[NOTE: THE FOLLOWING DECISION WAS RENDERED BY THE COMMISSION FOLLOWING BRIEF ORAL PRESENTATIONS BY THE PARTIES BUT NOT AS A RESULT OF FINDINGS TENDERED BY AN ALJ.]
1. Collie Coal Company failed to affirmatively demonstrate the P-40 permit was complete and failed to demonstrate that reclamation as required by I-SMCRA could be achieved under IC 14-34-4-7 prior to September 25, 1995 and failed to satisfy the requirements of Condition 4 and 8 of the November 4, 1994 General Permit Requirements and I-SMCRA prior to September 25, 1995.
2. However, on or after November 9, 1995, Collie Coal Company submitted a Certificate of Liability Insurance and Insurance Binder with effective dates of October 17, 1995 through October 17, 1996 to Barbara Miller, Records Manager for the Division of Reclamation.
3. On or after November 9, 1995, Collie Coal Company submitted a bond on a form prescribed by the director, a bond for performance payable to the state and conditional upon faithful performance of all the requirements of I-SMCRA.
4. Based on Collie Coal Company's satisfaction of the requirements of Conditions #4 and 8 of the P-40 General Permit Requirements regarding bond and insurance submittal and the special circumstances of this case wherein:
a) the resubmitted permit application for the P-40 site has been deemed administratively complete; and
b) the Department does not object to the NRC canceling the October 4, 1995 withdrawal of approval of the P-40 permit;
the NRC hereby orders the P-40 permit application approved and orders the Department issue the permit according to the requirements of I-SMCRA.
FINDINGS OF FACT
1. The provisions of IC 14-3, IC 14-34 and IC 4-21.5-3 control the above- captioned proceedings.
2. The Indiana Department of Natural Resources ("Department") is an agency of the State of Indiana. The Department's Division of Reclamation, ("Division") and the Director of the Department are charged with the administration and enforcement of IC 14-34 regarding the licensing and regulation of surface coal mining operations in Indiana.
3. Pursuant to IC 14-34-2-2(b), the Natural Resources Commission ("NRC") is the ultimate authority of the Department in administrative review of the approval or disapproval of a permit application.
4. Pursuant to the Parties Stipulation of Agreement attached hereto as Exhibit A, the Department and Collie Coal agree to abide by the decision of the NRC to either:
1) uphold the withdrawal of permit approval and permit denial; or
2) overturn the withdrawal of permit approval and denial and order the Department issue Permit P-40 pursuant to the requirements of I-SMCRA.
5. The Department, Division and NRC have jurisdiction over both the parties and the subject matter of this proceeding.
6. On November 4, 1994, the Department approved Collie Coal Company ("Collie's" ) permit P-40 with eight conditions.
7. Conditions 4 and 8 of the "General Permit Requirements" contained the following:
[VOLUME 7, PAGE 135]
"4) Bond for the first increment area is to be submitted 30 days after notification of approval of this permit application...
8) A valid liability insurance policy shall be obtained and in full force prior to issuance of this permit."
8. No timely request for administrative review was made by Collie regarding these eight (8) permit requirements.
9. Between December, 1994 and August, 1995, Collie requested various extensions of time to satisfy the permit conditions, including bonding and insurance conditions noted in Finding 7 above.
10. On May 10, 1995, following the Department's determination to include Linus Haller's written comments and responses, the Department added an addendum to the conditioned approval of the P-40 permit requiring Collie fulfill four (4) additional permit requirements.
11. No timely request for administrative review was made by Collie regarding these four (4) additional permit conditions.
12. On May 26, 1995, the Director of the Division forwarded a letter to Collie which letter expressed the Department's intent to issue the P-40 permit, "...provided...the bonding requirements are met."
13. On June 16, 1995, a request by Collie for a 90 day extension of time to meet the permit requirements was received by the Division.
14. On June 27, 1995, Charles Armbrust, Field Supervisor for the Division, issued a letter to Collie identifying the need for bond to be submitted 30 days after approval notice and granting a 90 day extension for insurance and bond submittal until August 25, 1995.
15. On August 30, 1995, pursuant to Collie's August 15, 1995 request for a 30 day extension of time and a meeting with Mr. Valentine on August 28, 1995, the Department approved an extension of time for Collie to satisfy the November 4, 1994 General Requirements until September 25, 1995. The August 30, 1995 letter set forth:
"(4) Bond for the first increment area must be submitted and approved within 30 days (by September 25, 1995), with a letter of continued commitment by the bonding company and/or agent submitted within two weeks of the date of this letter (by September 13, 1995).
