CADDNAR

[CITE: Fossil Fuels Min., Inc. v. DNR, 3 CADDNAR 35 (1986)]

 

[VOLUME 3, PAGE 35]

 

Cause #: 85-102R

Caption: Fossil Fuels Min., Inc. v. DNR
Administrative Law Judge: Lucas
Attorneys: Conlon; Szostek, DAG
Date: March 21, 1986

ORDER

 

With respect to administrative cause number 85-120R, it is ordered that Notice of Violation #N50412-S-00053 is affirmed.

 

With respect to administrative cause number 85-103R, it is ordered that Notice of Violation #N50412-81-122 is affirmed.

 

With respect to administrative cause number 85-145R, it is ordered that Cessation Order #C50603-S-00053 is affirmed.

 

With respect to Adm. Cause no. 85-150R, it is ordered that Cessation Order #C50603-81-122 in the Marion Circuit Court, Cause No. C86-0849, it is ordered that the Findings and Conclusions of Defendant in 85-102R, 85-103R, 85-145R, and 85-150R are sustained. (July 31, 1986)

FINDINGS OF FACT

 

A. With respect to administrative cause number 85-102R:

 

1. The Department
of Natural Resources (hereinafter the "Department") is an agency as defined in IC 4-22-1. The Director of the Department (hereinafter the "Director") is the ultimate authority of the Department with respect to this proceeding.

 

2. On April 25, 1985, Fossil Fuels Mining, Inc. (hereinafter Fossil) requested that the Department provide a hearing to review Notice of Violation #N50412-S-00053.

 

3. The Director appointed an Administrative Law Judge in accordance with IC 4-22-1 and 310 IAC 0.5-1 to conduct this administrative action in response to the hearing request by Fossil.

 

4. On August 7, 1985, the parties filed written factual stipulations and jointly moved for summary decision under 310 IAC 0.5-1-11 in lieu of hearing.

 

5. The Director has jurisdiction over the subject matter and over the parties to this administrative action.

 

6. Fossil holds permit S-00053 to conduct Surface Coal Mining Operations at the Castle Hill Mine in Greene County.

 

7. On April 12, 1985, Shirley Adkins, an authorized representative of the Director, wrote Notice of Violation #N50412-S-00053 (hereinafter the Permanent Program NOV)

 

8. The Permanent Program NOV was issued because of the failure by Fossil to control sediment so that all sediment would be retained within the area disturbed under the permit. The location of the violation was the northern edge of Bond Segment B of the permit, and the provision cited in the Permanent Program NOV was 310 IAC 12-5-20 (b) (3).

 

9. 310 IAC 12-5-20 (b)(3) provides as follows:

 

"(b) Sediment control measures include practices carried out within and adjacent to the disturbed area. Sediment control measures consist of the utilization of proper mining and reclamation methods and sediment control practices, singly or in combination. Sediment control methods include, but are not limited to:. . .(3) retaining sediment within the disturbed areas.. ."

 

10. The Permanent Program NOV stated the action required to abate the violation was to "construct (a) terrace to the south of this area to direct runoff into basin #10. This terrace should tie in with the one on the interim permit (81-122) area to the east. (Fossil should) seed & mulch upon completion." The time set for compliance with the required abatement was 8:00 a.m. on May 15, 1985.

 

11. Fossil failed to abate the violation within the time set for compliance and on June 3, 1985,Cessation Order #C5063-S-00053 was issued because of the failure by Fossil to abate the Permanent Program NOV.

 

12. The Permanent Program NOV was issued as a result of a reoccurrence of activities cited in #N50312-S-00053.

 

13. In general terms, a purpose of IC 13-4.1, as set forth in IC 13-4.1-1-2(2, is to "[e]stablish a statewide program to protect society and the environment from the adverse effects of Surface Coal Mining Operations."

 

14. To implement this purpose, among the requirements imposed upon a permittee under IC 13-4.1 are those set forth under IC 13-4.1-8-1 to: (1) Conduct his surface coal mining

 

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operation in a manner which maximizes the utilization and conservation of the solid fuel resource which is recovered so that re-affecting the land in the Future through Surface Coal Mining is minimized. . .(10) minimize disturbance to the prevailing hydrologic balance at the mine site and ground water systems during and after Surface Coal Mining and Reclamation Operations. . ."

