[CITE: Peabody Coal Company v. NRC, 2 CADDNAR 21 (1984)]
[VOLUME 2, PAGE 21]
Cause #: 84-144R
Caption: Peabody Coal Company
v. NRC
Administrative Law Judge: Szostek
Attorneys: Joest; Spicker, DAG
Date: September 27, 1984
ORDER
The
permit application advertisements for Peabody Coal Company Permits S-00011-1,
S-00016-1 and S-00113 were not properly published, under the requirements of IC
13-4.1-4-1 and 310 IAC 12-3-106 and must be republished in a newspaper
physically located in Vermillion
County.
FINDINGS OF FACT
[The recommendations of the
ALJ were rejected by the Natural Resources Commission. These findings are as
revised to conform to the NRC directive.]
1.
The Division of Reclamation's sole difficulty with the advertisements published
by Peabody was the location of the newspaper in which they were published. No
argument or evidence was presented by Respondent that the advertisements were
defective in any other manner.
2.
IC 13-4.1-4-1 was amended in 1981, but has not been amended since then.
3.
310 IAC 12-3-106 was filed on September 28, 1981, and has not been amended
since then.
4.
The term "newspaper of general circulation in the locality" is no
defined in Indiana statutes or regulations governing surface mining.
5.
The Stafford memo. . is an attempt by the Division of
Reclamation to interpret IC 13-4.1-4-1 and 310 IAC 12-3-106 so as to give directions
and guidelines for the purpose of choosing a newspaper for publishing these
advertisements.
6.
The Stafford memo has not been superseded by later directions or guidelines
from Respondent on the subject.
7.
The statements in paragraph three (3) and four (4) of the Stafford memo, which
attempt to aid permit applications in the selection of a newspaper, must be
considered as directions and guidelines, rather than policy; since as policy
they would need to go through the formal process of rule adoption required by
IC 4-22-2 et. seq., and they have not gone through
such process.
8.
The guidelines contained in the Stafford memo are as follows:
A.
In paragraph (3): ". . .use the enclosed list to identify
all the newspapers that are generally circulated in the county where you have a
mine."
B.
In paragraph three (3): "Then choose the newspaper which is published in
the city or town closest to your mine."
C.
In paragraph three (3): "if your mine is equidistant between two cities
which have newspapers, choose the newspaper with the largest circulation."
D.
In paragraph four (4): "If you can identify a newspaper published in a
county adjoining the county where you mine, which is generally circulated in
your county and is closer to your mine than any other newspaper, you may use
the newspaper so long as it is published once a week."
9.
The guideline 9A list of newspapers for Vermillion includes the Terre Haute
Star, the Terre Haute Tribune and the Terre Haute Star-Tribune, besides the
Vermillion county-based Clinton Clintonian and Cayuga
Herald-News.
10.
Peabody Permits S-00011, S-00012, S-00014, S-00015, S-00016, and S-00016-2, all
involve permit areas close to the permit areas for the Permits in question.
11.
Peabody did not publish advertisements for the Permits listed in Proposed
Finding 10 in a Vermillion County-based newspaper.
12.
Peabody Permits listed in Proposed Finding 10 were approved by the Division of
Reclamation and the Natural Resources Commission without re-advertisement.
13.
Since the guidelines are not subject to the requirements of IC 4-22-2, the
Division of Reclamation may change them at its convenience.
14.
Approval of the six Peabody permits listed in the Proposed Finding 10 was an
inadvertent review omission by the Division of Reclamation. The correct
interpretation of IC 13-4.1-4-1 and 310 IAC 12-3-106 (a) is that the notice
must be published in a newspaper physically located in