Content-Type: text/html 90-292r.v6.html

CADDNAR


[CITE: Peabody Status of Subsoil Replacement on Non-Prime Farmland, 6 CADDNAR 8 (1991)]

[VOLUME 6, PAGE 8]

Cause #: 90-292R
Caption: Peabody Status Of Subsoil Replacement on Non-Prime Farmland
Administrative Law Judge: Lucas
Attorneys: Joest; Posey
Date: September 4, 1991

[NOTE: INTERLOCUTORY DECISION AND AFFIRMATION ON JUDICIAL REVIEW ATTACHED.]

ORDER

The determination by the Department, that eighteen (18) inches is a minimum standard for total soil replacement (topsoil and subsoil) on non-prime farmland areas with a land use of cropland, was not adopted as a rule in conformance with IC 4-22-2 and does not have the force of law. 310 IAC 12-512.1(f) governs where subsoil is required to be salvaged and replaced; and this subsection is intended to be applied only within limited circumstances as found appropriate by the director with respect to a particular case.

FINDINGS OF FACT

1. The department of natural resources (the "Department") is an agency as the term is defined in IC 4-21.5-1-3. IC 4-21.5 (sometimes referred to as the administrative adjudication act" or the "AAA") is applicable to an "agency action" of the Department.

2. Surface coal mining and reclamation activities are governed in Indiana by IC 13-4.1 and 310 IAC 12 (collectively referred to as "Indiana SMCRA"). Indiana SMCRA is administered by the Department.

3. 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. Pursuant to IC 13-4.1-2-1(c), the administrative law judge is the "ultimate authority" for the Department in this proceeding.

4. 310 IAC 0.6-1 has been adopted by the natural resources commission to govern Department proceedings which are subject to the AAA.

5. 310 IAC 0.6-1-15 provides that a person may, in writing, request the Department to interpret a statute or rule administered by the Department as applicable to a specific factual circumstance. The interpretation is subject to administrative review. Indiana Coal Council Status of SMCRA Renewal Mitigation, 5 Caddnar 135 (Sep. 5, 1990). This rule section provides for "quasi-declaratory judgment" relief. Scales v. State, Ind. App., 563 N.E.2d 664, 666.

6. On October 12, 1990, Peabody Coal Company ("Peabody") filed a request for administrative review under the quasi-declaratory judgment provisions of 310 IAC 0.6-1-15. The request for review sought to set aside a determination by the Department under Indiana SMCRA, that on non-prime farmland areas used as cropland, there must be a minimum of eighteen (18) inches of total soil replaced (including both "topsoil" and "subsoil").[FOOTNOTE i]

7. The section of Indiana SMCRA which bears most directly upon topsoil and subsoil replacement for surface coal mining operations is 310 IAC 12-5-12.1. Subsection (f) specifies as follows: 11(f) Subsoil segregation. The director may require that portions of the subsoil be removed and segregated, stockpiled and redistributed as subsoil in accordance with the requirements of paragraphs [sic., subsections] (d) and (e) of this rule [sic., section] if he finds such subsoil layers are necessary to comply with the revegetation requirements of 310 IAC 12-5.

8. The federal equivalent of 310 IAC 12-5-12.1(f) is 30 CFR 816.22(e). In its preamble to final implementation of this federal regulation, the office of Surface Mining and Reclamation explained: "Subsoil segregation may be required when the regulatory authority determines that it is necessary to achieve compliance with the revegetation requirements. The regulatory authority will be in the best position to determine the extent of soil reconstruction needed to achieve the desired physical or chemical soil characteristics for revegetation. Since revegetation is required elsewhere, this rule does not impose an undue burden on operators; it provides recognition that in some limited circumstances separate handling of subsoil strata may be necessary to meet those standards.

9. The Department contends that 310 IAC 125-12.1(f) "applies in any and all situations in which the amount of topsoil is less than 18" in depth." (Emphasis supplied by Department.] "Response to Claimant's Motion for Summary Judgment and Respondent's Cross Motion for

[VOLUME 6, PAGE 9]

Summary Judgment," p. 4. This contention appears to be in conflict with the language of subsection (f), which requires a special "finding" by the director that the subsoil is needed for revegetation, and with the office of Surface Mining interpretation of the parallel federal regulation (acknowledging the need for subsoil separation in "some limited circumstances").[FOOTNOTE ii]

10. The most reasonable interpretation of 310 IAC 12-5-12.1(f) is that the subsection contemplates an exception to the general principle that subsoil is not required to be salvaged and replaced. The exception would be applied only within limited circumstances as found appropriate by the director with respect to a particular case.

