GREATER KANAWHA INDUSTRIES, INC. v OSM; Docket No. CH 9-23-P (November 14, 1979)

 TYPE:  ALJ Hearing: Decision

NAME: GREATER KANAWHA INDUSTRIES, INC., Petitioner v OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: November 14, 1979  

CASE-NO: Docket No. CH 9-23-P  

PROCEEDING: Civil Penalty Proceeding; NOV No. 79-I-16-7; NMI  

OPINION: SUMMARY DECISION  

   In accordance with section 518 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.   1201 et
seq.) (the Act), Greater Kanawha Industries, Inc. (petitioner), filed an application for review of a proposed civil penalty
assessment issued by the Office of Surface Mining Reclamation and Enforcement (respondent) on August 2, 1979. 
Contemporaneously with the filing of its application, the petitioner, in compliance with the requirements of 43 CFR
4.1152(b) (1), paid the full amount of the proposed penalty ($1,200) to the Assessment Office, Office of Surface
Mining, to be placed in escrow pending a final determination of the proposed assessment.  The proposed penalty
assessment was imposed on Notices of Violation Nos. 79-I-16-1 and 79-I-16-7 which are not detailed nor contained in
the record; however, because of the decision rendered here they are immaterial.  A timely answer was filed September
4, 1979, and interrogatories to the petitioner were also filed as of the same day.  On October 4, 1979, petitioner
responded to the interrogatories of the respondent, and on October 12, 1979, petitioner filed a motion for "Summary
Judgment" against the respondent.  No response to the motion has been filed by the respondent nor have any objections
been filed to the interrogatories by the petitioner.  

   In its memorandum of law in support of motion for summary judgment, the petitioner stated that among other business
activities, they were "a loading facility located at Coalburg, West Virginia," and that said Coalburg facility is not subject
to regulation by the OSM, State, or other governmental body as there is no surface mining operations conducted at the
facility as contemplated by the interim federal regulations.  Petitioner alleges that they employ only a coal feeder, a coal
crusher, and a beltline and that the coal is crushed only one time to facilitate loading, that the coal comes from eight
different coal mines which the petitioner does not own, lease, or control, and is 10 miles from the nearest mine.  

    {2}  Petitioner cites 30 CFR 700.5 in that they are not "at or neat a mine site" and Western Engineering, Inc., 1
IBSMA 202 (June 22, 1979), as authority for her motion.  The answers to interrogatories are sworn to and contain
essentially the same information.  

      The Office of the Field Solicitor, of this date, has not responded to the motion, and therefore the undersigned
constituted such failure to respond as a waiver of any objection to the motion by the respondent.  

      From the facts contained in the pleadings, answers, and interrogatories, shows that there are no disputed issues as to
any material fact and that the moving party is entitled to a summary decision as a matter of law.  The undersigned finds
that the facility is not at or near a mine site, not on property controlled by the state and the operation is not subject to the
Surface Mining Control and Reclamation Act of 1977.  Therefore:  

   ORDER  

      Petitioner's motion for summary judgment is granted, and Notices of Violation Nos. 79-I-16-7 and 79-I-16-1 are
vacated as being improperly issued. Further, the respondent is required to refund to the petitioner the sum of $1,200
with interest at the rate of 6 percent or with interest at the prevailing Department of Treasury rate, whichever is greater.  

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