Notice of Violation N90322-S-00220 parts one and two are affirmed and part three is vacated.
FINDINGS OF FACT
1. On April 4, 1989, the Claimant, BFC Coal Company, Inc. (BFC) requested review of Notice of Violation (NOV) N90322-8-0020, all three parts.
2. BFC holds permit S-00220 to conduct surface mining operations in Daviess County at its Alfordsville mine.
3. IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
4. 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.
5. Daniel R. Luczynski, an authorized representative of the Director, issued the NOV involved in this action.
6. The NOV contains three parts:
a. Part 1- Failure to remove topsoil as a separate layer from the area to be disturbed and segregated.
b. Part 2- Failure to protect "A" prime and "B" prime stockpile and an "A" topsoil stockpile from water and/or wind erosion before the stockpiles can be redistributed.
c. Part 3- Failure to comply with Federal and Indiana water quality statutes, regulations, standards, or effluent limitations (pH=5.1 pH meter.)
7. There are two areas in question: east and west of County Road 1200 E.
8. The Respondent concedes that BFC removed topsoil from the east side of the culvert and, therefore, that area is not in violation.
9. Evidence shows that water from the east side flowed through culvert #19 and on to a sediment basin.
10. This flow of water is a natural drainageway and is the only path water could take from the disturbed area on the east side of the culvert to the sediment pond on the west side of the culvert.
11. BFC did not remove topsoil from this drainageway and had no intention of doing so.
12. Evidence shows that sediment was carried through the culvert and settled on the farmer's field west of the culvert.
13. BFC argues that the area west of the culvert was not an area to be disturbed, and, therefore, topsoil need not be removed.
14. The Department cites several sections of 310 IAC 12 which define the elements of a "disturbed area" and argues that this area on the west side of the culvert is indeed an area to be disturbed and the topsoil should have been removed.
15. It is true as a general rule a natural drainageway does not have to be treated in the same manner as a man-made drainageway.
16. However, in this case the sediment fanned-out over the topsoil in a farmer's field.
17. 310 IAC 12-1-3 defines a disturbed area as "an area ... upon which topsoil, spoil, coal processing waste ... is placed by surface coal mining operations."
18. BFC knew that the drainageway in question was the only path from the "area to be disturbed" (east side of the road) to the sediment pond (west side of the road).
19. Therefore, this drainageway became part of the disturbed area as previously defined.
20. Allowing the depositing of spoil in the farmer's field without removing the topsoil is a violation of 310 IAC 12-5-12.1(a) and (b).
21. This part deals with stockpiles which had been inactive for more than 30 days. The handling of this type of stockpile is covered by 310 IAC 5-12-147.
22. Under 310 IAC 5-12-147, stockpiles in place for more than 30 days must meet the requirements of 310 IAC 12-5-12.1.
23. Under 310 IAC 12-5-12.1 (d)(2)(iii) this type stockpile must be protected by an effective, quick growing non-noxious vegetative cover. This is commonly referred to as "mulching."
24. The
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evidence shows that BFC did mulch these stockpiles.
25. The Department does not dispute that mulching took place but charges that the mulching was inadequate to prevent erosion, the sides of the stockpile sloped almost vertically and actual erosion took place.
26. BFC argues that some erosion is allowed as long as the sail eroded can be retrieved and redistributed. It further argues that since the mulching was done prior to erosion, the requirements of the IAC performance standards were met.
27. It has many times been held that performance standards are generally preventative in nature. The Department does not have to wait for a major problem to occur before action can be taken.
28. In this case, the inspector noted that the mulching was insufficient and that the stockpile slopes were so close to vertical to almost ensure that erosion would take place. These factors alone are enough to support an NOV. The actual erosion need not have taken place although, in this case, it did occur.
29. Here the inspector tested the discharge from pond #10 and got a reading of 5.1 pH.
30. The parties agree that the acceptable limits are between 6 and 9 pH.
31. BFC argues the following:
a. No laboratory analysis was performed on the sample.
b. The inspector's pH meter was later determined to be malfunctioning.
c. That it has a lab analysis (entered into evidence) showing a pH reading of 6.76 taken 24 hours prior to the inspector's visit.
32. The Department answers with:
a. The pH malfunctioned a week after the BFC visit and only after it was caught in a downpour of rain.
b. There is a coal wash plant and an anhydrous ammonia tank discharging into pond #10. Either of these could cause a reading to vary greatly from day to day.
33. BFC's argument is well taken. It is possible that the inspector's pH meter was malfunctioning the day of the inspection.
34. Any doubt cast upon the pH meter could have been dispelled if a sample of the water had been collected and been subject to laboratory analysis.
35. Since the pH meter is in doubt and no laboratory verification is available, BFC has tilted the scales in its favor in regard to part 3.