Notice of Violation N10807-S-00100 is affirmed.
FINDINGS OF FACT
1. The department of natural resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is responsible for the regulation of surface coal mining in Indiana.
4. Associates Mining Company (also known as Nerco Coal Corporation) ("Mine") holds surface coal mine permit S-00100 which allows the mining of coal in the vicinity of Daviess county and Martin county in Indiana.
5. On August 7, 1991, a duly authorized representative of the DNR issued notice of violation N10807-S-00100 ("NOV'') to the mine.
6. The mine filed a timely request for administrative review under IC 4-21.5.
7. The NOV was issued for "failure to maintain the spillway of a designed water impoundment to prevent erosion."
8. Provisions of law allegedly violated are 310 IAC 12-5-24(a)(6) and 310 IAC 12-5-24(g).
9. 310 IAC 12-5-24(a)(6) provides that "the design, construction, and maintenance of structures shall achieve the minimum design requirements applicable to structures constructed and maintained under the watershed protection and Flood Prevention Act, P.L. 38-566 (16 U.S.C. 1006)."
10. 301 IAC 12-5-25(g) provides that "[a]ll dams and embankments shall be routinely maintained during the mining operations. Vegetative growth shall be cut where necessary to facilitate inspection and repairs. Ditches and spillways shall be cleaned. Any combustible materials present... and all other appropriate maintenance procedures followed."
11. Evidence at the hearing on this matter showed the design of the spillway was adequate and was approved approximately seven years ago by DNR.
12. The evidence also showed that water was seeping underneath the spill pipe rather than exiting through the pipe itself.
13. At the time of the inspection, the inspector believed the water was "piping", that is, the water was exiting the pond under the pipe and traveling the length of the pipe and exiting at the end of the pipe but traveling the length of the system through soil rather than the pipe.
14. Piping is potentially a serious environmental hazard since over a period of time, it can cause serious problems with erosion and sedimentation and possible dam failure.
15. The DNR conceded at the hearing that the spillway system was not piping.
16. In opening argument, the DNR agreed that there was no damage.
17. The evidence produced by the parties at the hearing showed the problem to be a hole in the bottom of the pipe approximately seven feet from the end.
18. When water levels were high, water flowed through the pipe in the manner in which the system was designed to work.
19. When water levels declined, water had the opportunity to seep through the hole and eventually saturate the soil underneath the pipe.
20. Over a period of time, this caused a small flow of water beneath the end of the pipe.
21. The approved "fix" for the problem was to remove the last eight feet of pipe. Otherwise, the area remained unchanged. This was accomplished approximately one week after receiving the NOV.
22. The best guess the mine could make of how the problem occurred was that the puncture appeared during installation. This is logical, as the chances of such a puncture in the bottom of the pipe seven feet from the end otherwise occurring is slim. The DNR did not disagree with this explanation, nor did it offer any other explanation.
23. The
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evidence most favorable to the DNR shows a very small amount of erosion near the end of the pipe. This area is rip-rapped so environmental harm is negligible.
24. The inspector also testified that since the problem was a puncture near the end of the pipe and not "piping", the dam was in no danger of failure.
25. The evidence thus shows that the potential for environmental damage was very slight.
26. There was no up-pipe erosion.
27. The mine contends that to uphold the NOV is being hyper-technical and that the intent of the regulations is to prevent measurable damage.
28. Common sense and equity are with the mine in this case. Unfortunately, the law is not.
29. Both state and federal surface mining laws were designed to be hyper-technical and regulate mines without regard to damage, the threat of damage, or fault.[FOOTNOTE 1]
30. This concept of violation without damage is best stated in the Interior Board of Land Appeals decision of Turner Brothers, Inc. v. Office of Surface Mining Reclamation and Enforcement, (May 31, 1988) IBLA 86-336. In this case, surface drainage from the disturbed area was leaving the permit area without passing through a sediment pond. The mine contended there could be a violation only if there was a showing of actual harm. The Appeals Board held that the sediment pond requirement is a preventative measure, thus proof of actual occurrence of harm is not necessary to establish a violation. See also Peabody Coal Company v. DNR, 4 Caddnar 68 (1989), and Abbott Coal and Energy Company v. DNR, 2 Caddnar 1 (1984).
31. Both Caddnar cases cited by the Mine (2 Caddnar 55, and 3 Caddnar 20) deal with violations involving ponds, embankments, and ditches. These involve erosion controls and appropriate maintenance is somewhat subjective. Neither directly applies.
32. The fact remains that the evidence shows a minor defect in construction and maintenance of the structure which allowed small amounts of water to exit the pipe in an improper place, thus leading to an almost insignificant amount of erosion; however, this erosion did occur because of the hole in the pipe.[FOOTNOTE 2]
33. The NOV is affirmed.
FOOTNOTES
1. Sec. 310 IAC 12-6-12 which discusses points to be assigned to violations for the purpose of assessing penalties under 310 IAC 12-6-12.5. 310 IAC 12-6-12 factors in items such as "no probability of occurrence", "no negligence", and "no actual or potential damage" in assessing a penalty.
2. In engineering cross section of the basin used to obtain DNR approval in 1984 was introduced as exhibit 1. The cross section shows the spillway and does not include a hole in the pipe.