FARRELL-COOPER MINING CO. v OSM;  Docket Nos. KC 9-5-R, KC 9-4-P, KC 9-2-P (October 25, 1979)

TYPE: ALJ Hearing: Consent Decision  

NAME: FARRELL-COOPER MINING CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: October 25, 1979  

CASE-NO: Docket Nos. KC 9-5-R, KC 9-4-P, KC 9-2-P  

PROCEEDING: Docket No. KC 9-5-R, Application for Review, Cessation Order No. 79-IV-2-3; Docket No. KC 9-4-P, Civil Penalty Proceeding, Notice of Violation No. 78-IV-2-12; Docket No. KC 9-2-P, Civil Penalty Proceeding,
Notice of Violation No. 78-IV-2-8  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: CONSENT DECISION  

   Pursuant to Section 518 of the Act, n1 Farrell-Cooper Mining Company, applicant, petitioned on June 28, 1979, for
review of civil penalties proposed by OSM for violations cited in Notice of Violation No. 78-IV-2-12, issued December
15, 1978, at applicant's Red Oak Mine in Oklahoma.  Likewise, on April 30, 1979, applicant sought review of the
proposed penalty for Notice of Violation No. 78-IV-2-8 issued August 22, 1978, at applicant's Russelville, Arkansas
Mine.  On July 3, 1979, the applicant requested, pursuant to Section 525 of the Act, n2 review of Cessation Order No.
79-IV-2-3 issued at the Red Oak Mine May 24, 1979, for the alleged failure to abate {2} two of the violations cited in
Notice of Violation No. 78-IV-2-12.  

   n1 Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq.; 30 U.S.C. 1268.  

   n2 30 U.S.C. 1275.  

   A hearing previously set for September 26 and 27, 1979, on these cases was postponed upon the court's receipt of
information that the parties had tentatively settled all the issues.  On October 25, 1979, the court received a Settlement
Agreement signed by both parties and a Joint Motion for Entry of Final Order.  

   There being no cause for delay, the Settlement Agreement is accepted by the court, the parties' joint motion is
GRANTED, and the parties are hereby ORDERED to conduct themselves in accordance with their agreement, a copy
of which is attached and made a part hereof.  

   William J. Truswell  
   Administrative Law Judge
 
Distribution:
 
Certified Mail (Return Receipt Requested)  

   Genevieve Yoes, Esquire, Farrell-Cooper Mining Company, P.O. Box 1947, Fort Smith, Arkansas 72902.  

   Farrell-Cooper Mining Company, P.O. Box 1947, Fort Smith, Arkansas 72902.  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, 818 Grand Avenue, Scarritt
Building, Kansas City, Missouri 64108.  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240.  

   by regular mail:  

   Assessment Office, Office of Surface Mining Reclamation & Enforcement, U.S. Department of the Interior,
Washington, D.C. 20240.  

   [Attachment]
______________________________________________________________________________

    UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS
FARRELL-COOPER MINING COMPANY       :  Docket No. KC 9-5-R
                                    :  Application for Review
                         Applicant, :
                                    :  Cessation Order
                v.                  :
                                    :  No. 79-IV-2-3
                                    :  Docket No. KC 9-4-P
OFFICE OF SURFACE MINING            :
RECLAMATION AND ENFORCEMENT (OSM)   :  Civil Penalty Proceeding
                                    :  Notice of Violation
                        Respondent. :  No. 78-IV-2-12
                                       Docket No. KC 9-2-P
                                       Civil Penalty Proceeding
                                       Notice of Violation
                                       No. 78-IV-2-8
______________________________________________________________________________

   SETTLEMENT AGREEMENT  

   Now comes the Applicant and the Respondent in these causes, by respective counsel, and declare to the court that they
have settled all issues relevant to this litigation as follows:  

   A.  NOV #78-IV-2-8, Docket No. KC 9-2-P Russellville Mine  

   1.  Applicant admits that the violation, mishandling topsoil, occurred as charged, and agrees to pay a penalty of $400.  

   2.  Respondent concedes that the proposed penalty, $1,300, was excessive and stipulates the $400 is a fair assessment
of the violation.  

   3.  Applicant agrees to pay a civil penalty of $400 for this violation.  {2}
 
   4.  Respondent agrees to withdraw its motion to dismiss this case.  

   B.  NOV #78-IV-2-12, Docket No. KC 9-4-P Red Oak Mine  

   1.  Respondent concedes that Violation #4, mining within 100 feet of a public road right-of-way, did not occur and
agrees to vacate said violation.  

   2.  Applicant concedes that Violation #1, #2, #3, and #5 did in fact occur.  

   3.  Respondent concedes that the proposed assessments for Violations #1, #2, #3, and #5 were excessive and
stipulates that fair assessments of these violations result in the following civil penalties:
________________________________________________________________________________

#1      $ 1,200
#2        1,200
#3        1,200
#5            0
        $ 3,600
________________________________________________________________________________

   4.  Applicant agrees to pay a civil penalty of $3,600 for Violations #1, #2, and #3 of Notice of Violation No. 78-IV-2-12.  

