CADDNAR


 

[CITE: O. Rone v. Department, 3 CADDNAR 1 (1985)]

 

Cause #:   85-009R

Caption: O. Rone v. Department

Administrative Law Judge:  Lucas

Attorneys:  Rone, pro se; Spicker,   DAG

Date:  March 5, 1985

 

ORDER

 

Cessation Order #C41226-82-84 is affirmed.

 

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.   Otto Rone holds permit 82-84 to engage in Surface Mining at the John Stoll Mine in Daviess County pursuant to IC 13-4.1.  

 

4.   The Director may delegate any or all of the powers and duties assigned to him under IC 13-4.1 to other employees of the Department of Natural Resources.  

 

5.   Lance Myers, an authorized representative of the Director, issued a Notice of Violation #N41121-82-84 to Otto Rone pursuant to IC 13-4.1-11-4 and 310 IAC 12-6-9.  The notice alleged a violation of IC 13-4.1-8-1(2) and required the permittee to stuff and stake straw bales in a wash by December 17, 1984 at 8:00 a.m.[FOOTNOTE i]

 

6.   As agreed by the parties, the substance of the alleged violation formed a proper basis for the issuance of a Notice of Violation in accordance with IC 13-4.1 and 310 IAC 12.  Lance Myers accurately depicted the condition of the permitted area with respect to the Notice of Violation. The action required by him to remedy the violation was in all respects proper.  

 

7.   Neither Otto Rone nor an agent for the permittee was present at the John Stoll mine to accept receipt of the Notice of Violation.  The Department by certified mail P591-072-271 on November 27, 1984 directed a copy of the Notice of Violation to the following address, Otto Rone, R.R. 2, Box 79, Dale, Indiana 47523.  

 

8.   The envelope for certified mail P591-072-271 was returned by the United States Post Office to the Department, indicating the correspondence was unclaimed by the permittee.  The envelope states the first notice of the certified letter was provided to Otto Rone on November 28, 1984, the second notice on December 3, 1984, and that the letter was returned to the Department on December 13, 1984.  

 

9.   The address set forth on the certified letter was the same address provided by Otto Rone to the Department on May 16, 1984, for the service of notifications and correspondence upon the permittee.  The letter correctly set forth the address of the permittee, Otto Rone.[FOOTNOTE ii]

 

10.   Service of the Notice of Violation was made upon Otto Rone by the delivery of certified mail P591-072-271 to the Post Office in Dale, Indiana.  

 

11.   On November 30, 1984, Lance Myers attempted to contact the permittee by telephone at his office in order to communicate issuance of Notice of Violation #N41121-82-84.  No one answered the telephone. [FOOTNOTE iii]

 

12.  The violation was not abated in a timely fashion. 

 

13.   On December 25, 1984 Lance Myers properly issued Cessation Order #C41225-82-84 because of failure by the permittee to timely abate Notice of Violation #N41121-82-84.

 

[VOLUME 3, PAGE 2]

 

FOOTNOTES

 

i. The Notice of Violation also directed Otto Rone to repair the wash and to mulch the area at a rate of 1 ½ tons per acre.  The compliance time for this remedial action has been set for March 5, 1985 and is not presently at issue.

 

ii. Otto Rone testified at hearing that the mailing address on the certified letter was the "correct address."   He testified to having "no idea why I didn't receive it.  It may have come. . .it generally works all right, but I do have to go to the Post Office. . ."

 

iii. The testimony elicited at hearing suggest the permittee is often unavailable for discussions and communications with the Department concerning the implementation of IC 12-4.1.  Otto Rone must determine how best to conduct his own business affairs.  But the permittee is responsible for compliance with the provisions of IC 13-4.1, most of which relate directly or indirectly to legislative concerns for public safety and environmental protection; and his responsibility cannot be avoided or deferred because the permittee is unavailable.