[NOTE: FOERTSCH TOOK ADMINISTRATIVE REVIEW. ON 9/13/99, ROBERT L. ARTHUR, JUDGE OF THE DAVIESS COUNTY CIRCUIT COURT SIGNED AN ORDER AFFIRMING THE DECISION OF THE NRC. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT OF THE DAVIESS CIRCUIT COURT FOLLOW ADMINISTRATIVE FINDINGS.]
The approval of surface coal mining permit S-312-1 is affirmed subject to the following additional permit conditions:
a. Once coal combustion waste disposal has commenced on a parcel of leased property, the operator shall file an affidavit with the Daviess County Recorder which contains the legal description of the property and a statement that coal combustion waste has been disposed on the property. The affidavit shall also include a statement that information as to the location of the disposal and other relevant information may be obtained from the Division of Reclamation of the Indiana Department of Natural Resources.
b. The total volume of coal combustion waste approved for disposal, as specified on page one of the permit S-312-1, is reduced by fifty percent (50%).
c. An application for final bond release must show the area addressed by the application has completely recharged and groundwater flow has stabilized before the application can be approved.
d. No coal combustion waste can be disposed of on site until the operator provides the department with base line testing results of groundwater for 33 parameters which are valid and meaningful and which are not considered flawed by the laboratory.
FINDINGS OF FACT
1. The following abbreviations will be used in this decision:
a. "DNR" refers to the Indiana Department of Natural Resources.
b. "NRC" refers to the Indiana Natural Resources Commission.
c. "HEC" refers to the Hoosier Environmental Council.
d. "Foertsch" refers to Foertsch Construction Company, Inc.
e. "Permit" refers to the S-312-1 permit.
f. "CCW" refers to coal combustion waste including fly ash, bottom ash, scrubber sludge, and any other residue that occurs when coal is burned in large quantities as a power source.[FOOTNOTE 1]
g. "I-SMCRA" refers to IC 14-34 and 310 IAC 12, the Indiana Surface Coal Mining Act and related rules.
h. "F-SMCRA" refers to 30 U.S.C. 6901, et seq., and 30 CFR, 700 et seq. the Federal Surface Coal Mining Act and related regulations.
i. "92-1" refers to memorandum 92-1 adopted as a resolution by the NRC in April of 1992.
j. "IDEM" refers to the Indiana Department of Environmental Management.
k. "EPA" refers to the U.S. Environmental Protection Agency.
l. "RCRA" refers to 42 U.S.C. 6901 et seq., the Federal Resource Conservation and Recovery Act.
m. "Legislature" refers to the Indiana State Legislature.
n. "CHIA" refers to the cumulative hydrological impact assessment.
o. "Solar" refers to Solar Sources, Inc. and to the case of Hoosier Environmental Council v DNR and Solar Sources, Inc., 7 Caddnar 38 (1995) which is the one prior CCW disposal case decided by the DNR which involves 92-1.
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p. "DOR" refers to the Division of Reclamation of the DNR.
q. "CCW1", "CCW2", etc refer to monitoring wells in the vicinity of the CCW disposal area.
r. "DAF" refers to dilution and attenuation factors.
s. "TDS" refers to total dissolved solids.
t. "NPDES" refers to National Pollutant Discharge Elimination Systems.
u. "ISDH" refers to the Indiana State Department of Health.
v. "PDWS" refers to primary drinking water standards published by the EPA.
w. "SDWS" refers to secondary drinking water standards published by the EPA.
x. "RCRA metals" refers to tract metals found in coal and CCW.
2. The DNR is an agency within the meaning of IC 4-21.5.
3. IC 4-21.5 and I-SMCRA apply to these proceedings.
4. The DNR is the state agency responsible for the regulation of Surface Coal Mining operations in Indiana.
5. The DNR regulates surface coal mining pursuant to a primacy agreement with OSM and must conform to F-SMCRA as well as I-SMCRA.
6. The DOR is the division of the DNR directly responsible for the regulation of surface coal mining.
7. At all times relevant to these proceedings, Foertsch held surface coal mine permit S-312 issued by the DNR which allowed the surface mining of coal at the Little Sandy #10 mine in Daviess County, Indiana.
8. HEC is a statewide coalition of individuals and groups interested in protecting the environment.
9. At some point, Foertsch requested an amendment of the S-312 permit (S-312-1) to allow the back hauling and disposal of CCW from a power company on the mine site both in monofills and layered with spoil.
10. On or about May 10, 1995, the DNR approved the CCW permit.
11. On June 9, 1996, HEC petitioned for administrative review.
12. The result of the administrative review petition was twelve days of testimony from highly qualified geologists, hydrogeologists, chemists, geochemists, and toxicologists and approximately 275 pages of briefs.
13. The evidence and briefs present the following issues to be decided:
a. Whether or not the petition for review was timely filed.
b. Whether or not collateral estoppel applies to a number of issues.
c. Whether or not there is an adequate characterization of pre-existing geological and hydrological conditions.
d. Whether or not the monitoring wells are sufficient in number, construction, and design.
e. Whether or not there is adequate isolation and separation of the CCW to prevent damage from occurring.
f. Whether or not the lack of compliance criteria should invalidate the permit.
g. Whether or not there should be a mechanism in the permit to restrict future land use or caution future buyers.
h. Whether or not the amount of CCW allowed to be back filled should bear some relationship to the amount of coal extracted.
i. Whether or not some mechanism must be in place to require long term monitoring of the site.
j. Whether or not the testing of the proposed waste was adequate.
[sic] 13. The topic of CCW disposal in Indiana has had an active legislative history.
14. CCW meets the very broad definition of solid waste found in RCRA that was passed in 1976.
15. EPA was given general authority to regulate solid wastes.
16. RCRA and EPA went on to break to solid wastes into hazardous and non-hazardous classifications.
17. CCW is specifically exempted from being considered as a hazardous waste. See 40 CFR 261.4(b) and 58 Fed. Reg. 42466 (August 9, 1993)
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where EPA recently reaffirmed its decision to exclude CCW from consideration as a hazardous waste.
18. RCRA has been implemented in Indiana through IDEM and the Solid Waste Management Board (IC 13.7 and 329 IAC 2) and thus IDEM was responsible for CCW disposal at the time of its creation.
19. In 1988, the legislature decided to make a change and enacted IC 13-1-12-9, which prohibited IDEM from regulating CCW disposal on a site regulated under I-SMCRA.
20. The DNR commenced writing rules to govern CCW disposal, but ultimately decided to treat CCW disposal applications under existing I-SMCRA provisions.
21. In April of 1992, after listening to a number of comments in March of 1992, the NRC approved 92-1 which set forth policies and procedures which would be used in considering CCW disposal permits.
22. As discussed in Solar, a non-rule approach is a legal way to approach the problem.
23. I-SMCRA must be no less effective than F-SMCRA.
24. F-SMCRA contains no provisions specifically governing CCW disposal, so that approving permits to dispose of CCW on active mine sites can be based on the existing I-SMCRA (and F-SMCRA) requirements.
25. Also, the controversy under consideration here deals only with the approval of S-312-1, the CCW disposal amendment to the S-312 permit.
26. The S-312 permit was previously approved, and no petition for administrative review was filed.
27. Foertsch, then, possesses a valid, active permit to mine coal under the terms and conditions of the S-312 permit and the information presented in the S-312 permit application must be presumed sufficient for a surface mining operation.
