[CITE: Foertsch Construction v. Department, 3 CADDNAR 33 (1985)]
[VOLUME 3, PAGE 33]
Cause #: 85-097R
Caption: Foertsch
Construction v. Department
Administrative Law Judge: Shadley
Attorneys: Hargis; Spicker, DAG
Date: May 14, 1985
ORDER
[NOTE: THE UNDERLYING NOTICE
OF VIOLATION WAS VACATED BY THE DIRECTOR ON MAY 17, 1985.]
NOW
THEREFORE, based upon the above Findings of Fact, it is ordered as follows:
Temporary
relief from the abatement actions specified in Notice of Violation
#N50403-S-00046 is granted.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources (the "Director")
is included in the definition of "agency" as used in 4-22-1-2 and is
duly empowered to conduct administrative hearings pursuant to IC 4-2-1.
2.
The Director has jurisdiction over the subject matter and parties to this action.
3.
Pursuant to IC 13-4.1-1-2(c) the Director may delegate any or all of the powers
assigned to him to other employees of the Department of Natural Resources.
4.
Sue A. Shadley is an employee of the Department of Natural Resources.
5.
By letter dated April 17, 1985, Foertsch Construction
Company, Inc. ("Foertsch") requested
temporary relief from Notice of Violation #N50403-S-00046.
6.
By written entry dated April 23, 1985, the Director delegated to Sue A. Shadley
the power to determine whether or not to grant the temporary relief requested
by Foertsch, which forms the basis of this
administrative action.
7. Foertsch holds permit S-00046 to conduct surface coal
mining operations at its Price-Beertzer Mine #1 in
Spencer County pursuant to IC 13-4.1 and 310 IAC 12.
8.
Notice of Violation #N50403-S-00046 was issued by Charles Yeager, an authorized
representative of the Director, to Foertsch for
failure to maintain sediment Basin #4 in violation of 310 IAC 12-5-21(b) and
310 IAC 12-5-24(g).
9.
The Notice of Violation required Foertsch repair the
emergency spillway so it is at an elevation higher than the primary spillway;
remove all tree branches and limbs from the dam, mow the dam and seed with a
permanent species; and, submit new, as-built, design plans and re-certify Basin
#4 by a registered professional engineer.
10.
On the date the Notice of Violation was issued, the elevation of the emergency
spillway was higher than the elevation of the primary spillway.
11.
On the date the Notice of Violation was issued, only one branch was on the dam.
12.
On the date the Notice of Violation was issued, the height of the vegetation was
not such as to interfere with inspections or hinder repairs.
13.
On the date the Notice of Violation was issued there was adequate permanent and
temporary vegetation on the dam to prevent erosion.
14.
Sediment Basin #4 has not been significantly altered since it was constructed,
and as-built plans submitted.
15.
New plans only need to be submitted if a basin has been significantly altered
since submittal of plans.
16. Foertsch has demonstrated that there is a substantial
likelihood that it will prevail on the merits of the review of Notice of Violation
#N50403-S-00046.
17.
Granting temporary relief from the abatement actions specified in Notice of
Violation #N50403-S-00046 will not adversely affect the public health or safety
or cause significant, imminent harm to land, air or water resources.