CADDNAR

[CITE: Peabody Cl. Comp. V. DNR, 4 CADDNAR 17 (1986)]

 

[VOLUME 4, PAGE 17]

 

Cause #: 86-077R

Caption: Peabody Cl. Comp. V. DNR
Administrative Law Judge: Lucas
Attorneys: Joest; Szostek, DAG
Date: July 3, 1986

ORDER

 

[NOTE: THE UNDERLYING NOTICE OF VIOLATION IS A SUBJECT OF AN AGREED ORDER ENTERED ON OCTOBER 2, 1986.]

Temporary relief is granted to Peabody Coal Company from Notice of Violation #N60509-S-00016 until a decision is rendered by the Director on the merits of that NOV.

 

FINDINGS OF FACT

 

1. The Department of Natural Resources ("Department") is an "agency" as the term is defined in IC 4-22-1. The director of the Department (the "Director") is the ultimate authority of the Department with respect to the subject matter of this administrative action.

 

2. The Director may delegate all or any of the powers and duties assigned to him under IC 13-4.1 to other employees of the Department.

 

3. On May 9, 1986, Notice of Violation #60509-S-00016 (the "NOV") was issued to Peabody Coal Company ("Peabody") by Michael D. Anderson, an authorized representative of the Director under IC 13-4.1.

 

4. The NOV was issued in connection with permit S-00016 under which Peabody operates the Universal Mine, Blanford East Area in Vermillion County, Indiana (the "Mine".)

 

5. On June 9, 1986, Peabody made a timely request for administrative review of the NOV and requested temporary relief under IC 13-4.1-11-8 (e) from the abatements set forth in the NOV pending resolution of the hearing on the NOV.

 

6. The NOV stated the nature of the violation was a failure by Peabody to design and construct the longitudinal profile of the stream, the channel and the floodplain to remain stable and to meet or exceed the approved cross-sectional design specifications; that provisions violated were 310 IAC 12-5-19 (b) (1), 310 IAC 12-5-22, 310 IAC 12-3-4 and the permit [Part IV I (2), Attachment IV I (2) and the design plans for diversion ditch BE-3]; that the location of the violation was diversion ditch BE-3, particularly the northern portion and the outfall at the north end; that the actions required for abatement were to

 

(1) re-grade embankments where necessary to achieve 2:1 slopes,

(2) stabilize slopes along the entire length of the diversion ditch,

(3) re-grade the channel at its outfall, and

(4) stabilize the outfall to prevent erosion; and, that the deadline for compliance with the required abatement actions was set for Monday, June 9, 1986 at 8:00 a.m.

 

7. Subsequently, the Department extended the deadline for abatement. The parties stipulated at hearing that the reference in the NOV to 310 IAC 12-5-22 is no longer applicable and that the third and fourth enumerated actions to achieve abatement are no longer an issue. The parties also agreed that only the northern portion of diversion ditch BE-3, the portion running roughly east and west for a length of about 3,000 feet, (the "Ditch") is now at issue.

 

8. 310 IAC 12-5-19 (b)(1) provides as follows: When stream flow is allowed to be diverted, the stream channel diversion shall be designed, constructed, and removed in accordance with the following: (1) The longitudinal profile of the stream, the channel, and the floodplain shall be the extent possible, using the best technology currently available, additional contributions of suspended solids to stream flow or to runoff outside the permit area. These contributions shall not be in excess of requirements of state or federal law.

 

9. No evidence was presented during the temporary relief hearing to support the proposition that the design or construction of the longitudinal profile of the Ditch resulted in "additional contributions of suspended solids to stream flow or to runoff outside the permit area." 310 IAC 12-5-19 (b)(1) is inapplicable to the evidence presented and cannot form a basis for issuance of the NOV.

 

10. 310 IAC 12-3-4 provides as follows:

 

"Compliance with Permits. All persons shall conduct surface coal mining and reclamation operations under permits issued pursuant to the IC 13-4.1 and 310 IAC 12, and shall comply with the terms and conditions of the IC 13-4.1, 310 IAC 12, and the permit."

 

11. A reclamation plan contained within a permit application constitutes a portion of the permit. Failure to conform to the terms of the reclamation plan may provide the basis for the issuance of a NOV.

 

12. The reclamation plan for permit S-00016 includes a drawing marked "typical cross-section", which depicts a 2:1 slope for the Ditch embankments.

 

[VOLUME 4, PAGE 18]

 

13. A “typical cross-section” does not depict the actual and precise configuration of a ditch upon construction, but rather exhibits the essential characteristics of the entirety of the ditch slope.

 

14. Cross-sections taken of the Ditch demonstrated an "average slope" of 2.1:1, which is slightly less steep than set forth in the "typical cross-section." The “average slope” was determined by drawing a straight line from the top of the Ditch bank to the bottom of the bank and assuming a horizontal land surface. 

 

15. “Typical cross-section” is not synonymous with “average-cross section.” The focus must be upon whether the cross-sections for a ditch as constructed and maintained conform to the essential characteristics of the “typical cross-section”. The essential characteristics of a cross-section are dependent upon the purpose for which a ditch is designed.

 

16. The evidence presented at hearing tends to support the proposition that the Ditch appropriately serves the purpose for which it was designed and that the Ditch slopes are in substantial conformance with the "typical cross-section."

 

17. On June 19, 1986, Michael Anderson entered a modification of the NOV to include as a provision: 310 IAC 12-5-20 (a) (3).

 

18. 310 IAC 12-5-20 (a) (3) provides as follows: "Appropriate sediment control measures shall be designed, constructed, and maintained using the best technology currently available to: . .(3) minimize erosion to the extent possible."

 

19. 310 12-5-20 is intended primarily to protect off-site stream flow from the contribution of suspended solids. The rule section is directed toward protection of the hydrologic balance. The NOV cannot properly be founded upon 310 IAC 12-5-

 

20. The hearing on the request for temporary relief was held in the locality of permit S-00016. Both parties were given a opportunity to be heard.

 

21. Peabody showed there is a substantial likelihood that the findings of the Director on the NOV will be favorable to the company.

 

22. 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.