PARAMONT MINING CORP. v OSM; Docket Nos. CH 8-7-R, CH 8-11-R (December 1, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: PARAMONT MINING CORP., Applicant v. OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: December 1, 1978  

CASE-NO: Docket Nos. CH 8-7-R, CH 8-11-R  

PROCEEDING: Applications for Review, Notice of Violation # 78-I-15-1, Order of Cessation # 78-I-15-1, # 78-I-18-4  

COUNSEL: 

John L. Kilcullen, Michael Heenan, and M. Susan Carlson, Kilcullen, Smith, and Heenan, Washington, D.C., for
Applicant; 

Marye L. Wright, Esq., Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION

   BACKGROUND {2}

 On August 16, 1978, the respondent's inspectors visited the mining site, the subject of Permit No. 2373 issued by the
Division of Mined Land Reclamation, Department of Conservation and Economic Development of the Commonwealth
of Virginia, on June 29, 1977, and issued a notice of violation pursuant to eight sections of the Act and an order of
cessation pursuant to section 502(a) of the Act.  The exact sections shall be more fully set forth hereinafter.   

  On August 24, 1978, the inspectors, on a second inspection, issued a Cessation Order #78-I-18-4.  Upon erecting the
"blasting area" sings as required by Violation #78-I-15-1(6), the cessation order was terminated by the respondent.   

  In accordance with section 521 of the Surface Mining Control and Reclamation Act of 1977, Paramont Mining
Corporation applied on August 17, 1978, for a review of the notice of violation and cessation orders issued by the Office
of Surface Mining Reclamation and Enforcement (respondent) under section 521(a)(2) of the Act.  Notice of hearing
was sent August 28, 1978, for hearing September 12, 1978.  Thereafter, motion for continuance by the applicant was
made and received on September 7, 1978, to delay the hearing until a mine site hearing could be had on September 11,
1978.  The continuance was granted, and subsequent hearing was set for October 10, 1978.  Due to situations beyond
the control of the applicant or the respondent, the hearing for October 13 was continued to October 26, 1978, at which
time a hearing was held in Wise, Virginia.  

   ISSUES  

   There are two primary issues that must be decided in order to determine the issue set up by each violation and each
order of cessation.  

  The first issue has already been decided on the record; however, for clarity that issue is repeated along with its ruling
here.  The first issue is whether or not Paramont Mining Corporation is engaged in surface coal mining activities as
defined by Public Law 95-87, dated August 3, 1977, and the rules and regulations of the Department of the Interior as
set forth by the Secretary and published in the Federal Register, 42 Fed. Reg. 62639 (Dec. 13, 1977), entitled "Surface
Mining Reclamation and Enforcement Provisions."  

  The evidence presented showed that Paramont Mining Corporation was formed for the express purpose of mining coal
under a separate contract with Paramont Land Company, Inc., and that in the  mining of said coal, Paramont Mining
Corporation would prepare the permit property to be used and reclaimed as an industrial park.  I also ruled that the
entire project was in fact originally designated and intended to be an industrial park and had the original owner
continued the development of the property without the employment of Paramont Mining Corporation that the proprty
would probably be exempt under the provisions of 700.5 and 700.11(c)(d).   

{3}  I came to the conclusion that Paramont Mining Corporation was not exempt under the privisions of 700.5 in that it
did not satisfy the exclusion defined in said section.  In part, 700.5 states:  

  Surface Coal Mining Operation means: (a) activities conducted on the surface of lands in connection with a surface
coal mine or subject to the requirements of Section 516 surface operations and surface impacts incident to an
underground coal mine, the products of which enter commerce or the operations of which directly or indirectly affect
interstate commerce.  * * *, provided, however, that such activities do not include the extraction of coal incidental to the
extraction of other minerals where coal does not exceed 16-2/3 percentum of the tonnage of minerals removed for
purposes of commercial use or sale or coal exploration subject to Section 512 of the Act; * * *.  [Emphasis added.]  

