[CITE: Peabody Coal Co. V. DNR, 4 CADDNAR 15 (1986)]
[VOLUME 4, PAGE 15]
Cause #: 86-057R
Caption: Peabody Coal Co. V.
DNR
Administrative Law Judge: Shadley
Attorneys: Joest; Szostek,
DAG
Date: May 30, 1986
ORDER
Based
upon the Finding of Fact it is ordered as follows: Temporary Relief from the abatement
action specified in Notice of Violation #N60402-S-00010 is granted.
FINDINGS OF FACT
1.
Pursuant to IC 13-4.1-11-3 (e), Peabody Coal Company has requested Temporary
Relief from Notice of Violation #N60402-S-00010.
2.
IC 13-4.1, the Surface Coal Mining and Reclamation Act, is applicable 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 may, pursuant to IC 13-4.1-2-2 (c), delegate any or all power and
duties assigned to him under IC 13-4.1 to other employees of the Department of
Natural Resources.
5.
Pursuant to IC 13-4.1-2-1 the Director delegated authority to determine if
Temporary Relief should be granted or denied to Sue A. Shadley, an employee of
the Department of Natural Resources.
6.
Sue A. Shadley has jurisdiction over the subject matter and parties.
7.
Notice of the Hearing was given to: Mr. David Joest,
Peabody Coal Company, PO Box 1112, Evansville, Indiana 47706; Mr. Steven Szostek, Deputy Attorney General, Division of Reclamation,
309 West Washington Street, Suite 201, Indianapolis, Indian 46204; Janice
Roseberry, Sullivan County Recorder, Courthouse, Sullivan, Indiana 47882.
8.
On May 28, 1986, a hearing was conducted pursuant to IC 4-22-1 and IC
13-4.1-11-8 (e) on the request for Temporary Relief.
9. Peabody
holds permit number S-00010 to conduct surface coal mining and reclamation
activities at its Hawthorne Mine in Sullivan County, Indiana.
10.
On April 2, 1986, Mike Anderson, an authorized representative of the Director
issued Notice of Violation #N60402-S-00010 to Peabody Coal Company for failure
to design, construct and maintain a siltation structure to prevent
short-circuiting to the extent possible in violation of: 310 IAC 12-5-21(b),
310 IAC 12-5-17-(a) (1), 310 IAC 12-5-24(g), 310 IAC 12-3-4 and Part IV G (2)
(a) at the dammed drainage way just south of basin R-25-003-P/S and associated
watershed.
11.
On April 4, 1986 the Notice of Violation was modified to delete the following
provisions violated: 310 IAC 12-3-4 and Permit Part IV G (2) (a).
12.
On April 14, 1986 the Notice of Violation was modified to change the action
required to "implement appropriate sediment control measures as provided
for in the approved permit."
13.
To date the Notice of Violation has not been terminated.
14.
The area of the violation is a watershed of approximately 20 acres,
approximately 1 of which have been disturbed by
topsoil removal and location of a haul road.
15.
Part IV G (2) (a) of Permit #S-00010 provides that Peabody will protect the
quality of surface water within the permit and adjacent area in small disturbed
drainage areas which do not need sediment ponds in the following manner:
"For areas with inadequate ground cover Peabody Coal will establish dry
dams, or where necessary, an appropriate alternative such as silt fence, to
control surface drainage. The outlet from the dry dams will serve as a
filtering medium utilizing either roc/riprap or perforated pipe as may be
appropriate. Similarly, the silt fence will serve as a filtering medium.
Siltation structures for these areas will include as necessary collection
systems such as, but not limited to, side hill diversions, and berms, to direct drainage into the sediment control
facility. These sediment control facilities will be site specifically designed
under the supervision of registered professional engineer.
16.
This watershed is a small disturbed drainage area subject to the provisions of
the part cited in Findings and Fact #14.
17.
Peabody has place rip-rap in the breach of the dam and removed the pipe creating
a rock check dam.
18.
Neither the law, the rules, or the permit specify
design standards for a rock check dam.
19.
This rock check dam is approximately five feet high rip-rap with fairly steep
unprotected side slopes five feet higher than the rip rap.
20.
The rock check dam as currently designed is expected to function to adequately
handle the water to ensure compliance with the EPA effluent limitations.
21. The parties stipulated that granting
Temporary Relief will not adversely affect the health or safety of the public
or cause significant, imminent environmental harm to land, air or water
resources.