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Administrative Law Judge Decision 79-117 |
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CONSOLIDATION COAL CO. v OSM; Docket Nos. NX 8-12-R, NX 9-1-P (May 3, 1979)
TYPE: ALJ Hearing: Decision
NAME: CONSOLIDATION COAL CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT Respondent
DATE: May 3, 1979
CASE-NO: Docket Nos. NX 8-12-R, NX 9-1-P
PROCEEDING: Application for Review, Civil Penalty Proceeding, Notice of Violation # 78-II-7-5, Cessation Order #
78-II-7-7, Matthews Mine
COUNSEL: Richard McMillan, Jr., Esq., Jones, Day, Reavis, and Pogue, Washington, D.C., for Applicant; John P.
Williams, Esq., Office of the Solicitor, Department of the Interior, for Respondent.
OPINIONBY: Administrative Law Judge Luoma
OPINION: DECISION
BACKGROUND
Pursuant to 43 CFR 4.1260 et seq. and in accordance with section 525(c) n1/ of the Surface Mining Control and
Reclamation Act of 1977 n2/ (the Act), Consolidation Coal Company (Applicant) applied on August 8, 1978, for
temporary relief from Order of Cessation No. 78-II-7-7 issued by the Office of Surface Mining Reclamation and
Enforcement (Respondent) under sections 521(a)(2) n3/ and 521(a)(3) n4/ of the Act. A hearing was held on August
11, 1978, in Knoxville, Tennessee.
n1/ 30 U.S.C. 1275(c) (1976). That section provides, in part:
"Pending completion of the investigation and hearing required by this section, the applicant may file with the Secretary
a written request that the Secretary grant temporary relief from any notice or order issued under section 521 of this title,
* * * together with a detailed statement giving reasons for granting such relief."
n2/ 30 U.S.C. 1201 et seq. (1976).
n3/ 30 U.S.C. 1271(a)(2) (1976). That section provides, in part:
"When, on the basis of any Federal inspection, the Secretary or his authorized representative determines that any
condition or practices exist, or that any permittee is in violation of any requirement of this Act * * *, which condition,
practice, or violation also creates an imminent danger to the health or safety of the public, or is causing, or can
reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the Secretary
or his authorized representative shall immediately order a cessation of surface coal mining and reclamation operations
or the portion thereof relevant to the condition, practice, or violation. Such cessation order shall remain in effect until the
Secretary or his authorized representative determines that the condition, practice, or violation has been abated, or until
modified, vacated, or terminated by the Secretary or his authorized representative * * *. Where the Secretary finds that
the ordered cessation or surface coal mining and reclamation operations, or any portion thereof, will not completely
abate the imminent danger to health or safety of the public or the significant imminent environmental harm to land, air,
or water resources, the Secretary shall, in addition to the cessation order, impose affirmative obligations on the operator
requiring him to take whatever steps the Secretary deems necessary to abate the imminent danger or the significant
environmental harm."
n4/ 30 U.S.C. 1271(a)(3) (1976).That section provides, in part:
"When * * * the Secretary or his authorized representative determines that any permittee is in violation of any
requirement of this Act * * *; but such violation does not create an imminent danger to the health or safety of the public,
or cannot be reasonably expected to cause significant, imminent environmental harm to land, air, or water resources, the
Secretary or authorized representative shall issue a notice to the permittee or his agent fixing a reasonable time but not
more than ninety days for the abatement of the violation * * *.
"If, upon expiration of the period of time as originally fixed or subsequently extended, for good cause shown * * * the
Secretary or his authorized representative finds that the violation has not been abated, he shall immediately order a
cessation of surface coal mining and reclamation operations or the portion thereof relevant to the violation. Such
cessation order shall remain in effect until the Secretary or his authorized representative determines that the violation
has been abated, or until modified, vacated, or terminated by the Secretary or his authorized representative * * *. In the
order of cessation issued by the Secretary under this subsection, the Secretary shall determine the steps necessary to
abate the violation in the most expeditious manner possible, and shall include the necessary measures in the order."
{3} At the hearing, testimony was taken from both Applicant's and Respondent's expert witnesses and, on the basis of
the evidence presented, I found and ruled from the bench that temporary relief should be granted and that the subject
order of cessation was suspended through midnight, August 17, 1978, as was requested by Applicant.
