Notice of Violation #N80504-80-139 is vacated.
FINDINGS OF FACT
1. On June 3, 1988 Solar Sources Inc., ("Solar") by counsel, requested a hearing to review the issuance of Notice of Violation ("NOV") #N80504-80-139.
2. IC 4-21.5, 310 IAC 0.6, IC 13-4-6-1.6 and 30 CFR 715 apply to this proceeding.
3. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Director is the ultimate authority for the Department with respect to this proceeding.
4. Solar holds permit 80-139 to conduct surface coal mining operations at its Pit #12 mine in Pike County.
5. Permit 80-139 is an interim permit and, as such, is governed by office of Surface Mining ("OSM") regulations.
6. NOV #N80504-80-139 was issued on May 4, 1988 for failure to establish a vegetative cover capable of stabilizing the soil surface in regards to erosion which was said to be a violation of 30 CFR 715.20(a)(2).
7. The area for which the NOV was issued is a drainageway. This drainageway was in existence prior to Claimant's obtaining a permit to mine in this area and is a necessary feature for future drainage of the entire area.
8. Solar argues that since water areas are exempted from the revegetation requirements of the applicable CFR and this drainageway is a water area, the violation was improperly issued.
9. The Department's position is that the water area must be approved as part of the postmining land use to be exempt from revegetation requirements and since the drainageway is not approved it is not exempt.
10. CFR 715.20(a)(2) reads as follows: "(2) Revegetation shall be carried out...... All disturbed lands except water areas and surface areas of roads that are approved as part of the postmining land use shall be seeded or planted to achieve a vegetative cover..."
11. Since it would be extremely difficult if not impossible to "seed or plant to achieve a vegetative cover" in a drainageway which contains flowing water, it is likely that this type of water area is meant to be exempt from 30 CFR 715.20 revegetation requirements either because all water areas are exempt or because this pre-existing drainageway is not part of the "disturbed area".
12. The Notice of Violation was subsequently modified on June 6, 1988 to allow the erosion problem to be solved with gravel riprap.
13. The original inspection report of March 24, 1988 which warned of the erosion problem ordered Solar to revegetate by "next inspection." The inspector gave no finite time frame to correct the problem nor any alternatives such as riprap.
14. When an inspector orders a permittee to take a corrective action, a definite period of time should be stated such as "90 days" or "by November 4, 1988" rather than "in a reasonable time" or "by the next inspection".
15. Solar's representative testified that he was willing to take corrective action but due to the fact that the fields surrounding the drainageway were filled with crops, it was necessary to wait until the crops were cut before moving in the proper equipment. The "next inspection" which resulted in the NOV being issued occurred before the crop was cut.
16. If Solar had been given a definite date on which the erosion possibility had to be corrected, it would have had a point of reference on which to negotiate with the inspector for alternate methods such as gravel riprap, temporary measures such as mulch, and additional time to allow for crop
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harvesting.
17. A vegetative cover was not the proper means to stabilize this drainageway and Solar was not given a definite time to explore other possibilities with the Department. When these other possibilities were explored, the Department modified the NOV to allow gravel riprap rather than a vegetative cover.