[CITE: Seminole Coals, Inc. v. DNR, 2 CADDNAR 57 (1985)]
[VOLUME 2, PAGE 57]
Cause #: 84-271R
Caption: Seminole Coals, Inc.
v. DNR
Administrative Law Judge: Szostek
Attorneys: Hustace; Spicker,
DAG
Date: February 19, 1985
ORDER
[NOTE: THE UNDERLYING NOTICE
OF VIOLATION WAS RESOLVED ON SEPTEMBER 30, 1986 WHEN THE DIRECTOR ORDERED THAT
THE ACTION BE "DISMISSED AND THAT NO PENALTY. .
.BE ASSESSED."]
It
is adjudged and ordered that, for Notice of Violation #N40925-S-00100,
Petitioner's request for Temporary Relief from the abatement actions contained
in NOV are granted for Area I and denied for Area II.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources (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. Seminole
Coals, Inc. is a legal Corporation, licensed to do business in Indiana, with an
address at Route 4, Box 75A, Loogootee, Indiana 47553.
5.
In a letter dated September 26, 1984, and received by the Department on
September 28, 1984, Petitioner requested a formal administrative review of NOV
N40925-S-00100.
6.
The Director has jurisdiction over the parties and the subject matter of this
administrative cause.
7.
On October 1, 1984, the Director appointed Steven J. Szostek
to conduct an administrative review of NOV N40925-S-00100.
8. A
pre-hearing conference was held on October 16, 1984, in Room 601 of the State
Office Building in Indianapolis.
9. A
Temporary Relief Hearing was held on November 15, 1984, in Jasonville.
10.
With representatives of both parties, the Hearing Officer viewed the areas as
the mine site, listed as areas of violation in the NOV, on November 16, 1984.
11.
While at the mine site on November 16, 1984, the Hearing Officer made a verbal
decision on Petitioner's Temporary Relief Request.
12.
Permit approvals by Respondent allow Petitioner to return the land contained within
Violation Areas I and II to elevations within 10 feet, plus or minus, of the
Approximate Original Contour before disturbance.
13.
The term "Contour" in Approximate Original Contour means a series of
points on a line of equal elevation.
14.
The original pre-mining contours of the land within Area II and directly across
County Road 29 were the same elevation.
15. Elevation
measurements of the land within Area I and Area II showed that they were higher
than 10 feet above the original contours of these areas.
16.
The use by Respondents of a factor of plus or minus 10 feet to give guidance to
the term "Approximate" in Approximate Original Contour was not
arbitrary, but was derived in relation to a normal swell factor, for this
general area and mining procedures, of two to three feet.
17.
Petitioner submitted a mine plan revision in July 1984 to Respondent to create
a final impoundment in Pit #1. Respondent has failed to respond to this
proposed revision.
18.
Petitioner submitted a mine plan revision in October 1984 (after issuance of
the NOV) to Respondent to create two final impoundments in Pit #2.
19. No
adverse environmental impact would occur in either Area I or Area II if
Temporary Relief were granted.
20.
There is a substantial likelihood that the findings of the Director of the Department
of Natural Resources will be favorable to Petitioner with regard to Area I; but
unfavorable to Petitioner with regard to Area II.