[CITE: Spencer Coal Corp., v.
DNR, DOR, 4 CADDNAR 57 (1987)]
[VOLUME 4, PAGE 57]
Cause #: 86-032R
Caption: Spencer Coal Corp.,
v. DNR, DOR
Administrative Law Judge: Lucas
Attorneys: Gray; Szostek, DAG
Date: October 28, 1987
ORDER
Notice
of Violation N60219-S-00182 is vacated.
FINDINGS OF FACT
1. The
Department of Natural Resources (the "Department") is an agency as
the term is defined under IC 4-22-1. The Director of the Department (the
"Director") is the ultimate authority for the Department with respect
to the subject matter of this administrative action.
2.
The Director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department in accordance with IC
13-4.1-2-2(c).
3.
Richard Montgomery, an authorized representative of the Director, on February
19, 1986 issued Notice of Violation N60219-S-00182 (the "NOV")
against Spencer Coal Corporation ("Spencer") with respect to the
Alford Pit, Permit S-00182 (the "permit").
4.
The NOV alleged a failure by Spencer "to remove topsoil prior to any
mining activity" in violation of 310 IAC 12-5-12.1(a). The location of the
violation was described as the "area in and around basin A-3," a
temporary water impoundment.
5.
310 IAC 12-5-12.1 (a) provides as follows:
(a)
Removal. All topsoil shall be removed as a separate layer from the area to be
disturbed, and segregated.
(1)
Where the topsoil is of insufficient quantity or of poor quality to sustain
vegetation, the material approved by the commission or by the director as a
topsoil substitute or supplement in accordance with paragraph of this rule
shall be removed separately from the area to be disturbed, and segregated.
(2)
If the topsoil is less than six inches (6") thick, the permittee
may remove the topsoil and the unconsolidated materials immediately below the
topsoil to t total depth of six inches (6") and treat the mixture as
topsoil.
(3)
Topsoil need not be removed:
(i) at sites disturbed only by power poles, signs, fence
posts, electrical substations, transformers and switch boxes, explosives
magazines, temporary buildings on skids, topsoil stockpiles, culvert
installations, cable routes, cable storage areas, power line cable suspension
towers or "horses", pumps, pump hoses and pipelines; and
(ii)
with the Director's approval, for minor disturbances
which will not permanently destroy the existing vegetation and will not cause
erosion.
6.
Basin A-3 is located in a natural draw--a low area. Part of the low area is
swampy. Basin A-3 and the area in and around Basin A-3 is the "subject
area."
7.
The subject area was flooded by Spencer prior to the inspection by Montgomery
on February 19, 1986.
8.
Grubbing was performed on the area adjacent to Basin A-3, and the topsoil had
been removed.
9.
"Grubbing" means the process of removing vegetative cover.[FOOTNOTE 1]
10. Montgomery
observed brush and tree stumps within the subject area at the water's edge.
11.
Montgomery issued the NOV under the mistaken belief that the topsoil was not
previously removed from the subject area.
12.
No alternate materials plan had been submitted by Spencer prior to the
flooding.
13.
As part of the abatement requirements of the NOV, Spencer salvaged the topsoil
around the impoundment and submitted an alternate materials plan.
14.
The NOV was terminated by the Division of Reclamation of the Department.
15.
There is no disputed issue as to a material fact in this administrative action.
16.
The facts do not support issuance of the NOV.
17.
The NOV should be vacated.
FOOTNOTE
1. Nerco Coal v. DNR, 4 Caddnar
24 (May 22, 1987)