OLD BEN COAL CO. v OSM; Docket No. IN 9-15-P (November 5, 1979)

 TYPE:  ALJ Hearings  

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

DATE: November 5, 1979  

CASE-NO: Docket No. IN 9-15-P  

PROCEEDING: Civil Penalty Proceeding; NOV-No. 79-III-12-1; 79-III-12-2; NMI  

COUNSEL: Robert J. Araujo, Esquire, 125 S. Wacker Drive, Chicago, Illinois for Petitioner; John C. McDowell,
Esquire, Office of the Field Solicitor, U.S. Department of the Interior, Indianapolis, Indiana, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: BACKGROUND  

   In accordance with Section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Old Ben Coal
Company, petitioner, petitioned on June 11, 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 4.1152(b) (1) paid the full amount of the proposed civil
penalty ($2,100.00) to the Assessment Office, Office of Surface Mining to be placed in an escrow account pending a
final determination of the assessment.  

   A hearing was held before the undersigned in Evansville, Indiana on August 10, 1979.  At the conclusion of the
hearing a schedule for the submission of posthearing briefs was established and all such briefs have now been received.  

   FACTS

    {2}  On February 21, 1979 OSM inspectors Andrew R. Gilmore and Gene Robinson, authorized representatives of
the Secretary of the Interior, inspected petitioner's Old Ben Coal Companys' Number 2 Alfred Mine located in Pike
County, Indiana.  The Number 2 Alfred Mine is a surface mine, State Permit No. 78-140 and amendments.  

      At the conclusion of that inspection, acting pursuant to Section 521(a) (3) of the Surface Mining Control and
Reclamation Act of 1977 (the Act), OSM issued to Old Ben Coal Company Notice of Violation No. 79-III-12-1 for
"failure to remove topsoil prior to surface disturbance", a violation of 30 CFR 715.16(a).  It was stated in the notice that
the violation pertained to "new scraper road by erection site and dragline bench next to the erection site hill." The
company was required to "remove all topsoil from any additional areas prior to any future surface disturbance" with an
abatement time of March 7, 1979.  

      Further, as a result of the same inspection, acting pursuant to Section 521(a) (3) of the Act, OSM issued to Old Ben
Coal Company Notice of Violation No. 79-III-12-2 because "discharge from the affected area fails to meet  effluent
limitations", a violation of 30 CFR 715.17(a).  It was stated that the notice of violation pertained to "all discharge
through sediment pond next to erection site hill." The company was required to "take appropriate action to limit the
discharge of suspended solids and iron so that the effluent limitations are met." The operator was given until April 1,
1979 to abate the violation.  

      On March 20, 1979 the OSM Assessment Office sent Old Ben Coal Company a notice of proposed assessment for
Notice of Violation No. 79-III-12-1 in the amount of $1,100.00.  

      On March 21, 1979 the OSM Assessment Office sent Old Ben Coal Company a notice of proposed assessment for
Notice of Violation No. 79-III-12-2 in the amount of $2,500.00.  

      By letters of March 29, 1979, Old Ben Coal Company requested a conference pursuant to 30 CFR 723.17 for Notice
of Violation No. 79-III-12-1 and Notice of Violation No. 79-III-12-2.  

      An assessment conference was held on both notices of violations on May 20, 1979.  The Conference Officer
determined that no change should be made in the proposed assessment of Notice of Violation No. 79-III-12-1 but that
the proposed assessment for Notice of Violation No. 79-III-12-2 should be reduced from 45 to 30 points with a
resulting penalty of $1,000.00.  

   ISSUES

   The issues are:  

   (1) Did discharge from the disturbed area fail to meet effluent limitations in violation of 30 CFR 715.17(a)?  

   (2) Did OSM prove that a civil penalty of $1,000.00 should be assessed for Notice of Violation No. 79-III-12-2?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

    {3}  At the hearing OSM announced as to Notice of Violation No. 79-III-12-1: that the fact of the violation was not
and is not contested by the petitioner; that the petitioner contested the amount of the penalty raising the issue of
entitlement to good faith; that the seriousness was improperly assessed by OSM and therefore the penalty should be
assessed at less than 30 points and; that it would be consistent with the policy of OSM to waive the penalty and the
parties are so agreed.  This agreement appears proper and will be accepted.  

