[CITE: Old Ben Coal Company v. DNR, Div. of Reclamation, 5 CADDNAR 145 (1990)]
[VOLUME 5, PAGE 145]
Cause #: 90-116R
Caption: Old Ben Coal Company
v. DNR, Div. Reclamation
Administrative Law Judge: Teeguarden
Attorneys: Partenheimer; Spicker,
DAG, and Grimmett
Date: October 25, 1990
ORDER
NOV
N00409-S-00031, NOV N00409-S-00033, NOV N00409-S-00034, and NOV N00409-S-00035
are hereby vacated.
FINDINGS OF FACT
1.
The Department of Natural Resources (DNR) is an agency within the meaning of IC
4-21.5.
2.
The DNR is responsible for regulating surface coal mining in Indiana and the
Natural Resources Commission (NRC) is the ultimate authority within the meaning
of IC 4-21.5 of administrative appeals of DNR actions.
3.
IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these
proceedings.
4.
Old Ben Coal Company (OBC) holds surface coal mining permits S-00031, S-00033,
S-00034, and S-00035 and actively mines under all four permits in the vicinity
of Petersburg, Indiana.
5.
On April 9, 1990, an authorized representative of the DNR conducted an
inspection of OBC's blasting records and issued one NOV on each of the four
permits listed above.
6.
The basis for each of the four NOVs was the failure of OBC to republish its
blasting schedule within the required time frame. OBC received an NOV for each
of the four permits for this violation.
7.
310 IAC 12-5-35(a)(3) sets republication standards and
requires a permittee to republish its blasting
schedule at least every twelve (12) months.
8.
The NOVs in question also cite 310 IAC 12-5-35(c)(1)
as a provision violated.
9.
310 IAC 12-5-35(c)(1) requires that prior to blasting in areas or times not
contained in a previous blasting schedule, a permittee
must prepare a revised schedule and receive approval by the Director prior to
publishing the schedule.
10.
OBC filed a timely request for administrative review of all four NOVs on April
23, 1990.
11.
The following facts are not disputed:
a.
In 1989, OBC published or republished its blasting schedules relevant to these
proceedings in the March 2 issue of the Petersburg Press - Dispatch.
b.
In late February of 1990, OBC prepared sets of notices for the Petersburg Press
- Dispatch and the Oakland City Journal, local newspapers of general
circulation in the area in which mining would take place.
c.
Both newspapers are weekly newspapers.
d.
Both newspapers printed the relevant schedules in their March 7, 1990 editions
rather than the February 28, 1990 editions.
e.
The 1990 notice included Sundays on the blasting schedule. The 1989 notice did
not include Sundays.
f.
The Director had not approved a Sunday blast schedule in March of 1990 for any
of the above permits.
g.
No Sunday blasting ever took place and a new notice excluding Sunday blasting
was published in April 1990.
12.
Official notice can be taken that the 1989 publication was the first Thursday
in March and the 1990 publication date was the first Wednesday in March.
13.
310 IAC 12-5-35(a)(3) does not require that a blasting
schedule be republished every 365 days. It only requires republication every 12
months.
14.
A notice published in 1989 on the first Thursday in March and a notice
published in 1990 on the first Wednesday in March satisfies both the letter and
the spirit of the law, particularly in cases such as this where there are no
daily newspapers meeting the local circulation requirements.
15.
310 IAC 12-5-35(c)(1) requires approval by the
Director prior to publishing a revised blasting schedule.
16.
OBC did not comply with the above provision.
17.
310 IAC 12-5-35(c)(1), however, also begins by stating
"Before blasting... at times not in a previous schedule .... "
18.
OBC did not blast on a Sunday or at times not in a previous blasting schedule.
19.
The intent of this rule is to
[VOLUME 5, PAGE 146]
prevent blasting in areas and times
not authorized by the permit or rule.
20.
OBC did not blast in violation of their permit or rule.
21.
There is no dispute of material facts in this matter, hence summary judgment is
appropriate.
22.
310 IAC 12-3-4 was also cited as a provision violated in all four NOVs.
23.
310 IAC 12-3-4 requires that in addition to complying with IC 13-4.1 and 310
IAC 12, an operator must comply with the terms and conditions of its permit.
24.
An examination of the portion of the blast plan attached to DNR's summary
judgment motion called Exhibit A does not show that OBC has failed to comply
with permit conditions.
25.
The DNR contends that OBC's failure to specifically address the permit
condition issue is a waiver.
26.
In its response, OBC correctly points out that the portion of the permit cited
by the NOVs merely states that 310 IAC 12-5-35(a) will be followed.
27.
Having concluded that the acts of OBC did not violate 310 IAC 12-5-35(a), there
can be no violation of Part III C(a) of the permits.
28. Accordingly,
all four NOVs should be vacated.