EASTERN DEATON COAL CO. v OSM; Docket No. NX 8-9-P (December 19, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: EASTERN DEATON COAL CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: December 19, 1978  

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

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 78-II-2-1  

COUNSEL: APPEARANCES: 
Karl S. Forester, Esq., Forester, Forester & Roseberry, Attorneys, Forester Building, First Street, Harlan, Kentucky
40841, 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  

   BACKGROUND  

   In accordance with Section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Eastern Deaton
Coal Company, Applicant applied on September 11, 1978 for review of a notice of proposed civil penalty assessment
issued by the Office of Surface Mining Reclamation and Enforcement, Respondent. This proposed assessment was
based on Notice of Violation No. 78-II-2-1 dated May 17, 1978.  Contemporaneous 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
penalty ($2,200) 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 before the undersigned in Cumberland Gap, Tennessee on December 8, 1978.  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. {2}
 
   Thereupon, the undersigned rendered a decision wherein Violation No. 2 contained in the Notice of Violation No. 78-II-2-1 was sustained, but the proposed civil penalty was reduced from $2,200 to $1,300.  

   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 is attached hereto as Appendix 1.  

   ORDER  

   It is therefore ordered that the proposed civil penalty assessed against the Applicant be reduced from $2,200 to $1,300
and that the sum of $900 with  interest at the rate of six percent or with interest at the prevailing Department of Treasury
rate whichever is greater be remitted to the Applicant.  

   David Torbett  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   Karl S. Forester, Esq., Forester, Forester & Roseberry, Attorneys, Forester Building, First Street, Harlan, KY 40841  

   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 {88}
 
   APPENDIX 1  

   ADMINISTRATIVE LAW JUDGE: I AM PREPARED TO GO AHEAD AND RENDER THE DECISION.  

   AND, OF COURSE, AS FAR AS THE HISTORY OF THESE VIOLATIONS -- THAT IS NOT AT ISSUE. 
THERE ARE NO POINTS ASSESSED.  EVERYONE AGREES AS TO THE CORRECTNESS OF THAT.  

   WE WILL GO NEXT TO THE SERIOUSNESS OF THE VIOLATION -- AND FIRST TO THE PROBABILITY
OF OCCURRENCE.  

   THERE IS NO DISPUTE THAT THE INCIDENT IN QUESTION HAS OCCURRED AND THAT THE
PROPER NUMBER OF POINTS SHOULD BE 15.  {89}
 
   NOW, WE GET TO THE EXTENT OF POTENTIAL OR ACTUAL DAMAGE.  IT IS MY OPINION THAT
THERE HAS TO BE SOME MORE RATIONAL BASIS TO ASSESS POINTS IN A CASE LIKE THIS OTHER
THAN JUST ASSESSING THE MAXIMUM NUMBER OF POINTS.  

   NOW, THE REGULATION STATES, WHERE THE DAMAGE GOES OUT OF THE PERMIT AREA, THAT
THE OFFICE SHALL ASSESS FROM 8 TO 15 POINTS.  SO, IN THIS CASE, IT HAS TO BE IN BETWEEN
THOSE TWO AREAS.  IT IS A SERIOUS VIOLATION TO DUMP THIS MUCH WATER WITH SEDIMENT
INTO A CREEK OF THIS TYPE WHICH IS ALREADY SEVERELY POLLUTED.  

   NOW, ADMITTEDLY, IT IS NOT THE OPERATOR'S FAULT AT LEAST AS FAR AS THIS CASE IS
CONCERNED THAT THE CREEK IS POLUTED.  BUT, HE HAS TO CONSIDER THAT, AND THAT MAKES
IT MORE SERIOUS.  BUT, I THINK THE PROOF, THE BURDEN OF PROOF, IS ON OSM. I THINK THE
PROOF HAS SHOWN THAT THERE SHOULD BE 12 POINTS ASSESSED FOR THE EXTENT OF
POTENTIAL OR ACTUAL DAMAGE.  

   OF COURSE, OBSTRUCTION TO ENFORCEMENT -- THERE IS NONE.  SO, THE TOTAL SERIOUSNESS
IS A MATTER OF 27 POINTS.  

   AS WE GET TO THE MATTER OF NEGLIGENCE, IT {90} IS UP TO OSM -- OSM HAS THE BURDEN OF
PROVING ACTS OF NEGLIGENCE.  I THINK THAT THEY HAVE SUSTAINED THE BURDEN OF PROOF
TO A POINT.  

   NOW, THE WAY THE REGULATION READS -- IT SAYS, "THE OFFICE SHALL ASSESS UP TO 25
POINTS BASED ON THE DEGREE OF FAULT OF THE PERMITTEE." NOW, AT THE BOTTOM OF THAT
REGULATION, IT SAYS, "A VIOLATION WHICH OCCURS THROUGH A GREATER DEGREE OF FAULT
THAN NEGLIGENCE SHALL BE ASSIGNED 13 THROUGH 25 POINTS."  

   SO, NO ONE ASSERTS IN THIS PARTICULAR CASE THAT THIS VIOLATION WAS CAUSED BY
ANYTHING OTHER THAN SIMPLE NEGLIGENCE.  SO, THE 12 POINTS ASSESSED IS ACTUALLY THE
MAXIMUM NUMBER OF POINTS FOR SIMPLE NEGLIGENCE.  

