COALEX REPORT 2

	Coalex Report 2

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   


COALEX STATE INQUIRY REPORT - 2
June 26, 1984

Steven H. Kopp
Tennessee Department of Health and Environment
Office of General Counsel-E
305 W. Springdale Avenue
Knoxville, Tennessee 37917

TOPIC: PENALTY ASSESSMENT; ADMINISTRATIVE PROCEEDINGS

INQUIRY: If an administrative agency fails to notify a coal operator of a proposed penalty
assessment within 30 days, are there any cases indicating that the reviewing Board must
demonstrate prejudice prior to vacating the penalty?  Are there any Board or ALJ decisions
regarding this issue?

SEARCH RESULT: A COALEX search was conducted of the legislative history of the Act to
determine whether Congress had considered this issue prior to the Act's passage.  No legislative
history directly dealing with this point was identified.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

   A follow-up search was conducted of OSM Federal Register notices.  At 40 FR 14974 (APRIL 12,
1984), OSM discussed this case in the action substituting federal enforcement of portions of
Oklahoma's permanent regulatory program.  Finding Number 6 of that notice indicates that
vacating proposed penalties during administrative hearings if the proposed assessments were not
served within thirty days after the NOV or CO was issued is counter to established legal
precedent.  Cases cited are:

SHARA COAL CO., INC. v US, No. CV82-4335 (SD Ill January 5, 1984).

US v LOG MOUNTAIN MINING CO., Civil No. 3-81-30 (MD Tn July 21, 1982), appeal pending (6th
Cir).

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 653 F 2d 514, 522 (DC Cir
1981), cert. denied, 454 US 822 (1981).


   The COALEX Library does not contain the results of federal administrative actions.  Therefore, a
search of ALJ or BOARD decisions was not possible.


ATTACHMENT
Excerpts from 49 FR 14674 (APRIL 12, 1984).


Search conducted by: Terri Petruska

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