DEAN TRUCKING CO., INC. v OSM;  Docket Nos. CH 8-12-R, CH 9-4-R (April 12, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: April 12, 1979 [Amends November 28, 1978 decision]  

CASE-NO: Docket Nos. CH 8-12-R, CH 9-4-R  

PROCEEDING: Application for Review, Notice of Violation # 78-I-18-3, No. 78-I-15-3, No. 78-I-15-6  

COUNSEL: Carl E. McAfee, Esq., Norton, Virginia, for Applicant; Billy Jack Gregg, Esq., Office of the Solicitor,
Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Allen

OPINION: AMENDED FINAL DECISION  

  The Respondent, Office of Surface Mining Reclamation and Enforcement, having appealed the above-styled case from
an initial decision issued by the undersigned November 28, 1978, and the Interior Board of Surface Mining Appeals
having decided the appeal on March 23, 1979, and remanded said case back to the undersigned for the purpose of
clarifying said decision (the Board choosing not to make a determination of the case from the evidence), the undersigned
hereby vacates and sets aside that part of the decision of November 28, 1978, entitled "discussion, Findings of Fact and
Conclusions of Law" and substitutes in lieu thereof all of the following:  

 The Board asked that a finding be made as to whether or not there was a valley or head-or-hollow on August 2, 1977,
May 3, 1978, and after May 3, 1978, and whether or not the previous finding was based on the existence or
nonexistence of evidence.  The additional question is asked whether or not the undersigned holds that, as a matter of
law, the permit issued by the Commonwealth of Virginia allows conduct prohibited by the Act and in what manner does
the State permit supervene the Act.   

  A review of the transcript and the evidence discloses that Ronnie Vickers, the inspector for OSM, made an inspection
of the mine area of Dean Trucking Company, Inc., operating under Virginia Permit No. 2386 on August 3, 1978 (Tr.
13), based upon a complaint from a environmental group.  Mr. Vickers was accompanied by a Mr. Dan Stocker, a
reclamation supervisor for OSM in Virginia, Mr. Harry Moss, a reclamation specialist for OSM, Harold Cornett and
Sandra Williams, of the environmental group L.A.W.  In addition, Mr. Bob Horton and Delbert Scott of the Division of
Mined Reclamation for the State of Virginia were there on August 3 (Tr. 14).   

{2}  Only a partial inspection was made at that time and no violations written; however, on August 10, Mr. Vickers,
OSM inspector Steve Grafman, Bob Horton and Delbert Scott from Virginia Division of Mined Land Reclamation
returned to the property and issued the notices to violation (Tr. 15, 16).  Mr. Vickers testified that a "valley fill was
being constructed in this hollow or valley right here, "and indicated on Respondent's Exh. No. 6 (Tr. 23), whereupon an
objection was made to the use of the term "valley fill" and a definition was requested from the undersigned (Tr. 24).   

  At Tr. 25, Mr. Vickers then testified that the spoil had been pushed into a "hollow" and at Tr. 26, "spoil was being
removed from No. 2 seam and dumped into the hollow, into the valley" (emphasis added).   

  The Respondent established that spoils were being placed into what they referred to as either a valley or a hollow, by
back-end dumping (Tr. 27).  On August 29, Mr. Dean was quoted as saying he intended to make "flat land" of the valley
(Tr.  27).   

  On August 10, the witness testified that he saw both loader and dozer and trucks dumping spoils into the "valley" and
that there was no operation to construct a "drain" in the "valley" but that he could not see "the bottom of the hollow at
that time" and that "I believe the portion that was remaining was mostly full of water" (Tr. 28).   

