[CITE: Squaw Creek Coal Co. v. DNR, 2 CADDNAR 33 (1985)]
[VOLUME 2, PAGE 33]
Cause #: 84-203R
Caption: Squaw Creek Coal Co.
v. DNR
Administrative Law Judge: Szostek
Attorneys: Joest; Spicker, DAG
Date: March 18, 1985
ORDER
It
is adjudged and ordered, for Administrative Cause #84-203R and Notice of
Violation N40724-S-00009 only that this Notice of Violation is affirmed.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources [the Director, the Department]
is included in the definition of the word 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 may, pursuant to IC 13-4.1-2-2(c), delegate all or any of his
powers and duties assigned to him in this article to other employees of the
Department.
3.
Steven J. Szostek is an employee of the Department.
4.
Squaw Creek Coal Company is a company licensed to do business in Indiana, with
an address at 20 Northwest First Street, PO Box 1112, Evansville, Indiana
47706.
5.
In a petition filed with the Department on August 27, 1984, Petitioner
requested administrative review of Notice of Violation N40724-S-00009.
6.
An administrative hearing on NOV 40724-S-00009, Violation 1 of 3, was held on
October 5, 1984, in Jasonville.
7.
Petitioner was cited for a violation of 310 IAC 12-5-68(a): failure to grade an
affected area to the approved post-mining land use in a timely manner.
8.
The area of the violation was disturbed (mined) under a permit [81-56A] issued
under Indiana's "interim" program [see IC 13-4-6 et. seq.]
9. The
area of the violation was included in Petitioner's permit [S-00009] under
Indiana's "permanent" program [see IC 13-4.1 et. seq.] issued in
October, 1983.
10.
The area of the violation was bonded under Indiana's permanent program.
11.
The area of the violation, a pond, was disturbed under Petitioner's interim
permit and has not been further disturbed since the issuance of the permanent
program permit in October, 1983.
12.
Neither the interim permit [81-56A] nor the permanent [S-00009] had a pond
approved post-mining land use for the area found in violation.
13.
On the date of the issuance of the NOV, an access route to the pond existed
that could have allowed the entrance of heavy equipment needed to reclaim the
pond to cropland, the then-approved post-mining land use in the permanent
program permit [S-00009.]
14.
On the date of the issuance of the NOV, Petitioner was placing topsoil on the
slopes of three sides of the pond, in preparation for reclaiming the land as
cropland.
15.
The placing of topsoil on three slopes around the pond could be logically seen
by Inspector Goldblatt to imply that the pond area
was not going to be reclaimed as cropland; the approved post-mining land use in
Petitioner's permanent program permit S-00009.
16.
Petitioner submitted a proposed post-mining land use change, covering the area
of violation, under interim permit 81-56A on July 25,
1984; one day after the NOV was issued.
17.
On October 2, 1984 [some 10 weeks after Petitioner's submission] Respondent
issued its first review [see Exhibit "C"] of Petitioner's proposed
post-mining land use change. Petitioner was requested to submit additional information
and to submit the proposed change under the format of a revision to its
permanent permit S-00009.
18.
The information submitted on July 25, 1984, to support Petitioner's proposed
change was not sufficient for Respondent's approval under either the interim or
permanent program requirements.
19.
The inclusion of the violation area within permanent program permit S-00009 and
the bonding of that area to permanent program requirements for post-mining land
use change.