[CITE: DNR v. Great Lakes Coal Company, 3 CADDNAR 44 (1985)]
[VOLUME 3, PAGE 44]
Cause #: 85-126R
Caption: DNR v. Great Lakes
Coal Company
Administrative Law Judge: Shadley
Attorneys: Young, pro se; Szostek, DAG [Page (III
44)]
Date: June 19, 1985
ORDER
[NOTE: GREAT LAKES COAL
WITHDREW ITS REQUEST FOR REVIEW OF THE UNDERLYING NOTICE OF VIOLATION ON MARCH
11, 1986]
Temporary
relief is granted from the required abatement action in Notices of Violation #N50603-P-00014
pending the Director’s final determination on review of Notice of
Violation #N50603-P-00014.
Temporary
relief is granted from the required abatement action in Notice of Violation
#N50528-S-00111 as it applies to the affected area south of Bond segment H,
pending the Director’s final determination of Notice of Violation #N50528-S-00111.
Temporary
relief is denied from the required abatement action in Notice of Violation
#N50528-S-00111 as it applies to the side road running west from Atlas Road to
bond segment H, while being used to move equipment between isolated areas of
Permit S-00111, pending the Director’s final determination on review of
Notice of Violation #N50528-S-00111.
FINDINGS OF FACT
1. The
Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
2.
The Director has jurisdiction over the subject matter and the parties to this
action.
3.
The Director may delegate any or all powers and duties assigned to him under IC
13-4.1 to other employees of the Department of Natural Resources.
4. Sue
A. Shadley is an employee of the Department of Natural Resources.
5.
By letter dated June 10, 1985, Great Lakes Company ("Great Lakes")
requested temporary relief from Notice of Violation #N50528-S-00111 and
#N50603-P-00014.
6.
By written entry dated June 14, 1985, the Director delegated to Sue A. Shadley
the power to grant or deny the temporary relief requested by Great Lakes.
7.
On June 17, 1985 an administrative hearing was conducted pursuant to IC 4-22-1
on these requests for temporary relief in the Division of Reclamation field office
located at 201 West Main Street, Jasonville, Green
County, Indiana.
8.
Great Lakes holds permit #P-00014 to conduct surface coal mining operations,
specifically coal processing, at its Burke Tipple
located in Green County, Indiana, pursuant to IC 13-4.1 and 310 IAC 12.
9. Notice
of Violation #N50603-P-00014 was issued by Charles Yeager, an authorized representative
of the Director, to Great Lakes for failure to haul all coal processing waste
to the existing disposal area in violation of 310 IAC 12-5-41 and Permit
#P-00014, Part IV, M(4) and Attachment A22.
10.
The Notice of Violation required Great Lakes remove coal processing waste which
is piled up west of the slurry channel and bury it in the pit at Linton #2 Mine by 7:00 a.m., July 8, 1985.
11.
310 IAC 12-5-41 requires coal processing waste be hauled or conveyed and placed
in new or existing disposal areas within a permit area.
12.
Permit #P-00014, Part IV< M(4) provides that gob and slurry will be disposed
of at Linton Pit #1, #2, #3 and subsequent pits not yet permitted.
13.
Permit #P-00014, Attachment A22 provides that wastes will be buried in the pit
as described in the permit application.
14.
Permit #P-00014, Part IV, M(b) provides that wastes will be trucked back to the
operating pit, dumped on the pit flow, and buried under overburden from the next
cut before they can "heat."
15.
Neither the rule nor the permit contain a time frame
in days for the burial of the waste.
16.
Rule 310 IAC 12-5-41 indicates that the concerns related to coal processing
waste are combustion, affects on water quality, water flow, vegetation and
creation of public health hazards.
17.
Permit #P-00014 Part IV, M indicates a concern that coal waste not be allowed
to "heat."
18.
The Permit area of #P-00014 is designed to be self contained such that surface
water is retained entirely within the boundaries of the permit.
19.
As of June 17, 1985, the coal waste had not begun to combust or
"heat."
20.
