[CITE: Department of Natural Resources v. Bardonner,
5 CADDNAR 211 (1991)]
[VOLUME 5, PAGE 211]
Cause #: 90-152W
Caption: Department of
Natural Resources v. Bardonner
Administrative Law Judge: Lucas
Attorneys: McInerny, DAG; pro se (Bardonner)
Date: October 17, 1991
ORDER
(1)
A notice of violation is issued by the Natural Resources Commission against
Eugene Bardonner pursuant to IC 14-3-3-22 for his
failure to comply with the terms of a permit (Docket Number D-5031) issued in
1977 under IC 13-2-22 to construct a dam on an unnamed tributary to Big Blue
River in the northeast quarter of the southeast quarter of section 10, township
16 north, range 9 east in Henry County, Indiana.
(2)
Eugene Bardonner shall abate the violation by slowly
breaching the dam and dewatering the lake impounded by the dam, with the
abatement to be completed by January 27, 1992.
(3)
If the dam is not breached and the lake dewatered by January 27, 1992, a charge
of $500 (five hundred dollars) daily shall be imposed beginning on January 28,
1992 and continuing until March 27, 1992 or until abatement is achieved,
whichever date occurs earlier, for a total amount not to exceed $30,000 (thirty
thousand dollars).
FINDINGS OF FACT
1.
The Indiana department of natural resources (the "Department") is an
agency as the term is defined in IC 4-21.5-1-3. IC 4-21.5 (sometimes referred
to as the "administrative adjudication act" or the "AAA")
is applicable to an "agency action" of the Department.
2.
As defined in IC 4-21.5-1-15, "ultimate authority" means the individual
or panel in whom the final authority of an agency is vested. As provided in IC
14-3-3-21(a), the natural resources commission (the "Commission") is
the ultimate authority for the Department.
3.
On May 17, 1990, the Department filed against Eugene Bardonner
("Bardonner") its Complaint for the
Issuance of a Notice of Violation (and for the Imposition of a Charge) for the
Failure to Correct the Matters of, Allegedly Constructing a Dam Without a
Permit from the Natural Resources Commission and Not Maintaining the Dam in a
Good and Sufficient State of Repair and/or Operating Condition, by Not Bringing
the Dam into Compliance with the Conditions of the Certificate of Approval, on
an Unnamed Tributary to Big Blue River, Near Knightstown, Henry County (the "Complaint").
With filing of the Complaint, this proceeding was commenced pursuant to the
administrative adjudication act.
4.
The section of the administrative adjudication act which most particularly
governs a complaint is IC 4-21.5-3-8; and the Complaint conforms to the
requirements of that section.
5.
IC 4-21.5-3-14(c) sets forth generally which party has the burden of persuasion
and the burden of going forward in a proceeding. In this proceeding, the
Department is the party pursuing Bardonner for a
regulatory violation. For this reason, the Department carries both the burden
of persuasion and the burden of going forward. The result is also supported
because the statutory authority for the Complaint is IC 14-3-3-22; and
subsection 22(b) specifies that the "[D]epartment
has the burden of proving the alleged violation by a preponderance of the
evidence." Peabody
Coal Company v. Patrick R. Ralston, Ind. App., 83A01-9103-CV-76 (1991).
6.
The Complaint was filed with respect to a dam (the "dam") constructed
for Bardonner on an unnamed tributary of the Big blue
River in the southwest quarter (SW 1/4) of section 10, township 16 north, range
9 east, near Knightstown in Henry, county, Indiana. The location of the dam is
not in dispute.
7.
The dam was constructed about 1975 without a certificate of authorization as
required by IC 13-2-22 (sometimes referred to as the "Flood Control
Act"). After the Department learned of the unauthorized construction, the
site was inspected and Bardonner was informed that an
application must be filed with the Department for an after-the-fact
authorization.
8.
Subsequently, Bardonner made application pursuant to
the Flood Control Act for a certification of authorization for the dam. The
application was approved and Bardonner issued a
written certificate of authorization within docket number D-5031 on May 25,
1977 (the "permit"). Claimant's Exhibit 2.
9.
The permit contained standard conditions and, in addition, set forth the seven
following requirements:
(1)
All disturbed areas shall be effectively protected from erosion during the
construction period and shall be suitably revegetated
or otherwise provided with permanent protection upon completion.
(2)
The dam shall be leveled to a minimum elevation of
[VOLUME 5, PAGE 212]
1,032.5
feet mean sea level and seeded. The emergency spillway for the dam shall be
leveled to a minimum elevation of 1,029.0 feet mean sea level and seeded.
(3)
The upstream slope shall be provided with rip-rap protection against wave wash
action.
(4)
The spillway shall, as needed, be protected from erosion damage.
