The motion to dismiss filed by the Department of Natural Resources is granted. The request for review by Green Construction is hereby dismissed.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5 and IC 13-4.1 apply to these proceedings.
3. The DNR is the state agency responsible for the regulation of surface coal mining.
4. Green Construction ("Green") holds permit number S-00002 which allows them to operate a surface coal mining operation in Daviess County, Indiana.
5. The administrative law judge is the ultimate authority in this matter.
6. On May 1, 1991, a duly authorized representative of the DNR issued a cessation order to Green.
7. On June 6, 1991, DNR assessed a penalty of $750.
8. On June 27, 1991, Green requested administrative review of the penalty assessment.
9. The request for review did not include payment of the assessment.
10. Payment of the assessment was not made until July 23, 1991.
11. Requests for administrative review of cessation orders may be brought in two ways:
(a) 13-4.1-11-8 provides for review if a request is made within 30 days after the cessation order is issued.
(b) 13-4.1-12-1 provides for review if a request is made within 30 days after the penalty is assessed as long as the penalty is paid and failure to forward the appropriate sum is a waiver of all legal right to contest the violation or penalty.
12. The request of review was made 57 days after the cessation order was issued and therefore was not timely under IC 13-4.1-11-8.
13. The payment of the assessment was 47 days after the penalty was assessed and this was not timely under IC 13-4.1-12-1.
14. Further, the issue of timeliness was settled in Will Mining Corporation v. DNR, 1 Caddnar 76 (1983). The facts are almost identical to the case at hand. In Will, supra, the mine requested a review of a penalty assessment on the 30th day but failed to pay the assessment. The review perfection requirement was held to be a condition precedent for filing a proper review and the mine's petition for review was denied.
15. Accordingly, Green failed to timely perfect its request for review and the motion to dismiss should be granted.