ISLAND CREEK COAL CO. v OSM;  Docket No. CH 9-186-R (November 6, 1979)

 TYPE: ALJ Hearing: Consent Decision  

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

DATE: November 6, 1979  

CASE-NO: Docket No. CH 9-186-R  

PROCEEDING: Application for Review, Notice of Violation No. 79-I-86-12, Pond Fork Preparation Plant  

OPINIONBY: Administrative Law Judge Allen  

OPINION: CONSENT DECISION  

   Application for review under section 525 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.
1201 et seq.) (the Act) was made by Island Creek Coal Company, applicant, on August 13, 1979, for review of Notice
of Violation No. 79-I-86-12 issued by the Office of Surface Mining Reclamation and Enforcement.  A timely answer
was duly filed.  

   The matter was set for hearing on October 18, 1979, in Pikeville, Kentucky. Both parties desired to settle the issues,
including all issues regarding penalty, and made a motion to that effect although an assessment conference had not been
scheduled at that time.  There being no objection to the motion, the same was granted and an order entered upon the
record.  That order is hereby reaffirmed, and a copy of the transcript is attached hereto and made a part hereof.  

   ORDER  

   It is ordered that violations Nos. 1 and 2 of Notice of Violation No. 79-I-86-12 are vacated, and violations Nos. 3 and
4 are withdrawn with prejudice as agreed by the parties.  

   Tom M. Allen  
   Administrative Law Judge {2}
 
Distribution:  

   William K. Bodell II, Esq., P.O. Box 11430, Lexington, KY 40575 (Certified Mail)  

   Billy Jack Gregg, 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 {2}
 
   [Attachment]  

   JUDGE ALLEN: MAY I HAVE YOUR ATTENTION, PLEASE.  THIS IS ON THE RECORD.  I CALL THE
CASE OF ISLAND CREEK COAL COMPANY, APPLICANT, VERSUS THE OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT, OSM, RESPONDENT. DOCKET NUMBER CH9-185-R,
APPLICATION FOR REVIEW OF NOTICE OF VIOLATION NUMBER 79-I-86-12 APPLYING FOR
PREPARATION OF PLANNING.  ALSO CALLED, ISLAND CREEK COAL COMPANY, APPLICANT, VERSUS
THE OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, OSM, RESPONDENT,
DOCKET NUMBER CH9-186-R, APPLICANION FOR REVIEW OF NOTICE OF VIOLATION 79-I-86-12,
APPLYING FOR PREPARATION AND PLANNING.  DO EITHER OF YOU GENTLEMEN OBJECT TO THE
COMBINING OF THESE TWO CASES FOR THE PURPOSE OF THIS HEARING?  

   MR. BODELL: NO, YOUR HONOR.  

   MR. GREGG: NO, YOUR HONOR.  

   JUDGE ALLEN: GENTLEMEN, WOULD YOU PLEASE MAKE YOUR APPEARANCES FOR THE RECORD.  

   MR. GREGG: REPRESENTING THE RESPONDENT, THE OFFICE OF SURFACE MINING RECLAMATION
AND ENFORCEMENT, BILLY JACK GREGG, OFFICE OF THE FIELD SOLICITOR, 950 KANAWHA
BOULEVARD, EAST, CHARLESTON, WEST VIRGINIA 25301.  

   MR. BODELL: REPRESENTING THE {3} APPLICANT, I AM WILLIAM K. BODELL, II, P.O. BOX 11430,
LEXINGTON, KENTUCKY 40575.  

   MR. BROOKS: I AM GEORGE BROOKS, ALSO WITH MR. BODELL, REPRESENTING THE SAME
COMPANY.  
   JUDGE ALLEN: LET THE RECORD REFLECT THAT ALL PARTIES WERE HERE AND PRESENT AT 9:00
O'CLOCK THIS MORNING AND THAT A SETTLEMENT CONFERENCE WAS CONDUCTED BY BOTH
PARTIES AT THAT TIME PRIOR TO THE OPENING OF THE RECORD.  MR. GREGG, WOULD YOU CARE
TO MAKE AN OPENING STATEMENT AS TO THE ISSUES BEFORE THE TRIBUNAL AND STIPULATE
WHATEVER STIPULATIONS THE PARTIES HAVE ENTERED INTO?  

