Notice of Violation N30611-S-203 is hereby 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 responsible for the regulation of surface coal mining operations.
4. At all times relevant to these proceedings, Shand Mining, Inc. ("Shand") held surface coal mine permit S-203 ("Permit") issued by the DNR which allowed the surface mining of coal at the Rio Grande Mine in Clay County, Indiana.
5. On June 11, 1993 an authorized representative of the DNR issued notice of violation N306110-S-203 ("NOV") to Shand for an alleged violation on the permit area.
6. The administrative law judge is the ultimate authority within the meaning of IC 4-21.5 with respect to enforcement actions taken by the DNR against surface mining operations.
7. Shand filed a timely petition for review of the NOV on July 6, 1993.
8. The NOV was written for failing to locate a topsoil stockpile in an approved location.
9. The NOV cites the "provision violated" as being 310 IAC 12-3-4, condition of permit IV, Sec. B(4). See Exhibit H.
10. The abatement actions required were to either submit a new operations plan and get approval for the stockpile location or remove the topsoil to an approved area.
11. 310 IAC 12-3-4 requires a mine to conduct its surface mining operations in accordance with its approved mining plan.
12. Part IV, Sec. B(4) of the permit requires the mine to show the location of topsoil stockpiles on an operations map which was done. See Exhibit D.
13. During a routine inspection on May 12, 1993 the inspector noticed that Shand had left topsoil in areas not shown as approved locations on the operations map.
14. The inspector did not write a notice of violation at that time, but noted in his report that the operations map needed to be revised if topsoil was to remain in locations not specified on the map.
15. On June 11, 1993 during a routine inspection, the inspector noticed a large quantity of topsoil north of Pit #2 in the east part of the amendments #2 area. The topsoil was not in an approved area for storage and the inspector then wrote the NOV.
16. The topsoil pile was approximately 100 x 50 feet and reached an elevation of 25 feet. It was graded to a 3:1 slop on three sides and had the required benching to be a stockpile.
17. Shand contends that the NOV should be vacated because the NOV cites permit sections involving non-prime farmland.
18. While Shand is generally correct in its contention that the NOV must provide an accurate description of the violation and that an NOV cannot be affirmed on the basis of provisions not cited, in this particular case Shand cannot rely on that defense since the permit specifies that there will be no difference between the handling of topsoil in prime and non-prime areas and the proposed topsoil storage areas are to be shown on the same operations map. See Exhibit E.
19. Shand also contends that the topsoil was not a "stockpile' within the meaning of the surface mining laws; that topsoil was pushed into this area from a "cut" area and left because of the wet conditions which seriously inhibit the ability to carry topsoil to the approved areas.[FOOTNOTE 1]
20. The evidence clearly shows that wet conditions existed during the relevant time periods surrounding the issuance of the NOV.
21. The "wet topsoil" defense is in the nature of justification and excuse.
22. 310 IAC 12 does not differentiate between the handling of wet topsoil and dry topsoil.
23. The storage pile was placed in an unmined area so it had to be moved sometime prior to the extraction of coal in the area.
24. The typical Shand stockpile is
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higher and more rounded.
25. The pile was rough graded to provide access, but primarily the soil was just pushed into the pile.
26. The pile took some time to create.
27. The evidence presented by Shand goes more to the penalty to be imposed than it does to whether or not there was a violation.
28. As pointed out by the DNR, the Surface Mining Act and rules adopted pursuant to it generally impose strict liability performance standards.
29. If "wet soil" was to be an excuse for not storing topsoil in approved areas, either IC 13-4.1 or 310 IAC would have to provide for it.
30. In summary, the evidence shows that Shand intentionally pushed a large quantity of topsoil to this location and left it there for a significant period of time. The DNR and the trier of fact could certainly conclude this was a topsoil stockpile which had been created. The pile was in an unapproved location. The excuses provided by Shand go to the imposition of penalties, if any, as provided in 310 IAC 12-6-12 and 12.5, in that, they would significantly reduce points assessed for seriousness and negligence.
31. The NOV should be affirmed.
FOOTNOTE
1. The other alternative to storage in an approved area is immediate redistribution. Neither party contends this option was a viable alternative in this case.