Notice of Violation N30623-S-2 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. The DNR is the state agency charged with the responsibility of regulating surface coal mining operations.
3. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
4. At all times relevant to these proceedings, Green Construction of Indiana ("Green") held surface coal mine permit S-2 issued by the DNR, allowing the mining of coal in Daviess County, Indiana.
5. On June 23, 1993, a duly authorized representative of the DNR, during a routine inspection of the S-2 permit, issued notice of violation N30623-S-2 ("NOV") to Green. (The DNR's statement of facts is clearly in error in its discussion of the issuance of the NOV. The NOV (exhibit A) shows June 23 was the date of issuance.)
6. On July 14, 1993, Green filed a timely petition for administrative review of the NOV.
7. Since this matter involves an enforcement action against a coal mine, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
8. An examination of the statement of facts provided by the parties with motions for summary judgment and supporting documents indicates that there is no dispute of material facts in this case, thus summary judgment pursuant to IC 4-21.5-3-23 is appropriate.
9. The NOV was written for failure to achieve the approved postmining land use in violation of 310 IAC 12-5-68 and 310 IAC 12-5-59(a) and (b).
10. 310 IAC 12-5-68 discusses the timely return of property to its pre-mining capabilities and the criteria that must be satisfied to justify an alternative use.
11. 310 IAC 12-5-59 discusses revegetation requirements and the need for a vegetative cover to prevent erosion.
12. The factual basis for the violation involves the discovery of the construction of a GTE cellular telephone tower on a cropland area during an inspection.
13. The DNR does not dispute Green's affidavit which indicates that until the day of the inspection, the mine had no idea that the surface owner had contracted with GTE to allow construction of the tower.
14. The mine had previously restored approximately 80 acres in this area to cropland.
15. The area in question still had bond being held on it.
16. Between 1/2 and 3/4 acres of land was affected by the tower project.
17. At the time of the inspection, a concrete pad and gravel access road had been constructed.
18. In Green Construction of Indiana v. Department of Natural Resources, 6 Caddnar 151 (February 17, 1994), the administrative law judge found that the installation by the land owner of small buildings not permanently attached to the ground and picnic tables did not defeat the overall characterization of land use as cropland.
19. The important distinction to be made between that case and the present one is the portable nature of the obstructions.
20. The tower and road are clearly intended to be permanent fixtures on the property.
21. While the mine may still be able to meet productivity standards for the parcel of cropland, it does not change the fact that somewhat over 1/2 acre has been converted out of cropland and is not being used as it was prior to mining. Further, the current use is not one which is consistent with cropland, such as an access road or storage shed for farm equipment, and is a permanent change.
22. 310 IAC 12-5-68 prohibits the above
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occurring unless the mine submits a request for alternative use which complies with the criteria in 310 IAC 12-5-68.
23. The mine did not submit such a request prior to the issuance of the NOV because it had no idea such a land use change was taking place.
24. While Green's lack of knowledge and culpability is a mitigating factor in fixing a penalty, it does not excuse the violation.
25. 310 IAC 12-6-12 and 12.5 set forth penalty calculations. The arguments about lack of knowledge and minimal land area affected go strongly towards points to be assessed for probability of occurrence of damage and degree of fault.
26. The violation should be affirmed.