CADDNAR


[CITE: Foertsch Constr. Co., Inc. v. DNR, 3 CADDNAR 15 (1986)]

 

[VOLUME 3, PAGE 15

 

Cause #: 85-033R

Caption: Foertsch Constr. Co., Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Hargis; Szostek, DAG
Date: April 4, 1986


ORDER

 

Based upon the above Proposed Findings of Fact it is recommended that the Director adopt and approve the following order[FOOTNOTE 3]:

 

Notice of Violation #N50115-S-00057 is modified to delete under provisions violated 310 IAC 12-5-24 (g). Notice of Violation #N50115-S-00057, as modified by the Director's authorized representative on April 22, 1985, and modified herein is affirmed.

 

 

FINDINGS OF FACT

 

1. On January 31, 1985, Foertsch Construction Co., Inc. ("Foertsch") requested review of Notice of Violation #N50115-S-000573

 

2. IC 4-22-1 and IC 12-4.1-11-8 apply to this proceeding.

 

3. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-22-1. The Director is the ultimate authority of the Department with respect to proceedings to review Notices of Violation and Cessation Orders.

 

4. The Director has jurisdiction over the subject matter and the parties to this proceeding.

 

5. Notice of Hearing was given to: Mr. John A. Hargis, Attorney for Foertsch, Wagoner, Ayer & Hargis, 104 South Third Street, Rockport, Indiana 47635; Mr. Charles Bates, P.E., Foertsch Construction Co., Inc., PO Box 16, Lamar, Indiana 46580; Mr. Steven J. Szostek, Deputy Attorney General and Attorney for Department, 309 West Washington Street, Suite 201, Indianapolis, Indiana 46204; Mr. Wilbur Pershing, Daviess County Recorder, Courthouse, Washington, Indiana 47501.

 

6. On March 13, 1986 a hearing was conducted pursuant to 13-4.1, IC 4-22-1 and 310 IAC 0.5.

 

7. Foertsch holds permit S-00057 to conduct surface coal mining operations in Daviess County at its Little Sandy #1 Mine.

 

8. On January 15, 1985, an authorized representative of the Director cited Foertsch with Notice of Violation #N50115-S-00057 which was sent to Foertsch by Certified mail on January 17, 1986.

 

9. Notice of Violation #N50115-S-00057 cited Foertsch for failure to stabilize rills and gullies and failure to protect slopes of Basin #4 in violation of 310 IAC 12-5-57 and 310 IAC 12-5-24 (c), (e) and (g) at the area where drainage flows into basin #4 and the eastern slope of Basin #4 on Bond Segment A.

 

10. The Notice of Violation required Foertsch

 

(1) mulch the entire area and stake straw bales into rills and gullies and at fifty (50) foot intervals where drainage flows into Basin #4 by February 5, 1985;

(2) maintain temporary erosion control measures until such a time the rills and gullies can be filled in, regraded, mulched and seeded with implementation of rip rap energy dissipaters or dry dam by February 5, 1985; and,

(3) fill in and regrade rills and gullies formed by implementation or rip rap energy dissipaters or dry dam and seed and mulch where eroded, rip rap inlet to Basin by April 12, 1985.

 

11. The Notice of Violation to read failure to maintain and protect sediment basins and diversions from erosion and to delete the provisions violated 310 IAC 12-5-57.

 

12. 310 IAC 12-5-24 contains the performance standards and design requirements or permanent and temporary impoundments.

 

13. 310 IAC 12-5-24 (d) requires slope protection be provided to minimize erosion.

 

14. 310 12-5-24(e) requires all embankments to temporary and permanent impoundments and surrounding areas and diversion ditches disturbed or created by construction, shall be graded, fertilized, seeded and mulched to comply with the requirements of 310 IAC 12-5-59 through 310 IAC 12-5-65 after the embankment where water will be impounded may be riprapped or otherwise stabilized. Areas in which the vegetation is not successful or where rills and gullies develop shall be repaired and revegetated to comply with the requirements of 310 IAC 12-5-57 and 310 IAC 12-5-59 through 310 IAC 12-5-65.

 

15. 310 IAC 12-5-57, as it existed on January 15, 1985, required rills and gullies deeper than nine (9) inches which develop in regraded and topsoil areas and Which are not vegetated or otherwise stabilized to be filled, graded or otherwise stabilized.

 

16. 310 IAC 12-5-59 through 310 IAC 12-5-65 contain the performance standards for revegetation.

