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FROM:ADMIN HEARINGS JEFFERSON TO: 2065862756 APR 12, 1991 3:277-M P.03
PROCEEDINGS BEroRB THE DEPARTMENT OF NATURAL RESOURCES
DIVISION OF GEOLOGY AND EARTH RESOURCES
In re: )
70-012066-1
ANDERMAN ENTERPRISES, INC. ) FINDINGS OF FACT,
CONCLUSIONS OF LAW
Appellant ) AND INITIAL DECISION
)
After due notice to all, interested parties, a hearing was
held in this matter on January 7 , 8 , 9 , 22 , 23 , 28 , 29 , and
February 4, 1991 , in Lacey, Washington. Administrative Law Judge
Christine Clishe of the office of Administrative Hearings
conducted the hearing.
The parties were represented as Follows :
APPELLANT: ANDERMAN ENTERPRISES, INC.
By Gary H . Sexton, Attorney at Law
1126 Highland Avenue
Bremerton, Washington 96310
AGENCY: WASHINGTON STATE DEPARTMENT
OF NATURAL RESOURCES
By Kay Brown
Assistant Attorney General
Highways-Licenses Building
MS PB-71
Olympia, Washington 98504-8071
MEMORANDUM S
I. BACKGROUND
A. Physical characteristics of the site.
This matter concerns a forty--acre site several miles north
of Belfair in Mason County, Washington. The property is on
a hillside west of the county -road kno-.•.n as Old Belfair
Highway. Access to the site is along an easement road
running west from the county road and along the southern
edge of the property. This hillside slopes down to the
east, and the present surface mining area is mid-slope. Two
drainage &wales , one to the north and west of the mined area , and one to the north and east of the mined area, out
through this property. The soil on the hillside is largely
clay, which is relatively impermeable.
B. Prior ownership and use of mine site property_._
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Probably during the 1970s, an owner of the present mine sitel '-"1`' Nor C1E11
property logged that property, clear cutting a great Cui, utJ_11: -L
majority of the area . in January, 1980 , Robert Scatena 1-(c- 0_PL�Aio2
bought the property . On July 1, 1980, the Department of Mk -
Natural Resources ( hereafter Department ) issued Surface —
Mining permit No. 70-012066 to Robert Scatena, Robert Neale,
and Palma Neale . Under the permit, Service Fuel did some
surface mining -at the top of the hill. The site was steep,
but flat on top. After Service Fuel declared bankruptcy,
Mr . Scatena in late 1965 sold the property to Anderman
Enterprises, Inc. (hereafter Anderman or operator) . Jeffrey
Hartman is the majority owner of Anderman . Walter Gait
operates that company. On December 1 , 1986 , the surface
mining permit was transferred to Anderman .
C. Ownership of adjacent ro erties .
Between the county road and the mine site hillside, north of
Anderman ' s easement road , is 2 . 98 acres of property now
owned by Allen Hoover. Prior to his purchase of this
property in August, 1988 , Richard Nelson owned the property.
From 1980 to 1988 , Mr . Hoover lived in the immediate
vicinity of his present residence, first north of it and
later directly across (east of ) the county road from it.
Anderman's easement road is on Mr. Hoover ' s property.
South of the mine site (and adjoining Anderman' s easement
road) is 7. 9 acres of property which is now owned by Richard
Medeiros. Mr. Medeiros ' s wife' s uncle owned this property
from 1955 until Mr. Medeiros purchased it in about 1986 .
East of the county road (across from the Medeiros property) c
is the Littlefield residence. South of that residence is
the Union River.( cESs 7(/N /z nw11_F Foci
D. Anderman ' s agreements with property owners .
Anderman has had no written agreements with owners of
adjacent properties except its easement on
Nelson Hoover property F regarding work it has done on those
properties and any discharge of water onto those properties .
