CADDNAR
[CITE: Hendrickson v. United Minerals Company, LLC & DNR, 15 CADDNAR 95 (2020)]
Cause #: 18-115R
Caption: Hendrickson v. United Minerals Company, LLC & DNR
Administrative Law Judge: D. Wilson
Attorneys: Miller for Petitioner; Sullivan for Respondent (United Minerals); Boyko for Respondent (DNR)
Date: June 12, 2020
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WITH FINAL ORDER ON MOTION FOR SUMMARY JUDGMENT
Procedural Background and Summary of Proceeding
1. On October 19, 2018, Mark Hendrickson (“Hendrickson”), by Counsel Mark Miller, filed an insufficient request for administrative review. Hendrickson, by counsel, filed an amended Petition for Hearing (“Petition”) on November 5, 2018.
2. The Petition states, in part, that the Petitioner owns 109 acres on Ditney Hill in Warrick County that is “located in the mine operation area of the High Point Mine.” The Petition also states that United Minerals Company LLC (“United Minerals”) submitted requests for revisions to Permit #S-374 issued by the Department of Natural Resources (“Department”), Division of Reclamation (“DOR”)[1]. The Petition avers that “The Department improperly designated and approved revisions #1, #3, #4, and #5 (the ‘Revisions’) as ‘nonsignificant’ under 312 IAC 25-4-127(e), and, therefore, the Revisions were approved without public notice or notice to the Petitioner…..” See the Petition.
3. The Petition states “If the current revisions are granted, Mark Hendrickson will suffer property damage in the form of loss of wildlife, a decrease in property value, and a loss of his recreational use of the land.” Petition, Exhibit B, page 2.
4. The Petition initiated proceedings governed by IC 4-21.5-3, sometimes referred to as the “Administrative Orders and Procedures Act” (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.
5. The Natural Resources Commission (“Commission”) assigned case number 18-115R to the proceeding and appointed Administrative Law Judge (“ALJ”) Dawn Wilson, under IC 14-10-2-2, to conduct this proceeding.
6. On November 21, 2018, Chad Sullivan filed his appearance on behalf of United Minerals.
7. On November 27, 2018, Ihor Boyko, filed an “Appearance of Counsel for Respondent DNR and Filing of Affirmative Defenses” on behalf of the Department.
8. On January 9, 2019, the Department, by counsel, filed its “Motion to Dismiss” the proceeding, stating “Petitioner has failed to articulate facts demonstrating he is entitled to administrative review, has been timely in requesting administrative review, that the NRC has subject matter jurisdiction over certain issues he raises, jurisdiction over the case, or that he is otherwise entitled to administrative review….” See the Department’s Motion to Dismiss.
9. Also on January 9, 2019, United Minerals, by counsel, filed “United Mineral’s Motion to Dismiss” the proceeding stating, “Because the Petitioner has failed to comply with the provisions of AOPA, this Commission lacks subject matter jurisdiction to hear the Petition….” United Mineral’s Motion to Dismiss.
10. Following response by the Petitioner and replies by the Department and United Minerals, the ALJ, issued an “Order on Motions to Dismiss” on March 11, 2019. The ALJ’s order concluded that the Commission has jurisdiction over a proceeding regarding a determination by the Department that a permit revision is “nonsignificant” or “significant”. She also determined that the evidence submitted failed to support a conclusion that the Petition was not timely filed. In her order, the ALJ did not conclude any issue regarding the Petitioner’s standing in the proceeding.
11. After multiple status conferences and the expiration of prehearing deadlines, an administrative hearing was set to be heard on December 19, 2019. Upon a request by United Minerals, the ALJ vacated the hearing date to allow time for dispositive motions to be filed.
a. On December 30, 2019, the Department filed “Respondent DNR’s Motion for Summary Judgment (“DNR-MSJ”). Also on December 30, 2019, United Minerals filed “United Minerals Company, LLC’s Motion for Summary Judgment” (“UM-MSJ”).
b. Petitioner filed a response and subsequently, on February 7, 2019, filed “Hendrickson Amended Response to Motions for Summary Judgment” (“Response”).
c. On March 2, 2020, the Department filed “Respondent DNR’s Reply to Hendrickson Amended Response to Motion for Summary Judgment” (“DNR-Reply”). On March 10, 2020, United Minerals filed “United Minerals Company, LLC’s Reply in Support of Motion for Summary Judgment” (“UM-Reply”).
