CADDNAR

[CITE: Peabody v. DNR, Reclamation, 4 CADDNAR 13 (1986)]

 

[VOLUME 4, PAGE 13]

 

Cause #: 86-053R

Caption: Peabody v. DNR, Reclamation
Administrative Law Judge: Drew
Attorneys: Joest; Szostek, DAG
Date: December 4, 1986

ORDER

 

Notice of Violation N60318-S-00010 is vacated.

FINDINGS OF FACT

 

1. On April 10, 1986, pursuant to IC 13-4.1 and 310 IAC 12, Peabody Coal Company ("Peabody") filed a request for review of Notice of Violation #N60318-S-00010.

 

2. IC 13-4.1, the Surface 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 parties to this proceeding.

 

5. Notice was given to: David R. Joest, Attorney at Law, Peabody Coal Company, Steven J. Szostek, Deputy Attorney General, Janice Rosebery, Sullivan County Recorder.

 

6. On May 13, 1986, a pre-hearing conference was held and parties were given permission to brief the issues.

 

7. Peabody holds permit S-00010 to conduct surface coal mining and reclamation operations in Sullivan County, Indiana at its Hawthorn Mine.

 

8. In the operations and reclamation plan submitted by Peabody and approved by the Natural Resources Commission on the Director's recommendation, Peabody proposed the use of sediment pond R-29-003-S/P to control sediment in the disturbed drainage area.

 

9. On March 18, 1986 Michael D. Anderson, an authorized representative of the Director, conducted an inspection of Peabody's Hawthorn Mine and wrote Notice of Violation #N60318-S-00010.

 

10. NOV #N60318-S-00010 was issued for failure to operate and maintain siltation structures to achieve applicable federal and state effluent limitations in violation of 310 IAC 12-5-17 (a) (2), 310 IAC 12-5-22, 310 IAC 12-3-4, NPDES Permit IN 0003018 and Permit item IV-E-(3)(b). These violations occurred at Peabody's sediment pond R-29-003-S/P. The Notice required Peabody to reconstruct the spillway to meet design specifications to treat basin water as needed to meet suspended solids limitations.

 

11. During inspection of Peabody's Hawthorne Mine, three water samples were taken. One sample was taken from the channel discharging from the sediment pond, one from the spillway and one from an off-permit ditch into which the discharge channel empties. The samples analyzed showed respectively levels of suspended solids of 86 ml/l; 76 ml/l and 13 ml/l.

 

12. No samples of settle able solids were analyzed during the March 18, 1986 inspection.

 

13. The Indiana Stream Pollution Control Board issued Peabody NPDES Permit IN 0003018 for discharges from sediment pond R-29-003-S/P.[FOOTNOTE 1]

 

14. 40 CFR 434.63 (a) (2) provides for alternate effluent limitations whenever there is an increase in the volume of discharge caused by precipitation within any 24 hour period less than or equal to the 10-year, 2-hour precipitation event. . . If such an event occurs a different effluent limitation is employed, namely a maximum limit of 0.5 mg/l settle able solids.[FOOTNOTE 2]

 

15. There was no precipitation 24 hours immediately prior to the March 18, 1986 inspection.

 

16 The rule stated in 40 CFR 434.63 (a) (2) requires a precipitation event to cause the discharge or outflow before alternate limitations (in this case, 0.5 mg/l settle able solids) may be applied.[FOOTNOTE 3]

 

17. According to the affidavit of R.G. McAhron, Environmental Manager for the Indiana Division of Peabody Coal, sediment pond R-29-003-S/P has no outflow except in response to pumpage or precipitation. No pumpage had occurred at the mine at least several weeks prior to the inspection. Flow in response to pumpage ceases very shortly after pumpage ceases.

 

18. McAhron also stated by way of affidavit, that flow from precipitation may continue for a longer period of time. Any outflow occurring on March 18, 1986 would have been in response to precipitation occurring

 

[VOLUEM 4, PAGE 14]

 

Approximately 72 hours prior to the March 18 inspection.

 

19. Excluding the McAhorn affidavit, no other evidence has been submitted regarding precipitation amounts, or lack thereof, prior to the inspection.

 

20. Based on lack of contradictory evidence, McAhron's statement that precipitation caused the outflow from sediment pond R-29-003-S/P must, therefore, be held as valid.

 

21. The outflow from sediment pond R-29-003-S/P was caused by a precipitation event as described in 40 CFR 434.63 (a) (2) and therefore the alternate effluent limitation of 0.5 mg/l settle able solids should have been applied at the inspection site.

 

22. The evidence submitted does not support a finding of a violation of the effluent limitations as found in 40 CFR 434.63 (a)(2)[FOOTNOTE 4].

FOOTNOTES


1. This permit was not put into evidence by either party. However, both parties stipulated that the NPDES permit classified the discharge as alkaline coal mine drainage and imposed the effluent limitations as set forth in 40 CFR 434.42., i.e. 70ml/l total suspended solids daily average.

2. Although, as previously noted, the NPDES permit itself is not part of the record, the parties have stipulated that the permit imposes the effluent limitations as set forth in 40 CFR 434.42. Similarly, 434.63 (a) (2) can also be held as being part of that stipulation because 434.42 specifically refers to 434.63 (a) (2) as being part of the limitations provided for in that section.

3. The rule does not state that the precipitation event triggering the use of alternate limitations must occur within a certain time frame. The rule only requires precipitation "within any 24-hour period." What the rule does require, however, is a causal factor. In other words, the precipitation event, whenever it occurs, must be the factor that causes the discharge or increases in the volume of the discharge.

4. Argument has also been put forth as to whether sediment pond R-29-003-S/P was operated and maintained in accordance with the best technology currently available, However, this question is now moot. No sampling of settle able solids was taken and hence no determination can be made as to whether sediment pond R-29-003-S/P exceeded the appropriate effluent limitations. Consequently, based on the facts in evidence, no decision as to whether the pond was operated and maintained according to the best technology currently available can be made.