28. This does not mean, however, that the information presented in the S-312 permit application must be presumed adequate or sufficient for purposes of issuing S-312-1.
29. CCW generally contains trace RCRA metals which were originally were found in the coal seam and not incinerated at the power plant.
30. CCW is generally basic in nature, and some forms can have a pH exceeding 12.0 (which is highly corrosive and caustic).
31. HEC's major concerns deal with the effect of stored CCW on area ground water and surface water.
32. As stated in the Solar decision, an examination of CCW storage must consider the following:
a. What RCRA metals and other water quality degrading materials are present?
b. What quantity of each potentially harmful element is present?
c. What is the mobility of the potentially harmful materials?
d. Are any materials present in the spoil that will react with the CCW in such a way as to cause a problem?
A. DID HEC FILE A TIMELY PETITION FOR REVIEW?
33. Foertsch seeks to preserve an issue recently decided by the NRC and by the Dubois County Circuit Court.
34. On May 10, 1995, the DNR distributed letters notifying interested parties that the permit was approved.
35. On June 9, 1996, HEC filed its petition for administrative review which on its face appears to be easily within the 30 day time limit required by I-SMCRA and the three day mailing addition provided by IC 4-21.5.
36. The petition, however, was signed by Jeffrey Stant, executive director.
37. Stant is not an attorney.
38. Attorney Max Goodwin's name first appears in the hearings division record on June 15, 1995 when he appeared for HEC during a telephone conference.
39. Foertsch thus raises an issue involving the validity of a pleading filed by a layman who is representing someone other than himself.
40. The NRC has twice ruled that a lay person may represent a group in an administrative adjudication.
41. The most recent of these rulings occurred in HEC v. DNR and Phoenix Natural Resources, Inc. 1995, Administrative Cause Number 95-221R.
42. Unlike the NRC ruling in the first matter, the ruling in Phoenix was challenged on judicial review and was affirmed by the Dubois County Circuit Court on September 3, 1996.
43. Eventually a decision by the appellate judiciary will be received which will either uphold the NRC decision allowing lay
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representation or require organizations participating in NRC matters brought under IC 4-21.5 to appear by counsel.
44. If the ultimate result in the Phoenix case requires representation, the recent case of Professional Laminate and Millwork, Inc. v. B & R Enterprises (Ind. App. 1995), 651 N.E.2d 1153, makes it clear that a pleading or motion signed by a non-attorney is a nullity and cannot be considered by the court.
45. If the Phoenix matter is decided adversely to HEC, then the petition for administrative review here must be considered null and void and this matter must be dismissed.
46. In the absence of a binding, precedential court ruling to the contrary on the issue of attorney representation, the petition for review must be considered timely.
B. DOES COLLATERAL ESTOPPEL APPLY TO A NUMBER OF THE ISSUES RAISED HEC?
47. Both Foertsch and the DNR vigorously contend that the decision in Solar precludes HEC from litigating a number of issues in this case.
48. Both Foertsch and DNR cite numerous cases which set forth the application of the principle of collateral estoppel in administrative cases and the criteria to be examined.
49. There is no doubt that the general principle of res judicata and collateral estoppel apply to NRC adjudications. See South Bond Federation of Teachers v. National Education Association South Bend (Ind. App. 1979), 389 N.E.2d 23.
50. Inherent in any collateral estoppel or res judicata argument is the need for a similar factual situation.
51. There are a few matters where collateral estoppel or res judicata could apply.
52. There are, however, some obvious differences between the Solar permit and the permit application here. A listing of the differences, which is not intended to be all inclusive, is as follows:
a. Solar had been actively mining the permit area in question for nine or ten years and thus could produce testimony of its mine engineer as to actual conditions at the site; the permit in Foertsch involves a new mining area with no actual mining history.
b. Solar owned all of the acreage in its permit area whereas all of the land in the Foertsch permit area is leased.
c. The Solar permit, while allowing the disposal of CCW in large quantities, did not allow the disposal of CCW in a proportion greatly exceeding the amount of ash that would be generated from the coal. The Foertsch permit allows virtually a 1:1 replacement in volume and tonnage.
d. The Solar permit had only one domestic well in close proximity to the permit area and that property could easily be served by a municipal water works. The Foertsch permit has a number of domestic wells nearby and no municipal water source.
e. Solar produced expert testimony from its mine engineer relating to why this permit area was the best of its eight active mine sites for CCW disposal. No such testimony was presented by Foertsch.
f. In addition to the ten year on-site mining history in Solar, the mining plancalled for active mining to continue for approximately 15 more years and reclamation activities to continue another five to ten years beyond that time. In Foertsch, there is no evidence that the mining company will remain on site for that length of time after CCW disposal commences.
53. Further, while judicial review was taken in the Solar case, the ultimate result was based on procedural grounds and not on the merits.
54. For the reasons listed in paragraphs 52 and 53, collateral estoppel must be applied very cautiously.
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C. DO THE PERMIT APPLICATIONS PRESENT ADEQUATE CHARACTERIZATION OF PRE-EXISTING GEOLOGICAL AND HYDROLOGICAL DATA?
55. The DNR decision to grant the permit was not only based on the S-312 and S-312-1 applications but also the S-298 permit application submitted by Solar a few years earlier.
56. HEC produced a number of qualified expert witnesses who attacked the adequacy of the information regarding pre-existing conditions.
57. The trier of fact agrees with HEC's witnesses that the site characterization would not be adequate to commence a scholarly research project.
58. However, Foertsch is operating a coal mine, not running a university sponsored research project.
59. One unchallenged factual statement made by at least two witnesses is that this area of Daviess County is the most heavily mined area in Indiana and one of the most mined areas in the midwest.
60. Coal mining, both surface and underground in this area, has gone on for years and commenced long before I-SMCRA and F-SMCRA were enacted.
61. In unmined areas of the Illinois coal basin (which includes southwestern Indiana), the general geology involves topsoil and subsoil on top of layers of sandstone, shale, limestone, and underclays with coal seams found in layers in between.
62. Once that gasoline powered machinery and explosives became readily available, the surface mining of coal increased dramatically.
63. In unmined areas the regional geology consists of layers of different permeability.
64. Ground water flows through the path of least resistance.
65. In the unmined geology, the less permeable layers such as the sandstones and limestones are resistant to the passage of ground water except through cracks and faults where ground water will flow easily and rapidly.
66. In the geology in the unmined Daviess County area, the strata of least resistance are the coal seams.
67. Once surface mining commences, the following sequence takes place:
a. Top soil and subsoil are removed.
b. Explosive changes are placed in the overburden.
c. The strata above the coal seam consisting of limestone, shale, and /or sandstone area blown to bits thus creating a mass of rubble.
d. The rubble is removed from above the coal seam.
e. The coal is extracted.
f. The sequence continues onward and as the pit progresses, rubble from future blasts is used to fill in the mined areas of the pit.
g. Mines currently operating then regrade and redistribute topsoil and subsoil and restore the land as provided in the permit.
h. Mines which were operating prior to regulation by F-SMCRA and I-SMCRA (May 1978) quite often left the pit without regrading and top soiling.
68. In heavily mined areas such as central Daviess County, the surrounding geology consists of the same materials as the unmined areas but in a substantially different form.
69. The non-permeable materials are still present, but they are present in boulder form and not as layers.
70. Groundwater will then move through the entire system much more easily than before because of all the voids created by piling the rocks on top of each other.
