The civil penalty assessment for Notice of Violation N40719-S-45 is hereby reduced from One Thousand Dollars to Four Hundred Dollars.
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 responsible for the regulation of surface coal mining operations in Indiana.
3. IC 4-21.5, IC 14-34 ("SMCRA") and 310 IAC 12 apply to these proceedings.
4. At all times relevant to these proceeding, Green Construction Company ("Green") held surface coal mine permit S-45 issued by the DNR which allowed the surface mining of coal at the Craney mine in Daviess County, Indiana.[FOOTNOTE 1]
5. On July 19, 1994, a duly authorized representative of the DNR issued notice of violation N40719-S-45 ("NOV") to Green for failing to mine in accordance with the approved mining plan.
6. Green petitioned for administrative review and on April 26, 1995, administrative law judge Rider affirmed the NOV. See Green v DNR, cause number 94-247R.
7. Green took judicial review in the Daviess Superior Court, 14D01-9505-MI-028, and on April 25, 1996, the Daviess Superior Court affirmed the decision of the administrative law judge without opinion.
8. No appeal has been taken of the court decision, thus the NOV is affirmed and the findings of administrative law judge Rider are final and binding on any future litigation.
9. Shortly after the issuance of the NOV, the DNR assessed a penalty of $1000 ("CPA").
10. Green requested an informal conference with the DNR on the amount of the fine and the conference was postponed until the court decision was obtained.
11. The conference was held on August 9, 1995, and on September 11, 1995, the DNR upheld the initial CPA and imposed a $1000 fine.
12. Green filed a timely petition for administrative review of the CPA on September 26, 1995.
13. The parties agreed at the hearing that all testimony and exhibits placed in evidence at the hearing on the NOV should be included in the CPA hearing and the administrative law judge now takes official notice of the record in cause number 94-247R.
14. Since the subject matter of the petition for review is in the nature of an enforcement action and does not involve the grant, denial, or revocation of a permit, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
15. Penalties for violations of SMCRA are assessed according to a point system.
16. 310 IAC 12-6-12 and 12.5 set forth the applicable rules for penalty assessments.
17. The DNR assessed eight points for prior history, ten points for the probability of damage occurring, and twelve points for degree of fault for a total of 30 points. This translates into a CPA of $1000. See 310 IAC 12-6-12.5.
18. Green only challenges the points assessed for probability of damage occurring and degree of fault. Accordingly, the eight points for prior history will remain unchanged.
19. Pursuant to the decision written in United Refuge v. DNR (Ind. 1993), 615 N.E.2d 100, a hearing conducted pursuant to IC 4-21.5 is a de novo hearing in which the administrative law judge assumes the role of a trial court sitting without a jury.
20. The NOV was written for failing to mine according to the approved mining plan because the approved plan was to mine to U.S. 50 and then turn the pit and mine back. The mine made a cut and began mining away from U.S. 50 before the mining had reached its northern boundary near U.S. 50.
21. An assessment of ten points for probability of occurrence means that the probability of an occurrence of a prohibited event is likely. See 310 IAC 12-6-12.
22. The concern of the DNR as to the prohibited event dealt with possible lack of spoil in the right place for backfilling and regrading.
23. The mine did
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not mine any area that it was not permitted to mine; it just mined out of sequence.
24. Since no area was mined that was not expected to be mined, it is difficult for the trier of fact to see why it is likely that the actions of the mine by mining out of sequence would create a new problem or enhance an already existing spoil problem.
25. The volumes of coal removed and spoil generated would be the same regardless of mining sequence.
26. It could, however, create a spoil location problem that would leave a shortage of spoil at the north end of the pit when mining moved south.
27. While this scenario would cause some added expense to the mine to transport spoil to the U.S. 50 mining area, there is no net loss of spoil so that it appears that the probability of failing to regrade or restore the area according to plan is "unlikely" rather than "likely" and thus the trier of fact assesses six points.
28. The twelve points assigned for degree of fault represents the highest level of negligence that can be assessed.
29. The evidence in both this cause and the NOV shows that the mine engineer was unaware that commencing a pit progression to the south at the time if occurred was a violation.
30. The DNR did not disagree with the proposition that the progression used by the mine was a better mining operation; the DNR's only concern was the failure to seek advance approval of the sequence.
31. In fact, finding 26 of Judge Rider's decision states "It is unfortunate that the NOV here had to be issued to Green since Solar conducted this operation properly and by industry standards."
32. The trier of fact now finds that the reasonable mining engineer was not careless almost to the point of recklessness when he authorized a two pronged pit progression in this case without notifying the DNR.
33. Six points, the middle of the "negligence" range, is more appropriate.
34. The administrative law judge now assigns a total of 20 points ( 8 + 6+ 6) for this NOV.
35. Twenty points translates into a civil penalty assessment of $400. See 310 IAC 12-6-12.5.
FOOTNOTE
1. The record may make reference to Solar Sources, Inc. at times. Solar Sources operates the Craney mine pursuant to a contract with Green.