The following are vacated: notices of violation N90124-S-00089T (part 2 of 2), N90119-S-00126, and N90410-S-00185.
FINDINGS OF FACT
1. On February 13, 1989, Solar Sources, Inc. (the "Claimant") filed requests for review of Notices of Violation N90124-S-00089T (two parts) and N90119-S-00126. These reviews were assigned administrative cause numbers 89-010R and 89-011R respectively.
2. At a prehearing conference held on March 17, 1989, the Claimant noted that Part 1 of 2 N90124-S-00089T had been settled and that further proceedings would deal only with part 2 of 2.
3. On May 16, 1989, the Claimant requested review of Notice of Violation N90420-S-00185 (administrative cause number 89-082R) and consolidation with the proceedings described in findings 1 and 2. The administrative law judge approved the consolidation on May 19, 1989. The Notices of Violation are collectively referred to as the NOVS.
4. IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to these consolidated proceedings.
5. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Director of the Department is the ultimate authority for the agency with respect to the proceedings.
6. Phil Broomall, an authorized representative of the Director, issued all the NOVs in dispute here.
7. The following issues were presented by the Claimant for hearing:
a. Selective enforcement is being conducted by the Department as some coal companies are not being held to the same standard as is the Claimant (all administrative causes).
b. In the inspection reports written prior to NOV N90124-S-00089R, no finite date was given by which corrections were to be made.
c. Significant portions of the work recommended in the inspection report were completed by the time NOV N90124-S-00089R was written causing its issuance to be improper.
8. At the conclusion of the hearing, the Claimant made a motion to conform the pleadings to the evidence which would include administrative cause 89-082 with the issues stated in finding 7a and 7b. This motion was granted over the objection of the Department.
9. With respect to the issue of selective enforcement (finding 7a), evidence offered by the Claimant was excluded upon proper objection by the Department to its materiality and relevancy.
10. In its objection the Department pointed out that what other inspectors were doing at other mines was irrelevant and immaterial to the NOVs received by the Claimant.
11. The Claimant based its claim of relevancy on the assumption that selective enforcement indicated a lack of standards to be followed.
12. IC 4-21.5-3-26(a) states: " ... Upon proper objection, the administrative law judge shall exclude evidence that is irrelevant, immaterial ...."
13. The word "shall" contained in IC 4-21.5-3-26(a) gives the administrative law judge no discretion to hear evidence classified as irrelevant or immaterial.
14. All petitions submitted by the Claimant challenged specific NOVS.
15. The performance standards for those NOVs are clearly stated in IC 13-4.1 and 310 IAC 12.
16. Relevant evidence would go to whether or not the NOVs were properly issued.
17. An argument that another inspector treated another coal company differently than Mr. Broomall treated the Claimant is not relevant to whether or not the violations cited by Mr. Broomall were committed.
18. The Claimant cites Solar v. DNR, 4 Caddnar 29 (July 28, 1987), with respect to the issue of a lack of finite time to take action on NOV N30124-S-00089T, as
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requiring that specific and adequate warnings be given.
19. Solar at 4 Caddnar 29 only goes to giving adequate time to take action and has nothing to do with giving a finite period of time.
20. The threshold case in regard to finite time is Solar Sources, Inc. v. DNR, 5 Caddnar 39 (October 3, 1988). in this case, the Director found in finding 14 that "When an inspector orders a permittee to take a corrective action, a definite period of time should be stated such as 190 days' or 'by November 4, 1988' rather than 'in a reasonable time' or 'by the next inspection."'
21. Although Solar Sources, Inc. at 5 Caddnar 39 correctly states a general premise for defining corrective action, there may be circumstances in which a finite time is not mandated. Illustrations include the following:
a. Finite times need not be given if the inspector simply notes a possible future problem and is merely describing to an operator what might occur.
b. Finite times need not be given if a time frame is already mandated in a statute, a rule, or the permit.
c. The absence of a finite time is not fatal to a notice of violation if the duration between the warning and the violation is not inadequate or unreasonable.
22. In regard to N90124-S-00089T (part 2 of 2), the 36-day period between the inspection report and the issuance of the notice of violation was from December 19 to January 23.
23. The evidence discloses that the Claimant applied due diligence to correct the problem for a period interspersed by holidays during which there was inclement weather. As a consequence, the period provided to correct the violation became inadequate.
24. With respect to N90119-S-00126, 310 IAC 12-5-147 requires that stockpiles which are in place more than 30 days must meet the requirements of 310 IAC 12-512.1. As provided in 310 IAC 12-5-12.1(d)(2)(iii), stockpiles must be protected "through prompt establishment and maintenance of an effective, quick growing non-noxious vegetative cover, or through other measures...." The stockpiles at issue were recently inactive, and unusual rainfall amounts had caused them to be difficult to work. Because of these extraordinary conditions, the placement of equipment on the stockpiles might have harmed rather than protected the topsoil. As a consequence, the issuance of N90119-S-00126 was premature.
25. With respect to N90420-S-00185, the evidence shows that the Claimant had taken extensive measures to protect the topsoil although 100% protection had not been achieved. The site was in the first year of reclamation, and additional efforts were undertaken by the Claimant following an initial inspection report. In light of the indefinite terms of that report, the issuance of N90402-S-00185 was premature. See, also, Solar v. DNR, 4 Caddnar 27 (March 27, 1987).
26. Upon the particular facts presented in these proceeding, the NOVS should be vacated.