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March 30, 1973

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The issue inherent in an applica- cant could have presented evidence tion for review of a notice of viola- to show that the extended time tion is the reasonableness of the time allowed for abatement, i.e., until allowed for abatement section 105 November 15, 1972, is unreasonable, (a) of the Act). Normally such an assuming, arguendo, the existence of applicant would have the burden of a violation, it did not choose to avail presenting evidence to show that

itself of that right and elected inthe abatement period is unreasona- stead to rest its case solely on legal ble and the applicant's failure to and factual arguments to the effect present such evidence would make that no violation exists. the application for review subject to

The Issues dismissal (Freeman Coal Mining Corp., 1 IBMA 1,25 (1970), 77 I.D.

The Applicant's argument that

no violation exists is grounded 149, 163). In this proceeding, however, the Applicant's contention upon two contentions, one of which that no violation exists, if sustained,

is primarily legal and the other of would make any time allowed for

which is essentially factual. The abatement unreasonable (Freeman,

threshold legal argument is that the supra, at 1 IBMA 27 and 77 I.D. alleged violations pertain to fires on 164). Since it is the Bureau's burden

refuse piles which are not subject to to prove the existence of a violation

the Mandatory Safety Standards

because the refuse piles were con(Lucas Coal Co., 1 IBMA 138, 79 I.D. 425 (1972)), the Applicant structed prior to the date of July 1, claimed that the Bureau would be

1971, when Part 77 of the Standunable to sustain its burden and

ards was made applicable to refuse that the Bureau's failure of proof

piles. Applicant's

Applicant's supplemental would automatically sustain its ar

factual argument is that both of

the notices of violation should be gument that no violation exists and

vacated because the Bureau has would require the vacation of the

been unable to sustain its burden of Bureau's notices involved in this proceeding

proving under section 77.215(c) of The Board has recognized that

the Safety Standards that the

fires were caused by spontaneous the question of whether a violation occurred may be raised and should

ignition. be given expedited treatment in the Disposition of the Legal Issue factual circumstances which exist in The notices of violation, both this case because the fact of whether bearing the title of “Notice No. 1 a violation actually occurred is J.M.J." and both dated Septem

prerequisite for determining ber 25, 1972, cited violations of secwhether the time allowed for abate- tion 77.215(c) of the Safety Standment is unreasonable (Reliable Coal ards in that refuse piles at Sewell Corp., 1 IBMA 51, 64 (1971), 78 Preparation Plant Nos. 1 and 4 I.D. 199, 206). Although the Appli- were not covered with clay or

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other sealants to extinguish the fire" that the heading clearly shows that (Govt.'s Exh. No. 5). Section the Standards set forth thereunder 77.215(c) reads as folows:

were designed for guidance in con

structing new refuse piles rather (c) Clay or other sealants shall be used to seal the surface of any refuse

than for preventing fires on old pile in which a' spontaneous ignition has refuse piles. occurred.

The Bureau's answer to the ApApplicant's legal argument is plicant's legal argument is that the based on its interpretation of the word “any” in front of the words preceding section 77.214(a) which "refuse pile” in section 77.215(c) is provides :

controlling and means that a fire $ 77.214 Refuse piles; general. should be extinguished in any ref(a) Refuse piles constructed on or

use pile regardless of whether it is after July 1, 1971, shall be located in

located on an old or a new refareas which are a safe distance from use pile. Also the Bureau claims all underground mine airshafts, prepa- that the headings in the Safety ration plants, tipples, or other surface

Standards are for convenience and installations and such piles shall not be located abandoned openings

do not modify the clear language of steamlines.

the Standards. Applicant contends that section

The Supreme Court of the United

States has laid down some general 77.215 must be read in connection with the preceding section 77.214 guidelines for interpreting statutes

which are helpful in disposing of which specifies the effective date of

the Applicant's arguments concernthe Standards and that it is obvious that the Mandatory Safety Stand

ing sections 77.214 and 77.215 of the ards were not intended to apply to

Safety Standards. In Crane v. Com

missioner of Internal Revenue, 331 any refuse piles except those which have been constructed since July 1,

U.S. 1, 6, 13 (1947), the Court

stated that the words of statutes 1971. The evidence shows that both

65* * * should be interpreted where of the burning refuse piles were constructed before July 1, 1971.

