ovccviolation082200

August 23, 2000
News Announcement
ODNR finds OVCC violated law, but gives no fine

While the Ohio Environmental Protection Agency gave Ohio Valley Coal Company a $100,000 fine for their gross and flagrant bulldozing of a buffer zone for Perkins Run and its West Tributary and pollution of Captina Creek, one of Ohio's cleanest remaining streams just upstream from an endangered foot-long salamander, the Ohio Department of Natural Resources (ODNR) waived any fine for their two notices of violation against the company.

Much of the illegal activity was within what was supposed to be a 100-foot buffer zone from and including the creek. In fact, they bulldozed acres of the creek bed, turning it into a ditch. And, they had about half a dozen or more illegal pollution discharges in violation of law. So they not only were in violation of the law because the permit itself had not been issued at the time of their activity, they also had pollution discharges that were not allowed in their permits.

OVCC was found in violation of Chapter 1501:13-9-04 (E) (1) of the Ohio Admin. Code which states, "No land within 100 ft. of a perennial or intermittent stream shall be disturbed unless the Chief specifically authorizes coal mining operations closer to or through such a stream."

Despite these, three Ohio EPA violations and an Army Corps of Engineers violation, the ODMR and OEPA gave permission for the company to fill in a formerly "untouched" valley.

Dysart Defenders appealed the ODMR's permit D-0360-8 that allows the valley fill. The appeal asks that the permit be denied because it violates the Clean Water Act, the Endangered Species Act and other laws. Ohio Valley Coal Company has recently intervened into that appeal.

"Under the command of Ronald Kolbash (former coal mining lobbyist), it is not surprising that the ODNR is not even fining OVCC despite its findings that the company had done massive construction in an area designated as a buffer zone, and without even having the permit," said Dysart Defenders Coordinator Chad Kister. "Despite this massive damage to our public waterways right upstream from an endangered salamander, and perhaps to cover up the presence of these or other endangered species, the ODNR has let OVCC get away with these flagrant violations of environmental law without any penalty."

"This sets a terrible precedence for allowing the destruction of an area yet to be studied by regulators and then giving them the permit to go ahead with their valley fill, and then not even fining them," Kister said. "If there was an endangered species there, how could we know now?"

Chris Evans said, "As a member of Dysart Defenders and as a citizen of Ohio, I am concerned that the ODNR put Kolbash in charge of mining regulation given the fact that he was the president of the coal mining lobby in Ohio. I'm concerned that this is a conflict of interest, and I'm concerned that under his directorship, the ODNR is allowing such violations as the destruction of the West Tributary of Perkins Run without any significant penalty. I don't feel that the ODNR should allow companies to take such liberties with our natural resources."

In related news, while Ohio Valley Coal Company officials claim that they have no pending permit to mine under Dysart Woods, permit D-0360-9 to allow mining under Dysart is still pending, said ODMR permit manager Scott Stiteler. The permit has not been withdrawn. This means the permit can be reissued at any time with all of the prior work already in place.

Report And Recommendation Of Informal Review Of Ohio Valley Coal company coal Mine Permit Number D-0360
IN THE MATTER OF OHIO VALLEY COAL COMPANY COAL MINE PERMIT NUMBER D-0360 INFORMAL REVIEW OF NOTICE OF VIOLATION NUMBER 25510

click here to see valley fill photos

REPORT AND RECOMMENDATION
OF THE HEARING OFFICER

FINDING OF FACT
The Division of Mines & Reclamation issued Notice of Violation number 25510 to Ohio Valley Coal Company on April 30, 1999. Notice of Violation 25510 states "The operator has failed to follow the approved mining plan by extending the 36" discharge pipe from the slurry pond #2, and installing underdrains in the buffer zone of Perkins Run directly south of slurry pond #2".

The Ohio Valley Coal Company, OVCC, requested an informal review of the issuance of Notice of Violation 25510 by letter dated May 6, 1999.

DISCUSSION
In the course of conducting this informal review, the Division and OVCC representatives met on May 20, 1999 and reviewed the circumstances surrounding the issuance of Notice of Violation 25510. Coal Mine Permit Number D-0360 requirements were also reviewed in the course of this informal review.

