HARMAN MIN. v. OFFICE OF SURFACE MIN. RECLAMATION AND ENFORCEMENT, Civ. A. No. 85-0322-A

• Decision Date: 05 May 1987
• Docket Number: Civ. A. No. 85-0322-A,86-0197-A.
• Citation: 659 F. Supp. 806
• Parties: HARMAN MINING CORPORATION, Plaintiff, v. OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, et al, Defendants. HARMAN MINING CORPORATION, Plaintiff, v. Donald P. HODEL, Secretary of the Interior et al, Defendants.
• Court: U.S. District Court — Western District of Virginia

659 F. Supp. 806

HARMAN MINING CORPORATION, Plaintiff, v. OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, et al, Defendants.

HARMAN MINING CORPORATION, Plaintiff, v. Donald P. HODEL, Secretary of the Interior et al, Defendants.

Civ. A. Nos. 85-0322-A, 86-0197-A.

United States District Court, W.D. Virginia, Abingdon Division.

May 5, 1987.

Joseph W. Bowman, Grundy, Va., John A. MacLeod, Thomas C. Means, Washington, D.C., for plaintiff.

Charles Gault, Bruce T. Hill, Dept. of Interior, Knoxville, Tenn., for defendants.

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This decision addresses two separate actions (Civil Action Nos. 85-0322-A and 86-0197-A) in which the plaintiff, Harman Mining Corporation (Harman) seeks review of the decision of an administrative law judge denying plaintiff's request for temporary relief from the Notice of Violations (NOV) issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE or OSM); requests that this court declare OSM's actions unlawful; and asks this court to enjoin defendants, OSMRE, from enforcing the respective NOVs. This court has jurisdiction under 30 U.S.C. § 1276 and 28 U.S.C. § 1331. The court finds it necessary to relate the specific facts of each action.

CIVIL ACTION NO. 85-0322-A

On March 21, 1985, OSM conducted an oversight inspection at the Krest Mine (formerly L & L Coal No. 9 mine) which the plaintiff owns but operates through a contract miner. On March 25, 1985, OSM issued a Ten-Day Notice No. X-85-13-288-08 to the Virginia Division of Mined Land Reclamation (DMLR) alleging a violation of V771.11, the Virginia state program regulation prohibiting surface coal mining and reclamation operations without a valid permit. OSM claimed that Harman had failed to permit a haulage road called Little Prater Road. The Ten-Day Notice serves as a notification to the state and permittee that a violation exists and gives them an opportunity to take enforcement action. If the state fails within ten (10) days after this notification to take appropriate action to correct the violation or show good cause for such failure, OSM is required to reinspect, and if the violation continues, OSM may issue a NOV or cessation order. DMLR previously had determined that Little Prater Road was a public road under the Virginia State Program and did not require Harman to permit it; therefore, in response to the Ten-Day Notice DMLR noted that it had previously determined that Little Prater Road was a public road and took no further enforcement action with respect to the Ten-Day Notice.

On July 1, 1985, OSM issued NOV XX-XX-XXX-XXX alleging that Harman was in violation of the Virginia State Program for failure to permit Little Prater Road and requiring Harman either to obtain a permit or face a cessation order and substantial civil penalties. Harman contested the NOV by filing an application for review on July 26, 1985 and a request for temporary relief on August 2, 1985. On September 26, 1985 Administrative Law Judge Joseph E. McGuire conducted a hearing and orally denied Harman's request for temporary relief. Pursuant to 30 U.S.C. § 1276(a) the plaintiff commenced this action on October 3, 1985 and on October 11, 1985 the ALJ officially confirmed his oral order denying plaintiff's request for temporary relief; the basis of ALJ McGuire's denial being that Harman was not likely to prevail on the merits. This court, however, granted the plaintiff's request for temporary relief on October 28, 1985.

Specifically, the parties presented the following evidence as to whether Little Prater Road is a public road. It is 1.95 miles in length and connects State Route 604 and State Route 617 in Buchanan County, Virginia. The road provides sole access to two active mines other than Harman's Krest mine and the only access to a cemetery. In addition, the road provides access for the 12-15 private homes located along the stretch at issue. However, the road appears on no official highway map but is shown on a USGS quad map which designates it as a jeep trail. The road is maintained with public funds, however, the parties are in sharp dispute as to the amount expended. The defendant claims that the county provided, from the coal haulroad fund, $1,125 in gravel to maintain the road in 1981, $1,065 in 1983, and $1,125 in 1985. Additionally, defendant contends that the county did not maintain the road, but only provided the gravel to Harman who worked the road. Harman however, contends that the county has contracted for a bridge, paving, ditching and graveling in the amount of $135,000. In addition, the land-owners formally deeded a right-of-way for the road to the county in 1952 and when two county officials (Gary Rose, a member of the Buchanan County Board of Supervisors, and Joe Bland, Buchanan County Administrator) were questioned if Little Prater Road was a public county road, both answered "Yes, sir." Transcript of Proceedings Before the Department of Interior pp. 57 and 85. Lastly, an OSM employee testified that during his brief inspection, he saw little public use of the road; however, plaintiff found in an informal survey that 44 coal haul trucks and 93 passenger vehicles used the road during a ten-hour period.

