[FEUERBACH TOOK JUDICIAL REVIEW TO THE WARRICK CIRCUIT COURT (CAUSE NO. 87COl-93-7-MI-293). ON OCTOBER 20, 1993, AN ORDER OF DISMISSAL WAS ENTERED FOR LACK OF SUBJECT MATTER AND PERSONAL JURISDICTION OVER THE DNR.]
(1) Notice of Violation N10625-81-17 issued to Will Mining Corporation is affirmed.
(2) Cessation order C11216-81-17 issued to Will Mining Corporation is affirmed.
A. JURISDICTION
FINDINGS OF FACT
1. Will Mining Corporation ("Will Mining") was issued Permit 80-141 and Permit 81-17 (the "Permits") under IC 13-4-6 by the department of natural resources (the "Department") to engage in surface coal mining operations in Warrick County, Indiana.
2. The permits were issued during the "interim" period between the enactment of the Federal Surface Mining Control and Reclamation Act ("Federal SMCRA") and the date on which the Indiana version of Federal SMCRA took effect. The Indiana version of Federal SMCRA is codified by statute primarily at IC 13-4.1 and is referred to as "Indiana SMCRA". For permits issued during the "interim" period, the reclamation performance standards of 30 CFR 715 apply.
3. The permits were revoked by the natural resources commission (the "Commission") on September 17, 1985. At that time, reclamation had not been completed for the areas mined under the permits.
4. Where a surface coal mining permit is revoked, a surety for the operator has the right to perform reclamation as required by IC 13-4-6-6. DNR v. 3 States Trucking and Am. Drug., 1 Caddnar 29 (1985).[FOOTNOTE l]
5. Russell L. Feuerbach was the surety for Will Mining under the permits.
6. Russell L. Feuerbach, doing business as Landcraft ("Feuerbach"), entered an agreement with the Department to perform reclamation for the areas disturbed by Will Mining.
7. On July 2, 1991, Timothy A. Corn ("Corn"), an authorized representative of the director of the Department, issued notice of violation N106253-81-17 (the "NOV'') against Will Mining.
8. On December 18, 1991, Corn issued cessation order C11216-81-17 against Will Mining.[FOOTNOTE 2]
9. Feuerbach made timely requests for administrative review of the NOV and the CO.
10. The Department is an "agency" within the meaning of IC 4-21.5-1-3. This proceeding is governed by IC 4-21.5 and a rule (310 IAC 0.6-1) adopted by the Commission to assist in the implementation of that statutory article.
11. Pursuant to IC 13-4.1-2-1(c), the Administrative Law Judge is the "ultimate authority" for the Department for administrative reviews of notices of violation and cessation orders issued under Indiana SMCRA. The Administrative Law Judge has jurisdiction over the parties and over the subject matter of these proceedings.
B. NOTICE OF VIOLATION N106253-81-17
12. Part 1 of the NOV was issued for "[f]ailure to comply with the approved post-mining land use" in violation of 30 CFR 715.13(d).
13. All areas of the permits subject to the NOV had an approved post-mining land use of pasture when the NOV was issued.
14. A lake was constructed by a landowner on an area located within the permits sometime before January 1991.
15. The lake was constructed without the participation or acquiescence of Feuerbach.
16. Construction of the lake was not supportive of the approved post-mining land use of pasture.
17. Under proper factual circumstances, a permittee (or other responsible person) may receive relief from a notice of violation which results from activities of someone who is outside the control of the permittee. This relief is available as an affirmative defense only where the permittee (or other responsible person) addresses the notice of violation within a reasonable period of time. Spencer Coal Co. v. DNR, DOR, 3 Caddnar 98 (1987).
18. The burden of proof for an affirmative defense lies with the person seeking its relief. IC 4-21.5-3-14(c).
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19. Feuerbach had notice of the lake construction and its noncompliance with the approved post-mining land use based upon Compliance Inspection Reports dated January 17, April 23, and May 24, 1991.
20. No postmining land use change had been submitted by Feuerbach when the NOV was issued in July 1991. Neither had Feuerbach otherwise addressed the lake construction.
21. Feuerbach did not address the lake construction within a reasonable period of time.
22. Feuerbach has failed to sustain his burden of proof needed to qualify for relief from the NOV based upon the construction of a lake by the landowner.
23. A factual basis exists for the issuance of Part 1 of the NOV.
24. Part 2 of the NOV was issued for "[f]ailure to establish on all land that has been disturbed, a diverse, effective, and permanent cover, that is capable of stabilizing the soil surface with respect to erosion and will support the planned post-mining land use of pasture" in violation 30 CFR 715.20(c) and 30 CFR 715.20(a)(1) and (a)(2).
25. Erosion had been present since at least April and been cited in Compliance Inspection Reports on April 23, 1991 and May 24, 1991.
26. Corn established a deadline of May 28, 1991 for completion of repairs to the eroded areas.
27. The repairs had not been completed at the time the NOV was issued.
28. Rills and gullies which were present since at least April 1991 had not been regraded or stabilized when the NOV was issued.
