[NOTE: JUDICIAL REVIEW WAS SOUGHT BY GREEN CONSTRUCTION FOR VIOLATION N20918-S-104 (ADMIN. CAUSE NO. 92-360R) IN THE DAVIESS SUPERIOR COURT. THE COURT'S FINDINGS AND JUDGMENT ARE ATTACHED.]
Notice of Violation N20918-4-S-45 is affirmed.
Notice of Violation N20918-S-104 is affirmed.
Parts one and three of Notice of Violation N20918-S92 are affirmed.
Parts two and four of Notice of Violation N20918-S-92 are vacated.
Part one of Notice of Violation N20918-S-2 is vacated.
Part two of Notice of Violation N2091-S-2 is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency charged with the responsibility of regulating surface coal mining operations.
4. At all times relevant to these proceedings, Green Construction of Indiana, Inc. ("Green") held permits S-45, S-104, S-92, and S-2 issued by the DNR which allowed the surface mining of coal in Daviess County, Indiana.
5. The administrative law judge is the ultimate authority within the meaning of IC 4-21.5 for the DNR over requests for administrative review dealing with coal mine enforcement actions.
6. On September 18, 1992, an authorized representative of the DNR issued notice of violation N20918-S-45 ("NOV I") to Green for failing to display a proper mine identification sign at the Craney Mine.
7. On September 18, 1992, an authorized representative of the DNR issued notice of violation N20918-S-104 ("NOV II") to Green for failure to monitor surface water at the Superior Mine.
8. On September 18, 1992, an authorized representative of the DNR issued a four part notice of violation N20918-S-92 ("NOV III") to Green for violations at the Lengacher Mine.
9. On September 18, 1992, an authorized representative of the DNR issued two part notice of violation N20918-S-2 ("NOV IV") to Green for violations at the Graber Mine.
10. Green filed timely requests for administrative review pursuant to IC 4-21.5 for all NOVs.
11. There may be some references in the record to Solar Sources, Inc.. In the spring of 1992, Green entered into an agreement with Solar Sources to take over reclamation activities at a number of properties including the four involved in these proceedings. Green remains the permittee and all four notices of violation were issued to Green.
12. The parties agreed to dispose of a number of issues by summary judgment.
13. It appears that those issues briefed by the parties in the summary judgment motions do not present issues of material fact and are appropriate for decisions based on the briefs and arguments pursuant to IC 4-21.5-3-23.
14. NOV I was written solely for a violation of 310 IAC 12-56(a), which states "signs identifying the mine area shall be displayed at all points of access to the permit area from public roads and highways. Signs shall show the name, business address, and telephone number of the permittee and identification number of the current mining and reclamation permit or other authorization to operate. Such signs shall not be removed until after release of all bonds."
15. The factual basis for NOV I was an incorrect phone number for Green on the mine identification sign on the west side of County Road 900E.
16. The mine does not argue that the phone number is correct. In fact, the mine agrees that the phone number was incorrect.
17. The mine asserts that Green shut down its local office in November of 1991, and that when Solar took over in 1992, it had no reason to think the sign was a problem since spring inspection reports indicated that "signs were posted and displayed necessary information."
18. The mine further contends that since the current workers had no reason to know the sign was incorrect, NOV I should not be given. Green would not be aware of the problem since Green employees were no longer at the
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site.
19. IC 13-4.1 and 310 IAC 12 ("I-SMCRA") are designed to place minimum performance standards on all coal mining operations.
20. I-SMCRA is intended to be preventative in nature and the scienter of management and employees of mining operation does not affect whether or not a standard is violated.
21. The actions (or non-actions) of a permittee are taken into account when setting the penalties. See 310 IAC 12-6-12. If the violation occurred with no negligence, 0 points are assigned for negligence. If there is some carelessness but not much, only one or two points are assigned. If the violation in question is trivial and will not result in any damage or does not obstruct enforcement, as few as 0 points for seriousness can be assessed.
22. In short, I-SMCRA is intended to handle situations where there is a violation of a standard but minimal damage potential and minimal negligence by low point assessments resulting in low civil penalty assessments which are waived. See 310 IAC 12-6-11(c) and 310 IAC 12-6-12-5.
