The results of bond release inspection dated March 16, 1992, pertaining to Associates Mining Company #3 Pit, permit S-74, are affirmed. Bond recommended for release in the report of said inspection is ordered released.
FINDINGS OF FACT
1. On May 8, 1992, the Division of Reclamation (DOR) filed with the hearings division a letter from Norma L. York and Mildred L. Auberry (the "Claimants") which contained an objection to a bond release.
2. The bond release in question was approved for Associates Mining Company (AMC), AMC #3 Pit, permit S-74.
3. Bond release inspection which lead to the release was conducted on March 16, 1992, by John Voigt of the DOR.
4. Present at the inspection, among others, were Dave Kiehl of DOR; Dr. Chuck Taylor of the U.S. Office of Surface Mining (OSM); and Claimant Auberry.
5. IC 4-21.5, IC 13-4.1, 310 IAC 0.6, and 310 IAC 12 apply to this proceeding.
6. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3.
7. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
8. Pursuant to IC 13-4.1-2-1(c) the administrative law judge (ALJ) is the ultimate authority for the Department in this proceeding.
9. While the applicable inspection dealt with about 400 acres, the only area objected to is referred to by all parties as the "front 40 acres".
10. The bond release applicable here is governed by 310 IAC 4-16(c)(1) which allows a 60% release of bond when the operator completes backfilling, regrading, and drainage control in accordance with his approved reclamation plan.
11. The Claimants' objections to the 60% bond release for the front 40 acres are:
a. The new elevation is much to high (Issue-1).
b. The terracing technique used in reclamation has rendered the area useless for farming (Issue-2).
c. Present forest land is excessive when compared to pre-mining (Issue-3).
12. In regard to Issue-1, topographic maps were presented which established that the highest elevation postmining is actually .5 of a foot lower than the highest pre-mining elevation.
13. The Claimants presented nothing to contradict the topographic evidence.
14. The evidence presented in regard to Issue-3 showed that the amount of forest land present is not excessive when compared with pre-mining.
15. However, the proper comparison to make would be with the forest land authorized in the approved reclamation plan (the "plan").
16. No evidence of a deviation from the plan was presented.
17. The bulk of the evidence presented dealt with Issue-2.
18. The Claimants' maintain the terracing of the front 40 acres rendered them useless for farming; and therefore substantially reduced their value.
19. The Respondents called several expert witnesses to testify in regard to the terracing technique.
20. The Claimants presented no expert testimony.
21. The terracing technique was used to prevent erosion of the area.
22. Severe erosion would have occurred if the technique had not been used.
23. The terracing technique is an acceptable engineering practice.
24. The terracing of the land does not make the land impossible to farm, but farming the area will be more difficult.
25. However, absent the terracing, erosion would be such as to make an attempt to farm the area futile.
26. Evidence shows that the terracing technique did not decrease the value or impair the usage of the front 40 acres.
27. In fact, AMC demonstrated an advanced sense of reclamation responsibility by applying a more expensive technique to ensure the area would suffer the least amount of erosion.