CADDNAR


[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

 

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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.