[CITE: Warrick Co. C. Corp. v. Dept., 5 CADDNAR 118 (1990)]
[VOLUME 5, PAGE 118]
Cause #: 89-174R
Caption: Warrick Co. C. Corp.
v. Dept.
Administrative Law Judge: Lucas
Attorneys: Tyler, Law
Date: September 7, 1990
ORDER
[NOTE: JUDICIAL REVIEW WAS
TAKEN TO WARRICK THEN VENUED TO DUBOIS CIRCUIT COURT IN CAUSE NO. 19C0l 9101 CP
11(V) IN WARRICK COUNTY COAL CORP. V.
INDIANA NATURAL RESOURCES COMMISSION. THE ADMINISTRATIVE DECISION WAS
AFFIRMED ON JUNE 14, 1991. THE DUBOIS CIRCUIT COURT DECISION IS SET FORTH BELOW
FOLLOWING ADMINISTRATIVE DECISION.]
Cessation
Order C90719-S-00223 is affirmed.
FINDINGS OF FACT
1.
The department of natural resources (the "Department") is an
"agency" as the term is defined in IC 4-21.5-1-3. The administrative
adjudication act (IC 4-21.5) is applicable to an agency action of the
Department.
2.
The natural resources commission (the "Commission") is the
"ultimate authority" for this proceeding as the term is defined in IC
4-21.5-115. See IC 14-3-3-21(a).
3.
Warrick County Coal Corp. ("Warrick") holds a permit issued under IC
13-4.1 and 310 IAC 12 to conduct surface coal mining and reclamation operations
at its Yankeetown #2 mine in Warrick County, Indiana. The permit is designated
Permit S-00223.
4.
On June 21, 1989, Christine Gerace, an authorized
representative of the Department's director (the "Director"), issued
notice of violation N90621-S-00223 (the "NOV'') against Warrick.
5.
The NOV asserted that Warrick failed to obtain approval from the Director
before publishing a revised blasting schedule, and performing blasting
activities according to the revised schedule, at Yankeetown #2 mine. More
specifically, Warrick conducted a blast on May 25, 1989 at 5:30 p.m. which was
outside the approved schedule limiting blasts from 8:10 a.m. until 5:00 p.m.
6.
The NOV set forth the following requirements for abatement of the violation by
Warrick:
(1) limit blasting activity to the previously approved blasting
schedule;
(2) submit and obtain approval for a revised blasting schedule;
(3) upon approval of the revised schedule, republish and distribute
it to appropriate agencies and to residents located within one-half mile of the
permit; and
(4) upon approval, republication, and distribution, begin
implementation of the new blasting schedule.
7.
On July 19, 1989, Christine Gerace conducted a
routine investigation of the blasting records maintained by Warrick for the
Yankeetown #2 mine. These records showed three blasts occurred outside the
approved blasting schedule. Sufficient justification was found by Gerace for two of the late blasts, and these were not cited
as violations. The third blast, which occurred on July 14, 1989 at 5:50 p.m.,
was found by Gerace to be without justification. When
she conferred with a representative of Warrick at the Yankeetown #2 mine
concerning the third blast, she was informed that the representative had been
"told that the new schedule was approved and he could go ahead and blast
after 5:00 p.m." Compliance Inspection Report, July 17, 1989, page 2.
8.
Christine Gerace issued cessation order
C90719-S-00223 (the "CO") against Warrick as a result of the blast
which occurred on July 14, 1989 at 5:50 p.m. at the Yankeetown #2 mine. The CO
is the subject of administrative review in this proceeding.
9.
The CO asserted that the blast which occurred on July 14, 1989 at 5:50 p.m. was
outside the approved blasting schedule and, accordingly, constituted a failure
to abate the NOV. The CO was issued on July 19, 1990; and on that date, the
revised blasting schedule was not yet in effect.
10.
The revised blasting schedule was approved by the Director, republished on July
21, 1989, and distributed to residents within one-half mile of Yankeetown #2
mine. The last distribution letter was received by a resident on July 28.
11.
On August 16, 1989, Christine Gerace again reviewed Warrick's documentation for the Yankeetown #2 mine. She
determined that the abatement required for the
[VOLUME 5, PAGE 119]
NOV,
other than the blast on July 14, 1989, had been completed. The NOV was then
terminated; and the CO was also terminated by Gerace.
12.
The record in this proceeding discloses that a genuine issue as to a material
fact does not exist and that summary judgment may be rendered under IC
4-21.5-3-23 on all issues.
13.
The issues presented are legal issues. In particular, this proceeding is
directed toward interpretation of the nature and function of cessation orders
under IC 4-21.5.
14.
The nature and function of cessation orders was previously construed by the
Department in Chieftain Coal Co., Inc. v.
