[CITE: Graulich
and Owens v. NRC and Squaw Creek, 3 CADDNAR 8 (1986)]
[VOLUME 3, PAGE 8]
Cause #: 85-012R
Caption: Graulich
and Owens v. NRC and Squaw Creek
Administrative Law Judge: Lucas
Attorney: pro se (Graulich, Owens); Spicker, DAG; Joest
Date: January 9, 1986
ORDER
The postmining land use change sought by Squaw Creek Coal
Company for permit 81-56A to engage in Surface Mining under acts of 1981,
Public Law 331 and IC 13-4-6 is given final approval.
FINDINGS OF FACT
1. The
provisions of the Administrative Adjudication Act (IC 4-22-1) govern this
action.
2.
The Department of Natural Resources (hereinafter the Department) is an "agency"
as the term is defined in IC 4-22-1. The Natural Resources Commission
(hereinafter the Commission) is the ultimate authority of the Department with
respect to the subject matter of this administrative action.
3.
The Commission has jurisdiction over the subject matter and the parties to this
action.
4.
Squaw Creek Coal Company (hereinafter Squaw Creek) was by the Department issued
permit # 81-56A to engage in Surface Mining ( hereinafter
the permit.)
5. Included
within the boundaries of the permit is real estate owned by Elvera
Graulich in sections 19 and 25, Township 5 south,
Range 8 west in Warrick County, Indiana (hereinafter the Graulich
property.)
6.
The provisions of the Acts of 1981, Public Law 331 and IC 13-4-6 were applicable
during the life of the permit.[FOOTNOTE i]
7.
Section 2 of Public Law 331 provides as follows: "The Department of
Natural Resources shall enforce Section 502 of the Surface Mining and Reclamation
Act of 1977 (P.L. 95-87), and shall promulgate rules and regulations as may be necessary
for such enforcement. The Department of Natural Resources is further authorized
to promulgate rules and regulations as may be necessary to enforce the
provisions of Section 510(d) and 522(e) of the Surface Mining Control and
Reclamation Act of 1977 (P.L. 95-87.")
8. Section
502 of the Surface Mining Control and Reclamation Act provides in part in
subsection C [30 U.S.C. 1252(c)] That Surface Coal Mining Operations on lands
regulated by a state shall comply with specified provisions of the Federal Law,
including section 515(b)(2) [30 U.S.C. 1265(b) (2)].
9.
Section 515(b) establishes general information performance standards applicable
to all Surface Coal Mining and Reclamation Operations. Subpart 2 requires as a minimum
that a permittee "restore the land affected to a
condition capable of supporting the uses of which there is reasonable
likelihood, so long as such use or uses do not present any actual or probable
hazard to public health or safety or pose any actual or probable threat of
water diminution or pollution, and the permit applicants' declared proposed
land use following reclamation is not deemed to be impractical or unreasonable,
inconsistent with applicable land use policies and plans, involves unreasonable
delay in implementation, or is violative of Federal, State
or local Law."
10.
No rules were promulgated by the Department to enforce the provisions of
Section 502.
11.
The Secretary of the Interior published in the Federal Register on December 13,
1977 regulations implementing the provisions of the Surface Mining Control and
Reclamation Act covering the interim program. Included among these regulations is 30 C.F.R.
715 which implements the general performance standards set forth in 30 U.S.C. 1265(b).[FOOTNOTE ii]
12.
Criteria for approving alternative postmining usage
of land is provided in 30 C.F.R. 715.13(d).
13.
Reclamation of areas for which permits were issued under 13-4-6 (and under the
interim program) is required under section 6 to be performed as follows:
"(a) Grading. Grading shall be carried out on the affected
area by the operator so as to reduce peaks and ridges, and diminish depressions
between such peaks and ridges to a rolling or sloping or terraced topography
consistent with
[VOLUME 3, PAGE 9]
the land-use objectives stated
in the plan of reclamation submitted by the operator and approved by the
Commission. Such grading shall be done in a manner so as to minimize erosion,
break up long uninterrupted slopes, and leave the surface free from large rocks
and other obstructions, wherever practicable, so as to permit the operation of
suitable machinery over such surface.
(b)
Water Impoundment, Acid Drainage. The operator shall construct earth dams in
final cuts of all operations to create lakes for water impoundment, provided
such lakes will not interfere with other mining operations or damage adjoining
property. Such dams shall be constructed in a manner satisfactory to the
director and shall receive department approval prior to bond release. . ."
14.
In July and October 1984 Squaw Creek submitted a series of documents seeking
approval from the Department for postmining land use
changes under the permit with respect to the Graulich
property.
