ORDER
[NOTE: The parties were provided an opportunity to take judicial review following the final disposition of this procedural matter. For unrelated reasons ALJ Stephen Lucas recused himself, and the merits of the administrative proceeding were then considered by ALJ William Teeguarden.]
A dismissal based upon threshold notice issues is not entered.
FINDINGS OF FACT
A. FOUNDATIONS OF THE LAW AND THE CASE
1. The subject of this proceeding is Permit Number S-00318 (the "subject permit") issued by the department of natural resources (the "Department") to Vigo Coal Co., Inc. ("Vigo Coal") pursuant to IC 14-34 and 310 IAC 12 ("Indiana SMCRA") to engage in concurrent surface and underground coal mining, and related reclamation activities. The permit governs what is known as the "Cypress Creek Mine" and which contains approximately 1,425 acres within Warrick County, Indiana. The permit authorizes the disposal of coal combustion waste within the boundaries of the mine.
2. An agency action rendered by the Department pursuant to Indiana SMCRA is subject to IC 4-21.5 (also referred to as the "administrative orders and procedures act" or "AOPA"). Scales v. State, Ind. App. 563 N.E.2d 664 (1990). Peabody Coal Co. v. Indiana Dept. of Natural Resources, Ind. App., 606 N.E.2d 1306 (1992). The natural resources commission (the "Commission") has adopted a rule at 312 IAC 3-1 to assist in its administration of the administrative orders and procedures act.
3. The AOPA describes an "agency order" as including the whole or part. of an order, the failure to issue an order, or an agency's performance or failure to perform a duty. IC 4-21.5-1-4. An "order" is a license or another agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons. IC 4-21.5-1-9.
4. A "license" is a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law. IC 4-21.5-1-8.
5. Authorization to engage in surface and underground coal mining operations is a form of license to which the AOPA applies. Natural Resources Com'n of State of Ind. v. AMAX Coal Co., Ind. 638 N.E.2d 418 (1994).
6. The subject permit is a "license" as the term is defined by the AOPA and is subject to the terms of the AOPA.
7. Two sections of the administrative orders and procedures act are primarily concerned with the issuance of licenses. These are IC 4-21.5-3-4 and IC 4-21.5-3-5.[Footnote 1] The terms of IC 4-21.5-3-4 apply only where specified by law; licenses controlled by ISMCRA are not among those enumerated within section 4.[Footnote 2] The subject permit is governed by IC 4-21.5-3-5.
B. ADEQUACY OF THE NOTICE BY THE HOOSIER ENVIRONMENTAL COUNCIL UNDER IC 4-21.5-3-5(b)(4)
8. As provided in IC 4-21.5-3-5(b), there are six categories of persons to whom notice must be given:
(1) Each person to whom the order is specifically directed.
(2) Each person to whom a law requires notice to be given.
(3) Each competitor who has applied to the agency for a mutually exclusive license.
(4) Each person who has provided the agency with a written request for notification of the order, if the request:
(A) describes the subject of the order with reasonable particularity; and
(B) is delivered to the agency at least seven (7) days before the day that notice is given under this section.
(5) Each person who has a substantial and direct propriety interest in the subject of the order.
(6) Each person who absence as a party in the proceeding concerning the order would deny another party complete relief in the proceeding or who claims an interest related to the subject of the order and is so situated that the disposition of the matter, in the person's absence, may:
(A) as a practical matter impair or impede the person's ability to protect that interest; or
(B) leave
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any other person who is a party to a proceeding concerning the order subject to a substantial risk of incurring multiple or otherwise inconsistent obligations by reason of the person's claimed interest.
9. The procedural law which governs the issuance of a permit to engage in coal mining and reclamation activities under Indiana SMCRA is found primarily at IC 14-34-4-12, IC 14-34-4-13, 310 IAC 12-3-114, and 310 IAC 12-3-118.
10. The Department is required to notify the permit applicant with respect to a decision on approval or disapproval, and if disapproved, must notify the applicant of the reasons for disapproval. IC 14-34-4-12. By rule, notice of the permit approval or disapproval must be published in a newspaper of general circulation in the general area of the permit. Each person who files a written objection or comment with respect to an application is also entitled to notice of the action. 310 IAC 12-3-114 and 310 IAC 12-3-118. Within 30 days after the notification, the applicant or "any person with an interest that is or may be adversely affected" may request administrative review pursuant to the AOPA. IC 14-34-4-13.
