Section 312IAC3-1-5. Pleadings for and disposing of a show cause order issued under the Indiana Surface Mining Control and Reclamation Act

   (a) This section governs the suspension or revocation of a permit under IC 14-34-15-7.

  (b) When the director determines that a permit issued pursuant to IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25 should be suspended or revoked, the director (or a delegate of the director) shall issue to the permittee an order of permit suspension or revocation pursuant to IC 14-34-15-7. An order of permit suspension or revocation shall allege the following:

(1) A pattern of violations of:

(A) IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25; or

(B) any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

(2) The violations alleged in the order of permit suspension or revocation are either:

(A) willfully caused by the permittee; or

(B) caused by the permittee's unwarranted failure to comply with:

(i) IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(ii) any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

For the purposes of this subsection, the unwarranted failure of the permittee to pay any fee required under IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25 constitutes a pattern of violations and requires the issuance of an order of permit suspension or revocation.

  (c) An order of permit suspension or revocation issued under subsection (b) shall be served by certified mail or by personal delivery. An order of permit suspension or revocation is governed by IC 4-21.5-3-6.

  (d) A permittee who desires to contest an order of permit suspension or revocation must, within thirty (30) days of permittee's receipt of the order of permit suspension or revocation, file a petition for review pursuant to IC 4-21.5-3-7. A petition for review under this subsection shall set forth the following:

(1) The reasons in detail why a pattern of violations of IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25, or any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25 does not exist or has not existed, including all reasons for contesting:

(A) that the facts alleged in the order of permit suspension or revocation constitute a pattern of violations;

(B) the willfulness of the violations; or

(C) whether the violations were caused by the unwarranted failure of the permittee to comply with IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25, or any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

(2) All mitigating factors the permittee believes exist in determining the terms of the revocation or the length and terms of the suspension.

(3) Any other alleged relevant facts.

(4) Whether a hearing on the order of permit suspension or revocation is desired.

  (e) If a petition for review is not filed by the permittee under subsection (d), the order of permit suspension or revocation shall become an effective and final order of the commission without a proceeding pursuant to IC 14-34-15-7(c).

  (f) If a petition for review is filed by the permittee under subsection (d) and a hearing on the order is sought by the permittee, the matter shall be assigned to an administrative law judge for a proceeding under IC 4-21.5-3. The proceeding is commenced when the permittee files a petition for review under subsection (d). In a hearing conducted under this section, the director has the burden of going forward with evidence demonstrating that the permit in question should be suspended or revoked. The director satisfies the burden under this subsection upon establishing a prima facie case that:

(1) a pattern of violations of:

(A) any requirements of IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(B) any permit conditions required under IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25;

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 to comply with:

(i) any requirements of IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(ii) any permit conditions required under IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

If the director demonstrates that the permit in question should be suspended or revoked, the permittee has the ultimate burden of persuasion to show cause why the permit should not be suspended or revoked. A permittee may not challenge the fact of any violation that is the subject of a final order of the director.

  (g) Upon a determination by the administrative law judge that a pattern of violations exists or has existed, the administrative law judge shall issue a nonfinal order that does the following:

(1) Considers the factors set forth in 312 IAC 25-7-7.

(2) Need not find that all of the violations listed in the order of permit suspension or revocation occurred, but only that sufficient violations occurred to establish a pattern.

(3) Complies with the requirements of IC 4-21.5-3-27(a) through IC 4-21.5-3-27(d) and IC 4-21.5-3-27(g). The provisions of IC 4-21.5-3-27(e) and IC 4-21.5-3-27(f) shall not apply to permit suspension or revocation procedures.

(4) May, at any time prior to the conclusion of the hearing of record, allow the parties to submit briefs and proposed findings.

  (h) The nonfinal order of the administrative law judge shall be submitted to the commission:

(1) Within ten (10) days following the date that the hearing of record is closed by the administrative law judge.

(2) Within ten (10) days of the receipt of the permittee's petition for review submitted under subsection (d) if no hearing is requested by any party and the administrative law judge determines that no hearing is necessary.

  (i) To preserve for judicial review an objection to the nonfinal order of an administrative law judge, a party must object to the findings and nonfinal order in writing that:

(1) identifies the bases of the objection with reasonable particularity; and

(2) is filed with the commission within fifteen (15) days after the findings and nonfinal order are served on the party.

  (j) After an administrative law judge issues a nonfinal order under subsection (g), the commission shall enter a final order affirming, modifying, or vacating the order of permit suspension or revocation. The final order of the commission shall be entered within forty-five (45) days following the issuance of the nonfinal order. The final order of the commission shall be issued within:

(1) sixty (60) days following the date that the hearing of record is closed by the administrative law judge; or

(2) sixty (60) days following the administrative law judge's receipt of the permittee's petition for review filed under subsection (d) if no hearing was requested by any party and the administrative law judge determined that no hearing was necessary.

  (k) If the permit is suspended, the minimum suspension period shall be three (3) working days unless the commission finds that imposition of the minimum suspension period would result in manifest injustice and would not further the purposes of:

(1) IC 13-4.1 before its repeal, IC 14-34, 312 IAC 25; or

(2) any permit condition required by IC 13-4.1 before its repeal, IC 14-34, or 312 IAC 25.

The commission may impose preconditions to be satisfied prior to the suspension being lifted.

  (l) The commission shall serve the parties with a copy of the final order of the commission as provided in IC 4-21.5-3-28. Following notification under this subsection, a party may apply for judicial review under IC 4-21.5 of any matter determined under this section. (Natural Resources Commission; 312 IAC 3-1-5; filed Feb 5, 1996, 4:00 p.m.: 19 IR 1317; filed Feb 7, 2000, 3:31 p.m.: 23 IR 1363; readopted filed Oct 2, 2002, 9:10 a.m.: 26 IR 546; errata filed May 7, 2008, 10:49 a.m.: 20080521-IR-312080333ACA; readopted filed Jul 21, 2008, 12:16 p.m.: 20080813-IR-312080052RFA; readopted filed May 20, 2014, 9:48 a.m.: 20140618-IR-312140027RFA)