D & L CONTRACTORS, INC. v OSM; Docket No. IN 8-2-P (March 9, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: D & L CONTRACTORS, INC., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: March 9, 1979  

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

PROCEEDING: Civil Penalty Proceeding, Notice of Violation #78-III-3-1  

COUNSEL: Appearances: Paul F. Benson, Esquire, Cadiz, Ohio, for Applicant; 
 
Nina Rose Hatfield, Esquire, Office of the Field Solicitor, U.S. Department of the Interior, Indianapolis, Indiana, for
Respondent.  

OPINIONBY: Administrative Law Judge Shepherd  

OPINION: DECISION  

   BACKGROUND  

   As provided in Section 525 of the Surface Mining Control and Reclamation Act of 1977, D & L Contractors, Inc.,
applied on September 5, 1978 (as amended on October 10, 1978), for review of a notice issued by the Office of Surface
Mining Reclamation and Enforcement under Section 521 of the Act.  A hearing was held on January 4, 1979, in
Columbus Ohio.  The time granted for filing of briefs has expired.  

   The notice of violation was originally issued in three parts; however, parts B and C were disposed of prior to filing the
application for review of violation A which alleged improper signs and markers.  Specifically, the review as set forth in
the application was for the alleged failure of the Respondent to grant a credit of 10 points for rapid compliance with the
notice of violation.  {2}
 
   Additionally, and over the objection of the Respondent, the Applicant was allowed to raise the issue of the economic
detriment to the Applicant and the effect of the fine upon the financial situation of the Applicant.  

   There is no dispute that the Applicant was not in compliance with Regulation 30 CFR 715.12 for failure to have
proper signs at the entrances to the permit area, topsoil markers and perimeter markers.  In addition, the evidence
showed that the entrance signs and the topsoil markers were in place either the following day or a couple of days after
the date of the notice of violation.  

   The evidence was that prior to obtaining a permit from the State of Ohio the perimeter markers had been erected and
in place.  However, with the passage of time the perimeter markers were removed or destroyed but were, in any event,
not in existence on May 19, 1978.  The further evidence was that there were several surveying organizations in the area. 
However, the Applicant was unable to obtain the original surveyor to perform the work until shortly before the
expiration of the 10-day abatement period which had been granted to correct the situation.  The inspection took place on
May 19, 1978, and the perimeter markers were replaced by conclusion of the workday on May 26, 1978.  The afforded 
reason for the delay in obtaining the services of a surveyor was that the surveyor was busy with other work and was
unable to respond to the Applicant's request until that date.  

   30 CFR 723.12(e) describes how a permittee, such as the Applicant, may have points subtracted based upon the
degree of good faith in achieving rapid compliance after a notice of violation.  In order to obtain the 10-point credit
desired, the Applicant must demonstrate rapid compliance, which is described as meaning that the permittee took
extraordinary measures to abate the violation in the shortest possible time and the abatement was achieved before the
time set for abatement.  

   In the instance case, while the abatement was achieved before the time set for the abatement, there is no demonstration
of extraordinary measures sufficient to permit the granting of a credit in any amount for rapid compliance inasmuch as
only one surveyor was contacted and that surveying organization professed a busy work schedule which would not
permit a faster response.  The comments {3}  at 42 Fed. Reg. 62,671 (1977) indicate that the permittee is to be held
responsible for work done on the site.  To relieve the permittee of its obligation for collateral reasons could frustrate the
purpose of the statute and regulations.  The permittee did not attempt to contact any other surveying organization, and it
could be inferred that, had the inspection not occurred and the abatement not been imposed, the permittee would not yet
be in compliance. In addition, it should be noted that the purpose of the perimeter markers as discussed in the comment
section (42 Fed. Reg. 62,642 (1977)) was to prevent equipment operators from inadvertently entering areas not under
permit.  In this case the evidence from the permittee was that spoil had been placed outside the permit area.  

   Finally, it is the contention of the Applicant that the statute, 30 U.S.C.  1268(a), fails to include as an element in
determination of the amount of penalty the size of the operation and the economic status of the operation.  In addition, in
the Applicant's post hearing brief the contention is raised that the failure to so consider is a violation of the U.S.
Constitution.  I need say no more than to point out that I, as Administrative Law Judge, have no power or authority to
determine whether or not a statute or a regulation violates the Constitution of the United States.  Furthermore, such a
determination is not necessary under my decision.  

   The evidence regarding the economic impact of the proposed penalty assessment was given by Mr. Joe Ladyga
beginning at page 31 of the transcript in which he testified about the financial condition of the company based upon a
financial statement which had been issued for the first half of 1978 and was as of the end of June 1978.  This financial
statement was neither offered for evidence nor introduced into evidence, and the information supplied by the witness
was not convincing and indicated that the Applicant had current liabilities of approximately $110,000 plus equipment
payments and had assets of approximately a half a million dollars.  In addition, this witness was not even aware that the
assessment of $1,500 had already been paid by the Cravat Coal Co.  This would tend to support a conclusion that the
proposed assessment was really of no significance to the Applicant.  

   The relationship between the Applicant and the Cravat Coal Co. was apparently that the Applicant was a
subcontractor for the Cravat Coal Co. and that the Applicant merely mined coal on land which had been leased by the
Cravat Coal Co.  

   In summary, the evidence regarding the adverse financial impact was not that the Applicant could not pay or that
anyone would lose his job but that some creditor would be paid a little later.  While any fine would have some effect
(this is presumed to be one of the purposes of a fine), there is not sufficient evidence in this case to establish any more
than a negligible effect and the Applicant would surely not be forced out of business as a result of this penalty
assessment as urged would be the effect (Tr. 26).  

   ORDER  

   It is therefore ordered that Notice of Violation #78-III-3-1 be affirmed and that the proposed civil penalty assessed in
the amount of $1,500 be affirmed and that the Petition for Reduction in Assessment of Civil Penalty be denied.  

   Sheldon L. Shepherd  
   Administrative Law Judge
 
Distribution (Certified Mail):
 
Paul F. Benson, Esquire, Attorney for Applicant, Cravat Coal Co., Route 4, Cadiz, Ohio 43907
 
Nina Rose Hatfield, Esquire, Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior,
505 Federal Court Building, 46 E. Ohio Street, Indianapolis, Indiana 46204
 
Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240
 
Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240, Attention: Harriet Marple