[CITE: North Eastern M. Company, Inc. v. DNR, 2 CADDNAR 31 (1985)]
[VOLUME 2, PAGE 31]
Cause #: 84-183R
Caption: North Eastern M.
Company, Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Runnells and Stanley; Spicker, DAG
Date: May 13, 1985
ORDER
Notice
of Violation #N40726-S-00060, violation 2 of 2, is vacated.
FINDINGS OF FACT
1.
The Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
2.
The Director has jurisdiction over the subject matter and the parties to this
action.
3.
North Eastern Mining Company, Inc. holds permit S-00060 to engage in surface
mining at the Cannelburg Mine in Daviess County,
pursuant to IC 12-4.1.
4.
The Director may delegate any or all of the powers and duties assigned to him
under IC 13-4.1 to other employees of the Department of Natural Resources.
5.
Dan Derheimer, an authorized representative of the
Director, issued Notice of Violation #N40726-S-00060 to North Eastern Mining
Company, Inc., pursuant to IC 13-4.1-11-4 and 310 IAC 12-6-9.
6.
The Notice of Violation alleged two violations; North Eastern contested only
one of the Violations, Violation 2 of 2.
7.
Violation 2 of 2 alleged a violation of 310 IAC 12-5-12, specifically failure
to remove topsoil before any drilling, mining, blasting or other surface
disturbance, at the Southeast corner of the permit, and required North Eastern
to remove spoil off of unremoved topsoil.
8.
The Notice of Violation was issued because the inspector believed that spoil
had been stored on top of unremoved topsoil.
9.
The stored material was removed from the side of a hill, by removing the top
six (6) inches.[FOOTNOTE 1]
10.
Placing a stockpile of material removed to a depth of six (6) inches on top of topsoil
is not a violation of 310 IAC 12-5-12.
FOOTNOTE
1. Testimony was given that the material which was removed was material removed
from the side of a hill with a 15-20% slope. The area which North Eastern
testified it removed the material from was mapped by the Soil Conservation
Service as Gilpin-Berks, Hosmer and Cincinnati C3.
Due to erosion the depth of the topsoil on the side of the hill was somewhat
less than six (6) inches and North Eastern testified it removed a total depth
of six (6) inches, as is allowed in thin topsoil situations. The area over
which this removed material was placed was mapped by the Soil Conservation
Service as Gilpin, and a smaller portion being Hosmer.
Both parties introduced soil sample results of the material in the stockpile
and the material either underneath the stockpile or within the soil
classification but in an area undisturbed by the mining activities. The
Division believed the results of their soil samples proved that the stockpile
material was spoil and the material underneath the stockpile was topsoil. The
results of all soil analysis, with an explanation of the type soil
classifications, erosion, logging, and the fact that six (6) inches was
removed, supports the finding that the stockpiled material was removed from the
side of the hill to a total depth of six (6) inches.