[CITE: Ohio Valley Company v.
Department, 2 CADDNAR 14 (1984)]
[VOLUME 2, PAGE 14]
Cause #: 84-075R
Caption: Ohio Valley Company
v. Department
Administrative Law Judge: Szostek
Attorneys: Tyler; Spicker, DAG
Date: July 26, 1984
ORDER
It
is ordered this date as follows: Based upon the above Report and Findings of
Fact, the denial of Permit S-00062 is affirmed by the Natural Resources
Commission.
FINDINGS OF FACT
1.
The Natural Resources Commission (NRC) is included in the definition of agency,
as used in IC 4-22-1-2.
2.
Ohio Valley Company, Construction Division, Inc. (OVCCDI) is a legal corporation
operating in Indiana.
3.
The NRC jurisdiction over the subject matter and parties to this action.
4.
The NRC, through the Director of DNR, may delegate to employees of DNR the
power to conduct a hearing and make recommendations to the NRC concerning
controversies properly before the NRC.
5.
On April 25, 1984, the NRC, at its regular monthly meeting, denied surface coal
mining permit application S-00062, which had been submitted by OVCCDI for its
Blackfoot #2 mine, Pike County.
6.
On May 8, 1984, James G. Tyler, Attorney for Petitioner, requested an
administrative review of the permit denial.
7.
On May 15, 1984, the Director of DNR, appointed Steven J. Szostek
Hearing Officer to conduct this administrative review.
8.
On June 14, 1984, an administrative hearing on this matter was held at the DOR Field
Office in Jasonville, Indiana.
9.
Mr. Gilchrist testified:
A)
He has been President of OVCCDI since late 1982. The parties agree that the
permit application was submitted to DOR for review before September 29, 1982.
B)
OVCCDI hired a consultant, Resources Engineering of St. Paul, Virginia, to make
corrections and submit needed additional data for the permit application, as
requested by the DOR.
C)
OVCCDI also used, on an intermittent basis from a sister wholly-owned
subsidiary company, Terry Kirchoff, to deal directly
with DOR staff reviewers concerning reviewer questions and needed information.
D)
Although verbal contact existed between Kirchoff,
Resources Engineering and DOR staff reviewers from the date of application
submission in September, 1982 until the fall of 1983; the first written review,
asking for additional information, was not received until November 1, 1983.
(See Petitioner's Exhibit #1, Respondent's Exhibit #1)
E)
The information and interpretations received by Gilchrist from the date of his
assumption of the Presidency of OVCCDI until the spring of 1984, from Kirchof and Resources Engineering were that the permit
processing was proceeding very slowly, that there was no urgency in the
submission of data, and that the goals set by the DOR for processing permit
applications were not firm.
F)
Mr. Gilchrist found support for the beliefs stated in item 9E in the language
on page 5 of Petitioner's Exhibit #1 that "The items mentioned . . .will need to be completed before your application can be
placed on an agenda for consideration by The Natural Resources
Commission."
G)
Gilchrist did not change his belief as to the urgency of data submission until
after receipt of Petitioner's Exhibit #5 on April 4, 1984; which requested immediate
submission of previously requested data so that the NRC could review the permit
application at its April 25, 1984 meeting.
H)
Upon contact by Gilchrist, Resources Engineering said that they could not get
the required information to the DOR in time due to a heavy workload and
difficult questions to resolve.
I) One of the unresolved issues was the August, 1984 expiration
date of a permit from the Pike County Commissioners to OVCCDI to mine through a
county road. The DOR required an extension of the end date on this permit.
Gilchrist proposed a compromise
[VOLUME 2, PAGE 15]
solution to the Pike County
Commissioners on April 13, 1984, under which an unnamed company would be
brought in to mine the coal and restore the roadway.
J)
The mine in question could have been operation under its then existing interim permit,
but was dormant due to the relatively low market price for the coal. Current
coal prices, which have risen due to a possible UMW strike in September, now
make mining at this mine economically feasible.
K)
OVCCDI is currently in ligation with the U.S. Department of Interior Office of
Surface Mining concerning the payment of certain fees (see Respondent's Exhibit
#3, page 5, item G)
10.
Mr. McDivitt testified:
A)
By current NRC regulations, 14 findings (determinations) must be arrived at
before a permit may be approved. Of the 14 required findings, OVCCDI was found
materially deficient is six. Each of the six findings is, in itself, sufficient
grounds for permit denial.
B)
Initial processing of the permit application had been slow, but the initial
permit reviews by the Permit and the Technical Services Sections of the DOR
were completed and mailed to OVCCDI on October 27, 1983 (Petitioner's Exhibit
#1) and November 1, 1983 (Respondent's Exhibit #L, Petitioner's Exhibit #2.)
The Permit Section letter required that the requested information be submitted by
November 11, 1983. The Technical Services Section letter required its requested
information by December 16, 1983. Responses to these letters were received by
DOR from OVCCDI, but they were inadequate.
C)
Under IC 13-4.1-4-3, the permit applicant has the burden to supply the
information necessary to comply with the permit requirements.
