K & R MINING CO., INC. v OSM; Docket No. NX 9-48-R  (May 31, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: K & R MINING CO., INC., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: May 31, 1979  

CASE-NO: Docket No. NX 9-48-R  

PROCEEDING: Application for Review, Cessation Order No. 79-II-29-1  

COUNSEL: APPEARANCES: Michael J. Schmitt, Esq., Wells, Porter & Schmitt, Paintsville, Kentucky 41240, for
Applicant; 
 
Charles P. Gault, 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), K & R Mining
Company, Inc., Applicant, applied on April 16, 1979 for review of a cessation order issued by the Office of Surface
Mining Reclamation and Enforcement, Respondent, under section 521(a)(3) of the Act.  On May 2, 1979 Applicant
filed a request for temporary relief.  A hearing was held on the application for temporary relief on May 23, 1979 in
Louisville, Kentucky.  

   At the conclusion of the hearing the undersigned rendered a decision denying temporary relief.  

   CONFIRMATION OF DECISION  

   The decision of the undersigned, denying Applicant's request for temporary relief, contained in the verbatim record of
this case is hereby affirmed.  A copy of that part of the record is attached as Appendix 1.  {2}
 
   ORDER  

   The application for temporary relief is denied.  A decision as to permanent relief will be entered at the conclusion of
the hearing for such purpose.  

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

   Mr. Michael J. Schmitt, Esq., Wells, Porter & Schmitt, Paintsville, Kentucky 41240.  

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

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

   by regular mail:  

   Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240, Attn: Harriet Marple.  

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

   JUDGE TRUSWELL: All right. Davis, Allen and Webb.  Now I believe you have indicated that Mr. Davis very likely
will be there?  

   MR. SCHMITT: Yes, sir.  

   JUDGE TRUSWELL: How about Mr. Webb, Mr. Schmitt?  

   MR. SCHMITT: There is Mr. Webb.  I -- we'll --  

   MR. WEBB: You know, if it is necessary, I will be there.  

   JUDGE TRUSWELL: Well, of course, I can't tell you --  

   MR. SCHMITT: We will have them there -- we will have Davis, Allen and Webb there, and we will not use them
except in a possible surrebuttal situation.  

   JUDGE TRUSWELL: Yes.  Do you think four hours will be sufficient to complete this?  

   MR. SCHMITT: I hope so.  I think so.  From our perspective, I think it will.  

   MR. GAULT: I think I can put my witnesses on in under an hour, Your Honor. It would depend upon their cross-examination, basically.  

   JUDGE TRUSWELL: Yes.  Well, gentlemen, as I have indicated to you, I have considered that we are well into the
case for permanent relief, which to me is the -- actually the important part of this case.  And hopefully, I will enter an
oral decision in Harlan on -- on permanent relief, at that time.  So I am hoping we get -- get that far along so that a
decision can be entered.  It will later be confirmed in writing, so I don't want to delay you in any way, Mr. Schmitt, on
this whole matter.  

   And now it is incumbent upon me to rule upon the application for temporary relief.  So I find and conclude as follows: 


   That the request that the cessation order and the assessed fine be vacated, is one for permanent relief, not temporary
relief;  
   That the cessation order and fine be terminated as of the date of application, is likewise a request for permanent relief,
and therefore  improper at this time;  

   That the request for an extension of the abatement date is a proper request for temporary relief;  

   That the Act and the regulations do not contemplate that the time for abatement shall exceed 90 days;  

   That the application -- or that the applicant has already had in excess of 90 days for abatement of the violation, and
therefore, no extension is permitted under the law.  

   The application for temporary relief is hereby denied, and upon receipt of the transcript, this ruling will be confirmed
in writing.  

   I will get out a very brief notice of the continuance of this case to Harlan, and submit that to each of you shortly.  

   If there is nothing further, then this concludes this part of the hearing.  

   MR. SCHMITT: Thank you, Your Honor.  

   [AT THIS POINT, THE TIME BEING 7:15 P.M., THE HEARING WAS ADJOURNED.]