Pursuant to 43 CFR 4.1160 et seq. and in accordance with section 525 n5/ of the Act, Applicant applied on August 8,
1978, for review of the subject cessation order. Pursuant to 43 CFR 4.1150 et seq. and in accordance with section 518
n6/ of the Act, Applicant applied on October 12, 1978, for review of civil penalties assessed by Respondent against
Applicant in connection with Notice of Violation No. 78-II-7-5, issued on July 11, 1978, and the subject cessation
order, issued on August 7, 1978. Applicant did not seek review of the notice of violation.
n5/ 30 U.S.C. 1275 (1976). That section provides, in part:
"(a)(1) A permittee issued a notice or order by the Secretary pursuant to the provisions of subparagraphs (a)(2) and
(3) of section 521 of this title * * * may apply to the Secretary for review of the notice or order within thirty days of
receipt thereof or within thirty days of its modification, vacation, or termination. Upon receipt of such application, the
Secretary shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an
opportunity for a public hearing, at the request of the applicant * * * to enable the applicant * * * to present information
relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof.
The filing of an application for review under this subsection shall not operate as a stay of any order or notice.
* * *
"(2)(b) Upon receiving the report of such investigation, the Secretary shal make findings of fact, and shall issue a
written decision, incorporating therein an order vacating, affirming, modifying, or terminating the notice or order, or the
modification, vacation, or termination of such notice or order complained of and incorporate his findings therein."
n6/ 30 U.S.C. 1268(b) (1976). That section provides, in part:
"A civil penalty shall be assessed by the Secretary only after the person charged with a violation * * * has been given
an opportunnity for a public hearing. Where such a public hearing has been held, the Secretary shall make findings of
fact, and he shall issue a written decision as to the occurrence of the violation and the amount of penalty which is
warranted, incorporating, when appropriate, an order therein requiring that the penalty be paid. When appropriate, the
Secretary shall concolidate such hearings with other proceedings under section 521 of this Act. Any hearing under this
section shall be of record and shall be subject to section 554 of title 5 of the United States Code."
{4} The application for review of the subject cessation order, and the application for review of the civil penalty
assessments were consolidated for hearing which was held on December 6, 1978, in Knoxville, Tennessee.
On July 11, 1978, Respondent issued a notice of violation, pursuant to 521(a)(2) of the Act, alleging that Applicant
failed to route all surface drainage through a sedimentation pond or series of sedimentation ponds. This was listed as a
violation of 30 CFR 717.17. On August 7, 1978, Respondent issued a cessation order based upon the allegations that
Applicant failed to abate the conditions noted in the notice of violation and that a significant, imminent environmental
harm existed at the mine. Applicant was ordered to cease all surface operations of the underground mine.
On July 11, 1978, Respondent inspected Applicant's mine which is located in Claiborne County, Tennessee.
Applicant's mine is an underground coal mine with three surface openings. These surface openings are referred to as
mine No. 1, mine No. 2, and mine No. 3.
The three mines comprising the Matthews mine are located along Tackett Creek. The most upstream is the No. 3
mine, in the center is is the No. 1 mine, and the most downstream is the No. 2 mine. The three areas are approximately
2 to 3 miles apart, and are connected by a haul road (Tr. 465, Exh. 1). The surface area of the No. 1 mine, which
includes a preparation plant, is 15 acres, while the other two mines are each approximately 3 acres. Immediately above
the No. 1 mine, is a large refuse pile used for collection of refuse from all three surface work areas. This refuse pile
serves as an impoundment for a slurry pond and fresh water pond. The refuse pile, including the ponds, covers an area
of approximately 25-30 acres (Tr. 324-26). Most surface activity at Applicant's Matthews mine occurs on the No. 1
mine. Coal from the other two surface work areas is transported to the No. 1 mine. It is then transported on a series of
belts through a preparation plant. Finally, the coal is loaded onto rail cars (Tr. 454-55).
At the conclusion of the July 11 inspection, Respondent issued a notice of violation which alleged that Applicant failed
to route all surface drainage through a sedimentation pond or series of sedimentation ponds. This was listed as a
violation of 30 CFR 717.17. The notice of violation was applicable to all three mines and included all disturbed surface
areas of these sites.
