[CITE: English v. DNR, 4 CADDNAR 53 (1986)]
[VOLUME 4, PAGE 53]
Cause #: 86-100R
Caption: English v. DNR
Administrative Law Judge: Lucas
Attorneys: English pro se, Szostek, DAG
Date: July 25, 1986
ORDER
Cessation
Order Number C60623-77-184 is affirmed.
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.
English Coal Company holds permit #77-184 to engage in surface coal mining at
the Red Dog #3 mine in Martin County, Indiana 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.
Charles Weilbaker, an authorized representative of
the Director, issued Notice of Violation number N60522-77-185 (the
"NOV") on May 22, 1986 for failure to establish a diverse and
effective vegetative cover of species that will support the cropland
post-mining land use.
6.
Only 13 acres of the total permit area were cited in the NOV.
7.
The abatement required in the NOV was to; (1) drain the standing water from the
permit area, and (2) prepare a seed bed, fertilize, seed and mulch to achieve
the post mining land use of cropland by 8:00 A.M. on June 20, 1986.
8.
On June 23, 1986, Weilbaker inspected the site and
determined that English had not performed the abatement required in the NOV. He
wrote Cessation Order #C60623-77-184 for the failure by English to abate the
NOV.
9.
This administrative action results from a timely hearing request directed to
the Cessation Order. English Coal Company has not contested the issuance of the
NOV, and, for the purposes of this administrative action, the NOV is deemed to
have been properly issued.
10.
The evidence is unrefuted that the abatement required
in the NOV has not been performed b y English. Neither is there substantial evidence
that the terms of the abatement required in the NOV…were ambiguous or
that English did not understand these terms.[FOOTNOTE i]
11.
Cessation Order #C60623-77-184 issued against English Coal Company should be
affirmed.[FOOTNOTE ii]
FOOTNOTES
i. See Otto Rone v. Department, 3 Caddnar
3 (September 24, 1985). The decision recognizes the general principle that a
failure to contest a notice of violation in a timely fashion precludes the permittee from questioning the notice of violation in a
hearing on the resulting Cessation Order. An exception to the general principle
is recognized where the abatement required in the notice of violation was
ambiguous or where there was not a mutual understanding between the inspector
and the permittee of the term for abatement.
ii. During the hearing of this administrative action, English Coal Company
expressed a great deal of frustration with an inability to obtain a complete
bond release, which the company management believes is long overdue, for
acreage located within Red Dog #3 Mine. The issue
presented by this action is, however, a . . .[fairly].
. .narrow one: whether Cessation Order #C60623-77-184 was properly applied. The
company is not without a remedy if its management believes a bond release
improperly withhold. To obtain that remedy the company must place the bonded
acreage in a condition which meets the legal requirements for release. The
company may obtain an inspection from the
[VOLUME 4, PAGE 54]
Division
of Reclamation, and it approval for the release is denied, English may request
a hearing on the denial of bond release and must b e made in writing within 15
days of the denial. The request should be directed for processing to the
Director of the Department of Natural Resources, 608 State office Building, Indianapolis, Indiana 46204.