GENERAL54539

• Permit No: C1981026
• IBM Index Class Name: General Documents
• Doc Date: 7/30/1984
• Doc Name: WYOMING FUEL CO V OSM DOCKET PU 4-4-P CANADIAN STRIP MINE NOV 83-2-6-3
• From: WELBORN DUFFORD BROWN & TOOLEY
• To: WYOMING FUEL CO
• Permit Index Doc Type: GENERAL CORRESPONDENCE
• Media Type: D
• Archive: No

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(b) Upon receiving the report of such investi-
gation, the Secretary shall make findings of fact,
and shall issue a written decision, incorporating
therein an order vacating, affirming, modifying,
or terminating the notice * * * complained of
and incorporate his findings therein. * * *.
I read the above provision as stating that a person adver-
sely affected by a notice of violation can, within 30 days
of receipt thereof, file an application for review of the
notice and seek an order vacating the notice of violation.
Parenthetically, it should be noted that the only relief
requested by the petitioner in this proceeding is the vaca-
tion of the notice of violation.
The Department's regulations implementing section 525(a) and
(b) of the Act are found at 43 CFR 4.1160 et se They
govern applications for review of notices of violation as
distinguished from petitions for review of proposed assess-
ments of civil penalties, which are found at 43 CFR 4.1150
et sec. The pertinent part of the Department's procedural
regulations governing applictions for review of notices of
violation provide that:
Failure to file an application for review of a
notice of violation * * * shall not preclude
challenging the fact of violation during a civil
penalty proceeding. (43 CFR 4.1163)
The above provision was necessary because an application to
review the propriety of a notice of violation must be filed
within 30 days of receipt of the notice; the Secretary has
30 days from the issuance of a notice of violation to inform
the operator of the proposed amount of the penalty; the per-
son charged with the penalty then has 30 days to file a
petition to review the propriety of the proposed penalty;
and in the penalty review proceeding the fact of the viola-
tion can be challenged from the standpoint of showing that
the penalty assessed is inappropriate because there was no
violation.
I cannot read the above provision, 43 CFR 4.1163, as meaning
that a person charged with a violation can ignore the
specific remedy provided by section 525 of the Act by not
filing an application to review the propriety of the notice
of violation within 30 days of receipt of the notice, and,
then, obtain the benefit of the remedy provided by section
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