CADDNAR
[CITE: Big Man Oil Company, Inc. v. DNR, 15 CADDNAR 112 (2020)]
Cause #: 18-098G
Caption: Big Man Oil Company, Inc. v. DNR
Administrative Law Judge: D. Wilson
Attorneys: J. Henderson for Petitioner; I. Boyko for Respondent
Date: September 2, 2020
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WITH FINAL ORDER
Statement of the Proceeding and Jurisdiction
1. On August 29, 2018, Big Man Oil Company, Inc., (Big Man) filed its “Petition for Administrative Review” (Petition) for a Notice of Violation, NOV # 23821, (NOV) issued by the Department of Natural Resources (Department) to Big Man, dated July 31, 2018.
2. The NOV directed Big Man to “re-plug” the well previously authorized by Permit 23821, in accordance with 312 IAC 29-28-9(c). Big Man’s Petition requested dismissal of the NOV.
3. The Petition initiated a proceeding governed by Ind. Code 4-21.5-3, sometimes referred to as the “Administrative Orders and Procedures Act” (“AOPA”) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.
4. Administrative Law Judge (ALJ) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding.
5. Following the issuance of notice to all parties, status conferences were held in the proceeding on September 27, 2018, November 14, 2018 and January 17, 2019.
6.
On February 15, 2019, Big Man filed its “Motion for Declaratory Judgment”.
The motion requested bifurcation of the administrative hearing issues for
judicial efficiency, to resolve if the Albert Huebschman #5 well was plugged in
accordance with IC 14-37. The motion anticipated, depending on the facts
determined, subsequent resolution of any other outstanding issue. The
Department filed “Respondent DNR’s Response to Petitioner’s Motion” on March
18, 2019, and disputed efficiency would be served by an initial hearing to
determine if the Albert Huebschman #5 well, the well associated with Permit
#23821, was plugged in accordance with IC 14-37. In addition, the Department characterized
the arguments posed in Petitioner’s motion as an affirmative defense. Big Man
filed “Petitioner’s Reply in Support of Declaratory Judgment” on April 2, 2019.
On
April 4, 2019, the “Order on Motion for Declaratory Judgment” issued by ALJ
Wilson denied the Petitioner’s motion. The ALJ determined that the arguments
proposed did not support bifurcation of the issues to serve judicial and
administrative efficiency.
7. Following the issuance of notice to all parties, additional status conferences were held on May 1, 2019, July 24, 2019, and October 31, 2019. On March 24, 2020, a Final Status Conference was initiated. The Final Status Conference resumed on April 23, 2020, and concluded on May 12, 2020.
8. A hearing of the facts was originally scheduled to be heard on November 14, 2019, and was rescheduled for November 12, 2019, due to an ALJ conflict with a required FEMA training. Thereafter, the ALJ granted the Department’s request to continue the hearing and the hearing was reset to be heard on April 7, 2020. Due to the COVID-19 public health emergency, the hearing was reset and heard by Webex video conference on May 14, 2020.
9. The Department is responsible for the regulation of wells for oil and gas purposes through the administration of IC 14-37 and 312 IAC 29.
10. The Commission is the “ultimate authority”, as that term is defined at IC 4-21.5-1-15, for this administrative proceeding. 312 IAC 3-1-2.
11. The Commission possesses jurisdiction over the persons of the parties and the subject matter of this administrative proceeding.
Findings of Fact[1]
12. All proposed exhibits were submitted by the parties electronically and by mail prior to the administrative hearing. The proposed exhibits were all offered for admission by stipulation of the parties prior to the testimony of any witness. All exhibits offered were admitted by the ALJ.
13. On May 13, 2020, the parties filed “Joint Stipulations by Petitioner and Respondent” for consideration by the ALJ. The following proposed stipulations are accepted by the ALJ as findings of fact in this proceeding.
a. Well #27020[2], Well #35688 and Well #52963 are Class II wells.
b. Well #23821 (the Break Out Well) is within the area of review of Well #27020.
c. The Break Out Well is not within the area of review of Well #35688.
d. The Break Out Well is not within the area of review of Well # 52963.
e. Petitioner’s Exhibits A through U and Respondent’s Exhibits 1 through 10 are copies of official well records maintained by the Department.
f. Respondent’s Exhibits 11 through 17 are photographs of the surface location of the Break Out Well, taken on April 20, 2018, by a Respondent employee.
