[CITE: English Coal Company, Inc. v. DNR, 2
CADDNAR 5 (1984)]
[VOLUME 2, PAGE 5]
Cause #: 84-038R
Caption: English Coal
Company, Inc. v. DNR
Administrative Law Judge: Szostek
Attorneys: Corbett; Spicker, DAG
Date: April 3, 1984
ORDER
. . [B]ased
upon the . . .findings of fact. . .temporary relief
from the abatement action required by the specified time in NOV #N40307-S-00107
is denied, pending completion of the administrative review of this NOV.
FINDINGS OF FACT
1.
Violation one of two: Petitioner has admitted that the dumping of shale
overburden, along the north and east edge of the shop and coal storage area, before
removing the topsoil, was a violation under the Respondent's Rules (310 IAC
12-5-12.) Temporary relief cannot be given for an acknowledged violation.
Petitioned has admitted t hat some of the shale overburden from the mine dumped
by Petitioner on CR 1300E outside the permitted area, had landed back inside
the permitted area on topsoil. Petitioner could not explain how this occurred.
Petitioner, through his permit application, has agreed to follow Respondent's
rules concerning the placement of shale overburden on topsoil within the
permitted area (see IAC 12-5-12.) Lack of knowledge as to the identity of the
agent who placed the shale on the topsoil cannot overcome Petitioner's
responsibility to correct this uncontroverted violation.
2.
Violation two of two: Petitioner has attempted to argue that, upon a request
from county commissioners, it should have the right to dispose of non-toxic
shale overburden from a permitted area unto a county road outside the permitted
area, since this does not constitute mining. It is clear from IC 13-4.1 that
the Department of Natural Resources has the sole authority to regulate surface
coal mining. Such authority includes the manner of disposition of shale
overburden removed in the normal process of surface mining. IC 13-4.1-1-3(12)(B)
was written so as to include within the term "mining operations" not
only the excavation of coal and shale, but also their disposition. Under this
definition, the placement of any mined shale overburden, regardless of toxicity
is a regulated activity. The intent of the statute - the coexistence of coal
mining and environmental protection - is designed to prevent coal companies and
friendly receivers from disposing of such shale off the permit area, for
whatever worthwhile purpose, without Department of Natural Resources scrutiny,
regulation and monitoring. Since Petitioner has admitted it dumped shale
overburden from its mine on the road; and since this is a clear violation of
Respondent's rules cited in the Notice of Violation, Temporary Relief must be
denied.