[CITE: Central Disp., Inc. v. DNR, 2 CADDNAR 37A
(1984)]
[VOLUME 2, PAGE 37A]
Cause #: 84-222R
Caption: Central Disp., Inc.
v. DNR
Administrative Law Judge: Szostek
Attorneys: Ferguson; Spicker, DAG
Date: November 28, 1984
ORDER
[NOTE: THE UNDERLYING
CESSATION ORDER IS THE SUBJECT OF ADMINISTRATIVE CAUSE
NUMBER 84-224R.]
Temporary
Relief from the abatement actions required of Petitioner in Cessation Order
C40822 is denied.
FINDINGS OF FACT
1.
Petitioner did not apply for or receive a surface coal mining and reclamation
permit from Respondent before the issuance of the above C.O.
2.
Petitioner was excavating coal processing wastes from an abandoned coal slurry
pond in Greene County.
3. Petitioner
was loading the coal processing wastes into trucks. Such trucks were delivering
the material to Public Service Indiana's Gibson Generating Station.
4.
Public Service Indiana purchased the coal processing waste from Petitioner.
5.
PSI did not process the coal processing waste before burning it to produce
electricity.
6.
Inspector Smith and the proper delegation of authority from the Director of the
Department of Natural Resources to issue a Cessation Order in this situation.
7.
The Cessation Order was properly issued and was not impermissibly vague.
8.
The Hearing properly admitted Witness Smith's hearsay evidence and did not base
a casual relationship on this hearsay.
9.
Respondent's definition of "permittee"
found at 310 IAC 12-1-3 is not impermissibly expansive of the definition of
"permittee" found at IC 13-4.1-1-3(8).
10. Petitioner's
operations fall under the definition of "surface coal mining
operations" found at IC 13-4.1-1-3(12) and 310 IAC 12-1-3.
11.
Petitioner's activities, as described, do not adversely affect the health or
safety of the public or cause significant, imminent environmental harm to land,
air, or water resources.
12.
Petitioner failed to show there is a substantial likelihood that the findings
of the director will be favorable to him.
13.
From the evidence, arguments, and case citations presented at the Temporary
Relief Hearing, the Hearing Officer believes that:
(1) the Director of the Department of Natural Resources, acting
through his authorized representative, had the authority to issue a Cessation
Order to Central Disposal Inc.;
(2)
Central Disposal's operations fall within the definition of "surface coal
mining operations" found at IC 13-4.1-1-3(12) and 310 IAC 12-1-3;
(3) the operations of Central Disposal require a surface coal mining
permit from the Department of Natural Resources. Therefore, Petitioner has
failed to meet one of the requirements for the granting of Temporary Relief;
that it is unlikely that there is a substantial likelihood that the findings of
the Director would be unfavorable to him, as required by IC 13-4.1-11-8(e)(2).