[NOTE: HOOSIER ENVIRONMENTAL COUNCIL SOUGHT JUDICIAL REVIEW OF ALJ DECISION. SUBSEQUENTLY, THE MARION COUNTY SUPERIOUR COURT II ENTERED AN ORDER OF DISMISSAL FINDING ORIGINAL PETITION WAS NOT VERIFIED (ORDER ATTACHED). HEC TOOK APPEAL IN CAUSE NUMBER 49A05-9512-CV-00507. ON DECEMBER 5, 1996, COURT OF APPEALS AFFIRMED TRIAL COURT (673 N.E.2D 811). REHEARING DENIED.]
The approval by the Department of Natural Resources of Permit S-126-5 issued to Solar Sources, Inc. is hereby affirmed.
FINDINGS OF FACT
1. The following abbreviations will be used in the decision:
(a) "DNR" stands for the Indiana Department of Natural Resources.
(b) "NRC" stands for the Indiana Natural Resources Commission.
(c) "HEC" stands for the Hoosier Environmental Council.
(d) "Solar" stands for Solar Sources, Inc.
(e) "Permit" refers to surface coal mine permit S-126 issued by the DNR to Solar which allows the mining of coal at the Prides Creek Mine in Pike County, Indiana.
(f) "CCW" means coal combustion waste from the Indianapolis Power and Light Petersburg generating station, and includes fly ash, bottom ash, de-sulferization waste, and sludge.
(g) "Permit (5)" refers to the Fifth Amendment of the S-126 permit in which the DNR approved the back hauling and disposal of CCW on the S-126 permit area.
(h) "I-SMCRA" refers to the Indiana Surface Mining and Control Act including both IC 13-4.1 and 310 IAC 12.
(i) "F-SMCRA" refers to the Federal Surface Mining and Control Act including 30 U.S.C. 1201 et seq, and 30 CFR 700 et seq..
(j) "AOPA" refers to the Indiana Administrative Orders and Procedures Act, IC 4-21.5.
(k) "IDEM" means the Indiana Department of Environment Management.
(l) "ALJ" means an administrative law judge appointed by the NRC.
(m) "Resolution" means the April 1992 action by the NRC approving the "regulatory approach" of mine site disposal of CCW proposed by the DNR and introduced into evidence as Memorandum 92-1, Exhibit S-2.
(n) "OSM" refers to the Office of Surface Mining, the federal agency responsible for the administration of F-SMCRA.
(o) "ICC" refers to the Indiana Coal Council.
2. The DNR is the state agency responsible for the regulation of surface coal mining in Indiana.
3. The parties have stipulated that the NRC is the ultimate authority within the meaning of the AOPA with respect to the grant or denial of Permit (5).
4. On March 30, 1994, the DNR announced approval of Permit (5) allowing Solar to back haul and store CCW on the permit site in four monofills and one other location in which the CCW would be mixed with spoil during backfilling operations.
5. On April 27, 1994, HEC filed a timely petition for review of the decision to grant the permit.
6. The parties have presented the following issued for review:
(a) Whether or not HEC has standing to challenge the issuance of Permit (5).
(b) The legal effect, if any, of the Resolution.
(c) Whether or not there was an adequate factual basis presented by Solar to DNR to justify the issuance of Permit (5).
(d) Whether or not some of the tendered evidence should be excluded because it was not part of the "record before the director" as required by I-SMCRA.
7. The DNR and Solar cite a number of cases finding "no standing' to review agency decisions, the most impressive of which are Lujan v. National Wildlife Federation(1990), 497 U.S. 871, 110 S. Ct. 3177, 111 L.Ed.2d 695, and Lujan v. Defenders of Wildlife (1992) 504 U.S., 119 L.Ed.2d 351, 112 S. Ct. 2130. These are U.S. Supreme Court cases involving environmental organizations in which the court
[VOLUME 7, PAGE 86]
found there was insufficient evidence to show the organization had standing to object.
