JAMES MOORE v OSM;  Office of Surface Mining Reclamation and Enforcement  (January 16, 1979)

 TYPE: ALJ HEARING: Decision  

NAME: JAMES MOORE, Applicant v Office of Surface Mining Reclamation and Enforcement (OSM), Respondent  

DATE: January 16, 1979  

CASE-NO: Docket No. NX 8-9-R  

PROCEEDING: Application for Review, Order of Cessation No. 78-II-4-2, Notice of Violation No. 78-II-4-4, Order of
Cessation No. 78-II-4-3  

COUNSEL: Warren N. Scoville, Esq., Lewis and Scoville, Attorneys at Law, Lewis Building, 105 West Fifth Street,
London, Kentucky 40741, for Applicant; John P. Williams, Esq., Office of the Field Solicitor, U.S. Department of the
Interior, Knoxville, Tennessee 37901, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION

    In accordance with Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), James Moore
(Applicant) applied on July 20, 1978 for review of two orders of cessation and a notice of violation all issued by the
Office of Surface Mining Reclamation and Enforcement (Respondent) under Section 521 of the Act.  Although
procedural regulations governing hearings in these matters had been issued at the time of the hearing, they were not
deemed to be applicable because the application for review had been filed prior to effective date of these regulations. 
The hearing was held on September 21, 1978 in London, Kentucky.     On July 21, 1978, Respondent issued a notice of
violation pursuant to Section 521(a)(3) of the Act alleging that: (1) all surface drainage from the disturbed area was not
being passed thru a sediment pond; (2) the topsoil was not being segregated, stockpiled and protected from
contamination; (3) organic material was not being properly disposed of; and (4) signs were not properly posted
identifying the permit area in a proper manner.  On that same day, Respondent issued an order of cessation pursuant to
Section 521(a)(2) of the Act alleging that the Applicant was mining without a permit.On July 26, 1978, Respondent
issued another order of cessation pursuant to Section 521(a)(2) of the Act for failure on the part of the Applicant to
abate those violations contained in the notice of violation issued July 12, 1978.  

   FACTS

 { 2}  There is no dispute between the Applicant and Respondent as to whether or not the subject notice of violation and
order of cessation are validly issued if the Applicant is operating a strip mine and subject to the provisions of the Act. 
This is the material point of difference between the parties.  The Applicant claims that he is building a race track and
that he has removed only an incidential amount of coal in connection with the construction of this truck.  The
Respondent claims that the Applicant is removing coal in amounts sufficient to require the Applicant to meet the
requirements of the Act. 

    Mr. Michael J. Superfesky, an employee of the Respondent, inspected the land of the Applicant on July 26, 1978, at
which time he observed a stockpile of coal which he estimated to be about 120 tons.  He measured one of the lumps of
coal and determined that it was 14 to 15 inches thick.  He testified that 4 or 5 acres had been disturbed by the entire
operation, but that he estimated about one acre had been mined and the coal removed.  He further testified that using a
rough calculation for an acre foot that "a surface acre, horizontal projection  one foot thick, would usually encompass
about 1800 tons per acre" (Tr. 37).  He further states, "I'm saying at least one acre would have been mined or been
removed if the coal seam run (sic) completely under the area being excavated." Mr. Superfesky further testified that on
July 26, 1978, that "Mr. Moore made the statement that he would like to sell about 250 tons a year" (Tr. 40).   

   On September 15, 1978, Mr. Superfesky reinspected the sight and found that the coal previously stockpiled was gone
(Tr. 40).  On cross-examination Mr. Superfesky agreed that the excavation work done by the Applicant was consistent
with his plan to build a race track.   

   Mr. Ralph King, an employee of the State of Kentucky, Division of Natural Resources, testified for the Respondent
and generally affirmed the testimony of the witness Superfesky.  Neither the witness Superfesky nor the witness King
could testify to what extent the seam of coal ran under the area excavated.   

