Green Construction of Indiana, Inc. V. Department of Natural Resources The civil penalty assessed against Green Construction Company in connection with Notice of Violation N30623-S-2 is hereby reduced from $280.00 to $160.00.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is a state agency within the meaning of IC 4-21.5.
2. IC 4-21.5 ("AOPA"), IC 13-4.1, and 310 IAC 12 ("SMCRA") apply to these proceedings.[FOOTNOTE 1]
3. The DNR is the state agency responsible for regulating surface coal mining operations.
4. At all times relevant to these proceedings, Green Construction of Indiana, Inc. ("Green") held surface coal mine permit S-2 issued by the DNR which allowed the mining of coal in Daviess County, Indiana.
5. On June 23, 1993, a duly authorized representative of the DNR issued Notice of Violation N30623-S-2 ("NOV") to Green.
6. Green timely petitioned for administrative review of the NOV (Administrative Cause Number 93-317R), and on March 16, 1994 the administrative law judge issued a final order affirming the NOV. See Exhibit A attached to these findings.
7. On April 19, 1994, the department issued a civil penalty assessment ("CPA") of $280.00 in connection with the NOV.
8. Green filed a timely petition for review of the CPA.
9. By agreement of the parties, the administrative law judge took official notice of all evidence, arguments, and objections which were a part of the NOV litigation in Cause Number 93-317R.
10. Penalties under SMCRA are governed by 310 IAC 12-6-12 and 12.5 which set up an intricate point system.
11. The DNR originally intended to assess civil penalty of $340.00, but following an assessment conference, the DNR reduced the number of points assessed for seriousness to ten from thirteen resulting in a reduction of total points from 17 to 14.
12. The 14 point total resulted from a one point assessment for prior history, a three point assessment for negligence, and a ten point assessment for seriousness.
13. Green challenged the point assessments for negligence and seriousness.
14. Additionally, Green claims a "rapid compliance" credit pursuant to 310 IAC 12-6-12(d).
15. The original NOV was issued because a landowner of mined property which had been reclaimed as farm land allowed a telephone company to place a concrete pad, tower, and access road on land still subject to SMCRA because bond had not been released.
16. The original NOV, written June 23, 1993, provided an abatement date of July 23, 1993. Abatement actions required were either the removal of the concrete pad and road so the approximately one-half acre of land could be revegetated or the submission and approval of a post-mining land use amendment.
17. The DNR extended the abatement date to August 31, 1993.
18. Green submitted a post-mining land use amendment on August 27, 1993. This amendment was eventually approved by the DNR and the NOV terminated.
19. The total number of days allowed for compliance by the DNR was approximately 70 days.
20. To be entitled to any rapid compliance points, Green needed to provide an accurate, complete change request in 63 days or less.
21. Not having complied with this requirement, Green is not entitled to any rapid compliance points under 310 IAC 12-6-12(d).
22. 310 IAC 12-6-12(c) allows the assessment of 0 - 25 points for fault. Simple negligence involves an assessment of 0 - 12 points.
23. In written Finding 23 of Cause Number 93-317R, the administrative law judge found that Green had no knowledge of the construction of the pad.
24. The only fault that can be assessed to Green is the failure to discover the construction prior to its completion.
25. The land in question (40 to 50 acres) was being farmed by the owner so that Green had little or no reason to
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send a crew to the field to work or inspect.
26. The violation was discovered during a routine inspection of another permit area in the vicinity.
27. The number of points that should be assessed for negligence is one. This is very close to a zero point (no fault) and the minimum negligence points should be assessed.
28. 310 IAC 12-6-12(b) deals with assessment of points for seriousness.
29. Seriousness can be approached from two directions. The DNR used approach number one and assessed points for probability of occurrence and extent of damage. At the assessment conference, the DNR changed its approach to number 2, eliminated the points originally assessed, and assessed ten points (out of a maximum of 15 points) for obstruction of enforcement.
30. it is not clear from SMCRA which approach should be used.
31. Both however should yield similar point totals.
32. The harm to be prevented in this particular case is the failure to restore the property in such a way so that crop productivity standards are met.
33. The parcel in question has a total area of 40 to 50 acres and the tower project involved about .6 acre and part of the .6 acre was a roadway.
34. Access roads are generally permitted as part of farmland restoration.
35. The overall impact on productivity is somewhere in the "insignificant" to "unlikely" area, and thus five points should be assessed.
36. Any impact of the violation would be limited to the permit area, so 0 to 7 should be assessed for extent of damage. Since the duration and extent of damage was minimal, one point is an appropriate assessment.
37. Under the first approach, a total of six points should be assessed.
38. Under the obstruction of enforcement theory, 0 to 15 points would be assessed.
39. Because of the lack of willful conduct on the part of the mine, and the small area involved, less than one-half the number of points should be assessed. Six points would be an appropriate number only because of the permanent nature of the unpermitted improvements.
40. The total number of points assessed should be eight which results in a fine of $160.00.
41. At the hearings, the DNR argued that the penalty should be increased two points because of changes in the prior mining history.
42. If the DNR had appropriately raised this issue prior to hearing, the administrative law judge could consider this increase.
43. The fact that mining history was not at issue in any manner until the presentation of evidence at the hearing prevents the consideration of an increase in points.
44. Since this is a de novo hearing (See DNR v. United Refuse Co. (1993), 615 N.E.2d 100, a civil penalty could have been increased at hearing if the evidence on the issues raised in the petition for review (seriousness and degree of fault) had justified an increase in the number of points assessed for this violation In this case, the evidence at hearing mandates a decrease, not an increase.
FOOTNOTE
1. On July 1, 1995 a recodification of the Indiana Cod re-assigned all DNR programs to Title 14 of the Indiana Code and all rules adopted there under will eventually be found in 312 IAC rather than 310 IAC. Since all activities in this matter took place prior to July 1, 1995, the prior section numbers will be used.