CEDAR COAL CO. v OSM; Docket No. CH 8-17-R (November, 17, 1978)

 TYPE:  ALJ Hearing: Decision  

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

DATE: November, 17, 1978  

CASE-NO: Docket No. CH 8-17-R  

PROCEEDING: Application for Review, Notice of Violation 78-I-4-2  

COUNSEL: 

David M. Cohen, Counsel for Applicant; 

Marye Wright and Shelley Hayes, Office of the Solicitor, Department of the Interior, for the Respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION  

   BACKGROUND  

{2}  On August 25, 1978, the respondent's inspectors visited the mining site of Cedar Coal Company, the subject of
West Virginia Permit No. 197-77, issued by the Division of Reclamation, Department of Natural Resources, State of
West Virginia, November 29, 1977, and while upon said mining site, issued a notice of violation pursuant to five
sections of the Act and granting abatement periods until September 25, 1978, on violations 1, 2, 4 and 5.  The time set
for abatement of violation No. 3 was October 25, 1978.  On September 22, 1978, the applicant filed an application for
review for violation No. 3 only which was received by the Office of Hearings and Appeals on September 25, 1978. 

  This application for review was filed by Cedar Coal Company in accordance with section 521 of the Surface Mining
Control and Reclamation Act of 1977 for a review of the notice of violation No. 3 which was answered by the Office of
Surface Mining Reclamation and Enforcement (OSM) on or about October 3rd 1978. Notice of Hearing was duly sent
on October 10, 1978, for hearing to be set on October 31, 1978, at 10 a.m. in Charleston, West Virginia.  Thereafter,
Cedar Coal Company applied for temporary relief and requested a hearing prior to October 25, 1978, stating that if the
applicant was forced to comply with the remedial action, it would result in considerable difficulty and unreasonable
expenses even though a favorable determination of applicant's position might be rendered in the case and render such
action unnecessary: There being no objection, a hearing was granted to the applicant on October 23, 1978.  

   ISSUE

  There is one major issue and one important subissue to be decided in this case.  The major issue is whether or not the
applicant is required by the Act to completely eliminate the highwall on the property (result of previous mining
activites) or eliminate only so much of it as the applicant has available spoil materials available on the permit property.   

  The important subissue is whether or not the applicant, once having entered into compliance with the requirement of
the State of West Virginia for reclaiming a portion of the orphaned highwall under the approved plan and permit can
now be required to undo what has been done and completely eliminate the "orphaned" highwall.  

   FINDINGS OF FACT AND CONCLUSIONS OF LAW  

  Violation No. 3 states that the permittee failed to eliminate the highwall thereby violating section 30 CFR 715.14(b)(ii)
which holds as follows:  

  Backfill and grade to the most moderate slope possible to eliminate the highwall which does not exceed the angle of
repose or such lesser slopes as is necessary to assure stability.   

{3}  To achieve a full understanding of this violation, one must look to the section in its separate parts.  The first
paragraph of section 715.14 states:  

   In order to achieve the approximate original contour, the permittee shall, except as provided in this section, transport,
backfill, compact (where advisable to ensure stability or to prevent leaching of toxic materials), and grade all spoil
material to eliminate all highwalls, spoil piles, and depressions.  Cut-and-fill terraces may be used only in those
situations expressly identified in this section.  The postmining graded slopes must approximate the premining natural
slopes in the area as defined in paragraph (a).   

  Subparagraph (b), final graded slopes, provides:  

   (1) The final graded slopes shall not exceed either the approximate premining slopes as determined according to
paragraph (a)(1) and approved by the regulatory authority or any lesser slope specified by the regulatory authority based
on consideration of soil, claimate, or other characteristics of the surrounding area.  Postmining final graded slopes need
not be uniform.  The requirements of this paragraph may be modified by the regulatory authority where the mining is
reaffecting previously mined lands that have not been restored to the standards of this section and sufficient soil is not
available to return to the slope determined according to paragraph (a)(1).  Where such modifications are approved, the
permittee shall, as a minimum, be required to--  

   (ii) backfill and grade to the most moderate slope possible to eliminate the highwall which does not exceed the angle
of repose or such lesser slopes as is necessary to assure stability.   

  The parties stipulated that the desired seam of coal existed below a preexisting bench developed as the result of mining
several years before the Surface Mining Control and Reclamation Act of 1977 was enacted, leaving an orphaned
highwall of 30 to 70 feet in height over the preexisting bench.  The applicant conceded that Cedar Coal Company
believed that it was not required to completely eliminate the orphaned highwall because it was in effect "exempt" from
that requirement because of the approved reclamation plan by the State of West Virginia contained in applicant's issued
permit.   

{4} There is no question that the Congressional intent of Public Law 95-87 and the intent of the Secretary of the Interior
is to prevent adverse effects of surface mining operations on the public and the environment as set forth in section
101(c) of the Act.  Beyond the fact that the evidence showed that all of the highwall had not been eliminated, there was
no evidence as to any environmental harm to the public or the environment (Tr. 53).   

