The approvals of surface coal mining permits S-00004-8 and S-00004-9 by the Director were in accordance with applicable Indiana law. The approvals are thus affirmed.
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, IC 13-4.1, IC 14-3, and 310 IAC 12 apply to these proceedings.
3. The natural resources commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to administrative review of DNR actions involving the grant or denial of a permit.
4. The DNR is responsible for the issuance of surface coal mine permits in Indiana under IC 13-4.1.
5. Amax Coal Company ("Amax") holds several surface coal mine permits in Indiana and on September 6, 1990, the director of the DNR ("Director") approved surface coal mine permits S-00004-8 and S-00004-9 which allow Amax to mine coal in an extended area of the Ayrshire Mine in Warrick County, Indiana.
6. On October 5, 1990, a number of citizens in the vicinity of the mine ("Alvey") filed a request for administrative review of these acts of the Director.
7. Alvey's sole contention is that 310 IAC 12 and IC 13-4.1 ("ISMCRA") place the responsibility of approving permits with the NRC and thus the Director was without authority to approve the permits in question.
8. At a preheating conference on this matter, the parties agreed to treat Alvey's request for review as a motion for summary judgment and proceed accordingly.
9. Both Amax and DNR filed motions for summary judgment and all parties filed appropriate responses to the various motions.
10. Amax and Alvey filed supplemental briefs and notices.
11. Amax and DNR contend that P.L. 28-1990, which added new sections IC 14-3-3-24 and IC 14-3-3-25 to the Indiana Code, requires the Director to approve and issue permits of all types and restricts the NRC's role in permit approval cases to acting as the ultimate authority under IC 4-21.5 if a request for administrative review is filed.
12. The critical sections of P.L. 28 took effect on July 1, 1990.
13. The relevant sections of P.L. 28 (IC 14-3-3-24 and IC 14-3-3-25) read as follows:
Sec. 24. (a) As used in this section, "license" means a license, a franchise, a permit, a certification, an approval, a registration, a charter, or a similar form of authorization that may be issued to a person by the department of natural resources, the natural resources commission, or the director of the department of natural resources under Indiana law....
(b) Notwithstanding any other law, after June 30, 1990, all licenses that on June 30, were of a type issued by the natural resources commission, the department of natural resources, or the director of the department of natural resources shall be issued by the director of the department of natural resources.
(c) Licenses may be issued by designees of the director. A designee of the director must be a full-time employee of the department. Sec. 25. Notwithstanding any other law, after June 30, 1990, all hearings under IC 4-21.5 or IC 4-22-2 that on June 30, 1990, were of a type required to be heard by the department of natural resources or the director of the department of natural resources shall be heard by the natural resources commission.
14. The permit in question was purportedly approved on September 26, 1990 by the Director, some two months after the effective date of IC 14-3-3-24.
15. The approval document, however, does not mention that the approval is pursuant to IC 14-3-3-24 but continues to reference IC 13-4.1 and 310 IAC 12 only.
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16. In September 1990, IC 13-4.1-2-1 specifically provided that the NRC had the duty to approve or disapprove applications for permits to mine coal under ISMCRA.[FOOTNOTE i]
17. The letter of approval specifically cites 310 IAC 12-3-114 which provides in part:
Sec. 114. (a) The commission shall approve, require modification of, or deny all applications for permits ....
18. The various documents filed by the parties raise the following issues:
(a) The claimant contends the Director may have a general power to issue permits under IC 14-3-3-24, but only the NRC can approve applications for permits and thus the permits are void.
(b) P.L. 28-1990 has not been approved by the federal office of surface mining ("OSM") as part of OSM's "oversight" responsibility under federal SMCRA and therefore is not in effect.
19. IC 4-21.5-3-23 allows an administrative law judge to grant summary judgment whenever there is no genuine issues as to any material fact and a party is entitled to judgment as a matter of law.
20. The issues listed in finding 18 are purely legal issues and involve no dispute of facts. Therefore, all are resolvable by summary judgment.
21. P.L. 28 did amend some sections of ISMCRA, most notably IC 13-4.1-4-5. These amendments took permitting duties away from the NRC and gave them to the Director.
