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United States v. Camp Coal Co.

ELR Citation: 16 ELR 20982
Nos. No. 85-AR-2117-S, 637 F. Supp. 336/(N.D. Ala., 02/20/1986)

The court holds that the United States Office of Surface Mining (OSM) waived its requirement that a company prepay a penalty assessment for an alleged violation of surface mining regulations in order to preserve its right to appeal the assessment to an administrative law judge, the prepayment requirement violates procedural due process, and OSM's notice of violation and cessation order were defective. The court first holds that OSM effectively waived the prepayment requirement, since an OSM inspector advised the company to attempt to appeal without prepayment of the $22,500 civil penalty, and an OSM letter advising the company of its right to appeal stated that the company may, not will, lose its right to a hearing if it failed to prepay. Even if there was no waiver, the court holds that the prepayment requirement violates procedural due process since the company, which did not have $22,500, would effectively be deprived of its right to challenge the merits of the alleged violation.

The court then holds that the notice of violation and the cessation order issued by OSM were invalid. First, the court holds that OSM exceeded its oversight authority when it issued the notice and order, since OSM has granted primacy to Alabama to enforce surface mining regulations and the company has complied with the guidelines of the Alabama Surface Mining Commission. Second, OSM violated its own regulations by failing to conduct a reinspection within three days of the date set for abatement in the notice of violation, thereby triggering a de facto extension of time to abate. Third, OSM erred in concluding that the alleged violation, which was corrected by the company before the abatement date only to have new gullies formed by intervening rain, must be considered as continuing because the company failed to notify OSM when it corrected the original violation. Any gullies appearing after the abatement date constitute new violations requiring a new round of notices and orders.

Counsel for Plaintiff
Frank W. Donaldson, U.S. Attorney; Sharon D. Simmons, Ass't U.S. Attorney
P.O. Box 872, Knoxville TN 37901
(615) 673-4561

Counsel for Defendant
Charles A. Powell III
2205 Morris Ave., Birmingham AL 35203
(205) 251-6666