(5)
A toe drain or other adequate embankment drainage facility shall be installed,
if future annual inspections by the Department reveal that the granular
foundation materials do not keep the downstream slope and toe area dry and
stable.
(6)
Dam revisions required to conform its structure to the
permit terms shall be completed by December 1, 1977.
(7)
The Commission shall, "before the dam is put to use," be provided
with an inspection report from a registered professional engineer which
certifies that the dam has been built in accordance with the plans and
specifications included in the permit; or the owners of the dam will, at their
expense, cause the dam to be breached.
10.
When the permit was issued, IC 4-22-1 controlled administrative reviews of
agency determinations. The issuance of the permit was a "final order or
determination" of the Department; and Bardonner
might have contested the terms of the permit by seeking administrative review
pursuant to IC 4-22-1 within fifteen (15) days of notification of the permit.
11. Bardonner did not seek timely review of the terms of the
permit. Instead he proceeded with the development of the dam. By failing to
contest in 1977 the terms and conditions placed on the permit, Bardonner waived any opportunity for review. Bardonner is now legally bound to the terms of the permit
as they were determined in 1977. Marshall
Co. Drainage Bd. v. DNR, 1 Caddnar 32 (November
25, 1981). See, also, Dale Bland
Trucking, Inc. v. Calcar Quarries, Inc. (1981),
Ind. App., 417 N.E.2d 1157.
12.
The Department has conducted regular inspections of the dam since the permit
was issued in 1977. The first inspection occurred in August 1977; and
inspections occurred in 1978, 1979, 1981, 1983, 1984, 1985, 1986, 1987, 1988,
and 1989. Claimant's Exhibits 6 through 21.
13.
Inspection reports made by the Department before 1988 indicated that the
condition of grass cover on the dam was generally poor. Erosion occurred on the
upstream (lakeside) slope of the dam, where the Department recommended the
"addition of rip-rap or anchored poles to control the wave erosion."
On the downstream slope, water was observed passing under the dam, and the area
above this seepage was sometimes "spongy". The principal spillway,
really little more than a "low spot" on the crest of the dam,
contained an open swale into another gully. On one occasion, muskrat activity
was observed which could reduce the integrity of the Dam; and the presence of
brush made complete inspections difficult. As a whole maintenance was
unsatisfactory; and one inspection report even referred to maintenance as being
nonexistent.
14.
The Department attempted, through correspondence, to communicate to Bardonner the importance of performing good maintenance on
the dam and of complying with all the terms of the permit. Copies of the
inspection reports were provided to Bardonner.
15.
Late in 1988, Bardonner initiated an effort to comply
with some permit terms. Trees were cut from a portion of the downstream side of
the embankment. With the coming of winter, the Department agreed in November to
defer additional compliance efforts on the dam until spring 1989. Claimant's Exhibit 17 and direct testimony by Kenneth Smith.
16.
On April 19, 1989, Michael Neyer, Assistant Director of the Division of Water
of the Department, wrote to Bardonner concerning the
dam. He stated that "[a]s spring... [was] now
here," Bardonner needed to contact staff for the
Department with a written schedule to complete the permit conditions. Neyer stated
the schedule should include:
(a) clearing and regrading the
downstream face of the dam:
(b) leveling the top of the dam to a minimum elevation of 1032.5
feet, National Geodetic Vertical Datum;
(c) leveling the emergency spillway to an elevation of 1029.0
feet, National Geodetic Vertical Datum;
(d) providing rip-rap protection against wave action for the
upstream slope of the dam; and
(e) suitably revegetating the
disturbed areas of the dam.
17.
On August 4, 1989, Neyer again wrote to Bardonner. He
stated that Bardonner had not responded to the April
19 letter outlined in Finding 16 and that a Department inspection made on May
22 revealed no progress on the dam since the fall of 1988. The need was
repeated to establish a written schedule to complete compliance work on the
dam. Neyer also stated that the dam violated state law and that the Commission
would be requested to issue a notice of violation "seeking imposition of a
fine in an amount not to exceed One Thousand
[VOLUME 5, PAGE 213]
(1,000)
Dollars per day, for each day the violation continues until the conditions of
your permit (D-5031) are satisfied."
18.
On October 4, 1989, the Department made another inspection of the dam. An
inspection report was prepared on October 11 which stated in part:
(1)
The top of the dam had been mowed and cleared. Old tire ruts as deep as nine
inches were found across the length of the dam. The top of the dam was uneven
with high and low areas. A survey determined the lowest area along the top of
the dam to be at elevation 1033.6.
(2)
The shoreline of the upstream slope was found to be overgrown with weeds,
brush, and small trees. "Although it was nearly impossible to inspect the
upstream slope, we did find areas of erosion where sloughing has
occurred."
(3)
The downstream slope was found to have been "'worked over' by a
dozer."