71. Groundwater will not flow through separate layers (such as coal seams) in the post-mining scenario.
72. Additionally, a mining technique universally employed in surface mining in the Illinois coal basin is the massive pumping of groundwater to prevent the saturation of the floor of the pit.
73. Exhibit F includes a map of the area which shows approximately ten surface mines close to this one which have been permitted under I-SMCRA or F-SMCRA. An unknown number operated prior to that time.
74. The bottom line is that the whole Cannelburg area has been subjected to the destruction of overburden and massive pumping of groundwater long before this permit application was submitted.
75. In addition to being altered by the volume of pumping, groundwater flow in this area will flow from unmined areas (through layers of overburden of
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conductivity) into a mined area which will co-mingle the layers of water. As the groundwater then flows from the mined area to an unmined area, it will leave through the path of least resistance which at first will be voids and fissures in the unmined overburden and then through the more permeable layers.
76. The net effect of this permit will be to add more property to the "mined" scenerio.
77. The information submitted in the S-312 and 312-1 permits and the S-298 permit adequately shows the existing condition of geology and groundwater information on or near the permit area. This information could likely change as other mining continues but it represents good information at the time it was collected.[FOOTNOTE 2]
78. The conditions surrounding the permit area will change due to other mining whether or not the S-312 permit area is ever mined.
79. There is no reason to deny the permit because of inadequate premining geological and hydrological data because of the amount of mining which has already occurred and totally disrupted the true "permitting" characteristics of the area.
D. ARE THE MONITORING WELLS ADEQUATE IN NUMBER, CONSTRUCTION, AND DESIGN?
80. HEC again attacks the approval of the monitoring well system used here.
81. HEC seeks to require the use of wells which monitor specific zones rather than the collection wells which are used in connection with this permit.
82. Interesting and highly pertinent testimony was provided by Konrad Banaszak, a consultant geochemist.
83. Before joining his present employer, Banaszak worked two years for OSM in the early years of F-SMCRA and seven years for USGS.
84. One of his primary duties at OSM was to examine the various options for groundwater monitoring.
85. OSM considered "zone" monitoring and decided to use collection wells in the Illinois-Indiana coal fields for the simple reasons that most domestic wells in these areas are collection wells which draw water from several zones, no one of which could assure an adequate water supply.
86. OSM decided early in the program that using monitoring wells which resemble the region's domestic wells gave the most useful information.
87. As to the testimony of the witness for HEC who indicated that designing and constructing wells which would create a connection between water carrying zones and allow bad water to mix with good, surface mining in general caused the mixing of water from various zones.
88. Any active mine site will destroy the zone in the area of active mining, so that post-mining, commingled groundwater will be leaving the area.
89. Given the extent of mining in the Cannelburg area over a long period of time, any problem that can occur by connecting the zones has taken place and is currently present with or without the issuance of this permit.
90. The location of monitoring wells, however, is a different story.
91. Trying to determine groundwater flow in heavily mined areas creates somewhat of a paradox.
92. In some respects, groundwater flow in an area like Cannelburg is relatively simple.
93. As mentioned previously, surface mining operations pump massive quantities of groundwater from the active mining area in order to keep the pit dry.
94. This pumping creates an artificially dry "bowl" in the area of mining.
95. The bowl will generally move with the pit.
96. As the pumping moves further and further away, a new area becomes dewatered and the old area begins to resaturate again. This is known as "recharge".
97. Until all pumping permanently stops, total recharge of the entire area cannot occur although if a mining area is large enough, some of the regions mined early in the operation may be totally recharged by the time mining ends.
98. Until total recharge occurs, the groundwater flow will be toward the sink created by pumping; that is, mother nature will keep trying to fill the bowl.
99. Most of the testimony about the length of time it takes for total recharge to occur after mining commences estimated that time is best measured in decades rather than months or years.
100. Further, in the Cannelburg area, there are a number of active mines which are also pumping and there is some evidence in the record of the pumping of groundwater for irrigation purposes.
101. While the flow of
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groundwater during mining and several years thereafter is easy to determine, (inward migration), the flow after recharge is really impossible to predict.
102. If other mines are still operating closely in the area, the migration off site will be towards the bowl created by that pumping.
103. In the event of significant pumping for agricultural purposes close by, migration would be towards that (those) particular sink(s).
104. Even in the absence of large scale pumping, the answer is not particularly simple.
105. Examining pre-mining data at the site is not necessarily helpful because it could easily be affected by current pumping at other sites.
106. Also, post-mining ground water flow will be affected somewhat by post-mining topography of the active mines in the area.
107. In this permit as approved, it is possible to increase the elevations of the mined areas in the neighborhood of ten feet.[FOOTNOTE 3]
108. Other nearby mines may have significant post-mining contour changes including ponds.
109. Post-mining ground water flow directions and recharge time at this site are merely educated guesses which may be less than accurate when examined 50 years from now.
110. For this reason, it is essential to have a monitoring system which surrounds the area and can provide early detection of a leachate problem.[FOOTNOTE 4]
111. In Solar, a monitoring well was to be placed in the first monofill as soon as mining had moved far enough away to allow its construction and placement.
112. Such a well demonstrates exactly what will happen when the CCW is exposed to groundwater on site.
113. A monitoring well placed in the monofill is necessary to provide early information about the leachate, and is required by this permit. See page five of the disposal plan in the permit.
114. This information can be kept and compared with later results from other wells to establish whether or not DAF is having the desired effect.
115. The permit provides for five other monitoring wells scattered around the permit area.
116. Well CCW #5 is located in the northeast corner of the permit and will monitor flow out of the disposal area towards Aikman Creek.
117. Well CCW #3 will monitor any flow which heads east from monofills 1, 2, and 3.
118. Well CCW #4 is just outside the southeast corner of the permit area and reasonably close to Monofill #4.
119. Well CCW #1 is located in the southwest part of the permit area in a position to intercept flow south from Monofill #3.
120. Well CCW #2 is located west of Monofill #1.
121. CCW #1, #2, and #3 already exist and are being monitored. CCW #4 and #5 will be installed prior to CCW disposal.
122. Additionally, all surface water is monitored.
123. The monitoring of surface water is important because of the early groundwater flow pattern.
124. Groundwater pumped in connection with the pit progression is pumped to surface ponds.
125. Once CCW is stored in a mined area, as the mining moves away, groundwater will move from outside the pumped area into the CCW area and towards the sink.
126. This means the groundwater which has been exposed to CCW will eventually be migrate to an area where it is pumped to a surface pond.
127. The surface monitoring will also show the effect of DAF.
128. Additionally, there are nine domestic wells and the Toy monitoring well near Aikman creek which will be monitored periodically. See Attachment C.1 of the permit.[FOOTNOTE 5]
129. The nine domestic wells are located in all parts of the permit area and in the event that the groundwater flows in such a way to avoid the monitoring wells, it will still be monitored through wells number 10, 11, 12, 17 and 18 and the Toy well. See operations map 3A.
130. The monitoring of the six CCW wells plus the domestic wells is adequate.
E. ARE THE CCW STORAGE AREAS ADEQUATELY ISOLATED AND SEPARATED SO AS TO PREVENT DAMAGE?
131. HEC contends that the permit does not require sufficient isolation and separation of CCW storage areas so as to prevent damage.
132. Specifically, HEC objects to the lack of physical barriers to prevent substantial tonnage of CCW from groundwater exposure.
133. CCW in general is potentially a toxic forming material much of which has a pH in excess of 11.0.
134. Witnesses for both HEC and Foertsch testified that groundwater
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from CCW disposal sites has caused serious contamination at several sites among the country. See Exhibit 27.
