CADDNAR

[CITE: White v. Triad Mining, LLC & DNR, 14 CADDNAR 154 (2017)

 

 

[VOLUME 14, PAGE 154]

 

 

Cause #: 16-132R

Caption: White v. Triad Mining, LLC & DNR

Administrative Law Judge: Wilson

Attorneys: pro se (White); Sullivan (Triad); Boyko (DNR)

Date: April 24, 2017

 

 

Final Order

 

The approval of the application for bond release issued by the Department is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

 

 

Statement of the Proceeding and Jurisdiction:

 

1.     On August 1, 2016, Jerry White (“White”), a self-represented person, filed correspondence (the “Petition”) with the Natural Resources Commission (the “Commission”). White seeks administrative review of the Department of Natural Resources’ (“Department”) approval of a bond release requested by Triad Mining, LLC (“Triad”).

 

2.     White avers in the Petition that a pond on his property has leaked for many years and continues to leak despite repairs completed by Triad. White avers that, because of the leakage, the Department’s approval of Triad’s bond release is in error.

 

3.     Specifically, the Petition states that White “…told them the leak would just pop up somewhere else, funny it popped up in the middle of that big ditch, between pipe and road. Now water runs from the pond runs in the ditch 24-7! That 36’ over flow pipe doesn’t see water at all unless we have a flood or unusual amount of rain, very seldom.”[1] See the Petition.

 

4.     White, Triad and the Department are hereinafter collectively referred to as “the Parties”.

 

5.     The Petition initiated a proceeding governed by IC 4-21.5-3 commonly referred to as the Administrative Orders and Procedures Act (“AOPA”) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.

 

6.     Administrative Law Judge (“ALJ”) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding and to consider the Petition as a request for administrative review under AOPA and 312 IAC 3-1.

 

7.     On September 22, 2016, following the issuance of notice to White, Triad and the Department, ALJ Wilson held a Prehearing Conference in Jasonville, Indiana. During the Prehearing Conference, the ALJ provided legal advisories to the Parties and the Parties stated their positions. During the Prehearing Conference, a telephonic Status Conference was set for October 27, 2016.

 

8.     On October 18, 2016, Counsel, Chad Sullivan filed an appearance on behalf of Triad.

 

9.     During the Status Conference on October 27, 2016, with all parties present, the ALJ reiterated the legal advisory prohibiting ex parte communication.[2] The ALJ also reiterated the legal advisory acknowledging that White, as a self-represented party, could represent himself but, in doing so, would be expected to perform essentially with the skills and knowledge of an attorney. During the Status Conference, a telephonic Second Status Conference was set for December 7, 2016.

 

10.  During the Second Status Conference on December 7, 2016, with all parties present, the ALJ ordered deadlines to complete discovery and to exchange witness and exhibit lists. Also during the Second Status Conference, a telephonic Final Status Conference was set for February 22, 2017, and the date and time for the administrative hearing were set.

 

11.  During the Final Status Conference on February 22, 2017, the Parties were informed that Jasonville, Indiana would be the location for the hearing that was previously scheduled for March 9, 2017.

 

12.  A hearing of the facts was conducted on March 9, 2017, in Jasonville, Indiana, with all parties present.

 

13.  Following the administrative hearing, the Parties were allowed the opportunity to file proposed findings of fact and conclusions of law on or before March 31, 2017. White filed no findings of fact and conclusions of law. On March 31, 2017, Triad filed Findings of Fact and Conclusion of Law and the Department filed Proposed Findings of Fact and in the same document Proposed Conclusions of Law.

 

14.  This proceeding is governed by IC 14-34, commonly referred to as the Indiana Surface Coal Mine and Reclamation Act or I-SMCRA. One purpose of IC 14-34 is to “Implement and enforce the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201-1328).” IC 14-34-1-3(1)

 

15.  The Department is an administrative agency of the State of Indiana with responsibility for the administration and enforcement of a program for the regulation of surface coal mining and reclamation pursuant to I-SMCRA and its implementing rules set forth at 312 IAC 25.