The condition of the slope surface was described as "raw and uneven with
limbs, brush, [and] lumps of soil scattered over the slope. In many areas on
the slope, the soil is so disturbed by the 'clearing operation' that it is
impossible to determine if sloughing or other slope instability has
occurred." Seepage was observed near the abutments, although the presence
of trees and brush precluded the 'Inspection from determining the upper limit
of the seepage. The toe of the slope was found to be "extremely saturated
and wet. Again, a thorough examination of the toe area" was "not
possible owing to the heavy vegetation and debris from the clearing
operation."
(4)
The spillway was described as "an open channel at the south end of the
dam." The channel was unmowed and "heavy
vegetation" was identified at the channel entrance. A narrow gully had
been formed in the spillway channel. The survey crew had "determined that
the control action in the spillway" was "at elevation 1032.2"
and the surface of the impounded water was "at elevation 1032.0."
19.
The persons who conducted the October 4, 1989 inspection spoke with Bardonner. They indicated in their written report that
"Bardonner debated each condition [of the
permit] with us except for the last two conditions ... "
20.
On May 17, 1990, the Department filed the Complaint. The Complaint contends
that in November 1989 the dam remained in violation of every condition in the
permit.
(1)
In violation of the condition set forth in Finding 9(l), even though the
downstream and upstream slopes of the dam had been cleared of heavy vegetation,
the Department argued that the downstream slope is raw with lumps of soil from
the upstream slope; and there was alleged to be no erosion protection on the
disturbed slopes.
(2)
In violation of the condition set forth in Finding 9(2), the original spillway
elevation of 1,032.3 was said to be unaltered; and no seeding was found to have
been accomplished.
(3)
In violation of the condition set forth in Finding 9(3), there was no riprap
observed.
(4)
In violation of the condition set forth in Finding 9(4), no spillway protection
was alleged to have been provided.
(5)
In potential violation of the condition set forth in Finding 9(5), no toe drain
or other drainage facilities had been installed, although a wet area was said
to exist near the toe of the dam.
(6).
In violation of Finding 9(6), construction work
required to be revised within six months of the permit approval in 1977 was not
found to have been completed.
(7)
In violation of Finding 9(7), a certified inspection report from a registered
professional engineer, that the dam was constructed according to the approved
plans and specifications, was alleged not to have been provided before the dam
was placed in use.
21.
After the issuance of the Complaint, a dam inspector for the Department again
made numerous attempts to contact Bardonner in an
effort to achieve compliance with the permit terms.
22.
On July 26, 1991, the Department again inspected the dam. Although some
progress had been made, the dam still did not comply with the 1977 permit.
23.
The conditions set forth in the permit, as described in Finding 9(l), had not
been met at the time of the July 1991 inspection. Bardonner
continues to be in violation of this condition in that
portions of the slopes of the dam, the top of the dam, and the spillway
had bare soil with no permanent vegetation or other suitable erosion control.
24.
The conditions set forth in the permit, as described in Finding 9(2), had not
been met at the time of the July 1991 inspection. Bardonner
continues to be in violation of this condition in that spillway had bare earth
with a trench running through it. The 3.5 foot differential between the crest
of the dam and the spillway required in the permit was approaching, but had not
yet achieved, satisfaction.
25.
The conditions set forth in the permit, as described in finding 9(3), had not
been met at the time of the July 1991 inspection. No
[VOLUME 5, PAGE 214]
riprap had been applied to the
upstream slope as required in the permit. The dam was covered with bare earth.[FOOTNOTE i]
26.
The conditions set forth in the permit, as set forth in Finding 9(4), had not
been fully met at the time of the July 1991 inspection, although significant
progress was observed. The spillway continued to be in a "very
torn-up" state, but Bardonner was in the process
of installing a black drain tile underneath the spillway to help minimize
erosion damage to the emergency spillway.
27.
The conditions set forth in the permit, as described in Finding 9(6), had not
been met as of July 1991. Revised construction work was not completed by
December 1, 1977, with notice given to the Department following completion. In
fact, revised construction work has never been completed.
28.
The conditions set forth in the permit, as described in Finding 9(7), had not
been met as of July 1991. Bardonner did not, before
putting the dam in use, provide a certified inspection report from a registered
professional engineer that the dam was built according to plans and
specifications approved by the Commission. For well over a decade, the dam has
been utilized without providing a certified inspection report.[FOOTNOTE ii]
29.
The Department has satisfied the burden of proving that Bardonner
has violated the terms of the permit.
30.
Because Bardonner has not complied with the
conditions of the permit, including the prerequisite that plans and
specifications be certified by a registered
professional engineer in advance of usage, the dam exists without a permit as
required for construction in a floodway by IC 13-2-22-13.
31.
