Content-Type: text/html 91-405r.v6.html

CADDNAR


[CITE: Peabody Coal Company v. Department of Natural Resources, 6 CADDNAR 70 (1991)]

[VOLUME 6, PAGE 70]

Cause #: 91-405R Caption: Peabody Coal Company v. Department Of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Joest; Tremps
Date: July 1, 1991

ORDER

[THIS CASE WAS AFFIRMED BY THE WARRICK CIRCUIT COURT; AND SUBSEQUENTLY, BY THE INDIANA COURT OF APPEALS IN Peabody Coal v. Ind. Dept. Nat. Resources, 1994 Ind. App., 640 N.E.2d 435.]

Notice of Violation N11024-S-00216 is affirmed.

FINDINGS OF FACT

1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.

2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.

3. The DNR is responsible for enforcing surface coal mining regulations.

4. The Division of Reclamation ("DOR"') is the division of the DNR which deals with surface coal mine actions.

5. Peabody Coal Company ("Peabody") holds a number of mine permits including permit S-00126 which allows the Lynnville Nine in Warrick County, Indiana.

6. An authorized representative of the DNR issued a two part N11024-S-00126 ("NOV'') to the Peabody Lynnville Mine.

7. The administrative law judge is the ultimate authority over surface coal mine enforcement actions.

8. Part one of the NOV is not at issue in these proceedings.

9. Part two of the NOV alleged that Peabody was not properly maintaining a drainage ditch.

10. Peabody generally contended that since the drainage ditch was a temporary ditch, maintenance was needed only if excessive sedimentation became a problem.

11. The parties agreed that a site inspection would be helpful, and thus the hearing was held at the Lynnville Mine and a site view accomplished upon completion of the hearing.

12. The NOV was written for failure to properly maintain a diversion ditch in violation of 310 IAC 12-5-18 (d) (1) , 310 IAC 12-5-61, 310 IAC 12-5-56. 1, and 310 IAC 12-3-4.

13. 310 IAC 12-5-18 (d) (1) requires that a diversion must be designed and maintained to be stable.

14. 310 IAC 12-5-61 deals with revegetation and requires seeding and planting when necessary to control erosion.

15. 310 IAC 12-5-56.1 deals with erosion controls and disruption of approved postmining land use.

16. 310 IAC 12-3-4 requires an operator to conduct mining operations in accordance with its permit. Cited as Permit conditions being violated are Parts IV I(6), IV K3(c), IV D, and IV g2 (a).

17. Part IV I (6) of the permit was the subject of a mix-up among the parties. Peabody's copy and the DNR's copy had different wording.

18. The controversy was resolved by a post-hearing stipulation which stated that Peabody's copy was Permit IV I(6) as originally submitted and the DNR's copy was I(6) as ultimately approved after a revision.

19. I(6) provides that the side slopes of freshwater diversions will be promptly seeded after construction.

20. K(3) (c) discusses what erosion control measures will be used when it is necessary to control erosion.

21. IV D deals with revegetation plans.

22. IV G(a) of the permit deals with measures to be taken to assure the protection of surface water quality.

23. The diversion in question is a temporary diversion which will eventually be completely mined through. Its purposes are to drain surface water away from the pit and provide a safe place to direct pit pumpage.

24. The field supervisor for DNR testified that short-term diversion ditches are not required to be vegetated and six months was generally considered to be "short-term".

25. The diversion in question will be used in part for an absolute minimum of one year and probably more.

26. That portion of the diversion which is formed by unconsolidated material is eroding to a large

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degree and has numerous rills and gullies.

27. As of the date of the hearing, the erosion had not resulted in an effluent violation as the diversion system has several sediment ponds that are retaining the sediment.

28. The evidence shows that the diversion system generally works as designed despite some "sloughage".

29. Any problems with erosion have not caused the ditch to become unstable within the meaning of 310 IAC 12-5-18(d)(1). The diversion still works as designed; therefore, a violation based on this rule is not a valid NOV and cannot stand.

30. 310 IAC 12-5-61 talks about "final soil preparation" and "completion of backfilling". Clearly, this section is meant to apply to areas in the process of being mined. A violation based on this rule cannot be affirmed.

31. 310 12-5-56.1 would appear to apply only in instances where erosion is a problem such as top soil areas, causing effluent violations, leading to air pollution, or causing a ditch failure. The erosion of a spoil diversion ditch which does not cause any environmental problems or have any environmental impact is not covered by this rule.

32. The DNR implicitly recognizes this fact in its "temporary diversion" policy on revegetation as stated by one of its supervisors; therefore, a violation based on this rule cannot stand.

33. The permit to mine coal as approved by the Natural Resources commission contains Part IV I(6) which states in part, "[t]he side slopes of freshwater diversions will be promptly seeded after construction ... " A further reading indicates this section was meant to apply to all diversion regardless of whether temporary or permanent. See Exhibit 4 and Joint Exhibit 1.

34. Peabody failed to maintain this diversion in accordance with the terms of its permit.

35. Accordingly, the NOV should be affirmed.