[NOTE: SULLIVAN SUPERIOR COURT (CAUSE NUMBER 77DO10-9202-CP-0038) AFFIRMED THE FINAL ORDER OF THE ADMINISTRATIVE LAW JUDGE. FINDINGS OF FACT AND CONCLUSIONS OF LAW ATTACHED.]
Notice of Violation N10612-S-00010, Part 2 of 3 is affirmed.
FINDINGS OF FACT
1. The Department of Natural Resources (the "Department") is an agency as the term is defined in IC 4-21.5-1-3. IC 4-21.5 (sometimes referred to as the "administrative adjudication act" or the "AAA") is applicable to an "agency action" of the Department.
2. Surface coal mining and reclamation activities are governed in Indiana by IC 13-4.1 and 310 IAC 12 (collectively referred to as "Indiana SMCRA"). Indiana SMCRA is administered by the Department.
3. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested. Pursuant to IC 13-4.1-2-1(c), the administrative law judge is the "ultimate authority" for the Department in this proceeding.
4. Peabody holds surface coal mining and reclamation operations permit no. S-00010 for its Hawthorn Mine in Sullivan county.
5. On June 12, 1991, Robert Jones, an authorized representative of the Director of the Department, conducted an inspection of Peabody's Hawthorn Mine and as a result of his inspection, Mr. Jones issued Peabody Notice of Violation ("NOV") #NlO6l2-S-00010. The NOV was issued by Mr. Jones on July 5, 1991.
6. On July 19, 1991, Peabody timely requested administrative review of part 2 of 3 of the NOV by a filing with the Hearings Division.
7. The NOV part 2 of 3 charges that Peabody "failed to reclaim all disturbed areas in a contemporaneous manner. Specifically, the operator has not reclaimed the unapproved equipment storage area to the north and the former haul road along the east edge of the S-00010 permit."
8. The NOV part 2 of 3 cites the following as provisions violated: 310 IAC 12-5-33; 310 IAC 12-5-68(a); and 310 IAC 12-3-4 Permit Condition, Part III (operation plan).
9. Indiana SMCRA requires contemporaneous reclamation as follows: (a) 310 IAC 12-5-33 provides as follows:
"Sec. 53. Contemporaneous Reclamation. Reclamation efforts, including, but not limited to, backfilling, grading, topsoil replacement and revegetation, of all land that is disturbed by surface mining activities shall occur as contemporaneously as practicable with mining operations."
(b) 310 IAC 12-5-68(a) provides as follows:
"Sec. 68. Postmining Land Use. (a) General. All affected areas shall be restored in a timely manner.
(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."
10. Contemporaneous is defined as "existing or happening in the same period of time." (Webster's New Universal Unabridged Dictionary 2nd Edition, 1983) Thus contemporaneous reclamation is properly conducted in conjunction with mining activities.
11. The former haul road has not been used as a haul road since at least 1987.
12. In 1986, a second haul road was constructed which essentially obstructed the pathway of the former haul road which has since been abandoned.
13. No use for the haul road has been proposed for the present or foreseeable future.
14. The storage area was abandoned in 1989 as a storage area and was unapproved as a storage area at the time of the issuance of the NOV.
15. The Division of Reclamation (DOR) normally views contemporaneous reclamation as requiring reclamation during the next available growing season after an area is unused or abandoned.
16. Peabody has had
[VOLUME 6, PAGE 30A]
several mining operations throughout the state for many decades and is aware of contemporaneous reclamation requirements of the DOR.
17. The former haul road was abandoned in 1987, leaving three full growing seasons including 1988, 1989 and 1990 and one partial season 1991 to reclaim prior to the NOV.
18. The unapproved storage area was abandoned as a storage area in 1989, leaving the growing seasons in 1990 and 1991 to reclaim prior to the NOV.
19. Neither the haul road nor the storage area has been reclaimed.
20. Peabody argues that because it intended to use the areas for possible future storage it would make no sense to reclaim there.
21. This is true, but until Peabody conveys the .intended use idea to the DOR for approval, contemporaneous reclamation is required.
22. The fact that the inspector was aware of the failure to reclaim long before the NOV was written does not alter the question of whether or not a violation has occurred.
23. If the inspector had decided to give Peabody a "break" by not writing an NOV that "break" must end when the officer of surface mining (OSM) calls the DOR's attention to the violation.
