DAYTON MINING CO., INC. AND PLATEAU, INC. v OSM;  DAYTON MINING CO., INC. AND PLATEAU,    INC. v OSM;  Docket Nos. NX 9-3-R, NX 9-14-P (March 8, 1979)

 TYPE:  ALJ Hearing: Decision  

NAME: DAYTON MINING CO., INC. AND PLATEAU, INC.,  Applicant  v  OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT (OSM),  Respondent; DAYTON MINING CO., INC. AND PLATEAU,
INC., Applicant  v  
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: March 8, 1979  

CASE-NO: Docket Nos. NX 9-3-R, NX 9-14-P  

PROCEEDING: Docket No. NX 9-3-R, Application for Review, Notice of Violation No. 78-II-6-5; 
Docket No. NX 9-14-P, Civil Penalty Proceeding; Notice of Violation No. 78-II-6-5  

COUNSEL: Michael W. Boehm, Esq., Gentry & Boehm, Attorneys at Law, 600 Dome Building, Chattanooga, TN, for
the Applicant; John P. Williams, Esq., U.S. Department of the Interior, Office of the Field Solicitor, Knoxville, TN, for
the Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

  The above-styled applications for review filed pursuant to Sections 525 and 518 of the Surface Mining Control and
Reclamation Act of 1977 (the Act) were consolidated by agreement of the parties and a hearing was held before the
undersigned on January 11, 1979 in Cattanooga, Tennessee.   

{2}  At the conclusion of the proof of the Respondent, Office of Surface Mining Reclamation and Enforcement and
again at the conclusion of its own proof the Applicant, Dayton Mining Company, Inc., and Plateau, Inc. moved to
dismiss the notice of violation and related proposed notice of civil penalty assessment because of the Respondent's
failure to comply with the requirements of  521(a)(1) of the Act which reads in full as follows: 

Sec. 521. (a)(1) Wherever, 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 Act or any permit
condition required by this Act, 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 or 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 inspecion.   

 The Applicant insisted that where no imminent danger exists the State regulatory authority must be notified and given at
least ten days to act to clear up a violation of an interim standard before the Respondent has authority to issue a notice of
violation.   

  In the post-hearing briefs filed by the parties it is conceded that the notice of violation and subsequent proposed
assessment of civil penalty issued by the Respondent to the Applicant did not involve an imminent danger to people or
the environment.  It is further conceded that the State of Tennessee regulates strip mining and has an existing
commission for that purpose. Further, the Respondent conceded that it did not notify the regulatory authority of the State
of Tennessee prior to issuing the notice of violation in question.  

   DISCUSSION AND CONCLUSION  

  In its brief the Respondent had made several arguments which will be considered in an order different than that
presented by the Respondent.  This will be done with the hope of analyzing the pertinent parts of the Act and the
Regulations and stating their meaning with maximum clarity.   

{3}  The Respondent insists that the notice of violation cannot be set aside because 30 CFR  721.14 states that: "No
notice of violation or cessation order may be vacated by reason of failure to give notice required by the Act or these
regulations prior to the inspection (underlining added) or by reason of a subsequent determination that prior to the
inspection the office did not have information sufficient to create a reasonable belief that a violation had  occurred."  

  Part 721 of 30 CFR which contains  721.14 deals exclusively with federal inspections.  Even though the Applicant
does not concede the legality of the particular inspection, the Applicant in its motion has not asked that the notice of
violation be dismissed because of a failure to give some notice required by the Act or the regulations prior to the
inspection.  The above argument of the Respondent must be considered in connection with Respondent's additional
argument that since Part 722 of 30 CFR (The enforcement provisions of the Regulations) says nothing about giving the
State regulatory authority ten days notice before a notice of violation is issued that the Department through its
regulations has interpreted the Act to mean that this ten-day notice is not required.   

  It is possible that the drafters of the regulations left out the requirement of the ten-day notice because they thought it
applied to federal inspections and there could be a tendency to read  521(a)(1) to this effect. However, an interpretation
of this effect would clearly put  521(a)(1) in conflict with  502(e)(1) of the Act which states in part that the initial
regulatory program shall "include inspections of surface mine sites which may be made (but at least one inspection for
every site every six months) without advance notice to the mine operators..." (underlining added) n1/ An interpretation
of  521(a)(1) in such a manner as to put it in conflict with  502(e)(1) of the Act is not called for and would not be
correct.  Section 521(a)(1) of the Act says in part: "The Secretary shall immediately order federal inspection of the
surface coal mining operation in 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." (underlining added) This
wording clearly says that the ten-day notice requirement may come into play after a federal inspection.  This section then
goes on to state that the "ten-day notification period shall be waived when the person informing the Secretary provides
adequate proof that an imminent danger or significant environmental harm exists and that the state has failed to take
appropriate action."  

   n1/ From a practical standpoint this provision would surely also mean without advance notice to the state.  