   C.  CO #79-IV-2-3, Docket No. 9-5-R Red Oak Mine  

   1.  Applicant concedes and admits that it failed to abate Violation #2 of Notice of Violation #78-IV-2-12 (stream
channel diversions) for fifteen (15) days following the established abatement date of May 21, 1979.  {3}
 
   2. Respondent concedes that the abatement ordered for Violation #1 of Notice of Violation No 78-IV-2-12 had been
completed prior to May 21, 1979, and therefore Applicant did not fail to abate that violation.  

   3.  Respondent agrees that the minimum daily penalty allowed by Section 518(h) of the Act (30 U.S.C. 1268(h)),
$750, is sufficient penalty to protect the public interest harmed each day Violation #2 of Notice of Violation No. 78-IV-2-12 remained unabated.  

   4.  Applicant agrees to pay a civil penalty of $11,250 for the fifteen (15) days Violation #2 of Notice of Violation No.
78-IV-2-12 remained unabated.  

   D. Additional Reclamation Work Red Oak Mine  

   In consideration of the concessions, stipulations and agreements by OSM above, the Applicant agrees to do the
following specific reclamation work at the Red Oak Mine in addition to all other obligations imposed by law.  

   1.  In the neighborhood of the junction of Jefferson Creek with Brazil Creek (old pit #2 area):  

   (a) Straw bales will be seated and anchored along the two designated areas on the east edge of the disturbed area
parallel to Brazil Creek to prevent erosion of the regraded toposil into Brazil Creek.  This work shall be completed by
October 31, 1979.  

   (b) The spillway area for the approved permanent sediment pond at the mouth of Jefferson Creek shall be {4} seeded
with perennial grasses and legumes by October 31, 1979.  No later than May 30, 1980, said spillway shall be further
stabilized by the planting of no less than 100 willow tree saplings, or other varieties approved by the OSM District
Office, Tulsa.  

   (c) Applicant will take affirmative measures to stabilize the banks of the permanent sedimentation pond at the point
where it is crossed by the natural gas pipeline.  

   (d) The disturbed areas that have been regarded, topsoiled and seeded shall be examined for successful seed
germination no later than October 15, 1979. All areas upon which there has been no successful germination by that date
shall be reseeded, conditioned as may be necessary, and mulched at the rate of 1-1/2 tons of straw per acre no later than
October 31, 1979.  If, by November 20, 1979, there remain areas where there is no growth capable of retarding erosion,
those areas shall be mulched at the rate stated above and the mulch shall be crimped into the soil for effective erosion
control during the winter months.  All rills and gullies that may have developed shall be stabilized to halt their
progression.  

   2.  In the neighborhood of the disturbed areas associated with the Bear Creek diversion (old pit #1):  

   (a) The entire area except the last cut of the mining operation (strip pit #1) shall be backfilled to approximate the
original contour, all ponds and water-holding depression shall be eliminated, topsoil shall be redistributed to a {5} depth
of six inches, the topsoil shall be conditioned for seeding and the area shall be seeded and mulched by December 31,
1979.  All mulch shall be crimped into the soil to more effectively retard erosion.  

   (b) The area associated with the last cut of the mining operation shall be backfilled and rough graded and mulched by
December 31, 1979.  

   The initial revegetation activities of the spoil-piles and topsoil piles may be postponed until the spring of 1980. 
Between December 31, 1979 and the spring of 1980, topsoil stockpiles shall be protected by mulching or other
appropriate measures.  

   Topsoil spreading and initial seeding and mulching shall be completed by June 1, 1980.  

   (c) The runoff of stockpiles and regraded cut area shall be controlled so that effluent limits of 30 CFR 715.17(a) are
not exceeded at any point where runoff samples can be collected.  

   (d) The development of rills and gullies in excess of 9 inches deep in rough graded material due to precipitation or
flooding of Bear Creek, shall be evidence of pollution of Bear Creek which is in violation of 30 CFR 715.17.  

   (e) The east end of the old diversion ditch, at its junction with Bear Creek, shall be sloped and protected from erosion
as follows:  

   (i) Non-toxic fill material will be placed in the remaining cavity so as to fill it and to {6} create a bank along Bear
Creek in approximate continuity with the natural banks.  

   (ii) The constructed bank shall be compacted and the face of the finished fill shall be riprapped with medium angular
sized stones available in the area. The remaining areas of exposed soil shall be mulched and seeded with grasses or
legumes to retard erosion and potential sloughing into Bear Creek.  

   E.  Further Understanding and Agreements  

   1.  Applicant agrees to pay the civil penalties agreed to above, totalling $15,250, to the Assessment Office OSM, no
later than October 31, 1979.  

   2. This agreement has no effect on the enforcement authority of OSM with respect to any matter not specifically
addressed in this agreement.  The Applicant understands that its failure to comply with this agreement shall subject the
Applicant to the full enforcement authority of OSM.  

   3. Respondent and Applicant agree to proceed to a conclusion of this matter as agreed, in good faith, and Respondent
agrees to provide technical advice and clarifications as needed to enable Applicant to complete the affirmative
reclamation obligations agreed to herein.  {7}

Date: October 22, 1979
 
Date: October 19, 1979
______________________________________________________________________________

GERALD A. THORNTON                      GENEVIEVE YOES
Office of the Field Solicitor           P. O. Box 1947
501 Scarritt Building                   Fort Smith, AR 72902
818 Grand Avenue
Kansas City, MO 64106                   Counsel for Farrell-
816-374-3272                            Cooper Mining Co.
Counsel for the Department
______________________________________________________________________________