14. The following three witnesses testified during the administrative hearing:
a. Greg Schrader (Schrader) is employed as a Petroleum Geologist with the Department’s Division of Oil and Gas. In 1990, Schrader earned a bachelor’s degree in geology from Purdue University. In 1996, Schrader became a staff member of the Department’s Division of Water. Schrader has been employed by the Department in his current position since 2007. In his current position, he reviews permit applications for injection wells and completes file reviews for existing injection wells. He also conducts reviews for approximately 50 areas of review per year and determines if the wells within those areas of review pass or fail his review. While historically, the Department’s review process was completed on a grid based on land sections, Schrader’s reviews are currently completed using Geographic Information System (GIS) tools to establish base geographical information.
b. Brian Royer (Royer) is currently employed as the Orphan Well Manager for the Department’s Division of Oil and Gas. In 2007, Royer earned a bachelor’s degree in environmental management from Indiana University. Also in 2007, Royer began employment with the Department as an Orphan Well Inspector. In 2011, his position was enhanced to include Field Geologist duties and duties that include the resolution of issues concerning spills and contamination.
c. Robert Sterge (Sterge) has owned or operated oil and gas operations since 1977. He originally operated in Tennessee and formed his own company in the late 1980s. Sterge has operated oil and gas operations in Indiana since 1991. Sterge obtained a bachelor’s degree in finance in 1986 from Richmond[3]. Afterwards, he obtained a geology degree from Texas A&M. Sterge also obtained a master’s degree from Richmond in business administration and finance. Sterge currently has permits to drill and operate at least 10 oil and gas related wells, including Well #27020, Well #35688 and Well #52963 in Spencer County, Indiana.
15. In May of 1992, Well #27020 was transferred to Big Man Oil Co, Inc., located in Owensboro, Kentucky. Ex. 2.
16. Before purchasing Well #27020, Sterge reviewed the seller’s file, including existing cost and production records for the well. He also conducted a site visit. At the time when he purchased Well #27020, he negotiated the plugging of two other wells. Sterge reviewed the file records for the Break Out Well but he addressed no issues for that well at the time he purchased Well #27020. See testimony of Sterge.
17. After his purchase of Well #27020, Sterge met with Department staff and they went over the records he brought to the meeting. Id.
18. Confined injection would be trapped by a layer of Jackson Sandstone, a lateral, fairly continuous layer beneath the surface. Within an area of review, wells may provide a conduit for water to travel up the hole in other wells. See testimony of Schrader.
19. In 2011, Schrader performed a file review for Well #27020 and discovered an additional Department review that had been performed 10 years earlier. The purpose of Schrader’s review was to determine compliance with the Underground Injection Program, designed by the Environmental Protection Agency (EPA) to protect underground water so that injection water does not enter the aquifer zone, otherwise known as the “Underground Source of Drinking Water” (USDW). Id.
20. Based on the information Schrader obtained during his 2011 review, he prepared a report that identified the GIS location of wells within the area of review of Well #27020. Within one-quarter mile of Well #27020, the report identified multiple wells, including the Break Out Well. See testimony of Schrader and Ex. 7, p. 1.
21. By correspondence dated May 31, 2011, the Department notified Big Man of deficiencies for two wells within the area of review for Well #27020, the Break Out Well and the well associated with Permit #20092. The notification states, “In the past, in lieu of remediating the deficiencies for this well, you have opted to accept a rate restriction. However, should any upward fluid migration occur through the well bore of any previously unknown, improperly plugged or unplugged well in the area of review due to injection of permitted fluids, injection will be shut-in until plugging can be accomplished....” See testimony of Schrader and Ex. 7, pp. 2-3.
22. On November 8, 2017, a farmer expressed concern to the Department regarding damage to an area within a farm field. Department staff, including Damien Schmelz (Schmelz), visited the site of the Break Out Well in the field. Schmelz observed water coming from the abandoned well and the lack of plant growth in the surrounding area. Schmelz elevated his observations and concerns. See testimony of Royer and Ex. 9.
23. Schmelz notified Sterge of the “break out” of the Break Out Well. The Department notified Sterge that Well #27020 needed to be shut down. See testimony of Sterge.
24. As instructed, Sterge shut down Well #27020 and the well has been “shut-in” since the Department instructed him to do so. Id.
