Notice of Violation N11029-S-000893 should be affirmed but only for the reason that Diversion 12 was constructed prior to the submission and approval of engineering plans.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is the state agency charged with the regulation of surface coal mining operations in Indiana.
2. IC 13-4.1, IC 4-21.5, and 310 IAC 12 apply to these proceedings.
3. At all times relevant to these proceedings, Solar Sources, Inc. ("Solar") held surface coal mine permit S-89-3 issued by the DNR which allowed the surface mining of coal at the Sky Point Mine in Gibson County, Indiana.
4. On October 29, 1991, a duly authorized representative of the DNR conducted an inspection of the S-893 permit area and issued Notice of Violation N11029-S-00089-3 ("NOV") for violations involving basin SP-8 ("Pond").
5. Solar filed a timely request for administrative review of the NOV.
6. The parties submitted a set of stipulated facts and summary judgment briefs.
7. There is no dispute of material facts and therefore summary judgment may be granted pursuant to IC 4-21.5-3-23.
8. Since the issuance of a Notice of Violation is an enforcement action, the burden of persuasion is on the Department. See Peabody v. Ralston, 578 N.E.2d 751 (Ind. App. lst Dist. 1991).
9. The NOV cites a number of provisions violated.
10. The most serious alleged violation is the failure to meet the effluent limitation contained in the NPDES permit, and thus allowing excess sedimentation to leave the pond.
11. The first issue to be decided is whether or not there is a violation of effluent standards.
12. Solar's NPDES permit (IN 0051381) provides that alternative limitations apply when the " . . . discharge or increase in volume of a discharge [is] caused by precipitation within any 24 hour period less than or equal to the ten year, 24 hour storm event.
13. The NPDES permit is part of Surface Coal Mine Permit S-89-3.
14. 310 IAC 12-3-4 requires Solar to mine in accordance with its permit.
15. 310 IAC 12-15-16 and 17 required Solar to maintain effluent limitations.
16. The three weather stations closest to the mine (Petersburg, Princeton, and Evansville) all reported rainfall of amounts ranging form .92 inches to 1.40 inches for the 24-hour period ending at 8:00 a.m. on October 27, 1991. See Exhibit F, which includes rainfall data from the state climatologist.
17. As of 8:00 a.m. on October 28, 1991, all three stations reported additional 24-hour precipitation totals of .04 to .15 inches of rain.
18. As of 8:00 a.m. on October 28, 1991, all three stations reported an additional 24-hour precipitation in the neighborhood of 1/4 inch.
19. Further, the two stations which reported data for October 30, 1991 (8:00 a.m. October 29, 1991 to 8:00 a.m. October 30, 1991) show rainfall amounts in excess of 1/8 inch.
20. The inspection report filed with the NOV indicates that at 10:00 a.m. on October 29, 1991, the weather was overcast with a temperature of 65 degrees, and the ground was wet.
21. The stipulated evidence clearly shows that a significant precipitation even took place on October 26 and into the early morning hours of October 27.
22. Further, measurable precipitation occurred over the next 72 hours, thus preventing a return to dry conditions.
23. This action differs materially from the recently decided case of Solar Sources, Inc. v. DNR, 6 Caddnar 88, decided March 25, 1993 in which a similar NOV was affirmed.
24. In the March 25, 1993 Solar matter, there was evidence of a significant
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precipitation event three days prior to the inspection but no evidence of precipitation within the last 75 hours proceeding the inspection. The inspection report noted dry conditions on parts of the permit area.
25. In this Solar case, there had been a significant precipitation event three days prior to the inspection but also continuing rainfall for the intervening 72 hours. The inspection report notes wet conditions on all portions of the permit area.
26. The conclusion drawn from these facts is that the discharge was materially affected by a continuing precipitation event. The alternate limits of the NPDES permit should still apply.
27. The portion of the NOV alleging a suspended solids violation should be vacated.
28. Another allegation leading to the issuance of the NOV was that additional acreage was being drained (40-45 acres) into the pond without prior approval of the DNR.
29. The parties stipulated that Solar submitted the plans of the revised drainage area to the DNR on October 7, 1991, and had been advised by a DNR employee ten days later that the documentation was acceptable.
30. The NOV specifies that the action required to abate the violation is to submit and obtain approval information which shows the pond can control the additional drainage area.
31. The DNR approved the documentation provided by Solar.
32. The NOV based on the pond is vacated.[FOOTNOTE l]
33. In its brief, Solar admits the construction of diversion #12 was completed without submission or approval and agrees that plans should have been submitted prior to construction.
34. The mine then argues that a "no harm, no foul" approach should be taken.
35. 310 IAC 12-3-44, requires a mine to have an operation plan which, among other items, requires engineering plans of each water diversion.
36. 310 IAC 12-3-4 requires a mine to conduct its operations in accordance with its approved permit.
37. By proceeding with the construction and use of Diversion 12 without supplying the DNR with documentation, Solar violated the above sections of the IAC.
38. While the "no harm, no foul" approach has a logical basis, one of the basic tenants of the Federal Surface Mine Control and Reclamation Act (and therefore the corresponding Indiana Act) is regulation by prior approval of engineering changes to the approved plan. Also, see Nerco v. DNR, 6 Caddnar 63 (1992). As pointed out in Nerco, supra, both acts take the absence of harm into account during the penalty assessment phase of the NOV process.
39. Because the mine failed to seek or obtain prior approval before constructing and using Diversion 12, and for this reason only, the NOV should be affirmed.
FOOTNOTE
1. The DNR has since adopted procedures to prevent this type of problem by requiring submissions be made to the inspector to the mine and involving the inspector in the permit revision process.