[CITE: Foertsch Construction Co., Inc. v. DNR, 3 CADDNAR 20 (1986)]
[VOLUME 3, PAGE 20]
Cause #: 85-036L
Caption: Foertsch
Construction Co., Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Hargis; Szostek, DAG
Date: April 4, 1986
ORDER
Notice
of Violation #N50129-S-00055 is modified to delete under provision violated 310
IAC 12-5-24(g). Notice of Violation #N50129-S-00055, as modified herein, is
affirmed.[FOOTNOTE 4]
FINDINGS OF FACT
1.
On February 4, 1985, Foertsch Construction Co., Inc.
("Foertsch") requested review of Notice of
Violation #N50129-S-00055.
2.
IC 4-22-1 and IC 13-4.1-11-8 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 the
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 IC 13-4.1, IC 4-22-1 and
310 IAC 0.5.
7. Foertsch holds permit S-00055 to conduct surface coal
mining operations in Daviess County at its Little Sandy #3 Mine.
8.
On January 29, 1985, an authorized representative of the Director cited Foertsch with Notice of Violation #N50129-S-00055 which was
issued on site on that day.
9.
Notice of Violation #N50129-S-00055 cited Foertsch for
failure to maintain and protect sediment basin and diversions from erosion, in
violation of 310 IAC 12-5-24(d), (e) and (g) at all diversions, inlets and side
slopes of Basin #1 and Basin #3, the emergency spillway channel and the primary
spillpipe outfall of Basin #3.
10.
The Notice of Violation required Foertsch
(1)
temporarily install and maintain straw bale energy dissipaters at regular
intervals of 50 to 100 feet, in all diversions entering Basins #1 and #3, and
pack gullies in side slopes of Basin #1 with straw bales;
(2)
mulch side slopes of emergency spillway of Basin #3 and side slopes of
diversions entering Basins #1 and #3 where soil materials has been either
placed or unremoved;
(3)
riprap primary spillpipe outfall of Basin #2;
(4) regrade inlets to Basins #1 and #3, side slopes of Basin #1
and riprap the last 75 feet of each inlet entering each basin, regrade emergency spill channel of Basin #3, seed and mulch
all unprotected areas, seed all areas which have previously been mulched and
install riprap check dams in diversions entering Basin #3 at regular intervals
to prevent erosion.
11.
The time frame set for abatement was February 26, 1985 for items (1), (2), and
(3), and April 29, for item (4).
12.
310 IAC 12-5-24 contains the performance standards and design requirements for
permanent and temporary impoundments.
13.
310 IAC 12-5-24(d) requires slope protection be provided to minimize erosion.
14. 310 IAC 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 is completed, provided that
the active upstream face of the embankment where water will be impounded may be
rip rapped or otherwise stabilized. Areas in which the vegetation is not
successful or where
[VOLUME 12, PAGE 21]
rills
and gullies develop shall be repaired and revegetated
to comply with requirements of 310 IAC 12-5-57 and 310 IAC 112-5-59 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 topsoiled 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, other than material such as mulch or dry
vegetation used for surface stability, shall be removed and all other
appropriate maintenance procedures followed.
18.
Basins #1 and #3 are used to retain water.
19. 310
IAC 12-1-3 defines in impoundment as a closed basin, naturally formed or
artificially built, which is dammed or excavated for the retention of water,
sediment or waste.
20.
Basins #1 and #3 are either temporary or permanent impoundments subject to the
requirements of 310 IAC 12-5-24.
21.
A diversion, identified by the parties as the eastern diversion, was not
constructed as a diversion by Foertsch, but was an
area used to direct water into the basin by having water flow at a low point
between stockpiled shale and into a basin.
22.
The eastern diversion is a man made structure to divert water from one area to
another.
24.
[Misnumbered in Original Findings of Fact] This eastern diversion is a diversion ditch disturbed or
created by the construction of a temporary or permanent impoundment, as defined
by 310 IAC 12-1-3.
25.
The eastern diversion had ungraded, unvegetated
slopes, which were composed of shale and in which rills and gullies had
developed.
26.
A diversion identified by the parties as the southeast diversion was
constructed by Foertsch with a backhoe, resulting in
it having nearly vertical slopes, which had not been graded or vegetated and
which were composed of shale. This diversion fed into Basin #3, and the sides
of the diversion were eroded evidenced by rills and gullies.
