1. Notices of Violation under administrative cause number 95-094W and 95-096W are issued against the Respondents pursuant to IC 14-10-2-6 (formerly IC 14-3-3-22) for violations of IC 14-28-1 (formerly IC 13-2-22).
2. Pursuant to the Notices of Violation Linda E. White is ordered to pay a penalty of $500.
3. Pursuant to the Notices of Violation Marion L. White is ordered to pay a penalty of $1500.
4. The respondents are ordered to restore the sites to their approximate condition before the illegal work was begun or obtain permits for construction in a floodway by February 1, 1997, or in the alternative, negotiate an agreement with DNR for an alternate completion date before February 1, 1997.
5. If the requirements of #4 above are not met, a charge will be assessed against the Whites collectively pursuant to IC 14-10-2-6. The charge will be $500 per day for each violation, beginning February 2, 1997, and ending March 3, l997, for a maximum total of $30,000.
FINDINGS OF FACT
1. On April 7, 1995, the Department of Natural Resources (DNR) filed with the Natural Resources Commission ( NRC) Division of Hearings four complaints for the Issuance of a Notice of Violation and Imposition of Penalties ( complaints') against Marion and Linda White, d/b/a White Brooke Park ( Respondents).
2. Tim Rider was assigned all four complaints as the NRC administrative law judge ( ALJ).
3. Only two of the complaints were contested at hearing held on May 1, l996, namely V-1778-FW and V-1883-FW.
4. In those two complaints, it was alleged that Respondents placed fill containing concrete, rebar (concrete reinforcing bar), asphalt, and some rock and soil in two separate locations in the floodway of Brandywine Creek, near Greenfield, Hancock County, Indiana without a permit from DNR.
5. The issue identified during the status conferences and memorialized in a Report of Status Conference entered by the ALJ on October 17, 1995, was whether or not the unpermitted fill constituted routine maintenance of grandfathered roads.
6. The DNR agreed with the Respondents' claim that the roads were in place prior to implementation of the modern version of the Flood Control Act (1973) and that routine maintenance of these roads would also be grandfather in that a permit would not be required. (See 310 IAC 6-1-3(2) which defines the base condition.)
7. The Respondents admitted that fill which consists of a number of elements such as asphalt, concrete, rebar, etc. is stockpiled in the floodway of Brandywine Creek but submits that the fill need not be permitted because its use in road maintenance is contemplated at some future time.
8. IC 4-21.5, IC 14-10-2 (formerly IC 14-3-3), IC 14-28-1 (formerly IC 13-2-22), 310 IAC 6 and 312 IAC 3 (formerly 310 IAC 0.6-1) apply to this proceeding. There is subject matter jurisdiction and jurisdiction over the persons of the Whites, White Brooke Park, and DNR (collectively, the parties).
9. The DNR is an agency as defined in Ind. Code 4-21.5-1-3.
10. As defined in IC 4-21.5-1-15, ultimate authority means the individual or panel in whom the final authority for an agency is vested.
11. Pursuant to IC 14-28-1 and IC 14-10-2-3, the NRC is the ultimate authority for this type of proceeding.
12. Respondents are the owners of a tract of land near Greenfield, Hancock County, Indiana which includes the areas alleged to be in violation by DNR. Respondents own the land and business enterprise White Brooke Park jointly and operate the premises as a mobile home park and campground. The property was used in the past as
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a sand and gravel extraction operation.
13. Since the parties have stipulated that road maintenance would be grandfathered the burden is on the DNR to persuade the court that the piles of material in question which lie in the floodway of Brandywine Creek and on property owned by the Whites constitute something other than road maintenance.
14. Julie A. Perry testified on behalf of DNR in support of the complaints. Since April 24, 1996, Ms. Perry has been employed by Weihe Engineering in Indianapolis, Indiana as a Project Engineer. Prior to April 19, 1996, Ms. Perry was employed for approximately six years with DNR's Division of Water in a civil engineering capacity, including the issuance of permits. She served as Violations and Investigations Section Head from May 1994 to April 1996. Her duties as Section Head included violation case management, supervision, and conducting investigations. It was in this capacity that she participated directly, supervised employees or reviewed and confirmed reports of prior employees concerning DNR's inspection of the violations sought against Respondents. Ms. Perry has a B.S. degree from Purdue University in agricultural engineering, and is in the process of completing the requirements to obtain the designation of Professional Engineer. Both by education and experience, she has special expertise in floodway activities which would constitute violations of the Flood Control Act.