 

16.  A determination by the Department to approve or disapprove an application for bond release is subject to administrative review under IC 4-21.5-3 and related rules at 312 IAC 3-1. 312 IAC 25-5-16(l)

 

17.  The ALJ is the “ultimate authority” as defined by IC 4-21.5-3-15 for Department decisions concerning bond release requests. IC 14-34-2-2 and 312 IAC 3-1-2(b)

 

18.  The ALJ has jurisdiction over the subject matter and over the persons of the parties under IC 4-21.5 and 312 IAC 3-1.

 

 

[VOLUME 14, PAGE 155]

 

Findings of Fact:[3]

 

19.  Triad conducted a surface mining operation under Permit #S-257 (the “Permit”) identified as the “Switz City Mine.” See Triad’s Exhibits 1 and 2.[4]

 

20.  As required by law, Triad filed a performance bond with the Department for the permitted mining operation.

 

21.  Portions of property on which White maintains an interest (the “White property”) were mined under the Permit beginning in December of 2000, with coal removal completed by September of 2001.  See Triad’s Exhibit 3.

 

22.  Within the permitted mining area subject to Triad’s bond, the White property is currently identified as prime farmland, cropland, pasture, forest and water. See Triad Exhibit 1.

 

23.  Prior to the permitted mining operation, two ponds were present on the White property, one on either side of a fence. One pond covered approximately 1½ acres and another covered less than one acre. See testimony of White.

 

24.  White and White’s father provided their written consent[5] for the construction of a pond, hereinafter “water impoundment”, from a final-cut pit near the middle of 32 acres on the White property. See testimony of White.

 

25.  Triad constructed a water impoundment on the White property. See testimony of White.

 

26.  In 2016, a Bond Release Inspection Report (“Inspection Report”) was prepared by Department staff in response to Triad’s Phase II and Phase III bond release request. The Inspection Report states that vegetation requirements and site conditions are consistent with the approved plan of reclamation and “[p]ost-mining land uses have been approved and are consistent with field conditions”.  See Triad’s Exhibit 3, pages 4 and 6.

 

27.  A reasonable conclusion supported by the Inspection Report is that the Department approved any change in the post-mining land use necessary to allow for the permanent water impoundment on the White property. Department approval of the water impoundment as a post-mining use is uncontested. Any necessary revision to the Permit requirements, for an approved reclamation plan that includes the water impoundment, are deemed to have been completed.

 

28.  Water did not flow from the White property prior to Triad’s construction of the water impoundment. See testimony of White.

 

29.  After Triad’s construction of the water impoundment, water flowed from the southern part of the White property, to and over County Road 75 North (“CR 75N”). See testimony of White.

 

30.  John Voigt (“Voigt”) is a Reclamation Specialist for the Department’s Division of Reclamation. Voigt’s duties include field inspections on a specific list of surface mines and permit reviews for surface coal mining operations. Voigt graduated from the University of Wisconsin in 1987, with a Bachelor of Science in Reclamation and Biology. Voigt began his employment with the Department in 1988. See testimony of Voigt.

 

31.   In 2006, Voigt began conducting periodic inspections of the White property that is under the Permit and Triad’s bond. See testimony of Voigt.

 

32.  Photographs taken on August 26, 2011, reveal portions of the White water impoundment. The high water mark for the impoundment is located immediately below the green vegetation line on each photograph. The brown area that extends approximately two to three feet below the green vegetation line represents the difference between the high water mark and the water level at the time when the photograph was taken. The water level in the photographs represents the lowest water level that Voigt observed during inspections that Voigt conducted before Triad made repairs that included a spillway rework. See testimony of Voigt and the Department’s Exhibits 2 and 3. 

 

33.  A photograph taken on September 15, 2011, includes a view of portions of CR 75N that are adjacent to and immediately south of the White property. Voigt acknowledges that, at the time when the photograph was taken and until the spillway rework, there was a continuous wet area and water seepage onto the roadway, consistent with the flow revealed in the photograph, even in dry weather. See testimony of Voigt and the Department’s Exhibit 4.

