TOPTIKI COAL CORP. v OSM;  TOPTIKI COAL CORP. v OSM;  Docket Nos. NX 9-69-R, 
     NX 9-43-P (November 21, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: November 21, 1979  

CASE-NO: Docket Nos. NX 9-69-R, NX 9-43-P  

PROCEEDING: Docket No. NX 9-69-R, Application for Review, Notice of Violation No. 79-II-18-24; Docket No.
NX 9-43-P, Civil Penalty Proceeding, Notice of Violation No. 79-II-18-24  

COUNSEL: Appearances: Randolph L. Jones, Jr., Esq., Tulsa, Oklahoma, for applicant/petitioner; 
 
John Philip Williams, Office of the Field 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.) (the Act), Toptiki Coal Corporation (applicant) filed for review of Notice of Violation No. 79-II-18-24 on June
21, 1979, issued by the Office of Surface Mining Reclamation and Enforcement (respondent) under section 521(a)(3) of
the Act. Thereafter, pursuant to the imposition of an assessment on the notice of violation by the Assessment Office,
OSM, and in accordance with section 518 of the Act, the applicant (petitioner) further petitioned on July 23, 1979, for
review of the notice and proposed civil penalty assessment issued by the respondent.  Contemporaneously with the filing
of the petition, the petitioner paid to the Assessment Office, OSM, the full amount of the proposed civil penalty
($2,600) in compliance with the requirements of 43 CFR 4.1152(b)(1). {2}
 
   The respondent inspected the mining operation of the applicant who was mining under Kentucky Permit No. 6046-77
on May 18 and 21, 1979.  Notice of Violation No. 79-II-18-24 was issued to the applicant for three violations (Tr. 38-40; Resp. Exh. 1); however, only violation No. 1 is being challenged by the applicant in this proceeding.  This violation
was issued for "spoil material has been placed and allowed to remain on the downslope" in violation of 30 CFR
716.2(a)(1).  The remedial action required that "spoil material shall not remain on the downslope," and the time for
abatement was set as June 25, 1979, at 8 a.m.  

   Under the permit issued by the State of Kentucky, the applicant was permitted to mine four seams of coal, the
Coalburg, the Stockton, the Clarion, and the Five-Block.  The Five-Block and Clarion seams were the upper-most
seams of coal, and the Coalburg seam was the lowest seam of coal (Appl. Exh. 5).  The area in question in violation No.
1 is approximately 600 feet in length along the  contour and between 100 and 150 feet wide (Tr. 37).  The spoil material
was being pushed from the Five-Block and Clarion bench down to the Coalburg bench (Resp. Exhs. 2, 3, and 4). 
According to the profile of the mining area as shown on Applicant's Exhibit 1 (1-5) the vertical distance between the
Clarion and the Coalburg seams was 250 feet.  The slope between the two benches contains vegetation, or the remains
of vegetation, as shown in Respondent's Exhibits 2, 3, 4, and 5.  The hearing was held on October 16, 1979, in
Pikeville, Kentucky.  

   ISSUE  

   The issue in this case is the same issue as appeared in Black Creek Coal Co., Docket No. CH 8-3-P, decided
December 1, 1978--what is meant by "downslope" as the same relates to multiple-seam mining.  And included in the
issue is an interpretation of that part of the definition of downslope that states "lowest coalbed being mined along each
highwall." The issue as seen by the Office of Surface Mining in its brief is whether or not the area between the edge of
the Clarion bench and the top of the Coalburg highwall a portion of the "downslope" as the term is defined in 30 CFR
710.5.  If that issue is answered in the affirmative, then the subsequent issue is the amount of civil penalty assessed for
that violation.  

   FINDINGS OF FACT AND CONCLUSIONS OF LAW  

   Both parties submitted proposed findings of fact and conclusions of law, and with minor exceptions, the material facts
are undisputed.  

