CADDNAR


[CITE: Solar Sources, Inc. v. DNR, 54 CADDNAR 45 (1987)]

 

[VOLUME 4, PAGE 45]

 

Cause #: 86-168R

Caption: Solar Sources, Inc. v. DNR
Administrative Law Judge: Drew
Attorneys: Runnells; Szostek, DAG
Date: June 22, 1987

Order:
Notice of Violation #N61124-S-00185 is vacated.

FINDINGS OF FACT

 

1. On December 5, 1987, Solar Sources, Inc. ("Solar") requested a hearing to review the issuance of Notice of Violation #N61124-S-00185.

 

2. IC 13-4.1, the Surface Coal Mining and Reclamation Act, is applicable to this proceeding.

 

3. 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.

 

4. The Director has jurisdiction over the subject matter and the parties to those proceeding.

 

5. Notice of hearing was given to: (list omitted)

 

6. Solar holds permit number S-00185 to conduct surface coal mining and reclamation operations in Warrick County, Indiana at its Elberfeld Mine.

 

7. On November 11, 1986, Bruce Novinska, an authorized representative of the Director, issued Notice of Violation #N61124-S-00185 to Solar. 

 

8. Notice of Violation  #N61124-S-00185 cited Solar for failure to return all spoil to the mined-out area in violation of 310 IAC 12-5-55.1(b). The Notice of Violation also cited Solar for failure to meet the terms of its permit (condition IV N(1)(b) regarding the volume of box-cut spoil) in violation of 310 IAC 12-3-4.

 

9. During the course of the November 11, 1986, inspection, Novinska observed trucks being loaded with spoil from Solar's Elberfield Mine.

 

10. Novinska testified that he did not know if the truck drivers were employed by Solar. The name appearing on the cabs was "Boutcha Trucking Company."

 

11. Novinska then called the Division of Reclamation field office I n order to determine whether approval had been granted by the Division for removal of spoil from the mining site. He was told some paperwork had been filed at the office, but no approval had yet been granted.

 

12. Novinska then ordered all operations to cease and wrote Notice of Violation #N61124-S-00185.

 

13. Novinska testified that he did not see the trucks leave the mining site. No other testimony or other evidence was presented to show the trucks did, in fact, leave the mining site.[FOOTNOTE 1]

 

14. Respondents have the burden of going forward to show that the violation contained in Notice of Violation #N61124-S-00185 occurred. No evidence was submitted showing the trucks actually removed spoil from the site and that 310 IAC 12-5-55.1 (b) had actually been violated. Respondent has failed to meet its burden of proof.

FOOTNOTE

1.
Later that same day, Novinska talked with George Boyles, Reclamation Manager for Solar. Boyles told him he did not know spoil materials was being hauled from, the site. They did not discuss why the trucks were on the site.