15.
The postmining land use approved in the original plan
of reclamation for the Graulich property included two
acres of pasture and hay at the western extremity of the site, separate water impoundments
of three and one acres, each, with the remainder being designated wildlife
habitat.[FOOTNOTE iii]
16.
The land uses proposed to be modified would consolidate the two previously
approved water impoundments and add four acres to what becomes a single
impoundment within the Graulich property. The two
acres of pasture and hay located on the western extremity of the site, would remain unchanged. Most wildlife habitat areas
would remain unchanged, except four acres which would be included in the water
impoundment, and a narrow strip along the north side of the Graulich
property and immediately south of the Millersburg-New Harmony road which would
be converted to pasture and hay.
17.
Staff of the Reclamation Division of the Department referred the criteria set
forth in 30 C.F.R. 715.13(d) in determining whether approval should be granted
to the postmining land use changes described in
Findings of Fact 16.
18.
Section 715.13(d)(1) requires a determination that
"The proposed land use is compatible with adjacent land use and, where
applicable, with existing local, State or Federal land use policies and plans.
. ."
19.
The changes in postmining land use as proposed by
Squaw Creek are compatible with adjacent land usage. Although, Warrick County
has a land use plan, coal mining activities are not covered by the plan.
20.
Section 715.13(d) requires that specific plans be prepared to "show the
feasibility of the proposed land use as related to needs, projected land use
trends, and markets and that include a schedule showing how the proposed use
will be developed and achieved within a reasonable time after mining and be
sustained. . . ."
21.
With respect to feasibility, the areas will be backfilled and graded to
appropriate slopes for the postmining land uses.
Squaw Creek would sustain the site by providing revegetation
adequate to prevent erosion. Reclamation would be performed under the proposed
change without any delay over the existing approved postmining
land uses, which is a reasonable time for performance.
22.
Section 715-13(d) and section 715-13(d)(4) apply where
reclamation is to be performed by someone other than the permittee.
The provisions are inapplicable, since Squaw Creek provided its own reclamation
under the permit.
23.
Section 715.13(d) (5) requires that plans be designed by a registered
professional engineer or another appropriate professional to "ensure that
the plans conform to applicable accepted standards for adequate land stability,
drainage, and vegetative cover, and aesthetic design appropriate for the postmining use of the site."
24.
Squaw Creek provided the Reclamation Division with a plan view of the water
impoundment and a cross-section of the impoundment showing the water depth,
width and side slopes, as well as how the water impoundment related to the
surrounding area (specifically a county road north of the permitted area
identified as the Millersburg-New Harmony Road.) The Reclamation Division
concluded these provisions by Squaw Creek satisfy 30 C.F.R. 715-13(d) (5).
25. Section
715.13 (d) (6) requires that the proposed uses will not present "actual or
probable threat of water flow diminution or pollution."
26.
The final impoundment cut made y Squaw Creek is expected to be stable.
27.
Guard rails would be placed by Squaw Creek to protect the public along the
Millersburg-New Harmony Road from the impoundment in the event of an accident, according
to the testimony of a registered professional engineer employed by Squaw creek.[FOOTNOTE iv]
28.
One water impoundment slope resulting from previous mining activities is
currently about 32 feet from the north wall of an outbuilding
[VOLUME 3, PAGE 10]
located on the Graulich
property.
29.
The slopes of the impoundment vary. At some locations immediately north of the
outbuilding, the slopes approach a ratio of six to one, but are considerably
less steep at their bases. The slope nearest to the outbuilding is unstable,
and its upper extremities have slumped and eroded into the pit below.
30. Elvera Graulich has deposited
leaves, sticks and other materials the upper extremity of the slope nearest to
the outbuilding in order to retard its attrition. Her efforts have not been
entirely successful, and an estimate is that the slope edge has moved approximately
14 feet closer to the outbuilding since mining activities of the early 1940's
by Sunlight Coal Company or Northern Coal Company.
31.
Without the development of internal stability or artificial stabilization of
the slope, the outbuilding may in the future become adversely affected.
32.
An increased water level has not been shown to directly affect the integrity of
the upper slope or to constitute an unreasonable hazard to safety.[FOOTNOTE v]
33.
The drainage pattern for the Graulich property and
adjacent properties before mining activities of the 1940s was predominantly to
the north.
34.
The mining which occurred in the 1940s may have altered the topography in the
area so that the drainage tendency was southerly.
35.
The current mining and reclamation activities of Squaw Creek have resulted in a
drainage pattern for the Graulich property which is
southerly.
36.
