[CITE: Solar Sources v. DNR, DOR, 4 CADDNAR 3
(1987)]
[VOLUME 4, PAGE 3]
Cause #: 86-018R
Caption: Solar Sources v.
DNR, DOR
Administrative Law Judge: Lucas
Attorneys: Runnells; Szostek, DAG
Date: January 19, 1987
ORDER
Notice
of Violation N60210-S-00065 is vacated.
FINDINGS OF FACT
1. The
department of natural resources (hereinafter the "Department") is the
ultimate authority of the department with respect to this administrative
action.
2.
The Director has jurisdiction over the subject matter and the parties to this
action.
3.
Solar Sources, Inc. (Hereinafter "Solar") holds permit S-00065 under
IC 13-4.1 to engage in surface mining at Solar Pit #14 in Pike County
(hereinafter the "mine").
4.
The Director may delegate any of the Department.
5.
Tom Held, an authorized representative of the Director, issued Notice of
Violation #N60210-S-00065 (hereinafter the "NOV") to Solar on
February 10, 1986. The NOV alleged a violation of 310 IAC 12-5-12.1(a), 310 IAC
12-3-4 and the Plan of Reclamation, Part IV-B-5.
6.
310 IAC 12-5-12.1(a) provides as follows: "All topsoil shall be removed as
a separate layer from the area to be disturbed, and segregated."
7. 310
IAC 12-3-4 requires that "All persons shall conduct surface coal mining
and reclamation operations under permits issued pursuant to IC 13-4.1 and 310
IAC 12 and shall comply with the terms and conditions of the IC 13-4.1, 310 IAC
12, and the permit."
8.
As set forth in the "Report of Pre-hearing Conference" entered on
March 26, 1986, the purpose of the hearing in this administrative action was
"to resolve the issue of what is a disturbance as contemplated by 310 IAC
12-5-12.1."
9.
The Parties have stipulated that on the date the NOV was issued, iron-laden
water from the mine overtopped the banks of a natural ephemeral stream.
10.
As defined in 310 IAC 12-1-3, an "ephemeral stream" is "a stream
which flows only in direct response to precipitation in the immediate watershed
or in response to the melting of a cover of snow and ice, and which has a
channel bottom that is always above the local water table."
11.
The iron-laden water entered the ephemeral stream as a result of pumping
operations by Solar at the mine.
12.
The Parties have also stipulated that the area outside the banks of the
ephemeral stream, but immediately contiguous to those banks contains topsoil
which was to be removed prior to mining operations.
13.
The area described in Finding 12 was not affected by mining activities, except
that tree-grubbing had occurred over a portion of that area.
14.
The purpose of the evidentiary hearing in this administrative action, as set
forth in the Report of Pre-hearing Conference of March 26, 1986 and as
acknowledged by the parties during the hearing, was "to resolve the issue
of what is a disturbances as contemplated by 310 IAC 12-5-12.1."
15.
"Disturbance" means an act which alters the position or arrangement
of the matter which is in issue. The matter in issue under 310 IAC 12-5-12.1(a)
is topsoil.
16.
"Topsoil" means the uppermost mineral layer, often called the
"surface soil." Topsoil is the part of the soil in which organic
materials are most abundant and leaching of soluble or suspended particles is
typically the greatest. [310 IAC 12-1-3]
17.
The purposes of IC 13-4.1 are enumerated in IC 13-4.1-1-2. Among those purposes
are the following: "
. .
.
(2)Establish
a statewide program to protect society and the environment from the adverse
effects of surface coal mining operations. "
. .
.
(5)
Assure that surface coal mining operations are so conducted as to protect the
environment. "
. .
.
(7)
Assure that the coal supply essential to the nation's energy requirements,
and to its economic and social well-being is provided and strike a balance
between protection of the environment and agriculture productivity and the
nation's need for coal as an essential source of energy. . ."
18.
As used in 310 IAC 12-5-12.1(a), "disturbance" means an act which
alters the position or arrangement of topsoil, particularly with reference to
reasonable concerns for protecting the environment and for maintaining
pre-mining levels of agricultural productivity.
19.
Whether an action constitutes a "disturbance" under 310 IAC 12-5-12.1
is primarily a factual question. The issue must be resolved on a case-by-case
basis.[FOOTNOTE i]
20.
There was no evidence that the passage of iron-laden water over the topsoil
resulted in a contamination or other chemical change which would cause
environmental harm to the topsoil or in the likelihood of a diminution of its
agricultural productivity.
21.
There was no evidence that the passage of water was of a
duration or in a quantity which was likely to result in significant
erosion or other physical impairment of the topsoil.
22.
The passage of iron-laden water, which is pumped during mining activities, over
the area outside the banks of an ephemeral stream does
not, per se, constitute a disturbance of topsoil located there.
23.
The evidence presented in this action does not support a finding that
disturbance resulted to topsoil from the banks of an ephemeral stream.
24.
Issuance of the NOV is not supported by the evidence and should be vacated.
[VOLUME 4, PAGE 4]
FOOTNOTE
i. A similar issue was considered by the Director in fossil Fuels Mining, Inc. v. DNR,
Administrative Cause Number 83-101R. In that action, a notice of violation was
issued based upon 310 IAC 12-5-12(b). The Director noted in footnote ii that
"what is an area to be disturbed' is properly determined on a case by case
basis."