[CITE: Solar Sources v. Department, 3 CADDNAR 29 (1985)]
[VOLUME 3, PAGE 29]
Cause #: 85-066R
Caption: Solar Sources v.
Department
Administrative Law Judge: Shadley
Attorneys: Runnells; Szostek, DAG
Date: November 5, 1985
ORDER
Notice
of Violation #N50312-S-00068 is vacated.
FINDINGS OF FACT
1. On
March 20, 1985 Solar Sources, Inc. Requested a hearing
to review the issuance of Notice of Violation #N50312-S-00068.
2.
IC 13-4.1 applies to this proceeding.
3. The
Department of natural Resources is an agency as defined in IC 4-22-11 the
Director is the ultimate authority of the Department with respect to this
proceeding.
4.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
5.
Notice of Hearing was given to: Ms. Mary Runnells, Attorney for Solar Sources,
PO Box 268, Bloomfield, Indiana; Mr. Steven Szostek,
Deputy General, 309 West Washington Street, Suite 201, Indianapolis, Indiana;
Ms. Elizabeth Holder, Warrick County Recorder, Boonville, Indiana.
6.
On October 28, 1985 a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1
and 310 IAC 0.5.
7.
Solar Sources, Inc. holds permit S-00068 to conduct surface coal mining
operations in Warrick County at its Pit #12.
8.
Tom Held, an authorized representative of the Director wrote Notice of Violation
#N50312-S-0068 which was mailed to Solar Sources on March 14, 1985.
9.
Notice of Violation #N50312-S-00068 cited Solar for failure to control access
to coal exploration areas (emphasis added) during periods when excessive damage
to vegetation or rutting of the land surface could result.
10.
The Notice of Violation was written for violation of 310 IAC 12-5-3(a) (1) and
310 IAC 12-5-3(c).
11.
The area of violation was listed as the northern one-third of bond segment
number seven, east of county road 150 west and north to northeast of the Terry Furguson residence.
12.
The parties stipulated the sole issue for this hearing was whether or not the
activity cited in the notice of Violation was coal exploration subject to the provisions
to IC 12-4.1-7 and 310 IAC 12-5-1 through 310 IAC 12-5-4.
13.
The parties stipulated if the activity was coal exploration, excessive rutting
or damage to vegetation in violation of 310 IAC 12-5-3(a) (1) and 310 IAC
12-5-3(c) did occur.
14.
The area of the violation was conducted within the boundaries of permit
S-00068.
15.
Bond had been posted for the area.
16.
On March 12, 1985 Solar was using a drill rig to drill approximately 150 feet in
advance of the active pit to determine the depth of the coal, to check for outcrops,
to confirm the quality of the coal and to determine if the pit should continue
to advance in the planned direction.
17.
Drilling conducted after issuance if a permit on land within the boundaries of
the permit is subject to the performance standards in 310 IAC 12-5-5 through
310 IAC 12-5-158 not the performance standards for coal exploration in 310 IAC
12-5-1 through 12-5-4.[FOOTNOTE i]
FOOTNOTE:
i.
My reading of the statute and rules is that coal exploration and the special
performance standards applicable to it are intended for activities conducted
where no other requirements for reclamation would apply. 310 IAC 12-5-10 speaks
to coal exploration thus it appears the rules anticipate that exploratory
drilling continue after issuance of a permit and performance standards have
been incorporated into the surface mining rules to regulate that activity. It
would not be appropriate to subject that activity to two sets of regulations.
[VOLUME 3, PAGE 30]
The exploration
conducted during mining on an approved permit SHOULD comply with all applicable
performance standards in 310 IAC 12-5-5 through 310
IAC 12-5-158.