11. If the Department intends to establish 18 inches as a minimum standard for soil replacement, regardless of whether 18 inches of topsoil existed before mining and regardless of whether or not the site qualifies as prime farmland, that minimum standard should be established by rule [FOOTNOTE iii] or by statute.

12. The proffered 18-inch minimum standard for soil replacement has or is designed to have the effect of law and would implement Indiana SMCRA and Department policy. The standard is in the nature of a "rule" as defined by IC 4-22-2-3(b).

13. As provided in IC 4-22-2-44, a "rule that is the subject of a noncomplying rulemaking action does not have the effect of law until it is adopted in conformity" with IC 4-22-2.

14. Since the 18-inch minimum for total soil replacement has not been implemented in conformance with IC 4-22-2, the proffered standard does not have the effect of law. In accord are Indiana Department of Environmental Management v. AMAX, Inc., Ind., APP., 529 N.E.2d 1209, 1212-13 and Indiana coal Council Status of SMCRA Renewal Mitigation, 5 Caddnar 135 (1990).

15. There is no existing legal requirement that all Indiana SMCRA permits for areas of non-prime farmland must reflect that areas with a land use of cropland shall have a minimum of eighteen (18) inches of total soil material (topsoil and subsoil) replaced.

FOOTNOTES

i. Both topsoil and subsoil are defined terms. "Topsoil" refers to tho uppermost mineral layer and is the part of the soil in which the organic matter is most abundant and where the leaching of soluble or suspended particles is typically the greatest. 310 IAC IAC 12-0.5-8 and 310 IAC 12-0.5-133. "Subsoil" means the mineral layer that is typically immediately beneath the topsoil. The subsoil commonly contains more clay, iron, or aluminim than the topsoil or the deepest layer of soil. 310 IAC 12-0.5-20 and 310 IAC 12-0.5-121.

ii. IC 13-4.1-1-5 prohibits the Department from the enforcement of a rule under Indiana SMCRA which is "more stringent than corresponding provisions under the Federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201-1328)."

iii. There is a serious question as to whether an eighteen-inch total soil replacement standard, even if established by rule, would violate IC 13-4.1-1-5. A determination of the question is not essential to this proceeding, however, and this question is not now determined. The rule adoption process, with the legal review accorded by the attorney general under IC 4-22-2-32(c), affords an appropriate forum to consider this question.

_____________________________________________________________________________
[Note: CADDNAR citation does not apply below the line.]

Sullivan Circuit Court Decision

On May 21, 1992, the Sullivan Circuit Court rendered "Findings of Fact and Conclusions of Law" in this proceeding concernining whether the Indiana Department of Natural Resources has standing to take judicial review of a final order or determination of the Natural Resources Commis§ion. This entry follows but does not determine the merits of the action:

1. Petitioner Indiana Department of Natural Resources (DNR) is an Agency within the meaning of IC 4-21.5-1-3.

2. Respondent Peabody Coal Company (Peabody) is a Delaware corporation duly admitted to do business in Indiana. Respondent operates surface coal mine operations in Indiana, one of which is located in Vigo County, Indiana, (surface coal mine and reclamation operation known as Universal Mine-Snowhill Area #16, under Surface Coal Mining Permit No. S-00246 mine issued by Petitioner Department of Natural Resources, pursuant to IC 13-4.1, the Indiana Surface Coal Mining and Reclamation Act (ISMCRA)).

3. Permit No. S-00246 is affected by the Department of Natural Resources' special status determination and Final Order of the Administrative Law Judge (ALJ) which is the subject of the Petition for Judicial Review.

4. This is a Petition for Judicial Review brought under IC 421.5-5, the Administive Orders and Procedureg Act (AOPA), and IC 13-4.1, of the Final order of the ALJ in Administrative Cause No. 90-292R, issued on September 4, 1991.

5. On September 4, 1991, the ALJ issued his Final Order disapproving a special status determination made by the DNR pursuant to 310 IAC 0.6-1-15 respecting soil replacement on lands surface coal-mined by Peabody.

