Indiana surface coal mine permits 68-27, 69-24, 70-25, 71-30, 72-12, and 73-36 issued to Cornell Excavating, Inc. are hereby revoked.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency responsible for the regulation of surface coal mining in Indiana.
3. IC 4-21.5, IC 13-4, and IC 13-4.1 apply to these proceedings.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with the respect of a permit.
5. At all times relevant to these proceedings, Cornell Excavating Co., Inc. ("Cornell") held permits 68-25, 69-24, 70-25, 71-30, 72-12, and 73-36 ("permits") issued by the DNR which allowed the surface mining of coal in Warrick County, Indiana.[FOOTNOTE 1]
6. There was no active mining at this site following the expiration of permit 73-36. The term "active mining" means coal extraction or disturbance of overburden in un-mined areas.
7. Because of this, no permit renewals were required. The DNR, however, still held reclamation bonds and still had the right to exercise regulatory authority over Cornell pursuant to IC 13-4-6.
8. Prior to 1981, when IC 13-4.1 ("I-SMCRA") went into effect, surface coal mines were regulated pursuant to IC 13-4-6 ("old law"), and the old law was never repealed.
9. The old law still applies to any mine site where bond has not been released which was permitted prior to the effective date of SMCRA or I-SMCRA and never repermitted under SMCRA or I-SMCRA.
10. The DNR still retains a reclamation bond on those permits, thus they are regulated to the standards provided in the old law and not I-SMCRA.
11. Among other defenses, Cornell raises the issues of lack of personal and subject matter jurisdiction under IC 13-4., and that any application of IC 13-4.1 is an unconstitutional retroactive application.
12. With one possible exception, Cornell is correct.
13. Cornell's mining operation has never been subject to IC 13-4.1. No substantive provisions of IC 13-4.1 can apply. It is not an unconstitutional retroactive application of law, however, to apply subsequently enacted procedural standards.
14. IC 13-4-6 did not provide a precise procedure or mechanism for the revocation of permits.
15. Any portion of IC 13-4.1 which is purely procedural can apply as long as no substantive rights are effected.[FOOTNOTE 2]
16. Cornell also raises the issue of laches.
17. Certainly there have been a number of delays in this matter.
18. It would appear from the evidence introduced at the hearing in this matter that the DNR took virtually no interest in these permit sites after active mining ceased until late 1983 and January of 1984. See Exhibits 1 and A.
19. In January of 1984, a representative of the DNR wrote to Cornell indicating that some revegetation work needed to be done.
20. Further discussions were entered into by the parties (Exhibits C and D), but eventually a "Notice of Noncompliance" ("NON") was issued on April 11, 1985 (Exhibit H) for failing to complete grading and revegetation as set forth in the permit plan of reclamation.
21. All six of the permits involved here required the land to be reclaimed as forest and timberland. See Exhibits R-1 through R-6.
22. The NON was never appealed by Cornell or released or vacated by the DNR.
23. Further inspection reports through 1991 showed both erosion and tree planting problems.
24. On October 24, 1991, the DNR issued orders to show cause why the six permits should not be revoked. This procedure was undertaken pursuant to IC 13-4.1-11-6.
25. Cornell filed an answer with the DNR which led to these proceedings. The answer in part objects to proceeding under IC 13-4.1-11-6.
26. Since IC 13-4-6-8 provides for permit revocations but does not set forth a procedure for doing so, it would appear that any mechanism providing for notice and due process would suffice.
27. Specifically, the procedure used by the DNR in this case to commence the revocation process is not inconsistent with anything in the old law and makes adequate
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provisions for notice and due process.
28. Further, Cornell has neither alleged nor shown harm because of the procedure used by the DNR to initiate these proceedings.
29. As to the defense of laches, generally it does not apply to governmental agencies.
30. Even if this were one of the rare cases where laches could be applied against the state, Cornell is also responsible for the delay.
31. At no time prior to 1983 and 1984 did Cornell file and pursue a demand for bond release, and release from the permit requirements even though Exhibit 1 indicates Cornell may well have been entitled to a partial release.
32. Cornell did not file for administrative review of the non, thus it became a final determination a time long ago.
33. Additionally, Cornell did not file any demands for bond release since 1984, or taken any other steps to obtain a determination that its liability under the six permits has terminated.
34. In short, Cornell has materially contributed to the lengthy delay, and as such, is not in position to assert a valid defense of laches.
35. Cornell may have a legally valid objection to the use of "pattern of violations" as a standard for revocation.
36. IC 13-4-6 does not make any reference to "patterns of violation" in connection with permit revocations.
37. This language comes from IC 13-4.1-11-6 and cold be considered as being substantive in nature, in which case it cannot be used except in connection with permits issued under I-SMCRA.
38. IC 13-4-6-8 states "[a]ny permit may be. . . revoked by the commission under IC 4-21.5 if the commission finds that the operator has failed to comply. . . ." This is the standard that must be used.
39. There is some evidence that once upon a time, the various sites were properly graded and some vegetation commenced.
40. There is substantial evidence that in some areas, the vegetation did not take hold particularly well and erosion has become a problem in places. See Exhibit s P-1 through P-6 and Exhibit S, which are photos and a video tape.
41. More importantly, it is obvious from the inspection reports commencing in 1984 and the photographs referred to above that at no time has any substantial planting of trees taken place on the barren areas.
42. As stated previously, all six permits require substantial timber planting to meet the approved post-mining reclamation plan.
43. The failure of Cornell to engage in significant reforestation as required in the permits is a violation of IC 13-4-6-6.
44. Additionally, there is an outstanding, unabated NON which was issued by the DNR in an attempt to get trees planted.
45. The NON has remained unabated for almost ten years.
46. The operator has failed to comply with the terms of IC 13-4-6-6(5) by failing to reclaim affected areas to timberland as specified in the permits. This failure is a violation of IC 13-4-6-8.
47. Accordingly, the NRC may revoke the permits.
48. Given the length of time in which the operator has failed to act, revocation, rather than a lesser sanction, is appropriate.
49. On other issue raised by Cornell involves the fact that some of the permit areas have been redisturbed.
50. The DNR agrees that some areas had been re-permitted and agrees that Cornell is no longer responsible for those areas.
51. Each of the permits, however, contain areas of unreclaimed land which have not been redisturbed or re-permitted including the areas shown by photographs P-1 and P-6.
52. It may well be that some part of the bond being held on some of the permits should be released.
53. These proceedings, however, do not involve bond forfeitures. The DNR has only sought to revoke the permits for failure to properly reclaim according to the reclamation plan; it has not sought to forfeit any or all of the bonds.
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FOOTNOTES
1. Prior to the regulation of surface coal mining by the US Department of Interior in 1977 pursuant to 30 U.S.C. 1201, et seq. ("SMCRA"), Indiana issued permits for one year, thus the six permits really represent one mining site on which the location of active mining was changed annually.
2. Procedural changes can affect substantive rights and thus not apply retroactively. See U.S. v Cirrincione, 600 F.Supp. 436 (1985).