  Beginning at page 30 of the transcript and going through the top of page 50 Mr. Vickers testified on direct examination
concerning the area alleged in the notice of violation to be a "valley fill" and constantly referred to said area as both a
valley and a hollow.  He testified that there was water in the area being "backed up there in several places" (Tr. 31) and
that "there is a stream in front on the face of the fill, but I couldn't observe one in back; it was full of water or spoil, one
or the other" (emphasis supplied).  In response to the question "So to kind of follow what you were saying on the day
you were out there, the 3rd and the 10th, what you observed was that he had put a dam or -- you said sealed off the head
of the hollow; is that correct?" (emphasis supplied).  He answered, "There was earth and fill across the front.  * * * It
was all approximaely the same level as the end elevation of the hollow.  * * * I believe the majority, ninety-five percent
was behind that fill after my inspection" (Tr. 322) (emphasis added).  On page 34, he refers to the area as "a hollow
fill," then on page 35 he identified the Respondent's Exh. No. 7 as a copy of the permit from the Virginia Bureau of
Mined Reclamation, n1/ which showed that "under Operation Plan it says Section B will be a hollow fill."  

   n1/ Virginia Burea of Mined Land Reclamation was unquestionably the regulatory authority recognized by the Office
of Surface Mining.  

{3}  At page 38 of the transcript, Mr. Vickers becomes specific, and the following is found:  

   Q.  All right.  Now, on the 10th you issued the violation to Dean Trucking Company for having a valley fill,
constructing a valley fill without the approval of the regulatory authority and not in compliance with Section 715.15(b);
is that correct?  

   A.  Yes.  

   Q.  All right.  Why did issue this violation?  

   A.  Because the fill wasn't being constructed according to the standards in 715.15(b).  

   Q.  All right.  And had it been approved by the regulatory authority to meet those standards?  

   A.  No.  

   Q.  But it had been approved in the permit, had it not?  

   A.  Yes.  It was approved in the permit application, the original permit application.  
Photographs of the area, Respondent's Exhs. 9c through 9i were identified as depicting the conditions testified to by the
witness.   3  The cross-examination began at page 50 of the transcript, and the following testimony by Mr. Vickers is
found at page 52:  

   Q.  Isn't it true, Mr. Vickers, that the State of Virginia approved in July of 1977 the method that was being utilized by
Dean Trucking Company on August the 3rd or any subsequent time since you were there for reclamining this particular
area?  Isn't it true that they were following precisely what they had told the State of Virginia and had approved in July of
1977?  

   A.  What was the date of approval again?  

   Q.  July the 11th, 1977, I believe was the date.  

   A.  Yes, sir.  

   Q.  Is that true?  

   A.  Yes, sir.  

   Q.  In other words, there was no deviation from what they had gotten approval for from the State of Virginia?  

   A.  No.   4  The following testimony occurred at page 56 of the transcript:  

   Q.  Okay.  And the terrain had been changed and altered to such an extend that it would not fall under the definition of
a valley fill or a head-of-hollow fill?  

   A.  I don't think I could answer that either.  

   Q.  Could you not then say, though, that the terrain in the area had so been modified and had been changed to such an
extent at the time of the application of the regulations that it would not certainly be classified as a head-of-hollow or a
valley?  What I'm getting at is, isn't it true that you considered in writing this violation the natural contour as it existed
before any modifications took place there?  

   A.  Yes, Sir.  

   Q.  Okay, sir.  That is what I'm trying to get at.  In other words, as you interpreted the definition is wat what existed
there before any mining took place?  

   A.  Yes, sir.   

{4}  And finally, the following conversation and testimony occurs at page 55 of the transcript:  

   Q.  Would you then say that this is a correct statement of what the regulations say, which is a valley fill or a head-of-hollow fill means a structure consisting of any material other than waste placed so as to encroach upon or obstruct to any
degree any natural stream channel other than those minor channels located on highland areas where flow is natural and
so forth?  

   A.  Yes, sir.  

   Q.  Was that a natural stream on May the 3rd, 1978 in this area?  

   A.  I couldn't answer that.  I don't know, I wasn't there.  

   Q.  Would there have been a natural stream on July the 3rd, 1978?  

   A.  I couldn't answer that yes or no.  I don't know.  

   Q.  Isn't it true on July 3rd in your opinion that there was in other words, after the area had been disturbed --  

   A.  Yes.  

   Q.  -- you cannot say one way or the other whether or not there was a natural stream there?  

   A.  I use the topo map to base that on.   5  Valley fill or head-of-hollow fill is defined in 30 CFR 710.5 as follows:  

   Valley fill and head-of-hollow fill means a structure constiting of any materials other than waste placed so as to
encroach upon or obstruct to any degree any natural stream channel other than those minor channels located on highland
areas were overland flow in natural rills and gulleys is the predominant from of runoff.  Such fills are normally
constructed in the uppermost portion of a V-shaped valley in order to reduce the upstream drainage area (head-of-hollow fills).  Fills located further downstream (valley fills) must have larger diversion structures to minimize
infiltration.Both fills are characterized by rock underdrains and are constructed in compacted lifts from the toe to the
upper surface in a manner to promote stability.  [Emphasis added.] 


