UNITED COAL CORP. v OSM;   Docket No. CH 9-10-R (February 2, 1979)

TYPE: ALJ Hearing: Decision  

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

DATE: February 2, 1979  

CASE-NO: Docket No. CH 9-10-R  

PROCEEDING: Application for Review, Notice of Violation #78-I-26-1  

COUNSEL: Appearances: J. Thomas Fowlkes, Esq., Grundy, Virginia, for Applicant; Marye L. Wright, Esq., Office of
the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION  

   BACKGROUND  

   In accordance with section 521 of the Surface Mining Control and Reclamation Act of 1977 (the Act), United Coal
Corporation applied on December 7, 1978, for review of a notice issued by the Office of Surface Mining Reclamation
and Enforcement (Respondent) under section 521(a) (3) of the Act. The application for review was amended on January
8, 1979.  The Respondent did not file a timely answer but filed a motion to dismiss; however, upon Applicant amending
its application, Respondent filed a timely answer together with a motion for summary decision.  A hearing was held
January 22, 1979, in Abingdon, Virginia.  

   On November 27, 1978, Respondent's inspectors visited the permit area, and on November 28, 1978, issued Notice of
Violation #78-I-26-1 pursuant to section 521(a) (3) of the Act alleging that: (1) "The permittee had failed to remove the
topsoil as a separate operation before any drilling for blasting, mining, or other surface disturbance to prevent topsoil
from being contaminated by spoil or waste material" in violation of 30 CFR 715.16 and 715.16(a); and (2) "The
permittee has placed and allowed spoil and debris to remain on the downslope below the Hagy seam and debris below
the Splashdam seam." This violated 30 CFR 715.2(a) (1).  

   Upon ruling on the Respondent's motion for summary judgment, after argument by both sides, the undersigned
sustained the motion as to {2} NOV #78-I-26-1 (violation No. 1) and overruled the motion as to violation No. 2. The
motion cited the letter attached to the amended application as the grounds for its motion for summary decision in that it
was an admission against interest as to violation No. 1 which the undersigned so found.  As to violation No. 2, evidence
was heard upon the issue of that violation which was the placing and allowing spoil and debris to remain on the
downslope below the Hagy seam and allowing debris to remain on the downslope below the Splashdam seam.  

   At the conclusion of the hearing, both sides waived their right to file proposed findings of fact and conclusions of law
and agreed that the undersigned should issue an order from the bench which was done.  The undersigned found that the
Notice of Violation #78-I-26-1 was properly issued as to that portion of  violation No. 2 concerning debris being
allowed to remain on the downslope below the Splasdam seam, but that the spoil and debris below the Hagy seam were
not "placed there" but were the result of an accidental "blowout" from a blast of the overburden and constituted no threat
or danger to the environment because of the minimum amount and coverage.  The Applicant chose to remove the debris
from said downslope, and the violation was terminated on January 3, 1979.  In viewing the evidence, it appeared to the
undersigned that the removal of the debris caused more damage than the debris itself.  The undersigned confirms the
order issued from the bench:  

   ORDER  

   Notice of Violation #78-I-26-1, violation 1, is affirmed, and violation 2 is affirmed in part and set aside in part.  An
extract of the pertinent part of the verbatim record is attached hereto as Appendix I and made a part of this order.  

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

   J. Thomas Fowlkes, Corporate Counsel, United Coal Companies, Glenway Ave., P.O. Box 1280, Bristol, VA 24201  

   Marye L. Wright, Esq., Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, 950
Kanawha Blvd., E., Charleston, WV 25301  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240 {52}
 
   [Attachment]  

   JUDGE ALLEN: You both have an opportunity, if you wish, to submit findings of fact and conclusions of law.  

   MS. WRIGHT: Your Honor, Respondent respectfully waives its right to submit such findings of fact.  

   MR. FOWLKES: I have no problem with that.  

   JUDGE ALLEN: Are you ready for me to rule from the bench, I take it?  

   MR. FOWLKES: Yes.  I doubt that my proposed findings and conclusions would sway the Court.  {53}
 
   JUDGE ALLEN: It's interesting to note that 30 CFR 716.2(a) (1) does not have a specific comment.  In 42 FR 62660,
Section 716.2 begins at page 62659.  