 

15. These statutory purposes and requirements are implemented, in part, by 310 IAC 12-5-20.

 

16. In accordance with IC 13-4.1-12-1(c), each day in violation of IC 13-4.1 may be considered a separate violation for purposes of assessing a civil penalty.

 

17. Generally, where there is a continuing duty under an environmental law to do an act.[FOOTNOTE i]

 

18. That a new Notice of Violation is issued for a violation of IC 13-4.1, which was also cited on a previous date, does not in itself make the new Notice of Violation invalid.[FOOTNOTE ii]  Each day a requirement under IC 13-4.1 is not performed by a permittee constitutes a separate violation.

 

19. The Division of Reclamation of the Department is not deprived of jurisdiction to vacate a Notice of Violation or Cessation Order because of the pendency of an action under the administrative adjudication act (IC 4-22-1) regarding that Notice of Violation or Cessation Order.[FOOTNOTE iii]

 

20. Issuance of NOV #N50412-b-00053 (the Permanent Program NOV) should be sustained.

 

B. With respect to administrative cause number 85-103R:

 

1. The findings (and footnotes) included in Part II A are incorporated by reference.

 

2. On April 25, 1985, Fossil requested that the Department provide a hearing to review Notice of Violation #N50412-81-122 (herein the Interim Program NOV).

 

3. Fossil holds permit 81-122 to conduct Surface Coal Mining Operations at the Castle Hill Mine in Greene County.

 

4. On April 12, 1985, Shirley Adkins, an authorized representative of the Director, wrote the Interim Program NOV.

 

5. The Interim Program NOV issued because of the failure by Fossil "to restore, in a timely manner, all disturbed areas to conditions capable of supporting the uses to which they were capable of supporting prior to mining."

 

6. The provisions cited in the Interim Program NOV as having been violated by fossil were

 

(a) IC 13-4-6-1.6;

(b) 30 CFR 715.13 (a); and,

(c)the Plan of Reclamation--item 14.

 

7. IC 13-4-6-1.6 was enacted by the Indiana General Assembly as Public Law 148-1985 and was made effective April 9, 1985.

 

8. Pursuant to 30 CFR 914.15(f), IC 13-4-6-1.6 was approved by the Director of the Office of Surface Mining as a portion of the Indiana State program under the Federal Surface Mining Control and Reclamation Act of 1977 (30 USC 1201-1328; see particularly 30 USC 1253) on May 13, 1985.

 

9. 30 CFR 732.17(g) provides that "[w]henever changes to laws or regulations that make up the approved state program are proposed by the state, the state shall immediately submit the proposed changes to the Director [of the Office of Surface Mining] as a amendment. No such change to laws or regulations shall take effect for purposes of a state program until approved as an amendment."

 

10. When the Interim Program NOV was issued, IC 13-4-6-1.6 was not a portion of the approved Indiana program under the Federal Surface Mining Control and Reclamation Act of 1977 (herein SMCRA).

 

11. 30 USC 1254 (g) provides: "Whenever a Federal program is promulgated for a State pursuant to the Act [SMCRA], and statutes or regulations of such State which are in effect to regulate Surface Mining and Reclamation Operations subject to the Act shall, insofar as they interfere with the achievement of the purposes and the requirements of this Act and the Federal program, be preempted and superseded by the Federal program. The Secretary shall set forth any State Law or Regulation which is preempted and superseded by the Federal program."

 

12. 30 CFR 730.11(a) provides as follows: "No State Law or regulation shall be superseded by any provision of the [Surface Mining Control and Reclamation] Act or the regulations of this chapter, except to the extent that the State Law or regulation is inconsistent with, or precludes implementation of, requirements of the Act or this chapter. The Director [of the Office of Surface Mining] shall publish a Notice of the proposed action in the Federal Register setting forth the text or a summary of any State law or regulation initially determined by him to be inconsistent with the Act or this chapter. The notice shall provide 30 days for public comment. Following the close of the public comment period, the Director [of the Office of Surface Mining] shall make a final determination which shall be published in the Federal Register."