CIVIL ACTION NO. 86-0197-A

On December 7, 1983, OSM conducted an inspection at Deel Fork Refuse Area, which Harman operates in Buchanan County, Virginia. As a result, OSM issued a Ten-Day Notice No. X-84-13-73-1 to DMLR on January 30, 1984 alleging a violation of V771.11. OSM claimed that Harman had failed to permit a haulage road called Deel Fork Road. Previously DMLR had determined that Deel Fork Road was a public road under the Virginia State Program which Harman was not required to permit, therefore, DMLR took no further enforcement action with respect to the Ten-Day Notice.

On January 6, 1985, OSM issued NOV XX-XX-XXX-X alleging that Harman was in violation of the Virginia State Program for failure to permit Deel Fork Road and requiring Harman either to obtain a permit or face a cessation order and substantial civil penalties. To contest the NOV, Harman filed an application for review on February 4, 1985 and a motion for temporary relief on February 7, 1985. On March 26, 1985 Administrative Law Judge Joseph E. McGuire conducted a hearing and received evidence. On July 8, 1986, Judge McGuire denied Harman's temporary relief request and its challenge to the validity of NOV XX-XX-XXX-X. Harman appealed the ALJ's denial of its application for review to the Interior Board of Land Appeals, which appeal is still pending. Pursuant to 30 U.S.C. § 1276(a), Harman commenced this action on August 5, 1986 to appeal the denial of temporary relief. This court granted the plaintiff's request for temporary relief on August 7, 1986.

The parties presented the following evidence at the March 26, 1985 hearing with regard to whether Deel Fork Road is a public road. The disputed section of Deel Fork Road begins at the end of State Route 664 and continues for one-half mile to the upper end of the refuse area. Eight residences use the cited section for access to their homes and two active coal mines use the cited section to reach their mines. Harman deeded its easement rights in the road to the county in 1978. Paul Elswick, a member of the Buchanan County Board of Supervisors, testified that the road has existed for 20 years and is considered a public road, maintained by public funds. Local resident, John Clevinger, who has lived on Deel Fork Road all his life, testified that the road was constructed and maintained in the same manner as the remaining public roads in Buchanan County. County records indicate that Buchanan County spent $100 from its general fund for maintenance between 1982 and 1985; that the county spent $5,000 in Federal Disaster Funds on the entire length of the road (3 miles) in 1984; and that the county spent $3,000 from Coal Severance tax since 1978. Joseph Bland, Buchanan County Administrator, filed an affidavit with plaintiff's November 8 motion to supplement the record, which stated that the county paid $31,459.17 to have .26 mile of the cited section paved in October, 1985. Lastly, Joseph W. Bland testified that the county lost 90 percent of its records concerning roads in Buchanan County as a result of the 1977 flood.

OPINION

The issue before this court is whether this court should temporarily enjoin OSM from enforcing the NOVs at the Deel Fork Refuse Area and the Krest mine. The Surface Mining Act specifically authorizes district courts to review the decision of an ALJ and to grant temporary relief from the NOV. See 30 U.S.C. § 1276(a)(2), (c). The Fourth Circuit has clearly set forth the standard by which the district court shall enjoin the Secretary:

(1) all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;

(2) the person requesting such relief shows that there is substantial likelihood that he will prevail on the merits of the final determination of the proceeding; and

(3) such relief will not adversely affect the public health or safety or cause significant environmental harm to land, air, or water resources.

Virginia Surface Mining and Reclamation Association v. Andrus, 604 F.2d 312, 315 (4th Cir.1979). Indeed, the Fourth Circuit's criteria is the same criteria which Congress adopted in 30 U.S.C. § 1276(c). It is important to note, however, that a district court in reviewing a request for temporary relief applies a different standard of review than a district court which reviews an ALJ's decision on the merits. In reviewing a decision of an ALJ on the merits or any other related order or decision, a district court must affirm if the findings are "supported by substantial evidence on the record considered as a whole." § 1276(b). An exception to this rule arises when a district court considers a request for temporary relief pending final determination. In this instance § 1276(c)...