[CITE: Spencer Coal v. DNR,
DOR, 3 CADDNAR 74 (1986)]
[VOLUME 3, PAGE 74]
Cause #: 85-257R
Caption: Spencer Coal v. DNR,
DOR
Administrative Law Judge : Lucas
Attorneys : Gray; Spicker, DAG
Date : December 15, 1986
ORDER
Each
NOV is affirmed:
NOV #N51122-S-00124, NOV #N51122-80-116, NOV #N51122-82-98, NOV #N51122-S-00119,
NOV #N51122-79-123, NOV #N51122-81-147, NOV #N51122-S-00127, NOV #N51122-80170,
NOV #N51122-81-105, NOV #N51122-S-00097, NOV #N51122-78-174, NOV
#N51122-77-113, NOV #N51122-78-41, NOV #N51122-82-23, and NOV #N51122-80-41.
FINDINGS OF FACT
1. The
department of natural resources (the "Department") is an
"agency" as the term is defined under IC 4-22-1. The director of the
Department (the "Director") is the ultimate authority for the
Department with respect to the subject matter of these administrative actions.
The natural resources commission ("commission") is another entity
within the department.
2.
The director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department in accordance with IC
13-4.1-2-2(c).
3. Stephen
L. Lucas is an employee of the Hearings and Affirmative Action Section of the Department.
The Director appointed Stephen Lucas to conduct appropriate proceedings and to make
recommendations for final deposition.
4.
Spencer Coal Company ("Spencer") timely requested temporary relief
under IC 13-4.1-11-8(e) from the following notices of violation:
(a)NOV
#N51122-78-41 (Administrative Cause 85-279R);
(b)
NOV #N51122-80-116 (Administrative Cause 85-280);
(c)NOV#N51122-79-123
(Administrative Cause 85-281R);
(d) NOV
#N51122-80-170 (Administrative Cause 85-282R);
(e)
NOV #N51122-80-41 (Administrative Cause 85-289R);
(f)
NOV #N51122-78-174 (Administrative Cause 85-283R);
(g)
NOV #N51122-82-23; (Administrative Cause 85-284R);
(h)
NOV #N51122-82-98 (Administrative Cause 85-285R);
(i) NOV #N51122-81-147 (Administrative Cause 85-286R);
(j) NOV
#N51122-81-105 (Administrative Cause 85-287R);
(k)
NOV #N51122-77-113 (Administrative Cause 85-288R);
(l)
NOV #N51122-S-00124 (Administrative Cause 85-258R);
(m)
NOV #N51122-S-00119 (Administrative Cause 85-257R);
(n)
NOV #N51122-S-00127 (Administrative Cause 85-259R); and
(o)
NOV #N51122-S-00097 (Administrative Cause 85-260R).
The
reference notices of violation are here collectively referred to as the
"NOVs."
5. A
pre-hearing conference was scheduled for January 14, 1986 to consider these
administrative actions. Spencer did not appear for pre-hearing conference, and,
by agreement, the pre-hearing conference was conducted by telephone. During the
pre-hearing conference, the parties agreed to a consolidated hearing for March
5, 1986.
6.
During the pre-hearing conference, the parties stipulated to the following as
being the exclusive issues for consideration at hearing:
"(1)
Whether the Department of Natural Resources has jurisdiction over interim and
permanent program permits which would authorize the issuance of a notice of
violation under IC 13-4.1; and
(2)
Whether Spencer Coal Corporation can lawfully be required by the Department of Natural
Resources to replace reclamation bonds posted with Guard Casualty and Surety Insurance
Company, an entity whose assets have been liquidated by judicial action, with
those of a corporate surety licensed to do business in Indiana and in good
standing with the Indiana Department of Insurance.”
7.
The provisions and agreements set forth in Findings 5 and 6 were reduced to
writing in a "Report of Pre-Hearing Conference and Notice of Hearing"
entered by the Administrative law Judge on January 15, 1986. That report also
provided in part as follows: "Either of the parties may tender additional
issues by written motion filed on or before
[VOLUME 3, PAGE 75]
February
14, 1986." The parties were granted until February 1, 1986 "to offer additions
or corrections to this Report of Pre-hearing Conference and Notice of Hearing.