  Section 700.11(d): "The extraction of coal incidental to the extraction of other minerals where coal does not exceed
16-2/3 percent of the mineral tonnage removed for commercial use or sale."  

  The evidence discloses that Paramont Mining Corporation did not keep any records of the "other materials" mined,
save the coal, nor did the evidence disclose that the other materials mined were in fact minerals as defined in the Act,
with a commercial value.  Although the said "minerals" could possibly be of a "commercial value," there was no
evidence produced by the applicant showing that this material had any commercial value off of the mine site nor that the
mining of the coal was "incidental" to the removal of the material to create the industrial park.   

  I found that it was the sole task of Paramont Mining Corporation to mine coal and that incidental to said mining of coal,
used the overburden and spoils to reshape the land for purposes of an industrial park. 

  Having made this ruling on this initial issue, I then considered a second major issue; which was whether or not the
dumping of the spoil material or overburden into a valley or hollow off of, the permit property for the purpose of
reclaiming that area to facilitate a road through the industrial park to connect with a state, or interstate, road system, was
a violation under the Act upon which an order of cessation should have been issued.  The violation was for "mining
without a permit" (CO #78-I-15-1) (violation 1).   

  That issue was determined also on the record, but without specific findings of fact and conclusions of law which will
be set forth in greater detail in this opinion. For the purpose of this issue, however, I found that the cessation order was
improper and should not have been issued in the first instance.   

{4}  Another major issue was whether or not a cessation order should have been issued for failure to post blasting area
signs, on access roads and haul roads within the permit area or whether there were sufficient blasting signs posted in
order to satisfy the requirement of 30 CFR 715.12(e).  Under the evidence presented to me, I ruled from the bench that
that cessation order had been improperly issued and should not have been issued.  I used the words "improvidently
issued" for lack of better words at the time, however, it was my meaning that no violation existed which warranted the
issuance of any cessation order by the inspector. 

  This ruling was also made without a finding of fact or conclusion of law, however, said finding of fact and conclusion
of law will be set forth in this opinion.   

  The other subissues are whether or not Paramont Mining Corporation violated the regulations in the matter set forth in
each one of the violations as follows:  

  Violation #1:  

   Operator has failed to salvage the topsoil as a separate operation, before any drilling or blasting, mining, or other
surface disturbances to prevent the topsoil from being contaminated by spoil or waste materials.  Violation 30 CFR
715.16(a).   

  Violation #2:  

   Operator has failed to pass all surface drainage from the disturbed area through a sedimentation pond or a series of
sedimentation ponds before leaving the permit area.  Violation 30 CFR 715.17(a).   

  Violation #3:  

   Blasting has been conducted within 1,000 feet of a building used as a dwelling.  Violation 30 CFR
715.19(e)(1)(vii)(A).   

  Violation #4:  

   Operator has detonated within an 8 millisecond period an amount of explosives in excess of the maximum allowed by
the formula w=(D/60)2 and contained in regulations 30 CFR 715.19(e)(2)(v) violation 30 CFR 715.19(e)(2)(v).   

 Violation #5:  

   The operator has failed to submit two copies of an accurate map of the mine and permit showing as of May 3, 1978,
the lands from which coal hasn't been removed and the lands and structures which have been used or disturbed to
facilitate mining.  Violating 30 CFR 715.11(c).   

{5}  Violation #6:  

   Operator has failed to display conspicuously at the edge of blasting area along access and haul roads within the mine
property signs reading "blasting area." Violating 30 CFR 715.12(e).   

  Violation #7:  

   The operator has failed to clearly mark by durable and easily recognized markers: the permit area.  In violation of 30
CFR 715.12(c).   

  Violation #8:  

   The permittee is constructing a valley fill without the approval of the regulatory authority and not in accordance with
the requirements of section 715.15(b).  In violation of 30 CFR 715.15(b).  