12. On March 2, 2020, the Department filed “Respondent DNR’s Motion to Strike Exhibit K, Affidavit of Mark Hendrickson, Including all References to Exhibit K.” (“Motion to Strike”). United Minerals joined in the Department’s reply and its Motion to Strike. On March 16, 2020, Petitioner filed a “Response to DNR’s Motion to Strike” (“Motion to Strike-Response”). The ALJ denied the Department’s Motion to Strike.
13. The ALJ is the ultimate authority for an administrative review of an order under IC 14-34, except for a proceeding concerning the approval or disapproval of a permit application or permit renewal under IC 14-34-4-13; or suspension or revocation of a permit under IC 14-34-15-7. This proceeding does not address any issue for which the ALJ is not the ultimate authority for the Commission. 312 IAC 3-1-2.
14. The Commission’s ALJ has jurisdiction over the subject matter and over the persons of the parties. The proceeding is ripe for a disposition on summary judgment for the Department’s determination that certain permit revisions were nonsignificant.
Standard of Review on Summary Judgment
15. Pursuant to IC 4-21.5-3-23, the Commission’s ALJ considers summary judgment in the manner prescribed by Trial Rule 56 of the Indiana Rules of Trial Procedure.
16. A party “against whom a claim…is asserted… may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” Trial Rule 56(B).
17. A party moving for summary judgment shall “designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” Trial Rule 56(C).
18. “The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law.” Bragg v. Kittle's Home Furnishings, Inc., 52 N.E.3d 908, 919 (Ind. App. 2016).
19. Trial Rule 56(C) provides that “the judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
20. “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties' differing accounts of the truth ..., or if the undisputed facts support conflicting reasonable inferences." Angel v. Powelson, 977 N.E. 2d 434 (Ind. App. 2012) citing Williams v. Tharp, 914 N.E. 2d 756, 761 (Ind. 2009).
21. “The movant must demonstrate that ‘the designated evidence raises no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ Upon this showing, the nonmoving party then has the burden to demonstrate that there is a genuine issue of material fact.” AM General LLC v. Armour, 46 N.E.3d 436, 439 (Ind. 2015) citing Indiana Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (internal citations omitted).
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22. “A court must construe all designated evidence and reasonable inferences in favor of the non-moving party, and resolve all doubts against the moving party.” Bragg, supra.
23. However, “…summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.” Trial Rule 56(C).
24. The Commission’s ALJ is obligated to designate the issues or claims presented on summary judgment upon which it concludes there to be no genuine issue as to any material facts. Trial Rule 56(C).
Issues on Summary Judgment
25. The Department-MSJ presents one issue and asserts that Petitioner Hendrickson lacks standing because the Petitioner has failed to show he is aggrieved or adversely affected.
26. The UM-MSJ presents multiple issues on summary judgment, as follows:
a. Does Hendrickson lack standing to seek administrative review of the permit revision as insignificant?
b. Has Hendrickson waived any right to review by failing to timely file an objection?
c. Is Hendrickson’s claim moot?
d. Did the Department properly classify the revisions as insignificant?
Findings of Fact Established on Summary Judgment[2]
Permit #S-374
27. Facts provided through evidence submitted on summary judgment are not significantly disputed.
28. On March 18, 2015, the Department approved a permit application submitted by United Minerals, Permit #S-374 (the “Permit”) for the area commonly known as High Point Mine. The mine permit area covers approximately 3,085 acres in Warrick County, Indiana. UM-MSJ, Exhibit 8.
29. Hendrickson owns 109 acres within the mine permit area on or near an area identified as Ditney Hill. Petition.
30. United Minerals and Hendrickson have not entered into any lease that would allow United Minerals to conduct surface mining activities on Hendrickson’s land.
31. The Permit application was filed in the Warrick County Boonville Library. UM-MSJ, Exhibit 3. Petitioner was specifically informed of the Permit application and that the Permit application was available for public inspection at a library as well as the DOR office. UM-MSJ, Exhibit 6.
32. The approved Permit identified a pre-mining land use of wildlife for 1600.7 acres and forest for 936.6 acres. The Permit’s post-mining plan replaced wildlife and forest land with identical acreages totaling 2,537.3 acres.
33. The Department’s Division of Fish and Wildlife has a biologist, identified as a “Reclamation Biologist”, embedded within DOR. At the time when the Permit was approved, Ramona Briggeman (“Briggeman”) was the Reclamation Biologist. UM-MSJ, Exhibit 11; Response, Exhibit A.
