C.F.R. » Title 43 » PART 4—DEPARTMENT OF THE INTERIOR HEARINGS AND APPEALS PROCEDURES › Subpart L—Specific Rules Applicable to Hearings and Appeals Concerning Surface Coal Mining

43 C.F.R. § 4.1152

Contents of petition; payment required

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(a) The petition shall include—

(1) A short and plain statement indicating the reasons why either the amount of the penalty or the fact of the violation is being contested;

(2) If the amount of penalty is being contested based upon a misapplication of the civil penalty formula, a statement indicating how the civil penalty formula contained in 30 CFR part 723 or 845 was misapplied, along with a proposed civil penalty utilizing the civil penalty formula;

(3) Identification by number of all violations being contested;

(4) The identifying number of the cashier's check, certified check, bank draft, personal check, or bank money order accompanying the petition; and

(5) A request for a hearing site.

(b) The petition shall be accompanied by—

(1) Full payment of the proposed assessment in the form of a cashier's check, certified check, bank draft, personal check or bank money order made payable to—Assessment Office, OSM—to be placed in an escrow account pending final determination of the assessment; and

(2) On the face of the payment an identification by number of the violations for which payment is being tendered.

(c) As required by section 518(c) of the act, failure to make timely payment of the proposed assessment in full shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

(d) No extension of time will be granted for full payment of the proposed assessment. If payment is not made within the time period provided in § 4.1151 (a) or (b), the appropriateness of the amount of the penalty, and the fact of the violation if there is no proceeding pending under section 525 of the Act of review the notice of violation or cessation order involved, shall be deemed admitted, the petition shall be dismissed, and the civil penalty assessed shall become a final order of the Secretary.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 FR 1488, Jan. 11, 1994]
Notes of Decisions
Cited in 10 cases, 1982–2005 · leading case: B & M Coal Corp. v. Off. of Surface Mining Reclamation & Enf't, 531 F. Supp. 677 (S.D. Ind. 1982).
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B & M Coal Corp. v. Off. of Surface Mining Reclamation & Enf't, 531 F. Supp. 677 (S.D. Ind. 1982). · cites it 8× “18 (a) and 43 C.F.R. § 4.1152 (b)(1), B & M Coal refused to pay the proposed penalties into an escrow account as a prerequisite to appealing the OSM’s action to the Hearings Office which then dismissed B & M Coal’s petition due to its refusal to prepay the penalties.”
B & M Coal Corp., Counter-Defendant-Appellant v. Off. of Surface Mining Reclamation & Enf't, Counter-Claimant-Appellee, 699 F.2d 381 (7th Cir. 1983). · cites it 2× “However, if the operator fails to pay into escrow the full amount of the proposed penalty, all rights to contest the violation or the amount of the penalty are waived.”
Commonwealth Nat. Resources & Env't Prot. Cabinet v. Kentec Coal Co., 177 S.W.3d 718 (Ky. 2005). · cites it 2× “19, 43 CFR § 4.1152 . . Court of Appeals opinion, page 6.”
John Walters Coal Co. v. Watt, 553 F. Supp. 838 (E.D. Ky. 1982). · cites it 2× “§ 1268 (c) and 43 CFR § 4.1152 (b). The Administrative Law Judge ordered the petition for review dismissed for failure to comply with the prepayment requirement.”
Blackhawk Mining Co., Inc. v. Cecil D. Andrus, Sec'y, Dep't of the Interior & United States of Am., 711 F.2d 753 (6th Cir. 1983). “§ 1268 (c); 43 C.F.R. § 4.1152 (b)(1). This final administrative remedy entails a full, adversarial, evidentia-ry hearing before an administrative law judge.”
United States v. Hill, 533 F. Supp. 810 (E.D. Tenn. 1982). “§ 1268 (c); 43 C.F.R. § 4.1152 . If the permittee succeeds in having the penalty reduced or eliminated in this formal review process, any amount determined not to be owed must be refunded to the permittee with interest at the prevailing Department of Treasury rate.”
United States v. Stanley Finley, 835 F.2d 134 (6th Cir. 1987). · cites it 2× “§ 1268 (c); 43 C.F.R. § 4.1152 (c). An additional administrative remedy — an informal review of the notice of violation or cessation order — is available without deposit of the amount of the proposed penalty whenever the notice or order requires the cessation of mining.”
United States v. Log Mountain Mining Co., 550 F. Supp. 811 (E.D. Tenn. 1982). “§ 1268 (c); 43 C.F.R. § 4.1152 . If the permittee succeeds in having the penalty reduced or eliminated in this formal review process, any amount determined not to be owed must be refunded to the permittee with interest at the prevailing Department of Treasury rate.”
Ames Constr. Co. v. Dole, 727 F. Supp. 502 (D. Minnesota 1989). “Finally, the Court noted that the government’s interest in prompt assessment and collection of civil penalties to assure compliance with the act was substantial, finding that the prepayment requirement was adopted “to avoid the problem of the non-collection of fines and to…”
Com. Nat. Res. & Envir. Prot. v. Kentec, 177 S.W.3d 718 (Ky. 2005). · cites it 2× “19 (a); 43 C.F.R. § 4.1152 (b)(1). Despite the SMCRA's prepayment barrier to formal administrative review of both the fact of violation and the proposed penalty assessment, the federal courts have consistently held that the scheme is in accord with the Due Process Clause.”
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