[CITE: Great Lakes Coal
Company v. DNR, 3 CADDNAR 42 (1985)]
[VOLUME 3, PAGE 42]
Cause #: 85-104R
Name: Great Lakes Coal
Company v. DNR
Administrative Law Judge: Shadley
Attorneys: Young, pro sec; Szostek, DAG
Date: October 7, 1985
ORDER
It
is recommended that the Director adopt and approve the following order:
(1)
Notice of Violation #N50417-78-16 is modified to specify under location of
Violation that the five locations are all contained within permit
"79-14."
(2)
Notice of Violation #N50417-78-16, as modified, is affirmed.
FINDINGS OF FACT
1. On
April 29, 1985 Great Lakes Coal Company requested a hearing to review the
issuance of Notice of Violation #N50417-78-16.
2.
IC 13-4-6-1.6 and IC 13-6.1 apply to this proceeding.
3.
The Department of Natural Resources is an agency as defined in IC 4-22-1. The
Director is the ultimate authority of the Department with respect to this proceeding.
4.
The Director has jurisdiction over the subject matter and parties to this proceeding.
5.
Notice of Hearing was given to: Mr. Art Young, Great Lakes Coal Company, PO Box
617, Linton, Indiana 47441; Mr. William Burke, Great Lakes Coal Company, 130 Bradley
Place, Palm Beach, Florida 33480; Mr. Steven Szostek,
Deputy Attorney General, 309 West Washington Street, Suite 201, Indianapolis,
Indiana 46204; Mr. Don K. Strange, Martin County Recorder, Courthouse, Shoals,
Indiana 47581.
6.
On September 25, 1985 a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1
and 310 IAC 0.5.
7.
Great Lakes Coal Company holds permit #78-16 and #79-14 to conduct Surface Coal
Mining Operations in Martin County, at its Pit #1 Mine.
8.
On April 17, 1985 an authorized representative of the Director wrote Notice of
Violation #N50417-78-16 which was mailed to Great Lakes on April 23, 1985.
9.
Notice of Violation #N50417-78-16 cited Great Lakes for failure to establish on
a land that has been disturbed, a diverse, effective and permanent vegetative
cover in violation of IC 13-4-6-1.6 and 30 CFR 715.20(a) (1) and (2).
10.
The Notice of Violation identified the site of violation as
(1) the southern most dry dam on west
side of permit ("location 1"),
(2) the area north of dry dam ("location 2"),
(3) the northern slope of southern most basin ("location
3"),
(4) the southern slope of northern most basin ("location
4") and
(5) the drainage way leaving northern most basin ("location
5").
11.
The listed sites if violation were all within permit 79-14.
12.
30 CFR 715.20 (a)(2) provides "the permittee shall establish on all land that has been
disturbed, a diverse, effective, and permanent vegetative cover. . . .."
13.
30 CFR 715.20(a)(2) provides "Revegetation shall
be carried out in a manner that encourages a prompt vegetative cover and
recovery of productivity levels compatible with approved land uses. The vegetative
cover shall be capable of stabilizing the soil surface with respect to erosion.
All disturbed lands. . .shall be seeded or planted to
achieve a vegetative cover. . . ."
14.
Location 1 had been seeded and mulched in the fall, but on the date the Notice
of Violation was written, a lot of the mulch had washed off and the majority of
the dry dam was bare without vegetation or germinating seed.
15.
Location 2 contained two washes, one to two feet deep and showed evidence of
soil erosion.
16.
Location 3 and 4 lacked vegetative cover, and each composed of spoil, not
topsoil, which would be difficult to vegetate.
17.
Location 5 lacked vegetative cover.
18.
The total area not vegetated was not more than 3% of the permitted acreage of «
acre.[FOOTNOTE i]
19.
Great Lakes has not established on all land that has been disturbed, a diverse,
effective and permanent vegetative cover.
20.
This area was mined during the year 1979.
21.
Great Lakes attempted to vegetate or
[VOLUME 3, PAGE 43]
stabilize this area against erosion
during 1982 with the use of straw bales.
22.
Because the straw bales did not work, Great Lakes attempted to vegetate and
stabilize this area against erosion during 1983 by the use of rip rap.
23. Because
the rip rap did not work, Great Lakes attempted to vegetate or stabilize this
area against erosion during 1984 by constructing dry dams.
24.
Although seeded and mulched in the Fall of 1984, the
dry dam was not vegetated on April 17, 1985.
25.
Great Lakes had not established a vegetative cover capable of stabilizing the
surface from erosion and had not seeded or planted all disturbed lands to
achieve a vegetative cover in a manner that encouraged a prompt vegetative
cover.
FOOTNOTE:
i.
Great Lakes believes that the provisions of 30 CFR 715.20(f)(2)
provide that only 90% of the disturbed acres need be vegetated. They thus argue
because 97% of the disturbed area has been successfully revegetated
and only 3% is barren or eroded, they have complied with 30 CFR 715.20(a)(1) and (2) and the Notice of Violation should be vacated
and the performance bond released. I disagree with Great Lakes' interpretation
of 30 CFR 715.20(f)(2). That rule provides "the
ground cover of living plants on the revegetated area
shall be equal to the ground cover of living plants of the approved reference
area for a minimum of two growing seasons. The ground cover shall not be
considered equal if it is less than 90% of the ground cover of the reference
area for any significant portion of the mined area. . . ." This provision
read together with 30 CFR 715.20(a)(1) "the permittee shall establish on all land that has been
disturbed a diverse, effective and permanent vegetative cover. . . ."
(Emphasis added) provide that all of the disturbed land is to be vegetated with
vegetation that is at least 90% of the vegetation which existed pre-mining
reference area contained 600 trees per acre, post mining there would have to be
540 trees on each disturbed acre. The 90% is not to be read that 10% of the
disturbed acres can be totally unvegetated.