[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.