ISLAND CREEK COAL CO. v OSM; Docket No. CH 9-24-P (October 23, 1979)

 TYPE: ALJ Hearing: Consent Decision  

NAME: ISLAND CREEK COAL CO., Petitioner v. OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: October 23, 1979  

CASE-NO: Docket No. CH 9-24-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 79-I-47-17  

OPINIONBY: Administrative Law Judge Allen  

OPINION: CONSENT DECISION  

   In accordance with section 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act) (30 U.S.C. 
1201 et seq.), Island Creek Coal Co. (petitioner) filed an application for review of a proposed civil penalty assessment
on August 24, 1979, issued by the Office of Surface Mining Reclamation and Enforcement sometime prior to that date. 
The "Notice of Proposed Assessment" is undated. Contemporaneously with the filing of its application, the petitioner, in
compliance with the requirements of 43 CFR 4.1152(b) (1), paid the full amount of the proposed penalty ($4,800) to
the Assessment Office, Office of Surface Mining, to be placed in escrow pending final determination of the proposed
assessment.  A timely answer was filed.  

   The matter was set for hearing before the undersigned on Thursday, October 17, 1979, in Pikeville, Kentucky.  The
parties, desiring to settle the issues existing between them, submitted a joint motion for consent order in writing which is
accepted by the undersigned.  It is therefore:  

   ORDER  

   Ordered and adjudged that violation No. 1 of Notice of Violation No. 79-I-47-17 is affirmed.  Violation No. 2 of said
notice of violation has been previously vacated by order of dismissal entered in Docket No. CH 9-115-R, August 13,
1979.  The total assessment is therefore reduced from $4,800 to $1,700 in compliance with the agreement, and the
respondent shall remit to the applicant the sum of $3,100 with interest at the rate of 6 percent or with interest at the
prevailing Department {2} of Treasury rate, whichever is greater.  A copy of the agreement is hereto attached and made
a part of this order.  

   Tom M. Allen  
   Administrative Law Judge
 
Distribution:  

   William K. Bodell II, Esq., P.O. Box 11430, Lexington, KY 40575 (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, Room 215, So. Bldg., U.S. Dept. of the Interior, Washington, DC 20240  

   [Attachment]
______________________________________________________________________________

               UNITED STATES DEPARTMENT OF THE INTERIOR
                    OFFICE OF HEARING AND APPEALS
                          HEARINGS DIVISION
Island Creek Coal Company,      :  Docket No. CH 9-24-P
          Applicant,
v.                              :  Civil Penalty Proceeding
Office of Surface Mining        :
Reclamation and Enforcement     :  Notice of Violation 79-I-47-17
(OSM),                          :
          Respondent.           :  Guyan I-C Mine
______________________________________________________________________________

   JOINT MOTION FOR CONSENT ORDER  

   Now come Petitioner Island Creek 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 is filed under Section 518 of the Surface Mining Control and Reclamation Act of 1977, and
an administrative hearing scheduled for October 17, 1979, to review the propriety of assessed penalties for violations
cited in Notice of Violation 79-I-47-17.  

   2.  Prior to the hearing the parties entered into an agreement which disposed of the necessity for hearing.  

   3.  It was agreed between the parties that the assessment for Violation No. 1 of Notice of Violation 79-I-47-17 should
be as follows: 13 points should be assigned for probability of occurrence; 10 points should be assigned for extent of
damage; 14 points should be assigned for negligence, resulting in 37 total points, for an assessment of $1700.  {2}
 
   4.  Violation No. 2 of Notice of Violation 79-I-47-17 has been previously vacated by Order of Dismissal entered in
Docket No. CH 9-115-R on August 13, 1979.  

   5.  The sum of $3100 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 a total of 37 points and $1700 be assessed for Violation No. 1 of Notice of Violation 79-I-47-17;  

   3.  That a total of $3100 with statutory interest thereon be returned to the Petitioner from the amount previously paid
into escrow; and  

   4.  That Docket No. CH 9-24-P be dismissed.  

   Respectfully submitted,  

   Billy Jack Gregg  
   Counsel for Respondent  
   Office of Surface Mining  Reclamation and Enforcement  
   950 Kanawha Blvd., East  
   Charleston, West Virginia 25301  

   William K. Bodell, II, Esquire  
   Counsel for Petitioner  
   Island Creek Coal Company  
   P.O. Box 11430  
   Lexington, Kentucky 40575