Nelson/tIoover Property: When Anderman took over the site in
1986 , the east side of its property adjoining the Nelson
(now Hoover) property was a brushy swamp. Nelson's property
in that area was a swampy hole about 9 or 10 feet deep. The
hole was lined with black mud and stagnant water and
contained garbage . Because Anderman was going to build two
water retention ponds next to this hole, Messrs. Nelson and
Goit agreed that Anderman would fill in the hole to keep A,0
water from running downhill on Nelson ' s property. In 1987 , �a0�.i�q'
Anderman filled in this hole and planted trees and grass as_r, (z G
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a setback between the two properties . Mr . Nelson waG),
pleased with the arrangement. After Mr. Hoover botaght the
property, he required Anderman to construct a berm between
the Anderman ponds and the Nelson/Hoover pond. . Water from z H
other than the mine site (probably the general drag an ge"" -'
Swale) now drains into this area on Mr. Hoover ' s property
and drains from that pond sometimes onto Anderman ' s
property, down, the easement road and eventually onto the 71)
Medeiros property. Mr . Hoover also constructed,a bezm__aldn E
the north side of the easement road. Mr. Hoover has another
pond in the area where his property meets the county road.
He has complained that siltation f rom the mine site has
damaged that pond. ~
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Medeiros property: There is some indication that a verbal
agreement existed between Service Fuel and Mr . Medeiros ' s T/
wife ' s uncle , by which discharge of mine water onto the Z
lower property was acceptable . After Mr. Medeiros acquired z m s a
this property in 1985-1986, he advised Mr. Scatena that he i
did not like mine water or mud on his property. Mr . Scatena E
had Mr. Goit clean up the dirt which had sloughed onto the r'
northwest side of Mx. Medeiros' s property. After Anderman � c
acquired the mine in 1986 , Mr. Goit and Mr. Medeiros were
friendly. in 1985, a lake about the size of a football h t
field covered the area between Medeiros ' s house and the c ;
county road. Mr. Goit offered to build up Mr. Medeiros ' s 3
driveway, fill in the pond in the front of his house, and Z m
clean up the area adjacent to the house . (Mr . Goit did I
these things in 1986 , at considerable expense . ) Mr . m
Medeiros was going to let Anderman dig a ditch between his N Z
driveway and Anderman ' s easement road and run a culvert
underneath the Medeiros driveway, with a V ditch extending T�
along the front of Medeiros 's property, next to the county
road . Mr . Medeiros has refused to allow most of that r)
drainage work to be done on his property. He has complained F h
many times to the Department and others about what he n� n�
considers damage to his property from mine water .runoff and t
silt deposits. Much of the muddiness in his pond area is
from runoff from his own driveway, which now has potholes .
B. The community water problem. " y �'
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Briefly, for many years a water control problem has existed h c
in the area. The county road winds through the valley on
the east side of the hilly mine -site . The residences of Q)
Messrs . Hoover and Medeiros are in that valley . The
northeast corner of the Medeiros property, where it meets
the intersection of the county road and the Anderman C
easement, is the low point in the area . That corner of
Medei-ros '
_ws property rom has been a wetland for at least several
decades, ith water f several places settling there.
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FROM:ADMIN HEARINGS JEFFERSON TO: 2065862756 APR 12, 1991 3:29PM P.e6
Probably during the 1930s , culverts were installed under the -^'-'-Y
county- road, one near the northeast corner and'one near the—
southeast -corner of the Medeiros property. Water drained
from that property into a ditch east of the county road and
then into the Union River. Sometime between 1977 and 1982 ,—
Mr. Littlefield plugged the northerly culvert to prevent__-__
water from the west coming onto his property . The sout_rly
culvert was improperly installed or designed, and until the
water on Medeiros 's property reaches a level of about four
feet, water from east of the county road drains through the
culvert onto Medeiros 's property.
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In response to complaints from property owners, particularly
Mr. Medeiros ,- the Department met with them in September
1987 . As a favor to the neighborhood , the Department
suggested a cooperative effort to build a new culvert . it
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agreed to donate pipe and the plan for correcting the
culvert problem. Anderman agreed to donate labor and
machinery. Mason County approved the plan. After Anderman
labored for two days_.cutting the road, the County ordered it
to cease the project . Mr. Medeiros had complained to the _
county and threatened a lawsuit because tax money was being �z
spent on a private project.