11. The provisions of the AOPA and Indiana SMCRA must be read together in determining what public notice requirements apply. To be noted, initially, is that the AOPA "creates minimum procedural rights and imposes minimum procedural duties." IC 4-21.5-2-1. The AOPA applies to an agency "except to the extent that a statute clearly and specifically provides otherwise." IC 4-21.5-2-3. Application of IC 14-34-4-12 and 13 is instructive to implementation if IC 4-21.5-3-5, but neither of these Indiana SMCRA provisions is seen to be incompatible with the administrative orders and procedures act.
12. Although the focus of this proceeding is upon IC 4-21.5-3-5(b)(4), for the purpose of preparing a complete administrative record, each of the notice provisions of IC 4-21.5-3-5(b) are reviewed separately as being potentially applicable to the subject permit.
13. Pursuant to IC 14-34-4-12, a person to whom the order is specifically directed under IC 4-21.5-3-5(b)(1) is the applicant, Vigo Coal. 14. Pursuant to 310 IAC 12-3-114, a person who requests an "informal conference" is a person to whom the law requires a notice to be given under IC 4-21.5-3-5(b)(2). Neither the Hoosier Environmental Council nor any other person requested an informal conference with respect to the application of the subject permit. Affidavit of David Phillips dated May 20, 1996.
15. Competitors for a mutually exclusive license are not at issue in this proceeding. The Hoosier Environmental Council does not seek a license under Indiana SMCRA to engage in coal mining and reclamation. Neither is there any demonstration that the subject permit provides an exclusive right to Vigo Coal to engage in that activity. IC 4-21.5-3-5(b)(3) does not apply.[Footnote 3]
16. By letter dated January 25, 1993, the Hoosier Environmental Council provided a letter to the deputy director for the bureau and to the director of the division which administer Indiana SMCRA which stated in substance: "This is to confirm our request that copies of all applications for permit modifications or new permits concerning the disposal of coal combustion waste pursuant to IC 13-4.1[Footnote 4] be sent to our office." ("HEC's 1993 notification request")
17. The Department does not dispute that following the receipt of HEC's 1993 notification request, it gave the Hoosier Environmental Council notice of several permits where the disposal of coal combustion waste was at issue. Indeed, the document from which the Hoosier Environmental Council took administrative review was a letter dated January 25, 1996 in which the Hoosier Environmental Council was informed it "may be a person with an interest which is or may be adversely affected by this decision."[Footnote 5] Rather the Department characterizes its practice of providing notification as "discretionary." The Department asserts that its "practice of providing Claimant Hoosier Environmental Council with copies of approval and findings documents for proceeding coal combustion waste permits was purely courtesy, and not statutorily mandated under the ISMCRA; therefore, any alleged deficiency in that notice is unfortunate, but not a statutory ground upon which Claimant Hoosier Council can claim a lack of sufficient notice." Department's Brief with Respect to Threshold Notice Issues (filed May 20, 1996).
18. The Department and Vigo Coal urge that HEC's 1993 notification request lacked sufficient particularity to qualify for relief under IC 4-21.5-3-5(b)(4). Yet HEC's 1993 notification
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request provided sufficient particularity so that the Department had, in fact, understood and acted upon its terms in the past. The AOPA provides no formula for determining what constitutes sufficient particularity. While a lack of sufficient particularity may negate entitlement to relief in the proper case, there is nothing in the history of HEC's 1993 notification request, nor in the Department's response to it, to justify that result here.
19. The Department also urges that the elapse of three years since HEC's 1993 notification request had caused it to become stale and that its indefinite vitality, and the cumulative application of similar requests, would eventually result in an unbearable burden upon the Department. Although the time-frame is not stated, nothing in the AOPA requires that a request for notification under IC 4-21.5-3-5(b)(4) remain in effect forever. Having accepted and acted upon a notice, however, the Department must take some affirmative act to inform a person that its application is finite.[Footnote 6]
20. HEC's 1993 notification request was sufficient to entitle the Hoosier Environmental Council to notice of the subject permit pursuant to IC 4-21.5-3-5(b)(4).
