K & R MINING CO., INC. v OSM; Docket No. NX 9-36-P (November 19, 1979)

 TYPE: ALJ Hearing: Consent Decision  

NAME: K & R MINING CO., INC., Petitioner v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 19, 1979  

CASE-NO: Docket No. NX 9-36-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 79-II-15-1  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: CONSENT DECISION  

   On July 10, 1979 petitioner, K & R Mining Company, Inc., petitioned for a review of Notice of Violation No. 79-II-15-1 issued by the Office of Surface Mining and Reclamation, respondent, in accordance with Section 518 of the
Surface Mining Control and Reclamation Act of 1977 (the Act).  Contemporaneous with the filing of its petition the
petitioner in accordance with the requirements of 43 CFR Section 4.1152(b)(1) paid the full amount of the proposed
civil penalty ($5,900.00) to the Assessment Office, Office of Surface Mining to be placed in an escrow account pending
final determination of the assessment.  

   On August 17, 1979 a decision was rendered by the undersigned in Docket No. NX 9-48-R whereby Violations Nos.
2 and 4 of Notice of Violation No. 79-II-15-1, January 17, 1979, were vacated.  

   On November 15, 1979 there was filed a "Motion for Consent Decision" signed by both parties requesting this
tribunal to enter an order dismissing the above-styled action. A copy of this motion is attached and made a part hereof.
Ag grounds for the motion both parties agreed that there is no civil penalty due and owing as a result of the decision in
Docket No. NX 9-48-R.  

   ORDER  

   This matter is disposed of in accordance with the attached "Motion for Consent Decision".  Should any portion of the
proposed assessment still remain in an escrow account, same is directed to be returned to petitioner {2} with interest at
the rate of six percent or with interest at the prevailing Department of the Treasury rate, whichever is greater.  

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

   J. Scott Preston, Wells, Porter & Schmitt, P.O. Box 1179, Paintsville, Kentucky 41240.  

   Office of the Field Solicitor, Office 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.  

   by regular mail:  

   Assessment Office, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240, Attn: Alice Watson, South Building  

   Director, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240, Attn: Special Assistant
to Director  

   [Attachment]
________________________________________________________________________________

                   UNITED STATES DEPARTMENT OF THE INTERIOR
                        OFFICE OF HEARINGS AND APPEALS

K & R MINING COMPANY, INC.              :
                          Applicant     :  Docket No. NX9-36-P
                                        :
                                        :
VS:                                     :
                                        :
                                        :
OFFICE OF SURFACE MINING                :
RECLAMATION AND ENFORCEMENT             :  Notice of Violation
(OSM)                                   :  No. 79-II-15-I
                            Respondent, :
________________________________________________________________________________

   MOTION FOR CONSENT DECISION  

   Come the parties herein, K & R Mining Company, Inc. and the Office of Surface Mining Reclamation and
Enforcement, and request that the Administrative Law Judge to enter an Order dismissing the above styled action.  As
grounds for said motion in the parties agree that there is no civil penalty due and owing as a result of Notice of Violation
No. 79-II-15-I. Violation No. III was the only violation to be determined a violation and by Office of Surface Mining
Reclamation and Enforcement action there was not a civil penalty assessed against Violation No. III.  {2}
 
   WHEREFORE, the parties respectfully request that the Department dismiss this action.  

   RESPECTFULLY SUBMITTED,  

   WELLS, PORTER & SCHMITT  
   P. O. Box 1179  
   Paintsville, Kentucky 41240  

   BY:  

    J. SCOTT PRESTON  
   ATTORNEY FOR APPLICANT  

   CHARLES P. GAULT  
   OFFICE OF THE FIELD SOLICITOR  
   U.S. DEPARTMENT OF THE INTERIOR  
   P. O. Box 15006  
   Knoxville, Tennessee 37901  
   ATTORNEY FOR RESPONDENT