Notice of Violation N30319-S-45 is affirmed. The civil penalty assessment imposed in connection with Notice of Violation N30319-S-45 is reduced from $1,500 to $900.
FINDINGS OF FACT
1. The Indiana 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 the state agency charged with the regulation of surface coal mining operations.
4. At all times relevant to these proceedings, Green Construction of Indiana, Inc. ("Green") held surface coal mine permit number S-45 issued by the DNR which allowed the surface mining of coal at the Craney mine in Daviess County, Indiana.
5. On March 19, 1994, a duly authorized representative of the DNR wrote Notice of violation N30319-S-45 ("NOV") citing Green for two violations.
6. On April 23, 1993, Green filed a petition for administrative review of part two of the NOV only.
7. Subsequently, the DNR assessed a penalty of $1,500 for part two of the NOV.
8. On June 21, 1993 Green filed an amended petition for administrative review so as to include review of the civil penalty assessment ("CPA").
9. The administrative law judge is the ultimate authority for the DNR within the meaning of IC 4-21.5 in matters involving surface coal mine enforcement actions and penalty assessments.
10. Part two of the NOV was written for failing to achieve pH limitations in a sediment pond in violation of 310 IAC 12-5-16(c), 310 IAC 12-5-17, 310 IAC 12-5-21(c), and Part IV(E)(4)(b) of the S-45 permit.
[sic]12. 310 IAC 12-5-17 requires the control of surface drainage, usually by siltation structures, before leaving the permit area. It also requires the siltation structures to "be operated and maintained to achieve applicable federal and state effluent limitations."
13. 310 IAC 12-5-21(c) requires siltation structures to comply with 310 IAC 12-5-17.
14. Part IV(E)(4) of the S-45 permit (Exhibit B) requires information be provided about National Pollutant Discharge Elimination Systems (NPDES) in the permit. Exhibit C contains the actual NPDES permit governing this site.
15. The NPDES permit sets out monitoring and discharge limits.
16. The alleged violation took place at Basin #11.
17. Basin #11 is designated "a new source undetermined mine drainage" in the NPDES permit.
18. Pages two and three of the NPDES permit set forth the discharge limitations for new source drainage and the limits for pH are not less than six or more than nine.
19. The NPDES permit requires the pH to remain between six and nine even under unusual weather conditions.
20. The NOV was written because the inspector tested two samples for pH and obtained a reading of 9.25 for one of them.
21. The inspector was using standard equipment and performed a calibration test. He also took into account the temperature of the water.
22. The reading was taken four feet from the bottom of the spillway.
23. The NPDES permit discusses sampling on pages 11, 12, and 13.
24. The mine contends that the reading was so close to the limit that the margin of error prohibits a finding that there was a violation.
25. If the reading had been 9.1, the administrative law judge might agree with this contention.
26. It would have been helpful if either party had presented evidence of equipment tolerances. None was presented, however, the testing device was properly calibrated and adjusted for water temperature. The device produces a reading pH to the nearest hundredth. From technical training and
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experience, the administrative law judge concludes that such a device should be accurate to within approximately .1 pH.
27. A reading of 9.25 then indicates by a preponderance of the evidence that a minor violation of the NPDES permit occurred at the point where the sample was taken.
28. The mine further contends that even if a violation occurred, it was due to an "upset" condition as defined in the NPDES permit.
29. Upset conditions (defined on page 19 of the NPDES permit) act as an affirmative defense to a violation.
30. The mine produced considerable testimony, unrebutted for the most part, as to the reason for the pH reading at or above nine.
31. The mine's reclamation director provided an interesting history of Basin 11.
32. This basin collects run off from a coal crushing area and the run off is acetic in nature.
33. The basin is hard to access.
34. The basin is monitored frequently because of acid drainage and on March 4, 1993, Green's monitoring showed a pH of 6.1.
35. The mine promptly ordered a delivery of sodium hydroxide and on or about March 12, 1993, dumped 800 to 900 gallons of a 20% solution of the caustic material (as specifically permitted by the NPDES permit) into the basin.
