CADDNAR

[CITE: Buckhorn Processing, Inc. v. DNR, 3 CADDNAR 56 (1985)]

 

[VOLUME 3, PAGE 56]

 

 

Cause #: 85-170R

Caption: Buckhorn Processing, Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Hargis; Szostek, DAG  

Date: September 25, 1985

ORDER

 

Notice of Violation #N50625 is vacated.

FINDINGS OF FACT

 

1. On July 23, 1985 pursuant to IC 13-4.1 and 310 IAC 12, Buckhorn Processing, Inc. Filed a request for review of Notice of Violation #N50625 and a request for Temporary Relief from the Notice of Violation pending the Director of the Department of Natural Resource's final determination on review of the Notice of Violation.

 

2. IC 13-4.1, the Surface Coal Mining Reclamation Act, is applicable to this proceeding.

 

3. 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 and parties to this administrative action.

 

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

 

5. On July 29, 1985, a hearing was conducted pursuant to IC 4-22-1 and IC 13-4.1-11-8(e) on the request for Temporary Relief.

 

6. The parties have stipulated that the record formed at the Temporary Relief Hearing be used for purposes of this administrative determination.

 

7. Notice of Hearing was given by certified mail to: Mr. John A. Hargis, Wagoner, Ayer & Hargis, 104 South Third Street, Rockport, Indiana 47635 and Mr. Don Foertsch, Resident Agent, Buckhorn Processing, Inc., PO Box 16, Lamar, Indiana 47750.

 

8. Notice of Hearing was also given to: Mr. Steven J. Szostek, Deputy Attorney General, 309 West Washington Street, Suite 201, Indianapolis, Indiana 46204 and Ms. Phyllis Small, Spencer County Recorder, Courthouse, Rockport, Indiana 47635.

 

9. IC 13-4.1-3-1 requires any person who opens, develops, or operates a new or previously existing surface coal mining operation to obtain a permit prior to conduction those operations.

 

10. IC 13-4.1-1-3(12) defines a surface coal mining operations as "activities conducted on the surface of the land in connection with a surface coal mine. Those activities include. . the cleaning, concentrating or other processing or preparation, loading of coal for interstate commerce at or near the mine site. . ."

 

11. The modifying phrase "at or near the mine site" only modifies loading of coal, not processing of coal.[FOOTNOTE 1]

 

12. Buckhorn began washing coal at this location in May or June of 1985.

 

13. The washing operations being conducted by Buckhorn at this location includes a water tank, two water pumps, a coal dryer, five cyclones, a crusher, screens and four sediment ponds.

 

14. In the wash plant, crushed coal is fed into the washer drops through and part is collected in the water tanks for reuse. Cyclones take the fines out of the coal and other impurities removed from the coal in the washing process are conveyed out of the wash plant and dumped on the ground. Very fine coal and some sulfur waters are discharged into the sediment pond.

 

15. The activities being conducted by Buckhorn Processing include the cleaning, concentrating or other processing or preparation of coal.

 

16. The Buckhorn washing plant processes raw coal, from mines owned by Foertsch Construction, Parke Coal, Warrick Coal Company, Dyer Enterprises, Delta Mining, Marigold Mining, and Ureka Mining.

 

17. The Buckhorn Processing Operations is located behind the mine office for the Foertsch Mine, which is being mined by its subcontractor, Green Ridge.

 

18. All of the coal mined at the Foertsch, Green Ridge Mine is processed at the

 

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Buckhorn Processing facility.

 

19. The Buckhorn Processing facility is being operated in connection with a Surface Coal Mine.

 

20. On June 25, 1985 an authorized representative of the Director issued a Notice of Violation to Buckhorn for processing coal in Spencer County without a valid permit, in violation of 310 IAC 12-3-104.

 

21. The Notice of Violation was issued pursuant to 310 IAC 12-6-6.

 

22. The Notice of Violation, as modified on July 28, 1985, required Buckhorn cease its washing plant operation, submit an application for a processing permit and obtain an approved processing permit by September 24, 1985.

 

23. [Finding 23 was omitted from the original document.]

 

24. 310 IAC 12-6-6, for the Notice of Violation, and 310 IAC 12-6-5, for Cessation Orders, requires the document specify the remedial action, or affirmative obligation required, if any, including interim steps, if appropriate.

 

25. It is not proper to specify a date for obtaining a permit as a remedial action of affirmative obligation, as the time for obtaining a permit is controlled by law.

 

26. A Cessation Order, not a Notice of Violation should have been issued for this violation.

 

27. IC 13-4.1-11-7 provides that the Director may modify, vacate or terminate any notice or order issued pursuant to IC 13-4.1-11.[FOOTNOTE 2]


FOOTNOTES

 

1. See In Re: Permanent Surface Mining Regulation Litigation, Civil Action No. 70-1144 (Slip Op. At 51-53) (D.D.C. May 16, 1980)

2. I do not believe it is proper to modify a Notice of Violation into a Cessation Order. I do believe a Cessation Order can be written for the same factual situation after a Notice of Violation is vacated, if the violation still exists.