CHAPTER 15. INSPECTIONS, MONITORING, AND ENFORCEMENT
IC 14-34-15
Chapter 15. Inspections, Monitoring, and Enforcement
IC 14-34-15-1
Duties of permittees regarding records and reports
Sec. 1. (a) To aid in the enforcement of this article, the directorshall require each permittee to establish and maintain the informationand records required by the commission by rule.
(b) Each permittee shall do the following:
(1) Perform the following administrative duties:
(A) Establish and maintain appropriate records.
(B) Make monthly reports to the director.
(C) Install, use, and maintain any necessary monitoringequipment or methods.
(D) Evaluate results in accordance with:
(i) the methods;
(ii) the locations;
(iii) the intervals; and
(iv) the manner;
that the director prescribes.
(E) Provide other information relative to surface coal miningand reclamation operations that the department considersreasonable and necessary.
(F) Without delay allow the director or the director'sauthorized representative to:
(i) have access to or copy any records; and
(ii) inspect any monitoring equipment or method ofoperation;
required under this article.
(2) Conspicuously maintain at the entrance to the surface coalmining and reclamation operation a clearly visible sign that setsforth the name, business address, phone number, and permitnumber of the operation.
(3) Allow the director or the director's authorized representativeto enter, upon presentation of credentials and without advancenotice, the permittee's surface coal mining and reclamationoperation. The director or the director's authorizedrepresentative has the following:
(A) The right of entry to, upon, or through any surface coalmining and reclamation operation or any premises in whichany records required to be maintained under subdivision (1)are located.
(B) At reasonable times and without delay:
(i) access to and authority to copy any records; and
(ii) authority to inspect any monitoring equipment ormethod of operation;
required under this article.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-2 Operations removing or disturbing strata serving as aquifers
Sec. 2. (a) For those surface coal mining and reclamationoperations that remove or disturb strata that serve as aquifers thatsignificantly ensure the hydrologic balance of water use either on oroff the mining site, the director shall specify the following:
(1) Monitoring sites to record the quantity and quality ofsurface drainage above and below the mine site as well as in thepotential zone of influence.
(2) Monitoring sites to record level, amount, and samples ofground water and aquifers potentially affected by the miningand also directly below the lowermost (deepest) coal seam to bemined.
(3) Records of well logs and borehole data to be maintained.
(4) Monitoring sites to record precipitation.
(b) The monitoring, data collection, and analysis required by thissection shall be conducted according to standards and procedures setforth by rules of the commission to assure reliability and validity.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-3
Minimum inspections
Sec. 3. (a) The director shall inspect the surface coal mining andreclamation operation covered by a permit issued under this articleon an irregular basis with, at a minimum, the following:
(1) One (1) partial inspection per month.
(2) One (1) complete inspection per calendar quarter.
(b) In addition to the inspections conducted under subsection (a),the director shall inspect the surface coal mining and reclamationoperation covered by a permit issued under this article whenever, onthe basis of any information available to the director, includingreceipt of information from any person, the director has reason tobelieve that the operation is in violation of this article or thecommission's rules. The inspection must occur within ten (10) daysof receipt of the notification. If the inspection results frominformation provided by any person, the person may accompany thedirector on the inspection.
(c) All inspections must occur without prior notice to thepermittee or the permittee's agents or employees except for necessaryonsite meetings with the permittee.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-4
Inspection report
Sec. 4. (a) Following completion of the inspections required undersection 3 of this chapter, the inspector shall file an inspection report.The inspection report must include information sufficient to allowthe director to enforce the requirements and carry out the purposesof this article.
(b) A copy of any record, report, inspection material, or otherinformation obtained under this chapter, other than material
designated as confidential under this article, must be available to thepublic at the following:
(1) The department.