If no additions or corrections are received by February 1, the matters
contained in this document become an order of the Administrative Law Judge and
shall govern in conduct of these administrative actions."
8.
Neither party tendered additional issues or offered additions or corrections to
the "Report of Pre-hearing Conference and Notice of Hearing" within
the time periods referenced in Finding 9.
9.
On November 4, 1985, Spencer filed a class action against James R. Ridenour, Individually and as Director of the Indiana
Department of Natural Resources" and other employees of the Department
in the United States District Court, Southern District of Indiana, Civil Action
NO. EV85-98-C (the "Federal Suit"). Among
the issues raised by Spencer in the Federal Suit are jurisdictional issues
which are similar to the first issue identified in Finding 6.
10.
On February 20, 1986, the parties filed in the captioned administrative actions
their "Joint Motion for Relief." The motion sought to delay
indefinitely the administrative actions (and other administrative actions
between Spencer and the Department) until the Court in the Federal Suite
"rules upon Defendant's [Department's] Motion to Dismiss Plaintiff
[Spencer's] Second Complaint, or the Court makes other appropriate disposition
of the jurisdiction allegations in said [Federal] case."
11.
The "Joint Motion for Relief" was denied by the Administrative Law
Judge in its "Order Denying Joint Motion for Relief" entered on
February 24, 1986.
12.
The parties then agreed to a briefing schedule for the resolution of these
administrative actions. That schedule was reduced to writing in a "Memorandum
of Agreement" entered on February 26, 1986, which provided in pertinent
part that the parties agreed to "the final disposition of these
administrative actions without hearing.
"(1)
the parties will seek to finalize stipulations of fact
for each of these administrative actions within two (2) weeks of this date.
(2) the parties will file contemporaneous briefs and their stipulations
of fact by March 28, 1986.
(3) the parties may file briefs, with that filing by April 15,
1986.”
13.
On March 25, the parties filed their "Joint Motion to Change Briefing
Schedule":
"(1)
Claimant will file its brief along with stipulations of fact on or before April
9, 1986;
(2) Respondent
will file its brief by on or before May 12, 1986;
(3)
Claimant may file a reply brief on or before May 30, 1986.”
14.
An "Entry to Modify Memorandum Agreement" was entered on March 26 by
the Administrative Law Judge approving the "Joint Motion to Change
Briefing Schedule."
15.
Subsequently, the parties moved orally for a further extension on the briefing schedule.
That motion was not made in writing, nor was a written entry provided in
response to the motion, but the parties were informally accorded additional
time to brief the issues.
16.
On April 23, 1986, Spencer filed its written "Statement of Facts",
which includes a brief and multiple attachments.
17.
The Department filed its "Brief of Respondent" on July 1, 1986.
18. The
parties have never tendered formal stipulations of fact but based on the
pleadings, the material facts are not in dispute.
19.
The Indiana General Assembly enacted Public Law 101, which added a new article
(IC 13-4.1) to the Indiana Code. Pursuant to SECTION 7 of that act, Public Law
101 became "effective on June 1, 1980.
20.
Public Law 101 also provided [as currently set forth in IC 13-4.1-1-5(a)] as
follows:
"(a)
This article [IC 13-4.1] is not applicable to surface coal mining operations,
unless the director has received notice from the Office of Surface Mining of
the United States Department of Interior and has published notice that the
state program of surface mining control and reclamation is approved."
21.
IC 13-4.1-1-5(a) does not require, nor does the subsection anticipate, a
determination as to whether an approval by the Department of Interior complies
with the requirements of federal law. IC 13-4.1-1-5 makes IC 13-4.1 applicable
to surface mining under Indiana Law upon the performance of ministerial
functions: the delivery and publication of a notice.
22.
