The post-mining land use change for Peabody Coal permit number S-00016 approved by the advisory council for the bureau of water and mineral resources on November 18, 1988 is affirmed.
FINDINGS OF FACT
1. On December 6, 1988, Mr. John Albrecht (the "Claimant") filed an objection to a post-mining land use change to Peabody Coal permit number S-06016 approved by the advisory council for the bureau of water and mineral resources (the "Council") on November 8, 1988.
2. IC 13-4.1, IC 4-21.5, 310 IAC 12 and 310 IAC 0.6 apply to this proceeding.
3. The natural resources commission (the "Commission") is an agency as defined in IC 4-21.5-1-3. The Commission is the ultimate authority with respect to this proceeding.
4. The Claimant filed two objections; the second of which was titled Administrative Cause 89-009R, which were consolidated under this cause number.
5. The postmining land use change in question converted 51.6 acres pasture land and 153 acres forest to 11.6 acres water, 11.0 acres cropland and 182 acres wildlife.
6. At hearing, the Claimant made two arguments against the action of the Council.
7. The first argument was that the changing of the post-mining land use was a significant departure from the permit and, as such, required a permit revision under 310 IAC 12-3-121 and would be subject to requirements of 310 IAC 12-3-105 through 119.
8. The second argument was that the changing of forest to wildlife area did not guarantee that trees would survive on the reclaimed areas.
9. In regard to Claimant's first argument, 310 IAC 12-3-121(a)(1) lists as significant permit changes "those which could result in the operators inability to comply with 310 IAC 12-5-1 through 310 IAC 12-5-158 or present a hazard to public health and safety."
10. The changing of forest to wildlife area does not fit the significant change criteria contained in 310 IAC 12-3-121(a)(1) and, while significant changes are not limited to the criteria listed, no evidence is present to compel classification of this change as "significant".
11. Based on the above, this post-mining land use change is not covered by 310 IAC 12-3-121 or subject to all the requirements of 310 IAC 12-3-105 through 119.
12. In regard to Claimant's second argument, it is useful to note that the land in question is owned by Peabody Coal Company.
13. The Claimant is concerned that the change from forest to wildlife area will not guarantee that trees will return to Peabody's land.
14. The Claimant is correct that 310 IAC 12-5-65 requires that forest land have a minimum stocking of 450 live trees at bond release and that there is no such standard for wildlife areas.
15. However, this type of alternative land use which is covered by 310 IAC 12-5-68(c) "shall" be approved by the commission after consultation with the landowner and if the criteria of 310 IAC 12-5-68(c)(1-10) are met.
16. Evidence indicates that the above mentioned criteria have been met and that the landowner (Peabody Coal) is the party that applied for the change.
17. Therefore, the post-mining land use change for permit number S-00016 which contained an alternative land use was properly approved and was not subject to prior consultation with the Claimant.