[CITE: Spencer Coal Corp. v. DNR, 3 CADDNAR 25 (1985)]
[VOLUME 3, PAGE 25]
Cause #: 85-046R
Caption: Spencer Coal Corp.
v. DNR
Administrative Law Judge: Shadley
Attorneys: Gray; Spicker, DAG
Date: March 8, 1985
ORDER
NOW
THEREFORE, based upon the Findings of Fact, temporary relief is denied for Cessation
Order #C50207-S-00124T, Violation 1 of 2 and temporary relief from the
mandatory $750 per day civil penalty is granted, pending completion of the
administrative review of Cessation Order #C50207-S-00124T.
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.
The Director has jurisdiction over the subject matter and parties to this
action.
3.
Pursuant to IC 13-4.1-2-2 the Director may delegate all or any of the powers
and duties assigned to him to other employees of the Department of Natural Resources.
4.
Sue Shadley is an employee of the Department of Natural Resources.
5.
By written entry dated February 28, 1995, the Director delegated to Sue Shadley
the power to determine whether or not to grant the temporary relief requested
by Spencer and which forms the basis of this administrative action.
6.
By letter dated February 21, 1985 and received February 26, 1985, the
petitioner requested temporary relief from Cessation Order #C50207-S-00124T, Violation
1 of 2 and Violation 2 of 2.
7.
Spencer holds permit S-00124T to conduct surface coal mining and reclamation
operations in Knox County pursuant to IC 13-4.1 and 310 IAC 12.
8.
Cessation Order #C50207-S-00124T, Violation 1 of 2 was issued by an authorized representative
of the Director to Spencer for a failure to abate Notice of Violation #N41017-S-00124T,
Violation 1 of 2. The Cessation Order was written on February 7, 1985 alleging
a violation of 310 IAC 12-6-5(b) (1) and IC 13-4.1-11-5(a) (2) and for
operations to be ceased referenced all soil handling activities on the north
side of the affected area except those necessary to abate this violation.
9.
Notice of Violation #N41017-S-00124T, Violation 1 of 2 was issued on October
17, 1984 and alleged a failure to store prime "A" and Prime
"B" soils separately from ungraded spoil and required Spencer remove
all spoil material from stockpiles of "A" and "B" prime
soils and grade spoil material a minimum of fifty feet as stated in attachment S-33-2
of Part IV, Section C of the permit by December 1, 1984.
10.
On and before October 17, 1984 the "A" and "B" prime soils
were located immediately adjacent to spoil piles such that the bottom sloped edge of the soil piles was in contact with spoil.
11.
Rocks from the spoil had fallen onto the soil stockpiles.
12.
Coal processing was being conducted on one spoil pile adjacent to which was a
soil stockpile.
13.
Permit #S-00124T required Spencer locate soil stockpiles at least fifty feet
from any potentially contaminating source.
14.
Spoil is overburden removed during surface coal mining operations. Overburden
is material of any nature, consolidated or unconsolidated
that overlies a coal deposit, excluding top soil (see definitions at 310 IAC 12-1-3.)
15.
Coal processing results in coal processing waste.
16.
Coal processing waste is earthen materials which are combustible, physically
unstable or acid-forming or toxic-forming, which are otherwise transported from
coal preparation plants, after physical or chemical processing, cleaning, or
concentration of coal. (See definition at 310 IAC 12-1-3)
17.
The spoil and coal processing waste are contaminates from which the soil
stockpiles were to be located at least fifty feet away
18.
On February 7, 1985 the "A" and "B" stockpiles were not fifty
feet away from the spoil and coal processing activity.
19.
The Notice of Violation was not abated by
[VOLUME 3, PAGE 26]
December
1, 1984.
20.
Spencer has not shown that it has a substantial likelihood of prevailing on the
merits of the Cessation Order hearing.[FOOTNOTE 1]
21. Cessation
Order #C50207-S-00124T, Violation 2 of 2 was issued by an authorized
representative of the Director to Spencer asserting a failure to abate Notice
of Violation #N41203-S-00124T, Violation 2 of 4. The Cessation Order was
written on February 7, 1985 and alleged a violation of 310 IAC 12-6-5 (b)(1)
and IC 13-4.1-11-5(a)(2) and for operations to be ceased referenced all soil
handling on the south and west side of the pit area except those necessary to
abate this violation.
22.
Notice of Violation #N41203-S-00124T, Violation 2 of 4 was issued on December
3, 1984 and alleged a failure to conduct mining activities as approved in the
permit application by locating soil stockpiles closer than fifty feet to a high
wall and required Spencer to backfill to create a fifty foot bench between the
pit high wall and six stockpiles by January 3, 1985.
23.
Permit S-00124T required Spencer not locate topsoil or subsoil closer than
fifty feet to a high wall.
24.
On December 3, 1984 and February 7, 1985 topsoil and subsoil stockpiles were
anywhere from four feet to twenty feet from a high wall.
25.
The time required to backfill the high wall to provide a fifty foot bench
between the high wall and the stockpiles was three to four weeks.
26.
The Notice of Violation established a four week period of time to backfill.
27.
If Spencer had backfilled the high wall on December 3, 1985, when the Notice was
issued, it would have had to cease mining and conduct reclamation and would not
have been able to remove all the coal in the pit area.
28.
Alternative ways to abate the Notice was available.
29. Under
the applicable law and rules petitioner could have been allowed additional time
to complete the required abatement action.
30.
The petitioner did not request additional time or an alternative abatement
action.
31.
The petitioner believed if it was working toward the required abatement action,
the Department would, without a request being made, extend the time for
abatement, based on its past experience.
32.
The petitioner was working as fast as it could to backfill the south west part
of the pit.
33.
Petitioner's failure to have backfilled the pit by January 3, 1985 was not due
to lack of diligence.
34.
Additional time or an alternative abatement action could have been given
pursuant to 310 IAC 12-6-6.
35.
Petitioner has shown that the Notice of Violation could have been modified such
that the Cessation Order would not have been issued on February 7, 1985.
36.
Petitioner has shown there is a substantial likelihood the Director's findings
will be favorable to it.[FOOTNOTE 2]
37.
Granting temporary relief will not adversely affect the health or safety of the
public or result in significant, imminent environmental harm to land, air or
water resources.
FOOTNOTES:
1.
Petitioner's argument is that the timing of the issuance of the Notice of
Violation and Cessation Order resulted in a arbitrary
enforcement program in violation of Article 14 of the Constitution. Spencer
indicates that the first cut was made on June 29, 1984. The soil was first removed
and stockpiled then the spoil was removed and placed immediately adjacent to
the soil stockpiles. The first cut's spoil was to be placed in the final cut
when mining was completed. The Notice of Violation was not written until
October, 1984, even though the situation had existed since June 29, 1984. At
the time the Notice of Violation was written the only way to abate was to cease
mining and commence reclamation. By waiting until October, 1984, Spencer was
trapped and petitioner asserts this is an arbitrary way to enforce the rule.
This argument is properly raised when challenging the Notice of Violation. No request
to review the Notice has been received and the time frame for challenging that
violation is past. Petitioner's failure to exhaust administrative remedies
means the Notice of Violation must be considered properly issued, and the only
remaining issue is whether or not the Notice was properly abated.
2.
Petitioner has requested review of the underlying Notice of Violation as well
as the Cessation Order.