[NOTE: PIKE CIRCUIT COURT SET ASIDE THE ORDER OF THE ALJ AND REMANDED IT BACK FOR PROCEEDINGS. PIKE CIRCUIT COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE SET FORTH BELOW. PURSUANT TO THE PIKE CIRCUIT COURT, THE NOV IS VACATED.]
Notice of Violation N20527-6-126 is affirmed.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is the state agency charged with the regulation of the surface coal mining operations in Indiana.
2. IC 13-4.1, IC 4-21.5 and 310 IAC 12 apply to these proceedings.
3. At all times relevant to these proceedings, Solar Sources, Inc. ("Solar") held surface coal mine permit S-126 issued by the DNR which allowed the surface mining of coal at the Prides Creek mine in Pike County.
4. On May 27, 1992, an authorized representative of the DNR issued Notice of Violation N20527-S-126 ("NOV") to Solar.
5. On June 15, 1992, Solar filed a request for administrative review of the NOV.
6. The administrative law judge is the ultimate authority within the meaning of IC 4-21.5 with respect to administrative reviews of coal mine enforcement actions by the DNR.
7. During the May 27, 1992, inspection of the B-126 permit area, the inspector noticed a potential problem with discharge from Basin E-2.
8. The inspector ran a test which showed the level of iron in the discharge sample to be in excess of the 6.0 mg/l allowed by the NPDES permit. The inspector then issued the NOV.
9. Solar contends that because of recent rainfalls, the limits of the NPDES permit do not apply and the sample tested within the alternate effluent limitation.
10. The DNR agrees that if the alternate effluent limits are used, there is no violation, but contends that the normal NPDES permit limits should apply. The mine does not contend that the sample was improperly taken or tested.
12. The documents provided by the parties in their respective motions for summary judgment and the stipulated facts indicate there is no dispute as to material facts and therefore pursuant to IC 4-21.5-3-23, summary judgment is appropriate.
13. The NPDES permit in question provides that a precipitation event is a rainfall, snow melt, or ice melt which causes discharge or an increase in the volume of discharge.
14. 310 IAC 12-0.5-91 defines a precipitation event as "a quantity of water resulting from drizzle, rain, snow, emanating from snow cover as snow melt, sleet, or hail in a limited period of time."
15. The NPDES permit in section b on page three specifies the alternate effluent limitations for precipitation events apply to "any discharge or increase in the volume of a discharge, caused by precipitation within any 24 hour period less than or equal to the ten year, 24 hour storm event. . . .
16. Weather data supplies by the parties shows that weather stations in Pike and Gibson County received 1 to 1.6 inches of rain as measured on May 24. This information was based on the records of the state climatologist, Ken Scheeringa. The readings are taken at 7:00 a.m. on the date in question, and therefore, in many cases, much of the rain occurred the previous day.
17. As of 7:00 a.m. on May 25, 1992, no rainfall was reported at Gibson and Pike County station.
18. Taking official notice of the rest of the state climatologist's data for May 1992, no measurable precipitation was reported in this area on May 26, or May 27, 1992.
19. The NOV and inspection report accompanying it indicate that as of 10:00 a.m. on may 27, 1992, the weather was partly sunny and 50 degrees, and the ground was wet in some places and dry in some areas.
20. The evidence most favorable to Solar
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shows no precipitation event had occurred for over 75 hours at the time the discharge sample was taken. Some of the permit area was dry by the time the sample was taken. Under these circumstances, the exemption and alternate standards cannot apply.
21. The NOV is affirmed.[FOOTNOTE i]
FOOTNOTE
1. The parties spent considerable effort discussing the effect of Peabody v. DNR, 4 Caddnar 13. A cursory reading of that case shows that administrative law judge Drew was not given much evidence. Since the burden of proof is on the DNR on an enforcement case, the failure to introduce such basic information as the NPDES permit taints any precedential value.
PIKE CIRCUIT COURT'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOLLOW
1. The Department of Natural Resources (DNR) is the state agency charged with the regulation of surface coal mining operations in Indiana.
2. Solar Sources, Inc. (Solar) is in the business of mining coal. At all times relevant to this proceeding it held surface coal mine permit S-126, issued by DNR which allowed surface mining of coal at the Prides Creek mine in Pike County.
3. On May 27, 1992, an inspector for DNR issued Notice of violation N20527-S-126 (NOV) to Solar for "[f]ailure to maintain water discharge effluent standards within Federal and State water quality statutes. Fe [is greater than] 10.0 mg/1," in violation of 310 IAC 12-5-16 (e) (d) , 12-5-17 (a) (2) and 12-3-4 Condition of Permit Part IV(E).