Whether the Indiana state program satisfies the requirements of the Surface
Mining Control and Reclamation Act of 1977 (Public Law 95-87)
["SMCRA"] is a question of federal law.[FOOTNOTE i] That issue is distinct from whether IC
13-4.1 is applicable and effective under Indiana State Law.
23. On
July 26, 1982, the Office of Surface Mining, acting through the Secretary of
the United States Department of Interior, published in the Federal Register in
Volume 47, Number 143, page 32071, its approval under
SMCRA of the Indiana permanent regulatory
[VOLUME 3, PAGE 76]
program. The effective date of the
approval was established for July 29, 1982.
24.
Public Law 101 (and IC 13-4.1 as established by Public Law 101) became
effective for the purposes of Indiana State Law on June 1, 1980. Those provisions
became applicable to surface coal mining operations on July 29, 1982.
25.
The following NOVs were issued against permits issued after July 29, 1982: NOV
#N51122-S-00124 (Cause 85-258R), NOV #N51122-S-00119 (Cause 85-257R), NOV
#N51122-S-00127 (Cause 85-259R), NOV #N51122-S-00097 (Cause 85-260R).The
permits affected by these NOVs are here collectively referred to as the
"Permanent Program Permits."
26.
The Department has at all times had jurisdiction over the Permanent Program
Permits. That jurisdiction authorized the issuance of a Notice of Violation
under IC 13-4.1-11-4.
27.
The following NOVs were issued against permits issued against August 3, 1977
and before July 29, 1982:
NOV
#N51122-78-41 (Cause 85-279R), NOV #N51122-80-116 (Cause 85-280R), NOV
#N51122-79-123 (Cause 85-281R), NOV #N51122-80-170 (Cause 85-282R), NOV
#N51122-80-41 (Cause 85-289R), NOV #N51122-78-174 (Cause 85-283R), NOV
#N51122-82-23 (Cause 85-284R), NOV #N51122-82-98 (Cause 85-285R), NOV
#N51122-81-147 (Cause 85-286R), NOV #N51122-81-105 (Cause 85-287R), NOV
#N51122-77-113 (Cause 85-288R), The permits affected by these NOVs are here
collectively referred to as the "Interim Program Permits."
28.
During the period from August 3, 1977 to July 28, 1982, the state surface mining
law in Indiana consisted of IC 13-4-6 and the following non-code provisions:
Acts of 1978, P.L. 159; Acts of 1979, P.L. 314; Acts of 1980, P.L. 101, SECTION
5; and Acts of 1981, P.L. 331.
29.
Acts of 1978, P.L. 159 provides in pertinent part: SECTION 1. Beginning May 4,
1978, the department of natural resources shall enforce section 502 of the
Surface Mining Control and Reclamation Act of 1977 (Pub. L. 95-87). . . " SECTION 6. This act expires on June 4, 1979. . .
30.
Acts of 1979, P.L. 314 provides in pertinent part: ". . .(7)
Actos of 1978, Public Law 159 should be extended for
an additional year. . . ."
31.
Acts of 1980, P.L. 101, SECTION 5, provides as follows: "A valid coal
mining permit issued under IC 13-4 shall continue in effect until its
expiration date or until such time as the Department has reviewed his
application for a new permit, whichever is later. A permittee
holding a permit issued under IC 13-4 which expires on or after June 1, 1980,
or the date the state coal mining program is approved by the Office of Surface
Mining of the United States Department of Interior or until such time as the
department has reviewed his application for a new permit, whichever is later,
must comply with all the provisions of IC 13-4.1. However, those permittees who expect to continue that coal mining
operation on or after February 1, 1981, or eight (8) months after the date the
state coal mining program is approved by the Office of Surface Mining of the
United States Department of Interior, whichever is later, shall apply for a permit
under IC 13-4.1 not later than August 1, 1980, or two (2) months after the
state coal mining program is approved by the Office of Surface Mining of the
United States Department of Interior, whichever is later. The commission shall
make a decision on that application by February 1, 1981, or eight (8) months
after the state coal mining program is approved by the Office of Surface Mining
of the United States Department of Interior, whichever is later."
