[CITE: J & J Coal Company
v. DNR, 2 CADDNAR 11 (1986)]
[VOLUME 2, PAGE 11]
Cause #: 84-056R
Caption: J & J Coal
Company v. DNR
Administrative Law Judge: Szostek
Attorneys: Aigner; Spicker,
DAG
Date: April 20, 1986
ORDER
[NOTE: J & J COAL
WITHDREW ITS REQUEST FOR ADMINISTRATIVE REVIEW OF THE UNDERLYING NOTICE OF
VIOLATION ON MAY 30, 1984.]
NOW
THEREFORE, based upon the. . .findings of fact. . ., J
& J Coal Company is denied temporary relief from Notice of Violation
#N40321-S-00006. . . .
FINDINGS OF FACT
[The
ALJ presented Findings of Fact and Conclusions of Law as separate entities.
Because the findings of fact include a summary of the evidence incorporating
testimony not relied upon in entering the Order, only the Conclusions of Law
follow:]
1.
Persons seeking to engage in surface coal mining operation must submit an
application and obtain a permit for those operations. 310 IAC 12-3-2.
2. A
person must have a valid permit to open a new site for surface coal mining
operations. 310 IAC 12-3-3.
3.
Before a surface coal mining permit will be issued, the applicant must post a
performance bond to insure proper reclamation of the permitted area. 310 IAC
12-4-5.
4.
The earth moving activities cited in the Notice of Violation are contained
within the definition of surface coal mining operations. 310 IAC 12-1-3 (Disturbed
Area, Surface Coal Mining Operations.)
5.
Although the exact date of the submission of the application for permit
revision was not entered in the record by either party, it is clear that the
person inspecting the site from the Division of Reclamation's permitting staff
on March 7, 1984, was inspecting the site based upon a submitted application.
6.
Petitioner, by virtue of this current active mining
operations, previous dealings with personnel of the Department of
Natural Resources concerning methods of conducting surface mining operations and
two year history of operation, is aware that surface coal mining is a highly
regulated industry requiring operators to be abreast of current requirements
and regulations.
7.
Although, Jerry Aigner stated in his April 4th letter
(Hearing Officer's Exhibit "C") and testified at the hearing that the
land in question had been leased to the J & J Coal Company, Inc. and that J
& J Coal Company had submitted an application to conduct surface coal
mining on the property; a separate company, Jerry Aigner
Construction Company was performing activities on the property that constituted
"surface coal mining operations."
8.
There was no evidence presented for the record concerning the terms of the
lease between Jerry and Pamela Aigner and J & J
Coal Company. There was no evidence presented which would explain the use of
the land by Jerry Aigner Construction Company after
the land was leased to J & J Coal Company.
9.
The Division of Reclamation must be free to assume, in the absence of other
stated intentions, that an applicant for a surface coal mining permit:
(a) Has effective control of the property in regards to
surface coal mining;
(b)
Any and all surface coal mining will be carried out in accordance with a submitted
and approved permit application and the rules and regulation which govern
surface coal mining.
10.
Therefore, J & J Coal Company knew or should have known, that the activities
of Jerry Aigner Construction Company, at least after
the submission of a permit application, constituted surface coal mining
operations, and were this barred, at the time, by the