MACO COAL INC. v OSM; Docket No. CH 8-14-R (November 30, 1978)

 TYPE: ALJ Hearing: Decision  

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

DATE: November 30, 1978  

CASE-NO: Docket No. CH 8-14-R  

PROCEEDING: Application for Review, Notice of Violation No. 78-I-10-2, Order of Cessation No. 78-I-10-2  

COUNSEL: 

J. Robert Sturgill & Stump, P.O. Box 770, Norton, VA, for the Applicant; 

Marye Wright and Billy Jack Gregg, Office of the Field Solicitor, U.S. Department of the Interior, Charleston, WVA,
for the Respondent.  

OPINIONBY: Administrataive Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

  In accordance with Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act) Maco Coal
Incorporated, Applicant applied for review of a notice of violation and an order of cessation issued by the Office of
Surface Mining Reclamation and Enforcement, Respondent under  521(a)(3) of the Act.  A hearing was held on
September 29, 1978 in Wise, Virginia.  At the hearing it was discovered that the official file in the case appeared to be
incomplete, however, the parties agreed to try the case based on the issues of fact and law raised in the notice of
violation and order of cessation.   

  On May 24, 1978, Respondent issued a notice of violation pursuant to  521(a)(3) of the Act alleging that the
Applicant had caused spoil material and vegetated debris to be placed and remain on a downslope in violation of 30
CFR  716.2(a)(1).  On June 23, 1978, this notice of violation was modified for the purpose of clarity and for setting a
time for abatement. On August 24, 1978, the Respondent issued an order of cessation pursuant to  521(a)(3) of the Act
alleging the Respondent had failed to abate the violation within the time allowed in the notice.  

   FACTS {2}

  There are essentially no disputed factual matters in this case. The Applicant has been mining what is called the splash
dam coal seam.  Below this seam there are two more seams of coal which had been previously mined; the upper banner
and the lower banner.  The mining of the upper and lower banner seams had left two existing benches which had not
been reclaimed.   

  The Applicant concedes that since May 3, 1978 he has placed spoil removed from the splash dam coal seam onto the
old bench of the upper banner seam.  There is a dispute as to whether since May 3rd, spoil from the splash dam coal
seam cut has been placed solely on the solid part of the old upper banner bench or whether part of the spoil has been
placed on the fill bench of the old upper banner bench.  In view of the disposition of this case the disputed issue of fact
referred to above is immaterial.  

   It is further undisputed that the slope in question is a steep slope and subject to the special rules governing steep slope
mining.   

  The Applicant insists that he is not casting spoil on the downslope in violation of the applicable regulation in that his
permit calls for the mining of the upper banner seam in the disputed area.  In other words, as downslope is defined as 
the land surface between a valley floor and the projected outcrop of the lowest coal bed being mined along each
highwall that the downslope in this instance would mean the land surface between the valley floor and the projected
outcrop of the upper banner coal bed.   2  The permit of the Applicant called for the mining of the splash dam coal seam
and the upper banner coal seam.  It further called for the mining of the lower banner coal seam in certain limited areas
but that it not material to the disposition of this case.  The testimony of the Applicant, the permit filed as an exhibit, and
the testimony of Mr. Victor Virts, a rebuttal witness for the Respondent, all confirm the conclusions set out above.  

   ISSUE  

  The sole issued in whether the placing of spoil below the splash dam bench into the bench left by the prior mining of
the upper banner seam is a violation of 30 CFR  716.2(a)(1) when the permittee is authorized and plans to mine the
upper banner seam.  

   DISCUSSIONS AND CONCLUSIONS  

  The term downslope is defined in 30 CFR  710.5 as follows: "Downslope means the land surface between a valley
floor and the projected outcrop of the lowest coal bed being mined along each highwall." Where two or more parallel
seams of coal are to be stripmined one must necessarily mine the top seam of coal first in order to get the seam below it.
Consequently the term "lowest coal bed being mined along each highwall" has to mean the lowest coal bed intended to
be mined the result of which will create a single highwall.  If this was not true the word "lowest" would not be included
in the definition of downslope.  In other words, where a miner makes one cut which goes through one seam of coal down
to a lower seam of coal leaving a single highwall, the lowest seam of coal being mined is the lower seam of coal. As the
permit of the Applicant called for the mining of both the splash dam and upper banner coal beds, the act of mining the
splash dam seam was also a part of the act of mining the upper banner seams in that the Applicant had to go through one
seam in order to get to the other.  The fact that the Applicant had not reached the upper banner seam does not change the
definition of downslope.   

{3} Under the undisputed facts of this case a charge of casting spoil on the downslope of the lowest coal bed being
mined along each highwall cannot be sustained.  

   ORDER  

   It is hereby ordered that Notice of Violation No. 78-I-10-2 and Order of Cessation No. 78-I-10-2 are vacated.  

David Torbett, 
Administrative Law Judge