Notice of Violation #N81207-S-00118 parts one, two, three, four, six and seven are affirmed and part five is vacated.
FINDINGS OF FACT
1. On December 27, 1988, the Claimant, Jaeco Inc., ("Jaeco") requested review of all seven parts of Notice of Violation (NOV) N81207-S-00110.
2. Jaeco holds permit S-00118 to conduct surface mining operations in Clay County at its Eel River Mine.
3. IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
4. The Department of Natural Resources (The "Department) is an agency as defined in IC 4-21.5-1-3. The Director is the ultimate authority for the Department with respect to this proceeding.
5. Charles Armbrust, an authorized representative of the Director, issued the NOV involved in this action.
6. The Office of Surface Mining Reclamation and Enforcement (OSMRE) issued a "ten-day Notice" to the State of Indiana on November 30, 1988.
7. The NOV in question here was written seven days later and the first six parts of the NOV correspond almost exactly with the provisions of the "ten-day notice."
8. Jaeco raises the affirmative defense of equitable estoppel arguing that parts of this NOV should not have been written because the inspectors, either explicitly or implicitly, have given Jaeco permission to conduct itself outside the regulations.
9. The Department pleads that there were no deals, but if there were, they are invalid because the inspectors have no authority to make deals in situations where violations could have occurred.
10. Testimony by Greg Gorden and others tends to show that some deals were made. While inspectors may not be given actual authority to make deals, the power to write violations bestowed upon inspectors by their superiors could certainly present apparent authority to make deals to a coal miner.
11. Since such apparent authority existed, the Department cannot claim the deals invalid because no actual authority exists. Such authority would be apparent to Jaeco because all the inspector has to do is refrain from writing an NOV.
12. An inspector would be estopped from writing a violation if, using his authority (actual or apparent), he allowed the conduct to occur which would later be used as the basis for the violation.
13. Jaeco's affirmative defense will be applied where applicable during the discussion of each part of the NOV.
14. Part one was written for failure to clearly mark the bonded area.
15. The inspector stated that he noticed this problem when he arrived and gave Jaeco until his departure, which would be about 3:00 p.m. to remedy the problem.
16. The Claimant's witnesses answer with the argument that the inspector didn't tell them when he was leaving so they were caught by surprise at 3:00 p.m. when the inspector left.
17. Whether or not the inspector gave a specific time is immaterial. 310 IAC 12-5-6 (b) requires that the perimeter be clearly marked prior to the beginning of mining. A violation was present the moment the inspector noted the lack of clear markings. Any extra time given was gratis. It is ludicrous to defend a violation by arguing that gratis time given was not clearly defined.
18. Part two was written for failure to segregate stockpiled topsoil from stockpiled subsoil. Three alleged examples of this violation were listed by the inspector.
19. Part three was written for failure to protect stockpiled re-soiling material from contamination.
20. These parts can be taken together here because Jaeco presents the same arguments as to both, as follows:
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a. The topsoil was less than six inches deep in part of the area. 310 IAC 125-12.1 (a) (2) allows for the top six inches to be taken. This was the cause of the mixing cited in these two parts of the Nov.
b. Even if the mixing cannot be justified under a. above, it was so slight as to be unavoidable and should not be the basis for a violation.
21. The Department counters by pointing out that:
a. This less than six inch depth was not presented in the permit application and; therefore, cannot be relied upon now and ,
b. Presented several witnesses who testified that the mixing was enough to constitute a violation.
22. An examination of Jaeco's permit Part IV B (1) which was entered into evidence shows that topsoil was purported to be at least six inches deep and that pans were to be used to remove the topsoil.
23. A coal miner must be bound by the information furnished in his permit application. If it were to be otherwise, the Department would be hard-pressed to carry out its regulatory responsibilities.
24. When Jaeco discovered that the topsoil was less than six inches thick it should have immediately notified the Department so as to obtain a change to the permit and to allow the Department to substantiate the claim.
25. Instead Jaeco dug the area, mixed topsoil with subsoil and , after the fact, attempts to defend by invoking 310 IAC 12-5-12.1(a)(2) which allows the mixing of the top six inches.
26. Due to Jaeco's failure to notify the Department, it must now be estopped from relying on 310 IAC 12-5-12.1(a)(2).
27. In regard to Jaeco's argument on both parts that the mixing was only slight, the weight of all testimony is that the mixing was enough to substantiate both violations.
28. Jaeco's argument that it is tough to scrape only topsoil with a bulldozer is correct, but Jaeco's permit shows that pans were to be used to take the topsoil.
29. The Department correctly argues that pans will perform the topsoil/subsoil separation much more accurately than a bulldozer.
30. Part four was written for failure to construct siltration structures before any disturbance of the undisturbed area to be drained into the structure.
