Notice of Violation N01203-S-00033 part 3 of 3 is modified as follows: Location of violation: all areas east of the 6-4-90 pit line where rough grading has not been completed. (reference to map is removed). Notice of Violation N012303-S-00033 is affirmed as modified.
FINDINGS OF FACT
1. On December 18, 1990 (date established by ruling of administrative law judge) the Claimant, BP (BP), requested review of Notice of Violation (NOV) N-1203-S-00033, part 3 of 3, issued to Old Ben Coal Co. (Old Ben) on December 3, 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-00033 which allows it to conduct surface coal mining operations at its Old Ben #1 west mine in Gibson 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 06.1, 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 November 21, 1990, and this NOV was written to satisfy OSMRE in that regard.
9. This NOV was terminated prior to the abatement date of March 3, 1991.
10. The NOV charges violation of 310 IAC 12-5-54.1(a)(1), 310 IAC 12-5-55.1(a)(1) and Part IV.A(3)(A) and (C) of miner's permit.
11. The violation, in Part 3 of 3, is worded as "[f]ailure to complete back filling 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 a map to the inspection report attached to the NOV.
26. The Department, while admitting [Page (VI 33) begins] that the map was not accurate, termed it gratuitous.
27. Gratuitous or not, once the map was attached it became 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 map attached to the NOV is not a "reasonable description."
29. The size of the location area was incorrectly identified by the inspector because he considered all areas "not yet ready for soil replacement" (See NOV part 3 of 3, page 3) as being in violation.
30. The inspector testified that many areas in violation had only been rough graded, and therefore, were not ready for soil replacement.
31. He contended that final grading was required under 310 IAC 12-5-55.1(a)(1) to satisfy approximate original contour (AOC) requirements.
32. BP argues that rough grading is all that is required within the 180 day period referred to in 310 IAC 12-554.1(a)(1) (the "rule").
33. 310 IAC 12-5-54.1(a)(1) through (a)(4), entitled "Backfilling and grading; timing limitations," states as follows:
(a) Except as otherwise approved by the commission in the approved permit or as provided in paragraphs (b) and (c) of this rule, backfilling and grading shall be accomplished as follows:
(1) In mining operations in which overburden removal is accomplished primarily by a dragline, shovel or similar excavating machine which desposits the overburden into spoil ridges, within one-hundred and eighty (180) days of deposition, provided that no more than an average of four (4) spoil ridges (by length) may remain at any one time;
(2) For direct haul-back operations, where spoil is excavated from an advancing pit and hauled back, dumped and graded into an inactive pit as one operation, rough backfilling and grading shall be carried out continuously behind the pit(s) being worked. At no time shall there be more than four (4) open pits.
(3) For operations that do not use a dragline or shovel for spoil removal and do not employ the direct haul-back method of operation, rough backfilling and grading of spoil shall be completed within one-hundred and eighty (180) days after it is deposited and no more than four (4) pits shall be open at any one time.
(4) For all operations, rough backfilling and grading of boxcut or excess spoil shall be completed within one (1) year after it is deposited. The commission may grant additional time, if the permittee can demonstrate, in writing, that additional time is necessary.
34. It is the Department's position that because subparagraph (a)(1) dealing with dragline, shovel or similar excavating machine operations does not contain the word "rough" as do subsections (a)(4), dragline operations must be final graded within 180 days of deposition.
35. A careful reading of the rule and its predecessor finds no basis for such a position.
36. No reason can be found for requiring excavation machine operations to final grade within 180 days while allowing other type operations to rough grade.
37. The most likely reason why the word "rough" does not appear in (a)(1) of the rule and does appear in (a)(2) through (a)(4) is the fact that the words "backfilling and grading" appear in (a)(2) through (a)(4) but not in (a)(1).
38. Therefore, in (a)(1) of the rule, there is no noun to accommodate the adjective "rough."
39. The predecessor to the rule was 310 IAC 12-5-54 which was replaced in 1985.
40. The predecessor rule allowed for rough backfilling and grading with 180 days following deposition of soil for all operations.
41. Since the inspector testified that violations of 310 IAC 12-5-54.1 and 55.1 were done as a package it would be reasonable to suppose that the lack of final grading lead the inspector in concluding that an AOC violation should be cited as well.
42. Since the inspector was in error as to his belief that areas rough graded were not in compliance with the rule, it is obvious that his location in violation is larger than it should be.
43. David Cobb, established as an expert in the areas of backfilling and grading, identified many areas in the violation area that were rough graded in accordance with applicable regulations.
44. Mr. Cobb compared an aerial photo taken four days before the NOV was written with the area as it appeared when he performed an on-site inspection to prepare for hearing.
45. In so doing, Mr. Cobb identified areas that were rough graded prior to the NOV being written.
46. He then detailed a map of the area with overlays and testified it was his expert opinion that the map depicted the correct approximate location of violation.
47. This case is different from BP America, Old Ben Coal Co. v. DNR, Administrative Cause No. 90-337R (BPI), (decision rendered November 27, 1991) because it is difficult, if not
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impossible, to determine in this case what a map of the violation would look like if all the rough graded areas were removed.
48. Therefore, to reform the NOV, the only logical action would be to remove the map, which was gratuitous, and change the wording of the location to conform to the evidence.