   FINDINGS OF FACT AND CONCLUSIONS OF LAW  

  I find from a review of the evidence that the evidence does not support the reason for the issuance of Cessation Order
#78-I-15-1 (Violation No. 1, Public Law 95-87, Section 502(a)) to wit: "No person shall open or develop any new or
previously mined or abandoned site for surface coal mining operations on lands on which such operations are regulated
by a State unless such person has obtained a permit from the State's regulatory authority." (Emphasis supplied.)  

  Public Law 95-87, Section 521(a)(2), provides, in part:  

   When * * * the Secretary or his authorized representative determines that any permittee is in violation of any
requirement of this Act or any permit condition required by 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 his 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. [Emphasis supplied.]  

  This section goes on to say further that if the violation has not then been abated by the time fixed for abatement, and
order of cessation should be issued.   

{6}  30 CFR 722.11(a) provides:  

   If an authorized representative of the Secretary finds conditions or practices or violations of applicable performance
standards, which create an imminent danger to the health or safety of the public, the authorized representative shall
immediately order a cessation of surface coal mining and reclamation operations or that portion of the operation relevant
to the condition, practice, or violation.  [Emphasis supplied.]  

  30 CFR 722.11(b):  

   If an authorized representative of the Secretary finds conditions or practices, or violations of applicable performance
standards, which are causing or can reasonably be expected to cause significant, imminent environmental harm to land,
air, or water resources, the authorized representative shall immediately order a cessation of surface coal mining and
reclamation operations or that portion of the operation relevant to the condition, practice, or violation.   

  Section 722.11(f) holds:  

   An authorized representative of the Secretary shall terminate a cessation order issued under Paragraph (a) or (b) of
this section by written notice when the authorized representative determines that the conditions or practices or violations
that contributed to the imminent dager to life or the environment have been eliminated.   

  30 CFR 710.11(2) General Obligations:  

   (i) A person conducting coal mining operations shall have shall it if required by the State in which he is mining and
shall comply with State laws and regulations that are not inconsistent with the Act and this chapter.  

   (ii) A person conducting coal mining operations shall not engage in any operations which result in a condition or
constitute a practice that creates an imminent danger to the health or safety of the public.  

   (iii) A person conducting coal mining operations shall not engage in any operation which result in a condition or
constitute a practice that causes or can reasonably be expected to cause significant, imminent environmental harm to
land, air, or water resources.   

{7}  30 CFR 710.11(d)(1) Operation on all lands:  

   The requirements of this chapter shall apply to operations conducted after the effective date of these regulations on
lands upon which the coal has not yet been removed or to any other lands used, disturbed, or redistributed in connection
with or to facilitate mining or to comply with the requirements of the Act or these regulations.   

  In interpreting these sections, it is apparent that the United States Congress, and the Secretary of the Interior, intended
that a cessation order would not be issued unless there was an immediate and imminent danger existing to the health and
safety of the public or environmental harm to land, air or water resources where a mining permit had been lawfully
issued.   

  The evidence produced during the hearing shows unequivocably that the cessation order was issued because the
operator did not have a mining permit on the property where the spoils were being dumped off of the permitted
property.  There was no evidence that this dumping off of the permitted property created an imminent significant
environmental hazard or harm nor did it create any danger to the public or property whatsoever as set forth in the Act. 
Most of the inspectors' testimony was that of opinion which was uncorroborated by any physical fact.   

