BELVA COAL CO. v OSM;  BELVA COAL CO. v OSM; Docket Nos. CH 9-51-R, CH 9-16-P (October 26, 1979)

 TYPE: ALJ Hearing: Consent Decision  

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

DATE: October 26, 1979  

CASE-NO: Docket Nos. CH 9-51-R, CH 9-16-P  

PROCEEDING: Docket No. CH 9-51-R, Application for Review, Notice of Violation No. 79-I-9-6; Docket No. CH 9-16-P, Civil Penalty Proceeding, Notice of Violation No. 79-I-9-6  

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), Belva Coal Company (applicant) filed for review of Notice of Violation No. 79-I-9-6 on April 5, 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 further petitioned on April 18, 1979, for review of the notice
and proposed civil penalty assessment issued by the respondent.  Contemporaneously with the filing of the petition, the
applicant (petitioner) paid to the Assessment Office, OSM, the full amount of the proposed civil penalty ($12,800) 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 therefore since violations Nos. 2, 3 and 5 of Notice of Violation No.
79-I-9-6 have been vacated by the respondent, they are not considered.  {2}
 
   ORDER  

   Violations Nos. 1, 4, and 6 of Notice of Violation No. 79-I-9-6 are affirmed in accordance with the agreement of the
parties, and the penalty is reduced from $12,800 to $1,980 in accordance with the agreement.  This penalty is affirmed,
and the respondent is directed to refund to the petitioner the sum of $10,820 with interest at the rate of 6 percent or the
prevailing Department of Treasury rate, whichever is greater.  A copy of the joint motion is attached hereto and made a
part hereof.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   J. R. Hughes, Safety Director, Belva Coal Co., Inc., P.O. Box 487, Man, WV 25635 (Certified Mail)  

   Ricklin Brown, Esq., Bowles, McDavid, Graff & Love, P.O. Box 1386, Charleston, WV 25325 (Certified Mail)  

   Marye L. Wright, 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
Belva Coal Company,             :  Docket No. CH 9-51-R
                                :
          Applicant,            :  Application for Review
                                :
v.                              :  Notice of Violation 79-I-9-6
                                :
Office of Surface Mining        :  Docket No. CH 9-16-P
Reclamation and Enforcement     :
(OSM),                          :  Civil Penalty Proceeding
                                :
          Respondent.           :  Notice of Violation 79-I-9-6
______________________________________________________________________________

   JOINT MOTION FOR CONSENT ORDER  

   Comes now Applicant/Petitioner, Belva 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 a Consent Order.  The
parties will show unto the Administrative Tribunal as follows:  

   1.  An Application and Petition for Review have been filed under Sections 525 and 518 respectively of the Surface
Mining Control Act of 1977.  An administrative hearing following consolidation of the cases was scheduled for October
26, 1979, to review the fact of violation and the propriety of assessed penalties for violations contained in Notice of
Violation 79-I-9-6.  

   2. Prior to the hearing the parties entered into an agreement.  An evidentiary hearing, therefore, is no longer necessary. 


   3.  It was agreed between the parties that Violations 2, 3, and 5 of Notice of Violation 79-I-9-6 should be vacated.  

   4.  With respect to Violation No. 1 of the Notice, the parties agreed that the Applicant/Petitioner was in violation {2}
  of  30 CFR 717.17(a) and that the assessment for that violation should be as follows: 5 points should be assigned for
probability of occurrence; 8 points should be assigned for extent of damage; 6 points should be assigned for negligence,
resulting in 19 total points, for an assessment of $380.  

   5.  With respect to Violation No. 4 of Notice of Violation 79-I-9-6, the parties agree that Applicant/Petitioner violated
30 CFR 717.18(b) and that the assessment for Violation No. 4 should be as follows: 10 points should be assigned for
probability of occurrence; 10 points should be assigned for extent of damage; 8 points should be assigned for
negligence, resulting in 28 total points for an assessment of $800.  

   6.  With respect to Violation No. 6 of the Notice, the parties agree that Applicant/Petitioner violated 30 CFR 717.17(j)
(2) (i) and that the assessment for Violation No. 6 should be as follows: 15 points should be assigned for probability of
occurrence; 3 points should be assigned for extent of damage; 10 points should be assigned for negligence, resulting in
28 total points, for an assessment of $800.  

   WHEREFORE, the parties jointly move:  

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

   2.  That a total of $10,820 with statutory interest thereon be returned to Applicant/Petitioner from the amount
previously paid into escrow; {3}
 
   3.  That Docket Nos. CH 9-51-R and CH 8-16-P be dismissed.  

   Respectfully submitted,  

   Marye L. Wright  
   Counsel for Respondent  
   Office of Surface Mining Reclamation and Enforcement  
   9th Floor, Union Building  
   723 Kanawha Blvd., East  
   Charleston, West Virginia 25301  
   A/C 304-343-8928  

   Ricklin Brown, Esquire  
   Counsel for Applicant/Petitioner  
   P.O. Box 1386  
   Charleston, West Virginia 25325