[CITE: Dilger v. Department, 5 CADDNAR 196 (1990)]
[VOLUME 5, PAGE 196]
Cause #: 90-072R
Caption: Dilger
v. Department
Administrative Law Judge: Rider
Attorneys: Dilger, pro se; Law
Date: July 25, 1990
ORDER
The
inspection result notification pertaining to the February 6, 1990 bond release
inspection of Permit S-00084 is affirmed and bond is ordered released.
FINDINGS OF FACT
1.
On April 4, 1990, Beno and Marie Dilger
(the "Claimants") filed an objection to a pending bond release at the
Energy Supply, Inc., Mariah Hill Pit, permit #S-00084.
2.
The pending bond release was announced as an inspection result notification
pertaining to a February 6, 1990 bond release inspection.
3.
The bond release inspection was conducted by Dee Geier an authorized
representative of the director, department of natural resources.
4.
IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
5.
The natural resources
commission (the "Commission") is an agency as defined in IC
4-21.5-1-3 and is the ultimate authority for this proceeding.
6.
The Claimants object to the bond release for three reasons:
a.
They claim that a significant drainage problem exists in the area (Issue-1).
b.
They present a paper included in the original permit which bears only the
signature of Beno Dilger
and not Marie Dilger (Issue-2).
c.
They allege that the contemplated bond release would deplete the bond moneys
held to a level insufficient to cover the remaining needed reclamation
(Issue-3).
7.
To substantiate Issue-1, the Claimants presented pictures taken in April 20,
1990 which showed water pooled in locations on the permit area.
8.
Inspector Geier testified that the area was not in that condition on the day of
the bond inspection (February 16, 1990).
9.
Since the bond release is predicated on the bond inspection, it cannot be
subject to constant, post-inspection scrutiny by the bond inspector.
10.
Perhaps a notice of violation by a compliance inspector would be in order but
the present condition of the area cannot be an issue in this case.
11.
The Claimants objection here goes to the inspection result notification which
resulted from the February 6, 1990 inspection and no evidence was presented as
to a drainage problem on that day.
12.
The document the Claimant alludes to in Issue-2 is a page from the original
permit S-00084.
13.
The page was executed in August 1983 and is signed by Beno
Dilger.
14.
The page is not a contract but rather is a statement of understanding that upon
conclusion of reclamation the land in question will not be exactly as it was
prior to mining.
15.
While it would be preferable to have both property owners' signatures on this
document (the Claimants own the land jointly), the time to object would have
been within 30 days after the permit was issued and filed in the county
library.
16.
Obviously, Mr. Dilger did not disagree with the
proposed postmining configuration and it is
improbable Mrs. Dilger would have objected as her
testimony was that, other than the lease papers, she was not involved in the
dealings with the coal company.
17.
Finally, even if the page were declared invalid, it is difficult to see how it
would affect this bond release seven years after the page was signed.
18.
The premise presented in Issue-3 cannot be applied to this bond release. The
Claimant wishes the administrative law judge to invalidate the bond release on
the premise that there must be enough bond money left after release to complete
the remaining reclamation.
19.
While it is true that the Department is responsible for assuring that at all
times enough bond is present to cover needed
reclamation, this is not a factor by rule or statute which would deny bond
release on an area that meets all bond release
[VOLUME 5, PAGE 197]
criteria.
20.
If the Claimants feel that after bond release the remaining bond money is
insufficient and that the Department has failed to act in regard to demanding
additional bond, they could deal with the problem under the provisions of IC
4-21.5, the Administrative Adjudication Act.
21.
However, even if the administrative law judge were to use the remaining bond
sufficiency as a criterion here, the evidence does not show the remaining bond
is insufficient.
22.
Inspector Geier testified that after release, bond of $85,101.25 would be
remaining. She opined that this amount would be sufficient to complete
reclamation.
23.
The Dilgers produced no evidence to the contrary
except a letter from a United States government official which gave his opinion
as to reclamation costs in the area.
24.
This letter was excluded from evidence because its hearsay nature precluded the
Department from examining the credentials of the declarant
and eliciting testimony as to how his opinions were reached.
25. None
of the testimony advanced by the Dilgers at hearing
would preclude the proposed bond release.