[CITE: United Minerals v. DNR, Div. of Reclamation, 5
CADDNAR 191 (1991)]
[VOLUME 5, PAGE 191]
Cause #: 90-110R
Name: United Minerals v. DNR,
Div. of Reclamation
Administrative Law Judge: Rider
Attorneys: Hargis; Law
Date: May 22, 1991
ORDER
Notice
of Violation N00329-S-00214 is affirmed.
FINDINGS OF FACT
1.
On April 17, 1990, United Minerals, Inc. ("United") filed a request
for review of Notice of Violation N00329-S-00214 ("NOV").
2.
The NOV charges United with "failure to restore all affected areas to the
approved postmining land use."
3.
United holds permit S-00214 which allows it to conduct surface coal mining
operations at its Pit #4 mine in Daviess County.
4.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
5.
The natural resources
commission (the "Commission") is an agency as defined in IC
4-21.5-1-3 and is the ultimate authority for this proceeding.
6.
The NOV was written by Steve Weinzapfel, an
authorized inspector from the division of reclamation ("DOR").
7.
The NOV charges that United built a pond out of a portion of the final pit on
an area designated cropland in the reclamation plan.
8.
United points out that the landowner, Mr. Delbert Graber, made a last-minute
request to leave part of the pit as a pond.
9.
Based on Mr. Graber's request, the pond was constructed. A request for a postmining land use change was submitted but not approved.
10.
The Claimant argues for vacation of the NOV on two basis:
a.
The issuance of the NOV was premature because a miner has 180 days to complete
backfilling and need only receive the approval for a postmining
land use change during said 180 days, and
b. that the miner and
landowner are legally entitled to the change because the change request meets
all the criteria of the law; and therefore, the Commission or its delegate has
no authority to disapprove it.
11.
None of the Claimant's arguments will cause vacation of this NOV.
12.
The Commission in Marigold Mining, Inc.
v. Department of Natural Resources, 5 Caddnar 165
(1991), articulated the following in regard to reclamation:
a. that provisions of 310 IAC
12-5-68(c) require that the permit area be restored in a timely manner, and
b.
that under the provisions of IC 13-4.1-1-2 the Department is charged with
assuring that adequate procedures are undertaken to reclaim surface area as
contemporaneously as possible with surface coal mining operations. IC 13-4.1-1-2(6).
13.
In Marigold, the Commission rejected the miner's argument that he had until
bond release to conform to the reclamation plan.
14.
The same principle should be applied here to reject the Claimant's 180 days to
backfill argument.
15.
Clearly, the backfilling had not been performed to conform
the approved postmining land use, e.g. cropland,
because a pond had been constructed.
16.
The DOR policy at that time and now, was and is, to
require approval of postmining land use changes prior
to deviations from the reclamation plan.
17.
This policy is supported under and probably required by ISMCRA law.
18.
The Claimant correctly notes that the Commission held in McIntire and Bryant v. Northern Coal, Cause No. 88-303R, 5 CADDNAR
70 (1989), a postmining land use change not objected
to by the landowner shall be approved if the criteria of 310 IAC
12-5-68(c)(1-10) are met.
19.
McIntire certainly does not stand for the principle that the submission of
paperwork is the approval. Obviously the word "shall" only applies
after the DOR investigates and determines that the applicable criteria have
been met.
20.
United argues that to disallow a last minute request by the landowner to
reclaim in a manner different from that approved by reclamation plan would be
unfair to said landowner.
[VOLUME 5, PAGE 192]
21.
The administrative law judge fails to see any unfairness in this scenario. Mr.
Graber had several years to request the change in question here.
22.
If a landowner makes a last minute request to the miner which would require
said miner to deviate from the reclamation plan the miner has two choices:
a. refuse the request if
approval cannot be obtained, or
b. grant the request, submit
the change request and hope approval is obtained in time to legally perform the
requested work.
23.
There is no legal basis for submitting the change and performing the work prior
to approval.