The decision of the Department of Natural Resources to release the bond in this matter is affirmed.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR, acting through the Bureau of Reclamation, is responsible for the regulation of surface coal mines in Indiana.
3. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
4. JH&L Coal Company ("JHL") holds surface coal mine permit S-143 which allows the surface mining of coal at the Arthur mine near Worthington in Greene County, Indiana.
5. Northern Coal Company ("Northern") operates the mine for JHL and appeared for JHL at the hearing in this matter.
6. The administrative law judge ("ALJ") is the ultimate authority for DNR over matters involving bond release.
7. JH&L, through Northern, filed a request for Phase I Bond Release of 223.6 acres of permit area and Phase II Bond Release of 11.4 acres of permit area.
8. On May 22, 1992, a duly authorized employee of the DNR conducted a bond release inspection.
9. As a result of that inspection, the DNR approved Phase I Bond Release on 209.4 acres and Phase II Bond Release on 6.7 acres.
10. Dean Hostettler ("Hostettler") filed a presumably timely objection to bond release.
11. Hostettler owns a sizable area of property in the vicinity of the mine but only 1.9 acres of non-prime farmland falls within the area on which bond release was requested.
12. Hostettler's two major objections to bond release are that a number of rocks are present near the surface of his 1.9 acres, which will inhibit farming; and that pond #1 and pond #4 in the permit area (not an Hostettler's property, but in the requested release area) are not properly controlling sediment release onto his property.
13. Testimony and photographs show a number of rocks six inches to 15 inches or more in length present in the 1.9 acres.
14. Testimony and photographs also show that the area was disked and a vegetative cover established.
15. The DNR did not recommend release of all areas included in JH &L's request.
16. Two of the areas on which the DNR refused to release bond were the spillway and slope areas of ponds 1 and 4.
17. Since bond is not being released in these areas, there is no need to discuss this contention any further.
18. Bond releases from surface coal mine permit areas are governed by 13-4.1-6-7 and 310 IAC 12-4-16.
19. Both the statute and the rule provide for a 60% bond release (Phase I) after the operator completes " . . . backfilling, regrading, and drainage control of a bonded area in accordance with his approved reclamation plan. . . . "
20. Backfilling and regrading have been completed and no evidence was introduced to show that the 1.9 acres was not the approximate original contour of the pre-mined land.
21. No evidence was introduced to show the present contour of the 1.9 acres creates drainage problems.
22. The evidence shows that the DNR tested the depth of topsoil replacement and it conforms to the permit requirements for non-prime farmland.
23. The fact that rocks are present in the topsoil does not affect a Phase I Bond Release. Phase II deals with meeting cropland production standards and showing the 1.9 acres in question can actually be farmed. It is during this phase of bond release that the rocks need to be removed and the land shown to be capable of producing row crops.
24. Accordingly, the DNR's decision to release the bond on the 1.9 acres of
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Hostettler's property is affirmed.