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F. Anderman' s efforts to control surface water runoff . �z
In addition to those endeavors set out above, Anderman has NG
continuously tried to control surface water runoff from the �S>
mine area. Mr. Goit has dug additional retention ponds , z1
installed a sprinkler system to take water from the large Z
ponds ( Nos . 4 and S on Exhibit 22 ) up the hill to a z�
forested area for spraying , installed a V ditch and berm T
a ong the south side of the site, and dug a itch to divert
water into a collection pond near the office area. He has
closely monitored the pumping system from his ponds . on a
couple of occasions , the pumps have failed. Mr. Goit has P
repaired them right away. He has revegetated areas of the -cR
property , although not to the extent the Department would �
prefer. When requested, Anderman has submitted operational
plans which are acceptable to the Department (Exhibits 10
and 16 ) . However, systems in these plans have not been
fully installed , because the operator cannot obtain _
easements from the neighbors . 69 THE 6c-P( e7 &_zJ"(-
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G. interactions between Anderman and the Department. -
Over the - course of the last five years , personnel from
Anderman and the Department have communicated many tines
about the mine drainage system and the operator ' s
responsibilities . Many of the communications resulted from
the Department ' s efforts to deal with complaints frbm
adjacent property owners , particularly (and perhaps solely)
Messrs . Medeiros and Hoover. The evidence of record shows
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ROM:ADMIN HEARINGS JEFFERSON TO: 2065862756 APR 12, 1991 3:30PM P.07
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that while there was not always a meeting of the minds o
between the Department and Anderman , there was a -genuine
spirit of cooperation and respect between the individuals v� �=
involved. Anderman has asked for and sometimes accepted
advice from the Department. The Department has at tines — � o
suggested methods for resolving problems . However , the
Department is a regulatory agency. Anderman, as the mine
operator , has the responsibility of meeting the
requireme e nts of th Zaw and rules relating to surfar_p
minin Finally , the Department issued the Notice of �
Violation and Order to Rectify which underlies 'this matter .
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I1 . ISSURS
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The primary issue here is whether the Department 's August �
23 , 1990 , Notice of Violation and order to Rectify Deficiency 3
Pursuant to RCW 78 : 44 . 140 should be upheld.
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In that Notice and order , the Department charged that i
Anderman ' s "reclamation and operating plan does not adequately
address control of surface water run -off from the mining
operation damaging property adjacent to the mine site. " Further,
" [t]o date, no drainage system has been installed which corrects a c
the problem of uncontrolled run-off of water onto property 4b it
adjoining the mining operation. " a'
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We must consider whether there is evidence of record to
support the Department' s charges. z
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III . APPLICABLE LAWS A14D RULES
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The Surface Mining Act , Chapter 78 . 44 RCW, and the rules r
adopted thereunder , Chapter 332-18 WAC, Surface Alined Land L
Reclamation, control in this matter . V. .�
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In RCW 78 . 44 . 010, the Legislature commented on this Act, as
follows-
.the extraction of minerals by surface mining is a Z7
basic and essential activity making an important
contribution to the economic well-being of the state �t Z
and nation . At the same time, proper reclamation of
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surface mined land is necessary to_prevent _undesirable rTI
land—and water conditions that would 'be detrimental to - z
t e general welfare , health , safetx, and property
rig s o t- e citizens of the state . Surface mining
takes place in diverse areas where the conditions R,
are significantly different , and reclamation
specifications must vary accordingly . It is not R
practical to extract minerals required by our society
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without disturbing the surface of the earth and
producing caste materials . . .
obviously , the Legislature envisioned that a balance must be
struck between the disturbance caused by surface mining and the-- !
well--being of others .
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In RCW 78 . 44 . 020 , the Legislature set forth the purpose of
the Act, which is to:
(PIrovide that the usefulness, productivity, and scenic _
values of all lands and waters involved in surface
mining within the state will receive the _-greatest
practical degree of protection and restoration. -
The term "reclamation" is defined in RCW 78 . 44 . 030 ( 10 ) , as
follows: >_
. . the reasonable protection of all surface resources `
subject to disruption from surface mining and
rehabilitation of the surface resources affected by
surface miring including the area under stockpiled
materials . Although both the need for and the
practicability of reclamation will control the type and
degree of reclamation in any specific instance, the
basic objective will be to reestablish on a continuinc
basis the vegetative cover , so3 stability, water
conditions , and safety conditions appropriate to fie
intended subsequent use of the area-.
