CHEYENNE SALES CO. v OSM; Docket No. CH 9-1 (January 16, 1979)

 TYPE:  ALJ Hearing: Decision

NAME: CHEYENNE SALES CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: January 16, 1979  

CASE-NO: Docket No. CH 9-1-P  

PROCEEDING: Civil Penalty Proceeding; NOV. 78-1-4-1; Virginia Permit No. 63-77; NMI  

COUNSEL: Joseph D. Polino, Esq., Elkins, West Virginia, for Applicant; Marye Wright, Esq., Office of the Solicitor,
Department of the Interior, for Respondent.  

OPINIONBY: Administrative Law Judge McGuire  

OPINION: DECISION  

    This is a proceeding under section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act),
following the timely filing of an application for review of a notice of violation issued by the Office of Surface Mining
Reclamation and Enforcement, under section 521(a)(3) of the Act.   

  1  On June 27, 1978, following the receipt of a citizen's complaint on June 14, 1978, Respondent, as authorized in
section 521(a)(3) of the Act, issued Notice of Violation No. 78-1-4-1, as modified on August 17, 1978, alleging that
Applicant had conducted blasting within 1,000 feet of a building used as a dwelling without the approval of the
regulatory authority based upon a preblasting survey or other appropriate investigations, in violation of 30 CFR
715.19(e)(1)(vii)(A), and assessed a civil penalty of $1,800.  The assessment of said civil penalty, provided for in
section 518 of the Act for violations of a permit condition, any provision of Title V of the Act or any implementing
regulation, followed the authority set forth in 30 CFR 723.11, 723.12, and 723.13, giving due consideration to (1) the
Applicant's history of previous violations at the particular coal mining operation; (2) the seriousness of the violation; (3)
whether the Applicant was negligent; and (4) the demonstrated good faith of the Applicant in attempting to achieve
rapid compliance after having been notified of the violation.  On October 13, 1978, Applicant filed an application for
review and, in accordance with the requirements of 43 CFR 4.1152(b)(1), paid the full amount of the proposed civil
penalty ($1,800) to the Assessment Office, Office of Surface Mining, to be placed in escrow pending a final
determination of the proposed assessment.   

 {2}  A hearing was held before the undersigned in Clarksburg, West Virginia, on January 11, 1979, during which the
parties reached a settlement of all issues in dispute.  The previously assessed civil penalty of $1,800, based upon an
assessment of 38 points as provided for in 30 CFR 723.12, was reduced to $800.  The reduction in the amount of the
civil penalty resulted from reducing the assessment points from 38 to 28 as a result of subtracting 10 points based upon
the degree of Applicant's good faith demonstrated in attempting to achieve rapid compliance after being notified of the
violation.   

    The undersigned makes the following specific findings of fact:  

   1.  At all times mentioned herein, Applicant Cheyenne Sales Company, was operating under and subject to the
provisions of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87, 91 Stat. 468, 30 U.S.C.   1201 et
seq.).  

   2.  Applicant stipulated and agreed at the hearing that Respondent's Notice of Violation No. 78-1-4-1 was properly
issued on June 27, 1978.  

   3.  The parties stipulated and agreed at the hearing that the civil penalty should be reduced from $1,800 to $800 as a
result of reducing the total assessment points from 38 to 28.  Respondent assessed no points because of Applicant's
history of no previous violations, 28 points owing to the seriousness of the violation, i. e., 15 points for probability of
occurrence and 13 points for the extent of potential or actual damage, 10 points because of negligence and a reduction of
10 points based upon the degree of Applicant's good faith demonstrated in attempting to achieve rapid compliance after
having been notified of the violation.  

   ORDER  

  It is therefore ordered that the proposed civil penalty assessed against the Applicant be reduced from $1,800 to the
agree upon sum of $800, and that the sum of $1,000 with interest at the rate of 6 percent or with interest at the
prevailing Department of Treasury rate, whichever is greater, be remitted to the Applicant.  

Joseph E. McGuire, 
Administrative Law Judge  

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