The Motion for Summary Judgment filed by the Department of Natural Resources is denied. The Motion for Summary Judgment filed by Solar Sources, Inc. is granted. Notice of Violation N10718-S-00089-3 is vacated.
FINDINGS OF FACT
1. On August 13, 1991, Solar Sources, Inc. ("Solar") filed a petition for review of Notice of Violation (NOV) N10718-S-00089-3 which was sent on July 24, 1991.
2. The NOV was issued for failure to completely backfill and rough grade on an approved grading deferral area in violation of a condition of the permit Part IV-A-3(c) and of 310 IAC 12-5-54.1(c).
3. Solar holds permit number S-89-3 which allows it to conduct surface coal mining operations at its Sky Point Mine in Gibson and Warrick counties.
4. IC 4-21.5, IC 13-4.1, 310 IAC 0.6-1 and 310 IAC 12 apply to this proceeding.
5. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3.
6. The administrative law judge is the ultimate authority for the Department under IC 13-4.1-2-1(c) in regard to this cause of action.
7. Phyllis Hart, an authorized representative of the Division of Reclamation (DOR), issued the NOV in question here.
8. On October 10, 1990, the DOR approved a grading deferral of one year or less, for the 10.5 acre area in question here.
9. The grading deferral, which was signed by Mike Long, Deputy Director, specified that the deferral applied to backfilling and grading pursuant to 310 IAC 12-5-54.1(c).
10. The deferral was until July 1, 1991, and specified that "at that time, mining will continue south in conjunction with Mining Sequence #III.
11. The only issue to be decided here is whether the backfilling and grading had to be completed by July 1, 1991, as the Department maintains or was Solar required to recommence mining by that date with backfilling and grading to follow as required by law.
12. The parties agreed that Solar recommenced mining in mid-June 1991.
13. Some of the spoil from the deferred area was placed in the pit on the opposite side of the road (west pit) from the pit in question (east pit). This placement was limited to what was needed in the west pit.
14. The rest of the spoil in the deferred area was being placed in the east pit as mining advanced.
15. At the time the NOV was written, the east pit had not advanced far enough to have placed all the deferred spoil.
16. Solar conducted this operation based on the belief that it was conducting contemporaneous reclamation as required by law.
17. The Department maintains that all the deferred spoil had to "disappear" by July 1, 1991.
18. The key elements to be examined are the alleged provisions violated as specifed in the NOV and the wording of the deferral letter.
19. It appears that a violation of permit condition is present only if the administrative law judge finds that the timing of backfilling and grading is a violation of law.
20. A violation of law would mean a violation of 310 IAC 12-5-54.1(c) which specifies "[t]he Director may grant variances to the limitations of paragraph (a) of this rule for good cause. However, requests for an extension of the timing limitation for more than one (1) year must be approved by the commission."
21. The deferral here was approved for less than one year but the parties differ as to what had to be done within the deferral period.
22. As mentioned previously, the Department maintains backfilling and grading had to be completed while Solar maintains mining had to recommence with contemporaneous reclamation being conducted.
23. Since the cited provision (Sec. 54.1(c)) refers to "paragraph (a) of this rule" the answer
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must be located there.
24. 310 IAC 12-5-54.1(a) governs the accomplishment of backfilling and grading in regard to the type of mining operation being regulated.
25. Evidence indicates that Solar is conducting a direct haul-back operation at the site in question.
26. Backfilling and grading of direct haulback operations is governed by subparagraph (2) of 310 IAC 12-5-54.1(a). It states: "(2) for direct haul-back operations...., rough backfilling and grading shall be carried out continuously behind the pit(s) being worked... ."
27. There is no specific time frame in subparagraph (2) but rather the requirement is "continuously behind the pit being worked."
28. It makes the most sense to conclude that for this type operation a deferral would be keyed to the pit being worked rather than the completion of backfilling and grading.
29. This appears to be the approach taken by Mr. Long in the deferral letter in which he notes that the request is for a grading deferral until July 1, 1991 and then he writes "[a]t that time, mining will commence (emphasis added) south in conjunction with Mining Sequence #III."
30. In fact, the only type of backfilling and grading timing violation that could occur under 310 IAC 12-5-54.1 for a direct haul-back operation would be a failure to carry out the process continuously with the pit being worked.
31. Solar was not charged with such a violation.
32. The fact that Solar volunteered to dump the excess spoil in the west pit to avoid an NOV does not mean that they were required by law to do so.
33. Based on the above findings, the NOV in question here cannot stand.