25. On November 9, 2017, Royer conducted a site visit to the farm field and determined that there was a spill at the Break Out Well. Royer observed fluid on the surface of the ground that drained into a ditch. He also observed a “kill area” of damage to surrounding ground cover covering approximately 25 feet by 50 feet. Royer conducted various tests to investigate the extent of the contamination and the source of the spill. See testimony of Royer and Exs. 14-17.
26. On November 16, 2017, Royer tested the fluids at the Break Out Well to determine the total dissolved solids (TDS) and found the fluid contained elevated levels of salt, 5600 parts per million, and calcium. Using a Fluid Level Tape, Royer found that the tape “sat down” at a depth of 125 feet in the hole. Royer also “shot” a fluid level test on the Break Out Well. Based on his observations and testing results, Royer concluded that the source of the spill was that the Break Out Well was leaking. See testimony of Royer and Exs. 9 and 17.
27. Schrader evaluated the fluid level tests performed by Royer. Schrader determined that the fluid level depth for a well north and west of Well #27020 was 661 feet but the fluid level depth of a well south and east of Well #27020 was 488 feet. Schrader considered that the Jackson Sandstone was about the same in both wells but the “fluid fill up” was significantly higher in the well south east of Well #27020. Based on the difference in the two fluid levels, Schrader concluded that the Jackson Sandstone is not connected for the two areas. See testimony of Schrader.
28. Royer observed that the injection well closest to the Break Out Well is Well #27020. Royer observed that the Break Out Well is located in the same farm field and is approximately 600 feet south of Well #27020. See testimony of Royer and Exs. 14 and 16.
29. When Schmelz first conducted his site visit to the Break Out Well, he tested the pressure of Well #27020 and found it to be 550psi. On November 9, 2017, Well #27020 was not being operated and had a reduced standard pressure, 425 psi. On November 16, 2017, the pressure for Well #27020 was reduced to 290 psi. Royer reviewed the changes in pressure for Well #27020 and compared the pressure over time to his observations at the Break Out Well. Royer observed flowing water at the Break Out Well during his original site visit. Once Well #27020 was shut-in, the flow of water at the Break Out well slowed and he observed gas bubbles at the surface of the Break Out Well. Royer noted that, as the pressure of Well #27020 reduced, the leak at the Break Out Well slowed. Based on this information, Royer determined that, in addition to being within the area of review, the leak at the Break Out Well was a direct effect of injection at Well #27020. See testimony of Royer and Ex. 9.
30. Royer researched Department records for the Break Out Well and discovered two separate plugging records. See testimony of Royer.
31. The oldest Break Out Well plugging record is from 1959. In 1959, when the Break Out Well was originally plugged, it was owned or operated by Calstar Petroleum Company (Calstar). See testimony of Royer and Ex. 5.
32. The “Well Plugging Affidavit” for the Break Out Well from July of 1959 reflects eight inch casing to a depth of 89 feet and seven inch casing to a depth of 510 feet. The total depth is identified as 768 feet. The plugging details state that the plugging activity was completed with mud from 769-512 feet, a wood plug and cement from 512-480 feet, mud from 480-93 feet, a wood plug and cement from 93-70 feet, mud from 70-20 feet and a wood plug and cement from 20-0 feet. See testimony of Royer, Ex. 3 at p. 2, Ex. 4 and Ex. 5 at pp. 3-5.
33. Calstar requested the opportunity to reopen the Break Out Well in 1961. Ex. A. The Department authorized the opportunity in February of 1961 and Calstar or its agent, Cox Drilling, dug the Break Out Well to 375 feet. Calstar or its agent could get no deeper and the dry well was certified as replugged. See testimony of Royer.
34. Royer reviewed the Well Plugging Affidavit that identifies completion of plugging for the Break Out Well on June 8, 1961. The records reflect that the plug was completed to a depth of 375 feet, and that 13 inch and an eight inch casing were put in and removed. The “Certificate of Compliance” states that plugging was completed with mud from 375-140 feet, cement from 140-130 feet, mud from 130-20 feet, and cement from 20-3 feet. See testimony of Royer, Ex. 3 at p. 1 and Ex. 5. See also Ex. D.
35.
A “Well Plugging Affidavit” for the Break Out Well states the well was
plugged on
June 8, 1961. The Well Plugging Affidavit and the Certificate of Compliance,
signed by the Department’s District Supervisor, John W. Raff, in April of 1962,
states that no casing was left in the well. Ex. 5.