  Additionally, the permittee had obtained a permit for the mining operation, as aforesaid on June 29, 1977, which
contained a provision allowing the permittee to dispose of spoil material in the area (which was subject to the violation)
a year before the law went into  effect on May 3, 1978.  Additionally, evidence provided also showed the necessity of
putting material in this hollow area (if the same was indeed a hollow) for the purpose of establishing a road to connect
with an interstate system of highway from the property which was being reclaimed as an industrial park.  The
documentary evidence shows clearly that this was the purpose and intent of the fill area which was made known to the
inspectors but ignored.  The respondent argued and continues to argue that the Virginia Division of Mined Land
Reclamation, Department of Conservation and Economic Resources, had amended permit No. 2373 and requiring that
the applicant comply with the applicable provisions of the surface mining code of Virginia and the Surface Mining
Reclamation and Control Act of 1977, citing as her authority respondent's exhibit No. 3 which is a form letter dated July
12, 1978, addressed to Paramont Mining Corporation informing them that the Commonwealth of Virginia had amended
the permit and plans so as to comply with the code of Virgnia and Public Law 95-87.  As can be seen from the letter,
there were no specifics as to what amendments were contemplated by the form letter and stated that the operators of
existing coal surface mines must submit engineered plans meeting performance standards due on or before July 3, 1978. 
Again, it will be noted that the letter is dated July 12, 1978, some 9 days after the date the plans were due in accordance
with the letter.  The evidence also showed that the "valley fill" off of the permit property had been going on for a period
of time prior to May 3 for some 5 months.  The evidence was also clear and not rebutted that the area being reclaimed as
a "valley fill" was necessary for the improvement of the property in order to construct the road as aforesaid.   

{8}  I do not believe that it was the intention of the Secretary of the Interior or the Congress of the United States of
create such rules and regulations governing surface mining that would, by their very nature, impede or restrict other
economic development important to a state or to a locale especially in view of overwhelming evidence that such
construction or development would harm neither the public nor the environment and could do nothing but aid in the
reclaiming of orphaned mine property and improving the economics of the community.   

  I further find that the letter of July 12 by the Commonwealth of Virginia (Resp. Exh. 3) did not amend permit No.
2373 so as to require the applicant to dispose of all spoiled material within the permit property.   

  At the conclusion of the hearing, I also ruled that the evidence was insufficient to legitimate the issuance of Cessation
Order #78-I-18-4 for "failure to display conspicuously at the edge of blasting areas along all access and haul roads
within the mine property, signs reading 'blasting area'" or that Notice of Violation #78-I-15-1(6) had not been properly
abated which was the reason for said cessation order.   

  There is a conflict as to whether or not there was such a warning sign at the entrance to the mining property on the
access road off of the public road on the first visit, however, there was no question that said sign was in place at the time
of the subsequent visit whereupon said cessation order was entered.   

  According to the evidence, the inspectors testified they saw one blasting sign in the entrance to the permit (presumed to
mean permit area) off the access road next to the perimeter sign and a second sign on a plateau to the south (presumably
within the permit area) (Tr. 178).  This evidence was on cross-examination and was on the second visit on the 24th.  On
the initial inspection on August 16, the inspectors testified they saw no blasting signs whatsoever (Tr. 132).  On August
24, the inspectors testified that one access road was unprotected by failing to have a blast area sign and that this was the
reason for the cessation order in that they drove their vehicles up the "access road" and parked within 20 feet of a
"loaded and wired shot" (Tr. 139).   

  Now the question presented is whether or not the path taken by the inspectors was in fact on an access road or even  a
haul road which under regulation would require the posting of a blast area sign.  The respondent introduced Exhibit 7-B
which showed the path taken by the inspectors to the blasting site (across open area in foreground up slope at left edge
to drill bench), and it is apparent on the said photograph that the areas traversed by the inspectors do not constitute
either an acces road or a haul road within the meaning and definition of the Act.  In the photograph the used access and
haul roads are easily discernible, and the inspector apparently went out of his way to issue a cessation on violation No. 6
for failing to abate. The testimony of the inspector was that "It was hard for us to determine exactly where the blasting
area was, because of the fact that this side of the operation did not have a blast area sign" (Tr. 140), yet is clearly shown
in respondent's exhibit 7-B, a drilling machine on the bench of the knoll which was the subject of Violation #78-I-15-1(3) "blasting has been conducted within 1,000 feet of a building used as a dwelling." Therefore, to the contrary, it was
very obvious where the blasting site was especially since the inspector went "cross-country" in order to get within 20
feet of the blast area.  The inspector also stated that to him, "access road" meant any type of road that would give a
person access onto a blast area within the permit area.   

{9}  Further, evidence indicated that the inspector stated to another witness that any area that they could reach by means
of their 4-wheel drive vehicle was to be considered by them as an access or haul road (Tr. 228-238).   

