THE OHIO VALLEY COMPANY CONSTRUCTION DIVISION, INC. v OSM; Docket No. IN 8-2-R 
     (March 12, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: THE OHIO VALLEY COMPANY CONSTRUCTION DIVISION, INC., Applicant v OFFICE OF
SURFACE MINING RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: March 12, 1979  

CASE-NO: Docket No. IN 8-2-R  

PROCEEDING: Application for Review, Notice of Violation No. 78-III-2-7  

COUNSEL: James G. Tyler, Esq., Tell City, Indiana, for Applicant: John C. McDowell, Esq. and Nina Rose Hatfield
Esq., Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: DECISION  

   BACKGROUND  

  In accordance with section 525 n2/ of the Surface Mining Control and Reclamation Act of 1977 n3/ (the Act), The
Ohio Vally Company Construction Division, Inc. (Applicant) applied on August 21, 1978, for review of a notice issued
by the Office of Surface Mining Reclamation and Enforcement (Respondent) under section 521(a)(3) n4/ of the Act.  

   n2/ 30 U.S.C. Section 1275 (1977).  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 shall 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."  

   n3/ 30 U.S.C. Section 1201 et seq. (1977)  

   n4/ 30 U.S.C. Section 1271(a)(3) (1977).  That section provides, in part:  

   "When, on the basis of a Federal inspection, * * * the Secretary or his authorzed 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, te 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 and providing opportunity for
public hearing."  2  Following a Motion to Dismiss and an Amended Application for Review Respondent filed a timely
Answer.  A hearing was held on February 15, 1979, in Evansville, Indiana.   

{2}  On August 7, 1978, Respondent issued a notice of violation, pursuant to section 521(a)(3) of the Act.  This notice
alleged four separate violations by Applicant: A.  "Pumping pit water off permitted area without passing it through
siltation facilities first" as is required by 30 CFR 715.17(a).  B.  "Failure to construct treatment facilities prior to
commencement of mining" as is required by 30 CFR 715.17(a). C.  "Failure to make a prime farmland determination"
as is required by 30 CFR 716.7(a)(2).  D.  "Mining within 300' of an occupied dwelling without a variance" as is
required by the Act.  

   FACTS

    Respondent, in conformity with its answer, announced at the hearing that it had no objection to Violation No. C being
vacated (Tr. 5).   

  Violation No. A was never placed in issue by the pleadings.  Neither the Application for Review nor the Amended
Application for Review mentioned or referred to it.  At the prehearing conference, which immediately preceded the
hearing, and again at the hearing Applicant indicated a desire to now raise it as an issue.  Respondent objected.  The
very hour of the hearing is too late to permit the raising of an issue which Respondent asserts it is then unprepared to
present (Tr. 7-8).   

{3} As to Violation No. D, Applicant introduced in evidence Applicant's Exhibit #2 which is a lease of the very area
mined and thus a waiver of the three hundred feet limitation under section 522(e)(5) n5/ of the Act.  Respondent agreed
that Violation No. D should be vacated (Tr. 75).  

   n5/ 30 U.S.C. Section 1272(e)(5)(1977).  That section provides in part:  

   "(e)(5) After the enactment of this Act and subject to valid existing rights no surface coal mining operations except
those when exist on the date of enactment of this Act shall be permitted-... within three hundred feet from any occupied
dwelling unless waived by the owner thereof,...."  

   The one remaining violation to be considered is Violation No. B.  

   ISSUE  

  The issue is whether Applicant's mine complied with the requirement of 30 CFR 715.17(a) that all surface drainage
from the disturbed area shall be passed through a sedimentation pond or a series of sedimentation ponds before leaving
the permit area.  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

  Applicant contends that even though it did not construct treatment facilities as such there were nevertheless natural
structures which served such purpose and it was therefore in compliance with 30 CFR 715.17(a) (Tr. 79-80).  

   Respondent contends that even were Applicant to be given credit for all natural structures it would still be short of
compliance (Tr. 81).   

  It is required by 30 CFR 715.17(a) that "all surface drainage from the disturbed area... shall be passed through a
sedimentation pond or a series of sedimentation ponds before leaving the permit area...  Sedimentation ponds required
by this paragraph shall be constructed in accordance with paragraph (e) of this section in appropriate locations prior to
any mining in the affected drainage area..." Paragraph (e) states, among other things that, "Appropriate sediment control
measures shall be designed, constructed and maintained to prevent additional contributions of sediment to streamflow or
to runoff outside the permit area to the extent possible, using the best technology currently available."  

{4}  I find; that on the date of the alleged violation there existed at the mine a farm pond (Tr.12), a coal pit (Tr.31), and
a silt dam which resulted from the building of a road (Tr.40).   

  John Kathmann, reclamation specialist with the Office of Surface Mining, testified; "There were areas which did not
have any type facility to intercept drainage before it left the permit area" (Tr. 32).  Applicant devoted most of its
attention and argument to the pit.  Mr. Kathmann answered that there is material thrown out of the pit which creates a
natural barrier around the outside so that the majority of the surface drainage would have bypassed the active pit (Tr.
32).  Respondent's Exhibit #C, a photograph, showed siltation from the permit area beyond the border of the permit (Tr.
48-49) Were the pit to in fact intercept surface drainage then a serious question would arise as to whether said pit met
the requirements of paragraph (e) of 30 CFR 715.17(a).  I find that very little of the surface drainage flowed into the
mine pit.   

  The farm pond was shown by Respondent's Exhibits A & B to be above the grade of most of the area affected by
mining (R. 12-18).  I find that most of the surface drainage from the disturbed area would not have passed through the
farm pond.   4  Mark H. Bruce, Vice President of Applicant company testified that in building a road a fill was
established which acted as a silt dam for a certain area (Tr. 40).  The evidence was no more extensive than that.  It is not
known whether the surface served was in fact a "disturbed area" and if so whether it amounted to a significant portion of
the total area disturbed.   

  Mr. Kathmann testified: "In this particular operation we would need many individual siltation structures to intercept all
the surface drainage that was... occuring from the affected areas..." and then proceeded to point out three specific
locations where same would be required (Tr. 29).  The issue was probably best addressed by Mr. Bruce when he stated
in the application for review: "We had sedimentation structures on the site prior to mining, but probably not enough." In
saying this I am not unmindful that at the hearing Mr. Bruce testified that all drainage off the permit area passed through
a siltation structure (Tr. 42).   

{5}  It is apparent from all of the above that very little surface drainage from the disturbed area passed through a
sedimentation pond, natural or otherwise, and I so find.  I further find that Applicant did not have the required
"sedimentation ponds" and that therefore the Notice of Violation was validly issued.  

   ORDER  

   Notice of Violation #78-III-2-7, August 7, 1978, is affirmed as to Violations A & B and is vacated as to Violations C
& D.  

William J. Truswell, 
Administrative Law Judge