  These two parts of  521(a)(1) taken together clearly show that the ten-day notification period referred to in this
section applies or is a condition precedent to the issuance of a notice of violation, but it does not apply or it is not a
condition precedent to the issuance of a cessation order.  It does not apply as a condition precedent to a federal
inspection.  It is the duty of the Department to interpret the Act, if possible, in such a manner that each section will be
consistent with every other section of the Act.  The interpretation set out immediately above accomplishes this end. 

{4}  As the ten-day notice in  521(a)(1) of the Act applies only to the issuing of notices of violation, then clearly 30
CFR  721.14 which deals exclusively with federal inspections would have no application in these cases.   

  Part 722 of 30 CFR which sets out the enforcement procedures contained in the regulations is indeed silent on the ten-day notice requirement, but  722.1 of that part states that: "The regulations of this part set forth general procedures
governing issuance of orders of cessation, notices of violation, and orders to show cause under  521 of the Act."
(underlining added) The absence of any interpretation of  521(a)(1) in the regulations does not eliminate the statutory
requirement of the ten-day notice as a condition precedent to the issuance of a notice of violation.  Certainly silence on
the part of the Departmental regulations would not mean that an explicit statutory direction should be ignored.   

  It is obvious and crystal clear to the undersigned that the drafters of  521(a)(1) say and meanthat the Respondent
should notify the  State regulatory authority ten days in advance of issuing a notice of violation in order to give the state
an opportunity to perform its stated functions under the Act.   

  In its first argument the Respndent has attempted to single out  521(a)(1) of the Act and claim that the section was not
intended by Congress to be applicable to the initial regulatory program.   

  The authority of the Department of the Interior to enforce the Act is derived solely from  521 (titled Enforcement) of
the Act.  Section 502 (titled Initial Regulatory Procedures) of the Act states in part in subsection (e)(1) "... the Secretary
shall order any necessary enforcement action to be implemented pursuant to federal enforcement provisions
(underlining added) of this title to correct violations identified at the inspections." Section 502(e)(2) states in part as
follows: "... the Secretary shall order the immediate inspection of such operation by federal inspectors and the necessary
enforcement actions, if any, to be implemented pursuant to the federal enforcement provisions (underlining added) of
this title." Section 521(a)(3) of the Act states: "When on the basis of a federal inspection which is carried out during the
enforcement of a federal program or a federal lands program, federal inspection pursuant to  502 or  504(b) or during
the enforcement of a state program in accordance with subsection (b) of this section, the Secretary or his authorized
representative determines that any permittee is in violation of any requirement of this Act or any permanent condition
required by the Act that such violation does not create an imminent danger to the health or safety of the public or cannot
be reasonably expected to cause significant environmental harm to land, air, 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 90 das for the
abatement of the violation and providing an opportunity for a public hearing..." The different types of inspections listed
above in  521(a)(3) would include all inspections that might be made under an initial or permanent program and it is
clear that this section applies to both initial and permanent programs.   

{5}  The Respondent argues that the words "shall notify the state regulatory authority if one exists" and "if no such state
authority exists" as contained in  521(a)(1) of the Act mean that that section could apply only to permanent federally
approved state programs.  The reasoning of the Respondent is as follows: "The language of  521(a)(1) does notmake
sense during the interim program.  Section 502(c) provides that the Act is applicable during the interim program only in
states which regulate surface coal mining operations.  Therefore, in every state in which the interim program applies,
there is a State regulatory authority. Hence, the use of the word "if one exists" and "if no such state authority exists" is
illogical during the interim program..." There may well be states that presently regulate strip mining that have no formal
body to perform the regulation.  Even if they do not, the conclusion of the Respondent is not well founded.  If the
Respondent is right in its argument it is not  521(a)(1) which is not applicable during the initial regulatory program, it
is the words "if one exists" and "if no such state authority exists" that would not apply during the initial regulatory
program.  This interpretation would do no violence to this section and would be more logical than ignoring the entire
section.   

  Surely if Congress had intended  521(a)(1) in its entirety to be inapplicable during the initial regulatory program they
would have said so.  The Respondent has pointed out correctly that Sections 521(b) and 521(d) are plainly applicable to
only the permanent program.  Why then did Congress not plainly point out that  521(a)(1) was applicable only during
the enforcement of a permanent program?   

