[CITE: North Eastern Mining Co., Inc. v. DNR, 2 CADDNAR 25 (1984)
[VOLUME 2, PAGE 25]
Cause #: 84-165R
Caption: North Eastern Mining
Co., Inc. v. DNR
Administrative Law Judge: Szostek
Attorneys: Runnells; Spicker, DAG
Date: September, 1984
ORDER
[NOTE: NORTHEASTERN MINING
WITHDREW ITS REQUEST FOR ADMINISTRATIVE REVIEW OF THE UNDERLYING NOTICE OF
VIOLATION OF OCTOBER 21, 1985.]
Violation
1 of 2-A, Petitioner is given 30 additional days, starting Aug. 2, 1984, to
achieve a slope no steeper than 3:1 for the slope in the impoundment area
between the top and the projected water level. Since there is some confusion as
to where the top and the projected water level are, the parties are urged to
meet on site and so mark these boundaries. Violations 2 of 2A and 2 of 2B,
Temporary Relief is granted from the required abatement actions until the
decisions of the Director.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources [hereinafter Director] is
included in the definition of agency, as used in IC 4-22-1-2.
2.
North Eastern Mining Company, Inc. is registered to do business in Indiana with
an office at 6700 East State Boulevard, Fort Wayne.
3.
The Director has jurisdiction over the subject matter and the parties to this
action.
4.
The Director may delegate all or any of his powers and duties assigned to him
under IC 13-4.1 to other employees of the Department of Natural Resources.
5.
On or after July 13, 1984, Dan Derheimer, an
authorized representative of Respondent, issued Notice of Violation
N40710-81-133 to Petitioner. The Notice of Violation contained Violations 1 of
2 and 2 of 2 and each violation contained two parts [A and B for this
description]. Violation 1-A required that Petitioner construct the Limp Lake
impoundment area to design specifications by regarding the inside slopes down
to the proposed water level to 4:1 on the west and 3.5:1 on the east side. At
the hearing, Petitioner agreed to perform the corrective action specified for
Violation 1-B. Violation 2-A and 2-B were alleged violations of IC
13-4.1-8-1(3): failures to backfill, compact, and grade in order to restore the
approximate original contour of the land with all high walls, spoil piles, and
depressions eliminated. Violation 2-A cited a high wall located just east of
Mr. Limp's house. Violation 2-B cited an area of the northwest perimeter of the
affected area, north of County Road 200N.
6.
On July 20, 1984, Petitioner requested Administrative Review of and Temporary
Relief from the abatement actions required in the above Notice of Violation. On
July 27, 1984, the Acting Director of the Department of Natural Resources appointed
Steven J. Szostek as the Hearing Officer in this
cause.
7.
Violation 1-A:
A) the area of the impoundment was previously mined. The new
impoundment area is larger than the old impoundment area.
B) the projected water level if the new impoundment area will
be higher than the current water level. It will take approximately 5-10 years
for the water level to reach the projected water level.
C)
Petitioner's diagram of the impoundment area (see Respondent's Exhibit 1) shows
slopes of 4:1 (west side) and 3.5:1 (east side) between the top of the
impoundment and the current water level.
D) the Notice of Violation requires that Petitioner regrade the slopes between the top and the projected water
level to be 4:1 and 3.5:1, respectively.
E)
Respondent's regulations require no greater than a 3:1 slope between the top
and the projected water level.
F)
Slopes existing at the time of the Notice of Violation were steeper than
required in the Notice of Violation (3.5:1 and 4:1), yet no worse than 3:1, per
witness Aten.
G) some measurements by the Division of Reclamation of the
slope from the top of the impoundment to the projected water level were over
40%.
H)
Petitioner agreed at the hearing to keep the top of the impoundment to the
projected water level slope at 3:1.
I)
little environmental damage would occur, beyond some slight erosion, if
Temporary Relief is granted.
8.
Violation 2 of 2-A:
A) the Notice of Violation cites the existence of a high wall
in Limp's backyard.
B) the slope was never part of a high wall, but is a spoilpile,
C)
IC 13-4.1-8-1 (3) [cited in the
[VOLUME 2, PAGE 26]
Notice
of Violation] does not require returning the land to a slope of 33%. This
statute requires the lowest possible slope, but not to exceed the angle of
repose.
D)
The slope in question is steeper than 3:1.
E)
Slopes in this general area are 3-10%. Respondent wants a 12% slope here.
F) Derheimer testified that the current elevation of Limp's
house is similar to the elevation behind his house prior to mining in this
area.
G)
North Eastern Mining restored the land after mining to its approximate original
contour.
H) a cut in the restored contour was then made to accommodate
the construction of Mr. Limp's new house.
I)
the Division of Reclamation (Derheimer) didn't know
what the land looked like before the cut mentioned in Item H was made.
J)
The land owner (Mr. Limp) wants the steeper slopes to remain.
K)
The backfilling to the slope grade sought by the Division of Reclamation would
cover Mr. Limp's backyard and destroy planted trees.
L) the Division of Reclamation knew of Mr. Limp's plans to
build the house, but did not issue a Notice of Violation until one year after
it was built.
9.
Violation 2 of 2-B:
A) North
Eastern did not mine in this area.
B) this area is not included in North Eastern's
reclamation plan.
C) the slope is currently steeper than 3:1.
D)
Mr. Aten testified that landowner Yegerliner
requested that North Eastern fill in an old impoundment area. North Eastern
graded the slopes and put dirt on the slopes for farming, not for mining
operations.
E) there is some evidence of soil movement down the slope.
F) the slope is gentler now than before North Eastern's grading.
G) the current vegetation, which is of poor quality, would be
destroyed if the slope were regraded.
H) the Notice of Violation abatement action would restore the
slope to the approximate original contour which existed before any mining
occurred in this area.
I) Derheimer didn't know whether North Eastern's
grading of the slope was done in accordance with a mining operation, but Derheimer felt that placement of soil on the slope
constituted mining.
J) the parties were unable to show if the area in question was
on Petitioner's "Affected Area Map" [see Respondent's Exhibit #5]. An
Affected Area Map shows those areas affected by mining operations.
10.
The Hearing Officer finds that for Violation 1 of 2-A, 2 of 2-A, and 2 of 2-B,
it is likely that the Director, after a full evidentiary hearing, will rule in
favor of Petitioner; and that, if Temporary Relief is granted, no imminent
environmental harm will result.