THE OHIO VALLEY CO. CONSTRUCTION DIVISION, INC. v OSM;  Docket No. IN 9-13-R (November 5, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: THE OHIO VALLEY CO. CONSTRUCTION DIVISION, INC., Applicant v OFFICE OF SURFACE
MINING RECLAMATION AND ENFORCEMENT (OSM), Respondent

DATE: November 5, 1979  

CASE-NO: Docket No. IN 9-13-R

PROCEEDING: Application for Review, Notice of Violation No. 79-III-006-27  

COUNSEL: James G. Tyler, Esquire, P.O. Box 100, Tell City, Indiana, for Applicant; Carol Baca, Esquire, Assistant
Solicitor, U.S. Department of the Interior, Washington, D.C. for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: BACKGROUND  

   In accordance with section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), The Ohio
Valley Company Construction Division, Inc., applicant, applied on April 20, 1979 for review of a notice of violation
issued by the Office of Surface Mining Reclamation and Enforcement, respondent, under section 521(a) (3) of the Act.  

   A hearing was held for the above stated purpose before the undersigned on August 29, 1979 in Evansville, Indiana.A
schedule for the submission of posthearing briefs was established and all such briefs have now been received.  

   FACTS

   The surface mine in question is The Ohio Valley Company Construction Division, Inc.'s Knox #5 Mine located in
Knox County, Indiana and bears permit No. 78-92.  

    {2}  On April 10, 1979 OSM conducted an inspection and on the following day issued Notice of Violation No. 79-III-006-27 citing three violations: (1) failure to handle subsoil as required (Dozer was pushing subsoil over highwall to
be buried in the pit) in violation of 30 CFR 715.16; (2) failure to pass all drainage from disturbed area through
sedimentation ponds in violation of 30 CFR 715.17.  Remedial action required was to divert all runoff and pump water
into silt basins; (3) failure to maintain treatment facilities, (Silt basin is completely full and washing out - also diversion
structures are silted in.) in violation of 30 CFR 715.17.  Remedial action required was to enlarge silt basin to provide
adequate silt storage and to also rework diversion structures that have silted in.  Time for abatement of this notice of
violation was May 7, 1979.  

     On July 10, 1979 a joint motion to dismiss violation No. 1 of Notice of Violation No. 79-III-006-27 was filed by the
parties.  This tribunal entered an Order vacating said violation No. 1 of Notice of Violation No. 79-III-006-27 on July
11, 1979.  

   ISSUES

   Applicant in its posthearing brief has stated the issues to be the following:  

     (1) Whether violation No. 2 of Notice of Violation No. 79-III-006-27 should be vacated becuase the applicant was
not properly notified of said violation.  

     (2) Whether violation No. 3 of Notice of Violation No. 79-III-006-27 should be vacated or terminated because of
applicant's physical impossibility to comply with said regulation without violating 30 CFR 717.20.  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

   I make the following findings of fact:  

     (1) On April 10, 1979 Mr. Gene Robinson, an authorized representative of the Secretary of Interior made an
inspection of applicant's Knox #5 mine, beginning at approximately 3:30 p.m. (Tr. 11; Exh. #1).  

     (2) On the southeast portion of the mine site, Mr. Robinson found, adjacent to a coal stockpile and a coal crusher, a
small pit partially filled with water.  This area served as a coal processing area.  (Tr. 13, 14, 17; Exh. #2, #3 & #4).  

     (3) A pump had been installed at the edge of the pit but was not observed to be in operation at the time of inspection;
the pump's hose extended towards an adjacent field (Tr. 13, 14; Exh. #2 & #3).  

    {3}  (4) Tracks beginning at the end of the pump hose and the wetness of the ground around those tracks indicated
that applicant had recently been pumping water out of the pit and into the adjacent field (Tr. 13-16, 42-43, 46; Exh. #2 -
#5).  

     (5) Rain water could not have formed the tracks because the tracks occurred only in an isolated area, in a trail which
started directly below the end of the pump hose (Tr. 13-16, 42-43, 45-56).  

    (6) Applicant had constructed a sedimentation pond on the southwest portion of the mine (Exh. #13).  

     (7) The tracks made by the water pumped from the pit indicated that the pumped water bypassed the sedimentation
pond which was located on the southwest portion of the mine site and flowed off the applicant's permit area (Tr. 13-16,
42-43, 45-46, 48, 103).  

   (8) Terraces, which were located to the south of the pit, failed to carry the pumped water to the sedimentation pond
(Tr. 101).  

     (9) On the northeast portion of the mining site, close to the northern boundary of the permit, applicant had
constructed a diversion ditch just below and parallel to a farm ditch (Tr. 13, 17-18, 47-48; Exh. #6 - #13).  

    (10) Applicant's diversion ditch led to a sedimentation pond located in the northeast corner of the permitted area (Tr.
13, 17-18, 21; Exh. #13).  

    (11) Drainage from a topsoil stockpile was flowing into applicant's diversion ditch (Tr. 21-23, Exh. #6 & #8).  

