[CITE: Peabody Cl. Company v. DNR, 4 CADDNAR 21 (1986)]
[VOLUME 4, PAGE 21]
Cause #: 86-081R
Caption: Peabody Cl. Company
v DNR
Administrative Law Judge: Lucas
Attorneys: Joest; Szostek,
DAG
Date: June 19, 1986
ORDER
[NOTE: THE UNDERLYING NOTICE
OF VIOLATION IS A SUBJECT OF AN AGREED ORDER ENTERED ON OCTOBER 2, 1986.]
With
respect to stockpiles 2, 4 and 7, Peabody Coal Company is granted temporary
relief until a decision by the Director on the merits with respect to Notice of
Violation #N-062-80-67. With respect to stockpiles 1, 3, 5 and 6, Peabody is
granted temporary relief consisting of an extension of the period of time for
abatement until July 15, 1986 at midnight.
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 (the "Director") 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 16, 1986, Notice of Violation #N60516-80-67 (the "NOV") was
issued to Peabody Coal Company ("Peabody") by Stuart Francone, an authorized representative of the Director
under IAC 13-4.1.
4.
The NOV was issued in connection with permit 80-67 under which Peabody operates
Lynnville 1150 #1 Pit in Warrick County, Indiana (the "Mine").
5.
On June 9, 1986, Peabody 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 NOV Violation 1 of 2, stated the nature of the violation was that there was
a "failure to protect topsoil stockpiles from wind and water
erosion;" that provisions violated were IC 13-4-6-1.6 and 30 CFR 715.16
(c); the location of the violation was seven topsoil stockpiles (the "Stockpiles")
south of County Road 875 North; that the action required was to "protect
these topsoil stockpiles from wind and water erosion;" and, that
compliance time was June 20, 1986. A map enumerating and depicting the seven
stockpiles is attached and incorporated as Exhibit "a".
7.
The stockpiles have been in existence since the late 1970's, and some evidence
of erosion is present with respect to each of the stockpiles. Gullies have been
observed on stockpiles 1, 2, 3, 5 and 6 which are from nine inches to five feet
deep. Soil deposition is present below the stockpiles, and cover on the
stockpiles is irregular.
8.
The extent of erosion varies among the stockpiles. The evidence presented
during the temporary relief hearing suggests that erosion may be most severe on
stockpiles 1, 3, 5 and 6.
9.
Photographs for stockpile 1 and corroborative testimony suggest sloughing
("sections of soil falling off"), zones lacking vegetation and the
deposition of topsoil at the base.
10.
Stockpile 3 exhibits numerous gullies, including one suggesting the movement of
roughly 100 cubic yards of earth, and the deposit of soil around the stockpile
to a depth of four inches. Earthen material from stockpile 3 has been deposited
as far away as 80 feet from the stockpile. The potential loss from movement
from this stockpile is aggravated because of the proximity of a ditch, and
evidence that material from the stockpile is present at the rim of the ditch.
11.
Stockpile 5 demonstrates gullies and sporadic vegetation.
12.
Stockpile 6 exhibits numerous gullies, including one 4 to 4 ½ feet deep,
undercutting, and up to six inches of topsoil off the stockpile.
13.
The stockpiles are located on graded overburden. Stockpile materials which
spread in a thin layer across overburden are at risk of loss, because topsoil
may become intermingled with overburden and because removal of topsoil by
conventional reclamation equipment can be difficult. Randy Staley testified for
Peabody that "normally a scraper operator can [remove as thin as a] four
inch layer. . . . normally, [Peabody does]. . .not
pick up layers that small."
14.
The erosion exhibited by the stockpiles has occurred during the life of the
stockpiles. The likelihood is that erosion was more rapid in the past than what
is now taking place, but erosion continues to be a serious problem, at least
with respect to stockpiles 1, 3, 5 and 6.
15.
The evidence presented during the temporary relief hearing is inconclusive with
respect to stockpiles 2, 4 and 7. With respect to these stockpiles there is a
substantial likelihood that the findings if the Director will be favorable to
Peabody in that the evidence may not support the NOV.
16.
30 CFR 715.16 (c) is applicable to permit 80-67 and the NOV. The provision
[VOLUME 4, PAGE 22]
states: "If the permit allows
storage of topsoil, the stockpile topsoil shall be placed on a stable area
within the permit area where it will not be disturbed or be exposed to
excessive water, wind erosion, or contaminates which lessen its capability to
support vegetation before it can be redistributed on terrain graded to final
contour. Stockpiles shall be selectively placed and protected from wind and
water erosion, unnecessary compaction, and contamination by undesirable
materials either by a vegetative cover as defined in 715.20 (g) or by other
methods demonstrated to provide equal protection such as snow fences, chemical
binders and mulching. Unless approved by the regulatory
authority, stockpiled area."
17.
With respect to stockpiles 1, 3, 5 and 6, Peabody has not showed there is a substantial
likelihood that the findings of the Director will be favorable to Peabody as to
whether the stockpiles have been adequately protected from wind and water
erosion.
18.
No method was presented in testimony during the temporary relief hearing that
would effect the abatement set forth in the NOV, to
"protect these. . . stockpiles from wind and
water erosion." Efforts made by Peabody within the last six months to
re-seed several of the stockpiles have been largely or entirely unsuccessful.
The testimony was unrefuted that the disturbance
which would result from regarding the stockpiles would aggravate, rather than
mitigate erosion. The imminent early summer season is not conducive to the
application of conventional seeding procedures.
19.
Innovative methods for providing erosion control of stockpiles 1, 3, 5 and 6
should be developed. The abatement date of June 20, 1985 is inadequate to
develop and implement innovative methods of erosion control.
20.
Peabody showed there is s substantial likelihood that the findings of the
Director will be favorable to Peabody as to the inadequacy of the abatement
period for stockpiles 1, 3, 5 and 6. That period should be extended through
July 15, 1986.
21.
The parties, on the record, waived and claim either might have to conduct the
temporary relief hearing in a location other than Jasonville, Indiana.
22.
The parties, on record, stipulated that temporary relief in this administrative
action would not adversely affect the health or safety of the public or cause
significant environmental harm to land, air, or water resources.