Content-Type: text/html
Cause #: 91-375r.v6.html
CADDNAR
Name: Peabody Coal Company v. Department of Natural Resources
Administrative Law Judge: Lucas
Attorneys: Joest; Spicker, DAG (VI 106)
Date: November 19, 1992
Order: Temporary relief from Notice of Violation #N21022-S-00216 is denied.
Findings of Fact: The department of natural resources ("Department") is an "agency" as defined in IC 4-21.5, sometimes referred to as the "administrative orders and procedures act" or "AOPA". 2. Peabody Coal Company ("PCC") conducts surface coal mining operations at its Lynnville Mine, North Millersburg Field, in Warrick County, Indiana, under permit number S-00216 issued pursuant to IC 13-4.1 and 310 IAC 12 (collectively "Indiana SMCRA"). 3. Indiana SMCRA is administered by the Department primarily through it division of reclamation (the "Division"). The executive and chief administrative officer for the Department is its director (the "Director"). IC 14-3-3-4. 4. On October 26, 1992, Division Reclamation Specialist, Christine Gerace (the "Inspector"), who is an authorized representative of the Director, issued notice of violation #N21022-S00216 (the "NOV'') to PCC. 5. The NOV cited as provisions of the rules and permit violated the following: (1) 310 IAC 12-3-4, Condition of Permit Part IV.M. (2) 310 IAC 12-5-16(d)(2)(vii). (3) 310 IAC 12-5-23. (4) 310 IAC 12-52-5(b). (5) 310 IAC 12-5-27. (6) 310 IAC 12-5-41. (7) 310 IAC 12-5-55.1(f). (8) 310 IAC 12-3-41. (9) 310 IAC 12-3-44. 6. 310 IAC 12-5-33 requires that drainage from acid-forming and toxic-forming spoil into ground water and surface water must be avoided by several different methods, among them the burying or treating of all spoil within a reasonable period of time. 7. 310 IAC 12-5-25 addresses the protection of ground water from the adverse impacts of surface mining activities. Subsection (b) states: To control the effects of mine drainage, pits, cuts, and other mine excavation or disturbances shall be located, designed, constructed, and utilized in such manner as to prevent or control discharge of acid, toxic, or otherwise harmful mine drainage waters into groundwater systems and to prevent adverse impacts on such groundwater systems or on approved postmining land uses. 8. Part IV.M(5) of Permit S-00216 states in pertinent part: To re-emphasize the commitments made in response to Questions 2, 3, and 4 above regarding the cover above the waste material Peabody Coal Company plans to bury coarse coal refuse in the active pit area as part of the normal pit progression. Coarse coal refuse will be disposed of in an environmentally safe and stable area and covered with a minimum of two (2) feet of inert material, unless an alternative plan is approved. 9. The NOV alleged that the following violation occurred at PCC's North Millersburg Field: Failure to dispose of coarse coal refuse according to the approved plan in the permit and failure to obtain approval from the Director prior to disposing of coarse coal refuse in proposed monofill cell E. 10. The NOV alleged that the violation occurred at "Monofill Cell E in Permit S-00216." 11. Coarse coal refuse consists of a mixture of rock, clay, pyrites, and other impurities removed from coal during activities at a coal preparation plant. In the vernacular of the coal mining industry, coarse coal refuse is often referred to as "gob". 12. Gob is associated with certain pollutants, principally acidity, iron, and other heavy metals. Gob must be properly disposed to avoid pollution of surface water and ground water. Great Lakes Cl. Comp. v. Department, 3 Caddnar 71 (1986). 13. PCC's Lynnville Mine consists of several Indiana SMCRA [Page (VI 107) begins] permit areas. Other permit areas at the mine include S-00020 (5900 Area) and S00274 (South Millersburg Field). 14. The gob disposed in the S-00216 permit area is generated by a coal preparation plant located in the S-00020 permit area. Gob generated by this coal preparation plant has also been disposed at other Lynnville Mine permit areas, including the S-00020 permit area. 15. Historically, gob has been disposed at the Lynnville Mine by burying it. some gob has been buried in the bottom of an active pit by placing the gob in the pit bottom after coal has been removed but before spoil from the next cut is deposited. Other gob has been disposed in excavations which were initially part of or connected to an active pit but which became separated from the active pit as the pit progressed. These disposals have occurred in incline ramps and in the ends of the remaining portions of a pit as the pit changed length or direction. A final cut refers to the last pit excavated in a series of pit progressions; and gob has also been disposed in final cuts. 16. The historic application of a technique for gob disposal at a mine, where the Division has acquiesced in the technique, suggests that an alternative plan may not reasonably be expected or required for the continued application of the technique. 