[CITE: United Minerals v. DNR, 5 CADDNAR 160 (1990)]
[VOLUME 5, PAGE 160]
Cause #: 90-036R
Caption: United Minerals v.
DNR
Administrative Law Judge: Rider
Attorneys: Hargis; Law
Date: November 9, 1990
ORDER
United
Minerals, Inc.'s Motion for Summary Judgment is denied. The Department of
Natural Resources Crossmotion for Summary Judgment is
granted, and Notice of Violation N00216-S-00173 is affirmed.
FINDINGS OF FACT
1.
On March 14, 1990, United Minerals, Inc. (United) filed a request for review of
notice of violation (NOV) N00216-S-00173.
2.
United holds permit S-00173 to conduct surface mining operations in Daviess
County at its Blessinger Mine.
3.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
4.
The Natural Resources Commission (the “Commission”) is an agency as
defined in IC 4-21.5-1-3 and is the Ultimate Authority with respect to this
proceeding.
5.
Steven Weinzapfel of the Division of Reclamation
(DOR) wrote the NOV in question here on February 16, 1990.
6.
United filed a Motion for Summary Judgment on July 23, 1990.
7.
The Department filed a Crossmotion for Summary
Judgment on August 31, 1990.
8.
United filed no Answer to the Department's Crossmotion.
9.
The pertinent facts are not in dispute.
10.
The NOV was written for "failure to design, construct and maintain
siltation structures to achieve minimum design requirements."
11.
The location specified was impound #7.
12.
United points out that 310 IAC 12-5-24(a)(6) was not
violated because the minimum freeboard design requirement specified for impound
#7 would be two feet.
13.
United submits uncontroverted evidence that the freeboard at impound #7 is no
less than a depth of 2.06 feet at any point.
14.
However, the Department points out that in United's permit at part II, K(3)(d), design plans for impound #7, a basin freeboard
depth of 4.5 feet is specified.
15.
United defends by arguing that the inclusion of the 4.5 foot figure was a
mistake and that the figure has since been adjusted to the two feet minimum
required by the Code.
16.
However, this adjustment was made after the NOV was written.
17.
The Department correctly points out that at the time the NOV was written, United's permit specified 4.5 feet of freeboard at
impound #7.
18.
Since a minimum of 2.06 feet of freeboard was present on February 16, 1990, and
since United's permit required 4.5 feet of freeboard, a violation of 310 IAC
123-4 did occur.
19.
Because the law requires compliance with permit conditions and United did not
comply with the condition discussed here, summary judgment must be granted to
the Department.