6. The DNR timely filed its Petition for Judicial Review in the Vigo Ciruit Court on October 3. 1991.

7. Peabody filed its Answer on October 15, 1991, raising as affirmative defenses insufficiency of service of process and lack of jurisdiction over subject matter and failure to state a claim in that Petitioner Department of Natural Resources is not a party entitled under IC 4-21.5-5 to seek judicial review of its own final agency decision.

8. Peabody also filed a Motion for a Change of Venue under Trial Rule 76.

9. DNR filed the agency record on November 1, 1991.

10. The change of venue from Vigo County was received by the Sullivan Circuit Court on December 31, 1991.

11. On January 21, 1992, Peabody filed a Motion for Judgment On the Pleadings and Memorandum of Points and Authorities In Support thereof, contesting DNR's right to file a Petition for Judicial Review.

12. On March 19, 1992, the DNR filed a Points and Authorities Memorandum on this issue.

13. On March 19, 1992, a Hearing was held on Peabody's motion for Judgment On The Pleadings for Judicial Review.

14. Both parites filed supplementary Memoranda of Points and Authorities and Proposed Findings of Fact and Conclusions of Law on the issue of whether DNR could file a Petition for Judicial Review of the ALJ decision against it.

15. Peabody argues that the DNR is an agency subordinate to a larger agency which has issued an order the DNR is not entitled to contest, that to allow DNR to contest the Final Order of the ALJ is to allow it to contest its own order; that the DNR is precluded from doing so.

16. DNR argues that the ALJ is a distinct and separate entity or agency, a neutral fact-finder who hears all arguments at arm's length from all parties, and who renders a final decision from which judicial review may be taken by any party to the administrative proceeding or anyone that qualifies under IC 4-21.5-5-2; and therefore DNR is not contesting its own order.

17. Public Law 28-1990 and Public Law 125-1991, amending both IC 14-3 and IC 13-4.1, changed function, duties, and relationships between the DNR, the Natural Resources Commission (NRC), and the ALJ'S.

a. P.L. 28-1990, SECTION 25, amended IC 14-3-3-25 to mandate that the NRC be the hearings agency for the DNR, and simultaneously transferred the issuance of licenses from the NRC to the DNR. The same public law concurrently amended IC 14-3-3-21 and named the NRC the "ultimate authority" of the DNR "under IC 4-21.5." Prior to 1991, the NRC had substantive functions under IC 13-4.1 with respect to permitting and bonding decisions on behalf of the DNR. But P.L. 125 amended the NRC's functions to be, in effect, that of a fact-finding and Hearings Board (and also a board to effect rule-making). SECTION 2, IC 13-4.1-2-1. IC 13-4.1 was amended to require the NRC to conduct fact-finding and hearings. Thus, for example, IC 13-4.1-11-8 had previously provided that the DNR ("Director") would conduct the hearings challenging notices of violation issued by DNR to coal companies; P.L. 125-1991 transferred the hearings function to the NRC. Furthermore, the NRC was mandated to appoint ALJ's to conduct proceedings under IC 4-21.5, or IC 4-22-1 (rule-making). P.L. 125-1991, SECTION 2. IC 13-4.1-21.

b. With respect to the ALJ'S, P.L. 28-1990 amended IC 14-3-3-3 and in subparagraph (e) directed that the ALJ's now work for the NRC and not the DNR. In the following year the legislature in P.L. 125-1991 amended ISMCRA at IC 134.1-2-1 to require that the NRC appoint ALJ's to conduct ISMCRA hearings under IC 4-21.5 and concurrently indicated in IC 13-4.1-2-1(c) and (d) that the ALJ would be the "ultimate authority" for administrative review purposes for most ISMCRA proceedings.

c. With respect to the DNR, any substantive duties formerly performed by the NRC were concurrently transfered to the DNR ("Director").

17. AOPA provsions, IC 4-21.5-11 through 13, with respect to prohibitions on ex parte communication restrictions on ALJ conduct, evidence legislative intention that ALJ's deal at arm's length with all party litigants. Legislative intention to separate the ALJ's from the entities appearing before them is clear.

18. The concept of "ultimate authority'' is for purposes of judicial review under the AOPA; that is the ultimate authority, under the AOPA, is the "final stop" before judicial review, the last stop before court.

19. It was the legislature's intention to turn sole responsibility of hearings and fact-finding over to the NRC and separate the functions, duties and responsibilities of NRC and DNR, as evidenced by AOPA provisions and Public Laws 28-1990 and 125-1991. They constitute, for purposes of IC 4-21.5, two separate entities or agencies. The ALJ's are a part of the NRC and not the DNR, and they too are a separate and discrete entity from the DNR.