31. The Claimant defends with the affirmative defense of equitable estoppel. He claims that the inspectors (Armbrust and Yarling) gave approval to mine without constructing the siltration structures.
32. The inspectors deny this. Mr. Yarling testified that he had agreed to check and see if the active pit could hold the drainage, but after checking, he informed Jaeco officials that the sediment pond was still necessary.
33. The Claimant does not deny that mining took place before siltration structures were constructed.
34. The burden is on the Claimant to prove his affirmative defense. This was not done in regard to this part of the NOV.
35. Part five was written for failure to backfill and grade to achieve the approximate original contour and eliminate highwalls in a contemporaneous manner.
36. Jaeco maintains that the inspector (Chuck Armbrust) had told it that as long as some progress in reclamation was maintained, Jaeco would not be cited.
37. The Department maintains there was no deal, but if there was, it was unauthorized.
38. The important testimony, all under oath, in regard to part five was as follows:
a. Steve Turner, Jaeco supervisor-- forthright and to the point that Mr. Armbrust had agreed to give Jaeco some slack in regard to reclamation.
b. Greg Gordon, former member of the Natural Resources Commission-- He testified that at a December 20, 1988 meeting in Deputy Director Tom Brun's office this part of the NOV was discussed. He states that the presence of an agreement between Jaeco and Armbrust as to reclamation was admitted too.
c. Chuck Armbrust, Inspector-- His testimony was unconvincing. He hedged quite a bit and could not remember details including how he had testified at the hearing regarding a Cessation Order that was generated by this part of the NOV.
39. The Department admits that in January 1988 Jaeco was told to "catch-up" with its reclamation in 180 days yet no NOV was written until the OSMRE "ten day notice" was received. This was eleven months after Jaeco was given 180 days.
40. Bruns allegedly stated at the December 20, 1988 meeting that all deals are off when a ten-day notice is issued by OSMRE. Mr. Armbrust made the same statement on the stand at this hearing.
41. The evidence indicates that there was a deal between Mr. Armbrust and Jaeco which allowed Jaeco to fall behind on its reclamation.
42. Mr. Armbrust had at least apparent authority to make this deal because he had the power to issue or fail to issue a violation in regard to the progress of reclamation.
43. Since this deal was proved to have existed and Mr. Armbrust is deemed to have had the authority, in Jaeco's eyes, to make such a deal, the Department is estopped from writing part
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five of this NOV.
44. In order to have terminated the deal, Jaeco would have to have been given a reasonable period of time to catch-up on its backfilling and grading.
45. Part six was written for failure to protect topsoil from wind and water erosion.
46. Jaeco does not dispute that erosion took place but offers that it did everything possible to prevent said erosion.
47. The Department counters that Jaeco could have done more such as straw dams, rip rap, etc. and that the duty to control erosion is absolute.
48. A reading of 310 IAC 12-512.1(e)(1)(iii), 310 IAC 12-5-56.1(b) and 310 IAC 12-5-148(e) indicates the Department's position is correct.
49. The provisions of the IAC specify that the topsoil will be protected. As the Department points out, the standard cannot be "try to protect the topsoil.'' If that were the case, all violations would be defended by "we tried."
50. Undoubtedly the inspector would have been lenient if Jaeco had done everything known to man but was so overwhelmed by the weather that erosion still occurred.
51. However, since the evidence shows that Jaeco could have done more, the violation was fairly and properly written.
52. Part Seven was written for failure to limit mining activities to the permitted and bonded area.
53. There are two alleged instances of mining off the permitted and bonded area in question here: one at an area where heavy equipment was taken to repair a berm and one at an area where coal was taken.
54. Jaeco again raises the affirmative defense of equitable estoppel saying that it relied upon the directions of Chuck Armbrust, the inspector.
55. In regard to the taking of heavy equipment off the permit area to repair a berm, Jaeco has proved by testimony of several witnesses that it was following the instructions of the inspector.
56. While these instructions might not have been explicitly given by Mr. Armbrust (although Mr. Padjen testified under oath that he heard explicit instructions), it was at least implicit that Jaeco was to do what was needed to be done to repair the berm in question.
57. Because of the above circumstances, this incident should not have been termed a violation.
58. However Jaeco has not proved that the taking of the coal off the permitted and bonded area was justified.
59. They allude to some stakes allegedly placed by Mike Yarling which were used to mark the boundaries of the sediment pond.
60. The evidence is contradictory as to the stakes, but even if Mr. Yarling attempted to assist Jaeco by marking where he thinks a pond should go, that does not relieve Jaeco of the responsibility of knowing where the permitted and bonded area ends.
61. Since the evidence shows that the Claimant took coal from an area off the permitted and bonded area, part seven of seven still stands.