B.A.M. COAL CO. v OSM; Docket No. NX 8-1-P (October 17, 1978)

 TYPE: ALJ Hearing: Decision  

NAME: B.A.M. COAL CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM) Respondent  

DATE: October 17, 1978  

CASE-NO: Docket No. NX 8-1-P  

PROCEEDING: Civil Penalty Proceeding, Order of Cessation No. 78-II-6-3  

COUNSEL: 

Clifton Sexton, Esq., Sexton Law Offices, P.C., Drawer E. Oneida, TN, for Applicant; 

John Williams, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Knoxville, TN, for Respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: DECISION  

   BACKGROUND  

  In accordance with Section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), B.A.M. Coal
Company, Applicant applied on July 31, 1978 for a review of a notice of proposed civil penalty assessment issued by
the Office of Surface Mining and Reclamation, Respondent.  This proposed assessment was based on Order of
Cessation No. 78-II-6-3 dated May 25, 1978.  This order had been modified as to the time allowed for abatement on
June 26, 1978.  Contemporaneous with the filing of its application, the Applicant in accordance with the requirements of
43 CFR  4.1152(b)(1) paid the full amount of the proposed civil penalty ($5,300.00) to the Assessment Office, Office
of Surface Mining to be placed in escrow pending a final determination of the proposed assessment.   

  A hearing was held before the undersigned in Clinton, Tennessee on October 4, 1978.  At the conclusion of the hearing
both the Applicant and the Respondent waived their rights to file proposed findings of fact and conclusions of law and
each of them asked that a final decision be rendered immediately.   

{2}  Thereupon, the undersigned rendered a decision wherein the order of cessation and the violations contained therein
were sustained, but the proposed civil penalty was reduced from $5300 to $2000.  

   CONFIRMATION OF DECISION AND ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW  

  The decision of the undersigned including the findings of fact and conclusions of law as contained in the verbatim
record made in this case are confirmed by this written decision and order.  In addition to that, the undersigned makes the
following findings of fact and conclusions of law.   

 The Applicant had no history of previous violations under the Act, and thus in computing the proposed civil penalty
assessments in accordance with 30 CFR  723.12, the Respondent correctly assigned no points against the Applicant for
previous violations.   

  Under the regulation referred to above, the Respondent assigned no points for or against the Applicant under
subsection (e) of that regulation which deals with good faith in attempting to achieve compliance.  The undersigned is of
the opinion that the Respondent is supported by a preponderance of the reliable and probative evidence in its
determination that the Respondent exhibited "normal" good faith in attempting to achieve compliance as to each
violation.   

  All other criteria set out in 43 CFR  4.1157 required by to be considered in a civil penalty case were considered in the
decision rendered from the bench.   

  It should be pointed out that at the hearing the Applicant was incorrectly advised by the undersigned that it had  30
days from the date of the hearing to permition for a review of this decision and order imposing a civil penalty. 
According to 43 CFR  4.1270(b), the Applicant will have 30 days within the date of receipt of this order and decision
to file a petition for review.  

   ORDER  

  It is therefore ordered that the proposed civil penalty assessed against the Applicant be reduced from $5300 to $2000
and that the sum of $3300 with interest at the rate of 6% or with interest at the prevailing Department of Treasury rate,
whichever is greater be remitted to the Applicant.  

David Torbett, 
Administrative Law Judge