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COA affirms ruling in favor of mining company, DNR

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The Indiana Court of Appeals has upheld the decision to release a surface mining reclamation bond obtained by a mining company, finding the reclamation requirements of the Indiana Surface Mining Control and Reclamation Act have been satisfied.

Squaw Creek Coal Co. was formed partly by Alcoa Inc. to mine coal from the Squaw Creek Mine. The coal was used to power Alcoa’s nearby aluminum production facility. In the 1960s and 1970s, Alcoa used abandoned haul roads in the mine to dispose of waste generated at its facility in coordination with the Indiana Department of Health. SCCC later obtained a permit to mine more of Squaw Creek Mine, and secured reclamation of the land with a bond.

At a public hearing on whether to release portions of the bond after active mining ended, concerns were raised about the disposal of Alcoa’s waste. The Indiana Department of Natural Resources approved the bond release, finding the threat of pollution wasn’t the type of impact anticipated by the bond requirements. An administrative law judge affirmed the decision to release parts of the bond, but vacated the DNR decision to affirm the release on other portions.

SCCC petitioned the trial court for judicial review, and the trial court reversed. Bill Musgrave, a former coal miner, appealed the trial court order in favor of SCCC and the DNR on SCCC’s petition for judicial review.

Musgrave filed a motion to dismiss SCCC’s petition for judicial review for lack of jurisdiction because the company did not serve summonses upon the NRC, the DNR, and the Indiana attorney general, and it didn’t pay the Marion Superior Court filing fee. The trial court denied the motion, which the appellate judges upheld. In Bill Musgrave v. Squaw Creek Coal Co. and Indiana Dept. of Natural Resources, No. 49A05-1104-MI-164, Judge L. Mark Bailey pointed out that the Indiana Administrative Orders and Procedures Act makes no mention of a filing fee and the Marion Superior Court prescribed no filing fee in this case. The judges also found SCCC’s process and service of its petition to be sufficient.

Musgrave is not collaterally estopped from challenging the DNR’s decision to release the reclamation bond on Permit S-008, as DNR and SCCC had argued, because the jurisdictional issue regarding Alcoa’s hazardous wastes was not necessarily adjudicated in the prior proceeding.

The trial court did not err by reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC and the DNR. There is no genuine issue of material fact that SCCC met the Phase III release requirements of the Indiana Surface Mining Control and Reclamation Act, wrote Bailey, and SCCC also satisfied the requirements of the Indiana Administrative code and its own permit.

 

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  1. Good riddance to this dangerous activist judge

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