Temporary Relief requested by Northern Coal Company, Inc. from the provisions of Cessation Order #CO 1109-S-00248 is denied.
FINDINGS OF FACT
1. Cessation Order #CO 1109-S-00248 (CO) was issued to Northern Coal Co., Inc. (Northern) on November 9, 1990.
2. Northern filed a petition for Temporary Relief from the provisions of the CO on November 13, 1990.
3. The CO was issued by Jeanne McClure of the Division of Reclamation.
4. The CO orders Northern to cease extraction of the lower block coal seam until all areas effected by an alleged disruption of hydrologic balance in the area are acquired, permitted and bonded.
5. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
6. The administrative law judge is the ultimate authority for this proceeding.
7. The parties agree that in mining the lower block coal seam, Northern has been forced to pump groundwater which has accumulated in the pit(s).
8. They further agree that said pumping has lowered the water levels in several pits both on and off the permit area.
9. Evidence shows that at some time in the future these water levels will return to normal.
10. Under IC 13-4.1-11-8(e) the administrative law judge will grant temporary relief if:
a. the hearing is held in locality of permit and all parties are heard,
b. applicant shows a substantial likelihood he will prevail when facts of the CO are adjudicated on the merits, and
c. health or safety of the public will not be adversely effected or significant, imminent harm to the environment will not be caused.
11. The hearing was held in Jasonville, Indiana and all parties were heard. This satisfies 10a above.
12. There is no credible evidence to ascertain that the lowering of water levels will adversely effect the safety of the public or cause significant, imminent harm to the environment.
13. The CO indicates "Imminent, Significant Environmental Harm" as the reason for its issuance. However, this cannot be correct because the ordered compliance is to obtain rights to, bond, and permit all effected areas.
14. The ordered compliance is designed to protect property rights rather than to prevent harm to the environment.
15. Therefore, paragraph 10c above does not bar Northern from obtaining temporary relief.
16. However, temporary relief cannot be granted because there is not a substantial likelihood that Northern will prevail when the facts of the CO are litigated, thereby failing to satisfy paragraph 10b above.
17. The Department wrote this CO to protect damage to property rights on land not permitted and/or bonded.
18. Northern presented several legal arguments challenging the Department's right to protect these property rights and even whether the rights actually exist.
19. The ultimate authority for the merits of this case is the natural resources commission (the "NRC").
20. In the matter of Amax Coal Company v. Department of Natural Resources, 89-099R and Jack L. Jarrett v. Department of Natural Resources, Amax Coal Company, 89-106R, 21IR and 90-012R, 013R, 026R, the NRC reversed the administrative law judge and ordered the following Finding 333: " ... IC 13-2-2-2 and IC 13-4.1-8-1(21) authorize the Department of Natural Resources to regulate the use of groundwater by a surface coal mining permittee so that such use does not result in damage to property located outside the surface coal mining permit area."
21. The NRC by the cases cited above has given the Department the authority to write a CO such as the one in question here. Therefore, it is
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unlikely that Northern could win on the merits by challenging such authority before the very body which granted it.