36. In 2017, contrary to the information contained with the Certificate of Compliance, Schmelz reached into the Break Out Well’s hole and discovered approximately a seven or eight inch casing in the hole, approximately one and one half feet below the surface. At the time when Schmelz discovered the casing, he was accompanied by Sterge. See testimony of Royer and Sterge.
37. Sterge has a “funny feeling” that, contrary to the plugging records in 1961, the company operating the Break Out Well left a drill pipe in the hole with the intent to enter the hole again. Sterge presented no specific evidence to support his theory and his theory is not supported by the weight of other admitted evidence. See testimony of Sterge.
38. In Sterge’s experience, he believes that Department staff he is familiar with would not sign off on unverified activities. Id.
39. Royer determined that the plug from 1962 would be effective down to 375 feet and the plug from 1959 would be effective from 375 feet down to 769. Because he found the well to be open to 125 feet, Royer explained that, in 1962, cement may not have set up but “fell back” on the initial plug or the uncased mud was “drunk” by the formations. Royer noted that the well plugging processes in 1962 did not include the same efforts that are taken today. Royer’s experience with other wells that have been plugged and abandoned for orphaned wells supports a conclusion that his theory is plausible. However, insufficient evidence is available to support his theory as a finding of fact in this proceeding. See testimony of Royer.
40. Royer prepared a plugging plan that included a scope of work. Royer’s plugging plan does not include the removal of any casing and includes activity to a depth of 768 feet. Royer prepared the plugging plan as an aid to Big Man in determining its potential cost to replug the Break Out Well. Royer did not prepare the plugging plan anticipating the Department would plug the well. Id.
41. Sterge expressed his concerned about various potential difficulties that he could face in plugging the Break Out Well. Sterge determined that the “pipe” in the hole would need to be removed or cemented, with or without perforating the “pipe”. Because the original company that plugged the hole in 1959, wanted to open the hole again, Sterge assumes that the company anticipated that they would no difficulty in reopening the well. However, because the company was unable to get down as far as they wanted, he may encounter problems too. Sterge presented an alternative theory that, because the 1962 plugging certification was signed a year after the well was plugged, the company may have intended to reopen the well but decided against it for some other reason. Sterge presented insufficient evidence to support either theory as a finding of fact in this proceeding. See testimony of Sterge.
42. Without entering the well, the level of difficulty to plug the Break Out Well cannot be determined with certainty. See testimony of Royer.
43. Protection of the surface and USDW are the Department’s top concerns and would require cement on both sides of any casing from at least 50 feet below the USDW to the surface. Royer additional research revealed that, in the area of Break Out Well, the USDW is located at 260 feet. See testimony of Royer and Ex. 10.
44. On July 31, 2018, the Department, by Russell Retherford, issued a Notice of Violation for the Break Out Well. The NOV’s Corrective Action section states the following:
The location noted above was inspected on 7/31/2018 and was found to be in noncompliance with 312 IAC 29-1 et seq. or IC 14-37 et seq. The corrective action listed below must be taken by 10/1/2018. In accordance with 312 IAC 29-28-9(c), re-plug this leaking well which is allowing injection fluids to migrate into an underground source of drinking water and to the surface…To qualify for administrative review pursuant to IC 4-21.5-3—6, you must petition for review in writing…within thirty (30) days from receipt of this notice.
Ex. 1.
45. Sterge has no permit for the Break Out Well. Sterge’s understanding is that, if he touches the Break Out Well, he would be claiming responsibility for the well. See testimony of Sterge.
46. The Break Out Well has not been replugged.
Conclusions of Law
Notice of Violation and de novo Review
47. The substantive law applicable in this proceeding is IC 14-37 and 312 IAC 29, specifically 312 IAC 29-34-3 regulating a Notice of Violation issued by the Department. Resolution of the disputed issues may require the application of IC 14-37-4-2 and 312 IAC 29-28-9, as applicable.
48. The Department is authorized to issue a written notice of violation if a person violates IC 14-37 or an administrative rule adopted to implement IC 14-37. IC 14-37-12-2.
[VOLUME 15, PAGE 114]
49. A written NOV must advise an owner or operator of the nature of the violation, action appropriate to abate the violation, a date by which the violation is to be abated and the procedure to obtain administrative review. IC 14-37-12-3.
