[CITE: Jaeco, Inc. v. Department, 3 CADDNAR 52 (1986)]
[VOLUME 3, PAGE 52]
Cause #: 85-156R
Caption: Jaeco,
Inc. v. Department
Administrative Law Judge: Shadley
Attorneys: Runnells; Szostek, DAG [Page (III 52)
Date: January 16, 1986
ORDER
Cessation
Order #C50527-S-00118 is affirmed.
FINDINGS OF FACT
1.
On June 21, 1985, Jaeco, Inc. Requested a Hearing to
review the issuance of Cessation Order #C50528-S-00118.
2.
IC 13-4.1 applies to this proceeding.
3.
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.
4.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
5.
Notice of Hearing was given to: Ms. Mary M. Runnells, Attorney for Jaeco, Inc. PO Box 268, Bloomfield, IN 47424; Steven Ancel, Resident Agent, Jaeco, Inc.,
1770 Market Street, Indianapolis, Indiana 46204; Steven J. Szostek,
Deputy Attorney General, 309 West Washington Street, Suite 201, Indianapolis,
Indiana 46204; Ruth Mohr, Clay County Recorder, Courthouse, Brazil, IN 47834.
6.
On November 18, 1985 a Hearing was conducted pursuant to IC 13-4.1, IC 4-22-1
and 310 IAC 0.5.
7. Jaeco, Inc. Holds permit S-00118 to conduct surface coal
mining operations in Clay County, at its Eel River Mine.
8.
William Hess an authorized representative of the Director wrote Cessation Order
#C50528-S-00118 which as mailed to Jaeco on May 28,
1985.
9.
Cessation Order #C50528-S-00118 cited Jaeco for
failure to abate Notice of Violation #N50227-S-00118, Violation 2 of 2.
10. Notice
of Violation #N50227-S-00118, violation 2 of 2 was issued for failure to
design, construct and maintain diversions which prevent additional contribution
of suspended solids to stream flow and to runoff outside the permit area, in
violation of 310 IAC 12-5-18(a), (c), (e), 310 12-5-20(a), (b), 310 12-5-21(a),
(b) and Reclamation Plan III A.5 and III I.4.[FOOTNOTE 1]
11.
The location of the failure to abate Cessation Order was identified as the
entire length of diversion ditches 2A and 2B, at the East border of bond line
parallel with haul road and near a culvert under county road 141S at the
southwest corner of the permit.
12.
On the date the Cessation Order was written, at the location identified as the
entire length of diversion ditch 2A, the following situation existed:
(a) the ditch was heavily silted in;
(b) no water was observed over topping the ditch;
(c),
silt in the ditch had been cleaned out one time after issuance of the Notice of
Violation and prior to issuance of the Cessation Order by use of a backhoe;
(d) the diversion ditch was not seeded or mulched;
(e) the Diversion ditch was 2 to 3 feet wide.
13.
On the date the Cessation Order was written, at the location identified as the
entire length of Diversion ditch 2B, the following situation existed:
(a) a couple of low points existed where the required freeboard
did not exist;
(b) the ditch had been cleaned out one time since issuance of
the Notice of Violation;
(c),
the diversion ditch was not completed and no diversion existed at the north end
to collect drainage from the northwest part of the permit to be directed into
the sediment pond;
(d) at the north end of the diversion ditch, an open cut pit did
exist which did collect water which was pumped into the sediment pond by means
of a mechanical pump.
14.
On the date the Cessation Order was written, at the location identified as near
a culvert under county road 141S at the southwest corner of the permit, no
water was observed seeping onto the County Road.
15.
On the date of the Cessation Order was written, at the location identified as
the East border of the Bond
[VOLUME 3, PAGE 53]
Line,
parallel with the haul road, the following situation existed:
(a) there was evidence of water having flowed off onto unbonded land but it was not flowing off that day;
(b) prior to the day the Cessation Order was written, Jaeco had used a mechanical pump to pump out of the ditch
into a two inch PVC pipe, running over the road and into the Sediment pond. The
pump had been stolen and was not there. (c) no work
had been done since issuance of the Notice of Violation.
16. Jaeco did intend, as soon as weather permitted, to finish
construction of Diversion Ditch 2B and backfill the open cut pit currently collecting
the drainage for the Northwest part of the permit.
17.
310 IAC 12-5-18(a) requires Temporary Diversions be constructed to pass safely
the runoff from a precipitation event with a 2 year recurrence interval.
18.
No testimony was given related to what the 2 year recurrence interval is.
19.
No testimony was given to support a finding that a violation of 310 IAC
12-5-18(a) occurred.
20.
310 IAC 12-5-21 contains the general requirements for sediment ponds.
21.
No testimony was given which would support a finding that a violation either
existed or did not exist related to sediment ponds.
22.
No testimony was given related to what the Plan of Reclamation Item III A.5 and
IV I.4 required Jaeco to.
23.
The parties stipulated that it was not necessary to construct the Diversions to
the design in the Plan of Reclamation in order to abate the Notice of
Violation, provided the Diversions were constructed to a design capable of
handling the same amount of water as the design approved in the Plan of
Reclamation could handle.
24.
No testimony was given related to what quantity of water the approved design
could handle.
25.
310 IAC 12-5-18(e) requires, among other things, that Diversion have a
freeboard not less than .3 feet.
26.
A violation of 310 IAC 12-5-18(e) was occurring at Diversion Ditch 2B on the
date the Cessation Order was written.
27.
No testimony was given to support a finding that a violation of 310 IAC
12-5-8(e) existed at Diversion Ditch 2A.
28.
310 IAC 12-5-20(b) provides that an appropriate sediment control method
includes, among other things, retaining sediment within the disturbed areas.
29.
No testimony was submitted that sediment was not being retained within the
disturbed area on the date the Cessation Order was issued.
30.
310 IAC 12-5-18(c) requires Diversions be designed, constructed, and maintained
using best technology currently available.
31.
310 IAC 12-5-20(a) requires appropriate sediment control measures be designed, constructed and maintained using best technology
currently available to prevent to the extent possible additional contributions
of suspended solids to stream flow or to runoff outside the permit area.
32.
Best technology currently available is defined in 310 IAC 12-1-3 as equipment,
devices, systems, methods or techniques which will:
(a)
prevent to the extent possible additional contributions of suspended solids to
stream flow or runoff outside the permit area, but in no event result in
contributions of suspended solids in excess of requirements set by applicable
Indiana or Federal Law and
(b) minimize to the extent possible, disturbances and adverse
impacts on fish wildlife and their habitats and achieve enhancement of those
resources where practicable.
33.
Use of a Mechanical pump to divert water to a sediment pond, in lieu of a
diversion ditch is not use to best technology currently available.
34. Jaeco was not using best technology currently available as
their sediment control measures.
35. Jaeco did not abate Notice of Violation #N50227-S-00118
within the time-frame specified.
FOOTNOTE
1.
Because Jaeco did not challenge the issuance of
Notice of Violation #N50227-S-00118, it is presumed for purposes of this
Hearing that the Notice of Violation was properly issued. The issue for this
Hearing is whether or not Jaeco abated the Notice of
Violation within the time allowed in the NOV.