The Department of Natural Resources decision approving a 60% bond release on 72.9 acres of permit S-184 is hereby modified to allow the release of 71.7 acres. In all other respects, the Department decision remains unchanged and is affirmed.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The administrative law judge is the ultimate authority within the meaning of IC 4-21.5 in this matter.
4. The DNR is the state agency responsible for regulating the surface mining of coal.
5. At all times relevant to these proceedings, Vigo Coal Company ("Vigo") held surface coal mine permit S-184 issued by the DNR which allows Vigo to conduct a surface coal mining operation in southeastern Gibson County.
6. Vigo has completed the coal extraction process and is currently engaged in the reclamation phase of the mined properties.
7. In the spring of 1991, Vigo requested a 60% (Phase I) bond release on approximately 88 acres of mined property.
8. Several neighboring property owners ("Seibert") objected to any bond release.
9. The DNR conducted an on-site inspection and met with some of the aggrieved neighbors on May 30, 1991.
10. On July 2, 1991, the DNR decided to grant the bond release on approximately 73 acres.
11. Seibert filed a request for administrative review.
12. IC 13-4.1-6-7 and 310 IAC 12-4-16 set forth the criteria for bond release. They provide for a 60% bond release ("Phase III) after an operator completes backfilling, regrading, and drainage control.
13. Seibert contends that drainage remains a problem, and that his farmland, which is only a drainage ditch away from the mine property, now has an increased risk of flooding.
14. The evidence presented by Seibert shows that the county road which runs through the mine property was restored at a higher elevation.
15. Considerable evidence was introduced showing the county road flooded frequently to the point of impassability prior to mining.
16. The mine produced evidence that the road was reconstructed at a higher elevation at the request of the county so as to reduce the probability of road floods and impassability.
17. Most of the property involved in this request for bond release is prime and nonprime farmland.
18. As a result of its bond inspection, the DNR held out a few isolated areas because of depressions. The mine did not request review of any of the hold outs.
19. The DNR recommended release of bond on 2.6 acres of county roads because the roads had been reconstructed to the county's satisfaction. The roads in question are earthen works covered with crushed limestone.
20. The parties agreed that the ALJ should view the site, which is very close to SR 57 and easy to visit.
21. The ALJ has visited the site on at least two occasions.
22. The bulk of the property involved has been restored to its approximate original contour and is supporting vegetation. The rolling contour of the land is consistent with the general contour of southern Gibson County. In short, the vast majority of the proposed bond release area qualifies for Phase I bond release.
23. A portion of the rebuilt county road; however, acts as a dam and restricts the free flow of water back and forth across the road as it would have occurred prior to mining.
24. Exhibit B indicates approximately 1,500 feet of roadway is involved.
25. The general width of the roadway with shoulders, from both exhibit B and observation, is approximately 35 feet.
26. Thus 52,500 square feet are involved in area which inhibits the
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original drainage pattern or approximately 1.2 acres.
27. Until such time as the mine can show that the surface drainage pattern with the new road is the same as the surface drainage prior to mining, the bond on this 1.2 acres cannot be released.
28. In all other respects, bond release requirements on the approved release area have been shown.