Content-Type: text/html 91-054r.v6.html

CADDNAR


[CITE: Peabody v. Department of Natural Resources, 6 CADDNAR 37 (1991)]

[VOLUME 6, PAGE 37]

Cause #: 91-054R
Caption: Peabody v. Department of Natural Resources
Administrative Law Judge: Teeguarden
Attorneys: Joest; Scott
Date: August 2, 1991

ORDER

Notice of violation N10206-S-00014, Part 1 of 2, is vacated.

FINDINGS OF FACT

1. At all times relevant to these proceedings, Peabody Coal Company ("Peabody") held surface coal mine permit S-00014 which allows surface coal mining at the Universal Mine.

2. Surface coal mining in Indiana is regulated by the Department of Natural Resources ("DNR"), usually through its Division of Reclamation ("DOR").

3. The DNR is an agency within the meaning of IC 4-21.5.

4. IC 13-4.1, IC 4-21.5, and 310 IAC 12 apply to these proceedings.

5. At the time this matter arose (February 1991), the Natural Resources Commission ("NRC") was the ultimate authority over all administrative appeals taken from DNR actions or decisions.

6. On July 1, 1991, IC 13-4.1-2-1(c) took effect.

7. IC 13-4.1-2-1(c) states as follows: Notwithstanding IC 14-3-32(a), IC 14-3-3-25, and any other law, the administrative law judge is the ultimate authority for the department for any administrative review proceeding under this article (IC 13-4.1), except for proceedings concerning the approval or disapproval of a permit application or permit renewal under IC 13-4.1-4-5 and proceedings for suspension or revocation of a permit under IC 13-4.1-11-6.

8. The wording of IC 13-4.1-2-1(c) makes it clear that as of July 1, 1991, the NRC does not have the power to issue a final order within the meaning of IC 4-21.5 on matters involving administrative reviews of notices of violation, since notices of violation are issued under IC 13-4.1-11-4.

9. This case involves an administrative review of a notice of violation.

10. The conclusion is thus drawn that the administrative law judge is the ultimate authority for DNR actions involving notices of violation issued under IC 13-4.1 for decisions issued on or after July 1, 1991.

11. On February 6, 1991, a duly authorized representative of the DNR/DOR issued a two part notice of violation (NOV) to Peabody for violations at the Universal Mine.

12. On February 22, 1991, Peabody filed a request for administrative review of part one of the two part NOV. Peabody did not request review of part two.

13. The NOV in question (Respondent's Exhibit A) listed the nature of the violation as "Failure to remove top soil as a separate layer from the area to be disturbed before any drilling, blasting, mining, or other disturbance."

14. The NOV in question listed the provisions violated as 310 IAC 12-5-12.1(a) and (b) and 310 IAC 12-34, condition of permit IVB(L) and (5),

15. The NOV in question also required the mine to "remove the spoil off of the topsoil and store in a place of removed topsoil."

16. 310 IAC 12-5-12.1(a) and (b) provide that: Sec 12.1 (a) Removal. All topsoil shall be removed as a separate layer from the area to be disturbed, and segregated.

(1) Where the topsoil is of insufficient quantity or of poor quality to sustain vegetation, the material approved by the commission or by the director as a topsoil substitute or supplement in accordance with paragraph (c) of this rule shall be removed separately from the area to be disturbed, and segregated.
(2) If the topsoil is less than six inches (6") thick, the permittee may remove the topsoil and unconsolidated materials immediately below the topsoil to a total depth of six inches (6") and treat the mixture as topsoil.
(3) Topsoil need not be removed:

(i) at sites disturbed only by power poles, signs, fence posts, electrical substations,

[VOLUME 6, PAGE 38]

transformers and switchboxes, explosives magazines, temporary buildings on skids, topsoil stockpiles, culvert installation, cable routes, cable storage areas, powerline cable suspension towers or "horses", pumps, pump hoses and pipelines; and
(ii) with the director's approval, for minor disturbances which will not permanently destroy the existing vegetation and will not cause erosion.