20. The AOPA provides the exclusive means for judicial review of an administrative order.

21. IC 4-21.5-5-2(b) sets forth what "persons" are entitled to judicial review. IC 4-21.5-5-2 reads, in relevant part:

(a) Judicial review is initiated by filing a petition for review in the appropriate court.
(b) Only a person who qualifies under:

(1) section 3 of this chapter concerning standing;
(2) section 4 of this chapter concerning exhaustion of administrative remedies;
(3) section 5 of this chapter concerning the time for filing a petition for review;
(4) section 13 of this chapter concerning the time for filing the agency record for review;
(5) any other statute that sets conditions for the availability of judicial review; is entitled to review of a final agency action.

22. IC 4-21.5-1-11 defines "person" to mean: "an individual, agency, political subdivision, partnership, corporation, association, or other entity of any character." (Emphasis supplied.)

23. The DNR is a "person" for purposes of IC 4-21.5 and judicial review.

24. The DNR qualifies for judicial review of the ALJ decision pursuant to the requirements of IC 4-21.5-5-2(b)(1) and IC 4-21.5-5-3(a)(2) since it was "a person who was a party to the agency proceedings that led to the agency [ALJ] action."

25. The DNR qualifies for judicial review of the ALJ decision pursuant to the requirements of IC 4-21.5-5-2(a)(2) and IC 4-21.5-5-4 since administrative remedies were exhausted.

26. The DNR qualifies for judicial review of the ALJ decision pursuant to the requirements of IC 4-21.5-52(b)(3) and IC 4-21.5-5-5 because its Petition for Review was timely filed.

27. The DNR qualifies for judicial review of the ALJ decision pursuant to the requirements of IC 4-21.5-5-2(b)(4) and IC 4-21.5-5-13 because it timely filed the agency record.

28. The DNR qualifies for judicial review of the ALJ decision pursuant to the requirements of IC 4-21.5-5-2(b)(5) and IC 13-4.1-2l(e).

29. The AOPA provisions on service at IC 4-21.5-5-8 are requirements which must be satisfied to the extent possible, not to the extent of absurdity. DNR has satisfied the requirements to the extent possible by serving the party it was suing. A party is not required to serve itself.

30. Furthermore, Peabody does not have standing to raise the issue of sufficiency of service since it was properly served.

31. The DNR, as the party below, litigating its case in front of a separate and distinct agency or entity, the ALJ, fulfilled all the requirements for petitioning for judicial review.

32. The right to judicial review cannot be a "one-way street" with only one party allowed the right to call upon the courts to review and correct mistakes made in legal interpretations. To interpret the right of judicial review as strictly onesided could result in the skewing of the law to one side or the other and the setting of erroneous unreviewable precedent; in cases such as the one at bar, only ALJ decisions against the DNR would always be unreviewable. It seems axiomatic that if one side has the right to judicial review of an ALJ determination, so must the other.

WHEREFORE, it is ORDERED, ADJUDGED, AND DECREED that Peabody's Motion for Judgment on the Pleadings is DENIED. DNR's Petition for Judicial Review is appropriate, legal, and proper.

On June 23, 1993, the Sullivan Circuit Court entered its final order on the merits of the judicial review. No appeal of this order was taken.

FINDINGS OF FACT AND CONCLUSIONS OF LAW


This matter comes before the Court for judicial review of an administrative agency action. The Court having considered the administrative agency record and briefs of the parties now enters the following findings pursuant to Ind. R. Tr. P. 52(A)(2) and IC 4-21.5-14(c):

1. Petitioner, Indiana Department of Natural Resources (the "Department") is an administrative agency of the state of Indiana with responsibility for the administration and enforcement of a program for the regulation of surface coal mining known as "Indiana Surface Mining Control and Reclamation Act ("ISMCRA") and consisting of a statute, IC 13-4.1 and implementing regulations, 310 IAC 12.

2. Respondent, Peabody Coal Company ("PCC") is a corporation which operates surface coal mining operations in the State of Indiana under ISMCRA permits issued by the Department.

3. On May 23, 1990, PCC submitted a written request to the Director of the Department for a special status determination under 310 IAC 0.6-1-15. PCC's request inquired whether the Department intended to require that all areas with a land use of cropland have a minimum of 18 inches of soil replaced, even if the area was not prime farmland and the pre-mining topsoil was less than 18 inches deep.