8. I-SMCRA and AOPA can also be interpreted to limit the standing of environmental organizations to object to agency actions.[FOOTNOTE 1]
9. The subject of standing, however, must be examined in light of F-SMCRA and court cases construing F-SMCRA.
10. F-SMCRA requires I-SMCRA to conform to federal requirements. See 30 U.S.C.A. 1255.
11. F-SMCRA provides a definition of "person having an interest which is or may be adversely affected, or person with a valid legal interest" in part as "one who uses any resource of economic, recreational, esthetic, or environmental value that may be adversely affected by mining." See 30 CFR 700.5.
12. F-SMCRA standing has been the subject of an important Circuit Court of Appeals case. In National Wildlife Federation v. Hodel, 839 F.2d 694, (D.C. Circuit 1988), the Court of Appeals was presented with a vigorous challenge to the standing of environmental groups (brought by industry and not by the government) to file lawsuits in F-SMCRA cases. The D.C. Circuit (with Hon. Ruth Bader Ginsburg participating in the decision) held that standing under F-SMCRA is much broader than standing in more traditional cases, and includes injury to aesthetic or recreational interest.. Further, the court held that an allegation that harm "could happen" is adequate to show standing, and that Congress clearly signaled its desire to broaden the concept of standing.
13. Primacy requires the State of Indiana to adhere to the F-SMCRA concept of standing.
14. HEC's petition for review alleges that it is "a statewide coalition of individual members and member groups interested in the preservation of the natural environment, including the protection and enhancement of the state's ground and surface waters and air quality."
15. HEC's petition further alleges that the Patoka and White Rivers, Pike State Forest, Sugar Ridge Fish and Wildlife Area, and a wetlands project "are or may be adversely affected" by the CCW disposal plan.
16. This petition for review shows sufficient standing of HEC under F-SMCRA standards, and therefore, it is also sufficient under I-SMCRA.[FOOTNOTE 2]
17. The "record before the director" is an evidence limiting concept established by the Indiana State Legislature in IC 13-4.1-4-5(c) which in part provides "[f]or all hearings and proceedings commenced after July 1, 1991, the commission is limited to the record before the director."
18. The NRC adopted a rule further defining "record before the director." 310 IAC 0.6-1-17(c) discusses the record before the director and provides that "noting in this subsection precludes the admission of testimony or exhibits which are limited to explanation or analysis of materials included in the record before the director, . . .." The record before the director specifically includes the permit and permit application, documents provided or referenced by interested parties, the DNR's evaluation of the application, results of informal conferences, and timely written comments.
19. The evidence clearly shows that HEC actively participated in the permitting process and voiced its concerns about the effect of the permit to store CCW on site on ground water. See Exhibits S-1.
20. HEC's Exhibits 1 and 2 were objected to as not being a part of the record before the director. Both are technical papers dealing with CCW which were identified by HEC's expert witness as having been considered by him when reaching opinions about CCW and on-site disposal. Both deal with chemical composition, leachability, and mobility.
21. The topics covered by Exhibits 1 and 2 were thoroughly discussed in the permit and permit application, and analyzed by the DNR.
22. To exclude Exhibits 1 and 2 would inhibit HEC's ability to explain or analyze materials included in the record before the director, including comments made by HEC.
23. 310 IAC 0.6-1-17 cannot be used to exclude Exhibits 1 and 2.[FOOTNOTE 3]
24. With respect to the legal effect, if any, of the Resolution, the parties are, in general, agreement that the Resolution does not have the status of a rule.
25. The DNR and Solar contend that it is a guidance document which notifies a permittee of the type of information that needs to be supplied so that the DNR staff can evaluate an application for the on-site disposal of CCW.
26. HEC
[VOLUME 7, PAGE 87]
contends that the Resolution imposes substantive requirements which were not met, and therefore, Permit (5) should not be granted.
