[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.