 

13. Where the federal and

 

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state governments exercise concurrent power, the Supremacy Clause, United States Constitution, Article VI, Section 2, acts to preempt State Laws only where it is clear that Congress so intended. Statutes are construed to avoid preemption, absent an unmistakable intention to the contrary. Where it is not clearly stated that the state law is preempted, the state law is preserved unless it conflicts with federal law or would frustrate the federal scheme, or unless it is discerned from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.[FOOTNOTE iv]

 

14. IC 13-4-6-1.6 was not superseded, nor was its implementation preempted, by SMCRA prior to approval by the Director of the Office of Coal Mining. That the provisions of IC 13-4-6-1.6 were not inconsistent with SMCRA is implicit in the approval of that statutory section by the Director of OSM on May 13, 1985. The federal scheme would be thwarted, not by the implementation of IC 13-4-6-1.6, but by declining to implement its provisions.

 

15. IC 13-4-6-1.6 was effective for purposes of Indiana Law on April 12, 1985, the date on which the Interim Program NOV was issued.

 

16. IC 13-4-6-1.6 states: "All Surface Coal Mining Operations that operate or have operated under a permit issued under this chapter subject to Acts 1978, P.L. 159, Acts 1979, P.L. 314, Acts 1980, P.L. 101, Section 5, or Acts 1981, P.L. 331 are subject to IC 13-4.1-11, IC 13-4.1-12, IC 13-4.1-13, 30 U.S.C. 1252, 30 U.S.C. 1260 (d), 30 U.S.C. 1272(e), and 30 C.F.R. 710 through 716.

 

17. Permit 81-122 was issued under Acts 1981, Public Law 331 and is subject to 30 C.F.R. 710 through 716. Included within 30 C.F.R. 710 through 716 is 30 C.F.R. 715.13(a), the provision cited in the Interim Program NOV.

 

18. 30 C.F.R. 715.13(a) was in effect when the Interim Program NOV was issued.

 

19. 30 CFR 717.13(a) states: "General. All disturbed areas shall be restored in a timely manner 1) to conditions that are capable of supporting the uses which they were capable of supporting before mining, or 2) to higher or better uses achievable under criteria and procedures of paragraph (d) of this section."

 

20. The Interim Program NOV sets forth a factual basis for a violation of 30 CFR 715.13(a) and is supportable under the substantive law then in effect.[FOOTNOTE v]

 

21. Issuance of NOV #N50412-81-122 (the Interim Program NOV) should be sustained.

 

C. With respect to Administrative Cause Number 85-145R:

 

1. The findings (and footnotes) included in Part II A and Pat II B are incorporated by reference.

 

2. Fossil in a timely fashion requested that the Department provide a hearing to review Cessation Order #C50603-S-00053 (hereinafter the Permanent Program CO) issued for failure to abate by June 3, 1985 the Permanent Program NOV.

 

3. The Permanent Program CO was written by Shirley Adkins on June 3, 1985.

 

4. Fossil failed to control sediment in the area covered by the Permanent Program CO as required by 310 IAC 12-5-20(b)(3).

 

5. Issuance of Cessation Order #C50603-S-00053 (the Permanent CO) should be sustained upon the facts presented by the parties.[FOOTNOTE vi]

 

D. With respect to Administrative Cause #85-150R:

 

1. The findings (and footnotes) included in Part II A, Part II B and Part II C are incorporated by reference.

 

2. Fossil in a timely fashion requested that the Department provide a hearing to review Cessation Order #C50603-81-122 (hereinafter the Interim Program CO) issued for failure to abate by June 3, 1985 the Interim Program NOV.

 

3. The Interim Program CO was written by Shirley Adkins on June 3, 1985 pursuant to IC 13-4-6-1.6.

 

4. Fossil failed to reclaim areas described in the Interim Program CO according to an abatement schedule set forth in the Interim Program NOV.[FOOTNOTE vii]

 

5. Issuance of Cessation Order C50603-81-122 (the Interim Program CO) should be sustained upon the facts presented by the parties.

FOOTNOTES:

i. Illustrative of this legal principle are two decisions, an older appellate case from Illinois and a very recent Indiana case, where criminal convictions for the violation of environmental laws upheld, even though the active roles of the defendants ceased before the effective date of the applicable statutes. In People v. Jones (1946), 329 Ill.Ap. 503, 69 N.E. 2d 522, an operator was charged with failing to plug an oil well, although the statute governing plugging was enacted 18 months after the well was abandoned. A conviction was sustained against an attack that the statute was an ex post facto law; and, more importantly to the instant administrative action, against an attack that a statute of limitation barred prosecution. "[T]he nuisance is a continuing one and each day that the said well remained unplugged would constitute another offense." Jones at 69 N.E. 2d 524. The Jones decision was cited favorably in a

