[CITE: Spencer Coal v. DNR, Reclamation, 3
CADDNAR 64 (1986)]
[VOLUME 3, PAGE 64]
Cause #: 85-264R
Caption: Spencer Coal v. DNR,
Reclamation
Administrative Law Judge: Lucas
Attorneys: Gray; Spicker, DAG
Date: July 29, 1986
ORDER
[NOTE: THE UNDERLYING NOTICES
OF VIOLATION AND CESSATION ORDERS ARE THE SUBJECTS OF ADMINISTRATIVE CAUSE
85-257R.]
Spencer
Coal Corporation is denied temporary relief from each of the Notices of Violation
identified in finding 25 and finding 27.
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.
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 85-264R);
(b)
NOV #N51122-80-116 (Administrative Cause 85-265R);
(c)NOV
#N51122-79-123 (Administrative Cause 85-266R);
(d)
NOV #N51122-80-170 (Administrative Cause 95-267R);
(e)
NOV #N51122-80-41 (Administrative Cause 84-268R);
(f) NOV
#N51122-78-174 (Administrative Cause 85-269R);
(g)
NOV #N51122-82-23 (Administrative Cause 85-270R);
(h)
NOV #N51122-82-98 (Administrative Cause 85-271R);
(i) NOV #N51122-81-147 (Administrative Cause 85-272R);
(j)
NOV #N62233-81-105 (Administrative Cause 85-273R);
(k)
NOV #N51122-77-113 (Administrative Cause 85-274R);
(l)
NOV #N51122-S-00124 (Administrative Cause 85-275R);
(m)
NOV #N51122-S-00119 (Administrative Cause 85-276R);
(n)
NOV #N51122-S-00127 (Administrative Cause 85-277R); and,
(o)
NOV #N51122-S-00097 (Administrative Cause 85-278R).
The
reference Notices of Violation are here collectively referred to as the
"NOVs."
5. A
hearing date was scheduled on temporary relief from the NOVs for 12/6/85 then scheduled
for December 9 upon the parties' joint request. Subsequently, the parties
agreed to "vacate" the 12/9 hearing.
6. A
PHC was scheduled for 1/14/86 to consider the captioned actions for temporary
relief (as well as the administrative actions, not captioned above, established
to finally determine the propriety of the NOVs). By agreement, that PHC was
conducted by telephone. During the pre-hearing conference, the parties agreed
to a consolidated hearing for 3/5/86.
7.
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 Causality and Surety
Insurance Company, and 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.
8.
The provisions and agreements set forth in findings 6 and 7 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 65]
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 the conduct to these administrative actions."
9.
Neither party tendered additional issues of offered additions or corrections to
the "Report of Pre-hearing Conference and Notice of Hearing" within
the time periods referenced in Finding 10.
10.
On November 4, 1985, Spencer filed a class action against "James R. [sic.] 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 be Spencer in the
Federal Suit are jurisdictional issues which are similar to the first issue
identified in Finding 7.
11.
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's
[Spencer's] Second Complaint, or the Court makes other appropriate disposition
of the jurisdictional allegations in said [Federal] case."
12.
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.
13.
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.
14.
On March 25, the parties may 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.
15.
An "Entry to Modify Memorandum Agreement" was entered on March 26 by
the Administrative Law Judge approving the "Joint Motion to Change
Briefing Schedule."
16.
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.
17.
On April 23, 1986, Spencer filed its written "Statement of Facts",
which includes a brief and multiple attachments.
18.
The Department filed its "Brief of Respondent" on July 1, 1986.
19.
The 101st 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 2-4.1] 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 Indian 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 66]
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 85-275R),
NOV
#N51122-S-00119 (Cause 85-276R),
NOV #N51122-S-00127
(Cause 85-277R),
NOV
#N51122-S-00097 (Cause 85-278R).
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 after August 3, 1977 and
before July 29, 1982:
NOV
#N51122-78-41 (Cause 85-264R),
NOV
#N51122-80-116 (Cause 85-265R),
NOV #N51122-79-123
(Cause 85-266R),
NOV
#N51122-80-170 (Cause 85-267R),
NOV #N51122-80-41
(Cause 85 -268R),
NOV
#N51122-78-174 (Cause 85-269R),
NOV #N51122-82-23
(Cause 85-270R),
NOV
#N51122-82-98 (Cause 85-271R),
NOV #N51122-81-147
(Cause 85-272R),
NOV
#N51122-81-105 (Cause 85-273R),
NOV
#N51122-77-113 (Cause 85-274R).
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) Acts 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
Coal 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
operations 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 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 established 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 67]
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 re-implementation 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 which authorizes 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 334, (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 issue a Notice of Violation to any operator which 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 68]
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. Easkin,
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 13-4-5(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 of 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 Casual 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 Casual 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.[FOOTNOTE vi]
58.
Spencer has not shown there is a substantial likelihood that the findings of
the Director will be favorable on the NOVs.
59.
Spencer has not shown that granting Temporary Relief will not adversely affect
the health or safety of the public or cause significant imminent environmental
harm to land air, or water resources.[FOOTNOTE vii]
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 of 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
sixteenth day. Any such petition may be made by any person who participated in
the administrative proceedings and who is aggravated 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 U.S.C.
1276, which provides for the judicial review of challenges to the approval or
disapproval of state
[VOLUME 3, PAGE 69]
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 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 program 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. Champion
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 Number 85-102R, 85-103R, 85-147R 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 #C50206-80-41.) In that action, a Notice of Violation and
Cessation Order were issued by the Department to Spencer with respect to an
interim program permit for a failure by Spencer to establish on the regraded areas, and all other lands affected, a diverse,
effective and permanent cover. The notice and violation and Cessation Order
were found to be supported by the facts, but temporary relief was granted on
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
[VOLUME 3, PAGE 70]
of the Notice of Violation and
Cessation Order.
iii. As a consequence, the rationale set forth in Spencer v. Department of 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. Whether IC 13-4-6-1.6 provides new vitality to a Notice of Violation or
permit between July 29, 1982 and April 9, 1985 (and against which an affected
person made a timely request for administrative review under IC 4-22-1) need
not b e addressed here. All of the NOVs identified in Findings 27 were issued
after April 8, 1985.
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 Director" An NOV is the functional
equivalent of a Notice of Non-Compliance and is the enforcement mechanism provided.
. ." in IC 13-4.1. In these regards, 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 by Spencer is unpersuasive, The Department responds appropriately
at 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 13-41 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."
vii. Spencer may no longer wish to pursue temporary relief in these
administrative actions. The company has formally requested temporary relief,
however, and has not articulated a motion to dismiss or withdraw that request.