[CITE: J.H. & L. Coal v. Department, DOR, 5
CADDNAR 178 (1991)]
[VOLUME 5, PAGE 178]
Cause #: 90-113R
Caption: J.H. & L. Coal
v. Department, DOR
Administrative Law Judge: Rider
Attorneys: Shadley; Grimmett
Date: July 9, 1991
Order
Cessation
Order C00317-S-00143 is vacated.
FINDINGS OF FACT
1.
On April 18, 1990, Daniel R. Weese, on behalf of J.H.
& L. Coal Company, Inc. (JHL), filed a request for review of Cessation
Order C00317-S-00143 (CO).
2.
JHL holds permit S-00143 which allows it to conduct surface coal mining
operations at its Arthur Mine in Greene County.
3.
IC 4-21.5, IC 13-4.1, 310 IAC 12 apply to this proceeding.
4.
As of July 1, 1991, the administrative law judge is the ultimate authority for
this proceeding as prescribed by IC 13-4.1-2-1.
5.
The CO was issued for failure to abate Notice of Violation N00307-S-00143, Part
2 of 4 (NOV), by the prescribed date (originally March 12, 1990 extended to
March 16, 1990).
6.
The NOV was issued on March 7, 1990, and the required abatement action for part
2 of 4 was to "cease discharge to the extent possible and bring effluent
pH within the approved limits."
7.
John C. Voigt, an authorized representative of the division of reclamation
(DOR), issued both the NOV and the CO.
8.
JHL admits that as of the extended abatement date, the abatement action had not
been complied with but argues that since it did what was necessary to abate the
NOV, the CO should not have been issued.
9.
Both parties filed motions for summary judgment which were denied by the
administrative law judge on February 6, 1991.
10. The
Department had sought summary judgment on the basis of a legal duty to write a
CO if an NOV is not abated in a timely manner.
11.
The Department further maintained that any efforts to abate the NOV would be
considered only in determining the penalty assessment.
12.
The main thrust of the JHL motion was that the inspector should have granted an
automatic extension to the abatement date because there was no "good cause
shown" to issue the CO.
13.
In denying the motions, the administrative law judge cited J.H. & L. Coal Co. v. DNR, 5 Caddnar
161, which was adopted by the natural resources commission on February 26,
1991.
14. J.H. & L. Coal Co., 5 Caddnar 161, specifies that generally the abatement date
for an NOV cannot be appealed through a subsequent CO.
15.
Further, that decision stands for the premise that a miner failing to abate an
NOV by the prescribed date, without excuse, is good cause to issue a CO.
16.
In his denial, the administrative law judge also cites Chieftain Coal Co., Inc. v. DNR, 4 Caddnar
48, (October 16, 1987) (Footnote 1) which outlines an exception to the general
rule articulated in J.H. & L. Coal Co. v. DNR, 5 Caddnar
161 (1991), in a case where there is an ambiguity as to the action required for
abatement in the NOV and where the operator makes a colorable effort at
compliance.
17.
The administrative law judge points out that in this case the inspector gave no
direction on how to abate the NOV (of course, there is no requirement for such
direction).
18.
A lack of direction would indicate that the miner should use the best
technology/method available to correct the problem.
19.
The miner maintains that he did use the best technology available and that he
had no reason to believe his efforts would not bring the pH level into
compliance by the prescribed date.
20.
The administrative law judge held, in his denial, that an exception to J.H. & L. must be offered in a case like this to
preclude miners from automatically filing appeals to protect themselves from
best effort abatement attempts that fail due to no fault of the miner.
21.
The administrative law
[VOLUME 5, PAGE 179]
judge outline questions of fact
that must be decided in the miner's favor in order
for the Chieftain exception to be
invoked. They are as follows:
a. no direction was given on
the face of the NOV as to specific abatement action;
b. in abating the violation,
the best technology available was used; and
c. there was a reasonable
expectation of success within the abatement period.
22. Since
the uncontroverted evidence in this case shows that the pH level was in
compliance three days after the CO was issued and that the water had received
no additional treatment subsequent to the inspection which resulted in said
issuance, the invoking of the Chieftain
exception here would mean the CO must be vacated.
23.
Evidence shows that, as stated in Finding 17, the NOV contained no specific
abatement action. The inspector simply said, "Do it!"
24.
The miner took the following action:
a.
He chose to abate with hydrated lime (HL) which appears to be the most alkaline
substance available.
b.
On March 8, 1990, 300 lbs. of HL was used.
c.
Between March 12-16, 1990, 1,000 lbs. of HL was added.
25.
Evidence shows that HL is arguably the best technology available to raise a pH
level. In the past, anhydrous ammonia was used but its use is now precluded due
to new IDEM water quality rules.
26.
The Department argues that sodium hydroxide (SH) was on site and could have
been used more quickly than the HL used by JHL, the last 1,000 lbs. of which
had to be ordered.
27.
The SH was in 680 lb. tanks and JHL maintained that the ground around the water
in question was too soft to accommodate such heavy tanks. No evidence was
presented to controvert this testimony.
28.
Also, there was no evidence presented to prove that SH is a better technology
than HL.
29.
The miner's representative (Daniel R. Weese) was
convincing in his testimony when he swore that he was certain of success by the
abatement date and he was shocked when he received the CO.
30.
Looking at the evidence on the whole it is clear that the miner used what could
be the best technology available to raise the pH level of the water in
question; and he had every reason to believe his efforts would abate the NOV by
the prescribed date.
31.
JHL is allowed to invoke the Chieftain
exception of the facts presented.