This is a final extension of this condition. General Permit Condition (8) requires a valid liability insurance be obtained and in full force prior to issuance of the permit. Failure to satisfy these or other permit conditions by the September 25, 1995 deadline will result in denial of the permit. Attached are copies of and instructions for the required state bond and insurance forms, no other forms will be accepted."
16. On October 4, 1995, following Collie's failure to meet the September 25, 1995 deadline for insurance and bond submittal, the Department withdrew the permit approval for the P-40, which withdrawal provided: "Collie Coal Company...has not satisfied the requirements of IC 14-34 and 310 IAC 12...Specifically, the following findings are made with respect to the Application.
(1) Collie has failed to demonstrate that the Application complies
with all requirements of I-SMCRA,...
(a) Collie has failed to submit minimum performance bond required
under Condition #4 of the Department's November 2, 1994 approval
of the Application...
(b) Collie has failed to provide a valid liability insurance policy required
under Condition #8 of the Department's Approval of the Application.
...Based on the foregoing, the Approval is hereby withdrawn and Collie's
Application is hereby denied."
[VOLUME 7, PAGE 136]
17. On or after November 9, 1995, a bond form was hand-delivered by Mr. Valentine to Barbara Miller, in the Division's Jasonville Field Office.
18. On or after November 9, 1995, more than 45 days after the September 25, 1995 due date and after the Department's Withdrawal of Permit Approval, Mr. Valentine delivered a Certificate of Liability Insurance and Insurance Binder (referencing the p-40), with effective dates of October 17, 1995 through October 17, 1996 and dated November 9, 1995 by the Insurance Representative, Gerry Modisett.
19. No other Certificate of Liability Insurance or Insurance Binder (referencing the p-40) was provided the Department. While Collie asserts that some liability insurance policy binder was maintained by Collie prior to his obtaining "additional" coverage from Illiana Insurance Agency, no proof of such prior coverage is exhibited in Collie's briefs nor is such a prior policy provided in the p-40 permit application.
20. IC 14-34-4-7 requires the applicant bear the burden of establishing the mining permit application complies with all the requirements of I-SMCRA.
21. On or about January 30, 1996, Collie Coal Company resubmitted an application for permit on the original P-40 site requesting the Department reconsider the withdrawal of approval and denial of the P-40 application.
22. On or about July 16, 1996, the permit application resubmitted by Collie Coal was deemed administratively complete, and said application is currently under review by Department staff under Permit #S-328.
23. Under IC 14-34-4-7(a), the Director may not approve a permit unless the applicant affirmatively demonstrates that the permit application is complete and accurate, and affirmatively demonstrates that reclamation can be accomplished...
24. 310 IAC 12-4-19(a) provides that an applicant "submit at the time of the permit application a certificate certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operation for which the permit is sought."
25. 310 IAC 12-4-19 further provides the mandatory coverage amounts, with a minimum coverage of $300,000 for each occurrence of bodily injury and $500,000 aggregate, and a minimum of $250,000 for each occurrence of property damage and $500,000 aggregate.
26. The requirements for insurance form submittal under 310 IAC 12-4-19(a) have been met, although untimely, for the original P-40 permit application through Collie Coal's November 9, 1995 delivery of a certificate certifying a public liability insurance policy.
27. IC 14-34-6-1 provides that after a permit application is approved but before the permit is issued, a surface coal mining and reclamation permit applicant must file with the director, on a form prescribed and furnished by the director, a bond for performance payable to the state and conditional upon faithful performance of all the requirements of I-SMCRA.
28. The primary purpose for bond submittal is to assure that "sufficient money will be available to the regulatory authority to complete the reclamation if a default should occur." See 48 Fed. Reg. 32940 Comments, Sec. 800.11(E) and 32959 Final Rule, Exhibit J to Department's Reply Brief. Without this submittal, the Department is not assured that reclamation under the permit application can be accomplished.
29. The requirements for bond submittal under IC 14-34-6-1 have been met, although untimely, for the original P-40 permit application through Collie Coal's November 9, 1995 delivery of a bond on the approved state form, payable to the state and conditional upon faithful performance of all the requirements of I-SMCRA.
30. IC 14-34-4-14 provides the director shall issue a permit if all of the following apply:
"(1) The application is approved.
(2) The bonding requirements of IC 14-34-6 are met.
(3) The thirty (30) day period specified under section 13(a) of this chapter has expired."
31. The thirty day period identified in IC 14-34-4-14(3) began on November 4, 1994 and expired on December 4, 1994 following the Department's conditional approval of the
P-40 permit.