COACH COAL CO., INC. v OSM; Docket No. NX 9-51-P (November 7, 1979)

TYPE: ALJ Hearing: Decision  

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

DATE: November 7, 1979  

CASE-NO: Docket No. NX 9-51-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 79-II-23-6, Cessation Order No. 79-II-23-1  

COUNSEL: APPEARANCES: Bobby Leach, Treasurer, Coach Coal Company, Inc., P.O. Box 498, Oliver Springs,
TN 37840, 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) Coach Coal
Company, Inc., Petitioner, applied on August 8, 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-23-6 and Cessation Order No. 79-II-23-1.  Contemporaneous with the filing of its petition
the Petitioner in accordance with the requirements of 43 CFR  4.1152(b)(1) paid the full amount of the proposed civil
penalty ($12,600) 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 Knoxville, Tennessee on October 22, 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 order of cessation, the notice of violation and the separate
violations contained therein were sustained.  The undersigned further found that the proposed civil penalty of $12,600
should remain unchanged. {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 cessation order, the notice of violation and the separate violations contained therein are
sustained and the proposed civil  penalty assessed against the Petitioner in the amount of $12,600 is sustained.  

   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)  

   Bobby Leach, Treasurer, Coach Coal Company, Inc., P.O. Box 498, Oliver Springs, TN 37840  

   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: It is my opinion that all of the violations are sustained not only by the proof of the -- the
Government, but by the testimony of Mr. Leach, himself; there is no question about it as far as the violations are
concerned.  

   The lack of a permit, I don't see how he could apply the point system any other different -- any other way than they
have done it, which was, of course, assess the maximum.  As I understand it, the maximum being in the absence of the
history of any previous violations; and, there is no reason to consider good faith where you are mining without a permit.  

   So, the civil penalty as assessed for mining without a permit, I believe is sustained by the -- by the evidence and the
point system has been properly applied.  

   Now, the other violations in the Notice of Violation are all sustained by the evidence.  The Violation Number -- Well,
let me get them out and go through them one at a time.  

   (Short pause)  

   Failure to have the signs, I think the evidence sustains the fact that Coach Coal was doing the mining.  I will say this
that I would advise the Inspector he should charge everybody he can reasonably charge on one of these things and you
can just reduce the charge later on and then there is going to be an argument at every Hearing now about who -- who --
did you charge the proper person, and of course, don't charge anybody that you don't have reason to believe that they are
a part of it because then you will get sued; but it is my way of thinking, you should have left -- when you have a wildcat
operation, you should charge the individual miners there because they are certainly responsible.  

   The signs weren't there.  They are very significant and I see no reason to upset the points that have been assessed for
the failure to have the signs, which was 15 for obstruction enforcement and 25 for negligence.  

   The next one is the topsoil.  Now, the Conference Officer has already reduced that from 15 to 8 because the evidence
did show that the land is probably going to re-vegetate anyhow and that's the testimony here today.  Since it has already
been lowered from 15 to 8, I see no reason to -- to -- to lower it.  

   I still see no defense to the negligence involved, which is 25 points.  

   The next one, the surface drainage, I see no reason to disturb.  There was not adequate sedimentation control just
because there is an old pit a quarter of a mile away that might catch it.  This is still polluting the hydrologic system. The
points assessed by the Assessment Officer, 15 for probability of occurring and 12 for potential or actual damage and 20
for negligence is sustained by the evidence.  Good faith not being the real issue in the case, but I find that the good faith
even when considered is not entitled to any points under good faith.  

   The next violation is the waste material and spoil on the downslope, which was there.  It doesn't do any good to plan
on mining other things later because it has got to be the same high wall, in my opinion.  If you mine one high wall,
you're going to mine another seam and it is not the same high wall, why then the fact that you got -- got dirt on the
downslope is a violation.  If you are going all the way down on one high wall, the way I understand the law, then you
could put dirt over there below that first seam.  You had no permit to show what you were going to do, so as far as I am
concerned, there is no defense.  The probability of occurence is 15 points, no history of previous violations, extent of
potential or actual damage is 8.  It has already been reduced from 12 and I see no justification to reduce it further. 
Negligence has been assessed at 20 and I see no reason to change that.  

   In other words, I really see no defense to this particular suit and I see no reason to change the penalties and that's my
final decision in this case.  

   I will prepare a confirming decision in writing and I will mail it to you.  

   MR. LEACH: Thank you.  

   MR. GAULT: Thank you.  

   (Whereupon, at 2:20 p.m., the above-entitled matter was concluded).