The inspection of April 30, 1999 was conducted as a result of questions raised by QEPA personnel who indicated that the permittee had begun construction in Perkins Run prior to approval of the pending application that allows for the activities being conducted. The inspection revealed that the operator had begun construction of the activities proposed in the pending application. The construction activities were being conducted on the existing permit area. The activities being conducted involved the extension of the discharge pipe of slurry pond #2 and the installation of underdrains in preparation for the approval of the pending proposal to add additional area to the existing refuse disposal. The majority of these activities were conducted within 100 feet of Perkins Run and in the channel of Perkins Run.

Chapter 1501:13-9-04 (E) (1) of the Ohio Administrative Code states "No land within one hundred feet of a perennial or intermittent stream shall be disturbed unless the Chief

Report And Recommendation Of Informal Review Of Notice Of Violation Number 25510

Ohio Valley coal company Coal Mine Permit Number D-0360

Page 1 of 4
specifically authorizes coal mining operations closer to or through such a stream".

Perkins Run is identified as a perennial stream on the application map for Coal Nine Permit Number D-0360. The application map also identities the area within 100 feet of Perkins Run as being a buffer zone.

Coal Mine Permit Number D-0360 does contain a buffer zone variance that was approved by the Chief on 10-16-80 and again on 4-6-84. This variance only allows for the activities specified in the plan at that time.

OVCC has a copy of an Application to Revise a Permit (ARP) that was singed by the companyin 1984. This ARP was to allow certain additional at fectment to occur within the buffer zone of Captina Creek and Perkins Run and to affect the channel of Perkins Run. It appears that the Division may not have approved this ARP, as an approved copy of this ARP was not found in the Columbus or the field office files. In addition, the permittee was not able to provide an approved copy of the ARP.

Permit application D-0360-8 was submitted to the flivision on May 11, 1999 and deemed complete on May 29, 1998. This application is for additional acreage for the expansion of the existing coal waste disposal and includes a stream buffer zone variance request to allow specific mining activities to occur in Perkins Run.

OVCC provided a copy of an interoffice. memorandum dated January 30, 1998 that indicated that Bill Siplivy had reviewed the proposed project with Bill Sterling. (Bill Sterling is incorrectly referred to as ODNR section Chief in the interoffice memorandum) The interoffice memorandum indicates that Bill Sterling told the company that they may proceed with all earthwork and construction activities because the area is already under permit. When asked if the company had informed Bill Sterling that the area to be affected was in the buffer zone of a stream, the representatives provided a year 2 annual map that did not show a buffer zone. Division employees pointed out that annual maps are not required to show stream buffer zones. No additional discussion was provided regarding the information that OVCC provided Bill Sterling prior to the statement Bill Siplivy indicates that Bill Sterling made during his conversation with
OVCC.

In conversation with Bill Sterling on May 25, 1999, Bill indicated that he did not recall the specifics of the conversation that he had with Bill Siplivy. Bill did indicate that he was quite sure that he did not tell OVCC, or any other
operators, that they could begin work prior to approval of the proposed activities by the Chief of the Division of Mines & Reclamation. Bill also stated that he generally referred regulatory questions to Bob Baker or the inspector.

CONCLUSION

OVCC conducted mining related activities within the buffer zone of Perkins Run prior to approval of a buffer zone variance request that was included in pending application D-0360-8. OVCC was aware that the buffer zone variance was not approved prior to affecting within one hundred feet of Perkins Run.

According to the information provided, OVCC presented to Bill Sterling the proposal of affecting the existing D-O360 in preparation for the expansion of the refuse disposal area at least three months prior to the submission of D-0360-8. There is no written coorespondence between the Division and Ovac regarding the outcome of January 1998 meeting and the parties involved in that meeting are not in agreement as to what was said at the meeting. Bill Sterling was the supervisor of the Permitting & Hydrology section and not directly involved in regulatory and enforcement issues. Questions regarding the permit area and enforcement actions should have been directed to the inspector and/or the inspector's supervisor.