50. An “operator” is a person issued a permit under 312 IAC 29. 312 IAC 29-2-94.
51. Big Man is identified as a permit holder and an operator for purposes of IC 14-37 and 312 IAC 29.
52. The Department issued a written NOV to Big Man that included sufficient information to advise the owner or operator of the nature of the violation. The NOV notified Big Man that the Break Out Well was in noncompliance.
53. The Department issued a written NOV to Big Man that included sufficient information to advise the owner or operator of the action necessary action to abate the stated violation. The NOV notified Big Man that the Break Out Well was to be replugged.
54. The Department issued a written NOV to Big Man that included sufficient information to advise the owner or operator of the date by which the action was to be taken. The NOV notifies Big Man that corrective action was to be done by October 1, 2018.
55. The Department’s NOV also provided adequate information to inform the owner or operator of the procedure required to initiate administrative review. Administrative review was timely filed by the Petitioner, Big Man.
56. Administrative review before the Commission is conducted de novo. IC 4-21.5-3-14(d). See also Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 CADDNAR 317 (2011).
57. In this proceeding, the Department bears the burden of going forward and the burden of persuasion, commonly referred to as the burden of proof, with respect to its claims regarding noncompliance identified in the NOV. DNR v Midwestern Production Corp., 13 CADDNAR 49 (2012) citing Department v Molden, 11 CADDNAR 1 (2007). See also Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. App. 1991).
58. For any affirmative defense, the burden of persuasion and going forward remains on the party asserting the affirmative defense. IC 4-21.5-3-14(c). See the Commission’s prior treatment of an affirmative defense in a setting not involving an NOV in Belcher & Belcher v Yager-Rosales, 11 CADDNAR 79, 85 (2007).
Noncompliance-Leaking Wells within an Area of Review
59. Administrative rules implementing IC 14-37 provide for plugging leaking wells within an area of review. Specifically, 312 IAC 29-28-9(c) states the following:
If the division has reason to believe a well previously plugged in accordance with IC 14-37 located within the area of review of a Class II well is causing injection fluids to migrate into an underground source of drinking water or is leaking to the surface or into an unpermitted zone, the previously plugged well shall be replugged …
60. The Department’s position is that the Break Out Well is a previously plugged well that is within one-quarter mile of Well #27020. Because the Break Out Well is leaking and corrective action has not been taken, the Department’s position is that the NOV finding of noncompliance should be upheld.
61. Big Man’s position is that the Break Out Well was not previously plugged so that 312 IAC 29-28-9(c) is not applicable. Big Man’s position is that it would be contrary to law to find Big Man in noncompliance. Big Man’s position is that the NOV should be reversed.
62. An “area of review” is defined as the “area within one-fourth (1/4) mile of an existing or proposed Class II well…that is reviewed during the permitting process and periodically throughout the life of the permitted well…to evaluate if fluid flow between different formations might occur as a result of operating the permitted well….” 312 IAC 29-2-8.
63. Well #27020 is a Class II injection well.
64. The Break Out Well is within one-fourth (1/4) mile of Well #27020.
65. The Break Out Well is within the area of review of Well #27020.
66. The Break Out Well was plugged in 1959 to a depth of approximately 768 feet. No evidence was submitted to refute the plug completed in 1959.
67. A subsequent plug may have also occurred in 1961. In 1961, any plug completed may have been completed to a depth of no more than 375 feet.
68. The Break Out Well’s leak occurred over 50 years after the Break Out Well was originally plugged. The 1959 plug was originally constructed in a manner sufficient to protect the migration of fluids to the USDW or the surface.
69. The Break Out Well has not been replugged since the original plugging in 1959 and 1961.
70. “Saltwater” means water that is brought to the surface in connection with conventional oil or gas production or wastewater (other than wastewaters classified as hazardous waste) from gas plants that are an integral part of production operations. The term includes fluids contaminated with saltwater. 312 IAC 29-2-115.
71. In November of 2017, fluids containing saltwater leaked to the surface at the Break Out Well and created a spill in a farm field that drained into a ditch.
72. The Department had sufficient reason to believe that the Break Out Well was previously plugged, is in the area of review of Well #27020 and is leaking to the surface. For those reasons, 312 IAC 29-28-9(c) has been violated.
Corrective Action upon Noncompliance
73. To determine if Big Man is required to perform corrective action for noncompliance, further analysis of 312 IAC 29-28-9(c) is required to determine what action would be appropriate.
