[CITE: United Minerals, Inc. v. DNR, 5 CADDNAR 128
[VOLUME 5, PAGE 128
Cause: 89-243R
Caption: United Minerals,
Inc. v. DNR
Administrative Law Judge: Rider
Attorneys: Hargis; Law
Date: July 26, 1990
ORDER
[NOTE: THIS CASE HAD BEEN
REVERSED BY THE NRC, BUT THE DECISION OF THE ALJ WAS REINSTATED BY THE PIKE
CIRCUIT COURT, CAUSE 63C01-9009-CP-189, AS SET FORTH BELOW. THE NRC DECISION IS
SET FORTH IMMEDIATELY BELOW (AND NOT THE DECISION AS WRITTEN BY THE ALJ.)]
Motion
for Summary Judgment filed by United Minerals, Inc. is denied.
Crossmotion for Summary Judgment filed by the Department of Natural
Resources is granted.
Notice
of Violation N91024-S-00194 is affirmed.
FINDINGS OF FACT
1.
On November 16, 1989, United Minerals, Inc. (the "Claimant") filed a
request for review of Notice of Violation (NOV) N91024-S-00194.
2.
The Claimant holds permit S-00194 to conduct surface coal mining operations in
Pike County at its Mallard Marsh Mine.
3.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
4.
The Department of Natural Resources (the "Department") is an agency
as defined in IC 4-21.5-1-3. The Natural Resources Commission (the
"Commission") is the ultimate authority for the Department with
respect to this proceeding.
5.
Steven J. Weinzapfel, an authorized representative of
the Department, issued the NOV involved in this action.
6.
The NOV charged the Claimant with "failure to file bond for succeeding
increments with the Department at least 30 days prior to commencing any surface
coal mining and reclamation operation on that incremental area, and failure to
maintain continuous bond coverage during the active operations."
7.
The above charge would be a violation of 310 IAC 12-4-5(b) and (c) according to
the NOV.
8.
The material facts in this case are not in dispute.
9.
For the permit in question here the Claimant had submitted bond for three
segments: A, B and C. These segments did not comprise the entire permit. Only
bond segment B is involved here.
10.
Bond segment B was fully bonded at 49 acres.
11.
Sometime after bond segment B was approved, the landowner approached the
Claimant and asked him to construct a sediment pond adjacent to bond segment B
which could be left as a permanent impoundment.
12.
In order to satisfy the landowner, the Claimant redesigned bond segment B by
adding one acre on which the requested sediment pond would be located and
subtracting one acre at another point of bond segment B. Under the revision,
bond segment B remained 49 acres. (See Exhibit A)
13.
On or about October 12, 1989, the Claimant communicated to the inspector (Mr. Weinzapfel) and submitted to the Department, his
modification of bond segment B.
14.
Sometime later than October 12, 1989, but before October 24, 1989, the Claimant
began work on the pond.
15.
On October 24, 1989, the NOV was issued to the Claimant.
16.
On November 1, 1989, the bond relocation was approved by the Department and the
NOV was terminated.
17.
The Claimant has asked for Summary Judgment and vacation of this NOV claiming
that 310 IAC 12-4-5 (b) and (c) were not violated because this is not a
succeeding increment and no new bond was required because bond segment B was
always 49 acres and was fully bonded as such.
18.
The Department has asked for Summary Judgment and affirmation of this NOV
maintaining that this one acre area was not part of bond segment B because the
revision of bond segment B had not yet been approved and therefore the Claimant
was mining on a succeeding increment which was not bonded.
19.
The Respondent's arguments are well taken. The requirement to file bond on a
succeeding increment 30 days prior to commencing operations, contained in 310
IAC 12-4-5(b), would apply here.
20.
Since the Claimant disturbed the one acre addition prior to receiving Division
of Reclamation approval, he violated 310 IAC 12-4-5(b) and the Notice of
Violation here is proper.
_______________________________________________________________________
[NOTE: CADDNAR citation does not apply to the Pike Circuit entry.]
PIKE CIRCUIT COURT (CAUSE
63C01-9009-CP-189)
FINDINGS
1.
The Petitioner, UMI, has standing to petition the Pike Circuit Court for
judicial review in that UMI is the person to whom the agency action is
directed, was a party to the agency proceeding that
led to the agency action, and is a person aggrieved and adversely affected by
the agency action.
2.
Petitioner, UMI, has fully exhausted all administrative remedies available
within the agency, NRC, whose action is being challenged.
3.
The Petitioner, UMI, was conducting surface mining and reclamation operations
at its mine in Pike County, Indiana, commonly called "Mallard Marsh
Mine" under a permit approved by the Department of Natural Resources
("DNR").
4.
The total permit area which had been approved by the DNR for mining and
reclamation is shown by the broken lines on the map hereof.
5.
By regulation which applies to all operators, UMI could not mine on any area of
the permit that was not insured for reclamation by a performance bond. (IC
13-4.1-6-1)
6.
UMI had designated three (3) segments, A, B, and C, within the permit area
shown on Exhibit "A" for the submittal of bond; these segments did
not comprise the entire permit area; bond had been submitted to DNR for forty-nine
(49) acres on bond segment "B".
7.
While UMI was mining the area designated as bond segment B shown in Exhibit
"A", the landowner requested that UMI construct a pond on one (1)
acre immediately adjacent to bond segment B but still within the permit area.
8.
In order to oblige the landowner's request, UMI redesigned bond segment B by
eliminating one (1) acre in bond segment B and adding a new acre at the site
where the landowner requested the pond. The eliminated one (1) acre is
designated in red on Exhibit "A", and the area requested by the
landowner for construction of the pond is designated in green on Exhibit
"A".
