[CITE: Peabody Coal v. DNR, 4 CADDNAR 58 (1988)]
[VOLUME 4, PAGE 58]
Cause #: 86-166R
Caption: Peabody Coal v. DNR
Administrative Law Judge: Drew
Attorneys: Joest; Sheffler,
DAG
Date: March 18, 1988
ORDER
[NOTE: THE HOLDING IN THIS
CASE WAS DISAPPROVED IN PEABODY COAL
COMPANY v. INDIANA DEPARTMENT OF NATURAL RESOURCES, (1994) IND. APP., 629
N.E.2d 925.]
Notice
of Violation #N61024-S-00017 is vacated.
FINDINGS OF FACT
1.
On December 2, 1986, Peabody Coal Company (the "Claimant") requested
administrative review of the Notice of Violation #N61024-S-00017 issued by the
Division of Reclamation of the Department of Natural Resources (the
"Respondent").
2.
IC 4-22-1 and IC 13-4.1, the Surface Coal Mining Act, apply 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.
On December 12, 1987 Claimant filed a Motion of Summary Decision pursuant to
310 IAC 0.5-1-11 and on June 22, 1987 oral argument was held in the above
cause.
6.
Claimant holds permit #S-00017 to conduct surface coal mining operations in
Sullivan County, Indiana at its Dugger 8900 area mine.
7.
On October 24, 1986 an authorized representative of the Director cited Claimant
with Notice of Violation #61024-S-00017.[FOOTNOTE 1]
8.
Notice of Violation #N61024-S-00017 cited Claimant for failure to control all
surface drainage from the disturbed area through use of a siltation structure,
a series of siltation structures, or such alternative techniques as provided in
310 IAC 12-5-20 before leaving the permit area and cites 310 IAC 12-5-17(a)(1), 310 IAC 12-3-4 and Part IV, G(2)(a) of the permit as
the provisions violated.
9.
The inspector report accompanying the Notice of Violation indicated there were
two locations where sediment control measures failed (sites "A" and
"B")[FOOTNOTE 2] and three
other locations where sediment control measures were needed but not the
implemented (cited "C", "D", and "E".)
10.
During the inspection of site B the inspector noted a single row straw bale
check dam had been erected and that drainage from the area was undercutting one
of the bales and bypassing the dam.
11.
The inspector also observed at site B sediment deposition in a drainage way of
the permit. The deposition generally exceeded one inch in depth and extended
laterally at least fifty to seventy-five feet.
12.
Sites C, D and E are small drainage areas where, according to the inspector's
report, effluent was discharged without appropriate sediment controls.
13.
Drainage from sites B through E enters into an unnamed tributary of Buttermilk
Creek. It is uncontested that water samples were not taken during the
inspection.
14.
IC 13-4.1-8-1 is the controlling statute and requires that disturbances to the
hydrologic balance be minimized and then lists various methods by which this
can be accomplished.
15.
IC 13-4.1-8-1 (10)(B) states that violations of effluent limitations are
established under state or federal laws shall be prevented, to the extent
possible, using the best technology currently available.
16.
IC 13-4.1-8-1(10)(C) concerns the construction of
siltation structures as a means of implementing clause (10)(B).
17.
IC 13-4.1-8-1(10)(G) allows the Natural Resources
Commission (the "commission") to take additional action as it may
prescribe.
18.
310 IAC 12-5-17 also regulates water quality standards and effluent limitations
affecting the hydrologic balance. It requires all surface drainage from the
disturbed are to be controlled through siltation structures or through
alternative techniques provided in 310 IAC 12-5-20.
19.
It is a basic principle of administrative law that an administrative agency
cannot adopt or enforce regulations that add or detract from a statute enacted
to cover the same circumstances of purposes. Hill v. Review Board, 124 Ind. App. 83,
112 N.E. 2d 218 (1953), Indiana
Department of State Revenue v. Colpaert Realty Corp.,
231 Ind. 563, 109 N.E. 2d 415 (1953).
20.
310 IAC 12-5-17 is a regulation designed to protect the hydrologic balance as
required by IC 13-4.1-8-1 by regulating water quality standards and effluent
violations. Consequently, 310 IAC 12-5-17 may not exceed the requirements found
in IC 13-4.1 -8-1 and may only require sediment
control measures where necessary to prevent violations of effluent limitations
to the extent possible using the best technology currently available.
21.
No water samples were taken to measure whether an effluent violation did or did
not occur.[FOOTNOTE 3]
22.
Where, however, 310 IAC 12-5-17 is cited because sediment control measures are
necessary to prevent a violation of applicable effluent limitations, then this
regulation could be properly invoked and a violation issued.
23.
Respondent has failed to demonstrate that an effluent limitation violation was
likely to occur or that Claimant allowed such a condition to exist.
24.
Clause (10)(G) empowers the Commission to take any additional
action it deems necessary to carry out the intent of IC 13-4.1-8-1(10). The
Commission, however, may only take additional action; it may not take any
action inconsistent with what the statute already prescribed.
[VOLUME 4, PAGE 59]
25.
Clause (10)(C) of IC 13-4.1-8-1 and 310 IAC 12-5-17 refer to the use of
siltation structure as a means of controlling effluent limitations and
protecting water quality standards. Therefore, 310 IAC 12-5-17 cannot be said
to be an additional action as required to fall under the scope of clause (10)(G) of the governing statute.[FOOTNOTE 4]
26.
Respondent has not established a prima facie case showing that an effluent
violation did occur.
FOOTNOTES
1. The
Notice of Violation also required Claimant to undertake certain abatement actions.
Claimant also objected to these actions in its petition for review. However,
the violation has since been terminated and this question is therefore moot.
2.
On November 25, 1986 the Inspector modified the Notice of Violation by deleting
site A from the location of the violation because bond on this area was
previously released.
3.
The inspector's report was based solely on visual observations. In an
uncontroverted affidavit, Ron G. McAhron established that it was not possible
to reliably infer that a violation of effluent limits occurred based solely on
whether sediment was deposited in the receiving stream. According to McAhron,
effluent violations are based upon sediment concentrations, not total amounts
of sediment, and thus are not dependent on volume of flow.
4.
Respondent argues that clause (10)(B) of IC 13-4.1-8-1 is intended as one means
for protecting the hydrologic balance by ensuring that effluent limitations are
not exceeded. Respondent further argues that the sediment controls found in 310
IAC 12-5-17 are important to the hydrologic balance above and beyond effluent
considerations and this can be said to be additional measures as provided for
in clause (10)(G). That is not the case, however. 310 IAC 12-5-17 specifically
regulates water quality standards and effluent limitations affecting the
hydrologic balance. Sediment control measures, on the other hand, are regulated
by 310 IAC 12-5-20 and consequently 310 IAC 12-5-17 cannot be said to be an
additional measure relating to the protection of the hydrologic balance.