SAHARA COAL CO., INC. v OSM; Docket No. IN 9-10-P (November 14, 1979)

TYPE: ALJ Hearing: Decision  

NAME: SAHARA COAL CO., INC., Petitioner v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 14, 1979  

CASE-NO: Docket No. IN 9-10-P  

PROCEEDING: Civil Penalty Proceeding, Cessation Order No. 78-III-005-4 and 78-III-005-3  

COUNSEL: Charles R. Jelliffe, Esquire, 198 East Walnut, Harrisburg, Illinois 62946, for Petitioner; Carol Baca,
Esquire, Office of the Solicitor, Division of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240,
for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: 

BACKGROUND  

   Sahara Coal Co., Inc., petitioner, in accordance with Section 518 of the Surface Mining Control and Reclamation Act
of 1977 (the Act), petitioned on March 30, 1979 for review of a notice of proposed civil penalty assessment issued by
the Office of Surface Mining and Reclamation, respondent. Contemporaneous with the filing of its petition the petitioner
in accordance with the requirements of 43 CFR Section 4.1152(b) (1) paid the full amount of the proposed civil penalty
(5,600.00) to the Assessment Office, Office of Surface Mining to be placed in an escrow account pending a final
determination of the proposed assessment.  

   A hearing was held before the undersigned in Evansville, Indiana, on August 29, 1979.  

   FACTS

    {2}  This Office of Surface Mining issued Cessation Order No. 78-III-005-3 on November 13, 1978 and Cessation
Order No. 78-III-005-4 on November 21, 1978 both on Sahara Coal Co., Inc.'s Mine #6, State Permit No. 545-79, in
Saline, Illinois.  Violation No. A of Cessation Order No. 78-III-005-3 alleged that applicant in violation of 715.19 of the
Rules and Regulations of Public Law 95-87 blasted within 1000 feet of dwellings.  Violation No. 1 of Cessation Order
No. 78-III-005-4 alleged that applicant in violation of 502(a) of the Act of Public Law 95-87 operated without a permit. 
Violation No. 2 thereof alleged that applicant in violation of 716.17(g) (1) of the Regulations of Public Law 95-87,
failed to properly remove and handle "B" soil horizon.  The remedial action required for Violation No. A of Cessation
Order No. 78-III-005-3 was to cease blasting within 1000 feet of dwellings and to do so by November 13, 1978. The
remedial action required for Violation No. 1 of Cessation Order No. 78-III-005-4 was to cease all disturbance north of
State Permit 545-79 by 6:00 p.m. on November 21, 1978, except for reclamation of the disturbed area; the remedial
action required for Violation No. 2 of the same Order was to cease removal of prime farmland soils north of State
Permit 545-79 by 6:00 p.m. on November 21, 1978.  

      Proposed assessments for the above violations were issued in the amounts of $3,500.00, $4,000.00 and $3,700.00
respectively on December 14, 1978. Pursuant to 30 CFR 723.17 petitioner requested an informal conference to review
these proposed assessments and such conference was held on February 6, 1979 at which time said assessments were
lowered from $3,500.00 to $1,500.00, from $4,000.00 to $2,200.00, and, from $3,700.00 to $1,900.00.  Petitioner then
petitioned fro a review of these reduced proposed assessments.  

   ISSUE  

   Is the violation of blasting within 1000 feet of dwellings nullified by the facts of this case?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

     Two important orders had been entered prior to the hearing. Petitioner's motion for summary relief for failure of
respondent to answer within 30 days was denied.  Another order concluded that 30 CFR 723.16(b) is not mandatory but
directory only and that therefore the proposed assessment issued with respect to Cessation Order No. 78-III-005-3 is not
void even though served more than 30 days after the issuance of the cessation order.  Thereafter, for good cause,
petitioner was granted additional time within which to reply to the brief of respondent on this matter.  Prior to the
hearing, petitioner did file such reply brief and at the hearing respondent was afforded the opportunity to respond to such
brief.  Subsequently respondent advised that it would not exercise its option to submit another brief.  Both of the above-mentioned orders are hereby confirmed.  

    {3}  Following the presentation of respondent's case as to Cessation Order No. 78-III-005-3 the parties announced
that they agreed and stipulated: that as to Violation No. 1 of Cessation Order No. 78-III-005-4 the amount of the
assessment should be reduced from $2,200.00 to $1,900.00 - which petitioner agrees to pay (Tr. 80) and; that as to
Violation No. 2 of said cessation order, OSM has agreed to dismiss and withdraw such violation (Tr. 80).  This
agreement and stipulation appears proper and not contra to public interest so is therefore accepted.  

   (1) Blasting within 1000 feet of dwellings.  

   Section 715.19(e) (1) (vii) of 30 CFR provides:  

     "(e) Blasting procedures.  (1) General...(vii) Except where lesser distances are approved by the regulatory authority
(based upon a preblasting survey or other appropriate investigations) blasting shall not be conducted within -  

   (A) 1,000 feet of any building used as a dwelling, school, church, hospital, or nursing facility;"  

     OSM inspector Marvin Utsinger testified: That the OSM office had received a call from Mr. Butler who advised that
Sahara Coal Company was blasting within 500 feet of his house (Tr. 22-23, 58); that he inspected the mine in question
on November 13, 1978 (Tr. 18); that he talked with the blasting foreman, George Teegarden, who indicated the closest
charge was 345 feet to  the nearest house (Tr. 24) and that he was aware that the company didn't have a variance and
they were continuing to shoot as they had in the past (Tr. 60); that Mr. Teegarden said the minimal amount of powder at
the closer holes was 200 pounds (Tr. 60); that this is approximately five to six times the amount of explosives that can
be shot safely within the distance of 350 feet (Tr. 60); that the distance of the charge nearest a dwelling measured to be
approximately 360 feet (Tr. 24) and; that he issued Cessation Order No. 78-III-005-3 (Exh. #1, Tr. 25).  He said that
there were 42 blast holes some of which were shown on Exhibit #2 along with the Butler garage (Tr. 29).  

