Content-Type: text/html Cause #: 96-138w.v8.html

CADDNAR


[CITE: Edwardsville Water Corp, Citizens Against The Pit v. DNR, Silver Creek Sand and Gravel, 8 CADDNAR 115 (1998)]

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Cause #: 96-138W
Caption: Edwardsville Water Corp, Citizens Against The Pit v. DNR, Silver Creek Sand and Gravel
Administrative Law Judge: Teeguarden
Attorneys: Kraft; Mullett; Nardi; Byrne
Date: April 28, 1998

REVISED FINAL ORDER

The non-final stay order of the administrative law judge issued on May 23, 1997, is reversed. The Natural Resources Commission now adopts the ruling of the administrative law judge entitled "Decision on Motion for Summary Judgment and Partial Summary Judgment", dated January 29, 1997, as its final order, and finds that conditions concerning archaeological and cultural resources issues should not be incorporated in permits for construction in a floodway issued pursuant to IC 14-28-1.

In addition, Administrative Cause number 97-064H, which concerned an objection to the issuance permit No. 970009 for Subsurface Reconnaissance and Test Excavation in the Archaeologically Sensitive Areas on the Lower Portion of Site 12FL1 in Floyd County, Indiana, is also disposed of by this final order because that case was consolidated with administrative cause number 96-138W by agreement of the parties and so ordered by Judge William K. Teeguarden on May 28, 1997.

ORDER

(a) The department's motion for partial summary judgment on the grounds that historic preservation, cultural resources, and archeological matters cannot be considered in permits issued pursuant to IC 14-28-1-22 is granted.

(b) Citizens Against the Pit's motion for summary adjudication on the basis of 44 CFR sec. 60 is denied. The department's motion for partial summary judgment on whether or not IC 13-18-17 applies to permits issued pursuant to IC 14-28-1-22 is denied with leave to renew at a later date following discovery and rebriefing.

FINDINGS OF FACT

1. The Indiana Department of Natural Resources ("DNR") is a state agency within the meaning of IC 4-21.5.

2. IC 4-21.5, IC 14-21, IC 14-28, 310 IAC 19, and 310 IAC 20 apply to these proceedings.

3. The DNR is the State Agency responsible for regulating construction in a floodway pursuant to IC 14-28.

4. The DNR is the state agency responsible for the regulation and protection of archaeologically significant sites pursuant to IC 14-21.

5. The Natural Resources Commission (NRC) is the ultimate authority within the meaning of IC 4-21.5 over DNR actions taken with respect to both floodway construction permits and archaeologically matters.

6. The DNR, through the Division of Water ("DOW"), approved and issued floodway construction permit FW-17,394 ("The Permit") to Silver Creek Sand and Gravel Company ("SCSG") which allowed SCSG to conduct a sand and gravel mining operation in the floodway of the Ohio River in Floyd County, Indiana.

7. Both Edwardsville Water Company ("EWC") and Citizens Against the Pit ("CATP") filed timely petitions for review of the permit.

8. In addition, CATP filed a petition for a stay of effectiveness of the permit citing potential damage to cultural resources in the are approved for excavation.

9. During the course of these proceedings, the parties filed various motions for summary judgment and partial summary judgment.

10. One such motion was filed by the DNR and sought a ruling by the administrative law judge, that cultural resource considerations could not be considered in deciding whether to grant or deny a floodway construction permit.

11. On January 29, 1997, the administrative law judge found in favor of the DNR and granted the motion for partial summary

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judgment. After the administration law judge became aware of two prior decisions of the DNR which held that the DOW should consider matters beyond the scope of the FCA when granting a floodway construction permit as long as the matters being considered fall under the statutory regulatory authority of the DNR and NRC, the decision of January 29, 1997, was reversed on April 9, 1997.

12. Because of the importance of these two decisions, they are attached to these findings as "Attachment A and "Attachment B," [attachments not included in CADDNAR] respectively, and are incorporated into this decision by reference for further consideration by the NRC and the court system if judicial review is taken.

13. Once the decision of April 39, 1997 was issued, the matter of the stay became crucial and a stay hearing was held.

14. The stay hearing took three days to complete. It included testimony from ten persons, including six qualified archaeologists and a large number of exhibits including two videotapes.

