The issue inherent in an application for review of a notice of violation is the reasonableness of the time allowed for abatement (section 105 (a) of the Act). Normally such an applicant would have the burden of presenting evidence to show that the abatement period is unreasonable and the applicant's failure to present such evidence would make the application for review subject to dismissal (Freeman Coal Mining Corp., 1 IBMA 1, 25 (1970), 77 I.D. 149, 163). In this proceeding, however, the Applicant's contention that no violation exists, if sustained, would make any time allowed for abatement unreasonable (Freeman, supra, at 1 IBMA 27 and 77 I.D. 164). Since it is the Bureau's burden to prove the existence of a violation (Lucas Coal Co., 1 IBMA 138, 79 I.D. 425 (1972)), the Applicant claimed that the Bureau would be

unable to sustain its burden and

that the Bureau's failure of proof would automatically sustain its argument that no violation exists and would require the vacation of the Bureau's notices involved in this proceeding.

The Board has recognized that the question of whether a violation occurred may be raised and should be given expedited treatment in the factual circumstances which exist in this case because the fact of whether a violation actually occurred is prerequisite for determining determining whether the time allowed for abatement is unreasonable (Reliable Coal Corp., 1 IBMA 51, 64 (1971), 78 I.D. 199, 206). Although the Appli

a

cant could have presented evidence to show that the extended time allowed for abatement, i.e., until November 15, 1972, is unreasonable, assuming, arguendo, the existence of a violation, it did not choose to avail itself of that right and elected instead to rest its case solely on legal and factual arguments to the effect that no violation exists.

The Issues

The Applicant's argument that no violation exists is grounded upon two contentions, one of which is primarily legal and the other of which is essentially factual. The threshold legal argument is that the alleged violations pertain to fires on refuse piles which are not subject to the Mandatory Safety Standards because the refuse piles were constructed prior to the date of July 1, 1971, when Part 77 of the Standards was made applicable to refuse piles. Applicant's supplemental factual argument is that both of the notices of violation should be vacated because the Bureau has been unable to sustain its burden of proving under section 77.215 (c) of the Safety Standards that the fires were caused by spontaneous ignition.

Disposition of the Legal Issue

The notices of violation, both bearing the title of "Notice No. 1 J.M.J." and both dated September 25, 1972, cited violations of section 77.215 (c) of the Safety Standards in that refuse piles at Sewell Preparation Plant Nos. 1 and 4 were not covered with clay or

66* * *

other sealants to extinguish the fire" (Govt.'s Exh. No. 5). Section 77.215 (c) reads as folows:

(c) Clay or other sealants shall be used to seal the surface of any refuse pile in which a spontaneous ignition has occurred.

Applicant's legal argument is based on its interpretation of the preceding section 77.214 (a) which provides:

§ 77.214 Refuse piles; general.

or

(a) Refuse piles constructed on after July 1, 1971, shall be located in areas which are a safe distance from all underground mine airshafts, preparation plants, tipples, or other surface installations and such piles shall not be located over abandoned openings or steamlines.

Applicant contends that section 77.215 must be read in connection

with the preceding section 77.214 which specifies the effective date of the Standards and that it is obvious that the Mandatory Safety Standards were not intended to apply to any refuse piles except those which have been constructed since July 1, 1971. The evidence shows that both of the burning refuse piles were constructed before July 1, 1971. Therefore, the Applicant argues that section 77.215 (c) is not applicable to its burning refuse piles and that the Bureau's representative has improperly lifted section 77.215 (c) out of context and applied it to refuse piles on which it no longer dumps refuse from its preparation plants. Additionally, Applicant notes that the heading of section 77.215 is "Refuse piles; construction requirements" and contends

that the heading clearly shows that the Standards set forth thereunder were designed for guidance in constructing new refuse piles rather than for preventing fires on old refuse piles.

The Bureau's answer to the Applicant's legal argument is that the word "any" in front of the words "refuse pile" in section 77.215 (c) is controlling and means that a fire should be extinguished in any refuse pile regardless of whether it is located on an old or a new refuse pile. Also the Bureau claims that the headings in the Safety Standards are for convenience and do not modify the clear language of the Standards.