27.
Lack of vegetation on and failure to grade the side slopes of a diversion
disturbed or created by the construction of a permanent or temporary
impoundment is a violation of 310 IAC 12-5-24(e).[FOOTNOTE 1]
28.
The southern inlet to Basin #1 was two to three feet deep, with unvegetated side slopes, parts of which had sloughed onto
the bottom of the drainage was. The inlet was composed of spoil.
29.
The northern inlet into Basin #1 had unvegetated side
slopes, composed of spoil material, which had eroded.
30.
The inlet to Basin #3 was eroded.
31.
The emergency spillway channel to Basin #3 was eroding, did not have sufficient
vegetative cover and insufficient slopes.
32.
The primary spillpipe outfall of Basin #3 did have
some rip rap, but was eroding.
33.
The inlet into a permanent or temporary impoundment, the emergency spillway
channel and the primary spillpipe outfall are areas
surrounding a permanent or temporary impoundment.
34. Lack
of vegetation on and failure to grade the slopes of an inlet into a permanent
or temporary impoundment and emergency spillway channel is a violation of 310
IAC 12-5-24 (e).[FOOTNOTE 2]
35.
Evidence of erosion occurring at the location of the outfall from a primary spillpipe is proof of a violation of 310 IAC 12-5-24(e).
36.
The side slopes or embankment of Basin #1 was composed of shale, was not
vegetated and had evidence of erosion in the form of gullies which had
developed.
37.
The side slopes or embankment of Basin #3 was composed of spoil material, was
not vegetated and had evidence of erosion in the form of gullies.
38. Evidence of gullies and loss of material
on an unvegetated slope is unprotected from erosion.
39.
Failure to protect the slopes on the embankments of a temporary or permanent
impoundment to minimize erosion is a violation of 310 IAC 12-5-24(d) and 310
IAC 12-5-24(e).
40. Foertsch violated 310 IAC 12-5-24(d) and 310 IAC 12-5-24(e)
at the diversions into Basin #1 and #3, at the inlets to Basin #1 and #3, at
the emergency spillway channel of Basin #3 and at the primary spillpipe outfall of Basin #3.
FOOTNOTES:
1.
Foertsch argues that because the material from which the diversions were
constructed was spoil or non-prime farmland subsoil, the requirement to revegetate should not apply. They argue the requirements in
310 IAC 12-55-59 through 310 IAC 12-5-65 should only apply when reclaiming the
area to its approved post mining land use. 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.
This is a different requirement than the requirement for final reclamation to
the approved post mining land use. The purpose of this requirement is to limit
water pollution resulting from the active mining operation, primarily by
preventing the impoundment from receiving contaminated water further
[VOLUME 3, PAGE 22]
contaminated by erosion of the diversion
bringing water to the impoundment. The post mining land use requirements are
designed to return the mined land back to a state of being capable of
supporting the uses is was capable of supporting prior to mining of the land.
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, and when there appears to be a conflict between two rules the
rules are to be constructed together to give effect to both rules. To do so in
this case results in a conclusion that the surrounding areas and diversions
into a temporary or permanent impoundment are to be vegetated during the mining
phase, not just during final reclamation and when part of the post mining land
use. Additionally the Department introduced a copy of the portion of permit
S-00055 related to diversions. The mining and reclamation plan provided that
the top and side slopes of diversions would be seeded to establish sufficient
ground cover to prevent erosion (see Respondent's Exhibit 19). Foertsch's witness, who had written the plan for Foertsch, indicated he included this provision because it
was required in order to have the permit application approved by the Natural
Resources Commission. If such a provision was necessary in order to be granted
approval for a permit to mine, obviously it is a provision which the Commission
intended be complied with. Although this Notice of
Violation was not issued for a violation of the permit, it could have been.
Since the mining and reclamation plan is mandated by law, this evidence is
persuasive that the top and sides of diversions are to be vegetated. It is
obvious that both parties to this proceeding understood this to be a condition
precedent to being able to obtain a permit to mine in Indiana, and as such,
this condition should be complied with.
2.
See Footnote 1.
3.
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 is 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 operation or repair. In this cause, the
evidence was given to conclude that if the violation continued, it was likely
that a violation of the effluent limitation would result.
4. 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.