RHONDA LOU ENERGY CORP. #2 v OSM; Docket Nos. CH 9-34-R, CH 9-23-R (November 8, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: RHONDA LOU ENERGY CORP. #2, Applicant v OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT (OSM), Respondent  

DATE: November 8, 1979  

CASE-NO: Docket Nos. CH 9-34-R, CH 9-23-R  

PROCEEDING: Docket No. CH 9-34-R, Application for Review, Notice of Violation No. 79-I-17-5; Docket No. CH
9-23-R, Application for Review, Notice of Violation No. 79-I-18-2  

COUNSEL: APPEARANCES: Galen C. Thomas, Esq., c/o Barber Oil Corporation, 245 Park Avenue, New York, NY
10017, for Applicant; Marye L. Wright, Esq., Office of the Field Solicitor, 723 East Kanawha Blvd., Charleston, WV
25301, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   PROCEDURAL BACKGROUND  

   In accordance with  525 of the Surface Mining Control and Reclamation Act of 1977 (the Act) Rhonda Lou Energy
Corporation #2, Applicant, applied on February 5, 1979 for review of Notice of Violation No. 79-I-18-2 issued by the
Office of Surface Mining Reclamation and Enforcement, Respondent, under  521(a)(2) of the Act.  On February 26,
1979 the Applicant applied for review of Notice of Violation No. 79-I-17-5 issued by the Respondent to the Applicant
under the section of the Act referred to above.  

   These matters were consolidated for the purposes of hearing and decision making and a hearing was held before the
undersigned on the 17th day of October, 1979 in Wise, Virginia.  At the conclusion of the Respondent's proof the
Applicant's motion to dismiss Violation No. 1 of Notice of Violation No. 79-I-17-5 was sustained.  At the conclusion of
the entire hearing both the Applicant and Respondent waived their rights to file proposed findings of fact and
conclusions of law and each of them asked that a final decision be rendered immediately.  

   Thereupon the undersigned rendered a decision wherein Notice of Violation No. 79-I-18-2 and the violation contained
therein was vacated and Violations Nos. 2 and 3 of Notice of Violation No. 79-I-17-5 were sustained.  {2}
 
   CONFIRMATION OF DECISION  

   The decision of the undersigned including the findings of fact and conclusions of law is contained in the verbatim
record made in this case are confirmed by this written decision and order.  An extract of the pertinent parts of the
verbatim record are attached hereto as Appendixes 1 and 2.  

   ORDER  

   Notice of Violation No. 79-I-18-2 and the violation contained therein is ordered vacated.  Violation No. 1 of Notice of
Violation No. 79-I-17-5 is ordered vacated.  Violations Nos. 2 and 3 of Notice of Violation No. 79-I-17-5 are ordered
sustained.  

   This decision may be appealed in accordance with 43 CFR  4.1271 by filing a notice of appeal within 30 days of the
receipt of this decision with the Board of Surface Mining and Reclamation Appeals, U.S. Department of the Interior,
4015 Wilson Boulevard, Arlington, Virginia 22203.  

   David Torbett  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   Galen C. Thomas, Esq., c/o Barber Oil Corporation, 245 Park Avenue, New York, NY 10017  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, 723 E. Kanawha Blvd.,
Charleston, WV 25301  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240 {50}
 
   APPENDIX 1  

   RULING ON MOTION TO DISMISS  

   JUDGE TORBETT: All right, it's my opinion that each one of these cases will have to be judged on its merits.  There
can be a dozen violations of the effluent standards.  I think it's a matter of discretion of regulatory authority, but I think
they have to have a factual basis to write them.  In this particular case the proof to me shows that in reality there is no
more pollution the second time around than the first time.  It's just running a different way. In other words, the bulk of
the problem comes from the underground mine.  One of your witnesses testified that the majority of the water came
from the southern portal.  The other witness said 50-50.  In any case, the purpose of the regulation is to stop pollution. 
In this case it's just running off the permit a little bit differently.  So, you see at times you {51} would write two
violations, but I don't think the facts in this case justify that.  That's my opinion and on that basis, violation one of Notice
of Violation 79-I-17-5 is dismissed.  I don't think the proof shows any more or any less pollutants going in the water the
second time than there were the first time.  I think you could write a hundred violations if you got your magnifying glass
out.  

   All right, that's my opinion so the motion is sustained to that part only. Are you ready to go ahead?  {134}
 
   APPENDIX 2  

   FINAL RULING  

   JUDGE TORBETT: Okay, this is the final opinion in the case.  To draw a parallel situation, and no parallel situation
is ever really parallel, it's against the law to put spoil on the downslope.  {135}
 
