CONSOLIDATION COAL CO. v OSM;  Docket No. NX 8-12-R (August 14, 1978)

 TYPE: ALJ Hearing: Order  

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

DATE: August 14, 1978  

CASE-NO: Docket No. NX 8-12-R  

PROCEEDING: Application for Review, Order of Cessation No. 78-II-7-7, Matthews Mine  

COUNSEL: Appearances: 

Richard McMillan, Jr., Esq., Washington, D.C., for Applicant; 
 
John P. Williams, Esq., Office of the Solicitor, Department of the Interior, for Respondent.  

OPINIONBY: Chief Administrative Law Judge Luoma  

OPINION: ORDER FOR TEMPORARY RELIEF  

   Pursuant to 43 CFR 4.1260 et seq. and in accordance with section 525(c) n1 of the Surface Mining Control and
Reclamation Act of 1977 n2 (the Act), Consolidation Coal Company (Applicant) applied on August 8, 1978, for
temporary relief from Order of Cessation No. 78-II-7-7 issued by the Office of Surface Mining Reclamation and
Enforcement (Respondent) under section 521(a)(2) n3 of the Act.  A hearing was held on August 11, 1978, in
Knoxville, Tennessee.  

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

   "Pending completion of the investigation and hearing required by this section, the applicant may file with the Secretary
a written request that the Secretary grant temporary relief from any notice or order issued under section 521 of this title,
* * * together with a detailed statement giving reasons for granting such relief."  

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

   n3 30 U.S.C.  1271(a)(2) (1977).  That section provides, in part.  

   "When, on the basis of any Federal inspection, the Secretary or his authorized representative determines that any
condition or practices exist, or that any permittee is in violation of any requirement of this Act * * *, which condition,
practice, or violation also creates an imminent danger to the health or safety of the public, or is causing, or can
reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources, the Secretary
or his authorized representative shall immediately order a cessation of surface coal mining and reclamation operations
or the portion thereof relevant to the condition, practice, or violation.  Such cessation order shall remain in effect until
the Secretary or his authorized representative determines that the condition, practice, or violation has been abated, or
until modified, vacated, or terminated by the Secretary or his authorized representative * * *. Where the Secretary finds
that the ordered cessation of surface coal mining and reclamation operations, or any portion thereof, will not completely
abate the  imminent danger to health or safety of the public or the significant imminent environmental harm to land, air,
or water resources, the Secretary shall, in addition to the cessation order, impose affirmative obligations on the operator
requiring him to take whatever steps the Secretary deems necessary to abate the imminent danger or the significant
environmental harm." {2}
 
   At the hearing, testimony was taken from both Applicant's and Respondent's expert witnesses and, on the basis of the
evidence presented, I found and ruled from the bench that temporary relief should be granted and that the subject order
of cessation is suspended through midnight, August 17, 1978, as was requested by Applicant.  Those findings and
holdings made from the bench are confirmed by this written order.  

   L. K. Luoma  

   Chief Administrative Law Judge
 
Distribution: (Certified Mail)  

   Richard McMillan, Jr., Jones, Day, Reavis & Pogue, 1100 Connecticut Avenue, NW., Washington, DC 20036  

   Daniel E. Rogers, Senior Counsel, Consolidation Coal Co., Consol Plaza, Pittsburgh, PA 15241  

   John Williams, Office of the Field Solicitor, Division of Surface Mining, Department of the Interior, P.O. Box 15006,
Knoxville, TN 37901  

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