15. SCSG has commenced mining under the terms of the approved permit.

16. SCSG has a considerable investment in time, equipment and labor connected with this mining operation.

17. Because of the circumstances surrounding this cause, the decision on the stay essentially determines the ultimate disposition of the matter.

18. For that reason, these findings and the accompanying order should be presented to the NRC for a final determination of the issues presented herein and on the matter of the stay so that any party who fails to prevail my commence judicial review. Accordingly, if any party files a request for this matter to be presented to the NRC for consideration with objections by June 12, 1997, it will be placed on a future NRC agenda.

19. The NRC has considered the general criteria for the grant of a stay request in a permit matter in Brown v. DNR and Peabody Coal Co., (1993), 6 Caddnar 136. Those criteria are listed as follows:

A. Has the person seeking the stay shown reasonable likelihood of success on the merits?
B. Would the person seeking the stay suffer irreparable harm if the stay were denied?
c. Does the threatened harm to the person seeking the stay outweigh the harm to the permittee if the stay is granted?
20. The governing statute on floodway construction permits is IC 14-28-1-22.

21. IC 14-28-1-22(e) sets forth the matters to be considered when deciding whether or not a floodway construction permit should be issued. No testimony was presented on those matters, and thus for purposes of the stay hearing, it is assumed that SCSG provided sufficient information regarding the effect of the construction on flood stages, safety, fish, wildlife, and botanical resource considerations to justify the grant of the permit.

22. Also, the DOW only has permit and enforcement jurisdiction in the actual floodway. There was no direct evidence to show that the entire mining site is in the floodway of the Ohio River; however, there is some indirect evidence dealing with recent flooding. All parties had the opportunity to present evidence dealing with the regulated areas, and since there was no such evidence presented for purposes of this hearing, any argument as to the geographic scope of the permit is waived and all of the proposed mining area is assumed to be in the floodway.

23. The DHPA of the DNR regulates cultural resources through IC 14-21-1-27 and 29.

24. IC 14-21-1-27 imposes certain duties on any person that disturbs human remains.

25. IC 14-21-1-29 imposes certain duties on a person who discovers artifacts while disturbing the ground.

26. IC 14-21-1-24 lists several exempted businesses. SCSG does not fall within the list of exemptions.

27. The owner of the real estate upon which

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the mining activity is taking place was notified by DHPA of the cultural significance of an unexcavated stratified shell mound, commonly known as the "Reid Site." See Exhibit 6.

28. The Reid Site is a late Archaic Shell middlen, which has not been investigated to any great degree. See Exhibit X.

29. Within a half mile or so of the Reid Site is the Patty's West Site, a similar mound which has been studied by archaeologists. See Exhibit X.

30. Other similar sites have been discovered on both sides of the Ohio River in the greater Louisville area. See the testimony of Granger.

31. The permit area includes approximately 50 acres, and does not include the mound at the Reid Site, but the southern end of the project area is within 200 feet of the Reid mound.

32. The permit was issued in June of 1996.

33. The permit allows excavation to a maximum depth of 70 feet and permits a berm to be constructed around the boundary of the pit. See Exhibit AAA.

34. The permit also allows the construction of a pole barn, wash plant, and other business elated activities in the floodway.

35. The permit includes "general condition (1)" which provides that "if any archaeological artifacts or human remains are uncovered during construction, federal law . . . and state laws (IC 14-21-1) require that work must stop and that the discovery must be reported to the Division of Historic Preservation and Archaeology within two business days."

36. The permit includes "general condition (6)" which states "this permit may be revoked by the Department of Natural Resources for violation of any condition, limitation, or applicable statute or rule."

37. This permit includes "general permit conditions (9)" which states "the receipt and acceptance of this permit by the applicant or an authorized agent shall be considered as acceptance of the conditions and limitations stated on the pages entitled general conditions and special conditions."

38. SCSG did not petition for administrative review of any of the special or general conditions on the permit, so as the permit exists today, the above general conditions apply.

39. SCSG had operated for several months in 1995 under a similar permit which was revoked by the NRC in January of 1996 for failure to provide notices of the permit application to surrounding property owners.