4. In an undated response to PCC's request described above, the Department stated in relevant part as follows: "The Department of Natural Resources has taken the position that all future permits must reflect that areas with a land use of cropland will have soil material replaced to a depth that is conducive to prompt vegetative cover and recovery of productivity levels, pursuant to 310 IAC 12-5-68 and IC 13-4.1-8-1(2). This position applies to non-prime farmland areas where the premining A soil horizon is less than 18 inches thick. If the premining "A" horizon (topsoil) is greater than 18 inches, then all of the topsoil shall be removed in accordance with 310 IAC 12-5-12.1(a). The referenced 18 inches relates to soil material, which may be topsoil or subsoil or a combination of both." (R. 5-8)

5. Neither PCC's request nor the Department's determination were directed to any particular mining operation or permit.

6. PCC requested administrative review of the Department's determination in accordance with 310 IAC 0.6-1-15(d). PCC's request was referred to Stephen L. Lucas, an Administrative Law Judge for the Natural Resources Commission (the "Administrative Law Judge") for administrative review of the Department's determination.

7. On September 4, 1991, the Administrative Law Judge entered his report, findings of fact and final order on PCC's request for administrative review of the Department's determination (the "Final Order"). The Administrative Law Judge entered the following findings among others:

8. The federal equivalent of 310 IAC 12-5-12.1(f) is 30 CFR 816.22(e). In its preamble to final implementation of this federal regulation, the office of Surface Mining and Reclamation explained: 'Subsoil segregation may be required when the regulatory authority determines that it is necessary to achieve compliance with the revegetation requirements. The regulatory authority will be in the best position to determine the extent of soil reconstruction needed to achieve the desired physical or chemical soil characteristics for revegetation. Since revegetation is required elsewhere, this rule does not impose an undue burden on operators; it provides recognition that in some limited circumstances separate handling of subsoil strata may be necessary to meet those standards."' (Final Order, Finding of Fact No. 8, R. 90-91).

9. The Department contends that 310 IAC 12-5-12.1(f) 'applies in any and all situations in which the amount of topsoil is less than 18" in depth. Response to Claimant's Motion for Summary Judgment and Respondent's Cross Motion for Summary Judgment,' p. 4. This contention appears to be in conflict with the language of subsection (f), which requires a special 'finding' by the director that the subsoil is needed for revegetation, and with the Office of Surface Mining interpretation of the parallel federal regulation (acknowledging the need for subsoil separation in "some limited circumstances").

10. The most reasonable interpretation of 310 IAC 12-5-12.1(f) is that the subsection contemplates an exception to the general principle that subsoil is not required to be salvaged and replaced. The exception would be applied only within limited circumstances as found appropriate by the director with respect to a particular case.

11. If the Department intends to establish 18 inches as a minimum standard for soil replacement, regardless of whether 18 inches of topsoil existed before mining and regardless of whether or not the site qualifies as prime farmland, that minimum standard should be established by rule or by statute.

12. The proffered 18 inch minimum standard for soil replacement has or is designed to have the effect of law and would implement Indiana SMCRA and Department policy. The standard is in the nature of a 'rule' as defined by IC 4-22-2-3(b).

13. As provided in IC 4-22-2-44, a 'rule that is the subject of a noncomplying rulemaking action does not have the effect of law until it is adopted in conformity' with IC 4-22-2.

14. Since the 18-inch minimum for total soil replacement has not been implemented in conformance with IC 4-22-2, the proffered standard does not have the effect of law. In accord are Indiana Department of Environmental Management v. AMAX, Inc., Ind. App., 529 N.E.2d 1209, 1212-13 and Indiana Coal Council Status of SMCRA Renewal Mitigation, 5 Caddnar 135 (Sep. 5, 1990)." (Final order, Finding of Fact Nos. 9-14, R. 91-93). (footnotes omitted).

Based on his findings, the Administrative Law Judge entered the following order:

"The determination by the Department, that eighteen (18) inches is a minimum standard for total soil replacement (topsoil and subsoil) on non-prime farmland areas with a land use of cropland, was not adopted as a rule in conformance with IC 422-2 and does not have the force of law. 310 IAC 12-5-21.1(f) governs where subsoil is required to be salvaged and replaced; and this subsection is intended to be applied only within limited circumstances as found appropriate by the director with respect to a particular case." (Final Order, p. 7, R. 9).

