CANAMEX COAL CO. v OSM;  Docket No. NX 9-8-P (July 26, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: July 26, 1979  

CASE-NO: Docket No. NX 9-8-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 78-II-23-8  

COUNSEL: Appearances: W.M. Beck, Esq., 215 Grand Avenue, South, Fort Payne, AL, for Applicant; John P.
Williams, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Knoxville, TN, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

   In accordance with Section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Canamex Coal
Company, Applicant applied on December 26, 1978 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 on
Notice of Violation No. 78-II-23-8 dated October 18, 1978.  Contemporaneous with the filing of its application, the
Applicant in accordance with the requirements of 43 CFR  4.1152(b)(1) paid the full amount of the proposed civil
penalty ($1400) 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 Birmingham, Alabama on July 16, 1979. At the conclusion of the
hearing both the Applicant 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 notice of violation was vacated. {2}
 
   CONFIRMATION OF DECISION AND ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW  

   The decision of the undersigned including the findings of fact and conclusions of law as contained in the verbatim
record made in this case are confirmed by this written decision and order. In addition to that for the purpose of clarity,
the undersigned makes the following findings of fact and conclusions of law.  

   The only violation contested in this case is for blasting within 1000 feet of a occupied dwelling without special
authority from the regulatory authority as required by  715.19 of the interim regulations.  In support of this violation
the Respondent's witness, Ron McDowell, testified that he had measured the distance between the blasting area and the
occupied dwelling and his measurement showed that the blasting had taken place 618 feet from an occupied dwelling. 
Mr. McDowell used a 100-foot tape and with the aid of Mr. David Dykes, another witness for the Respondent,
measured the distance in 100-foot increments.  

   Mr. Michael E. Danner, a civil engineer, testified for the Applicant that he had measured the distance from the blasting
site to the occupied dwelling with a range finder and had found the distance to be 1087 feet.  Mr. Danner's
measurements were made shortly after the notice of violation was issued on October 18, 1978.  Mr. McDowell's
measurement was made on February 1, 1979. Between October 18, 1978 and January 1, 1979, considerable mining had
taken place and the landscape had been considerably altered.  

   Both Mr. Danner and Mr. Dowell testified in a credible manner and there is no reason to believe that either witness is
not telling the truth.  However, because Mr. Danner's measurements were taken quickly after the notice of violation was
issued and Mr. McDowell's measurements were made several months later, there is more room for the possibility of
error in Mr. McDowell's measurements than in Mr. Danner's measurements.  

   Because the burden of proof in a civil penalty proceeding is on the Respondent it is not necessary to say that Mr.
McDowell is in error in his measurement.  The undersigned is of the opinion that the proof in this case stands in
equipoise and the Respondent has not carried the ultimate burden of persuasion which it is required to do by
Departmental Regulations.  

   ORDER  

   It is therefore ordered that the proposed civil penalty assessment against the Applicant be vacated and that the sum of
$1400 with interest at the rate of six percent or with interest at the prevailing Department of Treasury rate, whichever is
greater, be remitted to the Applicant.  

   David Torbett  
   Administrative Law Judge {3}
 
Distribution: (Certified Mail)  

   W. M. Beck, Jr., Esq., 215 Grand Avenue, South, Fort Payne, AL 35967  

   J. A. Coleman, President, Highlands Coal & Chemical Corporation, Suite 809, 414 Walnut Street, Cincinnati, OH
45202  

   Canamex Coal Co., c/o Gilbreath Creek Mining Co., 1803 Gault Avenue, North, Fort Payne, AL 35907  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, P.O. Box 15006, Knoxville,
TN 37901 {87}
 
     Attachment  

   MR. MC DOWELL: Yes  

   JUDGE TORBETT: -- Mr. McDowell made the point already that there is no way that I'm going to stand here and call
anybody a liar, {88} and the burden is on the Government to prove its case in this instance the proof is in equipoise [sic]
 
So, the Government's case failed.  To say otherwise would be to say that the surveyor, or the engineer, -- was not telling
the truth.  I have no reason to disbelieve him.  I believe somewhere this could be explained as to why they come up with
different figures, but it hasn't been explained to me today why the figures are different.  There is nothing in the record
which would indicate that either party has told anything but the truth.  

   So I consider that neither witness has been impeached by cross-examination. They both stood the test of cross-examination, and as far as I'm concerned, they both told the truth.  I really believe the problem may be not with their
measurements; it's where they measured from, and the surveyor for the company took his measurement much earlier
than he (Mr. McDowell) took his, I'm sure that he is honest in his recollection about where he felt the mining had gotten
to in October when he was first there and that he was measuring from the same spot, but the testimony is that there was
a considerable amount of coal taken out of there and a considerable amount after October 18 [sic]  

   So, even though I'm sure he's very honest, a good man and a good Inspector, there is more room for mistake in his
testimony than in the testimony of the surveyor, the engineer for the company.  

   So, on that basis, I find that the Government, {89} OSM, has not carried the ultimate burden of proof that is to say the
ultimate burden of persuasion, which our regulations require, and, thus, I have to find for the mining company, and their
$1400 will have to be returned to them.  

   Did I not cover any issue in the case?  

   MR. BECK: Thank you, Your Honor.  

   JUDGE TORBETT: Thank you very much.  

   (Whereupon, at 2:30 p.m., the above-entitled matter was concluded.)