 

34.  Brent Boyle (“Boyle”) is a Surface and Reclamation Engineer employed by Triad. His duties include the performance of reclamation efforts for purposes of environmental compliance. Boyle’s duties also include efforts to satisfy the Permit requirements and Department regulations. Boyle has worked with dozens of bond release applications, over a period of time that exceeds 20 years. See testimony of Boyle.

 

35.  Triad worked on White’s water impoundment on multiple occasions and repaired one or more leaks in the impoundment. See testimony of Boyle.

 

36.  In 2012, Triad installed a spillway pipe and compacted the area around the White water impoundment. Thereafter, while the water level in the water impoundment fluctuated with the weather, the impoundment held water at a level that was substantially stable for its intended purpose. See testimony of Boyle.

 

37.  A photograph taken on September 6, 2012, includes a view of the spillway that was installed on the southern portion of the White property, near CR 75N. Voigt did not observe water leaking onto CR 75N at the time the photograph was taken, nor has he observed water leaking onto the roadway since the spillway installation. See testimony of Voigt and the Department’s Exhibit 5.

 

38.  Since 2012, Voigt conducted inspections of the bonded area on a recurring basis, at least monthly, including inspections of the water levels within the impoundment. See testimony of Voigt.

 

39.  Voigt has observed that the water levels of the water impoundment have been relatively stable since the 2012 spillway installation. Voigt opines that the spillway allows for appropriate discharge and offers stability for impoundment water levels. See testimony of Voigt.

 

40.  A photograph taken on October 7, 2013, includes a view of the ditch along CR 75N after Triad performed repairs that included the spillway rework. The photograph reveals no water flowing over the road. See testimony of Voigt and the Department’s Exhibit 6.

 

41.  The general process for bond release is completed in three phases after mining operations are complete. The three phases are generally described as follows:

 

a.      Phase I is for 60% of the bond and involves grading as well as soil replacement and protection for a reclaimed area.

b.     Phase II is for 25% of the bond, depending on the land use, and involves a release following monitoring for production levels and compliance with vegetation standards. Necessary tree planting could be included for this phase. 

c.      Phase III is for the remaining bond and is withheld for an appropriate period of time beyond closure of a mining operation to allow time to monitor productivity and the stability of the bonded area.  

See testimony of Voigt.

 

 

[VOLUME 14, PAGE 156]

 

42.  In February of 2003, Triad requested a Phase I bond release that included the water impoundment and cropland on the White property. The Phase I bond release was completed that excluded bond release on the water impoundment because the impoundment was not yet filled. See testimony of Boyle and Triad’s Exhibits 1 and 3.

 

43.  On June 14, 2016, Boyle, on behalf of Triad, submitted a bond release application to the Department for the following: 

 

a.      Triad requested a Phase I bond release for 8.2 acres, which included 4.6 acres of water impoundment, 1.3 acres of cropland, 1.1 acres of pasture and 1.2 acres of forest on the White property.

b.     Triad requested a Phase II bond release on 84.8 acres. The White property for which Phase II bond release was sought is in two tracts totaling 18.4 acres and 16.7 acres, including the water impoundment, prime farmland, cropland, pasture and forest.

c.      Triad requested a Phase III bond release for 86.3 acres, which included the same White property that was associated with the Phase II bond release.

See testimony of Boyle and Triad’s Exhibit 1.

 

44.  After Voigt received and reviewed the bond release request from Triad, he scheduled a site inspection for July 14, 2016. Voigt notified all required persons of the inspection through correspondence dated July 7, 2016. See testimony of Voigt and the Department’s Exhibit 1.

 

45.  Voigt conducted his site inspection on July 14, 2016, accompanied by Department representatives, Todd Sellers and Kelsey Pearman. White also attended the inspection. See testimony of Voigt.

