[CITE: Peabody and Amax v. Department of Natural Resources, 5 CADDNAR 200
(1991)]
[VOLUME 5, PAGE 200]
Cause #: 89-221R
Caption: Peabody and Amax v.
Department of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Joest; Blanton; Earle
Date: December 19, 1991
ORDER
In
cause number 89-221R (Peabody Coal Permit Number 81-49), the condition attached
to the approval of the post-mining land use change on September 29, 1989,
requiring 21.4 acres of land changed from cropland to pasture land meet
productivity standards for cropland for two growing seasons is ordered deleted
from the approval.
In cause number 89-247R (Peabody Coal Company Permit Number S-00016), the
condition attached to the approval of the post-mining land use change announced
on October 26, 1989, requiring approximately 30 acres of land changed from
cropland to access roads and wildlife meet productivity for cropland for two
growing seasons is ordered deleted from the approval.
In cause number 90-257R (Amax Coal Company Permit Number S-00004-8 and 9), condition
6 in Section IV attached to the permit requiring 44.1 acres of land changed
from cropland to fish and wildlife habitat to meet cropland productivity
standards is ordered deleted from the permit.
In cause number 91-087R (Amax Coal Company Permit Number
S-00256), specific permit requirement 13 in Section IV attached to the permit
requiring 98.8 acres of land changed from cropland to fish and wildlife habitat
and forest lands to meet cropland productivity standards is ordered deleted
from the permit.
FINDINGS OF FACT
1.
The Department of Natural Resources ("DNR") is an agency within the
meaning of IC 4-21.5.
2.
IC 4-21.5, IC 13-4.1, IC 14-3, and 310 IAC 12 apply to
these proceedings.
3.
The DNR has the responsibility of regulating surface coal mining in Indiana.
4.
At all times relevant to these proceedings, Peabody Coal Company
("Peabody"), Amax Coal Company ("Amax") and Ayrshire Land Company ("Ayrshire")
held permits issued by the DNR which allowed them to conduct surface coal
mining operations in Indiana.
5.
Since none of the issues presented in these four matters involves the grant,
denial, or revocation of a permit to mine coal, the administrative law judge
("ALJ") is the ultimate authority within the meaning of IC 4-21.5
over these matters.
6.
On September 26, 1989, the regulatory authority approved a post-mining land use
change for the Peabody Latta Mine in Greene County.
This approval contained a condition which said the 21.4 acres being changed
from cropland to pasture and hay must still meet cropland productivity
standards for two growing seasons.
7.
On October 20, 1989, Peabody filed a request for administrative review
(89-231R) of the attachment of the condition on the grounds that there was no
legal basis for including the condition and that its inclusion was arbitrary
and capricious.[FOOTNOTE 1]
8.
The DNR contends that there has been no finding of "higher or better
use" by the DNR, and therefore, Peabody must meet cropland productivity
standards for this acreage.
9.
On September 26, 1989, the regulatory body approved a postmining
land use change for the Peabody Universal Mine (Permit S-00016) in Vermillion
County. This approval contained a condition which said the 69.5 acres being
changed from cropland to water, access road and
wildlife habitat must meet productivity standards for cropland for two growing
seasons, except that the land becoming a water impoundment was exempted. (About
30 acres appears to be affected by the condition)
10.
On November 8, 1989, Peabody filed a request for administrative review
(89-247R) of the attachment of the condition on the grounds that there was no
legal basis for its inclusion and that its attachment was arbitrary and
capricious.
11.
The Department contends that there has been no finding by the Department of
"higher or better use" in connection with this change, and therefore,
the land in question must meet cropland standards.
12.
On September 6, 1990, the DNR approved a permit area amendment application
adding 339.4 acres to the Ayrshire Mine (Permit
S-0004 8 and 9) in Chandler, Indiana. This approval contained a condition
requiring that the 44.1 acres of cropland being restored as wildlife area
instead of cropland meet cropland productivity standards for two years.
13.
On October 3, 1990, Amax filed a request for administrative review (90-275R)
which in part contests the attachment of the condition on the grounds that the
condition exceeds the authority of the DNR and is arbitrary and capricious.
14.
The DNR contends there has been no finding by the Department of "higher or
better use" in connection with this change of usage and the land in
question must meet cropland standards.
15.
On February 14, 1991, the DNR approved a new permit (S-00256) allowing Ayrshire Land Company to mine coal by surface mining
methods in Sullivan County, Indiana. This approval contained a condition
requiring that
[VOLUME 5, PAGE 201]
the 98.8 acres of cropland being
restored as forest and wildlIfe habitat instead of
cropland meet cropland productivity standards for two years.
16.
On March 18, 1991, Ayrshire[FOOTNOTE 2] filed a request for
administrative review (91-087R) which in part contests the attachment of the
productivity condition on the grounds that it exceeds the authority of the DNR
and is arbitrary and capricious.
17.
The DNR contends the attachment of the condition is proper.
18.
As of October 15, 1991, all parties in each of the four cases had filed motions
for summary judgment (or partial summary judgment) on the issue of requiring
cropland being restored to some other use to meet cropland productivity
standards before final bond release and filed appropriate responses.
19.
There is no material dispute of facts in any of the above matters,
hence a decision by summary judgment pursuant to IC 4-21.5-3-23 is appropriate.
20.
310 IAC 12-5-68 is cited frequently by the parties. Relevant portions of this
rule read as follows:
(a) General. All affected areas shall be restored in a timely
manner (1) to conditions that are capable of supporting the uses which they
were capable of supporting before any mining; or (2) to higher or better uses
achievable under criteria and procedures of this Section.
