CADDNAR


[CITE: Peabody Co. Company v. Department, 1 CADDNAR 70 (1983)]

 

[VOLUME 1, PAGE 70]

 

Cause #: 83-096R

Caption: Peabody Co. Company v. Department
Administrative Law Judge: Shadley [PAGE (I 70)]
Attorneys: Joest; Spicker, DAG
Date: September 28, 1983

ORDER

 

[NOTE: TEMPORARY RELIEF HAD BEEN GRANTED TO PEABODY ON SEPTEMBER 28, 1993. THAT DECISION IS OMITTED. FOLLOWING CONFIRMATION OF THE UNDERLYING NOTICE OF VIOLATION ON OCTOBER 11, PEABODY TOOK JUDICIAL REVIEW. THE ADMINISTRATIVE ACTION WAS REVERSED, AND THE DEPARTMENT TOOK AN APPEAL. THE COURT OF APPEALS REMANDED THE CIVIL ACTION TO THE VIGO SUPERIOR COURT IN A MEMORANDUM DECISION.]

 

Notice of Violation #N30901-S-00016 is affirmed.

 

FINDINGS OF FACT

 

1. The Director of the Department of Natural Resources is included in the definition of agency as used in IC 4-22-1-2 and is duly empowered to conduct administrative hearings pursuant to IC 4-22-1.

 

2. Peabody Coal Company ("Peabody") is a Missouri corporation with office address at 1314 Burch Drive, Evansville, Indiana and with agent resident in the State of Indiana being C. T. Corporation, as designated by Peabody to the Indiana Secretary of State.

 

3. The Director has jurisdiction over the subject matter and parties to this action.

 

4. On September 1, 1983, Notice of Violation #N30901-S-00016 was issued to Peabody by Ronald E. Pearson, an Inspector for the Division of Reclamation ("Division") pursuant to IC 13-4.1-11-4 and 310 IAC 12-6-6.

 

5. On September 8, 1983, Peabody requested administrative review of violation 2 of 2 contained in the Notice of Violation.

 

6. Pursuant to IC 4-22-1-12, the Director appointed Sue A. Shadley, an employee of the Division of Reclamation of the Department of Natural Resources to conduct a hearing and make a recommendation to him as to the order or determination herein.

 

7. On September 26, 1983, an administrative hearing was conducted pursuant to IC 4-22-1.

 

8. The Notice of Violation was issued in connection with Peabody's permanent program (IC 13-4.1) permit #S-00016.

 

9. The provisions of IC 13-4.1 and 310 IAC 12 apply to this permitted operation.

 

10. Notice of Violation #N30901-S-00016, Violation 2 of 2 cited Peabody for failure to protect topsoil along the cable route on the west side of the permit area from wind and water erosion in violation of 310 IAC 12-5013(b) and Plan of Reclamation, Part IV. Sec. B(3) and required Peabody to provide adequate protection against wind and water erosion by mulching and seeding at the rate specified in the Plan of Reclamation or by relocating the topsoil stockpiles by 8:00 AM, September 16, 1983.

 

11. The topsoil in the Notice of Violation is soil removed to a depth of one foot by a tractor along a 1500 foot long by 15 foot wide route where a cable supplying electricity to the dragline is located.

 

12. The topsoil was removed on or about July 1, 1983.

 

13. Location of the cable route and removed topsoil is an area ahead of active mining operations which Peabody intends to mine this fall or next spring.

 

14. The topsoil is stockpiled.[FOOTNOTE i]

 

15. The stockpiles are located on the west side of the cable route.

 

16. The east side of the cable route is in contact with the tip of a drainage way.

 

17. The drainage way in contact with the cable route runs west to east and flows into an intermittent stream which flows into the head of the drainage way.

 

[18. A review of the archived administrative cause did not show whether Finding 18 was omitted from the original document.]

 

19. The cable route has been used as a road.

 

20. Some topsoil which has been transported onto the cable route has been carried off the permit area by vehicular traffic.[FOOTNOTE ii]

 

21. The stockpiles have not been protected from wind or water erosion by a cover of non-noxious, quick-growing annual and perennial plants or other measures approved by the Director in the Plan of Reclamation.

