[CITE: DNR v. R. Goldman, et al., 1 CADDNAR 54 (1983)]
[VOLUME 1, PAGE 54]
Cause #: 82-027R
Caption: DNR v. R. Goldman,
et al.
Administrative Law Judge: Lucas
Attorneys: Scherschel, DAG; pro se (Goldman)
Date: April 11, 1983
ORDER
[NOTE: SUBSEQUENT TO THE
ENTRY BY THE ADMINISTRATIVE LAW JUDGE OF RECOMMENDATIONS IN THIS DMINISTRATIVE ACTION,
THE PARTIES SUBMITTED AN AGREED ORDER TO THE NATURAL RESOURCES COMMISSION. THE
AGREED ORDER WAS APPROVED AND THE RECOMMENDATIONS WERE RENDERED MOOT.]
It
is ordered this date as follows:
Permit
to Engage in Surface Mining, Permit 79-157 is revoked pursuant to IC 13-4-6-8.
FINDINGS OF FACT
1. The
Department of Natural Resources ("Department") is an agency of the State
of Indiana duly empowered to conduct administrative hearings pursuant to IC
4-22-1.
2. The
Department has jurisdiction over the subject matter and the parties to this
administration.
3. Robert
Goldman and William B. Gladstone, a general partnership, doing business as
Abbott Coal and Energy Company ("Abbott") was issued by the
Department a Permit to Engage in Surface Mining, Permit 79-157, ultimately
permitting 17.0 acres in Greene County, Indiana, effective September 10, 1979
and ending September 9, 1980.
4.
The mining operations of Abbott consisted of extracting salvageable materials
for a gob left during the prior mining operation of another company (Peabody
Coal).
5. A
gob consists of solid waste materials, accumulated during the processing of raw
coal and deposited in piles at or near the processing facility. Such solid
waste materials include coal and coal shavings and often contain quantities of sulphur, iron and pyrite, which form sulphuric
acid upon oxidation and contact with water.
6.
No testing was performed by the Department to determine the acidity or
alkalinity of water discharged from the permitted area prior to the mining
activities of Abbott. A lack of vegetation in roadside ditches, and red
discoloration of water discharged from the area, suggest the acid level was
then unacceptable.
7.
Water tested from the permitted area in November, 1982, yielded a pH of 4.0, indicating
high acidity. Neutrality on the pH scale is represented by 7.0, with an
acceptable range from 6.0 to 9.0.
8.
Abbott exposed a significant amount of acid forming material within the gob,
and some responsibility for the discharge of acidic water from the permitted
area rests with Abbott. No tests results were presented by either party to
segregate the contribution by Abbott to the formation of acidic water, as opposed
to the formation of acidic water resulting from conditions existing prior to
its mining activities.
9.
Abbott ceased mining activity at the permitted area in September, 1980. The
last item of reclamation equipment, an earth scraper, was removed in March,
1983.
10.
The reclamation plan entered by Abbott, as a condition to the grant of Permit
79-157, included placement of four feet of non-toxic material over the affected
area. Placement of the specified quantity of non-toxic material is an integral
part of the grading requirement as set forth under IC 13-4-6-6 (f).
11.
By Certified mailing dated March 19, 1982, the Department issued a Notice of
Non-compliance informing Abbott of its failure to complete reclamation as
required by IC 13-4-6 with respect to acreage permitted under Permit 70-157. The
notice specified areas of non-compliance and set May 15, 1982 as the date by
which Abbott was to
(a) complete grading and soil replacement;
(b) provide and maintain proper drainage control and treatment. May
31, 1982 was set as the date by which Abbott was to revegetate
the affected area with an approved species mix.
12.
On July 21, 1982, the Department inspected the acreage mined by Abbott under
Permit 79-175 and found that reclamation had not been completed by the May 1982
deadlines stated in the Notice of Non-compliance. Rough grading had been
performed, but non-toxic material had not been placed over the affected area as
specified in the plan of
[VOLUME 1, PAGE 55]
reclamation. Water with a low pH level
and high iron content was exiting the east side of the site.[FOOTNOTE i]
13.
Abbott has failed to complete reclamation of the acreage disturbed under Permit
70-157 as required IC 13-4-6-6 (f) in that grading was not carried out as soon
as practicable[FOOTNOTE ii] after
depositing of the over-burden and prior to removal of reclamation equipment
from the mining operation. [FOOTNOTE
iii]
FOOTNOTES
i. The acidity and high iron content of water leaving
the affected area under Permit 79-157 is cause for concern. The inability of
the Reclamation Division, however, to define the culpability of Abbott for the
poor water quality (See Finding of Fact 8.) would make suspect a determination,
on this basis, that Abbott had violated the provisions of IC 13-4-6. Fatal to
the Department's position was its failure to establish a legal duty by Abbott
to maintain good water quality. Counsel for the Department elected not to
introduce the plan of reclamation entered under Permit 79-157, and no statute,
rule, guideline or judicial precedent was cited to establish water quality
standards applicable to IC 13-4-6. The acidity and high iron content of water leaving
the permitted area does not constitute a basis for permit revocation or
modification, at least not under the evidence as presented.
ii.
More than two years have passed since Abbott ceased mining operations, a
sufficient opportunity under the most liberal schedule in which to complete
grading. Robert Goldman implied during testimony that the landowner had
interfered with reclamation efforts, but even assuming the landowner caused a
two year delay in the completion of grading, any relief by Abbott must be
secured against the landowner and not within this administrative action. The landowner
is not a party to this proceeding, nor does the landowner have an obligation to
the Department to perform reclamation. That obligation rests squarely with
Abbott.
iii.
Abbott concedes that four feet of non-toxic material has not been placed over
the affected area and that the last piece of reclamation equipment was removed
from the site in March 1983. (See Finding of Fact 9).