DELIGHT COAL CORP. v OSM;  Docket No. CH 9-4-P  (January 29, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: January 29, 1979 [Amended by June 29, 1979 Decision]  

CASE-NO: Docket No. CH 9-4-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation #78-I-17-3, Orders of Cessation #78-I-18-1, #78-I-18-2, #78-I-18-3  

COUNSEL: Appearances: Gerald Gray, Esq., Clintwood, Virginia, for Applicant; 
 
Marye Wright, Esq., Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION  

   BACKGROUND  

   In accordance with section 525 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.  1201 et seq.
(1977)) (the Act), Delight Coal Corporation (Applicant) applied on October 21, 1978, for review of a notice of
violation containing five violations and three orders of cessation issued by the Office of Surface Mining Reclamation
and Enforcement (Respondent) under sections 521(a)(2) and 521(a)(3) of the Act.  

   An inspection of the property and mining area was conducted on August 17, 1978.  On August 18, 1978, Respondent
issued Notice of Violation #78-I-17-3 containing the following violations:  

   1.  The Applicant failed to have mine identity signs which would meet the requirements of 30 CFR 717.2(b);  

   2.  The Applicant failed to remove topsoil as a separate operation from certain areas as required by 30 CFR
717.20(a);  

   3.  The Applicant failed to retain earth or nonwaste material on the solid portion of the bench as required in 30 CFR
717.14;  

   4.  The Applicant failed to pass all surface drainage from the disturbed area through a sedimentation pond as required
by 30 CFR 717.17(a); and {2}
 
   5.  The Applicant failed to comply with the construction and maintenance requirements of access and haul roads as
provided in 30 CFR 717.17(j)(2)(iii) and 30 CFR 717.17(j)(2)(iv).  

   Also, on the same day, Respondent issued a Cessation Order #78-I-18-1, pursuant to section 521(a) (2) of the Act for
mining without a permit, in violation of "30 USC 1252 (section 502(A) of Public Law 95-87."  

   On the same day, Respondent issued Cessation Order #78-I-18-2 pursuant to section 521(a)(2) of the Act for mining
within 300 feet of an occupied dwelling, in violation of "30 USC 1272 (Section 522(e)(5) of Public Law 95-87."  

   Again, on the same day, Respondent issued a third Cessation Order #78-I-18-3 pursuant to section 521(a)(2) of the
Act for causing significant environmental harm to occur to water quality by allowing debris and earth to cause excess
sedimentation in a stream in alleged violation of "30 USC 1271 (Section 502(A) of Public Law 95-87)." This violation
was modified on September 13, 1978, to be a violation of "30 CFR 710.11(a)(2)(iii)." After an informal hearing on
September 13, 1978, the cessation orders were affirmed by the hearing officer.  

   Notice of proposed assessments on the violations were sent to, Applicant on September 18, 1978, and,
contemporaneously with the 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 civil penalties  12,600) 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 in this
matter on January 5, 1979, in Abingdon, Virginia.  At the conclusion of the hearing, both sides agreed to an oral order
from the bench, which was issued.  A memorandum order set that order aside and briefs were requested.  None were
filed by the time set in the order.  

   ISSUES

   There are two general issues to be decided:  

   1.  Is a person who does not have a permit to mine coal subject to: (a) PL 95-87 (30 U.S.C.  1201 et seq. (1977); (b)
the penalty provisions of 30 CFR 700 et seq.  

   2.  If Applicant is subject to the Act, did his mining operations comply with the requirement of the above-cited
regulations on August 18, 1978.  

   DISCUSSIONS, FINDINGS, AND CONCLUSIONS  

   The Applicant admits that they were engaged in mining coal and disturbing the surface as cited in Cessation Order
#78-I-18-1 (Tr. 8, {3} 83), however, in an off-the-record discussion, it was disclosed that the Applicant had a deep
mining license from the State of Virginia and was in the process of opening up a deep mine.  They were unaware that a
surface mining permit was also required.  A mining permit was obtained from the State, No. 2786-U, on October 27,
1978 (Tr. 37).  

   It would be relatively simple to rotely affirm the stipulations between the parties and confirm the order issued at the
conclusion of the hearing; however, it is more important to settle the issues created by this case than simply settle the
case.  

   In the instant case, there is no evidence that any coal was mined that left the area or if any coal was mined that it
entered interstate commerce.  The lack of this evidence is probably due to a failure to identify the important issue prior
to the hearing of whether or not one who mines without a permit is  controlled by the Act.  Section 502(a) of the Act
provides: "No person shall open or develop any new or previously mined or abandoned site for surface coal mining
operations on lands on which such operations are regulated by a State unless such person has obtained a permit from the
State's regulatory authority." Section 502(b) provides:  

   All surface coal mining operations on lands on which such operations are regulated by a State which commence
operations pursuant to a permit issued on or after six months from the date of enactment of this Act shall comply, and
such permits shall contain terms requiring compliance with, the provisions set out in subsection (c) of this section. 
[Emphasis supplied.]  

