[CITE: Delta Mining Corporation v. Dept. of Natural Resources, 5 CADDNAR
222 (1991)]
[VOLUME 5, PAGE 222]
Cause #: 90-114R
Caption: Delta Mining
Corporation v. Dept. of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Hargis; Grimmett
Date: December 13, 1991
ORDER
NOV
N00316-S-00144 issued to Delta Mining Corporation is hereby affirmed.
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, and 310 IAC 12 apply to this
proceeding.
3. The
DNR is charged with the responsibility of regulating surface coal mining in the
state of Indiana.
4.
The administrative law judge is the ultimate authority within the meaning of IC
4-21.5 in matters involving administrative reviews of enforcement actions
against surface coal mines.
5.
At all times relevant to these proceedings, Delta Mining Corporation
("Delta") held surface coal mine permit number S-00144 which allowed
the mining of coal at the Indian Springs mine in Martin County, Indiana.
6.
On March 16, 1990, a duly authorized representative of the DNR issued a notice
of violation ("NOV") to Delta for failure to restore all affected
areas to the approved postmining land use.
7.
The Delta filed a timely request for administrative review of the NOV.
8.
The parties filed a stipulation of facts and motions for summary judgment.
9.
IC 4-21.5-3-23 allows an administrative law judge to grant summary judgment in
any administrative review where there is no dispute as to material facts.
10.
Delta's permit required the areas referred to in the NOV to be reclaimed as
"pasture and hay."
11.
Active coal recovery under this permit ceased on or about April 19, 1988.
12.
All mine activity following April 19, 1988, related to reclamation of the
disturbed land.
13.
As of October 1, 1989, grading to required specifications of the permit was
complete in the area covered by the NOV except that Delta was in the process of
constructing two ponds not provided for in the post-mining land use portion of
the permit on the area in question.
14.
The ponds were constructed at the request of the landowners.
15.
In an inspection report dated October 5, 1989, the DNR inspector noted
noncompliance with post-mining land use conditions and stated that a land use
change will be needed for a pond.
16.
The November 1989 inspection produced a similar observation and statement of
need for the submission of a post-mining land use change.
17.
An inspection dated January 23, 1990, also states a post-mining land use change
for a pond needs to be submitted.
18.
The March 16, 1990, inspection led to the issuance of the NOV for failing to
restore all affected areas to the approved post-mining land use and required a
post-mining land use change be submitted and approved.
19.
Delta contends that reclamation law does not require the mine to seek or obtain
approval of a land use change at the time of construction but only prior to
bond release. Delta contends this is particularly true when the land owner has
requested or consented to the change.
20.
The DNR contends that the mine is required to reclaim disturbed areas in a
timely manner as specified by approved land use until such time as the approved
land use is modified by the permitting authority.
21.
310 IAC 12-5-68(a) requires affected areas to be restored in a timely manner.
22.
The restoration referred to in paragraph 21 is in accordance with the
post-mining land use plan included in the permit. See 310 IAC 12-3-48.
23.
The failure to timely reclaim according to the plan is grounds for a NOV.
24.
"Timely restoration" is not a term capable of a precise definition
and is site-specific.
25.
IC 13-4.1-1-2 requires that disturbed
[VOLUME 5, PAGE 223]
land be reclaimed as
contemporaneously as possible.
26.
310 IAC 12-5-54.1 attempts to identify a more objective standard with respect
to grading and back filling. Most mining operations are expected to complete
this phase of reclamation within 180 days after spoil is deposited. The DNR may
grant variances if a request is made.
27.
310 IAC 12-5-55.1 requires grading to the approximate original contour.
28.
The stipulated facts show that 1½ years after excavation had ceased,
Delta had not regraded and back filled according to
the approved reclamation plan. The NOV was issued almost two years following
the end of active mining. In no way can this qualify as "timely
restoration".
29.
Delta raises the issue of the length of time it takes to get a post-mining land
use change approved as prohibiting such applications without running the risk
of an NOV. This contention would be much stronger if Delta had actually applied
for a post-mining land use change prior to the issuance of the NOV. Certainly
the inspection reports invite such an application. Further, in Marigold Mining, Inc. v. DNR, 5 Caddnar 165 (1991), the administrative law judge found that
in March of 1990, all a mine needed to do to avoid an NOV in a post-mining land
use change situation was to file a request for change with the Department.
30.
Marigold, supra, also rejected the contention made here that the mine has until
bond release to reclaim according to the permit. In accord is United Minerals v. DNR, 5 Caddnar 191 (1991), in which an NOV was given for a pond
left in violation of the existing post-mining land use plan.
31.
The NOV in this matter was properly issued and should be affirmed. The material
facts are undisputed and summary judgment is appropriate.