      OSM inspector Keith Shank testified that he too inspected the mine site on November 13, 1978, took the
photographs which are Exhibits #2, #3 and #4 (Tr. 68), and that such exhibits evidence blasting prior to the holes
reflected in the exhibits (Tr. 71).  

      Petitioner argues that in fact a variance was later granted for the 42 blast holes discovered on the date of inspection. 
Mr. Utsinger testified: that the variance was given for reason of safety because the holes were loaded (Tr. 39); that the
variance specifically said the Company was in violation of shooting within 1000 feet without a variance (Tr. 43,61); that
other holes shot after May third were also closer than a 1000 feet (Tr. 43); that there was no variance for the blasting on
the 28 separate occasions mentioned in Exhibits 6 and 7 (Tr. 61-62).  Inspector Keith Shank testified: "They were
issued an order by the State to detonate the holes in question on November 13th, of which they had to comply, and
subsequent were issued a variance for blasting within a thousand feet." (Tr. 74); that the shots in question on November
13, 1978 were covered by an order from the State which required "that those holes be shot under the supervision of the
state representative and a seismograph present" (Tr. 76); that: "The variance which was granted was for a scale distance
factor of D over 50 square.  And these holes were loaded far beyond what the variance granted by the State would
allow." (Tr. 78).  

     {4}  The violation charged was "blasting within 1000 feet of dwellings". Exhibit #7 lists dates from May 9, 1978
through October 27, 1978, 28 in number, wherein blasting occurred within 1000 feet of a dwelling.  Exhibit #6 is a
report of the inspection and provides additional helpful facts.  Petitioner's application for a variance was June 15, 1978. 
Nineteen of the blasting dates were after the application for a variance.  Nine days of blasting were prior to June 15,
1978 and subsequent to the effective date of the Act.  

     Petitioner does not contend that blasting did not occur within 1000 feet of a dwelling (Tr. 64).  It does contend,
however, that it had applied for a variance from the regulatory authority and that subsequently one was granted. This, it
argues, the Administrative Law Judge should accept as a variance nunc pro tunc.  Unfortunately I do not have before me
a "Variance" to consider and/or accept.  Petitioner presented no evidence at the hearing.  The variance is its defense yet
not only did it not introduce it but successfully objected to the belated introduction by respondent (Tr. 87-89).  I believe
from Mr. Shank's testimony that the State of Illinois in all probability issued two documents - an Order to Detonate and
a Variance.  Such Order to Detonate would be a command to alleviate a dangerous situation and in no way synonymous
with "variance". Blasting, under order or by permission is dangerous.  Its potential for injury and/or damage is great. 
The interim regulations recognize this fact and specifically provide that "blasting shall not be conducted - within 1000
feet  of...a dwelling" except where a lesser distance is approved by the regulatory authority based upon a preblasting
survey or other appropriate investigations. Such lesser distances must be approved before blasting if the public is to be
protected.  The filing of an application is not approval.  Expectation of approval is not approval.  Filing and expectation
cannot be substituted for survey and investigation.  Therefore an eventual approval of a lesser distance is prospective
only and does not nullify past violations.  And here there were nine days of blasting violations which occurred even prior
to the date of application for a variance (Exh. #7).  

      I find from the evidence that petitioner blasted within 1000 feet of dwellings without approval from the regulatory
authority and that its practice of so blasting created an imminent danger to the safety of the public.  I further find that the
respondent established a prima facie case and that petitioner introduced no evidence.  I conclude that the cessation order
was validly issued.  

     {5}  Petitioner denied that there was a violation or that a penalty should have been assessed.  The amount of the
penalty as such was not contested (Tr. 7).  OSM is required to assess a civil penalty for each violation contained in a
cessation order.  Here as a result of a conference the penalty assessment was reduced to $1,500.00 and since such
amount is not contested I therefore accept it.  Furthermore I accept and adopt the assignment of points by OSM which
converts to such penalty.  

   ORDER  

      Violation No. A of Cessation Order No. 78-III-005-3, November 13, 1978 is sustained and the civil penalty
established at $1,500.00.  Violation No. 1 of Cessation Order No. 78-III-005-4, November 21, 1978, is sustained and
the civil penalty is reduced from $2,200.00 to $1,900.00 with the difference of $300.00 to be returned to petitioner. 
Violation No. 2 of said Cessation Order No. 78-III-005-4 is hereby vacated and the proposed assessment of $1,900.00
is directed to be returned to petitioner.  The amount to be returned to petitioner - $300.00 plus $1,900.00 or $2,200.00
is the remainder of the penalty assessment which has been held in an escrow account and is to be returned with interest
at the rate of six percent or with interest at the prevailing Department of the Treasury rate, whichever is greater.  

      This decision may be appealed in accordance with 43 CFR 4.1270 by filing a petition for discretionary review
within 30 days from receipt of this decision with the Board of Surface Mining and Reclamation Appeals, U.S.
Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203.