[CITE: B.F.C. Coal Co. v. Department of Natural Resources, 5 CADDNAR 167
(1990)]
[VOLUME 5, PAGE 167]
Cause #: 89-161R
Caption: B.F.C. Coal Co. v.
Department of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: pro se (Owen); Law
Date: December 26, 1990
ORDER
Notice
of Violation N00426-S-00220 is vacated.
FINDINGS OF FACT
1.
The Department of Natural Resources (DNR) is an agency within the meaning of IC
4-21.5.
2.
The DNR is the state agency responsible for the regulation of surface coal
mines.
3.
BFC Coal Company, Inc. (BFC) operates a surface coal mine in Daviess County,
Indiana under the authority of permit number S-00220 issued by the DNR.
4.
The Natural Resources Commission (NRC) is the ultimate authority within the
meaning of IC 4-21.5 with respect to all requests for administrative review of
DNR actions.
5.
IC 4-21.5, IC 13-4.1 and 310 IAC 12 apply to these
proceedings.
6.
On April 26, 1990, an authorized representative of the DNR issued Notice of
Violation N004260-S-00220 (NOV) to BFC.
7.
The NOV alleged that BFC failed " ... to obtain a valid construction
permit for a water treatment facility prior to construction and failure to
report new and different water treatment facilities (settling basins) which
need to have authorized outfall points.
8.
The settling basins involved in the NOV were 2A and 7A.
9.
The regulations alleged to be violated were 310 IAC 12-516(C), and 410 IAC
13-3-4.
10.
The required action to abate the violation was to submit to the DNR, Division
of Reclamation, a copy of the letter or package sent to the Indiana Department
of Environmental Management (IDEM) requesting construction permits and
authorized outfall points.
11.
At no time relevant to these proceedings did the DNR ever allege a substantive
water quality or effluent violation.
12.
Testimony from the DNR representative during the hearing indicated Basin 2A was
constructed prior to applying for a permit from IDEM. Basin 7A was permitted
but did not have an IDEM outfall point permit.
13.
BFC introduced into evidence a copy of a letter to the DNR dated May 24, 1989,
in which the mine submitted copies of designs for Basin 2A. (Claimant's Exhibit
3)
14.
BFC introduced a letter from IDEM stating that IDEM would not review plans
submitted from the mine. The letter, signed by Richard R. Milton, Facility
Construction Section, Office of Water Management, stated that all construction
permits for sediment basins must be submitted to the DNR,
Jasonville Office, who then will transmit the application to IDEM. (Claimant's
Exhibit 4)
15.
This is one of the few instances where the doctrine of estoppel
can be applied against a governmental entity.
16.
With regard to Basin 2A, BFC submitted plans to DNR Jasonville in May of 1989.
17.
IDEM will not review plans for a sediment basin unless DNR Jasonville submits
the plans.
18.
BFC is thus the victim of a bureaucratic nightmare in which it has no knowledge
to IDEM, and IDEM will not take any documents directly from BFC.
19.
Under these circumstances, it is a manifest injustice to penalize a mine who
has submitted plans to DNR which DNR approved but who could not submit the same
plans to IDEM because IDEM will not accept them from anyone but DNR.
20.
The action required to abate the violation stated that Reclamation must receive
the package sent to IDEM on Basin 2A.
21.
Because of the way IDEM and DNR handle these permits, the conclusion is drawn
that the required package was submitted in May of 1989, eleven months prior to
the issuance of the NOV.
22.
That portion of the NOV dealing with the failure to properly submit plans for
Basin 2A is vacated.
23.
310 IAC 12-5-16(c) states "In no case shall Federal and Indiana water
quality
[VOLUME 5, PAGE 168]
statutes, regulations, standards, or
effluent limitations be violated."
24.
BFC correctly contends that no substantive quality violation has occurred.
25.
310 IAC 12-3-4 provides that a permittee must conduct
mining operations as provided by its permit.
26.
Surface mining permits include provisions for IDEM permits; and therefore, the
violation of an NPDES permit issued to BFC as part of its coal mining permit
can be treated as a violation of the mining permit.
27.
The IDEM permit issued to BFC was introduced into evidence as Respondent's
Exhibit B. Page 13 of this permit lists the outfalls. Outfalls for Basins 2A
and 7A are not on this list.
28.
Exhibit B, page 18, contains a section dealing with changes in discharge. If
the proposed changes do not cause quality problems, the mine's obligation is to
give notice in advance to the permitting authority.
29.
The evidence shows that both Basin 2A and 7A outfall points were reported to
the DNR long before the NOV was written.
30.
The evidence also shows that IDEM expects to receive such information from the
DNR and not the operator; and thus, the DNR becomes an agent of IDEM for
purposes of receiving proposed changes.
31.
The conclusion is then drawn that BFC did give the notice required by the NPDES
permit of an outfall change to an agent of IDEM for both Basin 2A (May 24,
1989), and Basin 7A (date unknown by DNR approved the basin as part of an
incidental boundary revision).
32. Accordingly,
that portion of the NOV dealing with the failure to notify the permitting
authority of outfall points for Basin 2A and Basin 7A is vacated.