[CITE: Peabody Coal Company v. DNR, DOR, 2
CADDNAR 62 (1987)]
[VOLUME 2, PAGE 62]
Cause #: 84-282R
Caption: Peabody Coal Company
v. DNR, DOR
Administrative Law Judge: Drew
Attorneys: Joest; Szostek, DAG
Date: September 1, 1987
ORDER
Notice
of Violation #N41024-S-00022 is affirmed.
FINDINGS OF FACT
1.
On November 26, 1984, Peabody Coal Company (the "Claimant") requested
review of NOV #N41024-S-00022.
2.
IC 4-22-1 and 13-4.1, the Surface Coal Mining and Reclamation Act, apply to
this proceeding.
3.
The Department of Natural Resources is an agency as the term is defined in IC
4-22-1. The Director is the ultimate authority of the Department with respect
to the subject matter of this administrative action.
4.
The Director has jurisdiction over the subject matter and the parties to this
proceeding.
5.
Notice was given to: service list omitted.
6.
Claimant holds permit #S-00022 to conduct surface coal mining and reclamation
operations in Warrick County, Indiana at its Lynnville Mine, 1150 #2 Area.
7.
On October 24, 1984, Eric C. Gerst, an authorized
representative of the Director (the "inspector"), issued a notice of
violation to Claimant for "failure to protect topsoil stockpiles from the
effects of wind and water erosion" in violation of 310 IAC 12-5-13(b)(1),
310 IAC 12-3-4 and Part IV(B)(3) of Claimant's reclamation plan.
8.
310 IAC 12-5-13(b)(1) provides as follows[FOOTNOTE 1]:
(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 compaction, and contaminants which lessen the capability of the
materials to support vegetation which redistributed.
(1)
Protection measures shall be accomplished either by:
(i) an effective cover of nonnoxious,
quick growing annual and perennial plants, seeded or planted during the first normal
period after removal for favorable planting conditions; or
(ii)
Other means demonstrated to and approved by the Director to provide equal
protection.
9.
On January 22, 1987 a hearing was held in Indianapolis pursuant to notice and
the parties presented evidence.
10.
This notice of violation concerns two topsoil stockpiles within the permit
area. The inspector found both stockpiles had become inactive (meaning that no
topsoil was being added or removed) and that no measures were being taken to protect
the stockpiles from wind and water erosion.
11.
Respondent follows a policy whereby operators are expected to take measures to
ensure protection of topsoil stockpiles from wind and water erosion within
thirty days of the time the stockpiles become inactive. Furthermore, regardless
of whether or not thirty days have elapsed, Respondent may still issue a notice
of violation if a stockpile is affected by wind and water erosion and no
protective measures have been taken.
12.
Claimant accepts Respondent's policy as the standard by which it must comply in
this cause.
13.
Thirty days had not elapsed (27 days had actually passed between the time the
stockpiles became inactive and the issuance of the notice of violation) and
consequently, in order for the notice of violation to have been properly
issued, erosion must have occurred or was occurring at the time the violation
was issued.
14.
The inspector testified that there was one large gully (approximately 7-10
inches deep, 2 inches wide and 25 feet in length) on one of the stockpiles and
somewhere between 20 to 100 smaller gullies running the length of the slope of
both piles and averaging 4.
15.
The inspector further testified that he believed the gullies were evidence of
[VOLUME 2, PAGE 63]
erosion and therefore he wrote the
notice of violation.
16.
Claimant does not dispute that 20 to 100 gullies had formed on both stockpiles.
However, Claimant argues that erosion, as it is defined in the agronomical
sense, did not occur on either stockpile and therefore Notice of Violation
#N41024-S-00022 was improperly issued.
17.
According to Claimant's witness, Randy Staley, agronomist for Claimant, the
term "erosion" refers to the loss of topsoil in quantities great
enough to lessen or diminish the productive capacity of the soil. Consequently
if the productive capacity of the soil is not lessened then no
"erosion" has occurred.
18.
The tolerable soil loss factor (the " 'T' factor") is a concept used
to determine the maximum level at which soil erosion can occur on a parcel of
land and still permit crop productivity to be economically sustained.[FOOTNOTE 2]
19.
Claimant contends that the 'T' factor of the soil contained in the stockpiles
in question should be used in determining whether or not erosion occurred.
20.
