[CITE: DNR v. Lemmons and Company, Inc., 1
CADDNAR 56 (1983)]
[VOLUME 1, PAGE 56]
Cause #: 82-034R
Caption: DNR v. Lemmons and Company, Inc.
Administrative Law Judge: Lucas
Attorneys: Miller, DAG; Mathis
Date: May 24, 1983
ORDER
It
is ordered this date as follows: Permits to Engage in Surface Mining, Permit
72-41, Permit 73-43 and Permit 74-55, are revoked pursuant to IC 13-4-6-8.
FINDINGS OF FACT
1.
The Department of Natural Resources ("Department") is an agency of
the State of Indiana duly empowered to conduct administrative hearings pursuant
to IC 4-22-1.
2. The
Department has jurisdiction over the subject matter and the parties to these
administrative actions.
3.
In August 1972, Lemmons and Company, Inc. ("Lemmons") made written application to conduct surface
coal mining at M & S #2 Pit in Warrick County,
Indiana, and included in the application was its reclamation plan. The
reclamation plan required compliance with specifications of a forest-and-range
land-use objective. Grading was to be performed so that no slopes were to
exceed 33 1/3 % after reclamation, and the affected area was to be seeded to grasses
and legumes.
4.
Pursuant to the written application of August, 1972, Lemmons
was issued by the Department a Permit to Engage in Surface Mining, Permit
72-41, permitting 7.0 acres in Warrick County, effective October 1, 1972 and
ending September 30, 1973.
5.
On or about February 27, 1974, Lemmons filed with the
Department a Report of Affected Area with respect to Permit 72-41, indicating 6.1 acres were affected by its mining
operations under that Permit.
6.
In August 1973, Lemmons made an additional written
application to conduct surface coal mining at M & S #2 Pit
in Warrick County, and included in the application was its reclamation plan.
The reclamation plan required compliance with specifications of a forest-and-range
land-use objective. Grading was to be performed so that no slopes exceeded 33 1/3%
after reclamation and the affected area was to be mechanically seeded to
grasses. Acid drainage was to be prevented and all refuse and debris resulting
from the mining operation was to be removed or buried.
7.
Pursuant to the written application of August 1973, Lemmons
was issued by the Department a Permit to Engage in Surface Mining, Permit 73-43,
permitting 12.0 acres in Warrick County, effective October 1, 1973 and ending
September 30, 1974.
8.
On or about November 19, 1974, Lemmons filed with the
Department a Report of Affected Area with respect to Permit 73-43, indicating 8 acres were affected by its mining
operations under that Permit.
9.
In July 1974, Lemmons made a third written
application to conduct surface coal mining at M & S Pit in Warrick County,
and included in the application was its reclamation plan. The reclamation plan
required compliance with specifications of a forest-and-range land-use
objective. Grading was to be performed so that no slopes exceeded 33 1/3% after
reclamation and the affected area was to be mechanically seeded to grasses.
Acid drainage was to be prevented and all refuse and debris resulting from the
mining operation was to be removed or buried.
10.
Pursuant to the written application of July 1974, Lemmons
was issued by the Department a Permit to Engage in Surface Mining, Permit
74-55, permitting 17 acres in Warrick County, effective October 1, 1974 and
ending September 30, 1975.
11. On or about October 29. 1975, Lemmons
filed with the Department a Report of Affected Area with respect to Permit 74-55,
indicating 28 acres were affected by its mining operations under that permit.
12. Lemmons filed for relief under Chapter XI of federal
bankruptcy law on December 6, 1976. Frank J. Folz,
Jr. was appointed receiver for Lemmons in the
bankruptcy proceeding.
13. Lemmons ceased
[VOLUME 1, PAGE 57]
all business activities on
December 6, 1976, including surface coal mining and reclamation, at which time
the reclamation required under Permits 72-41, 73-43 and 74-55 was not yet
completed.
14.
After December 6, 1976 any mining or reclamation was performed at Tennyson Pit
by the receiver, Frank J. Folz, Jr.
15.
By certified mail dated October 26, 1979 the Department issued a Notice of
Non-compliance directed to Frank J. Folz, Jr., as
receiver for Lemmons, informing him of the failure to
complete reclamation as required by IC 13-4-6 with respect to acreage permitted
or affected under Permits 72-41, 73-43 and 74-55. The notice specified
non-compliance on these three permits as having been the following:
(a) removal of reclamation equipment prior to the completion of
grading;
(b) failure to grade the affected area to the permitted
land-use;
(c) failure to control acid drainage resulting from the mine
operation;
(d) failure to control sediment-laden drainage resulting from
the mining operation;
(e) failure to dispose of refuse and debris resulting from the
mining operation; and
(f) failure to properly revegetate the
affected areas.
16.
Such notice of October 26, 1979 set November 4, 1979 as the date by which the
receiver was to return reclamation equipment to the site and grading was to be
commenced. April 30, 1980 was the date set by which grading was to be completed
to the permitted land-use specifications. November 30, 1979 was set as the date
by which the receiver was to provide proper control of acid drainage, proper
control of sediment-laden drainage, and by which time he was to remove or bury
all coal refuse or debris. The receiver was to revegetate
the affected area upon completion and approval of grading, but no later than
May 30, 1980.
17.
On May 11, 1983, the Department inspected the acreage affected by the mining
operations of Lemmons under Permit 72-41, Permit
73-43 and Permit 74-55. The inspection disclosed that all points specified in
the October 26, 1979 notice of non-compliance continued to be in
non-compliance, with the exception that the revegetation
on some areas has improved through natural succession.
18. Lemmons has failed to complete reclamation of the acreage
disturbed under Permit 72-41, Permit 73-43 and Permit 74-55 as required by IC
13-4-6-6(a) in that grading was not completed in accordance with the
forest-and-range land-use objective set forth in the reclamation plan, and as
required by IC 13-4-6-6(e) in that revegetation was
not performed as stated in the approved reclamation plan.
19. Lemmons had also failed to complete reclamation of acreage
disturbed under permit 73-43 and Permit 74-55 as required by IC 13-4-6-6(b) in
that acid drainage was not prevented according to the reclamation plan, and as required
by IC 13-4-6-6(d) in that refuse and debris resulting from the mining operation
were not properly disposed.
20. By
its failure to complete reclamation, Lemmons has
violated the provisions and requirements of IC 13-4-6.
21.
The Department has met all obligations imposed by IC 13-4-6 relating to
revocation of Permit 72-41, Permit 73-43 and Permit 74-55.