[CITE: Warrick County Coal Corp., v. Dept. of Natural Resources, 5 CADDNAR
174 (1990)]
[VOLUME 5, PAGE 174]
Cause #: 89-044R
Caption: Warrick County Coal
Corp., v. Dept. of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Tyler; Law
Date: December 6, 1990
[NOTE: ON FEBRUARY 21, 1991, JUDICIAL REVIEW WAS TAKEN IN WARRICK COUNTY
COAL CORP. v. DEPT. OF NATURAL RESOURCES, IN THE WARRICK CIRCUIT COURT, (87C0l-9102-CP84).
ON APRIL 3, 1991CHANGE OF VENUE TO PIKE CIRCUIT COURT WAS GRANTED (63C01-9112-CP-230).
FOR THE PURPOSE OF THIS ENTRY, THIS CASE IS PRESUMED DISMISSED.]
ORDER
In Cause Number 89-044R, Notice of Violation N90309-S-00223 is affirmed. In
Cause Number 89-067R, Cessation Order C90410-S-00023 is affirmed.
FINDINGS OF FACT:
1. The Department of Natural Resources (DNR) is an agency within the meaning of IC 4-21-5.
2. The Natural Resources Commission (NRC) is the ultimate authority over administrative appeals of DNR agency actions.
3. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
4. At all times relevant to these proceedings Warrick County Coal Corporation (Warrick) held surface coal mining permit number S-00223.
5. The DNR and NRC are responsible for the regulation of surface coal mining in Indiana and the Division of Reclamation (DOR) is the unit within the DNR which is responsible for inspection and enforcement.
6. On March 9, 1989, a DOR inspector reviewed Warrick's blasting records and issued Notice of Violation (NOV) N90309-S-00223.
7. The NOV asserted that Warrick failed to publish a blasting schedule at least 10 days but not more than 30 days before beginning a blasting program.
8. The NOV also asserted that Warrick failed to distribute copies of its blasting schedule as required by law.
9. The NOV also asserted that Warrick failed to notify all residents within 1/2 mile of the permit area how to request a pre-blasting survey at least 30 days before initiation of blasting.
10. The NOV required the proper notices and publications to be given within the legal time frames prior to the resumption or commencement of blasting.
11. On April 10, 1989, the same DOR inspector revisited Warrick; and after examining the blasting records, issued cessation order (CO) C90418-S-00223.
12. The CO was issued for failing to abate the NOV. The CO was based on records showing blasts on March 14, March 17, and April 6, 1989. On these dates, the NOV had not been abated.
13. By the date of the April 10 inspection, the NOV had been properly abated and the inspector terminated the CO on the same day it was issued.
14. Timely requests for administrative review were filed by Warrick on both the NOV and the CO.
15. The briefs filed in this matter indicate there is no dispute of material facts and that summary judgment may be rendered under IC 4-21.5-3-23.
16. 310 IAC 12-5-35 requires an operator to publish a blasting schedule at least ten days and no more than 30 days before beginning a blasting program.
17. 310 IAC 12-5-35 also requires an operator to distribute copies of the blasting schedule to units of local government, public utilities, and residents within 1/2 mile of the proposed blasting area.
18. 310 IAC 12-5-34 requires an operator to notify residents within 1/2 mile of the permit area how to request a pre-blast survey. This notification must take place at least 30 days before blasting commences.
19. Warrick published its blasting schedule on February 8, 1989.
20. Warrick commenced blasting on February 2, 1989.
21. The mine conducted 5 blasts between February 2, 1989, and March 4, 1989.
22. No evidence was found by the inspector or produced by the mine to show written notices of the blasting schedule or the right to a pre-blast survey were mailed to nearby residents. Additionally, several complaints were received by citizens stating they had not been notified of either the blasting schedule or the pre-blast survey.
23. Documents filed by Warrick do not dispute the facts in paragraphs 19 through 22 above.
24. Accordingly, the conclusion drawn is that NOV N90309-S-00223 was properly issued and should be affirmed.
25. Between the March 9, 1989,
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inspection and the April 10, 1989, inspection, the mine conducted three more blasts, those being March 14, March 17, and April 6, 1989.
26. The NOV required residents to be notified of the blasting schedule and their rights to pre-blast surveys.
27. Records of the mine showed all notices were received as of March 13, 1989. The surveys were completed on April 8, 1989.
28. The NOV specified that blasting was not to resume until 30 days after notice was given to the residents.
29. Warrick conducted three blasts prior to 30 days after notice of how to request a pre-blast survey.
30. This is both a violation of the surface mining rules (310 IAC 12-5-34) and the abatement action for the NOV.
31. By the April 10, 1989, inspection date, 30 days had run from the mailing of notices and surveys had been completed.
32. The CO was properly terminated on that date.
33. The mine contends that a CO should not have been issued; that the appropriate enforcement action is to issue another NOV.
34. IC 13-4.1-115(a) provides that in the event a permittee has not abated a violation within the time specified, an inspector shall issue an order of cessation dealing with the portion of surface mining relevant to the conditions.
35. Warrick correctly contends that on April 10, 1989, the NOV had been abated and thus the mine was no longer in violation.
36. The CO, while written on April 10, 1989, does not allege violations on that date. It alleges improper actions (blasting) on March 14, March 17, and April 6, 1989.
37. Without doubt, blasts on March 14 and March 17, 1989, were violations of the abatement order in the NOV.
38. Warrick conducted two blasts within eight days of being given an NOV and told not to blast until 310 IAC 12-5-34 was satisfied, an action which would take one month.
39. Under those circumstances IC 13-4.1-11-5(a) and 310 IAC 12-6-5(b)(1) mandate a CO be issued for the March 14, and March 17 blasts.
40. In accord is the case of Warrick County Coal Corp. v. DNR, (89-174R) decided by the NRC at the October 1990, NRC meeting.
41. In 89-174R, the mine blasted outside the times specified in its approved schedule. An NOV was issued. After the NOV was issued, another blast was conducted outside the approved time. The inspector issued a CO and the NRC affirmed its issuance.
42. For those reasons, the issuance of
cessation order C90410-S-00023 should be affirmed.