40. SCSG was aware of the need for an archaeological assessment of the site from its landowner and hired 3D/Environmental to perform a phase IA and then a phase IC study of the site.[Footnote 1]

41. In December of 1995, while excavating near the boundary closest to the Reid Site, SCSG intruded upon intact cultural deposits below the plow zone, apparently connected to the Reid Site.

42. DHPA required SCSG to cease excavation in that area and protect the site until a phase II study could be done.

43. As a result of the phase IC study, two other portions of the permit area were closed to excavation by DPHA until a phase II investigation can be completed.

44. The December 1995 intrusion has been referred to as the "accidental discovery."

45. CATP witnesses disagree with that terminology.

46. CATP called two witnesses, Dr. Joseph Granger from the University of Louisville and Dr. Ed smith from Indiana-Purdue Fort Wayne. Both are highly qualified archaeologists.

47. Smith was the principal investigator of the Patty's West Site.

48. Granger is of the opinion that the Reid Site, the Patty's West Site and the other two areas of concern discovered during the phase I investigation cannot be considered separate and distinct sites.

49. Granger is of the opinion that the sites are likely part of one big, important site, and that no further excavation should take place until a phase II investigation is completed for the entire area.

50. Granger is also of the opinion that the phase IC study was not thorough enough for several reasons, the two most important being that the trenches did not extend deep enough to discover deeply embedded deposits (at least 20 feet) and the distance between trenches (60 meters) was way too large.

51. Granger also testified that the "accidental"

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discovery in fact was highly predictable and that mining that close to an identified but unexplored site is an open invitation to intrusions.

52. Granger also pointed out the need to keep heavy equipment out of sensitive areas.

53. Granger summarized his testimony by emphasizing that there is no question that a cultural site is definitely present and further testing is needed to discovery the size and significance.

54. Smith pointed out the similarities (flood plain, geology, shell mound) between the Patty's West Site and the area around the Reid Site.

55. Smith stated that at Patty's West, the investigation started with trenches 30 meters apart and that still did not show the existence of a major site until further testing was done.

56. SCSG relied on the testimony of Chris Bergman, an archaeologist with 3-D who was involved in the phase IA and IC studies and Don Cochran an archaeologist at Ball State University who has the contract to do the Phase II studies for SCSG.

57. Bergman worked with DHPA employees in completing the phase IA and IC studies.

58. Bergman testified phase IC was designed to test 1-3% of the site and was in compliance with Indiana guidelines.

59. Bergman completed his work in 1995 but was called back in December of 1995 after the intrusion into the artifacts near the Reid Site.

60. Bergman indicated that every archaeologist would probably like to perform a thorough examination of every square inch of land in the U.S., but this is impossible and the law does not require it, nor does it require Granger's approach to be used.

61. Bergman also stated that if there are anymore "accidental" discoveries, excavation should stop immediately and DHPA notified.

62. Bergman agreed that the closer excavation moved to the Reid Site the more likely the operation was to impact a sensitive area and one of his earlier reports (exhibit 5) recommended a phase II study near the south boundary where the "accidental" discovery occurred.

63. Cochran was hired by SCSG to perform the phase II studies required by DHPA.

64. The current plan was developed in consultation with and approved by DHPA and is scheduled to start on May 12, 1997.[Footnote 2]

65. Cochran agreed that archaeologists are always dependent on samples to guide their work, but felt that at this time there was not need to require a phase II investigation in areas of the permit where artifacts where not uncovered by the trenches.

66. The phase I report (exhibit D, p 34) does, however, conclude that the potential for deeply buried cultural deposits is high throughout the study area and that a program of deep testing should be implemented.

67. Cochran testified that phase IC trenches are usually less than 60 meters apart and that the phase II plan that he is implementing will check out 5-10% of the sensitive areas.

68. The DNR called two DHPA archaeologists, Jim Mohow and James Jones, State Archaeologist as witnesses.

69. Mohow has been involved in this matter to some degree since 1990 and has been to the site several times.

70. Mohow reported that skeletal remains were discovered at the Reid Site in the 1970's.

71. Mohow investigated the intrusion onto the base of the Reid Site in December of 1995 and was partially responsible for the requirement that the site be protected and no further excavations take place near the southern boundary until a phase II investigation was completed.

72. Mohow also wrote a report to DOW during the permit review process in March of 1996 recommending that excavation be prohibited in certain areas until further archaeological studies were completed. However, this recommendation was not incorporated into the approved permit.

