[CITE: B.F.C. Coal Company, Inc. v. Department of Natural Resources, 5
CADDNAR 219 (1991)]
[VOLUME 5, PAGE 219]
Cause #: 90-160R
Caption: B.F.C. Coal Company,
Inc. v. Department of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Owen, pro se; Posey
Date: September 20, 1991
ORDER
[NOTE: ON FEBRUARY 28, 1992,
THE DAVIESS CIRCUIT COURT ON JUDICIAL REVIEW APPROVED A CONSENT AGREEMENT BY
WHICH THE PARTIES AGREED THAT "NOV #N05145-S-00095-1 WAS PROPERLY,
VALIDLY, AND LAWFULLY ISSUED." DAVIESS CIRCUIT COURT FINDINGS OF FACT AND
CONCLUSION OF LAW ARE ATTACHED.]
Notice
of Violation N00514-S-00095-1 is hereby vacated.
FINDINGS OF FACT
1.
The Department of Natural Resources ("DNR") is an agency within the
meaning of IC 4-21.5.
2.
The DNR is responsible for the regulation of surface coal mining under IC
13-4.1.
3.
The Division of Reclamation ("DOR") is the branch of the DNR which
enforces IC 13-4.1.
4.
IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these
proceedings.
5.
The Natural Resources Commission ("NRC") and administrative law
judges employed by the NRC are the ultimate authorities within the meaning of
IC 4-21.5 to requests for review of agency actions brought under IC 13-4.1.
6.
In matters involving enforcement of surface mining statutes and rules, the
administrative law judge is the ultimate authority.
7. At
all times relevant to these proceedings, BFC Coal Company ("BFC")
held surface coal mine permit S-00095 issued by the DNR/NRC which allowed
mining at Glendale #1 mine in Daviess County, Indiana.
8.
On May 14, 1990, an authorized representative of the DOR issued notice of
violation (NOV) N005014-S-00095-1 to BFC.
9.
BFC filed a timely written request for review of the NOV on May 25, 1990.
10.
The NOV alleges that BFC failed to timely restore affected areas to the
approved postmining land use and required the permittee to submit a request for a post-mining land use
change to the NRC by June 13, 1990, and wave it approved. (Respondent's Exhibit
B)
11.
During prior inspections, the inspector had noted the failure to promptly
reclaim the area in question in accordance with the permit.[FOOTNOTE 1]
12.
During the spring of 1990 and before, the policy of the DNR/DOR was to only
require that a request for a post-mining land use change be filed with the
Department to avoid or abate an NOV. In part, this policy evolved because it
frequently took over six months to receive approval for a post-mining land use
change and contemporaneous reclamation must generally take place within six
months after mining takes place.
13.
Also in May of 1990, inspectors would not be aware of the filing of a request
for postmining land use changes.
14.
The policies referred to in paragraphs 12 and 13 were changed in the fall of
1990 and the inspector is now a principal in a request for post-mining land use
changes. Furthermore, most such applications are now approved or disapproved by
DOR within 30 days after filing the request for change.
15.
The evidence in this case (Claimant's Exhibit 1) shows that the permittee filed a request to modify the previously approved
post-mining land use in its permit by adding the ponds ( and
other changes) on April 23, 1990, some three weeks before the NOV was issued.
16.
Exhibit 1 also shows that the request for modification was eventually granted
by the DNR on March 12, 1991.
17.
Had the NOV in question been issued during a prior inspection, there is no
question that a violation occurred and the NOV should be affirmed.
18.
However, the NOV was not issued until the May 1990 inspection. By that time,
unbeknownst to the inspector, the permittee had
applied for a post-mining land use change.
19.
At this time, the only act an operator needed to perform to avoid (or abate) an
NOV like this was to file a request for a permit change and ultimately have it
approved. The permittee in this case had already
taken this step three weeks prior to the issuance of the NOV and some eleven
months later, the request was approved and the permit modified.
20. Under these
[VOLUME 5, PAGE 220]
circumstances, the NOV should be vacated.
FOOTNOTE
1. The
permittee had clearly left permanent ponds in an area
designated in the permit as pasture or forest land.
