B. A. COAL CO. v OSM;  B. A. COAL CO. v OSM; Docket Nos. CH 9-73-R; CH 9-33-R (November 20, 1979)

 TYPE: ALJ Hearing: Consent Decision  

NAME: B. A. COAL CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT
(OSM), Respondent; B. A. COAL CO., Petitioner v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 20, 1979  

CASE-NO: Docket Nos. CH 9-73-R; CH 9-33-R  

PROCEEDING: Docket No. CH 9-73-R, Application for Review, Notice of Violation No. 79-I-2-1; Docket No. CH 9-33-P, Civil Penalty Proceeding, Notice of Violation No. 79-I-2-1  

OPINIONBY: Administrative Law Judge Allen  

OPINION: CONSENT DECISION  

   In accordance with section 525 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.  1201 et
seq..) (the Act), B. A. Coal Company (applicant) filed for a review of Notice of Violation No. 79-I-2-1 on April 27,
1979, issued by the Office of Surface Mining Reclamation and Enforcement (respondent) under section 521(a) (3) of
the Act.  Thereafter, pursuant to the imposition of an assessment on the notice of violation by the Assessment Office,
OSM, and in accordance with section 518 of the Act, applicant further petitioned on September 4, 1979, for a review of
the notice and proposed civil penalty assessment issued by the respondent. Contemporaneously with the filing of this
petition, the applicant (petitioner) paid to the Assessment Office, OSM, the full amount of the proposed civil penalty
($3,600) in compliance with the requirements of 43 CFR 4.1152(b) (1).  The above matter was properly set for hearing
before the undersigned on October 31, 1979, in Charleston, West Virginia.  

   At the call of the case, the parties desired an opportunity to discuss possible settlement of the issues existing between
them, and after conference entered into a stipulation and consent order.  Therefore, in accordance with said agreement;
{2}
 
   ORDER  

   It is ordered that violations Nos. 1, 2, and 3 of Notice of Violation No. 79-I-2-1 are affirmed as properly issued (as
admitted) and that the total assessment of $3,600 is reduced to the amount of $2,100.  This order affirms the order
issued upon the record and signed by the undersigned, a copy of which is hereto attached and made a part of this order. 
The respondent shall refund to the petitioner the sum of $1,500 at the rate of 6 percent or the prevailing Department of
Treasury rate, whichever is greater.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   Gary Adkins, Superintendent, Route 1, Summersville, WV 26651 (Certified Mail)  

   Marye L. Wright, Esq., Office of the Field Solicitor, Division of Surface Mining, U.S. Dept. of the Interior, 723
Kanawha Blvd., E., 9th Floor, 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, Room 215, So. Bldg., U.S. Dept. of the Interior, Washington, DC 20240 {9}
 
   [Attachment]  

   JUDGE ALLEN: Let the record show we have resumed the record at ten o'clock.  

   Ms. Wright, during the conference period from nine-thirty to ten, did you and the applicant -- the petitioner come to
any kind of agreement?  

   MS. WRIGHT: Yes, Your Honor. The parties have agreed to settle the issues, with the applicant admitting the fact of
violation with respect to all the violations, 1, 2 and 3, Notice of Violation 79-I-2-1.  

   Respondent has agreed to reduce the penalty as modified at thirty-six hundred dollars ($3,600) to a total of twenty-one
hundred dollars ($2,100) with the corresponding points for each of the violations; probability or occurrence, fifteen
points; extent of potential, or actual damage, eight points; negligence, four points, for a total of twenty-two points or
seven hundred dollars ($700) for each of the violations.  

   JUDGE ALLEN: Is that concurred in by the applicant?  

   MR. DUNLAP: Yes, Your Honor.  

   JUDGE ALLEN: Then I will issue an order, then, for the record that Notice of Violation 1, 2 and 3 of NOV 79-2-1
are affirmed as validly written; that the penalty {10} assessment be reduced from thirty-six hundred dollars ($3,600) to
twenty-one hundred dollars ($2,100), based upon fifteen points for probability of occurrence in each of the violations,
eight points for the extent of damage in each of the violations, and four points for negligence in each of the violations,
being a total of twenty-two points for each of the violations, amounting to seven hundred dollars ($700) each.  

   And I will affirm twenty-one hundred dollars ($2,100) as the total violation and order the sum of one thousand five
hundred dollars ($1,500) returned to the petitioner at the rate of six percent or the prevailing Department of Treasury
rate, whichever is higher.  

   I will sign the transcript as the order.  

   Anything further?  

   MS. WRIGHT: Nothing further from respondent.  

   JUDGE ALLEN: I'll close the record.  

   (WHEREUPON, at 10:03 a.m., the proceedings in the above-entitled matter were closed.)