(b) Timing. All material to be removed under this rule shall be removed after the vegetative cover that would interfere with its removal and use is cleared from the area to be disturbed, but before any drilling, blasting, mining or other disturbance, except those disturbances described in paragraph (a)(3) of this rule, takes place.

17. 310 IAC 12-3-4 require surface coal mines to conduct operations in accordance with their permits.

18. Part IVB (1) and (5) of Peabody's permit (Respondent's Exhibit C) discusses the thickness of topsoil to be removed and segregated and the timing thereof.

19. "Topsoil" is a defined term in 310 IAC and is defined as the "A soil horizon layer of the three (3) major soil horizons".

20. 310 IAC 12-1-3 further defines the "A horizon" as "the uppermost mineral layer, often called the surface soil. It is the part of the soil in which organic matter is most abundant, and leaching of soluble or suspended particles is typically the greatest".

21. The NOV arose from "dipping" a sediment pond.

22. Peabody cleaned out a sediment pond and placed the spoil (material removed from the pond) on the bank of the pond on top of the existing soil.

23. Normally, this would constitute a topsoil violation of the type described in the NOV.

24. In this particular case, however, the uncontroverted testimony is that the area in question had been previously mined prior to May 3, 1978.[FOOTNOTE 1]

25. This testimony also shows that prior to May 3, 1978, the A horizon (and B and C horizons) were not segregated and ended up in the bottom of the pit during the mining operation.

26. The permit application contains a soils map and an environmental resources map by Peabody in 1984 which show the area in question was previously mined. (Claimant's Exhibit 1 and Respondent's Exhibit E)

27. The application also indicated that no topsoil exists on previously mined areas (Respondent's Exhibit D) and the NRC presumably accepted that fact when it granted the permit without amending or conditioning that section of the permit.

28. The uncontroverted evidence also shows that the surface material in this area consisted of "graded cast overburden" prior to placement of the pond spoil.

29. No evidence was presented that would indicate the new spoil was "toxic forming" within the meaning of IC 13-4.1 and 310 IAC 12 or the new spoil was substantially different than the material it covered.

30. As of the day of the hearing, the spoil was supporting similar vegetation as the covered spoil had supported before the pond cleaning.

31. In short, the naturally occurring A horizon soil in this area was buried during mining prior to 1978. The soil present at the time of this permit application was graded cast overburden placed during prior mining operations. The material placed on top of the bank from the pond cleaning was material similar in nature to the material already present. The new material is supporting vegetation.

32. Generally, it would serve no useful purpose under Indiana or Federal surface mining laws to order a mine to remove, segregate, and save poor quality spoil in a previously mined area in order to replace it with another poor quality spoil.

33. Accordingly, the administrative law judge finds that since there was not topsoil on the affected area, Peabody cannot be cited for failing to remove topsoil before mining or disturbing the area and thus the NOV should be vacated.

34. The Department aggressively argues the point that the actions of Peabody violate mining regulations (and the permit) on "best available material" and alternative material".

35.The Department may be correct in this contention, however, it is immaterial.

36. It is axiomatic that an enforcement action which subjects the offending party to a financial penalty (and possibly later a cessation order or show cause order) must specify, the action (or non-action) causing the violation and the law(s) which were violated.

37. This principle has been incorporated into prior DNR cases by the ultimate authority. In Peabody v. Department, 3 caddnar 96 (1987), the ultimate authority held that an NOV cannot be sustained on any grounds other than those for which it was written.

38. All parts of the NOV in question involve topsoil removal and segregation. The Department cannot change its entire theory of the NOV during and after the hearing.

FOOTNOTE

1. This date is significant because it is the first day the Federal Surface Mining Control and Reclamation Act went into effect and thus the first

[VOLUME 6, PAGE 39]

time topsoil was required to be preserved and protected.