Notice of Violation N81118-S-00118 is affirmed.
FINDINGS OF FACT
1. On December 27, 1988, the Claimant, Jaeco, Inc. requested review of Notice of Violation (NOV) N81118-S-00118.
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. Mike Yarling, an authorized representative of the Director, issued the NOV involved in this action.
6. The NOV cites Jaeco for failure to keep mining activities on the permitted and bonded areas. Specifically mentioned are bond Segment U and areas north and east of bond segment U.
7. The Department alleges that bond segment U was un-approved at the time the NOV was written; and that the areas cited north and east of bond segment U were the property of Marshall Nuckolls and were not approved for mining.
8. In its petition Jaeco argued that this NOV is identical to Part 1 of NOV N81024-S-00118; and therefore, should not have been written.
9. At hearing, evidence was presented in the form of a Jaeco bond map that proved that the area involved here is different from the area cited in NOV N81024-S-00118.
10. At hearing, Jaeco president Jeff Major testified that he submitted his bond segment U on November 8, 1988.
11. Mr. Major stated that since bonds are normally approved in 1-10 days he waited ten days and began grubbing bond segment U on November 18, 1988.
12. The NOV in question was written on November 18, 1988 and was terminated on November 23, 1988 with the statement that bond was approved at 4:00 p.m. on November 22, 1988.
13. Since Jaeco was conducting mining activities on bond segment U on November 18, 1988 and the bond was not approved until November 22, 1988, it is obvious that this violation took place as to bond segment U.
14. The evidence does not support the charge of conducting mining activities on Marshall Nuckoll's property.
15. The only evidence supporting that charge is a fallen tree and two dozer tracks.
16. A fallen tree is not mining activity on Nuckoll's property as the tree was felled on bond segment U.
17. In addition, no Jaeco dozer was seen on the Nuckolls property.
18. However, the mining on bond segment U prior to bond approval is enough to support this NOV.