Applicant was required to take temporary measures to correct the condition specified in the notice of violation by
August 7, 1978. These measures were specified as the construction of berms, silt basins, diversion ditches, and any
other temporary measures necessary to control silt from the surface work areas. Applicant was also required to submit
detailed engineering plans for permanent control measures to the Tennessee Division of Water Quality Control by
August 7, 1978, and implement them by a subsequent date.
{5} On August 7, 1978, Respondent made a follow-up inspection of the Matthews mine to determine whether the
temporary control measures listed in the notice had been completed by Applicant. Respondent issued to Applicant an
order of cessation because the remedial work had not been completed and because Respondent determined that
Applicant's failure to route all surface drainage through sedimentation ponds was causing or could reasonably be
expected to cause significant, imminent environmental harm to water resources. Respondent specified in the order that
Applicant was to cease all surface operations of the Matthews underground mine which includes loading and washing
facilities.
On August 16, 1978, Respondent again inspected Applicant's mine, determined that temporary remedial measures had
been completed, and terminated the order of cessation. On September 22, 1978, Respondent modified and then
terminated the notice of violation, which had been issued on July 11, 1978, after determining that the conditions for
which the notice was issued had been corrected.
Civil penalties were assessed by Respondent for both the notice of violation and the order of cessation. A penalty of
$2,200 was assessed for the notice of violation (Exh. 9). Because of Applicant's alleged lack of good faith in correcting
the conditions for which the notice of violation had been issued, this penalty was raised at an assessment conference to
$3,200 (Exh. 10). A penalty of $3,400 was assessed for the order of cessation (Exh. 11).
ISSUES
The parties have agreed that the issues consist of a determination of the amount of civil penalty for the notice of
violation and a determination as to whether the order of cessation was validly issued. If the order of cessation is
affirmed, the remaining issue is a determination of the amount of civil penalty for the order of cessation (Tr. 5).
DISCUSSION, FINDINGS, AND CONCLUSIONS
Applicant contends that sufficient work had been done at the Matthews mine by August 7, 1978, to have justified an
extension of the notice of violation rather than the issuance of an order of cessation. Applicant further contends that no
significant, imminent environmental harm, or threat of such harm, existed at the mine on August 7, 1978.
Respondent contends that Applicant not only failed to sufficiently abate the conditions at the m ine to justify an
extension of the notice of violation but that Applicant did not exhibit good faith in its efforts to abate the subject
conditions. Respondent further contends that conditions at the mine created a significant, imminent environmental
harm. The order is still valid even if only one of the grounds alleged by Respondent is affirmed.
{6} After issuance of the July 11 notice of violation, work was scheduled by Applicant to give priority to the No. 1
mine. Work at the the No. 2 mine was second in priority. Work at the No. 3 mine received lowest priority (Tr. 339-40,
353-56).
The No. 1 mine was ranked first in priority by Applicant because it was the largest and oldest site. Compacted gravel
used there causes more runoff of water than at the other areas. More activity occurs at the No. 1 mine because the bath
house and the preparation plant are located there (Tr. 354). The No. 2 mine was second in priority because it was the
second oldest site and because Applicant knew that muddy spots could develop on the property. The No. 3 mine was
given lowest priority because the larger part of that area, the supply yard, was backfilled with large gravel which had not
yet been compacted. Rain easily percolates through this gravel without runoff (Tr. 355).
If the No. 3 mine were to be closed, the Nos. 1 and 2 mines could continue operation (Tr. 455). It is only if the No. 1
mine is shut down that the operation of the other two mines would be curtailed since the No. 1 mine contains the
preparation plant, wash facilities, etc., which are needed for the other areas to remain in operation for any length of time.
The three sites are in a natural drainage area and all are located at the head of hollows where the base of the mountain
is adjacent to Tackett Creek. Surface drainage, therefore, comes from the mountains behind the surface work areas and
flows towards the creek (Tr. 134, 135).
On the date of the first inspection, Respondent had not specified where berms, diversion ditches, or ponds should be
placed, only that such were necessary (Tr. 427). Those measures specifically mandated by the inspector, however, were
the placement of a belly pan under the conveyor at the No. 1 mine and the placing of berms on each side of the same
conveyor (Tr. 426). The inspector considered the problems with the conveyor system to be critical (Tr. 17).
