Temporary relief from the abatement action required under item number one of Notice of Violation #N80725-U-00012 is granted.
FINDINGS OF FACT
1. Pursuant to IC 13-4.1-11-8(e), the Black Beauty Coal Company (the "Claimant") has requested temporary relief from Notice of Violation #N80725-U-00012.
2. IC 13-4.1 and IC 4-21.5 apply to this proceeding.
3. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1.
4. The Director of the Department (the "Director") is the ultimate authority with respect to the subject matter and parties to this proceeding.
5. The Director may, pursuant to IC 13-4.1-2-2(c), delegate any or all of his powers and duties to other employees of the Department.
6. Pursuant to IC 13-4.1-2-1, the Director delegated authority to determine if temporary relief in this cause should be granted or denied to Margaret A. Drew, an employee of the Department.
7. On August 5, 1988, the Claimant filed a petition requesting temporary relief from the abatement procedures found in Notice of Violation #N80725-U-00012.
8. Claimant holds permit #U-00012 to conduct underground mining operations at its Apraw Mine in Knox County, Indiana.
9. On July 25, 1988, Inspector Charles Weilbaker, an authorized representative of the Director, issued Notice of Violation #N80725-U00012 for failure by Claimant to conduct underground mining activities so as to prevent subsidence from causing material damage to the surface, to the extent technologically and economically feasible, and so as to maintain the value and reasonable foreseeable use of surface lands. The notice of violation also cited six abatement procedures which Claimant was required to complete by August 23, 1988.
10. On August 17, 1988, a hearing was conducted pursuant to Claimant's request for temporary relief. At that time the only issue remaining in dispute between the parties concerned Respondent's ability to require, as an abatement procedure, a bond for any damages to surface lands caused by subsidence resulting from Claimant's underground mining operations.
11. The area in question contains approximately 4.5 acres and has subsided between 8 to 12 inches. The affected area is in a cornfield and runs along a natural drainageway. There is no dispute as to Claimant's willingness and ability to repair the area in question.
12. IC 13-4.1-1-3(12)(A) defines surface coal mining operations as including, in part, those activities "subject to the requirements of IC 13-4.1-9 surface operations or surface impacts incident to an underground coal mine ...." Subsection (12)(B) of this statute further defines surface coal mining operations as "[t]he areas upon which mining activities occur or where mining activities disturb the natural land surface."
13. IC 13-4.1-9 concerns surface effects of underground coal mining operations. Section 3 of this statute states: "All provisions of this article apply to surface impacts incident to an underground coal mine. However, the commission may modify the permit application requirements, permit approval or denial procedures, and bond requirements to accommodate the distinct difference between surface coal mining and underground coal mining."
14. Apparently, the "distinct differences" between surface and underground mining operations (as stated in IC 13-4.1-9-3 above) were duly noted by Respondent because no bond was required of Claimant to cover the area affected by subsidence during the
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permitting process and required in IC 13-4.1-6-1.
15. In order to require a bond upon approval of an applicant's permit, one would have to know where, when and if subsidence would likely occur. Claimant is correct in arguing that there is no guidance in past practices or in the regulations governing surface coal mining operations[FOOTNOTE 1] that would give any standard by which to judge the type, term or amount of such a bond.
16. The question here, however, is whether such a bond may be used as a means to abate a violation after the violation, in this case subsidence, has occurred. Past practices and the governing regulations are equally vague in this instance.
17. To uphold the abatement and require that Claimant post a bond of some indefinite type or amount would not only be an undue burden on Claimant but could also cause Claimant's operations to be closed until such a bond and its amount can be adequately determined.[FOOTNOTE 2]
18. The granting of temporary relief will not adversely affect the health or safety of the public or cause significant, imminent environmental harm to land, air or water resources.
FOOTNOTES
1. 310 IAC 12-5-130 through 12-5-132 concern subsidence control in underground mining. No mention is made of how bonding is to be established or even if it should be required.
2. Respondent argues that it is impossible to forecast the extent to which an affected area will subside or the time frame in which subsidence will occur. It is for that reason, according to Respondent, that a bond is necessary in this case. Respondent also argues that while Claimant may be quite able and willing to fix the damage caused by subsidence, not every coal company permitted in Indiana has the same financial and technological resources as does Claimant. Respondent's argument is well taken. Nevertheless, in this instance where temporary relief is being sought, Claimant should not be required to post an undetermined bond at the risk of having to shut down its operations.