9.
After modification of bond segment B, swapping one (1) acre for another, bond
segment B remained forty-nine (49) acres, as it was before, all within the
permit area.
10. Before
beginning work on the area on which the landowner requested the pond, UMI
communicated with its DNR inspector to inform him of the modification of bond
segment B and submitted a map to show the modification.
11.
After UMI had begun work on the pond located on the substituted one (1) acre
and approximately two (2) weeks after UMI had notified DNR of the modification,
UMI was issued a notice of violation ("NOV"), which cited violation
of the following provisions found at 310 IAC 12-4-5(b) and (c):
(b)
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 and reclamation operations are to be initiated and
conducted within the permit area, the permittee shall
file with the Department an additional bond or bonds to cover such increments
in accordance with this section. Bond for succeeding increments shall be filed
with the Department at least 30 days prior to commencing any surface coal
mining and reclamation operations on that incremental area.
(c)
Performance bonds for surface disturbances of underground operations and other
long-term operations may be bonded for a period not less than the permit term;
however, continuous bond coverage be conditioned to extend, replace, or pay the
full amount of bond 120 days prior to the expiration of any bonds term.
(Department of Natural Resources; PT 800-11; filed Sep 28, 1981, 1:30 pm: 4 IR
2288; filed NOV 17, 1982, 9:27 am: 6 IR 81)
12.
Although DNR later issued its approval of the modification and terminated the
NOV, the NOV was not vacated and removed from the record or UMI, which is the
requested relief of UMI.
13.
Both the Petitioner (UMI) and the Respondent (DNR) agreed that the facts were
undisputed and moved the Administrative Law Judge for summary judgment in the
administrative proceeding.
14.
On June 5, 1990, the Administrative Law Judge, Tim Rider, granted summary
judgment to UMI and denied summary judgment to DNR. Under his order, the NOV
was vacated.
15.
DNR objected to the summary judgment granted by the Administrative Law Judge
and the matter was taken before the NRC; the NRC, on July 26, 1990, rejected
the summary judgment order granted by the Administrative Law Judge and granted
summary judgment to DNR.
16.
The above described conduct of UMI did not constitute violations of either 310
IAC 12-45(b) or 310 IAC 12-4-5(c), and the Notice of violation is not in
accordance with law.
17.
As a matter of law, UMI's conduct did not require prior approval of DNR
pursuant to 310 IAC 12-4-5(b).
18.
As a matter of law, the substitution of one acre for another did not constitute
a "succeeding increment" under 310 IAC 12-4-5(b).
19.
In that substitution of one acre for another did not constitute a
"succeeding increment" and in that the acre was already bonded, UMI was
not required to submit the substitution thirty (30) days prior to commencing
any surface coal mining and reclamation pursuant to 310 IAC 12-4-5(b).
20.
UMI an did not fail to maintain continuous bond coverage under 310 IAC
12-4-5(c) since forty-nine (49) acres were always bonded.
21.
The purpose of 310 IAC 12-4-5(b) and (c) is to prohibit mining in an area not
bonded or in an area not approved under the permit; UMI's conduct did not
violate either prohibition.
22.
IC 13-4.1-6-1, provides as follows: After a surface coal mining and reclamation
permit application is approved but before that permit is issued, the applicant
shall file with the director, on a form prescribed and furnished by the
director, a bond for performance payable to the State and conditional upon
faithful performance of all the requirements of this article and 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 and reclamation operations are initiated and conducted
within the permit area, the permittee shall file with
the director an additional bond or bonds to cover those increments in
accordance with this chapter. To the extent that 310 IAC 12-4-5(b) purports to
require prior approval of UMI's conduct or to the extent that it purports to
require submission of the modification made by UMI thirty (30) days prior to
commencing any surface coal mining or reclamation operation, such regulatory
provision constitutes legislation on the part of the Respondent and is outside
the scope of the governing statute.
23.
Had the Legislature intended to require an operator to submit such
modifications at least thirty (30) days prior to commencing any surface coal
mining and reclamation operations, it would have stated such "thirty (30)
day requirement" as the Legislature had done by express language, for
example, in IC 13-4.1-6-7.
24.
Even if 310 IAC 12-4-5(b) were not outside the scope of IC 13-4.1-6-1 the
language of the regulation is quite clear in the requirement that
"bond" shall be filed at least thirty (30) days prior to commencing
operation, and, since bond was already filed, the Petitioner, UMI, did not
violate 310 IAC 12-4-5(b) by commencing operations sooner than thirty (30)
days.
25.
To the extent that DNR has a policy requiring prior approval of a substitution
of acreage such as was submitted by UMI, such policy is not supported by the
applicable statutes or regulations and, therefore, has not been promulgated to
IC 4-22-2-3 et. seq., accordingly, the so called "policy" may not be
the basis of a notice of violation.
26.
Pursuant to the provisions of IC 4-21.5-3-23, the Administrative Law Judge is
the "ultimate authority", concerning matters that are decided by
summary judgment, and, therefore, the action of the NRC was contrary to law, as
a result of which the Petitioner was denied due process of law.
27.
Although IC 4-21.5-3-29 provides that the NRC is the ultimate authority to
affirm, modify or dissolve an order of the Administrative Law Judge "under
Section 27" (referring to IC 4-21.5-3-27), since the original decision of
the ALJ was granted pursuant to IC 4-21.5-3-23, the NRC had no legislative
authority to reverse the decision of the ALJ favorable to UMI.
28.
The Notice of Violation and the decision of the NRC upholding said Notice of
Violation has prejudiced the Petitioner, UMI.