135. 310 IAC 12-5-134 defines "toxic-forming materials" as ". . . earth materials or wastes which if acted upon by air, water, weathering, or biological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water."
136. Dr. Spacie's testimony dealing with the effects of high pH and long term, low level RCRA metal exposure on fish is more than enough evidence to require special handling of this CCW as if it were a toxic material.
137. HEC contends that IC 13-4.1-8-1(10) requires CCW to be stored under such circumstance as water will not come into contact with the ash.
138. That is just one way of dealing with toxic forming materials.
139. IC 13-4.1-8-1(14) provides other methods of preventing contamination plus 310 IAC 12-5-6, 310 IAC 12-5-23, and 310 IAC 5-12-25 also discuss toxic mine drainage and require selective placement, minimizing contamination of ground water, and minimizing adverse effects.
140. The permit provides for five monofills and six small areas of CCW layered with spoil.
141. Only monofill four is within 250 feet of the permit boundary or a surface impoundment.
142. Only well #10 is within 500 feet of a CCW disposal area.
143. A substantial spoil barrier will be next to all proposed CCW storage areas.
144. The migration of groundwater through the CCW will be subject to DAF.
145. While the parties seriously dispute the effect of DAF, no one disagrees that there will be some DAF effect on leachate.
146. Subject to the findings made in conjunction with Issue H, there has been insufficient evidence to show the spacing and buffers do not adequately minimize contamination.
F. DOES THE FACT THAT THERE ARE NO ESTABLISHED THRESHOLD DANGER STANDARD OR MINIMUM COMPLIANCE STANDARD FOR THE MONITORING SAMPLES INVALIDATE THE PERMIT?
147. This issue primarily deals with groundwater; surface water impoundments do have standards imposed both by NPDES permits and 327 IAC 2-1-6.
148. Both IDEM and ISDH have statutory jurisdiction to deal with health related water quality problems. See IC 13-1-3 and IC 16-19-3. The DNR and NRC are secondary agencies when it comes to setting water quality standards and cannot realistically impose their own standards in a permit review or adjudication of a permit review.[FOOTNOTE 6]
149. HEC makes numerous references to the PDWS and emphasizes that leachate exceeds PDWS in certain categories.
150. The PDWS is not the appropriate standard for well water.
151. The PDWS is a standard that public utilities in the water distribution business must meet.
152. Public water supply companies have extensive treatment facilities at their disposal and can be expected to meet exceedingly high standards in the heavily treated water they dispense to customers.
153. No one has ever indicated that a drilled well should be declared unsafe for human use because water samples show the well does not meet PDWS.[FOOTNOTE 7]
154. EPA has published and distributed SDWS.
155. SDWS is a guideline; it in no way is mandatory.
156. SDWS includes more elements than the RCRA metals and includes topics such as suspended solids and odors.
157. Again, permit S-312, Section II D 7 A lists a number of active wells in the area that do not meet SDWS standards for sulfates, iron, manganese and TDS.
158. The fact that a well does not meet SDWS does not mean it is unusable for household consumption.
159. Of some interest is the health advisory standards published by DPA. See page 8 of Exhibit S-7.
160. If EPA, IDEM, or ISDH adopt an absolute standard for home wells, then mines will be under a duty not to degrade drinking water to that level; until one of these agencies adopts such a rule, the DNR and NRC should require monitoring and take an active interest in the problem if any of the health related elements show a steadily increasing presence from the baseline data.[FOOTNOTE 8]
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G. SHOULD THERE BE A MECHANISM IN THE PERMIT TO RESTRICT FUTURE LAND USE OR CAUTION FUTURE PURCHASERS OF THE PRESENCE OF CCW ON THE PROPERTY?
161. In the Solar case, the NRC did not directly deal with this issue primarily for the reason that Solar was the sole owner of the permit property and future transfers of the property would presumably include a chain of title with a warranty deed from Solar.
162. In the case at bar, Foertsch owns none of the property and is relying on leases and consents.
163. HEC voices concern for an unknowing party who purchases three acres decades from now for his dream home and discovers his well is placed in a CCW monofill.
164. The NRC should require disclosure of CCW disposal to future buyers.
165. One way of accomplishing this goal is to place a condition on the permit requiring the mine to record an affidavit with respect to the fact that CCW has been stored on the property after storage has commenced for every coal lease involved in the disposal. Such a filing should also contain a statement that the exact location and other information can be obtained from the DNR.[FOOTNOTE 9]
H. SHOULD THE AMOUNT OF CCW DISPOSAL ALLOWED BEAR SOME RELATIONSHIP TO THE AMOUNT OF COAL MINED?
166. The permit provides for the disposal of CCW at the rate of one ton of CCW for each ton of coal removed, a 1:1 ratio by weight. See attachment A3, page 1 of S-312-1.
167. The amount of ash and related CCW produced during the combustion process can vary considerably depending on the chemical and thermal quality of the coal and the additives used to meet clean air act requirements.
168. The one piece of evidence introduced in this case that quantifies that amount is found in Exhibit G which indicates that the total amount of by products from power plant combustion is about 25% of the tonnage burned.[FOOTNOTE 10]
169. As approved, the permit allows approximately four times the RCRA elements to be returned to the mine site as were originally present in the coal.
170. Also, the CCW has a much higher pH than the coal which was extracted so the permit allows the replacement of a generally neutral substance with an equal volume of highly basic materials.
171. In short, the purpose of the permit as issued looks to be a CCW disposal permit rather than primarily a coal production permit.[FOOTNOTE 11]
172. Further, the NRC minutes of March and April of 1992 at which 92-1 was discussed and approved leave some doubt as to whether or not the NRC ever considered the possibility of large scale disposal of CCW in pits and layers.
173. The placement of considerably more trace metals on the mine site, even if the elements are not particularly mobile, is creating a potential long term hazard.[FOOTNOTE 12]
174. The addition of a large number of hydroxide ions (high pH) into the mine site is also an open invitation to a problem, especially with respect to biota.
175. Spacie gave compelling testimony as to the long-term effects of exposure to small amounts of trace metals on fish and the effects of high pH.
176. Without doubt, DAF will have an effect on leachate both with respect to trace metals and adsorption of hydroxide ions as leachate migrates through mine spoil and unmined areas.
177. However, it is not clear from the evidence that the placement of considerably more trace metals back on-site than were removed from the site will not cause problems. Further, the massive increase in the number of hydroxide ions resulting from a l : 1 replacement of coal with CCW taxes the natural environment's capabilities to neutralize the resultant leachate.
178. There is a limit to the spoil's capacity to react chemically with the trace metals. That limit is much less likely to be exceeded if the amount of ash is generally equivalent to that generated from the coal which was removed.
179. In Solar, findings were made dealing with the likely formation of ettringite, a cement-like material which would bind the tract metals.
180. Ettringite is likely to form in areas of this permit. On cross examination, Hassett indicated, however, that the substance starts to
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become unstable and break down when the pH drops to 11.5 or less.
181. Constant exposure to a mildly basic environment and neutral to slightly basic groundwater will eventually cause a breakdown of the high pH ettringite.
182. The slow release of RCRA metals from the deteriorating concrete - like material may help avoid major problems with area wells by giving DAF a longer time to affect lower concentration. It would create a major problem, however, if the drainage eventually reaches Aikman Creek.
183. 92-1 was adopted to operate in conjunction with mining permits, not to develop a major CCW disposal site.
