20-006d.v15.htm

CADDNAR

[CITE: DNR v. MOB Carriers, Inc., 15 CADDNAR 91 (2020)]

[VOLUME 15, PAGE 91]

Cause #: 20-006D

Caption: DNR v. MOB Carriers, Inc.

Administrative Law Judge: S. Jensen

Attorneys: E. Gamboa for Petitioner; pro se Respondent

Date: March 30, 2020

[See Editor’s note at end of this document regarding change in the decision’s original format.]

Relief

1. A Commission Notice of Violation is hereby issued.

2. To abate the Notice of Violation, MOB shall pay damages to the Department in the total sum of seven thousand seven dollars and fourteen cents ($7,007.14), within fifteen (15) of the date reflected in the Certificate of Service of this Final Order of Default.

3. The Commission deems MOB’s failure to pay damages to the Department to be an ongoing violation. Following the expiration of fifteen (15) days from the date noted in the Certificate of Service of this Final Order of Default, each day MOB continues to fail to pay the required damages to the Department constitutes a separate Notice of Violation for which an additional five hundred dollar ($500) per day penalty will accrue until the damages are paid in full.

FINAL ORDER OF DEFAULT

You are notified that pursuant to 312 IAC 3-1-9 the Administrative Law Judge, acting on behalf of the Natural Resources Commission, now enters a final order of default against the Respondent, MOB Carriers, Inc., (MOB). The reasons for the default were set forth in the “Notice of Proposed Default” issued on March 5, 2020 that is herein incorporated by reference.

In accordance with 312 IAC 3-1-9(e), the Administrative Law Judge has determined all issues in adjudication. In addition to the default, the following findings of fact, conclusions of law and relief are set forth:

1. The allegations contained within the “Complaint for the Issuance of a Notice of Violation” (Complaint) filed by the Petitioner, Department of Natural Resources (Department), which have not been contested by MOB, are adopted as the Commission’s findings of fact.

2. Indiana Code § 14-22-10-6 provides as follows:

Sec. 6. (a) A person who, whether or not the person has been issued a certificate of approval, license, permit, or other document of approval authorized by this article or any other Indiana law, discharges, sprays, or releases waste materials, chemicals, or other substances:

(1) either accidentally, negligently, or willfully;

(2) in any quantity, concentration, or manner onto or in any water of Indiana, the boundary waters of the state, or onto or in public or private land; and

(3) so that wild animals are killed as a result;

is responsible for the kill.

(b) The director shall, in the name of the state, recover damages, including the cost of restoration, from the person. Upon receipt of the estimates of the damages caused, the director shall notify the person responsible within ninety (90) days after the kill to the wild animals, and the director may enter into a proper and reasonable settlement with the person. In determining the damages caused, the director may consider the following:

(1) The direct value of the wild animals killed.

(2) The direct value of law enforcement costs, including wages of investigating officers, cost of any materials used, and travel expenses.

(3) The value of damage to habitat, including injured vegetation, contaminated sediment, and dead invertebrate prey species.

(c) If the total sum of the values under subsection (b)(1), (b)(2), and (b)(3) exceeds five thousand dollars ($5,000) in damages, the director may consider the following in addition to the damages calculated under subsection (b):

(1) The decreased value of the habitat for the number of years necessary for the habitat to recover to predamaged conditions.

(2) The value of lost recreational fishing and hunting time, including future decreased value for the number of years necessary for the recreational use to recover to predamaged conditions.

(d) If a settlement is not reached within a reasonable time, the department shall initiate a proceeding under IC 4-21.5 and IC 14-10-2 to recover damages.

(e) The proceeds of a recovery shall be used to replace, as far as and as promptly as possible, in whatever manner the director considers proper, the wild animal population or habitat in the waters or lands in question. If the improvement of the wild animal population or habitat in question is not practicable, the proceeds shall be deposited into the fish and wildlife fund.

3. The Department determined that MOB’s driver’s accidentally and/or negligently caused a discharge of Texapon Als/Bens into Clear Creek on June 11, 2018.

4. As applicable to the instant proceeding, application of Ind. Code § 14-22-10-6(a)(2) requires that the discharge was to a “water of Indiana”.

5. Ind. Code § 14-8-2-307 defines “water of the state” for purposes of Ind. Code §§ 14-22 et seq. to include:

… a lake, reservoir, marsh, waterway, or other water:

(1) under public:

(A) ownership;

(B) jurisdiction; or

(2) that has been used by the public with the acquiescence of any or all riparian owners.

6. Clear Creek located in Wayne County, Indiana, is a water of the state, or water of Indiana.

7. The discharge by MOB caused the destruction of wildlife and pursuant to Ind. Code § 14-22-10-6(a), MOB is “responsible for the kill.”

8. As required by Ind. Code § 14-22-10-6(b), the Department, is required to “recover damages, including the cost of restoration,” from MOB.

9. The Department issued a demand letter to MOB for a total of seven thousand seven dollars and fourteen cents ($7007.14), on August 30, 2018, which is within ninety (90) days of the events resulting in the fish kill. The Department demand letter sought damages in the amount of five thousand six hundred fifty-three dollars and sixty-four cents ($5,653.64) for the value of the wildlife and one thousand three hundred fifty three dollars and fifty cents ($1,353.50) for the associated law enforcement costs, which sums are consistent with Ind. Code § 14-22-10-6(b)(1 & 2).

10. As of January 22, 2020, when the Department filed its Complaint, MOB had not responded to the Department’s August 30, 2018 demand letter.

11. MOB has continued to be unresponsive to the Department’s filing of its Complaint that initiated the instant proceeding.

12. MOB’s failure to pay the required damages as demanded by the Department, or engage in negotiations with respect to the payment of damages, as authorized by Ind. Code § 14-22-10-6(b), constitutes a violation of Ind. Code §§ 14-22 et. seq.

13. As applicable to the instant proceeding, pursuant to Ind. Code § 14-22-38-1(a), a person who violates Ind. Code §§ 14-22 commits a Class C infraction.

14. Ind. Code § 14-10-2-6(a) authorizes the Commission to issue a Notice of Violation “to a person who violates a law administered by the department for which a misdemeanor or an infraction penalty is established.”

15. Under the facts determined in this proceeding, the Commission is authorized to issue a Notice of Violation to MOB requiring payment of the damages as specified by the Department in its demand letter.

16. If MOB fails to abate the Commission’s Notice of Violation within fifteen days of receipt of the Commission’s Notice of Violation, the Commission is authorized to impose “a charge that does not exceed the maximum amount that may be assessed by a court for committing the violation.” Ind. Code § 14-10-2-6(a).

17. A person who commits a Class C infraction may be liable for a civil fine of up to Five Hundred Dollars ($500.00) per infraction. Ind. Code § 34-28-5-4(c).

18. The Commission may issue “a separate notice of violation” or impose “a separate charge… for each day a violation occurs.” Ind. Cod § 14-10-2-6(c).

A person who wishes to seek judicial review must file a petition in an appropriate court within 30 days of the order and must otherwise comply with IC 4-21.5-5 et seq. Service of a petition for judicial review is also governed by 312 IAC 3-1-18.

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Final Order has been modified to correspond with CADDNAR format. The Relief, Paragraphs 1 through 3, has been relocated to the “Relief” section at the beginning of this document.]