   MR. GREGG: YOUR HONOR, PRIOR TO THE HEARING COMMENCING THIS MORNING, WE HAVE
ENTERED INTO VARIOUS AGREEMENTS WHICH DOES DISPOSE OF THE NECESSITY OF A HEARING
SPECIFICALLY CONCERNING NOTICE OF VIOLATION 79-I-86-8 WHICH IS THE SUBJECT OF DOCKET
NUMBER CH9-185-R.  THERE WERE TWO VIOLATIONS CONCERNED THERE; BOTH OF THEM WERE
AFFULENT VIOLATIONS.  PURSUANT TO THE AGREEMENTS ENTERED INTO BETWEEN THE
PARTIES, THE RESPONDENT HAS AGREED TO VACATE VIOLATION NUMBER TWO TO THE NOTICE
OF VIOLATION 79-I-86-8 AND THE APPLICANT HAS AGREED TO WITHDRAW ITS APPLICATION FOR
VIOLATION NUMBER ONE WITH PREJUDICE.  {4}
 
   JUDGE ALLEN: WITH PREJUDICE?  

   MR. GREGG: CORRECT.  CONCERNING NOTICE OF VIOLATION 79-I-86-12 WHICH IS THE SUBJECT
OF DOCKET NUMBER CH9-186-R, THERE WERE FOUR VIOLATIONS CONCERNED THERE; VIOLATION
NUMBER ONE CONCERNING FAILURE TO REVEGETATE, VIOLATION NUMBER TWO FOR FAILURE TO
RECOVER TOXIC MATERIAL, VIOLATION NUMBER THREE WHICH IS FOR FAILURE TO MAINTAIN A
HAUL ROAD, VIOLATION NUMBER FOUR WHICH IS FAILURE TO PASS ALL THINGS THROUGH THE
POND.  PURSUANT TO THE AGREEMENTS ENTERED INTO THIS MORNING, THE RESPONDENT HAS
AGREED TO VACATE VIOLATION NUMBER ONE AND TWO UNDER NOTICE OF VIOLATION NUMBER
79-I-86-12 AND THE APPLICANT HAS AGREED TO WITHDRAW THE APPLICATION FOR REVIEW OF
VIOLATIONS NUMBER THREE AND FOUR WITH PREJUDICE.  SO TO RECAP, THE RESPONDENT IS
VACATING VIOLATION NUMBER TWO OF NOTICE OF VIOLATION 86-8 AND VIOLATION ONE AND
TWO OF NOTICE OF VIOLATION 86-12.  THE APPLICANT IS WITHDRAWING WITH PREJUDICE HIS
APPLICATION FOR REVIEW OF VIOLATIONS ONE OF 86-8 AND NUMBERS THREE AND FOUR OF 86-12. 


   JUDGE ALLEN: HOW ABOUT IT, MR. BODELL, DO YOU CONCUR WITH THE STIPULATIONS?  

   MR. BODELL: YOUR HONOR, THE APPLICANT DOES CONCUR WITH THE STIPULATIONS AS STATED
{5} BY THE COUNSEL FOR THE RESPONDENT AND AT THIS POINT WE WOULD ALSO LIKE TO MAKE
A MOTION IN CONJUNCTION WITH THE PROCEEDING THAT IS BEFORE US TODAY.  THERE HAVE
BEEN ASSESSMENTS ISSUED WITH REGARD TO THE DOCKET OR NOTICE OF VIOLATION NUMBER
79-I-86-8.  ON AUGUST 22, 1979, THE APPLICANT FILED A REQUEST FOR CONFERENCE REGARDING
THAT NOTICE OF VIOLATION.  A CONFERENCE HAS NOT YET BEEN HELD BY THE ASSESSMENT
OFFICE, BUT AS A RESULT OF THE AGREEMENTS THAT WE REACHED THIS MORNING, THE
APPLICANT WOULD LIKE TO MOVE AT THIS TIME THAT THE REQUEST FOR CONFERENCE BY
RIPENED INTO A PETITION FOR REVIEW AND THAT THAT PROCEEDING BE JOINED WITH THE
INSTANT PROCEEDING AND THAT THE PROPOSED CIVIL PENALTY BE ASSESSED AS A FINAL
PENALTY AND THAT I THINK WE WOULD BE WILLING TO GO AHEAD AND PAY THE ASSESSED
PENALTY.  

   MR. GREGG: RESPONDENT WOULD HAVE NO OBJECTION TO THE MOTION OF THE APPLICANT. TO
BRIEFLY SUMMARIZE THE PROPOSED ASSESSMENT OF VIOLATION NUMBER ONE, NOTICE OF
VIOLATION NUMBER 86-8 SHOWED THE TOTAL OF 27 POINTS FOR A TOTAL ASSESSMENT OF
$700.00.  AS I UNDERSTAND THE MOTION IT WILL BE A MOTION TO MAKE THIS PROPOSED
ASSESSMENT THE FINAL WORD OF THE SECRETARY AND THE APPLICANT ARE IN AGREEMENT.  