The Respondent has determined that there are no significant ground water
resources in the permit area.
21.
Permit #P-00014 is an old mined out area without vegetative cover.
22.
As of June 17, 1985, no smoke, steam or fugitive dust was resulting from the
stored waste.
23.
Significant, imminent environmental harm to land, air or water resources is
defined as follows:
(a) and environmental harm means adverse impact on land, air or
water
[VOLUME 3, PAGE 45]
resources (including plant and animal
life) not contemplated by the permit.
(b) imminent means a condition, practice, or violation which is causing
or may reasonably be expected to cause an "environmentl
harm" before the condition or practice can be abated.
(c) significant means the "environmental harm"
(i) is more than local in scope;
(ii)
when continued, poses a serious environmental hazard
to existing land, air or water resources; and
(iii)
will have a long-lasting, detrimental effect before
the end of a reasonable abatement time.
24.
Granting temporary relief from Notice of Violation #N50603-P-00014 will not
cause significant, imminent environmental harm to land, air or water resources.
25.
Granting temporary relief from Notice of Violation #N50603-P-00014 will not adversely
affect the health or safety of the public.
26.
Great Lakes has not violated 310 IAC 12-5-41.
27.
Great Lakes has not violated Permit #P-00014 Part IV,
M (4) at Attachment A22.
28.
Great Lakes has shown there is a substantial
likelihood that the Findings of the Director on review of Notice of Violation
#N50603-P-00014 will be favorable to it.
29.
Great Lakes holds Permit #S-00111 to conduct surface
coal mining operations at its Linton Pit #2 in Greene County pursuant to IC
1304.1 and 310 IAC 12.
30.
Notice of Violation #N50528-S-00111 was issued by Stuart Francone,
an authorized representative of the Director, to Great Lakes for mining without
a valid permit, mining outside the permit area, in violation of 310 IAC 12-3-3
and 310 IAC 12-4-5(a), (b), (c).
31.
The location of violation was listed as two area
(1) the side road running west from Atlas Road to bond segment H
and
(2) all affected areas south of bond segment H.
32.
Great Lakes used the side road to move reclamation equipment between isolated
areas within its permit #S-00111 and to gain access to Cousins Coal Company
permit #78-83 to conduct reclamation of that Cousins Permit.
33.
The affected area south of bond segment H is contained within the interim
program permit boundaries of Cousins Coal of which the Department continues to
hold bond posted by Cousins Coal.
34.
A permanent program permit is not required in order to conduct reclamation
activities only on an interim permit.
35. Great
Lakes was conducting only reclamation under a lease
agreement with Cousins on the area south of bond segment H.
36.
Great Lakes has shown there is a substantial
likelihood that the Director's findings on review of Notice of Violation
#N50528-S-00111 will be favorable to it on location 2.
37.
310 IAC 12-3-3 provides no person may open or develop a new or previously mined
or abandoned site for surface coal mining operations within the state of
Indiana unless that person has first obtained a valid permit issued by the
Commission pursuant to IC 13-4.1-3.
38. 310
IAC 12-4-5(b) requires that performances bond cover that area of land within
the permit area upon which the operator will initiate and conduct surface coal
mining and reclamation operations. (emphasis added)
39.
IC 13-4.1-1-3(11) defines surface coal mining operations to include all lands
affected by the construction of new roads or the improvement or use of existing
roads to gain access to the site of mining activities and for haulage.
40.
IC 13-4.1-1-3(11) defines surface coal mining and reclamation operations to
include surface mining operations and all activities necessary and incident to
the reclamation of those operations after August 3, 1977.
41. A
road used to move reclamation equipment between isolated areas within a permit
must be included in the permit area and covered by performance bond.
42.
Great Lakes has not shown there is a substantial likelihood that the findings
of the Director on review of Notice of Violation #N50528-S-00111 will be
favorable to is on location #1.
43.
Granting temporary relief from Notice of Violation #N50528-S-00111 will not
adversely affect the health or safety of the public or cause significant,
imminent environmental harm to land, air or water resources.