Chapter 1501:13-14-02 of the Ohio Administrative Code requires the inspector to issue a notice of violation, if he finds a violation of chapter 1513. Of the Revised Code and rules adopted thereunder or any condition of a permit.

RECOMMENDATION

Based on the above FINDING OF FACT, and CONCLUSION of this report, it is the recommendation of the Hearing Officer that Notice Violation number 25510 issued on April 30, 1999 to The Ohio Valley Coal Company on Coal Mine Permit Number D-0360 was correctly issued and should not be vacated.

Date 5-25-99
Signed, Jeffrey A. Emmons, Hearing Officer

DECISION OF ThE CHIEF

___(CHECKED)___I adopt the Finding of Fact, Conclusions and Recommendations of the Hearing Officer.
______ I do not adopt the Finding of Fact, Conclusions Recommendation of the Hearing Officer.

Reason:

Recommendation:

Signed, Russ Scholl, Acting Chief, Ohio Division of Mines and Reclamations

cc: Ohio Valley Coal Company
56854 Pleasant Ridge Road Alledonia, Ohio 43902

Civil Penalt Assessment
Ohio Department of Natural Resources
DIVISION OF MINES & RECLAMATION
1855 Fountain Suare Conrt
Columbus Ohio 43224

July 19, 1999
PROPOSED CIVIL PENALTY ASSESSMENT

The Ohio Valley Coal Company
56854 Pleasant Ridge Road
Alledonia, Ohio 43902

SUBJECT: PROPOSED CIVIL PENALTY ASSESSMENT NUMBER 12127

For Notice of Violation Number 25510, Permit Number D-0360, issued on April 30, 1999, the permittee is hereby issued a proposed civil penalty assessment in the total amount of $500.00, NO PAYMENT IS REQUIRED UNTIL A FINAL ASSESSMENT IS ISSUED OR AN APPEAL IS FILED WITH THE RECLAMATION COMMISSION.

Failure to abate the Notice of Violation within the prescribed abatement time shall result in an additional civil penalty assessment of at least $750.00 for each day during which such failure continues, up to thirty (30) days.
Russ Schull
Chief,
Division of Mines & Reclamation

Pursuant to Sections 1513.02 and 1513.13 O.R.C. and 1501:13-14-03 O.A.C., this assessment may be appealed by filing a notice of appeal and forward the amount of penalty, for placement in a escrow account, with the Reclamation Commission, Ohio Department of Natural Resources, 1855 Fountain Square Court, Suite 124, Building fl-i, Columbus, Ohio 43224 within thirty (30) days after it is issued, and by filing a copy of the notice of appeal with the chief within three (3) days after it is filed with the Reclamation Commission. The notice of appeal shall contain a copy of the civil penalty assessment and worksheets and the grounds upon which the appeal is based.

You may request an informal conference to review the AMOUNT of this assessment by writing to Jeffrey A. Emmons, Division of Mines & Reclamation, 8505 Georgetown Road, Cambridge, Ohio 43725 within fifteen (15) days after receipt of this assessment. Time allowed for appeal to the Reclamation Commission shall be tolled from (sic) time the written request is received to the time the assessment is revised or upheld.

Certified Mail # P 148 542 527
cc: T.Pulay
Inspection & Enforcement

DIVISION OF MINES & RECLAMATION
ASSESSMENT OFFICER WORKSHEET

N.O.V. # 25510 PERMIT # D-0360

TOTAL:

SERIOUSNESS:
1) YES
No X Did the violation cause damage to permitted or unpermitted land? ($400.00)
2) YES
NO X Did the violation cause irreparable or irreversible damage to permitted or unpermitted land? ($400.00) ($400.00)
3) YES Did the violation cause a situation which increased the probability of the public health or safety being adversely affected? ($400.00)
NO X

4) YES X If an administrative violation (e.g. maps, permits, blast records, failure to notify for inspection purposes, etc.), did the violation obstruct enforcement or deny the Division or the public the opportunity to exercise enforcement or permitting requirements?
($200.00)
NO
N/A

EXPLAIN: Permittee began construction of underdrains and extension of
36 inch culvert prior to approval of the plans that were included in a pending adjacent area permit application. Affectment was in a buffer zone and the approved buffer zone variance did not allow for the activity The inspector did not have direct knowledge of the proposed plan to insure that the activities that were being conducted would be acceptable.

