OHIO VALLEY CO. v OSM; Docket No. IN 9-17-P (November 19, 1979)

 TYPE:  ALJ Hearings: Decision  

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

DATE: November 19, 1979  

CASE-NO: Docket No. IN 9-17-P  

PROCEEDING: Civil Penalty Proceeding; NOV No. 79-III-6-27; NMI  

OPINION: DECISION AS TO SEPARATED ISSUE  

   Respondent on September 6, 1979 moved that the legal issue presented be separated from the factual issues.  The
legal issue is whether the proposed civil penalty should be dismissed by reason of OSM's failure to hold an assessment
conference within 60 days of the request for a conference.  An Order granting the Motion and establishing a schedule for
the submission of briefs was entered on September 25, 1979.  Such briefs have now been considered.  

   The assessment conference, to which petitioner was entitled, was actually held, but not within the 60 days specified in
30 CFR 723.18(b).  I therefore find that OSM did follow the regulations.  The 60 day requirement is directory only.  No
consequence was specified for failure to comply.  It is a creature of the Department and its value or benefit is to the
Department.  Its observation speeds the refinement and disposal of civil penalty cases.  Petitioner does not allege that it
has been prejudiced by the assessment conference delay.  To void a penalty assessment merely because the assessment
conference was late would frustrate the intent of Congress that violators receive meaningful penalties and that the review
of proposed penalties be on their substantive merits.  

   It is the decision of this tribunal that the 60 day requirement of 30 CFR 723.18(b) is directory, not mandatory, and
therefore petitioner's request for dismissal of the proposed assessment is denied.  

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