[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
[VOLUME 3, PAGE 17]
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.