possible in their ordinary, everyday

senses” and “* * * that one section Therefore, the Applicant argues

of the [Internal Revenue] Act must that section 77.215(c) is not appli

be construed so as not to defeat the cable to its burning refuse piles and

intention of another or to frustrate that the Bureau's representative

the Act as a whole." The Court in has improperly lifted section 77.215

United States v. Bryan, 339 U.S. (c) out of context and applied it to

323, 338 (1950), noted that statutes refuse piles on which it no longer should not be interpreted so as to dumps refuse from its preparation reach absurd results, and in United plants. Additionally, Applicant States v. Rice, 327 U.S. 712, 7533 notes that the heading of section (1946) the Court emphasized that 77.215 is “Refuse piles; construc- mechanical rules of construction tion requirements" and contends should be avoided where the statu

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March 30, 1973

tory language and objective are rea- tools, equipment, shafts, slopes, tunnels, sonably clear.

excavations, and other property, real or

personal, placed upon, under, or above Application of the foregoing cri

the surface of such land by any person, teria to sections 77.214 and 77.215 of

used in, or to be used in, or resulting the Safety Standards is a relatively from, the work of extracting in such area simple task. There is no reason to bituminous coal, lignite, or anthracite assume that the use of the date of from its natural deposits in the earth by

any means or method, and the work of July 1, 1971, in paragraph (a) of

preparing the coal so extracted, and insection 77.214 was intended to make

cludes custom coal preparation facilities; the remaining paragraphs in that [Italics supplied.] section or any of the paragraphs in

There can be no doubt from the section 77.215 inapplicable to refuse

clear language of the Act that it was piles constructed before July 1,

intended to apply to surface areas 1971. It would defeat the purpose of

of underground coal mines, includthe Act and the scope of the Safetying refuse piles. It would lead to an Standards to read section 77.214(a)

absurd result to hold that fire hazso as to make all the Safety Stand

ards, noxious gases, and other probards inapplicable to refuse piles lems associated with burning refuse constructed prior to July 1, 1971.

piles must be controlled only if they When the Secretary promulgated

are associated with refuse piles conthe Mandatory Safety Standards

structed after July 1, 1971. for Surface Work Areas of Under

The unambiguous language of ground Coal Mines, he provided

section 77.214(a) is that "Refuse that they should become effective on

piles constructed on or after July 1, July 1. 1971 (36 F.R. 9364 and

1971, shall be located in areas which 13143).

are a safe distance from all underSection 77.1 of the Standards de

ground mine airshafts," etc. (Italics clares that Part 77 sets forth man

supplied.] The date of July 1, 1971, datory safety standards for the sur

is not used elsewhere in either secface work areas of underground coal

tion 77.214 or section 77.215, so it is mines and at no place in the Stand

obrious that the Secretary conards is there a general ruling that

cluded that refuse piles existing they are to be applicable only to surface work areas of underground prior to July 1, 1971, would not have

to be hauled to different sites even coal mines opened after July 1, 1971.

if their locations on July 1, 1971, On the contrary, section 4 of the Federal Coal Mine Health and might be at places which could be Safety Act of 1969 provides that the regarded as unsafe distances from Act shall apply to each coal mine

various structures of underground whose products enter commerce and

mines. That is an understandable section 3(h) states that:

limitation when it is realized that

each of the burning refuse piles here (h) “coal mine" means an area of land and all structures, facilities, machinery,

involved contains approximately

a

1,500,000 cubic yards of refuse de- for the purpose of extinguishing or posited over an area of about 15 controlling the fire. Paragraph (c), acres (Govt.'s Exh. No. 17, p. 47; the one at issue here, simply requires Joint Exh. No. 1). The fact that that sealants such as clay be used refuse piles constructed prior to to seal the surface of a refuse pile July 1, 1971, may be left in loca- in which a spontaneous ignition has tions which may not be safe dis- occurred. Paragraph (d) requires tances from given structures of un- that surface seals be kept intact. derground mines is an additional Paragraph (g) prohibits the dereason for the Standards to require positing of extraneous combustible that fires on such “old” refuse piles material on refuse piles. Thus, it is be extinguished and controlled. quite apparent that section 77.215 Other aspects of section 77.214

contains, as the heading indicates, add support to the foregoing con

provisions which apply to the conclusions. For example, paragraphs struction of refuse piles as well as (b) and (c) of section 77.214 refer

to the maintenance and control of to "old” and “new” refuse piles

all refuse piles regardless of when it comes to determining loca

whether they were constructed betions for new piles, but paragraph

fore or after July 1, 1971. (d) omits any reference to new piles

If the Secretary had intended for when it speaks of restricting entry

all paragraphs of both sections of “unauthorized persons” to refuse

77.214 and 77.215 to be applicable piles. There is no reason to make only to refuse piles constructed after paragraph (d) applicable only to

