[CITE: Winslow Coal Corporation v. DNR, 1 CADDNAR 58 (1986)]
[VOLUME 1, PAGE 58]
Cause #: 83-011R
Caption: Winslow Coal
Corporation v. DNR
Administrative Law Judge: Shadley
Attorneys: Abbott; Szostek, DAG
Date: April 8, 1986
ORDER
Notice
of Violation #N30316-82-45 is affirmed.
FINDINGS OF FACT
1. On
March 16, 1983 Winslow Coal Company ("Winslow") requested review of
Notice of Violation #N30316-82-45.
2.
IC 4-22-1, IC 13-4-6 and P.L. 331 (1981) apply to this proceeding.
3.
The Department of Natural Resources (the "Department") is an agency
as defined in IC 4-22-1. The Director is the ultimate authority of the Department
with respect to proceedings to review notices of violation and cessation
orders.
4.
The Director has jurisdiction over the subject matter and the parties to this
proceeding.
5. Notice
of Hearing was given to: Mr. Joseph A. Harrison, Resident Agent, Winslow Coal
Company, Permanent Savings Building, Evansville, Indiana 47708; Mr. Damon
Fortune, Winslow Coal Company P.O. Box 482 Booneville, IN 47601; Mr. Robert
Denton B.F.C. Coal Company, Inc. P.O. Box 482 Booneville, In 47601; Ms. Myra Spicker Deputy Attorney General and Attorney for Department
309 West Washington Street, Suite 201, Indianapolis, IN 46204; Ms. Oleva A. Richardson Pike County Recorder Court House
Petersburg, IN 47567.
6.
On June 9, 1983 a hearing was conducted pursuant to IC 4-22-1.
7.
Winslow held permit number 81-62 to conduct surface coal mining and reclamation
operations during the year 1981 at its Knight's Chapel #2 Mine.
8. Winslow
repermitted the area mined under permit number 81-62
in order to continuing mining at its Knight's Chapel #2 mine during May 6, 1982
to May 5, 1983 as permit number 82-45.
9.
On March 16, 1983, Jerry Heltsley, an authorized representative of the
Director, issued Notice of Violation #N30316-82-45 to Winslow.
10.
Notice of Violation #N30316-82-45 cited Winslow for failure to reclaim in a
timely manner in violation of IC 13-4-6, section 6 and 310 IAC 12-3-1, at the
west side of the affected area.
11.
The Notice of Violation required Winslow backfill and grade
all inactive pits and spoil piles to the approximate original contour by April
17, 1983.
12. IC
13-4-6-6(f) requires an operator commence the reclamation of the affected area
as soon as practicable after initiation of mining operations and consistent
with the approved plan of reclamation. The grading requirements as set forth in
the reclamation plan and described in section 6(a) shall be carried out as soon
as practicable after deposition of the overburden and prior to removal of
reclamation equipment from the mining operation. Commencement of revegetation as set forth in the revegetation
plan shall begin as soon as practicable following the mining operation.
13.
310 IAC 12-3-1 sets forth the provisions allowing an existing coal mining operation
to continue operation after approval of the federally mandated surface coal
mining law (IC 13-4.1).
14.
IC 13-4.1 was approved by the Secretary of the Interior on July 29, 1982.
15. 310
IAC 12-3-1 required Winslow submit application for an IC 13-4.1 permit by
September 29, 1982 if it intended to continue mining beyond March 29, 1983.
16.
Winslow did not submit an IC 13-4.1 permit application by September 29, 1982.
17.
Winslow removed the last coal under Permit 82-45 on September 10, 1982.
18.
On March 16, 1983, approximately six (6) months after the last coal removal
under permit 82-45, a rectangular pit approximately 800-1000 feet by 75-80 feet
and one-half acre pit remained open, not backfilled nor returned to the approximate
original contour of the pre-mined land.
19. With the use of
[VOLUME 1, PAGE 59]
two scrapers, it would take
Winslow two (2) to three (3) months to backfill and grade to approximate original
contour the two open pits. Following this grading another one month would be
required for replacement of the topsoil and another one to two weeks for
seeding the regraded area.
20. Permit
82-45 provided the following number size and type of equipment would be used to
complete grading of the affected area: two 637 caterpillars
scrapers, two TD225 International dozers, and one 12G caterpillar grader.
21.
From September 10, 1982 (the last date of coal removal) to March 16, 1983 (the
date the Notice of Violation was issued), Winslow never had on permit 82-45 all
of the equipment listed in the approved permit and reclamation plan which would
be used to do the grading of permit 82-45.
22.
Permit 82-45 provided that all disturbed areas would be graded to approximate
original contour and seeded during final reclamation, and that this reclamation
would occur in the fall of 1983.
23.
At the time permit 82-45 was submitted for approval and the time frame for
grading proposed by Winslow, Winslow intended to mine coal until May 5, 1983.
24.
The plan of reclamation prepared by Winslow provided for final coal removal on
September 10, 1982.
25.
The final reclamation of permit 82-45 did not occur within four to five months
following final coal removal on September 10, 1982.
26.
Winslow did not carry out the grading required as set forth in the plan of reclamation
as soon as practicable after deposition of the overburden.[FOOTNOTE 1].
27.
Winslow violated IC 13-4-6-6(f).
FOOTNOTES
1.
Winslow argues that what is "as soon as practicable should take into account
the fact that the equipment specified in the approved permit was in a state of
disrepair, or was needed at other sites permitted by Winslow for both coal
removal and reclamation, and further that what is" as soon as
practicable" should take into consideration the fact that due to the inability
to continue mining as proposed, the money needed for reclamation and repair of
the equipment was not available. I do not agree. "As soon as
practicable" cannot be interpreted to include consideration of such
factors. Reclamation is not something to be done only after determining whether
or not mining of the coal is profitable, it is a legal requirement and condition
precedent to being allowed to obtain a permit to mine coal. It must be included
as a cost of mining before determining if there will be a profit from the coal
mining operation. Because of the approval of a permit to mine coal is
contingent upon the operator demonstrating it can do the reclamation, and
contingent upon a listing in the permit the equipment which will be used to do
the grading, the fact that the equipment is used at other locations is
irrelevant. Before obtaining a permit, or multiple permits, an operator must
ensure it has sufficient equipment to do all that is required under the law at
all of its permitted operations.[FOOTNOTE 2]
2.
Because the only issue raised by Winslow was whether or not it had violated the
provision cited, no consideration was given to whether or not the required
abatement action and time frame specified was property.