Upon receipt of this order STONECO, Inc. will tender to Carolyn and Joe Stamen the sum of three thousand two hundred twenty three dollars and thirty-eight cents ($3,223.38) as payment for new well installed on the Stamen property by Davis Drilling of Portland, Indiana.
FINDINGS OF FACT
1. On November 23, 1994, the director of the department of natural resources (the "department") signed a temporary order to declare a groundwater emergency.
2. The complainant who experienced a well failure due to lowering of groundwater level are Carolyn and Joe Stamen who reside at 9605 Whippoorwill Drive, Fort Wayne, Allen County, Indiana.
3. The respondent (STONECO, Inc.) owns a significant groundwater withdrawal facility located in Section 36,T.30N.,R.IIE. in Aboite Township, Allen County, Indiana (the "facility").
4. The facility is reasonably believed by the department to have caused the failure of the Stemen's well.
5. Since the Stamens have replaced their well no emergency exists. Therefore, the parties all agreed on a hearing to decide whether STONECO, Inc. should be held responsible for the well failure.
6. Such hearing was held on December 1, 1994 at the Salamonie Reservoir.
7. IC 4-21.5, IC 13-2-2.5, and 310 IAC 0.6 apply to this proceeding.
8. The ultimate authority for an agency is the person or body empowered to make final determinations for that agency.
9. Under IC 13-2-2.5, the natural resources commission is the ultimate authority for the department for this type proceeding.
10. The parties stipulated to all facts presented to the administrative law judge and asked only for a determination as to whether or not STONECO, Inc. should be held responsible for the failure of the Stemen's well.
11. Mr. Mark Basch from the department's division of water testified for the department and presented data which he feels demonstrates that STONECO, Inc. is responsible for the well failure.
12. Mr. David Lange, general manager of STONECO, Inc., called no witnesses and presented no evidence as he agreed with all the data presented by Mr. Basch but not with the interpretation given same.
13. Mr. Lange feels the data indicates that the facility in question did not cause the Stemen's well failure.
14. Evidence presented at hearing included a map showing the location of the Stamen residence and the facility; the registration papers for the facility; well records from 1960 to present depicting water levels in the area; and receipts showing cost to Stamens to replace well.
15. The significant evidence in this case is the water level data.
16. Both the Stamen well and the facility have been in place since before 1960.
17. The department presented data showing that water levels in the area have been substantially lowered since 1960.
18. Data presented from 1960 to 1972 was sporadic.
19. More detailed data has been kept since 1992 due to a well failure which attracted the department's attention.
20. The current data (1992 to present) shows little or no fluctuation in the water level.
21. STONECO, Inc. offers that the current data shows that its pumping is having no present effect on the water levels.
22. The department agrees to that characterization of the current data.
23. However, the department points out that it must consider all drops in the water level which have occurred since the facility began pumping.
24. The data from 1960 to 1972 shows that water levels in the area were much higher at that time then they are today.
25. This significant drop in the water levels must be attributed to pumping at the facility.
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26. The statute (IC 13-2-2.5) consistently refers to "failure or substantial impairment was caused by the ground water withdrawals of the significant groundwater withdrawal facility". See section 10(a)(1).
27. Based on this wording all drops in the water level that can be documented must be considered when determining whether or not a well impairment was caused by pumping at a facility.
28. The early data clearly shows a significant drop in the water level in the area.
29. The significant drop placed the water level near the bottom of the Stemen's well.
30. At that point, a seasonal fluctuation or a dry period of time could cause that last drop of a few inches which could cause well failure.
31. Regardless of the trigger event causing the well failure the primary cause is the pumping over 30+ years at the facility.
32. The Stemens are entitled to reimbursement for expenses.
33. These expenses were presented at $3,223.38. The figure was unchallenged by Stoneco, Inc.