   (1) Discharge from disturbed area.  

   Section 715.17(a) of 30 CFR provides in pertinent part that:  

     "Discharges from areas disturbed by surface coal mining and reclamation operations must meet all applicable federal
and state laws and regulations and, at a minimum, the following numerical effluent limitations:  

   EFFLUENT LIMITATIONS, IN MILLIGRAMS PER LITER, mg/1, Except for pH  

 
_______________________________________________________________________________

                                                             Average of daily
                                                               values for 30
                                                               consecutively
       Effluent Characteristics          Maximum Allowable    discharge days
...                                                     ...                
...
...                                                     ...                
...
Total Suspended Solids                                 70.0               
35.0
...                                                     ...               
..."
________________________________________________________________________________

     OSM inspector Andrew Robert Gilmore testified that during the course of the inspection he observed water
discharging from a sediment pond constructed by petitioner, that the discharge from a spillway flowed through an area
of riprap, thence overland to a receiving stream (Tr. 9, 10).  The parties stipulated that the distance between the
sediment pond and the point where a water sample was taken by the inspector, where the flow entered the receiving
stream, was 180 feet.  The parties further stipulated that part of the area, that part nearest the sediment pont, was
riprapped and part of the area was not riprapped (Tr. 14-15).  The parties further agreed that the receiving stream was
off the permit area (Tr. 15).  The inspector testified that the flow from the sediment pond as it traversed the area from
the riprapp to the receiving stream was causing erosion and that if nothing was done it would continue to erode (Tr. 50-53). The inspector testified that the sediment pond water looked good but that the water at the receiving stream was very
murky (Tr. 11).  The inspector took a sample of the water at the point where the discharge entered the receiving stream
(Tr. 12).  The sample was delivered to National Laboratories, Inc., to be analyzed and the laboratory analysis showed
suspended solids in the amount of 900 miligrams per liter, almost 13 times the maximum amount allowed by the
regulations (Tr. 13, 14; Exh. R #2).  Petitioner contends that it was not in violation and that the sole water sample taken
by the OSM inspector was improperly taken and improperly removed from a location which would not offer an
adequate or representative sampling of the water which was leaving the sedimentation pond.The water being
immediately discharged from the sedimentation pond met all required effluent limitations (Tr. 74) but such was not the
case 180 feet farther down where such discharged water entered the receiving stream (Exh. R #2).  I find that the
discharge from the sedimentation pond where it traversed the area from the riprapp to the receiving stream was causing
erosion and thereby creating a disturbed area.  I conclude that discharge from such disturbed area would have to meet
the effluent limitations of 30 CFR 715.17(a) but find that it did not.  

    {4}  Petitioner also contends that there is a very significant problem in collecting a water sample in a vessel which
has dimensions that approximate the depth of the water from which the sample is taken (Tr. 77).  Even where this
container does not physically come in contact with the bottom, its immersion will create currents which will disturb the
bottom and very probably increase the level of suspended solids collected (Tr. 77, 79).  

      The inspector described how he took the sample during the hearing.  Two witnesses offered comment as to his
methodology.  Respondent's witness, Dr. Konrad Banaszak, who qualified as an expert witness in the area of water
quality and water quality testing, testified that the sample taken in the manner  described by the inspector could give one
a representative sample of the flow at that point (Tr. 58-59).  Petitioner's witness, Mr. Von Demfange, offered testimony
as to what could happen if samples are not taken properly but he offered no evidence that the inspector did anything to
invalidate the sample in this case.  In fact, he stated in response to a question regarding the method the inspector used
that he had "only minor quibbles with his methods.  Nothing serious" (Tr. 75).  Clearly, even petitioner's own witness
did not seriously question the inspector's methodology.  I find that the sample was properly taken.  