73. Mohow visited the mining site twice of April 1997 and felt that everything was progressing reasonably well and that current mining activities were not endangering cultural resources.

74. Mohow stated that the areas where excavation has been restricted by DHPA may be one of the best archaeological sites along

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the Ohio River.

75. Mohow has noticed similarities between The Patty's West Site, but also noted that there are also differences.

76. Mohow also stated that there is no reason to believe at the present time that the areas cleared for excavation contains significant cultural resources.

77. Mohow also stated he would have recommended phase IA and IC studies in the area of the barn and the washplant if he had been aware of the plans for their location.

78. Most of the rest of the testimony came from the representatives of the permittee and the industry.

79. SCSG was aware of the fact that some archaeological work would need to be done from the time the lease was negotiated.

80. SCSG obtained a list of persons and businesses certified to do investigations in Indiana and eventually contracted with 3-D.

81. The phase IA report was finished in June of 1995 and the IC report was finished in August of 1995.

82. The plans for both phase I reports were developed in consultation with DHPA.

83. As a result of the IC report, DHPA prohibited disturbances in two areas totaling 7 acres pending the completion of phase II investigations in those areas.

84. Surface work commenced at the site in September of 1995, and was suspended in January of 1996 when the permit was revoked for lack of notice.

85. 3-D performed an emergency study of the intrusion near The Reid Mound and wrote reports in October 1996 and February 1997.

86. During the cessation of activities, SCSG decided to take bids on the phase II investigations and contracted with Ball State University to perform this study.

87. Work recommenced at the site under the present permit of June of 1996.

88. BSU completed a study of the wash plant area in March of 1997.

89. The studies of the three restricted areas by BSU were supposed to have begun in the late fall of 1996, however, as of that date of the stay hearing, the start date was May 12, 1997.

90. In April of 1996, SCSG notified DHPA that they were not taking any responsibility for the intrusion into the base of the Reid Site near the southern boundary of the permit area and would not expend any more resources in further archaeological investigations of the disturbed site.

91. After meetings in late spring between representatives of SCSG, DNR, the Indiana Attorney General's Office and the local prosecutor's office, SCSG agreed to do further archaeological work.

92. The 3-D reports done during 1995 suggest further study of the southern boundary area be done prior to excavation near the Reid Mound.

93. No such study was done prior to the December 1995, intrusion into the base of the Mound.

94. In early spring of 1996, SCSG cut a 15-inch deep drainage trench to prevent ponding near the Reid Mound.

95. This action was an excavation taken in an area where excavation was prohibited by DHPA and was done without the knowledge or permission of DHPA.

96. The trench disturbed some artifacts.

97. With respect to the "accidental" discovery of December 1995, while the trier of fact might not agree completely with Granger's opinion, the trier of fact can certainly conclude that such a problem was foreseeable and SCSG's own consultant had recommended further studies in this area before excavation.

98. Considering the history of SCSG's involvement with cultural resources at this site; to wit, the 1995 intrusion into the Reid Site (which was not self-reported, as required by IC 14-21-1-29, but reported by others), the attempted refusal to take responsibility for the intrusion and otherwise conform to IC 14-21-1-29 and 310 IAC 20-2, the 1 « year delay into commencing the required phase Ii investigation into the disturbed area near the Reid Site, and the construction without notification of or consulting with DHPA of the trench in an area declared off-limits for excavation, the trier of fact is not highly confident that the permittee is committed to the preservation of intact cultural deposits at this site.

99. Given Mohow's observations from his last two site visits during April of 1997, the trier of fact does not believe there is sufficient evidence to place a

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complete ban on all excavation pending the completion of further archaeological testing. However, there is always the possibility that the next excavation may require a cessation of the operations in that area.

100. The trier of fact does find, however, that there is a need to grant a partial stay in the form of conditions added to the permit until a final hearing can be held and a final decision issued by the NRC.

101. Specifically, there need to be several conditions added to the permit incorporating the DHPA recommendations of March 1996, and clarifying the duties of SCSG with respect to cultural resource.

102. There also needs to be a condition which compels the phase II investigations to be commenced and completed along the southern boundary near the Reid Mound where the intrusion occurred in December of 1995.[Footnote 3]

103. General condition 6 dealing with possible penalties for failing to conform to the terms of the permit and attached conditions needs to be reworked and expanded to make clear the scope fo possible penalties for violation.