On the date of inspection, no "natural" stream channel existed in the area of the fill according to Mr. Vickers' testimony.  

{5}  Mr. Jack Spadaro was next offered as a witness (Tr. 73) but was not offered as an "expert witness" and testified
primarily through page 101 of the transcript concerning valley fills, head-of-hollow fills, and water from water sheds. 
Mr. Spadaro had never visited the mine area but testified exclusively from the topographic map and stated "the exhibit
and the map that was prepared by Mr. Olinger indicates that there is a difference in the elevation from the crest of the
ridge at approximately 2,000 feet to the area in the vacinity of the valley fill which is about 1,800 feet, a 200-foot
difference in elevation, and also there are lines drawn on the map that show that all the slope is inward toward the valley
fills, so all drainage falling upon that area would be drained toward the valley fill, okay, and would be drained through
that hollow that's being filled up before they even started work" (Tr. 88) (emphasis added).  

{6} Mr. Spadaro testified that he had assisted in draing up the regulations involving head-of-hollow and valley fills, and
was asked on cross-examination:  

   Q.  And if in fact waste material is so placed that it does not obstruct or encroach upon a natural stream or channel,
then it could not be classified as a valley fill or a head-of-hollow fill?  

   A.  Yes, that's the definition.  

   Q.  What provision is there in the regulations to take care of a situation where waste material -- well, not waste -- well,
maybe waste material or materials of any kind have been so placed in a fashion that it would change or  alter the natural
contour of a head of hollow?  

   A.  The provisions would provide -- I think you should probably use the terminology spoil material instead of waste
material.  The regulations under 715.15 I think pretty well cover the placement of excess spoil material.  

   Q.  Regulations 715 what?  

   A.  715.15.  All of that section of the regulations would cover the placement of excess spoil in any area.   6  30 CFR
715.15(a) provides:  

   Disposal of spoil in other than valley or head-of-hollow fill. Spoil not required to achieve the approximate original
contour shall be transported to and placed in a controlled (engineered) manner in a disposal area other than the mine
workings or excavation only if all the following conditions in addition to the other requirements of this part are met:  

   (1) The disposal area shall be within the permit area, and they must be approved by the regulatory authority as suitable
for construction of fills in accordance with the requirements of this paragraph.   

   The remainder of the section contains direction as to how and in what manner the fills shall be designed, constructed,
and controlled, however, the initial authority for this is vested by the regulations with the regulatory authority.   

  To conclude the testimony concerning the area as to whether or not it is a head-of-hollow or valley fill, with the
testimony of Mr. Spadaro, the Respondent ended its case in chief.   

  Applicant, Aurbra Paul Dean, testified that he was the owner of the property in question and was familiar with it prior
to July 1977 (Tr. 101), and that there was no stream channel through the property (Tr. 102).   

  At page 104 of the transcript, Mr. Dean testified that he placed a rock drain on the bottom of the fill and that two-thirds
of the fill in the hollow was from seam No. 1 (Tr. 104).  On cross-examination, Mr. Dean testified that water did occur
down in the area when it rained (Tr. 115), but did not flow constantly (Tr. 114), and there were no diversion ditches to
keep the water from coming off of the area above the fill into it (Tr. 115, 116).   

  The final witnesses, Ralph Olinger (for the Applicant), testified at page 127 of the transcript:  

   Q.  Was there a sediment pond below the field?  

   A.  Yes, sir, built before May the 3rd, yes.  

   Q.  Built before May the 3rd?  

   A.  The 3rd.  A nonconforming structure.   7  And on page 128:  

   Q.  To your knowledge was there an actual stream or channel in this particular area?  

   A.  To my knowledge there was no active stream.  

(For additional testimony on the nonconforming structure, see pages 130 and 131.)  

