[CITE: Brazil Coal and Clay v. DNR, 1 CADDNAR 63 (1986)]
[VOLUME 1, PAGE 63]
Cause #: 83-025R
Caption: Brazil Coal and Clay
v. DNR
Administrative Law Judge: Shadley
Attorneys: Sullivan; Spicker, DAG
Date: April 10, 1986
ORDER
The
civil penalty assessment for Cessation Order #C30210-81-131 is vacated, and the
department is ordered to refund the escrowed penalty to Brazil, within thirty
(30) days of this order, with interest from April 13, 1983 to April 24, 1986 at
a rate of 8% per year.
FINDINGS OF FACT
1.
On March 31, 1983, Brazil Coal and Clay Corporation ("Brazil")
requested review of the civil penalty assessed in connection with Cessation
Order C30210-81-131.
2.
IC 4-22-1, IC 13-4-6 and P.L. 331 (1981) apply to this proceeding.
3.
The Department of Natural Resources (the "Department") is an agency
as defined in IC 4-22-1. The Director is the ultimate authority of the
Department with respect to proceedings to review notices of violation and cessation
orders.
4.
The Director has jurisdiction over the subject matter and the parties to this proceedings.
5.
Notices of Hearing were given to: Mr. David Sullivan, Attorney for Brazil, COX,
ZWERNER, GAMBIL & SULLIVAN, P.O. Box 1625, Terre
Haute, Indiana 47808. Ms. Myra P. Spicker,
Deputy Attorney General and Attorney for Department, 309 W. Washington Street,
Suite 201, Indianapolis, Indiana 46204. Ms. Betty Wilhite, Clay County Recorder, Court House, Brazil, Indiana
47834.
6.
On July 21, 1983 and August 1, 1983, a hearing was conducted pursuant to IC
4-22-1.
7.
Brazil held Permit number 81-131 to conduct surface coal mining and reclamation
operations at its Saline #1 mine in Clay County, Indiana.
[Finding
8: The original administrative decision
contained a numeration error. “8” was omitted.]
9.
On January 27, 1983, Roger Hedge, an authorized representative of the Director,
issued Notice of Violation N30127-81-131 to Brazil.
10.
Notice of Violation N30127-81-131, in part, cited Brazil for failure to remove
the topsoil from the land in a separate layer, and required Brazil to remove topsoil
as separate operation in advance of the active pit and retrieve topsoil that
has sloughed into the pit by February 10, 1983. This modification was mailed by
certified mail to Brazil on February 8, 1983.
11. On February 4, 1983, the Notice was modified
to extend the time for abatement to February 10, 1983. This modification was mailed by
certified mail to Brazil on February 8, 1983.
12.
On February 8, 1983, the required abatement action specified in the Notice was
modified to provide for proper topsoil handling procedures to be implemented immediately
upon receipt of the notice. Topsoil was to be removed as a separate operation, without
use of dragline.
13.
On February 10, 1983, Timothy Miller, an authorized representative of the
Director, wrote Cessation Order C30210-81-131, which mailed by certified mail
to Brazil on February 10, 1983. The Cessation Order was issued for Brazil's
failure to abate Notice of Violation N30127-81-131, 1 of 2, (item 2), because
Brazil failed to retrieve topsoil that had sloughed into the pit by the
required compliance time of February 10 1983.
14.
The Cessation Order was terminated on February 16, 1983.
15.
IC 13-4.1-12-1(b) provides that a civil penalty of not less than $750 per day
for each day a failure to abate cessation order remains unabated is to be
assessed.
16.
The Department indicated a $4,500 penalty was assessed based on six days at a
rate of $750 per day.
17.
Pursuant to 310 IAC 12-6-7(A)(2), a cessation order is
not considered issued until received by the permittee.
18.
No evidence was submitted to document when the cessation order was received by
Brazil.
19.
No evidence was submitted which would support a finding that the cessation
order was unabated for six (6) days.
20.
The Department has failed to make a primae facie case
showing that a $4,500 penalty assessment was proper.