[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.