[CITE: BFC Coal v Department, 4 CADDNAR 11 (1987)]
[VOLUME 4, PAGE 11]
Cause #: 86-045R
Caption: BFC Coal v
Department
Administrative Law Judge: Drew
Attorneys: Owen, pro se; Szostek, DAG
Date: January 19, 1987
ORDER
Notice
of Violation N60312-S-00095 is vacated.
FINDINGS OF FACT
1. On
March 25, 1986 BFC Coal Company requested a hearing to review the issuance of
Notice of Violation N60312-S-00095.
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 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 parties to this
proceeding.
5.
Notice of Hearing was given to: [list
deleted by editor.]
6.
On October 9, 1986 a hearing was conducted pursuant to IC 13-4.1, IC 4-22-1 and
310 IAC 0.5.
7.
BFC holds permit number S-00095 to conduct Surface Coal Mining and Reclamation
operations in Daviess County at its Glendale #1 Mine.
8.
On March 12, 1986, Debbie Simpson, an authorized representative of the Director,
issued Notice of Violation #60312-S-00095 to BFC.
9.
Notice of Violation #N60312-S-00095 was issued for the failure to remove
topsoil in violation of 310 IAC 12-5-12.1 (a) which provides, "...all
topsoil shall be removed as a separate layer from the area to be disturbed. .
."
10.
BFC constructed a temporary sediment basin ("Basin 1B") at its
Glendale #1 Mine. On February 5, 1986 the basin was certified by a professional
engineer and deemed ready for use.
11.
On March 12, 1986 Inspector Simpson found water discharging through the primary
spillway of Basin 1B, indicating that the basin had been completed and was now
in use. She also noted, at that time, standing trees in the drainage ways
entering the basin which indicated that topsoil had not been completed and was
now entering the basin which indicated that topsoil had not been removed from
the drainage ways. Consequently, she issued Notice of Violation
#N60312-S-00095.
12.
Basin 1B had two natural drainage ways which, upon joining, flow into the basin
from the north. This water is eventually discharged through the primary
spillway.
13.
The area in dispute does not involve the sediment basin itself, but the natural
drainage ways leading into the basin as depicted in Respondent's Exhibits E, F,
and G.
14.
There is no dispute that as of the date of the inspection, March 12, 1986, the
topsoil in the natural drainage ways had not been removed.
15.
310 IAC 12-5-12.1 (a) requires that all topsoil be removed from the "area
to be disturbed." BFC's permit (Respondent's Exhibit C) similarly provides
that all topsoil be removed prior to any surface disturbances.[FOOTNOTE 1]
16.
Respondent argues that the water in the drainage ways which flowed into Basin
1B was part of the disturbance upon which the Notice of Violation was written.
17.
While there can be no doubt that the creation of Basin 1B was a mining disturbance[FOOTNOTE 2], the natural drainage ways
leading into the basin, in and of themselves, cannot be classified as a
disturbance. These drainage ways were not created as a result of BFC's mining
operations and neither Respondent nor Claimant has argued that they were
anything but naturally created.
18.
Inspector Simpson stated at the hearing that she believed rain had caused the
basin to fill up. No evidence has been put forth that the water in the drainage
ways was a direct result of BFC's mining operations. Furthermore, no effluent
violations were cited against BFC.
19.
Based upon the foregoing, BFC did not violate 310 IAC 12-5-12.1 (a) by not
removing topsoil from the natural drainage ways leading into Basin 1B.[FOOTNOTE 3]
FOOTNOTES
1. Respondent has argued that the rule and permit infer that topsoil shall be
removed prior to any disturbance. While that may be the case, 310 IAC
12-5--12.1 (b) specifically deals with timing of topsoil removal. Since neither
310 IAC 12-4-12.1(b) or the permit itself were cited in the notice of
Violation, it can only be concluded that timing is not an issue here.
[VOLUME 4, PAGE 12]
2. The Notice of Violation concerns just the drainage ways; Basin 1B was
apparently constructed in accordance to all rules and regulations.
3. Eventually, BFC did mine through the drainage ways and at that time all
topsoil was removed as required. It should also be noted that at the time of
the March 12, 1986 inspection, the active pit was 1000 feet from Basin 1B.
BFC's permit requires only that topsoil be removed at least 25 feet ahead of
the advancing pit.