DNR, DOR, 4 Caddnar 48 (October 16, 1987). With paragraph designations omitted,
that decision provided at page 49:
"IC
13-4.1-11-5(a) is the statutory subsection which most directly addresses the
nature and function of a cessation order. That subsection provides: '(a) If the...
inspector determines that:
(1)
any condition or practice exists or a violation of this article or the [C]ommission's rules has occurred which creates an immediate
danger to the health or safety of the public or is reasonably expected to cause
significant, imminent environmental harm to land, air, or water resources; or
(2) the permittee has not abated the
violation within the time set pursuant to section 4 of this chapter, he shall
order the cessation of surface coal mining and reclamation operations or the
portion thereof relevant to the condition, practice, or violation.
In
the order of cessation, the [D]irector shall
determine the steps necessary to abate the violation in the most expeditious manner.
IC 13-4.1-11-5(a) requires the issuance of a cessation order in either of two
circumstances. Under subpart (a)(1), a cessation order
is issued where there is some immediate threat to the environment or to public
health and safety. Under subpart (a)(2), a cessation
order is issued where a notice of violation was issued, and the notice of
violation was not abated within the period set forth in the notice of violation
....
The
Department provides by rule in 310 IAC 12-6-5(b)(1): l(b)(1) When, on the basis
of an inspection, an authorized representative of the [D]irector
for good cause shown and upon written findings finds that a notice of violation
has been issued under 310 IAC 12-6-6(a) and the person to whom it was issued
fails to abate the violation within the abatement period fixed or subsequently
extended by the authorized representative, he or she shall immediately order a
cessation of that portion of the surface mining operations relevant to the
violation.' This rule subpart is derived from IC 13-4.1-11-5 (and particularly
subpart (a)(2) of that statutory section). The federal
counterpart to IC 13-4.1-11-5(a)(2) and 310 IAC 12-65(b)(1) is found in the
Surface Mining Control and Reclamation Act of 1977 (Public Law 95-87) at 30
U.S.C. 1271 (a)(3) ....
There
is no written legislative history for Indiana SMCRA [IC 13-4.1]. The
legislative history for the federal version of SMCRA addresses cessation orders
briefly. The portion of the legislative history addressing cessation orders
(which are issued following a notice of violation) states in pertinent part as
follows:
'Where...a
Federal inspector determines that a permittee is
violating the act or his permit but that the violation is not causing imminent
environmental harm, then the inspector must issue a notice [of violation] to
the permittee setting a time within which to correct
the violation .... If the violation has not been corrected within the
established time, the inspector must immediately order a cessation of the
mining operation relevant to the violation... [This] enforcement mechanism will
be utilized by the inspector in the great majority of compliance problems. It
not only enables the inspector to gain immediate control of the problem, but
also provides him with essential flexibility to appropriately deal with minor
as well as major violations.' [See 1977 U.S. Code Cong. and Admin. News 593,
662, quoting from H.R. 95-218, p. 130 .... ]
The
language of the state statute and rule, read in light of the federal statute
and U.S. Congressional history, makes clear that an inspector must issue a
notice of violation or a cessation order when a violation is observed at a site
which is subject to Indiana SMCRA (IC 134.1). If there is an immediate threat
to the environment or to the public health and safety, a cessation order must
be issued. If a notice of violation is issued, and if
the violation is not abated... in a timely fashion, an inspector must issue a
cessation order with respect to that notice of violation. This result follows
the unambiguous language of IC 13-4.1-11-5(a)(2) and
310 IAC 12-6-5(b)(1). The same result is supported by 30 U.S.C. 1271 (a)(3) and its legislative history. "Cessation
order" is the particular phraseology used in
[VOLUME 5, PAGE 120]
Indiana
SMCRA, but is very similar or identical to what is generically called a
"cease and desist order". A "cease and desist order is an order
of an administrative agency prohibiting an individual from continuing a course
of conduct which violates a statute or a rule." People v. Fremont Energy Corp., (Wyo. 1982), 651 P.2d 802, 805.1 A
cessation order may be similarly defined."
15.
Issuance of the CO against Warrick was a mandate by the Department to cease and
desist violating the strictures set forth in the NOV. Included within the NOV
was a requirement that Warrick limit blasting activity to the previously
approved schedule. That this requirement already existed at law made it no less
valid as an abatement term of the NOV; and even if it had been an inappropriate
abatement term, a permittee cannot ordinarily obtain
a review of the terms and conditions of a notice of violation during the review
of a cessation order which results from a subsequent violation of the notice of
violation. See Chieftain Coal Co., Inc.,
4 Caddnar 48, 50: "Generally, if a notice of
violation is not challenged, the notice of violation is presumed to have been
properly issued during an action which challenges the resulting cessation
order."
16.
The CO is in keeping with the state and federal schemes for the issuance of
cessation orders, generally, where a permittee has
failed to comply with each of the abatement terms of a notice of violation. If
a permittee violates an abatement term contained in a
notice of violation, a cessation order follows.
