MOSHANNON FALLS MINING CO. v OSM; Docket No. CH 8-3-R (November 17, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: MOSHANNON FALLS MINING CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION &
ENFORCEMENT (OSM), Respondent  

DATE: November 17, 1978  

CASE-NO: Docket No. CH 8-3-R  

PROCEEDING: Application for Review, Notice of Violation No. 78-I-II-5  

COUNSEL: 

Steven L. Friedman, Esq., Philadelphia, Pennsylvania, for Applicant; 

Billy Jack Gregg, Esq., Office of the Solicitor, Department of the Interior, 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),
Moshannon Palls Mining Company (Applicant) applied on August 3, 1978, for review of a notice issued by the Office
of Surface Mining Reclamation and Enforcement (Respondent) under section 521(a)(3) n3/ of the Act.  A hearing was
held on September 7, 1978, in Clearfield, 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 within 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 25, 1978, Respondent issued a notice of violation, pursuant to section
521(a)(3) of the Act, alleging that Applicant failed to submit, before July 3, 1978, mine maps which showed the
condition of the mine and permit area on May 3, 1978.  

   FACTS  

{2}  The facts in this matter are not in dispute.  Applicant received, on April 21, 1978, a small operator exemption,
pursuant to section 502 of the Surface Mining Control and Reclamantion Act of 1977.  This exemption applied to
Applicant's surface mining operations (Exhs. 1 and 2).   

  On July 24 and 25, 1978, in response to a citizen's complaint concerning blasting operations at Applicant's mine, an
inspection  was conducted by Respondent's inspectors. During the course of the inspection, however, no violation was
found concerning Applicant's blasting operation (Exh. 3).   

  On July 25, 1978, as a result of the subject inspection, a notice of violation was issued to Applicant for an alleged
violation of 30 CFR 715.11(c) because Applicant had not submitted mine maps to Respondent.   

{3}  Applicant subsequently submitted the mine maps to Respondent and to the State regulatory authority within the
time allowed by the notice of violation, and the maps complied with the requirements of the regulation, as the regulation
is construed by Respondent (Exh. 7).  

   ISSUE

  The issue is whether a small operator, who has been granted an exemption pursuant to 30 CFR 710.12, is required to
submit mine maps pursuant to 30 CFR 715.11(c) of the regulations.  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

  Under section 502 of the Act, an exemption is provided for certain surface coal mining operations which meet
qualifications specified by the Act.  Under the Act, these operations are not subject to the initial regulatory procedures,
with the sole exception of those relating to steep-slope surface coal mining, until January 1, 1979.  Applicant qualified
for and was granted an exemption under this section of the Act and Applicant's operation is not classified as a steep-slope surface coal mine.   

 The regulations have restricted the broad exemption contained by section 502 of the Act.  Under 30 CFR 710.12, a
limited exemption is provided from the performance standards.  The regulations specifically states that the exemption
shall not relieve the permittee of the general obligations imposed by 30 CFR 710.11(a) which states that a person
conducting coal mining operations shall not engage in any operations which result in a condition or constitute a practice
that creates an imminent danger to the health or safety of the public.  Under the regulations, Respondent must
periodically inspect surface mines, including those operations which have been granted small operator exceptions, to
insure that no imminent danger situations exist.   

  Under 30 CFR 715.11(c), which is the regulation at issue, any person conducting surface coal mining operations on
and after May 3, 1978, shall submit two copies of an accurate map of the mine and permit area.  The map shall show, as
of May 3, 1978, the lands from which coal has not yet been removed and the lands and structures which have been used
or disturbed to facilitate mining.  One copy o the mine map shall be submitted to the State regulatory authority and one
copy shall be submitted to Respondent. 

  Applicant contends that the filing of a mine map is not expressly required by the Act or the regulations when a
company has a small operator's exemption and that any construction of 30 CFR 715.11(c), such that the regulation is
applicable to an exempt operator, would be in conflict with, and contrary to, the plain wording of the Act.   

{4}  Respondent contends that the small operator's exemption is limited and that the submission of a mine map by the
Applicant is necessary for the enforcement of the regulations.   

  It is well settled that  Government agencies must observe their own regulations promulgated in furtherance of the
administration of an act of Congress, Pacific Molasses Company v. Federal Trade Commission, 356 F.2d 386 (5th Cir.
1966), United States v. Heffner, 420 F.2d 809 (4th Cir. 1970), and United States v. McDaniels, et al., 355 F. Supp.
1082 (D.C. La. 1973).  Accordingly, I have no authority to invalidate 30 CFR 710.12 even though that regulation limits
the broad exemption for small operators found in section 502 of the Act.  I further find that Applicant was required to
submit a map which shows mine and permit boundaries notwithstanding that Applicant has a small operator's
exemption.  Since 30 CFR 710.11(a) limits the exemption provided by the Act and forbids operations which create
imminent dangers to the health or safety of the public, and since the regulations require that Respondent conduct
periodic inspections to insure that no imminent dangers exist, as a practical matter, Respondent's inspectors would need
the subject maps to determine if such conditions exists on an operator's permit area.  

   ORDER  

   Notice of Violation No. 78-I-11-5, July 25, 1978, is affirmed.  

L. K. Luoma, 
Chief Administrative Law Judge