JIM WALTER RESOURCES, INC. v OSM; Docket No. NX 9-46-P (November 7, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: JIM WALTER RESOURCES, INC., Petitioner v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 7, 1979  

CASE-NO: Docket No. NX 9-46-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 79-II-14-27, No. 3 Mine  

COUNSEL: APPEARANCES: H. Thomas Wells, Jr., Esq., 1900 First National-Southern Natural Building,
Birmingham, AL 35283 and Robert W. Pollard, Esq., P.O. Box C-79, Birmingham, AL 35283, for Petitioner; Charles
P. Gault, 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  518 of the Surface Mining Control and Reclamation Act of 1977 (the Act) Jim Walter
Resources, Inc., Petitioner, applied on July 26, 1979 for review of a notice of proposed civil penalty assessment issued
by the Office of Surface Mining Reclamation and Enforcement, Respondent.  The proposed assessment was based
Notice of Violation No. 79-II-14-27.  Contemporaneous with the filing of its application the Petitioner in accordance
with the requirements of 43 CFR  4.1152(b)(1) paid the full amount of the proposed civil penalty ($1200) to the
Assessment Office, Office of Surface Mining to be placed in escrow pending a final determination of the proposed
assessment.  

   A hearing was held before the undersigned in Birmingham, Alabama on October 19, 1979.  At the conclusion of the
hearing both the Petitioner and the Respondent waived their rights to file proposed findings of fact and conclusions of
law and each of them asked that a final decision be rendered immediately.  

   Thereupon, the undersigned rendered a decision wherein the notice of violation was sustained in its entirety, but the
proposed civil penalty was reduced from $1200 to $420.  {2}
 
   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.  

   ORDER  

   It is therefore ordered that the proposed civil penalty assessed against the Petitioner be reduced from $1200 to $420
and that the sum of $780 with  interest at the rate of six percent or with interest at the prevailing Department of Treasury
rate, whichever is greater, be remitted to the Petitioner.  

   This decision and order may be appealed in accordance with 43 CFR  4.1270 by filing a petition for discretionary
review within 30 days of the receipt of this decision and order 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)  

   H. Thomas Wells, Jr., Esq., 1900 First National-Southern Natural Building, Birmingham, AL 35283  

   Robert W. Pollard, Esq., P.O. Box C-79, Birmingham, AL 35283  

   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  

   APPENDIX 1  

   JUDGE TORBETT: All right.  This is the final opinion in the case.  

   There is no question that the evidence sustained the fact of violation.  You can't use a pond off your property to catch
sediment unless you regulate the ph when the water comes out, or else you will destroy the regulatory scheme altogether. 
It's impossible for the Government to regulate this if you are allowed to do this.  

   Now, the evidence -- by great preponderance of the evidence, the Government has established a case that there was a
violation of the particular regulation.  

   This, I might add it, is established by the testimony, not only by the witnesses of the Government, but also by the
witnesses of the Applicant.  I'm inclined to believe there are no conflicts in the testimony. That everybody swore the
truth.  Now, the only question is about the penalty.  It's very difficult for me to assess a penalty, but in looking at the
situation, and looking at the amount of sediment that actually left this area -- It seems to be relatively small.  Keep in
mind, also, it happened in the beginning of the enforcement of act [sic] and the sediment was going into a pond and
settling out.  At least a majority of it.  It's still a violation because it wasn't on their property.  When we consider the
overall damage to the environment, both the probability of occurrence and the extent of potential actual damage, I don't
think the violation warrants the 24 points.  The probability of occurrence, because of the overall nature of the situation --
I'm going to reduce to 9 points.  The extent of potential actual damage, I'm going to reduce to 9  points.  Now, as to the
negligence involved, I can't quarrell with what OSM has done.  So, the eight points stands for negligence.  Of course,
there isn't any history for previous violations.  

   Now, as to good faith, the regulations states after it sets up the criteria for good faith, it says, "If the consideration of
this criteria is impractical because of the length of the abatement period, the assessment may be made without
considering the criteria.  Any such assessment may be reconsidered upon the permittees request after abatement is
completed".  So, unfortunately, it puts the burden on you to ask for good faith to be considered.  It's important because,
at the assessment level if it comes out less than 30 points, then there is no penalty assessed.  

   I take the position, though, that once I get to this hearing that I'm required to go by the formula and I don't have the
same discretion that they have in not assessing the penalty.  I feel there was good faith exhibited that should have gotten
some credit in this case.  Even though they didn't shut down the mine, it calls for extraordinary efforts, not just ordinary
efforts.  Still, you were using overtime and it was rapid compliance, I feel like you did exhibit good faith or rapid
compliance which entitles you to some credit.  

   I feel in a case of this type that a maximum credit would be ten points. That would be where they would close their
mine and use the people to correct the violation.  But, where they use overtime on weekends, I think it's worth five
points for their rapid compliance.  I think the evidence has established that here today.  

   So, nine and nine are eighteen, eight is 26 minus 5 is 21 points.  That sets a civil penalty of four hundred and twenty
dollars, which, even though the assessment office might not have assessed the penalty, I take the position that I'm not
going to exercise their discretion at this level.  Perhaps, some day I will receive more guidance to where I feel I can
exercise that discretion.  

   The final judgment is that the great preponderance of the evidence establishes the fact that the violation.  The civil
penalty that was set on the basis of 21 points is four hundred and twenty dollars.  Which means the balance with interest
at the prevailing rate is now 14 and one-half per cent interest -- will be returned to the petitioner  

   MR. WELLS: Your Honor, when we do get that refund will there be a breakdown on how that was calculated?  

   JUDGE TORBETT: No, you'll just get a check.  You'll get a copy of this though.  In other words, what I'll do; I'll
excerpt what I just said, I'll put a little confirming order and attach it to it and that will be the order that directs them to
pay, and you will have a copy of that which will have my breakdown on it.  

   If there is nothing further, then, this case is closed.  

   (Whereupon, the above entitled matter was concluded.)