Part one of Notice of Violation N30316-S-2 is vacated. Part two of Notice of Violation N30316-S-2 is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency charged with the responsibility of regulating surface coal mining operations.
4. At all times relevant to these proceedings, Green Construction of Indiana ("Green") held surface coal mining permit S-2 issued by the DNR which allowed the surface mining of coal at the Graber mine in Daviess County, Indiana.
5. On March 16, 1993, a duly authorized representative of the DNR issued Notice of Violation N30316-S-2 ("NOV'') to Green for the violations at the Graber mine.
6. On April 15, 1993, Green filed a timely request for administrative review of the NOV.
7. Since this matter involves an enforcement action, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5 in this matter.
8. The NOV contained two parts. Part one was issued for failure to properly maintain a mine identification sign until after release of all bonds in violation of 310 IAC 12-5-6(a). Part two was issued for failure to properly protect redistributed topsoil from wind and water erosion in violation of 310 IAC 12-5-12.1(e)(iii), 310 IAC 12-5-59(b)(1), and Part IV (b)(5) of the S-2 permit.
9. The mine had an appropriate sign in the area. However, on the date of the inspection, the sign had fallen over and was not visible.
10. The location of the fallen sign was along the east side of County Road 900E ("CR").
11. The mine contends that a sign was not required by law at this point because it was not a point of access to the mine site.
12. 310 IAC 12-5-6(a) requires mine identification signs to "be displayed at all points of access to the permit area from public roads and highways." The signs must be left until after bond release.
13. At the time the NOV was written, bond was still being held by the DNR on the S-2 permit area.
14. The only issue to be determined is whether or not the area in question is a point of access to the S-2 permit area from the CR.
15. "Point of access" is not a defined term in 310 IAC 12 or IC 13-4.1.
16. In its post-hearing brief, Green appears to urge the administrative law judge to find that since the area in question is not used for access to the mine site by anyone (uncontradicted testimony of Green's one and only witness), it is not a point of access and thus there is no legal requirement to maintain a sign.
17. There are access points on the CR, including one under a quarter of a mile from the violation area, which are used and are properly marked.
18. The DNR seems to contend that "once a point of access always a point of access" and that since the rule is a public safety measure, it should be liberally construed.
19. It appears to the administrative law judge that answering the following question is the best way to determine whether or not an area is a point of access to a mine site: At the time of the inspection, would a mine employee, neighbor, supplier, hauler, or member of the public in general traveling along the public right of-way be somewhat likely to turn into the area either accidentally or deliberately seeking the mine site or office.
20. If the answer to the question posed in Finding 19 is "yes", a mine identification sign is required. If the answer is "no", the area is not a point of access and no sign
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is needed.[FOOTNOTE 1]
21. Photographs of the area were introduced into evidence.
22. Exhibits 4, 5, 6, and 7 show points of access along the CR with appropriate signs. All involve generally level ground with something approximating a road nearby.
23. Exhibits one and two show the violation area. The area appears to be only a farm field.
24. The conclusion is thus drawn that a reasonable man proceeding along the CR would not attempt to leave the road at the site of the violation and enter the permit area. This being the case, the violation area was not a current "point of access" within the meaning of 310 IAC 12-5-6(a) and thus no sign was required.
25. Part one of the NOV should be vacated.
26. Part two of the NOV involved erosion.
27. 310 IAC 12-5-12.1(3)(iii) requires topsoil to be redistributed in a manner which "protects the materials from wind and water erosion before and after seeding planting."
28. 310 IAC 12-5-59(b)(1) requires that "vegetative cover shall be capable of stabilizing the soil surface from erosion."
29. An examination of the exhibits shows that no one introduced Part IV (b)(5) of the S-2 permit into evidence.
30. Since the DNR bears the burden of persuasion in an enforcement action, the administrative law judge cannot find a violation of permit conditions unless the permit conditions are introduced into evidence, so if part two of the NOV is affirmed, it must be because of a violation of 310 IAC 12-5-12.1(e)(iii) or 310 IAC 12-5-59(b)(11).
31. The testimony of both parties leads quickly to the conclusion that the violation areas involve topsoil replaced after active mining had ceased and that several areas had exposed topsoil and gullies.
32. The mine's basic contention is that the extremely wet conditions present at the time of the violation and several weeks before the violation was written prohibited most constructive tasks. In fact, the mine's contention that driving large vehicles over the revegetated areas in order to reach the barren areas would do more harm to the topsoil than good is probably correct.
33. The basic elements of the violation as written, however, are not based on the failure of the mine to correct erosion problems. 310 IAC 12-5-12.1(e)(iii) requires that the vegetative cover be adequate to stabilize and protect the redistributed topsoil.
34. These rules do not refer to repair and revegetation of bare areas. See 310 IAC 12-5-56.1 for regrading, reseeding, and replanting duties. They refer to the initial redistribution and revegetation done long before the NOV was written.
35. From the testimony (or lack thereof) about the redistribution of the topsoil, it is impossible for the administrative law judge to find that it was improperly distributed. It is clear from the testimony, however, that it was not revegetated in such a way to stabilize the soil surface from erosion.
36. While it is not a requirement that every square inch of land be revegetated, the testimony of the inspector and the inspection reports show significant failures of the vegetative cover in multiple locations in violation of 310 IAC 12-5-59(b)(1).
37. Part two of the NOV should be affirmed.
FOOTNOTE
1. Unless a permit area is completely fenced, any point on the boundary would technically become a point of access as a hiker could enter the permit area there. It is not the intent of 310 IAC 12-5-6(a) to require signs at every conceivable place a person could enter the permit area; only at those intended to be access sites or that lock like access sites.