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Indiana Dep't of Natural Resources v. Hoosier Environmental Council7/26/2005
FOR PUBLICATION
Case Summary
Appellant-Respondent Indiana Department of Natural Resources ("DNR") appeals the trial court's order determining that Appellee-Petitioner Hoosier Environmental Council, Inc. ("HEC") is entitled to all of its fees and costs under Indiana Code Section 14-34-15-10. We affirm in part, reverse in part, and remand.
Issue
DNR raises one issue, which we restate as whether the trial court erred by substituting its judgment for that of the Natural Resource Commission when it determined that HEC was entitled to all of its fees and costs under Indiana Code Section 14-34-15-10.
Facts and Procedural History
On May 10, 1995, DNR approved an application filed by Foertsch Construction Company ("Foertsch") to amend its existing surface coal mining permit in order to allow the disposal of coal combustion waste ("CCW") on the permitted site in Daviess County. On June 9, 1995, HEC filed a petition for administrative review of the approval and requested injunctive relief. HEC alleged several problems with the permit amendment:
7. The permit fails to meet the requirements of ISMCRA [Indiana Surface Mining Control and Reclamation Act] (IC 13-4.1) and its regulations and does not comply with requirements to supply information, characterize the site and its interactions with CCW and monitor the disposal of CCW that are found in Memorandum 92-1.
8. The permit fails to define or characterize the premining hydrologic balance as required by ISMCRA and its regulations. The premining hydrologic balance has also not been defined or characterized by the mining permit, #S-00312, that is being amended by this permit.
9. Three aquifers have been identified by monitoring wells in the permit area, but the permit fails to characterize any of them as required by ISMCRA and its regulations. Bail tests done for the permit revealed sufficient water in these aquifers to readily provide domestic water supply for multiple residences making them aquifers that must be characterized and protected under ISMCRA.
10. The permit does not provide adequate site specific data about the permeability of strata in the mine or the hydrology of the mine area as required by Memorandum 92-1 and ISMCRA. The extent of aquifers, direction of ground water flow and rate of flow of ground water has not been determined correctly or to any degree in most instances, as required by Memorandum 92-1 and ISMCRA. The permit fails to place monitoring wells in positions that will monitor down gradient or up gradient water from the CCW disposal areas as required by Memorandum 92-1 and ISMCRA. The permit does not include six months of baseline ground water monitoring data as required by Memorandum 92-1 and ISMCRA.
11. The permit will deliberately place millions of tons of toxic-forming material into direct contact with ground water in the Little Sandy #10 Mine in violation of ISMCRA and its regulations which prohibit such contact.
12. The permit provides no analysis, detailed approximations or even projections of the leachate that will form in the coal combustion waste (CCW) disposal areas. The permit has no detailed discussion of the geochemistry that will take place as a result of CCW disposal as required by Memorandum 92-1 and ISMCRA.
13. The permit provides no plan to monitor and avoid impacts to the offsite hydrologic balance as required by ISMCRA and its regulations. Such a plan would include monitoring groundwater at this mine down gradient from the disposal sites once the postmining equilibrium of ground water flow has been established so that monitoring wells on the perimeter of
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