[CITE: Peabody Coal Co. v. Dept., DOR, 3 CADDNAR 96 (1987)]
[VOLUME 3, PAGE 96]
Cause #: 85-095R
Caption: Peabody Coal Co. v.
Dept., DOR
Administrative Law Judge: Shadley
Attorneys: Joest; Szostek, DAG
Date: May 29, 1987
ORDER
Notice
of Violation #N50319-S-00020, Part 2, is vacated.
FINDINGS OF FACT
1. This
is a proceeding for administrative review of a Notice of Violation issued under
IC 13-4.1. IC 13-4.1 applies to this proceeding.
2.
The Department of Natural Resources is an agency as defined in IC 4-22-1. The
Director is the ultimate authority of the Department with respect to this
proceeding. This proceeding is governed by IC 4-22-1.
3.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
4.
On March 19, 1985, Eric Gerst, an authorized representative
of the Director, issued Notice of Violation #N50319-S-00020, Part 2.
5.
The Notice of Violation under review in this administrative cause was issued
for failure to control surface drainage through the use of siltation structures
before leaving the permit area in violation of 310 IAC 12-5-17(a) (1) and 310
IAC 12-5-21(a) (1).
6.
The parties have stipulated that the drainage in questions discharged directly
from Claimant's permit area into the Squaw Creek Coal Company North Area,
permit #S-00008, which was contiguous to Claimant's 5900 permit area and that
such drainage was directed into a sediment basin prior to leaving the Squaw
Creek permit area.
7.
The parties have stipulated that neither the reclamation plan for Claimant's
permit #S-00020 nor the reclamation plan for Squaw Creek Coal Company's permit
#S-00008 reflected that drainage from Claimant's permit area would be diverted
to Squaw Creek's permit area for sediment control before being discharged into
receiving streams.
8.
The parties have stipulated that Respondent, Division of Reclamation, has
adopted in the past and followed a position allowing discharge of drainage from
one permanent program permit area without prior sediment control treatment
directly into another permanent program area of the same permittee
for treatment on the second permit area before discharged into the receiving
streams of the state, provided that the reclamation plans of the two permits
are so provided.
9.
The parties have stipulated that the construction of a sediment pond or other
siltation structure involved some disturbance of the environment and that it is
preferable from the standpoint of environment protection that the minimum
number of sediment ponds sufficient to provide adequate sediment control be
constructed.
10.
The parties have stipulated that there is no contention that the drainage from
Claimant's Lynnville 5900 permit area did not receive adequate treatment in the
Squaw Creek permit area prior to discharge into receiving streams.
11.
The parties are agreed that under appropriate circumstances drainage from one
permanent program permit area may be diverted without prior sediment control
treatment into another permanent program permit area to be treated in the
second permit area. Since there is no dispute between the parties on this
point, I will assume for purposes of this decision without deciding the
question that it is permissible to treat drainage from one permit area in an
adjoining permit area for discharge into receiving streams.
12.
The parties dispute what the appropriate circumstances for treatment in an
adjoining permit area. Claimant
disputes this position.
13.
Assuming that drainage from one permit area may be treated for sediment control
in an adjoining permit area, neither 310 IAC 12-5-17(a)(1) or 310 IAC
12-5-21(a)(1) require by their own terms that the affected permittee's
reclamation plan provide for such treatment. It may be that Claimant's failure
to follow its reclamation plan could give rise to a violation, but that is not
the violation with which Claimant has been charged in this case and the Notice
of Violation cannot be sustained on any grounds other than those for which it was
written.
14.
Given the parties' agreement that under certain circumstances drainage from one
permit area can be treated in an adjoining permit area, Claimant did not
violate either 310 IAC 12-5-17(a)(1) or 310 IAC 12-5-21(a)(1) and the Notice of
Violation should be vacated.