 

46.  Voigt conducted an evaluation of his inspection results in order to determine the appropriateness of Triad’s requested bond release. Voigt prepared the Inspection Report and included the following information:

 

a.      Voigt evaluated the water impoundment for which bond release was being requested. Voigt determined that the quality of the impounded water was suitable and that the water level was stable enough to support its intended use. Voigt also determined that the water impoundment was constructed and maintained according to design and that, as a final cut impoundment, all slopes had been graded to the water level so as to not exceed 33%. Triad’s Exhibit 3, page 2

b.     Voigt stated, “A water impoundment is requested for release, and is located on the White property. The impoundment was not discharging at the time of this inspection, however was within a foot of discharge level. pH of the water in the lake measured 8.6, and Iron was undetectable.” Id., page 9

c.      Voigt referenced several concerns that White reported to the Department. Voigt’s Inspection Report addressed each concern and determined that none of the concerns presented a barrier to bond release as follows:

                                                    i.     White expressed a concern that the water impoundment had fluctuating water levels due to leakage. Voigt reported that, in 2006, he noted periodic periods of low water levels along with the need for repairs. Triad performed several repairs. After a redesign of the spillway, Voigt observed that the water remained relatively stable, with the water level dropping from one to two feet from the discharge elevation in dry weather, potentially the result of evaporation.

                                                  ii.     White expressed a concern that the impoundment was not constructed in the correct manner because it had no clay liner. Voigt noted that a clay liner is not typically used in constructing final-cut impoundments. Voigt observed that the impoundment construction is typical of a “final-cut impoundment, in which the areas around the final cut are graded down to or below the anticipated water level (312 IAC 25-6-20(a)(8), re-soiled and seeded.” Id., at page 10.

 

47.        The Inspection Report acknowledged that White expressed concerns to the Department regarding:

 

a.      a large hill[6] east of the impoundment. Voigt determined that “[g]rading of the impoundment slideslopes and adjacent areas meet the definition of approximate original contour per 312 IAC 25-1-12….” Id., at page 9.

b.     highwall exposure during times of low water. This condition was not observed by Voigt. Voigt observed water approximately 10 inches below discharge at the time of inspection. Id., at pages 9-10.

c.      materials moved from the White property to the property of another landowner. While Voigt noted that direct replacement of soils is preferable, Voigt also recognized that it is not unusual for a graded area to receive soils from another landowner if the soils are stockpiled.  Id., at page 10. 

 

48.        No evidence was presented by any party to dispute factual conclusions reached by Voigt following his inspection regarding the approximate original contour of the pre-mined land, Voigt’s observations regarding the highwall or the transfer of materials from the White property. White did not present any evidence related to these issues to support his allegation that the water impoundment leaks. Voigt’s undisputed factual conclusions are found to be findings of facts in this decision.

 

49.        Voigt’s Inspection Report included a finding that Triad successfully completed all surface coal mining and reclamation activities required for bond release. On August 15, 2016, the Department approved Triad’s Phase I, II and III bond release request for the bonded area that included the water impoundment, with no corrective measures noted. See testimony of Voigt, Boyle and Triad’s Exhibit 3, pages 1, 4 and 6.

 

50.        A copy of the Department’s Post-Inspection Result Notification approving the bond release request was retained for the Department’s file. Copies of the approval were distributed to Triad, White, the Office of Surface Mining and a Greene County library. See testimony of Voigt and Triad’s Exhibit 3.

 

51.        A photograph taken on March 2, 2017, includes a view of the White water impoundment. The water level in this photograph represents a higher elevation than the water level of the impoundment in August of 2011, prior to the spillway rework. See testimony of Voigt and the Department’s Exhibits 2, 3 and 7.

 

52.        White believes that the water impoundment continues to need repair. To support this claim, White testified to his observation that water flows in a ditch near a road adjacent to the southern boundary of the White property. See testimony of White.

 

53.        Voigt has also observed water in a ditch near a road adjacent to the White property. See testimony of White and Voigt.

