The request for temporary relief brought by the Hoosier Environmental Council is denied. Solar Sources, Inc. may commence the disposal of coal combustion waste in monofills 1 and 2 as described in permit S-126-5 pending the final agency decision by the Natural Resources Commission. Solar Sources, Inc. is ordered to notify the administrative law judge 15 days in advance of mixing coal combustion waste with backfill so a temporary relief decision can be rendered on that portion of the permit if it is needed prior the final commission decision.
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 administrative law judge is the ultimate authority within the meaning of IC 4-21.5 on matters involving petitions for temporary relief.
4. The DNR is the state agency responsible for the regulation of surface coal mining operations in Indiana.
5. At all times relevant to these proceedings, Solar Sources, Inc. ("Solar") held surface coal mine permit S-126 issued by the DNR which allowed the surface mining of coal at the Pride's Creek mine in Pike County.
6. On March 30, 1994, the DNR approved Solar's permit amendment S-126-5 which would allow Solar to transport and store coal combustion waste ("CCW") on the mine site both in monofills and mixed with spoil during backfilling operations.
7. On April 27, 1994, the Hoosier Environmental Council ("HEC") filed timely petitions for review and temporary relief of the agency decision to allow the disposal to allow the disposal of CCW on the S-126 permit area.
8. The parties eventually agreed that the hearing for temporary relief and the final hearing on the merits should be combined and that if a final decision was going to be delayed, a temporary relief decision could and should be issued.
9. Given the briefing schedule desired by the parties and approved by the administrative law judge, it is unlikely that a final decision will be rendered by the Natural Resources Commission before October 20, 1994, the date of the October Commission meeting.
10. Accordingly, the issuance of a decision on temporary relief to govern the conduct of the mine under the S-126-5 permit pending the outcome of the Commission decision in the fall is desirable.
11. Temporary relief from permit decisions is governed by IC 13-4.1-4-6 and in order to grant temporary relief, the administrative law judge must find:
(a) all parties were notified and given the opportunity to participate;
(b) the party requesting relief must show a substantial likelihood that he will prevail; and
(c) a grant of temporary relief will not cause any significant harm.
12. All parties participated fully in the hearing and no environmental harm would come from a grant of temporary relief since such a decision would preserve the status quo which in this case means CCW cannot be returned to the site and stored.
13. The issues to be resolved are whether or not there is a substantial likelihood that HEC will prevail in a final determination of whether or not any CCW should be stored on the permit area, and whether or not any environmental harm could occur on the S-126 mine site if temporary relief is not granted.
14. CCW is the residue created when coal is actually burned.
15. The CCW in this case will all come from the IPL Petersburg Generating Station as part of a "backhaul" operation and includes fly ash, bottom ash, desulferization waste and sludge. See attachment E to Exhibit Sl.
16. The chemical composition of CCW depends on the chemical composition of the coal being burned and the materials added to the coal while it is burning. In the case of Indiana coal, often calcium chloride is added to reduce sulfur emissions.
17. The chemical composition of the ash and sludge samples that have been tested show, as expected, traces of Arsenic, Barium, Boron, Cadmium,
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Chromium, Copper, Lead, Manganese, Mercury, Nickel, Selenium, Silver, Iron, and Zinc. See attachments G to Exhibit S-1.
18. These are not unexpected trace material because they occur naturally in coal. Since they are not incinerated, they remain in the residue.
19. The tested pH of the various samples range from a low of 8.28 for filter cake (slightly alkaline, no particular problem) to 11.43 for fly ash (highly alkaline, definitely caustic).
20. The gross quantity of heavy metals being returned to the site is equal to that quantity which was removed; it is, however, being returned in a more concentrated form (the tonnage of coal removed is considerably greater than the tonnage of ash returned to the site) and in a somewhat altered state after being exposed to other chemicals under extreme temperature conditions.
21. As Mr. Hassett, a chemist from the University of North Dakota, indicated in his testimony, the crucial issue is not the existence of the metals that were already present. Those elements were present in a form in which they caused no problem to the environment and in particular to ground and surface water prior to mining. The issue is whether or not these minerals are returned to the site in such a way as to allow the heavy metals to break free of their new environment and contaminate the water or cause other environmental damage.
22. The S-126-5 permit provides that the CCW may be placed in one of the five areas. All are on property owned by Solar.
23. Four of the five areas are "monofills" which involve the use of existing or future final cut pits. A monofill is an area totally devoted to the collection of CCW, rather than a mixture of spoil and CCW.
24. As a result of the testimony of Solar's witnesses and the observations of the administrative law judge, the conclusion is reached that monofills 1 and 2 are ready to begin receiving CCW at anytime.
25. Monofills 3 and 4 do not yet exist and are planned for future use, possibly as long at ten years from now.
26. The fifth CCW location is an area more or less between the monofills and provides for CCW to be deposited during backfilling and mixed with the spoil.
27. The monofills will be covered by a minimum of eight feet of spoil and topsoil.
28. The proposed backfill CCW disposition limits the amount of CCW to approximately 8% of the volume of the backfill. Exhibit S-1.
29. The maximum amount of CCd which can be distributed under the S-126-3 permit is approximately 26 million cubic yards.
30. The disposal of CCW is planned to take place over the next seven to ten years of mining and the amount of surface area at Pride's Creek involved with CCW is less than 10% of the disturbed surface area. See testimony of Chris Hopple.
31. HEC's primary concerns about the grant of the permit deal with lack of appropriate information about the site and monitoring, inappropriate tests and testing, and insufficient data about post-mining ground water flow.
32. HEC raises some good points which will be thoroughly discussed by the parties in their post-hearing briefs.
33. In the interim, however, the administrative law judge sees no possible environmental harm that could occur from allowing the disposal of CCW in monofills 1 and 2.
34. Disposition of CCW in monofills 1 and 2 will keep the CCW localized and separated from other materials.
35. Over the next three or four months, the maximum amount of time that will expire prior to the Natural Resources Commission will make a final agency determination in this matter, a very small amount of CCW in relation to the gross amount allowed by the permit will be deposited.
36. While the experts had areas of disagreement, all agreed that the past eight years of mining in the area have dewatered the subsurface in the actively mine area and that this area will not recharge or resaturate with groundwater to any great degree until after active mining ceases. It is likely that a total recharge of the area will take decades.
37. There is no evidence that CCW can cause any irreparable harm to the subsurface until it is exposed to groundwater flow.
38. As a result of this petition for review, the Natural Resources Commission has a number of alternatives available to it when it issues a final order. In addition to the obvious decisions of affirmation of the permit as is or a complete denial of the permit, the commission can modify the permit to reduce the amount of CCW to be deposited, to increase the monitoring required, to increase the frequency of the testing of CCW (currently every three months), or any number of other changes to the permit.
39. Only a complete denial would affect the current storage of four months of CCW. Otherwise, disposition of CCW would remain as is.
40. In the worst case scenario (for Solar), the permit is denied and existing CCW must be removed. As long as the disposed CCW is in
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monofill 1 and 2, it is segregated, and therefore, fairly easy to remove. Further, Solar is the property owner so access will not be a problem.
41. The conclusion is thus reached that no harm will occur by denying temporary relief. Even if HEC prevails completely, no irreparable harm will occur.
42. For the reasons above, temporary relief is denied.