[CITE: Spencer Coal Corp., v. DNR, DOR, 3 CADDNAR 98 (1987)]
[VOLUME 3, PAGE 98]
Cause #: 85-108R
Caption: Spencer Coal Corp.,
v. DNR, DOR
Administrative Law Judge: Lucas
Attorneys: Gray; Szostek, DAG
Date : October 26, 1987
ORDER
Notice
of Violation #N50501-S-00124T is affirmed except as amended by Finding of Fact
32.
FINDINGS OF FACT
1.
The Department of Natural Resources (the "Department") is an agency
as the term is defined under IC 4-22-1. The Director of the Department (the
"Director") is the ultimate authority for the Department with respect
to the subject matter of this administrative action.
2.
The Director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department in accordance with IC
13-4.1-2-2(c).
3. Richard
Montgomery, an authorized representative of the Director, on May 1, 1985 issued
Notice of Violation #N50501-S-00124T (the "NOV") against Spencer Coal
Corp. (The "Spencer") with respect to the Osmon
Mine, Permit S-00124-T (the "Permit").
4.
The NOV alleged a failure by Spencer "to maintain sediment control
structures to prevent short circuiting" in violation of 310 IAC
12-5-21(b). The location of the violation was identified as diversion ditch 5
along the southwest corner of the permit.
5.
When the NOV was issued, 310 IAC 12-5-21(b) provided: (B) Each person who
conducts surface coal mining activities shall design, construct, and maintain
siltation structures to prevent short-circuiting to the extent possible.
6.
"Short circuiting" means a process which transports sediment through
a pond or basin in less than the detention time required for sediment to settle
out.[FOOTNOTE 1]
7.
The areas described in Finding 4 were permitted and bonded by Spencer in
accordance with IC 13-4.1.
8.
The actions specified in the NOV to abate the violations were
(1) to repair diversion ditch 6 so all drainage from the disturbed
area passes through basin 3; and,
(2) to reconstruct diversion ditch 5 so all drainage passes
through basin 3. Both diversion ditches were also required to be seeded and
mulched.
9. Diversion
ditch 5 and diversion ditch 6 were designed to run into basin 3 and were
originally constructed as designed.
10.
There were no surface mining disturbances on the permitted area other than
diversion ditch 5, diversion ditch 6, the topsoil stockpiles and basin 3.
11. Osmon had been farming previously in areas adjacent to the
permit boundaries and in the areas which are the subject of the NOV.
12. Osmon extended plowing on to the permit area and:
(a) plowed under diversion ditch 5; and
(b) plowed under the bond markers.
13. Osmon was not acting under authority of Spencer when
plowing was extended into the permitted area or into diversion ditch 5.
14. Osmon acted independently and without notice to Spencer.
15.
The plowing activity describer in Finding 13 destroyed diversion ditch 5.
16.
Spencer repaired diversion ditch 5 by July 8, 1985.
17.
Diversion ditch 6 breached in a low area along its course way.
18. Sediment
(soil material) from the breach described in Finding 17 was deposited off the permitted
area.
19.
No significant environment harm resulted from the breach described in Finding
17.
20. A breach at the location described in Finding 17 had been
repaired by Spencer on two previous occasions.
21.
When the NOV was issued, the mine was under a approved
temporary cessation of operations.
22.
An employee of Spencer inspected the permitted area on a regular basis.
23.
There is no disputed issue as to a material fact in this administrative action.
24.
The actions by Osmon described in Findings 13, 14,
and 15 constitutes an avoidance, matter of abatement or other affirmative
defense for which Spencer bears the burden of proof.[FOOTNOTE 2]
25.
Spencer has met its burden of proof. Spencer is not, according to the stipulated
facts, responsible for Commission by Osmon of the
events described in Findings 13, 14, and 15.[FOOTNOTE 3]
26.
Spencer is not responsible for the destruction of diversion ditch 5.
27. Spencer
is entitled to a reasonable period of time, after notification of the
destruction of diversion ditch 5 by Osmon, in which
to repair that diversion ditch.
28.
Repair by Spencer of diversion ditch 5 by July 8, 1985 was not shown to exceed
a reasonable period of time.
29. References
in the NOV to diversion ditch 5 should be deleted.
30.
The breach of diversion ditch 6 as described in Findings 17, 18 and 19
constituted a technical violation of 310 IAC 12-5-21(b).
31. The
NOV may be affirmed as applicable to diversion ditch 6.
32.
The NOV should be amended with respect to the location of violation and with
respect to the action required to provide (in total) as follows: Location of
Violation:
Diversion
ditch 6 along the south side of the permit behind the topsoil stockpile. Action
Required: Repair diversion ditch 6 so all drainage from the disturbed area
passes through basin 3. Also seed and mulch the diversion ditch. In all other
particulars the NOV should be affirmed.
[VOLUME 3, PAGE 99]
1. Amax Coal Company v. DNR, 2 Caddnar 55 (August 6, 1985), citing 44 FR 15164 (March 13, 1979).
2. Jaeco, Inc. V. DNR, 3 Caddnar
63 (January 10, 1986).
3. The Department urges in its Brief of Respondent that Spencer is responsible
"under its surface coal mining permit and its NPDES permit, to maintain. .
. [diversion ditch 5]. Such responsibility requires that Claimant [Spencer]
control the actions of all parties likely to affect these drainage ways and
impoundment. The farmer [Osmon] is clearly a party
that Claimant [Spencer] should reasonably have expected could affect these
drainage ways and impoundment and should thus have been controlled by Claimant
[Spencer]." The parties stipulated that Osmon acted
independently and without notice to Spencer. That the actions by Osmon should have been "reasonably.
. . expected" by Spencer is not clear from the record. Even if these
actions were "reasonably expected," however, there is no evidence
that Spencer had the legal ability to control Osmon.
In the absence of evidence that Spencer could have controlled Osmon, there can be no demonstration that Spencer should
have done so.