29. A diverse, effective, and permanent vegetative cover had not been established on the areas of the permits described by Corn in testimony as "hot spots".
30. The vegetative cover present was not capable of stabilizing the area against erosion as erosion was present in the form of rills, gullies, and washes.
31. A factual basis exists for the issuance of Part 2 of the NOV.
32. The Department has the burden of proof to establish a proper basis for the issuance of a notice of violation. Peabody v. Ralston, (1991 Ind. App.) 578 N.E.2d 751.
33. The Department has here established a proper basis for both Part 1 and Part 2 of the NOV.
34. Issuance of the NOV should be affirmed.
C. CESSATION ORDER C11216-81-17
35. Part 2 of the NOV specified an abatement deadline of July 24, 1991 for grading and September 16, 1991 for seeding.
36. The abatement dates for Part 2 of the NOV were subsequently extended on six occasions, the last of which was granted on November 22, 1991 and extended the abatement date to December 6, 1991.
37. The CO was issued for failure to abate the NOV; the NOV had not been terminated by the Department before issuance of the CO.
38. "Interim" permits areas are subject to enforcement action under IC 13-4.1 as provided in IC 13-4.1-6-1.6.
39. A cessation order is appropriately issued when an operator fails to abate a previously issued notice of violation. IC 13-4.1-11-5(a)(2).
40. Feuerbach performed some work at the site after the NOV was issued, but the work had not fully stabilized the area with respect to erosion.
41. The areas cited in the NOV were significantly eroding when the CO was issued.
42. Feuerbach had failed to abate the NOV before issuance of the CO.
43. The Department has the burden of proof to establish that a proper basis exists for the issuance of a cessation order. IC 4-21.5-3-14. See, also, Peabody v. Ralston cited previously.
44. The Department here has established a proper basis for the issuance of the Co.
D. EFFECT OF REPERMITTING THE SITE BY UNITED MINERALS
45. Before January 1991, some areas permitted to Will Mining were repermitted to United Minerals, Incorporated ("United Minerals").
46. At the time of the repermitting to United Minerals, Feuerbach was conducting reclamation as a surety for Will Mining.
47. The repermitting of a site for the purpose of conducting a surface coal mining operation must be accomplished in accordance with IC 4-21.5-3-5. See, generally, IC 13-4.1-3-1 regarding the necessity of a permit.
48. Feuerbach was not notified by the Department of the issuance of a permit to United Minerals under Indiana SMCRA.
49. As a surety actively engaged in reclamation, Feuerbach was entitled to notification under either IC 4-21.5-3-5(b)(5) or 5(b)(6).
50. A person who has failed to receive the requisite notice of a permitting ("licensing") action under IC 4-21.5-3-5 may seek relief with respect to the permit, including a stay of effectiveness. See, particularly, IC 4-21.5-3-5(f).
51. The relief contemplated by IC 4-21.5-3-5 does not extend to a sanctioning action. Both notices of violation and cessation orders are sanctions.
52. The failure by the Department to provide Feuerbach with notice of the United Minerals permit does not effect the validity of either the NOV or the CO.
53. The activities by United Minerals under its
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permit impeded the reclamation efforts by Feuerbach. The evidence does not, however, support a finding that the impediment was so serious as to avoid the NOV or the CO. Particularly in light of the time extensions granted by Corn for compliance, Feuerbach has not carried his burden of persuasion with respect to this affirmative defense.
54. Neither the repermitting to United Minerals nor the activities by United Minerals under its permit cause the NOV or the CO to have been improperly issued.
FOOTNOTES
1. Caddnar was adopted by the Commission in November 1988 as the agency index contemplated by IC 4-21.5-3-32. The Commission also specified that material included in Caddnar may be used as precedent for actions controlled by IC 4-21.5 and 310 IAC 0.6-1.
2. Both the NOV and the CO state they are issued against Will Mining as the permittee and delivered in care of Feuerbach. Neither the NOV nor the CO is directed to Feuerbach as "surety" or in any other capacity apart from a process receiver for Will Mining. In an "Order for Partial Summary Judgment" entered in Cause 91-304R on February 24, 1992, the administrative law judge found that the Department could properly proceed against Feuerbach as surety. "Feuerbach is a person which [who] is liable for the receipt of a notice of violation or a cessation order under IC 13-4.1.11 That order is here incorporated by reference. Feuerbach has denied, however, that he has "business interests", another association with, or an agency relationship to Will Mining. Russell L. Feuerbach letter of August 16, 1991 attached to the "Notice of Prehearing Conference" entered on August 21, 1991. The Department presumably views Will Mining and Feuerbach from a different perspective than does Feuerbach. Whatever the relationship between Will Mining and Feuerbach, on their faces the NOV and the CO were issued against Will Mining. Any enforcement of these sanctions is beyond the scope of the current proceedings. The NOV and the CO must now stand or fall as sanctions taken against Will Mining.