[NOTE: GREEN CONSTRUCTION TOOK JUDICIAL REVIEW TO THE DAVIESS SUUPERIOR COURT (14D01-9505-MI-028). THE DECISION OF THE ALJ WAS AFFIRMED WITHOUT OPINION ON APRIL 25, 1996.]
Notice of Violation N40719-S-45, Part 1 of 2 is affirmed.
FINDINGS OF FACT
1. On July 19, 1994 the Department of Natural Resources, through its agent, Robert C. Dayson, issued Notice of Violation (NOV) N40719-S-45 to Green Construction of Indiana.
2. Mr. Dayson is an inspector with the Department's division of reclamation.
3. The nature of the violation was stated as "failure to mine according to the approved operation plan."
4. The provision violated was stated as "310 IAC 12-3-4 Condition of Permit, Part IV Sec. A(2)."
5. The NOV was modified on September 22, 1994 to allow the operator additional time to abate and to add 310 IAC 12-3-5 to "provision violated".
6. Solar Sources, Inc. was mining the area in question under contract with the claimant.
7. IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
8. The department is an agency as defined in IC 4-21.5-1-3.
9. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
10. Pursuant to IC 13-4.1-2-1(c) the administrative law judge (ALJ) is the ultimate authority for the Department of this type of proceeding.
11. The claimant first objects to the modification of September 22, 1994 as being contrary to law.
12. The ALJ fails to find the modification objectionable and notes that, in addition to adding a provision violated (in lieu of writing a new NOV), it also provided the claimant an additional 60 days to abate.
13. The claimant has presented only one issue for adjudication: "whether the operations plan of Green Construction was sufficiently specific when it described the mine progression as it approached Highway 50 and turned south."
14. In the operations plan Solar described the mine progression in question as follows: "[t]his segment will progress northward to Highway 50, then turn and progress southward parallel and adjacent to the western edge of the northward progression. This segment will finish with a final cut located adjacent to the initial cut and sediment Basin 13(R)."
15. The evidence shows that the progression described above was not a logical method of mining this are as the turn area described at Highway 50 was too narrow.
16. Solar's progression was actually two pronged: one prong progressed northward as described, with another prong proceeding westward. This alleviated the need to turn when mining reached Highway 50.
17. Solar Sources engineer on the ground (Chris Hopple) testified that the two pronged progression was the only feasible method of mining this area , and that this "splitting the pit" was a generally accepted industry technique.
18. The Department does not disagree with Mr. Hopple as to whether or not the best method of mining was used. Its only complaint is that the operations plan was not followed.
19. The claimant agrees that the letter of the plan was not followed, but argues that the plan asks for only a general direction of pit advancement. It does not require great specificity and that the Department must give the miner some latitude in regard to day-to-day operations.
20. It appears that since the mining sequence was performed in the most feasible manner, and by generally accepted industry standards, the miner assumed the Department would understand what was happening was a minor deviation.
21. The Department could easily have ignored the deviation given the fact that the method being used, while not in conformance with the plan, was the proper way to mine the segment.
22. The Department chose to write a notice of violation because it felt that a two pronged progression in lieu of the one direction progression contemplated in the plan was too much of a deviation.
23. After all, Solar did submit the operations plan as part of Green's permit application. It could have described in greater detail how the segment was going to be mined.
24. Solar did fail to conduct
[VOLUME 7, PAGE 108]
mining operations as set forth in the plan in violation of 310 IAC 12-3-4.
25. Also, Solar did violated 310 IAC 12-3-5(c) by revising its method of operation without submitting an application for such a revision at least 120 days in advance.
26. it is unfortunate that the NOV here had to be issued to Green since Solar conducted this operation properly and by industry standards.
27. However, the department is charged with oversight in regard to coal mining in Indiana. It attempts to make a point by requiring Solar to mine as it said it would at the outset, and by requiring any deviations to be cleared before the fact.
28. The Department is within its authority when it regulates in this manner.