CADDNAR

[CITE: Peabody Coal Company v. Department of Natural Resources, 5 CADDNAR 208 (1991)]

 

[VOLUME 5, PAGE 208]

 

Cause #: 90-170R

Caption: Peabody Coal Company v. Department of Natural Resources
Administrative Law Judge: Lucas
Attorneys: Joest; Earle

Date: December 31, 1991

ORDER

 

Notice of Violation #N00517-80-56 is vacated.

FINDINGS OF FACT

 

1. The department of natural resources (the "Department") is an "agency" as the term is defined in IC 4-21.5-1-3. IC 4-21.5 (sometimes referred to as the "administrative adjudication act" or the "AAA") is applicable to an "agency action" of the Department.

 

2. The issuance of an "order" is an agency action. IC 4-21.5-1-4. "Order" refers to an agency action of particular applicability that determines legal rights and includes the issuance of a notice of violation. IC 4-21.5-1-9.

 

3. Peabody Coal Company ("Peabody") received permit 80-56 (the "permit") from the Department to engage in surface coal mining at the Universal New Goshen Mine in Vigo County (the "mine").

 

4. The permit was issued in 1980 and is subject to IC 13-4-6. Pursuant to IC 13-4-6-1.6, 30 CFR 710 through 30 CFR 716 (as well as other federal provisions) apply. In addition, IC 13-4.1-11 applies.[FOOTNOTE i]

 

5. On May 17, 1990, notice of violation N00517-80-56 (the "NOV'') was issued by the Department against Peabody for a violation alleged to have occurred at the mine.

 

6. IC 13-4.1-11 applies the current structure for inspections, monitoring, and enforcement of surface coal mining permits issued under IC 13-4-6. The standards applicable to a review of a notice of violation are set forth in IC 13-4.1-11-8(a).

 

7. On June 6, 1990, Peabody sought timely administrative review of the NOV and initiated this proceeding. The administrative adjudication act applies to a review of the issuance of the NOV. IC 13-4-6-9 and Abbott Coal and Energy Company v. DNR, 2 Caddnar 1 (1984). See, also, IC 13-4-6-1.6 and IC 13-4.1-11-8.

 

8. As defined in IC 4-21.5-1-15, the "ultimate authority" means the individual or panel in whom the final authority for an agency is vested. Pursuant to IC 13-4.1-2-1(c), the administrative law judge is the "ultimate authority" for the Department for any proceeding which is controlled by IC 13-4.1-11-8. The administrative law judge is the "ultimate authority" for this proceeding. Peabody and Amax v. Department of Natural Resources, 5 Caddnar 200 (1991). See, also, Gray Farms, Inc. v. Department of Natural Resources, 5 Caddnar 182 (1991).

 

9. The nature of the violation alleged in the NOV is that Peabody failed "to restore in a timely manner all disturbed areas to the approved postmining land use. Specifically, forest." The provisions stated to be violated are 30 CFR 715.12(a)(1) and 30 CFR 715.20(a).

 

10. An inspection report is attached to the NOV. The inspection report clarifies the foundation of the NOV as follows:

 

A portion of this permit (East of 63) was inspected as a result of TDN #X-90-06366-002 TV 1. The forest area to the North is the area in question. According to a representative of the operator, this area was planted in 1983. Some survival was noted, however, the majority of the area does not have any trees now. The operator has had several years to replant this area, but has failed to do so. [The] NOV... is issued for failure to restore in a timely manner all disturbed areas to the approved postmining land use. Specifically, forrest (sic.).

 

11. 30 CFR 715.20(a) provides in pertinent part: (a) General. (1) The permittee shall establish on all land that has been disturbed, a diverse, effective, and permanent vegetative cover of species native to the area of disturbed land or species that will support the planned postmining uses of the

 

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land approved according to Section 715.13.

 

12. 30 CFR 715-13(a)(1) provides as follows: (a) General. All disturbed 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 mining, or

(2) to higher or better uses achievable under criteria and procedures of paragraph (d) of this section.

 

13. IC 13-4-66(6) requires revegetation to be commenced "as soon as practicable following the mining operation." IC 13-4-6-7 provides for bonding to be posted by the holder of a permit for surface coal mining "until satisfactory vegetative cover has been established, but not for a period to exceed fifteen (15) years."

 

14. 30 CFR 715.20(a), 30 CFR 715.13(a)(1), IC 13-4-6-6(6), and IC 13-4-6-7 each apply to this proceeding. Because the two federal regulatory provisions are incorporated by reference through IC 13-4-6-1.6 into Indiana statute, they are elevated to the same status as a statute.

 

15. The four provisions referenced in Finding 9 must be construed together and given application as a whole. The cardinal rule of statutory construction is to ascertain and effectuate the general intent of the legislature. Words and phrases in statutes should not be isolated but rather construed to implement the general intent of the legislature. Matter of Estate of Souder, 412 N.E. 12, 13 (1981) Ind. App.).

 

16. The Department cites a decision of the office of Hearings and Appeals of the Interior Board of Surface Mining and Reclamation Appeals, United States Department of the Interior, which construes 30 CFR 715.13(a)(1), as supporting the issuance of the NOV.[FOOTNOTE ii]

 

17. The cited decision is Old Home Manor v. Office of Surface Mining, 3 IBSMA 241 (August 31, 1981). A notice of violation (issued for failure to backfill and grade a disturbed area) was sustained based upon the language "in a timely manner" contained in 30 CFR 715.13(a)(1). Backfilling and grading, a preliminary state of reclamation, was found upon the facts not to be performed by the miner in a timely manner.

