[CITE: Department v. Banner, 5 CADDNAR 176 (1991)]
[VOLUME 5, PAGE 176]
Cause #: 89-017W
Caption: Department v. Banner
Administrative Law Judge: Teeguarden
Attorneys: McInerny, DAG; Simmons
Date: June 3, 1991
ORDER
[NOTE: IN AUGUST 1991, JUDICIAL REVIEW WAS TAKEN IN HOWARD SUPERIOR COURT 1 (34D0l-9108-MI-00028) BY THE BANNERS. ON SEPTEMBER 25, 1991, THE HOWARD SUPERIOR COURT GRANTED A STAY OF AGENCY ORDER. THE AGENCY RECORD WAS FILED WITH THE COURT ON OCTOBER 4, 1991. AS OF APRIL 9, 2007, NO FURTHER ACTION HAS BEEN TAKEN. NO FURTHER ACTION IS ANTICIPATED.]
The Notice of Violation filed by the Department of Natural Resources against the respondents should be issued. Respondents are ordered to remove all fill from the floodway of Wildcat Creek which is less than 150 feet from the bank of Wildcat Creek within 60 days from the adoption of this order by the Natural Resources Commission. A civil penalty of $300 per day is imposed against the respondents for each day following the expiration of the 60 day abatement period in which the violation is not abated. This civil penalty will be imposed for a maximum of 100 days.
FINDINGS OF FACT:
1. The department of natural resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The natural resources commission ("NRC") is the ultimate authority of administrative hearings conducted pursuant to IC 4-21.5 for all matters involving floodway construction.
3. IC 4-21.5 and IC 13-2 apply to these proceedings.
4. On March 1, 1989, the DNR filed a complaint for the issuance of a notice of violation ("NOV'') against the respondents ("Banner") for violating the terms of permit number G-1,960.
5. Banner held (and still holds) a floodway construction permit (G-1,1960) issued in 1967 which allows fill to be placed in the floodways of Wildcat Creek as long as the fill remained at least 150 feet from the nearest bank of the creek.
6. In 1980, the DNR became aware of fill being placed to within 50 feet of the bank.
7. Subsequent investigations show fill still being placed in the floodway within 150 feet of the bank of Wildcat Creek.
8. Testimony showed that as of the day of the hearing (February 21, 1991), there was a large amount of fill which had been placed within 150 feet of the creek bank.
9. After receiving the NOV complaint, Banner applied for a new permit (G-11,845) to allow fill to within 20 feet of the bank. This application was denied after an administrative hearing (cause No. 89-218W) by the NRC on October 30, 1990.
10. The parties agreed that all testimony, exhibits, and objections that were part of the record in 89-218W should be considered as evidence in this matter. Pursuant to IC 4-21.5-3-21, official notice is taken of the evidence presented in 89-218W.
11. The property in question is a triangular shaped piece of land bordered by US 31, a county road, and Wildcat Creek just north of Kokomo, Indiana, consisting of 6.9 acres, more or less.
12. The property is zoned "commercial".
13. Banner admits to placing fill closer than 150 feet of the bank about 1985, which is the time a Kokomo water company water well was removed from the area.
14. Approximately 1/2 of the 6.9 acres is closer than 150 feet of the bank.
15. The fill in question is currently coming from Moore Construction and consists mainly of dirt, concrete, and asphalt.
16. Banner's new permit application to fill to 20 feet of the bank was denied solely because of its effect (and the cumulative effect) on the floodway in violation of IC 13-2-22-13; namely a two-inch surcharge which is considered a significant increase.
17. There is no contention that the fill presents an imminent danger to persons, property, fish, wildlife, or botanical resources.
18. In short, Banner has violated the terms of permit number G-1,1960 and placed unpermitted and unauthorized fill in the floodway of Wildcat Creek.
