[CITE: Beasley and Anderson, et al. v. DNR and Key West Coal, 5 CADDNAR
141 (1990)]
[VOLUME 5, PAGE 141]
Cause #: 90-051R
Caption: Beasley and
Anderson, et al. v. DNR and Key West Coal
Administrative Law Judge: Teeguarden
Attorneys: Beasley, pro se; Kesler; Frey; Law
Date: April 18, 1990
ORDER
Claimants
requests for temporary relief and stays from the commission order of January
25, 1990 are denied.
FINDINGS OF FACT
1.
On February 27,1990, Beasley requested temporary
relief from an order of the Commission issued after the January 25, 1990, Commission
meeting.
2.
On February 23, 1990, Anderson requested a stay regarding the same order.
3.
IC 4-21.5 and IC 13-4.1 apply to this proceeding.
4.
The Department of Natural Resources ("Department") is an agency as
defined in IC 4-21.5-1-3.
5.
On matters involving temporary relief, the administrative law judge is the
ultimate authority for the Department, 310 IAC 0.6-1-4.
6.
On matters involving stays, any order of the administrative law judge is an
interlocutory order entered pending the final determination and the and the ultimate authority for the Department is the
Commission since the subject matter of this controversy is a permit to mine
coal.
7.
Key West holds permit number S-00077 to conduct surface coal mining operations
in Vigo County.
8.
The criteria for granting temporary relief are found in IC 13-4.1-4-6.
9.
The criteria for granting a stay or a partial stay in environmental cases are a
balancing of the potential for harm to the Claimants, the burden placed on the permittee, the likelihood of success on the merits, and the
possibility of irreparable harm to the environment if stay is not granted.
10.
Serious economic impact on the permittee is a
consideration when granting a stay. It is not a consideration for granting or
denying temporary relief.
11.
The plan approved by the Commission on January 25, 1990, provided the
following:
a.
No further fly ash is to be brought on the permit area.
b.
The 40-45 thousand tons of fly ash currently stockpiled on the permit area may
be buried in a capsule like container.
c.
This container is to be constructed of compacted shale and is to be at least
95% of maximum dry density.
d.
The bottom of the container is to be 25 feet thick.
e.
The sides of the container are to be 75 feet thick.
f.
The top of the container is to be 5 feet thick and then is to be covered with subsoil,
topsoil, and vegetation at its approximate original contour.
g.
Four monitoring wells are to be installed.
h.
No bond on the area is to be released until the permittee
has demonstrated no harm will occur.
12.
Parts of the current stockpiles are stored on Vernon Anderson's property.
13.
Mr. Anderson has never indicated a desire that the ash remain there so
eventually the stock piles must be removed to return the property to its
approximate original contour.
14.
The container to hold the fly ash is being constructed on property owned by a
corporation which has interlocking management with Key West.
15.
Fly ash has a relatively heavy concentration of heavy metals.
16.
The fly ash in these particular stockpiles has a pH ranging from 12.0 to 12.9.
This is highly alkaline.
17.
The fly ash is an alkaline solid, which means that significant leeching of
heavy metals is unlikely unless the material is affected by acid and the pH
lowered to under 5.0.
18.
The pH of the soil and substructure surrounding the container is approximately
8.0.
19.
Fly ash is specifically exempted from consideration as a solid hazardous waste
as by the EPA (Ex.K).
20.
Fly ash does constitute a "toxic forming material" within the meaning
of 310 IAC 12-1-3. (Ex 9, page 7).
21.
IC 13-4.1-8-1 (14) requires toxic materials to be buried or otherwise disposed
of in a manner to prevent contamination of ground or surface water.
22.
The general flow of water in the subsurface of the permit area is away from the
[VOLUME 5, PAGE 142]
houses and wells.
23.
The area to the east of the mine is sometimes flooded.
24.
The closest area of possible fly ash storage to the Wabash River Valley aquifer
is over 250 feet and could be over 400 feet (ex. B).
25.
The closest possible storage location on the plan to an offsite well is over
1000 feet and could be as high as 1200 feet depending on the precise location
of the container in the approved storage area. (ex. B)
26.
Testimony of Key West's expert indicated there should be no seepage of any type
completely through the compacted shale container for over 650 years.
27.
Testimony of Dr. John Corrigan on behalf of Mrs. Beasley indicated his belief
that the container would postpone but not prevent leaching. His estimate was
that seepage would occur in 5 to 10 years.
28.
Dr. Corrigan also agreed that 25 and 75 foot compacted shale barriers are very
large in comparison to most landfills.
29.
Accordingly, the administrative law judge concludes that the fly ash burial
plan on property owned by persons involved in the mining operation and which,
by the evidence most favorable to the Claimants, will not cause contamination
for at least five years is a plan which does not cause imminent harm to the
environment.
30.
Further, the administrative law judge concludes that at this point, it is not
clear that the Claimants can prevail at a final hearing on the merits. While
they may eventually do so, no more harm will occur by storing the fly ash
underground in the container now under construction than by leaving it
indefinitely on the Anderson property and moving it a later date.[FOOTNOTE 1]
31.
Accordingly, the administrative law judge denies the requests by Claimant for
temporary relief and stay.
32.
These matters are now set for final hearing on the merits on May 31, 1990, at
9:30 AM in the commissioner's meeting room, Vigo County Courthouse Annex, Terre
Haute, Indiana.
FOOTNOTE
1. A major complaint by the citizens involved fugitive dust when the ash is
moved. The plan adequately addresses the minimization of dust by watering and
the complaints deal with enforcement, not the plan itself. Since the ash is
going to be moved anyway, this plan, on paper, provides more protection and
monitoring than movement to any site.