   WELL, WE HAVE TO GO TO THE PROOF.  THE PROOF SHOWS THAT THE NEGLIGENCE IN THIS CASE
WAS ONE OF OMISSION.  AND REAL NEGLIGENCE, IN MY MIND, OR AT LEAST MY CONCLUSION TO
BE DRAWN FROM THE PROOF, IS THAT THE DRAINAGE DITCH OR THE LOGGING ROAD, WHICH WAS
BEING USED AS A DRAINAGE DITCH, WAS NOT PROPERLY SET UP RIGHT TO BEGIN WITH.  HE
SHOULD HAVE DUG IT OUT MORE FROM THE VERY START.  

   THEN, ARGUMENT COULD BE MADE, "WELL, DID HE KNOW THIS?" WELL, HE HAS TO KNOW IT IF
HE IS {91} GOING TO MINE.  THE LAW REQUIRES PROPER ENGINEERING ON STRIP MINES.  THAT IS
THE REQUIREMENT OF THE LAW, AND -- THE REQUIREMENT DOESN'T SET OUT THAT YOU DO IT
ON A TRIAL AND ERROR BASIS.  YOU HAVE TO KNOW WHEN YOU GO THERE HOW YOU ARE
SUPPOSED TO STRIP MINE.  

   HOWEVER, I DON'T FEEL THAT A MAXIMUM NUMBER OF POINTS SHOULD BE ASSESSED FOR
NEGLIGENCE, SIMPLE NEGLIGENCE, BECAUSE I DON'T THINK THE PROOF SUSTAINS IT.  

   IT IS MY OPINION IN THIS CASE THAT 6 POINTS SHOULD BE ASSESSED FOR NEGLIGENCE AS
OPPOSED TO THE 12.  THE POINT TOTAL THEN COMES OUT TO BE 33 POINTS WHICH, BASED ON THE
FORMULA WHICH I AM REQUIRED BY THE REGULATION TO USE, THE CIVIL PENALTY WOULD BE
$1,300.00.  

   SO, THAT IS THE JUDGEMENT OF THIS TRIBUNAL.  

   MR. FORESTER: WHAT ABOUT GOOD FAITH, YOUR HONOR.  

   ADMINISTRATIVE LAW JUDGE: EXCUSE ME.  I MEANT TO TAKE THAT UP.  I WOULD HAVE ASKED
IF THERE WAS ANYTHING ELSE TO BE BROUGHT UP.  

   THE GOOD FAITH -- THERE IS NOT A SHOWING {92} THAT THERE WAS ANY EXTRAORDINARY
EFFORT MADE IN THIS CASE, AND I THINK EXTRAORDINARY EFFORT TO REALLY APPLY WOULD
HAVE TO BE SUCCESSFUL.  

   IN OTHER WORDS, HE MADE EXTRAORDINARY EFFORTS TO FIND THE SMALL DOZER THAT DAY,
BUT, HE DIDN'T FIND ONE.  AND I THINK TO MY WAY OF THINKING, AND I DON'T MIND PUTTING IT
IN THE RECORD, THAT YOU WOULD HAVE TO HAVE SOME DEGREE OF  SUCCESS TO SHOW GOOD
FAITH.  I AM OF THE OPINION, WHICH IS NOT APPLICABLE IN THIS CASE, THAT IT COULD BE
BETWEEN 1 AND 10 POINTS FOR GOOD FAITH, BASED ON THE REGS.  BUT, THAT IS NEITHER HERE
NOR THERE BECAUSE IN THIS PARTICULAR CASE I DON'T FIND THAT THE -- IT SAYS THE OFFICE
SHALL SUBTRACT OR ADD POINTS BASED ON THE DEGREE OF GOOD FAITH OF THE PERMITTEE IN
ATTEMPTING TO ACHIEVE RAPID COMPLIANCE AFTER MODIFICATION OF THE VIOLATION.  

   THE EVIDENCE IN THIS CASE JUST DOESN'T SHOW -- WELL IT DOESN'T SHOW, "RAPID
COMPLIANCE." RAPID COMPLIANCE MEANS THE PERMITTEE TOOK EXTRAORDINARY MEASURES
TO ABATE THE VIOLATION IN THE SHORTEST POSSIBLE TIME AND THAT ABATEMENT WAS
ACHIEVED BEFORE THE TIME SET FOR ABATEMENT.  

   WELL, IT WAS ACHIEVED BEFORE THE TRIAL SET FOR ABATEMENT BUT NOT {93} REALLY A
GOOD DEAL OF TIME BEFORE.  AND I JUST DON'T CONSIDER THE PROOF TO SHOW IT
EXTRAORDINARY.  THAT IS JUST MY CONCLUSION BASED ON THE PROOF.  

   SO, THE PENALTY ASSESSED IS $1,300.00.  

   I WILL ENTER AN ORDER AFFIRMING THIS, AND THE ORDER WILL GO TO THE OFFICE OF
ASSESSMENT FOR THEM TO RETURN THE REST OF THE MONEY WITH INTEREST IF THE CASE IS
NOT APPEALED.  

   IS THERE ANYTHING THAT I SHOULD HAVE BROUGHT UP THAT YOU THINK SHOULD BE
BROUGHT UP IN THIS JUDGEMENT?  

   MR. FORESTER: AS FAR AS I AM CONCERNED, YOU HAVE COVERED ALL POINTS.  

   ADMINISTRATIVE LAW JUDGE: NOT THAT I AM RIGHT OR WRONG, BUT WHETHER I HAVE
COVERED EVERYTHING?  

   THAT CONCLUDES THIS CASE.  

   (WHEREUPON, THE CASE WAS ENDED.)