July 1, 1971, he could have written refuse piles constructed after

the Standards to so state. As the July 1, 1971, because burning refuse Supreme Court observed in United piles may contain innocuous looking States v. Great Northern Railway but hazardous soft places into which Co., 343 U.S. 562, 575 (1952), “It both children and adults may fall

is our judicial function to apply and be burned to death (Govt.'s statutes on the basis of what ConExh. 17, p. 13).

gress has written, not what ConThere does not appear to be any

gress might have written.” merit to the argument that the head

It is therefore found and coning "Refuse piles; construction

cluded that section 77.215(c) of the requirements” restricts the appli- Mandatory Safety Standards is apcability of section 77.215 entirely to

plicable to refuse piles constructed new refuse piles constructed after prior to July 1, 1971, as well as any July 1, 1971. Paragraph (a) of that

constructed after that date. section requires compacting of Disposition of the Factual Issue refuse on any pile to minimize flow

Applicant's second argument is of air and reduce likelihood of fire. that even if the Secretary's repreParagraph (b) prohibits depositing sentative correctly relied on section of refuse on a burning pile except 77.215(c) of the Safety Standards

March 30, 1973

as the basis for the violations cited but that he had no reason to think in the two notices of September 25, otherwise. 1972 (Govt.'s Exh. Nos. 4 and 5), The mining engineer testified that the Bureau has failed to establish he had visited about 100 refuse piles that violations occurred because in recent weeks and that 50 piles section 77.215(c) specifically states located in his district are presently that sealants shall be used on refuse burning. He also stated that while piles "* * * in which a spontane6

fires in refuse piles can be started ous ignition has occurred" and the by people, such as hunters, the piles Bureau's evidence presented at the are susceptible to spontaneous comhearing fails to show that the fire bustion because they are poorly conwas the result of a spontaneous structed so that air can circulate ignition.

through them. He said that sulphur The Bureau's oral evidence con- and other elements in the piles are sisted of the testimony of three wit- heat productive and that such heat nesses: the mine inspector who sources plus the oxygen circulating issued the notices, a mining engineer through the piles eventually bring from the Bureau's Mount Hope of- about enough heat to produce sponfice, and Applicant's safety director taneous ignition. who was called by the Bureau as an The Applicant's safety director advers? witness.

testified that he knew of no fires The mine inspector testified that which had been intentionally starthis supervisor had instructed him ed in the refuse piles here involved to apply section 77.215(c) to both and that he had no actual knowlold and new refuse piles and that edge of how they might have starthe visited Applicant's Preparation ed. He agreed that fires are burnPlant Nos. 1 and 4 on September 25, ing in both of the refuse piles cited 1972, for the sole purpose of inspect in the notices of violation. ing refuse piles. He observed fires The Bureau also asked that Buburning throughout refuse piles at reau of Mines Information Circular both plants. He took pictures which IC 8515 entitled “Coal Refuse clearly show the fires in both refuse Fires, An Environmental Hazard” piles (Govt.'s Exh. Nos. 1, 2, 3, 15, be received in evidence as Governand 16). The pictures were taken on ment's Exhibit No. 17.1 According October 31, 1972, but the fires had to that publication, 66 percent of all the same appearance on Septem- fires in refuse piles are believed to ber 25, 1972, when the notices of have been caused by spontaneous violation were given to Applicant. combustion (Govts. Exh. No. 17, The mine inspector stated that the p. 5). piles had probably been burning for

1 Government's Exhibit No. 17 was received four or five years and that he could

in evidence over Applicant's objection under not specifically testify that they had authority of the Board's ruling in Reliable

Coal Corp., 1 IBMA 97 at 111, 79 I.D. 139 started by spontaneous combustion,

(1972).

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