  It is my opinion that the intention of the Secretary of the Interior, as set forth in CFR 715.19(e)(iv), is to protect the
public and livestock from the effects of blasting and that to do this the access to the blasting area should be regulated.  In
CFR 710.5, where the Secretary finds "roads," the term "access and haul roads" is not specifically defined, and in CFR
715.2(e), access and haul roads are also not defined.  However, that section provides in part, "* * *, signs reading
'blasting area' shall be displayed conspicuously at the edge of blasting areas along access and haul roads within the mine
property" (Emphasis supplied).  The regulation does not require the signs to be placed at "all edges" of the blasting area. 
 

  Additionally, I feel that it would be proper to comment upon the actions of the inspector when that cessation order was
given.  The inspector testified that the cessation order was served upon the president of Paramont at approximately 5
a.m. on August 24, 1978 (Tr. 179), and that only one-half hour was given as a time for abatement, "in other words,
5:30?" A.  "That's correct" (Tr. 180).  It should also be noted that the inspector, when requiring two additional signs
refused to indicate where he wanted the signs placed.  In response to my question about this, the witness stated:  

   Well, just keeping it within the scope of the blasting area signs--if we were to go into every job and indicate to every
operator where exactly we wanted every single sign-- not only for blasting, but for perimeter, and in the markers-- and
not only that, but to give advice as to how to save top-soil, where to store it--our job of actually enforcing the regulations
would not be able to be completed.  We would be no more than an advisory capacity of the operator, which is not our
function.  

   (Tr. 181), 182).   

{10}  The evidence showed that the work had ceased at 5 p.m. (Tr. 182), but the inspector would not grant until 9 a.m.
the following morning because they (the inspectors) might not be able to make it back at 9 a.m. the text mroning and
since they (the inspectors) were on the site and "the abatement procedures would in no way hinder the operator, we
believe that 5:30 was an adequate time for abatement.  Therefore, we did insist upon 5:30" (Tr. 183). Under the
circumstances, I do not believe that the time granted for abatement  was either sufficient or realistic.  It must be noted,
however, that the operator did comply and the additional signs were placed upon the property (temporary type signs)
within that 30-minute period, and the cessation order was terminated (Tr. 184, 185).   

  In general, it is my opinion that the Secretary simply intended that such signs be placed in such conspicuous places so
as to notify the public that blasting operations are or will be conducted within the proximity of the sign and therefore
they should be duly warned.   

  The placing of blasting area signs at the entrance to the permit property especially if there is no other entrance to the
permit property, will sufficiently warn the public that blasting does take place within the permit property, and if prior to
the actual blast, the operator insures that the blast signals are given and places additional blsting signs up over any haul
road or road which would give vehicular access, under normal circumstances, to the blast area, that this is a sufficient
adherence to the regulations.   

  I do not believe that it was the intention of the Secretary to provide that if any inspector could traverse an area in a 4-wheel drive vehicle to a blasting site that this would constitute an "access" road or a "haul" road.  It is my opinion that
an access road is one which would give vehicular traffic access to the general mining area, access to specific operational
areas within the permit area, and access to the network of haul roads maintained within the permit area for the necessary
mining and production of coal.  That an access road would not mean a haul road that is no longer in use, or a general
haul road for industrial vehicles.  It is my opinion further, that an access road is one which can accommodate any type of
passenger vehicle, not necessarily 4-wheel driver or commercial vehicles.   

  An official publication of the Bureau of Mines, A Dictionary of Mining, Minerals, and Related Terms, published by the
United States Government Printing Office, 1968, contains acceptable definitions of access and haul road, and for the
purpose of this decision, are adopted as proper definitions and intended to be used as such by the United States
Department of the Interior.  In said dictionary, access road is defined as: "A route constructed to enable plant, supplies,
and vehicles to reach a mine, quarry, or open cast pit.  In remote and isolated regions, the provisions of an access road
may be very costly (Nelson)." 11  In said dictionary, haul road is defined as: "A road built to carry heavily loaded trucks
at a good speed.  The grade is limited on this type of road and usually kept to less than 17 percent of climb in direction
of load movement (Bureau of Mines Staff)."  

