[CITE: Jaeco,
Inc. v. Dept. N.R., 3 CADDNAR 60 (1985)]
[VOLUME 3, PAGE 60]
Cause #: 85-205R
Caption: Jaeco,
Inc. v. Dept. N.R.
Administrative Law Judge: Shadley
Attorneys: Runnells; Spicker, DAG
Date: September 13, 1985
Order:
[NOTE: THE UNDERLYING NOTICE
OF VIOLATION IS THE SUBJECT OF ADMINISTRATIVE CAUSE 85-206R (Jaeco, Inc. v. DNR, 3 CADDNAR 62 (1986)).]
Temporary
Relief from Notice of Violation #N50805-S-00118 is denied.
FINDINGS OF FACT
1.
On August 28, 1985, pursuant to IC 13-4.1 and 310 IAC 12, Jaeco,
Inc. filed a request for review of Notice of Violation #N50805-S-00118 and a
request for temporary relief from the Notice of Violation pending the Director
of the Department of Natural Resources' final determination on review of the
Notice of Violation.
2.
IC 13-4.1, the Surface Coal Mining and Reclamation Act, is applicable to this
proceeding.
3.
The Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
4.
The Director has jurisdiction over the subject matter and the parties to this
action.
5.
The Director may, pursuant to IC 13-4.1-2-2(c), delegate any or all of the
powers and duties assigned to him under IC 13-4.1-2-2 to other employees of the
Department of Natural Resources.
6.
Sue A. Shadley is an employee of the Department of Natural Resources.
7.
By written entry dated August 30, 1985, the Director delegated to Sue A.
Shadley the authority to grant or deny the temporary relief requested by Jaeco, Inc.
8. On
September 12, 1985, a hearing was conducted pursuant to IC 4-22-1 and IC
13-4.1-11-8(e) on the request for temporary relief.
9. Jaeco, Inc. Holds permit S-00118 to conduct surface coal
mining and reclamation operations at its Eel River Mine in Clay County,
Indiana, pursuant to IC 13-4.1 and 310 IAC 12.
10.
Notice of Violation #N50805-S-00118 was issued by James Brown, an authorized
representative of the Director, to Jaeco, Inc. for
failure to pass all surface drainage from the disturbed area through a
siltation structure before leaving the permit area in violation of 310 IAC
12-5-18(a), (c) and (e), 310 IAC 12-5-17(a) and 310 IAC 12-3-4, Plan of
Reclamation, Part IC (0)(4)(a) at the extreme east portion of the permit along
the haul access road next to the unbounded farm land area. 310 IAC 12-5-17(a),
310 IAC 12-5-18(a), (c) and (e) and 310 IAC 12-3-4, Plan of Reclamation, Part
IC (0)(4)(a)require that surface drainage from the disturbed area be controlled
or passed through a siltation structure or diversion prior to leaving the
permit area and require temporary diversions be constructed to pass safely the
peak runoff from a precipitation event with a two year recurrence interval.[FOOTNOTE 1]
11. [Finding 11 omitted from original
document.]
12.
A farm road is located to the east of the outside of the bonded area and east
of the farm road is a field used at times for growing crops.
13.
Drainage from the haul access road, from an area where a trailer, used as a
mine office, was located, from an area previously used for storage of coal, and
from the farm road was entering a diversion ditch constructed by Jaeco, Inc. On the east side of the haul
road, approximately four (4) feet from the eastern boundary of the bonded area.
14. At a point approximately five feet south of a pipe installed
by Jaeco, Inc. In the diversion ditch, water was
observed on August 5, 1985 at 12:15 P.M. flowing out of the diversion ditch,
through straw bales and onto the farm road.
15.
The Claimant has not shown a substantial likelihood that the finding of the
Director will be favorable to it.[FOOTNOTE 2]
16.
The water flowing off the bonded area onto unbounded acres was tested for and
found to be in compliance with applicable effluent limitations.
17.
Granting temporary relief would not adversely affect
[VOLUME 3, PAGE 61]
the public health or safety or
cause significant, imminent environmental harm to land, air or water resources.
FOOTNOTES:
1.
The two year recurrence interval for this location is three inches (3") of
rain in a twenty-four (24) hour period. The Claimant's witness testified that
this was an unusually large storm event but was not able of give unequivocal
testimony that the storm the day before and the day of the Notice of Violation
exceeded three inches (3") in twenty-four (24) hours.
2. All testimony given related to the issue of whether or not water actually
left the bonded area - Jaeco believing it had not and
the Division of Reclamation believing it had. The only way to make sense of
this seemingly contradictory testimony is that Jaeco
was looking at the "big" picture and Division observed a minor breach
at one location along the diversion ditch. When Mr. Samm
testified that the diversion was not breaching when Mr. Brown arrived, but Mr.
Brown testified to having seen water flowing off the bonded area onto unbounded
acres, I believe what must have happened was that there was not a major failure
of the diversion, but only a failure at one point along the ditch, where a
small amount of water was passing through the straw bales and leaving the
bonded area. The quantity must have been small since by the time Mr. Strahle was there, 2:45 p.m., no water was leaving the
bonded area. I am not certain that a revised drainage plan (the required
abatement action) would be necessary to correct the violation which occurred on
August 5, 1985, however, since no testimony was given
concerning the appropriateness of the abatement action, there is no basis in
this record for making a determination that it should be modified. However, for
purposes of the full hearing on review of the Notice of Violation, the parties
may wish to address this issue.