32. Acts
of 1981, P.L. 331, provides in pertinent part: "SECTION 2. The department
of natural resources shall enforce SECTION 502 of the Surface Mining Control
and Reclamation Act of 1977 (P.L. 95-87). . . ."SECTION 6(a) This act. . . [is] inapplicable at
such time as IC 13-4.1 becomes applicable [July 29, 1982]. . ."
33.
After July 28, 1982, the non-code provisions set forth in Findings 29, 30, 31
and 32 lapsed.[FOOTNOTE ii]
34.
The Indiana General Assembly enacted P.L. 148-1985, Section 2, effective April 9, 1985, which establishes IC 13-4-6-1.6 as
follows: "All surface mining operations that operate or have operated
under a permit issued under this chapter [IC 13-4-6] subject to Acts 1978,
[VOLUME 3, PAGE 77]
P.L.
159, Acts 1979, P.L. 314, Acts 1980, P.L. 101, SECTION 5, or Acts 1981, P.L.
331 are subject to IC 13-4.1-11, IC 13-4.1-12, IC 13-4.1-13, 30 U.S.C. 1252, 30
U.S.C. 1260(d), 30 U.S.C. 1272 (3), and 30 C.F.R. 710 through 716."
35.
IC 13-4-6-1.6 results in the reimplementation on April 9, 1985 of the non-code
provisions set forth in Findings 29, 30, 31 and 32.[FOOTNOTE iii]
36.
Since April 9, 1985, the Department has had jurisdiction to issue a notice of
violation against an interim program permit. Each of the NOVs identified in
Findings 27 were issued after April 9, 1985. The Department had jurisdiction to
issue the NOVs identified in Finding 27.
37.
The Department has jurisdiction over interim and permanent program permits that
authorize the issuance of the NOVs under IC 13-4.1.
38.
The Indiana General Assembly established with the Acts of 1967, Chapter 344, a
statutory scheme to require the permitting and reclamation of strip mining, including
the surface mining of coal. That enactment, with subsequent statutory
amendments, is found in IC 13-4-6.
39.
The purposes of the Acts of 1967, chapter 344, (IC 13-4-6) are set forth in IC
13-4-6-1, which states in pertinent part as follows:
"This
act [IC 13-4-6] shall provide for the proper reclamation of areas of lands
subjected to surface mining of minerals in accordance with modern standards to
provide improved land-use practice of these areas, to prevent or minimize
injurious effects to the people and the natural resources of the State of Indiana
including the need to protect our lakes and streams from pollution, to decrease
soil erosion, to decrease the hazards of fire, to improve the aesthetic value
of the landscape, to enhance the development of wildlife resources, and to
increase the economic contributions of the affected areas, to the welfare of
the people of the state of Indiana. . . ."
40.
IC 13-4-6-5 provides in pertinent part:
"(a) no person shall engage in surface mining unless such
person possesses a valid permit obtained from the [C]ommission
designating the area of land affected by the operation. ...
(f)
Contemporaneously with and as condition precedent to the issuance of the permit
there shall be filed by the operator with the [D]irector,
a bond payable to the department of natural resources of the state of Indiana,
conditioned that the operator shall faithfully perform all requirements of the
[C]ommission in accordance with the provisions of
this chapter. . . .Any operator may execute the bond without surety if he shall
deposit with the [D]irector cash or securities that
meet the approval of the [C]ommission in an amount
equal to the surety bond as prescribed in this division of this section. The
number of acres for which [a] permit is issued may be increased by the [C]ommission after a permit is issued on receipt of the
prescribed fee and additional bond for such additional number of acres."
41.
With respect to the Interim Program Permits, Spencer must maintain a bond under
IC 13-4-6. Failure to maintain the bond is subject to the issuance of a notice
of violation under IC 13-4.1-11-4 and pursuant to IC 13-4-6-1.6.[FOOTNOTE iv]
42.
