CADDNAR

[CITE: Great Lakes Cl. Comp. v. Department, 3 CADDNAR 71 (1986)]

 

[VOLUME 3, PAGE 71]

 

 

Cause #: 85-225R

Caption: Great Lakes Cl. Comp. v. Department
Administrative Law Judge: Lucas
Attorneys: Young, pro se; Szostek, DAG
Date: April 22, 1986

ORDER

 

Notice of Violation #N50529-81-40 is modified in accordance with Finding 14 and Finding 36 and is otherwise affirmed. Cessation Order #C50924-81-40 is affirmed.

FINDINGS OF FACT

 

1. The Department of Natural Resources (hereinafter the Department) is an agency as defined in IC 4-22-1. The Director of the Department (hereinafter called Director] is the ultimate authority of the Department with respect to these Administrative Actions.

 

2. On May 29, 1985, an authorized representative of the Director wrote Notice of Violation #N50529-81-40 (hereinafter the NOV) against Great Lakes Coal Company (hereinafter Great Lakes) with respect to permits 80-76 and 81-40 to conduct surface coal mining operations at Linton #1 Mine in Greene County (hereinafter the Linton Mine).

 

3. Permits 80-76 and 81-40 were issued to Great Lakes under IC 13-4-6 and are subject to Acts of 1980, Public Law 101 or Acts of 1981, Public Law 331.

 

4. On June 4, 1985, Great Lakes requested that the Department provide a hearing to review issuance of the NOV.

 

5. The Director appointed Stephen Lucas as an Administrative Law Judge in accordance with IC 4-22-1 and 310 IAC 0.5-1 within cause number 86-013R to conduct a review of the NOV.

 

6. Cessation Order #C50924-81-40 (hereinafter called CO) was issued against Great Lakes by an authorized representative of the Director alleging a failure to abate Violation 2 of 2 as set forth in the NOV.

 

7. On October 2, 1985, Great Lakes requested that the Department provide a hearing to review issuance of the CO.

 

8. The Director appointed Sue Shadley as an Administrative Law Judge in accordance with IC 4-22-1 and 310 IAC 0.5-1 within cause number 85-255R to conduct a review of the CO.

 

9. On February 11, 1986, Sue Shadley withdrew as the Administrative Law Judge in cause number 85-255 and the Director appointed Stephen Lucas as her replacement.

 

10. Cause number 86-013R and 85-255R were consolidated at the request of Great Lakes. A hearing was held on the consolidated cases on February 19, 1986.

 

11. As anticipated by the parties at hearing, no factual issue exists with respect to the CO. The only issues relate to the NOV. If the NOV was proper, the CO was also proper. Great Lakes did not abate the violation alleged in the NOV which resulted in issuance of the CO. If Violation 2 of 2 within the NOV was in appropriate, the CO should not have been issued.

 

12. The NOV alleged two separate violations. Violation 1 of 2 (hereinafter Violation 1) stated that Great Lakes failed "to meet applicable Federal and State effluent limitations." Violation 2 of 2 (hereinafter called Violation 2) stated that Great Lakes failed "to eliminate toxic-acidic seeps."

 

13. In order to abate Violation 1, Great Lakes was required by the NOV to perform water treatments "to lower the level of iron and raise the pH to acceptable levels."

 

14. As stipulated by the parties at hearing, reference made to the iron level in the abatement requirement for Violation 1 was deleted. Great Lakes agreed that Violation 1 was appropriately issued with respect to the allegation and proposed abatement of improper pH levels.

 

15. Violation 2 was the sole object of testimony at the hearing on February 19, 1986.

 

16. Toxic-acidic seeps formed at the Linton Mine site around the southeastern and northeastern outskirts of Basin # 4. A water sample at one seep yielded a pH of 5.5 and an iron content of nine and eight tenths (9.8) milligrams per liter. A second sample yielded an iron content of eighty-eight (88) milligrams per liter. These seeps exceeded applicable effluent limitations

 

[VOLUME 3, PAGE 72]

 

and have terminated plant growth around them.

 

17. The seeps formed after the completion of coal extraction operations at the Linton Mine and after the mine pit was filled with overburden materials from the succeeding cut. Those materials consisted mostly of black shale, gray shale and limestone.

 

18. The base of the Linton Mine pits is now 17 to 35 feet below the surface. Materials which have the potential for the formation of toxic or acidic waters are buried in the pit. Primarily, these materials consist of gob from a tipple where coal extracted from the Linton Mine was processed. Included in the gob are shale and iron sulfides.

 

19. The abandoned workings of an underground coal mine (Hereinafter the abandoned underground mine) were located within the permitted boundaries of the Linton Mine. The abandoned underground mine was unearthed during the surface coal mining operations of Great Lakes.

 

20. After the abandoned underground mine was unearthed, a quantity of acidic water was observed exiting the abandoned underground mine in a westerly direction into the area permitted for the Linton Mine. A water sample taken at the opening of the abandoned underground mine yielded a pH of 2.5.

