[ROSE DISPOSAL TOOK JUDICIAL REVIEW IN THE PIKE CIRCUIT COURT (63C01-9301-MI-6). ON AUGUST 3, 1998, THE TRIAL COURT ENTERED AN ORDER OF DISMISSAL 'FOR FAILURE TO PROSECUTE' (41(E)).]
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21-5.
2. The DNR is the state agency charged with the responsibility of regulating coal mines and coal mining within Indiana.
3. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
4. Rose Disposal Services, Inc. ("Rose") is a bona fide landfill operator with appropriate permits issued by the Indiana Department of Environmental Management ("IDEM"), which allows Rose to operate a landfill in Pike County, Indiana.
5. As a part of Rose's landfill operation, Rose excavates "cells" in order to create underground storage areas for waste.
6. The pleadings and attachments filed by Rose indicate that on occasion, Rose encounters a seam of marketable coal during cell excavation. When this happens, Rose removes, stores, and sells the coal.
7. The amount of coal which has been extracted and sold amounts to approximately 6,000 tones in three years. The total amount of material excavated from cells in three years is sufficient enough to create space for over 55,000 tones of waste.
8. Since the agency action under administrative review is an enforcement action taken pursuant to the Indiana Surface coal mine and Reclamation Act, IC 23-4.1 ("SMCRA"), the administrative law judge is the ultimate authority. See IC 13-4.1-2-1(c).
9. Rose contends that because it is an active, IDEM permitted landfill, the DNR has no jurisdiction over Rose's activity. Further, Rose appears to also contend that the coal extraction is "incidental" to Rose's primary business, and thus exempt from DNR regulation. Further, Rose makes reference to the "16 2/3 exemption" in which ISMCRA allows an exemption form ISMCRA permits and enforcement for mineral operations which mine other minerals besides coal and coal amounts to less than 16 2/3 of the minerals mined. See also 310 IAC 12-0.5-125(3)(A) and IC 13-4.1-1-3(12).
10. The DNR contends that it has jurisdiction over the commercial extraction of coal and that the request for review was not timely filed.
11. The DNR sent a duly authorized representative to the disposal site on August 26, 1992.
12. As a result of that inspection, cessation order C20826 ("CO'') was issued on August 31, 1992.
13. The pleadings filed by Rose indicate that service of the CO was made to a company representative on August 31, 1992.
14. IC 13-4.1-11-8(a) requires recipients of a CO who wish to contest the CO to file for review within 30 days of the issuance date.
15. Rose filed for review on October 5, 1992.
16. The request for review was not timely filed.
17. The DNR assessed a civil penalty on or about September 29, 1992.
18. IC 13-4.1-12-1(d) allows the recipient of a civil penalty assessment to request review of both the violation and the amount of the assessment by filing for review within 30 days after notification of the assessment. To perfect a request for review under these circumstances, however, the claimant must prepay the amount of the assessment. The failure to forward the amount of the penalty to the director waives all right to contest the violation or the amount of the fine.
19. Rose's request for review was filed within 30 days of the penalty assessment, but not properly perfected as the $5,000 fine was not paid.
20. Under any scenario, Rose's request for administrative review was not timely filed or
[VOLUME 6, PAGE 105]
perfected and the DNR's motion to dismiss should be granted.
21. Under normal circumstances, the above discussion would end this matter; however, given the Indiana Court decisions on subject matter jurisdiction including the fact that any order given by a judicial authority in a case without subject matter jurisdiction is void, the issue of jurisdiction requires some discussion.
22. IDEM regulates landfills, but there is no statutory authority for IDEM to regulate a surface coal mine operation.
23. DNR is charged with the responsibility of implementing P.L. 95-87, the Federal Surface Mining Control and Reclamation Act, (F-SMCRA, 30 U.S.C.A. 1201 et seq). See IC 13-4.1-1-2.
24. IC 13-4.1-1-3(120) defines a "surface coal mining operation". If the operation involves the extraction of coal in which the products "enter commerce", the operation is a surface coal mining operation.
25. Rose admits to extracting and selling 6,000 tons of coal from the landfill site over a three year period.
26. Therefore, the landfill is also a surface coal mine operation and subject to ISMCRA. The DNR has jurisdiction to regulate the coal extraction for sale of a portion of Rose's business.
27. IC 13-4.1-1-3(12) also provides for an exemption from regulation of a surface coal mining operation whenever the extraction of coal is incidental to the extraction of other minerals "where the coal does not exceed sixteen and two-thirds percent (16 2/3%) of the tonnage of minerals removed for purposes of commercial use of sale.... "
28. Krantz Brothers, Inc. v. IDNR, (lst District 1991), 58 N.E.2d 935 makes it perfectly clear that in order to qualify for the exemption, the operator must actively seek the exemption from DNR rather than asserting the exemption as a defense after the fact.
29. The request for review filed by Rose shows that the DNR sent Rose a form to fill out requesting the exemption with the CO. Clearly the request for a 16 2/3 exemption had not been filed or approved prior to the issuance of the CO.
30. The DNR thus has the right to issue a cessation order banning the commercial extraction of coal by Rose until such time as Rose obtains a permit or an exemption under ISMCRA.
31. 310 IAC 12-6-11(d) mandates a $5,000 penalty for conducting a surface coal mining operation without a permit.
32. Rose's brief makes extensive references to the abandoned mine land program (AML). This is not an AML case. All coal extraction involved in this case of concern to the DNR took place since 1989, and thus AML law does not apply and the DNR does not seek to assert jurisdiction under AML.
33. Rose conducted a surface coal mining operation, and thus DNR has jurisdiction. since Rose's request for administrative review was not timely filed or perfected, the DNR's motion to dismiss should be granted and the CO affirmed.