CADDNAR


[CITE: Amax Coal Company v. DNR, 2 CADDNAR 55 (1985)]

 

[VOLUME 2, PAGE 55]

 

Cause #: 84-269R

Caption: Amax Coal Company v. DNR
Administrative Law Judge: Shadley
Attorneys: Cassady; Spicker, DAG
Date: August 6, 1985

ORDER

 

Notice of Violation #N41016-S-00040 is vacated.

FINDINGS OF FACT

 

1. The Director of the Department of Natural Resources (the "Director") is included in the definition of "agency" as used in IC 4-22-1-2 and is duly empowered to conduct administrative hearings pursuant to IC 4-22-1.

 

2. The Director has jurisdiction over the subject matter and parties to this action.

 

3. By petition dated October 29, 1984 AMAX Coal Company "AMAX") requested a hearing to review issuance of Notice of Violation #N41016-S-00040.

 

4. AMAX holds permit #S-00040 to conduct surface coal mining operations in Sullivan County pursuant to IC 13-4.1 and 310 IAC 12.

 

5. During the summer of 1983 AMAX removed topsoil from an area permitted under permit S-00040 in preparation for mining.

 

6. The upper drainage was diverted around the permitted area north then east and the runoff from the permitted area
was diverted south along the highwall and then east through basin 014 and off the permitted area.

 

7. As the pit advanced west, AMAX was unable to continue to divert the runoff from the permitted area around the highwall south, so it built basin 018 to collect runoff from the northwest corner of the permit area which consisted of roughly 20 acres.

 

8. Water entered basin 018 through designed inlets, by overland flow and by being pumped from the pit into the basin.

 

9. For design purposes, the primary source of water into basin 018 was pit pumpage.

 

10. Basin 018 was build in a low spot or swale. The embankment which served as the dam was located on the east end of the impoundment and the discharge point or spillway was located on the opposite or west end of the impoundment at a low spot along the upper diversion ditch.

 

11. The material that had been deposited along the upper diversion ditch was graded to force the water to exit basin 018 through the discharge point or spillway. This material is referred to as the west embankment of basin 018.

 

12. The monthly water monitoring reports indicate that basin 018's effluent was in compliance from the time it began discharging in the fall of 1983 through October 16, 1984, with the exception of one sample taken in July 19884 which exceeded the total suspended solids limit by 22 m/l.

 

13. On October 15, 1984, AMAX used a D-9 dozer to place a power cable along the west embankment of basin 018 and in the process left dozer tracks on the embankment and in the spillway, partially filled two collection ditches located on either side of the west embankment and damaged some existing vegetation.

 

14. It was necessary for AMAX to place the capable at this location in order to supply electricity to the dragline.

 

15. Around September 1984 Inspector Hess requested AMAX vegetate and mulch an area on the south side of basin 018.

 

16. On October 16, 1984 Inspector Hess, an authorized representative of the Director, inspected permit S-00040 and issued Notice of Violation #N41016-S-00040 to AMAX for failure to maintain siltation structure 018 ("basin 018") in Violation 310 IAC 12-5-21 and 310 IAC 12-5-24.

 

17. The location of violation was listed as the spillway crossing, the diversion ditch inlets, the embankment surface and the south bank and affected slope into the basin.

 

18. 310 IAC 12-5-21 contains the general requirements for siltation structures. Subsection (c) requires that siltation structures be designed, constructed and maintained to prevent short circuiting to the extent possible.

 

19. Basin 018 is a temporary

 

[VOLUME 2, PAGE 56]

 

impoundment which will be removed when the area is mined through.

 

20. 310 IAC 12-5-24 contains the requirements for temporary impoundments. Subsection (g) requires that the dams and embankments of the impoundment be routinely maintained, and that ditches and spillways be cleaned. Subsection (e) requires that all embankments of temporary impoundments, and surrounding areas and diversion ditches disturbed or created by construction, be graded, fertilized, seeded and mulched to comply with the requirements of 310 IAC 12-5-59 thru 310 IAC 12-5-65 after the embankment is completed.

 

21. A Notice of Violation for failure to maintain a siltation structure in violation of 310 IAC 12-5-21 and 310 IAC 12-5-24 is appropriate where the failure is such that it either has caused or if it continues could cause the structure to short circuit, where it 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 operating order or repair.[FOOTNOTE i]

 

22. Short circuiting is defined as a process which transports sediment through a pond in less than the detention time required for sediment to settle out.[FOOTNOTE ii]

 

23. AMAX's placing of the cable alongside basin 018 and the resulting physical impacts at locations 1, 2 and 3 could cause additional sedimentation; however, no testimony was introduced to support a finding that such additional sedimentation could cause the basin to short circuit.[FOOTNOTE iii]

 

24. AMAX did not fail to maintain basin 018 at location 1, 2 and 3 to prevent short circuiting to the extent possible.

 

25. 310 IAC 12-5-24(e) required surrounding areas which have been disturbed or created by construction of the sediment basin to be vegetated.

 

26. Location 4 in the Notice of Violation was not disturbed or created by construction of basin 018.

 

27. AMAX did not violate 310 IAC 12-5-24(e) at location #4.

 

FOOTNOTES

i.
This standard only addresses the first 3 or the 4 listed locations in the Notice of Violation. The Division indicated and AMAX understood that the 4th location was written after AMAX had been notified it should seed the area and requires surrounding areas to be graded, fertilized, seeded and mulched applies to this location.

 

ii. See Preamble to the Federal Rules at 44 FR 15164 (March 13, 1979.)

 

iii. In fact the testimony concerning this issue would indicate it is unlikely that runoff from these a disturbed areas would cause the basin to short circuit since the primary factor considered for design purposes was pit pumpage, and on the day the Notice of Violation was written, the discharge was in compliance with the effluent limitiations.