Two Two criteria of a "reclamation plan, " as set forth in RCW
78 . 44 . 030 (11 ) (c) and (f) , are:
Proposed practices to protect adjacent surface
resources ; . . [ and a ] method of prevention - o"r Y
elima nation Of conditions that will create a public-
nuisance, endanger public safety, damage property , or
be hazardous to vegetative, animal, fish, or hura- h rife
in or adjacent to the area . .
These two criteria , for purposes of this matter, establish the
legal requirements for an adequate surface mine drainage . system.
RCW 78 . 44 . 090 requires that a reclamation plan provide that
reclamation activities, particularly those relating -to control of
erosion , shall , to the extent feasible , be conducted
simultaneously with surface mining.
Pursuant to the statute, as addressed in Reid v . King
County, 35 Wn. App. 720, 669 P.2d 502 (1983 ) , the Department has
authority to regulate the operational phase of sur ace mining as
well—as xeG ramat�on after such mining has been completed.
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FROM:ADMIN HEARINGS JEFFERSON TO: 2065962?56 APR 12, 1991 3:31PM P.09
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Part of the operational and reclamation phases concerns z c
controlling surface water runoff . VIAC 332-18--100 addresses water
control, as follows: .
3 U 73
,
Water diversion ditches or channels shall be construed
in surface mining areas to control surface water z z
runoff , erosion , and siltation and to remove surface
water runoff to a safe outlet, and shall be maintained
until surface mining and reclamation have been F
completed . Diversion ditches or channels shall be
designed to carry the peak flow having the probable c � z
recurrence frequency of once in ten years or as f'
approved by the department. The grade of such ditches
and channels shall be constructed to limit erosion and R
siltation to currently accepted standards.
Throughout the Surface Mining Act and regulations in Chapter c m
332 - 18 WAC , there are references to practicability and
feasibil
lancing
rests, the
statutory and regulatory atory scheme ey. in addition to a in this area
Y g Y 9
of practical solutions, which may not be the same as the perfect
solution. ti
IV. POINTS OF AGREEMENT BETWEEN THE PARTIES
A. Anderman is not required by law or rule to control.
waters discharged from the permit area during
precipitation events exceeding ten year events . R Ya n
d
a. Anderman may route off site all surface waters which
shave not--ente s-t a permit areas..
C. Water from the disturbed areas, if discharged off site, 1�
must-o-tv-a soutle -
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V. SUMMARY OF THE POSITIONS OF THE PARTIES
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Anderman Enterprises, Inc. : Anderman wants to knew vhat it
can and can ' t do . Over the years , it has received
conflicting information from the Department about where it
can discharge which waters from its property . Anderman J ti
believes the Medeiros property, which is the low point. of �-
the natural drainage pattern in the area, is the sensible
place to - discharge- -water from the mine site . However ,
Anderman believes such discharged water should be fairly
clean s-o �t doesn t cause damage. The sediment retention M
pond system operates to that end. r•
Department of Natural Resources : The Department contends ti
that its Notice and Order should be upheld. The adjoining
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FROM:ADMIN HEARINGS JEFFERSON TO: 2065862756 APR 12, 1991 3=31PM P.10
properties are not a "safe outlet" for discharge of water
from the distur a area o t he m -the
opezaE_oz's current system is inadequate to control surface
water runoff, that the operator must submit a plan which is
acceptable to the Department and install the system "-
presented in that plan . It contends that properties
adjacent to the mine have been amage__ .
--- -----------------
Having discussed above the testimony concerning all matters
inquired into and having stated findings and conclusions, the
undersigned Administrative Law Judge now makes the following
summary of those facts . Portions of the preceding detailed
findings pertaining to the ultimate findings are incorporated
herein by this reference,
FINDINGS OF FACT
1. Anderman Enterprises , Inc. holds Surface Mining Permit
No . 70-012066 , which the Department of Natural Resources
transferred to it on December 1, 1986 . Anderman agreed to comply
with the plan of operation in existence rom the Service Fuel
operation ceased
opera ion in Decemher 19890 Anderman mined gravel from the
hillside on the eastern part of the site.
