Notice of Violation N50426-S-265 is hereby vacated.
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 14-34[FOOTNOTE 1], and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency responsible for the regulation of surface coal mining operations in Indiana.
4. At all times relevant to these proceedings, Solar Sources, Inc. ("Solar") held surface mining permit S-265 issued by the DNR which allowed coal mining at the Sugar Creek Mine in Daviess County, Indiana.
5. On April 26, 1995, a duly authorized representative of the DNR, during a routine monthly inspection of the mine site, issued Notice of Violation N50426-S-265 ("NOV") to Solar for a violation on the S-265 permit area.
6. On May 15, 1995, Solar filed a timely petition for administrative review of the NOV.
7. Since this case involves an enforcement action, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
8. The NOV was written for failing to comply with effluent standards in violation of 310 IAC 12-5-16(c) and (d), 310 IAC 12-5-17(a)(3), and 310 IAC 12-3-4, part IV Section E of the S-265 permit.
9. The inspector tested a sample of the discharge from outfall 001 and discovered that the pH reading was 5.15 .
10. The spillway in question drains to a pond on a Green Construction permit site.
11. Solar currently manages the Green Construction site.
12. The receiving pond is served by a spillway which drains into waters of the State of Indiana.
13. The spillway from outfall 001 to the Green Construction Pond is several hundred feet long and rip rapped with limestone.
14. The spillway has flow only during wet conditions.
15. The permit boundary is approximately 250 feet from outfall 001.
16. The inspector took another sample at the permit boundary which tested 6.89 for pH.
17. The inspector took a 3rd sample near the receiving pond and it was well within the allowable pH limits of 6.0 - 9.0.
18. The sample for which the NOV was written was taken in the spillway approximately 5-10 feet from the mouth of the spillway.
19. 310 IAC 12-5-16(c) and (d) provide:
"(c) In no case shall federal and Indiana water quality statutes, regulations, rules, standards or effluent limitations be violated.
(d) Operations shall be conducted to minimize water pollution. . . ."
20. 310 IAC 12-5-17 also requires siltation structures to meet state and federal effluent limitations.
21. 310 IAC 12-3-4 requires Solar to operate its mining operation in accordance with its approved permit.
22. Part IV Section E of the permit (Exhibit IV) requires the mine to list the number of sediment ponds and attach the NPDES information for each pond to the permit. By reference, then, the NPDES permit for the point source discharge from outfall 001 is included in the S-265 permit.
23. The NPDES permit is a general one issued pursuant to 327 IAC 15-2-3.
24. 327 IAC 15-7-7 sets for the general conditions for general permits and includes a general condition of 6.0 to 9.0 for pH.
25. NPDES sampling must be taken at ". . . a point representative of the discharge but prior to entry into waters of Indiana." 310 IAC 15-7-7-(d).
26. IC 13-7-10-1 authorizes rules to control or limit discharge into the waters of Indiana or into a publicly owned treatment works.
27. It would appear that the 6.0 to 9.0 pH range is a requirement by law only for permits where discharge will be into public waters or a publicly owned treatment works.
28. The spillway in question does not discharge into public waters or a publicly owned treatment works.
29. Therefore, the absolute pH range of 6.0 - 9.0 in the general NPDES
[VOLUME 7, PAGE 132]
permit does not apply to a discharge between ponds.
30. The Department contends in its brief that Part II A4 of some permit specifically requires a pH between 6 and 9 in the outfall but unless pages are missing from the stipulated exhibits, no such permit section was placed in evidence.
31. Further, the only permit section referenced in the NOV is the NPDES section. The NOV cannot be upheld on grounds not alleged in the NOV unless the DNR amends its pleadings prior to hearing.
32. There is no evidence that Solar violated its NPDES permit because Solar did not discharge drainage into the waters of the state; only into another private pond and its is uncontested that the drainage into the receiving pond was within limits.
33. No other pollution standards, regulations, etc. have been cited by the DNR as applying.
34. Therefore, no finding can be made that any standards other than the NPDES permit general requirements were violated.
35. There is insufficient evidence to show a simple pH reading near the discharging pond of under 6.0 on its way to a receiving pond through a well constructed channel is a violation of either the Surface Mining Act, IDEM rules, or Federal Standards.
36. The DNR cites the case Island Creek Coal Co., 3 IBSMA 383, however that case specifically holds that effluent limitations are to be applied at a point of discharge from a sedimentation pond or the last pond in a series of sedimentation ponds.
37. This case appears to be much stronger for Solar than the DNR since the crucial sample in the Solar case was taken between ponds and not from the discharge of the last pond.
38. The NOV should be vacated.
FOOTNOTE
1. At the time the notice of violation was written, surface coal mining regulation was found in IC 13-4.1. On July 1, 1995, IC 13-4.1 was recodified as IC 14-34 with no substantive changes.