23. 310 IAC 12-5-6(a) requires the permittee to post its telephone number. Green failed to do this. NOV I should be affirmed.[FOOTNOTE 1]
24. NOV II was written for failure to properly monitor surface water at the Basin #2 outfall, thus violating 310 IAC 12-5-27(b)(1) and (b)(2), and 310 IAC 12-3-4, condition of permit Part IV, F(4).
25. 310 IAC 12-5-27(b) requires a mine to monitor surface water and file reports in accordance with it NPDES permit.
26. 310 IAC 12-3-4 requires a mine to conduct its operations in accordance with the terms of its approved permit. Part IV F(4) of the approved permit does not appear to have been tendered into evidence, either at the hearing or as part of a summary judgment motion.
27. Since the burden of persuasion in an enforcement action is on the DNR, the administrative law judge cannot enter a finding that Part IV, F(4) of the permit was violated without factual evidence being introduced by the DNR as to the content of Part IV, F(4) of the permit.
28. Exhibit E attached to the DNR's motion for summary judgment sets forth the relevant portion of the NPDES permit. It requires the operator to submit monitoring reports by the 28th day of each month.
29. This same exhibit also discusses how an operator can be relieved of the monitoring requirement by submitting a written request to IDEM.
30. On June 3, 1992, the mine submitted a letter to IDEM requesting deletion of outfall monitoring at the Superior Mine because reclamation activities (primarily revegetation) had effectively eliminated the ponds. See Exhibit 3 attached to Green's summary judgment motion.
31. IDEM did not respond to the letter and either lost or did not receive it. See affidavit of Roger Rylatt, Exhibit D attached to the DNR's summary judgment motion.
32. While the administrative law judge is sympathetic with the bureaucratic nightmare visited upon the operator here, the fact remains that the mine never received permission from IDEM to suspend reporting requirements as provided in the NPDES permit.
33. Reluctantly, the administrative law judge concludes that the mine was still under a duty to go through the motions of submitting reports at the time NOV II was written. NOV II should be affirmed.
34. NOV III involves four separate violations at Lengacher Mine.
35. Part I of NOV III was written for failing to display accurate information on the mine ID sign, in that the sign had an incorrect business address and telephone number for Green.
36. For the reasons presented in paragraphs 15 through 23, supra, part one of NOV III must be affirmed.
37. Part two of NOV III was written for failure to achieve the approved post-mining land uses in violation of 310 IAC 12-5-68(c) and 310 IAC 12-5-59.
38. Testimony from several witnesses was entered at the hearing on this issue. The evidence was not particularly contradictory and can be summarized by a finding that the surface owner moved several small wooden structures into a pond area. The surface owner uses the pond for fishing and has installed a picnic table and swing set. The post mining land use involved is for cropland or pasture on the 37 acres abutting the pond. The wooden structures do not appear to have been placed on a permanent foundation.
39. The inspection report accompanying the NOV (Exhibit A) indicates that the NOV was written because of two 8'x 10' sheds, two picnic tables, two transplanted trees, and a swing set.
40. 310 IAC 12-5-64.1(c)(8) requires appropriate revegetation to cover a minimum of 95% of an area and to have no individual barren area exceeding 750 square feet.
41. Evidence most favorable to the Department indicates that no more than 1/2 acre out of 37 acres is involved. This is well within the 5% allowance.
42. Further, there are no excessively large bare spots. While there appears to be
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a miscellaneous mix of vegetation (including soy beans) near the structures, when taking the 37 acres as a whole, the post-mining land use is progressing more or less on schedule.
43. The placement of a small number of temporary, easily moved structures on a large area does not in and of itself constitute a post-mining land use violation. Likewise, use of the pond and these structures for "recreational" purposes during warm weather does not materially affect the restoration of the general area in accordance with the approved post-mining land use.
44. Part two of NOV III should be vacated.
45. Part three of NOV III was written for failure to properly monitor surface water in violation of 310 IAC 12-5-27(b) and Part IV, F(4) of the permit.
46. The mine had an obligation to file its June monitoring report in July.
47. The June monitoring report was received in mid-September.
48. The monitoring report was received by the DNR prior to the issuance of NOV III. It was, however, submitted late.
49. The mine contends that since the NOV was not written until after the report was filed, the NOV is improper.
50. Part of Green's argument deals with the remedial action to be taken. The inspector ordered the mine to file its report by October 18, 1992, an act which had already occurred when the NOV was written.
51. While the inspector could and should have written a different remedial action, it does not change the fact that a violation occurred. Green failed to deliver a timely report.