15. Ms. Perry presented testimony that the violations alleged against Respondents were in the floodway of Brandywine Creek. (See Claimant's Exhibits 1,2,& 3.) She testified that DNR's determination that portions of Respondents' property was within a floodway subject to the Flood Control Act was made in reliance upon maps delineated and published by the Federal Emergency Management Agency ( FEMA). (See Claimant's Exhibit 1.) She further stated that DNR interpreted applicable statutes and regulations of DNR and FEMA as requiring DNR to apply FEMA floodway delineations in order to comply with state and federal law. DNR's mandate to apply floodways as delineated by FEMA was sustained concerning Brandywine Creek, Hancock County in Yater v. DNR, 6 CADDNAR 168 (1994).
16. Ms. Perry reviewed DNR's prior inspection reports and computer entries produced by former staff engineers John Wesley McIntosh and Matt Baird. (See Investigation Report, Claimant's Exhibit 5 - DNR Staff Photographs, Claimant's Exhibit 6 - Case Summary, Claimant's Exhibit 4.) She conducted a site inspection on April 11, 1996. (See Claimant's Exhibit 7.) From her review and inspection, she observed that the piles of fill contained some soil, sand and rock, but were largely comprised of pieces of concrete, rebar and asphalt. Some pieces of concrete and asphalt were over one foot in length and depth. DNR's prior inspections and aerial photographs confirmed that the stockpiling activity had occurred since at least 1982, and some of the piles had been in place long enough for a vegetative cover to be established.
17. Ms. Perry testified that DNR considered routine maintenance' to include the resurfacing or grading of a road using the same or similar materials as had been in place prior to commencement of maintenance activities, and with no significant increase in its prior elevation. For example, a dirt road might be maintained using dirt, sand, or gravel, placed no more than six inches above its prior elevation. Asphalt or concrete roads would likely be maintained by patching using the same material. Further, when repair materials are stockpiled, they are usually stored for a matter of a few weeks and have convenient access to the repair site.
18. Ms. Perry observed that the roads in question were constructed of dirt which had been exposed to repeated vehicle traffic. In other words the road was created by vehicles wearing ruts and a path. Any gravel appearing in the center of the road was consistent with particles dropped by passing dump trucks carrying gravel, and was also consistent with the property's prior use as a sand and gravel extraction facility. She observed no evidence that the roads were comprised of broken-up pieces of the stockpiled asphalt and concrete materials. The height of the stockpiles, their placement (those placed over the banks of Roberts Lake did not present easy access), and their length of time of placement contradicted the suggestion that they would be used as maintenance materials.
19. Based upon her engineering education and upon her experience viewing road sites and in processing permit applications for roads
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and road maintenance, Ms. Perry concluded that neither asphalt and concrete chunks nor rebar were appropriate or conventional road maintenance material, particularly for roads such as those present on Respondents' property. She testified that rebar was an unsuitable and hazardous road surface material in any case.
20. The Whites and their witnesses testified as to their long-term practice of breaking up the stockpiled materials to place on the surface of the roads. Mr. White testified that he had experience in constructing dirt and gravel roads and driveways. He based his expertise on common sense and upon using this method of road repair since his youth. He denied having or needing any particular training or education to have expertise on the subject of the propriety of this method of road repair. Mr. White's mother confirmed that these methods of road maintenance had been utilized since the land was owned by her deceased husband, Mr. Roberts.
21. The Whites agreed that concrete and asphalt materials had been stockpiled at the sites in question since they acquired title to the property in the early 1980's. Mrs. White described a practice of construction trucks entering the property to place materials at the Respondents' . On occasion, Respondents were compensated for allowing the materials to be placed on their property. Mr. White stated that high summer temperatures thwarted his intent to use the materials during the summer of 1995, but that convenient to his schedule, he might use some of the materials during the summer of 1996.
22. In comparing the testimony of the Respondents' and their witnesses and Ms. Perry, the testimony of Ms. Perry is more persuasive. While the ALJ places great value on Mr. White's experience, Ms. Perry has superior expertise and experience with floodway civil engineering and its requirements codified in the Flood Control Act and its relevant regulations.