      Petitioner contends also that Section 521(a) (5) of the Act requires an inspector to set forth with reasonable
specificity the nature of the violation along with a reasonable description of the portion of the surface coal mining and
reclamation operation to which the notice applies.  An analysis of the notice reveals no discussion about erosion or
disturbance caused by the water once it left the sedimentation pond and the riprapped portion of the spillway.  

     {5} The notice of violation indicated that the inspector was concerned that discharge from an affected area failed to
meet the effluent limitations, cited the applicable regulation, 30 CFR 715.17(a), and indicated the problem concerned all
the discharge which came through that sediment pond which was next to an erection site hill.  Clearly, this information
advises the operator of the nature of the violation, i.e. discharge from affected area fails to meet the effluent limitations
as required by 30 CFR 715.17(a) and the area affected, i.e. that affected by all the discharge through the sediment pond
next to the erection site hill.  I find that this information satisfies the requirements of Section 521(a) (5) of the Act.  

     Additionally petitioner contends that OSM's presentation did not constitute a prima facie case but that if it did then
OSM failed to meet the ultimate burden of persuasion that a violation did exist.  It argues: that OSM failed to present
any evidence concerning the analysis of the sample taken by the inspector and the chain of custody of the sample once
the inspector released it from his care; that in exercising its enforcement powers, OSM cannot be excused from going
forward with affirmative evidence showing, step-by-step, the actions it took to substantiate the validity of t e notice of
violation and; that in this case, OSM did not show what steps were taken by it to ascertain that certain effluent
limitations were alledgely exceeded by Old Ben.  It continues: that in this case, the one page report alleging an analysis
of the water sample taken by the inspector was introduced into evidency by both OSM and Old Ben (Exh. R #2; Exh. A
#8) and; that it is well established that a coal mine operator under the Federal Coal Mine Health and Safety Act could
attack the accuracy and reliability of reports and the regularity of test procedures used to generate such reports. 
Petitioner concluded: that when this examination revealed that none of OSM's witnesses could testify from first hand
knowledge as to what happened to the sample once it left the issuing inspector's care and custody the reliability of the
report submitted by OSM to Old Ben evaporates and; that not only did OSM fail to show what was done to analyze the
sample, OSM also failed to show, through direct reliable evidence, that the sample tested and reported on was that
collected by the inspector.  

     OSM objected to petitioner's questions regarding the laboratory analysis because that issue wasn't raised in the
pleadings and would require additional witnesses not then available.  It argues at length as follows: Assuming, 
arguendo, that an attack on the laboratory analysis was proper, OSM asserts that it has still met its burden of
establishing a prima facie case and meeting the ultimate burden of persuasion in this case.  The laboratory report was
offered and received into evidence without any objection.  The petitioner could have raised questions regarding the
chain of custody and method of analysis at that point, but it chose not to.  The report, when admitted, was sufficient to
establish a prima facie case.  Later in the hearing, petitioner questioned the reliability of the procedures followed but it
offered no evidence to show that such procedures were inadequate, imporper, or resulted in an unreliable or inaccurate
report.  Further, OSM presented evidence which strongly corroborated the report.  The inspector testified on several
occasions as to the "murkiness" of the water and this testimony was not disputed.  The inspector further testified, several
times, as to the "erosion" being caused by the discharge. Erosion is a process of eating out or eating away and, in this
case, it was clearly established that the flow was eating out and eating away the soils through which it flowed.  

   I find that OSM has met the burdens imposed upon it by 43 CFR 4.1155.  

    {6}  Petitioner did not contest the amount of the penalty.  The assignment of points for the four criteria in 30 CFR
723.11(c) is accepted and adopted as my own assignment.  

   ORDER  

     Notice of Violation No. 79-III-12-1, February 21, 1979, is sustained and the civil penalty is waived.  The penalty
assessment of $1,100.00 which has been held in an escrow account, must be returned to petitioner with interest at the
rate of six per cent or with interest at the prevailing Department of the Treasury rate, whichever is greater.  

   Notice of Violation No. 79-III-12-2, February 26, 1979, is sustained and the civil penalty is established at $1,000.00.  

     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.  

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