   There is no dispute that the Stockton seam was not being mined at the time of the violation and that the spoils from the
Clarion bench were in fact being pushed over onto the Coalburg bench which was across the Stockton seam and slope
between them (Tr. 36, 37, 133).  The only issue contested in this set of facts is whether or not the Stockton seam was to
be mined later or abandoned.  The actual preponderance of the evidence was with the applicant, since it was only
speculated by respondent that applicant had no intention of ever mining the Stockton (Tr. 128, 137, 153, 161). {3}
 
   There is no dispute that Kentucky State Permit No. 6046-77 issued to Longbranch Coal Co. and thereafter acquired by
Toptiki Coal Corporation, Division of Mapco, Inc., was permitted to mine the Coalburg, Stockton, Clarion, and Five-Block seam of coal and that there was no requirement for any particular mining sequence of the seams of coal in the
permit area (Tr. 126).  The Coalburg seam, however, was mined first.  

   There apparently was no contest to the issue that the Coalburg seam had been mined and that at the time of mining, the
Clarion and Five-Block seams were being mined simultaneously in order to take higher quality coal to meet contractual
obligations.  There was also no dispute that most of the spoil from the Coalburg seam was placed in a hollow fill and
that insufficient spoil was available for complete recovery of the Coalburg highwall after May 3, 1978, and that the
swell from the spoil of the Five-Block and Clarion seams was being pushed over onto the Coalburg bench for this
purpose.  

   There is no dispute that as of the date of the hearing, the Stockton seam had not been mined but that the area had been
reclaimed either in accordance with  the requirement of the notice of violation or the reclamation requirement of the
permit (Appl. Exh. 2).  

   The argument of the respondent is that applicant did not intend to mine the Stockton seam because of it being low
quality coal and marginal economic value, however, the applicant argued that it was actively mining all four seams but
that the Stockton seam had been by-passed temporarily in this particular area because of the immediate need to take a
higher quality coal (Tr. 161).  

   There is no argument that any spoil was placed or allowed below the bench of the Coalburg seam after May 3, 1978.  

   From the above, it can be seen that if the area between the bench of the Clarion seam and the edge of the highwall of
the Coalburg seam is considered a downslope, then there is also no question as to the violation of placing or allowing
spoils to remain on a downslope.  If, however, this area cannot be considered a downslope, then the violation was
invalidly issued.  

   30 CFR 710.5 defines "downslope" as the "land surface between a valley floor and the projected outcrop of the lowest
coalbed being mined along each highwall." "Highwall" is defined as "the face of exposed overburden and the coal in an
open pit of a surface or for entry to an underground coal mine."  

   What was once the valley floor at the subject mine is now a valley fill, and from the photographic evidence, there
appears in fact to be no downslope whatsoever unless it is the space between the Clarion and the Coalburg seams. {4}
 
   The evidence presented by the parties is remarkable in its clarity, and the pictorial panorama exhibited by the
Respondent's Exhibit 5 and the Applicant's Exhibit 2 is sufficient to substitute for the undersigned being at the site on
the day the violation was issued, and on September 7, 1979, after reclamation of the area had taken place.  

   It is generally admitted by the parties that the drafters of the Act and the regulations did not take into consideration
multiple-seam mining where more than one bench and highwall would be created (Tr. 86).  

   In the footnote to the decision in the Black Creek Coal Co. case, supra, I felt that a better description of downslope
would be the slope below the lowest bench described in the permit from which vegetation had not been removed and
from which vegetation must not be destroyed or removed.  While it may be true that there is a difference between the
facts in the Black Creek Coal Co. case, supra, and the instant case, the basic issue remains the same but perhaps needs
to be clarified further.  

   In the usual mining sequence, on steep slope strip mining, there is normally but one highwall and one downslope as
the bench progresses around the contour of the mountain following the outcropping of coal.  The recovery of the
highwall is usually occasioned by some type of "haulback" method whereby the highwall is recovered behind the
operation as it progresses. Under these circumstances, the definition of section 710.5 as to downslope is not only
difficult to dispute, but needs little interpretation.  

   The permit gives the operator the right to remove coal in a certain area following responsible reclamation techniques
and mining procedures as promulgated into law by the states and now as set forth in the Surface Mining Control and
Reclamation Act of 1977.  The State of Kentucky has as its definition of downslope the same as contained in section
710.5, since it apparently tract the language of the Act in order to update its mining regulations.  

