Wednesday, September 18, 2013
Environment - More on "Permit For Largest Surface Coal Mine in Eastern U.S. Invalidated"
Well, not exactly...
Today at mid-morning the ILB posted a news release from the Sierra Club, commenting on, and linking to, a 21-page ruling from the Indiana Office of Environmental Adjudication, dated a week ago, Sept. 11th. The Sierra Club news release was headed "Permit For Largest Surface Coal Mine in Eastern U.S. Invalidated."
Late this afternoon the ILB received a copy of the 4:04 PM news release issued by IDEM, who is the respondent, along with the permittee, Peabody Midwest Mining LLC, in this administrative permit challenge:
IDEM is pleased with the ruling in the Bear Run Mine matter. The Environmental Law Judge granted summary judgment for IDEM on five of the Sierra Club’s six claims, ruling that the Sierra Club failed to present sufficient evidence to show that the discharges from the mine “would contribute to violations of water quality standards” and that Sierra Club “failed to present sufficient evidence to justify an individual permit.” Order at 1-2.ILB: I read this to mean that Peabody will be able to continue to operate under the permit during any appeal of this ELJ ruling, plus during IDEM's antidegradation review and any subsequent challenge.
Specifically, the Judge granted summary judgment in favor of IDEM on Sierra Club’s claims that IDEM failed to ensure that the mine’s discharges would comply with water quality standards (Order at 14); that IDEM failed to “assess the existing beneficial uses of the receiving waters” for the discharges (Order at 15); that IDEM’s “failure to issue an individual permit to Peabody was arbitrary, capricious and an abuse of discretion” (Order at 18); that the permit is not an enforceable NPDES permit “because it does not contain specific effluent limits, nor identifies best management practices” (Order at 19); and that the permit “does not require adequate monitoring of discharges and receiving waters” (Order at 20).
While the Judge remanded the modification “to conduct an antidegradation review” (Order at 17), she did not invalidate the permit. Thus, Peabody will have the opportunity to “demonstrate that the Discharges will not degrade the waters or that degradation is necessary for economic or social factors.” Id.
Here, from the ruling itself, is Environmental Law Judge Catherine Gibbs' summary:
Sierra Club moves for summary judgment alleging that the Indiana Department of Environmental Management (the IDEM) erred in issuing a modification to Peabody Midwest Mining LLC’s NPDES permit (Peabody) because the IDEM failed to perform certain analyses to ensure that the storm Water discharges from the Bear Run Mine (the Mine) would comply with the Clean Water Actl (CWA). Sierra Club requested that the IDEM be ordered to issue an individual permit for the Mine. The modification was issued under 327 IAC 15-7 (referred to as “Rule 7”), which sets out the requirements for storm Water discharges from coal mines. The ELJ concludes that Rule 7 is a properly promulgated regulation and that compliance with Rule 7 ensures compliance with the CWA. Sierra Club failed to present sufficient evidence to show that the specilic discharges from this Mine would contribute to violations of Water quality standards so that the requirements of Rule 7 were insufficient to ensure compliance with these standards. Further, Sierra Club failed to present sufficient evidence to justify an individual permit or that Peabody’s submission of its NOI did not Comply with all requirements of the General Permit and Rule 7 requirements, Summary judgment in favor of the IDEM and Peabody is appropriate on Counts l, 2, 4, 5 and 6.Finally, this evening at 5:42 PM, the ILB received this message:
Summary judgment is entered in favor of Sierra Club on Count 3. The IDEM failed to perform a Tier II antidegradation review as required by the rules in effect in 2010 when this modification was issued. It Was Peabody’s burden to make an affirmative demonstration that degradation of the receiving Waters was justified by economic or social factors and would not cause violations of Water quality. Peabody failed to do so at the time of the application for the Modification. The Modification is remanded to the IDEM to conduct a Tier II antidegradation review.
Meg Gallagher, Peabody EnergyThe message links to this story posted on the IndyStar website this afternoon, reported by Ryan Sabalow that begins:
Hello Ms. Joddi: Per your blog entry, please note Peabody Energy's statement on this matter. We also offer the Indiana Star's story for reference, which reports on the ruling accurately. Please feel free to attribute this statement to a spokesperson at Peabody Energy.
Today's ruling reaffirms Bear Run's general permit as appropriate to the operation, and we will continue to review any additional steps to maintain compliance.
An Indiana environmental judge has ruled that the largest surface-coal mine east of the Mississippi River did not adequately study or justify how much waste it is dumping into state waterways.Re "Peabody Energy's statement on this matter," the ILB has not seen this document.
But Bear Run Mine in southwest Indiana withstood all other legal challenges related to its permitting requirements — a major point of contention among the state’s environmental groups, who argued Indiana should require the mine to obtain an individual permit to operate just as most other similarly sized mines do around the country.
Posted by Marcia Oddi on September 18, 2013 07:40 PM
Posted to Environment