As provided in IC 13-2-22-20, a person who violates IC 13-2-22-13 commits a
Class B infraction; and each day of continuing violation after conviction of
the offense constitutes a separate offense. IC 13-2-22 is administered by the
Department.
32.
IC 14-3-3-22(a) provides that the commission may issue a notice of violation to
a person who violates a law administered by the Department for which a
misdemeanor or infraction penalty is established.
33.
The preponderance of the evidence supports issuance of the Complaint under IC
14-3-3-22 against Bardonner for his violation of IC
13-2-22 with respect to the dam.
34.
Where a complaint is issued under IC 14-3-322(a), the person against whom the
complaint is issued is entitled to a period of not less than 15 days in which
to abate the violation.
35.
An appropriate abatement for the violations of the permit in this proceeding is
to slowly breach the dam and dewater the lake.[FOOTNOTE iii]
36.
Sixty days from the issuance of a notice of violation in this proceeding is an
adequate period to slowly breach the dam and dewater the lake.
37.
With a determination of the appropriate abatement and period to correct a
violation, a notice of violation issued under IC 14-3-3-22(a)
must also specify the "charge" to be imposed if abatement is
not achieved in a timely fashion.
38.
The charge cannot exceed the amount which might be assessed for violation of
the misdemeanor or infraction applicable to the violation. Because the
violation by Bardonner could have been found as a
Class B infraction, and because the maximum judgment for a violation
constituting a Class B infraction is $1,000 with each day the violation
continues a separate offense, the maximum charge which can be assessed against Bardonner is $1,000 daily.
39.
The Commission has found, with respect to other notices of violation issued
under IC 14-3-3-22, that the maximum charge should be reserved for the most
serious violations. In considering the seriousness of a violation, the
Commission determines whether there is posed an imminent danger to persons,
property, or the environment. Department v. Banner, 5 Caddnar 176, 177
(1991).
40.
In determining what the charge should be for failure to abate a notice of
violation in a timely fashion, the Commission has determined that factors to be
considered are whether a violation by a person has been deliberate and
continuing [Banner, 5 Caddnar 177]; or whether, after the issuance of a
complaint, the person has worked with the Department in good faith to address a
problem. DNR, Collins
v. Hasenour, et al., 5 Caddnar
180, 181 (1991).
41.
The evidence presented in this proceeding does not demonstrate that the dam
presents an imminent danger to persons, property, or the environment. Bardonner has made an effort in some instances to work with
the Department to correct problems with the dam, but he has also committed
deliberate and continuing violations of other permit terms. The extended
duration of these violations is particularly troublesome.
42.
The daily charge which is assessed, if slowly breaching the dam and dewatering
the lake is not accomplished in a timely fashion, should be in a medium range
for what could be assessed for a violation constituting a
[VOLUME 5, PAGE 215]
Class
B infraction.
The daily charge should be established in this proceeding at $500. This charge
should continue for a period of 60 days, or until abatement is achieved,
whichever occurs first, for maximum charge of $30,000.
FOOTNOTES
i. Bardonner now opposes
the use of riprap to provide protection against wave action on the upstream
slope of the dam. During direct testimony, he stated that the "Department
seemed to want to take a head-in-the-sand attitude toward riprap, when its not all that proven to be the ultimate best, and
certainly not shown any evidence of learning and creative innovation and
responsible innovation ... They want to exclude (alternatives to riprap)
strictly on the basis that its something that was
conceived 16 or 17 years ago and approved 15 or so years ago. That's kind of a
dead-end approach. I just have to say it that way." The commentary by Bardonner is ironic. If the riprap had been placed "15
or so years ago" as required in his permit, there would not now be an
occasion for discussion as to what is or is not innovative in 1991 for erosion
control on the upstream slope of a dam. Apart from a total lack of expert
testimony in this case to refute the propriety of riprap placement, what should
be the ideal erosion control technique for the upstream slope of a dam, simply
is not at issue. What is at issue is the failure, and in this instance the
refusal, of Eugene Bardonner to ever comply with
permit conditions established in 1977.
ii. The lack of a certified inspection report by a registered professional
engineer is understandable since the dam clearly does not comply with the
permit terms. The determination by Bardonner to use
the dam without compliance with the permit terms, and in direct violation of
this condition, demonstrates total disregard, if not total contempt, for the
permitting process.
iii. The possibility exists, that even with the passage of 15 years without Bardonner satisfying the permit terms, complete permit
compliance might yet be achieved. The parties or the Commission might elect to
defer final action on this proceeding if permit compliance appears likely
within a reasonable period, but considering the history of this dam, any
attempt to frame abatement of a notice of violation in terms of permit
compliance appears doomed to failure. If a notice of violation is issued, the
abatement should by straightforward, easily monitored, and readily enforceable
should a judicial action be needed. For these reasons, abatement of this notice
of violation should specify breaching the dam and not compliance with the
permit.