PERRY BROTHERS COAL v OSM; PERRY BROTHERS COAL v OSM;  Docket Nos. CH 9-191-R,
      CH 9-214-R (December 14, 1979)

TYPE: ALJ Hearing: Consent Decision  

NAME: PERRY BROTHERS COAL CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent; PERRY BROTHERS COAL CO., Applicant v OFFICE OF SURFACE
MINING RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: December 14, 1979  

CASE-NO: Docket Nos. CH 9-191-R, CH 9-214-R  

PROCEEDING: Docket No. CH 9-191-R, Application for Review, Notice of Violation No. 79-I-50-30; Docket No.
CH 9-214-R, Application for Review, Notice of Violation No. 79-I-50-37  

COUNSEL: Appearances: Leo M. Stepanian, Esquire, Brydon & Stepanian, Butler, Pennsylvania, for applicant; 
 
Billy Jack Gregg, Esquire, Office of the Field Solicitor, U.S. Department of the Interior, Charleston, West Virginia, for
respondent.  

OPINIONBY: Administrative Law Judge Shepherd  

OPINION: DECISION ON CONSOLIDATED STIPULATION  

   Pursuant to the provisions of Section 521 of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq, the applicant was issued Notice of Violation No. 79-I-50-30 containing three violations as follows:  

   1.  Failure to pass all surface drainage through a sedimentation pond.  {2}
 
   2.  Failure to maintain blasting records.  

   3.  Failure to public a blasting schedule.  

   At the consolidated hearing held on November 8, 1979, in Butler, Pennsylvania, the parties, by their attorneys, entered
into a stipulation whereby the respondent vacated Violation No. 1 and the applicant stipulated to withdraw with
prejudice its application for review of Violations Nos. 2 and 3.  

   As to Notice of Violations No. 79-I-50-37 which contained one violation alleging that discharges from the disturbed
area exceeded the effluent limitations, the applicant agreed to withdraw with prejudice its application for review.  

   It was further stipulated and agreed that this procedure would in no way affect the right of the applicant to further
contest the amount of penalty at any further assessment conferences or civil penalty proceedings although the facts of
Violations Nos. 2 and 3 Notice of Violation No. 79-I-50-30 and Violation No. 1 of Notice of Violation No. 79-I-50-37
are no longer in issue.  

   Pursuant to said stipulation, it is hereby ordered that Violation No. 1 of Notice of Violation No. 79-I-50-30 is hereby
vacated and the applications for review of Violations Nos. 2 and 3 of Notice of Violation No. 79-I-50-30 and  Violattion
No. 1 of Notice of Violation No. 79-I-50-37 are hereby dismissed with prejudice.  

   Also, the hearing in Docket No. CH 9-214-R scheduled for Tuesday, February 5, 1980, at 9:30 a.m., in Butler,
Pennsylvania, is vacated.  

   Sheldon L. Shepherd  
   Administrative Law Judge
 
Distribution: {3}
  
Leo M. Stepanian, Esquire, Attorney for Applicant, Brydon & Stepanian, 228 S. Main Street, Butler, Pennsylvania
16001 (Certified Mail)
 
Billy Jack Gregg, Esquire, Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior, 950
E. Kanawha Boulevard, Charleston, West Virginia 25301 (Certified Mail)
 
Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240 (Certified Mail)
 
Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240 (Certified Mail)
 
Director, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240, Attention: Special
Assistant to Directo