52. In Warrick Coal v. Department, 5 Caddnar 118 (1990), a one day cessation order was upheld on judicial review even though the violation was discovered days after the act and the cessation order terminated on the same day as given.
53. The mine is likely entitled to rapid compliance points under 310 IAC 12-6-12, but in the final analysis, the failure to submit a monitoring report on time is a violation.
54. Part three of NOV III should be affirmed.
55. Part four of NOV III was written for failure to protect and stabilize an area used as an access road in violation of 310 IAC 12-5-56.1.
56. Testimony indicated that the road area had rills and gullies. The surface owner testified that the erosion did not impede access to his property. The mine reclamation director indicated that the road in question is a permanent access road to the property and that the gullies are in the four to five inch range. There was disagreement as to whether the erosion involved topsoil or a mixture of C-Horizon and shale.
57. 310 IAC 12-5-56.1 does not seem to apply. The language of this rule does not appear to apply to roads as the rule requires, among other actions, that the mine re-seed or replant the areas. Clearly this is not meant to apply to permanent roadways.
58. Further, this being an enforcement matter, the burden of persuasion is on the DNR. The administrative law judge cannot conclude form the testimony that it is more likely the road material is A-Horizon soil than C-Horizon soil.
59. 310 IAC 12-5-56.1 only applies to re-graded topsoil areas.
60. While the maintenance (or lack thereof) may constitute a violation of the Surface Mining Act, it does not violate 310 IAC 12-5-56.1 which was cited as the provision violated. See Peabody v. Department, 3 Caddnar 96 (1987).
61. Part four of NOV III should be vacated.
62. NOV IV involves two separate violations at the Graber Mine.
63. Part one of NOV IV was written for failing to reclaim contemporaneously in violation of 310 IAC 12-5-53.
64. This violation centers around the failure to remove sediment basin 7R (also referred to as 004).
65. Near the close of Green's case, there was testimony that 7R was permitted under an interim permit (89-127) and is still bonded under the interim program.
66. This is in the nature of an affirmative defense and thus is required to be disclosed prior to hearing or be disclosed at the prehearing conference. See IC 4-21.5-3-14.
67. This defense was first raised by the third (and last) witness at the hearing.
68. Thus the interim permit defense cannot be considered.
69. Exhibit J indicates that the mine intended to remove 7R but intended to remove a number of other basins first.
70. The DNR generally concurred with the list and priority of removal and set compliance dates. These dates were extended several times and at the time the NOV was issued (September 18) the pond was to be removed by September 1.
71. On the surface, it would appear that 310 IAC 12-5-53, contemporaneous reclamation, was violated.
72. However, at the hearing, the mine introduced a letter from the Department, Exhibit 1, (dated January 24, 1989) in which the Bond Section head states a "dry dam area adjacent to CR 100N" should remain. This area is not referred to by a number, but given the description in Exhibit 1, the marked location of 7R on Exhibits Q and 6, the contour lines on Exhibit Q,
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the testimony of the mine's reclamation engineer, and the description of the pond (more of a wetland than a pond) given by the inspector, Exhibit 1 likely refers to the 7R area.
73. Under these circumstances, it would not appear that the mine was legally required to restore this area to cropland.
74. Part one of NOV IV should be vacated.
75. Part two of NOV IV was written for failure to properly monitor surface water in violation of 310 IAC 12-5-27(b) and in accordance with Part IV F(4) of the approved permit.
76. The mine did not submit monitoring reports for June of 1992 as required.
77. The issues and arguments in part two of NOV IV are the same as NOV II, discussed in paragraphs 24 through 33 above.
78. For the same reasons, part two of NOV IV should be affirmed.
FOOTNOTE
1. It is interesting to compare 310 IAC 12-5-6(a) with the Federal counterpart, 30 CFR 816.11(c), which requires the name, address, telephone number, etc. of the person who conducts the surface mining activities. Ths could be [sic] interprited to require Solar Sources be named instead of Green. Since the parties did not argue whether 310 IAC 12-5-6(a) is more (or less) stringent than its federal analog, the administrative law judge does not have to pursue the issue further.
DAVIESS SUPERIOR COURT FINDINGS AND JUDGMENT ARE AS FOLLOWS
FINDINGS
1. Green is an Indiana Corporation engaged in the business of mining coal, and at all pertinent times was the holder of permit S-104 issued by the Respondent Indiana Department of Natural Resources ("DNR") for Green's Superior Mine, located in Daviess County, Indiana.
