EASTOVER MINING CO. v OSM; Docket Nos. NX 9-47-R, NX 9-23-P (July 16, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: July 16, 1979  

CASE-NO: Docket Nos. NX 9-47-R, NX 9-23-P  

PROCEEDING: Docket No. NX 9-47-R, Application for Review, Notice of Violation No. 79-II-4-3; Docket No. NX
9-23-P, Civil Penalty Proceeding, Notice of Violation No. 79-II-4-3 (1), (2) and (3)  

COUNSEL: Karl S. Forester, Forester Building, First Street, Harlan, Kentucky, for Applicant; Charles P. Gault, Esq.,
Office of the Field Solicitor, U.S. Department of the Interior, Knoxville, Tennessee, for Respondent. Administrative
Law Judge Truswell  

OPINIONBY: Truswell  

OPINION: DECISION

 BACKGROUND  

     In accordance with section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Eastover
Mining Co. (applicant) applied on April 16, 1979, for review of the notice issued by the Office of Surface Mining
Reclamation and Enforcement (respondent) under section 521(a) (3) of the Act. Subsequently, on May 7, 1979, under
Section 518 of said Act applicant applied for review of a proposed civil penalty assessment issued by respondent.
Contemporaneous with the filing of this application, applicant, in accordance with the requirements of 43 CFR
4.1152(b) (1) paid the full amount of the proposed penalty ($5,800.00) to the Assessment Office of Surface Mining to
be placed in an escrow account pending a final determination of the proposed assessment.  A hearing was held before
the undersigned in Harlan, Kentucky, on June 7, 1979 at which time both cases were consolidated for hearing and
decision.  

   FACTS

    {2}  Notice of Violation No. 79-II-4-3 was issued on March 30, 1979, by the Office of Surface Mining for Eastover
Mining Company's Arjay Mine in Bell County, Kentucky.  This is an underground mine and its state permit number is
207-5008.  Said notice alleged that Eastover Mining Company had violated the provisions of 30 CFR 717.14(e) and
717.17.  Three separate violations were included in Notice of Violation No. 79-II-4-3.  Violation No. 1 was failure to
pass all drainage from the disturbed area through a sedimentation pond or series of sedimentation ponds.  Violation No.
2 was discharge from the disturbed area fails to meet effluent limitations.  Iron greater than 10 mg/1, PH less than 6.0. 
Violation No. 3 was failure to cover waste material from underground mine (which are deposited on land surface) with a
minimum of four feet of nontoxic, noncombustible material, failure to revegetate.  The time for abatement for all three
violations was 8:00 a.m., May 4, 1979.  

       Respondent issued to applicant a Notice of Proposed Assessment of a civil penalty of $2,000.00 for Violation No.
1, $1,800.00 for Violation No. 2, and $2,000.00 for Violation No. 3, a total of $5,800.00 for the three.  

       Two things occurred at the hearing which perhaps more logically should be recited under this heading.  OSM
announced that the violations had not been officially terminated.  This was so because an inspector had been prevented
by illness from making an inspection.  An inspection, however, was scheduled for the day following the hearing (Tr. 3-4).  This office has received no report or communication from OSM since the hearing.  Applicant announced that it was
withdrawing its contest of the amount of the assessment, that so far as it was concerned it would be $5,800.00 or
nothing (Tr. 35).  

   ISSUES

   The following issues are presented:  

   (1) Must the notice of violation and the accompanying civil penalty be vacated for failure by OSM to comply with
section 521(a) (1) of the Act?  

     {3}  (2) Must the notice of violation and the accompanying civil penalty be vacated because on the dates of
inspection applicant was being actively regulated by the Commonwealth of Kentucky for the same alleged violations?  

   (3) Was all drainage from the disturbed area passed through a sedimentation pond?  

   (4) Did discharge from the disturbed area meet effluent limitations for iron and PH?  

   (5) Was waste material from the underground mine covered with a minimum of four feet of nontoxic, noncombustible
material and revegetated?  

   DISCUSSION, FINDINGS AND CONCLUSIONS  

   (1) Failure by OSM to comply with Section 521(a) (1) of the Act.  