…within sixty (60) days or an alternative time frame approved by the division director by: (1) the previous permittee at the time the previously plugged well was plugged, if known; or (2) the owner or operator of the Class II well, if the previous permittee does not replug the well.
312 IAC 29-28-9(c).
74. Big Man was notified of noncompliance by the NOV and was instructed to plug the Break Out Well.
75. Big Man has not plugged the Break Out Well.
76. An owner or operator is entitled to establish that the leak was not the result of operating the Class II well. 312 IAC 29-28-9(d).
77. Big Man failed to provide sufficient evidence to show the leaking of migrating fluid resulted from of any cause other than the operation of its Class II well.
78. A plug, when used as a noun, refers to a material, usually cement, or a device such as a bridge plug, that is placed in the well bore or inside casing to provide hydraulic isolation and prevent the flow of water, oil, or gas.312 IAC 29-2-102.
79. An appropriate remedy for 312 IAC 29-28-9(c) noncompliance is for the previous permittee or the owner or operator of the Class II well to replug the leaking well.
80. An appropriate remedy would be for Big Man to replug the Break Out Well.
81. The Commission shall regulate the plugging and abandonment of wells to prevent fresh water pollution. IC 14-37-3-5.
82. The USDW is defined as “an aquifer or a portion of an aquifer, other than an exempted aquifer, that: (1) presently supplies fresh water to any user; or (2) contains a sufficient quantity of fresh water to supply a future user.” 312 IAC 29-2-131.
83. An appropriate plug would be performed to a depth sufficiently below the USDW so as to protect the USDW.
84. An appropriate plugging depth for the Break Out Well would be at least 50 feet below the USDW. The USDW is approximately 260 feet deep at the Break Out Well.
85. An owner or operator “may not raise as a defense to an enforcement action by the Department that compliance with the conditions of the permit constitutes an economic hardship [and] shall correct adverse environmental impact that results from noncompliance with a permit…. IC 14-37-4-2(a) (3) and (4).
86. Appropriate corrective action must occur without regard to the cost of the endeavor.
87. A violation of 312 IAC 29-28-9 “may result in the issuance of an order requiring the owner or operator to plug the Class II well”. 312 IAC 29-28-9(e).
88. Consistent with 312 IAC 29-28-9(e), upon Big Man’s failure to timely abate the violation, an appropriate remedy includes a requirement for Big Man to plug Well #27020.
89. Upon failure by an owner or operator to abate a violation in a timely manner, an owner or operator is liable for a civil penalty and permit revocation. IC 14-37-12-5.
90. Consistent with IC 14-37-12-5, upon a failure to timely abate the violation, Big Man’s permit may be revoked and a civil penalty may be imposed.
FINAL ORDER
1. Big Man is found to be in noncompliance for the well associated with Permit #23821.
2. The Notice of Violation issued by the Department against Big Man is affirmed.
3. Corrective action is required by Big Man as follows:
a. Petitioner, Big Man. is ordered to properly plug the well associated with Permit #23821 as well as perform site restoration required by 312 IAC 29-33-24.
b. Big Man shall submit a plugging plan for the well associated with Permit #23821 to the Department within 60 days of the issuance of a final order in this proceeding.
c. The Department’s approval of a plugging plan presented by Big Man shall not be unreasonably withheld.
d. Within 90 days of the Department’s approval of a plugging plan submitted by Big Man to plug Permit #23821, Big Man shall plug the well authorized by Permit #23821 consistent with the approved plan.
4. If no plan is submitted by Big Man within 60 days of the issuance of a final order in this proceeding, the Department may elect to plug and abandon the well authorized by Permit #23821.
5. If Big Man has not plugged and abandoned the well authorized by Permit #23821 within 90 days of the Department’s approval of a plugging plan submitted by Big Man, the Department may elect to plug the well associated with Permit #23821.
6. If the Department elects to plug and abandon the wells associated with the Permit, Big Man remains liable for the costs of plugging and abandoning the well.
7. Upon Big Man’s failure to abate the violation of 312 IAC 29-28-9 consistent with this order:
a. The Department may require Big Man to plug the Class II well authorized by Permit #27020, consistent with 312 IAC 29-28-9(e).
b. The Department may also pursue a civil penalty and permit revocation under IC 14-37-13, consistent with IC 14-37-12-5.
[1] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.
[2] Well numbers in this decision represent the Permit number that is associated with the well.
[3] The full college or university name was not referenced.