[CITE: DNR v. Thoroughbred Energy, Inc., 3 CADDNAR 13 (1985)]
[VOLUME 3, PAGE 13]
Cause #: 85-030R
Caption: DNR v. Thoroughbred
Energy, Inc.
Administrative Law Judge: Lucas
Attorneys: Scherschel, DAG; Thoroughbred, none;
Davis, surety
Date: July 12, 1985
ORDER
It
is ordered as follows Permit 73-143 is revoked because of the failure of
Thoroughbred Energy, Inc. to comply with the terms of IC 13-4-6 and Public Law
159.
FINDINGS OF FACT
1. The
provisions of the administrative adjudication act (IC 4-22-1) govern this
action.
2.
The Department of Natural Resources (hereinafter the Department) is an agency as
the term is defined in IC 4-22-1. The Natural Resources Commission (hereinafter
the Commission) is the ultimate authority of the Department with respect to the
subject matter of this administrative action.
3. A
written Notice of Hearing (hereinafter the Notice) was entered on March 25,
1985 for a hearing in this action scheduled on July 10, 1985.
4. A
copy of the notice was mailed on March 26, 1985 by certified mail to
Thoroughbred Energy, Inc. At 2551 Spring Street, Jeffersonville, Indiana 47130,
to the attention of Robert Harris, Resident Agent, that address
being then shown by the Indiana Secretary of State as the proper address for
the corporate respondent. The copy was returned undelivered by the United
States Post Office with the notation "forwarding order expired."
5. A
copy of the notice was mailed on March 26, 1985 by certified mail to Robert E.
Harris at 210 Allisonville Lane, Jeffersonville,
Indiana 47130, believed to be the same Robert Harris designated as resident
agent for the respondent. The copy was returned by the United States post
Office marked "refused."
6. A
copy of the notice was mailed on July 2, 1985 by first class mail to Robert E.
Harris at 2310 Allisonville Lane, Jeffersonville,
Indiana 47130 and was not returned.
7. A
copy of the notice was mailed by certified mail to Harry M. Slack at PO Box
471, Jasper, Indiana 47546 and was delivered at that address to Debra L. Slack
on March 28, 1985.
8. A
copy of the notice was mailed by certified mail to Guard Casualty and Insurance
Company at PO Box 779247, Indianapolis, Indiana 46244 and was delivered at that
address to Regina Sims on March 27, 1985. A copy of the notice was also
delivered by first class mail to Grover Davis, attorney for Guard Casualty, who
indicated to the Hearing Commissioner during the week immediately prior to the
hearing that he was aware of it.
9.
The Commission has jurisdiction over the subject matter and over the parties
and interested persons to this administrative action.
10.
Thoroughbred Energy, Inc.(hereinafter Thoroughbred)
was issued permit 78-143 (hereinafter the permit) by the Department to engage
in surface mining of coal, clay and shale for the year beginning August 25, 1978
and ending August 24, 1979 with respect to Thoroughbred #1 Pit located in part
of the south one-half of the southeast quarter of section 15 and in part of the
north half of the northeast quarter of section 22, township 2 south, range 7
west in Pike County, Indiana.
11.
The provisions of IC 13-4-6 were applicable during the life of the permit.
Between May 4, 1978 and June 4, 1979 the provisions of Acts of 1978, Public Law
159 were Applicable.
12.
In accordance with IC 13-4-6 and Public Law 159, Thoroughbred submitted on May
12, 1978 and the Department approved a written Plan of Reclamation with respect
to the permit.
13.
On August 13, 1979 the Department issued to Thoroughbred a Notice of
Non-Compliance because its removal of reclamation equipment prior to the
completion of grading.
14.
On March 3, 1983 the Department issued to Thoroughbred Notice of Violation
N30303-78-143 because of its "failure to backfill and grade. . . .to restore the approximate
[VOLUME 3, PAGE 14]
original contour of the land, with
all high walls, spoil piles and depressions eliminated."
15. Thoroughbred
did not respond to the Notice of Violation, and Cessation order C 30405-78-143 was
issued with respect to the violation on April 5, 1983.
16.
Inspection reports issued by the Department on June 27, 1985 and July 5, 1985
indicated the permitted area was yet unreclaimed and
that the Notice of Non-Compliance set forth in Findings of Fact 13 and the
Cessation Order set forth in Findings of Fact 15 remained outstanding.
17.
On the east side of the permitted area, there are two high walls which converge
into a corner. These high walls are approximately 30 to 50 feet high with a
total exposed length of 300 to 400 feet.
18.
On the west side of the permitted area there is a portion of an exposed high
wall estimated to be 20 to 30 feet high. Some rough grading was completed on
the west side several years ago, but there are existing spoil piles and erosion
is present.
19.
No reclamation equipment is present within the permitted area.
20.
IC 13-4-6-6 provides in part: "Reclamation of all areas for which permits are
granted hereunder shall be as follows:
(A) Grading.
- Grading shall be carried out on the affected area by the operator so as to
reduce peaks and ridges, and diminish depressions between such peaks and
ridges, to a rolling or sloping or terraced topography consistent with the
land-use objectives stated in the plan of reclamation submitted by the operator
and approved by the Commission. Such grading shall be done in a manner so as to
minimize erosion, break up long uninterrupted slopes, and leave the surface
free from large rocks and other obstructions, wherever practicable, so as to
permit the operation of suitable machinery over such surface."
21.
IC 13-4-6-8 provides that a permit may be modified, suspended or revoked id the
Commission finds a permittee has failed to comply
with the terms of IC 13-4-6.