Permit #S-00216 for Peabody Coal Company, Lynnville Mine, North Millersburg 41 Area is approved in it's entirety including condition (9).
FINDINGS OF FACT
1. On March 2, 1988, Peabody Coal Company (the "Claimant") requested administrative review of condition number (9) placed on Peabody's permit S-00216, Lynnville Mine, North Millersburg Number 1 Area.
2. IC 4-21.5 and IC 13-4.1 apply to this proceeding.
3. The Department of Natural Resources (the "Department") is an agency as the term is defined in IC 4-21.5. The Natural Resources Commission (the "Commission") is the ultimate authority of the Department with respect to the subject matter of this administrative action.
4. The Commission has jurisdiction over the subject matter and parties to this proceeding.
5. On March 2, 1988, Claimant filed a Motion for Summary Judgment pursuant to 4-21.5-3-23 stating that no genuine issue as to any material fact existed and that Claimant was entitled to a judgment as a matter of law. On March 25, 1988, the Division of Reclamation of the Department of Natural Resources (the "Respondent") filed a Cross-Motion for Summary Judgment and stated that Claimant was not entitled, as a matter of law, to summary judgment and requested that summary judgment be made in its favor.
6. This case shall be considered pursuant to IC 4-21.5-3-23 because there are no material facts in issue.
7. On February 18, 1988, the Deputy Director of the Department's Bureau of Water and Minerals and the Chairman of the Advisory Council for that same bureau and as delegates of the Commission, approved permit #S-00216 for Claimant's Lynnville Mine, North Millersburg No. 1 Area, subject to the following condition: (9) Pursuant to IC 13-4.1-1-2, IC 13-4.1-3-3, IC 13-4.1-34, IC 13-4.1-3-6, IC 13-4.1-4-1, IC 13-4.1-4-2, and IC 13-4.1-8-1 the applicant shall mitigate any adverse impacts of surface coal mining operations upon the potentially significant archaeological/cemetery site known as the Millersburg Mound Site (12W81) before commencing surface mining activities within the site boundaries.
8. The contested condition concerns an archaeological site designated as Site l2W8l and commonly referred to as the "Millersburg Mound". The area has been described as "potentially significant" and although the site is not listed nor eligible for listing on the National Register of Historic Places ' the Department's Division of Historic Preservation has determined that the site "may be eligible for listing."
9. It has been established that Claimant possesses valid existing rights and substantial legal and financial commitments in the area occupied and surrounding the Millersburg mound site. However, in recommending to the Natural Resources Advisory Council for the Bureau of Water and Minerals that it adopt the proposed condition (9) to Claimant's permit #S00126, Respondent noted, "Upon review of all pertinent information, the Division of Reclamation has determined that valid existing rights and a substantial legal and financial commitment does not remove a company's obligation to mitigate adverse impacts of surface coal mining operations upon potentially significant archaeological sites."
10. IC 13-4.1-14 concerns the designation of lands unsuitable for surface coal mining. Any land so designated cannot be mined provided such land is not subject to substantial legal and financial commitments existing prior to January 4, 1988. (IC 13-4.1-14-5.) It is not disputed that Claimant possesses such commitments in the North Millersburg Area prior to that
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date.
11. If this was a petition to declare the Millersburg Mound area unsuitable for mining pursuant to IC 13-4.1-14, the petition would fail due to the fact that Claimant currently, and prior to January 4, 1977, has substantial legal and financial commitments in that area.
12. Condition (9) to permit #S00126 is not part of a lands unsuitable petition and is not intended to completely prohibit Claimant from mining in the Millersburg Mound area. Condition (9) is merely a condition to the permit, not a rejection of Claimant's eventual ability to mine the area. Consequently, IC 13-4.1-14 generally and IC 13-4.1-14-5 in particular, are not applicable to this cause.
13. The question therefore is whether Respondent, through the Commission, has the authority to condition a permit by requiring it to mitigate any adverse impacts mining may have on a potentially significant archaeological site.[FOOTNOTE l]
14. Claimant maintains there is no explicit or implied statutory authority allowing Respondent to condition its #S-00126 permit. Claimant argues that the only explicit protection given historical and archaeological sites is found in IC 134.1-14, and since Claimant already possesses substantial legal and financial commitments to the area in question, Respondent cannot condition its permit.
15. Condition (9) to permit #S-00126 lists seven statutory provisions which Respondent claims gives it the authority to require Claimant to adhere to its provisions. Respondent maintains that these provisions, taken together, demonstrate a legislative concern that archaeological sites be protected and that it was the legislature's intent that the Commission have the authority to condition surface mining permits in order to mitigate against adverse impacts on such sites.
