(A) 60% of the bond attributable to the acreage included within the northern parcel and the northeastern parcel is released.
(B) 85% of the bond attributable to the acreage included in the haul road parcel and the drainage ditch parcel is released. * The original Recommendation of the Administrative Law Judge was modified by the Natural Resources Commission on April 26, 1988.
FINDINGS OF FACT
1. The Department of Natural Resources (the "Department") is an "agency" as the term is defined in IC 4-21.5-1.3. The administrative adjudication act (IC 4-21.5) is applicable to an "agency action" of the Department.
2. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
3. This proceeding is brought within the provisions of the Indiana Surface Mining Control and Reclamation Act as found in IC 13-4.1 ("SMCRA"). At issue is the release of bond required under SMCRA.
4. IC 13-4.1-2-1(a)(3) provides that the Natural Resources Commission (the "Commission") is responsible for the release of performance bond required under SMCRA:
(a) The "[C]ommission shall: *** (3) accept, release, or retain portions of any required bond except as otherwise provided by this article [IC 13-4.11 or by rule"
5. IC 14-3-3-21(a) provides that the Commission "is the ultimate authority of the department of natural resources, under IC 4-21.5, except as otherwise provided by law."
6. The Commission is the ultimate authority for the Department under IC 4-21.5-1-15 and SMCRA with respect to bond releases.
7. Solar Sources, Inc. ("Solar") was issued permit S-00068 (the "Permit") by the Department to engage in surface coal mining under SMCRA for real estate located in Section 27 of Township 3 South, Range 8 West in Warrick County, Indiana.
8. The permit was issued after July 29, 1982 and is a "permanent program permit" subject to IC 13-4.1.
[FOOTNOTE 1]
9. Included within the boundaries of the permit is property owned by the claimants, Carl Nuhring and Mary Lou Nuhring ("Nuhrings"). The predominant usage of the property and neighboring properties (other than the immediate surface coal mining activities) is for farming.
10. A responsible official for Solar filed with the Division of Reclamation for the Department (the "Division") a written application seeking the release of performance bond for designated areas of the permit. The release application covers real estate owned by several different landowners, including property owned by the Nuhrings.
11. As a result of the application for bond release filed by Solar, the Division on July 14, 1987 performed an inspection of the properties for which release was sought.
12. A Division inspector prepared a bond release inspection report, based upon the July 14 inspection, which indicated with respect to the Nuhrings property: ... This property lies west of CR 200 W and south of CR 1375 N. The field is reclaimed to a prime farmland cropland land use, except for a north-south drainway located in the middle of this property which was non-prime. The prime portion of this area was sufficiently graded, topsoiled, and revegetated with orchard grass and alfalfa to be recommended for a 60% release. This area was stabilized and the vegetation provided 80% ground cover. The drainway was stable and vegetated well enough to be recommended for a 85% bond release. A small portion of the Nuhring property is located south of Smith Fork Cr. and 300 ft. west of CR 200W. This area consisted of a 75 ft. strip of haul road reclaimed back to non-prime cropland. The area is currently graded, topsoiled, and well vegetated with alfalfa, clover, and timothy. The vegetation provides 90% ground cover. This area will be recommended for a 85% bond release at this
[VOLUME 5, PAGE 20]
time... .
13. The Nuhrings were informed of the results of the inspection. By certified letter dated August 19, 1987, Carl Nuhring filed a written objection to any bond release on the permit "that pertains to all of my property."
14. This proceeding was initiated under IC 4-21.5 with filing of the written objection by Carl Nuhring. An administrative law judge was appointed, and a prehearing conference was scheduled in accordance with IC 4-21.5-3-18.
15. On September 30, 1987, a prehearing conference was conducted in this proceeding.
16. The parties agreed during the prehearing conference that in issue was the propriety of the Solar bond release (as recommended by the Division following the July 15, 1987 inspection for the following parcels on the Nuhring farm:
(1) a field located in the northern portion of the farm, containing about 6.1 acres, which is bounded on the north by (and includes) County Road 1375 North and on the east by a relocated drainage ditch ("the northern parcel");
(2) a field contiguous to the northern parcel located in the northeastern portion of the farm, containing approximately 14.8 acres, which is bounded on the north by (and includes) County Road 1375 North, on the east by County Road 200 West and on the west by a relocated drainage ditch (the "northeastern parcel");
(3) the relocated drainage ditch located between the northern parcel and the northeastern parcel (the "drainage ditch"); and
(4) a strip of land in the southeastern portion of the farm, which is about 75 feet wide and was the site of a former Solar haul road ( the "haul road parcel").[FOOTNOTE 2]
17. No areas other than the northern parcel, the northeastern parcel, the drainage ditch and the haul road parcel are in issue.