4. Solar timely filed a request for administrative review. On cross motions for summary judgment, the Administrative Law Judge affirmed the issuance of the NOV. Solar then timely filed this action for judicial review of that decision.
5. In order to protect the hydrologic balance, DNR has issued regulations which require surface mine operators to build and maintain systems to control surface runoff to protect the watershed. 310 IAC 12-5-16 through 125-32; 12-3-41; 12-3-44; 12-3-47; 12-3-49; 12-3-51. Such systems typically consist of diversion ditches, designed to carry surface water to specific locations, and sediment ponds, designed to catch and hold water until settleable solids settle out.
6. Because a sediment pond is a potential point source for water pollution within the meaning of 33 U.S.C. Section 1362(14), an operator must obtain a National Pollutant Discharge Elimination System (NPDES) permit from the Indiana Department of Environmental Management (IDEM) prior to construction of a pond.
7. Solar obtained NPDES Permit No. 0047988 from IDEM for Basin E-2 at the Prides Creek mine. That permit is incorporated into Permit S-126, issued by DNR. The permit and federal regulations require periodic water monitoring reports and set out limitations for the discharge of specific potential pollutants.
8. The only time basin E-2 discharges is following a rainfall.
9. On May 23, 1992 there was a rainfall of almost an inch. Following that rainfall, Basin E-2 began to discharge and continued to discharge until May 27.
10. The NOV was written on May 27 because iron in the discharge was measured by the inspector at more than 10.0 mg/l.
11. The regulations allegedly violated by Solar are as follows: 310 IAC 12-5-16(c) (d) provides:
(c) In no case shall Federal and Indiana water quality statutes, regulations, standards or effluent limitations be violated.
(d) operations shall be conducted to minimize water pollution and, where necessary, treatment methods shall be used to control water pollution. [This section then goes on to list specific types of acceptable practices.] 310 IAC 12-5-17(a)(2) provides: (a) (2) Siltation structures and other treatment facilities shall be operated and maintained to achieve applicable Federal and state effluent limitations. 310 IAC 12-3-4 provides: All persons shall conduct surface coal mining and reclamation operations under permits issued pursuant to the Act [IC 13-4.1] and these Regulations, and shall comply with the terms and conditions of the Act, these Regulations, and the permit. Part IV(E) of permit S-126 is the NPDES permit. The section cited by Inspector Hart is found on page 4 of 22, and provides: During the period beginning on the effective date of this permit and lasting until the expiration date or until the performance bond has been totally released, the permittee is authorized to discharge from active mining areas designated as having new source alkaline mine drainage through outfall(s) listed on page 13. Such discharge shall be limited and monitored by the permitted as specified below:
Discharge Limitations
Effluent Daily Daily Units
Characteristics Average Maximum
Flow Report Report MGD
Total Suspended
Solids 35, 70, mg/1
Total Iron 3.0, 6.0, mg/1
(Measurement Frequency and Sample Type are not reproduced here.)
12. Page 5 of 22 of the NPDES permit contains alternate discharge limitations:
ALTERNATE EFFLUENT LIMITATIONS FOR PRECIPITATION EVENTS
Any discharge or increase in the volume of a discharge, caused by precipitation within any 24 hour period less than or equal to the 10-year, 24-hour storm event may comply with the following limitations instead of the otherwise applicable limitations: pH is limited to the range of 6 to 9 and settleable solids are limited to a maximum concentration of .5 ml/l.
13. The limitations and alternate limitations are identical to the limitations set out in federal regulations (40 CFR 434.63).
CONCLUSIONS OF LAW
1. The alternate limitations of 40 CFR 434.63 and of Solar's NPDES permit apply whenever a discharge is caused by the defined amount of precipitation.
2. There is no limit on the amount of time which may elapse between the defined precipitation and the discharge; the only question is whether the precipitation caused the discharge.
3. It is undisputed that Basin E-2 discharges only as a result of precipitation. The discharge from Basin E-2 on May 27, 1992 was caused by precipitation within a 24 hour period less than or equal to the 10 year, 24-hour storm event, within the meaning of the NPDES permit and 40 CFR 434.63.
4. Because the discharge was caused by the defined rainfall event, the alternate effluent limitations of the NPDES permit and of 40 CFR 434.63 were in effect on May 27, 1992 for Basin E-2.
5. The measurement of iron does not show a violation of the alternate limitations. There was no evidence showing any violation of the alternate effluent limitations.
6. Notice of violation N20527-S-126 is contrary to law and should be vacated.
ORDER: IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the Order of the Administrative Law Judge of April 26, 1993 affirming the issuance of Notice of Violation N2052708-126 be, and hereby, is, set aside and the cause remanded for proceedings not inconsistent with this Order.