  The problems that are arising with the type of violation issued in this case, and which I am sure will appear, is that
reclamation plans were approved by responsible state agencies prior to the enactment of Public Law 95-87 on August 3,
1977, and the interim regulations enacted and published in the Federal Register on December 13, 1977 (42 Fed. Reg.
62639 (Dec. 13, 1977)), whereupon mining on the permit property was entered into by the permittee and in accordance
with the provisions of his permit, he performed those requirements set forth therein, without notice by the State of any
violations.   

  Before discussing the merits of this case and the contention of the parties, it must be noted that under no circumstances
whatsoever may an administrative law judge consider the constitutionality of any Congressional act, public law, or
regulation enacted by an agency of the United States of America, since that power is vested in the Federal courts alone.   

 The applicant contends that it did not disturb or effect the orphaned highwall and that therefore the applicant is not
legally responsible for eliminating the orphaned highwall.  The applicant cites 30 CFR 710.11(d)(1) which states:  

   The requirements of this chapter apply to operations conducted after the effective date of these regulations on lands
from which coal has not yet been removed and to any other lands used, disturbed, or redisturbed in connection with or to
facilitate mining or to comply with the requirements of the Act or these regulations.   

  Both the applicant and the respondent cite 715.14(b) which has been set forth in this opinion above.  The respondent
contends that the highwall has been affected or disturbed by the applicant in that applicant removed overburden,
vegetation and backfill material used to cover a portion of the orphaned highwall years before.   

  It was clearly the intent of Congress (and it is so stated) in section 101(f) of Public Law 95-87 that:  

   Because of the diversity in terrain, climate, biologic, chemical, and other physical conditions in areas subject to mining
operations, the primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for
surface mining and reclamation operations subject to this Act should rest with the States.   

{5}  Further, section 102 of the Act relating to "purposes" provides:  

   It is the purpose of this Act to (c) assure that surface mining operations are not conducted where reclamation as
required by this Act is not feasible;  

   (d) assure that surface coal mining operations are so conducted as to protect the environment;  

   (e) assure that adequate procedures are undertaken to reclaim surface areas as contamporaneously as possible with a
surface coal mining operation;  

   (h) promote the reclamation of mined areas left without adequate reclamation prior to the enactment of this Act and
which continue, in their unreclaimed condition, to substantially degrade the quality of the environment, prevent or
damage the beneficial use of land or water resources, or endanger the health or safety of the public; * * *.   

  Further, Congress mandated in Title 5, section 501(a) of the Act, in part:  

   The issuance of the interim regulations shall be deemed not to be a major Federal action within the meaning of section
102(2)(c) of the National Environmental Policy Act of 1969 (42 U.S.C.   4332).  Such regulations, which shall be
concise and written in plain, understandable language shall not be promulgated and published by the Secretary until he
has  

   (a) published proposed regulations in the Federal Register and afforded interested persons and state and local
governments a period of not less than 30 days after such publication to submit written comments thereon;  

   (b) obtained the written concurrence of the administrator of the Environmental Protection Agency with respect to
those regulations promulgated under this section which relate to air or water quality standards promulgated under the
authority of the Federal Water Pollution Control Act, as amended, * * *.   

  I can therefore find that Congress intended that these regulations were required to be concise and written in plain, and
understandable, language.  It is "plain and understandable language" in the State of West Virginia, Virginia, Kentucky,
and Tennessee, were strip mining has been prevalent for many years, that an "orphaned highwall" is one which has been
left from previous mining operations, abandoned to the elements, and which usually mark the grave of a  previous strip
mine.  This term may not be used west of the 100th meridian, but it is a term used east of that meridian and is not
contained in either section 515 of the Act or CFR 715.14.  I can therefore only conclude that the Act and the regulation
cited by the parties are not in plain and understandable language and as such do not refer to "orphaned highwalls."  

{6}  715.11(d) is, I find, the proper section which would relate to orphaned highwalls on premined land.  This section
holds:  

   (1) The requirements of this chapter apply to operations conducted after the effective date of these regulations on
lands from which the coal has not yet been removed and to any other lands used, disturbed, or redisturbed in connection
with or to facilitate mining or to comply with the requirements of the Act or these regulations.  [Emphasis supplied.]  

  The respondent cites 30 CFR 710.5 defining "disturbed area" as to mean "those lands that have been affected by
surface coal mining and reclamation operations" as the absolute authority on whether or not the area in question along
the orphaned highwall was "disturbed." Because of the evidence as a whole, I cannot accept that proposition.   

  There is no question that both the Act and the regulations require that on all new mining activity that the creation of any
highwall must be completely and totally eliminated in the reclamation of the mining property when the coal has been
extracted.  To require more than that or to require an operator to completely eliminate the highwall, then the operator
should be given the opportunity at the first instance when applying for his permit to mine the option of whether or not
the value of the coal exceeded the cost requirements of the regulations and the Act and whether or not he, in fact, wanted
to assume that responsibility in exchange for the granting of a permit to mine coal.   

