Notice of Violation #N71209-S-00118, Violation 1 of 3 - affirmed and 2 of 3 - vacated.
FINDINGS OF FACT
1. On December 21, 1987, Jaeco, Inc. ("Jaeco") requested a hearing to review the issuance of Notice of Violation ("NOV") #N71209-S-00118 Violations 1 of 3 and 2 of 3.
2. IC 4-21.5 and IC 13-4.1 apply to this proceeding.
3. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Director is the ultimate authority for the Department with respect to this proceeding.
4. Jaeco holds permit S-00118 to conduct surface coal mining operations in Clay County at its Eel River Mine.
5. Charles Armbrust, an authorized representative of the Director, issued NOV #N71209-S-00118. Violation 1 of 3 cited Jaeco for failure to operate and maintain a siltation structure to achieve applicable federal and state effluent limitations in violation of 310 IAC 12-5-16(c), 17(a)(2), 20(a)(2)-, 21(c) and 310 IAC 12-3-4 Permit condition Part IV.E.(4) NPDES permit. Violation 2 of 3 cited Jaeco for failure to construct a siltation structure prior to any disturbance of the undisturbed area to be drained into the structure in violation of 310 IAC 12-5-17(a)(4) and 21(a)(1).
6. In regard to violation 1 of 3, Jaeco's NPDES specifies that the effluent limitation on water quality at discharge points for Eel River mine (the "mine") basin #2 is a pH level between 6 and 9 as measured on a logarithm scale of 0 to 14.
7. On December 9, 1987, Mr. Armbrust, using a properly calibrated pH meter and testing at a point where the water leaves the permit, produced a pH reading of 5.5 (5.52) for basin #2.
8. Jaeco produced no evidence that would taint or refute Mr. Armbrust's test results.
9. In regard to Violation 2 of 3, on December 9, 1988, Mr. Armbrust observed mining activity at the mine in the watershed of proposed basin #3. The activity was approximately 680 feet away from the basin and the area between the mining activity and the basin had been disturbed.
10. On December 9, 1988, proposed basin #3 had not been completed and was not certified by a professional engineer.
11. The design summary for proposed basin #3 had been submitted to the Department as part of an incidental boundary revision (IBR).
12. The design summary was signed by Leonard F. Baughman, professional engineer, on November 24, 1986.
13. The IBR was approved by the Department sometime prior to the December 9, 1988 inspection.
14. 310 IAC 12-5-17(a)(4), 21(a)(1) and 21(d) required that this basin be constructed under the supervision of, and upon completion certified by, a professional engineer prior to disturbance of the undisturbed area to be drained into the structure.
15. In this case the Department allowed Jaeco to remove the first bit of coal prior to completion and certification of the basin.
16. The Department submits that Jaeco did not complete and certify the basin within a reasonable time after coal mining had begun.
17. The time period between first coal removal and the issuance of the NOV was about six weeks.
18. Jaeco contends that it did not have reasonable time to complete and certify the basin because its professional engineer was unavailable during most of the period in question, and the weather was such as to preclude the use of heavy equipment in the proposed basin area.
19. The unavailability of the professional engineer is the responsibility of Jaeco. However, even if it were not, Jaeco admits that as of the date the NOV was
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written (December 9, 1987) the basin was not in certifiable condition.
20. Jaeco presented no evidence as to the weather conditions during the period in question.
21. The Department maintains that during much of the period, heavy equipment could have reached the site.
22. If Jaeco could mine coal for approximately 680 feet from the proposed basin during the six week period, it should have been able to complete the construction of the proposed basin as well.