(1) the Division of Reclamation, Department of Natural Resources, specifies to Dyer adjusted abatement actions or schedules which will promote current sound environmental practices; or
(2) a further order is entered by the Administrative Law Judge relative to abatement in this proceeding or in Administrative Cause No. 90-313R.
FINDINGS OF FACT
1. Notice of Violation 01016-S-00036 (the "NOV'') was issued by Timothy A. Corn, an authorized representative of the director of the department of natural resources, on October 16, 1990.
2. The NOV was written against the activities of Dyer Enterprises, Inc., or its agents, ("Dyer") with respect to mining and reclamation activities at the Knepp #1 Mine, Permit S00036, a surface coal mining activity properly permitted by the department of natural resources (the "Department") under IC 13-4.1 and 310 IAC 12 ("Indiana SMCRA").
3. More particularly, the NOV was written for four (4) separate sites within Knepp #1 Mine. All of these sites are the subject of administrative review as to the merits of the NOV, pursuant to a written request for review by Dyer dated October 22, 1990.
4. As agreed and stipulated by the parties during a preheating conference held on November 7, 1990, only the first three (3) sites listed in the NOV are the subject of a request for temporary relief. As memorialized in a "Report of Prehearing Conference and Notice of Hearing" dated November 7, 1990: "The NOV specifies action to be taken at four sites, and Dyer Enterprises has taken administrative review with respect to each site. However, [according to Dyer] the required abatement action has already been taken by Dyer at the fourth site (Amos Knepp property); and, as a result, temporary relief applies only to the first three sites."
5. A hearing on temporary relief was held as scheduled in this proceeding on November 14, 1990 in the Daviess County Courthouse, Washington, Indiana. Temporary relief is granted in this proceeding pursuant to evidence received during that hearing and the pleadings received and filed.
6. The burden of persuasion to establish entitlement to temporary relief rests with Dyer. IC 13-4.1-11-8 and IC 4-21.5-4. That burden has been met for some aspects of the NOV as here set forth.
7. "Area 1" of the NOV is the south inward slope of basin four. The evidence indicates that roughly one third of the south inward slope, an area less than 0.1 acre, is almost devoid of vegetative cover. The landowner's livestock (nine horses and eight cattle) have trampled this area in accessing basin four and have congregated here during periods of summer heat. The absence of vegetation has also probably resulted in some water erosion.
8. More likely than not, Area 1 was in violation of Indiana SMCRA as set forth in the NOV, with violations of 310 IAC 12-5-59, 310 IAC 12-556.1, and 31 IAC 12-5-24 in evidence. More likely than not, the issuance of the NOV as to Area 1 would be affirmed during a final hearing on its merits.
9. However, the abatement specified in Area 1 was not appropriate upon the deadline, November 14, 1990, specified in the NOV. Testimony offered by the Department druing the hearing on temporary relief was that the last day on which reseeding could be appropriately undertaken in Daviess County, Indiana, was November 10, 1990. To disk and reseed after November 10, 1990 could be expected to aggravate the potential for environmental harm to the land or water resources.
10. The abatement required for Area 1 should be modified to provide a procedure which is the most environmentally sound in mid-November 1990.[FOOTNOTE *]
11. "Area 2" of the NOV is located within the northeast half of the northeast quarter of the Ben Knepp property. Rills not exceeding nine inches have
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developed along furrows constructed to provide agricultural drainage. The required abatement is to "fill, grade, or otherwise stabilize" these rills. Dyer has not satisfied the burden of persuasion necessitated for a grant of temporary relief from this aspect of the NOV; and temporary relief should be denied. The abatement date of November 14, as modified during the hearing on temporary relief to November 20, 1990 at 8:00 a.m., EST, should be affirmed.
12. "Area 3" of the NOV is the southwest half of the northeast quarter of the Ben Knepp property. Formerly, this area was covered with alfalfa; but, according to testimony offered by Dyer, the alfalfa was killed by a late spring frost. Subsequently, the landowner has disked and plowed the area. Currently, the area is dominated by species which do not meet vegetative cover requirements, including foxtail, smartweed, Johnson grass, and barnyard grass.
13. More likely than not, Area 3 is in violation of Indiana SMCRA and the permit as set forth in the NOV. As with Area 1, however, the abatement must be modified to pose requirements which are currently the most environmentally sound.
FOOTNOTE
*The preferable alternative would have been for Dyer to perform the specified abatement before November 10, 1990, but the terms of the NOV authorized the procedure as late as November 14. If the November 10, 1990 deadline for reseeding is a flexible date, that flexibility was not reflected in testimony received during the hearing on temporary relief.
If November 10, 1990 were the absolute final date upon which the stated abatement could be properly performed, then the NOV should have reflected that date and its critical nature. Any hearing to consider temporary relief would then be scheduled so that abatement could yet be performed in a timely manner, if temporary relief were to be denied.
The abatement required by an NOV should not tie a Gordian knot. The evidence presented indicates that after November 10, to disk and reseed Area 1 would be untimely. Presumably, from that date forward, Dyer acts wrongly if it performs the required abatement. On the other hand, if Dyer does not perform the required abatement, the issuance of a cessation order is inevitable under Indiana SMCRA.
The task of the Department must not be to fashion another option for abatement--one which is currently viable from an environmental perspective. If the best alternative is awaiting the spring season far reseeding, then the abatement should be modified accordingly. If there is some interim step which can minimize difficulties for the winter months, then that step may be imposed upon the miner.
Ideally, an abatement standard can be achieved following communications among the Department, Dyer, and the landowner (Ben Knepp). If those communications fail, however, the responsibility for devising a present and environmentally sound abatement falls to the Department; and the responsibility for meeting the requirements of Indiana SMCRA falls squarely upon Dyer. Dyer's responsibility is not modified because the effect may be to inconvenience the immediate farming needs of the landowner.