[CITE: Rogers Group, Inc. v. DNR, DOR, 5 CADDNAR
147 (1990)]
[VOLUME 5, PAGE 147]
Cause #: 90-130R
Caption: Rogers Group, Inc.
v. DNR, DOR
Administrative Law Judge: Rider
Attorneys: Hartz, pro se; Law
Date: October 26, 1990
ORDER
Notice
of Violation N00425-S-00129 is affirmed.
FINDINGS OF FACT
1. On
May 9, 1990, Rogers Group, Inc. (Rogers) filed a request for review of Notice
of Violation (NOV) N00425-S-00129.
2.
On May 22, 1990, Rogers filed specific objections to the NOV.
3.
Rogers
holds permit S-00129 which allows it to conduct surface coal mining operations
at its Commercial Pit Mine in Daviess County.
4.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
5.
The natural resources
commission (the "Commission") is an agency as defined in IC
4-21.5-1-3 and is the ultimate authority with respect to this proceeding.
6.
Dan Luczynski of the division of reclamation (DOR)
wrote the NOV in question here on April 26, 1990.
7.
The NOV cites a failure to establish a diverse, effective and permanent
vegetative cover capable of supporting the approved postmining
land use.
8.
The provisions of law allegedly violated are 310 IAC 12-5-59(a) and (b), 62(a),
68(a)(1) and permit condition Part IV D(l) and (5).
9.
The area in question is the third drainage way (farthest south) that drains
into Basin #2.
10.
The sole issue raised by Rogers was whether or not the vegetative cover was
sufficient.
11.
For a vegetative cover to be sufficient under the Code, it must be
"diverse, effective and permanent."
12.
The key word in the Code in terms of this case is "diverse".
13.
Rogers admits that the only component in the vegetative cover is fescue.
14.
Webster's Seventh New Collegiate Dictionary defines the word
"diverse" as: "Differing from one another" or "having
various forms or qualities."
15.
The dictionary definition supports the testimony of Dave Kiehl,
chief of the bonding section of the DOR, in which he defined a "diverse
vegetative cover" as a combination of two or more species capable of
regenerating itself.
16.
It is clear that when 310 IAC 12-5-59 refers to a "diverse ... vegetative
cover" it requires two or more species.
17.
Rogers admits that only fescue is present at the site.
18. Therefore,
the requirements of 310 IAC 12-5-59 have not been met.