The petition for review filed by Solar Sources is denied for the reason that it is a prohibited collateral attack on a final, nonreviewable order issued by the Department of Natural Resources.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 13-4.1, IC 4-21.5, 310 IAC 12, and 310 IAC 0.6 apply to these proceedings.
3. The DNR is the state agency responsible for the regulation of coal mining within the State of Indiana.
4. At all times relevant to these proceedings, Solar Sources, Inc. ("Solar") actively mined coal in Indiana under the authority of eight (8) permits issued by the DNR.
5. On August 23, 1994 Reclamation Division Director Mike Sponsler issued a letter ("Sponsler letter') to Solar requiring Solar to make a nonsignificant revision to portion of the blasting plan of all eight permits. See Exhibit A attached to these findings and order.
6. On August 31, 1994 the president of Solar mailed a letter to the DNR acknowledging receipt of the Sponsler letter and explaining why Solar thought the permits as they existed were fine and the DNR's position ill-advised.
7. Sponsler wrote a response ("Sponsler-2") to Solar's letter on January 11, 1995 in which he further explained the DNR's reasons for requiring the nonsignificant revisions in detail.
8. Solar's response to Sponsler-2 was to request a special status determination pursuant to 310 IAC 0.6-1-15 on or about February 7, 1995. See Exhibit B attached to these findings and order.
9. On April 3, 1995 acting DNR director Jack Costello, acting during Director Ralston's absence, issued a special status determination adverse to Solar's position. See Exhibit C attached to these findings and order.
10. On April 12, 1995, Solar then filed a petition for review of the special status determination and order. See Exhibit D attached to these findings and order.
11. The DNR contends that Solar's failure to file a petition for administrative review pursuant to IC 4-21.5 of the Sponsler letter (and presumably Sponsler-2) within 30 days makes the Sponsler letter a nonreviewable order, and cannot be altered by a request for special status determination.
12. Solar contends that the Sponsler letter was not an order within the meaning of IC 4-21.5.
13. First, Solar contends that the Sponsler letter cannot be a valid order, in that, only the Director of the DNR can require revisions or modifications of an issued permit. See IC 13-4.1-5-6.
14. Such an argument ignores IC 13-4.1-2-2(c) which states that "[t]he director may delegate all or any powers and duties assigned to the director in this article to other employees of the department of natural resources.
15. The Natural Resources Commission has adopted rules regarding delegations for the DNR. Mining permit revisions are not included. See 310 IAC 0.7.
16. The DNR director has also published a list of delegations that apply to DNR and mining, and the administrative law judge takes official notice of these formal delegations as attached in Exhibits E and F.
17. The second page of Exhibit F gives the various division directors the authority to act on generic license determinations not referred to on page one.
18. Since Sponsler is the division director of the Division of Reclamation, which is the division of the DNR directly responsible for dealing with coal mine permits, Sponsler is a proper party to issue a permit revision order.
19. Next, Solar contends that the Sponsler letter is not an order within the meaning of IC 4-21.5.
20. IC 4-21.5-1-9 defines "order" as "an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons. The term includes a license."
21. The Sponsler letter clearly states that Solar must submit a nonsignificant revision for each of the eight permits by a date certain.
22. Sponsler-2 reiterates that the revisions are
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required, and resets a date certain.
23. The agency action taken in the Sponsler letter and Sponsler-2 certainly determines a legal right or duty or other legal interest of Solar.
24. The two letters meet the requirements of an "order" within the meaning of IC 4-21.5.
25. IC 4-21.5-3-7 provides that to qualify for review, a petition must be filed with the ultimate authority within 15 days after notice is received unless a longer time is provided by statute.
26. Several sections of IC 13.1-4 provide for 30 days to file for review. IC 4-21.5-3-2 provides for an additional three days to respond if service is by mail.
27. Solar had a maximum of 33 days to petition for review of either the Sponsler letter or Sponsler-2. Solar did not petition for review of either.
28. Accordingly, Solar does not qualify for administrative review of either order and the orders requiring the revisions of the blasting plans in the eight permits are final, non-reviewable orders.
29. The action eventually taken by Solar was to file for a special status determination pursuant to I310 IAC 0.6-1-15.
30. The request for a special status determination states that Solar seeks an interpretation of 310 IAC 12-5-36(h) which Solar contends has been misinterpreted in such a way as to negatively impact all eight permits. See Exhibit C attached to these findings and order.
31. Likewise, the petition for review asks that a finding be made ". . . that the Director cannot order Solar to amend its permits. . . ".
32. The nuts and bolts of the request for a special status determination and the petition for review is the adverse affect on Solar's eight permits. Solar does not want to do the revision to its blasting plans.
33. 310 IAC 0.6-1-5(e) specifically states that "this section does not excuse a person from a requirement to exhaust another administrative remedy provided by statute or rule. A person may not under this section void or modify a final order entered by the department in another proceeding."
34. The filing of a request for a special status determination to save Solar from revising the permits is not appropriate. It cannot serve as a replacement for a petition for review of the Sponsler letter and Sponsler-2.
35. The petition for review of the special status determination should be denied as prohibited by 310 IAC 0.6-1-15.
36. Also raised as an issue is that of "ultimate authority".
37. The DNR contends the Natural Resources Commission is the ultimate authority.
38. Solar contends the administrative law judge is the ultimate authority.
39. IC 13-4.1(c) makes the administrative law judge the ultimate authority for any proceeding involving IC 13-4.1 ". . . except for proceedings concerning approval or disapproval of a permit application or permit renewal under IC 13-4.1-4-5 and proceedings for a suspension or revocation of a permit under IC 13-4.1-11-6."
40. Under any of the theories argued by the parties, this case involves the construction of IC 13-4.1 and related rules and does not involve the approval or disapproval of a permit application or renewal or permit revocation. The administrative law judge is the ultimate authority.
41. The DNR contends that since a request for a special status determination involves 310 IAC 0.6, the commission should be the ultimate authority, but such an argument ignores the fact that the substantive arguments all involve IC 13-4.1.
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[NOTE: Temporary Relief for the underlying Special Status Determination in Cause Number 95-102R (Solar Sources, Inc. v. The Indiana Department of Natural Resources, 7 Caddnar 83 (1996)).]