The Supreme Court of the United States has laid down some general guidelines for interpreting statutes which are helpful in disposing of the Applicant's arguments concerning sections 77.214 and 77.215 of the Safety Standards. In Crane v. Commissioner of Internal Revenue, 331 U.S. 1, 6, 13 (1947), the Court stated that the words of statutes *** should be interpreted where possible in their ordinary, everyday senses" and "*** that one section of the [Internal Revenue] Act must be construed so as not to defeat the intention of another or to frustrate the Act as a whole." The Court in United States v. Bryan, 339 U.S. 323, 338 (1950), noted that statutes should not be interpreted so as to reach absurd results, and in United States v. Rice, 327 U.S. 742, 753 (1946) the Court emphasized that mechanical rules of construction should be avoided where the statu

tory language and objective are reasonably clear.

Application of the foregoing eriteria to sections 77.214 and 77.215 of the Safety Standards is a relatively simple task. There is no reason to assume that the use of the date of July 1, 1971, in paragraph (a) of section 77.214 was intended to make the remaining paragraphs in that section or any of the paragraphs in section 77.215 inapplicable to refuse piles constructed before July 1, 1971. It would defeat the purpose of the Act and the scope of the Safety Standards to read section 77.214 (a) so as to make all the Safety Standards inapplicable to refuse piles constructed prior to July 1, 1971. When the Secretary promulgated the Mandatory Safety Standards for Surface Work Areas of Underground Coal Mines, he provided that they should become effective on July 1. 1971 (36 F.R. 9364 and 13143).

Section 77.1 of the Standards de- ` clares that Part 77 sets forth mandatory safety standards for the surface work areas of underground coal mines and at no place in the Standards is there a general ruling that they are to be applicable only to surface work areas of underground coal mines opened after July 1, 1971. On the contrary, section 4 of the Federal Coal Mine Health and Safety Act of 1969 provides that the Act shall apply to each coal mine whose products enter commerce and section 3 (h) states that:

(h) "coal mine" means an area of land and all structures, facilities, machinery,

tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon, under, or above the surface of such land by any person, used in, or to be used in, or resulting from, the work of extracting in such area

bituminous coal, lignite, or anthracite from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities; [Italics supplied.]

There can be no doubt from the clear language of the Act that it was intended to apply to surface areas of underground coal mines, including refuse piles. It would lead to an

absurd result to hold that fire haz

ards, noxious gases, and other problems associated with burning refuse piles must be controlled only if they are associated with refuse piles constructed after July 1, 1971.

The unambiguous language of section 77.214(a) is that "Refuse piles constructed on or after July 1, 1971, shall be located in areas which are a safe distance from all underground mine airshafts." etc. [Italics supplied.] The date of July 1, 1971, is not used elsewhere in either section 77.214 or section 77.215, so it is obvious that the Secretary concluded that refuse piles existing prior to July 1, 1971, would not have to be hauled to different sites even if their locations on July 1, 1971, might be at places which could be regarded as unsafe distances from various structures of underground mines. That is an understandable limitation when it is realized that each of the burning refuse piles here involved contains approximately

1,500,000 cubic yards of refuse deposited over an area of about 15 acres (Govt.'s Exh. No. 17, p. 47; Joint Exh. No. 1). The fact that refuse piles constructed prior to July 1, 1971, may be left in locations which may not be safe distances from given structures of underground mines is an additional reason for the Standards to require that fires on such "old" refuse piles be extinguished and controlled.