IC 13-4.1 provides in Chapter 6 for bonding or other security. IC 13-4.1-6-1
states: "After a surface coal mining and reclamation permit application is
approved but before that permit is issued, the applicant shall file with the
[D]irector, on a form prescribed and furnished by the
[D]irector, a bond for performance of all the
requirements of this article [IC 13-4.1] and of the permit. The bond shall
cover that area of land within the permit area upon which the operator will
initiate and conduct surface coal mining and reclamation operations within the
initial term of the permit. As succeeding increments of surface coal mining reclamation
operations are initiated and conducted within the permit area, the permittee shall file with the [D]irector
an additional bond or bonds to cover those increments in accordance with this
chapter."
43.
310 IAC 12-4-10(e) (2) mandates that the Department issue a notice of violation
where the institution which provides or holds the bond becomes incapacitated.
"Upon the incapacity of a bank or surety company by reason of bankruptcy,
insolvency or suspension, or revocation of its charter or license, the permittee shall be deemed to be without bond coverage. The
[D]epartment shall issue a notice of violation to any
operator who is without bond coverage and shall specify a reasonable period to
replace bond coverage not to exceed 90 days." [Emphasis supplied.]
44.
With respect to the Permanent Program Permits, Spencer must maintain a bond under
IC 13-4.1. Failure to maintain the bond or other security is subject to the
issuance of a notice of violation under IC 13-4.1. A notice of violation must
be issued pursuant to 310 IAC 12-4-10(e)(2) where the
bank or surety company which provides or holds the bond becomes
[VOLUME 3, PAGE 78]
incapacitated.
45.
Surety bonds were provided by Spencer for each of the interim program permits
and each of the permanent program permits through Guard Casualty and Surety
Insurance Company.[FOOTNOTE v]
46.
Prior to the issuances of the NOVs, Guard Casualty and Surety Insurance Company
was ordered to be liquidated by the Marion Circuit Court in a civil action
entitled Harry E. Eakin, as the Insurance
Commissioner of the Department of Insurance of the State of Indiana v. Guard
Casualty and Surety Insurance Company, Cause Number C 85-1374.
47.
Guard Casualty and Surety Insurance Company is insolvent.
48.
The surety bonds issued by Guard Casualty and Surety Insurance Company to Spencer
with respect to
the permits at issue in these
administrative actions are without force and effect.
49.
The NOVs were issued by the Department to Spencer as a consequence of the insolvency
of Guard Casualty and Surety Insurance Company and that its bonds are without force
and effect.
50.
Issuance of the NOVs with respect to the Interim Program Permits is supported
by the law and the facts.
51.
Issuance of the NOVs with respect to the Permanent Program Permits is mandated
by the law and the facts.
52. Under
IC 13-4-6-5(f), an operator may seek suitable security other than a surety
bond. [The pertinent text of the subsection 5(f) is contained in the final
paragraph of finding 40.]
53.
Under IC 13-4.1-6-5, an operator may seed suitable security other than a surety
bond. "In lieu of a bond, the operator may elect to deposit cash,
negotiable bonds of the United States Government or of Indiana, or negotiable
certificates of deposit or letters of credit of any bank organized or
transacting business in the United States in an amount or which has a market
value equal to or greater than the amount of the bond required for the bonded
area under the same terms and conditions upon which surety bonds are deposited."
54.
The form of security is selected by an operator permitted under IC 13-4-6 or under
IC 13-4.1 within the parameters of those statutory provisions. Whether to
choose a surety bond, a cash bond, a negotiable certificate of deposit or a
letter of credit is a decision made by the operator. An operator also chooses
the particular institution with which dealings are to be made. These selections
are business choices which carry with them differing benefits and risks.
55. Nothing
in the evidence supports the proposition that the Department, or the State of
Indiana, generally, serves as guarantor to Spencer for the continued economic
viability or Guard Casualty and Surety Insurance Company.
56.
Spencer received whatever benefits Guard Casualty and Surety Insurance Company
provided over other surety companies; and Spencer received whatever benefits a
surety company supplied over security other than a surety. In accepting the
benefits, Spencer also assumes the risks.
57.
