ORDER
A. The Department's decision to release sixty percent (60%) of the reclamation bond on 37.94 acres is affirmed.
B. The Department's decision to hold the entire bond on approximately five acres is affirmed.
C. The Department's decision to release twenty-five percent (25%) of the bond on the 5.2 acres of water at the site is affirmed.
FINDINGS OF FACT
1. Robert Cardwell ("Cardwell") is the owner of approximately forty two and nine-tenths (42.9) acres of land which was leased to Great Lakes Coal Company in 1982 for the purpose of mining coal. The site was commonly known as Linton #2.
2. The Department of Natural Resources ("Department") is an agency as defined in IC 4-21.5-1-3. The Natural Resources Commission is the ultimate authority with respect to these proceedings.
3. IC 4-21.5 and IC 13-4.1 apply to this proceeding.
4. In the spring of 1989, the Department approved a Phase I bond release in connection with reclamation of the property in question.
5. Because of complaints by Cardwell, the Department did not issue a formal release of bond until after several meetings and an inspection made on June 6, 1989.
6. Subsequent to the June 6, 1989, inspection by the Department, the Department approved a Phase I bond release for thirty seven and ninety four hundredths (37.94) acres.
7. On July 10, 1989, Cardwell filed his written objections to the release of any bond.
8. The reclamation project in question is the responsibility of Lafayette Bank and Trust ("Bank") as they are the bond holder for Great Lakes Coal Company who began reclamation in 1983 but never completed the work.
9. Bank hired Russell Feuerbach ("contractor") to complete reclamation in December of 1987.
10. IC 13-4.1-6-7 provides in part that "when the operator completes the backfilling, regrading and drainage control.... the release of sixty percent (60%) of the bond..." is permitted. This is commonly referred to as Phase I bond release.
11. Phase II bond release involves twenty five percent (25%) of the bond and requires appropriate vegetation or crops be planted and grown.
12. The final fifteen percent (15%) may only be released by the Commission after five (5) years of successful vegetation.
13. If the bond were released as proposed by the Department, approximately $103,000 will remain to assure total compliance with reclamation laws.
14. The earliest date that the bond could be fully released is the fall of 1993.
15. Cardwell is concerned about a number of defects in reclamation including:
(1) Hidden debris under the dirt.
(2) Erosion.
(3) Logs still on property.
(4) Spillway improperly constructed.
(5) Too much wild grass and weeds.
(6) Low place in field.
(7) Improper terracing.
(8) Sinkhole.
(9) Cattails in lake.
(10) No crop has been grown.
16. Cardwell said he did not object to the contour of the reclaimed property.
17. Cardwell introduced a number of photographs and a video tape of the property.
18. The Department introduced a map of the area into evidence which showed the bond release area and the "hold out" area.
19. The Department probed for hidden debris and did not find any problem in the release area.
20. The major areas of erosion as shown in Cardwell's video tape and photographs are in the area of the lake and those areas are "hold out" areas in which the bond is not being released.
21. Part of the area on the videotape involving wild grass and weeds is on property on which the bond is not being released. Further, successful vegetation is not a requirement of Phase I bond release.
22. The large logs still on the property are in "hold out" area.
23. The spillway is in a "hold out" area.
24. The improper terracing is
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in a "hold out" area.
25. Growing a crop is part of Phase II reclamation and release.
26. The sinkhole in question is a hole caused by an underground mine circa 1900 AD and was a part of the property at the time of commencement of surface mining by Great Lakes Coal Company.
27. The low spots in fields and light erosion and rough spots in bond release areas are matters normally corrected under Phase II reclamation involving crops and proper vegetation.
28. Cattails in the lake are not considered improper reclamation as cattails contribute to the ecological balance of the property.
29. Cardwell seeks to require the contractor to chisel plow the field area prior to bond release.
30. Contractor has a chisel plow on the property and has done some plowing with it. Further, contractor will chisel plow further as part of Phase II reclamation involving vegetation and crops.
31. Cardwell does not want any of the bond released until the entire reclamation project is completed.
32. $103,000 is an adequate bond to assure the completion of reclamation in that the major expense of dirt moving and grading is completed for approximately ninety percent (90%) of the property.
33. Contractor has substantially complied with the terms and conditions of IC 13-4.1-6-7(g) providing for a sixty percent (60%) release of bond on 37.94 acres as recommended by the Department.
34. Since 5.2 acres of the property involves water and thus cannot be involved in vegetation or crop reclamation, the Department's decision to release twenty five percent (25%) of the bond covering Phase II reclamation for that 5.2 acres is reasonable.
35. There still exists approximately five (5) acres which contains significant debris and major erosion problem, and thus no bond should be released at this time on those portions of the tract indicated on Respondent's Exhibit 3 as "hold out" area.