CADDNAR


[CITE: Peabody Coal Comp. V. DNR, 4 CADDNAR 68 (1989)]

 

[VOLUME 4, PAGE 68]

 

Cause #: 87-039R

Caption: Peabody Coal Comp. V. DNR
Administrative Law Judge: Drew
Attorneys: Joest; Spicker, DAG; pro se (Guerri)
Date: January 23, 1989

ORDER

 

Notice of Violation: #N70415-S-00012, Part 1 of 2 is affirmed.

FINDINGS OF FACT

 

1. The Department of Natural Resources (the "Director") is an agency as the term is defined in IC 4-21.5-1. The Director of the Department (the "Director") is the ultimate authority with respect to the subject matter of this administrative action.

 

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

 

3. IC 4-21.5 and IC 13-4.1, the Surface Coal Mining and Reclamation Act, apply to this proceeding.

 

4. Peabody Coal Company ("Peabody") holds the permit #S-00012 to engage in surface mining at its Universal Mine, Shepardsville Area, Vigo County, Indiana.

 

5. On April 15, 1987, Notice of Violation 70415-S-00012 Part 1 of 2 (the "NOV") was issued to Peabody by the Department's Division of Reclamation (the "Respondent"). The NOV cites Peabody for failing to utilize adequate sedimentation controls at areas where roads intersect drainage channels, which has resulted in failure to retain sediment within the disturbed areas in violation of 310 IAC 12-5-69(c), 310 IAC 12-5-20(b)(3), and Part IV G(2)(a) of Peabody's approved permit.

 

6. The inspection report submitted with the NOV indicates two drainage ways are the major contributing streams flowing into a lake surrounded by the Krislynn Woods residential area. The southern drainage way receives effluent from Peabody's sediment basin #M-36 which collects surface drainage from a portion of the haul road and box cut area. At the time of inspection, the basin was tested and found to meet applicable effluent limitations.[FOOTNOTE 1]

 

7. The northern drainage way (and the area cited in the NOV) receives surface drainage from another portion of the haul road and is without benefit of a sediment basin. Shale sediment, identical to that comprising the haul road, was found to line this drainage way which ends in a small ponded area and drains into the nearby residential lakes. Photos and water samples were taken.

 

8. According to Respondent's answers to interrogatories, the NOV was issued because drainage from Peabody's haul road failed to meet sediment control measures.

 

9. An affidavit filed by Peabody from James King (Environmental Scientist for Peabody's Universal Mine) states that the control measures utilized by Peabody for intersections of the haul road with drainage ways underneath the haul road by culverts and rock check dams or riprap at various locations.

 

10. 310 IAC 12-5-69 specifically applies to surface mine across roads and requires: The permittee shall ensure that the construction, maintenance, and postmining conditions of access roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to fish and wildlife or their habitat, or public or private property. Subsection (c)states: "Adequate sedimentation controls shall be utilized at areas where roads intersect drainage channels."

 

11. Although the term "adequate" is not expressly defined, the general requirements of section 69 require haul roads to be constructed and maintained so as to control or prevent erosion and siltation and damage to public or private property.

 

12. 310 IAC 12-5-69 (c)clearly requires Peabody to construct and maintain sedimentation controls at points where haul roads intersect drainage channels so that they will adequately control or prevent erosion and siltation. According to the inspection report, shale sedimentation lined the drainage way and extended from the haul road 1800 feet to a ponded area which drained into a nearby residential lake. Leaves and debris along the drainage way were heavily coated with the shale sediment.

 

13. Based upon the requirements found in 310 IAC 12-5-69, Peabody's sediment control measures cannot be viewed as "adequate."

 

14. Peabody was also cited with a violation of 310 IAC 12-5-20 (b)(3). This

 

[VOLUME 4, PAGE 69]

 

regulation concerns sediment control measures affecting the hydrologic balance. Subsection (b)(3) states that "retaining sediment within the disturbed areas" is one method by which proper mining and reclamation procedures may be utilized to achieve sediment control.

 

15. In and of itself, 310 IAC 12-5-20 (b) (3) is not a mandatory regulation. However, in Peabody Coal Company v. Department of Natural Resources, Cause No. 87-034 R, IV CADDNAR, 62, 63 (June 20, 1988), the Director held that: "310 IAC 12-5-20(b)(3) is not a mandatory regulation as long as the sediment control measures utilized by an operator are adequate to meet the standards set forth in 310 IAC 12."

 

16. Peabody's sediment control measures have been found to be inadequate under 310 IAC 12-5-69(c) and therefore Peabody was correctly cited for violating 310 IAC 12-5-20 (b)(3).

 

17. Peabody contends that sediment control measures can only be deemed inadequate where there are violations of the effluent limitations. However, sediment control regulations are clearly intended to be preventative in nature. They were created with the intent of preventing various hazards from occurring and an actual harm (such as an effluent violation) need not occur in order for a surface coal mining operation to be properly cited with a Notice of Violation.[FOOTNOTE 2]

 

18. The regulating body has the authority not only to determine whether a permittee has properly constructed and maintained a haul road within regulatory guidelines, but also whether such a road's condition demonstrates a failure to adequately control or prevent adverse impacts on the hydrologic balance in general and additional contributions of sediment in particular.

 

19. Peabody maintains the regulations do not require the retention of all sediment within the disturbed area, only that sediment be "controlled or prevented." However, the inspection report indicates that a substantial amount of sediment did leave the disturbed area and that the controls utilized by Peabody were ineffective in controlling or preventing excessive erosion or siltation from leaving the haul road.

 

20. Peabody was also cited with violating 310 IAC 12-3-4 which requires surface coal mining operations to be conducted in accordance with the terms and conditions of the permit. Peabody was specifically cited with violating Part IV G(2)(a) of its permit which provides that haul road sediment control comply with all applicable regulations.

 

21. Peabody has been found to be in violation of 310 IAC 12-5-69 and therefore is in violation of its permit and 310 IAC 12-3-4.

FOOTNOTES


1. In their brief, Intervenors discuss at length the harmful effects run off from Peabody's haul road has allegedly had on the lakes of the Krislynn Woods residential area. In particular, Intervenors focus on the southern drainage way where sediment basin #M-36 is located. As noted above, the basin was tested at the time the NOV was written and no effluent violation was found to exist. This area was not cited, nor is it part of, this NOV and consequently, any reference to the alleged problems resulting from the outflow from basin M-36 is not relevant to this proceeding.

2. Furthermore, there is no indication from the regulation or the governing statutory authority (IC 13-4.1-8-1 requires that haul roads be constructed and maintained so as to "control or prevent erosion and siltation, pollution of water, damage to fish and wildlife or their habitat, or public or private property.") which indicates that an effluent violation must occur in order for a sediment control measure to be deemed inadequate.