     (12) Applicant's diversion ditch had become silted in and had breached in several spots, causing the water that had
flowed into the diversion ditch to escape into the adjacent farm ditch and flow off the permit area (Tr. 13, 17, 21, 23-24,
29, 49, 105; Exh. #6 - #13).  

     (13) The drainage flowing into the diversion ditch was escaping from the permit area before it could be routed into
the sedimentation pond located in the northeast corner of the permit (Tr. 24-25; Exh. #6 - #13).  

     (14) The purpose which a sedimentation pond is supposed to serve is the storage of water for a period long enough to
allow the settling out of solid particulates (Tr. 29).  

     (15) The pond in the northeast corner of the permit area had ceased to function effectively as a sedimentation pond,
in that it had filled up with sediment and no longer had any holding capacity (Tr. 26-30, 106; Exh. #12).  

     (16) A State inspection report, from the Indiana Department of Natural Resources, had previously notified Ohio
Valley that the pond in the northeast corner of the permit was no longer functioning as a sedimentation pond because of
the large amount of silt which it contained (Tr. 26-37; Exh. #14).  

    {4}  (17) Respondent made no tests on the date of the inspection to determine the effluent characteristics of any water
which left the permit area of applicant (Tr. 37).  

      (18) Between March 21, 1979 and April 10, 1979 - 4.31 inches of rain fell at the Knox County Weather Recording
Station which is approximately 16 miles away from the mine site (Tr. 53).  

    (19) Seeding around the ponds had occurred in September of 1978 (Tr. 62).  

     (20) Exhibits #6 and #12 of respondent show grass existing on the mine site of applicant which had been seeded
earlier by applicant for the purpose of revegetating in and around the established sedimentation pond (Tr. 62-63).  

    (21) It was muddy at the mine site on the day of inspection (Tr. 37).  

    (22) Not all types of equipment could have operated on the mine site on the day of inspection (Tr. 40-41).  

    (23) If equipment was used on the day of inspection it would have destroyed a portion of any area seeded (Tr. 41-42). 


    (1) Notification of violation  

   Section 521(a) (5) provides in part:  

     Notices and order issued pursuant to this section shall set forth with reasonable specificity the nature of the violation
and the remedial action required, the period of time established for abatement, and a reasonable  description of the
portion of the surface coal mining and reclamation operation to which the notice or order applies.  

     Applicant contends: that the notice of violation was mailed to applicant on April 11, 1979 and respondent did not
advise the employees at the mine site as to what the allegations were (Tr. 35, 74, 75) or any representative of applicant
by telephone until May 18, 1979 (Tr. 38, 39, 89-93) and; that violation No. 2 was not sufficiently described with
specificity to adequately apprise applicant of the violation and of the required remedial action (Exh. R #1).  Applicant
argues: Said notice failed to indicate the precise section of the mine site to which the notice applied in that it said it
applied to "entire operation" instead of the northeast and southeast section of the mine site and the sedimentation ponds
in those sections and; the remedial action required was stated to be the diversion of all runoff and pump water into the
silt basins but it did not indicate that applicant was to construct a ditch running from the southwestern edge of the
holding pond in the southeastern portion of the mine site to the sedimentation or infiltration impoundment in the
southwestern corner of the mine site.  

    {5}  Further applicant contends that this is not merely a matter of administrative adjudication but rises to the level of
constitutional due process.  Applicant also asserts that respondent has failed to prove that all drainage from the disturbed
area failed to pass through a sedimentation pond in that respondnet's Exhibit #5 allegedly showed sedimentation
southwest of applicant's pond in the southeastern portion of the mine permit area (Tr. 16, 107) but inspector Robinson
admitted that vegetation shown on applicant's Exhibits E, F, and G could not grow in an area where sediment had been
deposited (Tr 108-109).  

      Respondent contends that while the provision violated is cited as 30 CFR 715.17 it should more properly include
subsection (a).  Also the notice of violation (Exh. R #1) includes an OSM inspection report which on page 1 further
explains the nature of the violation as follows: "All drainage from your disturbed area is not passing through silt basins.
Water has been pumped from stockpile area which did not enter your silt basin." Additionally applicant had received a
copy of an Indiana inspection report dated March 27, 1979 (Exh. R #14).  This report notified applicant of the
ineffectiveness of the sedimentation pond on the northeast corner of the mine.  Also applicant's own witness testified
that vegetation shown on applicant's Exhibits E. F and G would not have been prevented by the occurrence of violation
No. 2 (Tr. 115-116).  

      Hopefully I can go to the heart of the alleged violation and thereby make a discussion of other relevant matters
unnecessary.  At the hearing in response to my questions inspector Robinson answered: that pumping from the "pond"
would go off the permitted area (Tr. 105); that the "pond" caught the runoff from the area and held it long enough for
them to pump it rather than let it escape naturally (Tr. 106); that it was catching some of the coal fines (Tr. 106); that
the pumped water should have been routed into their sediment structure (Tr. 106); that it was not functioning as a
sedimentation pond (Tr. 107); that had it so functioned that would have been all that was required (Tr. 107) and; that it
wasn't so functioning because the stained grass indicated the effluent criteria had not been met (Tr. 107).  