On July 11, the compant had four pieces of equipment available. This equipment consisted of a front end loader, two
large bulldozers, and a 50 ton truck (Tr. 362).This equipment was used unitially for construction of berms at the No. 1
mine (Tr. 363). Work was begun to construct berms along the haul road near the conveyor on July 11, 1978 (Tr. 322-23). All four pieces of equipment were used simultaneously during construction of a single berm. The equipment was
also used to construct the Spruce Lick pond which is a large pond that Applicant felt was necessary to control runoff
from the refuse impoundment located above the No. 1 mine (Tr. 368-69). Applicant's use of the equipment was limited
by the inexperience of underground mine personnel who had no previous reclamation responsibilities. Lack of
experience caused much work to be redone two or three times (Tr. 363-67).
{7} Applicant contracted for five additional pieces of equipment. A construction company was hired on July 28, to
construct a belly pan under the load-out conveyor which crossed Tackett Creek at the No. 1 mine. A backhoe was
received on July 25. A dragline was purchased on July 20 and was used to construct the large pond at the No. 1 mine.
A hydroseeder was not received until August 13 (Tr. 367-68). A hydroseeder is used to seed and place mulch on
berms. Without seeding and mulching, runoff from the berms themselves will contribute sediment to the creek (Tr.
412, 447).
The Spruce Lick pond was initially intended by Applicant to serve as a temporary measure to catch runoff from the
refuse pile but was ultimately planned to be a permanent measure to catch all runoff from the refuse pile as well as from
the No. 1 mine (Tr. 330). It was planned that runoff from the refuse pile would flow to the large pond by gravity, while
runoff from the surface work areas would be directed to a small centrally located pond on the property and then pumped
to the large pond (Tr. 330, 339-40).
Under the notice of violation, Applicant also was required to submit plans for permanent measures to the State for
approval prior to August 7, 1978. To prepare these plans, Applicant undertook an investigation of the topography,
runoff characteristics, etc., to determine need for and best location of sediment control structures (Tr. 406, 441-47).
This investigation took 3 weeks and encompassed each of the three sites (Tr. 406, 441-47).
When the inspectors returned to the Matthews mine on August 7, they determined that the temporary remedial
measures had not been completed at any of the three mines.At the No. 1 mine, Applicant was working on berms and had
installed a belly pan under a portion of the conveyor belt. At the No. 2 mine, Applicant had dug a diversion ditch and
deepened a small natural depression. The inspectors, however, observed a small discharge leaving the site. At the No.
3 mine, a diversion ditch had been started, but there was no silt control measure completed (Exh. 6, Tr. 55-60, 64, 87-89).
During the August 7 inspection, the inspectors would not take note of the Spruce Lick sedimentation pond
notwithstanding that Applicant's official requested that they do so (Tr. 371-72). This was because the notice of
violation did not specifically require that remedial work be undertaken to control runoff from the refuse area above the
No. 1 mine. Further, the inspector noted that the belly pan was not complete because a sheet of steel was missing. Coal
falling through the area where the steel was missing, however, would fall behind the berm that was in that area. Coal
would not drop into Tackett Creek unless a rainstorm had raised the water level in the creek 2 feet. Occurrence of such
a storm would be virtually impossible (Tr. 411). It would also be unlikely for runoff to enter the creek through
unfinished sections of the berm at the No. 1 mine because of topography which would cause water to flow away from
those sections (Tr. 381). Further, runoff from the No. 3 mine was minimal and the discharge from the No. 2 mine came
from a drainage canal constructed by Applicant after issuance of the notice of violation (Tr. 415).
{8} When the notice of violation was issued, the inspector had calculated that all work could have been completed in 2
weeks, but gave Applicant until August 7 to allow for any unusual problems with weather, labor, or equipment (Tr. 22-23, 231, 248-49). On August 7, Respondent's inspector would have extended the time for completion of the remedial
measures if 75 percent of the work had been completed (Tr. 250-52). Respondent contends, however, that only 10-15
percent of the total work was finished by August 7 (Tr. 228-29).
