[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.