[CITE: Theba Corp. v. Department of Natural Resources, 3 CADDNAR 34 (1985)]
[VOLUME 3, PAGE 34]
Cause #: 85-099R
Caption: Theba
Corp. v. Department of Natural Resources
Administrative Law Judge: Shadley
Attorneys: Abbott; Szostek, DAG
Date: May 7, 1985
ORDER
[NOTE: THEBA CORPORATION
WITHDREW ITS REQUEST FOR ADMINISTRATIVE REVIEW OF THE UNDERLYING CESSATION
ORDER ON MAY 15, 1985.]
It
is ordered this date as follows: Temporary Relief from Cessation Order
#C50320-S-00028 is denied.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources (Director) is included in
the definition of the word 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.
The Director may, pursuant to IC 13-4.1-2-2 delegate all or any of his powers
and duties assigned to him to other employees of the Department of Natural
Resources.
4.
Sue A. Shadley is an employee of the Division of Reclamation, Department of
Natural Resources.
5.
By written entry dated April 29, 1985, the Director delegated to Sue A. Shadley
the power to determine whether or not to grant the temporary relief requested
herein.
6. Theba Corporation holds permit S-00028 to conduct Surface
Coal Mining and Reclamation Operations in Spencer County pursuant to IC 13-4.1
and 310 IAC 12.
7.
By letter dated April 20, 1985, and received April 25, 1985, the petitioner
requested temporary relief from Cessation Order #C50320-S-00028.
8.
Cessation Order #C50320-S-00023 was issued by an authorized representative of the
Director to Theba for a failure to abate Notice of
Violation #N50219-S-00028, Violation 1 of 1. The Cessation Order was written on
March 20, 1985 alleging a violation of 310 IAC 12-6-5 and for operations to be
ceased referenced all offsite drainage from the area cited in the Notice of
Violation.
9.
The Notice of Violation was issued on February 19, 1985 and alleged a failure
to design, construct, and maintain sediment control measures, in violation of
310 IAC 12-5-20(a)(1) and (2) and (b)(6), and the small area drainage exemption
request of September 21, 1984. The Notice of Violation required Theba maintain protection measures as stated in the
exemption request and construct silt traps to keep sediment on the permit area,
or divert all drainage into a approved, certified sediment pond, by march 19,
1985.
10. Theba had not constructed silt traps by March 19, 1985.
11.
The small area drainage request provided in lieu of passing all drainage
seeding.
12.
On March 19, 1985 no mulch was observed and the vegetation in the area of the
small area drainage exception appeared no different.
13.
No evidence was admitted to show that the drainage had been diverted into an
approved, certified sediment pond by March 19, 1985.
14. Theba did not abate Notice of Violation #N50219-S-00028 by
March 19, 1985.
15.
Cessation Order #C50320-S-00028 was properly written for failure to abate
Notice of Violation #N50219-S-00028.
16.
Petitioner has not demonstrated that it has a substantial likelihood of
prevailing on the merits of its challenge to Cessation Order #C50320-S-00028.