CONSOLIDATION COAL CO. v OSM; Docket No. IN 9-7-P (April 20, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: April 20, 1979  

CASE-NO: Docket No. IN 9-7-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation # 78-III-5-14  

COUNSEL: Daniel E. Rogers, Esq., Pittsburgh, Pennsylvania, for Petitioner; Nina Rose Hatfield, Esq., Office of the
Field Solicitor, U.S. Department of the Interior, Indianapolis, Indiana, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: DECISION  

   BACKGROUND  

  In accordance with Section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Consolidation
Coal Company, Petiti oner, petitioned on February 7, 1979 for review of a notice of proposed civil penalty assessment
issued by the Office of Surface Mining and Reclamation, Rspondent. Contemporaneous with the filing of its petition the
Petitione r in accordance with the requirement of 43 CFR Section 4.1152(b)(1) paid the full amount of the proposed
civil penalty ($3,800.00) to the Assessment Office, Office of Surface Mining to be placed in an escrow account pending
a final determination of the proposed assessment.  

   A hearing was held before the undersigned in Evansville, Indiana, on April 11, 1979.   

{2}  Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, Federal Courts Building,
Room 521, Indianapolis, Indiana 46204.  

   Assessment Office, U.S. Department of the Interior, Room 215, South Building, Washington, D.C. 20240, Attn: Alan
Palisoul.  

   by regular mail:  

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

   FACTS

{3}  Notice of Violation No. 78-III-5-14 was issued by the Office of Surface Mining for Consolidation Coal Company's
Burning Star No. 4 Mine in Perry County, Illinois.  This notice alleged that discharge from the disturbed areas failed to
meet effluent limitations for total suspended solids.  A laboratory test indicated total suspended solids of about 110
milligrams per liter in violation of 30 CFR 715.17(a).   

  The remedial action required was: 1) cease discharge by 3:00 p.m. on December 8, 1978; 2) construct additional
facilities or modify existing facilities to meet effluent limitations for total suspended solids; 3) mulch disturbed areas as
necessary to control erosion by December 21, 1978.  The proposed assessment of OSM was based upon the following
point assignments: Seriousness - fifteen points for probability of occurrence and fifteen points for extent of potential or
actual damage, negligence - twenty-five points, history of previous violations - three points, and good  faith in
attempting to achieve compliance - no points.  The total of fifty-eight points converts to a civil penalty of $3,800.00.   3 
At the hearing Petitioner and Respondent announced that they have agreed to a settlement of $700,00 (Tr. 2-3).  This
would be founded upon a total assignment of 27 points.  No breakdown as to point assignment for each of the four
criteria was offered but, since there is no apparent public interest against acceptance of the settlement, it is unnecessary.  

   ORDER  

  It is therefore ordered: that Notice of Violation No. 78-III-5-14, December 7, 1978, is affirmed; that the proposed civil
penalty assessed against the Petitioner be reduced from $3,800.00 to the agreed upon sum of $700.00; and that the sum
of $3,100.00 with interest at the rate of six percent or with interest at the prevailing Department of the Treasury rate,
whichever is greater, be remitted to Petitioner.  

William J. Truswell, 
Administrative Law Judge