CLAYPOOL CONSTRUCTION CO. v OSM;  Docket Nos. CH 9-9-R, CH 9-22-R (October 30, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: October 30, 1979 [Amends April 18, 1979 Decision]  

CASE-NO: Docket Nos. CH 9-9-R, CH 9-22-R  

PROCEEDING: Docket No. CH 9-9-R, Application for Review, Cessation Order No. 78-I-3-1, Notice of Violation No.
78-I-3-15; Docket No. CH 9-22-R, Application for Review, Cessation Order No. 78-I-3-3, Notices of Violation No.
78-I-3-18, No. 78-I-3-19  

COUNSEL: Appearances: H. Laban White, Esq., Marstiller, Siegrist and White, Clarksburg, West Virginia, for
applicant; 
 
Billy Jack Gregg, Esq., Office of the Field Solicitor, Department of the Interior, for respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: AMENDED DECISION  

   The Board remanded the above-styled case to the undersigned for further determination.  I therefore amend the
previous order of April 18, 1979, in compliance with the remand of the Board and add the following.  

   The primary issue in Claypool was and is (in my opinion) whether OSM can issue a valid cessation order for the sole
"offense" of mining without a permit in violation of section 502(a) of the Surface Mining Control and Reclamation Act
of 1977 (the Act).  The Board in its ruling and remand states as its second issue: "(2) Whether the ALJ [n1] made
sufficient findings in support of his determination that the cessation orders were validly issued, * * *" and in its remand
order expanded the issue to be resolved by this amended decision to: "[whether] Claypool's failure to secure a state
permit for its activities caused or could be reasonably expected to cause imminent environmental harm to land, air or
water resources, * * *" (emphasis supplied).  

   n1 The proper terminology is Administrative Law Judge, or Judge, not ALJ. {2}
 
   The evidence (transcript and exhibits) which the Board had before it in considering this case was unmistakenly clear
and simple as the same relates to the remand issue.  

   The first cessation order, No. 78-I-3-1, was for violation of section 502(a) of the Act and cited as a violation of 30
U.S.C.  502(a).  Later it was modified to be cited as a violation of 30 U.S.C.  1252(a).  The cessation order was
issued in accordance with section 521(a)(2) of the Act (Resp. Exh. 1).  

   The second cessation order, No. 78-I-3-3, was the same and with the same modification (Resp. Exh. 3).  There was
some evidence as to acid mine drainage having a pH factor of 4.7 coming from the property (Resp. Exhs. 8(g) and (j))
which "might" end up in Elk Creek and "could" effect the quality of the water  depending upon the volume of water and
the flow in Elk Creek (Tr. 140, 141, 144, 181).  The distance from the area to Elk Creek varied from 1/4 mile (Tr. 144),
to "maybe a mile" (Tr. 65), "3,000 to 4,000 feet" (Tr. 97), "closer to a mile" (Tr. 279).  However, no one knew where it
would enter Elk Creek nor was any of the water sampled off the tract in question.  In other words, there was no evidence
introduced having any weight or credibility as to any damage, either imminent or otherwise to persons' property or the
environment that resulted from the activities on the questioned property.  

   There was never a dispute nor doubt that Claypool did not have a permit to mine coal.  In fact, applicant's witness Mr.
McQuaid made it extremely clear that they did not have a permit, did not need a permit, and were not going to get a
permit.  He further stated that he was not going to shut down unless a federal marshall presented them with "proper
papers to shut me down" (Tr. 235). Mr. Claypool also stated that they did not need a permit (Tr. 238).  

   There was an obvious flagrant violation of section 502(a), once it was determined that Claypool was subject to the
Act.  It seems pointless to make a finding of fact or conclusion of law on an issue which is freely admitted throughout
the record.  

   The Board, however, in its remand requests a different finding because of the language of section 521(a)(2) regarding
imminent environmental harm.  

   There is no creditable evidence of such harm or anticipated harm in the record, and I therefore cannot make any
finding of fact that either of the cessation orders were validly issued if I must use the criteria of section 521(a)(2) and
ignore the mandate of section 502(a).  

   I cannot locate in the record any evidence, not even a scintilla of eiderdown weight which will allow me to find that
"the failure to secure a state permit for its [Claypool] activities caused or could be reasonably expected to cause
imminent environmental harm to land, air, or water resources" (emphasis supplied).  {3}
 
   Except for the violation of section 502(a), I could not even find that the mining activities of Claypool could be
reasonably expected to cause imminent environmental harm to land, air, or water resources.  They were in fact cleaning
up an unsightly dumping area.  The mere failure to secure a permit, the failure to have a piece of paper without more,
harms nothing.  

   Therefore, the applicable part of my decision of April 18 is set aside, and I reluctantly find, in response to the Board's
remand question, that both cessation orders were improperly issued and Cessation Order No. 78-I-3-1 and No. 78-I-3-3
are hereby vacated.  

   The second part of the Board's remand "for a determination whether the notices of violation issued to Claypool by
OSM are valid" must be answered in the affirmative since it was stipulated by the parties that there were no
sedimentation ponds nor was topsoil being stockpiled (Tr. 8).  Notice of Violation No. 78-I-3-15, "failure to pass all
surface area from the disturbed area through a sediment [sic] pond or series of sediment [sic] ponds" although
confusing, is understood to mean "surface drainage" and was admitted. Also,  the failure to "segregate, stockpile topsoil
and protect from wind and water erosion" was likewise admitted.  Violation Nos. 3 and 4 of that notice of violation,
failure to have a copy of permit authorization to permit at or near the mine site, is redundant, and since there was no
identification sign, violation No. 4 "failure to post mine identification sign at entrance of the mine site" is also
superfluous.  Because of the stipulation by the parties, violations Nos. 1 and 2 of Notice of Violation No. 78-I-3-15 are
affirmed as validly issued, and violation Nos. 3 and 4 are vacated as being superfluous.  

   Notice of Violation No. 78-I-3-18 was issued for failure to pass all drainage from the disturbed area through a
sedimentation pond or series of sedimentation ponds and failed to segregate, stockpile, and protect topsoil from wind
and water erosion which was issued for another area was also not in question and therefore that violation was validly
issued. Notice of Violation No. 78-I-3-19 which was issued for discharging water in violation of effluent limits was
neither challenged nor excepted to and the evidence was sufficient to show that the notice of violation was validly
issued.  All of the above evidence was clearly before the Board, however, since the Board chose not to rule on the same,
it is hereby ordered that Notice of Violation No. 78-I-3-15 (violations Nos. 1 and 2); Notice of Violation No. 78-I-3-18
(violations 1 and 2); Notice of Violation No. 78-I-3-19 (violation No. 1) were validly issued and are affirmed.
Violations Nos. 3 and 4 of Notice of Violation No. 78-I-3-15 are vacated.  

   Tom M. Allen  
   Administrative Law Judge {4}
 
Distribution:  

   H. Laban White, Esq., Marstiller, Siegrist & White, Empire Bank Bldg., Clarksburg, WV 26301 (Certified Mail)  

   Billy Jack Gregg, Esq., Office of the Field Solicitor, Division of Surface Mining, U.S. Dept. of the Interior, 723
Kanawha Blvd., E., 9th Floor, Charleston, WV 25301 (Certified Mail)  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Dept. of the Interior, Washington,
DC 20240 (Certified Mail)  

   Assessment Office - OSM, Room 215, So. Bldg., U.S. Dept. of the Interior, Washington, DC 20240