8. on October 3, 1991, the Department filed a timely petition for judicial review of the Final Order in the Vigo Circuit Court. Venue of the judicial review action was subsequently transferred to this court pursuant to Indiana R. Tr. P. 76.

9. The Department does not challenge any of the factual findings made by the Administrative Law Judge but contends that the Final Order is not in accordance with law. The Department argues that the Administrative Law Judge made errors of law by

a) relying exclusively on 310 IAC 12-5-12.1(f) and ignoring other applicable statutes and rules, to-wit: IC 13-4.1-8-1(2), IC 13-4.1-8-1(5), IC 13-4.1-8-1(6), 310 IAC 12-5-68, 310 IAC 12-5-12.1(a), 310 IAC 12-5-59(b), and 310 IAC 12-5-64(a) and (b).
b) holding that the Department cannot impose a general minimum soil replacement depth requirement of 18 inches for all cropland (including non-prime farmland) except by formally promulgating a regulation in accordance with IC 4-22-2.

Based on the foregoing findings, the Court makes the foregoing conclusions of law:

1. The Department is an administrative agency whose orders and determinations are subject to administrative judicial review under IC 4-21.5.

2. IC 4-21.5-5 governs judicial review of administrative agency decisions. IC 4-21.5-5-14(c) provides: "(d) The Court shall grant relief under Section 15 IC 4-21.5-5-151 of this chapter only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:

(1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) Contrary to Constitutional right, power, privilege, or immunity;
(3) In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(4) Unsupported by substantial evidence."

3. In reviewing the Administrative Law Judge's legal conclusions to determine whether the Administrative Law Judge correctly interpreted and applied legal requirements, this Court is not required to give any deference to the Administrative Law Judge's conclusions.

4. The Administrative Law Judge did not error by relying exclusively on 310 IAC 12-5-12.1(f) or ignoring other applicable statutes or regulations. The Administrative Law Judge never held that 310 IAC 12-5-12.1(f) was the only legal provision applicable to this case; instead he identified it as the provision "which bears most directly upon topsoil and subsoil replacement for surface coal mining operations . . . " (Final Order, Finding of Fact No. 7, R. 90). 310 IAC 12-5-12.1(f) is headed "subsoil segregation" and directly addresses the discretion of the Director of the Department to require subsoil replacement. No other statute or rule cited by the Department specifically requires 18 inch minimum soil replacement depth. The Administrative Law Judge's characterization of 310 IAC 12-5-12.1(f) as the legal provision bearing most directly on soil replacement for surface coal mining operations is correct.

5. The Administrative Law Judge did not error in holding that the Department cannot impose a general minimum soil replacement depth requirement of 18 inches for all cropland (including non-prime farmland) except by formally promulgating a regulation in accordance with IC 4-22-2. The Administrative Law Judge made specific factual findings in paragraphs 9 and 12 (R. 91-93) that the Department's 18 inch minimum soil replacement depth requirement intended to have the effect of law and to apply to all situations in which pre-mining topsoil is less than 18 inches deep. These factual findings have not been challenged and are therefore bindng on the Court.

6. IC 4-22-2 establishes procedures to be followed by administrative agencies in adopting rules. IC 4-22-2-3(b) defines "rule as follows: 11(b) 'Rule' means the whole or any part of an agency statement of general applicability that:

(1) Has or is designed to have the effect of law; and
(2) Implements, interprets, or prescribes:

(A) Law or policy; or
(B) The organization, procedure, or practice requirements of an agency."

7. IC 4-22-2 sets forth requirements for the adoption of administrative agency rules, as defined in IC 4-22-2-3(b). IC 4-22-2-44 provides that a rule which is not properly adopted in accordance with the procedures set forth in IC 4-22-2 is of no force or effect.

8. The Administrative Law Judge correctly determined that the Department's 18 inch minimum soil replacement depth requirement must be formally adopted as a rule under IC 4-22-2 in order to have the effect of law.

9. The Final Order is in accordance with law, and is not arbitrary, capricious, or an abuse of discretion, in excess of statutory jurisdiction, authority, or limitations, nor short of statutory right.

10. If any of the foregoing Findings of Fact should have been denominated as a Conclusion of Law, it is hereby adopted as such. If any of these Conclusions of Law should have been denominated a Finding of Fact, it is hereby adopted as such.