 

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recent Indiana Court of Appeals decision sustaining a conviction under the provisions regulating the storage of hazardous waste materials. In DeHart v. State, (1984) Ind. App., 471 N.E. 2d 312, the court sustained a criminal conviction for violating the Environmental Management Act (IC 13-7-1), although the act took effect in 1980 and no waste materials had been stored by the defendant since 1971. If the legal principle set forth in Finding 16 has application to a criminal proceeding, an even more compelling case is made for its application in a noncriminal context, where the standard of proof is lesser and where the result more directly affects the quality of the environment.

ii. A factual circumstance could exist which would preclude enforcement of a second Notice of Violation. Two penalties could not, for example, be assessed on the same date for the same violation. A second Notice of Violation might be barred by action o law, as upon res judicata or collateral estoppel. The facts presented by the parties in the instant administrative actions do not support preclusions of a second Notice of Violation. Since the earlier Notice of Violation (Administrative Cause Number 85-068R) was being processed for dismissal when the Permanent Program NOV was issued, no duplication or penalty assessment could result. The earlier NOV was vacated because Fossil implemented measures to correct (albeit ineffectively) the source of the violation. The dismissal of Administrative Cause Number 85-068R did not address the merits of the violation. Fossil argues that its efforts to abate the violation set forth in Administrative Cause Number 85-068R were constructed by the Division of Reclamation to have been temporary measures: "If the measures taken to abate the NOV in 85-068R were temporary then such abatement measures should have been reviewed as interim' under 310 IAC 12-6-69(g). Respondents [Department] should have moved to amend its termination of the NOV in cause no. 84-068R since the matter was still pending review rather than to have issued another NOV [Fossil's Brief at page 4.] 310 IAC 12-6-69(g) provides: "Whenever an abatement time in excess of 90 days is permitted, interim abatement measures may be imposed to the extent necessary to minimize harm to the public or environment." Use of the word "may" in the rule subsection demonstrates that its application by the Department is discretionary rather that mandatory. More importantly, the subsection does not speak to what mechanism is to be employed where an "interim abatement measure" proves unsatisfactory. While a sense of continuity might better served by reinstating the original NOV (and the previous administrative action), rather than issuing a new NOV, no regulatory or statutory authority cited by Fossil mandates that result, Fossil suffers no peculiar harm since the consequences of the various scenarios are the same. When on April 12, 1985, Shirley Adkins observed a violation (whether that violation is viewed as a new violation, a continuing violation on a new date or a reoccurrence of a previously cited violation), Fossil was no more or less responsible for its consequences. Perhaps without fully articulating its position, Fossil seeks relief from statutory and regulatory infringements through application of an affirmative defense or defenses. While the concept of an affirmative defense is recognized in 310 IAC 0.5-1-8, Fossil has failed to demonstrate that relief should be accorded.

iii. Fossil cites Gateway Coal Co. v. OSM (No CH 2-50-R) 84 IBLA 371, January 25, 1985 in support of the proposition that once an administrative action is instituted, only the Director (or his administrative law judge) has jurisdiction over a disputed NOV or CO. Accordingly, the Division of Reclamation would be precluded from vacating an NOV or CO. The court in Gateway determined that where an action was pending before a federal administrative law judge, OSM lost jurisdiction to vacate the Notice of Violation at issue in the administrative action. Implicit to Fossil's argument is that the federal administrative law judge should here be analogized to an Indiana administrative law judge; and the Office of Surface Mining should be analogized to the Division of Reclamation. The analogy is reasonable, if not compelling. In any event, there are important factual distinctions between Gateway and the NOV's and CO's at issue in the four instant administrative actions. The Gateway decision was tied to judicial concern for the protection of a third-party (intervenor), an occupant of a dwelling adjacent to the mine site, who objected to the vacation. The

 