16. When construing the meaning of a statute, it is necessary to give effect to the intention of the legislature. (Baker v. State, 483 N.E.2d 772 (Ind. App. 1985), and Marion County Department of Public Welfare v. Methodist Hospital of Indiana, Inc., 436 N.E. 2d 123 (Ind. App. 1982). The Indiana Court of Appeals in Peabody Coal Company v. Ridenour, 515 N.E.2d 1163 (Ind. App. 1987), stated that the legislative intention regarding the Indiana Surface Mining Act is expressed within the section describing the statute's purposes (IC 13-4.1-1-2).
17. IC 13-4.1-1-2 is one of the statutory provisions enumerated in condition (9). It sets forth the general purposes of Indiana's surface coal mining statute and states in part: it is the purpose of the article to:
(1) Implement and enforce P.L. 95-87, the federal Surface Mining Control and Reclamation Act.
(2) Establish a statewide program to protect society and the environment from the adverse effects of surface coal mining operations.
(4) Assure that the surface mining operations are not conducted where reclamation as required by this article is not feasible. (7) Assure that the coal supply essential to the nation's energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the nation's need for coal as an essential source of energy.
18. According to subsection (1) of this statute, one of the purposes of Indiana's surface coal mining statute is to implement and enforce the federal regulations. The office of Surface Mining ("OSM"), is the federal agency charged with administering and enforcing the federal mining and reclamation program (the Surface Mining Control and Reclamation Act ("SMCRA"). OSM has interpreted the federal statutes as authorizing the mitigation of adverse impacts by such means as permit conditioning. Based upon its belief that SMCRA authorizes the protection of archaeological and historical sites independent of declaring lands unsuitable for mining, OSM published regulations in the February 10, 1987, Federal Register to clarify its position and to promote consistent application of SMCRA by all states.[FOOTNOTE 2]
19. While IC 13-4.1-1-2(2) and (4) do not specifically state that historical and archaeological sites are to be protected, the broad intent of these sections is clearly to protect the environment in general and society in particular from indiscriminate mining practices.
20. That archaeological sites contribute to our knowledge and understanding of our environment and society is surely without question. The question arises, however, as to just how such sites are to be protected within the parameters of Indiana's surface coal mining laws. IC 13-4.1-1-2 clearly sets forth that the environment and society are to be protected from any possible harm surface coal mining may inflict. However, this section also sets forth the importance of coal production to this state and the necessity of balancing the demand for coal as an energy source
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with the need to protect this state's resources and its environment.
21. Consequently, any authority Respondent may have to require mitigation of adverse impacts on archaeological sites must not be done in such a way so as to unjustly burden the production of coal.
22. IC 13-4.1-3-3, as cited in Condition (9), specifies the contents of surface coal mining reclamation operation permit applications. Subsection (a)(13) requires the applicant to provide maps showing all "significant known archaeological and historical sites ... "
23. Claimant maintains that this section is merely an information gathering device intended to be used in implementing IC 13-4.1-14 (designation of lands unsuitable for surface coal mining).
24. While this section reflects no substantive requirement for mitigation in the permit process, it does reflect the intent for what the permit process is suppose to achieve: i.e. the collection of enough data so that the regulating authorities are fully aware of all aspects of any given mining operation. While Claimant is correct to say this information is necessarily a part of any petition to declare lands unsuitable for surface mining under IC 13-4.1-14, this information is also necessary if the ultimate authority is to make any decision pertinent to the eventual mining process.[FOOTNOTE 3]
25. IC 13-4.1-3-4, as cited in Condition (9), specifies the content of reclamation plans. No mention is made in this section of permit conditions or the protection of archaeological sites. However, subsection (a)(16) requires that a plan contain "all other information which the commission shall require by regulation."
26. While this particular section does not explicitly call for mitigation of adverse impacts of mining on potentially significant archaeological and historical sites it, too, points out the necessity of obtaining sufficient information. 310 IAC 12-3-29 requires each applicant to identify historical and cultural resources listed on the National Register of Historic Places and known archaeological features within the permit area. This regulation further requires a description to be based on all available information "including but not limited to data of state and local archaeological, historical, and cultural preservation agencies."
27. Subsection (a)(16) of this statute delegates broad authority to the Commission in respect to obtaining, through regulation, the information necessary to approve a proposed reclamation plan. 310 IAC 12-3-29 is one such regulation and is intended to provide such information in regards to historical and archaeological sites. And, as previously mentioned, that information, once gathered, can provide the basis for some action to be taken by the ultimate authority, most conceivably during the permitting process.
28. On June 9, 1987, the Director of the Department received a "732 letter"[FOOTNOTE 4] from OSM concerning the consideration to be accorded historic properties during the permitting process. Indiana was requested to submit to OSM proposed state program amendments adhering to the SMCRA regulations or an explanation as to why such regulations were not necessary.