      Section 521(a) (1) n1 of the Act provides that if the Secretary has reason to believe that any person is in violation of
the Act he shall notify the State regulatory authority.  Admittedly OSM did not here notify the State regulatory authority
(Tr. 9-10).  The question as to the need for OSM to presently comply has been decided by the Interior Board of Surface
Mining and Reclamation Appeals in Dayton Mining Company, Inc. and Plateau, Inc., 1 IBSMA 125, 86 I.D. 241
(1979).  The Board decided section 521(a) (1) has no effect during the interim regulatory program.  

   n1 30 U.S.C. Section 1271 (1977) that section states in part:  

      "(a) (1) Whenever, on the basis of any information available to him, including receipt of information from any
person, the Secretary has reason to believe that any person is in violation of any requirement of this chapter of any
permit condition required by this chapter, the Secretary shall notify the State regulatory authority, if one exists, in the
State in which such violation exists.  If no such State authority exists or the State regulatory authority fails within ten
days after notification to take appropriate action to cause said violation to be corrected or to show good cause for such
failure and transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of
the surface coal mining operation at  which the alleged violation is occurring unless the information available to the
Secretary is a result of a previous Federal inspection of such surface coal mining operation.  The ten-day notification
period shall be waived when the person informing the Secretary provides adequate proof that an imminent danger of
significant environmental harm exists and that the State has failed to take appropriate action.  When the Federal
inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when
the Federal inspection is proposed to be carried out and such person shall be allowed to accompany the inspector during
the inspection."  

    {4}  OSM is here concerned with enforcement of the interim regulations and so I therefore conclude that the notice of
violation and accompanying civil penalty should not be vacated.  

   (2) First and adequate regulation by the Commonwealth.  

       Applicant contends strongly that prior to issuance of the notice of violation by OSM, it had been inspected by the
Commonwealth of Kentucky and had received a violation covering the identical area to that of Notice of Violation No.
79-II-4-3 (Tr. 11-12).  Applicant pursuant to an order for remedial measures issued by Kentucky entered into an
agreement with a company to accomplish certain of the requirements and did so prior to the inspection by OSM (Tr. 80-84 and App. for Rev. Notice of Violation 79-II-4-3).  It feels, that in this instance, to hold it responsible for the
requirements of both authorities defeats the intention of Congress and is an intolerable burden upon applicant. The
requirements while differing in some respects, do not differ in effect and it is the mission of OSM to assist the states in
implementing and developing programs necessary to achieve the ultimate purpose of the Act.  

       I can appreciate the position of in which applicant finds itself. Hopefully matters of this type are thoroughly
weighed before a notice of violation is issued or at least prior to a hearing.  What can be considered here is the authority
of OSM to issue the notice of violation and whether or not it has proved the violations.  Part 721 - Federal Inspections
(30 CFR) provides at Section 721.11(a) for inspections on a random basis and at Section 721.13 for the inspection
based on citizen requests (Tr. 45-48).  Either section would authorize the inspection in this case while Part 722 -
Enforcement Procedures (30 CFR) justify the action taken under the facts.  Subsequently there will be a finding as to
whether the notice of violation was properly issued as to each violation.  

   (3) Drainage through a sedimentation pond.  

       Michael J. Superfesky, a civil engineer with OSM, along with two reclamation specialists inspected the mine site on
the 29th and 30th of March, 1979 (Tr. 23, 56-67).  The operation at Arjay, Kentucky, is a deep mining complex (Tr.
24).  Violation No. 1 is for failure to pass all drainage from the disturbed area through a sediment pond in violation of
30 CFR 717.17 (Tr. 27). The areas found in violation were: main tipple area, coal stockpile on Little Creek, openings 4,
6, and 8, and Deer Branch opening (Tr. 27).  There were no sedimentation ponds for those areas (Tr. 27) and from the
topography, if rain fell it would drain into the left fork of Straight Creek and run into Straight Creek without passing
through a sedimentation pond (Tr. 28).  This violation was explained to Jack Freeman, applicant's engineer (Tr. 29-30). 
Inspector Dean  Stindt agreed with the Superfesky testimony as to this violation (Tr. 58).  

     {5}  Shelby Wilson, general mine manager, disagreed with OSM.  On cross-examination he stated: no drainage from
any stockpile goes into the creek (Tr. 127); as to openings No. 4, 6, and 8 he believed there was a diversion ditch and a
settling pond for that runoff (Tr. 127-128); as to the Deer Branch opening, I believe his testimony to be that runoff is
ditched and run through a small pond before it goes into the main creek (Tr. 128-130).  He did admit, however, that
some surface drainage from the outside area of the main tipple goes into the creek (Tr. 125, 132).  

       Mr. Superfesky reiterated on rebuttal: there was no pond to take care of drainage from the entire tippe area (Tr.
152); there was no berm or diversion around the Little Creek stockpile nor was there a pond (Tr. 153); that he observed
no sediment pond in openings 6 and 8 or the Deer Branch opening (Tr. 153) and; that he discussed it with Eastover
personnel and there were no ponds in those areas (Tr. 153).  

       I find that there was no sedimentation pond or series of sedimentation ponds through which surface drainage from
the disturbed areas specified in violation No. 1 would have passed.  

   (4) Discharge fails to meet effluent limitations.  

