CADDNAR


[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.