[CITE: Peabody C.C. V. Dept. Of Natural Resources, 4 CADDNAR 66 (1988)]
[VOLUME 4, PAGE 66]
Cause #: 86-142R
Caption: Peabody C.C. V.
Dept. Of Natural Resources
Administrative Law Judge: Drew
Attorneys: Joest; Szostek,
DAG
Date: September 1, 1988
ORDER
Notices
of Violation #N60930-P-00023 and #N61002-S-00010 are vacated.
FINDINGS OF FACT
1.
The Department of Natural Resources (the "Department") is an agency
as defined in IC 4-21.5-1. The Director of the Department (the
"Director") is the ultimate authority of the Department with respect
to this administrative action.
2.
The Director has jurisdiction over the subject matter and parties to this
action.
3.
IC 4-21.5 and IC 13-4.1, the Surface Coal Mining and Reclamation Act, apply to
this proceeding.
4.
Peabody Coal Company ("Peabody") holds permit #P-00023 to engage in
surface mining at its Dugger 8900 Deadhead mine in Sullivan County, Indiana.
5.
Peabody also holds permit #S-00010 to engage in surface mining at its Hawthorne
2570 area mine in Sullivan County, Indiana.
6.
On October 9, 1986 Notice of Violation #N60930-P-00023 was also issued to
Peabody. Both violations cite Peabody for failing to grade or otherwise
stabilize rills and gullies deeper than 9 inches in areas which have been regraded and top soiled in violation of 310 IAC 12-5-57(a),
310 IAC 12-3-4 and Part IV B(5) of the respective permits.
7.
At the time Peabody filed its petition for administrative review, Peabody also
requested temporary relief on the abatement action required in the Notices of
Violation. (Administrative Causes 86-141R-TR and 86-146R-TR.) Subsequently, on
October 20, 1986, by letter, withdrew its request for temporary relief hearing
on both matters until further notice. No such notice was thereafter received.
8.
The areas in question are both narrow strips of land and covered under a
special permit allowing for the movement of the dragline. Upon inspection, both
areas were found to be covered with rills and gullies, some exceeding 9 inches
in depth. A previous warning issued to Peabody stated that rills and gullies in
both areas had to be stabilized in order to meet the requirements of 310 IAC
12-5-57(a).
9.
310 IAC 12-5-57(a) requires that where rills and gullies exceed 9 inches in
depth, in areas that have been regraded and top
soiled and are not revegetated or stabilized,
such rills and gullies shall be filled, graded or otherwise stabilized.
10.
Effective May 1, 1987, 310 IAC 12-5-57 (a) was repealed and replaced with 310
IAC 12-5-56.1 which did away with the 9 inch rule. 310 IAC 12-5-56.1 instead
requires regrading or other forms of stabilization only
if such rills and gullies disrupt the approved postmining
land use, disrupt the establishment of the vegetative cover or causes or
contributes to a violation of the applicable effluent limitations.
11.
A hearing in both causes was held on November 2, 1987. At that time, both
parties agreed to remove the alleged violation of 310 IAC 12-5-57(a) form both
Notices of Violation, leaving only the alleged violation of the permits in
contention.
12.
Part IV B(5) of permit #P-00023 and permit #S00010 essentially follow the same
language and requirements as found in IC 12-5-57(a); i.e. that rills and
gullies not exceed 9 inches in depth in areas that have been regraded or top soiled.
13.
Peabody does not contend that it is in compliance with Part IV B(5) of wither
permit, but does maintain that the language contained in those permits is
obsolete (based upon the repeal of 310 IAC 12-5-57(a) and that Peabody should
therefore not be held to those standards.
14.
The postmining land use designated for the affected
areas states that those lands are to be reclaimed in forests.
15.
Testimony was presented which noted seedlings have been planted throughout both
areas and, at the time the Notices of Violation were issued, were anywhere
between 6 inches and 24 inches tall.
16.
The formation of rills and gullies is not generally disruptive to lands being
reclaimed as forests. If regrading and filling such
areas was required, such actions would destroy those seedlings already planted.
Furthermore, as the seedlings grow, the affected area tends to stabilize.
17.
Testimony given at the hearing revealed that no drainage or effluent violates
occurred at either site nor did the inspector believe it was necessary to test
for such violations.
18.
In 1985, the Natural Resources Commission (the "Commission") of the
Department adopted an ad hoc committee's report on the means necessary to
encourage more forestry and wildlife in
[VOLUME 4, PAGE 67]
Postmining land use of reclaimed surface mind lands in Indiana. One
incentive enumerated in the ad hoc committee's report stated that rills and
gullies be left in forest and wildlife areas in order to provide the diversity
which occurs in the natural environmental.
19.
The ad hoc committee's report was approved after permits P-00023 and S-00010
were issued. This report nevertheless indicates, along with the repeal of 310
IAC 12-5-57 and the adoption of IC 12-5-56.1, the inclination of the Department
focus on the effects rills and gullies may have on the designated postmining land use rather than looking solely to the
unbending "9 inch rule."
20.
While 310 IAC 12-5-56.1 did not become effective until May 1, 1987 the rule had
been approved (and 310 IAC 12-5-57 repealed) since late 1984. However, due to
an unusually slow procedural process, the rule did not become formally
effective until May, 1987. In Squaw Creek
and Peabody v. Department of Natural Resources, 2 Caddnar
20 (April 1, 1985), the Director held that "[p]romulgation
of [a] rule revision, constitutes good cause for altering the prior
interpretation of the rule, and is good cause for purposes of vacating a Notice
of Violation. . ."
21.
The 9 inch rule, formerly found in 310 IAC 12-5-57, is no longer an applicable
standard on which to base a notice of violation. Consequently, Peabody cannot
be held in violation of Part IV B(5) of permits
P-00023 and S-00010 where the 9 inch rule is said to apply.