If the mining activities of Squaw Creek have changed the drainage pattern of
the Graulich property, the change does not constitute
an alteration which will result in a threat of water flow diminution or
pollution.
37. Testing of water impounded by the structure place by Squaw
Creek demonstrates a pH of 9.4. The high pH may result from liming during
reclamation activities and is not indicative of a permanent diminution of water
quality.
38.
The proposed change in land uses will not present an actual or probably hazard
to public health or safety nor will the change pose an actual or probable
threat of water flow diminution or pollution.
39.
Section 715.13(d)(7) requires that the proposed uses
will not involve unreasonable delays in reclamation.
40. The
proposed change in postmining land usages will not
result in a delay over the existing postmining land
uses with respect to the Graulich property.
41.
Section 715.13 (d)(8) requires the permittee to
obtain "[n]ecessary approval of measures to
prevent or mitigate adverse effects on fish and wildlife. . .from the
regulatory authority and appropriate State and Federal fish and wildlife
management agencies."
42.
The postmining land use change proposed by Squaw Creek
will provide a net improvement in terms of fish and wildlife resources over
land usage prior to mining activities. A substantial wildlife habitat is
established in the original postmining land use plan,
and while that is reduced within an enhanced water impoundment.
43.
Section 715.13 (d)(9) applies to changing "pre-mining land uses of range,
fish and wildlife habitat, forest land, hay land, or pasture to a postmining cropland use." The provision is inapplicable
since Squaw Creek does not propose to change and land use to row crop.
44.
Section 715.13 (d) requires consultation "with the landowner" before
a postmining land use can be accomplished. The
provision does not require the approval of a landowner for a postmining land use change.
45.
By a letter dated October 5, 1984, Elvera Graulich was informed of the land use change proposed for
her property by Squaw Creek. The letter was received by Elvera
Graulich on the following day.
46.
The Department consulted with the landowner prior to determining the postmining land use change at issue in this administrative
action.
47.
The claimants indicated at a pre-hearing conference in this administrative
action that the issues were "whether or not it is proper for Squaw Creek
to have removed material from [the Graulich]. . .property and place it on property owned by Squaw
Creek, leaving a 3 acre water impoundment on [the Graulich].
. . property where cropland previously existed and in the process alter the drainage
pattern."
48. Much
of the Graulich property was mined by Sunlight Coal
Company or Northern Coal Company in the early 1940s and was left with
incompletely reforested spoil ridges. A high wall separated roughly four acres
of cropland along the northern portion of the site from a pit farther south.
49.
In order to reclaim the property to a "rolling, or sloping or terraced
topography" a required by IC 13-4-6-6(a), either the pit left following
mining activities in the 1940s must be filled or its boundaries must be
expanded. The high wall existing prior to mining operations by Squaw Creek must
be modified to satisfy Indiana Law.
50.
The proposed postmining land use changes satisfy the
requirements of IC 13-4-6.
51.
To return the Graulich property to its condition
prior to mining operations by Squaw Creek would violate IC 13-4-6.
52.
Neither IC 13-4-6 nor 30 U.S.C. 1265(b) (2) require that material removed by
Squaw Creek from the Graulich property be returned to
the Graulich property.
53.
The
[VOLUME 3, PAGE 11]
drainage pattern for the Graulich property may have been modified by the mining
activities of Squaw Creek. The modification does not constitute an alteration
which will result in a threat of water flow diminution or pollution and is not
prohibited by law.
54. Elvera Graulich and Peabody Coal
Company on October 25, 1977 entered a Leasehold Agreement (hereinafter the lease)
on the Graulich property for the removal of coal.
55.
Peabody Coal Company assigned the lease to Squaw Creek. The mining activities
of Squaw Creek under the permit were occasioned by entry into the lease with Elvera Graulich.
56.
Paragraph 2 of the lease provides in part that Squaw Creek acquired as to Elvera Graulich "the right
to make excavations, openings, pits, ditches, drains dams, and ponds and to
pile dirt all without liability for damage caused thereby."
57.
The Reclamation Division placed considerable reliance upon the lease in its
determination to grant the proposed postmining land
use change sought by Squaw Creek.
58. The
lease between Elvera Graulich
and Squaw Creek is not material to the substantive reclamation standards set
forth in IC 13-4-6-6(a) and 30 U.S.C. 1265 (b)(2). The lease was improperly
considered by the Reclamation Division in recommending approval of the proposed
postmining land use change.
59.
Reference by the Division of Reclamation to the lease is harmless error. There
is substantial evidence in the record apart from the lease to support approval
of the proposed postmining land use change.[FOOTNOTE vi]
60.