2. At the pertinent times, Solar Sources, Inc. ("Solar") was a contract miner for Green at the Superior Mine.
3. DNR is the state agency charged with the responsibility of regulating surface coal mining activities.
4. As part of the mine plan, Green obtained an NPDES permit from the Indiana Department of Environmental Management ("IDEM") for discharges from specified sediment basins at the Superior Mine.
5. The NPDES permit requires Green to submit regular water monitoring reports to IDEM.
6. On September 18, 1992, an authorized representative of DNR issued notice of violation N20918-S-45 to Green for failure to submit a monitoring report July 28, 1992.
7. Green filed a timely petition for administrative review of the notice of violation, and the matter was submitted to the Administrative Law Judge on motions for summary judgment.
8. On February 17, 1994, the Administrative Law Judge (ALJ) issued a final order affirming the notice of violation.
9. Green filed a Complaint for Judicial Review of the ALJ decision in this Court on March 16, 1994 and the Record of the Proceedings before the ALJ on April 7, 1994. Motion for leave to file an Amended Complaint was filed November 28, 1995. This matter was submitted to this Court on briefs and oral argument by the parties.
10. The NPDES permit for Superior Mine covered at least four sediment basins (Exhibit 3 to affidavit of George Boyles).
11. In June 1992, temporary water diversion at the Superior mine had been removed, the area had been revegetated for at least two years, and there had been a grading bond release on the site. (Boyles affidavit, paragraph 12).
13. Water entering the pond is stormwater runoff that has contact only with topsoil and vegetation.
14. On June 3, George Boyles, reclamation manager for Solar, wrote to Roger Rylatt at IDEM notifying him that the drainage area for all four sediment basins had been sufficiently stabilized and revegetated to meet the requirements for removal of the basins, that the basins should be removed from the permit, and that this completed monitoring requirements for the site. A copy was sent to DNR. (Boyles affidavit, Paragraphs 14, 15, 18; Exhibit 3 to Boyles affidavit)
15. No response was received by Solar to the June 3 letter, either from IDEM or DNR. In February 1993, IDEM was unable to locate the letter in its files. It was in fact sent; a letter of the same date concerning the Graber mine was received by IDEM. Moreover, DNR has acknowledged receipt of the June 3 letter concerning the Superior Mine. (Rylatt affidavit paragraphs 4, 5; Boyles affidavit, paragraphs 14, 19; September 18, 1992 DNR inspection report, Exhibit B to Respondent's Motion for Summary Judgment and Partial Summary Judgment filed before the ALJ).
16. It has been the past practice of DNR not to require monitoring following removal of sediment basins. In the past, neither IDEM nor DNR has ever responded to a letter from Solar notifying them of changes to or suspensions of water
monitoring. This apparently was also the experience of Green (Boyles affidavit, paragraphs 20 and 21).
17. At the time the notice of violation was written, three of the sediment ponds had been removed. no notice of violation was written with regard to these ponds. (Boyles affidavit, paragraph 17).
18. Sediment pond 002 at the Superior Mine, although eligible for removal, was not removed at the request of the landowner, who wanted it to remain as a permanent impoundment. (Boyles affidavit, paragraph 13).
19. DNR concurred in the pond's eligibility to be a permanent impoundment. (Inspection Report of 9/18/92, item 8, p. 3, DNR Exhibit B). To qualify as a permanent impoundment under 310 IAC 12-5-24(a), the pond must meet water quality standards:
(1) the quality of the impounded water shall be suitable on a permanent basis for its intended use, and discharge of water from the impoundments shall not degrade the quality of receiving water to less than the water quality standards pursuant to the applicable Indiana and federal laws.
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(3) water impoundments shall not result in the diminution of the water quality or quantity of water used by adjacent or surrounding landowners for agricultural, industrial, recreation, or domestic uses.
CONCLUSIONS OF LAW
1. This Court has jurisdiction to review the decision by the ultimate authority of DNR that the issuance of notice of violation N20918-S-2 was proper.
2. In reviewing the agency decision, this court must determine whether the agency decision is consonant with the facts and the applicable law. I.C. 4-21.5-5-14.
3. Green asserts, among other things, that DNR could not issue this notice of violation because the pond at issue was not a "point source" and thus not subject to regulation. DNR argues that this Court cannot consider this issue because interpretation of the Clean Water Act is the province of the IDEM, not DNR.