(2) A public library in the county in which the mining operationis located.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-5
Notification of violations
Sec. 5. (a) If, due to an inspection under section 3 of this chapter,the director or an inspector determines a violation of:
(1) this article; or
(2) a rule adopted under this article;
has occurred, the director or inspector shall notify the permittee inwriting of the violation and make a reasonable attempt to verballynotify the permittee upon discovery of the violation.
(b) The written notification must do the following:
(1) Contain a detailed description of each violation.
(2) Fix a reasonable time not exceeding ninety (90) days forabatement of the violation.
(3) Provide an opportunity for a public hearing under section 9of this chapter.
(c) A notice of violation issued under subsection (a) is effectivewhen served upon the permittee and is governed by IC 4-21.5-3-6.However, the notice of violation is subject to an application fortemporary relief under section 9 of this chapter.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-6
Ordered cessation of coal mining and reclamation operations
Sec. 6. (a) As used in this section, "imminent danger to the healthor safety of the public" means the existence of:
(1) a condition;
(2) a practice; or
(3) a violation of a permit or other requirement of this article;
in a surface coal mining and reclamation operation that couldreasonably be expected to cause substantial physical harm to personsoutside the permit area before the condition, practice, or violation isabated. A reasonable expectation of death or serious injury beforeabatement exists if a rational person, subjected to the sameconditions or practices giving rise to the peril, would not expose theperson to the danger during the time necessary for abatement.
(b) If the director or inspector determines that:
(1) a condition or practice exists or a violation of this article orthe commission's rules has occurred that:
(A) creates an imminent danger to the health or safety of thepublic; or
(B) is reasonably expected to cause significant, imminentenvironmental harm to land, air, or water resources; or
(2) the permittee has not abated the violation within the time set
under section 5 of this chapter;
the director shall order the cessation of surface coal mining andreclamation operations or the part relevant to the condition, practice,or violation. In the cessation order, the director shall determine thesteps necessary to abate the violation in the most expeditious manner.
(c) If the director or inspector finds that the ordered cessation ofsurface coal mining and reclamation operations, or any part, will notcompletely abate:
(1) the imminent danger to health or safety of the public; or
(2) the significant imminent environmental harm to land, air, orwater resources;
the director shall, in addition to the cessation order, imposeaffirmative obligations on the operator requiring the operator to takewhatever steps the director considers necessary to abate the imminentdanger or the significant environmental harm.
(d) The cessation order is effective for thirty (30) days after actualnotice of the order is sent to the permittee unless:
(1) the director determines the violation is abated;
(2) the order is modified, vacated, or terminated under section8 of this chapter; or
(3) an informal public hearing is held in the county in which thesurface coal mining and reclamation operation is located, inwhich case the effectiveness of the order may be more or lessthan thirty (30) days.
(e) A cessation order issued under subsection (b) is effective whenserved upon the permittee.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-7
Permit suspension or revocation
Sec. 7. (a) As used in this section, "unwarranted failure tocomply" means the failure of a permittee to:
(1) prevent the occurrence of a violation of:
(A) the permittee's permit; or
(B) a requirement of this article; or
(2) abate a violation of:
(A) the permit; or
(B) this article;
due to indifference, lack of diligence, or lack of reasonable care.
(b) If, on the basis of an inspection, the director determines that:
(1) a pattern of violations of the requirements of:
(A) this article or IC 13-4.1 (before its repeal);
(B) the rules adopted under IC 14-34-2-1 or IC 13-4.1-2-1(before its repeal); or
(C) permit conditions required by this article or IC 13-4.1(before its repeal);
exists or has existed; and
(2) the violations:
(A) are caused by the unwarranted failure of the permittee tocomply with: (i) the requirements of this article or IC 13-4.1 (before itsrepeal);
(ii) the rules adopted under IC 14-34-2-1 or IC 13-4.1-2-1(before its repeal); or
(iii) permit conditions required by this article or IC 13-4.1(before its repeal); or
(B) are willfully caused by the permittee;
the director shall issue an order of permit suspension or revocationand shall provide opportunity for a public hearing under subsection(d).
