[CITE: Peabody Coal v. Department, 2 CADDNAR 23 (1985)]
[VOLUME 2, PAGE 23]
Cause #: 84-157R
Caption: Peabody Coal v.
Department
Administrative Law Judge: Szostek
Attorneys: Joest; Spicker, DAG
Date: March 26, 1985
ORDER
It is adjudged and ordered that the
$1,200.00 Civil Penalty Assessment for NOV #N40328-S-00021 is affirmed.
FINDINGS OF FACT
1.
The Director is included in the definition of the word agency, as used in IC
4-22-1-2, and is duly empowered to conduct administrative hearings pursuant to
IC 4-22-1.
2.
The Director may, pursuant to IC 13-4.1-2-2(c), delegate all or any of his
powers and duties assigned to him in this article to other employees of the
Department.
3.
Steven J. Szostek is an employee of the Department.
4.
Peabody Coal Company is a company licensed to do business in Indiana, with an
address at 20 Northwest First Street, PO Box 1112, Evansville, Indiana 47702.
5.
On March 28, 1984, Respondent issued NOV #N40328-S-00021 to Petitioner.
6.
The NOV required a compliance time (the date and time by which abatement
actions were to be completed) of 8:00 a.m. on April 17, 1984 for area #1 [see
Exhibit "A"].
7.
The NOV was terminated on April 16, 1984.
8.
Respondent issued a $1,200 Civil Penalty Assessment to Petitioner on May 7,
1984.
9. A
Penalty Assessment Conference was held on May 18, 1984.
10.
The Civil Penalty Assessment was affirmed a $1, 200 by the Assessment Officer
on June 29, 1984.
11.
In the computation of the Civil Penalty Assessment, Respondent did not deduct
from Petitioner's point total any points for "good faith in attempting to
achieve compliance" [see Exhibit "F"].
12.
Petitioner did not telephone Respondent's inspector, Ron Pearson, prior to
April 16, 1984, to notify him that the abatement results required in NOV
#N40328-S-00021 had been achieved.
13.
Construction of a retention pond was not required by Respondent as a condition
to terminate NOV #N40328-S-00021 or NOV #N40315-S-00021 [an early NOV in this
geographic area.] Under the definition of "rapid compliance" required
for the awarding of good faith points [see Exhibit "F"], the
Respondent would have needed to:
(a) take extraordinary measures to abate the violation;
(b) in the shortest possible time; and
(c) achieve the abatement before the time set.
14.
Petitioner’s efforts did not meet the requirements for good faith points.