[NOTE: THIS CASE IS THE SUBJECT OF JUDICIAL REVIEW BY PEABODY COAL TO THE WARRICK CIRCUIT COURT (87COl-9208-CP-334); AND SUBSEQUENTLY, A PUBLISHED OPINION, Indiana Dept. of Natural Resources v. Peabody Coal, 654 N.E.2d 289.]
Notice of Violation N20331-S-20 is affirmed. Peabody Coal Company is given until August 24, 1992, to abate the violation. In all other respects, temporary relief is denied.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency charged with administering IC 13-4.1, the Indiana Surface Mining Act.
3. IC 4-21.5, IC 134.1, and 310 IAC 12 apply to these proceedings.
4. The issue involved in this case is an enforcement proceeding brought under the Indiana Surface Mine Act. Accordingly, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
5. Peabody Coal Company ("Peabody") possesses a number of surface mining permits in Indiana, including permit number S-20 which allows the surface mining of coal at the Lynnville mine in Warrick County, Indiana.
6. On March 31, 1992, a duly authorized representative of the DNR issued Notice of Violation N20331-S-20 ) ("NOV'') to Peabody for a violation of the Surface Mining Act at the Lynnville mine.
7. Peabody filed a timely request for administrative review and request for temporary relief.
8. By agreement, both the temporary relief hearing and the hearing on the merits were combined and held on June 5, 1992, in Evansville.
9. The NOV in question was written for "Failure to protect and stabilize replaced topsoil and approved topsoil substitutes to effectively control erosion."
10. The provisions of the Surface Mining Act alleged to be violated are:
(a) IC 13-4.1-8-1(4);
(b) 310 IAC 12-556.1(a);
(c) 310 IAC 12-5-62;
(d) 310 IAC 12-5-0.1(a)(1), c, and e(l)(iii); and
(e) 310 IAC 12-3-4 condition of Permit Part II F6 and IV B5.
11. IC 13-4.1-8-1(4) reads as follows: [A permittee shall do as follows:] "(4)Stabilize and protect all surface areas, including spoil piles, affected by the surface coal mining and reclamation operation to effectively control erosion and attendant air and water pollution."
12. 310 IAC 12-5-56.1(a) reads as follows: "[a]ll exposed surface areas shall be protected and stabilized to effectively control erosion and air pollution attendant to erosion."
13. 310 IAC 12-556.1(a) reads as follows:
"(a) suitable mulch or other necessary soil stabilizing practices shall be used on all regraded and topsoiled areas to control erosion,....
(b) [not applicable]
(c) [not applicable]
(d) (not applicable]".
14. 310 IAC 12-5-12.1(a)(1) reads as follows: "(l) where the topsoil is of insufficient quantity or of poor quality to sustain vegetation, the material approved by the commission or by the director as a topsoil substitute or supplement in accordance with paragraph (c) of this rule shall be removed separately from the area to be disturbed and segregated."
15. 310 IAC 12-5-12.1(c) reads as follows: "(c) Substitutes and supplements. selected overburden materials may be substituted for, or used as a supplement to topsoil if the permittee demonstrates to the commission in the permit application or to the director that the resulting soil medium is equal to or more suitable for sustaining vegetation than the existing topsoil.''
16. 310 IAC 12-512.1(e)(1)(iii) reads as follows: "[topsoil materials shall be redistributed in a manner that] protects the material from wind and water erosion before and after seeding and planting."
17. 310 IAC 12-3-4 requires a mine to conduct its operations in accordance with the terms of its approved permit.
18. Part II F6 of Peabody's permit was introduced into evidence and deals with the use and
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placement of alternative materials as a substitute or supplement for topsoil. Part IV B5 was not introduced into evidence.
19. The area of the mine involved in the NOV is a final cut impoundment.
20. Much of the surface in this area is alternative material (mostly shale), not topsoil.
21. Much of the area around the final cut was mined prior to May of 1978, and thus the topsoil was not protected.
22. The final grade of the area was finished in the summer of 1991.
23. During the fall of 1991, much of this area was mulched, but apparently no seeding was done at that time.
24. Significant rills and gullies (three feet in depth) formed in some regions.
25: Aerial seeding was attempted in February of 1992. As of late March, some germination had taken place.
26. The west side bank has a slope in excess of 15%, and therefore is more prone to erosion problems than more shallow slopes or flat areas.
27. The portions of the permit introduced into evidence do not appear to have been violated, and therefore 310 IAC 12-3-4 cannot be used to support the NOV.
28. The portion of the permit introduced, however, discusses the use of shale to cover previously mined areas.
29. In light of the testimony about the grading around the final cut, this covering was placed and graded in the spring and summer of 1991.
30. 310 IAC 12-5-12.1(e)(1)(iii) requires that topsoil materials must be redistributed in a manner that protects the material from wind and water erosion.
31. 310 IAC 12-5-12.1(e)(1)(iii) would appear to apply to alternative or substituted materials.
32. By not taking significant erosion control measures in the fall of 1991 (particularly on the 15% slope), the permittee has failed to comply with 310 IAC 12-5-12.1(e)(1)(iii).
33. Additionally, 310 IAC 12-5-62 requires that the mine use mulch or other necessary stabilizing practices on regraded and topsoiled areas.
34. The permittee has failed to comply with 310 IAC 12-5-62.
35. IC 13-4.1-8-1(4) and 310 IAC 12-5-56.1(a) have produced considerable controversy among the parties. The mine contends that the language used was intended to apply only if the erosion results in air (or water) pollution. The DNR contends otherwise.
36. The statute and rule could have been worded a little more clearly, however, they are capable of interpretation or construction.
37. Both the rule and the statute are worded so as to attempt to deal with all evils which can result from erosion.
38. The administrative law judge now holds that 310 IAC 12-5-56.1(a) sets forth a duty on the permittee to protect and stabilize exposed areas both to control erosion and to control air pollution attendant to erosion and, likewise, IC 13-4.1-81(4) places a duty on the permittee to control erosion as well as air and water pollution attendant to erosion.
39. The permittee has failed to comply with 310 IAC 12-5-56.1(a) and IC 13-4.1-8-1(4).
40. 310 IAC 12-5-56.1(a)(1) does not appear to apply to this case as it involves removal and separation of alternative materials.
41. 310 IAC 12-5-12.1(c) deals with the use of substitute materials and does not apply to this violation.
42. By not taking prompt action to prevent erosions after grading the substitute materials in the are of the final cut pit, Peabody has violated 310 IAC 12-5-12.1(e)(1)(iii), 310 IAC 12-5-62, 310 IAC 12-5-56.1(a) and IC 13-4.1-8-1(4).
43. The NOV should be affirmed.
44. The evidence shows that the belated action taken in February by the operator had done some good. There was also evidence presented of a pending post-mining land use change in the works. Depending on the status of the postmining land use, regrading may not be necessary as long as the rills and gullies are stabilized. Because of the unsettled nature of the post-mining land use, the administrative law judge grants Peabody's request for temporary relief to the extent that the abatement date of the violation is extended until August 20, 1992, in order to allow the mine and the DNR to discuss whether or not regrading is necessary or whether seeding and mulching is an adequate abatement.