[CITE: Great Lakes Cl. Co. v.
DNR, 3 CADDNAR 31 (1986)]
[VOLUME 3, PAGE 31]
Cause #: 85-093R
Caption: Great Lakes Cl. Co.
v. DNR
Administrative Law Judge: Shadley
Attorneys: Young, pro se; Szostek, DAG
Date: January 16, 1986
ORDER
Notice
of Violation #N50409-81-40 is vacated.
FINDINGS OF FACT
1. On
April 17, 1985, Great Lakes Coal Company requested review of Notice of
Violation #N50409-81-40.
2.
IC 13-4.1 applies to this proceeding.
3.
The Department of Natural Resources is an agency as defined in to this
proceeding.
4.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
5.
Notice of Hearing was given to: Arthur and Spencer Young, Great Lakes Coal
Company, PO Box 617, Linton, Indiana 47441; William Burke, Attorney, Great
Lakes Coal Company, 130 Bradley Place, Palm Beach, Florida 33480; Steven J. Szostek, Deputy Attorney General Division of Reclamation
309 West Washington Street, Suite 201, Indianapolis, Indiana 46204; Pauline
Bays Greene County Recorder, Courthouse, Bloomfield, Indiana 47424.
6.
On August 26, 1985, a Hearing was conducted pursuant to IC 13-4.1, IC 4-22-1
and 310 IAC 0.5.
7.
Great Lakes Coal Company holds permit #81-40 to conduct surface coal mining
operations in Greene County at its Linton #1 Mine.
8.
On April 9, 1985, Charles Yeager, an authorized representative of the Director,
wrote Notice of Violation #N50409-81-40 which was issued on April 9, 1985.
9.
Notice of Violation #N504-81-40 was issued for failure to prevent acid mine
drainage in violation of IC 13-4.1-8-1(10) (A) at Sediment Basin #B4 on the
West Side of the permit.
10.
IC 13-4.1-8-1(10)(A) provides that a permittee shall minimize disturbances to the prevailing
hydrologic balance at the site and associated offsite areas and to the quality
and quantity of water in surface and ground water systems during and after
surface coal mining and reclamation operations by (a) avoiding acid to other
toxic mine drainage by such measures as, but not limited to:
(i)preventing
or removing water from contact with toxic producing deposits;
(ii)
treating drainage to reduce toxic content which
adversely affects downstream water upon being released to water courses;
(iii)casing,
sealing, or otherwise managing boreholes, shafts and wells and keeping acid or
other toxic drainage from entering ground and surface waters.
11.
On April 9,1985, the Indiana Legislature imposed the following requirements: IC
13-4-6-1.6: "All Surface Mining Operations that operate or have operated
under a permit issued under this chapter subject to Acts 1978, P.L. 159, Acts
1979, P.L. 314, Acts 1980, P.L. 101, SECTION 5, or Acts 1981, P.L. 331, are
subject to IC 13-4.1-1-11, IC 13-4.1-12, IC 13-4.1-13, 30 U.S.C. 1260(d), 30
U.S.C. 1272(e) and 30 CFR 710 through 716."
12.
Great Lakes' permit 81-40 was issued under Acts of 1982, P.L. 331.
13.
This permit is subject to the requirements of 30 U.S.C. 1252(c).
14.
30 U.S.C. 1252 provides that "all Surface Coal Mining Operations on lands
on which such operations are regulated by a state shall comply with the
provisions of . . . .subsection 1265 (b) (10). .
."
15. 30
U.S.C. 1265 (b) (10) is worded identically to IC 13-4.1-8(10).
16.
The Notice of Violation should have cited as the provision violated 30 U.S.C.
1252(c) and 30 U.S.C. 1265 (b) (10) (A).
17.
On April 9, 1985, a water sample taken at the outfall of Basin #B4 tested at
59mg/l iron and 42 mg/1 manganese.
18.
On April 9, a water sample taken 100 feet downstream from the outfall of Basin
#B4 tested at 46 mg/ 1 iron and 31 mg/1 manganese.
19.
When applicable, the EPA effluent
[VOLUME 3, PAGE 32]
limitation for iron is 7 mg/1 and for
manganese is 4 mg/1.
20.
Permit 81-40 is not an active mining operation; the only activity being
conducted is reclamation. The grading and revegetation
requirements are substantially complete, however all bond continues to be held
by the respondent.
21.
The EPA effluent limitations for this permit, as imposed by the Indiana State
Board of Health, during the period beginning when the surface area of the mine
was returned to the required contour and on which revegetation
work had commenced and lasting until the expiration date of the permit or until
the performance bond has been totally released, is .5 daily maximum settleable solids. There are no limitations placed on iron
or manganese.
22.
30 CFR 715.17 is the regulation implementing the provisions of 30 U.S.C. 1265(b)(10).
23.
30 CFR 715.17(a) requires discharges from areas disturbed by Surface Coal
Mining and Reclamation Operations meet all applicable federal and state laws
and regulations and at a minimum, the following numerical effluent limitations;
iron 7 mg/1; manganese 4 mg/1; total suspended solids 70 mg/1; pH 6-9.
24.
Federal litigation concerning the interim regulation, 30 CFR 715 17, and the
permanent program regulation, 815.42(a) (7), which implement the statutory
requirements for protection of the hydrologic balance, resulted in a judicial
interpretation of 30 U.S.C. 1265(b)(10) that provides OSM cannot impose
effluent limitation more stringent than EPA's effluent limitations.[FOOTNOTE i]
25.
EPA's effluent limitations for iron and manganese do not apply to this permit.
26.
Evidence of iron and manganese content in the discharge of water is not
relevant to finding a violation of 30 U.S.C. 1265 (b) (10).
27. The
respondent has failed to make a primae facie case of
violation of 30 U.S.C. 1265 (b) (10).
FOOTNOTE
i. See In re Surface Mining Regulation Litigation,
452 F. Supp. 327 343 (1978); In re Surface Mining Regulation Litigation, 627 F.
2s 1346, 1366 (1980) and In re Permanent Surface Mining Regulation Litigation,
Civil No. 79-1144 (May 16, 1980).