 

22. By failing to protect these topsoil stockpiles Peabody has violated 310 IAC 12-5-13(b) and its Plan of Reclamation, Item IV. Sec. B(3).[FOOTNOTE iii]

FOOTNOTES

i. Peabody argues that the topsoil for which the violation was written was not "removed" or "stockpiled" within the meaning of 310 IAC 12-5-13(b) or Item IV. Sec. B(3) of

 

[VOLUME 1, PAGE 71]

 

the Plan of Reclamation. I disagree. The statute and rules define a surface coal mining operation to include use of adjacent land where activities incidental to the removal of coal occur. The construction of a route to lay cable supplying electricity to the dragline is an incidental activity. 310 IAC 12-5-11 and 310 IAC 12-5-12 (a) provide that prior to any surface disturbance, topsoil shall be removed in a separate layer and either by immediately redistributed or stockpiled pending redistribution. Because Peabody disturbed the surface in order to construct the cable route, the requirements of the rules for topsoil removal and redistribution apply. If the material had not been removed or stockpiled within the meaning of 310 IAC 12-5-13(b) that would be a violation of 310 IAC 12-5-12. The division testified that it considered these to be stockpiles; thus, no one has raised a violation for failure to stockpile. However, once stockpiled, the provisions for protection in 310 IAC 12-5-13 apply.

 

ii. The facts indicated that topsoil has been transported off the stockpiles and that some topsoil has been irretrievably lost. Therefore, it is not necessary to determine if a Notice of Violation would be affirmed where no loss has occurred. However, I will indicate that I agree with the Respondent's position that proof of farm, i.e., erosion, is not necessary to prove a violation of 310 IAC 12-5-13(b). I agree that this regulation is preventative and not results orientated. If the provisions of 310 IAC 12-5-13(b) could only be enforced once erosion has occurred, protective measures could only be required after irreparable loss has occurred. To define erosion as Peabody urges would be even more environmentally damaging because not only would the loss be irreparable but the loss would be of an amount that would lessen the productivity of the land. The rule cannot be construed to intend such a result. To construe this rule as being preventative in nature, does not totally address the facts of this case because Peabody argues due to the location, the topsoil will be removed and either stockpiled or redistributed at the time the area is mined. The testimony given however, does not allow a finding to be made that the topsoil will be removed and stockpiled or redistributed because

 

1) mine plans can change, such that the area would not be mined,

2) some material has been transported into drainage ways which are steeper
than the areas typically mine by Peabody, and

3) some material has been transported off the permit area by the vehicular traffic.

 

This case does not show that future mining prevents soil loss as well as use of protective measures.

 

iii. Peabody argues that it did not fail to take the protective actions against erosion required by 310 IAC 12-5-13(b)(1) within the applicable time limits and argues that 310 IAC 12-5-13(b)(1) provides alternative methods such that so long as an effective vegetative cover is planted or seeded within the first normal favorable planting period, additional protective actions cannot be required. The testimony indicates that the first normal favorable planting period after July 1, 1983, was September 1, 1983 to October 15, 1983. The Notice of Violation was written on September 1, 1983, which date was subsequently extended to September 30, 1983. The Plan of Reclamation provides for seeding with cereal grains and indicates that when inclement weather prevents seeding and/or mulching within 30 days, other appropriate measures would be employed on an as needed basis with the use of the Soil Conservation Service Engineering Field Manual as a guideline. I disagree with Peabody's contention that 310 IAC 12-5-13 (b)(1)(I) and 310 IAC 12-5-13(b)(1)(ii) are intended to be exclusive alternatives. Instead the rule requires that the stockpiles be seeded or another approved measure as protective as seeding be employed when it is not possible to seed. The Plan of Reclamation indicates other measures have been approved and those measures should have been employed. At the time the Inspector issued the Notice of Violation, it was favorable season for planting, thus the required abatement action was reasonable. It should be noted that in considering whether or not to grant temporary relief pending a decision in this administrative cause, I made a finding that Peabody had a substantial likelihood of prevailing on the merits of this case. At that time, I based my finding on an interpretation of the rule which would provide that the modifying phrase "which lessens the capacity of the material to support vegetation when redistributed" applied to wind and water erosion, unnecessary

 

[VOLUME 1, PAGE 72]

 

compaction and contamination. I now believe that modifying phrase applies only to contamination. I have compared this rule to the authorizing statute [IC 13-4.1-8-1(5)] and believe that there is an independent requirement that topsoil stockpiles be protected from wind and water erosion regardless of whether or not a showing is made that the erosion which has and/or will occur will result in lessening the capability of the material to support vegetation when redistributed.

