The issuance of Special Action permits numbers S-00118-1 and S-00233 to Jaeco, Inc. by the Deputy Director and the Chairman of the Natural Resources Advisory Council of the Bureau of Water and Minerals on October 7, 1988 is affirmed.
FINDINGS OF FACT
l. On November 10, 1988 Kenneth Keller, et al. (the "Claimants") requested review of two special action permits (Nos. S-00118-1 and S-00223) approved for Jaeco, Inc.
2. Subject permits were approved on October 7, 1589 by the Deputy Director and the Chairman of the Natural Resources Advisory Council of the Bureau of Water and Mineral Resources (the "Council").
3. These permits carried 15 and 17 conditions respectively (conditions attached at Exhibits "A" and "B"). Some of these conditions were conditions precedent which had to be satisfied before the permits would be issued. These conditions precedent were numbers 12 and 13 for permit 118-1 and numbers 5, 10, 11, 15 and 16 for permit 233.
4. Jaeco, Inc. was granted intervention in this case on December 7, 1988.
5. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
6. The Natural Resources Commission (the "Commission") is an agency as defined in IC 4-21.5-1-3. The Commission is the ultimate authority with respect to this proceeding.
7. Jaeco, Inc. filed a Motion to Dismiss on April 28, 1989 citing a lack of showing by the Claimants, in their petition of November 10, 1988, that they had an interest in the subject permits which may be adversely affected and further arguing that failure to go forward by the Department was grounds for dismissal under IC 134.1.
8. The administrative law judge denied the Jaeco, Inc. Motion to Dismiss on May 8, 1989 stating that the Claimant's interest is easily inferred in their petition and, at any rate, it was far too late for Jaeco, Inc. to raise that issue. In regard to the time delay, Jaeco had never objected to any of the matters which delayed the hearing nor had it at any time demanded an immediate hearing. This conduct waives any right Jaeco, Inc. would have to claim injury because of delay.
9. The Claimants presented three issues for hearing:
a. The recommendation made by Dave Phillips, who conducted on informal conference on October 3, 1988, was contrary to the facts and the approval of the permits only four days later was too hasty (Issue 1).
b. The Jaeco, Inc. record of past violations shows a pattern which should have precluded issuance of further permits (Issue 2).
c. Jaeco has committed other violation of law, that if not for nonfeasance by the Department, would add up to enough wrong-doing to preclude further permits being issued (Issue 3).
10. In regard to Issue 1, the Claimants present no credible evidence that Dave Phillips' recommendation presented to the Deputy Director and the Chairman of the Council was contrary to the facts.
11. The conditions attached to the permits (Exhibits A and B) indicate that the Department had many of the same concerns as the Claimants in regard to these permits.
12. The four day interval between the informal conference and the approval of the permits is not in contravention with any law or regulation.
13. The Claimants were afforded an informal conference under 310 IAC 12-3-109.
14. Dave Phillips, who held the informal conference, made his report under 310 IAC 12-3-112.
15. Under 310 IAC 12-3-114 (b) (1) (i), permit applications must be acted upon within 60 days of the informal conference. The regulations specify no minimum time.
16. The Claimants are now receiving a full review of the process as specified in 310 IAC 12-3-118.
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17. The above facts indicate that the permit applications were processed according to law.
18. Issue 2 goes to Jaeco's record of violations. Evidence shows that most of Jaeco's past violations are under administrative review.
19. The Department considered these past violations as indicated by permit conditions 10 and 11 on permit 118-1 and 13 and 14 on permit 233 (See Exhibits A & B).
20. Dave Phillips correctly testified that the Department should not deny a permit on the basis of violations that are under administrative review.
21. In Issue 3, the Claimants contend some sort of nonfeasance by the Department.
22. There was absolutely no evidence presented that tended to show any sort of nonfeasance by Department personnel.
23. The claimants raised a side issue as to permit condition 8 of permit 118-1. This condition set a bond rate of $4800.00 per acre. This was later lowered to $3250.00 per acre by the Director (Ridenour).
24. Pete Satoris testified that the bond rate was reduced for the entire permit area (118 and 118-1) because prime farmland was removed.
25. The adjustment of the bond amount is required by 310 IAC 12-4-9 when certain conditions change. The adjustment mentioned by the Claimants was routinely made under this section.