   Section 502(c) provides:  

   On and after nine months from the date of enactment of this Act, all surface coal mining operations on lands on which
such operations are regulated by a State shall comply with the provisions of subsections 515(b)(2), 515(b)(3),
515(b)(5), 515(b)(10), 515(b)(13), 515(b)(15), 515(b)(19), and 515(d) of this Act or, where a surface coal mining
operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill by
removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining, such
operation shall comply with the requirements of section 515(c)(4) and (5) without regard to the requirements of section
515(b)(3) or 515(d)(2) and (3), with respect to lands from which overburden and coal seam being mined have been
removed: * * *.  

   Section 506(a) of the Act provides:  

   No later than eight months from the date on which a State program is approved by the Secretary, pursuant to {4}
 
section 503 of this Act, or no later than eight months from the date on which the Secretary has promulgated a Federal
program for a State not having a State program pursuant to section 504 of this Act, no person shall engage in or carry
out on lands within a State any surface coal mining operations unless such person has first obtained a permit issued by
such State pursuant to an approved State program or by the Secretary pursuant to a Federal program; * * *.  

   Section 515 of the Act comprises the environmental protection performance standards, and (a) provides:  

   Any permit issued under any approved State or Federal program pursuant to this Act to conduct surface coal mining
operations shall require that such surface coal mining operations will meet all applicable performance standards of this
Act, and such other requirements as the regulatory authority shall promulgate.  [Emphasis supplied.]  

   Section 518(a) of the Act which is the penalty section provides:  

   In the enforcement of a Federal program or Federal lands program, or during Federal enforcement pursuant to section
502 or during Federal enforcement of a State program pursuant to section 521 of this Act, any permittee who violates
any permit condition or who violates any other provision of this title, may be assessed a civil penalty by the Secretary,
except that if such violation leads  to the issuance of a cessation order under section 521, the civil penalty shall be
assessed.  [Emphasis supplied.]  

   Section 518(e) provides:  

   Any person who willfully and knowingly violates a condition of a permit issued pursuant to a Federal program, a
Federal lands program or Federal enforcement pursuant to section 502 or during Federal enforcement of a State
program pursuant to section 521 of this Act or fails or refuses to comply with any order issued under section 521 or
section 526 of this Act, or any order incorporated in a final decision issued by the Secretary under this Act, except an
order incorporated in a decision issued under subsection (b) of this section or section 704 of this Act, shall, upon
conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than one year or both.
[Emphasis supplied.]  

   Section 518(f) provides for violations by a "corporate permittee." Under the enforcement section, section 521(a)(1)
provides: {5}
 
   Whenever, on the basis of any information available to him, including receipt of information from any person, the
Secretary has reason to believe that any person is in violation of any requirement of this Act or any permit condition
required by this Act, the Secretary shall notify the State regulatory authority, if one exists, in the State in which such
violation exists.  If no such State authority exists or the State regulatory authority fails within ten days after the
notification to take appropriate action to cause said violation to be corrected or to show good cause for such failure and
transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of the
surface coal mining operation at which the alleged violation is occurring unless the information availabel to the
Secretary is a result of a previous Federal inspection of such surface coal mining operation.  The ten-day notification
period shall be waived when the person informing the Secretary provides adequate proof that an imminent danger of
significant environmental harm exists and that the State has failed to take appropriate action.  When the Federal
inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when
the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during
the inspection.  [Emphasis supplied.]  

   Section 521(a)(2) provides, in part:  

   When, on the basis of any Federal inspection, the Secretary or his authorized representative determines that any
condition or practices exist, or that any permittee is in violation of any requirement of this Act or any permit condition
required by the Act, which condition, practice, or violation also creates an imminent danger to the health or safety of the
public, * * * the Secretary or his authorized representative shall immediately order a cessation of surface coal mining
and reclamation operations or the portion relevant to the condition, practice, or violation.  [Emphasis supplied.]  

   Section 521(a)(3) provides, in part:  

   When, on the basis of a Federal inspection which is carried out during the enforcement of a Federal program * * *, the
Secretary or his authorized representative determines that any permittee is in violation of any requirement of this Act or
any permit condition required by this Act; * * *.  [Emphasis supplied.]  

   Many other paragraphs could be cited from the Act where reference is made to "permit" or "permittee," however, it
would require an almost complete duplication of the Act in this decision.  {6}
 
   Under Title VII--Administrative and Miscellaneous Provisions, section 701(13) provides: "'operator' means any
person, partnership, or corporation engaged in coal mining who removes or intends to remove more than two hundred
and fifty tons of coal from the earth by coal mining within twelve consecutive calendar months in any one location."  

   Subsection 701(15) holds: "'permit' means a permit to conduct surface coal mining and reclamation operations issued
by the State regulatory authority pursuant to a State program or by the Secretary pursuant to a Federal program."  

   Subsection 701(16) holds: "'permit applicant' or 'applicant' means a person applying for a permit."  