D)
Besides the numerous technical deficiencies in the permit application, and
taking into account judicial appeals on certain DOR-issued violations and OSM fees,
thousands of dollars in assessed fines remain unpaid, OVCCDI has taken no steps
to arrange a payment schedule with DOR for these fines [a vague reference was
made by Mr. Tyler that OVCCDI was suing " a Mr. Goldman" on some/all
of these fines. The relationship of Mr. Goldman to these fines was not
expressed. Evidence of a suit by OVCCDI against Mr. Goldman was not submitted.]
E)
McDivitt talked with Gilchrist by telephone on April 24, 1984 and rejected
Gilchrist's request to defer the NRC vote on the permit application until the
May, 1984 meeting. McDivitt stated there had been a lack of cooperation with
OVCCDI in three areas: submission of permit application information, payment of
civil penalties and resolution of the Pike County road problem.
F)
DOR foresaw a long review period in August, 1983, for the remaining
applications (of those submitted prior to September 29, 1982.) It sent out a questionnaire
to all coal mine operators and then established a priority listing by month for
permit review. On December 5, 1983 (Respondent's Exhibit 7) the DOR Director
wrote to all Indiana Coal Mine Operators about the permit application approval
deadlines. The goal of completing the processing of these applications was
April, 1984, and each permit applicant would receive a specific target month.
The memorandum stressed that if all necessary information was not submitted by
the deadline that DOR may find it necessary to recommend denial to the NRC.
G)
In a December 12, 1983 letter, OVCCDI was given a priority month of March, 1984
and a deadline date of February 23, 1984 for the submission of the required information.
(Respondent's Exhibit #2)
H)
In a January 13, 1984 memorandum (Respondent's Exhibit #8) the Director of DNR
reiterated the NRC's desire to process all pre-September 29, 1982 applications
by April, 1984 and reminded operators that DOR staff were to recommend denial
if the permit application was not ready due to an operator's failure to
cooperate.
I)
The OVCCDI permit application was not ready for the March, 1984, NRC meeting,
but was carried over to April 25, 1984 NRC meeting.
J)
In a post-hearing brief, Respondent's attorney stated:
1)
There were 44 applications submitted after September 29, 1982 which were
approved by the NRC.
2)
Two other applications received prior to September 29, 1982 were denied.
3)
Six permit applications were approved in May, 1984, after being carried over.
Three had been scheduled for April and were carried over one month. [as was OVCCDI] Two permits were carried over from February
target dates to March, April and May. Both continuously sent in information and
were in constant contact with DOR permit staff. The last permit was carried over
from February to May since it was mining its last few acres under an interim
permit, but could not completely finish.
11.
From the Report and Findings of Fact 1-10 listed above, the Hearing Offices
believes the following facts to be true and accurate:
A) The
DOR would be placed in a position with no solution if the interpretation taken
by Mr.
[VOLUME 2, PAGE 16]
Gilchrist
on the statement in Petitioner's Exhibit #1 (see item 9F, above) were upheld.
Although the time of reckoning for a permit application may be delayed to gain
additional information, the entire intent of an effective administrative
process would be thwarted if an applicant could indefinitely delay a decision
on his application.
B)
Any application review delay must be examined to assure the good faith of the
reviewer as to
(1) whether the information is needed for the review;
(2) whether the information needed is specifically identified;
and
(3) whether sufficient time is given for the applicant to supply
the information. Petitioner made no presentation or argument that the
information requested was not needed, specified, or that sufficient time had
not been allowed for submission.
C)
Petitioner's sole argument seems to be that a perceived lack of urgency by DOR persuaded
Petitioner to delay the submission of the requested information for over five
months. The Hearing Officer finds no support for this argument. The requests
for information by DOR permit review staff carried deadlines for submission.
The memorandums from the Director of DOR and the Director of DNR both stressed
the need for permit applicants to submit requested information or face denial.
The DOR set a specific month for the review of OVCCDI's permit by the NRC and
set a specific deadline for the submission or requested information. When this
information deadline passed, the DOR staff carried over the permit application
for an additional 30 days and again requested the desired information. It is
clear the OVCCDI trusted its agents (Resources Engineering and Terry Kirchoff) in determining whether to submit information,
rather than relying on the specific and written statements of the DNR.
D)
No assurances were presented at the hearing by Petitioner that all or any of
required information or payment of fines could be submitted to the DOR within any
reasonable extension of the review period.
E)
Although three permit applicants were carried over for greater than the 30 day
carry over given to OVCCDI, it is clear that one was a unique situation and the
other two applicants, realizing the urgency of their situation, were constantly
supplying the DOR-requested information.
F)
in answer to the questions posed above relating to the basic issue of due
process and the sub-issues concerning the information requested and the treatment
of other permit applicants; it is clear to the Hearing Officer that the OVCCDI
permit application did receive due process and that any misinterpretations or misconsiderations of the intent of the DOR by OVCCDI were
the fault of OVCCDI and its agents.