DEAN TRUCKING CO., INC. v OSM; Docket Nos. CH 8-12-R, CH 9-4-R ( November 28, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: DEAN TRUCKING CO., INC., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 28, 1978 [Amended by April 12, 1979 decision]  

CASE-NO: Docket Nos. CH 8-12-R, CH 9-4-R  

PROCEEDING: Application for Review, Notices of Violation 78-I-18-3, 78-I-15-3, 78-I-15-6  

COUNSEL: 

Carl E. McAfee, Esq., Norton, Virginia, for applicant; 

Billy Jack Gregg, Esq., Office of Surface Mining, Department of the Interior, for respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION  

   BACKGROUND {2}

  On August 10, 1978, respondent issued a notice of violation of sections 715.15(b), 715.17(a), and 715.12(c) of 30
CFR pursuant to section 521(a)(3) of Public Law 95-87 being the Surface Mining Control and Reclamation Act of
1977, alleging that the applicant was constructing a "valley fill" without the approval of the regulatory authority and not
in compliance with the requirements of section 715.15(b); and, that the permittee has failed to pass all surface drainage
from the disturbed areas through a sedimentation pond or a series of sedimentation ponds; and the permittee has failed
to clearly mark the perimeter of the permit area with durable and easily recognized markers or by other means approved
by the regulatory authority.  Abatement on the valley fill was set for November 9, and on the other two violations for
September 11, 1978. The above being known as "Notice of Violation #78-I-18-3." On August 29, 1978, two
subsequent violations were written being violation #78-I-15-3, and on September 27, 1978, an additional violation was
written being known as #78-I-15-6.  The two subsequent violations all related to the first violation, namely that of a
valley fill.   

  Both of the parties agreed that all the violations and the two primary cases being CH8-12-R and CH9-4-R were to be
consolidated for the purpose of the hearing.   

  In accordance with section 525(1) of the Surface Mining Control and Reclamation Act of 1977, Dean Trucking
Company, Inc., applied on September 22, 1978, for a review of the notices issued by the Office of Surface Mining
Reclamation and Enforcement (respondent) under section 521(a)(3) of the Act.  The hearing was finally set for October
24, 1978, and held on that day at Big Stone Gap, Virginia.  

   FACTS 

  On July 11, 1977, Dean Trucking Company, Inc., received permit No. 2386 from the Commonwealth of Virginia,
Department of Conservation and Economic Development, Division of Mined Land Reclamation, to mine three seams of
coal located at "Head of Wolfe Branch, Route 712," covering 109.7 acres and being the permit property upon which the
violations were issued.   

  On March 14, 1978, a "hollow fill" was approved in a drainage plan by Bob Horton of the Division of Mined Land
Reclamation, BSG Office, State of Virginia (respondent's exh. No. 7). Pursuant to a complaint from a citizens group,
that spoils were being placed near a stream (Tr. 13), an inspection was conducted by respondent's inspectors first on
August 3, 1978, with no violations being written that day because the applicant did not want citizens upon his property,
and therefore a second  inspection was held on August 10, 1978, at which time Notice of Violation #78-I-18-3 was
issued.  Three violations were cited under the notice of violation, the first being that the permittee was constructing a
valley fill without the approval of the regulatory authority and not in compliance with 30 CFR 715.15(b) and in violation
of said section.  Violation No. 2 was that the permittee had failed to pass all surface drainage from the disturbed area
through a sedimentation pond or a series of sedimentation ponds n violation of 30 CFR 715.17(a).  The third violation
was for failure of the permittee to clearly mark the perimeter of the permit area with durable and easily recognized
markers in violation of 30 CFR 715.12(c).   

{3}  Applicant subsequently constructed two sedimentation ponds and installed perimeter markers within the time
allowed by the notice of violation, and the same complied with the requirements of the regulations as the regulations are
construed by the respondent.   

