[CITE: Squaw Creek and Peabody v. DNR, 2 CADDNAR 20 (1985)]
[VOLUME 2, PAGE 20]
Cause #: 84-131R
Caption: Squaw Creek and
Peabody v. DNR
Administrative Law Judge: Shadley
Attorneys: Joest; Spicker, DAG
Date: April 1, 1985
ORDER
1.
Notice of Violation #N40620-S-00010, Violation 2 of 2 is vacated.
2.
Notice of Violation #N40520-S-00008 is vacated.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources (the "Director")
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.
The Director has jurisdiction over the subject matter and parties to these
actions.
3.
By letter dated June 26, 1984, Peabody Coal Company requested Administrative
Review of Notice of Violation #N40620-S-00010, Violation 2 of 2.
4. Peabody
Coal Company holds permit S-00010 which authorized it to conduct surface coal mining
operations in accordance with IC 13-4.1 and 310 IAC 12 at its Hawthorne Mine in
Sullivan County.
5.
On July 3, 1984, the parties agreed to submit briefs according to a briefing schedule.
The Hearing Officer agreed to base the recommendation on the briefs.
6.
On June 26, 1984 Squaw Creek Coal Company requested administrative review of
Notice of Violation #N40529-S-00008.
7.
Squaw Creek Coal Company holds permit S-00008 which authorizes it to conduct
surface coal mining operations in accordance with IC 13-4.1 and 310 IAC 12 at
its Squaw Creek Mine North Area in Warwick County.
8.
On July 18, 1984, the Hearing Officer ordered the submission of briefs in this
cause, in lieu of a hearing. The parties had agreed that the Hearing Officer
would render a recommended decision based upon the parties’ briefs.
9. Notice
of Violation #N40620-S-00010, Violation 2 of 2 was issued by an authorized representative
of the Director on June 20, 1984 and alleged a violation of 310 IAC 12-5-12(a) for
failure to remove topsoil prior to mine related surface disturbance )laying
cable lines and switching boxes.)
10.
Notice of Violation #N40520-S-00008 was issued by an authorized representative
of the Director on May 20, 1984 and alleged a violation of 310 IAC 12-5-12(a)
for failure to remove topsoil prior to other mine related surface disturbances,
i.e. power line replacement.
11.
On December 21, 1983, the Natural Resources Commission preliminarily adopted a
revision to 310 IAC 12-5-12 which would not require the removal of topsoil
prior to laying cable lines.
12.
On September 17, 1984, the Commission adopted that rule revision in final form.
13.
On November 18, 1984, that rule revision was promulgated, but the effective date
was delayed until approval of the Office of Surface Mining being published in
the Indiana Register.
14.
Upon promulgation of the rule revision, it has been clarified that removal of topsoil
prior to laying cable is not necessary in order to implement the purposes of IC
13-4.1 and that interpretation has been found to be legal by the Indiana
Attorney General.
15. Promulgation
of this rule revision, constitutes good cause for altering the prior interpretation
of the rule, and is good cause for purposes of vacating a Notice of Violation
issued for failure to remove topsoil in