Other aspects of section 77.214 add support to the foregoing conclusions. For example, paragraphs (b) and (c) of section 77.214 refer to "old" and "new" refuse piles when it comes to determining locations for new piles, but paragraph (d) omits any reference to new piles when it speaks of restricting entry of "unauthorized persons" to refuse piles. There is no reason to make paragraph (d) applicable only to refuse piles constructed July 1, 1971, because burning refuse piles may contain innocuous looking but hazardous soft places into which both children and adults may fall and be burned to death (Govt.'s Exh. 17, p. 13).

after

There does not appear to be any merit to the argument that the heading "Refuse piles; construction requirements” restricts the applicability of section 77.215 entirely to new refuse piles constructed after July 1, 1971. Paragraph (a) of that section requires compacting of refuse on any pile to minimize flow of air and reduce likelihood of fire. Paragraph (b) prohibits depositing of refuse on a burning pile except

for the purpose of extinguishing or controlling the fire. Paragraph (c), the one at issue here, simply requires that sealants such as clay be used to seal the surface of a refuse pile in which a spontaneous ignition has occurred. Paragraph (d) requires that surface seals be kept intact. Paragraph (g) prohibits the depositing of extraneous combustible material on refuse piles. Thus, it is quite apparent that section 77.215 contains, as the heading indicates, provisions which apply to the construction of refuse piles as well as to the maintenance and control of all refuse piles regardless of whether they were constructed before or after July 1, 1971.

all refuse piles

If the Secretary had intended for all paragraphs of both sections 77.214 and 77.215 to be applicable only to refuse piles constructed after July 1, 1971, he could have written the Standards to so state. As the

Supreme Court observed in United States v. Great Northern Railway "It Co., 343 U.S. 562, 575 (1952), is our judicial function to apply statutes on the basis of what Congress has written, not what Congress might have written."

It is therefore found and concluded that section 77.215 (c) of the Mandatory Safety Standards is applicable to refuse piles constructed prior to July 1, 1971, as well as any constructed after that date.

Disposition of the Factual Issue

Applicant's second argument is that even if the Secretary's representative correctly relied on section 77.215 (c) of the Safety Standards

as the basis for the violations cited in the two notices of September 25, 1972 (Govt.'s Exh. Nos. 4 and 5), the Bureau has failed to establish that violations occurred because section 77.215 (c) specifically states that sealants shall be used on refuse piles “* * * in which a spontaneous ignition has occurred" and the Bureau's evidence presented at the hearing fails to show that the fire was the result of a spontaneous ignition.

The Bureau's oral evidence consisted of the testimony of three witnesses: the mine inspector who issued the notices, a mining engineer from the Bureau's Mount Hope office, and Applicant's safety director who was called by the Bureau as an adverse witness.

The mine inspector testified that his supervisor had instructed him to apply section 77.215 (c) to both old and new refuse piles and that he visited Applicant's Preparation Plant Nos. 1 and 4 on September 25, 1972, for the sole purpose of inspecting refuse piles. He observed fires burning throughout refuse piles at both plants. He took pictures which clearly show the fires in both refuse piles (Govt.'s Exh. Nos. 1, 2, 3, 15, and 16). The pictures were taken on October 31, 1972, but the fires had the same appearance on September 25, 1972, when the notices of violation were given to Applicant. The mine inspector stated that the piles had probably been burning for four or five years and that he could not specifically testify that they had started by spontaneous combustion,

but that he had no reason to think otherwise.

The mining engineer testified that he had visited about 100 refuse piles in recent weeks and that 50 piles located in his district are presently burning. He also stated that while fires in refuse piles can be started by people, such as hunters, the piles are susceptible to spontaneous combustion because they are poorly constructed so that air can circulate through them. He said that sulphur and other elements in the piles are heat productive and that such heat sources plus the oxygen circulating through the piles eventually bring about enough heat to produce spontaneous ignition.

The Applicant's safety director testified that he knew of no fires which had been intentionally started in the refuse piles here involved and that he had no actual knowledge of how they might have started. He agreed that fires are burning in both of the refuse piles cited in the notices of violation.

The Bureau also asked that Bureau of Mines Information Circular IC 8515 entitled "Coal Refuse Fires, An Environmental Hazard” be received in evidence as Government's Exhibit No. 17.1 According to that publication, 66 percent of all fires in refuse piles are believed to have been caused by spontaneous combustion (Govts. Exh. No. 17, p. 5).

1 Government's Exhibit No. 17 was received in evidence over Applicant's objection under authority of the Board's ruling in Reliable Coal Corp., 1 IBMA 97 at 111, 79 I.D. 139 (1972).