      Applicant followed this on recross examination to show through inspector Robinson: that if effluent criteria were not
met good vegetation would not be possible (Tr. 108); that applicant's Exhibit #E, #F and #G display satisfactory cover
with respect to a reclamation operation (Tr. 108) and; that if effluent standards were not being met on this ground such
cover would not be possible (Tr. 108-109).  Applicant's Exhibits #E and #F are of the area where the water runoff was
and Exhibit #F pictures the same tree shown in Mr. Robinson's Exhibit #5 (Tr. 110-111).  The time difference between
respondent's Exhibit #5 and applicant's Exhibits #E and #F is six weeks.  

     {6}  The violation charged is "Failure to pass all drainage from disturbed area through sedimentation ponds". 
Further I accept respondent's argument presented in its posthearing brief:  

      In the alternative, OSM would argue that the conditions and activities on the southeast corner of the mine site and the
conditions and activities on the northeast portion of the mine site constituted two entirely separate and distinct "physical
events." The dewatering on the southeast portion was in no way connected with the siltation problems and escape of
water on the northeast portion.  Therefore, OSM submits that violation No. 2 relates only to the conditions on the
southeast portion of the mine site, and violation No. 3 relates only to the conditions prevailing on the northeast portion
of the site.  

   However I do not agree with the following argument of respondent in its reply brief:  

      With respect to violation No. 2, applicant stated at page four of its brief that "vegetation shown by applicant's
Exhibit #E, #F, and #G could not grow in an area where sediment had been deposited." Applicant's own witness
admitted that the occurrence of violation No. 2 on the southeast portion of the mine would not have prevented the
growth of the vegetation depicted in applicant's Exhibits #E, #F, and #G.  (Tr. 115 - 116).  

      Applicant's witness Kirchoff did not admit that the drainage failed to pass through a sedimentation pond.  He spoke
of water and terraces but not of pumped water which failed to meet the effluent criteria.  Here it is apparent from
applicant's Exhibits #E, #F and #G and from Mr. Robinson's testimony regarding same that the so-called holding pond
was in fact effectively functioning as a sedimentation pond.  

      I find that as to violation No. 2 respondent has failed to establish a prima facie case of failure by applicant to pass all
drainage from the disturbed area through a sedimentation pond.  This burden is imposed upon OSM by 43 CFR
4.1171(a).  

   (2) Physical impossibility to accomplish required remedial action.  

     {7} Applicant contends that with respect to violation No. 3 - failure to maintain treatment facilities - it has been
placed in an inextricable position. The testimony of Mr. Walls and Mr. Kirchoff on behalf of the applicant at the hearing
indicated that the mine site had received a large amount of rainfall immediately prior to the date of respondent's
inspection of April 10, 1979. Additionally, Mr. Kirchoff testified that this precipitation left the terrain so damp that any
attempt by applicant to have the necessary equipment brought to  the site in order to repair the sedimentation pond in the
northeastern portion of the site as well as the diversion ditch leading to it would result in the destruction of vegetation
which had grown subsequent to the applicant's seeding pursuant to 30 CFR 717.20.  Thus full compliance with the
interim regulations was impossible.  

      Impossibility of compliance is no excuse for failing to meet the environmental standards required by the Surface
Mining Control and Reclamation Act of 1977.  30 CFR 722.17(a) is quite explicit: "Neither a notice of violation nor a
cessation order issued under this part may be vacated because of inability to comply." Also see In Re Surface Mining
Regulation Litigation, 452 F. Supp. 327, 338-339 (D.D.C. 1978), in which the court stated: "Throughout the Act
Congress made it clear that the only alternative that the operators had was to comply or not conduct operations."  

      If weather conditions made timely compliance with the required remedial action impossible then an extension of
time could have been arranged.  This however is irrelevant as to whether a violation existed on the date the notice of
violation was issued.  "Failure to maintain treatment facilities" is by its very wording a continuing violation.  The silt
basin did not become "completely full" nor the diversion structures "silted in" overnight.  Periodic attention to the
treatment facilities would have prevented their deteriorating to such state that a notice of violation was required.  

      I find that violation No. 3 was validly issued.  Proposed findings of fact and conclusions of law not otherwise
incorporated herein are hereby denied.  

   ORDER  

   Violation No. 2 of Notice of Violation No. 79-III-006-27, April 11, 1979 is vacated.  Violation No. 3 of said notice of
violation is sustained.  

      This decision may be appealed in accordance with 43 CFR 4.1271 by filing a notice of appeal within 30 days from
receipt of this decision with the Board os Surface Mining and Reclamation Appeals, U.S Department of the Interior,
4015 Wilson Boulevard, Arlington, Virginia 22203.