       Mr. Superfesky explained that violation No. 2 was a violation of 30 CFR 717.17 in that discharge from the
disturbed area fails to meet effluent limits - iron was greater than 10 milligrams per liter and the PH was less than 6 (Tr.
30).  The two points in violation were the Deer Branch opening and the toe of the refuse area (Tr. 30).  Tests were made
and the violation was apparent (Tr. 31).  On cross examination it was made clear that seven areas had been tested and
that there was no problem in five (Tr. 40); that at the refuse pile there was an iron violation but the PH was not in
question (Tr. 42).  The effluent at the Deer Branch had a PH of 5 and iron greater than 10, so that there was a double
problem (Tr. 42).  Samples were taken at areas that Eastover had designated to EPA as being their point source
discharge (Tr. 43).  Sampling was not done immediately before the water left the permit area and went into the creek
(Tr. 43).  

   Again inspector Dean Stindt agreed with the Superfesky testimony as to this violation (Tr. 59).  

       John Phillips, corporate mining engineer, testified: that from January 1 until March 27, 1979 he monitored seven
different points taking the PH reading (Tr. 143); that in the eight tests, in no instance was the PH lower when the water
left the property than when it entered, six times it was higher and two times it was the same (Tr. 145); that at no time did
Little Creek discharge into the left fork of Straight Creek with a lower PH than Straight Creek had itself (Tr. 145), and;
that OSM found a PH problem because their tests were at the NPDES discharge points which were not where the water
left the property (Tr. 146).  He further testified that on five tests for iron entering and leaving the property it was lower
on four and on one it was slightly higher (Tr. 147), and that water leaving a specified discharge point would receive no
further treatment before entering the creek (Tr. 148-149), but due to aeration time would not necessarily test the same
upon entering Straight Creek (Tr.  149-150).  

     {6}  Applicant does not contend that the effluent limitations for iron and PH were in fact met in the tests made by
OSM but rather that the tests were not made at the point where the water left the property.  The cited regulation, 30 CFR
717.17 does not so require.  The applicable part provides:  

       "Discharges from areas disturbed by underground operation and reclamation activities conducted thereon, must
meet all applicable Federal and State regulations and, at a minimum, the following numerical effluent limitations:  

   Iron, total (maximum allowable in milligrams per liter) 7.0  

   PH - Within the range 6.0 to 9.0."  

       It would thus appear that tests or samplings made at points of discharge were not only proper but were in fact
advisable.  Water leaving the discharge points used by OSM received no further treatment.  It brought to the immediate
creek violated numerical effluent limitations.  To such extent it at once damaged the creek even though the creek in turn
would by aeration improve the effluent prior to its leaving applicant's property.  

   I find that the effluent limitation for iron was exceeded in two of the tests made by OSM while the PH was below the
range in one test.  

   (5) Cover over waste material.  

       Waste material from the underground mine comprised an area estimated by Mr. Superfesky to be between five and
ten acres (Tr. 37).  This area then according to 30 CFR 717.14(e) would have to be covered with four feet of nontoxic
and noncombustible material.  The applicable part of said regulation reads as follows:  

       (e) Covering coal and acid-forming, toxic-forming combustible, and other waste materials; stabilizing backfilled
materials; and using waste material for fill.  Any acid-forming, toxic-forming combustible materials, or any other waste
materials as identified by the regulatory authority that are exposed, used, or produced during underground mining and
which are deposited on the land surface shall, after placement in accordance with Section 717.15 of this part, be covered
with a minimum of 4 feet of nontoxic and noncombustible material; or, if necessary, treated to neutralize toxicity, in
order to prevent water pollution and sustained combusion, and to minimize adverse effects on plant growth and land
uses.  Where necessary to protect against upward migration of salts, exposure by erosion, to provide an adequate depth
for plant growth, or to otherwise meet local conditions, the regulatory authority shall specify thicker amount of cover
using nontoxic material.  Acid-forming or toxic-forming material shall not be buried or stored in proximity to a drainage
course so as to cause or pose a threat of water pollution or otherwise violate the provisions of Section 717.17 of this
part.  

     {7}  Respondent did not contend that it had in fact complied with the regulatory requirement but rather argued: that
nowhere was there material for such purpose (Tr. 37-38); that adequate protection could be acquired from a  cover of
less than four feet (Tr. 38-39); that such four foot requirement was not a part of the permanent regulatory program (Tr.
39).  One would be less than candid were he to deny the persuasiveness of such argument.  This, however, is not the
forum for its consideration.  The regulation does exist and is in effect.  Applicant has been shown not to be in
compliance.  OSM has therefore properly issued Violation No. 3 of Notice of Violation No. 79-II-4-3.  

   ORDER  

       Notice of Violation No. 79-II-4-3, March 30, 1979, is affirmed as to each of three violations.  The proposed
assessment of $5,800.00 is hereby established as the civil penalty.  

   William J. Truswell  
   Administrative Law Judge