 

18. The holding of Old Home Manor is set forth at 3 IBSMA 248: "Whether particular reclamation work is 'timely' must be determined taking into account the overall circumstances of a surface coal mining and reclamation operation." This interpretation of 30 CFR 715.13(a)(1) is persuasive.[FOOTNOTE iii]

 

19. Whether the efforts by Peabody in seeking to accomplish revegetation are timely must be determined taking into account the overall circumstances of the surface coal mining and reclamation operation at the mine.

 

20. The revegetation at issue in the NOV is forestation. To accomplish this form of revegetation, approximately 680 seedling trees are planted per acre with the goal that 450 trees per acre will be established for "surviving stem count."

 

21. Approximately 30 total acres contained an inadequate stem count when the NOV was issued. Two separate tracts are involved, with one containing about 20 acres and the other containing about ten acres.

 

22. In 1983, Peabody had planted seedling trees at the site, but this planting enjoyed only marginal success. Although a few trees survived in the spring of 1990 from the 1983 planting, virtually a total replanting was needed in 1990.

 

23. The mine was inspected by the Department monthly between January 1988 and February 1990; and on several occasions, inspection reports reflect that the 30 acres in question were vegetated with grasses and legumes and that only minor erosion was present. In these reports, there is no reference to the need for Peabody to plant tree seedlings.

 

24. On March 21, 1990, the Department inspected the mine in the company of Peabody and in the company of the United States Department of Interior, Office of surface Mining Reclamation and Enforcement ("OSM"). This inspection resulted in the issuance by OSM of a "ten-day notice" which asserted that the 30 acres "should at least be planted with a sufficient density of trees as to approximate the required # of stems/acre for forest." This inspection also resulted in the issuance by the Department of an inspection report where it was specified that seedling trees should be planted "this spring".

 

25. Also, as noted in the Department's March 1990 inspection report, Peabody was then engaged in a major tree planting effort at the mine, although not within the permit for which the NOV was issued. Approximately 100,000 seedling trees had already been planted during the early spring of 1990, and Peabody was yet planting additional trees.

 

26. Approximately 20,000 tree seedlings were required to meet planting requirements for the 30 acres in issue. The site had not, however, been physically prepared by Peabody for tree planting in 1990. Herbicides had not been applied to control competition to tree growth from fescues and other plants. Even more

 

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importantly, Peabody had not acquired tree seedlings for planting at this site in the spring of 1990.

 

27. The testimony was unrefuted that the Department is the only source which can provide the quantities and species of tree seedlings needed for Peabody's large-scale plantings; and purchases of seedlings from the Department made in the fall prior to a spring planting. Although private nurseries exist at more northerly locations which can offer large quantities of seedlings, the species are not as adaptable to Vigo County. Peabody did not have, and could not reasonably acquire during the spring of 1990, 20,000 tree seedlings for a successful planting on the 30-acre site.

 

28. The standards applicable to revegetation under the interim program permit are general. Forestation must be accomplished in a timely manner and in no event later than 15 years after grading is completed. The Natural Resources Commission has not adopted rules to assist in the administration of the interim program; and neither guidelines nor permit terms were identified at hearing, which provide insight into when a "timely" manner occurs.

 

29. On March 21, 1990, the Department first notified Peabody that the time had arrived when it was "necessary" to plant tree seedlings on the 30-acre site; and the testimony seems consistent with the concept that the site could, with some advance planning and physical preparation, be readied for planting.

 

30. The evidence is unrefuted, however, that as a practical matter, Peabody could not perform the requisite tree planting in the spring of 1990.

 

31. If a schedule for a reclamation activity is stated in obscure or very general statutory terms, and the schedule is not otherwise illuminated by rule or in the permit, the Department may be required to enlighten a coal miner of the Department's expectations through an inspection report or similar document. A notice of violation is premature which is issued before performance can reasonably be attained. Solar v. DNR, 4 Caddnar 29 (1987).

 

32. The NOV issued to Peabody followed too closely to the inspection report for Peabody to comply with the Department's expectations as set forth in the inspection report. The NOV should be vacated.

FOOTNOTES


i. Surface coal mining permits issued in 1980 are regulated within a transitional program between the former Indiana program, as set forth in IC 134-6, and the current federal program (for which Indiana has primacy), as set forth in IC 13-4.1. This transitional program is sometimes referred to as the "interim program" and was discussed in Graulich and Owens v. NRC and Squaw Creek, 3 Caddnar 8 (1986). The confusion expressed in Graulich concerning enforcement is clarified with the amendments to IC 13-4-6-1.6 made in 1985. Spencer Coal v. DNR, Reclamation, 3 Caddnar 64, 66-67 (1986).

ii. An adjudicative decision by the Interior Board of Surface Mining and Reclamation Appeals is not binding but can be persuasive. Reference to a federal administrative determination which construes a federal regulation, where the federal regulation is incorporated by reference into a state statute, is entitled to serious consideration.

iii. The Department equates "timely" and "as contemporaneously as possible". Although dictum in Old Home Manor might lead to this result, the Interior Board of Surface Mining and Reclamation Appeals was concerned with the failure by a miner to complete even the preliminary stages of reclamation. "Timely" is, fact sensitive and is not identical to "as contemporaneously as possible.', Peabody urges that the 15-year limitation contained in IC 13-4-6-7 controls what is "timely". To do so would emasculate the concept of timeliness embodied in 30 CFR 715.13(a)(1). No sanction would be available against a miner, which refuses to establish vegetative cover, until 15 years after grading is completed. Peabody's interpretation would not give full import to the statutory structure which incorporates 30 CFR 715 by reference. The legislative intent expressed in IC-13-4-6-1.6 is to buffer, for the interim program, the potential environmental inadequacies of IC 13-4-6-7(c). The 15-year period is an outside limit for the completion of reclamation.