19. Banner cannot get a permit to fill to within 20 feet of the bank because of a two-inch increase in surcharge.
20. Banner might be able to get a permit to fill to within some number in between 20 and 150 feet, but since Banner has not applied for a permit for some distance between 20 feet and 150 feet, there is no way to evaluate this possibility.
21. Accordingly, the only conclusion that can be drawn from the evidence is that Banner has violated the existing permit.
22. Such a determination resolves only part of the matter.
23. The NRC must now decide the penalty to be imposed.
[VOLUME 5, PAGE 177]
24. Since July 1, 1990, the Director has had the authority under IC 13-2-22-21 to assess a penalty up to $1,000 for a violation whether abated or not. Likewise the same statute now provides that the director may assess a daily penalty of up to $1,000 a day after a violation is found and a penalty imposed until the violation is abated.
25. The DNR made a request for such a penalty for the first time in this case during final argument on February 21, 1991.
26. The pleadings filed in this matter only request a penalty under IC 14-3-3-22(a). No request to amend the pleadings which would put Banner on notice that this could be an issue was filed.
27. Under these circumstances, the conclusion is reached that it would be inappropriate to impose a fine under the 1990 law on a 1989 case unless the pleadings are formally amended and the respondent given the opportunity to respond. Further, IC 13-2-22-21 places the fining authority by the Director of the DNR where all pleadings filed by the DNR in this matter prior to the post-hearing brief refer to NRC-authorized penalties and violations in IC 14-3-3-22. For these reasons, no civil penalties under IC 13-2-22-21 should be imposed.
28. IC 14-3-3-22(a) authorizes the NRC to issue notices of violation for violations of laws administered by the DNR. If a NOV is issued, the NRC, as part of its order, sets an abatement time of no less than 15 days and sets a penalty which may be imposed daily for each day the violation is not abated.
29. IC 13-2-22-20 provides that the penalty for a Class B infraction is imposed and IC 34-4-32-3 provides that the civil penalty for a Class B infraction is a maximum fine of $1,000.
30. These are no published standards or guidelines to guide the NRC on the length of the abatement period, the amount of the penalty, whether or not the penalty should be assessed daily for each day it is not abated, and the cap on the penalty, if any, that should be imposed.
31. Maximum fines and minimum abatement times should be reserved for the most serious cases, i.e., the fill involves imminent danger to persons or property or to the environment.
32. This case does not involve any of the serious circumstances described in Finding 31.
33. This case does involve the deliberate and continued act of Banner in violating the terms of the permit.
34. Under these circumstances, the conclusion is reached that a rapid abatement date is not needed but more than a minimum fine imposed daily is needed to abate the violation.
35. Accordingly, an appropriate sanction is to require Banner to remove the fill within 150 feet of the bank of Wildcat Creek within sixty days after NRC approval of this order. For each day following the 60-day abatement period that the respondents remain in violation of the terms and conditions of floodway construction permit G-1,960, a civil penalty of $300 per day should be imposed. The number of days this penalty shall remain in effect shall not exceed 100 days. This decision in no way should prevent other alternative enforcement actions being taken by the DNR if the violation is not abated within the time provided.
36. Most arguments raised by Banner are the same as in the 20-foot permit denial (89-218W) and have been decided against Banner by the NRC and are currently undergoing judicial review pursuant to IC 4-21.5.
37. On the issue of whether or not the application of the Flood Control Act (IC 13-2-22) constitutes an improper taking in this case, evidence presented by Banner shows that there are approximately 3 1/2 acres of land fronting on US 31 in which filling or other use is not restricted. While the property would certainly be more valuable if another two or three acres were added to it, application of the Flood Control Act does not make the property worthless. More importantly, the only matters determined to date are that Banner may fill to within 150 feet of the bank but may not fill to within 20 feet of the bank.
38. It is certainly possible that filling to within some number between 150 feet and 20 feet of the bank would be allowed. Since no application has been made for an intermediate distance, a "takings" claim is premature.