ROBINSON-PHILLIPS COAL CO. v OSM; ROBINSON-PHILLIPS COAL CO. v OSM; Docket Nos. CH 9-117-R, 
     CH 9-38-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 9-117-R, CH 9-38-P  

PROCEEDING: Docket No. CH 9-117-R, Application for Review, Notice of Violation No. 79-I-43-19, Marianna
Preparation Plant; Docket No. CH 9-38-P, Civil Penalty Proceeding, Notice of Violation No. 79-I-43-19, Marianna
Preparation Plant  

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-43-19 on June 6,
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
($1,100) 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 compliance with the joint motion by the parties, it is ordered that the assessment of $1,100 be reduced to the
amount of $900 which is hereby affirmed, and the respondent is directed to refund to the petitioner the sum of $200 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, U.S. Dept. of the Interior, Room 215, So. Bldg., Washington, DC 20240  

   [Attachment]
______________________________________________________________________________

                   UNITED STATES DEPARTMENT OF THE INTERIOR
                        OFFICE OF HEARINGS AND APPEALS
                               HEARING DIVISION
Robinson-Phillips Coal Co.,             :  Docket No. CH 9-38-P and
                                        :  CH 9-117-R
              Petitioner,               :
                                        :  Civil Penalty Proceeding
v.                                      :
                                        :  Application for Review
Office of Surface Mining                :
Reclamation and Enforcement             :  Notice of Violation 79-I-43-19
(OSM),                                  :
                                        :
              Respondent.               :  Marianna Preparation Plant
______________________________________________________________________________

   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-43-19.  

   2.  An Application for Review had previously been filed under Section 525 of the Surface Mining Control and
Reclamation Act of 1977, and administrative hearings continued on the motion of Applicant.  The Notice of Violation
79-I-43-19 is the subject of both the Civil Penalty Proceeding, Docket No. CH 9-38-P and the Application for Review,
Docket No. CH 9-117-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 Docket No. CH 9-117-R and CH 9-38-P should be consolidated for
purposes of disposition.  

   5.  It was further agreed between the parties that the assessment for Violation No. 1 of Notice of Violation 79-I-43-19
should be as follows: 13 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 29 total points, for an assessment of $900.  

   6.  The sum of $200 of the amount previously paid into escrow should be returned to the Petitioner with statutory
interest thereon.  

   WHEREFORE, the parties jointly move:  

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

   2.  That Docket Nos. CH 9-117-R and CH 9-38-P be consolidated for purposes of disposition;  

   3.  That a total of 29 points and $900 be assessed for Violation No. 1 of Notice of Violation 79-I-43-19;  

   4.  That a total of $200 with statutory interest thereon be returned to the Petitioner from the amount previously paid
into escrow; and {3}
 
   5.  That Docket Nos. CH 9-117-R and CH 9-38-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