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<br />found that Consolidation had not followed such
<br />practices and that to "allow the company to
<br />avoid the sedimentation pond requirement
<br />through the circumstances of its having ignored
<br />the other preventative requirements of section
<br />717.17(x) clearly would be contrary to the
<br />collective purpose of the requirements of that
<br />section."
<br />Hydrologic Balance--Effluent Limitations:
<br />OSM inspectors also cited Consolidation for
<br />violation of effluent limitation regulations, in
<br />addition to the sedimentation pond violations.
<br />The Board dismissed the effluent limitation
<br />violation issued [or the basin on top of the
<br />refuse pile, finding that the inspector tailed to
<br />sample effluent leaving the basin at the time of
<br />the inspection. The drainage the inspector did
<br />sample, the Board found, came from an
<br />abandoned mine workings, an area the ALJ in
<br />ihrs case found the company was not responsible
<br />tor. Since OSM did not appeal this ALJ's
<br />ruling, the Board ruled that the N OV issued for
<br />this discharge should be dismissed.
<br />The Board upheld the NOV issued for violation
<br />of effluent limitation regulations for the seep at
<br />the base of the refuse pile. OSM showed that
<br />the company was responsible for "at least some
<br />of the drainage," the Board found, ruling that
<br />"Consolidation is responsible for the quality of ,
<br />the seepage at least until such time as the
<br />company might demonstrate b}' more than
<br />conjecture that the drainage is solely from an
<br />area that the company has not disturbed in the
<br />course of its operations." Jeffco Sales ~
<br />Mining Co., 4 IDSMA 140, 89 1. D. 467 (1982)
<br />(95-67, October 1982).
<br />Consolidation Coal Co., IDSMA 82-]4, 4
<br />IDSM11A 227: Dec. 17, 1982; affirming in part,
<br />reversing in part, CH 0-387-R d: CH 0-388-R:
<br />Shepherd, Feb. l0, 19B2 (95-87, May 1982)) 19
<br />PP•
<br />Counsel: Dania] Rogers, Consolidation Cosl,
<br />1800 N'sshington Roed, Pittsburgh, PA 15241;
<br />Walt Morris, OS M, Washington, D.C. 20240.
<br />The Board affirmed an ALJ's finding that
<br />an individual had conducted mining without
<br />a permit, in violation of 30 CPR
<br />710.11(2)(1).
<br />Permits dr Permit Applications-Mining
<br />Without a Permit/30 CFR 730.11(2)(1)/
<br />Exemptions from the Act/Roads: Lobel
<br />Bartley was cited for mining without a permit
<br />after an OS M and state inspector found that he
<br />had disturbed more than two acres and removed
<br />more then 250 tons in less than 12 months. A n
<br />ALJ affirmed OS~M's NOV and CO. Bartley
<br />appealed to the Board.
<br />Before the Board, Bartley argued that he
<br />would not have exceeded two acres if he had
<br />not restored and graded an abandoned access
<br />road and that he was licensed by the state of
<br />Kentucky to operate a mine in order to prepare
<br />a house site. The Board dismissed these
<br />arguments, finding first that Section 701(28)(B)
<br />includes road improvements done in connection
<br />with coal mining activities under the definition
<br />of surface coal mining operation. Thus,
<br />Bartley's improvements should be counted toward
<br />determining the applicability of the two acre
<br />exemption, the Board ruled.
<br />The Board also found that Bartley was
<br />required to have a permit under Kentucky law,
<br />which defines an operator as anyone who mines
<br />more than 250 tons end affects more than two
<br />acres in a twelve month period. K RS
<br />350.060(1). Since Bartley exceeded both of
<br />these limits, the Board concluded that he was
<br />required to have a permit. Finally, the Board
<br />found the[ mining as an incidental part of
<br />construction "is not an activity excluded fls such
<br />from coverage by the Federal performance
<br />requirements of the initial regulatory program."
<br />James M11oore. 1 IBSMA 216, 86 I.D. 369 (1979).
<br />Finally, the Board dismissed Bertley's
<br />constitutional challenges as inappropriate for
<br />this forum.
<br />(Lobel Bartley, IDSM11A 81-61, 4 IBSMA 219:
<br />Dec. 17, ]982; affirming. Nh 1-54-R: Allen,
<br />April 16, ]981 (95-87, July 1981)) 9 pp.
<br />Counsel: Glenda Y.udson, OSM, Washington, DC
<br />20240.
<br />The Board affirmed an AL's finding that
<br />Jewell Smokeless Coel was not entitled to
<br />a two acre exemption.
<br />Two Acre Exe:n lion/Roads-Public/30
<br />CFR 710.5/30 CFR 700.1] b : An OSM
<br />inspector cited the company for several
<br />violations. Jewell Smokeless Coel appealed to
<br />an Interior ALJ, claiming that it was entitled to
<br />a two acre exemption since the company had
<br />deeded a haul road to a county government,
<br />thereby reducing the acreage the company
<br />affected. The ALJ dismissed this argument and
<br />the company appealed to the Board.
<br />The Board affirmed the ALJ's finding,
<br />referring to its decision rn Jewell Smokeless
<br />Coal Cor .. 4 IDSMA 51, 89 LD. 313 1982
<br />95-B7, July 1982). In that decision. the Hoard
<br />held that merely deeding a haul road to a
<br />public body was not sufficient to meet the
<br />requirements in 30 CFR 710.5 for exemption
<br />roads from the jurisdiction of the Act. The
<br />Board noted that it held in that case that "the
<br />road must be maintained with public funds and
<br />that the burden was on Jewell to demonstrate
<br />affirmatively that the exemption applied."
<br />Permittee/Operator: Jewell held a permit
<br />on the land being mined, but another company
<br />
<br />
<br />
<br />THE 987 REPORTER/FEBRUARY T983 104
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