21. The Hoosier Environmental Council does not contend, nor is there anything in the record to reflect, that it has a substantial and direct proprietary interest in the subject permit. IC 4-21.5-3-5(b)(5) does not apply.
22. The Hoosier Environmental Council urges that it has an interest related to the subject permit and is so situated that the disposition of the subject permit would impede the ability of the Hoosier Environmental Council to protect that interest. "The Department knew well from experience of HEC's repeatedly claimed interests related to the issuance of the CCW [coal combustion waste] disposal permits from the four requests for administrative review that had already been filed as a result of receiving notice by the Department of other CCW permits issued within the previous two years." Claimant's Brief with Respect to Threshold Notice Issues filed July 1, 1996.
23. Federal SMCRA defines a person having an interest to include "one who uses any resource of economic, recreational, aesthetic, or environmental value that may be adversely affected by mining." Federal courts have found the standing of environmental groups to challenge federal SMCRA decisions to be much broader than in traditional cases, and the Natural Resources Commission recently adopted that stance for Indiana SMCRA. Hoosier Environmental Council v. DNR and Solar Sources, Inc., 7 Caddnar 85, 86 (1995).
24. Yet a history of filing administrative reviews does not, in itself, put the Department on legal notice that a person claims an interest in a potential new license with the same or a similar subject matter. Indiana SMCRA provides broad standing to seek administrative review but does not require the Department to anticipate a claim of environmental aggrievement based upon a history of litigation. The Hoosier Environmental Council has not made a persuasive argument that it is entitled to relief under IC 4-21.5-3-5(b)(6).
C. APPLICABILITY OF IC 4-21.5-3-5(b)(4) TO THIS PROCEEDING AND INDIANA SMCRA
25. The Department and Vigo also argue that IC 4-21.5-3-5(b)(4) is inapplicable to this proceeding and to the licensing functions of Indiana SMCRA. A reading of the plain language of the AOPA and Indiana SMCRA presents nothing to support a finding that the latter supersedes the former. Indeed, as set forth specifically in Finding 11, there is a clear legislative intent that the procedural rights established by the AOPA are to be viewed as the "minimum" to which a citizen is entitled. An opportunity is provided to limit the application of the AOPA to an agency, but only where "a statute clearly and specifically provides." IC 4-21.5-2-1 and IC 4-21.5-2-3. Had the Indiana General Assembly wished to achieve that result, IC 4-21.5-3-4 provides one ready mechanism to do so.
26. Read together, IC 14-34-4-12 and IC 14-34-4-13 establish a process which is modified from the ordinary process for license effectiveness under IC 4-21.5-3-5(f). The latter subsection provides that a license become effective 15 days after issuance, unless a petition for administrative review and a petition for stay of effectiveness is filed, in which case effectiveness is automatically stayed for an additional 15 days. For Indiana SMCRA,
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effectiveness of a license is automatically deferred (in effect "stayed") until 30 days after the Department gives notice under IC 14-34-4-13(a) of the approval or denial. IC 14-34-4-13 and IC 14-34-4-14(3). There is no additional automatic stay under IC 14-34-4 where administrative review is taken, but the overall effect of this statutory article is to expand slightly upon the procedural minimums of AOPA. Instead of a 15-day stay, with the addition of another automatic 15-day stay where requested by a party, there is effectively an automatic 30-day stay for all Indiana SMCRA mining and reclamation licenses.
27. Other aspects of Indiana SMCRA further expand upon the minimum rights provided by the AOPA. An opportunity for hearing must be accorded within this 30-day period.[Footnote 7] Perhaps even more notably, 310 IAC 12-3-114 and 118 extend the agency responsibility for notification to persons participating in an informal conference and by requiring a newspaper notification.
28. Neither the statutory nor rule provisions of Indiana SMCRA obviate the need for compliance with the AOPA, in general, nor IC 4-21.5-3-5(b)(4) in specific. The statutory subdivision applies to the subject permit.
