Notice of Violation 30310-S-14 is affirmed.
FINDINGS OF FACT
1. On April 7, 1993, Peabody Coal Company (Peabody) filed a request for review of Notice of Violation 30310-S-14 (NOV).
2. Peabody holds permit number S-14 which allows it to conduct surface coal mining operations at its Universal Mine in Vigo and Vermillion Counties in Indiana.
3. On March 10, 1993, inspector Dan Luczynski, an authorized representative of the Director of the Department of Natural Resources (the "Department") issued the NOV in question here.
4. The NOV alleged violation of 310 IAC 12-5-53, IC 13-4.1-8(16) and 310 IAC 12-3-4 condition of permit Part IV B. Approval for abatement schedule for NOV 21120-S-14 Part 1/2 (hereinafter the "agreement").
5. The NOV described the nature of the violation as "failure to be contemporaneous as practicable with reclamation, specifically the reclamation of the northern portion of the haul road just south of the mine office. This area was to be reclaimed by March 1, 1993."
6. The March 1, 1993, date was arrived at between the parties as part of the agreement, such agreement being evidenced by a letter from Peabody dated December 16, 1992, and a corresponding approval from DNR dated December 30, 1992.
7. Under the agreement, Peabody was to take steps to reclaim the haul road in question by March 1, 1993.
8. Such reclamation did not take place, and this NOV was the result.
9. IC 4-21.5, IC 13-4.1, 310 IAC 0.6-1, and 310 IAC 12 apply to this proceeding.
10. The Department is responsible for regulating surface coal mining in Indiana, and is an agency as defined in IC 4-21.5-1-3.
11. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority for an agency is vested.
12. Pursuant to IC 13-4.1-2-1(c), the administrative law judge (ALJ) is the ultimate authority for this proceeding.
13. Peabody does not contend that the March 1 date was met, but asserts that the deadline was not a legal one but rather that had to be met if practicable.
14. Peabody maintains that meeting the deadline was not practicable because of a work stoppage by the United Mine Workers (UMW).
15. This argument would presume that Peabody could make a unilateral decision that meeting the deadline was not practicable. Such an argument is not persuasive.
16. The March 1 date was arrived at as an abatement for a previous NOV. The date was proposed by Peabody and agreed to by the Department.
17. Peabody maintains that because this agreed upon date was not incorporated into its permit, the date is not legally binding.
18. Clearly an agreed upon date to perform a task which results in the termination of a previous NOV is legally binding on both parties, and any material alteration requires the agreement of both parties.
19. An extension of the completion date (March 1, 1993) is a material alteration.
20. Therefore, Peabody's failure to complete the agreed upon date could legally be the subject of a NOV.
21. Peabody further argues that an extension of the March 1 deadline was formulated at a meeting with Department officials on February 5, 1993, and solidified by letter dated February 16, 1993 from Peabody to the Department.
22. Peabody maintains that, since the Department did not object to the February 16 letter, its terms became binding and an alteration of the agreement occurred.
23. Coal production at Universal Mine ceased in July 1992. Since that time
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only reclamation activities are being performed.
24. At the beginning of February 1993, the UMW struck Peabody's Indiana mines. Universal Mine was not struck, but Peabody sent its personnel to other mines to mine coal.
25. On February 5, 1994, the meeting mentioned above was held in Jasonville. Attending from Peabody were Richard Dempsey and James Roberts. Representing the Department were Paul Ehret, Mike Sponsler, and Tim Taylor.
26. Many items were discussed at the meeting including the fact that Peabody might have trouble meeting reclamation deadlines due to the strike.
27. Evidence shows that the Department agreed that strikes were a valid reason to request extensions of deadlines.
28. Further, it is apparent that the Department requested that Peabody apply for extensions as needed and on a case-by-case basis.
29. It is inconceivable that the Department would agree to an open ended situation where Peabody could determine unilaterally to give itself extensions to deadlines.
30. On February 16, 1993, Peabody tendered a letter to the Department which Peabody claims should excuse it from the March 1 deadline because the Department made no protest.
31. The letter is ten lines long, specifies that it is being submitted in accordance with 310 IAC 12-3-66, and lists five mines (including universal) at which operations will be effected by the strike.
32. The Department maintains that the February 16, 1993 letter was insufficient and that it expected a further submission prior to granting approval or disapproval.
33. Peabody maintains that only notification is required and approval for cessation is not needed.
[sic.] 35. The rule provides a list of information that must be submitted to the Department to effect a temporary cessation of operations. This list includes acres involved, extent and kind of reclamation accomplished, and identification of specific operations that will continue during the cessation period.
36. None of this information is included in the February 16, 1993 letter which notified of temporary cessation.
37. Lastly, Peabody contends that since the NOV does not show as a "provision violated" 310 12-5-66, it would be improper for the ALJ to uphold it.
38. The violation cited in the NOV is a failure to reclaim a particular area by an agreed upon date, not a failure to properly request a temporary cessation of operation.
39. Accordingly, the inspector had no reason to list 310 IAC 12-5-66 as a provision violated.
40. The NOV will be upheld if the ALJ determines that Peabody failed to reclaim as was agreed upon.
41. The temporary cessation of operations issue is a defense offered by Peabody to the failure to reclaim by the agreed upon date.
42. None of the theories advanced by Peabody is effective in defeating this NOV.
43. Since Peabody did not reclaim by the agreed upon date; did not get an agreement from the Department to extend the date; and did not properly apply for cessation of operations under 310 IAC 12-5-66; the NOV must be affirmed.