   It can therefore be seen that the route taken by the inspector was neither an access road nor a haul road.  

{11}  Therefore, the above constitutes the finding of fact and conclusion of law to sustain the ruling that the cessation
order issued #78-I-18-4 should not have been entered.  

  As a preface to the remaining issues, Congress set forth in the Surface Mining Control and Reclamation Act of 1977
(Public Law 95-87), the purposes of which are set forth in section 102 of the Act.  That section holds, in part:  

  (a) Establish a nationwide program to protect society and the environment from the adverse affects of surface coal
mining operations;  

   * * *  

   (c) Assure that surface mining operations are not conducted where reclamation as required by this Act is not feasible;  

   (d) Assure that surface coal mining operations are so conducted as to protect the environment;  

   (e) Assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with
the surface coal mining operations;  

   * * *  

   (g) Assist the states in developing and implementing a program to achieve the purposes of this Act;  

   (h) Promote the reclamation of mined areas left without adequate reclamation prior to the enactment of this Act and
which continue, in their unreclaimed condition, to substantially degrade the quality of the environment, prevent or
damage the beneficial use of land or water resources, or endanger the health or safety of the public.  
(30 U.S.C.   1202).   

{12}  In section 501(a) of the Act, Congress mandated when requiring the Secretary of the Interior to promulgate and
publish interim regulatory procedures, that "such regulations, which shall be concise and written in plain,
understandable language shall not be promulgated and published by the Secretary until he has--" (30 U.S.C.   1251). 
Thereafter, the Act states what the Secretary is required to do prior to the regulations becoming effective.  Again, in
section 501(b) Congress directed "The Secretary shall promulgate these regulations, which shall be concise and written
in plain, understandable language in accordance with the procedures in section 501(a)." 

  With the above in mind, we now consider the issues set forth by the violations.  Each violation has been set forth in
detail herein, therefore, they will not be repeated, however, the applicable section for each violation will be quoted in the
same order as the violations.  

   30 CFR 715.16(a) provides:  

  Topsoil removal. All topsoil to be salvaged shall be removed before any drilling for blasting, mining, or other surface
disturbances.  [Emphasis added.]  

  There is little question that the intent of this section is to provide sufficient topsoil for reclamation and the promotion of
revegetation after the mining activities on the permitted property have been exhausted so that the property is returned as
nearly as possible to its original contour and configuration with surrounding properties as it was prior to being disturbed
by mining.  The topsoil, being the integral part of reclamation, is therefore necessary material for that reclamation and
the regulations go into great detail concerning its handling in order to ensure that when it is redistributed upon the land it
will promote the growth necessary to achieve the restoration of the property.   

  The evidence in the case at bar is inconclusive to support violation No. 1 because the inspector stated "I did not take
any analytical measurements" (Tr. 156).  In response to question (Tr. 155), "There is a pile of earth there.  Did you
make a soil test to determine whether that was A-horizon?" Answer, "No, I did not."  

  It is to be noted that the exhibits which were referred to in this area of the testimony were not introduced nor admitted
into evidence and therefore are not considered in this opinion.   

  Although council for the respondent claimed that this violation was for "failure to segregate the topsoil" (Tr. 152), the
actual violation was for "failure to remove all topsoil to be salvaged before drilling for blasting, mining or other surface
disturbance.   

{13}  It is admitted by the witness for the respondent that the applicant did in fact have a stockpile of topsoil (Tr.  149),
and since the evidence was overwhelming that the entire area was going to be used for an industrial park which did not
require revegetation or the use of topsoil, the evidence is unrebutted that a great amount of the topsoil was actually not
needed and that the applicant had no intention to salvage same. This being the case, the evidence fails to sustain the
violation and therefore the notice of violation is reversed in that it should not have been issued, since under the evidence
there was no violation of this section.  

