C & K COAL CO. v OSM; Docket No. CH 8-2-R (November 17, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: C & K COAL CO., Applicant v OFFICE OF SURFACE MININT RECLAMATION AND ENFORCEMENT
(OSM), Respondent  

DATE: November 17, 1978  

CASE-NO: Docket No. CH 8-2-R  

PROCEEDING: Application for Review, Notice of Violation: 78-I-II-2, 78-I-II-3, 78-I-II-4  

COUNSEL: 

Bruno A. Muscatello, Esq., Butler, Pennsylvania, for Applicant; 

Billy Jack Gregg, Esq., Charleston, West Virginia, for Respondent.  

OPINIONBY: Administrative Law Judge Luoma  

OPINION: DECISION  

  In accordance with section 525 n1/ of the Surface Mining Control and Reclamation Act of 1977 n2/ (the Act), C & K
Coal Company (Applicant) applied on July 27, 1978, for review of three notices issued by the Office of Surface Mining
Reclamation and Enforcement (Respondent) under section 521(a)(3) n3/ of the Act.  Respondent filed a timely answer. 
A hearing was held on August 15, 1978, in Pittsburgh, Pennsylvania.  

   n1/ 30 U.S.C.   1275 (1977).  That section provides, in part:  

   "(a)(1) A permittee issued a notice or order by the Secretary pursuant to the provisions of subparagraphs (a)(2) and
(3) of section 521 of this title * * * may apply to the Secretary for review of the notice or order within thirty days of
receipt thereof or with-in in thirty days of its modification, vacation, or termination.  Upon receipt of such application,
the Secretary shall cause such investigation to be made as he deems appropriate.  Such investigation shall provide an
opportunity for a public hearing, at the request of the applicant * * * to enable the applicant * * * to present information
relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof. 
The filing of an application for review under this subsection shall not operate as a stay of any order or notice.  

   * * *  

   "(2)(b) Upon receiving the report of such investigation, the Secretary shall make findings of fact, and shall issue a
written decision, incorporating therein an order vacating, affirming, modifying, or terminating the notice or order, or the
modification, vacation, or termination of such notice or order complained of and incorporate his findings therein."  

   n2/ 30 U.S.C.   1201 et seq. (1977).  

   n3/ 30 U.S.C.   1271(a)(3) (1977).  That section provides, in part:  

   "When, on the basis of a Federal inspection, * * * the Secretary or his authorized representative determines that any
permittee is in violation of any requirement of this Act * * *; but such violation does not create an imminent danger to
the health or safety of the public, or cannot be reasonably expected to cause significant, imminent environmental harm
to land, air, or water resources, the Secretary or authorized representative shall issue a notice to the permittee or his
agent fixing a reasonable time but not more than ninety days for the abatement of the violation and providing
opportunity for public hearing."  2  On July 29, 1978, Respondent issued three notices of violation, pursuant to section
521(a)(3) of the Act.  The first notice alleged that Applicant failed to submit a surface water monitoring program which
meets the requirements of 30 CFR 715.17(b).  The second notice alleged that Applicant failed to properly monitor
ground water levels, rates and flows in accordance with 30 CFR 715.17(h)(3).  The third notice alleged that Applicant
failed to pass all surface drainage from the disturbed area through a sedimentation pond as is required by 30 CFR
715.17(a).  

  FACTS 

{2}  Applicant operates a surface coal mine near Clarion, Pennsylvania and the Pennsylvania Department of
Environmental Resources issued permits for the mine.  The original permit was issued in 1976, and the latest
amendment to the permit was issued in January 1978 (Tr. 73, 74).   

  The interim Federal surface mining regulations, 30 CFR 700 et seq., became applicable to all new surface coal mines
on February 3, 1978, and on May 3, 1978, they became applicable to all existing surface coal mines in the United
States, 30 U.S.C.   1252(c).   

  Prior to passage of the Act, Pennsylvania had laws regulating surface coal mining.  Under those laws, Applicant was
required to treat all drainage from active mining operations (Tr. 57).   

  On February 18, 1978, the Pennsylvania Department of Environmental Resources published a statement explaining
that the State would enforce the initial performance standards contained in the Federal regulations, and on March 23,
1978, issued a document entitled, "Clarfication of Policy," which pertained to information that would be required in
permits (Exhs. A and 2, Tr. 52-54).  Neither document specifically stated that mines, for which permits were issued
prior to February 3, 1978, would be subject to the interim Federal regulations.   

{3}  In April of 1978, employees of the Pennsylvania Department of Environmental Resources arranged for and
conducted seminars to explain the regulations which had been issued pursuant to the Act.  Both Respondent and
Applicant sent representatives to these seminars.  At the seminars Respondent's representatives did not make it clear
that the interim Federal regulations would be applied to mines for which permits were issued prior to February 3, 1978
(Tr. 42-50).   

