Notice of violation N30331-S-246 is hereby affirmed. The administrative law judge deferred the assessment of any penalty until the Warrick Circuit Court rendered a decision in Peabody v. DNR, 6 Caddnar 118 (1993), Warrick Circuit Court Number 87CO1-9302-MI-95. The decision by the Warrick Circuit Court was rendered on August 24, 1994 and is set forth following the administrative decision in 6 Caddnar 118.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency charged with the regulation of surface coal mining operations in Indiana.
4. At all times relevant to these proceedings, Peabody Coal Company ("PCC") held surface coal mine permit S-246 issued by the DNR which allows the mining of coal at the Universal Mine in Vigo County.
5. On March 31, 1993, a duly authorized representative of the DNR was conducting a routine inspection of the S-246 permit area and issued notice of violation ("NOV") N30331-S-246 to PCC.
6. On April 19, 1993, PCC filed a timely petition for administrative review pursuant to IC 4-21.5, now designated as Cause Number 93-113R.
7. On April 30, 1993, the DNR assessed a penalty ("CPA") in the amount of $1,700.00 for the NOV.
8. On May 17, 1993, PCC filed a request for administrative review of the CPA with the DNR. This request was forwarded to the Hearings Division of the Natural Resources Commission ("NRC") on June 9, 1993, and assigned Cause Number 93-229R.
9. The parties agreed to hold a consolidated hearing on both the NOV and the CPA.
10. The NOV (Exhibit A) was written for failure to meet federal and Indiana water quality statutes, regulations, standards, or effluent limitations.
11. The location of the NOV was Basin M64.
12. Provisions allegedly violated include 310 IAC 12-5-16(c) and (d), 310 IAC 12-5-17(a)(1) and (2), 310 IAC 12-5-20(a)(2) and (b), 310 IAC 12-5-55.1(a)(4) and permit condition Part IV E and K.
13. Included in the S-246 permit is National Pollution Discharge Elimination System ("NPDES") Permit IN 0002984 issued by the Department of Environmental Management which sets forth limits on discharge into streams in the area. See Exhibit F.
14. The M-64 basin was a temporary sediment pond whose discharge was covered by the NPDES permit.
15. The purpose of the M-64 basin was to prevent untreated drainage from leaving the permit area.
16. The DNR had approved the removal of the pond and PCC was in the process of removing it and reclaiming the property to its approved post-mining land use.
17. The pond was being drained and the method chosen by PCC was to remove a "riser" pipe and allow the rain water to drain out.
18. During his inspection, the DNR representative noticed that the discharge was a dark color.
19. While removal of the pond was underway, the basin still collected surface drainage and it was raining at the time of the inspection.
20. The mouth of the drainage pipe was rip rapped but much of the rip rap had silted over.
21. The test of a sample of the discharge showed a settleable solids measurement of 47 mg/L.
22. The NPDES permit allows only .5 mg/L.
23. PCC's primary contention in its posthearing brief is that the pond no longer qualified as a point source discharge.
24. Given the proper factual situation, PCC's contention would absolve it of any further compliance.
25. The undisputed testimony in this case, however, is that although removal of the pond had begun, it was still collecting surface drainage and still disposing of basin water by passing it through a pipe into tributaries of local streams.
26. The testimony in this case therefore shows there is still point source drainage from the basin and the NPDES permit still
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applies.
27. 310 IAC 12-5-16(c) provides that "[i]n no case shall federal and Indiana water quality statutes, regulations, rules, standards, or effluent limitations be violated."
28. 310 IAC 12-5-16(d) provides that "operations shall be conducted to minimize water pollution. If necessary, treatment methods shall be used to control water pollution."
29. 310 IAC 12-5-17(a)(1) and (2) require surface drainage to be controlled before leaving the permit area and requires siltation structures to be maintained so as to achieve effluent limitations.
30. 310 IAC 12-5-20(a)(2) and (b) require sediment control measures to be maintained so as to meet applicable effluent limitations and retain sediment within disturbed areas.
31. 310 IAC 12-5-55.1(a)(4) required back filling and grading to "minimize erosion and water pollution both on and off the site."
32 . 310 IAC 12-3-4 requires an operator to conduct the mining operations in accordance with its approved permit.
33 . IV E of permit S-246 (Exhibit E) incorporates the NPDES permit into the S-246 permit.
34. IV K of permit S-246 (Exhibit E) authorizes the construction of the M-64 basin as a temporary impoundment.
35. This being an enforcement matter, the burden of. persuasion is on the DNR, and the administrative law judge is the ultimate authority for the DNR within the meaning of IC 4-21.5.
36. PCC points out correctly that the inspector's assertion that water quality standards and effluent limitations are the same is incorrect. This case, however, is not a water quality case.
37. 310 IAC 12-5-16(c) requires PCC to meet effluent limitations.
38. Since the evidence shows the basin still collected surface drainage and discharged it through a point source, 310 IAC 12-5-16(c) was violated.
39. 310 IAC 12-5-16(d) requires PCC to conduct its operations in such a way as to minimize water pollution.
40. 310 IAC 12-5-17(a) requires siltation structures to be maintained so as to achieve effluent limitations.
41. There is no evidence of diminution of water quality to justify a concern about 310 IAC 12-5-16(d), however, 310 IAC 12-5-17(a) was violated. The mine could have taken a number of steps including covering the drain, cleaning the silt off the existing rip rap, and installing additional rip rap to help meet effluent limitations.
42. The same analysis applies to 310 IAC 12-5-20(a) and (b).
43 . PCC also violated the terms of its permit.
44. The NOV is affirmed.
45. In passing, the administrative law judge notes that the DNR cites Green Construction v. DNR, 7 Caddnar 21 (1994) as authority. The administrative law judge feels compelled to point out that the cited case involves the affirmation of an NOV written for failure to monitor according to the terms of the NPDES permit; it was not written for a substantive violation at an outfall.
46. PCC discusses the federal response in 44 Fed. Reg. 15153 (March 13, 1979) dealing with imposing effluent limitations from disturbed areas after removal. Had removal and regrading been completed, this would be highly relevant. The evidence shows, however, that as of the date of the NOV, removal was not complete and the pond was still functioning as a surface drainage collector.
47. The NOV should be affirmed.
48. A decision on the CPA should be deferred pending the outcome of Peabody v. DNR, 6 Caddnar 118 (1993) which has been fully briefed on judicial review, and which is ripe for a decision by the Warrick Circuit Court.