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<br />relying on the decision made in B ~ M Coel v.
<br />OSM, 531 F. Supp. 677, 681 (S.D. lnd. 1982)
<br />959587, August 1982), found that exceptions exist
<br />to this rule "where a significant government
<br />interest justifies a delay." As in B k M Coel
<br />v. OSM, Judge Sachs turned to the standards set
<br />in Mathews v. Eldridge, 924 U.S. 319, 335 (1976)
<br />to determine if the Act and regulations comply
<br />with due process requirements. Judge Sachs
<br />first found that the private interest at stake "is
<br />not of great magnitude" given the company's
<br />ability to continue mining and to receive
<br />interest on payments made in escrow should it's
<br />appeal be successtuL Second, Judge Sachs
<br />found that the interest of the government in
<br />requiring prompt compliance is "significant."
<br />And third, the judge found that "the risk of
<br />erroneous deprivation is slight," given the
<br />several layers of administrative review available.
<br />Noting that other courts have upheld the
<br />constitutionality of this section, and that, under
<br />the test set out in Mathews v. Eldridge,
<br />"procedures provided in the Act and regulations
<br />do not violate defendant's procedural due
<br />process rights," Judge Sachs dismissed the
<br />company's appeal and ordered it to pay a civil
<br />penalty of f38,8D0.
<br />(U.S. v. Missouri Mining, Inc., Nos.
<br />80-6092-CV~J do 81068-CV-SJ (W.D. Missouri,
<br />Oct. 5, 1982) 5 pp.
<br />INTERIOR BOARD OF
<br />SURFACE MINING AND
<br />RECLAMA770N APPEALS
<br />The Honrd dismissed NOV's issued for
<br />violations of sedimentation pond and
<br />effl„r t limitation standards when it found
<br />evidence thnt wa er ~ not lenve the
<br />permit area and when no evidence was
<br />entered showing that effluent cited by the
<br />inspector came from the disturbed area of
<br />a surface mining operation.
<br />Sedimentation Ponds/30 CPR 715.17(e)/30
<br />CFR 717.17(x): OSM inspectors made two
<br />visits to a Consolidation Co&1 Co. underground
<br />mine. During the first visit, the inspector cited
<br />a basin area on the top of a refuse pile for a
<br />violation of sedimentation pond regulations after
<br />finding that a berm had been broken and
<br />breeched and that water had left the permit
<br />area. During the second visit, the inspector
<br />cited [he company for another violation of
<br />sedimentation pond regulations after he found
<br />~.-• effluent seeping from the base of the refuse
<br />pile and from an access road and railroad
<br />siding.' - ...~.-':..
<br />In reviewing these sedimentation pond
<br />- -violations, .the :Board Sirst determined 'that the
<br />"'~ -'~`, 7HE 95-87;REAORTER/FE8>~UARY`7983: ~ •'
<br />a,: "
<br />regulations requi~g sedimentation ponds ere e
<br />"preventative measure" and that "e violation of
<br />the requirement can be proven independently of
<br />a violation of the effluent limitations prescribed
<br />for discharges of drainage from (a) disturbed
<br />area." Avanti Mining Co., 4 IBSMA 101, 106-7,
<br />89 I.D. 378, 380-81 (1982) (95-87, August 1982).
<br />The Board also outlined the elements of proof
<br />of a violation of the sedimentation pond
<br />requirement: "(1) The existence of surface
<br />drainage from areas disturbed in the course of
<br />mining end reclamation operations; (2) that such
<br />drainage was not passed through a sedimentation
<br />pond; and (3) that the drainage left the permit
<br />area." Black Fox Mining 8c Development Corp.
<br />v. Andrus, No. 80-913 (W.D. Pa., Jan. 21, 1981)
<br />(95-87, March 1981).
<br />The Board found that these requirements weret
<br />meet in two of the areas cited by the ,
<br />inspector. First, the Board found that evidence '
<br />showing that the basin on the top of the refuse
<br />pile had been breeched (although the inspector
<br />had not seen. water leeving~ie..permti.aree) and
<br />toooereohical features of the area constituted
<br />Consolidation's argum`enT that the basin itself
<br />served as a sedimentation pond, finding that
<br />there was no evidence to show that the basin
<br />was constructed to meet the performance
<br />standards of a sedimentation pond, i. e., the
<br />ability to detain the runoff from a 10-year,"
<br />29-hour precipitation event, 30 CFR 717.17(eX3).
<br />The Board also found [het an NOV issued for
<br />failure to have a sedimentation pond et the
<br />base of the refuse pile, where an inspector
<br />found seeps that led off ther permit area,
<br />should be upheld. The Board rejected the
<br />company's argument that these seeps were
<br />caused by drainage from an abandoned
<br />underground mine, citing testimony of a
<br />company engineer saying that s portion of these
<br />seeps could have been caused by water
<br />percolating through the refuse pile._
<br />The Board, however, dismissed an NOV issued
<br />for failure to provide sedimentation ponds Cor
<br />runoff from an access road and railroad crossing
<br />when it found no evidence to show that runoff
<br />Srom these areas left_the permit area. "Without
<br />some credible evidence of present or pest
<br />drainage from the disturbed area flowing off the'
<br />permit area," the Board ruled, "an alleged
<br />violation of the sedimentation pond requirement
<br />cannot be upheld."
<br />Acid and ToxirPorming Mcterials-
<br />Underground Mining/30 CPR 717.17(aj: The
<br />Board found that the operator ocean underground
<br />mine is required by 30 CFR 717.17(x) "to follow
<br />practices to prevent water contact with acid- or
<br />toxirforming materiels and to minimize water
<br />contact time with waste materials." The Board
<br />103 ~ ">.~., ._._
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