CADDNAR

[CITE: Foertsch Construction Co. v. DNR, 3 CADDNAR 27 (1985)]

 

[VOLUME 3, PAGE 27]

 

Cause #: 85-056R

Caption: Foertsch Construction Co. v. DNR
Administrative Law Judge: Shapely
Attorneys: Bates; Spicker, DAG
Date: March 22, 1985

ORDER

 

[NOTE: THE UNDERLYING NOTICE OF VIOLATION WAS VACATED ON DECEMBER 12, 1985.]

Now, therefore, based upon the above Findings of Fact, it is Ordered as follows:

 

1. Temporary relief from Notice of Violation #N50222-S-00055, Violation 1 of 2 is granted, pending the Director's final determination on review of Notice of Violation #N50222-S-00055, Violation 1 of 2.

 

2. Temporary relief from Notice of Violation #N50222-S-00055, Violation 2 of 2 is denied.

 

FINDINGS OF FACT

 

1. The Director of the Department of Natural Resources (the "Director") is included in the definition of "agency" as used in IC 4-22-1-2 and is duly empowered to conduct administrative hearings pursuant to IC 4-22-1.

 

2. The Director has jurisdiction over the subject matter and the parties to this action.

 

3. Pursuant to IC 13-4.1-2-2 the Director may delegate any or all of the powers assigned to him to other employees of the Department.

 

4. Sue A. Shadley is an employee of the Department of Natural Resources.

 

5. By letter dated March 4, 1985, and received March 5, 1985, Foertsch Construction Company, Inc. ("Foertsch") requested temporary relief from Notice of Violation #N50222-S-00055, Violation 1 of 2 and Violation 2 of 2.

 

6. By written entry dated March 7, 1985, the Director delegated to Sue A. Shadley the power to determine whether or not to grant the temporary relief requested by Foertsch, which forms the basis of this administrative action.

 

7. Foertsch holds permit S-00055 to conduct surface coal mining operations at its Little Sandy #3 mine in Daviess County pursuant to IC 13-4.1 and 310 IAC 12.

 

8. Notice of Violation #N50222-S-00055 Violation 1 of 2 was issued by Charles Yeager, an authorized representative of the Director, to Foertsch for failure to meet applicable Indiana and Federal effluent limitations in violation of 310 IAC 12-5-16(c) and 310 IAC 12-5-24(a)(1) where the emergency spillway of Basin #3 discharges into Dinken Creek. The Notice required Foertsch place additional rip rap in the emergency spillway until vegetation can be established as approved in the permit by March 22, 1985 and to seed and mulch the portions of the emergency spillway which are not rip rapped by April 18, 1985.

 

9. On and within 24 hours of the time of the alleged effluent violation occurred, it had rained, light, moderate and heavy.

 

10. At four locations ten to fifteen miles to the northwest, northeast, southwest and southeast of permit S-00055, the amount of rain that fell within a 24 hour period of the violation did not exceed that expected of a ten-year twenty-four hour storm event.

 

11. The Federal and State effluent limitation which apply during an event equal to or less than a ten-year, twenty-four hour storm is .5 milliliters of settle able solids per liter of water.[FOOTNOTE 1]

 

12. Water being discharged into Dinken Creek was measured on February 22, 1985 at 1.0 milliliters of settle able solids per liter of water.

 

13. On February 22, 1985 portions of Permit S-00055 were covered with snow, and/of frozen and Sediment Basin #3 contained ice such that water entering the basin flowed on top of the ice, except for around the edges where the ice had begun melting.

 

14. Foertsch's Sediment Basin #3 discharged water through an emergency spillway over rip rap into a 100 to 200 foot long channel that discharged into Dinken Creek.

 

15. Foertsch also had constructed a diversion ditch to divert water from unaffected areas around the affected area, in order to not be required to be responsible for the quality of that water.

 

16. Water in Foertsch's diversion ditch entered the same channel the emergency spillway flowed through, approximately 20 feet below the emergency spillway.

 

17. The water measured at 1.0 milliliters of settle able solids per liter of water, was a combination of water discharge from Sediment Basin #3, water in the diversion ditch, which had not crossed the affected area, and water which

 

[VOLUME 3, PAGE 28]

 

had not crossed the affected area, but which had not passed through a Sediment Basin.[FOOTNOTE 2]

 

18. Water entering the diversion ditch from the
unaffected area was measured to contain 2.0 milliliters of settle able solids per liter of water.

 

19. The Notice of Violation required Foertsch place additional rip rap in the emergency spillway as required in the permit and seed and mulch portions of the emergency spillway which were not rip rapped.[FOOTNOTE 3]

 

20. There is no reasonable expectation that additional rip rap in the emergency spillway or that situation which existed on February 22, 1985.

 

21. Foertsch has shown it has a substantial likelihood that the Findings of the Director on review of Violation 1 of 2 will be that the abatement action should be modified.

 

22. The design of Sediment Basin #3 was approved by the State Board of Health and was constructed as designed, and certified by a professional engineer.

 

23. Water entering the diversion ditch above Dinken Creek was measured at 2.0 milliliters of settle able solids and had been diluted to 1.0 \ milliliters to settle able solids by the time it entered the creek.

 

24. The emergency spillway was rip rapped.

 

25. The amount of settle able solids entering Dinken Creek could be expected to no longer be that large once the rain stopped.

 

26. Granting temporary relief from the abatement action specified in Violation 1 of 2 will not adversely affect the public health or safety or cause significant imminent harm to land, air or water resources.

 

27. Notice of Violation #N5022-S-00055, Violation 2 of 2 was issued by Charles Yeager, an authorized representative of the Director, to Foertsch for failure to pass all surface drainage from the affected area through a siltation structure in violation of 310 IAC 12-5-17(a)(1) at Diversion 1A, approximately 140 feet north of Basin #1. The Notice required Foertsch clean out diversion 1A to meet the diversion design specified in the approved permit and to temporarily stake straw bales along this diversion breech.

 

28. Water from the area affected by mining was intended to pass through diversion 1A and enter Basin #1.

 

29. On February 22, 1985, water in Diversion 11A was flowing over the top of the diversion and entering Dinken Creek without first entering and Sediment Basin.

 

30. 310 IAC 125-17 requires all surface drainage from the disturbed area be controlled through use of a siltation structure.

 

31. Permit S-00055 provided that the diversion would be a minimum of 1 foot deep.

 

32. The diversion was 1 foot deep.

 

33. It is reasonable to require the diversion be cleaned out to make a deeper channel for the water to pass through, in order to prevent it from flowing over to top of the diversion.

 

34. Foertsch has not shown that it has a substantial likelihood of prevailing on the merits of the review of Violation 2 of 2.

FOOTNOTES

 

1. See 40 CFR 434.63. The NPDES New Source Performance Standard only applies to certain sources, basically those where construction was commenced after May 29, 1981k. No direct evidence was given as to when construction of this mine occurred, although it appears it would have been after May 29, 1981.

2. See 40 CFR 434.63. This standard applies at the discharge point specified in the NPDES permit. The Respondent gave detailed testimony of where the sample alleged to support the Notice was taken, but is appears it is necessary to see what the applicable NPDES permit requires to know whether or not the limit has been violated.

3. Foertsch introduced evidence that the emergency spillway was rip-rapped. The Division did not introduce any evidence to show that the rip-rap was less than that required in the approved permit.