Claimant therefore applied the T' value for the soil found in the area from
which the stockpiled topsoil was removed. It then calculated the amount of soil
lost from the gullies found by the inspector. Based upon these calculations, Claimant
contends that only soil lost from the stockpiles was less than the 'T' value
calculated for similar soils left in their undisturbed state.[FOOTNOTE 3]
21.
Respondent's definition of erosion, as testified to by Inspector Gerst, involves a three step process consisting of the
detachment of soil particles by wind or water, transportation of such particles
and final deposition. Gerst further testified, in
accordance with definition, that he viewed the movement of topsoil particles
from the top to the bottom of a stockpile as erosion and that the formation of
rills and gullies was evidence that soil was being lost.
22.
The term "erosion" has not been defined by statute or departmental
regulation which governs surface coal mining and reclamation operations in
Indiana.
23.
When a term is left undefined, it is a basic rule of statutory construction
that such term be interpreted so that the legislative intent was given effect. Ind. Dept. Of Revenue v. Endress
& Hauser, Inc., 404 N.E. 2d 1173 (Ind. App. 1980)
24.
The purposes of the Surface coal mining and reclamation laws as set forth in IC
13-4.1-1-2 indicates a strong legislative desire to protect the environment
from the negative effects of surface coal mining while, at the same time,
encouraging the production of coal.
25.
In furtherance of these purposes, the legislature explicitly set forth in IC
13-4.1-8-1 various performance standards requiring that lands affected by
mining be restored to the point where there are at least capable of supporting
the same types of uses the supported prior to mining. As a means of
accomplishing this, IC 13-4.1-8-1 lists the preservation of topsoil as an
important factor in restoring soils to their premining
capacities.[FOOTNOTE 4]
26.
By its nature, surface coal mining is a destructive process where significant
amounts of topsoil can be lost throughout the course of the mining operation.[FOOTNOTE 5] Furthermore, topsoil that
is stripped from the land and then placed in a stockpile is more susceptible to
erosion than if left in an undisturbed state.
27.
During the hearing, Claimant's witness testified that soil from a stockpile may
be eroded but is not necessarily lost if it is saved and available for further
use. There was also testimony from Inspector Gerst
that silt fences or berms may be used as a means of
saving stockpiled soil which has eroded from a pile.[FOOTNOTE 6]
28.
Inspector Gerst further testified that at the time of
his October 24th inspection (the date on which the Notice of Violation was
written) he saw no evidence of any silt fence or berm
around either stockpile.[FOOTNOTE 7]
29.
Claimant maintains that even if some soil from the stockpiles is lost due to
erosive processes, the soil's potential productivity will not be affected
because calculations made by the Claimant show that such losses were not in
excess of the 'T' value.
30.
When determining the legislative intent of an undefined word, that word retains
its common or ordinary meaning unless the statute indicates that a specialized
or technical meaning is intended. Higgins v. Hale, 476 N.E. 2d 95 (Ind. App. 1985.)
31.
Nothing in the statutory language relating to surface coal mining operations
suggests that a technical or specialized meaning is to be given to the word
"erosion." Nor is there any suggestion that erosion is to be defined
according to a particular soil's 'T' value.[FOOTNOTE 8]
32.
The underlying concern of the legislature is that a soil's productivity be
retained and preservation of the topsoil is the means to accomplish that goal.
A significant amount of topsoil has already been lost due to mining activities.
[VOLUME 2, PAGE 64]
33.
No evidence was put forth showing that any attempt was made by Claimant to
abate the loss of topsoil from the stockpiles in question.[FOOTNOTE 9]
FOOTNOTES
1. 310 IAC 12-5-13 has been repealed and replaced by 310 IAC 12-5-12.1. Both
regulations refer to "erosion" in similar terms. The new rule also
uses the term "erosion" without definition and the holding in this case
relative to the definition of the term would be relevant to the new rule as
well.
2.
The Soil Conservation Services of the United States Department of Agriculture
has applied this concept in determining 'T' values for the various soils in Indiana.
This concept has also been used as the basis for the "T by 2000"
program developed by the Governor's Soil Resource Study Commission. The purpose
of this program is to reduce erosion on each acre of land to its tolerable
limit ('T') by the year 2000.
3.