22. Other ISMCRA provisions discussing the NRC's responsibilities in issuing permits (most notably IC 13-4.1-3,4, and 7) were not amended by P.L. 28.[FOOTNOTE ii]
23. To determine legislative intent, the entire statute, the reasons for changes, and policies involved in the changes must be considered.
24. The intent of the legislature in amending IC 13 and IC 14 in 1990 was to make the Director responsible for initial determinations within the provisions of IC 4-21.5 and to make the NRC responsible for final agency decisions under IC 4-21.5. This was clearly done to replace a patchwork system of authority that existed prior to passage that made the Director the ultimate authority over decisions of certain divisions of the DNR and the NRC the initial decision maker over other divisions. The purpose of IC 14-3-3-24 and IC 14-3-325 was to establish a uniform method of dealing with permits of all types by the DNR.
25. Of all the many permits granted by DNR, only ISMCRA makes a distinction between "approval" and "issuance".
26. The conclusion is reached that P.L. 28-1990 was not intended to distinguish between the two. The intent of P.L. 28 was to place all initial permitting decisions in the Director.
27. Some further basis for this conclusion may be found in IC 14-3-3-24(a) which includes both permits and approvals in the definition of license and thus IC 143-3-24(b) makes the Director responsible for issuing approvals "notwithstanding any other law".
28. In short, the approval of the permit application in question in September of 1990 by the Director was in accordance with applicable state law.
29. Alvey also contends that P.L. 28-1990 cannot be relied upon by Amax or the Department since the changes made to ISMCRA were not approved by OSM. Amax contends that approval by OSM is not a prerequisite to enforcement. The Department did not brief this issue.
30. 30 CFR 732.17(g) is the federal regulation which leads to this controversy. It provides that any changes to the state program cannot take effect until approved by OSM.
31. An examination of the statutory portion of federal SMCRA (30 U.S.C. 1201, et seq.) does not reveal any intent by Congress to restrict state legislatures from amending state statutes which may impact state SMCRA programs by postponing the effective date of any amendment until OSM approves the changes.
32. 30 U.S.C. 1254 gives the U.S. Department of Interior the right to enforce any part of a program that is not being properly enforced by a state.
33. Federal SMCRA statutes also allow the Interior Department to require a timetable for program changes and allow the Interior Department to take over all or part of a state program and to implement a federal program.
34. 30 U.S.C. 1253 provides that state law must be consistent with federal SMCRA and the Department of the Interior has a ..,responsibility to set forth any state statute or regulation which is inconsistent with federal SMCRA.
35. In short, there is no statutory authority for requiring pre-approval by OSM or the Interior Department of legislation passed by the Indiana General Assembly. The Indiana legislature makes Indiana law; and it becomes effective on the date specified by Indiana law. To subject acts of the Indiana General Assembly to a delay in effective date of one or more years waiting for OSM approval makes a mockery of the Congressional concept of primacy. OSM has many ways under federal SMCRA to require state programs to be consistent with federal law.[FOOTNOTE iii]
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FOOTNOTES
i. This code section was amended substantially by P.L. 125-1991, and the statute now contains no language which conflicts with IC 14-3-3-24.
ii. These statutes were amended by P.L. 125-1991 to replace the "commission" by "director".
iii. For an example of how the federal government has compelled Indiana to change statutes not consistent with federal programs, see P.L. 229-1979 and P.L. 137-1982. P.L. 229 took effect July 1, 1979 and amended IC 22-4-14 by making temporary employees of the Indiana General Assembly ineligible for unemployment benefits from the state while the General Assembly was not in session. This greatly offended the U.S. Department of Labor who has a form of "oversight" responsibility with respect to unemployment compensation. Ultimately, the federal authorities decided to withhold funding to Indiana. This led to P.L. 137 which was passed by both houses of the General Assembly with an emergency clause and signed by the Governor on January 20, 1982 repealing the offending provision and making it retroactive to October of 1980. Clearly, Uncle Sam has an adequate number of hammers in its supply cabinet to compel changes to state laws if changes are needed.