Library of COALEX Research Reports

COALEX Research Reports are the products of research and analysis conducted on specific issues relating to the regulation of Surface Mining Control and Reclamation Act of 1977. The research is conducted in response to requests for information from State Regulatory Authorities, under a cooperative agreement between the Office of Surface Mining (OSM) and the Interstate Mining Compact Commission (IMCC).

COALEX refers to the Library of Surface Mining Materials maintained by OSM in LEXIS-NEXIS and is a major source for the research.

Each Report includes a list of resources which were sent as attachments to the individual who requested the research. To obtain a copy of the attachments or to obtain any additional information, contact Joyce Zweben Scall by phone at 202-686-9138 or by email at JZScall@aol.com.

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COALEX STATE INQUIRY REPORT - 2
July 26, 1984

Steven H. Kopp
Tenessee 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 RESULTS: 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.

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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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