[CITE: Peabody Coal v. D. Natural Resources, 2 CADDNAR 52 (1985)]
[VOLUME 2, PAGE 52]
Cause #: 84-250R
Caption: Peabody Coal v. D.
Natural Resources
Administrative Law Judge: Shadley
Attorneys: Joest; Spicker, DAG
Date: April 4, 1985
ORDER
Notice
of Violation #N40928-S-00011 is vacated.
FINDINGS OF FACT
1.
The Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
2. The
Director has jurisdiction over the subject matter and the parties to this
action.
3.
Peabody Coal Company holds permit S-00011 to engage in surface mining at the
Universal Mine, Easytown Area in Vermillion and Vigo
Counties, pursuant to IC 13-4.1.
4.
The Director may delegate any of all powers and duties assigned to him under IC
13-4.1 to other employees of the Department of Natural Resources.
5.
Eric Gerst, an authorized representative of the
Director, issued Notice of Violation #NL40928-S-00011 to Peabody Coal Company
alleging a violation of 310 IAC 12-5-34(a) for failure to promptly conduct a
pre-blast survey and submit a report of the survey as requested by the
Director.
6. The
version of 310 IAC 12-5-34 which was in existence at the time the Notice of
Violation was written required Peabody promptly conduct a pre-blast survey when
a request was made of the Director by a resident or owner of a dwelling within
one mile of any part of the permit area. Additionally Peabody was required to
promptly submit a report of the survey to the Director and to the person
requesting the survey. Further when a structure is renovated or added to, subsequent
to a survey, then upon request to the Director a survey of the addition or
renovation was also required to be performed.
7.
The Director received a request for a pre-blast survey from Mr. and Mrs. Norman
Jackson and by letter dated August 14, 1984 required Peabody Perform the survey
on or before September 11, 1984.
8.
Peabody employed Crawford and Company, Inc. to perform the survey and assigned
this particular job to them on August 17, 1984.
9.
The pre-blast survey was conducted and completed on October 1, 1984.
10.
Two previous pre-blast surveys had been conducted on this dwelling on May 5,
1983 and on February 1, 1984, while the dwelling was owned by the Barritos.
11.
The dwelling had not been renovated or added to between May 5, 1983, when the
first pre-blast survey was conducted, and October 1, 1984.
12.
310 IAC 12-5-34(a), as it existed on September 28, 1984, did not require a
pre-blast survey of a dwelling, where no addition or renovation had occurred,
and where a pre-blast survey had been conducted eight months prior, while the
dwelling was owned by another person.