CADDNAR


[CITE: Fossil Fuels Mining, Inc. v. DNR, 1 CADDNAR 79 (1984)]

 

[VOLUME 1, PAGE 79]

 

Cause #: 83-101R

Caption: Fossil Fuels Mining, Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Earnest and Gaither; Spicker, DAG
Date: September 28, 1984

ORDER

 

It is ordered this date as follows: Notice of Violation #N30906-S-00052, violation 1 of 2 is vacated.

FINDINGS OF FACT

 

1. The Director of the Department of Natural Resources is included in the definition of "agency" as used in IC 4-22-1-2 and is duly empowered to conduct administrative hearings pursuant to IC 4-22-1.

 

2. Fossil Fuels Mining, Inc. is a corporation with office address at 435 East Main Street, Suite A2, Greenwood, Indiana and with agent resident in the state being R. T. Rooksby, as designated by Fossil Fuels Mining, Inc. to the Indiana Secretary of State.

 

3. The Director has jurisdiction over the subject matter and parties to the action.

 

4. On September 6, 1983 an authorized representative of the Director issued to Fossil Fuels Mining, Inc. Notice of Violation #N30906-S-00052 pursuant to IC 13-4.1-11-4 and 310 IAC 12-6-6.

 

5. On September 15, 1983, Fossil Fuels Mining, Inc. requested administrative review of this Notice of Violation, as it relates to handling of topsoil within a fence/tree line.

 

6. On January 11, 1984 an Administrative hearing was conducted pursuant to IC 4-22-1.

 

7. Notice of Violation #N30609-S00052, Violation 1 of 2 alleges that Petitioner failed to remove topsoil in a separate layer, and failed to selectively place the topsoil on a stable area within the permit area, not disturbed, and protected from wind and water erosion in violation of 310 IAC 12-5-12 (b) and 310 IAC 12-5-13(b).

 

8. The issue of presentation of credentials were withdrawn from consideration.[FOOTNOTE i]

 

9. Topsoil was stockpiled in an unmined area approximately fifty feet directly west of an open pit.

 

10. The topsoil stockpile was separated by a tree row and drainage area such that two stockpiles existed.

 

11. In an unmined area, to the west of and perpendicular to the topsoil stockpiles was a row of trees.

 

12. Petitioner, in compliance with the terms of its lease with the landowner, removed this row of trees and pushed the trees into the pit.

 

13. Before pushing the trees into the pit, the Petitioner widened the gap between the two topsoil stockpiles to prevent materials from the stockpiles being pushed into the pit.

 

14. Topsoil from the unmined area west of the stockpile was pushed into the pit in connection with the activity of pushing the trees into the pit.

 

15. Topsoil from the stockpiles was not pushed into the pit.

 

16. Prior to September 6, 1984, the Petitioner had determined that it would not mine the area to the west of the pit.

 

17. On September 6, 1984, the records of the Division of Reclamation indicated that the Petitioner intended to continue mining west of the pit.

 

18. Prior to and after issuance of the Notice of Violation, no coal was mined by the Petitioner from the area west of the pit.

 

19. The relevant portion of 310 IAC 12-5-12(b) provides that all topsoil shall be removed in a separate layer from the areas to be disturbed.

 

20. The relevant portion of 310 IAC 12-5-13(b) provides that stockpiled materials shall be selectively placed on a stable area within the permit area, not disturbed (emphasis added).

 

21. The area from which the row of trees was not an area to be disturbed.[FOOTNOTE ii]

 

22. The stockpiles were not disturbed by the activity of pushing the trees into the pit.[FOOTNOTE iii]

FOOTNOTES


i. See transcript p. 200-203.

ii. The respondent argues what should control whether or not the area is an

 

[VOLUME 1, PAGE 80]

 

"area to be disturbed: is the operator's mine plan as contained in the records of the respondent on the date of issuance of the notice of violation, even if testimony is submitted at hearing showing the mine plan has been changed and that the area is not to be mined. The Petitioner argues what is an "area to be disturbed" is a question of fact, not dependent upon what the respondent believed before it was provided with all of the facts. Respondent argues to not define the area as the area in the petitioner's mine plan will require the respondent to make decisions based on an operator's state of mind; will create loopholes for fabrication of facts after issuance of a notice of violation simply to avoid the notice of violation; and, will give the operator an unfair advantage over the regulatory agency. Although these problems do concern me, I do not find them so compelling as to ignore the true state of the facts presented at hearing. The Respondent will not be forced to make decisions based on an operator's state of mind. The inspector did not in this case and would not in future cases be wrong to issue a notice of violation based on the information available to him. Once a notice of violation is issued, the burden shifts to the Petitioner to come forward with different information, and only if the petitioner does, is a basis for vacating the notice of violation created. I do not believe the Director is limited to vacating only where the notice was improperly issued. Facts unavailable to the inspector, but which create a different situation than that which the inspector believed also constitute a basis for the Director to vacate. Respondent's concern for creating loopholes which allow fabrication of facts is a limited situation. Few companies would be willing to plan their mining operations around issuance of and vacations of notices of violations, and few companies would be able to act quickly enough, after receiving a Notice of Violation, to change their mine plans to not mine an area. Finally this situation should not give the Petitioner an unfair advantage over the Respondent. Respondent argues the Petitioner could delay timely backfilling and grading purposely refraining from informing the Respondent it is not going to continue to mine. There are provisions in the law for temporary cessation of operations. These provisions have built in environmental protection standards, such that any delay by the operator will not result in environmental harm. I believe what is an "area to be disturbed" is properly determined on a case by case basis. Because the Petitioner's mine plans have now been revised to exclude this area, I find the area is not "area to be disturbed" as used in 310 IAC 12-5-12 (b).

 

iii. I cannot conclude from the testimony that the topsoil in the pit was topsoil from the stockpile. Although Respondent made a prima facie case that the topsoil was from the stockpiles, the Petitioner was able to successfully rebut this prima facie case with its witness' testimony. Although Respondent is correct that the topsoil on top of the trees could not be from the soil attached to the roots, it appeared from the testimony that the topsoil was topsoil resulting from cleaning the area west of the stockpiles, which the landowner required in order to remove all twigs and brush left after pushing the trees into the pit. iv/ Neither the law, IC 13-4.1-11-7 (b), nor the rule, 310 IC 12-6-6, specify under what circumstances the Director is to vacate a Notice of Violation. The law simply provides that the Director may vacate any notice issued under IC 13-4.1, and the rule is silent. The Respondent argues that under these circumstances the Notice of Violation should be terminated, not vacated. I do not agree. 310 IAC 12-6-6 (e) specifies when a Notice is to be terminated. It is to be terminated when the violation has been abated. In this case, because the Petitioner had complied with the required abatement action, I would assume at the time of the hearing the Notice had already been terminated. I find that the purpose of administrative review of an authorized representative's decision is twofold:

 

1) to allow a legal challenge to the proper interpretation of the rule and

2) to allow a factual challenge to whether or not the facts constitute a violation. Included in a factual challenge is whether or not the authorized representative knew all of the facts necessary to make the proper determination. Although I believe the Inspector properly wrote this Notice of Violation, given the facts available to him, and find no valid reason for the Petitioner not

 

[VOLUME 1, PAGE 81]

 

having told the inspector when he wrote the violation that the mine plan had been changed, one this fact was present at the hearing, it serves as a proper basis for the Director to find that the area from which the topsoil was wasted was not an “area to be disturbed”.