   The Respondent testified that he had acquired the tract of land in question from his father as a gift in October of 1977. 
He testified that his father had owned this 57 and a half acre tract of land for about 50 years (Tr. 122).  He further
testified that he had built a new home on this property that had a value of approximately $150,000.  He testified that he
was in the Arabian horse business and that "well, I've got two stallions now that I have paid $40,000.00 for" (Tr. 92). 
He further testified that he made money be "breeding and selling horses and making a name for them" (Tr. 93).  He
further testified that he was building a half mile training track in close proximity of his new home.  He testified that he
had had the tract of land in question prospected for coal and that the party who drilled for coal told him that there was
not sufficient coal on the land to warrant commercial mining.  He testified that the excavating had been done consistent
with his plan to build the race track, and that the only coal that had been removed was a result of this excavation.  He
testified that he did not intend to mine or excavate from any area on the land which would not be in furtherance of the
construction of the race track.  The Respondent testified that he did not know how much coal had been removed,
because he was not there all the time that his employees were working.  He further testified, though that all coal that was
removed was to be segregated and piled on a hill and that "I told them to leave it alone, that I would take care of it" (Tr.
109).  On cross-examination he testified that he had sold 52 tons (Tr. 109).  He further testified in response to the
question: "And you have sold some to other people?" "Yeah, a few pickup loads.  Of course you don't know how many
tons.  They just come in there and load them up" (Tr. 110). He further testified that he had given some of the coal away. 
He denied that an acre and a half of coal had been removed from the property (Tr. 111).  He testified in effect that much
of the excavated land was not mined because he did not excavate far enough to get the coal (Tr. 111).   

    There was a good deal of testimony by the Respondent on how he had attempted to obtain a "on-sight construction
permit" from the State of Kentucky which would have apparently exempted him, at least under Kentucky law from the
requirements of the State of Kentucky concerning strip mining.  Apparently by the date of the hearing, the Respondent
had obtained this "on-sight construction permit".  This is not material to the outcome of this case, and the testimony
concerning that issue need not be considered.  

   ISSUE 

    The sole issue in this case is whether or not the Applicant is a permittee or operator within the meaning of the Act as
to subject him to its requirements.  

   DISCUSSIONS FINDINGS AND CONCLUSIONS  

   Obviously, the Applicant in this case is not a permitee under the Act, therefore, to come under the provisions  of the
Act he must be shown to be an operator.Section 701(13) of the Act and 30 CFR  700.5 defines operator as "any
person, partnership or corporation engaged in coal mining who removes or intends to remove more than 250 tons of
coal from the earth by mining within 12 consecutive calendar months in any one location." The undersigned specifically
finds that a preponderance of the evidence shows that the Applicant is not an operator within the meaning of the Act or
the applicable regulations.   

 {4}  The proof of the Respondent falls short in that it fails to show if there was coal in the area excavated.  The
testimony of Mr. Superfesky is hinged on the assumption that there is a seam of coal under the entire area excavated. 
To restate his testimony "if the coal seam run (sic) completely under the area being excavated".  There is no proof from
the witnesses presented by the Respondent that the coal seam ran completely under the area being excavated or for that
matter run under any area being excavated. 

    The testimony of the Applicant is vague, but truthful.  He is in no position to deny that more than 250 tons of coal had
been mined because as he states he was not at the site all of the time.  This lack of denial under the circumstances in not
proof that more than 250 tons of coal was mined.  He gave specific instructions to his employees as to what was to be
done with the coal and there is no reason to presume the employees did not follow the Applicant's instructions.   

    If indeed coal was removed without the Applicant's knowledge he would not be responsible unless it were shown that
he failed to comply some legal obligation to prevent that surreptitious removal.  In any case the Respondent has not
proven the removal of any coal other than the 120 tons the employees of the Respondent observed at the site.   

    The statement made by the Applicant to the witness Superfesky that he would like to sell up to 250 tons a year is
evidence in the Applicant's favor.  As the definition of an operator requires an intention to mine over 250 tons a year or
for over 250 tons to actually be mined in a year, the statement of the Applicant is consistent with the finding that he is
not an operator within the meaning of the Act and the applicable regulations.   

    The undersigned recognizes the difficulty encountered by the Respondent in proving a case such as this.  This
difficulty does not relieve the Respondent of its obligation to prove its case.   

    The preponderance of the proof in this case clearly shows the Applicant was building a race track.  The evidence
shows some coal was being removed incidental to this construction and that this coal was sold commercially.  The
preponderance of the proof in this case shows that the only coal that the Applicant is responsible for removing and
selling commercially was the 120 tons (90 according to Applicant) observed by the employees of the Respondent.  

   ORDER  

   Notice of Violation No. 78-II-4-4, Order of Cessation No. 78-II-4-2, and Order of Cessation No. 78-II-4-3 are hereby
ordered vacated.  

David Torbett, 
Administrative Law Judge