18. The schedule for applying bond release is founded upon IC 13-4.1-6-7(g). That subsection provides that the Director of the Department (the "Director") may release bond when "he is satisfied that the reclamation covered by the bond ...has been accomplished as required by this article [IC 13-4.1] according to the following schedule:
(1) When the operator completes backfilling, regrading, and drainage control of a bonded area in accordance with his approved reclamation plan, the release of sixty percent (60%) of the bond or collateral for the applicable permit area.
(2) After revegetation is established on the regraded mined lands in accordance with the approved reclamation plan ... .
(3) When the operator has successfully completed all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for operator responsibility in IC 13-4.1-8 ... .
19. IC 13-4.1-67(g) is implemented by rule through 310 IAC 12-4-16(c) which provides in pertinent part:
(c) The Department may release ... bond... if the Department is satisfied the reclamation covered by the bond... has been accomplished as required by ... IC 13-4.1 according to the following schedule:
(1) When the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with his approved reclamation plan, the release of sixty percent (60%) of the bond or collateral for the applicable permit.
(2) After revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan, release of an additional twenty-five percent (25%) of the total original bond amount may be approved... .
(3) When the operator has completed successfully all surface coal mining and reclamation activities, the Department shall release the remaining portion of the bond, but not before the period specified for operator responsibility in ...[IC 13-4.1]; provided, however, that no bond shall be fully released until all reclamation requirements of ... IC 13-4.1 and the permit are fully met.
20. The Division inspector has (as more particularly set forth in finding 12) recommended a 60% bond release under IC 13-4.1-6-7(g)(1) for the northern parcel the northeastern parcel, the drainage ditch and the haul road parcel.
21. 310 IAC 12-5-55.1(a) establishes general backfill and grading requirements for areas disturbed by surface coal mining operations. That subsection states in pertinent part: (a) Disturbed areas shall be backfilled and graded to:
(1) Achieve the approximate original contour... ;
(2) Eliminate all highwalls, spoil piles, and depressions, except as provided in paragraphs (h) (small depressions) ... of this rule;
(3) Achieve a postmining slope that does not exceed 3:1 (h:v) or such lesser slope as is necessary to achieve a minimum long-term static safety factor of 1.3 and to prevent slides;
(4) Minimize erosion and water pollution both on and off the site; and
(5) Support the approved postmining land use.
22. As defined in IC 13-4.1-1-3(l), "approximate original contour" means the "surface
[VOLUME 5, PAGE 21]
configuration achieved by backfilling and grading of the mined area so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into the compliments the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated except for water impoundment which comply with IC 13-4.1-8-1(8) and boxcut spoil areas which are specifically designed to provide alternative land uses and are permitted by the director."
23. The definition of "approximate original contour" contained in IC 13-4.1-13(l) is very similar to the definition of that phrase provided in the federal counterpart to IC 13-4.1 and set forth in 30 U.S.C. 1291(2).
24. There is no written legislative history of IC 13-4.1.
25. The legislative history for the federal counterpart to IC 13-4.1 addresses the concept of "approximate original contour." Portions of that legislative history (House Report 95-218) are printed in the United States Code Congressional and Administrative News. Other legislative history can be found in hearings before House and Senate subcommittees and in the floor debates reported in volume 123 of the Congressional Record.
26. The word "contour" in approximate original contour, refers to: "the outline of a figure or body, with a line representing such an outline." The contour of ground is similarly defined as the outline of the surface of the ground with respect to its undulations. The two definitions primarily refer to the shape or configuration of a surface. In addition, with respect to mapping, contour takes on an additional meaning; the imaginary line connecting the point of the land surface that have the same elevation and the line representing such line on a map of chart. In order to understand this concept it is necessary to distinguish between the two dimensions of elevation and configuration.[FOOTNOTE 3]
27. The federal legislative history reflects also that "[i]t should be emphasized... that a reasonable interpretation of [the bill] cannot justify the assertion that the ... [law] requires either the impossible task of restoration of the original contour or the useless act of digging a new pit to obtain fill material to achieve full restoration of the original topography." 1977 U.S. Code Cong. and Admin. New 593 at 633.
28. The Director has applied "approximate original contour" to require in Indiana, as a minimum, the "return to pre-mining geographic patterns and blending with the peaks and valleys of adjacent unmined areas." DNR v. Stendale, Inc., 1 Caddnar 42 (July 1, 1983).