Claimant's explanation of how its calculations were computed is as follows:
Peabody's agronomist testified that the stockpiles in this case contained the
topsoil which would be replaced on 25 acres. The predominant soil type present
was Hosmer, which has a 'T' value of four tons per
acre per year (tons/acre/year) and this may be taken as the 'T' value for all
soil present in the piles, because the weighted average 'T' value for all soils
present would be approximately for tons/ acre/year. Thus the 'T' value for the
entire acreage gathered into these piles would be 100 (25 x 4) tons per year.
The average soil loss for Warrick County, Indiana, where Peabody's S-00022
permit area is located, is eight to ten tons/acre/year, or 200-250 (8 x 25 to
10 x 25) tons per year for the 25 acres of topsoil in the piles in question.
However, this average figure includes less erodible bottomlands, whereas the
area from which the stockpiled topsoil was removed and would be replaced was
sloped upland more susceptible to erosion. Peabody's agronomist estimated that
this soil would erode at a rate of 15-20 tons/acre/year as unminded
cropland, or 375-500 (15 x 25 to 20 x 25) tons per year for all the soil in the
piles. The Division's inspector testified that he observed one larger gully on
one of the stockpiles and 20-100 smaller gullies covering both stockpiles.
Peabody's agronomist testified that the larger gully would represent
approximately one ton of topsoil lost from the pile and each smaller gully
approximately 0.1 ton. Therefore in the 27-day period between the issuance of
the Notice of Violation (October 24, 1984) and the last prior inspection
(September 27, 1984) the stockpiles lost between three and eleven tons of
topsoil (depending on the number of small gullies present.) The T' value for
the stockpiles for the same period obtains by simply pro-rating the annual
value for the 27-day period would be 8.3 tons (100 x 27 - 365), the Warrick
County average soil loss 17 to 18.5 tons, and the anticipated erosion loss for this
soil in its unmined cropland state 28 to 37 tons.
Peabody's agronomist also testified that October is a relatively rainy season
and that during the dryer winter months soil erosion
ordinarily occurs at a lesser rate. Therefore, the actual annualized rate of
soil loss from these stockpiles would be less than the 40.5 to 148.5 tons which
would be obtained by pro-rating the 3 to 11 ton loss for the 27-day period.
(Alternatively, the 'T' county average and anticipated soil loss values
indicated above would be artificially low, since they represent an annual
average soil rate.)
4. Similar concerns regarding topsoil preservation are expressed throughout the
Department's rules and regulations (found in 310 IAC 12) and in Respondent's
policy statement concerning topsoil stockpiles (Claimant's Exhibit 3).
5. Claimant's witness testified that between 20 to 25% of the topsoil is lost
during the stripping operations.
6. Gerst testified that although he personally did
not approve of the use of berms or fences as a form
of stockpile protection, he acknowledged that the use of such structures is
approved by the Department and their use was also part of Claimant's approved
reclamation plan. (Respondent's Exhibit E).
7. While the loss of some stockpiled topsoil through erosion is unavoidable, it
is clear that the intent of the statute and regulations is to keep such losses
[VOLUME 2, PAGE 65]
at a minimum. A significant
amount of topsoil has already been lost through the stripping process and
further losses cannot possibly lend to a soil's productivity, let alone enhance
it. Some type of protection, such as a silt fence or berm,
is needed once the stockpile becomes inactive if loss of soil by erosion is to
be minimized.
8. While the Governor's Study Commission based its T by 2000 program upon the
tolerable soil loss amounts for a given area, the 'T' factor has not been used
by either the legislature or the Department as a means by which erosion is
defined. Furthermore, the 'T' value, as employed by the Soil Conservation
Service and applied by the Governor's Study Commission, was intended to measure
the tolerable levels of soil loss on lands undisturbed by mining. It is
illogical to apply that concept to soil that has been stripped from the land
and then stored in a stockpile.
9. Claimant maintains that Respondent failed to establish a prima facie case
because Respondent did not put forth evidence showing the productive capacity
of the stockpiled topsoil had lessened due to the formation of the gullies
cited. If erosion was defined according to a given soil's 'T' value, Claimant's
argument would be well taken. However, it is uncontroverted that gullies had
formed on both stockpiles, which evidences movement of the soil from the
stockpile. While this does not prove in and of itself a lessening of a soil's
productive capacity, it certainly is a contributing factor. Furthermore, the
lack of any protective device (such as a silt fence or berm)
to save any soil so lost, is further evidence of a
lessening of a soil's productive capacity.