GALE COAL CO. v OSM;  Docket Nos. NX 9-16-R, NX 9-26-P   (June 18, 1979)

 TYPE: ALJ Hearing: Consent Decision  

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

DATE: June 18, 1979  

CASE-NO: Docket Nos. NX 9-16-R, NX 9-26-P  

PROCEEDING: Docket No. NX 9-16-R, Application for Review, Notice of Violation No. 78-II-36-2; Docket No. NX
9-26-P, Civil Penalty Proceeding, Notice of Violation No. 78-II-36-2  

OPINIONBY: Administrative Law Judge Allen  

OPINION: CONSENT DECISION  

   BACKGROUND  

   In accordance with section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Gale Coal
Company applied on December 28, 1978, for review of Notice of Violation No. 78-II-36-2 containing three violations
issued by the Office of Surface Mining Reclamation and Enforcement (Respondent) under section 521(a) (3) of the Act. 
A timely answer was filed.  Thereafter, a penalty was assessed on said notice of violation, and Applicant, in accordance
with section 518 of the Surface Mining Control and Reclamation Act of 1977 applied on June 1, 1978, for a review of
said civil penalty and complied with the provisions of 43 CFR 4.1152(a) (1) by paying to the Assessment Office the
sum of $2,500 to be placed in escrow pending a final determination of the issues.  

   Both parties thereafter agreed to consolidate the two cases for thereaing, which was held in Pikeville, Kentucky, June
5, 1979.  

   DECISION AND CONSENT ORDER  

   The Respondent agrees that Violation No. 1 of NOV 78-II-36-2 should not have been issued because the fill in
question was placed prior to May 3, 1978, and vacates that notice of violation.  The undersigned concurs and that
violation is vacated.  

   The parties agree that Violations No. 2 and 3 were properly issued, and therefore those notices of violation are
affirmed.  

   No assessment was made for Violation No. 2, and as to Violation No. 3, the parties agree that in the category of
seriousness the extent of damages {2} reduced to 8 points, the probability of damage is reduced to 15 points, and the
negligence has been reduced to 1 point, making a total number of points at 24. Since the parties agree that the
assessment should be $480, it is therefore ordered that the assessment of $480 is confirmed, and the Assessment Office
shall remit to the Applicant the sum of $2,020 from the amount escrowed by said office with interest at the rate of 6
percent or with interest at the prevailing Department of Treasury rate, whichever is greater. n1  

   n1 Copy of transcript and consent of the parties attached as Appendix A.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   Charles J. Baird, Esq., Baird and Baird, 415 Second St., P. O. Box 351, Pikeville, KY 41501 (Certified Mail)  

   Charles P. Gault, Esq., Office of the Field Solicitor, Division of Surface Mining, U. S. Department of the Interior, P.
O. Box 15006, Knoxville, TN 37901 (Certified Mail)  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U. S. Department of the Interior,
Washington, DC 20240 (Certified Mail)  

   Assessment Office - OSM, ATTN: Alan Palisoul, Room 215, So. Bldg., U. S. Department of the Interior,
Washington, DC 20240 {1}
 
[Attachment]  

   AFTERNOON SESSION  

   JUDGE ALLEN: Let the record reflect that the tribunal resumed its hearing at 1:30 by request of counsel. Time was
given for the purpose of discussing and negotiating a consent order in this case and a final settlement.  Gentlemen, if you
will dictate to the court reporter the nature of your settlement and the consent order, we shall receive it.  

   MR. BAIRD: The parties agree that Gale Coal Company did have several perimeter makings on their site and did not
have adequate markings, and therefore the violation no. 2 is properly issued.  But however, no assessment was made.  

   Secondly, in regard to violation no. 3, which pertained to spoil on the downslope, the parties have agreed to reduce the
points in the category of seriousness and the sub-category of extent of damage from an undetermined number -- because
we don't have the assessment officer -- to eight points.  

   MR. GAULT: In the extent of damage category --  

   MR. BAIRD: And the probability of damage is reduced to fifteen and the negligence has been reduced to one, making
the total number of points 24, with the assessment of $430.  

   JUDGE ALLEN: I'll accept it. Gentlemen, I will {2} draw up a consent order based upon your stipulations on the
record, and it will not be necessary to forward to you a copy of it for your consideration, but to an order reflecting what
you both said for the record, do you both consent?  

   MR. BAIRD: Yes, Your Honor.  

   MR. GAULT: Yes, Your Honor.  

   JUDGE ALLEN: Gentlemen, that terminates this case, and close the record.  

   (The witness was excused.)  

   (WHEREUPON, at 2:05 p.m., the  hearing in the above entitled  matter was closed.)