CADDNAR

[CITE: Peabody Coal Co., v. DNR, DOR, 4 CADDNAR 62 (1988)]

 

[VOLUME 4, PAGE 62]

 

Cause #: 87-034R

Caption: Peabody Coal Co., v. DNR, DOR
Administrative Law Judge: Drew
Attorneys: Joest; Sheffler, DAG
Date: March 30, 1988

ORDER

 

[NOTE: THE HOLDING IN THIS CASE WAS DISAPPROVED IN PEABODY COAL COMPANY v. INDIANA DEPARTMENT OF NATURAL RESOURCES (1994) IND.APP., 629 N.E.2d 925.]

Claimant's Motion for Summary Decision is granted and Notice of Violation #N70331-S-00012 is vacated.


FINDINGS OF FACT

 

1. On April 23, 1987, Peabody Coal Company (the "Claimant") requested administrative review of Notice of Violation #N70331-S-00012 issued by the Division of Reclamation of the Department of Natural Resources (the "Respondent".)

 

2. IC 4-22-1 and IC 13-4.1, the Surface Coal Mining Act, apply 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. Concurrent with the filing of its request for administrative review, Claimant also filed a Motion for Summary Decision pursuant to 310 IAC 0.5-1-11.

 

6. Claimant holds permit #S-00012 to conduct surface coal mining operations in Vigo County at its Universal Mine, Shepardsville Area.

 

7. On April 8, 1987, Claimant received notice of the issuance of Notice of Violation N70331-S-00012 as a result of an inspector conducted on March 31, 1987, by an authorized representative of the Director.

 

8. Notice of Violation #N70331-S-00012 cited Claimant for violating 310 IAC 12-5-20 (b)(3) by failing to utilize proper sediment control methods to retain sediment within the disturbed area.

 

9. The violation occurred at sediment basin M-34 where, according to the inspection report, a malfunctioning pump caused sediment from the bottom of the basin to be sucked up and deposited outside the basin. A "pool" of shale sediment extending over an area approximately 15 feet by 25 feet and 2 inches in depth was observed by the inspector east of the basin and covering vegetation in a previously undisturbed area.

 

10. No shale deposition was found outside the bonded or permitted areas or in an adjacent stream. No effluent was observes leaving the area nor were any water samples taken.,

 

11. Claimant objects to the issuance of the Notice of Violation because it believes the cited regulation (310 IAC 12-5-20 (b)(3) was incorrectly applied.

 

12. Peabody constructed sediment basin M-34 to be used as a siltation structure. 310 IAC 12-1-3 defines siltation structure as: ". . .a primary sediment control structure designed, constructed and maintained as required by 310 IAC 12 and including but not limited to a barrier, dam or excavated depression which slows down water runoff to allow sediment to settle out. A siltation structure shall not include secondary sedimentation control structures, such as straw dikes, riprap, check dams, mulches, dugouts and other measures that reduce overland flow velocity, reduce runoff volume or trap sediment, to the extent that such secondary sedimentation structures drain to a siltation structure."

 

13. There is no evidence suggesting that sediment basin M-34 was improperly designed or constructed as siltation structure. Nor is there any evidence suggesting that prior to the incident for which Claimant was cited, that sediment basin M-34 has been improperly maintained or that additional sediment control measures were necessary.

 

14. 310 IAC 12-5-17 regulates the use of siltation structures to maintain water quality standards and effluent limitations affecting the hydrologic balance.[FOOTNOTE 1]

 

15. Claimant was not cited for any water quality or effluent limitation violations causing a disturbance to the hydrologic balance and thus 310 IAC 12-5-17 does not apply. Claimant was cited for failing to use proper sediment control measures and thus 310 IAC 12-5-20, which regulates

 

[VOLUME 4, PAGE 63]

 

sediment control measures affecting the hydrologic balance, does not apply to this cause.

 

16. Subsection (a) of 310 IAC 12-5-20 requires sediment control measures to be designed, constructed and maintained using the best technology currently available to prevent additional suspended solids from being added to the stream flow or run-off outside the permit area, to meet the more stringent of state or federal effluent limits and to minimize erosion.

 

17. Claimant was not cited for violating this regulation and therefore it is assumed that Claimant met these standards and that the siltation structure it erected (sediment basin M-34) was a properly functioning means of sediment control.

 

18. Subsection (b) of 310 IAC 12-5-20 lists seven sediment control measures which may be used "singly or in combination" and further states that sediment control measures "are not limited to " those seven enumerated measures. Nor is compliance with each suggested measure required; they are merely intended as examples of alternative or additional methods of sediment control.

 

19. 310 IAC 12-5-20 (b) (3) is not a mandatory regulation as long as the sediment control measures utilized by an operator are adequate to meet the standards set forth in 310 IAC 12.

 

20. Claimant is therefore under no obligation to employ the various methods listed in 310 IAC 12-5-20(b) unless such methods are needed as an alternative or in addition to its primary sediment control structure.

 

21. Respondent did not cite Claimant with failing to construct, design or maintain sediment basin M-34 in accordance with other applicable regulations nor does Respondent claim the hydrologic balance was disturbed.[FOOTNOTE 2]

 

22. Standing alone, 310 IAC 12-5-20(b)(3) cannot be the sole basis upon which to base a violation without demonstrating that alternative or additional sediment control measures are necessary in order to prevent any disturbance to the hydrologic balance.[FOOTNOTE 3]

FOOTNOTES

 

1. Claimant argues that it is this regulation which controls whether or not the alternative techniques listed in 310 IAC 12-5-20 (b) can be implemented and consequently whether or not 310 IAC 12-5-20 (b) can be properly cited.

2. Respondent argues that 310 IAC 12-5-20 is preventative is nature and consequently no showing of harm must be proven in order to cite an operator for a violation of this regulation. While Respondent is correct in that 310 IAC 12-5-20 is designed to prevent disturbances to the hydrologic balance before they occur, the particular subsection cited in this instance, 310 IAC 12-5-20 (b) (3) is not designed to act as a mandatory sediment control measure in and of itself.

3. Claimant argues, in the alternative, that even if the cited regulation was properly applied, the regulation has been rendered invalid due to subsequent legislative changes. However, due to the finding in this cause, this argument shall not b e considered.