[CITE: BFC Coal v. DNR, 4 CADDNAR 9 (1986)]
[VOLUME 4, PAGE 9]
Cause #: 86-044R
Caption: BFC Coal v. DNR
Administrative Law Judge: Drew
Attorneys: Owen, pro sec; Szostek, DAG
Date: October 7, 1986
ORDER
Notice
of Violation #N60210-S-00095 is affirmed.
FINDINGS OF FACT
1. On
March 25, 1986, BFC Coal Company ("BFC") requested a hearing to
review the issuance of Notice of Violation #N60210-S-00095.
2.
IC 13-4.1, the Surface Coal 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 parties to this proceeding.
5.
Notice of hearing was given to: Mr. Mike Owen, BFC Coal Company, Inc. PO Box K,
Lynnville, IN 47619; Mr. Reggie Schitter, BFC Coal
Company, Inc. PO Box K, Lynnville, IN 47619; Mr. Steven Szostek,
Deputy Attorney General 309 West Washington Street, Suite 201, Indianapolis, IN
46204 and Mr. Wilbur Pershing, Daviess County Recorder, Courthouse, Washington,
IN 47501.
6.
On May 14, 1986, a pre-hearing conference was held and the parties were given
permission to brief the issues.
7.
BFC holds permit number S-00095 to conduct surface coal mining and reclamation
operations in Daviess County, Indiana at its Glendale #1 Mine.
8.
On February 10, 1986, Debbie Simpson, an authorized representative of the
Director, issued Notice of Violation #N60210-S-00095 to BFC.
9.
Notice of Violation #N60210-S-00095 cited BFC for failure to meet applicable
state and federal effluent limitations in violation of 310 IAC 12-5-16 (c) and
310 IAC 12-5-17 (a) (2).
10.
310 IAC 12-5-16 (c) provides that under no circumstances shall federal or state
effluent limitations be violated. 310 IAC 12-5-17 (a) (2) provides that
treatment facilities shall be operated and maintained to achieve proper
effluent levels.
11.
During the inspection of February 10, 1986, a water sample was taken at the
outfall of Basin #9 (also referred to in BFC's permit as #009) of the Glendale
#1 Mine. That sample showed a pH reading of between 4.60 and 5.00.
12.
The permit issued to BFC, NPDES Permit No. IN 0048275 ("the permit"),
states in pertinent part, "the pH shall not be less than 6 nor greater
than 9".[FOOTNOTE i]
13.
At the pre-hearing conference held on May 14, 1986, both parties agreed the
only matter in dispute was the proper place for the water sample to be taken.
The sample was taken at the outfall of Basin #9; BFC argues the proper sampling
point should have been at the permit bond line after water had passed over a
limestone riprap area.
14.
BFC maintains that the permit, by not specifying any points at which samples
should be taken, allows sampling at any point after it leaves the basin and
before it joins the perennial stream, so long as the sample is representative
of the discharge.
15.
BFC's permit allows samples to be taken "at a point representative of the
discharge but prior to entry into the corresponding streams..."[FOOTNOTE ii]
16.
The permit also states that representative sampling "shall be
representative of the volume and nature of the monitored discharge."[FOOTNOTE iii]
17.
BFC has offered no evidence of samples taken at other locations, be it at the
permit bond line or elsewhere, in which to determine is such a sample is indeed
representative of both the volume and nature of the discharge from Basin #9.
18.
Without further evidence, BFC cannot meet its burden of going forward to show
that a representative sample could be made at a location other than the outfall
and thus a finding that the sample should not have been taken at the outfall of
Basin #9 cannot be made.
19.
BFC also maintains that the riprap at the outfall of Basin #9 should be
considered as part of the basin facility approved in its NPDES permit and
therefore, any samples should be taken after the water has passed through the
riprap.
20. In a letter from the Stream Pollution Control Board
("the board") dated October 14, 1983, BFC was given permission to construct
Basin #9 provided that "additional treatment will be installed if the
proposed facilities fail to provide adequate control or if necessary for
[VOLUME 4, PAGE 10]
Compliance
with more stringent federal or state standards or requirements promulgated
subsequent to the date of this approval."[FOOTNOTE iv]
21.
BFC contends that the riprap is "additional treatment" as defined in
the Board's letter and consequently the riprap should be considered as part of
the basin facility.
22.
BFC has put forth no evidence that the Board had either requested or approved
any additional treatment for Basin #9.[FOOTNOTE v]
23.
There is no evidence to support a finding that riprap extending from Basin #9
should be treated as part of that facility.
FOOTNOTES
i.
NPDES Permit No. IN 00048275, page 2 of 9, part A.l.a.
ii.
NPDES
Permit No. IN 0048275, page 3 of 9, part A.l.d.
iii.
NPDES
Permit No. IN 0048275, page 5 of 9, part B.l.
iv.
Claimant's Exhibit C.
v. BFC
maintains that the Board's letter does not explicitly require approval by the
Board for any additional treatment to an already approved facility. However, I
am inclined to agree with Respondent that a logical reading of the Board's
letter does require approval after showing that the basin facility either
failed to provide adequate control measures or that more stringent standards
had been promulgated.