WESTERN ENGINEERING, INC. v OSM;  Docket No. NX 9-22-R (March 7, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: WESTERN ENGINEERING, INC., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: March 7, 1979  

CASE-NO: Docket No. NX 9-22-R  

PROCEEDING: Application for Temporary Relief, Notice of Violation 79-II-21-1  

COUNSEL: James G. Tyler, Esq., Hagedorn and Tyler, Tell City, Indiana, for Applicant; John Phillip Williams, Esq.,
Office of the Solicitor, Department of the Interior, for Respondent OSM.  

OPINIONBY: Administrative Law Judge McGuire  

OPINION: DECISION 

   BACKGROUND  

  This is a proceeding under section 525 n1/ of the Surface Mining Control and Reclamation Act of 1977 (the Act) n2/,
sometimes hereinafter referred to as the Act, following the timely filing of an application for temporary relief from a
notice of violation issued by the Office of Surface Mining Reclamation and Enforcement pursuant to section 521(a)(3)
of the Act.  

   n1/ Surface Mining Control and Reclamation Act of 1977, Aug. 3, 1977, 91 Stat. 445, 511.  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 mdification, 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)(c) Pending completion of the investigation and hearing required by this section, the applicant may file with the
Secretary a written request that the Secretary grant temporary relief from any notice or order issued under section 521 of
this title, a Federal program or the Federal lands program together with a detailed statement giving reasons for granting
such relief.  The Secretary shall issue an order or decision granting or denying such relief expeditiously: Provided, That
where the applicant requests relief from an order for cessation of coal mining and reclamation operations issued
pursuant to subparagraph (a)(2) or (a)(3) of section 521 of this title, the order or decision on such a request shall be
issued within five days of its receipt.  The Secretary may grant such  relief, under such conditions as he may prescribe,
if--  

   "(1) a hearing has been held in the locality of the permit area on the request for temporary relief in which all parties
were given an opportunity to be heard;  

   "(2) the applicant shows that there is substantial likelihood that the findings of the Secretary will be favorable to him;
and  

   "(3) such relief will not adversely affect the health or safety of the public or cause significant, imminent environmental
harm to land air, or water resources."  

   n2/ P.L. 95-87, 91 Stat. 468, 30 U.S.C.   1201 et seq.  2  On January 25, 1979, following inspections of Applicant's
premises on that date as well as on January 23, 1979, Respondent issued Notice of Violation 79-II-21-1, as modified on
January 26, 1979, in which it was alleged that Applicant (1) had failed to pass all surface drainage from a disturbed area
through a sedimentation pond, in violation of 30 CFR 715.17(a) and (2) had permitted discharges from areas disturbed
by surface coal mining and reclamation operations which did not meet effluent standards, also in violation of CFR
715.17(a).  Contemporaneous with the service of the notice of violation on January 25, 1979, Applicant firm was given
written notice of the time and date that the required remedial action to abate the alleged violations was to have been
completed.  No cessation order was entered and no civil penalty was assessed.  On February 5, 1979, applicant filed an
application for temporary relief as well as an application for review.   

{2}  A hearing on Applicant's application for temporary relief was held before the undersigned on February 9, 1979 in
Evansville, Indiana, the locality seclected by the Applicant as being most convenient, and both parties waived written
notice of the time and place of the hearing.  Applicant did not waive its right to an evidentiary hearing on its application
for review.  Accordingly, only that testimony addressed to the question of whether the Secretary has jurisdiction over the
Applicant will be considered in this decision.  The findings and order contained herein reflect the final decision rendered
immediately after the taking of testimony at the hearing on February 9, 1979.  

   FACTS

{3}  Western Engineering, Inc., a family-owned Indiana corporation and licensed to do business in Kentucky, was
incorporated some 10 to 12 years ago, according to the testimony of Mark H. Bruce, its 29 year old president who has
served in that capacity since the firm began operations.  The business involves the operation of a river terminal on the
Green River, immediately adjoining the town of Rockport, Kentucky, on two sides and U.S. Highway 62 on the
remaining side.  When constructed in 1971 or 1972 the terminal was designed and used as a facility for loading dry bulk
commodities onto river barges.  Beginning in 1974 it became economically advantageous to discontinue loading grain
and other commodities and to load coal exclusively.  This practice has been followed to date.  The terminal is some 7 to
8 acres in size and the equipment and facilities include a truck scale, a double row coal crusher, a rotary coal breaker,
two truck dump feed hoppers, various conveyor belts and vehicles, a barge used as a loading platform, and a small
towboat.  All coal is received by truck from some 8 to 10 mines with which Applicant has contracts at any given time. 
These mines, all of which are engaged in strip mining, are located some 12 to 55 to 60 miles distant.  The nature of the
Applicant's business is that of a tipple operator.  Shipments of coal are received from strip mining firms and  after the
coal is weighed and crushed it is placed on conveyor belts for loading onto barges for shipment to steam plants located
in Kentucky and other States, the ultimate users of most of the coal.  Loaded barges are removed from the facility by
towboats and taken some 94.5 miles on the Green River to its confluence with the Ohio River, where they are fleeted in
barge tows for delivery.  Applicant does not own or lease strip mines nor does it acquire title to the coal it processes and
loads, it merely serves as a contract handler of the coal produced by other firms for use in steam plants principally.  

