G  & M COAL CO. v OSM; Docket Nos. NX 8-4-P,  NX 9-4-R (November 29, 1978)

 TYPE:  ALJ Hearing: Order  

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

DATE: November 29, 1978  

CASE-NO: Docket Nos. NX 8-4-P,  NX 9-4-R  

PROCEEDING: Civil Penalty Proceeding; OC. 78-II-8-1 NMI  

OPINIONBY: Administrative Law Judge Torbett

OPINION: ORDER OF DISMISSAL  

  The Respondent, Office of Surface Mining Reclamation and Enforcement has moved to dismiss the application for
review of the proposed civil penalty of the Applicant, G and M Coal Company, on the ground that the Applicant did not
pay the amount of the proposed assessment to the Assessment Office, Office of Surface Mining to be held in escrow
pending the final determination of the proceeding as required by 30 CFR  723.18, 43 CFR  4.1152(b), and 30 U.S.C. 
 1268.   

  The Applicant had originally filed an application for review of Order of Cessation No. 78-II-8-1 which was given
Docket No. NX8-1-R.  This application for review was dismissed on June 13, 1978. The Applicant's request for review
of the proposed civil penalty was received by the Office of Hearings and Appeals on July 21, 1978.  This application for
review as given Docket No. NX8-4-P.  In that request the Applicant stated that "the Act may require submitted check
for the amount of the penalty in order for a hearing.  But in the case of G and M Coal it is financially unable to comply
with the Act of 1977." An informal assessment conference between the Respondent and Applicant concerning the
proposed assessment was held pursuant to 30 CFR  723.17 on August 24, 1978.  The result of this conference was
mailed to the Applicant on September 25, 1978.   

  On October 5, 1978, the Office of Hearings and Appeals received a letter from the Applicant which stated that the
Applicant refused to accept the findings of the informal assessment conference.  The Applicant again stated that it would
not pay the proposed civil penalty assessment into escrow because "under the exemption Act G and M Coal Company
feels there is no reason to send $4,400 in order to get a hearing..." This letter was inadvertently given Docket No. NX9-4-R even though the proceeding had already been docketed under No. NX8-4-P.   

{2}  Section 518(c) of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.   1268 sets out that failure
to make timely payment of the proposed assessment in full within 30 days of the receipt of the proposed assessment or
15 days from service of the conference officer that the conference is complete shall result in a waiver of all legal rights
to contest the violation or the amount of the penalty.   

 There is no provision in the Act which would provide the Applicant with the right to either administrative or judicial
review on the ground that the company was not financially able to pay the amount of the proposed assessment to the
Secretary to be held in escrow.   

  Therefore, it is the opinion of the undersigned that the motion to dismiss made by the Respondent is well taken and the
same is hereby granted.  The application for review of the proposed civil penalty assessment by the Applicant, G and M
Coal Company, docketed under Nos. NX8-4-P and NX9-4-R is dismissed.  

David Torbett, 
Administrative Law Judge  

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