley, Esq., Office of the Field Solicitor, U.S. Department of the
Interior, Knoxville, Tennessee, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

   In accordance with Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Alabama By-Products, Inc., Applicant applied on September 14, 1978 for review of two notices of violation issued by the Office of
Surface Mining Reclamation and Enforcement, Respondent under Section 521(a) (2) of the Act.  By agreement of the
parties these two applications for review were consolidated for the purposes of hearing and decision-making.  {2}
 
   A hearing was held on March 1, 1979 in Birmingham, Alabama.  At the conclusion of the hearing both the Applicant
and Respondent waived their rights to file proposed findings of fact and conclusions of law and each of them asked that
a final decision be rendered immediately.  

   Thereupon, the undersigned rendered a decision wherein the two notices of violation were vacated.  

   CONFIRMATION OF DECISION  

   The decision of the undersigned including the findings of fact and conclusions of law as contained in the verbatim
record made in this case are confirmed by this written decision and order.  An extract of the pertinent part of the
verbatim record in attached hereto as Appendix 1.  

   ORDER  

   Notices of violation Nos. 78-II-14-1 and 78-II-14-2 are vacated.  

   David Torbett  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   J. Fred McDuff, Esq., P.O. Box 10246, Birmingham, AL 35202  

   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  

   Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, VA 22203 {133}
 
   APPENDIX 1  

   THE COURT: Well, it's my opinion that this case is not precedent setting because it involved getting approval before
there were any regulations, and I believe that any future cases, that the approval by the State would have to meet the
criteria that the Federal government sets out.  In other words these regulations, even though it says that the State has
regulatory authority, there's no question about that, the regulations themselves are for the purpose of upgrading the
{134} States administration of the law -- It's just in this particular case that the approval is probably good, at least it's
good initially, now, if it doesn't work, it doesn't make any difference.  

   I don't know whether it will work or not.  I have to decide the case on the record, and the record in this case is that it
will work, at least on the preponderance of the evidence.  Because Dr. Pettry says it will work; he's an expert.  He's a
recognized expert.  Your witnesses don't say that it won't work. They say that they don't prefer it; they don't prefer to do
it like this.  So, it's a matter of the preponderance of the evidence in favor of the applicant.  

   Now, as I see it there are the only real two issues in the case.  The best way to determine whether it will work I'm in
agreement with the government -- would be to run tests -- legitimate, bona fide tests -- and I think -- I don't think it
would be illegal, based on the regulation, for the government to require that in the future.  If it doesn't work in this case,
and if the reclamation plan is ineffective, and it doesn't grow anything, then certainly the government could issue orders
against it -- against the company -- if this doesn't work.  But, then it would be up to them to prove that it doesn't work,
and if they prove it doesn't work, it doesn't matter whether it's approved to begin with.  {135}
 
   So, it's my opinion that OSM has recourse -- I don't know whether I should state this or not -- I don't think it's as good
probably to use this rock as it would be to use the dirt, but I have to decide this case on the record, and  I'm not an
expert.  And, Dr. Pettry is; Dr. Hajek is an expert, but he didn't testify that this plan wouldn't work, Mr. Mattox is an
expert, but he didn't testify that it wouldn't work.  He just testified that there might be a better way.  

   Well, the State has approved this plan.  There was no real evidence presented today that shows that the plan is not
working.  There's no evidence to show that it was not working, and on that basis there's no question in my mind that the
law would require me to decide the case in favor of Alabama By-Products, the applicant.  

   As I say, approval in the future would be a totally different thing because the State of Alabama is aware of the
requirements of the interim regulations. Until some court sets the interim regulations aside, which in this particular
instance, and this particular matter, I don't think that they will.  Of course, I have no idea what they will do, but that
doesn't matter.  The State of Alabama is well aware of what the requirements are, and if they give somebody a waiver
that doesn't meet the criteria of the regulations, well then I think the notice would be proper to issue.  

   I think in this particular case the approval came {136} before there were regulations.  The proof here today shows this
and I think that takes care of the approval.  So once you get by the approval, and you (OSM) get here today with no
evidence to show that the plan is not working, and with the preponderance of the evidence, the probative evidence that
can be considered, showing the plan will work, the case must be decided in favor of the Applicant. That's based on what
was presented here today.  

   Is there anything I haven't covered; I'd be glad to comment on it, if there is an issue that needs a decision from me.  

   MR BEGLEY: The issue of whether or not mine spoils as treated are equal to, or more suitable for vegetation.  

   THE COURT: Okay, that is the issue before us, and what I'm saying is -- and I'm glad you brought that up -- this case
stands on it's own bottom, that as to whether mine spoil could be used in any other mine, this case has nothing to do
with.  Because the only thing that was testified here today was based on the tests run on this particular mine by this
particular expert witness, who said in this particular case it will work.  

   As I said, the case -- it's my opinion that none of these cases in this area will ever be precedent setting because every
case will have to be judged on it's own merits.  And, I think that's the elasticity of the Act that was intended to give the
State and the Federal government -- to have this {137}  elasticity to approve mining permits where they were worked. 
And, this topsoil is a problem throughout the United States.  And, I think the Congress -- it's my opinion, that the Act
intended to give first the State, and then the Federal government in a supervisory capacity, the capacity to let you do
what you think is proper in any given case.  And, that's why I'm saying that this case is not precedent setting for
anything, except as long as their plan works, it's good for them.  As quick as it doesn't work, then it's out.  But, it
certainly  would not be precedent setting for anybody else to use spoil unless they could convince, first, the State that it
was proper and and then the State for approval would have to meet the criteria set out in the Act.  If they didn't, why
then you have that supervisory authority under the Act to stop it.  

   So, does that cover that issue?  

   MR. BEGLEY: I think so, sir.  

   THE COURT: Is there anything else to be covered?  

   MR. GALE: No, Your Honor.  I assume that the notices that were involved --  

   THE COURT: The notices are vacated.  And, I will issue a confirming opinion vacating the notices, and I will attach a
copy of what I said here today, and make that an exhibit to the opinion.