[CITE: Ohio Valley Co. Const. Div. v. DNR, 1 CADDNAR 77 (1983)]
[VOLUME 1, PAGE 77]
Cause #: 83-100R
Caption: Ohio Valley Co.
Const. Div. v. DNR
Administrative Law Judge: Shadley
Attorneys: Tyler; Spicker, DAG
Date: October 31, 1983
ORDER
The
following order is recommended for adoption and issuance by the Director:
It
is ordered this date as follows:
Cessation
Order #C30619-81-196 is affirmed.
FINDINGS OF FACT
1. The
Director of the Department of Natural Resources is included in the definition
of agency as used in IC 4-22-1-2 and is duly empowered to conduct
administrative hearings pursuant to IC 4-22-1.
2.
Ohio Valley Company Construction Division, Inc. is an Indiana Corporation with
office address at P.O. Box 2395, Evansville, Indiana and with agent resident in
the State of Indiana being Prentice Hall Corporation Systems, as designated by
Ohio Valley to the Indiana Secretary of State.
3.
The Director has jurisdiction over the subject matter and parties to this
action.
4.
On July 19, 1983, Cessation Order #C30719-81-196 was issued to Ohio Valley by
Thomas Getz, an inspector for the Division of Reclamation pursuant to IC 13-4.1-11-5
and 310 IAC 12-6-5 (b) (1).
5.
On September 8, 1983, Ohio Valley requested administrative review of this
Cessation Order. 6. On October 20, 1983, an administrative hearing was
conducted pursuant to IC 4-22-1.
7.
The Cessation Order cited Ohio Valley for failure to abate Notice of Violation
#N30609-81-196.
8.
Notice of Violation #N30609-81-196 was issued on June 9, 1983, by Lance Myers,
an inspector for the Division of Reclamation and cited Ohio Valley for failure
to preserve topsoil from wind and water erosion and required that five (5)
topsoil stockpiles be protected by applying mulch at a rate of 1 ½ to 2
tons per acre and seeding or by other measures approved by the Division of
Reclamation by June 29, 1983.
9. The
date for abating Notice of Violation #N30609-81-196 was subsequently extended
to July 19, 1983.
10.
On June 9, 1983, Inspector Myers observed five (5) topsoil stockpiles which
were not protected by mulch or vegetation and from which soil materials had
eroded as evidenced by gullies in the stockpiles.
11.
On July 19, 1983, Inspector Getz observed the same five (5) topsoil stockpiles
and no mulch or seed had been applied and no other action had been taken by
Ohio Valley to protect the stockpiles. 12. By failing to mulch and seed the
stockpiles or use other measures approved by the Division of Reclamation by
July 19, 1983, Respondent failed to abate Notice of Violation #N30609-81-196.[FOOTNOTE i]
FOOTNOTE
i. Petitioner raises as a defense the fact that Ohio
Valley entered into a contract with Robert Goldman d/b/a Abbott Coal Company
and that despite repeated attempts by Ohio Valley to secure Goldman's
compliance with his contractual obligations to abate this Notice of Violation, Goldman
failed to do so. The permit in question for which the
Notice of Violation was issued, is in the name of Ohio Valley Company
Construction Division, Inc. Therefore, Ohio Valley is the responsible party.
Ohio Valley cannot escape liability on the basis that its subcontractor has breached
a private contract between Ohio Valley and Abbott Coal Company. Ohio Valley
also raises as a defense the fact that the Cessation
Order recites as a provision violated Item 10 of the Plan and that no evidence
was introduced showing a violation of Item 10. Respondent has shown a violation
of Item 14 of the Plan of Reclamation as well as a violation of the provisions of
[VOLUME 1, PAGE 78]
IC
13-4.1-11-5 and 310 IAC 12-6-5, also provisions cited in the Notice of
Violation. The Petitioner's witness testified that he understood that nature of
the violation and the action required to abate said
violation. Under these circumstances, the Notice of Violation and ensuing
Cessation Order are reasonably clear and should be affirmed.