CADDNAR


[CITE: Solar v. Department, 4 CADDNAR 27 (1987)]

 

[VOLUME 4, PAGE 27]

 

Cause #: 86-056R

Caption: Solar v. Department
Administrative Law Judge: Drew
Attorneys: Runnells; Szostek, DAG
Date: March 27, 1987

ORDER

 

It is ordered Notice of Violation #N60403-S-00067 is vacated.

FINDINGS OF FACT

 

1. On April 10, 1986, Solar Sources, Inc. ("Solar") is requested review of Notice of Violation #N60403-S-00067.

 

2. IC 4-22-1 and IC 13-4.1-11-8 apply to this proceeding.

 

3. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-22-1. The Department is the ultimate authority of the Department with respect to proceedings to review notices of violation.

 

4. The Director has jurisdiction over the subject matter and the parties to this proceeding.

 

5. Notice of hearing was given to: (list omitted)

 

6. On November 11, 1986, a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1 and 310 IAC 0.5.

 

7. Solar holds permit number S-00067 to conduct surface coal mining and reclamation operations in Pike County, Indiana, at Pit #10.

 

8. On April 3, 1986, an authorized representative of the Director cited Solar with notice of violation #N60403-S-00067 for failure to protect replaced topsoil and replaced prime farmland subsoil from wind and water erosion in violation of 310 IAC 12-5-12.1 (1) (a) (iii), 310 IAC 12-5-12.1 (4) and IC 13-4.1-8.1 (4).

 

9. The citations were subsequently modified to correctly read as follows:

 

IC 13-4.1-8-1 (4), 310 IAC 12-5-12.1(e)(1)(iii), 310 IAC 12-5-12.1(e)(4), 310 IAC 12-5-148(e), 310 IAC 12-3-4 and Plan of Reclamation, Part IV (D)(3).

 

10. IC 13-4.1-8-1 (4) requires, in part, all surface areas affected by surface coal mining and reclamation operations be stabilized and protected to effectively control erosion.

 

11. 310 IAC 12-5-12.1 (e) (1) (iii) requires that all topsoil removed during the course of mining operations be "redistributed in a manner that. . . . [p]rotects the materials from wind and water erosion before and after seeding and planting."

 

12. 310 IAC 12-5-12.1 (e) (4) provides for the addition of nutrients and soil amendments to initially redistributed materials.[FOOTNOTE 1]

 

13. 310 IAC 12-5-148 (e) provides that the "A" horizon of prime farmland be replaced in such a manner that it shall be adequate to meet revegetation standards and that it be protected from wind and water erosion before and after it is seeded or planted.

 

14. 310 IAC 12-3-4 provides "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 of IC 13-4.1, 310 IAC 12 and the permit."

 

15. As of October, 1985, Solar had substantially replaced all subsoil in the area of Pit #10. Realizing that it could not complete replacing the topsoil and establishing a permanent vegetative cover before winter weather set in, Solar, in early November, put down a temporary cover. Although Solar heavily seeded the area, little germination occurred due to cold and wet weather conditions.

 

16. Between November 1985 and March 1986, Solar continued to protect the area in question by mulching and by placing straw bales where washes and gullies were forming.[FOOTNOTE 2]

 

17. There is no evidence to suggest that between November 1985 and March 1986 Solar did not maintain the area in question in accordance with proper reclamation procedures.

 

18. On March 11, 1986 Inspector Tom Held of the Division of Reclamation visited the area in question and found that high winds and heavy rains, occurring on the night before, had left little protective mulch on areas of replaced soil. His inspection report (Respondent's Exhibit K) noted that washes were beginning to develop and that they would "need [to be] stabilized with mulch and straw bales staked down in them as soon as possible."

 

19. Following Held's March 11

 

[VOLUME 4, PAGE 28]

 

Inspection, Solar attempted to comply by distributing straw bales where needed and by mulching. However, due to wet soil conditions, Solar was able to mulch only along the perimeter of the site by using a mulching machine along the haul roads.

 

20. On April 3, 1986, Inspector Held returned and noted in his inspection report (Respondent's Exhibit F) that the gullies mentioned in his March 11 report had been mulched and stabilized. He also noted that mulch was present along the perimeter of the haul road.

 

21. During the inspection, Held also noticed little or no vegetative cover over the area in question and insufficient mulch except on the perimeter of the area. He therefore issued Notice of Violation #N60403-S-00067.

 

22. Held stated at the hearing that his primary reason for issuing the notice of violation was based upon the lack of vegetative cover and insufficient mulch throughout the area.

 

23. Solar testified that due to time constraints caused by the approach of winter weather, the vegetative cover which was planted was intended only as a temporary cover. The planting of temporary covers is an accepted practice in the reclamation process, designed to protect unfinished areas from erosion.

 

24. Although the cover planted by Solar failed to germinate, Solar nevertheless continued to mulch the area throughout the winter months. No erosive problems apparently occurred until the March 11 inspection report noted developing gullies following heavy rains the previous night. This problem was corrected as noted in the following report.

 

25. IC 12-4.1-8-1(4), 310 IAC 12-5-12.1(e)(1)(iii), 310 IAC 12-5-148(e), 310 IAC 12-3-4 and Solar's permit (Part IV (D) (3), as cited in the notice of violation, all require effective erosion control. Solar maintained effective erosion control measures in accordance with the above-listed rules and permit requirements.

 

26. 310 IAC 12-5-148(e), as cited in the notice of violation, also requires topsoil be replaced in such a manner that vegetation standards are met. Solar had yet to finish replacing topsoil over the area in question and to begin planting a permanent vegetative species. A Notice of Violation issued for the violation of this rule is therefore premature.

FOOTNOTES


1. No evidence has been submitted, either during the course of the hearing or otherwise, that Solar did, in fact, violate this rule. Therefore, no consideration is given to this part of the notice of violation.

2. During this time, solar used a mulching machine along the haul road bordering the area because Solar was concerned that other problems, such as compaction of the replaced soils, would result if the mulching machine was taken into the field, furthermore, Solar testified at the hearing that most of the rills and gullies began forming at the edges of the haul roads and thus Solar started mulching from there.