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instant administrative actions involve exclusively Fossil (the permittee) and the Department. Probably a more critical distinction is found in the emphasis placed by the Gateway court on a well-established declared federal agency policy stating that once an appeal is taken, jurisdiction over a particular matter rests exclusively in the appellate body: ". . .For a considerable period of time it has been the declared policy of the Department [of the Interior] that when an appeal is taken from the decision of one of its offices, that office loses jurisdiction of the matter until that jurisdiction is restored by disposition of the appeal of the appellate body. . .This policy was extended to cases involving appeals from decisions issued by OSM in one of the earliest cases decided by the Interior Board of Surface Mining Appeals. . . ." [Citations omitted. Gateway at 84 IBLA 374 and 375.] There is so similar policy of the Indiana Department of Natural Resources. The concept recognized in Gateway is not without merit. The orderly disposition of disputes would be promoted, parties would be better apprised of the status of an individual case, and the Division of Reclamation would not be unduly burdened. The concept should be applied only following a clear policy declaration by the Director, or preferably through rule promulgation, and should exclusively be given prospective application. The Gateway decision cannot appropriately negate the actions by the Division of Reclamation in the instant actions.

iv. See by way of illustration Tennessee v. Champion International Corp. (1985), 22 ERC 1338, Tenn., App., which constructed the Clean Water Act (33 U.S.C. section 1251, et seq.). There the court rejected the proposition that Congress intended to preempt state law with the scheme providing for a National Pollutant Discharge Elimination Systems (NPDES) permit. With reasoning analogous to SMCRA, the court concluded: "We find nothing in the CWA to remotely suggest that Congress intended to preempt the states' prerogatives in the field of water pollution. In fact, the opposite is true. The states are invited, and we think encourage, to adopt water quality standards more stringent than those set by the Federal Government under the act."

v. In its Reply Brief the Department urges that reference in the Interim Program NOV to Item 14 of the Plan of Reclamation forms, in itself, a sufficient basis to support a violation. A difficult question is presented as to whether a term within a plan of reclamation, which is not authorized by the statutory structure creating a regulatory program, may be enforced under that statutory structure. The question need not be addressed here, since 30 CFR 715.13 established a proper foundation for issuance of the Interim Program NOV.

vi. Fossil argues in its Brief that the Two Cessation Orders here at issue were entered by the Department in violation of IC 4-22-1-5. Although a journey through the administrative adjudication act is a wondrous expedition, guaranteed to dismay even the most seasoned traveler, it is thought this argument is misdirected. Fossil presents no evidence that the issuance of either Cessation Order has caused the company to do anything to its detriment, nor does Fossil show prejudice of any manner caused by issuance of these COs. The hearing requests made by Fossil have resulted in actions against the company to be held in abeyance pending completion of the hearing process and a final order by the Director. Presumably, the hearing requests have, in essence, served as stays against further agency action. Once the hearing process is completed, he issue becomes moot. In any event, if IC 13-4.1 contains a process not recognized under the administrative adjudication act, IC 13-4.1 must control. IC 13-4.1 is the more recent and more specific enactment, and under general principles of statutory construction would prevail, even assuming some conflict with IC 4-22-1.

vii. Fossil urges in its Brief that the Interim Program CO "should be vacated" because the company was "not given a reasonable time to abate" the Interim Program NOV. What is reasonable is ordinarily a factual question and not subject to resolution upon summary decision. To be noted is that both parties have agreed to a determination of the instant actions upon summary decisions. While circumstances might exist under which an abatement period is unreasonable

 

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as a matter of law, those circumstances have not been established with respect to the Interim Program NOV and the Interim Program CO. Neither can it be said, however, that the abatement period has been shown to be reasonable as matter of law. If Fossil wishes to request a hearing to determine the reasonableness of the abatement period stated in the Interim Program NOV, that request should be made within the period provided for objections, and a hearing will be granted. Fossil contends that failure by the Department to provide a hearing opportunity on the abatement period prior to issuance of the CO is a fatal flaw to its issuance. According to Fossil, the Department's "Issuance of its Orders which were final orders as to the time for abatement were issued without notice and an opportunity to be heard" are granted with respect to the NOV. A person aggrieved by the period set for abatement in the NOV may request a hearing on the NOV and secure a modification of the abatement period. See by way of illustration Jaeco, Inc. v. Department of Natural Resources, Division of Reclamation, Administrative Cause Number 85-206R (January 10, 1986) where an extension of the abatement period set forth in an NOV was provided by final order of the Director.

 

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[NOTE: CADDNAR citation does not apply below this line.]

