[CITE: Great Lks.
Coal Co. v. Dept., 2 CADDNAR 12 (1984)]
[VOLUME 2, PAGE 12]
Cause #: 84-058R
Caption: Great Lks. Coal Co. v. Dept.
Administrative Law Judge: Szostek
Attorneys: Burke; Spicker, DAG
Date: May 3, 1984
ORDER
[NOTE: GREAT LAKES WITHDREW
ITS ADMINISTRATIVE REVIEW REQUEST OF THE PERMIT CONDITION ON FEBRUARY 27,
1985.]
NOW
THEREFORE, based upon the above Findings of Fact and Conclusions of Law: An appropriate bond level is the cost of
reclamation submitted by Petitioners and approved by the DNR. This bond level is $73,050.
Temporary Relief is granted and the performance bond level, at this time, is
reduced from $170,500 to $73,050.
FINDINGS OF FACT
1.
Surface coal mining operations may not be conducted (at the time this permit
was issued) without a valid surface coal mining and reclamation permit. IC
13-4.1-3-1
2.
Surface coal mining operations (IC 13-4.1-1-3(12)(A)
means: activities conducted on the surface of lands in connection with a
surface coal mine. . ." These activities included ". . .the cleaning, concentrating, or other processing or
preparation, (of coal). . ." IC 13-4.1-1-3(12)(B).
"These areas also include. . .processing areas, .
." IC 13-4.1-1-3(12)(B).
3. A
coal processing plant is: ". . .a collection of
facilities where run-of-the mine is subjected to chemical or physical processing
and separated from its impurities." 310 IAC 120103 (Coal
Processing Plant.)
4. DNR
surface coal mining regulations specifically cover instances of coal processing
plants not located within the permit area of a specific mine. Under 310 IAC
12-2-104 (a), ". . any
person who conducts or intends to conduct surface coal mining and reclamation
operations utilizing coal processing plants. . .shall have obtained a permit
from the Commission. . ."
5.
It is clear from the testimony given that the Burke Tipple would qualify as a
coal processing plant under 310 IAC 12-1-3.
6.
It is clear from the testimony that all of the coal from Petitioner's Linton #1
and Linton #2 Pits will be processed at the Burke Tipple. While other coal, not
owned by Petitioner, may be processed at the Burke Tipple, it is clear that the
Partitioner's surface coal mining operations are
conducted to utilize the Burke Tipple, as the term is used in 310 IAC 12-3-104
(a).
7.
Based upon the above findings, the Department of Natural Resources has
jurisdiction over the Burke Tipple coal processing plant for the purpose of
requiring that a permit be obtained to assure compliance with the various DNR
operating and reclamation regulations.
8.
Before a surface coal mining reclamation permit is issued the applicant must
file a performance bond. IC 13-4.1-6-1 "The amount of the bond shall be
sufficient to assure the completion of the reclamation plan if the work had to
be performed by the Director in the event of a forfeiture" IC 13-4.1-6-2.
9.
"The bond per acre shall be no more than $10,000 per acre." 310 IAC 12-4-8(c).
10.
Testimony given makes it clear that the bond factors currently stated in the
Processing Facility Permit Application are not based upon the actual cost of
reclamation and cannot be revised, based upon an applicant's approved
reclamation plan. Since the bond amount per acre is fixed in the application
based solely upon the existence of certain situations (e.g. the production of
gob or slurry) and not the difficulty of reclamation, it is clear the bond
amount represents a policy statement by the DNR.
11.
By IC 4-22-2-2 (a), "All rules, regulations and other documents containing
a statement of policy,. . .which the issuing agency
intends to have the effect of force of law but which are not promulgated,
approved and filed as rules in conformity with the provisions of this chapter,
shall be invalid, void and of no force or effect after the first day of
January, 1978."
12.
By IC 4-22-2-3, "The word "rule" means
any rule, regulation, standard, classification, procedure or requirement of any
agency,
[VOLUME 2, PAGE 13]
designed
to have or having the effect of law or interpreting, supplementing or
implementing any statute, but does not include resolutions or directions of any
agency relating solely to internal policy. . .or internal procedure which do
not have the force of law. . ."
13.
It is clear that the bond factor used by DNR are policy statements (as used by
IC 4-22-2-2(a), are "rules", (as used by IC 4-22-3), but were not
promulgated as required by IC 4-22-2-2(a). As such, they are invalid and void,
and cannot be used by DNR to determine the bond rate under this permit, or any
other surface mining permit.
14.
Since the bond factors are invalid, the only measure remaining to DNR for the
determination of the performance bond level is the cost data submitted by the Petitioner,
and approved by the Natural Resources Commission. The total reclamation amount approved
was $73,050 for the site. The performance bond amount should thus be set, at
this time, at the $73,050 figure.
15.
It is recognized that, since the DNR was not using the approved reclamation
costs to set the bonding level, the additional reclamation costs that would be
particular to the DNR (public bidding, state wage rates, transportation and set
up costs) are not reflected in the $ 73,050 figure. Should DNR desire, data
supporting additional costs may be submitted at the administrative review
hearing attached to this Temporary Relief Hearing.
16. It
is recognized that, since the DNR was not using the approved reclamation costs
to set the bonding level, the additional reclamation costs that would be
particular to the DNR (public bidding, state wage rates, transportation and set
up costs) are not reflected in the $73,050 figure. Should DNR desire, data
supporting additional costs may be submitted at the administrative