4. No monitoring report was made for any of the ponds, yet DNR wrote a notice of violation for failure to monitor only one of the ponds. This DNR made a determination that the other three ponds were no longer point sources subject to monitoring and reporting.
5. IDEM has taken no adverse action against Green with respect to these ponds. Because of IDEM's long-standing practice of accepting altered monitoring reports or suspension of monitoring upon letter notification, there was no reason for Green initiate administrative review proceedings before IDEM.
6. Fundamental due process requires that Green be afforded the opportunity to seek review of the DNR action. That review necessarily includes review of the legal interpretations underlying the agency action. Indiana Dept. of Highways v. Dixon (1989), Ind. 541 N.E.2d 877; Indiana Constitution, Article 1 section 12, U.S. Constitution, Amendment 14.
7. A working sediment pond is a "point source" as defined in 33 U.S.C. section 1362 of the Federal Water Pollution Control Act:
any discernible, confined and discrete conveyance, including by not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
8. At one time, the sediment ponds at the Superior mine were point sources which required an NPDES permit and regular monitoring.
9. At that time that notice of violation
N20918-S-2 was issued, the four ponds at the Superior Mine were eligible for removal under 310 12-5-21(e), which provides:
Siltation structures shall not be removed until the disturbed area has been restored, and the vegetation requirements of 310 IAC 12-5-59 through 12-5-65 are met and the drainage entering the pond is of adequate quality without treatment that it will not result in violations of applicable water quality standards in the receiving stream or shown to be of the approximate quality of the drainage from the area prior to mining or, if baseline date is unavailable, similar areas of unmined land. When the siltation structure is removed, the affected land shall be regraded and revegetated in accordance with 310 IAC 12-5-53 through 12-5-57.1 and 310 IAC 12-5-59 through 310 IAC 12-5-68. If the commission approves retention, the siltation structure shall meet all the requirement for permanent impoundment of 310 IAC 12-5-24 and 12-4-31.
10. Thus the water entering the pond from the drainage area does not violate water quality standards and cannot contain "pollutants" as defined in 33 U.S.C. section 1362(6):
The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.
11. Since no pollutants enter the pond, none can leave it. It is therefore not a "point source" and cannot be regulated under the clean water laws.
12. Also, the pond is not a point source because any discharges from it are agricultural stormwater discharges.
13. An administrative agency cannot act beyond the scope of its legislatively granted powers. Indiana State Board of Embalmers v. Kaufman (1984), Ind.App., 463 N.E.2d 513.
14. The notice of violation rested upon an alleged violation of 310 IAC 12-5-27(b), which requires:
(1) Surface water monitoring, reporting, and record keeping shall be conducted as specified in the effective NPDES permit.
(2) Copies of the monitoring reports and any noncompliance notifications shall be provided to the director concurrently with the submissions to the NPDES authority.
15. The NPDES permit at issue here was no longer an effective permit, since the four ponds covered by it were no longer point sources and did not require a permit.
16. It is beyond the scope of DNR authority to issue a notice of violation for failing to monitor and report on water quality of a non-point source.
17. Even if the pond were a point source, when grading and revegetation reached the stage where the pond was no longer used for sediment control, it became exempt from regulation by 33 U.S.C. section 1342(1)(2):
The Administrator shall not require a permit under this section, nor shall the Administrator directly or indirectly require an State to require a permit, for discharges of stormwater runoff from mining operations or oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collection and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate
product, finished product, byproduct, or waste products located on the site of such operations.
18. Moreover, the long-standing practice of IDEM and DNR of allowing modification of NPDES permits by letter notification from operators means that the NPDES permit here was in fact modified by the Boyles June 3 letters, and Green was in compliance with the permit.
19. The February 17, 1994 decision of the Administrative Law Judge is an abuse of discretion because it is contrary to law in that it found that notice of violation N20918-S-104 should be affirmed.
20. The February 17, 1994 decision of the Administrative Law Judge is in excess of statutory jurisdiction because the pond was not subject too monitoring under the Clean Water Act.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the portion of the February 19, 1994 decision of the Administrative Law Judge of the Department of Natural Resources upholding the issuance of notice of violation N20918-S-104 is vacated, and this matter remanded to the Administrative Law Judge for proceedings not inconsistent with this decision.