CADDNAR

[CITE: Spencer Coal Corp. v. DNR, 3 CADDNAR 23 (1985)]

[VOLUME 3, PAGE 23]

Cause #: 85-040R

Caption: Spencer Coal Corp. v. DNR
Administrative Law Judge: Lucas
Attorneys: Gray; Spicker, DAG
Date: February 27, 1985

ORDER

[NOTE: Review of the underlying Cessation Order was dismissed for failure to prosecute, and this order was consequently dissolved on August 30, 1988.]

NOW THEREFORE, based upon the Findings of Fact, temporary relief from the required abatement action contained in Cessation Order C50206-80-41 is granted, pending completion of the administrative review of the Cessation Order.

FINDINGS OF FACT

1. The Director of the Department of Natural Resources (the "Director") is included in the definition of agency as used in IC 4-22-1-2 and is duly empowered to conduct administrative hearings pursuant to IC 4-22-1.

2. Pursuant to IC 13-4.1-2-2 the director may delegate all or any of the powers assigned to him to other employees of the Department of Natural Resources.

3. Stephen L. Lucas is an employee of the Department of Natural Resources.

4. By written entry dated February 20, 1985, the director delegated to Stephen Lucas the power to determine whether or not to grant the temporary relief requested by Spencer Coal Corporation ("Spencer") and which forms the basis of this administrative action.

5. Spencer is a corporation with address at Post Office Box 433, Dale, Indiana 47523 and with agent in the State of Indiana being Richard Stowell as designated by Spencer to the Indiana Secretary of State.

6. By letter dated February 18, 1985 and received February 20, 1985, the petitioner requested temporary relief from Cessation Order C50206-80-41.

7. Cessation Order C50206-80-41 was issued by an authorized representative of the Director and of the Department to Spencer asserting a failure to abate Notice of Violation N41120-80-41. The Cessation Order alleged a violation of 310 IAC 12-6-5 and IC 13-4.1-11-5(a)(2), and for operations to be ceased, referenced all reclamation activity except what was necessary to abate the violation.

8. Notice of Violation N41120-80-41 showed a failure by Spencer to establish on the regraded areas, and all other lands affected, a diverse, effective and permanent cover.

9. The Cessation Order (and the Notice of Violation) have been properly issued, and are supported by the evidence, if the terms of IC 13-4.1 are applicable to the permit at issue.

10. The permit at issue is Permit No. 80-41a to Spencer to engage in surface mining of coal, clay and shale for the year beginning April 22, 1980 and ending April 21, 1981 for a parcel located in Section 20, Township 4 South, Range 4 West, Spencer County, Indiana.

11. No permit has been issued to Spencer with respect to the affected area since July 29, 1982 nor has Spencer sought a permit under the permanent program provisions of IC 13-4.1.

12. The operations conducted by Spencer were governed by unpublished enactments by the Indiana General Assembly, including the Acts of 1979 (Public Law 314) and its successors, but after July 29, 1982 those provisions were no longer in effect.

13. During the period in question, Spencer has been subject to the provisions of IC 13-4-6 and continues to be subject to the requirements of that chapter as a surface mining operation (including reclamation) which is not subject to IC 13-4.1.

14. The Department has jurisdiction over the parties to this administrative action pursuant to IC 13-4.1 or IC 13-4-6. 15. Spencer is entitled to temporary relief as prayed in accordance with IC 13-4.1-11-8(e) as follows:

(a) A hearing was held in Jasonville, Indiana in the locality of the permit area on the request for temporary relief by Spencer on whom all parties were given an opportunity to be heard.

(B) Spencer showed there is a substantial likelihood that the findings of the Director will be favorable to the company since its operations at the site are not subject to IC 13-4.1.

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health or safety of the public or cause significant, imminent environmental harm to land, air or water resources.