The number of points assessed by the Department of Natural Resources for fault in connection with Notice of Violation N01005-S-00010 is reduced from thirteen points to eight points. The resultant fine is reduced from $700 to $440. The decision by the Department of Natural Resources to impose the fine instead of waiving the fine is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency responsible for the regulation of surface coal mines.
4. Peabody Coal Company ("Peabody") operates a number of surface coal mines in Indiana including the Hawthorne Mine (surface mining permit number S-00010) in Sullivan county.
5. On October 5, 1990, a duly authorized representative of the DNR issued notice of violation N01005-S-00010 ("NOV") to Peabody.
6. Peabody did not contest the issuance of the NOV.
7. On December 27, 1990, following an assessment conference, the DNR imposed a fine of $700 against Peabody.
8. On January 14, 1991, Peabody filed a timely and properly perfected request for administrative review of the civil penalty assessed on December 27, 1991.
9. Since the request for administrative review involves only a penalty assessment and does not involve the grant, denial, or revocation of a surface mine permit, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
10. The NOV in question was written for failing to remove topsoil from a small area prior to dumping C horizon material on the property.
11. The evidence showed at the time the C horizon material was placed on the topsoil, the Peabody employees were under the impression that this area in question was an alternative material rather than actual topsoil, and thus not entitled to the same protection as top soil.
12. At the assessment conference, the Department treated the violation as reckless conduct because Peabody had another top soil handling violation at this mine site eleven months earlier.
13. The DNR ended up assigning a total of 27 penalty points which resulted in a fine of $700 being imposed.
14. The Director of the DNR has the discretion to waive fines under $1,000.
15. The Director did not waive this fine.
16. Peabody raises two issues in this cause. They are:
a. Did the DNR err when it treated this violation as one involving reckless conduct instead of simple negligence?
b. Did the Director abuse his discretion in not waiving this penalty?
17. The evidence shows that the permit in question contemplated topsoil substitute being used. See Exhibit 2.
18. The evidence shows that the area of violation was relatively small in comparison to the total area surrounding the violation area.
19. The evidence shows that the only reason the DNR treated this matter as reckless conduct is that the operator had a prior topsoil handling violation in the previous twelve months. See Stipulated Exhibits B and C.
20. The prior topsoil handling violation cited by the DNR took place on November 3, 1989, and involved an initial cut spoil ridge contaminating a 150 foot section of an otherwise properly protected topsoil stock pile. See Respondent Exhibit C.
21. The current violation took place on October 5, 1990.
22. Penalties for NOVs are covered by 310 IAC 12-6-12 and 310 IAC 12-6-12.5.
23. 310 IAC 12-6-12(c) discusses the number of penalty points that should be assigned because of the fault of the operator. Simple negligence is assigned 12 points or less. Recklessness is assigned 13 to 19 points.
24. "Recklessness" as used in 310 IAC 12-6-12(c) is a defined term. 310 IAC 12-6-12(c)(2) provides... "(iii).
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Recklessness means evidence of a plain, conscious, and unjustifiable disregard of the harm that might result from the conduct."
25. Not included in the definition of recklessness is any reference to an automatic upgrade to recklessness of a second violation within a year. In fact, no where in the statutes or rules governing surface mining is any such statement.
26. The number of prior similar violations at the same site may be evidence of reckless conduct but standing alone, it cannot justify a finding of " ... plain, conscious, and unjustifiable disregard of the harm that might result.... "
27. No other evidence was introduced of reckless conduct. In fact, the evidence shows this to be a case of routine carelessness that is not of any aggravated nature.
28. The conclusion is thus drawn that a penalty assessment in excess of eight points is improper.
29. Peabody did not appeal any of the other points assessed on Stipulated Exhibit B.
30. The total number of penalty points assessed for this violation should be 22.
31. 310 IAC 12-6-12.5 sets forth the fine to be imposed for the total penalty points assessed. Twenty-two (22) points requires a fine of $440.
32. 310 IAC 12-6-11(c) gives the Director the discretion not to assess a penalty if the number of points is 30 or less.
33. The parties have stipulated that prior to November 13, 1989, the DNR policy was to waive fines in all of these minor cases.
34. Effective January 1, 1990, this policy was changed and the DNR announced it would not waive penalties for repeat violations. See Stipulated Exhibit A.
35. 310 IAC 12-6-11 gives the Director considerable discretion in the matter of waiving penalties when the points are 30 or less.
36. A decision by the Director to impose penalties and not waive them for repeat offenses is not an abuse of discretion nor is it prohibited by law. The Director is free to adopt guidelines that clarify how the Surface Mining Act will be administered as long as the guideline or policy does not conflict with a statute or rule or is otherwise prohibited.
37. The DNR's refusal to waive the fine in December of 1990 is not arbitrary, capricious, an abuse of discretion or otherwise unlawful or improper.