   No further testimony was submitted concerning the fill other than the documentary evidence and the photographs.   

{7}  Although the undersigned made statements at page 145 of the transcript concerning my opinion of the area in 
question being a hollow, a review of the evidence and the regulations shows that this observation was in fact error.  The
testimony and evidence of Respondent fail to establish the existence of a "natural stream" as defined in 30 CFR 710.5,
and a review of the photographic evidence presented by Respondent clearly shows the impossibility of such a "natural
stream channel" or even a natural drainage channel.   

  Even to the casual observer, what once may well have been a valley or hollow (assuming that the definition also
applied to any space between two mountain or hill ridges), looking at Respondent's Exhs. 9-A, 9-E, 9-F, 9-G, 9-H, and
9-I, a highwall has eliminated this possibility.  

   Below the highwall lies a coal seam being mined as shown in Respondent's Exhs. 9-I, 9-H, and 9-G.   

  There is no evidence which informs the undersigned of the condition of the land before May 3, 1978, or even August 3,
1977, and certainly this would be important if the Act applies after May 3rd, to what the land was prior to August 1977. 
This question I cannot answer for, as pointed out by the briefs, an Administrative Law Judge cannot legislate nor create
nor change the regulations, but only interpret where interpretation is needed.   

 Respondent's evidence failed to establish any flow of water whatsoever, either from surface or subsurface sources or
that rain accumulated to run down across the face of the highwall, across the bench area and into the fill area which has
been called a "valley." In short, there is no evidence that either a perennial, intermittent, or emphemeral stream ever
existed in the area, only the assumption of a witness testifying from a topographic map.  We all have general knowledge
that rain water either soaks into the ground or flows as "run-off" and in flowing causes rills, gulleys and erosion of the
soil to some degree.  To say that the Act was intended to apply to every "natural drainage channel," regardless of the
definition of valley fill or head-of-hollow fill which specifically relate to the obstruction of a "natural stream channel"
and exempts minor channels, natural rills and gulleys, would be to classify rills and gulleys as minor "stream" channels
as "streams." To do this, I would indeed be writing new regulations without authority.   

{8}  The Government has the primary responsibility and burden of proving the existence of a violation, and that burden
carries with it the equal burden of establishing each and every part of the law that is alleged to be violated.   

  Having failed to show encroachment or obstruction of a "natural stream channel," the undersigned must find that the
preponderance of the evidence lies in favor of the Applicant that no such natural stream channel existed on the day of
the violation.  The fact that water may have been flowing from the impoundment shown in Respondent's Exh. 9-A (Tr.
31-32, 64-65) does not alter the fact that no sufficient proof existed that water was flowing "into" this impoundment
from the area above the highwall shown in Respondent's Exh. 9-A, other than when it rained, which was admitted by
Applicant (Tr. 114-115) and which would be obvious to anyone looking at the area.  Water would also flow down and
across the haul roads and anywhere else that a lower elevation would permit.  I cannot, however, conclude that this
establishes the existence of the violations in question.   

  Therefore, to answer the Board's first question, the preponderance of the evidence shows and I so hold that the area in
question was not a valley or head-of-hollow on August 2, 1977, May 3, 1978, or at any time after May 3, 1978, as
defined in 30 CFR 710.5.   

  Because of the answer to the above, it is unnecessary to discuss the contents of the permit issued by the
Commonwealth of Virginia, and the question as to the "burden" has been fully answered and set forth herein.   

  Although the Applicant may have been guilty of violating other regulations regarding the disposal of spoil, I find that
he did not violate 30 CFR 715.15(b) and therefore:  

   ORDER  

{9}  Notice of Violation No. 78-I-18-3(2) and (3) are reaffirmed, Notices of Violation No. 78-I-18-3(1), 78-I-15-3 and
78-I-15-6 are vacated for the reasons set forth herein.  

Tom M. Allen, 
Administrative Law Judge