_______________________________________________________________________
[NOTE: CADDNAR citation does not apply to the Daviess Circuit Court entry.]
DAVIESS CIRCUIT COURT
AGREED FINDINGS OF FACT
1.
Petitioner Indiana Department of Natural Resources is an agency of the State of
Indiana and is duly empowered to administer and enforce the provisions of the
Indiana Surface Mining Control and Reclamation Act, IC 13-4.1.
2.
The Division of Reclamation is the branch of the Department of Natural
Resources which administers and enforces IC 13-4.1.
3.
IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these
proceedings.
4.
At all times relevant to these proceedings, BFC Coal Company (BFC) held surface
coal mine permit S-00095-1 issued by the Department of Natural
Resources/Natural Resources Commission which allowed mining at Glendale No. 1
Mine in Daviess County, Indiana.
5.
On May 14, 1990, an authorized representative of the Division of Reclamation
issued Notice of Violation #N005014-S-00095-1 (NOV) to BFC which alleged that
BFC failed to timely restore areas affected by its mining to the post-mining
land use approved by the state in that permit.
6.
BFC was not assessed a civil penalty for the NOV.
7.
BFC filed a timely written request for review of the NOV on May 25, 1990.
8.
On September 29, 1991, following a formal administrative hearing under IC
4-21.5, the Administrative Law Judge issued his Report, Findings of Fact and
Final Order vacating the NOV.
9.
The Administrative Law Judge, however, found that "the permittee
had clearly left permanent ponds in an area [still] designated in the permit as
pasture or forest land." ALJ Finding of Fact, footnote 1.
10.
BFC did intend to, and did, in fact, leave permanent ponds or basins on an area
which had not yet been approved, by the Division of Reclamation, for such a
post-mining land use.
11.
BFC's permit indicated a forest post-mining land use for the permit areas in
question at the time the NOV was issued.
12.
The Natural Resources Commission, the entity which approved and issued surface
coal mining permits at the time the subject permit was issued, had not yet
approved any alternative post-mining land uses (from forest to permanent
impoundment) for the area described in the NOV at the time the NOV was issued
despite the fact that BFC had submitted an application for a change in the
post-mining land use.
13.
The basins built on the areas cited as in violation did not comply with a
forest post-mining land use.
CONCLUSIONS OF LAW
14.
IC 13-4.1-8-1(8) allows creation of permanent impoundments only if so
authorized by the regulatory authority, in this case the Natural Resources
commission.
15.
310 IAC 12-5-68(c) specifies the criteria that must be met before alternative
land uses can be made.
16.
310 IAC 12-5-68(a) requires that all affected areas be restored in a timely
manner to:
(1)
To conditions that are capable of supporting the uses which they were capable
of supporting before any mining; or
(2)
To higher or better uses achievable under criteria and procedures of this
Section.
17.
310 IAC 12-3-48 requires the submission of a reclamation plan to the Department
of Natural Resources' Division of Reclamation which details how a proposed
post-mining land use can be achieved, the necessary support activities which
may be needed to achieve this use, and where a proposed land use is different
from the pre-mining land use, a description of all the materials needed for
approval under 310 IAC 12-5-68.
19. [18. MISNUMBERED IN ORIGINAL] The
Department of Natural Resources' Division of Reclamation is the regulatory
agency which is authorized to make the necessary decisions required by IC 13-4.1-8-1(8),
310 IAC 12-3-48, 310 IAC 12-5-68(a), and 310 IAC 12-5-68(c).
20.
BFC was required to secure prior approval from the Department of Natural
Resources' Division of Reclamation to change its permit before implementing
changes in the field. 21. NOV #N05145-S-00095-1 was properly, validly, and
lawfully issued.
ORDER
1.
NOV #05145-S-00095-1 is affirmed.
2.
NOV #05145-S-00095-1 will be terminated by the Division of Reclamation.
3.
No civil penalty will be assessed for this violation.
4.
NOV #05145-S-00095-1 will not be used by the Division of Reclamation for
purposes of issuing a Show Cause Order for permit suspension or revocation
under IC 13-4.1-11-6.
5.
The Petition for Judicial Review filed by Respondent is dismissed.