 

21. An abandoned underground coal mine was known to exist within the general vicinity of the Linton Mine, but based upon data provided by the Indiana Geological Survey, was thought by Great Lakes to be outside the boundaries of the Linton Mine. Neither Great Lakes nor the Department were aware of the presence of the abandoned underground mine within the permitted boundaries of the Linton Mine prior to its being unearthed by Great Lakes.

 

22. After unearthing the abandoned underground mine, Great Lakes attempted without success to seal the abandoned underground mine.

 

23. Great Lakes continued mining operations at the Linton Mine after its effort to seal the abandoned underground mine failed.

 

24. An inspector for the Department argues the toxic-acidic seeps described in Findings 16 result from the operations of Great Lakes associated with the Linton Mine, notably the burial of gob and other potentially acidic or toxic forming materials. Representatives of Great Lakes argue the toxic-acidic seeps are the result of discharges from the abandoned underground mine.

 

25. No subsurface testing of water quality was performed by either party with respect to the NOV. The evidence does not disclose the source of the contamination which results in the toxic-acidic seeps described in Finding 16.

 

26. The statutory and regulatory provisions cited by the Department in Violation 2 were IC 13-4-6-1.6, 30 CFR 715.14(j)(1) and (2) and 30 CFR 715.17(g)(1) and (2).

 

27. IC 13-4-6-1.6 provides in pertinent part that "[a]ll surface mining operations that operate or have operated under a permit issued under this chapter subject to . . .Acts 1980, P.L. 331 are subject to . . . .30 CFR 710 through 716."

 

28. Applicable to the Linton Mine is 30 CFR 715.14(j)(1) and (2), which provides in pertinent part:

 

"(a). . . .[A]ny acid-forming, toxic-forming. . .materials. . .that are exposed, used, or produced during mining shall be covered with a minimum of 4 feet of nontoxic and noncombustible material; or, if necessary, treated to neutralize toxicity in order to prevent water pollution. . .Where necessary to protect against upward migration of salts, exposure by erosion, to provide an adequate depth for plant growth, or to otherwise meet local conditions, the regulatory authority shall specify thicker amounts of cover using nontoxic material. . ."

(2). . .Backfilled materials shall be selectively placed and compacted wherever necessary to prevent leaching of toxic-forming materials into surface or subsurface waters in accordance with. . .[30 CFR] 715.17 and wherever necessary to ensure the stability of the backfilled materials. The method of compacting material and the design specifications shall be approved by the regulatory authority before the toxic materials are covered."

 

29. Applicable to the Linton Mine is 30 CFR 715.17(g)(1) and (2) which states in pertinent part: "Drainage from acid-forming and toxic-forming mine waste materials and soils into ground and surface water shall be avoided by—

 

"(1) identifying, burying, and treating where necessary, spoil or other materials that, in the judgment of the regulatory authority, will be toxic to vegetation of that will adversely affect water quality if not treated or buried. Such material shall be disposed of in accordance with the provision of. ..[30 CFR] 715.14(j).”

"(2) Preventing or removing water from contact with toxic producing deposits. . ."

 

30. In its brief following the hearing of these administrative actions, the Department urges that Violation 2 is also supported by 30 CFR 715.17 (g)(5).

 

31. As applicable to the Linton Mine, 30 CFR 715.17(g)(5) states in pertinent part: "Drainage from acid-forming and "

 

[VOLUME 3, PAGE 73]

 

toxic forming mine waste materials and soils into ground and surface water shall be avoided by. . .(5) Casing, sealing or otherwise managing. . .shafts. . .or other more or less horizontal holes to prevent pollution of surface or ground water and to prevent mixing of ground waters of significantly different quality. .

 

32. ". . .[W]ater quality is one of the factors a permittee must take into account in planning and conducting the operation and reclamation" of a surface mine. Where a permittee plans and conducts its operations so that water contaminated by previous mining activities is commingled with waters discharged from the area affected by its permit, the permittee is responsible for the quality of the commingled water quality. [Cravat Coal Co., Inc., 2 IBSMA 249 (1980)].

 

33. Great Lakes elected to continue its surface mining activities after unearthing the abandoned underground mine and identifying the acidic water present within the abandoned underground mine.

 

34. Great Lakes failed to plan and conduct its continuing operations so that water contaminated by the mining activities associated with the abandoned underground mine was properly treated to correct acidic or toxic discharge or was segregated from other waters passing into or through the Linton Mine.

 

35. Great Lakes failed to case, seal or otherwise manage the "more or less horizontal holes [of the abandoned underground mine] to prevent pollution of surface or ground water and to prevent mixing of ground waters of significantly different quality."

 

36. Violation 2 would be modified to reflect the following provisions violated: IC 13-4-6-4.6, 30 CFR 715-14(j)(1) and (2) and 30 CFR 715.17 (g)(1), (2) and (5).

 

37. The NOV should be affirmed as modified by Finding 14 and Finding 36.