   ISSUE 

  The sole issue presented by these facts is whether Applicant is engaged in "surface coal mining operations," as that
term is defined in section 701(28) of the Act, and thus subject to the provisions of the Surface Mining Control and
Reclamation Act of 1977.  n3/  

   n3/ Surface Mining Control and Reclamation Act of 1977, Aug. 3, 1977, 91 Stat. 445, 518.  That section provides for
the purpose of this Act:  

   "surface coal mining operations means--  

   "(A) activities conducted on the surface of lands in connection with a surface coal mine or subject to the requirements
of section 516 surface operations and surface impacts incident to an underground coal mine, the products of which enter
commerce or the operations of which directly or indirectly affect interstate commerce.  Such activities include
excavation for the purpose of obtaining coal including such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit, and area mining, the uses of explosives and blasting, and in situ distillation or retorting,
leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation,
loading of coal for interstate commerce at or near the mine site: Provided, however, That such activities do not include
the extraction of coal incidental to the extraction of other minerals where coal does not exceed 16 2/3 per centum of the
tonnage of minerals removed for purposes of commercial use or sale or coal explorations subject to section 512 of this
Act; and  

   "(B) the areas upon which such activities occur or where such activities disturb the natural land surface.  Such areas
shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the
construction of new roads or the improvement or use of existing roads to gain access to the site of such activities, and for
haulage, and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps,
stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas,
processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or
materials on the surface, resulting from or incident to such activities."  

   CONCLUSIONS OF LAW  

{4}  Applicant urges that the notice of violation should be dismissed because it is not engaged in "surface coal mining
operations" as that term is defined in section 701(28) of the Act and therefore the Board of Surface Mining and
Reclamation Appeals has no jurisdiction over its activities.  In support of its position, Applicant's arguments can be
summarized as follows. Even though it is engaged in the storage, processing, and shipment in interstate commerce of
surface mined coal, Applicant is not engaged in "surface caol mining operations" since section 701(28) of the Act
requires that those activities be  conducted on a surface coal mine site or on lands contiguous thereto.   4 Meanwhile, it
is the position of the Respondent that Congress intended to regulate those activities conducted on the surface of lands in
connection with a surface coal mine, as opposed to those activities actually conducted on a mine site, per se, and that the
processing or preparation as well as the loading of coal for interstate commerce were some of the activities specifically
enumerated in the definition contained in section 701(28) of the Act.   

{5}  In the course of enacting the Surface Mining Control and Reclamation Act of 1977, Congress expressly declared
that among the purposes of the Act were those of establishing a nationwide program to protect society and the
environment from the adverse effects of surface coal mining operations and assuring that surface caol mining operations
are so conducted as to protect the environment.  n4/ Therefore, this administrative enabling statute should be granted
that interpretation which permits the full benefits of the Act to be realized.  Applicant proposes that a stricit
interpretation of the Act be adopted, granting only to the Secretary or his representative those powers which are
conferred either expressly or by necessary implication.  Respondent urges that a liberal construction of the Act be
extended in order to insure that the benefits or this remedial legislation be properly realized.  

   n4/ Surface Mining Control and Reclamation Act of 1977, Aug. 3, 1977, 91 Stat. 445, 448.  

  The evidence discloses that Applicant stores, processes, and loads surface mine coal for shipment in interstate
commerce and that these activities are conducted some 10 to 60 miles from the actual sites upon which the coal is being
mined.  It is conceded by Applicant that if those activities were carried on at a mine site, or on land immediately
adjacent thereto, such activities would be covered under the Act even though Applicant does not own or lease mines nor
does it acquire title to the coal it processes as a tipple operator.  In granting the words of the statute their plain meaning,
it is seen that the term "surface coal mining operations" means those "activities conducted on the surface of lands in
connection with a surface coal mine." The Act does not recite or infer that those activities will be subject to its
provisions only in the event that they are performed ona mine site or on lands contiguous thereto.  The "activities" are
defined as including other processing or preparation, loading of coal for interstate commerce "at or near the mine site."
Similarly, the Act does not define the precise distance within which defined activities will be considered to be performed
"near the mine site." However, where administrative powers are granted, as here, for the express purpose of effectuating
broad regulatory programs which are deemed to be essential to the public welfare, the inter-pretation given should be
that which insures that the full benefits of the legislation can be realized.  Accordingly, it is found that Applicant firm's
activities are being conducted sufficiently close to its supplier surface coal mines to be considered "near the mine site,"
as that term is used in section 701(28) of the Act.  

   FINDINGS  

 {6}  1.  On or about January 23, 1979 Applicant was engaged in "surface coal mining operations" as that term is
defined in section 701(28) of the Surfact Mining Control and Reclamation Act of 1977 (30 U.S.C.   1291 (28)). 

  2.  On or about January 23, 1979 Applicant was operating under and subject to the provisions of the Surface Mining
Control and Reclamation Act of 1977 (P.L. 95-87, 91 Stat. 468, 30 U.S.C.   1201 et seq.).   

  3.  Notice of Violation 79-II-21-1, dated January 25, 1979 and modified on January 26, 1979, alleges that Applicant
has violated 30 CFR 715.17(a) in the manners specifically set forth therein.   

  4.  The Secretary or his authorized representative has not  ordered a cessation of surface coal mining and reclamation
operations or the portion thereof relevant to the conditions, practices, or violations alleged in Notice of Violation 79-II-21-1, nor has Applicant ceased, slackened, or modified its surface coal mining operations as a direct or indirect result of
the issuance of said notice of violation.   

  5.  In support of its application for temporary relief, Applicant has failed to show that there is a substantial likelihood
that the decision herein will be favorable to Applicant.   

 6. Similarly and also in support of its application for temporary relief, Applicant has failed to show that the granting of
such relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm
to land, air, or water resources.  

   ORDER  

    Based upon the testimony adduced at the hearing conducted on February 9, 1979 in Evansville, Indiana Applicant's
Application For Temporary Relief is herein denied.  Further administrative proceedings in the matter of the violations
alleged in Notice of Violation 79-II-21-1 are in order and, if necessary, an evidentiary hearing in connection therewith
will be subsequently scheduled.  

Joseph E. McGuire, 
Administrative Law Judge