C & C CONTRACTORS v OSM; Docket No. CH 0-12-P (November 21, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: C & C CONTRACTORS, Petitioner v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 21, 1979  

CASE-NO: Docket No. CH 0-12-P  

PROCEEDING: Civil Penalty Proceeding, Cessation Order No. 79-I-38-7  

OPINIONBY: Administrative Law Judge Allen  

OPINION: SUMMARY DECISION  

   Pursuant to the provisions of section 518 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 
1201 et seq.) (the Act), C & C Contractors (petitioner) filed an application for review of a civil penalty assessment
against them under Cessation Order No. 79-I-38-7 on October 15, 1979. Contemporaneously with the filing of the
petition for review of the proposed assessment, the petitioner paid in the sum of $700 as required by 43 CFR 4.1152.  

   On October 17, 1979, the file was referred to the undersigned and proper notification sent to all parties.  The
certificate of service to the Field Solicitor, OSM, Region 1, 950 Kanawha Boulevard, East, Charleston, West Virginia,
was dated October 17, 1979.  

   As of this date, respondent has failed to answer as required by 43 CFR 4.1153 which provides: "OSM shall have 30
days from receipt of the copy of the petition within which to file an answer to petition with the Hearings Division,
OHA" (emphasis supplied).  

   The undersigned has previously ruled that 43 CFR 4.1153 is mandatory and that failure of OSM to complete the
prosecution of its notices of violation, cessation orders, and civil penalty assessment, on appeal, it is required to file an
answer and failure to do so will result in a vacation of the notices of violation, cessation orders, or civil penalties. n1  

   n1 Addington Brothers Mining, Inc. v. OSM, Docket No. NX 9-53-P, October 2, 1979.  

   Having failed to answer as required, the undersigned considers that OSM has abandoned its prosecutorial posture by
failure to answer.  {2}
 
   ORDER  

   Cessation Order No. 79-I-38-7 is vacated together with the notice of violation issued thereunder and the respondent
shall remit to the petitioner the sum of $700 with interest at the rate of 6 percent or with interest at the prevailing
Department of Treasury rate, whichever is greater.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   Duane Southern, Esq., First National Bank Bldg., P.O. Box 1307, Fairmont, WV 26554 (Certified Mail)  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Dept. of the Interior, 723 Kanawha Blvd., E.,
Charleston, WV 25301 (Certified Mail)  

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

   Assessment Office - OSM, U.S. Dept. of the Interior, Room 215, So. Bldg., Washington, DC 20240