104. Within the parameters of Brown, supra, the trier of fact concludes that the public interest is served by granting a partial stay of the permit, there is the possibility of irreparable harm to intact cultural resources if a partial stay is not granted, and the harm to the permittee outweighs the threatened harm to the claimants at this time if a total stay is granted.

STAY ORDER

Pending a final hearing on the grant or denial of Floodway Construction Permit FW 17,394, a partial stay is granted in that the existing FW 17,394 permit is modified in the following manner:

A. General condition (1) should be modified by adding the following sentence underneath the Division of Historic Preservation and Archaeology's address and phone number. "The obligation to report the uncovering of artifacts or human remains is on the permitee and the failure to report an uncovering is a violation of this permit."

B. General condition (6) should be modified to read as follows: "The failure of the permittee to conduct the floodway construction operation as provided in the permit and conditions attached thereto or the failure to conduct the construction in accordance with applicable statutes or rules subjects the permittee to the possible revocation or suspension of the permit and the imposition of a civil penalty pursuant to IC 14-28-1-36."

C. Special condition 6 should be added to read as follows: No disturbance shall take place in the two areas consisting of approximately 7 acres which have been identified as archaeologically sensitive areas on page 6 of the phase IC investigation prepared by 3D Environmental and dated August 9, 1995, until a phase II study has been completed and the division of Historic Preservation and Archaeology gives its approval of work in these areas. The word "disturbances" not only includes excavation but also includes the placement of a berm and the frequent presence of heavy equipment except the equipment necessary to carry out the phase II investigation.

D. Special condition 7 should be added and should read as follows: No further disturbance shall take place in the area (approximately .5 acres) closest to the Reid Site until the completion of a phase II investigation and subsequent clearance by The Division of Historic Preservation and Archaeology.

E. Special condition 8 should be added and should read as follows: If the phase II investigation of the .5 acre near the southern permit boundary near the Reid Site where artifacts were uncovered in December of 1995 has not commenced by June 9, 1997, all work int he floodway shall immediately cease until such time as The Division of Historic Preservation and

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Archaeology has confirmed that the phase II investigation has begun.

FOOTNOTES

1. Archaeological surveys vary in intensity. A phase I survey may include nothing more than a literature search and a brief visual inspection fo the site. The phase IC survey included trenching to discovery buried sites. A phase II survey includes closer and deeper samples and a phase III survey would include a thorough examination and assessment of virtually every square foot of a target area and recovery of the artifacts.

2. The phase II studies were supposed to begin last fall but have not yet begun.

3. There is no need to compel phase II studies on the restricted areas at this time since there has not been an intrusion and SCSG has the option to leave the restricted areas undisturbed.

Decision on Motions for Summary Judgment and Partial Summary Judgment

On June 15, 1996, the Edwardsville Water Corporation filed a petition for administrative review of the decision of the department to grand Floodway Construction Permit FW 17,394 to Silver Creek Sand and Gravel Company, Inc.. On June 20, 1996, Citizens Against the Pit filed a similar petition for administrative review. On October 22, 1996 Citizens Against the Pit filed a motion for summary adjudication alleging that the permit on its facts violates 44 C.F.R. Sec. 60.3 as a matter of law thus the department cannot approve the permit. On October 24, 1996, the department filed a motion for partial summary judgment on the issues involving archaeological matters, contending that as a matter of law, archaeological issues are not relevant to the grant (or denial) of a floodway construction permit. On November 25, 1996, Citizens Against the Pit and the department filed responses. On December 2, 1996, Silver Creek filed a response. On December 13, 1996, the department and Citizens Against the Pit filed reply briefs. On December 17, 1996, Silver Creek filed an affidavit contesting "facts not in dispute." The several hundred pages of briefs and exhibits present three issues to the administrative law judge. They are as follows:

1. Are concerns about archaeologically significant areas addressable in a decision to grant or deny a floodway construction permit pursuant to IC 14-28?

