CADDNAR


[CITE: J & J Coal Company v. DNR, 2 CADDNAR 11 (1986)]

 

[VOLUME 2, PAGE 11]

 

Cause #: 84-056R

Caption: J & J Coal Company v. DNR
Administrative Law Judge: Szostek
Attorneys: Aigner; Spicker, DAG
Date: April 20, 1986


ORDER

 

[NOTE: J & J COAL WITHDREW ITS REQUEST FOR ADMINISTRATIVE REVIEW OF THE UNDERLYING NOTICE OF VIOLATION ON MAY 30, 1984.]

NOW THEREFORE, based upon the. . .findings of fact. . ., J & J Coal Company is denied temporary relief from Notice of Violation #N40321-S-00006. . . .


FINDINGS OF FACT

 

[The ALJ presented Findings of Fact and Conclusions of Law as separate entities. Because the findings of fact include a summary of the evidence incorporating testimony not relied upon in entering the Order, only the Conclusions of Law follow:]

 

1. Persons seeking to engage in surface coal mining operation must submit an application and obtain a permit for those operations. 310 IAC 12-3-2.

 

2. A person must have a valid permit to open a new site for surface coal mining operations. 310 IAC 12-3-3.

 

3. Before a surface coal mining permit will be issued, the applicant must post a performance bond to insure proper reclamation of the permitted area. 310 IAC 12-4-5.

 

4. The earth moving activities cited in the Notice of Violation are contained within the definition of surface coal mining operations. 310 IAC 12-1-3 (Disturbed Area, Surface Coal Mining Operations.)

 

5. Although the exact date of the submission of the application for permit revision was not entered in the record by either party, it is clear that the person inspecting the site from the Division of Reclamation's permitting staff on March 7, 1984, was inspecting the site based upon a submitted application.

 

6. Petitioner, by virtue of this current active mining operations, previous dealings with personnel of the Department of Natural Resources concerning methods of conducting surface mining operations and two year history of operation, is aware that surface coal mining is a highly regulated industry requiring operators to be abreast of current requirements and regulations.

 

7. Although, Jerry Aigner stated in his April 4th letter (Hearing Officer's Exhibit "C") and testified at the hearing that the land in question had been leased to the J & J Coal Company, Inc. and that J & J Coal Company had submitted an application to conduct surface coal mining on the property; a separate company, Jerry Aigner Construction Company was performing activities on the property that constituted "surface coal mining operations."

 

8. There was no evidence presented for the record concerning the terms of the lease between Jerry and Pamela Aigner and J & J Coal Company. There was no evidence presented which would explain the use of the land by Jerry Aigner Construction Company after the land was leased to J & J Coal Company.

 

9. The Division of Reclamation must be free to assume, in the absence of other stated intentions, that an applicant for a surface coal mining permit:

 

(a) Has effective control of the property in regards to surface coal mining;

(b) Any and all surface coal mining will be carried out in accordance with a submitted and approved permit application and the rules and regulation which govern surface coal mining.

 

10. Therefore, J & J Coal Company knew or should have known, that the activities of Jerry Aigner Construction Company, at least after the submission of a permit application, constituted surface coal mining operations, and were this barred, at the time, by the