[CITE: Jaeco, Inc. v. DNR, 3 CADDNAR 62 (1986)]
[VOLUME 3, PAGE 62]
Cause #: 85-206R
Caption: Jaeco,
Inc. v. DNR
Administrative Law Judge: Shadley
Attorneys: Runnells; Spicker, DAG
Date: January 10, 1986
ORDER
Notice
of Violation #N50805-S-00118 is modified to extend the time set for abatement. Jaeco is given an additional one week for abatement.
FINDINGS OF FACT
1.
On August 28, 1985, pursuant to IC 13-4.1 and 310 IAC 12, Jaeco,
Inc. ("Jaeco") filed a request for review
of Notice of Violation number N50805-S-00118.
2.
IC 13-4.1, the Surface Mining and Reclamation Act, is applicable to this
proceeding.
3.
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.
4.
The Director has jurisdiction over the subject matter and the parties of this
action.
5.
Sue A. Shadley is an employee of the Department of Natural Resources.
6.
By written entry dated August 30, 1985, the Director appointed Sue A. Shadley
to conduct a hearing and make a recommendation on the request by Jaeco.
7.
Notice of Hearing was given to: Mary Runnells, Attorney for Jaeco,
1770 Market Street, Indianapolis, Indiana 46206; Myra Spicker,
Deputy Attorney General, 309 W. Washington Street, Suite 201, Indianapolis,
Indiana 46204; Ruth Mohr, Clay County Recorder, Courthouse, Brazil, Indiana
47834.
8.
On October 2, 1985, a hearing was conducted pursuant to IC 4-22-1 and IC
13-4.1-11-8 on the request.
9. Jaeco, Inc. holds permit S-00118 to conduct surface coal
mining and reclamation operations at its Eel River Mine in Clay County,
Indiana, pursuant to IC 13-4.1 and 310 IAC 12.
10.
Notice of Violation #N50805-S-00118 was issued by James Brown, an authorized
representative of the Director, to Jaeco, Inc. for
failure to pass all surface drainage from the disturbed area through a siltation
structure before leaving the permit area in violation of 310 IAC 12-5-18(a),
(c) and (e), 310 IAC 12-5-17(a) and 310 IAC 12-3-4, Plan of Reclamation, Part
IV (0)(4)(a)at the extreme east portion of the permit along the haul access
road next to the unbounded farm land area.
11. 310
IAC 12-5-17(a) 310 IAC 12-5-18(a), (c), and (e) and 310 IAC 12-3-4, Plan of
Reclamation, Part IV (0)(4)(a) require that surface drainage from the disturbed
area be controlled or passed through a siltation structure or diversion prior
to leaving the permit area and require temporary diversions be constructed to
pass safety the peak runoff from a precipitation event with a two-year
recurrence interval.
12.
A farm road is located to the east of and outside of the bonded area and east
of the farm road is a field used at times for growing crops.
13.
Drainage from the haul access road, from an area where a trailer, used as a
mine office, was located, from an area previously used for storage of coal, and
from the farm road was entering a diversion ditch constructed by Jaeco, Inc. on the east side of the haul road approximately
four (4) feet from the eastern boundary of the bonded area.
14.
At a point approximately five feet south of a pipe installed by Jaeco, Inc. in the diversion ditch, water was observed on
August 5, 1985 at 12:15 p.m. flowing out of the diversion ditch, through straw
bales and onto the farm road.
15.
The diversion ditch is a temporary diversion subject to the design requirements
of 310 IAC 12-5-18(a).
16.
No violation of 310 IAC 12-5-17 or the Plan of Reclamation occurs when surface
drainage being conveyed through a temporary diversion is not passed through a
siltation structure prior to leaving
[VOLUME 3, PAGE 63]
the permit area during a
precipitation event in excess of the two year recurrence interval design
requirement for a temporary diversion.[FOOTNOTE
1]
17.
The two year frequency, twenty-four hour duration rainfall or recurrence
interval for this diversion is three inches of rainfall in a twenty-four hour
period.[FOOTNOTE 2]
18.
The testimony does not support a finding that more than three inches of rain
fell the twenty-four hours preceding the event for which the Notice of
Violation was written.[FOOTNOTE 3]
19.
310 IAC 12-6-6 requires a Notice of Violation set forth a reasonable time for
abatement.
20.
The Notice of Violation identified the action required and the compliance time
as (1) submittal of a revised drainage control plan to the Jasonville office
for approval by August 19, 1985, 8:00 a.m. and (2) implementation of necessary
structures to maintain compliance by September 2, 1985 at 8:00 a.m.
21.
The Notice of Violation was modified to require the east diversion to be
certified as capable of handling a two-year interval peak runoff by a
registered professional engineer.
22.
The modified Notice of Violation did not extend the time for compliance with
the abatement action.
23.
The modification was written on August 16, 1985, mailed on August 20, 1985 and
is not considered issued until the date received by Jaeco.
24.
The modified Notice of Violation required a different abatement action to have
been completed before Jaeco received notice of the
required different abatement action.
25.
The Notice of Violation did not provide a reasonable time for abatement.[FOOTNOTE 4]
FOOTNOTES
1. 310 IAC 12-5-21(c) clearly provides that the design of a siltation structure
in accordance with applicable law does not relieve a permittee
from compliance with applicable effluent limitations. There is no similar
provisions concerning meeting the design and the requirements to pass all drainage
through a siltation structure. If the Natural Resources Commission had intended
the requirement to pass all drainage through a siltation structure to apply
during a precipitation event in excess of the design requirement, it would have
made specific provision as it did in 310 IAC 12-5-21(c).
2. The Respondent introduced a map of Indiana which indicated the two-year
recurrence intervals for the State of Indiana. The Respondent's witness marked
an "X" on the map showing the approximate location of the Jaeco mine. That "X" is between the three inch
and three point one inch lines. No testimony was given to explain this map and
the significance of being between, or closer to one line than another. Because
this "X" is only an approximate location, and there is no
significance to being near the bottom of the three
inch line, doubt must be constructed in favor of the recurrence interval of
this diversion being three inches.
3. The parties stipulated that, .15 inches fell between 9:30 p.m. August 3,
1985 and 9:30 p.m. August 4, 1985, and 2.9 inches fell between 9:30 p.m. August
4, 1985 and 8:00 a.m. August 5, 1985. However, Claimant's witness could not
testify that all of the .15 inches of rain fell between 12:15 p.m. August 4,
1985 and 9:30 p.m. August 5, 1985, which would have been necessary to find that
more than three inches of rain fell the twenty-four hour period preceding the
writing of the Notice of Violation. Although, the burden of proof in Indiana
falls on the Respondent to prove a violation of IC 13-4.1 or 310 IAC 12, this
issue, that the rule did not apply to Jaeco because
of the precipitation event exceeded the design requirement, is an affirmative defense
and the burden of proving an affirmative defense rests with the party claiming
it.
4. Jaeco had not even been notified on August 19,
1985, the date the Notice of Violation was to be abated, that the required
abatement action was modified to include an additional requirement to have the
plans certified by a professional engineer. Since no additional time was given
when the Notice of Violation was modified, Jaeco was
in fact given no time to comply with this new requirement. If a Notice of
Violation is modified to require additional actions from the permittee, additional time must be given to comply with the
action. The time frame specified should take into consideration the date the
Notice of Violation or modification will be received by the permittee
(i.e. It’s issuance date), since whether or not the amount of time
provided is reasonable is calculated from that date.