The proposed postmining land use change satisfies IC
13-4-6-6(a) and 30 U.S.C. 1265(b)(2) and should be
approved.
FOOTNOTES
i.
Public Law 331 is one of a series of non-code enactments by the Indiana General
Assembly which provided temporary statutory authority during the pendency of
litigation with the federal government and prior to the approval by the Office
of Surface Mining of the Indiana State Surface Mining Program. These temporary statutes from integral parts of what is called the state's
"interim program." A permit issued under this authority,
including permit 81-56A, is referenced as an "interim permit."
ii.
Whether the federal interim regulations were incorporated by Public Law 331
into the Indiana interim program is problematical. Public Law 331 incorporated
several federal statutes into Indiana Law, but made no reference to federal
regulations. The specific authorization for the promulgation of Indiana rules
suggests the General Assembly did not intend to assume verbatim the federal
regulations. On the other hand, the General Assembly must have recognized state
rule promulgation was subject to approval by the Office of Surface Mining.
Indiana rules concerning postmining land usage under
the interim program would have been very similar, if not identical to the
federal regulations. None of the parties has questioned the applicability of 30
C.F.R. 715 to this administrative action. The criteria set forth in Section
715.13(d) for approving alternative postmining land
usage provide a rational basis for implementing 30 U.S.C. 1265 and Public Law
331. The criteria will be referenced in these Findings of Fact as models for implementation
of the interim program statutes, but not as having the force of law attributable
to a promulgated rule.
iii. Elvera
Graulich testified "I had cropland [on the
northern edge of my property]. . .where they've got hay and pasture [delineated
on the original postmining land use map]. . . .I had
a man that farmed this, and I have the 79 and 80 reports showing that it was cropland. . .I also had [in the northwest corner] cropland.
They have the crop was two acres, and that's what it was. ..[there
were two acres each in then northern extremity and
the northwest.]" One of her complaints is that cropland would be removed
under the proposed change from the approved postmining
land uses for the property. The proposed change at issue would not delete
cropland as an approved usage, however, since cropland is not an approved usage
in the original plan of reclamation. Even is the changes currently sought by
Squaw Creek were denied, none of the property would be approved for reclamation
to cropland.
iv. Harrold Sorrels, a
professional engineer and former employee of the Indiana Department of Highways,
who is currently head of the Engineering Section of the Abandoned Mine Land Restoration
program within the Reclamation Division,
[VOLUME 3, PAGE 12]
examined the site subsequent to the
hearing in this administrative action. He concluded that a guard rail is not necessary
at any point along the roadway. He did not indicate that a guard rail would be counterproductive
or create a greater hazard than might exist in the absence of a guard rail. Accordingly,
the guard rail proposal put forth by Squaw Creek is not found to be
unacceptable, although its efficacy is in question.
v.
The testimony is in some dispute concerning potential safety hazards posed by
the increased water level which will be a consequence of the new impoundment. Elvera Graulich testified the
impoundment would be dangerously close to her outbuilding and that it would constitute
a "hazard to everybody." The Department and Squaw Creek both
presented evidence, including the testimony of a professional engineer that a
new hazard will not result. Undoubtedly, Elvera Graulich is confronted with a problem in the vicinity of
the outbuilding, but that problem pre-dated the mining activities of Squaw
Creek. An intuitive judgment might be that increased water elevation will
aggravate the problem. Based on the evidence presented, that judgment would be
scarcely more than speculation. The most reasonable conclusion to be drawn from
the evidence presented is that the causation of any hazard is the mining
activities of the
1940s and not the current mining activities (and reclamation) of Squaw Creek.
vi.
The Claimants assert that Elvera Graulich
entered the lease only after false representations by Ronald Berger, formerly a
buying agent for Peabody Coal and since deceased. Graulich
was asked on direct examination: Question: "when the man [Berger] brought
the lease, and you told him it didn't read reclamation' in there, what did he
tell you?" Answer: "He said that was the law. They had to put the
ground back. . . .I took his word for it." On cross-examination by Squaw
Creek, Graulich stated: "He [Berger] said, I
don't think it would be mined. . .If they mine it,
they will have to put it back the way it was.'" Counsel for Squaw Creek urges
in his post-hearing brief: "Mrs. Graulich has
alleged that misrepresentations were made to her in connection with the lease,
but she raises this issue in the wrong forum. The Commission is not a Court of
Equity with the power to reform contractual arrangements between private parties."
Since the lease is immaterial to the issues at hand, neither the assertions of Elvera Graulich nor the legal
argument of Squaw Creek need to be addressed.