   JUDGE ALLEN: IS THAT CORRECT?  ARE {6} YOU SAYING THAT YOU WANT TO MAKE WHATEVER
THE ASSESSMENT CONFERENCE GENERATES AS TO THIS PARTICULAR ONE THE FINAL ORDER?  

   MR. BODELL: YOUR HONOR, WE ARE PROPOSING THAT THE PROPOSED ASSESSMENT IS AS
ISSUED --  

   JUDGE ALLEN: OF $700.00 --  

   MR. BODELL: OF $700.00.  

   JUDGE ALLEN: ALL RIGHT, GENTLEMEN, WHAT YOU ARE DOING IS YOU ARE ASKING ME TO
MAKE A FINDING AS OF THIS TIME THAT YOU CONSENT TO THE VIOLATION BEING OF THE VALUE
OF 27 POINTS WITH THE ASSESSMENT OF $700.00 AND APPROVING IT, IS THAT CORRECT?  

   MR. BODELL: IF IT IS PROPER AT THIS TIME.  

   JUDGE ALLEN: IT IS PROPER.  

   MR. BODELL: THAT IS TRUE.  

   JUDGE ALLEN: IF THERE IS NO OBJECTION, IT IS PROPER AND IS SO ORDERED.  WHAT ABOUT THE
OTHER ONE?  

   MR. GREGG: THERE WERE NO PROPOSED ASSESSMENTS FOR VIOLATIONS NUMBER THREE AND
FOUR.  

   JUDGE ALLEN: ALL RIGHT, GENTLEMEN, I WILL RECAP SO THAT YOU WILL HAVE AN IDEA OF
WHAT THE ORDER WILL BE.  THE OTHER WILL BE A CONSENT DECISION {7} WHEREBY THE OFFICE
OF SURFACE MINING UNDER DOCKET NUMBER CH9-185-R, NOTICE OF VIOLATION NUMBER 79-1-86-8 -- OFF THE RECORD JUST A MOMENT.  

   (OFF-THE-RECORD DISCUSSION WAS HAD.)  

   JUDGE ALLEN: (RESUMING): -- THAT AS A RESULT OF THAT AGREEMENT, THE OFFICE OF
SURFACE MINING HEREBY VACATES THE VIOLATION NUMBER TWO AND THE APPLICANT
WITHDRAWS FOR REVIEW ITS MOTION AS TO VIOLATION NUMBER ONE.  FURTHER, THAT THE
PARTIES HAVE AGREED THAT THE ASSESSMENT OF 27 POINTS FOR VIOLATION NUMBER ONE IS
ADEQUATE AND THE PENALTY OF $700.00 IS AGREEABLE.  IF THAT IS THE CASE, THEN THAT WILL
BE THIS ORDER AS TO THAT VIOLATION.  

   MR. BODELL: THAT IS THE CASE, YOUR HONOR.  

   JUDGE ALLEN: AS TO CH9-186-R, 79-I-86-12 CONTAINING FOUR VIOLATIONS, THE OFFICE OF
SURFACE MINING HEREBY VACATES VIOLATION NUMBER ONE AND NUMBER TWO AND THE
APPLICANT IN CONSIDERATION OF THE VACATION OF NUMBER ONE AND NUMBER TWO
WITHDRAWS ITS APPLICATION FOR REVIEW OF VIOLATION FOR NUMBER THREE AND NUMBER
FOUR WITH PREJUDICE AND FURTHER THAT THE PARTIES SAY THAT THOUGH INSUFFICIENT
POINTS WERE {8} ASSIGNED TO THESE TWO VIOLATIONS TO WARRANT A CIVIL PENALTY AND
THEREFORE NO CIVIL PENALTY IS ASSESSED.  

   MR. GREGG: THAT IS CORRECT, YOUR HONOR.  

   JUDGE ALLEN: THAT IS THE ORDER. GENTLEMEN, ANYTHING FURTHER?  

   MR. GREGG: THAT IS IT.  THANK YOU, YOUR HONOR.  

   MR. BODELL: THAT IS ALL, YOUR HONOR.  

   JUDGE ALLEN: THE RECORD IS CLOSED.  

   * ** * ** * ** * ** *  

   (WHEREUPON, THE ABOVE-MENTIONED WILL BE CONSIDERED AS THE FINAL ORDER OF THE
COURT AND SO FILED.)