 The Respondent attempts to bolster its position that  521(a)(1) of the Act does not apply during the initial regulatory
period by arguing that it was the intent of Congress to have the Respondent be the prime enforcers of the Act until the 
states have permanent federally approved programs.  This ascertation probably has the least merit of any argument put
forth.  To begin with the Act is only applicable during the interim program in those states which regulate strip mining. 
Surely a state with no regulation would be a prime prospect for federal regulation during the initial regulatory period, if
the Respondent's position is valid.   

{6}  Section 101(f) of the Act states: "Because of the diversity in terrain, climate, biological, chemical and other
physical conditions in areas subject to mining operations, the primary governmental responsibility for developing,
authorizing, issuing and enforcing regulations for surface mining and reclamation operations subject to this Act should
rest with the states." 30 CFR  700.4(c) states: "The states are responsible for the regulation of surface coal mining and
reclamation operations and the reclamation of abandoned mine lands in accordance with the procedures in this chapter."
30 CFR  710.4(b) says that: "The states are responsible for issuing permits and inspection and enforcement of lands on
which operations are regulated by a state to ensure compliance with the initial performance standards (underlining
added) in Parts 715-718 of this chapter..." 30 CFR  720.1 states: "Nothing in this Act or these regulations shall be
interpreted to preclude a state from exercising its authority to enforce state law, regulations, and permit conditions
unless compliance with the state law, regulation or permit conditions will preclude compliance with these regulations." 
6  Both the Act and the regulations are emphatic that the state is the prime enforcer of not only a permanent federally
approved state program, but also the prime enforcer of "initial performance standards of Part 715-718 of this chapter."
The whole tenor of the Act and the regulations are to this effect.   

  The Respondent has not raised the argument that the ten-day notice requirement is for the benefit of the State
regulatory authority and thus the Applicant has no right to protest because of the failure of the Respondent to follow this
particular statutory requirement.  It is well that the Respondent did not raise this argument because it too would be
without merit, but it deserves some discussion.   

  There was testimony in the cases at issue that the Applicant was in the process of obtaining new or revising its present
permits to mine the area in question.  Further, a change in these permits would have eliminated a certain sedimentation
pond which was the subject in part of the notice of violation issued by the Department.  Without going into the merits of
this particular aspect of the ase, it can readily be seen that the failure on the part of the Respondent to notify the state of
the sediment pond violation in question could hamstrung not only the State, but also the Applicant in attempting to
overcome the existence of this particular violation of the interim standards.  The reason for this is the Applicant, of
course, cannot eliminate a sediment pond without the approval of the State regulatory authority.   6  As it is the state
which issues the mining permits and as it is with them that the Applicant must deal, the Applicant can be put in a
position of not knowing whose direction to follow when it receives both directions from the state and the Respondent.  It
is obvious that the drafters of the Act and the Congress intended that the state be the primary enforcer of the Act, and
that the Respondent (absent an imminent danger) should only intervene when necessary in order to see that the state
enforcement meets the minimum standards as set out in the initial regulatory program.   

{7}  The immediate issuing of notices of violation at the end of a federal inspection obviously eliminates any time that
the Applicant would have to deal with the state in order to reach a satisfactory solution which would meet both the state
and the federal requirements.   

  It is the opinion of the undersigned that the Applicant would be materially prejudiced by the failure of the Respondent
to follow the statutory requirements of notice to the State regulatory authority and thus  the Applicant has standing to
assert as the defense the failure of the Respondent to abide by  521(a)(1) of the Act.  It is the opinion of the
undersigned that the notice of violation was issued prematurely without statutory or regulatory authority and thus is
invalid.  The notice of violation is hereby ordered vacated.   

  The Applicant in accordance with the requirements of 43 CFR  4.1152(b)(1) has paid the full amount of the proposed
civil penalty ($8200) to the Assessment Officer, Office of Surface Mining to be placed in escrow pending a final
determination of the proposed assessment.  It is therefore ordered that the proposed civil penalty assessment against the
Applicant be vacated and that the sum of $8200 with interest at the rate of six percent of with interest at the prevailing
Department of Treasury rate, whichever is greater, be remitted to the Applicant.  

David Torbett, 
Administrative Law Judge  

   Distribution: (Certified Mail)  

   Michael W. Boehm, Esq., Gentry and Boehm, Attorneys at Law, 600 Dome Building, Chattanooga, TN 37402  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, P.O. Box 15006, Knoxville,
TN 37901  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240  

   Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, VA 22203  

   Assessment Office, U.S. Department of the Interior, Attn: Alan Palisoul, Room 215, Washington, DC 20240