[NOTE: SEE PEABODY COAL (89-129R), 5 CADDNAR 224 (1992).]
Notices of Violation #N80119-S-00046 and #N80119-S-00163 are vacated.
FINDINGS OF FACT
1. On February 19, 1989 Foertsch Construction Company (the "Claimant") requested review of Notices of Violation #N80119-S-00046 and #N80119-S-00163 (NOV).
2. Both NOV alleged "failure to pass all surface drainage through a siltation structure before leaving permit area."
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. Both NOV were written by James L. Harris, who is an authorized representative of the Director.
5. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
6. The NOV alleged violations of 310 IAC 12-5-17(a)(1) and 310 IAC 12-5-18(a), (c), and (e).
7. Both parties filed Motions for Summary Judgment as to the alleged violations of 310 IAC 12-517(a)(1).
8. On May 16, 1989 the administrative law judge granted Summary Judgment... for the Claimant as to the portion of the NOV relating to 310 IAC 125-17(a) and offered to schedule a hearing on the alleged violations of 310 IAC 12-5-18(a), (c), and (e).
9. On May 31, 1989 the Respondent objected to the granting of Summary Judgment on 310 IAC 12-5-17(a), declined to pursue a hearing of the alleged 310 IAC 12-5-18(a), (c), and (e) violations and asked the administrative law judge to submit his findings to the Director.
10. The inspector, in his affidavit, stated the following in regard to the NOV in question: I noticed a breach in a diversion ditch.... I observed rainfall from a disturbed area flowing into the diversion ditch, and I observed the water flowing through the breach in the ditch .... The water flowing through the breach flowed off the permitted area without passing through a sediment basin or siltation structure.
11. It appears that the above situation applied at both breaches (both NOV).
12. The "Action Required" for both NOV was "Repair the diversion breach to assure that affected area drainage is properly passed to a sediment basin.
13. It is clear from the above that the only action the inspector observed was a breach of a temporary diversion ditch which lead to all the effects.
14. The Claimant defended with an excessive rainfall defense as to the breach.
15. The Respondent answered with an absolute duty to control water before leaving the permit area, thereby maintaining that the cause does not matter, only the effect.
16. It would be patently unfair to attach the Claimant's responsibility to anything but the cause. In other words, if the cause is not the basis for an NOV, then ancillary effects certainly should not be.
17. Here the cause is a breach in a temporary diversion ditch which, under 310 IAC 12-5-18(a), must be constructed to meet at least a precipitation event with a two (2) year recurrence interval.
18. The Claimant was prepared to present evidence on the rainfall at hearing, but the Respondent declined to contest this point.
19. Based on the above, it must be assumed that the precipitation event was greater than a two-year occurrence event.
20. Therefore, the breach cannot be the subject of a violation of law. It follows that any of the uncontrollable effects of the breach, specifically the water leaving the permit area without passing through the siltation structure, should not lead to a violation either.
21. However, even if this were not the case,
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there could not be a violation of 310 IAC 12-5-17 here because this section goes to a violation of effluent limitations, and the Respondent alleges nothing more than a visual sighting of water from the breach flowing off the permit area while bypassing the siltation structure.
22. Judge Drew correctly stated in Peabody Coal Co. v. DNR, DOR, 4 Caddnar 62 (1988) that 310 IAC 12-5-17 does not apply unless an effluent limitation violation is present.
23. A reading of Section 17 clearly shows that this section is meant to apply to the meeting of effluent limitations by controlling the water quality of surface drainage.
24. The Department attempts to support its case by quoting Delta Mining Corporation v. OSMRE, US Dept. of Interior, office of Hearings and Appeals, Docket No. IN 0-9-P. This case involves a miner who deliberately diverted water off the permit area and was cited for failure to pass all drainage through a sediment pond and failure to meet affluent limitations.
25. In the above case, the miner argued that the two violations were duplicitous. The judge held that both violations were proper.
26. The Delta case bears little or no resemblance to the case at bar. In Delta, the miner deliberately diverted the water. Here the diversion was out of Foertsch's control. Also, in Delta, there was a violation of effluent limitations. Here these is none.
27. There is no doubt in this case if there had not been a two-year recurrence interval of rainfall and there had been an effluent violation, the Claimant could have been cited for two violations (310 IAC 12-5-17 and 310 IAC 12-5-18).
28. Since neither of these transgressions is proved, these NOV cannot stand.