2. Does 44 C.F.R. Sec. 60.3 require the DNR to deny the permit application?

3. Is the DNR precluded from considering the effect of a floodway project on groundwater quality? IC 4-21.5-3-23 provides that summary judgment on one or more issues may be granted if the administrative law judge finds there is no genuine issue as to material facts and one party is entitled to judgment as a matter of law. The department is the state agency responsible for regulating both construction in flood ways, IC 14-28-1, and matters of historic or cultural significance, IC 14-21. The department does not, however, regulate them through the same permit, bureau, or division. Permits involving floodway construction are examined and issued by the division of water. The division of historic preservation and archaeology regulates sites and plans involving the discovery of artifacts while disturbing ground for a purpose other than the discovery of artifacts. See IC 14-21-1-29. The examination of a permit application pursuant to IC 14-28-1 and of a proposed plan pursuant to IC 14-21-1-29 are entirely separate and distinct functions. An approval of a preservation plan (or a decision not to interfere in any way with construction) does not give Silver Creek the right to alter a floodway. The approval of a floodway construction permit does not give Silver Creek the right to ignore the provisions of

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IC 14-21-1-29. Satisfaction of both sections does not do away with the need for any permits from IDEM, Army Corps of Engineers, or local zoning and planning agencies. This particular action deals only with a permit issued under the Floodway Construction Act, IC 14-28-1-22. The applicant is entitled to the permit if the applicant shows the project "...will not do any of the following:

1. Adversely affect the efficiency of or unduly restrict the capacity of the floodway.

2.Constitute an unreasonable hazard to the safety of life or property.

3. Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources" Cultural resources are not included.[Footnote 1] The department may well have a right or a duty to regulate this site for historic or cultural purposes but it does not have a right or duty to regulate those issues by means of a floodway construction permit. The Natural Resources Commission has considered a similar case and decided that a floodway construction permit was not the proper vehicle for objecting to potential damage to a historic structure. See Michigan City Historical Society v. DNR and Francik, 5 Caddnar 169 (1990). The department's motion for partial summary judgment on the issue of historic preservation and cultural resource considerations is granted. Citizens Against the Pit request summary judgment on the basis of 44 C.F.R. Section 60.3. The factual basis for such a request involves the fact that a number of non-residential structures and equipment will be placed at an elevation below the 100 year flood stage and that the Federal Emergency Management Agency (FEMA) regulation cited above prohibits this. Part of the citizens argument is based on language in Yater v. DNR, 6 Caddnar 168 (1994). Yater does not apply to any great extent because the FEMA problem in that case involved the location of the floodway. Yater produced scientific evidence that the floodway of the stream next to his property was considerably lower than the FEMA map showed. The department expert generally agreed that the FEMA floodway designation was too high. The Yater decision holds that where FEMA has set a floodway, the state must follow that designation until FEMA changes it, even if it appears to be incorrect. As of now, the FEMA floodway designation does not appear to be an issue in this case. Floodplain and flood fringe areas are generally controlled by local units of government. 310 IAC 6-1-11 and 310 IAC 6-1-12 discuss these matters and provide for variances (or nonconforming uses) by the local authorities. 44 C.F.R. Sec. 60.6 does likewise. Citizens complains involving the structures must be pursued at the local level unless one (or more) of the structures will adversely affect or restrict the floodway of the stream or result in unreasonably detrimental effects on fish, wildlife, or botanical resources. Citizens motion for summary adjudication with respect to 44 C.F.R. Sec. 60 must be denied. The parties briefly discussed partial summary judgment with respect to consideration of well head protection of groundwater and IC 13-18-17 in Floodway construction permits. IC 13-18-17-5 appears to make the water pollution control board the primary enforcement agency so at first blush, it seems that the department is entitled to partial summary judgment in that the department of environmental management would be the appropriate regulatory agency to investigate this problem. However, one claimant is municipal water works. IC 14-28-1-22(e)(2) discussed unreasonable hazards to safety and IC 13-18-17-5(b) imposes well head protection standards on activities regulated by the department of natural resources. For these reasons, the administrative law judge decides it is premature to rule on this issue.

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FOOTNOTES

1. The legislature understands how to include cultural resource considerations in a permitting scheme. See IC 14-34-3-3(13), IC 14-34-3-10, and DNR v. Indiana Coal Council, Inc., (Ind. Sup. Ct. 1989), 542 N.E.2d 1000, which apply to Surface Coal Mine permits.