[CITE: DNR v. Stendale, Inc., 1 CADDNAR 42
(1983)]
[VOLUME 1, PAGE 42]
Cause #: 82-002R
Caption: DNR v. Stendale, Inc.
Administrative Law Judge: Lucas
Attorneys: Scherschel, DAG; pro se (Stewart); Davis
(Surety)
Date: July 1, 1983
ORDER
IT
IS ORDERED this date as follows: Permit to Engage in Surface Mining, Permit
80-172, is revoked pursuant to IC 13-4-6-8.
FINDINGS OF FACT
1.
The Department of Natural Resources ("Department") is an agency of
the State of Indiana duly empowered to conduct administrative hearings pursuant
to IC 4-22-1.
2.
The Department had jurisdiction over the subject matter and the parties to this
administrative action.
3. Stendale, Inc. ("Stendale")
is a corporation registered to do business in Indiana, and issued by the
Department a Permit to Engage in Surface Mining, Permit 80-172,[FOOTNOTE i]
ultimately permitting 21.0 acres in Pike County, Indiana, effective December 4,
1980 and ending December 3, 1981.
4.
Grading was required to be carried out on the affected area by Stendale so as to reduce peaks and ridges, and diminish
depressions between the peaks and ridges, to a rolling, sloping or terraced
topography consistent with the land-use objectives stated in a plan of
reclamation submitted by Stendale.
5.
The plan of reclamation submitted by Stendale
specified that the approximate original contour would be restored and grading
would be completed on the affected area to support a land-use objective of hay
and pasture.
6.
The plan of reclamation further sought to reference the land-use grading
standards set forth on pages 39 through 41 of a separate written instrument,
which instrument has been sub-titled "Standards for Surface Mine
Grading" ("Standards").[FOOTNOTE
ii]
7.
The area affected under Permit 80-172 was returned to approximate original
contour, except for 15, 000 square feet[FOOTNOTE iii]
included within the final cut, where slopes exceeded 45% after mining.
Topographic contour maps covering the area included
within Permit 80-172 prior to mining activities disclosed no slopes in excess
of 33 1/3%. An area contiguous to the final cut, but unaffected by mining,
demonstrates a slope of 23%.[FOOTNOTE iv]
8.
By certified mail dated September 3, 1981, the Department issued a Notice of
Noncompliance informing Stendale of its failure to
complete grading of the final cut to the approximate original contour and the
land-use objective stated in the plan of reclamation. October 15, 1981 was
established as the deadline for completion of grading of the final cut.
9.
On January 29, 1982 the Department inspected the acreage mined by Stendale under Permit 80-172 and found that the final cut
had not been graded to the approximate original contour and the land-use
objective stated in the plan of reclamation.
10.
The final grading contour of the area affected by mining under Permit 80-172
does not comply with the plans and specifications established for the
completion of reclamation under Permit 80-172.
11.
Contour specifications of Permit 80-172 as set forth in the plan of reclamation
submitted by Stendale were reasonable.FOOTNOTE v]
12.
By its failure to complete reclamation of the acreage disturbed under Permit
80-172, Stendale violated the provisions and
requirements of IC 13-4-6.
13.
The Department has met all obligations imposed upon it by IC 13-4-6.
FOOTNOTES
i. Separate permits were issued by the Department to Stendale for the site commonly referred to as Brown #3 Pit. Permit 80-172a was issued December 11, 1980 and Permit
80-172b was issued April 13, 1981. These two permits are collectively referred
to as Permit 80-172.
ii.
