BLACK CREEK COAL CO. v OSM; Docket No. CH 8-3-P (December 1, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: BLACK CREEK COAL CO., Applicant v. OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: December 1, 1978  

CASE-NO: Docket No. CH 8-3-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation #78-I-5-4  

COUNSEL: Appearances: 

Henry Stout, Esq., Norton, Virginia, for applicant; 
 
Marye Wright, Esq., Office of the Field Solicitor, Department of the Interior, for respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION {2}
 
   BACKGROUND  

   On July 27, 1978, the applicant was mining two seams of coal under its permit from the Virginia Division of Mined
Land Reclamation approved July 1977 for the removal of two seams of coal, one known of the Clintwood Seam in
which a partial or mountaintop removal was involved, and the Eagle Seam which was on an orphaned highwall and
existing bench to be mined by the auger mining method.  On that day, the applicant was issued a Notice of Violation
#78-I-5-4 alleging that the applicant was violating 30 CFR 716.2(a)(1) in that it was "placing spoiled material on the
downslope" and given until August 25, 1978, to abate the violation.  The Notice of Violation was terminated on
September 21.  

   Notice of Proposed Assessment was given applicant, dated August 22, 1978, and an assessment of $1,400 was
proposed.  On October 20, 1978, an assessment conference was scheduled pursuant to request of September 13, 1978.  

   In accordance with section 525(a)(1) of the Surface Mining Control and Reclamation Act of 1977, Black Creek Coal
Company (applicant) applied on August 4, 1978, for review of a notice issued by the Office of Surface Mining
Reclamation and Enforcement (respondent) under section 521(a)(3) of the Act; and for a hearing under section 518(c)
(Review of Civil Penalty) of the Act.  A hearing was held on November 7, 1978.  

   FACTS  

   The facts in this matter regarding the disposal of spoil is not in dispute by the parties as to what the applicant did in
regards to the Eagle Seam and the Clintwood Seam.  In short review, the applicant auger mined the Eagle Seam on a
pre-existing solid bench removing coal therefrom, then proceeded to mine the Clintwood Seam which was above the
Eagle Seam and identified in the permit as the seam upon which the applicant would effect a mountaintop removal plan.
While mining the Clintwood Seam, the applicant disposed of the spoil by dumping over the highwall of the Eagle Seam
onto the solid bench portion of said Eagle Seam.  There was no spoil deposited below the Eagle Seam by the mining of 
either that seam or the upper Clintwood Seam.  The spoil was being placed against the Eagle Seam which in effect was
covering up the augered Eagle Seam.  

   Additionally, the facts are undisputed that environmental harm was really minimal "because of the fact that the
material placed from the downslope is on a solid portion of the bench.  Therefore, your landslides are not likely to occur.
As far as sedimentation--if you did have a catastrophic precipitation event, you could possibly get your sedimentation
coming off of the unprotected face and after going across your open bench area, then down into the hollow below--" (Tr.
17) (Emphasis added).  {3}
 
   30 CFR 710.5 defines "downslope" as the "land surface between a valley floor and the projected outcrop of the lowest
coal bed being mined along each highwall." "Highwall" means "the face of exposed overburden and the coal in an open
cut of a surface or for entry to an underground coal mine."  

   FINDINGS OF FACT AND CONCLUSIONS OF LAW  

   It is obvious from the evidence that the inspector considered the mining of the Clintwood Seam as the lowest coal
seam being mined and the area between it and the valley floor constituted the downslope.  However, the physical facts
and the drawing introduced by the respondent (Resp. Exh. 4) together with the testimony of all persons showed that the
Eagle Seam had been augered after May 3 without spoils and then the Clintwood Seam which was above the Eagle
Seam was being mined in the nature of a mountaintop removal.  All of the material from the overburden of the
Clintwood Seam was being placed onto the bench of the Eagle Seam down the highwall of the Eagle Seam which, from
the evidence, was an orphaned highwall.  

   Not that I consider it an important matter, that the definition of downslope uses the word "valley floor" and the
definition of a valley characterizes a valley to be one that contains a natural stream channel, and from the evidence there
was no stream below the Eagle Seam (Tr. 22), it would be unique, according to the definitions, that there were no
downslopes in this area whatsoever. That, however, is not the case in normal mining vernacular, because the downslope
of the area as it existed at the time of the applicant's permit being issued, was that area below the Eagle Seam.  

   This problem apparently has not been addressed at all by the interim regulations concerning multiple seams in
orphaned highwalls and the mining of each seam from the lowest to the top.  

   I do not believe that once a downslope has been established and a highwall has been established that the characteristics
of each can be altered nor the names changed by the mining of subsequent upper seams of coal.  The downslope
originally created would always remain the downslope, and the highwalls created would always remain the highwalls.  

   By augering the Eagle Seam, and doing nothing to change the characteristics of the highwall of the Eagle Seam, an
operator who was permitted by a state regulatory agency prior to May 3, 1978, would be required to recover only so
much of the highwall that he actually disturbed and would not be required to recover the entire highwall where sufficient
materials did not exist.  This  situation would only exist where the regulatory authority gave permission and approved
the reclamation plans on such a situation.  

   In the instant case, the regulatory authority gave permission and approved the plans for a mountaintop removal using
the spoils therefrom {4} to recover and reclaim the orphaned highwall of the Eagle Seam which was the lowest seam of
coal mined by the applicant.  

   If one were to assume that halfway up the highwall between the Eagle Seam and the Clintwood Seam there existed
another seam, and plans were approved to recover coal in that seam prior to mountaintop removal the permit area would
then have two highwalls and two benches which would require complete recovery from the total mining operation, and
the spoils from the second bench could legitimately be used in accordance with the regulations to recover the highwall
of the first bench.  

   I therefore find that the mining operation of the applicant under its permit was the recovery of a highwall of the Eagle
Seam along with its mountaintop removal.  I further find that the applicant did not cast any spoil over the downslope
which I find to be the area below the Eagle Seam and the "valley floor." I also find that the area between the Eagle Seam
and the Clintwood Seam is the Eagle Seam highwall and not the downslope of the Clintwood Seam.  

   Therefore, although the casting of the spoil on the Eagle Seam bench was in a random manner not necessarily in
compliance with the regulations as to proper recovery of a highwall, no violation was issued for that and shall not be
considered.  I therefore find that no violation existed such as the one issued in that the applicant did not cast spoils on the
downslope and therefore:  

   ORDER  

   It is hereby ordered and adjudged that the violation is reversed. It is further ordered that the civil penalty against the
applicant is dismissed and that the sum of $1,400 with interest at the rate of 6 percent or with interest at the prevailing
Department of the Treasury rate, whichever is greater, be remitted to the applicant.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   Phillip L. Trent, Operator, Black Creek Coal Company, P.O. Box 203, Pound, VA 24279  

   Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior, 950 East Kanawha Blvd.,
Charleston, WV 25301  

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