 

54.        Based on the totality of the evidence admitted during the administrative hearing, a reasonable inference is that the road referred to by White and Voigt in the two immediately preceding paragraphs is CR 75N.

 

55.        Water flowing in a ditch that comes over the top of the water impoundment or from the spillway would be surface water. Water that comes from under the ground would be ground water. Based on the observations of White and Voigt, flowing water seen in the ditch that is not the result of precipitation is determined to be ground water. No evidence was presented that would support a finding that surface water comes over the top of the water impoundment, or from the spillway, and then flows in the ditch.

 

56.        Because White did not observe water flowing in the ditch prior to installation of the water impoundment and White observed water in the ditch after the installation of the water impoundment and the spillway, White concluded that the water impoundment is leaking. See testimony of White.

 

57.        The presence of water in a ditch could have many causes. White provided no scientific or engineering support for his conclusion that the water he has observed in a ditch results from a specific cause, including a cause related to leakage of the water impoundment.

58.        Based on the evidence presented, any conclusion that the water impoundment continues to need repair due to leakage would be scarcely more than speculation. White presented insufficient evidence to support a factual conclusion that the water impoundment continues to need repair.

 

 

[VOLUME 14, PAGE 157]

 

Conclusions of Law

 

Burden of Proof and Standard of Review

 

59.        IC 4-21.5-3-14(c) states that “[a]t each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….” 

 

60.        The burden of demonstrating the invalidity of an agency action is on the party who asserts the invalidity. Dep’t of Natural Res. v. Peabody Coal Co., 740 N.E.2d 129, 134 (Ind. App. 2000).

 

61.        Following a request from Triad, the Department approved Phase I, Phase II and Phase III bond release for acreage that included property on which White maintains a property interest. White contests the Department’s determination to approve the bond release and has the burden in this proceeding to show that the Department’s approval is in error.

 

62.        The standard of review under AOPA is generally “preponderance of the evidence”.  Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993) and Burke’s Vinyl Seawalls & Reynolds v DNR, 11 CADDNAR 345, 347 (2008). “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.  Bivens v. State, 642 N.E.2d 928 (Ind. 1994). 

 

Bond Release Timing and Procedures - Water Impoundment

 

63.        After a surface mining permit is approved and before the issuance of the permit, a performance bond is required that is “payable to the state and conditional upon faithful performance of all requirements of [IC 14-34] and of the permit....”  IC 14-34-6-1(a)

 

64.        Triad posted a performance bond for Permit #S-257.

 

65.        Under Permit #S-257, Triad conducted mining operations between December of 2000 and September of 2001, on property that includes property on which White claims an interest.

 

66.        An “impoundment” is defined to mean “a closed basin, naturally formed or artificially built, which is dammed or excavated for the retention of water, sediment, or waste.” 312 IAC 25-1-71.

 

67.        A “permanent impoundment” is defined to mean “an impoundment that is approved by the director in the approved permit and, if required, by other state and federal agencies for retention as part of the postmining land use.” 312 IAC 25-1-99

 

68.        Permanent water impoundments may be authorized by the Department upon a demonstration of the following:

 

(1) The quality of the impounded water shall be suitable on a permanent basis for its intended use and, after reclamation, will meet applicable Indiana and federal water quality standards, and discharge of water from the impoundments will meet applicable effluent limitations and shall not degrade the quality of receiving waters to less than the water quality standards established under applicable Indiana and federal laws.

(2) The level of water shall be sufficiently stable to support the intended use.

(3) Water impoundments shall not result in the diminution of the quality or quantity of water used by adjacent or surrounding landowners for:

(A) agricultural;

(B) industrial;

(C) recreational; or

(D) domestic;

uses.

(4) The size and configuration of the impoundment are adequate for the intended purposes. The impoundment has an adequate freeboard to resist overtopping by waves and by sudden increases in storage volume.

(5) The impoundments will be suitable for the approved postmining land use.