 

_____________________________________________________________

[NOTE: CADDNAR citation does not apply to trial Court entry]

 

THE TRIAL COURT REINSTATED THE ADMINISTRATIVE DETERMINATIONS ON JULY 25, 1986:

 

This matter comes before the Court for judicial review of an administrative agency decision pursuant to IC 4-22-1 and the Court, having reviewed the record of the administrative agency proceedings and the briefs of the parties, and having made specific findings of fact and conclusions of law which are in words and figures as follows, to -wit:

 

(H.I.) The court now finds that the final decision of ...[James M. Ridenour] is in accordance with law and is hereby affirmed. IT IS THEREFORE, ORDERED AND ADJUDGED that the Director's final decision entered on October 31, 1983, affirming Notice of Violation #N30901-S-00016 is affirmed. IT IS FURTHER ORDERED AND ADJUDGED that...[James M. Ridenour] recover its costs expended in this action, and the clerk of this Court is directed to tax costs against...[Peabody Coal Company]. SO ORDER this 25th day of July, 1986. Findings of Fact of Vigo Superior Court:

 

1. ....[Peabody] is a Missouri corporation with offices at 20 Northwest First Street, Evansville, Indiana, and, as designated to the Indiana Secretary of State, has a resident agency, C. T. Corporation, in the State of Indiana.

 

2. ...[James M. Ridenour] is the Director of the Indiana Department of Natural Resources.

 

3. ...Peabody Coal Company maintains a surface coal mining operation at its Universal Mine on the Blanford East permit area.

 

4. On or about July 1, 1983, Peabody removed topsoil on that permit from an area 1500 feet long by fifteen feet wide to provide a cable route and access road for use in its dragline operation at the Universal Mine.

 

5. The topsoil was dug, removed, and graded into piles alongside the cleared area and left unprotected from wind or water erosion either by an effective cover of non-noxious, quick-growing annual or perennial plants or by other methods approved by the Director which would provide equal protection.

 

6. Location of the cable route and the removed topsoil was an area ahead of the active mining operation which Peabody intended to mine in the fall of 1983 or the spring of 1984. The topsoil piles were located on the west side of the cable route; the east side of the route was in contact with a drainageway which ran west to east and flowed into an intermittent stream; the stream flowed through a sedimentation pond from which drainage left the permit area and flowed into coal Creek.

 

7. Some topsoil from the piles was transported across the cable route and into the head of the drainageway; some topsoil was transported onto the cable route and carried off of the permit area by vehicular traffic.

 

8. On August 2, 1983, an inspector for the Department of Natural Resources observed the unprotected piles of topsoil and notified Peabody.

 

9. On September 1, 1983, during his monthly inspection, the inspector again observed the unprotected topsoil; he issued the subject Notice of Violation (NOV) Number N30901-S-00016, part 2, specifically charged a violation of 310 IAC 12-5-13(b) and a violation of Peabody's Department-approved Plan of Reclamation, Part IV, Section B(3).

 

[10. A review of the archived administrative cause does not contain information regarding whether Finding 10 was omitted fro the original entry by the Court.]

 

11. Indiana Department of Natural Resources regulation 310 IAC 12-5-13(b) required, in relevant part, that :

 

(b) Stockpiled materials shall be selectively placed on a stable area within the permit area, not disturbed, and protected from wind and water erosion, unnecessary compacting, and contaminants which lessen the capability of the materials to support vegetation when redistributed.

(1) Protection measures shall be accomplished either by:

(i) An effective cover of non-noxious, quick growing annual and perennial plants, seeded and planted during the first normal period after removal for favorable planting conditions; or

(ii) Other methods demonstrated to and approved by the Director to provide equal protection.

 

12. Peabody's Plan of Reclamation, Part IV, Section B(3), as approved by the Director, and an approved supplemental provision set forth be stable sites outside of drainageways within the permit area so as to minimized soil loss. An initial planting of cereal grains will be used at a rate of approximately 1 to 1 bushels per acre to establish quick vegetative cover. Side slopes too steep to safely transverse with conventional farm machinery will be mulched with straw/hay and/or cellulose type mulch. Peabody Coal Company agrees to use 30 days as a guideline for seeding and/or mulching for topsoil stockpile protection. However, it should be pointed out that due to inclement weather, machine breakdowns, or other acts beyond Peabody Coal Company's control the 30 day guideline cannot always be accomplished. As was discussed June 13, 1983, other appropriate measures will be employed during these times. These measures will be employed on an "as needed" basis with the use of the Soil Conservation Service Engineering Field Manual as a guideline.

