[CITE: Foertsch Construction Co., Inc. v. DNR, 3 CADDNAR 18 (1986)]
[VOLUME 3, PAGE 18]
Cause #: 85-034R
Caption: Foertsch
Construction Co., Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Hargis; Szostek, DAG
Date: April 4, 1986
ORDER
Based
upon the above Findings of Fact, it is recommended that the Director adopt and approve
the following order: "Notice of Violation #N50115-80-98 is modified to
delete under location of violation the Northwest side of the northeast basin.
Notice of Violation #N50115-80-98 is modified to correct the citation of the
provision violated, to read IC 13-4.1-8-1(19). Notice of Violation
#N50115-80-98, as modified herein, is affirmed."
FINDINGS OF FACT
1. On
January 31, 1985, Foertsch Construction Co., Inc.
("Foertsch") requested review of Notice of
Violation #N50115-80-98.
2.
IC 4-22-1, IC 13-4-6 and P.L. 101, Section 5 (1980), apply to this proceeding.
3.
The Department of Natural Resources (the "Department") is an agency
as defined in IC 4-22-1. The Director is the ultimate authority of the Department
with respect to proceedings to review Notices of Violation and Cessation
Orders.
4. The
Director has jurisdiction over the subject matter and the parties to these
proceedings.
5. Notice
of Hearing was given to: Mr. John Hargis, Attorney for Foertsch,
Waggoner, Ayer & Hargis, 104 South Third Street, Rockport, Indiana 47635;
Mr. Charles Bates, P.E., Foertsch Construction Co. PO
Box 16, Lamar, Indiana 46580; Mr. Steven J. Szostek,
Deputy Attorney General and Attorney for the Department, 309 West Washington
Street, Room 201, Indianapolis, Indiana 46204; Mr. Wilbur Pershing, Daviess
County Recorder, Courthouse, Washington, Indiana 47501.
6.
On March 13, 1986 a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1 and
310 IAC 0.5.
7. Foertsch holds permit numbers 80-98, 81-41 and 81-213 to conduct
surface coal mining and reclamation operations in Daviess County at its Wagler Mine.
8.
On January 15, 1985 an authorized representative of the Director cited Foertsch with Notice of Violation #N50115-80-98 which was
sent to Foertsch by certified mail on January 17,
1986.
9.
Notice of Violation #N50115-80-98 cited Foertsch for
failure to establish on the regraded areas, and all
other lands affected, a diverse, effective and permanent vegetative cover, in violation
of IC 13-4.1-8(19), at the southeast side of the northwest basin and the
northwest side of the northeast basin.
10.
The correct citation for that provision of the law is IC 13-4.1-8-1(19).
11.
The Notice of Violation required Foertsch
(1) mulch the entire area and stake straw bales into the gullies
at approximately fifty (50) foot intervals;
(2)
maintain temporary erosion control measures until at such a time these areas
can be regraded, seeded, mulched, and rip rap used as
energy dissipaters or a dry dam can be installed; and,
(3) seed with a permanent vegetative species and mulch after regrading and or installation of dry dam.
12.
IC 13-4.1-8-1(19) requires the permittee establish on
the regraded areas, and all other lands affected, a
diverse, effective and permanent vegetative cover of the same seasonal variety
native to the area of land to be affected, which is capable of
self-regeneration and plant succession at least equal in extent of cover to the
natural vegetation of the area. Introduced species may be used in the revegetation process, where desirable and necessary to
achieve the approved postmining land use plan.
13.
At the northeast basin, Foertsch had not yet received
its grading release, and had only replaced subsoil, not topsoil.
14.
A Notice of Violation for violation of IC 13-4.1-8-1(19) would be premature at
an area in which grading has not been released, and where the topsoil has not
yet been replaced.
15. Foertsch has not violated IC 13-4.1-8-1(19) at the
northwest basin.
16. Foertsch had received its grading release at the location
of the northwest basin, and had revegetated the area
in late 1981 or early 1982.
17.
The vegetation had been effective and permanent until a farmer up slope
[VOLUME 3, PAGE 19]
of
the violation, plowed his field and the drainage off that field flowed over the
area reclaimed by Foertsch, a pipe washed out and surface
water created a gully approximately three feet deep, in the area reclaimed by Foertsch.
18.
The fact that the vegetation and other action taken to reclaim the area was not
capable of preventing erosion of the reclaimed site, is evidence that Foertsch had not established a permanent and effective
vegetative cover.
19. Foertsch has violated IC 13-4.1-8-1(19) at the southeast
side of the northwest basin.