 

[NOTE: THIS CASE WAS AFFIRMED ON JUDICIAL REVIEW BY THE MARION CIRCUIT COURT ON MARCH 21, 1986. THE FINDINGS AND ORDER OF THAT COURT FOLLOW:]

FINDINGS OF FACT

 

1. On March 21, 1986, Defendant issued his final order in Cause Nos. 85-102R, 85-145R and 85-150R, sustaining the Notices of Violation (NOV) and Cessation Orders (CO) issued by the Department under the Surface Mining Law. This order was issued as a result of the parties' stipulation that the consolidated cases be submitted for decisions by Motions for Summary Decision without a hearing being held. The Motions were submitted to Stephen L. Lucas, Hearing Officer, and after Plaintiff's objections to his proposed order were submitted, the Director issued his final order, all pursuant to the Administrative Ajudication Act.

 

2. Plaintiff's petition for judicial Attachment: review of said alleges that said order is not in accordance with the law and is an abuse of administrative discretion; and that as to one of the Cessation Orders, the facts do not show a reasonable time for abatement. In support thereof, he alleges the following reasons:

 

1. Defendant's decisions on the NOVs and COs are not in accordance with the law and or otherwise an abuse of administrative discretion in that the Defendant erroneously held that:

 

a) a field inspector for the Department may at any time and without notice to Plaintiff remove from Defendant subject matter jurisdiction over a matter undergoing administrative review pursuant to IC 13-5.1-11-8 and IC 4-22-1, et seq.; and that

b) it is lawful for an NOV to be written to include subject matter which is already undergoing administrative review in another matter; and that

c) an NOV may be written based upon a law not otherwise authorized by CFR 732.17(g); and that

d) the provisions of IC 4-22-1-5 are discretionary and that Plaintiff to claim relief must show actual prejudice.

 

2. Defendant's decision in CO #C50412-81-122 was given is not supported by the facts as presented in that the field inspector for the Department presented inconsistent written statements concerning the length of time for abatement.

 

3. With regard to Plaintiff's contention 1.a, the record reflects that the Department inspector vacated an NOV which was undergoing administrative review. The Court finds that the Department is not deprived of jurisdiction to vacate a Notice of Violation or Cessation Order because of the pendency of an action under the Administrative Attachment: Adjudication Act (IC 4-22-1) regarding that Notice of Violation or Cessation Order. The inspector's vacation of an NOV does not remove jurisdiction from the reviewing official (the Director), since the inspector is the Director's authorized representative under IC 13-4.1-11 and IC 13-4.1-2-2, nor does it remove jurisdiction from the Administrative Law Judge, since under IC 4-22-1 the Administrative Law Judge makes recommendations to the Director. The Court further finds that this allocation of functions under state law does not render the Indiana Surface Mining Law inconsistent with the Federal Surface Mining Law.

 

4. With regard to Plaintiff's contention 1.b, the Court finds that each day in violation of IC 13-4.1 constitutes a separate violation of the Act. That a new NOV issued for a violation of IC 13-4.1, which was also cited on a previous date, does not in itself make the new notice of violation invalid.

 

5. With regard to Plaintiff's contention 1.c, the Court finds that IC 13-3-6-1.6 does not interfere with the achievement of the purposes and requirements of the Federal Program. This being the case, the Federal Program does not supersede the State Program (under 30 USCA sec. 1254 (g); IC 13-4-6-1.6 was enforced by the Department on April 12, 1986, the date on the record on which the NOV in question was written.

 

6. With regard to Plaintiff's contention 1.d, the Court finds that, as to the COs issued, the application for review process of IC 13-4.1-11 results in issuance of a final order by the Director. The record reflects that Plaintiff had notice and opportunity to be heard prior to Attachment: issuance of the final order by the Director.

 

7. With regard to Plaintiff's contention 2, the Court finds that the record discloses Plaintiff failed to request a hearing on the issue of the reasonableness of the time granted by the Department to abate the violation in cause No. 85-103R. Plaintiff thus failed to exhaust administrative remedies as required, and cannot now seek judicial review of this issue. Conclusion of Law:

 

The Court finds that:

 

1. Defendant did not act in a arbitrary, or capricious manner.

 

2. The decision was not contrary to any constitutional rights of Plaintiff.

 

3. The decision was not in excess of any statutory jurisdiction.

 

4. That proceedings were duly observed.

 

5. That the decision is supported by the evidence.

 

6. That the law is with Defendant. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Findings and Conclusions of the Defendant in 85-102R, 85-103R, 85-145R and 85-150R are sustained.