Holbert did not actually get his major mining permit in 2008, but nevertheless expanded operations to a total acreage of close to 15 acres, as noted in the inspection report of July 2011. In the Holbert case, as in the Middle Creek case, the idea that the owners would apply for a major mining permit was used as a rationale not even to issue formal citations, even though both had gone over their permitted acreage. In fact, both the Colbert decision and the Holbert inspection reports contain numerous cases in which an inspector noted something that was contrary to regulations, but issued only an oral warning, not an NOV or compliance order. This practice makes claims that a quarry has “no violations” less meaningful than one might think, as recognized by the Colbert judge, who included consideration of the many instances in which there had been a failure to respond to such warnings in concluding that the operator had “a lack of ability or intention to comply with any provision of this act.”
We don’t know whether a judge would find the history of compliance in the Holbert case to be sufficiently disturbing to overthrow a decision by the DEP to grant a major mining permit. But we think the Colbert example makes it particularly important to keep track of what happens at the quarry going forward, with regard to the current schedule of compliance deadlines. In the July inspection report, a compliance date of September 26 was set for reclamation of the entire excess acreage mined. But when the quarry was inspected on September 26, the deadline was extended, without explanation, into a phased program that terminates in November of next year.
It’s pretty obvious that one compliance deadline has been missed already, and with no apparent consequences imposed. There are further deadlines coming up. If they also are missed, and if the DEP grants the permit anyway, it looks like the agency is setting itself up for a challenge under Section 3308. The next deadline is December 26. Stay tuned.