[CITE: Solar Sources, Inc., v. DNR, DOR, 4
CADDNAR 60 (1988)]
[VOLUME 4, PAGE 60]
Cause #: 87-019R
Caption: Solar Sources, Inc.,
v DNR, DOR
Administrative Law Judge: Drew
Attorneys: Runnells; Szostek, DAG
Date: January 26, 1988
ORDER
Notice
of Violation #N70304-S-00109 is vacated.
FINDINGS OF FACT
1.
On March 31, 1987, Solar Sources, Inc. (The "Claimant") requested
administrative review regarding the issuance of Notice of Violation
#N70304-S-00109.
2.
IC 4-22-1 and IC 1 3-4.1-11-8 (The Surface Coal Mining Act) apply to this
proceeding.
3.
The Department of Natural Resources (the "Department") is an agency
as defined in IC 4-22-1. The Director is the ultimate authority for the
Department with respect to this proceeding.
4.
The Director has jurisdiction over the subject matter and the parties to this
action.
5.
Notice of hearing was given to: Mary M. Runnells, Attorney for Solar Sources; Felson Bowman, Resident Agent; Steven Szostek,
Deputy Attorney General; Elizabeth Holder, Warrick County Recorder.
6.
On May, 1987, a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1, and 310
IAC 0.5.
7.
The Claimant holds permit S-00109 to conduct surface coal mining activities in
Warrick County, Indiana at its Pit # 17.
8.
On March 4, 1987, an authorized representative of the Director cited Claimant
with Notice of Violation #N70304-S-00109 for failure to reclaim the affected
area to the approved postmining land use or obtain
approval for an alternate use in violation of 310 IAC 12-5-68(A)(1) and (2),
(c)(2) and (4).
9.
The affected area involves 9.6 acres of non-prime farmland on property owned by
Enos Wagler and permitted
to the Claimant under permit S-00109. According to the permit, the affected
area is to be reclaimed in pasture and hay.
10.
During an inspection conducted by Respondent on November 18, 1986, five turkey
barns were observed in various stages of construction on the area in question.
The inspector was then informed by the landowner's wife that the affected area
had been sold to Mr. Denny Hughes.[FOOTNOTE 1].
11. As
of November 18, 1987, Claimant had not submitted a request for a postmining land use change in accordance with 310 IAC
12-5-68.
12.
Monthly inspection reports between November, 1986 and February, 1987, commented
on the progress of the barns' construction and Claimant's progress toward
filing its request for a postmining land use change.
The February inspection report gave claimant until the 27th to file all
necessary paperwork.
13.
On March 4, 1987, Respondent issued Notice of Violation #N70304-S-00109 citing
Claimant with failing to obtain approval for a postmining
land use change.
14.
Claimant does not contend that construction of the barns on the affected area
does not require conformance to 310 IAC 12-5-68. Claimant does contend,
however, the issuance of the Notice of Violation was premature.
15. It
is uncontroverted that Claimant was unaware of the affected area's change in
ownership or the construction of the turkey barns until it received
Respondent's November 18, inspection report.[FOOTNOTE 2]
16.
After receiving the November inspection report, Claimant notified Mr. Hughes
that a request for a postmining land use change was
required and listed all the information Claimant believed necessary to complete
the request.[FOOTNOTE 3].
17.
Between November and March, Claimant and Respondent conversed several times
regarding the status of Claimant's postmining land
use change request. Respondent was also informed of Claimant's ongoing problems
in contacting Hughes and obtaining the proper information from him.[FOOTNOTE 4]
18.
No evidence was presented showing environmental harm resulted from the change
in land use on the affected area. In fact, Respondent allowed Claimant several
extensions (until April 20, 1987) for filing its request.
19.
310 IAC 12-4-7 (e) states:
(e)
The bond liability of the permittee shall include
only those actions which the operator is obliged to take under the permit.
Actions of third parties which are beyond the control of the operator and for
which the operator is not responsible under the permit need not be covered by
the bond.
20.
As
[VOLUME 4, PAGE 61]
previously noted, there is no
disagreement between the parties that Claimant was without knowledge of the
eventual purchase and land use change of the affected area. Neither has any
evidence been presented which would show Claimant had any control over the
actions of the third party (in this case, Mr. Hughes and the Perdue-Shenandoah
Corporation).
21.
Claimant, at the time the Notice of Violation was issued, had not requested a
bond release for the area in question.
22.
At the hearing, Respondent's representative testified that requests for bond
release may be denied id a specified land use has not been met, as opposed to
issuing a Notice of Violation.[FOOTNOTE 5]
23.
Claimant was in the process of preparing all necessary documentation to
complete its request to Respondent for a postmining
land use change and Respondent was kept informed of its progress. There is no
evidence that any environmental problems occurred on the affected area nor was
Claimant in a position to control the actions of the third party.
FOOTNOTES
1. The property was actually sold on November 10, 1986, to Double H & T,
Inc., a company on contract with the Perdue-Shenandoah Corporation of which Mr.
Hughes is the housing manager.
2. George Boyles, Reclamation Manager for Claimant, testified that he visited
the site on November 8 and noted that the site was being properly vegetated and
proceeding according to the reclamation plans.
3. Claimant's representative, George Boyles, testified that he believed it was
his responsibility to complete the necessary documentation and it was Hughes'
responsibility to supply the appropriate information.
4. Testimony given at the hearing indicated Hughes was seldom in his office.
Testimony also revealed that Hughes had difficulty in locating certain
documents or sent to Boyles incomplete information.
5. Claimant contends that the Notice of Violation was prematurely written
because Claimant had yet to ask for a bond release on the affected area. Once
that occurred, then Respondent would have been free to deny its request based
upon Claimant's failure to reclaim the area in accordance with the permit.
Claimant therefore contends that Respondent acted prematurely by issuing the
Notice of Violation before Claimant even asked for a bond release. Claimant's
argument implies that in a situation such as this,
where a land use change has occurred without the proper approval of the
regulating authority, the issuance of a Notice of Violation is inappropriate
and the regulating authority must consequently suspend any action it would
normally take until a bond release has been requested. This should not be the
case, nor should this recommendation be so constructed. However, within the
narrow parameters of this particular cause, where there has been no showing of
nay negative environmental impact, where numerous time extensions were granted
by the regulating authority and, in fact, where several months passed before a
Notice of Violation was issued and where the Claimant was without knowledge or
control of a third party's actions, all those factors combine to indicate the
Notice of Violation was prematurely issued.