17. The historic application of a technique for gob disposal at a mine bears faint relationship, however, to whether the terms of the permit, the rules, and the statute are satisfied. 18. Testimony in this proceeding contrasts markedly as to the potential environmental consequences associated with the disposal of gob in "monofill cell E". Whether water pollution will result in the future is a matter of genuine dispute between experts for PCC and the Division, both of whom have advanced degrees in geology and substantial experience in groundwater hydrology. i/ PCC's witness, Scott McGarvie, provided an opinion that the disposal would not cause surface or ground water pollution. The Division's expert, Ed Lusch, provided an opinion that the disposal posed a "high probability" for causing acid seeps into the Pigeon Creek floodway and could also cause acid mine drainage into the post-mining drainageway. Lusch testified concerning the sensitive topographical location of the gob disposal site: up slope from the Pigeon Creek floodway. Lusch also testified concerning potential problems caused by a fluctuating water table and the effects of oxidation, and he testified that acid seeps could develop downslope even after bond release. 19. The Inspector testified she has observed red and yellow water, white crusts on the surface, and the results of Hach kit testing, demonstrating a probability in the general area that gob has been allowed to oxidize. In addition, she found, in-connection with the presence of gob, acid mine drainage on the sediment basin south of the tipple area on permit S-00020. 20. PCC requested temporary relief from the NOV in a written petition filed with the division of hearings of the natural resources commission on October 29, 1992. 21. Temporary relief is governed by IC 13-4.1-2-1(d) and IC 13-4.1-118(e). An administrative law judge may grant temporary relief, under any prescribed conditions, if the applicant shows both of the following: (1) There is a substantial likelihood that the findings of the administrative law judge, concerning review of the notice of violation itself, will be favorable to the person requesting temporary relief. (2) 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. 22. The person seeking temporary relief has the burden of persuasion to establish entitlement to the relief. Dyer Enterprises, Inc. v. DNR, DOR, 6 Caddnar 1. See, also, IC 13-4.1-11-8(e). 23. PCC has the burden of persuasion to establish its entitlement to the temporary relief requested in this proceeding. In order to sustain the burden, PCC must show both of the following: (1) There is a substantial likelihood that the findings of the administrative law judge, when reviewing the NOV in Administrative Cause Number 92-374R, will be favorable to PCC. (2) 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. In this proceeding, the emphasis is upon the potential for harm to water resources. 24. The preponderance of evidence at hearing does not support a finding that a grant of 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. To the contrary, the evidence supports a conclusion that the disposal of gob in "Monofill cell E" poses a serious risk [Page (VI 108) begins] of harm to the quality of ground water and surface water. 25. No finding is made as to whether an alternative plan must be approved by the Director for the disposal of gob as desired by PCC in "Monofill cell E". The basis of the denial of temporary relief is that this practice does not appear to satisfy the existing mandate of Permit S-00216-- that gob be disposed "in an environmentally safe and stable area." citations in the NOV to 310 IAC 12-5-23 and 310 IAC 12-5-25(b) are appropriate. 26. PCC has not sustained its burden of proving entitlement to temporary relief under the evidence presented at hearing. The evidence does not demonstrate that a grant of temporary relief will not adversely affect the health or safety of the public. The evidence does not demonstrate that a grant of temporary relief will not cause significant, imminent environmental harm to water resources.
i/ The differences in perspective between Scott McGarvie and Ed Lusch reflect professional opinions which appear to have been achieved honestly and dispassionately. In observing the demeanors of all the witnesses, however, the testimony of Lusch was the most persuasive. Considerable weight was accorded to his testimony.