The grading deferral requested by Jaeco, Inc. in its letter of October 24, 1988 is denied.
FINDINGS OF FACT
1. The department of natural resources (the "Department") is an "agency" as the term is defined in IC 4-21.5-1-3. The administrative adjudication act (IC 4-21.5) is applicable to an agency action of the Department.
2. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
3. This proceeding is brought within the provisions of the Indiana Surface Mining Control and Reclamation Act as found in IC 13-4.1 ("SMCRA"). At issue is the denial of a request for a grading deferral dated October 1988 for surface coal mining and reclamation permit S-00118 (the "permit") held by Jaeco, Inc.
4. The statutory authority for the rules governing grading deferrals is set forth in IC 13-4.1-1-2(6), IC 13-4.1-8-1(3), and IC 13-4.1-8-1(16).
5. The standards applicable to grading are set forth in 310 IAC 12-5-54.1 and 310 IAC 12-5-53. The latter section specifies that "Reclamation efforts, including ... backfilling [and] grading... shall occur as contemporaneously as practicable with mining operations."
6. 310 IAC 12-5-54.1(a)(2) specifies that backfilling and grading for direct haul back operations shall be carried out continuously behind the pit being worked. 310 IAC 12-5-54.1(a)(4) requires all operations to have rough backfilling and grading completed within one year.
7. As provided in 310 IAC 12-5-54.1(c), the director of the Department (the "Director") "may grant variances to the limitations" contained in subsection 54.1(a) "for good cause" not exceed a period of one year.
8. The Director is the ultimate authority for the Department for the grant or denial of grading deferrals not to exceed one year. The Director is the ultimate authority in this proceeding.
9. The Department considers the following criteria when determining whether a request for grading deferral has demonstrated "good cause":
A. all potential environmental consequence of the grading deferral;
B. consistency of the grading deferral with the mining plan and the plan of reclamation;
C. whether there are unjustified lags in current reclamation;
D. the total area currently under deferral by the applicant and its history of reclaiming deferred areas;
E. whether the area encompassed by the request is limited to the smallest area which is technically practicable;
F. whether the time for the deferral is justified technically and is consistent with the overall mine plan;
G. whether there are any alternatives to the request;
H. the extent of currently existing reclamation liability; and
I. any other circumstances that are pertinent to whether the applicant will be able to complete reclamation if the grading deferral is granted.
10. An applicant for a grading deferral is seeking that the Department provide the person with particular relief. As provided in IC 421.5-3-14(c), "[a]t each stage of the proceeding, the ... person requesting that an agency take action... has the burden of persuasion and the burden of going forward with the proof of the request ...."
11. An applicant for a grading deferral has the burden of persuasion and the burden of going forward with the proof of the request that the applicant is entitled to a grading deferral.
12. Jaeco, Inc. has the burden of persuasion and the burden of going forward with the proof of its request in this proceeding for a grading deferral.
13. The permit requires that Jaeco, Inc. complete backfilling and grading within 180 days of final coal removal.
14. Jaeco, Inc. conducted its most recent mining
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activity, in the form of blasting near the western edge of the permitted area along the south end of a highwall, in June 1988.
15. In its original mine plan map, Jaeco, Inc. showed that mining activities would continue westward, but a post-mining land use change application which provides for a permanent impoundment may be inconsistent with the original plan. In addition, representatives of the company stated orally to an employee of the Department that Jaeco did not intend to continue mining activities to the west.
16. On October 24, 1988, Jaeco, Inc. made a written request of a "Short Term Grading Deferral" for approximately 18 acres of its permit. The request stated that "Jaeco, Inc. will need less than a year to complete all reclamation in this area. We had intended to have this area finished by fall, but we will probably not be able to do so."
17. The October 24, 1988 request for a grading deferral stated no basis upon which the Director might find "good cause" to grant the request.
18. On December 20, 1988, the Department's division of reclamation (the "Division") wrote to Jaeco, Inc. and indicated, in part, that the "grading deferral request must ... indicate a reason for such deferral."
19. On March 1, the Division prepared a draft letter for signature by the Director to notify Jaeco that its grading deferral had been denied. That letter was mailed on March 1 0, 1989.[FOOTNOTE i]
20. Prior to March 1, 1989, Jaeco, Inc. did not submit additional information to supplement the October grading deferral request. Neither had Jaeco, Inc. responded to the letter of December 20, 1988 referenced in Finding 18.
21. In 1988, Jaeco, Inc. did submit documentation to the Division relative to its various mining and reclamation activities under the permit. There was no effort made by Jaeco prior to March 1, 1989 to correlate this documentation to the grading deferral request, either by the submission of this documentation within a cover letter identifying the grading deferral request or by a letter cross-referencing the documentation.
22. Particularly in light of the apparently conflicting statements of future mining intentions made by Jaeco, the Division was not obliged to construct for Jaeco its "good cause" for the grading deferral.
23. Jaeco, Inc. failed, in its submission to the Division relative to the grading deferral request, to establish any reasonable basis for granting that request. The burden of persuasion rested with Jaeco; and the company clearly did not meet that burden.
24. Jaeco, Inc. is not entitled to relief in this proceeding.
FOOTNOTE
i. The evidence does reflect that some additional information was mailed on behalf of Jaeco, Inc. by Donan Engineering Co. Inc. on March 3, 1989 with respect to the subject grading deferral request and another grading deferral request. Evidence deduced at hearing with respect to the March 3 letter was not adequate to make a determination as to its role in establishing "good cause" for the deferral. In any event, the late date of the submission must be considered in weighing its import.