CADDNAR


[CITE: Solar v DNR, 4 CADDNAR 29 (1987)]

 

[VOLUME 4, PAGE 29]

 

Cause #: 86-118R

Name: Solar v DNR
Administrative Law Judge: Drew

Attorneys: Runnells; Szostek, DAG
Date: July 28, 1987

ORDER

 

Notice of Violation #N60727-S-00068, violation 1 is affirmed and violation 2 is vacated.

FINDINGS OF FACT

 

1. On August 18, 1986 Solar Sources, Inc. ("Solar") requested a hearing to review the issuance of Notice of Violation #N60724-S-00068.

 

2. IC 13-4.1, the Surface Coal Mining and Reclamation Act, applies 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: list omitted.

 

6. On December 2, 1986 a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1 and 310 IAC 0.5.

 

7. Solar holds permit S-00068 to conduct surface coal mining operations in Warrick County at its Pit #12.

 

8. On July 24, 1986, an authorized representative of the Director issued Notice of Violation #N60724-S-00068 which cited Solar with two violations. Violation 1 of 2 alleged Solar failed to stabilize and protect all surface areas affected in accordance with IC 13-4.1-8-1 (4). Violation 2 of 2 alleged Solar failed to regrade or stabilize rills and gullies upon replaced top soiled areas in accordance with 310 IAC 12-5-57 (a) and (b), 310 IAC 12-3-4 and Plan of Reclamation Part IV D-1 through 3.

 

9. IC 13-4.1-8-1 (4) requires all surface areas to be stabilized and protected to effectively control erosion.

 

10. 310 IAC 12-5-57 requires the regrading and stabilizing of all rills and gullies.

 

11. 310 IAC 12-3-4 requires compliance with all permits issued pursuant to IC 13-4.1 and 310 IAC 12.

 

12. Violation 1 of 2 of NOV #N60724-S-00068 involves 13 acres of prime farmland.[FOOTNOTE 1]

 

13. Beginning in March of 1986 and continuing through July of 1986, when the Notice of Violation was issued, various inspection reports were filed by Respondent concerning the 13 acres in question and the surrounding area.

 

14. Initial reports expressed concern regarding the lack of a protective cover over the entire area.[FOOTNOTE 2]  Later reports showed some work was being done on the eastern portion (bond segment 8) but that protective work was still needed over the area in question. Furthermore, May inspection reports indicated conditions were favorable for implementing protective measures but little work was being done.

 

15. Statutes and rules governing surface coal mining activities require reclamation procedures to be undertaken as contemporaneous as possible (IC 13-4.1-1-2 (6), 310 IAC 12-5-61).

 

16. Solar was first notified that further protective measures were needed on March 24, 1986. Yet by July 24, 1986, 13 acres remained unprotected.[FOOTNOTE 3]

 

17. Based upon the foregoing, Solar failed to adequately stabilize or protect surface areas affected by surface coal mining activities as required by IC 13-4.1-8-1(4).

 

18. Violation 2 of 2 concerns approximately 50 acres of prime farmland and alleges Solar failed to regrade or stabilize rills and gullies in accordance with 310 IAC 12-5-5-57 and its permit.

 

19. In an inspection report dated July 2, 1986, it was noted that washes mentioned in a previous report (dated June 18, 1986) were still present and needed repair in the "very near future." It was also noted that due to a recent rainfall, conditions were "becoming" favorable for additional work.

 

20. The next comment received regarding the area was on July 24, 1986, the date the Notice of Violation was issued. Solar had sufficient time in which to correct the problem cited in the Notice of Violation between its first notification of a problem and the issuance of the Notice of Violation.[FOOTNOTE 4]

 

21. Violation 2 of 2 of NOV #N60724-S-00068 was therefore prematurely issued.[FOOTNOTE 5]

 

[VOLUME 4, PAGE 30]

FOOTNOTES

 

1. This area includes what is referred to in Respondent's Exhibit C as the northern portion of bond segment 7 (which is bordered on the west by County Road 150S and on the west by bond segment 8) and the northwest portion of bond segment 8.

2. According to testimony given at the hearing, subsoil had been replaced over the 13 acres cited in the NOV, but as of March, 1986, no topsoil or other protective measures had been put down.

3. Heavy rains were reported in early July, but no further progress was made in the area
following the May reports.

4. During the pre-hearing conference, Respondent stated it generally allowed 30 days for the correction of a problem. If the problem cited in the NOV was first brought to Solar's attention on June 18, coupled with the ensuing rain delays, Solar barely had 30 days in which to adequately correct the problem.

5. As previously noted, a goal of the reclamation process is that land affected by surface coal mining operations be reclaimed as contemporaneously as possible. Unlike violation 1 of 2, where Solar had ample time to make corrections and ample warning from the Respondent, Solar was given little time or notice in which to correct the situation prior to being cited with a NOV.