Part 1 of Notice of Violation N30628-S-92 is affirmed. Part 2 of Notice of Violation N30628-S-92 is vacated.
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 regulation of surface coal mining operations in Indiana.
4. At all times relevant to these proceedings, Green Construction of Indiana, Inc. ("Green") held surface coal mining permit S-92 issued by the DNR which allowed the mining of coal at the Lengacher Mine in Daviess County, Indiana.
5. on June 28, 1993, an authorized representative of the DNR issued notice of violation N30628-S-92 ("NOV'') to Green. The NOV consisted of two parts.
6. On July 14, 1993, Green filed a timely petition for administrative review on both parts of the NOV.
7. Since the matter at issue here is an enforcement action brought under IC 13-4.1 and 310 IAC 12, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
8. Part 1 of the NOV was written for a violation of 310 IAC 12-5-12.1(e)(iii) and 310 IAC 12-5-56.1(a) and involved the failure to protect topsoil from erosion.
9. 310 IAC 12-512.1(e)(iii) requires removed topsoil to be redistributed in such a manner as "protects the materials from wind and water erosion before and after seeding and planting."
10. 310 IAC 12-5-56.1(a) requires that "all exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion."
11. The inspector cited two areas of concern and simply required mulching and seeding of the two areas to abate the violation.
12. Both the testimony of the inspector and the photographs he took (exhibits F(l) through F(3)) establish the fact that the areas in question are
sparsely vegetated and unmulched. Noticeable gullies are forming in the area shown on exhibit F(2).
13. The mine does not contend that the areas in question needed repair or that prior inspection reports had not called these problems to Green. See Exhibits B and C.
14. The mine's primary contention is that the wet conditions prevented the work from being done and that upon discussing this fact with the inspector prior to the issuance of the NOV, the inspector agreed to a repair deadline of July 15, 1993. See Exhibits D and E.
15. An examination of Exhibit D shows that while there may have been confusion about filling gullies by July 15, 1993, there is clear, unambiguous language requiring stabilization of gullies and mulching sparsely vegetated areas by May 22.
16. While it may have been more convenient for the mine to wait until it was dry enough to bring in heavy equipment to work on a number of projects, seeding and mulching sparse and barren areas could have been accomplished before this time:
17. The inspector testified that he had no trouble reaching the areas shown in F(l) through F(3) by pick-up truck.
18. It was not an unreasonable burden to the mine to seed and mulch these areas as required by rule prior to the issuance of the NOV.
19. Without question, Green failed to protect and stabilize exposed surface areas to effectiviely control erosion thus 310 IAC 12-5-56.1 was violated.
20. Also, it appears that the topsoil was not redistributed so as to protect it from water erosion in violation of 310 IAC 12-5-12.1.
21. Part 1 of the NOV should be affirmed.
22. Part 2 of the NOV was written for failure to
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properly dispose of non-coal waste in violation of 310 IAC 12-5-47(b).
23. 310 IAC 12-5-47(b) requires non coal waste to " . . . be routinely compacted and covered to prevent combustion and wind-born waste. When the disposal is completed a minimum of two feet of soil cover."
24. During the course of the June inspection, the inspector noticed a number of rocks (overburden and riprap) on the surface of the ground recently reclaimed from a sediment pond.
25. Exhibits 4, 5, F(6), and F(7) are pictures of the rock.
26. The inspector testified that since the rocks were not covered by two feet of soil material, vegetation of this area could not proceed so he wrote the violation.
27. The violation was abated by placing the rocks on spoil at an abandoned area.
28. The mine does not contend that the rocks did not need to be moved in order to meet reclamation standards. The mine does contend, however, that rocks which originated within the permit area are not "non-coal waste" and thus not required to be covered by 24 inches of soil.
29. Compacting rocks does not make a lot of sense.
30. Likewise, rocks are not prone to combustion or wind-born waste.
31. Rocks do not create environmental hazards. Infact, surface rocks can be an asset in reclaiming areas designated as wildlife areas and rocks are often used for rip rap in ponds and ditches.
32. 310 IAC 12-5-47 would appear not to include rocks within the meaning of "non-coal waste", thus burying the rocks is not an absolute requirement.
33. The NOV was not written for anything other than violating the coal waste rule.
34. Part 2 of the NOV should be vacated.