[CITE: Peabody Cl. Company v
DNR, 4 CADDNAR 19 (1986)]
[VOLUME 4, PAGE 19]
Cause #: 86-079R
Caption: Peabody Cl. Company
v DNR
Administrative Law Judge: Lucas
Attorneys: Joest; Szostek,
DAG
Date: June 20, 1986
ORDER
[NOTE: THE UNDERLYING NOTICE
OF VIOLATION IS A SUBJECT OF AN AGREED ORDER ENTERED ON OCTOBER 2, 1986.]
Temporary
Relief is granted to Peabody Coal Company relating back to June 16, 1986
pending a determination on the merits of the NOV.
FINDINGS OF FACT
1.
The Department of Natural Resources (the "Department") is an
"agency" as the term is defined in IC 4-22-1. The director of the
Department is the ultimate authority of the Department with respect to the
subject matter of this administrative action.
2.
The Director may delegate all or any of the powers and duties assigned to him
under IC 13-4.1 to other employees of the Department.
3.
On May 15, 1986, Notice of Violation #N60515-S-00018 (the "NOV") was
issued to Peabody Coal Company ("Peabody") by Michael Anderson, an
authorized representative of the Director under IC 13-4.1.
4.
The NOV was issued in connection with permit S-00018 under which Peabody
operates Latta/Gilmore Area alleging a violation of
310 IAC 12-5-59 (a) and (b) I, as well as 310 IAC 12-3-4.
5.
Peabody, by counsel made a timely request for administrative review of
Violation 1 of 2 contained in the NOV and requested temporary relief under IC
13-4.1-11-8 (e) from the abatement set forth in the NOV pending resolution of
the hearing on the NOV.
6.
The Director delegated his power and duty to act on Peabody's request for
Temporary Relief to Stephen L. Lucas, an employee of the Hearings and
Affirmative Section of the Department of Natural Resources.
7.
The NOV was issued in two parts, but the second violation or part has been
vacated by the Division. Only part one of two of the NOV is at issue.
8.
The NOV, part one of two, cited Peabody for nature of Violation failure to
establish on all affected land a diverse, effective and permanent vegetative
cover that supports the approved post-mining land use. The provisions violated
are indicated to be 310 IAC 12-5-59 (a), (b) (1), 310 IAC 12-3-4 and the
Permit, Part IV D (4). The location of the violation is stated to be:
(1) just north of Gun Club Road in the vicinity of extreme NE
corner of 78-124 permit (north of Culvert), and
(2) south
of Culvert under dead-end haul road east side of Embry Church Road (south of
eastern final cut improvement.) The action required in the NOV for both
locations is stated as:
(1)
either seed to establish a ground cover that will support the approved post-mining
land use of "wildlife area", or seed to establish a temporary cover
sufficient to control erosion, and
(2) mulch to control erosion, promote germination of seeds, and
increase moisture retention capacity of the soil.
9.
On June 17, 1986, an administrative hearing on Temporary Relief was conducted
at the Division of Reclamation Field Office, 201 West Main Street, Jasonville,
Indiana.
10.
310 IAC 12-5-59 (a) and (b)(1) provide as follows: Revegetation, general requirements.
(A)
Each person who conducts surface coal mining activities shall establish on all
affected land, except water areas and surface areas of roads that are approved
as a part of the postmining land use, a diverse,
effective, and permanent vegetative cover of the same seasonal variety native
to the area and that supports the approved post-mining land use.
(B) all revegetation shall be carried
out in a manner that encourages prompt vegetative cover and recovery of
productivity levels compatible with the approved post-mining land use.
(1) vegetative cover shall be capable of stabilizing the soil
surface from erosion.
11.
310 IAC 12-5-55.1 (h) provides that small depressions may be constructed if
they are needed to retain moisture, minimizes erosion, create and enhance
wildlife habitat, or assist revegetation, and will
not interfere with the approved post-mining land use.
12.
The approved post-mining land use for the affected areas at issue in this
action are predominately for wildlife habitat.
13.
The focuses of the NOV are two areas. One incorporating about
1/10th of an acre and the other about one acre, where efforts by Peabody to
establish a vegetative cover had not been completed. Both areaS were ground seeded in October, 1985, with wheat. The
smaller area was also aerially seeded in January, 1986 with orchard grass and
alfalfa. The larger area was also ground seeded with similar plants in March,
1986.
14.
Both areas identified in Findings 13 are low-lying areas which tended to be wet
and subject to sediment deposition rather than erosion.
15.
Erosion from the two areas is likely to be insignificant.
16.
The two areas may qualify as water areas under 310 IAC 12-5-59 and at least for
the purposes of Temporary Relief are viewed as providing a substantial
likelihood of exemption from that rule section.
17.
The hearing on Temporary Relief in which all parties were given an opportunity
to be heard.
18.
That applicant showed there is a substantial likelihood that findings of the
Director will be favorable to him.
19.
As stipulated by the parties Temporary Relief will not adversely affect the
health or safety of the public or cause significant imminent environmental hard
to land, air to water resources.