Notice of Violation NOV114-S-00035 is modified to substituted the area outlined in yellow on Exhibit A as the location of the violation. Notice of Violation N01114-S-00035 is affirmed as modified.
FINDINGS OF FACT
1. On December 11, 1990, the claimant, BP America, Inc. (BP), requested review of Notice of Violation (NOV) N01114-S-00035 issued to Old Ben Coal Co. (Old Ben) on November 14, 1990.
2. BP was an owner of Old Ben part of the time the violation in question existed.
3. Old Ben intervened in this action and was represented by counsel from Zeigler Coal Company (Zeigler) which is the current owner of Old Ben (owner known as Zeigler Holding Company).
4. Old Ben holds permit S-00035 which allows it to conduct surface coal mining operations at its Old Ben #2 mine in Pike County, Indiana.
5. Eric Langer, an authorized representative of the Division of Reclamation, issued the NOV involved here.
6. IC 4-21.5, IC 13-4.1, 310 IAC 0-6.1 and 310 IAC 12 apply to this proceeding.
7. Under IC 13-4.1-2-1 the administrative law judge is the ultimate authority for this proceeding.
8. The Office of Surface Mining Reclamation and Enforcement (OSMRE) issued a "ten-day notice" to the State of Indiana on October 29, 1990, and this NOV was written to satisfy OSMRE in that regard.
9. This NOV terminated prior to abatement date of February 11, 1991.
10. The NOV charges violation of 310 IAC 12-5-34.1(a)(1), 310 IAC 12-555.1(a)(1) and Part IV.A(3)(A) & (C) of miner's permit.
11. The violation is worded as "Failure to complete backfilling and grading of the overburden deposits within 180 days of deposition and achieve the approximate original contour."
12. At hearing BP admitted that the violation stated in the NOV did occur but objected to the location specified.
13. The location is important to BP because it owned Old Ben during the early part of the reclamation period in question here.
14. Subsequently, BP sold old Ben to Zeigler.
15. As a term of the sale agreement, BP warranted that it was in compliance with all Indiana laws and regulations as of July 19, 1990.
16. Zeigler now claims that BP was not in compliance with backfilling and grading requirements on July 19, 1990, in certain specified areas at the mine.
17. If the above is so, BP would be responsible for reclaiming these specified areas.
18. Based on the above, BP has asked the administrative law judge to determine what the proper location is and to modify the NOV accordingly.
19. An administrative law judge will reform an NOV when the party requesting the modification shows either that a provision of law was violated or that errors of fact were made leading to conclusions that need to be modified.
20. IC 13-4.1-11-7(a)(4) requires that an NOV set forth with particularity a "reasonable description of the surface coal mining and reclamation operation to which the notice or order applies."
21. It is clear that the requirement to provide a "reasonable description" of the location deals with the operator being able to find and abate the violation.
22. In this case, the inspector provided location both by word and by map in writing and orally to the operator.
23. The operator had no problem finding and abating the violation based on the description furnished by the inspector.
24. The words used by the inspector in writing and orally certainly provided a "reasonable description" which is all that is legally required.
25. However, the inspector chose to further aid the miner by attaching maps to the NOV and allied inspection report.
26. The Department, while admitting that the maps
[VOLUME 6, PAGE 36]
were not accurate, termed them as "gratuitous."
27. Gratuitous or not, once the maps were attached they become part of the violation and must conform to the "reasonable description" standard of IC 13-4.1-11-7(a)(4).
28. For the purpose of determining what areas BP must indemnify Zeigler for in regard to violations of law, the maps attached to the NOV are not a "reasonable description."
29. The inspector used the best information available to draw the maps in question.
30. Evidence presented at hearing shows that the "best" information the inspector used was not very accurate. It should be pointed out that this lack of accurate information was not the fault of the inspector or the Department.
31. However, the evidence clearly shows that the inspector's map of the area in violation is not accurate.
32. By use of expert testimony, aerial photos, contour maps, computerized enlargement of the NOV area, etc., BP has repudiated the inspector's map and has provided a substitute.
33. On Exhibit A, the solid black line depicts the inspector's location of the violation map superimposed over an aerial photo of the NOV area.
34. The inspector's written description maintains that the pits shown on Exhibit A are in violation, but his map is so far off that the pits are outside its boundaries.
35. The dotted lines as outlined in yellow on Exhibit A depict the area in violation as presented by BP's expert, Mr. Cobb.
36. Mr. Cobb's rendition of the map is far more accurate than the inspector's map because BP was able to use advanced technology and information not available to the
Department.
37. Since the weight of the evidence shows that BP's depiction is accurate and the Department's is not, BP's map is accepted as a "reasonable description" of the area in violation.
38. The map depicting the area in violation is modified in that the area outlined in yellow on Exhibit A is substituted for the map(s) attached to the NOV/inspection report.