D. ADEQUACY OF A FAX RECEIVED BY THE NATURAL RESOURCES COMMISSION FROM THE HOOSIER ENVIRONMENTAL COUNCIL ON FEBRUARY 22, 1996 (AS SUPPLEMENTED BY A LETTER FILED FEBRUARY 26)
29. To qualify for administrative review of a license subject to IC 4-21.5-3-5, the petition must provide a writing that sets forth facts demonstrating the petitioner is either (1) a person to whom the order is directed; (2) aggrieved or adversely affected by the order; or (3) entitled to administrative review under any law. IC 4-21.5-3-7(a).
30 The Hoosier Environmental Council initiated this proceeding when on February 22, 1996, it filed with the Commission seeking administrative review from a letter the Hoosier Environmental Council had received from the Department. As stated in the fax, the letter spoke to the issuance on January 25, 1996 of a permit for "concurrent surface and underground activities," but the notice "failed to mention the name, number, location, and approved activities in the permit. Without this information, . . . [the Hoosier Environmental Council] has been unable to review the permit. . . ."
31. On February 26, 1996, the Hoosier Environmental Council supplemented by letter the original fax to the Commission. The letter referred to the receipt of a fax from the Department on February 21 which included the last 12 pages of a 19-page communication setting forth the conditions of approval, the last three pages of an apparent 10-page cumulative hydrologic impact assessment, and two pages which referred to impacts to prime farmland. The February 26 letter form the Hoosier Environmental Council asked that the "defective notice" be corrected and a new time table established for seeking administrative review of "this apparent mining and CCW [coal combustion waste] disposal operation."
32. Within the context of the limited information provided by the Department to the Hoosier Environmental Council, its request for administrative review is sufficient to satisfy IC 4-21.5-3-7(a).[Footnote 8]
FOOTNOTES
1. The Hoosier Environmental Council frames a portion of the argument upon IC 4-21.5-3-6. The Department of Natural Resources and Vigo Coal Company correctly point out this section has no application to the subject permit nor to licensing generally. Section 6 governs sanctions which become effective without a proceeding under the AOPA if administrative review is not requested. An example of a sanction governed by IC 4-21.5-3-6 is a "notice of violation" issued pursuant to IC 14-34-15-5.
2. An example of a license controlled by IC 4-21.5-3-4 is a sport fishing license. IC 4-21.5-3-4(a)(2). The practical consequence is that only the individual who seeks a sport fishing license has legal standing to complain about the denial or terms and conditions of the license.
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3. An example of a mutually exclusive license may be provided by commercial fishing on Lake Michigan where licenses may be renewed or transferred, but no new licenses may be issued. Presumably, the holder of one commercial fishing license would have standing to challenge, for example, whether an action on another commercial license was genuinely a renewal or rather a new license. See IC 14-22-14.
4. Since recodified at IC 14-34.
5. The letter neglected to state the name of the permittee, the site of the permit, the permit number, or that the disposal of coal combustion waste was approved within the permit boundaries. The Department supplemented its letter to the Hoosier Environmental Council on February 21, 1996 with a fax which provided some or all of this information.
6. Selecting a process for making notification under IC 4-21.5-3-5(b)(4) finite is a policy and quasi-legislative function for the Department or the Natural Resources Commission rather than within this quasi-judicial proceeding. Presumably, the process could be performed by direct correspondence from the Department to citizens informing them that a request will be terminated unless renewed. Other options are seemingly available to this end, including rule making or perhaps the development of a nonrule policy document.
7. None of the parties to this proceeding expressed a desire for a hearing within the 30-day period referenced in the statute. The briefing schedule was established, and on several occasions extended, by mutual consent.
8. Even had the information provided to the Hoosier Environmental Council been more extensive, the fax as supplemented would have been sufficient to place the Department and Vigo Coal Company on reasonable notice as to the subject of administrative review. The general rules for civil pleadings require that a claim include a short and plain statement showing that the pleader is entitled to relief and a demand for the relief to which he deems himself entitled. Trial Rule 8(A). All civil pleadings are to be construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points. Trial Rule 8(F). Where not otherwise inconsistent with the AOPA or 312 IAC 3-1, a provision of the trial rules may be applied. That application appears appropriate to the construction of requests for administrative review as well. 312 IAC 3-1-10. The result would be both incongruous and inequitable if a more stringent standard for initiating a claim were required for the informal AOPA than for a more formal civil proceeding.