(c) An order issued under:
(1) subsection (b); or
(2) IC 13-4.1-11-6 (before its repeal);
is subject to IC 4-21.5-3-6 and becomes an effective and final orderof the commission without a proceeding if a request for review of theorder is not filed with the director within thirty (30) days after theorder is served upon the permittee.
(d) If a hearing is requested under IC 4-21.5-3-7, the director shallconduct the hearing in accordance with IC 4-21.5. The director shallnotify all interested parties of the time, place, and date of the hearing.
(e) In a hearing requested under IC 4-21.5-3-7, the director has theburden of going forward with evidence demonstrating that the permitin question should be suspended or revoked. This burden is satisfiedif the director establishes a prima facie case that:
(1) a pattern of violations of the requirements of:
(A) this article or IC 13-4.1 (before its repeal);
(B) the rules adopted under IC 14-34-2-1 or IC 13-4.1-2-1(before its repeal); or
(C) permit conditions required by this article or IC 13-4.1(before its repeal);
exists or has existed; and
(2) the violations were:
(A) willfully caused by the permittee; or
(B) caused by the unwarranted failure of the permittee tocomply with the requirements of:
(i) this article or IC 13-4.1 (before its repeal);
(ii) the rules adopted under IC 14-34-2-1 or IC 13-4.1-2-1(before its repeal); or
(iii) a permit condition required by this article or IC 13-4.1(before its repeal).
(f) For the purposes of subsection (e), the unwarranted failure ofthe permittee to pay any fee required under this article or underIC 13.4.1 (before its repeal):
(1) constitutes a pattern of violations; and
(2) requires the permittee to show cause why the permit shouldnot be suspended or revoked under this section.
(g) If the director demonstrates in a hearing requested underIC 4-21.5-3-7 that the permit in question should be suspended orrevoked, the permittee has the ultimate burden of persuasion to showcause why the permit should not be suspended or revoked. A
permittee may not challenge the fact of any violation that is thesubject of a final order of the director.
(h) Within sixty (60) days after the conclusion of the hearing onthe merits, the commission shall issue to the parties a final writtendecision. The final written decision must include the reasons for thedetermination of the commission on the suspension or revocation ofthe permit.
(i) If the commission revokes a permit, the permittee shall do thefollowing:
(1) Immediately cease surface coal mining and reclamationoperations on the permit area.
(2) Complete reclamation within a time period set by thedirector. If reclamation is not completed within that time period,the permittee forfeits the applicable bond.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-8
Notice or order requirements
Sec. 8. (a) The director or inspector, as appropriate, shall signeach written notice or order issued under this chapter and promptlydeliver the notice or order to the permittee. The notice or order mustset forth with particularity the following:
(1) The nature of the violation.
(2) The remedial action required.
(3) The time established for abatement.
(4) A reasonable description of the part of the surface coalmining and reclamation operation to which the notice or orderapplies.
(b) The director may modify, vacate, or terminate a notice ororder issued under:
(1) this chapter; or
(2) IC 13-4.1-11 (before its repeal).
As added by P.L.1-1995, SEC.27.
IC 14-34-15-9
Application for review
Sec. 9. (a) Any person having an interest that is or may beadversely affected by the issuance under this chapter or underIC 13-4.1-11 (before its repeal) of:
(1) a notice of violation;
(2) a cessation order;
(3) the modification of a notice of violation or a cessation order;
(4) the vacation of a notice of violation or a cessation order; or
(5) the termination of a notice of violation or a cessation order;
may apply to the commission for review of the notice, order,modification, vacation, or termination within thirty (30) days fromthe date of issuance. The filing of an application for review does notoperate as a stay of an order or a notice.
(b) Upon receipt of an application for review under subsection (a),the commission shall conduct an investigation of the circumstances
relating to the issuance of the notice or order or modification,vacation, or termination of the notice or order. The investigationshall provide an opportunity for a public hearing to enable interestedpersons to present information relating to:
(1) the issuance and continuance of the notice or order; or
(2) the modification, vacation, or termination of the notice ororder.