27. HEC, in part, bases its argument on the use of the words "shall" and "must" in the Resolution.
28. HEC also cites IC 13-4.1-2-1 which states the NRC should promulgate rules "to effectuate the purposes of this article" as authority for insisting that the DNR must have rules to cover CCW disposal.
29. The ICC filed an "Amicus Curiae Brief" on the issue of the Resolution, tracing the decision to handle CCW as "noncoal waste" under I-SMCRA and F-SMCRA.
30. In 1988, P.L. 103-1988 was passed by the Legislature and approved by the Governor. As it pertains to this case, this statute removed from IDEM any authority to regulate CCW if it was not hazardous waste under 42 U.S.C. 6921, and if it was deposited on an area regulated under I-SMCRA.
31. The ICC correctly points out that P.L. 103-1988 does not mandate the promulgation of rules by the DNR or NRC for regulating CCW. it only requires disposal consistent with I-SMCRA, and implicitly, F-SMCRA.
32. F-SMCRA does not contain any specific statutory or regulatory mandates for dealing with CCW, hence, I-SMCRA is not required to contain specific rules governing CCW disposal.
33. P.L. 103-1988 did not include a rule writing mandate.
34. The Resolution is in part a statement by the DNR approved by NRC that no special rules would be adopted to deal with on-site disposition of CCW.
35. Since F-SMCRA does not require a special handling of CCW outside the framework of general disposal standards, and the Indiana legislative and executive branches have both declined to set forth any specific requirements above and beyond the existing statutes and rules in I-SMCRA, I-SMCRA controls the disposition of CCW at mine sites and the Resolution has little or no legal effect on a permit application.[FOOTNOTE 4]
36. The DNR's expert on hydrology called the Resolution "a discretionary guidance document". That is a good summation of the Resolution.
37. As to the substantive issues presented in connection with CCW disposal, HEC's contentions all fall in one or more of the following areas:
a. Insufficient site specific information about the geology and hydrology of the site was provided.
b. Solar did not present adequate information to satisfy the requirements of the Resolution.
c. The CCW samples tested were not subjected to the appropriate tests and did not include enough samples.
d. The proposed monitoring plan is inadequate as is the discussion (or lack thereof) of the chemistry of the disposal sites.
38. Solar's reasons for selecting Prides Creek as the location for CCW disposal (six active mine sites were considered) area as follows:
a. Solar owns all the property on which the CCW would be stored.
b. Prides Creek has a large coal reserve yet to be mined so there will be large areas available for storage and Solar will be involved with the property for many more years.
c. Solar had almost ten years mining experience at the site.
d. The Pride's Creek site has a very small amount of toxic materials.
e. The mined coal vein is deep so the CCW can be buried with no problem.
39. Permit (5) calls for the creation of four monofills for CCW in pits and allows one area of intermingled spoil and CCW in an area of backfill. Two of the pits exist today and two are proposed for future mining.
40. Because of approximately ten years of pumping, the groundwater has been withdrawn from the mined areas to a level below the bottom of the pit.
41. After pumping ceases (post-mining), groundwater will first flow so as to fill in the "cone of depression" caused by the years of pumping.
42. After the groundwater returns to its pre-mining level, (the parties generally agreed this would take decades), the flow will become topographically driven, and assuming that the surface is restored to its approximate original contour, the ground flow will be similar to the pre-mining flow.
43. The post-mining requirements call for the final contour around the CCW disposal areas to be gently rolling countryside designed to drain rain water away from the CCW storage areas.
44. The pre-mining pH of the area is slightly alkaline.
45. The
[VOLUME 7, PAGE 88]
total area devoted to CCW disposal is a little over 500 acres and is less than ten percent of the disturbed surface area.
46. The area surrounding the Prides Creek Mine site is rural in nature and puts very little pressure on the ground water supply.
47. Permit (5) requires that the CCW being placed on-site be tested quarterly.
48. Typically, CCW will have traces of a number of elements, some of which can be environmentally harmful if they "escape" in significant quantities.
