[CITE: J.H.&L. Coal Co. v. DNR, 5 CADDNAR 161
(1991)]
[VOLUME 5, PAGE 161]
Cause #: 90-158R
Caption: J.H. & L. Coal
Co. v. DNR
Administrative Law Judge: Rider
Attorneys: Shadley; Grimmett
Date: February 1, 1991
ORDER
Cessation
Order C00509-S-00143 is affirmed
FINDINGS OF FACT
1.
On May 24, 1990, J.H. & L. Coal Company (the "Claimant") filed a
request for review of Cessation Order (CO) C00509-S-00143.
2.
The CO was issued for failure to abate Notice of Violation (NOV)
N00307-S-00143, part 1 of 4, by the prescribed date (May 9, 1990).
3.
The prescribed action, which was not completed, was to protect redistributed
topsoil material from erosion by repairing the gullied areas, mulching and
seeding.
4.
The Claimant holds permit S-00143 to conduct surface coal mining operations at
its Arthur Mine in Greene County, Indiana.
5.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
6.
The Natural Resources Commission (the “Commission”) is an agency as
defined in IC 4-21.5-1-3 and is the Ultimate Authority with respect to this
proceeding.
7.
John C. Voigt, an authorized representative of the Division of Reclamation
(DOR), issued both the NOV and the CO.
8.
Both parties filed Motions for Summary Judgment and there are no material facts
in dispute.
9.
The Claimant objects to the CO and defends by claiming that the abatement
action could not be completed by the abatement date because of excessive
rainfall.
10.
No evidence is presented that this rainfall defense was communicated to the
inspector prior to the abatement date and issuance of the CO.
11. The
Claimant correctly points out that under 310 IAC 12-6-5(b)(1)
a CO is issued for failure to abate a NOV for good cause shown.
12.
The Claimant then follows the logic that since the inspector saw no good cause
and 90 days had not passed since the NOV was issued, he should have
automatically extended the abatement date of the NOV rather than issue a CO
even though the miner had in no way communicated to the inspector the
difficulty encountered and the need for more time.
13.
This logic is flawed because good cause shown certainly must include the
miner's failure to abate the NOV, without excuse, by the prescribed date.
14.
Unless an impediment to abatement can clearly be seen by an inspector it is
incumbent upon the miner to point out any such impediment to the inspector
prior to the abatement date.
15.
Generally it is too late to object to the abatement date of an NOV after that
date has passed.
16.
The process to be followed is as follows:
a.
An NOV is issued with a abatement date.
b.
If the facts of the NOV are disputed the miner has 30 days to request review
thereof.
c.
The same time period applies to temporary relief from an abatement date (30
days) as it is part of the NOV.
d.
If after the 30 days has run the miner finds a need for an extension of an
abatement date it is incumbent upon him to ask the inspector in writing of such
an extension.
e.
If the extension request is denied such denial becomes an appealable agency
action.
17.
In the instant case the miner did none of the above and now attempts to reach
the NOV abatement date by objection to the CO.
18.
In Chieftain Coal Co. Inc. v. DNR, 4
CADDNAR 48 (October 16, 1987) (footnote 1) the Director articulates that
generally, if a notice of violation is not challenged, the notice of violation
is presumed to have been properly issued during an action which challenges the
resulting cessation order. (referring to Jaeco Inc. v. Department, 3 CADDNAR 52
(January 16, 1986)).
19.
In Chieftain, the Director provides
for an exception where there is an ambiguity as to the action required for
abatement in the notice of violation and where an operator makes a colorable
effort at compliance with the required abatement
[VOLUME 5, PAGE 162]
action (referring to Otto Rone v.
Department, 3 CADDNAR 3 (September 24, 1985)).
20.
The Otto Rone
exception does not apply here because the abatement action was unambiguous.
21.
Since the Claimant did not appeal the NOV as prescribed above he is now precluded
from challenging the abatement date through the CO.
22.
The Department's Motion for Summary Judgment must be granted. The Claimant's Crossmotion for Summary Judgment must be denied.