184. If the primary purpose of a CCW permit amendment is disposal, IDEM standards should be used.
185. Disposal pursuant to 92-1 should be restricted to an amount approximately equal to the ash created by the coal removed or in this case, approximately 25% of the total disposal tonnage approved in this permit.
I. SHOULD (AND CAN) THE DNR REQUIRE LONG-TERM MONITORING OF THE SITE?
186. In the Solar decision, the NRC concluded that requiring long term monitoring of a CCW disposal site was outside the scope of its authority and would require a legislative fix.
187. While the law remains unchanged, testimony by the DNR hydrologist may lead to a resolution of this potential problem.
188. Because of the length of time it takes for recharge of a mined area plus the length of time that it takes for leachate to migrate, HEC has a valid concern that the DNR will release the final bond and lose control over the property and the mine before any problem can occur.
189. In Solar, this issue was not a huge problem since disposal commenced in 1995 and under the current mining plan, final bond release would not occur prior to 2015 so that significant recharge and migration would have occurred in the vicinity of the first two monofills.
190. In his testimony on cross examination during day seven in this case, the DNR staff hydrologist discussed his opinion dealing with eligibility of the property for phase III (final) bond release.
191. The hydrologist indicated that he believed that full recharge must occur and exposure of CCW to groundwater leaching must be complete before he would approve a final bond release.
192. The finder of fact now takes official notice that the staff hydrologist who testified is no longer a DNR employee.
193. No one can state with any degree of certainty what the opinion of his successor would be.
194. The solution to this problem is to include a condition in the permit which requires complete recharge of the groundwater in and near the permit area and stabilized post-mining flow before any petition for final bond release can be considered.
J. WERE THE TESTS PERFORMED IN ACCORDANCE WITH 92-1 ADEQUATE TO JUSTIFY GRANTING THE PERMIT?
195. To some degree, collateral estoppel and res judicata apply here.
196. The testing done to the proposed CCW is the same as in Solar and there is no reason to think those tests were inadequate or improper.
197. The leachate tests were performed with distilled water.
198. HEC argues that the TCLP test should be used with acetic acid in order to get the worst case scenario.
199. HEC also argues that the tests performed do not imitate field conditions.
200. All the witnesses who were asked that question agreed that no laboratory test imitates field conditions.
201. Running a test using acetic acid certainly does not imitate field conditions.
202. The acetic acid tests are appropriate for municipal land fills where large amounts or organic wastes will be deposited.[FOOTNOTE 13]
203. The controversy involving base line testing of samples from monitoring wells is not so easily decided.
204. 92-1 "requires" extensive testing of area groundwater over a six month period.
205. HEC contends that since sampling can take place anytime during the
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month, based line tests may only cover a 130 day period.
206. HEC also contends that to be meaningful, more than six months need to be sampled.
207. The purpose of testing over six months is to allow for a change of seasons to see whether or not that has a major affect on the composition of the groundwater.
208. The ideal situation would be to have 24 months of baseline data from 1988 (a year of drought and 1989 (a year of high precipitation).
209. Nothing in I-SMCRA or F-SMCRA mandates such extensive data collection and analysis.
210. As found in Solar the concept of collecting six months of baseline data is within the requirements of F-SMCRA and I-SMCRA.
211. With respect to this particular permit, CCW I, CCW II, and CCW III were apparently sampled from late spring of 1994 to early fall of the same year.
212. It appears as though six separate months were not tested. For instance, the dates of sampling for CCW II are May 27, June 21, July 11, August 2, August 23, and September 13, 1994.
213. Six test samples taken between late May and mid September do not conform to the letter of 92-1 or the spirit of SMCRA.
214. There are further problems with the tests.
215. The first test of samples from CCW I does not include information for items as basic as field pH and water elevation.
216. The May 27, 1994 test for CCW II has a number of discrepancies including an absurd level of aluminum, calcium, manganese, nickel, zinc, TDS, iron, hardness, and magnesium.
217. The cation/anion balance on both the May 27 and June 21 samples for CCW II are so unexpected and unreal that the laboratory indicates there are problems with this sample.
218. Similar problems exist with the samples taken from CCW III on May 27, July 11, an September 13, and the laboratory indicated problems with these samples.
219. While six months of baseline data is generally adequate for the issuance of permits, this means six months of accurate, meaningful data.
220. Permit S-298 contains extensive water testing data (Attachment II-D-7(a)) however, none of the tests involved RCRA metals. Testing involved only field pH, TDS, sulfates, chlorides, manganese, iron, and hardness.
221. CCW permits require difference baseline information so the S-298 data cannot be used to supplement or replace the invalid tests.
222. The S-312 permit also has baseline groundwater data from 1993-94 but it likewise is limited in its scope of testing and cannot be used for CCW storage purpose.
223. The permit should include a condition that no CCW may be stored until consistent, meaningful, baseline data on groundwater for six separate months has been provided to the department.[FOOTNOTE 14]
224. The rest of the testing satisfies I-SMCRA and F-SMCRA.
225. The testing of the waste stream establishes the presence and expected quantity of RCRA metals and that quantity is not excessive.[FOOTNOTE 15]
226. In the absence of an acid environment, the mobility of the potentially harmful elements is limited.
227. There is no probative evidence that the CCW will react harmfully with the spoil. The testimony dealt with exposure to acid, and all of the witnesses testifying as to chemical properties (including Joseph Hailer for HEC) agreed there was very little in the way of acid-forming materials at this site.
228. As long as the quantity of CCW is limited to an amount related to the ash produced from the coal removed, the gross quantity of potentially harmful elements typically is no more than were there naturally.
229. In short, the concerns set forth in paragraph 32 can be met by modifying the permit.
230. One other topic of common interest among the parties dealt with the credibility of expert witnesses as it relates to the reasons for the witness appearing at the hearing.
231. HEC contends the fact that all of the mines experts were paid consultants somehow affects their believability.
232. The mine and DNR contend likewise for HEC's paid consultant and otherwise hint at the possibility that HEC's unpaid experts are more like advocates than experts.
233. Finally, HEC contends that DNR experts cannot be believed because DOR has a financial stake in approving mining permits; that is, the DOR is substantially funded by the $ .03 per ton extraction fee which is a part of I-SMCRA.
234. All the above merely points out the importance of the hearing process and the importance of sworn testimony subject to cross examination. All the experts in this case, were given every opportunity to testify with respect to their professional opinions and the materials they used to reach their opinions.
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All were subjected to highly professional cross examination. The result is a comprehensive transcript of sworn technical testimony which is now part of the public administrative record with respect to this permit. Determining the veracity of witnesses is a function for the trier of fact.
235. After hearing the evidence, reviewing the briefs, and examine the exhibits, the trier of fact concludes the permit application should be approved but modified as previously discussed.
236. In the Solar case, the parties stipulated that the NRC was the ultimate authority within the meaning of the AOPA with respect to a CCW permit.
237. On August 8, 1996, the administrative law judge distributed an order which in part instructed the parties that if they wished to raise the issue of whether the administrative law judge or the NRC was the ultimate authority, that party should do so prior to the issuance and distribution of this decision. Otherwise, the parties were told this matter would automatically go to the NRC.
238. No party raised this issue prior to the mailing of this decision. The potential issue is waived, and the NRC will issue the agency final order.
FOOTNOTES
1. The current literature refers to "CCB" (coal combustion by products). Since the proposal here is purely for disposal purposes and makes no effort to find a beneficial use, the CCW designation will be used.