On August 10, 1978, a meeting was held between Respondent's and Applicant's personnel regarding steps necessary
for abatement of the order. During that meeting, a specific list of steps which would be required to abate the order was
provided. This work was completed by August 16 and the order was terminated (Tr. 457-63). Of the total work
completed by August 16, Applicant contends that 85-90 percent of that work at the No. 1 mine, 30 percent of that work
at the No. 2 mine, and 5 percent of the work at the No. 3 mine had been completed prior to August 7 (Tr. 458-62).
A medium intensity rain was falling during the August 7 inspection of the mine (Tr. 67). At the No. 3 mine, a black
water discharge was observed coming from a culvert which caused the small tributary entering Tackett Creek to turn
black (Tr. 93-95). The discharge was caused by operation of a grader in the vicinity of a coal silo which was located on
the No. 3 mine. The blade action on the grader caused black water to splash into a culvert and drain through the culvert
into the tributary. An employee of Applicant immediately ordered the grader operator to leave the area and within 35-40 minutes the tributary cleared appreciably. The grader only operates in the vicinity of the coal silo 8 to 10 times a
year and only for short durations (Tr. 450-52, 463, 464). On August 8, Applicant closed off the culvert through which
the black water discharge had passed at the No. 3 mine (Tr. 462-63).
Under 30 CFR 700.5, an environmental harm is any adverse impact on land, air, or water resources, including but not
limited to plant and animal life. An environmental harm is imminent if a condition, practice, or violation exists which is
causing such harm or may reasonably be expected to cause such harm at any time before the end of the reasonable
abatement time that would be set under section 521(a)(3) of the Act. An environmental harm is significant if that harm
is appreciable and not immediately reparable.
{9} On August 7, 1978, the inspector determined that Applicant's failure to install silt control measures at the three
mine areas could reasonably be expected to cause significant, imminent environmental harm to Tackett Creek,
particularly at the No. 1 mine because the conveyor crosses Tackett Creek there and coal could fall into the creek (Tr.
237). The inspector also determined that at the No. 3 mine significant, imminent environmental harm, to Tackett Creek
was actually occurring due to the black water discharge. The inspector determined that the harm from sediment runoff
was significant because of its adverse and long-lasting effect on aquatic life, its cumulative effect in the creek, and
because of the tole of sediment in causing flooding. It was determined that the harm was imminent because it was
actually occurring on August 7 (Tr. 236-37, 245-46). The inspector further determined that it was not possible to issue
an order of cessation limited to the silo at the No. 3 mine, from which the black water discharge was coming, because
the inspector decided that sediment could reasonably be expected to come from any of the three areas during a moderate
to heavy rain (Tr. 225).
The inspector had not issued an order on July 11 because Applicant's officials promised to undertake remedial work
immediately, thus abating any harm before it was likely to occur and because the weather in July 1978 was very dry (Tr.
16-17, 40-41, 45, 242-43).
The order of cessation directed the company ti cease only the surface operations of the underground mine (Tr. 56, 203-05). Respondent's inspector testified that cessation of activity at the three surface areas was necessary because the
movement of machinery would significantly increase the likelihood of silt runoff (Tr. 225-26).
The first time that the inspector who issued the notice of violation had seen Tackett Creek was on July 11. The
inspector was only there to look at the creek, not to study life in the creek (Tr. 29-33). Respondent's inspector stated
that seidment is the worst pollutant of a stream because it fills up stream channels, causes floods, and affects the toxicity
of streams as well as organisms in the stream (Tr. 26-28). The inspector determined that damage done by sediment
would be of long duration. As evidence of sediment damage in Tackett Creek, Respondent cites a delta which was
encroaching into the creek; however, Respondent conceded that the delta could have been caused by natural events (Tr.
27-28, 43). Further, the inspector had no idea if there was flooding downstream of Applicant's mine (Tr. 219). The
inspector did not examine mine records to find out whether any runoff would be toxic (Tr. 41). No detailed aquatic
study was made of the creek (Tr. 41, 136).
{10} On July 14, 1975, the Staff Geologist of the Tennessee Department of Conservation, Division of Surface Mining,
had issued a memorandum to the director of Applicant's mine. It was noted in the memorandum that Applicant had
acted in a spirit of genuine concern by improving the quality of water discharged into Tachett Creek and that Applicant
should be commended for public spirited cooperation (Exh. D).