17.
The issuance of Cessation order C90719-S-00223 against Warrick County Coal
Corp. was proper and should be affirmed.
_______________________________________________________________________
[NOTE: CADDNAR citation does not apply to the Dubois Circuit Court
entry.]
DECISION OF DUBOIS CIRCUIT
COURT:
FINDINGS OF FACT
1.
Petitioner Warrick County Coal Corp. is an Indiana company engaged in the
business of surface mining in the State of Indiana.
2.
Respondent, Indiana Department of Natural Resources, Division of Reclamation
("Division of Reclamation") is an agency of the State of Indiana and
is responsible for the administration and enforcement of the Indiana Surface
Coal Mining and Reclamation Act (IC 13-4.1 et seq.), including the issuance of
surface mining permits, Notices of Violation, and Cessation Orders thereunder.
3.
Respondent Indiana Natural Resources Commission ("NRC") is an agency
of the State of Indiana and is responsible for hearing administrative appeals and
the issuance of final orders in cases involving surface mining permits, Notices
of Violation and Cessation Orders.
4.
Petitioner holds a permit from the Division of Reclamation to conduct surface
coal mining and reclamation at its Yankeetown #2 mine in Warrick County,
Indiana. On June 21, 1989 it was issued a Notice of Violation under 310 IAC
12-6-6 for conducting blasting operations outside of the schedule which had
been approved under 310 IAC 12-5-35. This Notice set forth what steps
Petitioner needed to take to abate the violation, including republishing a new
schedule, re-notification of affected persons under 310 IAC 12-5-35(c), and
refraining from all blasting outside the new schedule until those steps were
completed. On July 19, 1989 a Division inspector discovered that some 5 days
earlier Petitioner had again blasted outside its approved schedule. At that
time Petitioner had not completed the republication and re-notification steps
necessary to abate the Notice of Violation and Petitioner was therefore issued
a one-day Cessation Order (Cessation Order #C90719-S00223).
5.
Petitioner sought administrative review of the Cessation Order. Said review was
determined by the Administrative Law Judge on summary judgment, there being no
issue of fact between the parties. The Administrative Law Judge found for the
Division on the issue to its authority to issue a Cessation Order for the
second incident of blasting outside the approved schedule. This decision was
affirmed by the NRC, which issued the final order here under review.
6.
Petitioner argues that Defendants were acting beyond their statutory authority,
abused their discretion, and acted in an arbitrary and capricious manner in
issuing and affirming the Cessation Order. Petitioner argues that Defendants
were authorized only to issue another Notice of Violation for the second
illegal blast because it had commenced (but not completed) actions which would
abate the existing Notice of Violation, because the Cessation Order was
terminated the same day, and because the Cessation order was for conduct
equivalent to that which resulted in issuance of the first Notice.
7.
Respondents argue that because Plaintiff had not abated the Notice of violation
at the time of the second illegal blast, 310 IAC 12-6-5 authorizes the issuance
of a cessation order and the imposition of a civil penalty, as the next
sanction in the State's enforcement scheme. Respondents further argue that
there is no authority for treating blasting violations any differently from
other violations in applying the accelerating sanctions envisioned by the
surface mining rules.
8.
IC 134.1-11-5(a) states as follows: "If the director or inspector
determines that: ...
(2) the permittee has not abated the
violation within the time set pursuant to section 4:
he shall order the cessation of surface coal mining and reclamation
operations or the portion thereof relevant to the condition, practice, or
violation. In the order of cessation, the director shall determine the steps necessary to abate the violation in the
most expeditious manner.,' (emphasis added).
9.
310 IAC 12-6-5(b)(1) states as follows: "(b)(1) When, on the basis of an
inspection, an authorized representative of the director for good cause shown
and upon written findings finds that a notice of violation has been issued
under 310 IAC 12-6-6(a) and the person to whom it was issued fails to abate the
violation within the abatement period fixed or subsequently extended by the
authorized representative, he or she shall immediately order a cessation of
that portion of the surface mining operations relevant to the violation."
10.
The above statute and rule require that a cessation order be issued as an
additional sanction when a Notice of Violation is not timely abated. In this
case Petitioner had not timely abated the Notice of Violation, because it went
ahead with another blast under the new schedule prior to completing the
publication and notification requirements.
CONCLUSIONS OF LAW
1.
The issuance of Cessation order #C90719-S-00223 was authorized by IC
13-4.1-11-5(a) and 310 IAC 12-6-5(b)(1) for Petitioner's conduct in continuing
to blast under its new schedule without completing the steps necessary to abate
the Notice of violation previously issued.
2.
The law is with Respondents and against Petitioner.
ORDER
The
decision of the Indiana Natural Resources Commission in the affirmance
of Cessation order #C90719-S-00223 is hereby upheld.
Date: June 14, 1991 Hugo C. Sanger
Judge, Dubois Circuit Court