23. In addition, the testimony of Ms. Perry reflects the interpretation given by DNR, with respect to IC 14-28-1-20(2) or IC 14-28-1-22 as to when unpermitted floodway projects constitute a violation of the Flood Control Act. The interpretation by DNR in administering the Flood Control Act is entitled to great weight. See Natural Resources Comm'n v. Porter County, 576 N.E.2d 588-589 (Ind. 1991). See also Indiana Department of Natural Resources and Natural Resources Comm'n v. United Refuse Co., Inc., 598 N.E.2d 603 (Ind.Ct.App. 1992); Brown v. DNR, Peabody Coal Co., 6 CADDNAR 136 (1992).
24. An application of the Flood Control Act to the evidence presented at hearing and visual impressions noted by the ALJ in a site visit on May 13, l996, leads to the conclusion that permits are needed if the piles are to be left in the floodway of Brandywine Creek.
25. This conclusion is based on the fact that the piles are made of many types of material, some of which do not appear to be compatible with the makeup of the roads which are primarily dirt with a little gravel in places.
26. However, even if the concrete and rebar could be converted to use in road maintenance, it would be illogical to conclude that the Flood Control Act would allow road maintenance materials to be piled in a floodway for a long period of time for possible maintenance use at a later, unspecified date.
27. A more reasonable conclusion is that grandfathered road maintenance would be limited to materials currently on the road and storage of such materials in a floodway would be limited to a
reasonable amount of time to perform said road maintenance.
28. Based on the above findings the court holds that the fill in question is in the floodway of Brandywine Creek and is subject to the permit requirements of IC 14-28-1, et seq. Since no permits have been issued for the fill in question, DNR properly issued Complaints for the Issuance of Notices of Violation. Respondents are therefore subject to the penalties provided for in IC 14-28-1, et seq., and IC 14-10-2-6.
29. In determining penalties under IC 14-28-1, et seq., the ALJ must consider matters which would both tend to accumulate and to mitigate the amount to be assessed.
30. Ms. Perry testified as to factors which she thought worthy of consideration in accumulating an amount of penalty. She stated that over several years, the parties had engaged in numerous discussions about multiple potential violations on the site. (See Claimant's Exhibits 4 and 5.)
31. Ms. Perry also noted that she and other members of her staff had offered to assist the Respondents by discussing whether any activity would require a permit, and by offering to assist in completing a permit application.
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These offers had not been accepted. She stated that multiple, repeat violations had occurred, even after Respondents became aware of DNR's regulatory program.
32. Ms. Perry further testified that her staff had stated concerns about their safety when visiting the site, and that after one of DNR field engineer Matt Baird's visits, Mr. White had called her to inform her he would shoot at future visitors to the site in government vehicles. Therefore, DNR staff would visit the site only when accompanied by DNR Conservation Officers.
33. As mitigating factors, Ms. Perry noted that in her opinion, the fill probably presented a floodway obstruction within a permittable range. While she could not speak for other DNR divisions, the fact that a prior permit had been issued for the site inferred a likelihood that the subject fill would not be denied a permit.
34. Respondents stated an inability to pay a penalty, and explained that they may have been rude' to DNR representatives because of their anger with a local officials, other agencies, and with the financial burden created by their having to pay a $500 penalty and a $50 application fee for the prior violation subject to FW-15,584 and the Agreed Order. (See Claimant's Exhibits 8, 9.)
35. A further mitigating factor is that the Whites believed that the piles should be grandfathered under the road maintenance exception. They were mistaken but their belief appeared to be sincere.
36. The most significant factor to be considered is the threat conveyed to Ms. Perry by Mr. White. Mr. White did not deny making the threat mentioned in finding 32. While his frustration is understandable a threat conveyed to a state employee in the performance of his/her duties cannot be condoned. Based on the threat separate penalties will be assessed to Mr. and Mrs. White.
37. In regard to charges under Ind. Code 14-10-2-6, the only determining factor is whether the person responsible performs as ordered by the NRC. In other words, penalties are assessed for past bad conduct, while charges are only assessed if a person does not act properly in the future.