 

17. 310 IAC 12-5-24 (g) requires all dams and embankments shall be routinely maintained during the mining operations. Vegetation growth shall be cut where necessary to facilitate inspection and repairs. Ditches and spillways shall be cleaned. Any combustible materials present on the surface stability, shall be removed and all other

 

[VOLUME 3, PAGE 16]

 

appropriate maintenance procedures followed.

 

18. Basin #4 is temporary impoundment subject to the requirements of 310 IAC 12-5-24.

 

19. A diversion which ran east and west and fed into Basin #4 existed as a natural drainage way with a machine in order to allow water to flow in the direction of Basin #4.

 

20. The East West Diversion is diversion disturbed by the creation of Basin #4.

 

21. The East West Diversion was approximately three (3) feet deep, had nearly vertical side slopes, which were composed of unregulated subsoil, and which were not vegetated or otherwise stabilized. Material from the sides of the diversion had sloughed or eroded onto the bottom of the diversion. The eroded material would ultimately be broken down into clay particles and wash into Basin #4 as water was diverted through the diversion into Basin #4.

 

22. Water from the East West Diversion fed into Basin #4 through an inlet.

 

23. The inlet into Basin #4 was composed of unregulated spoil, had nearly vertically slopes which were not vegetated and which were unstable.  Material from the side slopes had eroded onto the bottom of the inlet.

 

24. The eastern slope of Basin #4 and the area where drainage flowed into Basin #4 was composed of unregulated spoil and subsoil in which gullies had formed. Subsoil from the eastern slope had eroded into Basin #4.

 

25. Evidence of gullies and loss of material is evidence of an unstable slope.

 

26. Lack of vegetation on and failure to grade the side slopes of a diversion disturbed by the construction of a temporary impoundment is a violation of 310 IAC 12-5-24(e).[FOOTNOTE 1]

 

27. The inlet into a temporary impoundment us an area surrounding a temporary impoundment.

 

28. Lack of vegetation on and failure to grade the slopes of an inlet into a temporary impoundment is a violation of 310 IAC 12-5-24 (e).

 

29. Lack of stable slopes on the embankments of a temporary impoundment is a violation of 310 IAC 12-5-24(d) and 310 IAC 12-5-24(e).

 

30. Foertsch violated 310 IAC 12-5-24(d) and 310 IAC 12-5-24(e) at the eastern slope of basin #4 and the area were drainage flowed into Basin #4.

 

31. The evidence submitted at hearing did not support a finding that Foertsch violated 310 IAC 12-5-24(g).[FOOTNOTE 2]

 

FOOTNOTES

 

1. Foertsch argues that because the material from which the diversion, inlet, and slope are constructed, unregulated spoil or subsoil, the requirements of revegetation in 310 IAC 12-5-59 through 310 IAC 12-5-65 should not apply since they are written to apply to p post mining land uses. I disagree. 310 IAC 12-5-24 clearly requires that after the embankment of a permanent or temporary impoundment is completed, the surrounding area and diversion ditches disturbed or created by the construction of the impoundment are to be fertilized, seeded and mulched. If the rule had only intended the area be vegetated as part of the post mining land use, the rule would not have included temporary impoundments within its purview. The rules of statutory construction, which also apply to the construction of agency rules, require that no provision be interpreted to be meaningless, when there appears to be a conflict between two rules, but that the rules be constructed together to give effort to both rules. To do so in this case results in a conclusion that the surrounding areas and diversions into a temporary impoundment are to be vegetated during the mining phase, not just during final reclamation and when part of the post mining land use.

 

2. The Director has previously established the elements of proof necessary to establish a violation of 310 IAC 12-5-24(g). In Amax Coal Company vs. Department of Natural Resources, Division of Reclamation, Administrative Cause No. 84-269R (NOV #N41016-S-00040) the Director held that a failure to maintain violation is appropriate where the failure is such that it either has caused or if it continues could cause the structure to short circuit, where it would have been possible to prevent the short circuiting, and the condition is being neglected or is the result of a failure on the part of the operator to take appropriate measures to keep the structure in good operating order or repair. In this cause the evidence submitted was that there was no violation of the

 

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effluent limitations at the impoundment and no evidence was given to conclude that is the condition continued, it was likely that a violation of the effluent limitation would result.

 

3. Foertsch did not challenge the required abatement action or the time frame set for abatement, so no consideration is given to that part of the Notice of Violation.