Notice of Violation N81024-S-00118 parts one through four is affirmed.
FINDINGS OF FACT
1. On November 2, 1988, Jaeco, Inc., the Claimant, filed a request for review of Notice of Violation (NOV) N81024-S-00118, all four parts.
2. Jaeco holds permit S-00118 to conduct surface mining operations in Clay County at its Eel River Mine.
3. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
4. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Director is the ultimate authority for the Department with respect to this proceeding.
5. Charles Armbrust, an authorized representative of the Director, issued the NOV involved in this action.
6. The subject NOV's four parts are as follows:
a. Part One- failure to conduct mining operations outside of the right-of-way of County Road 141 South.
b. Part Two- failure to keep mining activities 300 feet from an occupied dwelling.
c. Part Three- failure to keep mining activities on the permitted and bonded areas. d. Part Four- failure to protect topsoil stock piles from wind and water erosion.
7. Both parties filed motions for summary judgment as to part one.
8. Jaeco admitted to mining in the right-of-way but maintained that it had permission of the Director and of the Clay County Commissioners.
9. The Department presented the part of the Jaeco permit (Part II A (4)(b)(iv)) which pertains to conducting operations in the right-of-way of a public road.
10. This part of Jaeco's permit is marked NA for "not applicable."
11. Therefore, conducting mining operations in the right-of-way of County Road 141 South was not approved and was a violation of permit conditions.
12. Based on the above, the Department was granted Summary Judgment on part one on February 20, 1989.
13. A hearing was held on parts two through four on July 11, 1989.
14. At the hearing the inspector testified that Jaeco was conducting mining activities within 296 feet of the Robert Chaffee residence and within 152 feet of the Bob Chaffee residence.
15. In 310 IAC 12-2-1(e) it is specified that no surface coal mining shall be conducted within 300 feet of an occupied dwelling without a written waiver from the dwelling owner.
16. Jaeco argues that the Department must prove no waiver was obtained.
17. That argument is incorrect. The Department must show, which it did, that mining took place within 300 feet of an occupied dwelling. The burden then shifts to the Coal Company to produce the required waiver.
18. In this case Jaeco produced no written waiver.
19. Jaeco next argues that the inspector gave it permission to move stockpiles off the bonded area which placed them within 296 feet of the Robert Chaffee dwelling.
20. The inspector testified that he gave such permission to save topsoil that would otherwise be lost.
21. Since this permission was given it would tend to excuse the violation except for the fact that the highwall was also within 300 feet of the Bob Chaffee dwelling.
22. This placing of the highwall would tend to show that Jaeco had mined within 300 feet of an occupied dwelling regardless of what was said or done in relation to the stockpiles.
23. Here Jaeco is charged with mining west of the approved permitted area (west of bond segments N, K, J-Z) and in the office location on the former Everett Sams property, north and east of bond segments G, Q, R, P and M.
24. Jaeco argues that the inspector gave them
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permission to place stockpiles off the bonded area. This is correct. If those stockpiles were the only part of the mining operation off the bonded area, Jaeco would prevail.
25. Evidence at the hearing (aerial photo with bond map overlay) showed substantial other disturbance off the bonded area.
26. In addition, it appears that Jaeco parks its heavy equipment off the bonded and/or permitted area.
27. The act of driving the heavy equipment is incidental to coal mining and areas where that driving takes place must be permitted. Peabody Coal Company v. Ridenour, (1987) Ind., 515 NE.2d 1163.
28. Either the aerial photo or the act of parking heavy equipment off the permitted and/or bonded area is enough to support this part of the NOV.
29. This violation alleges failure to seed and mulch topsoil stockpiles on the east edge of the affected area, east of the western pit, and the pile up the western edge of the affected area.
30. Evidence shows that none of the stockpiles were seeded and mulched so as to protect against erosion.
31. This seeding and mulching need be done only when the stockpile becomes inactive.
32. Jaeco argues that the stockpiles were active.
33. Testimony at the hearing was contradictory with Greg Gordon and Chuck Armbrust disagreeing. However, it appears that at least some of the stockpiles were probably active.
34. The Department points out in its posthearing brief that in its pleadings Jaeco states that "Most of the said stockpiles were active therefore were not ready for mulch and/or seeding."
35. Since none of the stockpiles were protected and in its pleadings Jaeco states "most ...were active ..." there must have been at least one that was inactive and should have been protected.
36. It takes only that one unprotected, inactive stockpile to uphold this part of the NOV.