2. The S-298 application (Exhibit S3) in particular contains massive amounts of well data in Section D.
3. One positive aspect of the higher contours in the CCW disposal area is the fact that surface drainage will drain away from the disposal areas.
4. The problem involving the length of time monitoring is to take place is discussed in a later section.
5. "Toy" refers to J. Toy, the owner of the property on which it is located and does not refer to the size or construction of the well.
6. There is currently a multi-agency Ground Water Task Force examing this problem. Whenever the task force sets standards that IDEM adopts for domestic use, those standards will have to be met. Contributing to this problem is the failure of EPA to issue any definitive standards for groundwater.
7. In fact, several of the monitoring well tests (Exhibit 30) performed in 1994 with no mining taking place on site show PDWS standards not met in the groundwater for lead, barium, calcium, and chromium at some time during the testing cycle. The PDWS are found on page 10 of Exhibit E.
8. The act of surface mining itself degrades ground water by exposing the water to rocks and boulders instead of an impermeable layer. The mine is correct when it says allowing no degradation of groundwater is a ban on any surface mining and that is not the purpose of I-SMCRA or F-SMCRA.
9. It is interesting to note at the NRC meeting in November of 1989, the DNR presented to the NRC a draft rule proposal which required that notification of CCW disposal be of record and in the chain of title before phase I bond release could occur. See the minutes of the November, 1989, NRC meeting. The draft rules are attached to the minutes.
10. The Boulding report (Exhibit 26) indicates an average ash content of 10% but does not discuss the ratio for all by products.
11. The draft rules referred to in footnote 9 also would have alllowed a relaxed handling of CCW totaling 15% or less of the weight of coal removed but imposed landfill criteria (including liners) for disposal of larger amounts.
12. Exhibit 27 contains a summary of locations where CCW leachate has caused environmental problems. In none of these case studies did the company believe there would be a problem when the CCW was initially stored.
13. The difference between the tests is that the RCRA metals become much more mobile when in an acid environment. EPA has exempted CCW from the hazardous material category in part because utilities historically disposed or stored it in a controlled
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environment away from acid producing materials. See Edison Electric Institute v EPA (C.A.D.C. 193), 2F.3d 438.
14. The importance of baseline monitoring data for RCRA metals and other substances of interest is that it is necessary to have a good idea of the normal levels in the groundwater prior to CCW storage. Only then does the CCW monitoring plan have validity in that groundwater samples after storage can be compared to samples before CCW is present.
15. Periodic sampling of the waste stream is required by the permit.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT OF THE DAVIESS CIRCUIT COURT
This matter comes before the Court for judicial review of an administrative agency action pursuant
to the Administrative Orders and Procedures Act (AOPA), Ind. Code 4-21.5 and the Indiana Surface Mining Control and Reclamation Act (ISMCRA), Ind. Code 14-34. The Court, having considered the administrative agency record and briefs submitted, now enters the following findings pursuant to Ind. R. Tr. P. 52(A)(2) and Ind. Code 4-21.5-5-14(c):
1. The Indiana Department of Natural Resources ("DNR") is an administrative agency of the State of Indiana with responsibility for the administration and enforcement of a program for the regulation of surface coal mining in Indiana pursuant to the Indiana Surface Mining Control and Reclamation Act ("ISMCRA"), Ind. 14-34, and implementing regulations set forth at 310 Indiana Administrative Code 12. The program was initially approved by the U.S. Secretary of the Interior on July 26, 1982 (30 CFR 914), as a federally-delegated program under the federal Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. 1201 et seq.
2. The Natural Resources Commission ("NRC" or "Commission") is the policy-making Board for the DNR. It is the body which makes final determinations with regard to policy or other selected DNR matters and has the authority to affirm, modify, or reverse decisions made by DNR Administrative Law Judges ("ALJ"). It is, for purposes of the Administrative Orders and Procedures Act ("AOPA"), Ind. Code 4-21.5, the ultimate authority for the DNR. See, Ind. Code 4-21.5-3-9 and Ind. Code 14-342-2(b)(1).
3. Foertsch Construction Co., Inc. is a corporation which operates a surface coal mine in the State of Indiana under ISMCRA permits issued by DNR.
4. The Hoosier Environmental Council (HEC) is an association representing its member's interests in the environment in the State of Indiana.
5. On May 10, 1995, the DNR Director approved an amendment to an already-issued mining permit, Foertsch's permit #S-00312 for its Little Sandy #10 Mine locacted in Daviess County, Indiana. Permit amendment #S-00312-1 was issued pursuant to ISMCRA and Memorandum 92-1, a guidance document, approved by the NRC which sets forth the DNR approach to permitting and regulation of coal combustion waste ("CCW") disposal on minesites.
6. Coal combustion waste (CCW) is residue from the burning of coal. See, Ind. Code 13-9-3-3.7.
7. The permit amendment allowed Foertsch to dispose of CCW within the Little Sandy permit area. For every ton of coal mined, the DNR would permit the disposal of one ton of CCW, i.e. a 1:1 ratio.
8. The Hoosier Environmental Council (HEC) filed a Petition for Administrative Review pursuant to Ind. Code. 4-21.5 challenging the issuance of the amendment, charging that the permit conditions were not protective of the environment and violated both the state and federal mining acts, Inc. Code 14-34 and 30 U.S.C. 1201 et seq., respectively.
9. After extended administrative review under Ind. Code 4-21.5, and Administrative Law Judge ("ALJ") found that the permit amendment was appropriately issued by the DNR, but he decreased by 75% the amount of CCW the DNR-approved permit could allow for disposal on the Little Sandy #10 permit, i.e. the ALJ recommended that one ton of CCW could be disposed of for every 4 tons (instead of every ton) of coal mined, a 1:4 ratio. The ALJ Report was a nonfinal order and constituted only a recommendation to the Commission.
10. Both HEC and Foertsch objected to the ALJ's recommended determination and order and filed their objections with the NRC, the board which would make the final determination for DNR. Ind. Code 14-34-32-2(b)(1). Among other things, Foertsch protested the decrease in the volume amount recommended by the ALJ. HEC protested the recommended granting of the permit amendment as non-protective of the environment since it believed, inter alia
(a) that ground water would be at risk because of potential leaching of alleged toxic-forming material in the CCW and
(b) that DNR was in violation of Memorandum 92-1,. See
Finding 5, supra.
11. The DNR indicated its own concerns to the Commission, noting that the NRC in Memorandum 92-1 had not restricted CCW quantity in monofills, provided that ash quality and hydro-geology demonstrations met the standards of ISMCRA. Memorandum 92-1. DNR's request for Consideration and Partial Objection to the Report, Findings of Fact and NonFinal Order of the Administrative Law Judge.
12. The NRC heard testimony and considered the various aspects of CCW and this case during its meeting on January 23, 1997, and Febraury 19, 1997. The transcript discloses that there had been much discussion concerning CCW disposal even in the years preceding this case Jan. 23, 1997, Transcript, p. 29.
13. After reviewing briefs and hearing the arguments, objections, and discussions, the NRC, in its Final Order, upheld the ALJ's Report and Order with one exception: the NRC increased the ALJ's disposal recommendation by 25% (i.e. the ALJ had recommended that the amount of CCW which could be disposed of on the minesite be cut from 1 ton of CCW to 1 ton of coal removed-as allowed by the initially approved DNR permit-- to 1 ton of CCW to 4 tons of coal removed-a 75% reduction of what the DNR approved permit would have allowed.) The NRC action, thus, would result in only a 50% reduction of what the DNR had approved; i.e. the NRC allowed one ton of CCW to be disposed of for every 2 tons of coal mined, a 1:2 ratio. Transcript of February 19, 1997, meeting of the Natural Resources Commission.
