DRUMMOND COAL CO. v OSM; Docket No. NX 9-83-R (November 7, 1979)

 TYPE: ALJ Hearing: Decision 

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

DATE: November 7, 1979  

CASE-NO: Docket No. NX 9-83-R  

PROCEEDING: Applicant for Review, Notice of Violation No. 78-II-17-15  

COUNSEL: APPEARANCES: William B. Long, Esq., P.O. Box 1549, Jasper, TN 35501 and Richard Dick, Esq. P.O.
Box 1549, Jasper, TN 35501, for applicant; 
 
John P. Williams, Esq., Office of the Field Solicitor, 530 S. Gay Street, Knoxville, Tennessee 37901, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

   In accordance with  525 of the Surface Mining Control and Reclamation Act of 1977 (the Act) Drummond Coal
Company, Applicant, applied on July 11, 1979 for review of a notice of violation issued by the Office of Surface Mining
Reclamation and Enforcement, Respondent, under  521(a)(2) of the Act.  A hearing was held before the undersigned
on September 26, 1979 in Birmingham, Alabama.  

   At the conclusion of the Respondent's proof, the Applicant moved to vacate the notice of violation under review
because the proof of the Respondent had shown that the Applicant's tipple operation was not subject to the Act and that
the Respondent had no right to exercise jurisdiction over the operation of the Applicant. Thereupon the undersigned
sustained the motion and ordered that the notice of violation be vacated.  

   CONFIRMATION OF DECISION  

   The decision of the undersigned including the findings of fact and conclusions of law is contained in the verbatim
record made in this case are confirmed by this written decision and order. An extract of the pertinent part of the
verbatim record is attached hereto as Appendix 1.  {2}
 
   ORDER  

   Notice of Violation No. 78-II-17-15 is hereby ordered vacated.  

   This decision may be appealed in accordance with 43 CFR  4.1271 by filing a notice of appeal within 30 days of the
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.  

   David Torbett  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   William B. Long, Esq., P.O. Box 1549, Jasper, TN 35501  

   Richard Dick, Esq., P.O. Box 1549, Jasper, TN 35501  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, P.O. Box 15006, Knoxville,
TN 37901  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240 {49}
 
   [APPENDIX 1]  

   JUDGE TORBETT: All right.  I think that the facts are clear in the case.  I don't see any reason to proceed any
further. Sometimes I might not rule at this stage just to see what the actual evidence of the other side was, but I don't see
{50}
any evidence that you could produce that would change anything.  Of course, if my ruling could be different, I'd let you
go ahead.  

   I'll tell you what I think the law is, and you can find out from the Board what it is, in case you want to know what's
going to happen to you.  I think the law probably means that preparation plants that are physically connected with the
operation are covered.  If they're not physically connected, I don't think they're covered.  

   And when I say "physically connected," I think if the property is -- if they're on the same property.  If they truck the
coal, it still could be physically connected as long as they were over private roads that belong to the company, because I
think the law would have legitimately construed it to mean that that was processing at or near the plant -- at or near the
operation.  

   But there's been nothing presented today that I could possibly overrule the Board.  If you can get the Board to overrule
itself, why certainly it's all right with me.  

   My opinion is, either Judge McQuire's first decision was either right or wrong.  The Board has said it's wrong.  I'm in
no position to overrule the Board.  

   Now, if the plant, as I say, was physically connected -- in other words, if they mined the coal -- Well, like in the case
we tried down here the other day where they used conveyer {51} belts to bring the coal up from the mine -- up to the
processing plant.  In other words, if they just took it right out of the mine into the processing plant.  And that would have
been a fairly easy case, except we weren't trying  that.  They then took it three miles by another conveyer belt, and we
were trying that issue, which, of course, is a very difficult case.  

   It would have been an easy case to determine that that processing plant was part of the operation because the coal
came directly out of the plant.  