(c) If a public hearing is requested under subsection (b), thecommission shall do the following:
(1) Conduct the hearing in accordance with IC 4-21.5-3.
(2) Give written notice to the permittee and other interestedparties of the time and place of the hearing at least five (5) daysbefore the hearing.
(d) Upon completion of the investigation conducted undersubsection (b), the commission shall make findings of fact and issuea written final decision. The written final decision must include anorder vacating, affirming, modifying, or terminating the notice ororder or the modification, vacation, or termination of the notice ororder. If:
(1) the application for review concerns an order for cessation ofa surface coal mining and reclamation operation; and
(2) the cessation order has directly or indirectly ordered theceasing of surface or underground mining activities;
the commission shall issue the written decision within thirty (30)days of receipt of the application for review unless the commissionunder subsection (e) or the court under judicial review of thecommission's decision under IC 4-21.5-5 grants temporary relief.
(e) Pending completion of the investigation and hearing requiredby subsection (b) and the hearing required by section 7 of thischapter, the applicant may file with the commission a written requestthat the commission grant temporary relief from a notice or an orderissued under this chapter or under IC 13-4.1-11 (before its repeal).The written request must include a detailed statement of the reasonswhy temporary relief is appropriate. The commission shall issue anorder or a decision granting or denying the requested reliefexpeditiously. However, if the applicant requests relief from an orderfor cessation of coal mining and reclamation operations issued undersection 6 of this chapter, the commission shall issue the order ordecision on the request within five (5) days of receipt of the request.The commission may grant temporary relief, under the conditionsthat the commission prescribes, if the following conditions are met:
(1) A hearing was held in the locality of the permit area on therequest for temporary relief in which all parties were given anopportunity to be heard.
(2) The applicant showed there is substantial likelihood that thefindings of the commission will be favorable to the applicant.
(3) Temporary relief will not do any of the following:
(A) Adversely affect the health or safety of the public.
(B) Cause significant, imminent environmental harm to land,air, or water resources.As added by P.L.1-1995, SEC.27.
IC 14-34-15-10
Costs and expenses
Sec. 10. Whenever an order is issued:
(1) under this chapter or under IC 13-4.1-11 (before its repeal);or
(2) as a result of an administrative proceeding under this articleor under IC 13-4.1 (before its repeal) instituted at the request ofa person;
the court, resulting from judicial review, or the commission mayassess against either party to the proceeding an amount of money,determined by the commission, equal to the aggregate amount of allcosts and expenses, including attorney's fees, reasonably incurred bythe person for or in connection with the person's participation in theproceedings, including any judicial review of agency actions.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-11
Injunctions; restraining orders; other orders
Sec. 11. The director may request the attorney general to institutea civil action for relief, including a permanent or temporaryinjunction, restraining order, or any other appropriate order, in anappropriate court in the county in which the surface coal mining andreclamation operation is located if a person does any of thefollowing:
(1) Violates or fails or refuses to comply with an order issuedby the director under:
(A) IC 13-4.1 (before its repeal); or
(B) this article.
(2) Interferes with, hinders, or delays the director in carryingout this article.
(3) Refuses the director admittance to the person's surface coalmining and reclamation operation.
(4) Refuses to permit the director to inspect the person's surfacecoal mining and reclamation operation.
(5) Refuses to furnish any information or report requested bythe director under this article.
(6) Refuses to permit access to and copying of any records thatthe director considers necessary to carry out this article.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-12
Civil action
Sec. 12. (a) In addition to other remedies available under statutoryor common law, a person with an interest that is or may be adverselyaffected may commence a civil action on the person's own behalf tocompel compliance with this article against any of the following:
(1) A person allegedly in violation of:
(A) this article; (B) a commission rule adopted under this article; or
(C) a notice or an order issued under:
(i) IC 13-4.1 (before its repeal); or
(ii) this article.
