[CITE: Abbott Coal and Energy Company v. DNR, 2 CADDNAR 1 (1984)]
[VOLUME 2, PAGE 1]
Cause #: 84-003R
Caption: Abbott Coal and
Energy Company v. DNR
Administrative Law Judge: Lucas
Attorneys: Goldman, pro se; Spicker, DAG
Date: May 15, 1984
ORDER
Notice
of Violation N 3112378-160 is modified to provide Abbott Coal & Energy
Company until climatic conditions permit in which to extend by thirty (30) feet
the earthen dam for its siltation structure, but to a date not later than forth
five (45) days after issuance of the Notice of Violation. NOV #N31123-78-160
having been abated before the compliance deadline as modified, Cessation Order
#C31221-78-160 is vacated.
FINDINGS OF FACT
1.
The petitioner, Abbott Coal and Energy Company ("Abbott"), is a
general partnership between Robert Goldman and William B. Gladstone.
2.
The address for Abbott is PO Box 229, Huntingburg, Indiana 47542-0299.
3.
The Director of the Department is included in the definition of agency as used
in IC 4-22-1-2 and has jurisdiction over the subject matter and parties to this
administrative action.
4.
The Director may delegate powers and duties assigned to him under IC 13-4.1 to
employees of the Department.
5.
On September 18, 1978, the Department issued to Abbott a Permit to Engage in
Surface Mining (Permit 78-160), ultimately permitting 6.0 acres in Pike County,
Indiana, effective August 28, 1978 and ending August 27, 1979. The permit was
extended through the period at issue.
6.
Issuance of the permit was conditioned upon compliance with a written plan of
reclamation submitted by Abbott and approved by the Department. To control
erosion and sedimentation resulting from the mining operation, Abbott, in the
plan of reclamation, agreed to use "sedimentation basins."
7. A
siltation structure was utilized by Abbott on the Southeastern corner of the
permitted area.
8.
Greg Smith, an authorized representative of the Director, inspected the
permitted area on November 23, 1983. Smith observed what he deemed a
"failure to properly maintain the sediment control structure so as to
prevent additional contributions of suspended solids to streamflow
or runoff outside the permit area."
9.
Almost all runoff which entered the siltation structure originated within the
affected area of the permit.
10.
Smith secured a single fluid sample immediately downstream from the siltation
structure. The sample was tested by the Supervisor of Chemists, Indiana State
Board of Health, and found to contain 140 milligrams per liter of suspended
solids. To satisfy quality standards, water shall not contain in excess of 70
milligrams of suspended solids per liter.
11.
As a result of the inspection, Smith then issued Notice of Violation
#N31123-78-160 and required Abbott to perform the following actions by December
21, 1983 at 8:00 a.m.:
A.
Reconstruct the sediment basin; and
B.
Submit certification and "as built" design plans through a licensed
engineer.
12.
Within one week of issuance of NOV #N3112378-160, Smith told Goldman the
earthen dam which formed the siltation structure was inadequate to maintain a
settlement pond. A fluid discharge pipe had been placed at an elevation through
the earthen dam which was too high for proper operation with the result that
particulate-laden fluid by-passed the structure. Smith orally advised Goldman
that to satisfy the NOV, the dam should be extended thirty (30) feet.
13.
Abbott took no remedial action with respect to NOV #N31123-78-160, nor did he
request an extension of time for compliance, prior to the deadline of December
21, 1983. On that date, Greg Smith issued Cessation Order C#3122178-160 for the
failure by Abbott to abate the NOV.
14.
In December 1983, Pike County experienced extremely cold temperatures. Record
low temperatures were established throughout Indiana. For the weeks immediately
preceding the NOV deadline, mining and reclamation activities by Abbott were
impracticable or impossible.
15.
The ground surface of the permitted area and water contained in the siltation
structure were frozen from early December 1983 until the first weeks of January
1984. No water was observed being discharged from the siltation structure
during this period, and no environmental harm was shown to result from the
violation described by NOV #N3112378-160.
[VOLUME 2, PAGE 2]
Provision
is made under IC 13-4.1-8-1 (10)(c) for
"siltation structures." The Department inspector references
"sediment control structures." For the purposes of these findings,
the terms "sedimentation basins", "siltation structures and
"sediment control structures" are considered to be synonymous. The
1978 plan of reclamation did not include design specifications for a siltation
structure, and standards were not then mandated by statute or by the
Department. No finding is made whether a permittee
could have been required to submit certified engineering plans for siltation
structures before surface mining operations under the interim program. Plans
were not required of Abbott prior to issuance of NOV #N3112378-160, nor has the
Department presented evidence to suggest certified plans were required of
interim program permittees generally. That Smith orally
advised Goldman he could satisfy the NOV by extending the dam thirty feet
suggests the Department did not view seriously the requirement of certified
plans. For the purposes of NOV #N3112378-160, a modification of the siltation
structure in accordance with Smith's general oral instructions is deemed
substantial compliance with his requirement for design plans certified by a
licensed professional engineer. A showing of environmental harm is generally
unnecessary to establish the violation of IC 13-4.1 or 310 IAC 12. Peabody Coal Company v.
Department of Natural Resources (83-096R). The absence of
environmental harm may be considered in determining whether sanctions should be
imposed against a permittee.