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The issue of presentation of credentials were withdrawn from consideration.[FOOTNOTE i]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