  On May 25, 1978, Respondent's inspectors, along with officials of the Pennsylvania Department of Environmental
Resources met with Applicant's representatives and answered questions concerning the interim Federal regulations (Tr.
11-12).  On this date, the inspectors told Applicant's representatives that a surface-water monitoring program was
required, that sedimentation ponds were necessary, and that operations for which permits had been granted prior to
February 3, 1978, must comply with the interim Federal regulations as of May 3, 1978 (Tr. 13, 22, 24). On June 29,
1978, Respondent's inspectors inspected Applicant's mine and issued the subject notices of violation (Exh. 1, Tr. 15-20).  

   ISSUES  

  The issues are whether Applicant's mine complied with the requirements of the regulations and whether Applicant's
reliance upon misleading information is a valid defense to the alleged noncompliance with the regulations.  

    DISCUSSION, FINDINGS, AND CONCLUSIONS 

  Applicant contends that it was essentially in compliance with the interim Federal regulations and that misleading
statements made by the Pennsylvania Department of Environmental Resources which went uncorrected by Respondent
constitute a defense to the notices of violation.   

  Respondent contends that Applicant's mine did not conform with the Federal regulations and therefore the subject
notices of violation were validly issued.   

  I find that statements and publications issued by the Pennsylvania Department of Environmental Resources, which
Applicant found misleading, are not a defense to the alleged violations.  Under 30 CFR 710.4(b), the States are
responsible for ensuring compliance with Parts 715-718 of the interim Federal rules and regulations.  The Federal
Government, however, has responsibility to enforce the interim program until permanent State programs have been
approved, or until a Federal program has been implemented, pursuant to 30 U.S.C.   1252(e), 30 CFR 710.1(b), 721,
722, and 723.  In effect, a dual enforcement system, State and Federal, presently exists. Although Applicant was
confused by information provided by the Pennsylvania Department of Environmental Resources, the meeting held on
May 25, 1978, between Applicant and Respondent was sufficient notice to Applicant that Respondent was the primary
enforcement agency during the initial implementation of the Act and that certain water monitoring programs and
sedimentation ponds were required by the regulations.   

{4}  Under 30 CFR 715.17(b), a permittee must submit plans for, and use in its operation, an approved surface-water
monitoring program to ensure that disturbances to the prevailing hydrologic balance can be detected and minimized (Tr.
14).   

  Under 30 CFR 715.17(h)(3), ground water levels, infiltration rates, subsurface flow and storage characteristics, and the
quality of ground water must be monitored in a manner approved by the regulatory authority to determine the effects of
surface coal mining and reclamation operations on the recharge capacity of reclaimed lands and on the quantity and
quality of water in ground water systems at the mine area and in associated off-site areas.   

  Finally, under 30 CFR 715.17(a), all surface drainage from the disturbed area, must pass through a sedimentation pond
or a series of sedimentation ponds before leaving the permit area.   

  Applicant's vice president of engineering concedes that on June 29, 1978, although there were ground water and
surface-water monitoring programs in effect, as was required by Pennsylvania law, these programs were not sufficient
to meet the requirements of the Federal regulations (Tr. 78, 86, 87).  Accordingly, I find that the notices of violation
relating to ground water and surface water monitoring programs were validly issued.  At the time of the inspection,
however, there were treatment ponds at the mine (Tr. 41).   

  The subject notices of violation only apply to land disturbed after May 3, 1978, (Tr. 37).  The area disturbed by mining
operations at Applicant's mine, after May 3, 1978, constituted three percent of the total area under permit (Tr. 80, 81).   

  Permits issued by the State of Pennsylvania contain requirements that ponds be constructed in accord with
Pennsylvania law (Tr. 35).  Under Pennsylvania law, Applicant has been required to construct a ditch to divert surface
water from the active operation. Further, under Pennsylvania law, Applicant is required to treat all drainage coming
from the active mining area by pumping this water into treatment ponds where iron and acid are removed from the water
(Tr. 58, 59).  A secondary effect of these treatment ponds is the settlement of suspended solids from the water (Tr. 56,
57, 75-77).  These ponds, however, only catch 90 to 95 percent of water coming from the area which has been disturbed
since May 3, 1978.  In effect, therefore, because of the requirements imposed under Pennsylvania law, the elimination
of sediment from surface water is partially handled through the use of treatment ponds that were in existence on May 3,
1978, although the  treatment ponds were not specifically marked as "sedimentation ponds" (Tr. 41). Accordingly, I find
that these treatment ponds served the same purpose as would "sedimentation ponds" and therefore the notice of violation
was validly issued only for the 10 percent of the water flowing from the area disturbed after May 3, 1978, which does
not flow through the treatment ponds at Applicant's mine.  

   ORDER  

{5}  Notices of Violation Nos. 78-I-11-2 and 3, July 29, 1978, which concern surface and ground water monitoring
programs are affirmed.  Notice of Violation No. 78-I-11-4, July 29, 1978, is affirmed to the extent that it applies to the
10 percent of water coming from the disturbed area which does not pass through the treatment ponds at Applicant's
mine.  

L. K. Luoma, 
Chief Administrative Law Judge