   Now, here you put it on trucks and you truck it.  What difference is whether they're processing their own coal or
somebody else's coal.  There's nothing in the legislative history of this Act or in that Board decision which would
indicate that the -- the fact that they were processing their own coal as opposed to somebody else's coal would make a
material difference.  

   In other words, the distinction which you're stating, is a factual difference in the Western case and the one we've got
today.  There's nothing in the Western decision at all which would indicate that the Board would reach a different
decision in this case.  

   In my opinion, it would take judicial legerdemain for them to reach it -- to reach a different decision; and I'll be
curious to see if they do.  

   But that's not up to me to predict what they're going {52} to do.  I have to go by what the law is.  And the law is that
this plant -- at least today, or until the Board changes its mind, or if they change their mind -- the law is that this
particular processing plant would not be covered under the Act.  

   I want to make myself clear on this first issue which we resolved, since this is going to be the final opinion in the case. 
That is that it's my opinion that -- after the assessment conference on a civil penalty proceeding -- that you have a right
to file a petition for review of the civil penalty, even though no penalty is imposed, as long as the violation is sustained at
the assessment conference -- as long as there is something that can be used against the company later; that is, a history
of violations.  

   Now, it's also my opinion that this petition was improperly styled.  The motion properly made was all right; but then
the response to the motion to dismiss set out that, in fact, that it was a civil penalty proceeding and not a notice of
review.  

   So I want my ruling clear for -- since this issue may be taken up, I want that clear for the Board to decide so there
won't be any argument about what I say.  If they say I'm wrong, that's fine.  

   Mr. Williams, do you think I'm clear on my ruling on that?  

   MR. WILLIAMS: Yes, Your Honor, I do.  {53}
 
   JUDGE TORBETT: In other words, I don't mind you appealing this; but if it's going up on the adequacy of what I
said, that's a bit of a problem, because then it will just come right back to me probably to find out what I said.  

   So if you think it's clear, I won't go into it further.  

   MR. WILLIAMS: I do.  

   JUDGE TORBETT: All right. Okay.  What about the whole decision?  Do you think it's clear where it will be
understood, where you cannot argue about the adequacy of the decision, if the case is appealed?  

   If there's anything you'd like for me to go into further, it would be better to do it now, rather than have it sent back, like
they did the case the other day where I have to just write an opinion.  

   MR. WILLIAMS: I don't know if you feel you need to address the other issues raised by the Applicant as to whether
this particular area was subject to State regulations.  

   JUDGE TORBETT: Oh, I think it's subject to State regulation.  I will go into that.  Now, you -- if you want to present
proof to the contrary, we can go further.  But I think, on the basis that the Water Control Law was in effect and my
opinion as a matter of law would be that it is subject to the strip mining laws.  

   I don't think there's any question -- There's no {54} question in my mind about that.  So I feel like that -- and none of
these processing plants are permitted, I don't think.  I don't even think the processing plants that are adjacent to the
permit area are made part of the permit.  

   But I feel like the law is that they're covered under the strip mining law. I may be wrong about that, but that is my
feeling on it.  

   I really can't say that that's an official decision in this case because we really haven't gotten to that issue, I don't
believe.  I believe we -- the case has already failed before that comes up.  

   MR. DICK: Your Honor, if I might say something in that regard, I think it's -- there was no doubt whatsoever in the
Western Engineering case, and really no doubt whatsoever in the Ross Tipple case, that those particular operations were
subject to and being regulated by the State.  The holdings were that those particular operations were not surface coal
mining reclamation operations within the interim rigs, which is what I understand your --  

   JUDGE TORBETT: That's right.  That's right.  They are regulated by the State, but they're -- just like you say, that's
quite right.  

   Okay. Well, the decision is complete.  If there's nothing else to be brought up, why, that closes the hearing.  

   (Whereupon, the hearing in the above-entitled matter {55} was concluded at approximately 12:20 p.m.)