Content-Type: text/html 92-353r.v6.html

CADDNAR


[CITE: Lafayette Bank & Trust Company, and Russell Feuerbach, d/b/a Landcraft v. Department of Natural Resources, 6 CADDNAR 155 (1994)]

[VOLUME 6, PAGE 155]

Cause #: 92-353R
Caption: Lafayette Bank & Trust Company, and Russell Feuerbach, d/b/a Landcraft v. Department of Natural Resources
Administrative Law Judge: Lucas
Attorneys: Traylor; Feuerbach, pro se; Matlock, Biggs
Date: March 21, 1994

ORDER

Summary judgment is granted in favor of the Department of Natural Resources and against Russell L. Feuerbach, doing business as Landcraft. Notice of Violation N20915-S-111 is also affirmed. The Civil Penalty Assessment which results from Notice of Violation N20915-S-11 is also affirmed. The entry of this order does not affect a Settlement Agreement entered previously between the Department of Natural Resources and Lafayette Bank & Trust.

FINDINGS OF FACT

1. The department of natural resources (the "Department") is an agency as the term is defined in IC 4-21.5-1-3.

2. IC 4-21.5 (sometimes referred to as the "administrative orders and procedures act" or "AOPA") is applicable to an "agency action" of the Department.

3. The Department issued notice of violation N20915-S-111 (the "NOV'') with respect to a permit to mine surface coal Permit S-111 granted to Great Lakes Coal Company under IC 13-4.1 and 310 IAC 12 ("ISMCRA"). Issuance of the NOV is an agency action which is controlled by the AOPA.

4. The Department also issued a civil penalty assessment (the "CPA") as a result of the NOV.

5. Pursuant to IC 13-4.1-2l(c), the Administrative Law Judge is the "ultimate authority" for contests of notices of violation and civil penalty assessments under ISMCRA.

6. The surety for the performance of reclamation on Permit S-111 is Lafayette Bank & Trust Company ("Lafayette Bank"). When Great Lakes Coal Company failed to perform reclamation as legally required, Lafayette Bank undertook the reclamation responsibility.

7. Russell L. Feuerbach, doing business as Landcraft ("Feuerbach"), is an independent contractor employed by Lafayette to do reclamation activities on the site of Permit S-111.

8. Lafayette took administrative review of the NOV on October 5, 1992 and separately of the CPA on November 2, 1992. These reviews were both timely, and upon the joint motion of Lafayette and the Department, they were consolidated on November 20, 1992 into a single proceeding.

9. Over the objection of the Department, Feuerbach petitioned on February 3, 1993 to intervene in the consolidated proceeding initiated by Lafayette.

10. In order to qualify for intervention into a proceeding governed by the AOPA, a petitioner must establish two elements:

(1) the intervention request is timely; and
(2) the petitioner has a right to intervene.

11. The basis for determining the timeliness of an intervention petition is set forth in unambiguous terms in IC 4-21.5-3-21. Most notably, subsection (a) states that an administrative law judge "shall grant a petition" to intervene if filed "[b]efore the beginning of the hearing on the subject of the proceeding" if a right to intervene is established. Indeed, even after a proceeding begins, intervention may be permitted under reasonable terms established by the administrative law judge. IC 4-21.5-3-21(c).

12. Feuerbach sought to intervene before the conduct of any hearing so that his petition was timely under the AOPA.[FOOTNOTE 1]

13. Establishing a right to intervene presents even more complex issues and requires reference both to the facts and to the law. The AOPA dictates in IC 4-21.5-3-21(a) that a petitioner must provide written "facts" which demonstrate either an unconditional or a conditional right to intervene. To resolve what "facts" are necessary to satisfy this procedure, reference must be made to the substantive law.

14. The substantive law here is ISMCRA. As a general principle, ISMCRA establishes a liberal framework for public participation both in the informal and adjudicative venues provided for review.

15. One purpose of ISMCRA is to "[a]ssure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the state." IC 13-4.1-1-2(9). As provided in IC 13-4.1-11-8(a), "any person having an interest that is or may be adversely affected by the issuance" of a notice of violation may apply for

[VOLUME 6, PAGE 156]

review under the AOPA.

16. Feuerbach stated upon affirmation in seeking to intervene that the "mere existence of the orders at issue was used" by Lafayette as a basis to terminate the construction contract between Feuerbach and Lafayette. "Without these orders...,[Lafayette] would have been without a basis to terminate ... . The actions at issue can cause nonpayment to ... Feuerbach for work completed."

17. Feuerbach established that he had the standing of a person who "is or may be affected by the issuance of the NOV and CPA. The NOV and CPA will or may reasonably be expected to affect his proprietary interests. Feuerbach had a right, probably an unconditional right, to intervene.[FOOTNOTE 2]

18. On December 13, 1993, the Department served upon Feuerbach the "Respondent's First Request for Admission".

19. As provided in Trial Rule 36, a matter contained in a request for admission is deemed admitted unless responded to within 30 days of service. Trial Rule 36 and the other rules of discovery are applicable to this proceeding pursuant to Trial Rule 28(F).

20. Feuerbach failed to respond to the Respondent's First Request for Admission within 30 days of service.

21. On March 1, 1994, the Department timely filed the Respondent's Motion for Summary Judgment based primarily upon the failure by Feuerbach to respond to Respondent's First Request for Admission.

22. Pursuant to an agreement and order entered during a prehearing conference held on November 4, 1993, Feuerbach was to have filed his response to the Department's motion for summary judgment, and any cross-motion for summary judgment, by March 13, 1994. No filing has been caused by Feuerbach, and neither has he sought an extension of time in which to provide a filing. In no way has he responded to the Department's motion and memorandum seeking summary judgment.

23. The Respondent's first Requests for Admission establish the following:

A. At all times and locations which are the subject of the NOV and the CPA, Feuerbach was the local contractor to do reclamation work for Permit S-111.
B. The NOV was properly issued.
C. The CPA was properly issued.

24. There is no genuine issue in dispute. The Department is entitled to summary judgment against Feuerbach under IC 4-21.5-3-23.

25. The NOV should be affirmed.

26. The CPA should be affirmed.

FOOTNOTES

1. The AOPA does not speak to the timeliness of intervention requests where a proceeding is resolved by an agreed order or a settlement agreement. That potentially troubling issue is left for another day. Feuerbach petitioned for intervention before either a hearing or the entry of a settlement agreement between the original parties. Under the facts of this case, the petition was timely.

2. The Administrative Law Judge entered on September 16, 1993, an "Order Granting Petition to Intervene by Russell L. Feuerbach d/b/a Landcraft". The entry was made as an interlocutory order. The parties were then informed that the order would be incorporated into the final determination of this proceeding, at which time the proceeding would be ripe for judicial review. Findings 9 through 17 are here intended to address the issue of intervention as a final disposition.