2. Because the Anderman operations were substantially
different from those of Service___F_ uel, the Department asked for a
new reclamation/operating plan. in June, 1988 , Tritec Associates( "-
prepared a design for settling ponds and reclamation (Exhibit 9 ) .
Later in 1988, Anderman submitted, and the Department approved as _
part of its operating plan, a design for an emergency over flow
drain system, prepared by Tritec Associates (Exhibit 10) . This
plan included a system of ditches and new culverts. Anderman has
not installed most of this system. Richard Medeiros , owner of
adjacent property, would not grant an easement for the ditch.
Later, Anderman submitted a Tritec plan which replaces the ditch
with a tightline (Exhibit 16 ) . The county would not. agree to
that feature.
3. Presently, water from the mined area runs downhill,
mostly into two sediment retention ponds (ponds 4 and 5 on
Exhibit 21 ) . Water from those ponds is pumped uphill to 'a
forested area through a pipe . The water is dispersed into the
forested area through a sprinkler system. other water running
off the mined area goes into a collection pond near the company
office , and ib then pumped back into pond 4. Some water runs
into and down the V ditch along the south side of the easement
road, down onto the Medeiros pond area, and eventually into the
ditch leading to the Union River.
4 Since Anderman started mining in 1986 , there have been
times when water from the mine site has run onto neighbors '
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FROM:ADMIN HEARINGS JEFFERSON TO: 2065862756 APR 12, 1991 3:32PM P. 11
property (including January 7, 1988 ; April 5 , 1988 ; January 26,
1989 ; December 4 , 1989; and late November,_ 1990 ) . One -of these
instances (January 7, 1988 ) was due to a pump failure, which was
immediately corrected by Anderman . Plater overflowing the
retention ponds ran into the Medeiros pond . Heavy rain during--
that time also caused flooding of the Medeiros property from the
Hoover pond (No. 2) and from south of that property . On January
8 , 1988 , the water in the Medeiros pond was clear, with no
observed sediment.
5. The Department investigated after a complaint by Mr. '
Medeiros on April 5, 1988 . William Lingley of the Department
found a very minor seepage of _silty water from the Anderman site
under the berm on the west side of the Medeiros property .
Anderman corrected the problem.
6 . On January 26 , 1989 , Mr. Lingley observed silty water
in Mr. Hoover' s pond , which he believed to befrom thin erman
sib
7 . On December 4, 1989 , after very heavy rains, there was
flooding through the valley, including from the mine , onto the
Medeiros pond area. The Department issued a shut down order to
Anderman. The mine has not operated since then .
8. Following the Thanksgiving time storm in late November,
1990, the valley again flooded, with water which had crossed the
mine site mixing with water from the north, south, and east, and
running into the Medeiros pond area . One day after this major
flood , water in the Medeiros pond was clear. Just a few days
after this storm, Jay Petersen, a civil engineer and consultant,
inspected the area and found no significant sediment in the
Medeiros pond. In his opinion, if the mine were to continue to
operate as it has , no significant amount of sediment would come
from the mine site onto the Medeiros property, even over twenty-
five years .
9. David Sims_ of the Department has observed the Hoover
pond number 3 to be muddy most of the time. He believes that
muddy water comes from the mine site. in January 1988 , he
observed water from the Anderman ponds running into Hoover' s pond
number 2 .
10. Mr . Sims has observed colored water in the Medeiros
pond when the Anderman ponds were not full and no water was
coming from the mine site. Mr. Lingley has observed suspended
sediment in the Hoover and Medeiros ponds on several occasions.