   30 CFR 715.17(a).  Holds, in part:  

  Water quality standards and effluent limitations. All surface drainage from the disturbed area, including disturbed areas
that have been graded, seeded, or planted, shall be passed through a sedimentation pond or a series of sedimentation
ponds before leaving the permit area.   

  The inspector testified that they did not see any sedimentation ponds on the permit area but did notice two off of the
permit area that were designed to collect all of the potential runoff through the entire disturbed area and pass them
through the two ponds that they did see off of the area.  The record also discloses that the determination of this
apparently was made by observing the contour map (Tr. 129).  The inspector also testified that there was no water
anywhere on the permit area (Tr. 130).  The applicant testified that there was in fact a sedimentation pond on the permit
area against the highwall (Tr. 197) thereby creating a conflict in the evidence.  It must be noted, however, that the
testimony of the applicant's witnesses was not rebutted at a later time by the respondent.  In reviewing the transcript in
its entirety, the evidence, however, does not disclose that the applicant was in violation of 30 CFR 715.17(a), there
being no drainage at all from the permit area and that even though the additional area was disturbed and not permitted at
that time, the drainage sedimentation pond off the permit area was sufficient to take care of 100-year precipitation event
(Tr. 200).  Therefore, I find the evidence insufficient to justify violation No. 2 as aforesaid and reverse said notice of
violation in that it should not have been issued.   

  30 CFR 715.19(e)(1)(vii)(A) holds basically, that there should be no blasting within 1,000 feet of a dwelling and other
structures unless approved by the regulatory authority based on a preblasting survey or other appropriate investigations.
Violation No. 3 was issued for conducting blasting within 700 feet of a house across the highway.  30 CFR
715.19(e)(2)(v) provides that the maximum weight of any explosives detonated within an 8 millisecond period shall be
determined by a certain formula, and violation No. 4 was issued because the amount of explosives used for the blast in
question exceeded the amount on the chart (created by the formula) for a house within 700 feet.  I therefore consider
both violations No. 3 and No. 4 together.  The evidence discloses that the permit issued by the State of Virginia did in
fact contain a preblast survey showing the house within 700 feet of the blast area and the permit was in fact issued with
that information on it and therefore it can be considered that the exception to the rule was in fact approved and the blast
was permissible under the regulations. 

{14}  The exemption to the provision of violation No. 4 is that if a seismograph is used to monitor the velocity of
ground motion and the peak particle velocity where the same does not exceed 1 inch per second, then the formula need
not be used.   

  The record and the evidence disclose that a seismograph was in fact used and that the ground motion and the peak
particle velocity did not exceed the requirements of the statute, therefore, as to both violations 3 and 4, the evidence was
insufficient to establish either one.  Therefore, violations 3 and 4 are reversed, and the same should not have been
issued.  

   30 CFR 715.11(c) provides:  

  Any person conducting surface coal mining and reclamation operations on or after May 3, 1978, shall submit two
copies of an accurate map of the mine and permit area at a scale of 1:6,000 or larger.  The map shall show as of May 3,
1978, the lands from which coal has not yet been removed and the lands and structures which have been used or
disturbed to facilitate mining.  One copy of the mine map shall be submitted to the state regulatory authority and one
copy shall be submitted to the Regional Director, OSM, before July 3, 1978.   

  The evidence disclosed that a May 3 mine map had in fact been submitted, however, the inspector was of the opinion
that the information was not correct as what the land actually contained (Tr. 136).  It is evident from the testimony that a
great deal of confusion existed not only on part of the inspectors but also the applicant because of the wording of the
section and the legend on the map.  

   The inspector said:  

  When we went over the map, it was evident to us that the area, as shown in orange, which reads 'Numbers of acres
removed, '--that's all that was in here--number of acres removed--to us, indicated an area of land from which coal had
been removed.  And in finding the knob that they were actually drilling down to the coal seam, is in orange.  Therefore,
the coal had not been removed from that area.  