 

13. Peabody requested formal administrative review of the Notice of Violation pursuant to IC 13-4.1-11-8, and a hearing was held pursuant to IC 4-22-1 on September 26, 1983, in front of a Hearing Officer appointed by the Director. The Hearing Officer entered proposed Findings of Fact and Recommended Order affirming the Notice of Violation which was adopted by the Director on October 31, 1983.

 

14. The Director made specific Findings as to the nature and location of the stockpiles in question (Findings Nos. 11 through 17), the contact with a drainageway (Finding No. 16), the movement of topsoil away from the stockpiles into the drainageway and, additionally, off the permit area (Findings Nos. 17 through 19), the lack of protection of the stockpiles either by plants or "other measures approved by the Director in the Plan of Reclamation" (Findings Nos. 21, 22 and Footnote iii). All of the Findings are supported by the evidence presented at the administrative hearing.

 

15. The Director's findings addressed both the violations of the 310 IAC 12-5-13 and violation of the Peabody Plan of Reclamation (Findings 10 through 22).

 

16. Peabody filed a Verified Petition for Judicial Review in the Vermillion Circuit Court; the action was venued to the Vigo Superior Court. 17. Testimony at the hearing indicated:

 

a) Peabody had left topsoil piles unprotected by any measures for approximately six weeks after the establishment by the time the inspector issued the Notice of Violation.

b) Erosion was occurring when the inspector issued the Notice of Violation; eroded material was transported into the head of the drainageway which flowed off the permit into a creek and also had been carried off the permit area by vehicular traffic.

c) Peabody took no preventative measures to avoid deterioration of the topsoil or to minimize erosion; Peabody did not intend to protect this material since it did not consider the stored mounds of topsoil to be topsoil stockpiles.

d) The cable route was used as a road.

 

Based on the foregoing specific Findings of Fact, the Court enters the following Conclusions of Law:

 

1) Defendant is an agency within the meaning of IC 4-22-1-2, and its final decision constitutes an administration adjudication.

 

2) The provisions of IC 13-4.1 and 310 IAC 12 apply to the subject surface coal mining jurisdiction operation, Peabody Coal Company's permit No. S-00016.

 

3) this Court has jurisdiction over the parties and subject matter of this action pursuant to IC 4-22-1 and IC 13-4.1.

 

4) IC 13-4.1-3 (12) defines a surface coal mining operation to include use of adjacent land where activities incidental to the removal of coal occur; the construction of the route to lay cable supplying electricity to the dragline is an incidental activity. Because Peabody disturbed the surface in order to construct the cable route, the requirements of the rules for topsoil removal, redistribution, and protection apply.

 

5) The topsoil in question was stockpiled within the meaning of 310 IAC 12-5-13 and Part IV, Section B(3) of the Plan of Reclamation and was required to be seeded and by other methods approved by the Director of the Department of Natural Resources.

 

6) The Plan of Reclamation constitutes a permit condition. IC 13-4.1-3-1 requires all surface coal mine operators to obtain a permit to conduct operations; the application must include a reclamation plan (IC 13-4.1-3-3 (17) and IC 13-4.1-3-4); the redistribution of topsoil which will meet topsoil protection requirements. Pursuant to 310 IAC 12-3-116, captioned "Permit Conditions", an operator is required to "conduct all surface coal mining and reclamation operations as described in the complete application". The applicant's representations to the State in its mining and reclamation plan become permit conditions when the permit is approved.

 

7) 310 IAC 12-6-6 makes violations of permit conditions subject to NOVs.

 

8) After reviewing an administrative record, the trial court may set aside the agency's determination only if it finds that the action was:

 

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity,

(3) in excess of statutory jurisdiction authority, or limitations or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

 

9) The Director's action and determination was not

 

(1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations or short of statutory right;

(4) without observance of procedure required by law.

 

10) The Director's findings are supported by substantial evidence in the record.

 

11) Peabody Coal Company violated Part IV B (3) of its Plan of Reclamation which required protection of topsoil stockpiles by seeding and/or mulching or by other appropriate measures within 30 days of their establishment.

 

12) Peabody Coal Company was properly and lawfully issued NOV #N30901-S-00016 for violation of a permit condition.

 

13) The decision of the Director of the Department of Natural Resources, with respect to Peabody's violation of Part IV.B(3) of its Plan of Reclamation, was in accordance with law and is affirmed. Material deleted due to the condensing of the typed text in the matter of Peabody Co. Company v. Department, Administrative Cause Number 83-096R.