(6) The design, construction, and maintenance of structures shall achieve the minimum design requirements applicable to structures constructed and maintained under the Watershed Protection and Flood Prevention Act, P.L.83-566 (16 U.S.C. 1006).

(7) Final grading will provide for adequate safety and access for proposed water users.

(8) For final cut and permanent incised impoundments, final graded slopes down to the water level shall not exceed in grade thirty-three and one-third percent (33 1/3%) or the lesser slope needed to do the following:

(A) Protect the public health and safety.

(B) Enable the permittee to do the following:

(i) Place topsoil on the slope under section 11 of this rule.

(ii) Revegetate the slope under sections 54 through 61 of this rule.

        312 IAC 25-6-20(b)

See also IC 14-34-10-2(b)(11).

 

69.        Triad constructed a final-cut water impoundment, with White’s consent.

 

70.        The Department approved a post-mining land use allowing for the installation of a final-cut water impoundment on the White property under the approved reclamation plan.

 

71.        IC 14-34-6-7 through IC 14-34-6-14, as well as 312 IAC 25-5-16, control bond release related to surface coal mining and reclamation.

 

72.        “After a permit is issued, the permittee may apply to the director for the release of all or part of the bond….” IC 14-34-6-7(a).

 

 

73.        Pursuant to IC 14-34-1-4(a), the requirements for bond release authorized by IC 14-34-6 are not more stringent than the requirements of 30 U.S.C. 1269(c).

 

74.        “Before… seeking bond release, the person who conducts the surface mining activities shall ensure that…all permanent… impoundments…meet the requirements of [312 IAC 25] for permanent structures, and have been maintained properly and meet the requirements of the approved reclamation plan for permanent structures and impoundments.” 312 IAC 25-6-27

 

 

[VOLUME 14, PAGE 158]

 

75.        The schedule allowing a permittee to apply for bond release provides that the Department may release a bond in whole or in part when:

 

…satisfied that the reclamation covered by the bond ...has been accomplished as required by [IC 14-34] according to the following schedule:

(1) When the operator completes backfilling, regrading, and drainage control of a bonded area in accordance with his approved reclamation plan, the release of sixty percent (60%) of the bond or collateral for the applicable permit area.
(2) After revegetation is established on the regraded mined lands in accordance with the approved reclamation plan ... .
(3) When the operator has successfully completed all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for operator responsibility in IC 14-34-10. However, the director may not fully release a bond or deposit until all reclamation requirements of this article are fully met. ... .”

IC 14-34-6-13

 

76.        Implementation of a bond release, pursuant to IC 14-34-6-13, is available through 312 IAC 25-5-16(e), which states, in pertinent part:

 

The Department may release the bond... upon a determination the reclamation covered by the bond…has been accomplished as required by IC 14-34 according to the following schedule:

(1) Phase I. After the operator completes the backfilling, regrading, and drainage control of a bonded area under the approved reclamation plan, sixty percent (60%) of the bond or collateral for the applicable permit may be released.

(2) Phase II. After the operator establishes revegetation on the regraded mined lands under the approved reclamation plan, an additional twenty-five percent (25%) of the total original bond amount may be released. No part of the bond or deposit shall be released under this subdivision if the lands to which the release would be applicable are contributing suspended solids to the stream flow or run-off outside the permit area in excess of the limitations in IC 14-34 and until soil productivity for prime farmlands has returned to the equivalent levels of yield as nonmined land of the same soil type in the surrounding area as determined from the soil survey performed under IC 14-34. If a siltation structure is to be retained as a permanent impoundment, a bond release may occur under this subdivision if provisions for sound future maintenance by the operator or the landowner are made with the department.

 

(3) Phase III. The department may release the remaining bond only after the:

(A) operator has successfully completed all surface coal mining and reclamation activities required in IC 14-34, this article, or the permit; and

(B) expiration of the period specified for operator responsibility in IC 14-34-10-2.

312 IAC 25-5-16(e)

 

77.        In February of 2003, Triad submitted a request and the Department approved a Phase I bond release for a portion of White’s property. At that time, the water impoundment was excluded from release because the impoundment was not yet filled.  

