[CITE: DNR v. 3 States Trucking and Am. Drug., 1 CADDNAR 29 (1982)]
[VOLUME 1, PAGE 29]
Cause #: 81-001R
Caption: DNR v. 3 States
Trucking and Am. Drug.
Administrative Law Judge: Clayton
Attorneys: Scherschel, DAG; 3 States, none; Smith, Am
Drug (Surety)
Date: June 24, 1982
ORDER
The
Natural Resources Commission adopts and issues the following Order:
1)
That pursuant to the authority granted under IC 13-4-6-8, Permits to Engage in
Surface Mining Permit #77-50A and Permit #78-135A, issued to 3 States Trucking,
Inc. be modified to the following extent:
a)
American States Insurance Corporation be allowed to
complete the reclamation required under said permits.
b) 3
States Trucking, Inc. be prohibited from undertaking or attempting to undertake
any further reclamation of the acreage disturbed under said permits.
c)
American States Insurance Corporation be allowed to complete and submit any and
all forms, applications and other papers required by the Department and to
otherwise act in the stead of 3 States Trucking, Inc. in completing the
reclamation required under said permits.
2.
That American Druggist Insurance Corporation complete reclamation of the
acreage disturbed under said Permits on or before November 1, 1982, or
voluntarily forfeit its surety bonds by such date.
3.
That American Druggist Insurance Corporation, in completing any reclamation, be
required to fulfill all obligations, requirements and duties undertaken by or
imposed upon its principal, 3 States Trucking, Inc. to do all things necessary
to effectuate proper reclamation and specifically to comply with the Approved
Plan of Reclamation.
4. That
in the event American Druggist Insurance Corporation fails to either complete
reclamation or voluntarily forfeit its surety bonds by November 1, 1982, Permit
#77-50A and Permit #78-135A, shall automatically be revoked and the surety
bonds forfeited.
FINDINGS OF FACT
1.
The Department of Natural Resources (hereinafter the "Department") is
an agency of the State of Indiana duly empowered to conduct administrative
hearings pursuant to IC 4-22-1-1 et seq.
2.
The Department has jurisdiction over both the subject matter of and the parties
to this cause.
3.
The Department issued to Respondent, Permit to Engage in Surface Mining, Permit
#77-50, permitting 20.0 acres in Dubois County, effective July 6, 1977 and
ending July 5, 1978.
4. Subsequent
to the issuance of said Permit #77-50, Respondent's Permit was amended so as to
permit an additional 40.0 acres, with Respondent's Permit number being amended
to Permit #77-50A.
5.
The Department issued to Respondent, Permit to Engage in Surface Mining, Permit
#78-135, permitting 30.0 acres in Dubois County, effective July 6, 1978 and
ending on July 5, 1979.
6.
Subsequent to the issuance of said Permit #77-50, Respondent's permit was
amended so as to permit an additional 28.0 acres, with Respondent's Permit
number thereby being amended to Permit #78-135A.
7.
The REPORT OF AFFECTED AREA submitted by Respondent and dated July 27, 1978,
indicates that Respondent disturbed a total of 103.0 acres under Permit
#77-50A.
8.
Respondent mined more acres than the number of acres authorized by Permit
#77-50A and pursuant to IC 13-4-6-7, the Department required Respondent to post
additional bond to cover such additional acreage.
9.
The REPORT OF AFFECTED AREA submitted by Respondent and dated June 6, 1979
indicates that Respondent disturbed a total of 40.98 acres (sic) under Permit
#78-135A.
10.
By certified mail dated July 18, 1980, the Department issued to Respondent a
Notice of Non-Compliance informing Respondent that it had failed to complete
reclamation as required by IC 13-4-6-1 et seq. with respect to the acreage
permitted under Permit #77-50A and Permit #78-135A.
11.
Said Notice of Non-Compliance set forth the specific areas of non-compliance
and set September 30, 1980 as the deadline for the completion of reclamation.
12.
On October 1, 1980, the Department inspected the acreage mined by Respondent
under Permit #77-50A and Permit #78-135A and found that reclamation had not
been completed by the September 30, 1980 deadline stated in said Notice of
Non-Compliance.
13.
On March 1, 1982, Timothy Taylor, had of the Enforcement Section, Division of
Reclamation, again inspected the acreage disturbed under Permit #77-50A and
Permit #78-135A and found reclamation to be incomplete.
14.
3 States Trucking, Inc. has failed to complete reclamation of the acreage in
question as required by IC 13-4-6-1 et seq.
15.
Pursuant to IC 13-4-6-5 and IC 13-4-6-7, the Respondent filed with the
Department certain surety bonds issued by American Druggist Insurance
Corporation, securing Respondent's compliance with IC 13-4-6-1 et seq, with
respect to the surface mining done under Permit #77-50A and Permit #78-135A.
16.
American Druggist Insurance Corporation has a legal right to perform the
obligation which its principal, 3 States Trucking,
Inc, failed to perform under IC 13-4-7-1 et seq.
17.
American Druggist Insurance Corporation, as surety, is willing and able to
perform the obligations of its principal to complete reclamation under Permit
#77-50A and Permit #78-135A in accordance with IC 13-4-6-1 et seq.
18.
Respondent, 3 States Trucking, Inc. by its failure to complete reclamation of
[VOLUME 1, PAGE 30]
the
acreage disturbed under Permits to Engage in Surface Mining, Permit #77-50A and
Permit #78-135A, has violated IC 13-4-6-1 et seq.
19.
The Department has met all obligations imposed upon it by IC 13-4-6-1 et seq.
20.
American Druggist Insurance Corporation, as surety, has a legal right to
perform the obligations of its principal to complete reclamation of the acreage
disturbed under said permits.
21.
Proper reclamation of said acreage required that the Respondent be precluded
from attempting any further reclamation under said permits.