   In the first comment there is a general comment that provides that there should be a prohibition of the placement on
the downslope of material cleared  or grubbed from the area to be disturbed.  Comment has recommended that
placement of vegetative materials cleared from the area to be disturbed should be allowed on the downslope and it
would serve to filter acid seepage and silt laden runoff.  It's recommended that the regulatory authority be given
discretion to allow such placement.  However, Section 515(d) of the Act prohibits the placement of any debris on the
downslope below the bench or mining cut.  The debris is normally considered to include vegetation cleared from the
area prior to further disturbance, thus no wood or vegetative material are to be placed below the downslope in steep
slope operations.  And that is about the extent of that comment.  Now we take a look at 515(d) of the Act -- appears at
91 Stat 494.  And by Act, we're referring of course to public law 95-87, dated August 3rd, 1977.  Paragraph (d)
provides following performance standards shall be applicable to steep slope surface coal mining and shall be addition to
those general performance standards required in this section.  They provide, however, that the provisions of the section
shall not apply to those sections in {54} which the operator is mining on flat or gently rolling terrain, etcetera.  Going
down into that one, number one: Insure that when performing surface coal mining on steep slope that no debris,
abandoned or disabled equipment, spoil material, or waste material be placed on the downslope below the bench or
mining cut provided that spoil material in excess of that required form of the reconstruction of the approximate original
contour and the provisions of Paragraph 515(b) (3) or 515 (d) (2) shall be permanently stored pursuant to section
515(b) (22).  

   Now from reading the public law and reading the regulations it apparently becomes obvious that what Congress is
talking about and what the Secretary of the Interior is talking about and what I think the spirit, purpose and intention of
the Act is that they are discussing material which is deliberately placed on the downslope by mining operations or
which, through an act of negligence, is allowed to be there.  Now I don't see that this covers the situation entirely; it's a
very interesting proposition.  The blow outs are normal from my study of mining in Virginia and West Virginia.  As I
mentioned previously, with one of the witnesses, I don't pretend to be anything of an expert on this matter at all.  I've
just been informed by what I consider an extremely reliable source that these things do occur.  And I don't believe that
Congress really meant that that's what they {55} were talking about, where you have a blow out.  But I do believe that
Congress meant that where you have vegetative virgin surface below a bench that that surface is not to be disturbed, nor
is it to be injured to any degree that it cannot be readily repaired.  We've had cases where there's so much spoil on a
downslope there was no way possible to remove it and there was no remedial action required because there was no way
to get it out.  It was just so steep and so much of it -- what could you do?  So the intent and spirit of the Act could not be
carried out there.  

   Under the present circumstances and under the violation itself there are two verbs that bother me.  One is placed and
the other is allowed.  There's no evidence by the Government that you placed anything on the downslope.  That's why I
asked the witness if that was his testimony and he repeated it.  Mr. Boggs repeated again that spoil, "Had been placed on
the downslope." Mr. Blevins said spoil, "Had been placed on the downslope." Neither one of them proved that there had
been any spoil placed on the downslope by anybody; quite the contrary.  The evidence is clear or uncontradicted, since
the Government has no contradictory evidence that the spoil -- that material which appears in Respondent's Exhibit 2
and 3 could logically come from the result of a blow out on a bench blast.  It looks, however, like the damage done in
scraping it down was more than it {56} would have been if you had left the material alone.  Judging from what I see
here you have literally had to cut a trench down there about three to four feet deep in order to scrape that stuff down and
remove it.  Now it's true you have gone across the fill area, which no one has said it had been reseeded or anything else,
but you have cut across what appears to be a section maybe 40 feet wide on the downslope and have removed all of the
top vegetation there in order to remove that spoil material.  So apparently the remedy was worse than the illness in this
case.  

   However, there is no question but what you placed the spoil on the downslope below the Splashdam seam.  And that
has been -- this appears in Respondent's Exhibit No. 3 and this is the type of debris or material that -- I say spoil, but
debris material which is classified by the Act and the regulations. Therefore, I will have to hold that violation was
properly issued.  There are two sections involved in this and although you did do it I think that if there is a civil penalty
involved that it would be my opinion, for the record, that no negligence could be attributed for the blow out material
above the Splashdam seam and below the Hagy seam.  I don't think that -- if that had been the only material I believe I
probably would have dismissed it.  But the fact that you had all of the other debris below the Splashdam seam and
removed it, according to your photograph, I would say that it {57} would be questionable as to the negligence in that.  I
would be willing to overlook that, however, because of the time factor involved.  But there is no question that it should
not have been done.  

   The ruling of the Court therefore is, or my ruling is that the violation No. 2 as far as below the Splashdam seam was
properly issued.  As far as below the Hagy seam I don't think that the Government proved that.  

   The explanation that it was allowed to remain there for a longer period of time because of the rain has not been
disputed.  There has been no rebuttal to it, so giving you the benefit of the doubt on that I would say that your remedial
action on there would be sufficient.  That is the ruling.  I will sign the record.  I will also issue a supplemental order after
obtaining the record.  

   Is there anything else?  

   MR. FOWLKES: No, sir.  

   MS. WRIGHT: No, Your Honor.  

   JUDGE ALLEN: With the introduction of the evidence, I have closed the record.  

   (WHEREUPON, at 10:40 p.m., the hearing in the above-entitled matter was closed.)