49. Solar's expert chemist listed the four main questions that must be answered in attempting to analyze the environmental problems associated with CCW. They are:
1. What elements are present in the CCW?
2. What percentage or quantity of potentially harmful elements is present?
3. What is the mobility or the potentially harmful elements?
4. How will the CCW interact or react with other materials in the fill?
50. All of the trace elements present in the CCW were originally present at the mine site in the coal.
51. All of the trace elements will eventually have the opportunity to leach, thus making the rate at which it leaches important.
52. Permit (5) is for CCW disposal only, it does not add any property to the area to be mined under permits (1 through 4).
53. The general unmined overburden in the area of Prides Creek is sandstone, siltstone, and shale.
54. The unmined areas will, therefore, not be conducive to the transmission of groundwater.
55. Transmissivity of overburden in mined areas will be higher because the original overburden materials will have undergone blasting, removal, and replacement, hence groundwater will flow more easily through these areas.
56. Compaction of both CCW and spoil will retard the flow of groundwater.
57. CCW which is being mixed with backfill rather than placed in a monofill is being mixed in a ratio of approximately 1:11, or in other words, only eight percent of the mix will be CCW.
58. CCW has some of the same properties and chemical composition as cement. It is quite likely that ettringite will develop to some extent which will further inhibit the rate of flow of groundwater.
59. The under clay in the area, while slightly acetic, has a very low permeability which will also retard the flow of groundwater.
60. CCW has been excluded from the definition of hazardous waste. See 40 CFR 261.4(b).
61. I-SMCRA contains a number of provisions that deal with on-site disposal of materials, water quality, and geology.
62. 310 IAC 12-3-31 requires each permit application to contain a detailed description of the geology of the site including chemical analyses of strata.
63. 310 IAC 12-3-32 requires each permit application to include groundwater information including information about aquifers.
64. 310 IAC 12-0.5-12 defines "aquifer" as ". . . a zone, strata or . . . that can store and transmit water in sufficient quantities for a specified use."
65. 310 IAC 12-3-47 requires that each permit application describe the measures to be taken to assure protection of ". . . the quality of surface and groundwater systems. . . form adverse effects of the mining and reclamation process."
66. 310 IAC 12-3-47 also requires a ". . . determination of the probable hydrologic consequences of the mining and reclamation operations. . . ."
67. 310 IAC 12-5-16 specifically states that acceptable practices to control and minimize water pollution includes "selective placing waste materials in backfill areas."
68. 310 IAC 12-5-47 requires a minimum two foot cover for non-coal waste.
69. 310 IAC 12-5-47 also requires non-coal waste disposal sites to be designated and stored in such a way as to not degrade surface or groundwater.
70. 310 IAC 12-0.5-13-1 defines "toxic forming materials" as ". . . earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water."
71. 310 IAC 12-5-55.1 requires toxic forming materials to be ". . . adequately covered with non-toxic and non-combustible earthen material, or treated, to control impact of surface and groundwater. . . ."
72. CCW is certainly non-coal waste and may be a toxic forming material.[FOOTNOTE 5]
73. The testimony on Solar's chemist, a gentleman who has conducted considerable research into CCW, including at least one other Indiana project, is particularly helpful.
74. Paragraph 49 above lists the four questions that must be examined in connection with a CCW permit.
75. The first question
[VOLUME 7, PAGE 89]
involves the identification of the elements present in the CCW. This was done and Exhibit S-1 shows the existence of trace elements.
76. The second question involves the percentage or quantity of trace elements that is present. Given the witness's extensive background in CCW analysis (19 years), his conclusion that these concentrations are relatively low and not particularly dangerous must be given considerable weight.
77. The third question deals with the mobility of the trace elements. Given the mildly alkaline nature of the environment, the likely formation of ettrignite, and the slow recharge rate of the dewatered site, the chemist's conclusion as to limited mobility appears quite valid and reasonable.
