CADDNAR


[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).