Spencer can lawfully be required by the Department to replace reclamation bonds
posted with Guard Casualty and Surety Insurance Company, an entity whose assets
have been liquidated by judicial action, with another surety bond, a cash bond,
a negotiable certificate of deposit or a letter of credit which comports with
the applicable provision of IC 13-4-6 or IC 13-4.1.[FOOTNOTE vi]
58.
Issuance of the NOVs should be affirmed.
FOOTNOTES
i.
The mechanism for seeking judicial review from a determination by the Secretary
of the Interior to approve or disapprove a state program is provided under SMCRA
within 30 U.S.C. 1276 (a)(1):
"Any
action of the Secretary to approve or disapprove a State program. . .shall be subject
to judicial review by the United States District Court for the District which
includes the capital of the State whose program is at issue. . .A petition for
review of any action subject to judicial review under this subsection shall be
filed in the appropriate Court within sixty days from the date of such action,
or after such date if the petition is based solely on grounds arising after the
sixtieth day. Any such petition may be made by any person who participated in
the administrative proceedings and who is aggrieved by the action of the
Secretary." The Department urges on page 5 of its "Brief of
Respondent" that "The conditional approval of the Indiana program has
never been struck down, and if this complaint [in the Federal Suit] constitutes
an attempt to challenge that approval, it is an untimely challenge. See 30
U.S.C. 1276, which provides for the judicial review of challenges to the
approval or disapproval of state programs by filing in the appropriate court
`within sixty days' (emphasis supplied [by the Department]) from the date of
approval or disapproval. Spencer would have had to have attempted its challenge
by September 29, 1982; it is
[VOLUME 3, PAGE 79]
almost four years [emphasis
supplied by the Department] too late." The argument by the Department is
well-taken, but unnecessary to a resolution of these
administrative actions. If Spencer desires to attack the approval of the
Indiana state program by the Secretary of the Interior, that attack must be
made under federal law in a federal court (and must, presumably, include the
Interior Department as a necessary party.) Whether the Secretary's approval was
properly entered (and whether the attack by Spencer of that approval was
timely) are questions which are not dispositive of whether IC 13-4.1 is
effective and applicable to Surface Mining in Indiana. That question is
essentially a one of Indiana State Law, limited by the ability of the Office of
Surface Mining to institute an action to preempt. Stated in
the alternative: An Indiana statute pertaining to surface coal mining and reclamation
is not invalidated by virtue of its being determined to be outside of the
approved state programs under SMCRA. See 30 C.F.R. 730.11(a), a
regulation under SMCRA, which provides: "No state law.
. .shall be superseded by any provision of . . .[SMCRA], except to the extent
that the State law. . .is inconsistent with, or precludes implementation of,
requirements of " SMCRA or a regulation promulgated under SMCRA. The
Director of the Office of Surface Mining "shall publish a notice of the
proposed action in the Federal Register setting forth the text or a summary of
any State law. . .initially determined by him to be inconsistent with"
SMCRA or a regulation promulgated under SMCRA. "Following the close of the
public comment period, the Director [of the Office of Surface Mining] shall
make a final determination which shall be published in the Federal
Register." This regulatory section is consistent with the statutory design
set forth in SMCRA, particularly 30 U.S.C. 1254(g). The regulation of the
surface mining of coal is not an area where the United States Congress has
sought generally to preempt state law. Where the federal and state governments
exercise concurrent power, the Supremacy Clause, United States Constitution,
Article VI, Section 2, acts to preempt state laws only where it is clear that
Congress so intended. Statutes are construed to avoid preemption, absent an
unmistakable intention to the contrary. Where it is not clearly stated that
state law is preempted, the state law is preserved unless it conflicts with
federal law or would frustrate the federal scheme. [See by way of illustration Tennessee v. Chapion
International Corp. (1985), 22 ERC 1338, Tenn. App., which construed the
Clean Water Act (33 U.S.C. 1251, et seq., See also Fossil Fuels Mining, Inc. v. Department of Natural Resources, Division
of Reclamation, Administrative Cause Numbers 85-102R, 85-103R, 85-145R and
85-150R as decided by the Director on March 21, 1985. Assuming for the sake of
argument that Spencer establishes, in proper forum, the approval of the Indiana
state program by the Secretary of the Interior was (or is) invalid, the result
is that two separate regulatory schemes are applicable: SMCRA and IC 13-4.1. In
the absence of an action by the Director of the Office of Surface Mining under
30 C.F.R. 730.11 (a) to preempt state law, or of a repeal of IC 13-4.1 by the
Indiana General Assembly, the provisions of IC 13-4.1 are effective and
applicable for the purposes of state law.