You can set it on a solid bench.  Of course, if the solid bench breaks, which it can do, and dirt and spoil fall on the
downslope, that's not a violation.  The miner's not an absolute insurer of the physical environment in which he works. I
tried a case in Alabama, which is also sort of the same case, there they put a charge in and they got what they call a
blowout.  There's no way to avoid a blowout because - I mean there might be a way, but under normal engineering you
are not going to see a crack in the rock down deep.  If you get a blowout and it throws the rock over somebody's house,
if you've used proper engineering methods and are not negligent, then, you are not responsible.  At least that's my
opinion.  In this case, even though the Respondent has made a prima facie case, the ultimate burden of persuasion in my
estimation has been carried by the Applicant.  That is, the Applicant has shown by the preponderance of the proof that
they used the correct engineering methods when they built this mine. There's no evidence that they were negligent, or
that they didn't use those accepted engineering methods which were used {136} in constructing a mine close to an
abandoned mine area.  Now, understand these circumstances, the water which broke through the wall was - I would say
- an act of God.  There's no other way to describe it.  It wasn't there when they started the mine; it wasn't there when
they built the walls; and it wasn't there when they checked the pipes. in the brattice walls.  Even at that, according to this
map - if it's accurate and I have no reason to believe it isn't - the water came out of an area before the first abandoned
tunnel, which is an indication to me there would have been no way that the mining company could have discovered that
there was water accumulating behind that solid wall.  I don't think they would have been required to use boreholes
where they were able to inspect the abandoned mine workings.  There is just absolutely no evidence that they used poor
engineering practices when they started this mine.  Their testimony stands essentially unrebutted.  As I said, they are not
insurers of the environment in which they work.  

   Now as to the failure to have the surface water monitoring program approved, and the approval {137} of the ground
water program, the fact that the State of Virginia didn't get around to doing it is tough.  It's a rough way to live, but I
don't have any authority to overturn those.  As I told one of the Kentucky officials, I can't punish the State of Kentucky
for their sins, The Department has to punish, unfortunately, the miner because we can't take an action against the State. 
So, Violations 2 and 3 of the Notice of Violation 79-I-17-5 are sustained.  I do want to check a little bit on Violation No.
1.  

   MS. THOMAS: That's the one that had been dismissed.  

   JUDGE TORBETT: That's right.  I think I was a little bit premature in dismissing it.  I probably shouldn't have
dismissed it.  Once you have something like that occurring you don't have the right to continue mining.  I think under all
the circumstances though, everything was being done that was possible to  abate the existence of the violation.  In other
words, the proof of what was being done, I think, becomes pertinent.  Even though you are not responsible for the
violation, if you are allowing what amounts to a clean stream of water {138} to run through a mining area and you are
not doing anything about it, even though you are not responsible for the water, you are responsible for the pollution.  But
I think that probably everything was being done that could be done to avoid the stream pollution which was taken place. 
I think under these circumstances that Violation No. 1 of Notice of Violation No. 79-I-17-5 should be vacated.  The
reason for it is that the company wasn't responsible for the huge flow of water and they were doing everything they
could in order to cease the pollution which was being caused by their mining efforts.  I find that by the preponderance of
the evidence that has been presented here today.  I also find that all the witnesses swore to the truth and they are all
entitled to be believed under oath, and I did believe them under oath, and that there was no material conflict in the
testimony which the Administrative Tribunal had to resolve.  

   Now, are there any questions only about the adequacy of the opinion, not the rightness or the wrongness of it?  

   MS. WRIGHT: Respondent requests his Honor to make a specific finding with respect to Violation No. 1 {139}
 of 17-5.  Did his Honor find that all the water which flowed from the southern portion was water from the southern
portal, or did that include water that is the surface run off?  

   JUDGE TORBETT: It's my opinion that the testimony by a bare preponderance of the evidence is that the majority of
the water, that water which constituted or brought about the violation, came from the break in the mine wall.  Now,
there's reason for that decision.  When they've got the breaks in the mine wall and they are doing the work, redoing the
mining area, you can't charge them with incidental violations while they are rebuilding it.  It's like charging them with a
sediment pond violation.  While you are building the pond and the water is going over the area where you are digging
and you are trying to get the pond dug up, you have to have some place downstream - it's impossible to build a pond
otherwise.  So that's what I'm saying in this case.  The great majority of the water, according to your own witness, came
from the break in the wall while they were reworking the area in order to abate a violation or abate a situation that was
not of their own making.  So, it's my own opinion that you can't {140} charge them at that time.  It's like building roads
and ditches.  You are going to have a little bit of a violation while they are being built.  It's impossible not to.  If it rains
while you are building the pond or the road, or digging a ditch, it's bound to pollute the stream a little bit.  Of course,
you can charge them with the negligent building of sedimentation ponds where they were running too much
sedimentation or where they built it halfway through and walked off and left it, but I don't think that's the evidence in
this case.  That's why it became pertinent to what they were doing.  I think the evidence in this case, by a preponderance
of the evidence, shows they were doing everything they could to abate the violation.  You and I know very well that what
a record shows and what actually happened is often different.  I go by what the record says.  

   MS. THOMAS: Your Honor, I have a problem with your both dismissing the case and vacating it.  

   JUDGE TORBETT: I just vacated.  That's bad language.  

   MS. THOMAS: We did not present our testimony on the case.  We rested after you dismissed it, so {141} we would
have presented --  

   JUDGE TORBETT: I understand that, but I stick to my original ruling.  I'm just saying I made it prematurely.  No, I
can't back out of it.  I'm going into it to show that I messed up and I am not going to do that anymore.  It's always a bad
idea, but I stand on it.  It was dismissed.  

   MS. THOMAS: No, your Honor.  

   MS. WRIGHT: No, your Honor.  

   . . . This hearing was adjourned at 2:30 P.M.. .