29. All of the parcels in issue have been graded to blend with the peaks and valleys of adjacent mines areas.
30. Changes in elevation are within acceptable ranges. Spot checks taken at two random points within the parcels in issue (and at a third point just outside the parcels in issue along County Road 1375 North) demonstrate elevations about three feet different from pre-mining elevations.
31. The re-established drainage patterns are not identical to the pre-mining drainage patterns. A hill on the northern parcel and a ridge on the northeastern parcel were removed, thus directing some of the surface runoff in a more southerly direction.
[sic] 31. The drainage ditch was also changed in that it was straightened. It is at least as efficient and effective in providing drainage as prior to mining. It was constructed in accordance with design plans and evidences no erosion problems.
32. There are small depressional areas on the northern and northeastern parcels. Such areas normally occur following grading because the shale materials replaced under the topsoil shrink and swell. Such depressional areas are usually eliminated by normal farming and tillage practices.
33. There is also intermittent ponding in the southeastern corner of the northeastern parcel. There is a strip of ground just south of the southern boundary of the northeastern parcel for which Solar has not yet requested bond release. This strip contains some ground and a temporary diversion ditch which currently flows into the final sediment pond. South of this strip is the creek which flows through the Nuhring property.
34. George Boyles, reclamation manager for Solar, testified that the intermittent ponding in the southeastern corner would be eliminated when the diversion ditch was removed and that strip reclaimed. (Record, pp. 102-103).
35. A 60% bond release for regrading and drainage is appropriately approved when the operator has finished backfilling and regrading, and has established drainage control in accordance with its reclamation plan.
36. Solar has finished backfilling and regrading and established drainage control in accordance with its reclamation plan on the northern and northeastern parcels. Elimination
[VOLUME 5, PAGE 22]
of all small depressions is not mandatory before a grading release can be granted.
37. Even after grading release, the areas where intermittent ponding have occurred are still subject to Division inspection and regulation. If the ponding is so serious as to interfere with revegetation and productivity goals, solar will not be able to obtain a 25% vegetation release or a final release of bond. IC 13-4.6-6-7(g)(2)(3); 310 IAC 12-4-16(c)(2)(3).
38. A 60% bond release for regrading and drainage control, as authorized by IC 13-4.1-6-7(g) and 310 IAC 12-4-16 (c) should now be granted to solar with respect to the northern parcel and the northeastern parcel.
39. On the haul road parcel, a small wash is present near the west boundary of the parcel. The wash terminates with a row of straw bales, placed by Solar to control erosion.
40. Vegetation is present on all of the haul road parcel except for the wash.
41. 310 IAC 12-5-55.1(a)(4) requires that backfilling and grading be done in such a manner as to minimize erosion, not eliminate it entirely.
42. The bond release inspector for the Division was aware of the wash but found no evidence of current erosion during his July 1987 inspection. He concluded that it had been stabilized.
43. Solar has achieved approximate original contour on the haul road parcel and has minimized erosion.
44. A 60% bond release for regrading and drainage control is appropriate with respect to the haul road parcel.
45. In addition to the 60% bond release, the inspector has recommended a 25% bond release under IC 13-4.1-6-7(g)(2) and 310 IAC 12-4-16 (c)(2) for the haul road parcel.
46. Revegetation is considered equal to the approved standard if it is at least 90% of the cover of the approved standard. 310 IAC 12-5-64(c).
47. The presence of a small barren area in an area under consideration for revegetation release does not of itself disqualify the area for release.
48. The inspector, aware of the wash, found that the vegetation provides a 90% ground cover (see finding no. 12)
49. A 25% bond release for revegetation is appropriate with respect to the haul road parcel.
50. The drainage ditch area qualifies for a 60% bond release for regrading and drainage control and a 25% revegetation bond release.
FOOTNOTES
1. Areas contiguous to the permit were mined by Solar under an "interim program permit," but these contiguous areas are not in issue in the proceeding. Interim program permits, generally, are compared at Spencer Coal v. DNR, 3 Caddnar 74 (December 15, 1986).
2. The areas included within the northern parcel, the northeastern parcel, the drainage ditch, and the haul road parcel are designated by hatch marks in Exhibit I and Exhibit III attached to the report of Prehearing Conference entered on October 1, 1987.
3. 1977 U.S. Code Cong. and Admin. News 593, 633, quoting from H. R. 95-218, p. 97. A similar application of the term "contour" as used in "approximate original contour" was provided by the Director in Siminole Coals, Inc. v. DNR, 2 Caddnar 57 (February 1985): "'Contour' in approximate original contour means a series of points on a line of equal elevation."