24. OSM did provide that notice as a result of a March 1991 inspection.
25. In summary, a miner must either reclaim in a contemporaneous manner or apply for a change to the operations plan and/or the reclamation plan.
26. The DOR could not enforce the Indiana SMCRA if a miner was allowed to defend an NOV by presenting unreported future intentions.
SULLIVAN SUPERIOR COURT DECISION
FINDINGS OF FACT
1. Respondent, Indiana Department of Natural Resources ("DNR") is an administrative agency of the state of Indiana with responsibility for the administration and enforcement of a program for the regulation of surface coal mining and reclamation pursuant to the Indiana Surface Mining Control and Reclamation Act ("ISMCRA"), IC 13-4.1 and its implementing regulations set forth at 310 IAC 12.
2. Petitioner Peabody Coal Company ("Peabody") is a corporation which conducts surface coal mining operations in the State of Indiana under ISMCRA permits issued by the DNR. Peabody operates the Hawthorn mine in Sullivan County, Indiana, under surface coal mining permit No. S-10.
3. On June 12, 1991, an authorized representative of the DNR, Division of Reclamation ("DOR") Inspector Robert Jones, conducted an inspection of PCC's Hawthorn Mine, the result of which was the issuance to Peabody of a Notice of Violation ("NOV") 410612-S-00010 on July 5, 1991. The NOV cited as violated 310 IAC 12-5-53, 310 IAC 12-5-68(a), and Part III (reclamation/operations plan) of Peabody's permit S-10.
4. Part 2 of the NOV charged Peabody with failure to contemporaneously reclaim all areas disturbed by mining and cited specifically two locations of violation: The north end of the permit used by Peabody for equipment storage and the southern portion of a former haul road. The NOV cited as violated 310 IAC 12-5-53, 310 IAC 12-5-68(a), and Part III (reclamation/operations plan) of Peabody's permit S-10.
5. A hearing was held before the Administrative Law Judge ("ALJ") in Jasonville, Indiana, on October 11,1991.
6. On June 27, 1991 (sic. 19921, the ALJ entered a final order ("Final Order") affirming the NOV. The Final Order held, in relevant part:
__________________
9. Indiana SMCRA [Surface Mining Control and Reclamation Act] requires contemporaneous reclamation as follows:
(A) 310 IAC 12-5-53 provides as follows: "Sec. 53. Contemporaneous Reclamation. Reclamation efforts ... of all land that is disturbed by surface mining activities shall occur as contemporaneously as practicable with mining operation."
(b) 310 IAC 12-5-68 provides as follows: "Sec. 68. Postmining Land Use. (a) General. All affected areas shall be restored in a timely manner.
(1) To conditions that are capable of supporting the uses which they were capable of supporting before any mining.
(2) To higher or better uses achievable under criteria and procedures of this Section."
10.Contemporaneous is defined as "existing or happening in the same period of time.... " thus contemporaneous reclamation is properly conducted in conjunction with mining activities.
11. The former haul road has not been used as a haul road since at least 1987. ...
13. No use for the haul road has been proposed for the present or foreseeable future.
14. The storage area was abandoned in 1989 as a storage area and was unapproved as a storage area at the time of the issuance of the NOV.
15. The Division of Reclamation (DOR) normally vies contemporaneous reclamation as requiring reclamation during the next available growing season after an area is unused or abandoned.
16. Peabody...is aware of contemporaneous reclamation requirements of the DOR.
17. The former haul road was abandoned in 1987, leaving three full growing seasons including 1988, 1989, and 1990 and one partial season 1991 [sic] to reclaim prior to the NOV.
18. The unapproved storage area was abandoned as a storage area in 1989, leaving the growing seasons in 1990 and 1991 to reclaim prior to the NOV.
19. Neither the haul road nor the storage area has been reclaimed.
20. Peabody argues that because it intended to use the areas for possible future storage it would make no sense to reclaim them.
21. [Until Peabody conveys the intended use idea to the DOR for approval, contemporaneous reclamation is required. ...
25. In summary, a miner must either reclaim in a contemporaneous or apply for a change to the operations plan and/or the reclamation plan.
26. The DOR could not enforce the Indiana SCMRA [sic] if a miner was [sic] allowed to defend an NOV by presenting unreported future intentions. R. 38-39.