 It would not appear to me that the intention of Congress or the Secretary of the Interior would be to impose upon an
operator by these regulations or by an act of Congress a duty greater than that imposed by the State in the first instance
of granting a permit where, in the exercise of that right granted by the State, there was no danger or adverse condition
created affecting the public or the environment.   

  In the case of Surface Mining Regulation Litigation, Civil Action No. 78-162, entitled Memorandum Opinion and
Order from the United States District Court for the District of Columbia, dated May 3, 1978, Judge Flannery stated:  

   Throughout the Act Congress made it clear that the only alternative that the operators had was to comply or not
conduct operations.  To illustrate: 

   (1)  102(c) states that one of the purposes of the Act is to "assure that surface mining operations are not conducted
where reclamation as required by this Act is not feasible;" 

   (2)  502(c) states that "all surface mining operations... shall comply" with the provisions included in the interim
program; 

   (3)  510(b) provides that no permit shall be approved unless unless the applicant demonstrates that reclamation as
required by the Act can be accomplished; 

   (4)  515 states that permits shall require compliance with the performance standards of the Act; and 

   (5)  522(a)(2) requires that areas be designated unsuitable for all or certain types of surface coal mining operations
where "reclamation pursuant to the requirements of this Act is not technologically or economically feasible." 

   Thus, plaintiffs' claim that procedures for the granting of exemptions and variances from all of the regulations are
necessary is without merit.  The Secretary's decision to allow the States, as the regulatory authority, to approve
alternative methods of compliance in serveral areas was a reasonable exercise of his discretion.  See, e.g., 42 Fed. Reg.
62680-62691 (Dec. 13, 1977), Regulations  715.17(a)(1), (2) (haul and access roads);  715.19 (blasting); 715.16
(topsoil handling); 715.13(d) (alternate postmining land use); 715.17(d) (stream diversions); 715.14 (b) (final graded
slopes). Therefore, plaintiffs' motions concerning the absence of adequate variance and exemption procedures will be
denied.   

{7}  In the instant case, the orphaned highwall had been in existence 10 years or more and the applicant has used all of
his material in the permit area to reclaim as much of the highwall as is possible in accordance with the plans approved
by the State of West Virginia. The violation covers some 1,500 feet, and the evidence is that there will be additional
mining throughout the seam below the orphaned highwall in the remainder of the permit area which will require
reclaiming more of the orphaned highwall with the spoil material taken from the mined areas.   

  I find that the permittee (applicant) shall continue to reclaim the highwall in accordance with the permit granted by the
State of West Virginia, and I find that such a permit and plan amount to a variance or modification of recovery plans for
unmined property.  Finally, the respondent argues that the State of West Virginia adopted on August 14, 1978, section
9.07 which defined final graded slopes to mean "slopes backfilled and graded to eliminate the highwall which does not
exceed the angle of repose of such lesser slopes as is necessary to assure stability." This argument is without merit in
that it, by itself, does not relate to orphaned highwalls.   

  Finally, Judge Flannery held under subparagraph (3) of his opinion:  

   A settled principle of statutory construction is that in order for a provision to have retrospective application, the
requirement must be explicitly and unmistakably set forth in the statute.  Union Pacific R.R. v. Laramie Stockyards, 231
U.S. 190, 199 (1913); see Greene v. United States, 376 U.S. 149, 160 (1964); Farmington River Power Co. v. FPC,
455 F.2d 86, 90 (2d Cir. 1972). There is no statutory provision in the Act that explicitly requires the reconstruction of
already existing structures.   

{8}  I also find that in accordance with all of the above, that there is no unmistakable and explicit requirement in the Act
for the complete recovery of an "abandoned highwall."  

 I further find:  

   (a) that since the regulations do not use the term "orphaned highwall," complete highwall, entire highwall, old
highwall, or any other term relating to a highwall left from previous mining activities, they (the regulations) are neither
explicit or unmistakable and that it was not the intention of the Secretary or Congress to require a complete elimination
of orphaned highwalls, especially where the regulatory authority has been given assurance in the reclamation plan that
sufficient material does not exist to completely reclaim such a highwall and such incomplete reclamation is not adverse
to the public or the environment;  

   (b) that "disturbing" of an existing highwall, means either the cutting into that highwall to such an extent that it renders
the highwall a threat in some manner to the public or to the environment, or that the highwall is attempted to be
restructured or resloped to a different degree in order to facilitate mining;  

   (c) that the orphaned highwall was not disturbed within the meaning of the regulations;  

   (d) that the orphaned highwall was not affected by the mining operations of applicant changing its configuration or
status;  

   (e) that the applicant has complied in full with the requirements of the permit issued by the State of West Virginia in
reclaiming that much of the orphaned highwall as is possible with the amount of spoil material available at the permit
site; and  

   (f) that the failure to completely eliminate the orphaned highwall poses no danger or threat to the public or the
environment as contemplated by Congress, the Secretary of the Interior, or the regulations.   

{9}  I therefore conclude that Violation #78-I-4-2(3) should not have been issued, and it is hereby ordered and adjudged
that said violation is vacated and dismissed.  

Tom M. Allen, 
Administrative Law Judge