[CITE: Otto Rone v. Department, 3 CADDNAR 3
(1985)]
[VOLUME 3, PAGE 3]
Cause #: 85-010R
Caption: Otto Rone v. Department
Administrative Law Judge:
Lucas
Attorneys: Rone pro se, Spicker, DAG
Date: September 24, 1985
ORDER
IT
IS ORDERED this date as follows: Cessation Order #C41220-S-00097 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.
Otto Rone holds permit S-00097 to engage in surface
coal mining at the Ferdinand Mine in Daviess County, pursuant to IC 13-4.1.
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.
Stephen L. Lucas was appointed by the Director to conduct a hearing in this
action pursuant to IC 4-22-1.
6.
Lance B. Myers, an authorized representative of the Director, issued Notice of Violation
#N4115-S-00097 (the "NOV") to Otto Rone
pursuant to IC 13-4.1-11-4 and 310 IAC 12-6-9. The NOV alleged a violation of
310 IAC 12-5-147 and required Otto Rone to apply
mulch to the stockpiles at a rate of 1 ½ tons per acre.
7.
As provided in pertinent part in 310 IAC 12-5-147, soil "stockpiles shall
be placed within the permit area where they are not disturbed or exposed to
excessive water or wind erosion before the stockpiled horizons can
redistributed. Stockpiles in place for more than 30 days shall meet the
requirements of 310 IAC 12-5-13. . ."
8.
The stockpiles which were the subject of the NOV had been placed for more than
30 days before its issuance.
9.
As provided in part in 310 IAC 12-5-13 (b): "Stockpiled materials shall be
selectively placed on a stable area within the permit area, not disturbed, and
protected from wind and water erosion. . . .
(1) protection measures shall be accomplished either by:
(i) an effective cover of non-noxious, quick-growing annual
and perennial plants, seeded or planted during the first normal period after
removal for favorable planting conditions; or
(ii)
other methods demonstrated and approved by the
Director to provide equal protection."
10.
Notice of Violation #N41115-S-00097 was delivered on November 15, 1984 to Matt Rone, foreman for Otto Rone, at
the mine site.
11.
Lance Myers inspected the mine site on December 20, 1984 to determine if Otto Rone had abated the NOV according to its terms and
conditions. Upon determining the violation was unabated, the inspector issued
Cessation Order #C41220-S-00097 (the "CO").
12.
This administrative action results from a hearing request directed at the CO.
Otto Rone failed to timely contest the issuance of
the NOV; and, for the purposes of this administrative action, the NOV is deemed
to have been properly issued.
13.
Before issuance of the NOV, Otto Rone had placed an
undetermined quantity of mulch on the stockpiles. The mulch was placed in the
summer of 1984 and consisted of straw and wild grass.
14.
Subsequent to issuance of the NOV, Otto Rone placed
an additional 200 bales of straw and two wagon loads of wild grass hay on the
stockpiles.
15.
The inspector
testified that "weedy mulch is not adequate protection [of stockpiles]
under state law. They have to be of a[n] annual legume or grass." No
evidence was presented in support of this legal conclusion, and no authority
has been located to substantiate the conclusion.
16.
Substantial evidence was not adduced at hearing to establish whether or not Otto
Rone placed 1 1/2 tons of mulch per acre on the
stockpiles
[VOLUME 3, PAGE 4]
following issuance of the NOV.[FOOTNOTE i]
Neither party correlated the straw bales and wagon loads of wild grass hay
spread to an acre tonnage calculation. Neither party presented an estimate as
to the tonnage calculation. Neither party presented an estimate as to the
tonnage of hay observed in place.
17.
The NOV is ambiguous since it does not set forth whether the required placement
of 1½ tons of mulch per acre was to include or exclude mulch placed
prior to issuance of the NOV.
18.
Where the Notice of Violation upon which a Cessation Order is based contains an
ambiguity, that ambiguity may be constructed in favor of a permittee,
if the evidence does not demonstrate a mutual understanding by the parties of
the terms of the Notice of Violation or that environmental harm could result if
the Notice of Violation were to be construed in favor of the permittee.
19.
No evidence was adduced to indicate whether the parties mutually understood
that the NOV was to include or exclude mulch placed prior to issuance of the
NOV. There was no showing that environmental could harm could result if Otto Rone were credited with hay placed on the stockpiles prior
to issuance of the NOV.
20.
The evidence does not support the issuance of the CO.
21.
Cessation Order #C41220-S-00097 should be vacated.
FOOTNOTE:
i/ In entering this finding [16], the unsubstantiated legal
conclusion of the inspector is that the inspector did not credit Otto Rone for the placement of wild grass hay mulch. That result
is not supportable upon the evidence.