[CITE: Will Mining Operation v. DNR, 1 CADDNAR 76 (1983)]
[VOLUME 1, PAGE 76]
Cause #: 83-097R
Caption: Will Mining
Operation v. DNR
Administrative Law Judge: Shadley
Attorneys: Magnuson; Spicker, DAG
Date: November 2, 1983
ORDER
IT
IS ORDERED this date as follows: Will's request for hearing to review the
Cessation Order is denied.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources ("Director") is
included in the definition of agency as used in IC 4-22-1-2 and is duly
empowered to conduct administrative hearings pursuant to IC 4-22-1.
2.
Will Mining Corporation ("Will") is an Indiana corporation with
office address at R.R. 2, Box 108A, Wadesville, Indiana and with resident agent
in the State of Indiana being Walter J. Will, as designated by Will to the
Indiana Secretary of State.
3.
The Director has jurisdiction over the subject matter and parties to this
action.
4.
On June 22, 1983, Thomas Getz, an authorized representative of the Director,
wrote Cessation Order #C30622-82-21 citing Will for failure to reclaim in a
timely manner.
5.
Will received the Cessation Order on June 29, 1983.
6.
On September 1, 1983, Will requested a hearing to review the issuance of the
Cessation Order and requested temporary relief from the Cessation Order,
pending the final outcome of the hearing on the Cessation Order.
7.
The request for hearing to review the Cessation Order was not filed within (30)
days of issuance of the Cessation Order.[FOOTNOTE i]
8.
On August 1, 1983, Will received a notice of assessment of a civil penalty in
connection with this Cessation Order.
9.
On August 8, 1983, Will requested an assessment conference, pursuant to 310 IAC
12-6-16, to review the proposed assessment.
10.
On August 31, 1983, Will received the Assessment Conference Officer's report
denying a reduction of the proposed penalty.
11. Will
could contest the proposed penalty and the fact of violation only if it
submitted a request for hearing by September 16, 1983, and submitted an amount
equal to the proposed penalty to the Division of Reclamation to be held in
escrow.[FOOTNOTE ii]
12.
Will did not submit an amount equal to the proposed penalty assessment to the
Division of Reclamation.[FOOTNOTE iii]
FOOTNOTES
i. IC 13-4.1-11-8 and 310 IAC 12-6-9 (a) require that
a request for hearing to review a Cessation Order be filed within thirty (30)
days of issuance of the Cessation Order.
ii.
See IC 13-4.1-12-1 (d) and 310 IAC 12-6-17.
iii.
This requirement [as set forth in finding 12] is a condition which must be
complied with in order to be entitled to a hearing pursuant to IC
13-4.1-12-1(d) and 310 IAC 12-6-17.