29. Indiana, through the Division of Reclamation, chose to answer OSM's "732 letter" by proposing new rules equivalent to the federal regulation published on February 10, 1987.[FOOTNOTE 5] Respondent maintains that these proposed regulations are not "new" rules but, much like the federal regulations, a clarification of pre-existing policies within the Division of Reclamation.[FOOTNOTE 6]
30. The intent of the SMCRA regulations to allow for mitigation of adverse mining impacts on potentially significant sites through permit conditioning and Respondent's response to OSM's "732 letter" indicate that the regulating authority does have the ability to condition a permit as provided for in IC 13-74.1-3-4(a)(16).
31. IC 13-4.1-3-6 provides for coordination of permit issuance with applicable requirements of various specified federal laws including the National Historic Preservation Act of 1966, (16 U.S.C. 470, et. seq.) (the "NHPA").
32. The NHPA was created in order to establish a national policy encouraging historic preservation. According to Respondent, state surface mining grants are conditioned upon a state's ability to ensure that appropriate consideration is given to the effect of particular undertaking will have on historic properties.
33. Consequently, the recognition of historic preservation, based upon the coordinating requirements of this statute, must be part of the permitting process and underscores the legislative intent to protect historical property during the permitting process.
34. IC 13-4.1-4-1 requires that the Director give notice of permit applications to agencies who may have an interest in the proposed
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mining operation including the state historic preservation officer (the "SHPO").
35. It is apparent that this statute, as well, is an information gathering device intended to provide the ultimate authority with all necessary data concerning archaeologic or historic properties prior to the final approval to the permit application. While this information clearly can be used as a basis for approving or denying a lands unsuitable petition, as Claimant correctly points out, there is nothing within the statute to suggest that it is intended only for that purpose and has no relevance to the permitting procedure.
36. IC 13-4.1-2 concerns the filing of written objections to an application for a permit to conduct surface mining operations. This section is basically procedural in nature and has no bearing on whether Respondent has the authority to condition Claimant's permit by requiring that it mitigate all adverse impacts of mining on potentially significant sites.
37. IC 13-4.1-8-1 sets out the performance standards with which surface coal mining operators must comply. There is no standard specifically relating to the protection of historical or archaeological sites within this particular section but section (26) states: In addition to any other standards which the commission may require compliance with by a permittee, a permittee shall do as follows: (26) Meet other criteria established by the commission and which are necessary to achieve reclamation in accordance with the purposes of this article, taking into consideration the physical, climatological and other characteristics of the site.
38. This section specifically deals with 25 performance standards required to be followed during the actual mining and reclamation operations. Each subsection is fairly specific in nature and not intended as a broad policy statement covering the entire mining spectrum. It merely focuses on what must be done in order that proper mining and reclamation procedures are conducted.
39. Subsection (26) also must be read in this light. It allows the Commission to establish other criteria it deems necessary to promote proper mining and reclamation techniques, but this does not necessarily encompass the protection of archaeologic and historic sites.
40. Claimant correctly points out that this section (IC 134.1-8-1) of Indiana's surface coal mining statute has no relevance to the validity of condition (9), since condition (9) is concerned with the permitting process and not the actual mining and reclamation operations. However, neither does this section, as Claimant suggests, reveal that the legislature never intended to impose such a requirement as condition (9) on mining operators. IC 13-4.1-8-1 merely lists performance standards the legislature believes necessary in order to properly reclaim mined land; it neither demonstrates nor repudiates Respondent's claim that it may condition permits by requiring adverse impacts be mitigated on potentially significant archaeological sites.[FOOTNOTE 7]
41. During the 1988 legislative session, the General Assembly passed a new section IC 13-4.1-43.1 which authorizes the Commission to impose conditions on surface coal mining and reclamation operation permits requiring mitigation of adverse impacts of mining at sites listed or eligible for listing on the National Register of Historic Places. Claimant contends that under this new section condition (9) to permit #S-000126 could not be imposed because the Millersburg Mound is only a "potentially significant site" and not listed nor eligible for listing on the National Register of Historic Places.
42. This new section (commonly referred to as Senate Enrolled Act 121) was signed by the Governor on March 5, 1988 and will not take effect until July 1, 1988. Neither has this section been approved as yet by OSM as an amendment to Indiana's permanent regulatory program governing surface coal mining operations. It remains unclear whether OSM will accept what is currently S.E.A. 121 or reject it as being less stringent and less effective than the federal program, thereby eliciting another "732 letter" informing the Department that it must amend its law.
