THUNDERBIRD COAL CORP. v OSM;  Docket No. NX 8-3-12 (September 12, 1978)

 TYPE: ALJ Hearing: Decision  

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

DATE: September 12, 1978  

CASE-NO: Docket No. NX 8-3-12

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

COUNSEL: 

Samuel E. Davies, Esq., Barbourville, Kentucky, for Applicant; 

John Williams, Esq., Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Luoma  

OPINION: DECISION  

   BACKGROUND  

  In accordance with section 525 n1/ of the Surface Mining Control and Reclamation Act of 1977 n2/ (the Act),
Thunderbird Coal Corporation (Applicant) applied on June 19, 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.  Procedural
regulations governing hearings had not, at the time of the hearing, been issued.  A hearing was held on July 20, 1978, in
Barbourville, Kentucky.  

   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 June 15, 1978, Respondent issued a notice of violation, pursuant to section
521(a)(3) of the Act, alleging that drainage from the disturbed area at Applicant's surface mine does not meet minimum
effluent limits because water discharged from sedimentation pond No. 4 at the mine had a pH level of 4.5.  This was
specified as a violation of 30 CFR 715.17(a).  

   FACTS  

{2}  The facts in this matter are not in dispute.  The area for which Applicant had been issued a coal mining permit
consists of 200 acres of land which had been mined 15 to 20 years ago.  When the area was first mined, no surface
mining regulations, either State or Federal, existed.  Accordingly, no reclamation of the area occurred after the original
mining operations.  When Applicant obtained a permit, therefore, the area consisted entirely of orphan mines from
which highly acidic water flowed.  Prior to Applicant's surface mining operations, the pH level of the surface water
flowing from the area was between 2.8 and 3.2 (Tr. 95).   

  Since obtaining a permit, Applicant has conducted surface mining operations only on a portion of the area.  The
balance of the area essentially remains in the same condition as before the permit was issued.  Eventually, Applicant will
conduct surface mining operations on all but 10 or 12 acres of the entire area encompassed by the permit.  As current
mining progresses, Applicant is reclaiming the land.  This reclamation, in effect, eliminates the orphan mines as well as
the effects of Applicant's current mining operation.  When Applicant has completed mining operations, the entire permit
area, with the exception of the 10 or 12 acres which Applicant does not intend to disturb, will be reclaimed and the prior
existing orphan mines will be eliminated.   

{3}  On June 15, 1978, Applicant's surface mine was inspected by Respondent's inspectors.  The inspectors found two
sedimentation ponds at the mine.  Only surface water coming from the area which Applicant has mined or otherwise
disturbed flows into pond No. 1. Pond No. 4 collects surface water coming from pond No. 1 as well as water which
flows from the remainder of the permit area.  Water flowing from pond No. 4 eventually enters Wolf Creek.   

 The inspectors tested water flowing from pond No. 4 and found that this water did not meet the pH standards of 30
CFR 715.17(a).  Water leaving pond No. 4 had a pH of 4.5.  Water leaving pond No. 1, however, complied with the pH
standards of the regulation.  The inspectors then issued the subject notice of violation (Tr. 6-12).   

  The parties have stipulated that the water flowing from pond No. 4, without being treated, has a pH of less then 6.0 and
that there are three distinct sources of water which enters pond No. 4.  All water which leaves pond No. 1 enters pond
No. 4.  Other water which enters pond No. 4 comes from previously mined areas which have not been disturbed by
Applicant's current operation.  The third source of water which enters pond No. 4, however, is water which comes from
areas disturbed by Applicant's current operation but which does not pass through pond No. 1 prior to entering pond No.
4.  

   ISSUE 

  The sole issue is whether the effluent limits provided in 30 CFR 715.17(a) apply to water flowing from the entire
permit area or only to water flowing from land disturbed by Applicant.  

   DISCUSSION, FINDINGS AND CONCLUDIONS  

  The subject regulation, 30 CFR 715.17(a), provides in part: "All surface drainage from the disturbed area * * * shall
be passed through a sedimentation pond or a series of sedimentation ponds before leaving a permit area.  Sedimentation
ponds shall be retained until drainage from the disturbed area has met the water quality requirements of this section * *
*." (Emphasis added.) Under the subject regulation, discharges from areas disturbed by surface coal mining and
reclamation operations must have a pH effluent limitation within the range 6.0 to 9.0.   

{4}  Applicant contends that there is no violation of 30 CFR 715.17(a) because water flowing from pond No. 1 meets
the pH standards of the regulation.  4  Respondent contends that the standards of the regulation were violated because
the pH level of water flowing from pond No. 4 was below the pH standards specified by the regulation.   

  The regulation under which the notice of violation was issued, 30 CFR 715.17(a), distinguishes between the permit
area and the disturbed area.  Accordingly, I must conclude, from the language of the regulation, that the water quality
standards and effluent limitations specified by the regulation are applicable only to surface drainage from areas
disturbed by Applicant.  In the present situation, water which flowed from the area disturbed by Applicant's surface
mining operation and which flowed through pond No. 1 met the standards of the regulation.  There are two places on the
land disturbed by Applicant, however, from which water flows without first going through pond No. 1.  This water does
not meet the standards of the regulation and constitutes approximately 2 to 5 percent of all water flowing from the
disturbed area.  Accordingly, I find that the notice was validly issued as to this water which flows from land disturbed by
Applicant and which does not meet the standards of the regulation.  Water flowing from the remainder of the permit area
came from land which had not been disturbed by Applicant and I find that Applicant is not responsible for the condition
of water which flows from this undisturbed land.   

  Finally, it should be noted that as a result of current mining operations, the total permit area is left in a condition better
than it was before the permit was granted. Before Applicant began mining operations, the pH level of water coming
from the permit area was between 2.8 and 3.2, whereas the current pH level of water flowing from the permit area is
4.5.  

   ORDER  

  Notice of Violation No. 78-II-4-3, June 15, 1978, is affirmed to the extent that it applies to the 5 percent of water
coming from the disturbed area which does not meet the standards of 30 CFR 715.17(a).  

L. K. Luoma, 
Chief Administrative Law Judge