EARLE MINING JOINT VENTURE v OSM; Docket No. NX 9-13-R (March 13, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: EARLE MINING JOINT VENTURE, Applicant v OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT (OSM), Respondent  

DATE: March 13, 1979  

CASE-NO: Docket No. NX 9-13-R  

PROCEEDING: Application for Review, Notice of Violation #78-II-3-5  

COUNSEL: APPEARANCES: Dean A. Hall, Hawesville, Kentucky, for Applicant; J. T. Begley, Esq., Field Solicitor,
Department of the Interior, Knoxville, Tennessee, for Respondent.  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: DECISION  

   BACKGROUND  

   In accordance with Section 525 n1 of the Surface Mining Control and Reclamation Act of 1977 n2 (the Act), Earle
Mining Joint Venture {2} (Applicant) applied on November 30, 1978, for review of a notice issued by the Office of
Surface Mining Reclamation and Enforcement (Respondent) under Section 521(a)(3) n3 of the Act.  

   n1 30 U.S.C. Section 1275 (1977).  That sections provides, in part:  

   "(a)(1) A permittee issued a notice or order by the Secretary pursuant to the provisions of subparagraphs (a)(2) and
(3) of section 521 of this title * * * may apply to the Secretary for review of the notice or order within thirty days of
receipt thereof or within thirty days of its modification, vacation, or termination.  Upon receipt of such application, the
Secretary shall cause such investigation to be made as he deems appropriate.  Such investigation shall provide an
opportunity for a public hearing, at the request of the applicant * * * to enable the applicant * * * to present information
relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof. 
The filing of an application for review under this subsection shall not operate as a stay of any order or notice

* * * * * * * * * * *  

   "(2)(b) Upon receiving the report of such investigation, the Secretary shall make findings of fact, and shall issue a
written decision, incorporating therein an order vacating, affirming, modifying, or terminating the notice or order, or the
modification, vacation, or termination of such notice or order complained of and incorporate his findings therein."  

   n2 30 U.S.C. Section 1201 et seq. (1977).  

   n3 30 U.S.C. Section 1271(a)(3) (1977).  That section provides, in part:  

   "When, on the basis of a Federal inspection, * * * the Secretary or his authorized representative determines that any
permittee is in violation of any  requirement of this Act * * *; but such violation does not create an imminent danger to
the health or safety of the public, or cannot be reasonably expected to cause significant, imminent environmental harm
to land, air, or water resources, the Secretary or authorized representative shall issue a notice to the permittee or his
agent fixing a reasonable time but not more than ninety days for the abatement of the violation and providing
opportunity for public hearing."  

   A hearing was held on February 27, 1979, in Owensboro, Kentucky.  

   On August 14, 1978, Respondent issued a notice of violation, pursuant to Section 521 (a)(3) of the Act.  This notice
alleged two separate violations by Applicant: 1.  "All topsoil is not being removed in such a way as to prevent topsoil
from being contaminated by spoil and other waste material" as is required by 30 CFR 715.16; 2.  "The topsoil storage
area has been exposed to excessive water erosion" contrary to 30 CFR 715.16.  

   FACTS

   The application for review was not timely filed.  Said application cannot be construed as a petition for review of a
proposed assessment of a civil penalty since it was not accompanied by full payment to be placed in an escrow account
pending final determination.  The application for review is for the very same Notice of Violation sought to be reviewed
in Docket No. NX8-20-R and in Docket No. NX9-14-R.  Applicant agreed that under the circumstances this matter
should be dismissed (Tr. 18-19).  

   ORDER  

   The application for review is herewith dismissed.  

   William J. Truswell  
   Administrative Law Judge {3}
 
Distribution: (Certified Mail - Return Receipt)  

   Dean A. Hall, Executive Vice-President, Earle Mining Joint Venture, P.O. Box 309, Hawesville, Kentucky 42348.  

   Office of the Field Solicitor, Division 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.  

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