[CITE: Nerco Coal v DNR, 4 CADDNAR 24 (1987)]
[VOLUME 4, PAGE 24]
Cause #: 86-007R
Caption: Nerco
Coal v DNR
Administrative Law Judge: Lucas
Attorneys: Clark; Szostek, DAG
Date: May 22, 1987
ORDER
Notice
of Violation #N51217-S-00072 is vacated.
FINDINGS OF FACT
1. The
Department of Natural Resources (the "Department") is an agency as
the term is defined under IC 4-22-1. The Director of the Department (the
"Department") is the ultimate authority for the Department with
respect to the subject matter of these administrative actions.
2.
The Director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department in accordance with IC
13-4.1-2-2(c).
3.
On December 17, 1985, Mike A. Yarling, an authorized
representative of the Department, wrote Notice of Violation #N51217-S-00072
(the "NOV") against Nerco Coal Company
("Nerco") with respect to permit S-00072 to
conduct surface coal mining operations at its Indian Pit operation in Daviess
County.
4. Nerco has requested review of the NOV in a timely fashion.
5.
The Director appointed Sue A. Shadley as the administrative law judge to
conduct appropriate proceedings under IC 4-22-1 and 310 IAC 0.5-1. Sue Shadley
subsequently resigned her employment with the Department, and Stephen Lucas was
appointed as her successor in this administrative action.
6.
The NOV alleged that Nerco violated 310 IAC 12-5-12.1
(a), (b) and (d) with respect to areas "north of the pit and between the
1000 E and 1050 E haul roads." The action set forth in the NOV for
abatement was to place "straw bales in all gullies and mulch all topsoil
areas, or remove topsoil in a separate layer, stockpile and mulch." The
time by which abatement was to be completed was set for January 15, 1986 at
8:00 a.m.
7.
310 IAC 12-5-12.1 provides in pertinent part as follows:
Sec.
12.1. (a)
Removal. All topsoil shall be removed as a separate layer from the area to be
disturbed, and segregated.
(1)
Where the topsoil is of insufficient quantity or of poor quality to sustain
vegetation, the material approved by the commission or by the director as a
topsoil substitute or supplement. . .shall be removed
separately from the area to be disturbed, and segregated.
(2)
If the topsoil is less than six inches (6") thick, the permittee
may remove the topsoil and the unconsolidated materials immediately below the
topsoil to a depth of six inches (6") and treat the mixture as topsoil.
(3)
Topsoil need not be removed:
(i) at sites disturbed only by power poles, signs, fence
posts, electrical substations, transformers and switch boxes, explosive
magazines, temporary buildings on skids, topsoil stockpiles, culvert
installations, cable routes, cable storage areas, power line cable suspension
towers or "horses", pumps, pump hoses and pipelines; and
(ii)
with the director's approval, for minor disturbances
which will not permanently destroy the existing vegetation and will not cause
erosion.
(b)
Timing. All materials to be removed under this rule shall be removed after the
vegetative cover that would interfere with its removal and use is cleared from
the area to be disturbed, but before and drilling, blasting, mining or other
disturbance, except those disturbances described in paragraph (a) (3). . ., takes place. [Emphasis added.]
8.
The area which is the subject of the NOV is in advance of a high wall and
between the high wall and a line of woods (the "subject area".) The
distance between the high wall and the line of woods is from approximately 100
to 200 feet.
9.
The vegetative cover, trees and related undergrowth, was removed from the
subject area over an extended period beginning in August 1985 and continuing
until October or early November 1985. The process of removing vegetative cover
is sometimes referred to as grubbing.
10.
Topsoil removal commenced at the subject area following grubbing, but that
process was not completed when the NOV was issued on December 17, 1985.
11.
The subject area experienced unusually large amounts of precipitation during
November and the first half of December 1985. During that period rainfall was
measured in the total amount of 12.45 inches. The unusual rainfall amounts were
a primary reason why the removal of topsoil was not completed before the NOV
was issued.
12.
No activity was undertaken by Nerco at the subject
area prior to issuance of the NOV, other than grubbing and the removal of
topsoil.
13.
As used in 310 IAC 12-5-12.1 (b), an "area to be disturbed" refers to
any portion of a surface mine located within the boundaries of mine plan,
including revisions to that mine plan. [See Fossil
Fuels Mining, Inc. V. DNR, 1 Caddnar 79 (Sep. 28,
1984)]
14.
The subject area is within an "area to be disturbed" under 310 IAC
12-5-12.1 (b).
15.
310 IAC 12-5-12.1 (b) requires that the topsoil be removed before
"drilling, blasting and mining did not occur at the subject area prior to
the issuance of the NOV.
16.
The same principles applicable to statutory construction apply to the
construction of a rule. In examining the language contained in a rule section,
effect must be given, if possible, to every word and clause used in that
section, since all language is presumed to have been
[VOLUME 4, PAGE 25]
used
intentionally. [Indiana
State Dept. Of
Welfare, Medicaid Division v. Stagner (1980), Ins. App., 410 N.E. 2d 1348.]
[17.
Omitted in original document.]
18.
As used in 310 IAC 12-5-12.1 (b), "other disturbance" cannot refer to
grubbing, since the mandate of the subsection applies only after the removal of
the vegetative cover ("grubbing.")[FOOTNOTE i]
19.
The NOV is not supported under 310 IAC 12-5-12.1(b) and should be vacated.
FOOTNOTE
i. Under the doctrine of ejusdem generis, when words of specific or limited signification in a rule
are followed by general words of more comprehensive import, the general words
are constructed to embrace only such things as are of like kind or class with
those designated by the specific words, unless a contrary intention is clearly
expressed. [See, for example, Kindwell v. State,
230 N.E. 2d 590, 249 Ind. 430.] Presumably that doctrine would apply to the
meaning of "other disturbance", so that the phrase would be embraced
within the concepts of drilling, blasting and mining. An exact meaning of
"other disturbance" need not be here established, since the only
activity performed at the subject area by Nerco
(other than the removal of topsoil) was grubbing. Whatever is included within
"other disturbance", grubbing is not.