78. The last question deals with the reactions or interactions between CCW and other materials in the fill. While HEC's expert exhibited concern about this problem, he did not point out any particular material present in the overburden or spoil which would react negatively with the CCW. The testimony of Solar's witnesses leads to a conclusion that in a neutral or alkaline setting, there are no materials used as backfill at the site that will enhance the leaching of trace metals or increase mobility.
79. On the basis of the evidence presented by the mine and the DNR, the CCW as tested can be disposed of as allowed in Permit (5) without creating an environmental problem.
80. With respect to the four general areas of objection put forth by HEC (see Finding 37), a similar conclusion is reached.
81. As to HEC's first contention dealing with inadequate site specific data, when Solar's ten year mining history on the site is considered along with all the S-126 permit amendments, there is adequate site specific data on hydrology and geology. See Attachments II (C and D) of Exhibits S-3, S-4, S-5 and S-1, which are Permits S-126, S-126-3, S-126-4, and S-126-5 respectively. Given the length of time Solar has been mining this site, there is no reason to believe there are any geologic or hydraulic "surprises" on or near the site.
82. HEC's second contention dealt with the fact that the material tendered by Solar did not conform to the requirements of the Resolution. As discussed earlier, the Resolution cannot create legal requirements since it is not a promulgated rule. the test is whether or not the tendered information allowed the DNR to find Permit (5) conforms with I-SMCRA. Solar did submit information which dealt with the topics and concerns raised in the Resolution. The fact that some of the data might not completely conform to the Resolution, does not mean that Permit (5) must be rejected out-of-hand.[FOOTNOTE 6]
83. HEC's third area of objection to the issuance of Permit (5) involved improper sampling of CCW, both in the tests used and the amount of testing.
84. HEC's primary argument concerning CCW testing is the failure to use tests required by IDEM/EPA for landfills, most notably the TCLP Leach Test. The test used was the ASTA Long Term Test. A major difference between the two involves the fluid used for leaching. The TCLP Test uses acetic acid. The ASTM test uses a rain water equivalent. IDEM requires the TCLP Test because landfills are, or certainly can be, acid in nature because of the unrestricted disposal of organic waste. The ASTM Test uses a neutral solution to approximate rainwater which is most likely leaching solvent for a mine site. The DNR correctly points out that the removal by the legislature of IDEM authority over mine site disposal indicates a dissatisfaction with IDEM tests, standards, and procedures, and therefore, certainly does not mandate their use. This is not an unique conclusion. See Edison Electric Institute v. EPA (C.A.D.C. 1993), 2 F.3d 438 for a judicial determination critical of EPA for trying to mandate by rule TCLP testing for CCW stored at the power plant site and not in a landfill.
85. HEC also objected to the failure to either Solar or DNR to look at the "worst case" scenario (maximum possible concentration) with respect to the release of trace metals. The testimony of Solar's chemist and DNR's expert conclusively showed that a substantial release or migration of trace elements is not only unlikely, but impossible and need not be considered at this site.
86. As to the number of samples of CCW, reasonable men can differ as to the number needed. The tests submitted in connection with the Permit (5) application (Exhibit S-11/4 appear to be adequate and consistent. Permit (5) requires quarterly re-testing of CCW so that if there are major changes in the chemical composition of the CCW, which would require a permit amendment, both Solar and the DNR will become aware of it.
87. HEC's final general areas of concern were the adequacy of the proposed monitoring plan and sufficiency of the discussion of the
[VOLUME 7, PAGE 90]
chemistry of the disposal.
88. HEC's witness voiced concern about the lack of barriers between the CCW disposal sites and the mine waste disposal sites, but did not testify as to any specific reaction that could occur if commingled. The testimony of Solar's chemist solidly establishes the fact that, as long as the mine disposes non-coal waste and spoil similarly to materials disposed of for the last ten years, there will be no harmful chemical reactions.
89. In the monofills, the compaction of CCW, the formation of ettrignite, the slow recharge, the alkaline environment, the covering of the CCW by a minimum of three feet of spoil and five feet of topsoil, and the 100-foot separation from coal processing waste will adequately prevent any change of adverse chemical reactions.
