[CITE: BFC Coal v. Department of Natural Resources, 5 CADDNAR 133 (1990)]
[VOLUME 5, PAGE 133]
Cause#: 89-260R
Caption: BFC Coal v.
Department of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Owen, Mine Engineer; Law
Date: June 8, 1990
ORDER
For
the reasons above, the administrative law judge now vacates N91121-S00220 part
1 of 2 and part 2 of 2.
FINDINGS OF FACT
1.
BFC Coal Company (BFC) holds permit S-00220 to conduct surface coal mining in
the vicinity of Alfordsville, Indiana.
2.
IC 4-21.5 and IC 13-4.1 apply to this proceeding.
3.
The Department of Natural Resources (Department) is an agency as defined in IC
4-21.5-1-3. Until July 1, 1990, the Director is the ultimate authority with
regard to this matter. After that date, the Natural Resources Commission (NRC)
is the ultimate authority.
4.
On November 21, 1989, Department employee Dan Luczynski
issued a two part Notice of Violation (NOV) number N911215-00220. Part one
dealt with improper sediment control and part two dealt with a violation of
blasting regulations.
5.
On December 1, 1989, BFC requested administrative review of both parts of the
NOV.
6.
Violation 1 of 2 states that BFC failed to meet the more stringent of the
applicable Indiana or federal effluent limits for suspended solids in the basin
#7 outfall.
7.
BFC holds NPDES permit IN0054356 for said outfall.
8.
310 IAC 12-5-20 requires BFC to meet the more stringent of applicable Indiana
or federal effluent limitations.
9.
310 IAC 12-5-16(c) and 17(2) requires BFC to refrain from violating federal or
Indiana water quality regulations and to operate siltation structures as to
achieve applicable effluent limits.
10.
310 IAC 12-3-4 requires BFC to comply with the terms of their permits.
11.
The NPDES permit in this case allows for 70 mg per liter of suspended solids to
be present in a sample.
12.
The NPDES permit sets different limits if a sample is taken within 24 hours of
a precipitation event.
13.
The permit requires that samples shall be taken at a point representative of
the discharge but prior to entry into a stream.
14.
To be a representative discharge, the water from the outfall may not be mixed
with water from any other source.
15.
Numerous photographs of the area in question were introduced into evidence.
16.
The area in question has a drainage pipe (spill pipe) which carries discharge
water from Basin #7 to another drainage pipe (culvert pipe) which channels
surface water runoff into a natural drainage area.
17.
The water sample in question tested 160 mg per liter of suspended solids.
18.
The water sample in question was obtained from a discharge of the outflow of
the culvert pipe; that is, the drainage pipe which collects the pond drainage
and the surface water runoff and commingles them.
19.
The unrebutted testimony of the only person present (the inspector) when the sample was taken shows that
there was no surface water drainage entering this culvert pipe at the time of
the taking of the sample.
20. Unrebutted testimony of the mine engineer indicates that
several days prior to the taking of the sample, there was a precipitation event
which caused surface water runoff for a period of time.
21.
At first blush, it appears that the inspector's testimony about the lack of
other water sources in the second pipe is controlling on the issue of whether
or not the sample is representative of the discharge within the meaning of an
NPDES permit.
22.
Such a decision, however, fails to take into account that the second pipe had
recently carried surface runoff from all over the area.
23.
The mine engineer testified that sediment and dirt tends to collect in the
bottom of the culvert pipe. The pictures show this pipe to be relatively level.
24.
Common sense and
[VOLUME 5, PAGE 134]
experience tells the administrative law
judge that drainage pipes not under pressure or not steeply sloped tend to
accumulate solid particles.
25.
The burden of persuasion on an issue involving a representative sample is on
the Department.
26.
After considering all of the evidence, the administrative law judge concludes
that it is just as likely that a substantial amount of suspended solids in the
culvert discharge came from residue in the pipe as it is that it came from
Basin #7. Accordingly, the administrative law judge finds for the Claimant on
part one of two.
27.
Part 2 of 2 was written for "Failure to control airblast
so that it does not exceed the maximum limit at any dwelling, public building,
school, church, or community or institutional building."
28.
310 IAC 12-5-36(e)(1) sets forth the language in finding of fact #27, supra,
and sets the following maximum limits: 2Hz measuring system- Maximum level
133db; 6Hz measuring system- Maximum level 129db.
29.
310 IAC 12-3-4 requires BFC to conduct all surface mining operations in
accordance with its permit.
30.
Exhibit D is a copy of BFC's blasting plan which states they will not exceed
129db with a 5Hz lower limit.
31.
The Notice of Violation states that the blasting record, of 9-14-89 shows a
130db reading with a 5Hz microphone.
32.
At the hearing BFC brought in the blast records. (Exhibits 11 and 12)
33.
These records show that the db level for the blast was 130db and was recorded
by a 2Hz microphone which means the allowable limit was 133db.
34.
Therefore, BFC did not "fail to control airblast,"
as stated in the nature of violation portion of the Notice of Violation.
35.
During the hearing, the testimony of the inspector changed the theory of the
case by stating that the violation was for failing to use a 5Hz microphone as
stated in the blast plan, not for exceeding limits.
36.
Under the "provisions violated" section of the Notice of Violation,
the inspector listed both 310 IAC 12-3-4 dealing with mining according to the
permit and the approved blasting plan found in the permit.
37.
The issue then becomes which section of the Notice sets forth the Violation
being heard.
38.
The administrative law judge concludes that the only logical way to resolve the
problem in this particular case is to look at the "action required"
section to see what the Division of Reclamation said needed to be done to abate
the violation.
39.
The required action in this case is "Commence blasting so that airblast does not exceed the maximum limit."
40.
It appears that the Division of Reclamation at no time prior to the hearing was
concerned or sought to pursue the microphone difference.
41. Further,
at the prehearing conference on January 5, 1990, the parties discussed the
issues involved and the administrative law judge's report indicates that the
issues are:
a.
The Department contends that the Claimant violated effluent limits and the mine
contends that the sample taken was not a representative sample.
b.
The Department contends the Claimant conducted a blast which produced an airblast violation and the mine contends the blast was
within limitations provided by law.
42.
No objections or modifications were ever filed to this Report of Prehearing
Conference.
43.
Accordingly, the administrative law judge concludes the only issue on blasting
presented by the Notice of Violation is whether or not airblast
limits were exceeded. Clearly, they were not.