Content-Type: text/html 93-323r.v7.html

CADDNAR


[CITE: Foertsch Construction Co., Inc. v. Department of Natural Resources, 7 CADDNAR 97 (1995)]

[VOLUME 7, PAGE 97]

Cause #: 93-323R
Caption: Foertsch Construction Co., Inc. v. Department of Natural Resources

Administrative Law Judge: Teeguarden
Attorneys: Bates, pro se; Prather
Date: May 11, 1995

ORDER

Notice of Violation N30617-S-37, Part 2 of 2, is hereby affirmed.

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 mine activities in the State of Indiana.

4. At all times relevant to these proceedings, Foertsch Construction Co., Inc. ("Foertsch") held surface coal mine permit S-57 issued by the DNR which allowed the surface mining of coal at the Little Sandy #1 Mine in Daviess County, Indiana.

5. On June 17, 1993, an authorized representative of the DNR issued a two part notice of violation N3-617-S-57 ("NOV") to Foertsch for violations of IC 13-4.1 and 310 IAC 12 ("I-SMCRA") at the Little Sandy #1 Mine.

6. An enforcement action under I-SMCRA is controlled by IC 4-21.5, and the administrative law judge is the ultimate authority.

7. On July 16, 1993 Foertsch filed a timely petition for review of Part 2 of the NOV.

8. The NOV was written for failing to control surface drainage.

9. The provisions violated according to the NOV are 310 IAC 12-5-17, 310 IAC 12-5-20, and 310 IAC 12-3-4, permit condition Part IV, Section G(2)(a).

10. 310 IAC 12-5-17(a)(1) requires that all drainage from a mined area be controlled by use of a siltation structure or some alternative technique prior to leaving the permit area.

11. 310 IAC 12-5-20(b) sets forth sediment control measures which need to be used before drainage leaves the permit area.

12. 310 IAC 12-3-4 requires that all mining must take place in conformance with the approved permit.

13. During the June 17, 1993 inspection, the inspector noticed no diversion berm had been constructed between a disturbed area and the edge of a woodland area which was not part of the permit area.

14. The inspector noticed some sediment deposited in the area, and also in a ditch along CR 650 East which was not on the permit site.

15. The inspector also noticed that regrading activities had removed or greatly reduced a topsoil berm and diversion 24 had been removed.

16. The mine contends that an excessive amount of rainfall on June 11, 1995 caused the sedimentation problem, and that controls were still present.

17. There is no question that there was a heavy rainfall the week before, and there is uncontradicted testimony to the fact that the rain caused flooding over highway US 50 near the mine.

18. This would be highly relevant if the Department was alleging a sedimentation or suspended solids violation.

19. The NOV was not issued for any allegation having to do with an actual sedimentation violation; all that is alleged is that drainage could flow off the site without passing through control structures.

20. Testimony presented by the mine indicated that as part of the reclamation process, the topsoil, the topsoil berms had been regraded.

21. The photographs introduced by the DNR (C1 through C4) show the areas in question and show little or no method to prevent surface water from flowing off-site without passing through a structure.

22. In 1994, the Court of Appeals reversed prior holdings of the agency and found that a valid notice of violation can be issued for failure to treat surface drainage before it leaves the permit area even if there is no suspended solids violation or other damage. See Peabody Coal co. v. Indiana Department of Natural Resources, 629 N.E.2d 925 (Ind. App. 1st District, 1994) which upheld a notice of violation based on 310 IAC 12-5-17(a) and 310 IAC 12-5-20(b) even though no applicable effluent limitation had been violated. The facts of Peabody, supra, discussed at 629 N.E.2d 927 are very similar to the case at bar, in that, recent final grading near the perimeter allowed uncontrolled surface drainage to leave the site without passing through a control.

23. The NOV should be affirmed.