14. The vote to modify the ALJ recommendation and increase the amount of CCW which could be disposed of was the result of a statement and motion by John Goss, a member of the NRC representing Lieutenant Governor's office. After oral arguments to the NRC and some discussion. Mr. Goss stated:
"In after [sic] listening to all the parties--I have been a non-participating observer to the mediation meetings [in attempts to settle CCW issues and this case] for many of the discussions that last couple of months. I think on the quantity issue we need a little flexibility. I think the Hoosier Environmental Council has properly raised the question about that we do need to be concerned about the quantity of ash going back to these sites and I think on that specific issue, after listening to all the parties, I would like to propose that the number which is in Judge Teeguarden's Nonfinal Order, Part b, be a 50% reduction. I think that is more equitable of a number of considerations. First of all, I know there is a stockpile of ash at the facilities that we need to have a method for disposal that is going to be proper. I know that we have some sites that are going to be better than others. Maybe there are some sites that are not going to be good sites for disposal. I think this flexibility will give us a better range for taking care of the ash problem. Emphasis added. Transcript of Feb. 19, 1997, NRC meeting, pp. 17-18.
15. Both HEC and Foertsch sough judicial review on the volume or quantity issue. HEC further sought judicial review of the NRC's adoption of the ALJ's determinations with regard to groundwater standards, the minimization of damage to the hydrologic balance, and the characterization of the pre-existing geology and hydrology of the area. Other Findings were objected to by HEC and Foertsch but they have not been pursued in this judicial review. Only the findings concerning volume restriction and groundwater standards are the issues in this case.
16. "Toxic-forming materials" are defined at 310 IAC 12-0.5-134 as "earthen materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water."
17. Depending upon the components of coal, or the way or procedure or method by which the coal is burned, the resulting residue (CCW) can range from toxic-forming to non-toxic forming materials.
18. The disposal of CCW on minesites is governed by statute. Ind. Code 13-19-3-3; Ind. Code 14-34.
19. However, no statute requires the promulgation of rules for regulating CCW.
20. In 1992, the NRC, as the official policy-making board for the DNR, made the decision to implement ISMCRA, with respect to CCW disposition by means of guidelines rather than rules. Thus, Memorandum 92-1 was adopted and issued to surface coal mine operators to guide them in applying for CCW disposal permits on their mines. Memorandum 92-1. NRC Meeting Minutes, March and April 1992.
21. Memorandum 92-1, the non-rule guidance document for the regulation of CCW on mine sites, requires the submission of technical information (including qualitative and quantitative analyses of the effects of CCW placement in specified locations; waste characterization; and site-specific disposal plans encompassing operation, reclamation, and water monitoring) to the agency in order that environmentally-sound decisions can be made by the DNR in granting, conditioning, or denying a CCW disposal permit in a particular location under particular conditions. Memorandum 92-1.
22. The Memorandum constitutes NRC policy decisions on how to regulate ash disposal.
23. Despite the ALJ's attempted recommended restriction on volume, the NRC in its Memorandum 92-1 policy document placed no restriction on the quantity of CCW which might be disposed of in monofills; the Foertsch disposal area constituted approved monofill.
24. It was for the NRC to make the policy determination with regard to CCW volume restrictions, not the ALJ. The ALJ appears to have usurped the NRC's policy function by himself imposing such restrictions.
25. The DNR so noted this fact during the NRC's considerations of the ALJ recommendations and proposed the following to the NRC: Should the Commission determine to pursue a policy placing quantity restrictions in addition to the current quality restrictions on pending and future permits, the Department would recommend that Memorandum 92-1 be supplemented in accordance with that determination. DNR's Request for Consideration and Partial Objection to the Report, Findings of Fact and NonFinal Order of the Administrative Law Judge, pp. 4-5.
26. The NRC did, in fact, respond to this proposal by virtue of Mr. Goss's statement and accepted motion, and the Commission's vote in its favor to raise the volume of CCW recommended by the ALJ for disposal. See Findings #13 and 14, supra.
27. The NRC, by reducing the ash volume initially approved by the DNR in the permit, but increasing the ash volume (to 50% of the coal tonnage) recommended by the ALJ was responding to both DNR recommendations and the ALJ's apparent concerns.
28. The ALJ Findings were voluminous, complicated, and at times confusing. They appeared to indicate possibilities of environmental degradation owing to CCW deposition, although there was evidence and even ALJ Findings to the contrary. See ALJ Findings 176, 225, 226 and 227.
29. The ALJ, additionally, erroneously relied on a summary of a 1998 EPA report rather than the report itself (Wastes from the Combustion of Coal by Electric Utility Power Plants, Appendix E.) [HEC's Administrative Hearing Exhibit 27] The summary was used by HEC to "illustrate" CCW-caused environmental damage. The full report, however, concludes, inter alia, that ground water contamination does not appear to be widespread due to the presence of CCW. Further, the full report states that "[W]hen ground water contamination does occur, the magnitude does not appear to be widespread" and that [T]here are few cases considered to be documented evidence of damage from coal combustion waste." The report, itself, states that only 6 sites out of an estimated 500 sites which exist in the nation were found to have caused damage, and "only one case can clearly be attributed to fly ash management alone." See 58 Fed. Reg. 42473 (Aug. 9, 1993).
30. Mr. Goss' motion to modify the ALJ Order regarding volume limitation, and the vote to accept it, were indications by the NRC of concern for providing enough appropriate and safe deposition space to accommodate the CCW. Goss statement.
31. After hearing arguments from all sides and having been invidted to exercise discretion with regard to its policy-making authority (See Finding 25, supra), the NRC lawfully and properly modified the ALJ Order with respect to volume limitation.
32. Memorandum 92-1, itself, constituted a policy decision and statement within the power and authority granted to the NRC.
33. Memorandum 92-1 constituted a lawful and proper policy decision by the NRC in accordance with ISMCRA and Ind. Code 13-19-3-3. Further, it was within the NRC's province to modify its policy with respect to individual circumstances and in accordance with evidence presented. Ind. Code 14-34-2-1; Inc. Code 14-34-2-2.
34. The NRC's final Order was neither contrary to law nor arbitrary and capricious. It was a response to evidence and arguments, and it was within the sound discretion of the NRC to make a judgment and policy call with respect to volume restriction. Inc. Code 14-34-2-2(b)(1); Ind. Code 14-34-2-1.
35. The NRC's final Order to restrict CCW disposal at the Foertsch minesite to 50%, rather than a 75%, reduction of the DNR-approved permit condition, is affirmed.
36. HEC has argued that DNR should have set water quality standards.
37. The DNR has no jurisdiction to set such standards.
38. The Indiana Department of Environmental Management (IDEM) and the Indiana Department of Health have the statutory jurisdiction to deal with and set such standards. Indiana Code 13-1-3 and Ind. Code 16-09-3.
39. HEC is incorrect in asserting that DNR should have set water quality standards.
40. The DNR does have the statutory and regulatory mandate, under ISMCRA, to minimize and to prevent to the extent possible adverse effects on the hyrologic balance and to ensure that no existing state or federal statute or regulation is violated. Ind. Code 14-34-10-2(b)(10); 310 IAC 12-5-16.
