FELL ENERGY COAL CORP. v OSM;  Docket No. NX 9-99-R (November 7, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: November 7, 1979  

CASE-NO: Docket No. NX 9-99-R  

PROCEEDING: Application for Review, Notice of Violation No. 79-II-57-12, Mine 28-1  

COUNSEL: APPEARANCES: H. R. Fell, President, P.O. Box 6892, Birmingham, AL 35210, for Applicant; Charles
P. Gault, Esq., Office of the Field Solicitor, 530 S. Gay Street, Knoxville, Tennessee 37901, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

   In accordance with  525 of the Surface Mining Control and Reclamation Act of 1977 (the Act) Fell Energy Coal
Corporation, Applicant, applied on August 3, 1979 for review of a notice of violation issued by the Office of Surface
Mining Reclamation and Enforcement, Respondent, under  521(a)(2) of the Act.  A hearing was held before the
undersigned on October 19, 1979 in Birmingham, Alabama.  

   At the conclusion of the 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 the notice of violation was vacated.  

   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 part of the
verbatim record is attached hereto as Appendix 1.  {2}
 
   ORDER  

   Notice of Violation No. 79-II-57-12 is ordered vacated.  

   This decision may be appealed in accordance with 43 CFR $4.1271 by filing a notice of appeal within 30 days of the
date of the receipt of this decision and order 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)  

   H. R. Fell Energy Coal Corporation, P.O. Box 6892, Birmingham, AL 35210  

   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 {23}
 
   APPENDIX 1  

   JUDGE TORBETT: All right.  Mr. Gault, I think under the circumstances, I think everyone of these cases have to go
under their own merits.  He has shown, I think, a reasonable {24} degree of care.  He is not an insuror that the sign will
be there, but while it's under bond he has to visit it periodically to make sure the sign is there. I think that the facts in this
case are such that the sign was there.  He was there at reasonable time and the sign was there.  Now, if six months had
passed and he hadn't gone back it would be different.  This particular piece of paper right here sort of helps it because
that's evidence that somebody else other than him saw the sign.  He is responsible to go back every so often to see that
the sign is still there.  

   Every one of these cases is going to be different.  When you go out and you can't find the sign and you have to look the
guy up and he says well, I just haven't bothered to go back, or he lies about it and says he has, but but the facts are
against him you should issue a citation.  I just don't think they are insurers of the sign.  In other words, that's an
impossible burden.  He is not there; he has put his sign up.  His sign was there, we know that by independent testimony. 
So, I think every case is on its own merit.  I think the facts are the sign was really there.  He is fortunate to have this
report here from the State Inspector that indicates the sign was there shortly before he got there. Of course, he wouldn't
take it down.  

   MR. GAULT: Your Honor, there are two problems.  One is our Office of Surface Mining Inspectors are under duty to
{25} write up a violation.  

   JUDGE TORBETT: Oh, I think they should write up a violation any time the sign is not there.  They should write
them up and then if it comes up later that the sign had been there just previous to you getting there and he is visiting the
site at fairly regular intervals; I feel like he is doing his best to go by the law.  This particular case right here, this
document which is part of the bond release request is documentation to the effect that the marker was there when the
state inspector visited the mine site shortly before the OSM inspection.  I don't see how he could do any better than this.  

   MR. GAULT: Well, Your Honor, this is October the 19th, and I asked Mr. Fell if that sign was there today --  

   JUDGE TORBETT: If it is not there today, you write up a violation, I think you've got him.  If it's not there today and
he hasn't visited the mine site, then, if you go out there on a normal inspection to see if the vegetation is growing
properly and there is no sign there then, you could write up a violation.  The violation you wrote was perfectly proper. 
You should always write up a violation when there is no sign there.  It's just I think, he's got some pretty good evidence
in this case.  The sign was there and that he had checked at reasonable {26} times.  He can't help what a vandal might
do the night before the inspector comes.  

   It's a very hard case because I realize the problems these inspectors will have.  Certainly you should write up a
violation any time the sign is not there. If a man can explain it successfully, that's one thing, if he can't explain it, then
he's dead.  I tried a case just like this-this rib-breaking with thousands of gallons of water coming out.  They had
engineered that place in a proper manner and could prove there was no water in the abandoned mine site.  They sealed it
up; they had pipes in the top; they had pipes in the bottom; they checked them every day.  No water.  Suddenly one day
they had water coming out that completely inundated the place and over came the sedimentation pond.  Now, that case
was decided on the basis that they done everything right and that it was an act of God.  Now, the act of a vandal would
be about the equivalent.  

   Suppose they had a tornado that came and tore down the sign and you came to inspect?  I think it's clear particularly
since he has got this document that shows that the sign was there.  It is very difficult I understand.  

   So, unless there is something to be brought up.  This hearing is closed.  

   (Whereupon, the above entitled matter was concluded.)