However, a commencement of an action under this subdivisionmust occur in the county in which the surface coal mining andreclamation operation complained of is located.
(2) The director or the commission to the extent permitted bythe Constitution of the State of Indiana and IC 34-13-3 if theperson allegedly fails to perform an act or a duty required underthis article. However, commencement of an action under thissubdivision must occur in the county in which the complainedof action should have taken place.
(b) A person may not commence an action under subsection(a)(1):
(1) less than sixty (60) days after notice is given by the personto:
(A) the director;
(B) the commission; and
(C) an alleged violator; or
(2) if the director or the state has commenced a civil action andis diligently prosecuting the action to require compliance with:
(A) this article;
(B) a commission rule adopted under this article; or
(C) a notice or an order issued under:
(i) IC 13-4.1 (before its repeal); or
(ii) this article.
However, any person may intervene in the action as a matter ofright.
(c) A person may not commence an action under subsection (a)(2)less than sixty (60) days after the person has notified the director orthe commission in writing of the intention to commence an action.However, the person may commence an action immediately after thewritten notification if the alleged violation:
(1) constitutes an imminent threat to the health or safety of theperson; or
(2) would immediately affect a legal interest of the person.
(d) In an action commenced under subsection (a)(2):
(1) the director;
(2) the commission; or
(3) the Secretary of the United States Department of theInterior;
may intervene as a matter of right.
(e) The court may, in issuing a final order in an action broughtunder subsection (a), award the costs of litigation, includingattorney's and expert witness fees, to any party if the courtdetermines the award is appropriate. The court may, if a temporaryrestraining order or preliminary injunction is sought, require thefiling of a bond or equivalent security in accordance with the IndianaRules of Trial Procedure. (f) This section does not restrict a right that a person or class ofpersons has under a statute or common law to do the following:
(1) Seek enforcement of the following:
(A) This article.
(B) The rules adopted under this article.
(2) Seek any other relief, including relief against thecommission.
As added by P.L.1-1995, SEC.27. Amended by P.L.1-1998, SEC.112.
IC 14-34-15-13
Violations at surface mining site; citations
Sec. 13. (a) A person who is or may be adversely affected by asurface mining operation may notify the director or anyrepresentative of the director responsible for conducting theinspection, in writing, of a violation of this article that the person hasreason to believe exists at the surface mining site.
(b) The commission shall by rule establish procedures forinformal review of a refusal by a representative of the director toissue a citation with respect to such an alleged violation.
(c) The director shall furnish the person requesting the review awritten statement of the reasons for the director's final disposition ofthe case.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-14
Inspections
Sec. 14. (a) The commission shall by rule establish procedures toensure that adequate and complete inspections are made.
(b) A person may notify the director of a failure to make aninspection, after which the director shall determine whether anadequate and complete inspection has been made.
(c) The director shall furnish the person a written statement of thereasons for the director's determination that an adequate andcomplete inspection has or has not been conducted.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-15
Action for damages
Sec. 15. (a) A person whose person or property is injured throughthe violation by an operator of a rule, an order, or a permit issuedunder:
(1) IC 13-4.1 (before its repeal); or
(2) this article;
may bring an action for damages, including reasonable attorney's andexpert witness fees. The action must be brought in the circuit orsuperior court with jurisdiction in the county in which the surfacecoal mining operation complained of is located.
(b) This section does not affect the rights established by or limitsimposed under IC 22-3-1 and IC 22-3-2.
As added by P.L.1-1995, SEC.27.
IC 14-34-15-16
Intervention
Sec. 16. A person subject to this article who:
(1) is entitled to request a hearing under IC 4-21.5-3; or
(2) has an interest that may be adversely affected by theoutcome of a hearing under IC 4-21.5-3;
may intervene in the hearing.
As added by P.L.1-1995, SEC.27.