   Subsection 701(18) holds: "'permittee' means a person holding a permit."  

   Under 30 CFR Chapter 7 which are the rules promulgated by the Secretary of the Interior as found in 42 FR 62675
(Dec. 13, 1977), et seq., the following is found:  

   Permit, except as used in references to permits during the initial regulatory program, means a permit to conduct
surface coal mining and reclamation operations issued by the State regulatory authority pursuant to a State program or
by the Secretary pursuant to a Federal program.  During the initial regulatory program, permit means a permit to
conduct surface coal mining and reclamation operations issued by a State under State law.  During the initial regulatory
program, permit also means a mining plan approved pursuant to Part 211 of this title held by a lessee of Federal lands
during the initial program.  

   Permittee means any individual, partnership, association, society, joint stock company, firm, company, corporation, or
other business organization holding a permit to conduct surface coal mining and reclamation operations issued by a
State regulatory authority pursuant to a State program or by the Secretary pursuant to a Federal program or a Federal
lands program.  During the initial regulatory program the term includes persons conducting surface coal mining and
reclamation operations regulated by a State under State law or conducting such operations under a mining plan
approved pursuant to Part 211 of this title.  

   Section 710.11(a)(2)(ii) holds: "A person conducting coal mining operations shall have a permit if required by the
State in which he is mining and shall comply with State laws and regulations that are not inconsistent with the Act and
this chapter" (emphasis supplied).  

   Section 710.11(a)(3) (Performance standards obligations) holds: "(i) A person who conducts any coal mining
operations under an initial {7} permit issued by a State on or after February 3, 1978, shall comply * * *" (emphasis
supplied).  

   Section 722.11(a) holds:  

   If an authorized representative of the Secretary finds conditions or practices, or violations of applicable performance
standards, which create an imminent danger to the health or safety of the public, the authorized representative shall
immediately order a cessation of surface coal mining and reclamation operations or that portion of the operation relevant
to the condition, practice or violation.  

   30 CFR 723.1 (Civil Penalties) Scope provides:  

   This Part covers the assessment of civil penalties under section 518 of the Act for violations of a permit condition, any
provisions of Title V of the Act, or any implementing regulations.  This Part governs when a civil penalty is assessed,
how the amount is determined and sets forth applicable procedures. This Part applies to cessation orders and notices of
violation issued under Part 722 of this chapter during a Federal inspection.  [Emphasis supplied.]  

   From all of the above, two conditions become obvious.  Although the Act and the regulations are designed to control
surface coal mining operations in the United States, the Act appears to apply only to those persons who because of their
honesty and sincerity desire to mine coal in an open and nonclandestine manner.  It does not apply to those persons who
ignore the law and the Act and attempt to mine coal without permits from the regulatory authority whatsoever. One must
also conclude that even though Congress intended that this Act cover all attempts to surface mine coal in the United
States, it made no provisions for administrative procedures to control the activity of persons who are engaging in such
operations without a permit.  

   It appears from the Act and the regulations, however, that anyone so engaging in unauthorized mining activities may
be issued a cessation order and, if such activities are ceased, there can be found no further sections which allow further
action under the Act or the regulations.  

   It is obvious that the civil penalty section does not apply to those mining without permit since it specifically sets forth
that the assessments of penalties are for violations of "a permit condition."  

   In the instant case, the Applicant was in fact mining without a permit and whether or not a legal license for deep
mining had been in fact issued which would have given the Respondent more jurisdiction cannot be considered because
the record is completely silent as to such evidence.  It was only through an off-the-record discussion that such a license
was mentioned, however, no documentation was discussed substantiating the statement.  {8}
 
   The facts in the instant case, aside from the obvious violations which were admitted by the Applicant, are that the
Applicant did not have a surface  mining permit and when issued a cessation order the Applicant ceased mining.  At that
point, any further cessation orders were moot since a mining operation can only be closed one time.  

   Only one cessation order is necessary and should adequately cover the violation making that cessation order
mandatory under the Act.  In the instant case, the issuance of three cessation orders was excessive.  

   Neither Congress nor the Secretary provided any method or manner to punish the Applicant in the instant case for
conducting mining operations without a permit in an administrative proceeding, and this oversight should certainly be
remedied as rapidly as possible.  

   Since civil penalties do not apply to anyone not having a permit, there is no need to consider the violations or the
assessments. n1  

   n1 The Applicant obtained a permit and abated all of the violations and at the time of the hearing was in compliance.
Any future violations will subject Applicant to penalties as provided for under the Act.  

   ORDER  

   Cessation Order #78-I-18-1 was apparently issued properly and is sustained, Applicant having ceased mining until
permitted by the State of Virginia.  All other orders are vacated.  The Assessment Office shall remit to Applicant the
sum of $12,600 which is the amount escrowed by said office with interest at the rate of 6 percent or with interest at the
prevailing Department of Treasury rate, whichever is greater.  

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

   Gerald L. Gray, Esq., Attorney for Applicant, Main St., Box 238, Clintwood, VA 24228  

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

   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