Content-Type: text/html 88-303r.v5.html

CADDNAR


[CITE: McIntyre & Bryant v. DNR & Northern Coal,5 CADDNAR 70 (1989)]

[VOLUME 5, PAGE 70]

Cause #: 88-303R
Name: McIntyre & Bryant v. DNR & Northern Coal
Administrative Law Judge: Rider
Attorneys: Brown, Lueken; Junk, DAG; Blanton
Date: October 3, 1989

ORDER

[NOTE: ON DECEMBER 7, 1989 McINTYRE TOOK JUDICIAL REVIEW OF THIS ACTION IN CLAY CIRCUIT COURT (CP-89-360). ON JANUARY 29, 1990 VENUE PAPERS FILED. CHANGE OF VENUE TO PUTNAM CIRCUIT COURT (67C01-9001-CP37). ON MAY 11, 1990, ON MOTION OF McINTYRE, THE PUTNAM CIRCUIT COURT ENTERED AN ORDER OF DISMISSAL.]

The post-mining land use change for Northern Coal permit number S-00175 approved by the Advisory Council for the Bureau of Water and Mineral Resources on November 18, 1988 is affirmed.

FINDINGS OF FACT:

1. On December 15, 1988 Kenneth E. McIntyre and Richard Bryant (the "Claimants"), by counsel, requested review of the November 18, 1988 decision of the Advisory Council of the Bureau of Water and Mineral Resources (the "Council") to grant postmining land use change to the Northern Coal Company, Inc. (Northern) for permit #S-00175, Coal City Pit #2, Owen County.

2. The Claimants both appeared before the Advisory Council at the November 18, 1988 meeting and testified as to their concerns regarding this matter.

3. IC 4-21.5, IC 13-4.1, 310 IAC 0.6, 310 IAC 12 apply to this proceeding.

4. The Natural Resources Commission (the "Commission") is an agency as defined in IC 4-21.5-1-3. The Commission is the ultimate authority with respect to this proceeding.

5. The parties all agree that two issues are at bar:

a. (Issue 1) Is the postmining land use change in question a significant departure from permit #S-00175? If so, the change requires a permit revision under 310 IAC 12-3-121 and is subject to the public participation requirements of 310 IAC 3-105 through 117.
b. (Issue 2) If the Advisory Council had been presented with all information available would it still have approved of the postmining land use change?

6. The analysis to be performed here is a simple one: should the change be labeled significant?

7. If a postmining land use change is labeled a significant change to the permit it must go through the public participation process set out in the IAC and cannot be approved by the Council until that process is completed.

8. If a postmining land use change is determined to be a nonsignificant change to the permit it shall be approved by the Council if the criteria of 310 IAC 12-5-68 (c)(1-10) are met unless the landowner objects.

9. The mere fact that the Department has handled all prior postmining land use changes as nonsignificant changes has no effect upon the analysis.

10. Issues 1 & 2 tend to merge because while the Council shall approve postmining land use changes that are nonsignificant, it would have the discretion of declaring a proposed change "significant" under 310 IAC 12-3-121 (a)(1) and returning it to the Department for public participation.

11. In this case the Claimants contend that the change was approved due to the Council's lack of information on the impact of the change in regard to the Claimant's lakes.

12. Since a de novo hearing is required by IC 4-21.5, the administrative law judge will not decide what the Council did or did not hear but rather, will examine the evidence as to whether this change is or is not significant.

13. Northern cites the small portion of the permit involved here and prays that surely such a small area must be insignificant.

14. Parties quote 310 IAC 12-3121 (a)(1) " .... Changes which constitute a significant departure shall include, but are not limited to, those which ... present a hazard to public health and safety."

15. Northern, of course, relies on the last phrase to argue that this case does not fit.

16. The Claimants, of course, rely on the phrase "but are not limited to" to argue that this case could fit.

17. It becomes clear after reading other sections of the IAC and IC 13-4.1 that legislators and regulators are concerned about the effects of coal mining upon nearby residents.

18. This apparent concern would lead to the conclusion that if this postmining change

[VOLUME 5, PAGE 71]

would be responsible for interfering with Claimant's enjoyment of their lakes; the change would be significant; and public participation as to a permit revision would be appropriate.

19. Therefore, the ultimate question is: "will this change significantly lower the water levels of the Claimant's lakes?"

20. In answering this question, the analysis must be a comparison of what the levels would be without or without the permanent impound and not the levels pre-mining versus postmining with the permanent impound.

21. Three experts provided extensive and sometimes contradictory testimony: Chris Hopple for the Department, Russell Boulding for the Claimants, and Konrad Banaszak for Northern.

22. Mr. Boulding contends that backfilling the pit will return the water level of the lakes in question to the pre-mining level while leaving the hole will not.

23. Mr. Banaszak argues that because of a watershed Northern will leave which will drain into the pit, backfilling would be a less effective way to return these lakes to their pre-mining state.

24. Both experts discussed a formula used to determine the amount of water in a hydrological system.

25. Mr. Banaszak's use of the formula was much more effective than Mr. Boulding's.

26. Mr. Boulding ignored some variables which appear to be important and his analysis was simplistic and somewhat inaccurate.

27. Mr. Banaszak's analysis applied common sense and included a good examination of the effect of backfilling versus permanent impoundment plus 29 acre watershed.

28. The evidence taken as a whole indicates that the permanent impound with a watershed would, at best, be beneficial to the Claimants and, at worst, leave them in the same position they would be in if backfilling were to occur.

29. Accordingly, this postmining land use change is not a significant change to permit #S-00175 and was properly processed and approved under 310 IAC 12-5-68(c).