ii.
This statutory lapse resulted in temporary relief being granted on February 27,
1985 to the permittee in Spencer Coal Corporation v. Department of Natural Resources, Division
of Reclamation, Administrative Cause Number 85-040R (TR #C50205-80-41). The
decision is attached to claimant's brief as Exhibit B. In cause number 85-040R,
a notice of violation and cessation order were issued by the Department of
Spencer to establish on the regraded areas, and all
other lands affected, a diverse, effective and permanent cover. The notice of
violation and cessation order were found to be supported by the facts, but
temporary relief was granted because the basis that there was no procedural
mechanism available to the Department to enforce the apparent substantive
violation. Spencer had not mined under the permit in question since July 29,
1982, and the non-code provisions (which implemented the interim program) had
lapsed prior to issuance of the notice of violation and cessation order.
iii.
As a consequence, the rationale set forth in Spencer v. Department of
[VOLUME 3, PAGE 80]
Natural Resources, Division
of Reclamation,
Administrative Cause Number 85-040R, as outlined in Footnote ii, has no
application to a notice of violation or cessation order issued after April 8,
1985. All of the NOVs identified in Finding 27 were issued after that date.
iv.
The Department urges on page 4 of its brief: "...[C]ommon
sense dictates that if bond is required to be posted as a condition precedent
to the issuing of a permit and cannot be released until successful reclamation
has been attained, such coverage must be maintained over the life of the
permit. . .Under IC 13-4-6 one could not lawfully conduct surface mining
operations in Indiana without a permit issued by the Natural Resources Commission
(IC 13-4-6-3 and IC 13-4-6-5), and one could not secure a permit without first posting
the required bond. Clearly, not to be covered by bond constitutes a failure to
comply with IC 13-4-6, as well as IC 13-4.1, for which an NOV must be written
directing the operator to secure replacement bond; IC 13-4-6-7(f) states, in
pertinent part. "If the director finds that any of the requirements of
this chapter.. .or
of any order of the [D]irector or [C]ommission have not been complied with. . .the [D]irector shall cause a notice of non-compliance to be served
upon the operator." An NOV is the functional equivalent of a notice of
non-compliance and is the enforcement mechanism provided. . ." In IC 13-4.1. In this regard, the Department presents a compelling
argument.
v.
While nothing in the record clearly dictates this finding, the result is seemingly
implicit to the arguments of both counsel.
vi.
Spencer also urges in its brief that the Director cannot render a determination
in these administrative actions because to do so would violate the "strict
test of impartiality" set forth in City
of Mishawaka v. Stewart, 310 N.E.2d 65. The issue is not timely raised and
is not properly presented for consideration. See particularly finding 7,
finding 8 and finding 9. In any event, the argument be
Spencer is unpersuasive. The Department responds appropriately as page 3 of its
brief: "The allegation that the Administrative Law Judge cannot render an
impartial judgment because he is the delegate of the Director, a defendant in a
law suit brought by Spencer in federal court, is simply that--a bald allegation
with no facts to substantiate it. If this argument is allowed to prevail, any
person wishing to avoid an administrative decision pursuant to IC 13-4.1 and IC
4-22-1. . .could simply file a complaint in another
form [forum] and claim prejudice. While abstention may be appropriate in some
instances, this is not always the case, and a claimant who himself initiated [IC]
4-22-1 administrative review should not prevail unless he can demonstrate prejudice."