41. The DNR took steps, in this permit, to obey these mandates, including requiring the selective placement of CCW, compaction of CCW, the use of compacted spoil buffers against highwalls, and the covering of non-toxic material to further inhibit pollutant mobility. See CCW Disposal Plan. 41. Further, according to ISMCRA, operators must conduct their operations, including the burial of CCW so as to prevent "to the extent possible additional contributions of suspended solids...but in no event shall contributions be in excess of requirements set by applicable State or Federal law." Ind. Code 14-34-10-2(b)(10); see also 310 IAC 12-5-16. Thus, any groundwater standards which are part of state or federal law must, in fact, be complied with.
42. The NRC was correct in adopting the ALJ Findings with respect to groundwater standards. See ALJ Findings 147 through 160. These Findings are affirmed by the Court.
43. HEC asserts that ISMCRA requires all operators under all circumstances to prevent water from contracting CCW, and that DNR and the NRC failed to implement such an alleged prohibition in the instant case. However, ISMCRA does not necessarily prohibit such contact; what ISMCRA states is that one way to "minimize disturbances to the hydrologic balance" is by "preventing or removing water from contact with toxic-producing deposits." Ind. Code Section 14-34-10-2(b)(10)(A)(I).
44. CCW-water contact is not an all-out prohibition.
45. CCW is not always toxic-producing. CCW is not listed as a hazardous material by the Environmental Protection Agency or IDEM. As a general proposition, CCW is potentially toxic-forming.
46. Information in the permit amendment application revealed that approximately two-thirds of the CCW proposed for disposal has a pH indicative of a generally neutral substance and, thus, not toxic.
47. Leachate tests for the subject CCW waste streams indicated that the material to be disposed of at this site was well below limits for toxicity set forth in Memorandum 92-1. Permit Amendment S-00312-1.
48. While ALJ Finding 136 appears to say that CCW requires handling as if it were toxic, such ALJ language is dependent upon testimony which made purely hypothetical, inapplicable, and generally inconsistent assumptions. Testimony of Dr. Spacie, Administrative Hearing, TR. Day 11.
49. The NRC did not find that disposal of the CCW pursuant to the Foertsch disposal plan approved by the DNR would cause any adverse effect or material damage outside the mined area.
50. The operator was
not generally required to prevent water from contacting the CCW.
51. HEC alleges that the pre-existing geology and hydrology were not adequately characterized for this permit and were thus violative of ISMCRA.
52. Memorandum 92-1 is consistent with statutory and regulatory requirements of ISMCRA in requiring the submission of site-specific characterization of geology and hydrology information with regard otthe capability of (1) in situ materials to contain or attenuate leachate levels, and (2) the effects of CCW placement. Additionally, DNR requires hydrogeologic and other baseline data, intitial waste characterization and information concerning natural materials and the presence of aquifers. Memorandum 92-1; 310 IAC 12-5-30; 310 IAC 12-5-31; 310 IAC 12-5-47.
53. Various material submitted by Foertsch was considered by DNR in determining its approval of the S-312-1 permit amendment, including information on groundwater and the potential interaction expected between CCW, geology, and waters in the area. Groundwater monitoring data, including six baseline samples from monitoring wells taken over a sufficient period of time to represent seasonal variation were provided. Yield data were provided for each of the six sampling periods from installed monitoring wells at the s-312-1 site. Hearing Trans. Day 3.
54. Additional information relied on by DNR in approving the S-312-1 permit was data provided in the underlying mining permit, S-312, including geologic descriptions and hydrology. Hearing Trans., Day 3; Foertsch #-12 [sic] permit, Parts II C and D.
55. The applicant also provided information and data from the surrounding and adjacent S-298 permit (Solar Sources) and supplemented this data in its permit application. Information included data defining and describing probable hydrologic consequences, coal seams, aquifers and potential aquifers, water well logs and water well survey data, aquifer test analyses on 15 monitoring wells to determine hydrologic conductivity of the specific intervals where monitoring wells were placed, as well as recharge capacity; soil analyses. Data was obtained pertaining to the depths and permeabilities and available water capacity of the area; groundwater monitoring data were provided. S-312-1 application; Solar Sources S-298 permit, Part II C; Part IID; Part IV G(1).
56. HEC was incorrect in asserting that the pre-existing geology and hydrology were not adequately characterized for this permit.
57. HEC is incorrect in asserting DNR is in violation of state or federal SMCRA.
58. The Indiana SMCRA statute is virtually identical to its federal counterpart.
59. The U.S. Congress created the federal Office of Surface Reclamation and Enforcement (OSM) within the U.S. Department of the Interior (DOI) to administer and enforce the federal act [SMCRA] and oversee the implementation of the federally-approved state programs. 30 U.S.C. Section 201.
60. State SMCRA laws and regulations are required by federal law to be consistent with federal SMCRA provisions. 30 U.S.C. 1256(a), Section 505(a); 30 C.F.R. Part 730.11.
61. The Indiana state mining program [ISMCRA] was conditionally approved by the U.S. Department of the Interior and became effective July 29, 1982. 30 CFR 914.10(a).
62. It is the purpose of ISMCRA to "[I]mplement and enforce the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 through 1328) [SMCRA]." Ind. Cod 14-34-1-3.
63. In 1997, OSM conducted a review of DNR's CCW permitting program. A reivew of 13 permits included Foertsch's Little Sandy #10 Mine, the subject of the case at bar. OSM's study concluded that the DNR was properly administering its surface mining program responsibilities. OSM found that the "approved permits contained comprehensive plans for the disposal of CCWs to prevent environmental damage and required monitoring for long term effects of the disposal." October 29, 1997 letter to DNR from OSM. Attachment B to DNR's Response Brief.
64. With respect to the Foertsch CCW permit, DNR is in compliance with state and equivalent federal SMCRA provisions.
JUDGMENT AND ORDER
A. The NRC lawfully and properly modified the ALJ Order with respect to volume limitation for the disposal of coal combustion waste at the Foertsch Little Sandy #10 Mine, Permit #S-00312-1.
B. It was within the power and authority of the Natural Resources Commission to modify its policy with respect to the individual circumstances and in accordance with evidence presented.
C. The NRC's Final Order to restrict coal combustion waste disposal at the Foertsch minesite to 50% rather than a 75% reduction of the DNR-approved permit condition, is affirmed.
D. The NRC was correct in adopting the ALJ Findings with respect to groundwater standards, and its Findings are affirmed.
E. There was no proof that the CCW was toxic or toxic-forming, and Foertsch was not generally required to prevent water from contacting coal combustion waste at the subject locations.
F. HEC was incorrect in asserting that the pre-existing geology and hydrology were not adequately characterized for this permit.
F. In approving the permit amendment, DNR was in compliance with state and equivalent federal SMCRA provisions.
G. The Natural Resources Commission's Final Order is in accordance with law is not arbitrary, capricious, or an abuse of discretion, nor is it in excess of statutory jurisdiction, authority, or limitation, nor short of statutory right.
H. The petitions of Foertsch Construction Co. and the Hoosier Environmental Council are denied, and the Final Order of the Natural Resources Commission is affirmed in all respects.
WHEREFORE, it is hereby ORDERED, ADJUDGED, AND DECREED that Foertsch and HEC's Petitions are DENIED. The decision of the NRC is AFFIRMED.
[Dated September 13, 1999, signed Robert L. Arthur, Judge, Daviess County Circuit Court.]