LITTLE SANDY COAL SALES v OSM; Docket No. NX 9-73-R  (July 10, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: LITTLE SANDY COAL SALES, Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: July 10, 1979 [Amended by September 20, 1979 decision]  

CASE-NO: Docket No. NX 9-73-R  

PROCEEDING: Application for Review & Application for Temporary Relief, Notice of Violation No. 79-II-28-12  

COUNSEL: APPEARANCES: Edgar B. Everman, Little Sandy Coal Sales, P.O. Box 335, Grayson, Kentucky 41143,
for Applicant; John Phillip Williams, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Knoxville,
Tennessee, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: DECISION  

   BACKGROUND  

   In accordance with Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Little Sandy
Coal Sales, applicant, applied on June 25, 1979 for review of a notice of violation and requested temporary relief.  A
hearing was held on the application for temporary relief on July 2, 1979 in Lousiville, Kentucky.  

   Midway through the hearing, following an off-the-record conference, the undersigned rendered a decision granting
applicant a full 90 days from the date of issuance of the notice of violation within which to abate the violation. This
notice of violation was consolidated with Notice of Violation No. 79-II-29-13 (Docket No. NX 9-56-R) for hearing in
Louisville, Kentucky, commencing on July 20, 1979. Sould applicant or Ford Energy prior to said date, petition under
and comply with 43 CFR 4.1150 et seq for review of proposed assessment of civil penalty, then such case would also be
included in the consolidation and hearing.  {2}
 
   CONFIRMATION OF DECISION  

   The decision of the undersigned contained in the verbatim record of this case is hereby affirmed.  A copy of that part
of the record is attached as Appendix 1.  

   ORDER  

   It is therefore ordered: that the period for abatement of Notice of Violation No. 79-II-28-12 is extended through
September 20, 1979; that this case (Docket No. NX 9-73-R) is consolidated with Docket No. NX 9-56-R for hearing in
Louisville, Kentucky, at the office of the Administrative Law Judge, commencing at 1:00 p.m., July 20, 1979, and; that
should, by the date of hearing, an application for review of a related civil penalty assessment be properly filed, it too will
be consolidated and heard.  

   William J. Truswell  
   Administrative Law Judge
 
Distribution: (Certified Mail - Return Receipt)  

   Edgar B. Everman, Little Sandy Coal Sales, P.O. Box 335, Grayson, Kentucky 41143.  

   Rudy Yessin, Esquire, 314 Wilkinson Street, Frankfort, Kentucky 40601.  

   Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior, P.O. Box 15006, Knoxville,
Tennessee 37901.  

   by regular mail:  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240.  

   Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240, Attn: Alice Watson, South Building  

   Director, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240, Attn: Special Assistant
to Director {117}
 
   APPENDIX 1  

   [Whereupon, an off the record discussion was had.]  

   JUDGE TRUSWELL: We will be back on record.  

   While we were in recess we had an informal conference; that is, the applicant and the respondent and the Ad Law
Judge.  And it was determined then that OSM would have no objection -- now if I state anything that any party does not
agree to, of course I expect to be corrected.  

   That OSM would not object to an extension of the time for abatement on Notice of Violation 79-II-28-12 to ninety
days from June 22nd, 1979.  

   Now this period of time would give us sufficient -- a sufficient opportunity to hold a hearing on Violation Number 79-II-29-13, plus Notice of Violation Number 79-II-27-28-12, and very possibly a hearing on a civil penalty following a
penalty conference; and that hearing, comprising hopefully three different cases, would be held on July 20th,
commencing at 1:00 p.m., and very likely extending over to Saturday, the 21st.  

   All parties present were agreeable to {118} continuing the hearing on Saturday, for a full day if necessary.  

   And now I would like to call upon Mr. Williams for any comments that he might have on that.  

   MR. WILLIAMS: That substantially reflects my understanding of the agreement.  

   JUDGE TRUSWELL: Mr. Everman, does that reflect your understanding, sir?  

   MR. EVERMAN: Yes, it does.  

   JUDGE TRUSWELL: Very well, gentlemen.  Then we will so proceed.  

   I will get out a formal notice of hearing on that, and Mr. Yeshin will get a copy as will the two parties here.  

   MR. OLUP: Was that ninety days from the Hearing, or ninety days from the --  

   MR. EVERMAN: Well, he stated ninety days from the time the last issue was made --  

   MR. WILLIAMS: We are willing to, at this time, and we will do it promptly this week, extend the time for the
remedial action on the new notice of violation up to the full ninety days from the date it was issued, which I believe was
June the 22nd.  So that would be around September the 20th, {119} I think.  

   MR. EVERMAN: I think that would give us enough time, if we get through with the other trial soon enough.  And if
something happens, why I think we could ask the Court for some other consideration at that time.  

   And if the trial is ended, as we think it will be, you know, pretty soon after July the 20th, why then that would give us
probably enough time to get whatever measures done that would have to be done. That would give us about two weeks.  

   MR. WILLIAMS: We could probably get a fairly quick decision, I guess, in light of that.  

   JUDGE TRUSWELL: I will, yes, sir.  I will.  

   All right.  Thank you, gentlemen.  

   [AT THIS POINT THE HEARING WAS ADJOURNED.]  

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