C & K COAL CO. v OSM;  Docket No. CH 9-175-R (November 1, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: November 1, 1979  

CASE-NO: Docket No. CH 9-175-R  

PROCEEDING: Application for Review, Notice of Violation No. 79-I-43-26  

COUNSEL: Appearances: Bruno A. Muscatello, Esquire, Brydon & Stepanian, Butler, Pennsylvania, for applicant; 
 
Billy Jack Gregg, Esquire, Office of the Field Solicitor, U.S. Department of the Interior, Charleston, West Virginia, for
respondent.  

OPINIONBY: Administrative Law Judge Shepherd  

OPINION: DECISION  

   As provided in Section 525 of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.  1201 et seq.
(the Act), C & K Coal Company applied on August 3, 1979, for review of a notice of violation issued by the Office of
Surface Mining Reclamation and Enforcement under Section 521 of the Act.  A hearing was held on September 6,
1979, in Butler, Pennsylvania.  

   BACKGROUND  

   On July 23, 1979, the respondent issued a notice of violation alleging one violation which was that the applicant had
failed to pass all surface drainage from the disturbed area, including disturbed areas that had been graded, seeded or
planted, through a sedimentation pond or a series of sedimentation ponds in violation of 30 CFR 715.17(a).  

   ISSUES

   The part of 30 CFR 715.17(a) pertinent herein is the first two sentences which read as follows: {2}
 
   All surface drainage from the disturbed area, including disturbed areas that have been graded, seeded, or planted, shall
be passed through a sedimentation pond or a series of sedimentation ponds before leaving the permit area.
Sedimentation ponds shall be retained until drainage from the disturbed areas has met the water quality requirements of
this section and the revegetation requirements of  715.20 have been met.  

   The issue in the case is whether or not the above-quoted portion of the regulation alleged to have been violated
required a sedimentation pond or series of sedimentation ponds under the circumstances of this case.  

   DISCUSSIONS, FINDINGS AND CONCLUSIONS  

   On July 23, 1979, an inspection of the subject area was conducted by the respondent (Tr. 6).  The inspection, which
included an examination of the permit map, a copy of which is Respondent's Exhibit No. 1, revealed that approximately
18 acres of land constituted the disturbed area after May 3, 1978, the effective date of the regulations pertaining to the
subject area.  The investigation revealed that there were no sedimentation ponds although two ponds had been designed
and apparently were to have been constructed (Tr. 8, 9 and 27).  

   The inspector found: "At the time of the inspection, the area had been restored to the approximate original contour and
it had been recently graded and had been seeded with annual grain of oats.  The germenation [sic] had just begun, let's
say maybe two to three inches in height, was the oat cover" (Tr. 9).  

   This testimony is confirmed by Respondent's Exhibit No. 3 which are photographs which show the condition of the
disturbed area on the date of the inspection.  

   While there were no sedimentation ponds, the inspection apparently revealed some moving of sediment particles or
soil particles but no measured significance of a sedimentation problem (Tr. 16).  

   Cross-examination of the inspector revealed that he did not observe any surface drainage leaving the permit area on
the date of the inspection (Tr. 20). Furthermore, there was no indication that sedimentation or {3}
 
suspended solids had left the permit area (Tr. 20). It was assumed that a significant precipitation event would cause
some material to leave the disturbed area or the permit area (Tr. 24).  

   Compounding the issues in this case is the fact that almost the entire disturbed area was spoil bound (Tr. 25).  It was
described as: "It's almost light [sic] a doughnut with mounds of spoil around it--spoil piles around it * * * there are
areas where * * * surface drainage would leave" (Tr. 25).  

   The evidence was that surface drainage could leave the disturbed areas by way of drainage ways in the areas that were
marked on Respondent's Exhibit No. 3 with blue arrows and X's.  The downslope continuing, it follows that such
drainage may also leave the permit area.  However, some of the drainage would have been to low places on the
disturbed area.  

   As stated previously, the applicant was charged with having failed to pass surface drainage from the disturbed area
through a sedimentation pond or series of sedimentation ponds.  This particular disturbed area was unique because
previous mining activity caused it to be spoil bound and the current mining activity and reclamation efforts did not
change that.  There is no evidence that surface drainage ever left the permit area (Tr. 16, 20, 21, 24, 25, 33, 34 and 48). 
It was speculated that some would leave the disturbed area if there was a significant precipitation event (Tr. 24).
However, between the disturbed area and the permit boundary there was a buffer zone with vegetation (Tr. 42).  Even
after sedimentation ponds had been placed in position and there had been rainfall, there was still no evidence of
movement of sediments to the sediment ponds (Tr. 50 and 51) or significant erosion.  

   This is not a case of where there is gully erosion or sediments in low spots. There is no evidence that in spite of
precipitation any surface drainage left the permit area.  

   It would appear that perhaps the applicant should have been issued a notice of violation for failure to comply with the
permit condition (of installing sediment ponds) or failure to obtain a variance rather than a notice of violation for
allowing surface drainage to leave the permit area without going through a sedimentation pond.  Considering all of the
evidence, there is insufficient evidence to find that the applicant violated the regulation alleged in the notice of violation. 
{4}
 
   ORDER

   It is, therefore, my finding that Notice of Violation No. 79-I-43-26 is not sustained and that the same is hereby
vacated.  

   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 of Surface Mining and Reclamation Appeals, U.S. Department of the Interior,
4015 Wilson Boulevard, Arlington, Virginia 22203.  

   Sheldon L. Shepherd  
   Administrative Law Judge
 
Distribution:
 
Bruno A. Muscatello, Esquire, Attorney for Applicant, Brydon & Stepanian, 228 S. Main Street, Butler, Pennsylvania
16001 (Certified Mail)
 
Billy Jack Gregg, Esquire, Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior, 950
E. Kanawha Boulevard, Charleston, West Virginia 25301 (Certified Mail)
 
Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240 (Certified Mail)
 
Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240 (Certified Mail)
 
Director, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240, Attention: Special
Assistant to Director (Regular Mail)