 

78.        In June of 2016, Triad submitted a request for Phase I, Phase II and Phase III bond release, including the water impoundment and other property to which White claims an interest[7]. The request conformed to the requirements set forth in 312 IAC 25-5-16.

 

79.        Pursuant to 312 IAC 25-5-16(d), the Department timely completed an inspection and evaluation of the reclamation work associated with the bond release request.

 

80.        The Department approved Triad’s request for Phase I, Phase II and Phase III bond release.

 

      Phase I Bond Release

 

81.        Phase I bond release requires disturbed areas to be backfilled and graded. 312 IAC 25-6-50

 

82.        On June 14, 2016, Triad sought Phase I bond release on 8.2 acres of White’s property. Of the 8.2 acres, 4.6 acres represents the water impoundment, 1.3 acres is designated as cropland, 1.1 acres is designated as pasture and 1.2 acres is forest.

 

83.        On behalf of the Department, Voigt recommended a 60% bond release under IC 14-34-6-13(1), implemented through 312 IAC 25-5-16(e)(1), for the property that includes the water impoundment.

 

84.        In Patmore v DNR and Foertsch Construction Co., Inc., 6 CADDNAR 20 (1991), a request for Phase I and Phase II bond release approved by the Department was contested due to foul water, with high iron content, surfacing on property outside the bonded permitted area. In that case, the Commission determined that “drainage” pertains to surface water, and that ground water is not a factor for consideration in Phase I and Phase II bond release.

 

85.        In this case, White asserts that water is surfacing from the ground and then flowing within a ditch that is the result of a continued need for the water impoundment to be repaired. For bond release purposes, any water surfacing from the ground would be a ground water issue and would not be a factor considered for Phase I or Phase II bond release.

 

86.        The Petition does not contest Phase I bond release on any basis related to backfilling and grading. In addition, no evidence presented during the administrative hearing disputes the appropriateness of a Phase I bond release on a basis related to backfilling or grading.

 

87.        The inspection by Voigt supports a conclusion that the design of the water impoundment met all regulations pertaining to reclamation in accordance with the reclamation plan and the affected area was restored in compliance with the approved post-mining land use. No party presented evidence disputing the Voigt’s factual conclusions that were based on his inspection.

 

88.        Triad substantially complied with the terms and conditions of IC 14-34-6-13(1) for backfilling, regrading and drainage control of the bonded area in accordance with the approved reclamation plan supporting a sixty percent (60%) release of bond on the water impoundment, as recommended by the Department.

 

89.        The Department’s approval of the Phase I bond release for 8.2 acres is supported by a preponderance of the evidence.

 

 

[VOLUME 14, PAGE 159]

 

      Phase II Bond Release

 

90.        For a Phase II bond release, “[e]ach person who conducts surface mining activities shall establish, on all affected land except water areas and surface areas of roads that are approved as a part of the postmining land use, a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area and that supports the approved postmining land use.” 312 IAC 25-6-54(a)(emphasis added)

 

91.        On June 14, 2016, Triad sought Phase II bond release on 84.8 acres. For this bond release request, White claims an interest in 16.7 acres and 18.4 acres. The 18.4 acre tract includes 4.6 acres attributed to the White water impoundment. Other post-mining land use on the White property includes prime farmland, cropland, pasture, and forest.

 

92.        On behalf of the Department, Voigt recommended a 25% bond release under IC 14-34-6-13(2) and 312 IAC 25-5-16(e)(2) for the White property that includes the water impoundment.

 

93.        The water impoundment is a water area requiring no revegetation.

 

94.        The Petition does not contest Phase II bond release on any basis related to revegetation of property that is designated as forest, pasture, cropland or prime farmland. In addition, no evidence presented during the administrative hearing disputes the appropriateness of a Phase II bond release on a basis related to revegetation.

 

95.        Triad has substantially complied with the terms and conditions of IC 14-34-6-13(2) for revegetation on the mined land in accordance with the approved reclamation plan supporting a twenty-five percent (25%) release of bond, as recommended by the Department.