(b)
(deals with determining premining
use of land - not applicable)
(c)
prior to the release of lands from the permit area shall be restored, in a
timely manner, either to conditions capable of supporting the uses they were
capable of supporting before any mining or to conditions capable of supporting
approved alternative land uses. Alternative land uses shall be approved by the
Commission after consultation with the landowner of land management agency
having jurisdiction over lands, if the following criteria are met: [listing of
ten criteria].
21.
IC 13-4.1-8-1(2) is also cited. It requires permittees
to: Restore the land affected to a condition capable of supporting the uses
which it was capable of supporting prior to any mining an higher or better uses
of which there is a reasonable likelihood... .
22.
The DNR argures vociferously that since no specific
finding had been made by the Director that the proposed uses by the permittees are "higher and better", and
therefore, the areas in question must be reclaimed to cropland standards. This
argument totally ignores the fact that the DNR approved the alternate use.
Having done this, it is difficult to see how the DNR can argue that cropland
standards now apply and to some degree, the DNR must concur in that the DNR
specifically exempted the land under water impoundments from meeting the
cropland standard. In fact, 310 IAC 12.5-68(c) indicates that cropland standards
would not apply in that it indicates the land should be restored "to
conditions capable of supporting approved alternative land uses."
23.
There is no specific rule requiring "cropland" to be restored as
cropland first and then turned into a forest, wildlife preserve, or roads or
requiring land to be restored as forest, wildlife preserve, or roads to meet
cropland specifications.
24.
The reason for the attachment of the cropland condition in each cause appears
to arise out of a policy statement by the DNR adopted in September of 1989
which purports to require permittees to restore all
cropland to cropland standards prior to the actual post-mining land use
restoration which has been approved.
25.
This appears to be a policy of general application rather than one based on a
site-specific determination for a specific mine and permit.
26. Peabody v. DNR, 6 Caddnar
8 (1991), discusses the validity of making rules of general applicability by
policy rather than by enacting rules in accordance with IC 4-22. In this particular
case, Peabody sought a special status determination of the validity of a DNR
policy that all non-prime farmland must be restored with at least 18 inches of
soil replacement. Administrative Law Judge Lucas found that the DNR policy of
requiring at least 18 inches of soil replacement even in area that pre-mining
had less soil cover was designed to have the effect of law and is in the nature
of the rule. Since it was adopted in a way that did not conform with Indiana rule making (IC 4-22), the rule could not be
enforced. See also IDEM v. Amax, Inc.,
Ind. App., 529 N2d. 1209.
27.
There is no discernable difference between the issue in the Peabody status determination case and the four cases involved in this
decision.
28.
To have the effect of law and be generally applicable without site-specific
findings, the policy requiring cropland to be restored as cropland even though
a post-mining land use change has been granted must be adopted as a rule in 310
IAC 12 or enacted as a statute by the Indiana State Legislature.
29.
Once the post-mining land use change to forest or wildlife has been approved,
the
[VOLUME 5, PAGE 202]
operator's duty to restore becomes a
duty to reclaim as a reasonable quality wildlife area or forest, not as
cropland.[FOOTNOTE 3]
30.
Both of the Amax requests for administrative review involved additional issues.
However, none of the additional issues relate to post-mining land use changes.
Thus the order entered by the administrative law judge on the cropland
restoration issue is a final agency order as to the issue.
31.
The motions for partial summary judgment filed by Amax in 90-275R and 91-087R
are granted. Permit conditions requiring Amax to meet cropland productivity
standards for areas being reclaimed as forests or wildlife areas are declared
null and void.
32.
The Peabody adminstrative reviews did not involve any
other issues. Peabody is entitled to summary judgment in 89-247R and the
condition requiring Peabody to meet cropland productivity standards for areas
being reclaimed as wildlife areas and an access road is declared null and void.
33.
In 89-221R, Peabody appealed a condition attached to an interim permit. This
makes the legal analysis slightly different as the federal regulations apply.
34.
30 CFR 20 deals with the revegetation of land after
mining. This is a lengthy section but (a)(2) states
"[r]evegetation shall be carried out in a manner
that encourages a prompt vegetative cover and recovery of productivity levels
compatible with approved land uses."
35.
The above CFR section certainly appears to mandate the rapid reclamation as
"pasture and hay", the current approval post-mining land use.
36.
In fact, 30 CFR 20 (e)(2) sets forth the general
vegetative cover to be used when the post-mining land use is pasture. Crops are
not included on the list.
37.
30 CFR 20 raises another issue which would also apply to the other three cases.
IC 13-4.1-1-5, which took effect on July 1, 1991, prohibits the DNR from
enforcing surface coal mining rules which are more stringent than the federal
rules. Even if there were some basis in 310 IAC 12 to justify the DNR policy
here, it could not be enforced.
FOOTNOTES
1. The permit in question (81-49) is an interim permit obtained prior to
Indiana obtaining primacy from the U.S. Department of the Interior in July of
1982. The various filings of the parties indicate that this fact makes some
difference in that the CFR becomes involved.
2. As of May 14, 1991, the parties agreed that Amax Coal Company was now the
proper party in interest in this case and from this point forward, Amax is
assumed to be the permittee in 91-087R.
3. In fact, requiring two years of crop productivity prevents prompt
reclamation as per the approved post-mining plan and may violate 310 IAC
12-5-59 which requires operators to promptly cover the area with vegetation
that supports the post-mining land use.