The Standards require that a final cut be graded so as not to exceed a slope of
33 1/3%. A final cut is the terminal area contained within a high wall, the
slope opposite the high wall and the bottom of the pit. The
[VOLUME 1, PAGE 43]
surety, American Druggist Insurance
Company, urges the Standards had not been promulgated as rules under IC 4-22-2,
and as a result, violation of those Standards does not form a proper basis for
permit revocation. The Department concedes the Standards had not been promulgated
but argues the following excerpt from paragraph 17 of the plan of
reclamation...is sufficient to incorporate the standards and make them binding
upon Stendale: "Refer to pages 39-41 for land
use grading standards." If the Standards are to form a part of the permit
requirements contained in the plan of reclamation, then those Standards must be
understood by the permit holder, or must be referenced with sufficient clarity
to inform a reasonably prudent person of the obligation to conform to them. The
reference contained in the plan of reclamation for Permit 80-172 is decidedly
casual. The title of the document intended to be referenced is not provided,
nor is there any indication where the document can be secured. Standing alone
the reference contained in the plan of reclamation is insufficient to identify
the grading requirements contained in the Standards. Experience by the permit
holder with practices of the coal-mining industry, or a mutual understanding
between the permit holder and the Department that the Standards were to apply,
might, when supported by the elliptic reference in the plan of reclamation,
serve to bind Stendale. The only person who testified
as to Stendale's understanding and knowledge was
Wilbur Stewart. While he was not entirely a novice to coal mining in Indiana,
neither did he apparently possess an extensive knowledge of the grading
requirements contained in the Standards. The individual who actually submitted
the plan of reclamation to the Department on behalf of Stendale
was O. G. Miller and he did not testify. A license or permit is not a contract
and does not confer upon the permit holder "an absolute right, but only a
personal privilege to be exercised under existing restrictions...[B]y accepting
and acting under" a permit, the permit holder "consents to all
conditions imposed thereby." Stone v. Fritts (1907) 169 Ind. 361, 365.
Those conditions may be imposed by statute, by rule or by the terms of the
permit itself. But to bind the permit holder, those conditions must be
understood by him, or at least understandable to a reasonably prudent person.
The Standards sought to be referenced by paragraph 17 of the plan of
reclamation meet neither test. Violation of the Standards cannot properly
establish a basis for the revocation of Permit 80-172.
iii.
An acre contains 43,560 square feet.
iv.
The testimonies were in some dispute as to the original contour of the area
affected by Permit 80-172. Neither did the two witnesses entirely agree as to
the present slopes demonstrated at the site. Jerry Heltsley testified that he
had measured a slope within the area of the final cut at approximately 46%.
Wilbur Steward had not measured the slope but did not concede the accuracy of
the calculation by Jerry Heltsley. While the testimony of Wilbur Stewart was
fervent, he spoke mostly in generalities and with benefit of measurements.
Greater weight was accorded the testimony of Jerry Heltsley, in part because he
had applied more precise methods in reaching his factual determinations. One
argument which might be inferred from the testimony of Wilbur Stewart is that
in returning a parcel affected by mining to the approximate original contour
having slopes greater than those which existed prior to mining, an average of
slopes should be taken for the entire site. If the final cut is left with a
contour having slopes greater than those which existed prior to mining, but
other slopes at the mine site were left more moderate than prior to mining,
then the argument follows that the approximate original contour has been
attained. The evidence does not support this factual conclusion with respect to
the area affected under Permit 80-172. Even if the evidence did support this
proposition, however, the argument would be rejected. Return to approximate
original contour of a mined site requires the return to pre-mining geographic
patterns and blending with the peaks and valleys of adjacent unmined areas.
v. Those specifications [as set forth in the plan of reclamation] were accepted
and acted upon by Stendale in exercising the
privileges provided by Permit 80-172. A person aggrieved by the conditions of a
permit offered by the Department is not without remedy. That person may secure
an administrative hearing and a judicial review under IC 4-22-1 at the time the
disputed permit is offered. Having elected to accept Permit 80-172 together
with its conditions, and to mine under the permit, Stendale
is now foreclosed from questioning its reasonableness, at least a showing by Stendale of some significant change in circumstances or
impossibility of
[VOLUME 1, PAGE 44]
performance.