The inspection result notification pertaining to the September 5, 1990, bond release inspection of Permit S-00047 is affirmed and bond is ordered released.
FINDINGS OF FACT
1. The Foertsch Construction Company, Inc. holds permit S-00047 to conduct surface coal mining operations at its Patmore mine in Spencer County, Indiana.
2. On September 5, 1990, the Department of Natural Resources conducted a bond release inspection of Permit S-00047 which resulted in certain areas being selected for Phase I and II release.
3. On October 18, 1990, the Department forwarded to the Hearings Division an objection from Morris Patmore to the approved bond release in question here.
4. At the prehearing conference, Mr. Patmore specified that his objection concerned foul water which was surfacing on his property outside the bonded permitted area.
5. Mr. Patmore alleges that said foul water is flowing from the area which has been recommended for bond release.
6. The Natural Resources Commission is an agency as defined in IC 4-21.5-1-3 and is the Ultimate Authority for this proceeding.
7. IC 4-21.5, IC 13-4.1, 310 IAC 12 and 310 IAC 0.6 apply to this proceeding.
8. The DNR expert testified that the water surfacing on Mr. Patmore's land was very high in iron content.
9. Mr. Patmore claimed that this foul water was appearing at two different places and was inhibiting the productivity of his farmland.
10. The DNR expert's opinion is that the foul water comes from sources other than the areas proposed for bond release. 11. This opinion is based on visual analysis of the area and a study of data, maps, etc. 12. Mr. Patmore feels the foul water is coming from the bodies of water in the bond release area. 13. His opinion is based on his experience with the area and the timing of the water's appearance coupled with the interval of the various disturbances.
14. The only way to make a positive determination is to perform some sort of a ground water analysis.
15. The DNR expert alluded to this sort of a ground water analysis.
16. The major question here is if this type of analysis needed to be done, would it be required prior to phase I and II bond release?
17. The position of the Department and of Foertsch is that Mr. Patmore's objection is at least premature and at most invalid.
18. The bond release check list used to record a bond release inspection, contains a section on ground water but, testimony indicates that this section is not used by the bond inspector.
19. A reading of the Statute (IC 13-4.1-6-7) and the Rule (310 IAC 12-4-16) indicates that groundwater is not a factor in phase I and II bond release.
20. Phase I bond release (60%) requires the operator to complete backfilling, regrading and drainage control per the reclamation plan.
21. Viewing the language as a whole it appears the word "drainage" pertains to surface water.
22. Phase II bond release (25%) requires revegetation per the reclamation plan.
23. Evidently, if groundwater problem is to be considered prior to final release, a groundwater analysis of some sort must be conducted.
25. There is no legal authority to delay phase I or II bond release while conducting such an analysis.