__________________
7. On February 26, 1992, Peabody timely filed its Verified Position for Judicial Review for the Final Order with this Court.
8. On March 19, 1992, Peabody timely filed the agency record.
9. Peabody contends that the Final Order of the ALJ is arbitrary, capricious, contrary to and in excess of statute.
10. If any of the foregoing Findings of Fact should have been denominated as a Conclusion of Law, it is hereby adopted as such.
CONCLUSIONS OF LAW
1. The DNR is an administrative agency whose orders and determinations are subject to administrative and judicial review under IC 4-21.5.
2. IC 4-21.5-5 governs judicial review decisions of an administrative agency. The Court may grant relief only if it determines that the person seeking judicial relief has been prejudiced by an agency action that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) contrary to constitutional right, power, privilege, or immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or
(5) unsupported by substantial evidence. IC 4-21.5-5-14(c).
3. The party petitioning for judicial review of an administrative agency decision bears the burden of showing the order of the ALJ is invalid. IC 4-21.5-5-14. In the present case, Peabody bears the burden of showing the DNR's action prejudiced Peabody.
4. Upon judicial review of an administrative determination, courts are prohibited from re-weighing the evidence or judging the credibility of witnesses and must accept the facts as found by the administrative body. Public Service Co. of Indiana, Inc. v. Review Bd. of Employment Sec. Div., 451 N.E.2d 371 (Ind. Ct. App. 1983). However, the reviewing court need not accord the same degree of deference to an agency's conclusions on a question of law. Id.
5. The ALJ correctly interpreted that "Contemporaneous is defined as 'existing or happening in the same period of time.... " Thus contemporaneous reclamation is properly conducted in conjunction with mining activities."
6. The ALJ correctly found that "The Division of Reclamation (DOR) normally views contemporaneous reclamation as requiring reclamation during the next available growing season after an area is unused or abandoned. 11 The ALJ did not conclude that this view was the law. The order of the ALJ holds that postponing reclamation of areas unused and abandoned for two and three years is not "contemporaneous."
7. There is no statutory definition of "contemporaneous reclamation." Both federal and state courts pay great deference to the reasonable interpretation of a silent or ambiguous statute by the agency charged with administering that statute. Indiana DNR v. Krantz Bros. Const., 581 N.E.2d 935, 939 (Ind. Ct. App. 1991), The DNR standard of "contemporaneous reclamation" as the next available growing season is reasonable. While the ALJ did not conclude this view to be the law, he correctly found it to be a reasonable guide in interpreting the statute and upholding NOV No. 10612-S-00010.
8. Administrative adjudications which involve administrative investigation, hearing, and determination exclude the adoption of rules and, therefore, are not subject to the rule-making provisions. Indiana Department of Environmental Management v. AMAX, Inc., 529 N.E.2d 1209, 1212 (Ind. Ct. App. 1988). Since the ALJ did not adopt DNR policy ("next available growing season") as law, this Court needs not reach the issue of whether DNR policy may have legal effect and whether it must be promulgated according to rule-making provisions in statute.
9. A miner must obtain approval for revisions to the mining permit:
(a) A revision to permit shall be obtained:
(1) For changes in surface coal mining or reclamation operations described in the original application and approved under the original permit, when such changes constitute a significant departure from the method of conduct of mining or reclamation operations contemplated by the original permit. 310 IAC 12-3121(a)(1).
10. While statute does not define what approval is necessary for less-than-significant departures, or what constitutes such, it is reasonable that the DNR require Peabody to obtain approval of any future plans for unreclaimed areas to postpone reclamation legitimately. The ALJ correctly found that "(the DOR could not enforce the Indiana SCMRA [sic] if a miner was [sic] allowed to defend an NOV by presenting unreported future intentions."
11. The Final Order of the ALJ is not arbitrary, capricious, contrary to the law, or in excess of legal authority. It is supported by substantial evidence. Petitioner Peabody has not been prejudiced by the actions of the DNR.
12. If any of the foregoing Conclusions of Law should have been denominated as a Finding of Fact, it is hereby adopted as such. WHEREFORE, this Court hereby ORDERS, ADJUDGES, AND DECREES that the Final Order of the Administrative Law Judge of June 23, 1992, is AFFIRMED. Costs are awarded to Respondent Indiana Department of Natural Resources.