 

96.        The Department’s approval of the Phase II bond release for 84.8 acres is supported by a preponderance of the evidence.

 

      Phase III Bond Release

 

97.        A Phase III bond release is the release of all bond remaining after Phase I and Phase II releases are complete. The department may release the remaining bond only after the “operator has successfully completed all surface coal mining and reclamation activities required in IC 14-34, [312 IAC 25], or the permit….” 312 IAC 25-5-16(e)(3)(A). See also IC 14-34-6-13(3).

 

98.        Based upon IC 14-34-6-1(a), IC 14-34-6-13 and 312 IAC 25-5-16, Phase III bond release must be evaluated in broad terms encompassing not only compliance with the individual permit but also considering compliance with the entirety of IC14-34 and 312 IAC 25.

 

99.        Consistent with the requirements of 30 U.S.C.1265(b)(8), Indiana requires the following:

 

(a) Surface mining activities shall be planned and conducted to minimize changes to the prevailing hydrologic balance in both the permit area and adjacent areas, to prevent material damage to the hydrologic balance outside the permit area, in order to prevent long term adverse changes in that balance which could result from those activities.

(b) Changes in water quality and quantity, in the depth to ground water, and in the location of surface water drainage channels shall be minimized so that the approved postmining land use of the permit area is not adversely affected.

312 IAC 25-6-12

 

100.     For bond release related to a permanent water impoundment, prior to “seeking bond release, the person who conducts the surface mining activities shall ensure that all … permanent …impoundments…meet the requirements of [312 IAC 25]  for permanent structures, and have been maintained properly and meet the requirements of the approved reclamation plan for permanent structures and impoundments….” 312 IAC 25-6-27

 

101.     Prior to bond release, “the permit area shall be restored, in a timely manner, either to conditions capable of supporting the uses they were capable of supporting before any mining or to conditions capable of supporting approved alternative land uses.” 312 IAC 25-6-64(c)

 

102.     On June 14, 2016, Triad sought Phase III bond release on 86.3 acres, including 16.7 acres and 18.4 acres of the White property. The 18.4 acre tract includes 4.6 acres attributed to the White water impoundment. Other post-mining land use on the White property includes prime farmland, cropland, pasture and forest.

 

103.     On behalf of the Department, Voigt recommended the release of the remaining bond under IC 14-34-6-13(3) and 312 IAC 25-5-16(e)(3) for property that includes the water impoundment.

 

104.     Triad was obligated to ensure, prior to seeking Phase III bond release, that the level of water in the water impoundment on the White property was “sufficiently stable to support the intended use” and “suitable for the approved postmining land use”.  312 IAC 25-6-20(b)(2)  and (5)[8]

 

105.     The record of this proceeding is void of evidence that the water impoundment is not sufficiently stable for its intended use or suitable for the approved post-mining land use.

 

106.     The record of this proceeding is void of evidence that the water impoundment is actually leaking. Without some reasonably certain hypothesis that would set forth a scientific or engineering basis supporting White’s assertion that water impoundment leakage is creating flowing water in a ditch or other area, a legal conclusion supporting his assertion would be inappropriate.

 

107.     White did not provide evidence sufficient to support his request to invalidate the Department’s decision to grant the request by Triad for a Phase III bond release.

 

108.     Triad has substantially complied with the terms and conditions of IC 14-34-6-13(3) and successfully completed all coal mining and reclamation activities supporting the release of the remaining bond on the water impoundment, as approved by the Department.

 

109.     The Department’s approval of the Phase III bond release for 86.3 acres is supported by a preponderance of the evidence.

 

 

Conclusion

 

110.     White failed to provide sufficient evidence to support a finding that the Department’s approval of Triad’s bond release application was in error.

 

111.     The Department’s approval of Triad’s Phase I, Phase II and Phase III bond release request for Permit #S-257 is supported by a preponderance of the evidence.