(Tr. 137).  

  At (Tr. 168) the inspector testified in response to the question, "What was, then, the basis for your having cited the
inaccurate mine map?  Did not the mine map show, in orange, the area that had been disturbed, or would be disturbed?"

 The inspector answered, "If my recollection serves me correctly, the map read, 'Number of acres removed,' was the
indication for the solid orange." 

  The evidence is inconclusive that the map in fact does not comply with the regulation (Tr. 169, 171).  It is my opinion
that the regulations are not clear and concise in this area in its description of what is required to be on the map.  It is also
my opinion that the problem with this violation existed from an inadequate legend which, in fact, added to the confusion. 
I find, however, that taken as a whole, the evidence does not sustain the validity of the violation or that the map violated
the spirit and intent of the regulation although there may have been some inaccuracy of interpretation by reason of the
unclear provision in the statute.  Violation #6, therefore, is reversed, and although there might have appeared some
justification for the issuance of the violation, the evidence does not sustain that position.  (Also see Tr. 208-214.)  

   30 CFR 715.12(e) Blasting Signs provides as follows:  

{15}  If blasting is necessary to conduct surface coal mining operations, signs reading 'Blasting area' shall be displayed
conspicuously at the edge of blasting areas along access and haul roads within the mine property.  Signs reading
'blasting area' and explaining the blasting warning and all-clear signals shall be posted at all entrances to the permit area. 
 

  The fact that the inspector does not believe a road is a "public road" but prefers to believe that it is a private road will
not be acceptable as being evidence of a fact that a road in question is in fact private without clear and convincing
corroborating evidence.  In the same manner, a road cannot be declared public simply by the same type of opinion;
however, when evidence is given that additional people own property serviced by the road and/or that others rent
property serviced by the road and must use said road in order to have ingress and egress to that property, then this
evidence would tend to corroborate a statement that the road was in fact "public" where there was not evidence
presented to the contrary (Tr. 214).   


  Having already ruled upon the cessation order involving blasting area signs, it will not be necessary to repeat those
findings of fact and conclusions here.  I find  further, however, in reviewing respondent's exhibit No. 7(e), (g) and (b)
along with all the other documentary evidence, and the testimony of all the parties (it is to be acknowledged that the
testimony of the first inspector would have been corroborated and duplicated by the testimony of the second inspector)
does not sustain the issuance of the violation and therefore said violation is reversed.  

   30 CFR 715.12(c) Perimeter Markers provides:  

  The perimeter of the permit area shall be clearly marked by durable and easily recognized markers or by other means
approved by the regulatory authority.  

   I find that the evidence produced by the respondent does not clearly demonstrate that the applicant was in violation of
the above regulation (Tr. 127-128, 220, 221).  I do find that there was no perimeter marking for the inside boundary
where haul trucks were crossing the permit area to dump spoils off of said area but accept the explanation that it would
have been impractical to place flags along that perimeter which was continuously being traveled by vehicles.  Therefore,
that violation is hereby reversed.   {16}  

   The eighth and final violation, 30 CFR 715.15(b), covers the same area as the cessation order first discussed in this
opinion and amounts to a duplication by the inspector of a violation.  Therefore, violation No. 8 is reversed.  Further,
there was no evidence to even show the area being filled was a valley, within the meaning and definition of the Act. 
Absent such evidence, if it is not proven to be a "valley," the violation cannot issue.   

  It must be noted in this decision that as Administrative Law Judge, under section 4.1121(7) "Rule on Offers of Proof
and Receive Relevant Evidence;" (43 Fed. Reg. 34389), one of my functions is to rule upon the credibility of witnesses
when considering evidence and offers of proof.  This decision reflects that I considered all of the evidence, together with
the credibility of all of the witnesses, in determining the sufficiency of the entire body of evidence with this case, and
therefore in accordance with the above:  

   ORDER  

   It is hereby ordered and adjudged that all violations and cessation orders issued in the instant case are reversed and set
aside.  

Tom M. Allen, 
Administrative Law Judge