[CITE: Buckhorn Proc., Inc. v. DNR, 3 CADDNAR 55
(1985)]
[VOLUME 3, PAGE 55]
Cause #: 85-169R
Caption: Buckhorn Proc., Inc.
v. DNR
Administrative Law Judge: Shadley
Attorneys: Hargis; Szostek, DAG
Date: July 29, 1985
ORDER
[NOTE: THE UNDERLYING NOTICE
OF VIOLATION IS THE SUBJECT OF ADMINISTRATIVE CAUSE 85-170R.]
Temporary
relief from the abatement actions specified in Notice of Violation #N50625 is granted,
pending the Director's final determination on review of the Notice of
Violation.
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.
On July 23, 1985 Buckhorn Processing, Inc. ("Buckhorn") requested a
hearing to review the issuance of Notice of Violation #N50625 and for temporary
relief from the Notice of Violation pending completion of the full hearing.
3.
The Director has jurisdiction over the subject matter and the parties to this
action.
4.
The Director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department of Natural Resources.
5.
Sue A. Shadley is an employee of the Department of Natural Resources.
6.
By written entry dated July 23, 1985, the Director delegated to Sue A. Shadley
the power to grant or deny the temporary relief requested by Buckhorn.
7.
On July 29, 1985, an administrative hearing was conducted pursuant to IC 13-4.1-11-8(e),
IC 4-22-1 and 310 IAC 0.5 on the request for temporary relief in the second
floor conference room of the Division of Reclamation Field Office located at
201 West Main Street, Jasonville, Greene County, Indiana.
8.
Pursuant to 310 IAC 12-6-6, an authorized representative of the Director issued
Notice of Violation #N50625 to Buckhorn for processing coal in Spencer County
without a valid permit in violation of 310 IAC 12-3-104.
9.
The Notice of Violation, as modified on July 28, 1985, required Buckhorn cease its washing plant operation, submit an application for a
processing permit and obtain an approved processing permit.
10. 310
IAC 12-6-5-(a)(2) provides that an authorized representative of the Director
shall immediately issue a cessation order (emphasis added) to
any person who does not hold a valid permit To conduct those operations.
11.
Buckhorn has shown that there is a substantial likelihood that the findings of
the Director on review of the Notice of Violation to determine if it should be
affirmed, modified or vacated will be favorable to it.
12.
Granting temporary relief will not adversely affect the health or safety of the
public or cause significant, imminent environmental harm to land, air or water
resources.