Temporary relief is granted to Peabody Coal Company from Notice of Violation N20424-S-216 until a final decision on the merits is rendered.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency responsible for the regulation of surface coal mining within the state.
4. Peabody Coal Company ("Peabody") holds numerous permits for the surface mining of coal in Indiana including permit number S-216 which allows the mining of coal at the Lynnville mine in Warrick County, Indiana.
5. On April 24, 1992, a duly authorized representative of the DNR issued notice of violation N20424-S-216 ("NOV'') to the Peabody Lynnville Mine.
6. The NOV contained two parts.
7. On May 11, 1992, Peabody filed a timely request for administrative review and request for temporary relief of part 2 of the NOV.
8. The parties agreed to extend the original abatement date of May 28, 1992, so that the temporary relief hearing could be held June 4, 1992.
9. The NOV was written for the failure of the mine to construct and maintain diversion B-B in accordance with the plans in the permit.
10. The abatement action required involved regrading the slopes of the ditch to 1.5:1 and seed and mulch the side slopes of the ditch to establish a protective vegetative cover.
11. The code provisions alleged to be violated are 310 IAC 12-3-4, 310 IAC 12-5-18(d) and 310 IAC 12-5-24(e).
12. 310 IAC 12-3-4 requires Peabody to mine within the terms of specifications of its permit; specifically, in this case to construct and maintain diversion B-B as provided in the plans and specifications of IBR #2.
13. 310 IAC 12-5-18(d) requires in part that a diversion and its appurtenant structures must be stable, provide protection against damage, and prevent suspended solids from entering streams outside the permit area.
14. 310 IAC 12-5-24(e) requires in part that diversion ditches created by construction be seeded and mulched and rills and gullies repaired and revegetated.
15. IC 13-4.1-11-8 sets forth the criteria governing temporary relief. To be entitled to temporary relief from the NOV, the mine must satisfy the following:
a. A due process hearing must be held in the locality of the permit area.
b. The mine must show there is a substantial likelihood of prevailing on the merits of the request for review.
c. A grant of temporary relief will not have an adverse affect on health or safety or not cause significant, imminent environmental harm.
16. The administrative law judge is the ultimate authority within the meaning of IC 4-21.5 over matters involving temporary relief.
17. The original S-216 permit provided for a diversion ditch with a side slope of 2:1 which corresponds to side slope of approximately 26 degrees.
18. A subsequent incidental boundary revision ("IBR") was approved which allowed ditch B-B(l) to have a side slope of 1.5:1. This corresponds to a slope of slightly less than 34 degrees.
19. During prior inspections, the inspector told Peabody employees the side slopes were too steep.
20. On April 24, 1992, during a routine inspection, the inspector used a clinometer to measure the side slopes at various points along the B-B(l) ditch.
21. The inspector discovered a number of readings along the east side of the ditch in excess of 40 degrees. A few readings on the west side of the ditch exceeded 35 degrees but the testimony of the inspector indicates she did not
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consider the west side, taken as a whole, to be out of compliance.
22. The purpose of the ditch in question is to prevent water from entering the pit. It is a temporary diversion.
23. As of the date of the NOV, the top of the bank was seeded and mulched but not the side slopes.
24. The water in the ditch flows into an old final cut impoundment which acts as a sediment pond, thus there is no possibility of suspended solids flowing off-site.
25. No top soil or subsoil is at risk at this time. The sides of the bank are spoil material and consolidated material.
26. The ditch will eventually be mined through and the side slopes will end up as pit spoil.
27. Peabody contends that the readings taken by both the mine and the inspector throughout the overall length of the ditch (approximately 3,200 feet) show an average slope of less than 34 degrees and therefore, the ditch generally complies with the design.
28. The DNR contends there are multiple readings on the east side in excess of 40 degrees and this shows non-compliance for portions of the ditch.
29. The evidence shows that the ditch carries out the purpose for which it was constructed.
30. Photographs of the site show that some of the ditch, particularly near the bottom is located in consolidated or partially consolidated material.
31. A cross section chosen at random that does not conform to the overall design does not mean the system was not constructed or maintained within the approved design.
32. Conversely, constructing a ditch in such a way that the first half mile of the ditch has side slopes of 25 degrees and the second half mile has side slopes of 40 degrees, an average of 32.5 degrees, would not conform to the design.
33. As in most construction cases, the doctrine of substantial performance finds an application.
34. Substantial performance generally means:
a. The structure is usable for the intended purpose,
b. The contractor did not willfully deviate from the plans and specifications, and
c. No harm will arise out of the failure to perform fully.
35. In this particular case, in light of IC 13-4.1-11-8, a hearing was held in the locality of the mine and no environmental harm will occur if temporary relief is granted.
36. As to the likelihood of success on the merits, the evidence introduced at the temporary relief hearing indicates some likelihood of success.
37. Whether or not there is an actual substantive violation depends an whether or not the ditch as constructed substantially conforms to the approved design on all appropriate segments of the ditch.
38. What is an appropriate segment to be measured is a matter best decided after a hearing on the merits and the final arguments there on.
39. Accordingly, the administrative law judge finds that temporary relief from the terms of abatement of the NOV can and should be granted.
40. This decision is consistent with Peabody v. DNR, 4 Caddnar 17, (1986) in which Judge Lucas granted temporary relief in a similar case. Judge Lucas found that a design drawing of a "typical cross-section" does not depict the precise configuration of the ditch but rather the essential characteristics of the entirety of the ditch. He further found that the ditch serves the purpose for which it was designed and the slopes on the whole were in substantial conformance with the "typical cross-section".