43. Richard Gantz, Director of the Historic Preservation for the Department, has noted the similarity between the Millersburg Mound Site and another archaeological site (site l2Wl63 known as the Bluegrass site) which has produced substantial information on past cultural systems. While he noted that it is difficult to determine whether Millersburg Mound will be of the same caliber and significance as the Bluegrass site, he did state that the site "has given several indications that it may be eligible for inclusion to the State and National Registers."
44. A stated purpose of Indiana surface coal mining law is to protect society and the environment. It is inconceivable that archaeological and historic sites
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are not meant to be protected even though their potential significance has yet to be officially determined.
45. It is clear that throughout IC 13-4.1 the ability of the regulating authority to gather sufficient information regarding any permit application is essential to ensuring that society and the environment are protected. To give the regulating authority the ability to acquire this information and then deny it the means by which to act on that information, would render much of IC 13-4.1 meaningless.
46. IC 13-4.1-1-2, IC 13-4.1-3-3, IC 13-4.1-3-4, IC 13-4.1-3-6 and IC 13-4.1-4-1 all combine to demonstrate that the legislative intention was not only to protect known archaeological and historic sites, but that potentially significant sites may also be protected by means of requiring a permittee to mitigate any adverse impacts on such sites through permit conditioning.
47. Another stated purpose of Indiana's surface coal mining law is to achieve a balance between protecting our total environment with the insurance that the production of coal within our state is not needlessly hampered, financially or otherwise.
48. By requiring Claimant to mitigate any adverse impacts its surface coal mining operations may have on a potentially significant archaeological site, Respondent is within its authority to do so. However, such requirements must not be so arduous or financially inhibiting so as to make future mining at the site unfeasible. Any mitigation required of Claimant must be feasible from a financial and practical aspect.[FOOTNOTE 8]
49. Condition (9) to Claimant's permit #S-00126 is valid and the Commission, or its delegate, is within its authority to require mitigation of any adverse impacts mining operations may have on a potentially significant archaeological site.
FOOTNOTES
1. Neither party disputes the Commission's authority to impose conditions on a permit. Indeed, IC 13-4.1-4-7 expressly states, "Each permit issued by the commission is subject to conditions imposed by the commission.... " Claimant, however, contends that the Commission may only condition a permit where it has the legal authority to do so and, according to Claimant, the Commission does not possess that authority in this case.
2. Further discussion of these regulations will be found in later findings.
3. Once this information has been gathered, it is only reasonable that the regulating authority be then able to use this information whether it be in the form of approving the permit, denying the permit, or in limiting the scope of the mining operation in some fashion. In National Wildlife Federation vs. Hodell, No. 811-5743 (D.C. Cir., 1988), the Circuit Court of Appeals stated that although the SMCRA Section 508 Reclamation Plan requirement was basically an information gathering device and did not independently impose substantive performance standards, the court did state: A more credible claim would be made that Section 508(a)(13)(c), by requiring both surface and underground mine operators to provide a description of their sources of water where protection of the water supply cannot be assured, authorize the Secretary to do something with that information, i.e. to require underground mine operators to replace damaged water supplies or to allow state regulatory authorities to require from underground mine operators, as a permit condition, commitments to replace damaged water supplies. Id. at 127.
4. A "732 letter" derives its name from 30 CFR 732.17 which provides for substituted federal enforcement or withdrawal of approval of the state program which the state does not submit a required program amendment.
5. These rules have been preliminarily adopted by the Commission and are currently the subject of a pending rule-making proceeding.
6. Claimant maintains that Respondent, by submitting to the Commission revised rules, has implicitly admitted that the Commission currently lacks such authority. Claimant further notes other occasions where representatives
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of the Division of Reclamation have themselves made statements suggesting they did not believe they had the authority to condition permits similar to Peabody's #S-00126 permit. While Respondent's handling of previous questions regarding its ability to impose permit conditions relating to archaeological sites has been inconsistent at best, it must be noted that such behavior, in and of itself, does not deny any authority already bestowed on it. Furthermore, the issue involved in this cause is essentially one of first impression and is not a situation the Division of Reclamation, or anyone else, would necessarily already have a definitive answer to.
7. Claimant maintains that the validity of condition (9) has no relation to achieving proper reclamation of a mine site. Respondent, on the other hand, maintains that "reclamation" should be read, and was intended to be read, in its broadest sense, i.e. that "reclamation" can be used interchangeably with environment. While the merits of these arguments will not be discussed here, it is necessary to note that reclamation plays a part in this decision to the extent that it is an integral part of the permitting process. A permit will not be issued unless the final results of mining are assured to be adequate.
8. This case was brought on summary judgment and thus no question of fact is in issue. No evidence has been presented before the administrative law judge regarding the requirements Claimant must fulfill in order to mitigate any adverse impact its mining operations may have on the Millersburg Mound Site and if those requirements are unduly burdensome.