90. The backfill area will not cause a harmful chemical reaction problem because of the low ratio of CCW to spoil and the alkaline nature of the overburden which will be used as spoil.
91. As to the monitoring plan, it almost goes without saying that eight wells are better than seven, nine are better than eight, etcetera. Placing a monitoring well every 25 feet at the edge of the permit area would be better yet. The issue is whether or not the monitoring plan for both surface and groundwater is adequate.
92. The monitoring goal is to sample any water which has come into contact with CCW before it leaves the mine site.
93. The groundwater monitoring wells were selected with care to assure the monitoring of water during the lengthy recharge period and the flow of water after recharge.
94. On of the proposed monitoring wells will literally be placed inside monofill number one, and therefore, once recharge commences (after mining ceases or moves far enough to the south that pumping no longer dewaters it), there will be an early determination of what happens when the stored CCW is exposed to groundwater.
95. The evidence produced by Solar and the DNR convincingly shows that the seven groundwater monitoring sites and the surface monitoring are located to provide information both "up gradient" and "down gradient", and should be more than adequate to discover any problems.
96. In its case in chief, HEC objected to the manner in which the wells would be constructed. After listening to the testimony produced by the respondents, HEC basically dropped this objection and agreed the construction was adequate.
97. HEC also objected to the fact that the monitoring wells were collection wells and not "zone" specific.
98. The main purpose of the monitoring wells is to discover whether or not a problem has suddenly occurred. A collection well will perform that task. Once the DNR and Solar are alerted to a problem, they will have to take steps to further locate the problem and deal with it, but for the first step of discovering the existence of a problem, the well design is adequate.[FOOTNOTE 7]
99. The evidence in this case shows that, given the conditions at the Prides Creek Mine and the nature of the CCW tested, the approval of Permit (5) should be affirmed.
FOOTNOTES
1. IC 4-21.5-3-7 requires a party petitioning for review to be aggrieved or adversely affected by the order. HEC's petition for review arguably does not meet this requirement. IC 13-4.1-4-5(b) states the request for review ". . . must identify the person's interest that is or may be affected." HEC's petition does not clearly set forth its actual interest.
2. The parties discussed the possibility of standing being conferred pursuant to IC 13-6-1, the "citizen's suit provision" for environmental cases. Since IC 13-6-1-1 requires a verified pleading and the petition for review was not verified, a finding of standing cannot be based on IC 13-6-1.
3. 310 IAC 0.6-1-17 was not formally approved by OSM until after this hearing concluded, so technically it was not a rule at the time Exhibits 1 and 2 were tendered. It had been approved as rule by the NRC long prior to the summer of 1994 and can be considered a "policy statement" if nothing else.
4. HEC included copies of Kentucky statutes governing CCW in its brief. While it might be nice to have clear cut standards set by statute or by rule, it is not a legal requirement. The decision to adopt specific statutes or rules or to proceed under existing statutes and rules is a political decision, not a legal one, and is well within the authority of both the legislature and the DNR.
5. The DNR's hydrologist referred to CCW as "potentially toxic forming material." It clearly depends on the pH and trace element analysis as to whether or not a particular sample is toxic forming. The fact that Permit (5) requires analysis of CCW sample every three months shows concern for the level of trace elements and pH. A significant change in chemical composition could result in a change in handling of the CCW.
6. For example, the six months of baseline groundwater data "required" by the Resolution was taken from late October through March, resulting in coverage of six calendar months but less than 150 days. The bottom line is that testing began in usually dry period (fall) and continued through normally west periods (early spring), and therefore, adequately show seasonal variations, which is the purpose of requiring baseline information.
7. The primary inadequacy involving monitoring requires a legislative fix. The DNR will eventually lose jurisdiction over this site. The minimum time would be five years after mining ceases, or in this case, sometime between the year 2010 and 2015. To provide monitoring for 25 years or more requires a legislative change.