[CITE: Nerco Coal Company v. DNR, 3 CADDNAR 51 (1985)]
[VOLUME 3, PAGE 51]
Cause #: 85-148R
Caption: Nerco
Coal Company v. DNR
Administrative Law Judge: Shadley
Attorneys: Clark; Szostek, DAG
Date: June 24, 1985
ORDER
[NOTE: ON AUGUST 15, 1985 AN
ORDER FOR DISMISSAL WAS ENTERED BY THE DIRECTOR WITH RESPECT TO THE UNDERLYING
NOTICE OF VIOLATION.]
Based
upon the [below] Findings of Fact, temporary relief from Notice of Violation #N50606-S-00072,
Violation 1 of 3, is granted, until completion of the full evidentiary hearing and
the Director's final determination on Notice of Violation N50606-S-00072,
Violation 1 of 3.
FINDINGS OF FACT
1.
The Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
2.
The Director has jurisdiction over the subject matter and the parties to this
action.
3.
The Director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department of Natural Resources.
4. Sue
Shadley is an employee of the Department of Natural Resources.
5.
By letter file stamped June 18, 1985, Nerco Coal
Company ("Nerco") requested temporary
relief from Notice of Violation #N50606-S-00072, Violation 1 of 3.
6.
By written entry dated June 18, 1985, the Director delegated to Sue A. Shadley
the power to grant or deny the temporary relief requested by Nerco.
7.
On June 18, 1985, a notice of temporary relief hearing was mailed to the
parties scheduling the hearing for June 25, 1985.
8.
On June 24, 1985, Petitioner and Respondent agreed to waive their right to a
hearing.
9.
Notice of Violation #N50606-S-00072, Violation 1 of 3 was issued to Nerco for "failure to not violate Federal and Indiana
water quality statutes, regulations, standards or effluent limitations"
[sic. Violation of Federal and Indiana water quality statutes,
regulations, standards or effluent limitations] in violation of 310 IAC
12-5-16.
10.
310 12-5-16 provides that in non case shall Federal and Indiana water quality
statutes, regulations, standards or effluent limitations be violated.
11.
Water from the affected area of one of Nerco's permits
is channeled into a sediment pond which discharges directly into a series of
sediment ponds on adjoining Nerco permits, before
being discharged.
12.
On the date of issuance of the Notice of Violation, the water which was
discharged from the final sediment pond in the series of ponds, was not in
violation of the effluent limitations, however, the water leaving the first
pond, before entering the series of additional sediment ponds, was tested to
have pH in violation of the effluent limitations.
13.
The Indiana State Board of Health, Water Pollution Control Division, the State
agency responsible for implementing the Environmental Protection Agency's NPDES
program, does not consider this situation to be a violation of the state
effluent limitations.
14. Nerco would be able to show at a hearing that a substantial
likelihood exists that the findings of the Director would be favorable to it.
15.
[Finding 15 was omitted in original document.]
16. The
Notice of Violation requires Nerco cease discharge of
toxic water, treat basin as needed to meet acceptable pH and iron effluent
limits, monitor monthly, or revise the Indiana permit boundary to include basin
on support facility permit receiving discharge from basin #3.
17. Granting
Temporary Relief from the required abatement actions will not adversely affect
the health or safety of the public or cause significant, imminent environmental
harm to land, air or water resources.