ORBIT MINING CO. v OSM;  Docket No. NX 9-54-P (October 23, 1979)

 TYPE: ALJ Hearing: Consent Decision  

NAME: ORBIT MINING CO., Petitioner v. OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM)  

DATE: October 23, 1979  

CASE-NO: Docket No. NX 9-54-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 79-II-20-8  

OPINIONBY: Administrative Law Judge Luoma  

OPINION: CONSENT DECISION
 
An assessment of civil penalty was issued by Respondent to Petitioner pursuant to Section 518 of the Surface Mining
Control and Reclamation Act of 1977, 30 U.S.C.  1201-1328.  On August 13, 1979, Petitioner filed a petition for
review of the penalty assessment and requested a hearing.
 
The matter was set for hearing on October 10, 1979, in Madisonville, Kentucky.
 
The parties subsequently desired to settle the issues existing between them, and on October 15, 1979, filed an agreed
order in this office.  

   ORDER
 
Since the parties have come to an agreement to settle the matter, the agreed order, a copy of which is attached and made
a part hereof, is accepted and adopted as the decision in this proceeding.  

   L. K. Luoma  
   Chief Administrative Law Judge
 
Distribution: (Certified Mail)
 
Joseph J. Zaluski, Zaluski & Seay, P.O. Box 374, Frankfort, KY 40602
 
Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior, P.O. Box 15006, Knoxville, TN
37901
 
Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Dept. of the Interior, Washington,
D.C. 20240  

   [Attachment 1 of 2]  

   UNITED STATES DEPARTMENT OF THE INTERIOR  
   OFFICE OF HEARINGS AND APPEALS  
   HEARING DIVISION  
   1052C FEDERAL BUILDING  
   600 FEDERAL PLACE  
   LOUISVILLE, KENTUCKY 40202
______________________________________________________________________________

Orbit Mining Company,         Docket No. NX9-54-P
                    Applicant
v.
                              Civil Penalty Proceeding
Office of Surface Mining
  Reclamation and Enforcement
  (OSM),                      Notice of Violation
                   Respondent No. 79-II-20-8
______________________________________________________________________________

   AGREED ORDER  

   By way of settlement and compromise in this matter, Applicant Orbit Mining Company (hereinafter "Orbit") and
Respondent OSM agree to perform the following actions, and agree to the following terms and conditions, which shall
be binding on both parties:  

   1.  Because the violation pertains to an area disturbed prior to May 3, 1978, OSM agrees to vacate Violation No. 1 of
Notice of Violation No. 79-II-20-8.  

   2.  Violation No. 2 of Notice of Violation No. 79-II-20-8 involves OSM's contention that Orbit may be held
accountable for a natural change in a downstream water course that resulted in the backflooding and introduction of
pollutants into Orbit's sedimentation pond, the result of said backflooding being the discharge of pollutants from this
sedimentation pond.  Orbit contested OSM's legal position concerning this violation, and OSM agreed that there has
been no prior adjudication of said legal issue by the Office of Hearings and Appeals. Orbit, for the purpose of
settlement, agrees not to contest this violation further. Orbit also agrees that OSM may keep the civil penalty of $460,
which Orbit has paid into escrow for this violation.  

   3.  OSM agrees to vacate in its entirety Order of Cessation No. 79-II-20-4, which was issued by OSM for failure to
abate the two violations contained in Notice of Violation No. 79-II-20-8.  OSM agrees that all penalties which have
been assessed heretofore for this Order of Cessation are null and void and may not be collected by OSM.  

   4.  Orbit agrees to plug the drainway which receives surface drainage from an area disturbed after May 3, 1978 and
which currently drains into the sedimentation pond on the southwest corner of the permit area, thereby creating a small
sediment basin from which the water will be discharged in a northerly direction.  This work will be completed by Orbit
by October 31, 1979.  

   5.  If Orbit is required by state officials to amend its state mining permit in order to plug the drainway as required by
paragraph 4 of this Agreed Order, OSM agrees to assist Orbit in obtaining prompt approval of an amendment to its
permit.  Orbit agrees to submit its application for a permit amendment to the appropriate state officials by October 20,
1979.  In the event that failure or lack of approval by state officials prevents Orbit from meeting the October 31, 1979
deadline, the parties agree to attempt to resolve this matter themselves. If they are unable to resolve the matter, they
agree to submit the matter to the Administrative Law Judge and allow him to modify the October 31, 1979 deadline  as
he believes fair.  

   6.  Violation No. 2 of Notice of Violation No. 79-II-20-8 is the only violation heretofore issued by OSM at this mine
which will appear on Orbit's history of previous violations.  

   Entered this       day of October, 1979.  

   ADMINISTRATIVE LAW JUDGE
 
APPROVED:
 Joseph J. Zaluski
Attorney for Orbit Mining Company
 
John P. Williams
Attorney for OSM  

   [Attachment 2 of 2]  

   United States Department of the Interior  
   OFFICE OF HEARINGS AND APPEALS  
   HEARINGS DIVISION  
   4015 WILSON BOULEVARD  
   ARLINGTON, VIRGINIA 22203  

   January 11, 1980
______________________________________________________________________________

ORBIT MINING COMPANY,                   Civil Penalty Proceeding
                             Petitioner
                  v.                    Docket No. NX 9-54-P
OFFICE OF SURFACE MINING
  RECLAMATION AND ENFORCEMENT (OSM),    Notice of Violation No. 79-II-20-8
                             Respondent
______________________________________________________________________________

   CONSENT DECISION  

   (ADDENDUM)  

   On October 23, 1979, a Consent Decision incorporating an agreed order filed by the parties on October 15, 1979 was
issued in the above-captioned proceeding.  

   By letter dated January 2, 1980, counsel for Respondent informed this office that Respondent has carried out the
commitments it made in paragraphs 1 and 3 of the agreed order and that Petitioner has completed the remedial work it
promised to perform in paragraph 4 of that agreed order.  

   On the basis of the representations made by Respondent's counsel that the provisions of the agreed order have been
fully complied with by both parties, the issues in this matter are resolved and the proceeding is hereby closed.  

   L. K. Luoma  
   Chief Administrative Law Judge
 
Distribution: (Certified Mail)
 
Joseph J. Zaluski, Esq., Zaluski & Seay, P.O. Box 374, Frankfort, KY 40602
 
John P. Williams, Esq., Office of the Field Solicitor, Office of Surface Mining, U.S. Department of the Interior, P.O.
Box 15006, Knoxville, TN 37901
 
Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240