[CITE: Jaeco v. DNR, 3 CADDNAR 100 (1986)]
[VOLUME 3, PAGE 100]
Cause #: 85-157R
Caption: Jaeco
v. DNR
Administrative Law Judge: Shadley
Attorneys: Runnells; Szostek, DAG
Date: January 10, 1986
ORDER
Notice
of Violation #N50528-S-00118, Violation 2 of 4, is vacated.
FINDINGS OF FACT
1. On
June 26, 1985, Jaeco, Inc. ("Jaeco")
requested a hearing to review the issuance of Notice of Violation
#N50528-S-00118, Violation 2 of 4.
2.
IC 13-4.1 applies to this proceeding.
3.
The Department of Natural Resources is an agency as defined in IC 4-22-1. The
Director is the ultimate authority of the Department with respect to this
proceeding.
4.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
5.
On October 8, 1985, Jaeco filed a Motion for Summary
Decision, pursuant to 310 IAC 0.5-1-11.
6.
On October 9, 1985, the Department was provided with a copy of the Motion for
Summary Decision and given thirty (30) days in which to file a response to the
Motion.
7.
On November 18, 1985, the Department was granted a one week extension of time
in which to file a response to the Motion for Summary Decision.
8.
On December 5, 1985, the parties verbally stipulated to inclusion in the record
of the Notice of Violation and Inspection Report.
9.
On December 10, 1985, the Motion for Summary Decision was denied.
10.
On January 8, 1986, Claimant filed a renewed Motion for Summary Decision.
11. Jaeco holds permit S-00118 to conduct surface coal mining
operations in Clay County at its Eel River Mine.
12.
William Hess, an authorized representative of the Director issued Notice of
Violation #N50528-S-00118, Violation 2 of 4 to Jaeco
on May 28, 1985.
13.
Notice of Violation #N50528-S-00118, Violation 2 of 4 cited Jaeco
for failure to case and seal all drill holes when no longer in use for
exploration, in violation of 310 IAC 12-5-10, 310 IAC 12-5-8 and Plan for
Reclamation IV A (7)(a).
14.
Inspector Hess believed three holes to have been drilled recently and two to
have been more than one year old.
15.
The holes had in fact been in existence for not more than two weeks prior to
issuance of the Notice of Violation.
16.
310 IAC 12-5-8 and 310 IAC 12-5-10 require each drilled hole, shaft, well or
other exposed underground opening when no longer in use for exploration, monitoring
or other mine uses to be cased, sealed or otherwise managed to prevent acid or
other toxic drainage from entering ground and surface waters.
17.
The Plan of Reclamation stated what material would be used to fill the
boreholes.
18.
Neither 310 IAC 12-5-8, 310 12-5-10, nor the Plan of Reclamation specify a time
frame for casing and sealing the holes other than when no longer in use for
exploration, monitoring and other mine uses.
19.
On May 28, 1985, it was Jaeco's intention to auger
out the holes and do further logging of them for exploration purposes. 20. Jaeco had not, on May 28, 1985, failed to case and seal all
drill holes no longer in use for exploration.