34. Prior to the Permit’s approval, Briggeman conducted a review of the Permit application and recommended that specific success standards for revegetation be incorporated into the Permit. The specific success standards criteria she recommended were developed to advance the plan’s wildlife habitat post-mine land use. Briggeman’s specific success standards criteria were also recommended to assist with any future determination by DOR regarding the permit holder’s compliance for the purpose of bond release. Response, Exhibit J.
35. The approved Permit incorporated the specific success standards for post-mine land that were developed and recommended by Briggeman.
36. The Permit, as originally approved, also incorporated an Indiana Bat Protection and Enhancement Plan (PEP). The PEP included an avoidance area of 205 acres that would not be subject to surface mining. All or a portion of the PEP area was located on Ditney Hill.
37. Correspondence dated November 4, 2014, from the U.S. Fish and Wildlife Service (USFWS) informed DOR that the PEP for High Point Mine was reviewed as developed “pursuant to the revised Range-wide Indiana Bat Protection and Enhancement Plan Guidelines for Surface Coal Mining Operations (February 2013) and the Northern Long-Eared Bat Interim Conference and Planning Guidance (January 2014). The revised PEP addresses all of the items required in the PEP Guidelines and the additional information requested by this office. …Should new information arise pertaining to project plans…, it will be necessary for the Federal agency to reinitiate consultation.” The correspondence identified Marissa Reed as an appropriate USFWS contact person. Response, Exhibit D.
38. Written internal guidelines are reflected within DOR’s “Title V Procedure Manual, Part 1, Permit Application Review and Processing, September 2015” (“Procedural Manual”). Response, Exhibit E.
39. Regarding permit revisions, the Procedural Manual provides advice to DOR staff to “First, determine whether a submittal is not a significant revision pursuant to 312 IAC 25-4-127. Nonsignificant Revisions can be minor changes to operations or reclamation plans which can include incidental boundary revision (IBR), post-mining land use change (PMLUC) and grading deferrals. ….” Response, Exhibit E, Part 1 Item B Page 23.
40. The Procedural Manual provides advice to DOR staff that significant permit revisions “shall be obtained according to regulation 312 IAC 25-4-126….” Response, Exhibit E, Part 1, Item A, Page 6.
Permit Revision #1
41. DOR approved multiple permit revisions as proposed by the permit holder, United Minerals.
42. Four revisions were classified by DOR as nonsignificant. DOR identified the revisions as NSIG #1[3], NSIG #3, NSIG #4 and NSIG #5. These four revisions were approved by DOR.
43. Prior to DOR’s approval of the revisions, Hendrickson was not individually notified of the revisions, including a right to file objections or request an informal conference with the Department. Individual notification prior to approval is required for a significant revision but is not required for a nonsignificant revision.
44. After the Permit’s initial approval on March 18, 2015, United Minerals’ first request for revision was received by DOR on April 14, 2015. On behalf of DOR, Kevin Geier (“Geier”) logged in the request. UM-MSJ, Exhibit 13; Response, Exhibit F.
45. Geier reviewed the request and determined that the revision proposed removal of the specific success standards criteria that were included in the initial Permit. Geier identified the request as a nonsignificant revision, “NSIG #1”. Id.
46. Geier referred NSIG #1 to the Department’s Division of Fish and Wildlife for review. Reclamation Biologist Briggeman conducted her review and recommended denial of United Mineral’s request. Response, Exhibits A and F.
47. Geier determined that the specific success standards approved in the initial permit were not required in that reclamation regulations required success criteria only for purposes of erosion control. Response, Exhibit F.
48. Correspondence to DOR from United Minerals dated June 8, 2015, states “The proposed plan provides rates and species to be planted for ground cover, trees and shrubs, and states that wildlife areas will be deemed successful when the appropriate species is present in sufficient quantities to control erosion.” UM-MSJ, Exhibit 13.
49. Briggeman stated, in a memorandum to Clay Dayson dated June 25, 2015, that she signed off on the Permit only after the specific plans and success criteria were incorporated into the Permit. She stated the Permit’s Findings Document stated, “The Department finds that the operation will not affect the continued existence of endangered or threatened species or result in destruction or adverse modification of their critical habitats….” She concluded in her memo; “Without a specific plan and the ability to determine success, this finding would be in question.” Id.
50. On July 29, 2015, Geier, for Clay Dayson, Reclamation Specialist, on behalf of DOR, approved NSIG #1, as revised on June 11, 2015 and July 15, 2015, to revise post-mining land use standards for wildlife. Id.
Permit Revision #3.
51. On September 28, 2017, DOR received a request from United Minerals to revise the approved Permit to modify the Fish and Wildlife plan and to allow for an expanded mining area. UM-MSJ, Exhibit 15.
