Part 2 of Notice of Violation N30927-S-273T is hereby affirmed.
Part 3 of Notice of Violation N30927-S-273T is hereby affirmed.
Cessation Order C31227-S-273T is hereby affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency responsible for the regulation of surface coal mining operations.
3. IC 4-21.5, IC 13-4.1, 1 and 310 IAC 12 apply to these proceedings.
4. At all times relevant to these proceedings, Northern Coal Company ("Northern") conducted a surface coal mining operation under a contract with Pyramid Mining Company at the Britton Mine in Knox County, Indiana ("mine") pursuant to permit S-273-T issued by the DNR.
5. On September 27, 1993, during a routine inspection of the mine, a duly authorized representative of the DNR issued a three part notice of violation ("NOV") for violations of the surface coal mining act.
6. On October 19, 1993, the mine filed a timely petition for administrative review of parts two and three of the NOV.
7. On December 27, 1993, during a compliance inspection of the mine site, the same authorized representative of the DNR issued a cessation order ("CO") to the mine for failing to abate violation number three of the NOV.
8. On January 7, 1994, the mine filed a timely petition for administrative review of the CO.
9. No petition for review was filed with respect to violation one of three of the NOV so it is not in issue here.
10. Violation two of three was written for failing to remove topsoil prior to disturbing the area in violation of 310 IAC 12-5-12.1(a) and 310 IAC 12-3-4; condition of permit part IV, section B(5).
11. The inspector wrote part 2 of the NOV because he observed surface drainage from a reclaimed area draining across unremoved topsoil into an open pit.
12. 310 IAC 12-5-12.1(a) requires in part that "All topsoil shall be removed as a separate layer from the area to be disturbed, and segregated."
13. 310 IAC 12-3-4 requires a mine to conduct its operation in accordance with its approved permit.
14. Part 1 B(5) of the approved permit requires topsoil to be removed before any surface disturbance.
15. The mine did not dispute the observations of the inspector. It does contend, however, that the flow was directed by the culvert into a natural waterway/ditch which flowed through the undisturbed area.
16. The mine thus contends it was not required to remove the topsoil from the ditch.
17. The alleged violation was abated not by topsoil removal but by revising the mine's permit and mining plan to conform to existing field conditions. This revision was approved by the DNR.
18. To some degree, the mine is correct; however it is clear that mining was not being conducted according to the approved mining plan.
19. Intentionally directing surface drainage into an undisturbed area is a "disturbance" within the meaning of the surface mining act.
20. Had the permit or approved mining plan shown the low area as a drainage way, then prior approval would have been given to leaving the topsoil there. Until this method of drainage was approved, however, the mine had a duty not to direct surface drainage over topsoiled undisturbed areas.
21. Part 2 of the NOV should be affirmed.
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22. Part 3 of the NOV was written for failing to perform haul road maintenance in a violation of 310 IAC 12-5-69 and 310 IAC 12-3-4; condition of permit, Section O (3).
23. The NOV alleges that part of the haul road is eroding and causing the shale material on the road to spread into nearby area thus increasing the width of the road to an inaccessible width.
24. 310 IAC 12-5-69 requires the mine to ". . . ensure that the construction, maintenance, and post-mining conditions of access roads into and across the site of operations will control or prevent erosion. . . ."
25. Permit section O(3) requires that the mine "submit typical cross-section of each haul or access road showing the road width, berms, ditch installations. . . ."
26. In July and August of 1993, the inspector noticed a 3000 foot stretch of haul road which was eroding and not directing drainage to side ditches.
27. As of September 27, 1993, the problem with the road remained so the inspector wrote part 3 of the NOV.
28. The permit requires a width of 20 feet and parts of the haul road were 80 feet wide.
29. There was no crown to control drainage.
30. The mine admitted that this roadway was a problem in part because of terrain and in part because lack of use prevented compaction.
31. The evidence shows that the road was not maintained to a width of anywhere near the 20 feet required by the approved permit.
32. Part 3 of the NOV should be affirmed.
33. The first action taken by the mine to abate this part of NOV was to submit a permit revision which would allow the road to extend to a width of 80 feet in places.
34. This revision was approved by the DNR.
35. The mine also commenced work on grading and crowning the roadway.
36. Bad weather interfered with some of this roadway work.
37. On December 27,1 993 the inspector performed a compliance inspection and concluded that the roadway still did not conform to the permit revision.
38. At that time, the inspector wrote the CO for failing to timely abate part 3 of the NOV.
39. The inspector noted that while substantial work had been done, the roadway still did not meet the approved cross-section and did not have side ditches as required in the permit.
40. IC 13-4.1-11-4 requires that NOV's contain a reasonable amount of time not exceeding 90 days in which to abate the violation.
41. The NOV contained a 30 day abatement period which was later twice extended for 30 days each time.
42. The DNR could extend the abatement date further only upon application of the mine and for unusual circumstances. See 310 IAC 12-6-6.
43. No such request was made by the mine.
44. IC 13-4.1-11-5 specifies that if abatement of the NOV has not been completed within the time set for completion, ". . . the director shall order the cessation of surface coal mining. . . ."
45. Over 90 days after the NOV was issued, the roadway still did not meet the specifications of the approved permit.
46. No application for more time was made by the mine.
47. The CO was properly issued.
FOOTNOTE
1. Subsequently, IC 13-4.1 has been recodified into IC 14-24. Since all briefing was done pursuant to IC 13-4.1, these findings will reference IC 13-4.1 instead of IC 14-34.