The request for review filed May 1, 1992, and amended July 1, 1992, is hereby dismissed for reason that the matters complained of are not ripe for review. This determination in no way shall be interpreted to prevent, prohibit, or restrict a petition for rule making filed pursuant to IC 13-4.1-2-4, a proper request for special status determination pursuant to 310 IAC 0.6-1-15(a), or a request for review under IC 4-21.5 of the grant or denial by the Department of any pending permit application for the mine site disposition of coal combustion waste.
FINDINGS OF FACT
1. The Department of Natural Resources ("DNR") and the Natural Resources Commission ("NRC") are agencies within the meaning of IC 4-21.5.
2. IC 4-21.5 and IC 13-4.1 apply to these proceedings.
3. The Hoosier Environmental Council ("HEC") is a statewide group interested in preservation of the environment.
4. The Indiana Coal Council, Inc. ("ICC") is a trade association representing companies which produce approximately 85% of the coal mined in Indiana.
5. During the past several years, the DNR has wrestled with problems surrounding the disposition or storage of coal combustion waste ("CCW") on mine site property. See the Key West Coal Company cases (89-085R, 89-105R, 89-107R, 89-132R, 90-001R, 90-050R, 90-051R, 90-052R, and 90-059R) and also cause number 90-011R (a failed attempt to write rules pursuant to IC 4-22).
6. In early 1992, the DNR decided on a procedure to apply to permit revisions involving CCW which would not require the promulgation of specific CCW rules but would rely on rules and statutes presently in place which regulate toxic substances and require mining in such a way as to not adversely affect water and otherwise prevent environmental damage.
7. For reasons not presented or argued by any of the parties, the DNR made a decision to present its CCW plan as a resolution to the NRC for approval.
8. The NRC first discussed the resolution at its meeting on March 26, 1992.
9. After hearing public comments and after considerable discussion by NRC members, the NRC voted to defer a decision until its April 1992 meeting. see the March 26, 1992 NRC minutes.
10. At the April meeting of the NRC, the NRC voted to approve the resolution as amended. See the April 14, 1992 NRC minutes.[FOOTNOTE 1]
11. On May 1, 1992, HEC filed a request for administrative review pursuant to IC 4-21.5 asking for a review of the April 14, 1992 NRC decision regarding CCW.
12. An amended petition was filed by HEC on July 1, 1992, but none of the amendments dealt with HEC's desire for administrative review pursuant to IC 4-21.5.
13. The DNR and ICC contend that IC 4-21.5 does not permit review of NRC actions of this type and that any administrative review may take place only after the DNR has applied the resolution to an actual permit.
14. HEC contends otherwise.
15. The issue becomes in part one of whether or not the NRC, under IC 4-21.5, can grant the relief requested by HEC in its request for review.
16. IC 4-21.5-2-5(5) is determinative of questions involving what actions brought under 4-21.5 can and cannot do.
17. IC 4-21.5-2-5(5) specifically provides that IC 4-21.5 does not apply to "a resolution, directive, or other action of any agency that relates solely to the internal policy, organization, or procedure of that agency ... and is not a licensing or enforcement action.... "
18. The resolution of the NRC does not direct the DNR to grant (or deny) any particular permit application. It does relate to the internal policy of the Bureau of Reclamation.
19. In legal terms, the matter is not ripe for judicial decision. There is not case or controversy before the administrative law judge or the NRC until such time as the DNR takes action on a specific application to allow CCW to be disposed of within the permit area.
20. The DNR's brief admirably points out other remedies available to HEC besides an IC 4-21.5 review of the resolution.
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21. IC 13-4.1 governs coal mining in Indiana. Nothing in IC 13-4.1 requires the NRC to adopt specific rules governing all conceivable aspects of coal mining. If an interested party believes a specific rule should be adopted, IC 13-4.1-2-4 requires the NRC to consider a proposed rule.
22. Further, decision prevents HEC from requesting notice be given of all applications for CCW disposal and filing for review under IC 4-21.5 such an application is approved if HEC feels the approval is unsound.
23. Even further, 310 lAC 0.6-1-15 provides for "special status determinations" (sometimes called "quasi-declaratory judgments") and HEC is free to use this procedure to resolve certain questions it may have about treatment of CCW applications.
24. Nothing in the resolution gives the DNR the right to approve a CCW application which is harmful to the environment in general, ground water in particular, or violates other federally mandated environmental statutes.
25. Since the subject of this cause does not involve the grant, denial, suspension, or revocation of a surface coal mine permit, the administrative law judge is the ultimate authority within the meaning of IC 421.5. See IC 13-4.1-2-1.
FOOTNOTE
1. On April 14, 1992, the NRC also voted to amend the resolution to require the consent of the property owner before CCW is stored on the property. It should be noted that the document attached to the DNR motion does not incorporate this amendment.