36. The mine theorized that since the caustic solution is heavier than water, it did not mix properly and settled. Then a temperature inversion caused the layer to rise and lead to the violation.
37. Assuming the mine's theory is correct (and it probably is, other tests taken near this time showed compliance which lends credence to the "layer" theory) it still does not appear to fall under the concept of "upset condition" because it does not appear to have been caused by factors beyond the reasonable control of the permittee. Taking no steps to encourage "mixing rather than allowing nature to provide the mix in a dormant pond is not beyond the reasonable control of the permittee.
38. In short, the evidence is sufficient to conclude that there was a violation of the NPDES which is not excusable as an upset condition, and therefore a violation of the provisions of the approved permit and 310 IAC 12-5-16 and 17.
39. The NOV should be affirmed.
40. CPAs are imposed in accordance with 310 IAC 12-6-12 and 310 IAC 12-6-12.5 which set up a fairly rigid point structure.
41. The DNR assessed the following points: Prior History 10, Probability of Occurrence 5, Extent of Drainage 8, Negligence 12; TOTAL 35 See Exhibits E, G, and H.
42. Thirty-five points translates into a fine of $1,500.
43. Green does not challenge the ten points assessed for prior history.
44. Five points for probability of occurrence is the lowest point total for "unlikely".
45. Given the fact that the pH was just barely over the limit on one test and that other tests showed compliance, it appears to the administrative law judge that "insignificant" is a more appropriate category than unlikely.
46. In Indiana Department of Natural Resources v. United Refuse Company, 615 N.E.2d 100, (Ind. Sup. Ct. 1993), the Indiana Supreme Court held that proceedings in front of an administrative law judge are totally "de novo" and the administrative law judge acts as a trial judge sitting without a jury in actions commenced under IC 4-21.5. The Court also specifically found that merely examining the DNR action to see whether or not the agency's initial determination was reasonable was improper and that the administrative law judge had an independent duty to weigh the evidence properly presented during the hearing and make a decision.
47. In this CPA, two points for "insignificant" probability of occurrence should be assessed.[FOOTNOTE 1]
48. Eight points were assessed for extent of damage. Under 310 IAC 12-6-12(b)(2), this is the minimum number of points which can be assessed for a violation involving harm extending outside the permit area. Since the violation involves discharge under the NPDES permit, the discharge is going off-site. Since the violation itself is relatively minor, a minimum point assessment is appropriate but cannot be reduced below eight points.[FOOTNOTE 2]
49. Twelve points were assessed for negligence. This is the maximum number of points which can be assessed for a violation involving lack of diligence, reasonable care, etc.
50. Higher point totals can only be assessed for reckless or intentional conduct.
51. As little as one point can be assessed for conduct involving lack of reasonable care.
52. The DNR based its assessment of twelve points for negligence on the basis that three months earlier, Green had received a notice of violation for over treating Basin II. See Exhibit F.
53. That violation involved a pH reading of 10.1 resulting from over treating the (sic acctic) acetic basin with a 50% solution of caustic material.
54. While this involves an over treatment of the same basin, it can
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hardly be concluded that the degree of negligence involved was almost reckless conduct.
55. The mine monitored the basin frequently and commenced treatment at an appropriate time.
56. This time, the mine used a 20% solution instead of a 50% solution.
57. This time, the mine almost got the amount of treatment instead of over shooting the pH limit by more than one.
58. In short, this violation does not display a high degree of indifference or neglect.
59. The main failure of the mine in this case appears to be its failure to induce a homogeneous mix of the water in the basin and the caustic material.
60. The number of points assessed for lack of due case should be eight.
61. The total number of points assessed then becomes 29.
62. This translates to a CPA of $900.
FOOTNOTES
1. A similar conclusion was reached in Green Construction v. Department of Natural Resources, 7 CADDNAR 8 (1993).
2. A similar conclusion was reached in Green, supra.