11. Allen Hoover believes his pro pert has y been dammed
from mine wA er runoff _His ponds show cloudiness and mud:__FisFi
n pondnumber diedrom lack of oxygen, whit -courc�have been
cause y ucfeces in t e pond . His driveway an t. e easement
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road are rutted . This inconveniences his family. We find that
thexe_iI—as�een no credible-meowing a , the dadages Pdr. Hoover
alleges are directly or whally from mine water runoff . cc
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12 . Richard Medeiros believes his property has been damaged` r
by mine water runoff. He believes that, since 1985, there is a m
larger volume of water in the area of pond number 1 , that the j r
water is frequently brownish, and the area is wet all summer. He o G z
had wanted to build a store on the front of his property, but lie `s
doesn't think he can do this because of the water. He testified
that he had agreed to let. Walter Goit fix the culvert and dig a 3 C;
ditch because Mr. Goit would build a new building for him. We a Z
find that testimony to be without credibility. We find there has
been no credible showing that the damages Mr. Medeiros alleges
are directly or wholly iron mine water runoff . C
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13. The natural drainage pattern of the area is to the N
lowest point , which is the northeast corner of the Medeiros
property. The present mine system of retention ponds , berms, and
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a V ditch adequately controls and removes surface water runoff to j
a safe outlet, which is the adjoining properties . m
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CONCLUSIONS OF LAW 3
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1 . The Office of Administrative Hearings has jurisdiction Q' ��
to hear and decide this matter pursuant to Chapters 78 . 44 and
34 .05 of the Revised Code of Washington, as amended , and Chapter
332-08 of the Washington Administrative Code. a z
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2. The provisions of Chapter 78 .44 RCW, the surface mining
act, and Chapter 332-18 WAC, regarding surface mined land
reclamation are applicable to this matter. z
3. A surface mine operator has the burden of developing a
and presenting for the Department' s approval a reclamation and r
operating plan for the mine. RCW 78 . 44.030 , RCW 78 .44 . 080, RCW
78 . 44 . 090 . The Department ' s authority to regulate the z
operational phase of surface mining includes the authority to s'
require a modified plan . RCW 78 . 44 . 100 . An operator ' s T
consultation with Department personnel does not shift that burden
of developing a plan to the Department. �?
3
4. The Legislature 's adoption of the Surface Mining Act,
Chapter 78 . 44 RCW, and the rules adopted thereunder, establishes i
a scheme for water control. The law and rules -preempt the commoih �.
'haw doctrine of the common enemy.
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5. As presently designed and installed, Anderman ' s plan
for controlling surface water runoff from the mined areas removes m
that runoff to a safe outlet, namely the natural drainage pattern a
in the area, which includes the adjacent properties . The plan
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F20M:ADMIN HEARINGS JEFFERSON T0= 2065862756 APR 12, 1991 3:33PM P. 13
adequately protects adjacent surface resources. Adjacent
properties have not been damaged by any runoff.
6 . Within the meaning of the law and rules , Anderman may
discharge of site and onto adjacent properties within the natural-,- � i ,-,
drainage pattern that surface water w ic comes rom undistubed_
or reclaimed areas of the site. m
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7. Anderman is not required by law or rule to control
those waters discharged from the permit area during precipitation H c,
events exceeding ten year, twenty-four hour events, as shown on + rl
NOAA Atlas # 2 , precipitation frequency atlas of the Western
United States, Volume 9 WA 1973 . t w �,
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8. Anderman is not by law and should not be required to r 3 y
correct the con unity water problem of the area . That long-
standing problem has been created by nature and several property z
owners. Anderman expended considerable money several years ago H a
in what was to be a cooperative effort, only to have the project ?�
blocked by Mr. Medeiros , who had complained most vocally about c
water on his property (and still does complain most) . 0 2
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9 . During the hearing , the operator several times 'K 4 �►y
requested that this order specify what it can and cannot do.
Other than what has been set forth above, we have no jurisdiction
to provide suggestions nor to approve a plan. a
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10. All motions made in the course of this proceeding which
are consistent with the findings , conclusions and decision herein
should be granted , and those inconsistent therewith should be
denied.
INITIAL DECISION
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IT IS HEREBY ORDERED That the Notice and Order of the
Department of Natural Resources, dated August 23 , 1990 , shall be
set aside. a �"
DATED at Olympia , Washington, this twelfth day of April,
1990 .
CHRI ST INE CLI SHE 'tip
Administrative Law Judge � I I
Office of Administrative Hearings
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