On November 30, 1978, an aquatic biologist working for Applicant examined Tackett Creek. The creek, as it passes
by Applicant's property is composed of alternating ripple areas where the creek runs swift and pool areas where the
water runs slow.After taking samples, the biologist determined that the health and appearance of the creek was very
good. Numbers and types of organisms found in the creek indicated that the creek was healthy. Sediment had not filled
up places where organisms would generally live. The biologist did not observe a delta at the No. 3 mine but stated that
formation of a delta is not unusual, even in healthy streams, when a creek and a tributary merge. The biologist had no
knowledge as to the health of Tackett Creek in July and August 1978, however, based upon descriptions of the black
water discharge which occurred on August 7, coupled with the conditions as found on November 30, he calculated that
such a discharge would not likely have an adverse impact on the creek (Tr. 277-90).
Issuance of Notice of Violation No. 78-II-7-5, July 11, 1978, served to draw Applicant's attention to conditions which
resulted in sediment runoff at the mine. I find, however, that issuance of an order of cessation on August 7, 1978, was
too severe because the work done by Applicant between July 11, 1978, and August 7, 1978, justified extension of the
time for abatement and because the conditions at the mine on August 7, 1978, were not such that a significant, imminent
environmental harm was occurring, nor was one likely to occur in the reasonably forseeable future.
The work done by Applicant between July 11, 1978, when the notice of violation was issued, and August 7, 1978,
when the order was issued, showed a normal degree of diligence in abating the conditions for which the notice of
violation had been issued. This is notwithstanding that Applicant may have used resources in a manner different than
that contemplated by Respondent. Due to the size, age, and importance of the No. 1 mine, Applicant devoted almost all
of the available resources to work needed there. Respondent, however, wanted equal amounts of work done at all three
mine areas. Applicant's deployment of reasources to the No. 1 mine was logical because of the inspector's emphasis on
the conveyor which crosses the creek at that area and the need for berms to surround the conveyor. Although neither the
belly pan nor the berms were considered to be complete by Respondent, these structures were sufficiently complete to
prevent either coal or sediment runoff from entering Tackett Creek. Applicant further concentrated on the development
of long range, permanent solutions to the sediment problem, whereas Respondent in the inspection of August 7, 1978,
was more concerned with temporary measures. To get information necessary to deal with the effects of storms which
could do real damage to Tackett Creek, Approximately 3 weeks of extensive surveying and study was necessary (Tr.
442-46).
Respondent should have considered work done on the Spruce Lick sedimentation pond as work done to abate the
conditions for which the notice was issued. The notice was applicable to disturbed areas. Although the refuse pile and
the Spruce Lick pond may not actually be a part of the surface work area of the No. 1 mine, the refuse pile and the pond
were disturbed areas of the mine and improvements to those structures, as planned by Applicant, would improve the
quality of the water entering Tackett Creek from the No. 1 mine. This is because of the natural flow of surface water
which passes through the area where the refuse pile and pond are located before reaching the No. 1 mine, and because,
as planned by Applicant, the Spruce Like pond would collect runoff from the refuse pile as well as from the No. 1 mine.
Finally, the lack of experience on the part of Applicant's workmen in the area of reclamation, and delays in receiving
necessary equipment, slowed the work which Applicant sought to accomplish.
No significant environmental harm occurred at Applicant's Matthews mine because no appreciable harm was evident.
Respondent's inspector had determined that sediment which would wash from the surface work areas during a heavy
rain would cause, and had caused, long-lasting harm to the creek. The most important evidence alleged for this
contention was a delta which had formed in the stream. An aquatic biologist, however, after a visit to the creek on
November 30, 1978, stated that the delta was not large, and could have been formed naturally. Further, the biologist
showed that areas where acquatic organisms normally thrive in a healthy stream had not been filled which sediment in
Tackett Creek as would be the case in a stream in which excessive sediment has entered. The biologist also also found
that a normal range and quantity of organisms were present in Tackett Creek as would be found in a stream which had
not experienced excessive sedimentation. Although the biologist did not inspect Tackett Creek until 3 months after the
subject order was issued, his testimony is persuasive that no appreciable harm was done to Tackett Creek by the
conditions for which the order was issued. Even an expert who had done a study of Tackett Creek in 1975, and who had
found environmental harm at that time, stated that the conditions on November 30, 1978, as outlined by the biologist,
were encouraging (Tr. 505).
