CADDNAR

[CITE: Fossil F. Mining, Inc. v. DNR, 3 CADDNAR 48 (1985)]

 

[VOLUME 3, PAGE 48]

 

Cause #: 85-142R

Caption: Fossil F. Mining, Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Conlon; Szostek, DAG  

Date: June 21, 1985

ORDER

 

[NOTE: THE UNDERLYING CESSATION ORDERS ARE THE SUBJECT OF 85-102R. ANOTHER RELATED ACTION IS 85-146R.]


Temporary relief from Cessation Order #C50603-S-00053 is denied. Temporary relief from Cessation Order #C50603-81-122 is denied.


FINDINGS OF FACT

 

1. The Department of Natural Resources is an agency as the term is defined in IC 4-22-1. The Director is the ultimate authority of the Department with respect to the subject matter of this administrative action.

 

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

 

3. The Director may delegate any or all powers and duties assigned to him under IC 13-4.1 to other employees of the Department of Natural Resources.

 

4. Sue A. Shadley is an employee of the Department of Natural Resources.

 

5. By letter dated June 114, 1985, Fossil Fuels Mining, Inc. ("Fossil Fuels") requested temporary relief from Notice of Violation #N50412-S-00053 and #N50412-81-122, from Cessation Orders #C50603-S-00053 and #C50603-81-122.

 

6. By written entry dated June 17, 1985, the Director delegated to Sue Shadley the power to grant or deny the temporary relief requested by Fossil Fuels.

 

7. On June 21, 1985 an administrative hearing was conducted pursuant to IC 4-22-1 on these requests for temporary relief in Room 601A of the State Office Building, 100 North Senate Avenue, Indianapolis, Indiana.

 

8. Fossil Fuels holds permits #S-00053 and #81-122 to conduct surface coal mining operations, at its Castle Hill mine located in Greene County, Indiana, pursuant to IC 13-4.1, 310 IAC 12 and IC 13-4-6.

 

9. Notice of Violation #N50412-S-00053 was issued by Shirley Adkins, an authorized representative of the Director, to Fossil Fuels and required it construct a terrace to the south of the northern edge of bond segment B to direct runoff Basin #10 by 8:00 a.m. Wednesday May 15, 1985.

 

10. On June 3, 1985 Cessation Order #C50603-S-00053 was issued to Fossil Fuels, by Shirley Adkins, an authorized representative of the Director, pursuant to 310 IAC 12-6-5, for failure to abate Notice of Violation #N50412-S-00053.

 

11. Notice of Violation #N50412-81-122 was issued by Shirley Adkins,, an authorized representative of the Director, to Fossil Fuels and required it

 

(1) to replace and grade soils to proper depth by 8:00 a.m. Wednesday May 1, 1985,

(2) reshape and mulch and seed eroded terrace by May 1, 1985, and stake hay bales in it until stabilized and

(3) seed with permanent vegetative species, mulch and fertilize as per plan of reclamation items 21-23 by 8:00 a.m. Wednesday May 15, 1985.

 

12. On June 3, 1985 Cessation Order #C50603-81-122 was issued by Shirley Adkins, an authorized representative of the Director, to Fossil Fuels pursuant to 310 IAC 12-6-5 for failure to abate Notice of Violation #N50412-81-122.

 

13. As of June 21, 1985, the date of the temporary relief hearing, Cessation Order #C50603-S-00053 and #C50603-81-122 had been terminated.

 

14. 310 IAC 12-6-5 provides that an authorized representative of the Director shall terminate a Cessation Order by written notice when she determines that steps necessary to abate the violations covered by the order have been completed.

 

15. Since the Cessation Orders have been terminated, the actions necessary to abate the Notice of Violation have been completed.

 

16. 310 IAC 12-6-13 provides that a minimum civil penalty of $750 per day shall be assessed for each day during which a failure to abate Cessation order continues.

 

17. As of June 21, 1985, the date of the temporary relief hearing, no civil penalty was continuing to accumulate on the Cessation Orders.

 

18. IC 13-4-1-11-8(e) provides that pending completion of the

 

[VOLUME 3, PAGE 49]

 

investigation and hearing required by subsection (a), the applicant may file with the Director a request that the Director grant temporary relief from any notice or order issued under this chapter.

 

19. IC 13-4.1-11-8(e) provides that the Director may grant temporary relief, under such conditions as he may prescribe.

 

20. Temporary Relief is relief to be given to the applicant, only until the Director has completed the investigation and review on the appropriateness of the notice or order, and made his final determination whether or not the notice or order should be affirmed, modified or vacated.

 

21. There is no form of temporary relief to grant where there is no outstanding order requiring the applicant either do or refrain from doing some action and where there is no civil penalty continuing to accumulate.

 

22. Vacation of a notice or order is not a type of relief properly granted as a temporary measure pending completion of the investigation and hearing on the notice order.[FOOTNOTE 1]

FOOTNOTE:


1. Fossil argues that the Federal Office of Surface Mining has held that vacation of an order is a proper form of temporary relief. Fossil cites to Cravat Coal Company 2 IBSMA 136 (1980). Those cases deal with the federal procedural rules; those same procedural rules do not apply in Indiana. Additionally those cases merely stand for the proposition that it is possible to consolidate the hearings on temporary relief and permanent relief, not that vacation of an order is a form o f temporary relief. Vacation of a notice or order is clearly a form of permanent relief. Further, it is the officer presiding at the hearing who determines what the subject matter of the hearing is, and the notice in this hearing was clearly notice of a hearing to determine if temporary relief should be granted, not permanent relief. Fossil also argues that Indiana's program would be consistent with the federal law, if vacation of an order was not available as a form of temporary relief, and would have to fall due to federal supremacy. Even if Fossil's reading of the federal cases on temporary relief was correct, it does not follow that Indiana's [program would be considered inconsistent with the federal rules simply because its administrative hearing rules were different than the federal rules. OSM approved Indiana's program on July 29, 1982, without any procedural rules, which it initiated on its own, not as a result of a required state program amendment. Those rules are not identical to the Federal Rules, nor impose or require identical conduct to that in OSM's rules, yet OSM has found them approvable. Therefore, it apparently is not necessary for a state's administrative hearing rules to be the same for the state's program to be consistent with the federal rules.