EARL COOK d/b/a RACO MINING v OSM; Docket No. NX 8-5-R (August 9, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: EARL COOK d/b/a RACO MINING, Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: August 9, 1978  

CASE-NO: Docket No. NX 8-5-R  

PROCEEDING: Application for Review, Notice of Violation No. 78-11-8-4, Smith Branch Mine Site  

COUNSEL: Appearances: George H. Buxton, III, Esq., Oak Ridge, Tennessee, for Applicant; Bruce Boyens, Esq.,
Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Chief Administrative Law Judge Luoma  

OPINION: DECISION  

   BACKGROUND  

   In accordance with section 525 n1 of the Surface Mining Control and Reclamation Act of 1977 n2 (the Act), Earl
Cook d/b/a Raco Mining (Applicant) applied on June 27, 1978, for review of a notice issued by the Office of Surface
Mining Reclamation and Enforcement (Respondent) under section 521(a)(3) n3 of the Act.  Procedural regulations
governing hearings had not, at the time of the hearing, been issued.  A hearing was held on July 18, 1978, in Oak Ridge,
Tennessee.  

   n1 30 U.S.C.  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 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."  

   n2 30 U.S.C.  1201 et seq. (1977).  

   n3 30 U.S.C.  1271(a)(3) (1977).  That section provides, in part:  

   "When, on the basis of a Federal inspection, * * * the Secretary or his authorized 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, the 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."  

   On June 13, 1978, Respondent issued a notice of violation pursuant to section 521(a)(1) of the Act, which provided
that Applicant failed to remove and segregate topsoil and failed to prevent the topsoil from being contaminated by waste
and spoil material.  This was specified as a voilation of 30 CFR 715.16. The notice also {3}
 
provided that signs and markers were not posted at or near the mine site.  This was specified as a violation of 30 CFR
715.12.  

   ISSUE  

   The issues are whether the topsoil was sufficiently segregated from other material and whether there were sufficient
signs at the mine to constitute compliance by Applicant with the regulations.  

   DISCUSSION, FINDINGS AND CONCLUSIONS  

   On June 13, 1978, Applicant's surface mine was inspected by Respondent's inspector.  The inspector observed that
active mining was underway and he walked through the active excavation site and the area below the site.  The inspector
found only one sign, located at the entrance to the mine site, which showed the name of the mine operator.  There were
no signs that designated where topsoil was located.  Further, the inspector found that topsoil had not been sufficiently
separated from other materials which had been removed from the area which was being mined.  The inspector then
issued the notice, review of which is sought here, and explained to Applicant why the notice was issued (Tr. 5-15).  

   To prevent topsoil from being contaminated by spoil or waste materials, 30 CFR 715.16 requires that topsoil be
removed from areas to be mined as a separate operation.  Topsoil must be segregated, stockpiled, and protected from
wind and water erosion as well as from contaminants which lessen its capability to support vegetation.  Topsoil which is
to be salvaged must be removed before there is any drilling for blasting, mining, or other surface disturbance.  All
topsoil must be removed unless use of alternative materials is approved by Respondent for reclamation of the mined
area.  

   Under 30 CFR 715.12, all signs required to be posted must be of a standard design that can be easily seen and read
and the subject signs must be made of durable material.  Signs and other markers must be maintained during all
operations to which they pertain and must conform to local ordinances and codes. Signs identifying a mine area must be
displayed at all points of access to permit areas from public roads and highways.  Signs must show the name, business
address, and telephone number of the permittee, as well as identification numbers of current mining and reclamation
permits or other authorizations to  operate.  Such signs are not to be removed until after release of all bonds. Further, the
perimeter of a permit area must be clearly marked by durable and easily recognized markers, or by other means
approved by Respondent.  Buffer zones must also be marked in a manner consistent with the perimeter markers along
the interior boundary of a buffer zone.  If blasting is necessary to conduct surface coal mining operations, signs reading
"Blasting Area" must be displayed conspicuously at the edge of blasting areas along {4} access and haul roads within
the mine property.  Signs reading "Blasting Area," which explain blasting warning and all-clear signals must be posted
at all entrances to a permit area.  Finally, where topsoil or other vegetation-supporting material is segregated and
stockpiled, the stockpiled material shall be marked.  Markers shall remain in place until such material is removed.  

   Applicant contends that the topsoil was sufficiently segregated and that there were sufficient signs at its mine to
constitute compliance with the regulations.  

   Respondent contends that the topsoil and other material removed from the mined area were intermingled to such an
extent that the topsoil would no longer be useful for reclamation and that there were neither enough signs nor did the
signs that was present contain adequate information.  

   I find that Applicant did not conform to the standards set forth in 30 CFR 715.12 and 715.16.  At the beginning of any
surface mining operation, topsoil must be removed, segregated, stockpiled and marked with a sign to prevent
intermingling of the topsoil with spoil material.  Applicant concedes that there were no separate, distinct stockpiles for
each type of material removed from the mine area.  Applicant moved material from the mine site to one location on the
property where all material was stored (Tr 46, 47).  Although it is conceivable that different parts of this storage area
could be identified as to the predominent type of material found in each part, since different layers of soil were removed
and dumped into the storage area at different times during the stripping operation, such a method is not sufficient to
insure that the topsoil would be free from contamination from other material which was moved to the same storage area. 
Once topsoil is contaminated, it is neither useful for reclamation nor is it recoverable (Tr. 24, 25).  

   At the time of the inspection on June 13, 1978, the coal had been removed from the mine site (Tr. 23).  The land
surrounding the mined area contains topsoil and it is reasonable to conclude that similar topsoil was originally present
on the mined area (Tr. 25).  The age of the trees which had been cut from the mine site and deposited nearby would
indicate that the area had not been mined for at least 20 or 25 years and as such there is no possibility that the topsoil
had been removed previous to Applicant's mining operation (Tr. 26). Although 30 CFR 715.16 allows for a comingling
of topsoil with other material in some situations, permission for such must be obtained from the regulatory authority. 
Applicant did not have a permit to mix topsoil with other material (Tr. 33-35).  

   Although blasting had occurred at the mine site shortly before the subject inspection on June 13, 1978, no sign
indicated this fact, as is required by the regulations (Tr. 47, 50).  Although the regulations require that topsoil be 
marked with a sign to prevent {5} its comingling with other material, neither was the topsoil at Applicant's mine
segregated nor was it marked with an identifying sign (Tr. 40).  On June 13, 1978, there was only one sign which listed
Applicant's name and that sign stated that Applicant had applied for a permit.  Other signs on the property consisted of
"no trespassing" signs.  Subsequent to the June 13 inspection, Applicant bought and installed other signs (Tr. 38, 39). 
In effect, on June 13, 1978, Applicant was in violation of 30 CFR 715.12 because Applicant had only one sign and that
sign did not specify Applicant's business address or telephone number. Further, buffer zones were not marked as
required.  

   ORDER  

   Notice of Violation No. 78-II-8-4, June 13, 1978, was validly issued and is hereby upheld.  

   L. K. Luoma  
   Chief Administrative Law Judge
 
Distribution:  

   Earl Cook d/b/a Raco Mining, Rt. 1, Oakdale, TN 37830 (Certified Mail)  

   Buxton, Lain & Buxton, Attorneys for Applicant, P.O. Box 3447, Jackson Square, Oak Ridge, TN 37830 (Certified
Mail)  
   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, P.O. Box 15506, Knoxville,
TN 37901 (Certified Mail)  

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