To create surface runoff of sediment which would do real damage to Tackett Creek, a storm of very high intensity
would have to occur (Tr. 40). Such a storm would be one which occurs on an average of once every 10 years. Such a
storm would have to last approximately 24 hours. According to the inspector who issued the July 11 notice of violation,
an imminent environmental harm is one that is happening now or is about to happen. Only a notice was issued on July
11, rather than a cessation order, because the inspector determined that if the remedial measures specified in the notice
were undertaken quickly, no significant, imminent environmental harm would result (Tr. 252). Further, had it been
raining on July 11, or if the inspector had determined that there was a likelihood of a heavy rain before August 7, 1978,
the inspector would have issued an order of cessation (Tr. 45-46). I have found that the effort shown by Applicant, in
abating the conditions for which the notice of violation was issued, was normal. Since storms which would do real
damage to a creek such as Tackett Creek occur infrequently, I further find that the possibility of such a storm occurring
was slight. In fact, it was raining on August 7, 1978, yet the only continuing runoff at any of the surface work areas
came from a drain installed by Applicant at the No. 2 mine area. Accordingly, the notice of violation should have been
extended since environmental harm was not imminent.
{12} Finally, the black water discharge from the No. 3 mine was stopped immediately upon the inspector's notice of it
when an official working for Applicant ordered the grader operator, who caused the disturbance, to work elsewhere.The
culvert through which the discharge had passed was sealed within a reasonable time. Although the order of cessation
could have been written to apply solely to the No. 3 mine, even such a limited order would not have been appropriate
since the the damage done was not appreciable and the cause of the black water discharge was quickly eliminated.
Respondent is seeking a civil penalty of $3,200 for Notice of Violation No. 78-II-7-5, based on the following point
total: 30 CFR 721.1 et seq.
______________________________________________________________________________
History
Seriousness 0
Probability of occurrence 15
Extent of potential or actual damage 15
Good faith 10
Negligence 12
52
______________________________________________________________________________
I find that a civil penalty of $900 is appropriate for Notice of Violation No. 78-II-7-5, based on the following point
total:
______________________________________________________________________________
History
Seriousness O
Probability of occurrence 15
Extent of potential or actual damage 8
Good faith 0
Negligence 6
29
______________________________________________________________________________
Lack of sediment control at Applicant's mine had, prior to issuance of thenotice, allowed sediment to wash from the
surface work areas into Tackett Creek during severe storms. Accordingly, the event which the regulations sought to
prevent had occurred, and 15 points is therefore appropriate for probability of occurrence. Sediment washing into
Tackett Creek from the surface work areas would extend beyond the permit area by virtue of the flow of the creek even
though actual damage caused by the sediment would be slight. Because of the lack of seriousness of the damage, I have
reduced the points from 15 to 8 for the extent of potential or actual damage. Applicant exhibited a normal degree of
good faith in achieving compliance after notification of the violation, notwithstanding that Applicant may have used
available resources in a manner different than that contemplated by Respondent. Therefore, zero points is appropriate
when a normal degree of good faith is shown. Finally, Applicant should have known, in the exercise of due care, that
sediment control would be required under the Act. The degree of control was, perhaps, an area on which there was
disagreement. It was not until issuance of the notice, however, that Applicant made real efforts to build ponds, etc. Due
to confusion over the methods of sediment control, however, I have reduced the points assigned to negligence, from the
12 sought by Respondent, to 6.
ORDER
{13} Order of Cessation No. 78-II-7-7, August 7, 1978, is vacated. The amount of proposed civil penalty for Notice of
Violation No. 78-II-7-5, July 11, 1978, is reduced from $3,200 to $900. The remainder of the penalty assessment,
$2,300, which has been held in escrow, must be returned to Applicant with interest at the rate of 6 percent of with
interest at the prevailing Department of the Treasury rate, whichever is greater.
L. K. Luoma,
Chief Administrative Law Judge