*
NEGLIGENCE~

TOTAL: $200

5) YES X Was the violation avoidable by the exercise of reasonable care? ($200.00)

6) YES ____ Was the violation a reckless act or a result of
recklessness? ($500.00)
NO X

7) YES ____ Was the violation knowingly or intentionally committed
for economic gain from production (i.e. removal of
overburden and/or coal)? ($2,200.00)
NO X
EXPLAIN: The permittee should be aware of the conditions established in
the permit. Exercise of reasonable cars would have prevented the violation.

DIVISION OF MINES & RECLAMATION
ASSESSMENT OFFICER WORKSHEET

PERMITTEE

Ohio Valley Coal Co.

PERMIT *
D-0360

INSPECTOR: T. Pulav

INSPECTION DATE: 4-30-99 N.O.V. # 25510

HISTORY: TOTAL: $100.00
(For violations issued on the same permit during the last twelve calendar months.)
8) Number of Violations 1 $100.00 for each duplication of the
same violation. -#100.00

9) Number of Violations 0 $100.00 for each failure to abate
cessation order. 0

10) Number of Violations 0 $ 20.00 each for all other violations. 0

PROPOSED ASSESSMENT TOTAL: $500
DATE: Julv 19, 1999

PATTERN OF VIOLATIONS REVIEWED
*
GOOD FAITH: Minus 25% of Assessment Total

11) YES'
NO
Yes Did the permittee take EXTRAORDINARY actions to abate
No the violation in the shortest possible time and abate the violation before the time set for abatement? (See Attached Good Faith Compliance Report.)
*
12) FOR INSPECTION & ENFORCEMENT USE ONLY:

NOTE: Any proposed and final assessment of $500.00 or less may be waived if the violation did not cause irreparable damage or affect public health or safety, and if the violation was abated within the prescribed abatement time. However, any assessment for a violation which was previously cited during the last 12 months on the same permit, for exceeding point discharge effluent limitations or depositing sediment onto adjacent lands will generally not be waived.
je/8/97

Civil Penalty Assessment
Ohio Department of Natural Resources
DIVISION OF MINERAL RESOURCES MANAGEMENT
1855 Fountain Square Court
Columbus, Ohio 43224

July 12, 2000

WAIVER OF PAYMENT

Ohio Valley Coal Company
56354 Pleasant Ridge Road
Alledonia, Ohio 43902

SUBJECT: WMVFR OF PROPOSED CIVIL PENALTY ASSESSMENT NUMBER 12127

For Notice of Violation Number 25510, Permit Number D-0360, issued on April 30,1999, proposed civil penalty assessment number 12127 is hereby waived, as illustrated in item #11 on the attached assessment worksheet as a result of Good Faith compliance.

Signed by Michael L. Sponsler, Chief
Division of Mineral Resources Management

INSTRUCTIONS FOR APPEAL

Pursuant to Sections 1513.02 and 1513.13 O.R.C. and 1501:13-14-03 O.A.C., this assessment may be appealed by filing a notice of appeal and forward the amount of penalty, for placement in an escrow account, with the Reclamation Commission, Ohio Department of Natural Resources, 1855 Fountain Square Court, Suite 124, Building fl-i, Columbus, Ohio 43224 within thirty (30) days after it is issued, and by filing a copy of the notice of appeal with the Chief within three (3) days after it is filed with the Reclamation Commission. The notice of appeal shall contain a copy of the civil penalty assessment and worksheets and the grounds upon which the appeal is based.

You may request an informal conference to review the AMOUNT of this assessment by writing to Jeff Emmons, Division of Mineral Resources Management, 8~etown Road, Cambridge, Ohio 43725 within fifteen (15) days after receipt of this assessment. Time allowed for appeal to the Reclamation Commission shall be tolled from the time the written request is received to the time the assessment is revised or upheld.

Certified Mail # Z 400 645 599 cc: T.Pulay
Inspection & Enforcement