[CITE: BFC Coal Co., v. DNR, Reclamation, 5
CADDNAR 140 (1990)]
[VOLUME 5, PAGE 140]
Cause #: 89-274R
Caption: BFC Coal Co., Inc.
v. DNR, Reclamation
Administrative Law Judge: Rider
Attorneys: Owen, pro se; Law
Date: October 26, 1990
ORDER
Notice
of Violation N91207-S-00220 is affirmed.
FINDINGS OF FACT
1.
On December 21, 1989, BFC Coal Company, Inc. (BFC) filed a request for review
of Notice of Violation N91207-S-00220 (NOV).
2.
BFC holds permit #S-00220 to conduct surface coal mine operations in Daviess
County at its Alfordsville Mine.
3.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
4.
The Natural Resources Commission (the "Commission") is an agency as
defined in IC 4-21.5-1-3 and is the ultimate authority with respect to this
proceeding.
5.
Dan Luczynski of the Division of Reclamation (DOR)
wrote the NOV in question here on December 7, 1989.
6.
Motions for Summary Judgment were denied on July 10, 1990, and a hearing was
held on September 14, 1990.
7.
The NOV cites a failure to contain and treat surface drainage in a manner to
achieve applicable state and federal effluent limitations (acid mine drainage
less than 6.0 pH and iron equal to or greater than 6.0 mg/1).
8.
The NOV alleges violation of 310 IAC 12-5-16(c) & (d) ,
l7(a)(1), 23 and IC 13-4.1-8-1(10).
9.
The Claimant defended by pointing out:
a. since
the permit area was abandoned mines law (AML) land which contained the
contaminated water prior to granting of permit, BFC is not responsible for said
water,
b. that since no coal had been
mined prior to the discharge, this was not a disturbed area, and
c. the hydrologic balance of
the area was not upset by the discharge because the area affected was bad prior
to the incident.
10.
None of these defenses presented by BFC will excuse this violation.
11.
Evidence shows that BFC made a cut in a bank to allow contaminated water to
discharge at a higher rate from the area.
12
. Since
this cut was made to facilitate mining and it must have included the removal of
topsoil or overburden, the area must be defined as "disturbed" per
310 IAC 12-1-3.
13. The
duty to control surface drainage which violates effluent limits is absolute
under 310 IAC 12-5-17. There is nothing in the Code that relieves the miner
from this duty if the water was already bad when the permit was issued.
14.
The surface drainage tested by the inspector showed a pH of 3.37 (acceptable
level 6 to 9) and an iron reading of equal to or greater than 10 mg/l. ([An]
acceptable level is no greater than 6 mg/l.)
15.
This sample was obtained just south of the permitted area.
16.
Since a violation of 310 IAC 12-5-17 occurred, it matters not whether the area
off the permit already contained contaminated water. The Code only deals with
what the miner releases from the permitted area.
17.
However, even if the "badness" of the surrounding water did matter,
the Department presented test results that showed the discharge from the permit
area was of a much lower quality than the water in the surrounding area.
18.
BFC should have controlled the quality of the water in question prior to
allowing it to leave the permit area.