  Subsequent visits were made to the site on August 29, 1978, September 27, 1978, and September 29, 1978. 
Additional violations were issued on August 29, 1978, being Notice of Violation #78-I-15-3, for constructing a valley
fill without the approval of the regulatory authority and violation 30 CFR 715.5(b) and Violation #78-I-15-6 dated
September 29, 1978, for constructing a valley fill without the approval of the regulatory authority and in violation of 30
CFR 715.5(b), the last two being the same as the first violation issued on August 10, 1978.  The evidence is not in
dispute that the applicant, after August 10, 1978, continued to deposit spoils and material into the area that the
respondent had classed as a "valley fill."  

   ISSUE  

  The issue in this case is twofold.  First, whether or not the area being filled by the applicant was approved by the
regulatory authority to the extent that the same did not require full compliance with 30 CFR 715.15(b), and secondly,
whether or not the area being filled was in fact a hollow or alley fill within the meaning and definition set forth in 30
CFR 710.4 defining "valley fill and head-of-hollow fill."  

   DISCUSSION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW  

   Under section 502(c) of the Act, it is provided:  

  On or 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 * * *.   

  Although section 515 of the Act does not specifically refer to valley or head-of-hollow fills, sections 515(b)(3), (4),
(10), (11), (13), (14), (21), and (2) all in some manner describe the reason for valley and head-of-hollow fill to be
constructed in accordance with 30 CFR 715.15(b).  

{4}  Valley fill and head-of-hollow fill are defined as means a structure consisting of any materials other than waste
placed so as to encroach upon or obstruct to any degree any natural stream channel other than those minor channels
located on highland areas whether overland flow in natural rills and gullies is the predominant form of runoff.  Such fills
are normally constructed in the uppermost portion of a v-shaped valley in order to reduce the upstream drainage area
(head-of-hollow fills).  Fills located farther downstream (valley fills) must have larger diversion structures to minimize
infiltration.  Both fills are characterized by rock underdrains and are constructed in compacted lifts from the toe to the
upper surface in a manner to promote stability.   

  From the evidence, the applicant had been filling in the area in accordance with the permit issued by the State of
Virginia without deviation (Tr. 52, 53) which was a right granted  by the regulatory authority prior to mining the area
and which the evidence did not disclose would create a significant, imminent environmental harm to land, air or water
resources or imminent danger to the health and safety of the public as described in 30 CFR 700.5.   

  Further, the evidence did not disclose that the area being filled was, within the definition of the Act, either a valley or a
head of hollow.  Since there was no challenge to the other two violations, namely the failure to construct sedimentation
ponds and the failure to have perimeter markings in place, the Notice of Violation #78-I-18-3 (2) and (3) is affirmed. 
As to violation #78-I-18-3(3), 78-I-15-6 and 78-I-15-3, the respondent has not carried the burden of showing the
existence of a violation under the Act or the interim regulations for reasons that the notice of violation specified
"construction of a valley fill" and the evidence does not establish the area as a valley.    

 In the brief filed by the Office of Surface Mining Reclamation and Enforcement (OSM), there is set forth in Findings of
Fact No. 18 and No. 19 that the applicant had not intended any remedial action at all and has abandoned the mine site in
that on November 18, 1978, the Commonwealth of Virginia revoked the applicant's permit to mine on Permit No. 2386
and forfeited his bond.   

  The attorney for the applicant requested additional 30 days after conclusion of the hearing to discuss with the proper
authorities remedial action (Tr. 151-152), and to this date I have not heard from any representative from the applicant.   

{5}  During the course of the hearing, it developed that the applicant had not and probably would not eliminate any of
the highwalls created by his mining activity which indicates to me a disregard of the intent purpose of the Act; however,
it still remains the responsibility of the respondent to carry the initial burden of proof as to the existence of a violation
before the burden shifts to the applicant.  Therefore:  

   ORDER  

   Notices of Violation #78-I-18-3(2) and (3) are affirmed.  Notices of Violation #78-I-18-3(1), #78-I-15-3 and #78-I-15-6 are vacated.  

Tom M. Allen, 
Administrative Law Judge