   It is my opinion that once a permit has been issued to mine an area that neither the state nor the Office of Surface
Mining can dictate the basic mining techniques by the company.  That is to say that in the instant case, the State of
Kentucky nor OSM can require the applicant to mine any particular seam in any particular sequence but that the
economic feasibility of removing coal in the area is the sole responsibility of the applicant.  The applicant has the
authority under the permit to mine the Stockton seam, and I cannot accept the assumptions of the respondent that the
applicant is not going to mine said seam. Whether the applicant would be guilty of financial oll in completely reclaiming
the area that contained the Stockton seam at the present time, only to come back at a later date and reopen the seam
again at greater expense, is neither within my purview to judge nor that of OSM.  The fact that a minable seam exists on
what OSM has chosen to call the downslope, and which has been mined by the applicant prior to this particular state of
mining, diminishes the reliability of the respondent's interpretation that this area was a downslope. {5}
 
   From the general knowledge that I have obtained as to current mining practices, in contour strip mining, the permit
areas are usually limited to the edge of the bench of the outcrop of coal and the beginning of the downslope, and by the
upper edge of the finished highwall where only one seam of coal is being mined.  It would appear that this was also in
the minds of the framers of the Act and the regulations that the upper and lower reaches of the mining activity
constituted the only area where disturbance could take place and that the remaining natural land would be untouched.  

   It is therefore logical to conclude that "the lowest coalbed being mined along each highwall" (emphasis supplied)
means the lowest coalbed which is permitted to be mined, no matter what the sequence of mining may be, and that the
highwall is the upper-most highwall permitted within the permit area.  To say otherwise would seriously jeopardize
multiple-seam mining techniques or enterprises and require the issuance of permits for each individual seam of coal,
even if the seams were only 10 to 25 feet apart.  

   Knowing that there must be some reasonableness in this interpretation, and so as to prevent this interpretation from
applying to permits where coal seams are several hundred or maybe as much as a thousand feet apart, it would be
logical to add to the definition a proposable limitation covering only the projected disturbed area.  This would mean that
the premining, mining, and postmining sequences appearing on application for permits, should outline in advance of
securing the permit the total area to be disturbed, the method of disturbance, and the reclamation necessary to conform
to state law and the requirements of the Act, and if non-disturbance areas existed within the permit area, they should be
clearly defined.  

   Irrespective of what the witnesses for the applicant testified as to the potential of any environmental harm, that does
not alter the physical aspects of the issues presented by this case.  The speculation of eventual pollution is too remote to
be material or even be considered in this case.  

   Since I established this general principle in Black Creek Coal Co. v. OSM, supra, I feel that its decision has become
final since it was not timely appealed, and that I am bound by it until new policy is established.  

   The conclusion of this is that the area between the edge of the Clarion bench and the top of the Coalburg highwall is
not a downslope within the meaning as defined in 30 CFR 710.5 and the word "being" as used in the definition of
downslope is interpreted to mean "was," "is," or "going to be" (Tr. 25).  The notice of violation was therefore
improperly issued.  

   ORDER  

   Notice of Violation No. 79-II-18-24, violation No. 1, is vacated, the proposed civil penalty assessment is vacated. 
The respondent shall {6} remit to the applicant the sum of $2,600 with interest at the rate of 6 percent or the prevailing
Department of Treasury rate, whichever is greater.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   Randolph L. Jones, Jr., Esq., Toptiki Coal Corp., 1800 S. Baltimore Ave., Tulsa, OK 74119 (Certified Mail)  

   John Philip Williams, Esq., Office of the Field Solicitor, U.S. Dept. of the Interior, P.O. Box 15006, Knoxville, TN
37901 (Certified Mail)  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Dept. of the Interior, Washington,
DC 20240 (Certified Mail)  

   Assessment Office - OSM, Room 215, So. Bldg., U.S. Dept. of the Interior, Washington, DC 20240