ROBINSON-PHILLIPS COAL CO. v OSM; ROBINSON-PHILLIPS COAL CO. v OSM; Docket Nos. CH 9-72-R, 
     CH 9-36-P (November 2, 1979)

 TYPE: ALJ Hearing: Consent Decision  

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

DATE: November 2, 1979  

CASE-NO: Docket Nos. CH 9-72-R, CH 9-36-P  

PROCEEDING: Docket No. CH 9-72-R, Application for Review, Notice of Violation No. 79-I-26-7, Preparation
Facility #1; Docket No. CH 9-36-P, Civil Penalty Proceeding, Notice of Violation No. 79-I-26-7, Preparation Facility
#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), Robinson-Phillips Coal Co. (applicant) filed for review of Notice of Violation No. 79-I-26-7 on April
26, 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, the applicant (petitioner) further petitioned on September 5, 1979,
for review of the notice and proposed civil penalty assessment issued by the respondent.  Contemporaneously with the
filing of the petition, the petitioner paid to the Assessment Office, OSM, the full amount of the proposed civil penalty
($5,100) in compliance with the requirements of 43 CFR 4.1152(b) (1).  Timely answers were filed.  

   The parties have reached an agreement and requested the undersigned to issue an order accordingly.  The agreement
of the parties is accepted by the undersigned, and a copy is attached hereto and made a part of this order.  {2}
 
   ORDER  

   In complaince with the joint motion by the parties, it is ordered that the assessment of $5,100 be reduced to the
amount of $2,700 which is hereby affirmed, and the respondent is directed to refund to the petitioner the sum of $2,400
with interest at the rate of 6 percent or the prevailing Department of the Treasury rate, whichever is greater.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   James R. Mustard, Jr., Esq., Spillman, Thomas, Battle & Klostermeyer, P.O. Box 273, Charleston, WV 25321
(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  

   [Attachment]
______________________________________________________________________________

                   UNITED STATES DEPARTMENT OF THE INTERIOR
                        OFFICE OF HEARINGS AND APPEALS
                               HEARINGS DIVISION
Robinson-Phillips Coal Co.,             :  Docket No. CH 9-36-P and
                                        :  CH 9-72-R
              Petitioner,               :
                                        :  Civil Penalty Proceeding
v.                                      :
                                        :  Application for Review
Office of Surface Mining                :
Reclamation and Enforcement             :  Notice of Violation 79-I-26-7
(OSM),                                  :
              Respondent.               :  Preparation Facility #1
______________________________________________________________________________

   JOINT MOTION FOR CONSENT ORDER  

   Now come Petitioner Robinson-Phillips Coal Company and Respondent Office of Surface Mining Reclamation and
Enforcement (OSM), pursuant to 43 CFR 4.1111 and make the following Joint Motion for Consent Order.  The parties
would show unto the Administrative Law Judge as follows:  

   1.  A petition for Review was filed under Section 518 of the Surface Mining Control and Reclamation Act of 1977,
and an administrative hearing scheduled for November 5, 1979 to review the propriety of assessed penalties for
violations cited in Notice of Violation 79-I-26-7.  

   2.  An Application for Review had been previously filed under Section 525 of the Surface Mining Control and
Reclamation Act of 1977, and administrative hearing thereon continued on the motion of Applicant.  The Notice of
Violation 79-I-26-7 which is the subject of both the Petition for Review, Docket No. CH 9-36-P, and Application for
Review, Docket No. CH 9-72-R.  {2}
 
   3.  Prior to the hearing the parties entered into an agreement which disposed of the necessity for hearing.  

   4.  It was agreed between the parties that the Application for Review, Docket No. CH 9-72-R, and the Petition for
Review, Docket No. CH 9-36-P, should be consolidated for the purposes of disposition.  

   5.  It was further agreed between the parties that the assessment for Violation No. 1 of Notice of Violation 79-I-26-7
should be as follows: 12 points should be assigned for probability of occurrence; 12 points should be assigned  for
extent of damage; 6 points should be assigned for negligence, resulting in 30 total points, for an assessment of $1000.  It
was agreed that the assessment for Violation No. 2 of Notice of Violation 79-I-26-7 should be as follows: 12 points for
probability of occurrence; 13 points for extent of damage; 6 points for negligence, resulting in 31 total points, for an
assessment of $1100.  It was agreed that the assessment for Violation No. 3 of Notice of Violation 79-I-26-7 should be
as follows: 10 points should be assigned for probability of occurrence; 10 points should be assigned for extent of
damage; 6 points should be assigned for negligence, resulting in 26 total points, for an assessment of $600.  The total
agreed assessment for Notice of Violation 79-I-26-7 is $2700.  

   6.  The sum of $2400 of the amount previously paid into escrow should be returned to the Petitioner with statutory
interest thereon.  {3}
 
   WHEREFORE, the parties jointly move:  

   1.  That the agreement entered into as stated above be accepted;  

   2.  That Docket No. CH 9-72-R and CH 9-36-P be consolidated for purposes of disposition;  

   3.  That a total of 30 points and $1000 be assessed for Violation No. 1 of Notice of Violation 79-I-47-17; that a total
of 31 points and $1100 be assessed for Violation No. 2 of Notice of Violation 79-I-26-7; that a total of 26 points and
$600 be assessed for Violation No. 3 of Notice of Violation 79-I-26-7, for a total assessment of $2700.  

   4.  That a total of $2400 with statutory interest thereon be returned to the Petitioner from the amount previously paid
into escrow, and  

   5.  That Docket Nos. CH 9-72-R and CH 9-36-P be dismissed.  

   Respectfully submitted,  

   Billy Jack Gregg  
   Counsel for Respondent  
   Office of Surface Mining  
   Reclamation and Enforcement  
   950 Kanawha Boulevard, East  
   Charleston, West Virginia  

   James R. Mustard, Jr., Esquire  
   Counsel for Applicant  
   Robinson-Phillips Coal Company  
   Spillman, Thomas, Battle and Klostermeyer  
   P.O. Box 273  
   Charleston, West Virginia 25321