52. Colleen Baughman (“Baughman”), a Reclamation Inspector, logged in the request for the revision submitted by United Minerals. After consultation with her supervisor, Pete Sartoris, and DOR’s hydrogeologist, Todd Huff, she identified the request as NSIG #3. Response, Exhibit H.
53. NSIG #3 altered the mining area to remove acreage from an area of avoidance, identified in the original Permit as a “PEP” area, and proposed surface mining of the acres removed from the PEP.
54. Reclamation Biologist, Kelsey Pearman (“Pearman”), reviewed NSIG #3 on behalf of the Department’s Division of Fish and Wildlife. Pearman confirmed that NSIG #3 would reduce the acreage of the PEP, leaving 34 acres of summer habitat on Ditney Hill undisturbed by surface mining. UM-MSJ, Exhibit 17.
55. As a part of her review, Pearman contacted Marissa Reed (“Reed”), a USFWS Wildlife Biologist, concerning the proposed revisions reflected in NSIG #3. Based on her review of the proposed PEP revision, Reed responded by email on October 27, 2017. Reed stated in her email response, “The only comment I have is in the Indiana bat section on p. 5 of 12. Tree removal outside the seasonal restriction time frame should be approved by DOR and USFWS. The PEP states as such so I don’t know that it’s a big issue, but wanted to bring it to your attention. Otherwise, the revisions are fine.” UM-MSJ, Exhibit 18.
56. On October 31, 2017, Reed’s email comment to Pearman regarding tree removal was reflected in correspondence from DOR to United Minerals. Thereafter, United Minerals amended the proposed revision regarding short term habitat replacement to state, “This could only occur with approval with permission of the IDNR Div. of Reclamation, IDNR Div. of Fish and Wildlife and the U.S. Fish and Wildlife Service.” Id.
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57. Todd Huff (“Huff”) is a geologist and hydrologist, a “hydrogeologist”. Huff has been employed with DOR since 2001. Huff is a permit reviewer for subjects that have some interaction with water, such as operations, geology and hydrology. Response, Exhibit I, page 8.
58. Huff prepares Cumulative Hydrologic Impact Assessments (CHIA). A CHIA is a “written assessment of the hydrologic consequences of mining in the cumulative impact area for all anticipated mining on the hydrology, that’s surface and ground water.” When preparing a CHIA, Huff has a goal of finding if the operation’s design prevents material damage to the hydrologic balance, including areas outside the permit area, and requires consideration of multiple operations. Response, Exhibit I, p 10, 16 and 38.
59. Huff prepared the CHIA for High Point Mine. Response, Exhibit I, p 15 and 17.
60. In his reviews of permit revisions generally Huff has determined that an increase in the area to be mined within a permitted mining area would not necessarily result in a hydrologic comment. Response, Exhibit I, p 25.
61. Huff did not determine any need for a revision to the CHIA based on his review of NSIG #3. Response, Exhibit I, p 28 and 31.
62. NSIG #3 proposed Permit modified to increase the area of surface mining for the permit from 781.7 acres to 915.5 acres, an increase of 133.8 acres. Response, Exhibit I, p 27 and 28.
63. On December 12, 2017, DOR approved NSIG #3, as revised on November 27, 2017, conditional upon approval of NSIG #4. The approval acknowledged that the revision contemplated impact upon the PEP area, a location upon which USFWS recommended minimizing disturbance. UM-MSJ, Exhibit 15.
Permit Revision #4
64. On the same date that DOR received NSIG #3, DOR received an additional request to revise Permit #S-374. The proposed revision requested approval to make changes to the Operations Plan and Drainage Control Plan. UM-MSJ, Exhibit 19.
65. The proposed revision to the drainage control plan redesigned multiple basins, eliminated multiple basins and diversions that were identified in the original plan and proposed new basins and diversions. In addition, the proposed revision increased the previously designated spoil disposal area.
66. Colleen Baughman (“Baughman”), a DOR Reclamation Inspector, logged in the Permit revision request submitted by United Minerals. After consultation with her supervisor, Pete Sartoris, and DOR’s hydrogeologist Todd Huff, she identified the request as NSIG #4. Response, Exhibit H.
67. Reclamation Biologist Pearman reviewed NSIG #4 on behalf of the Department’s Division of Fish and Wildlife. The extent of Pearman’s review of the Permit and the revisions proposed in NSIG #4 is not revealed by the evidence presented.
68. Huff conducted a hydrology review and found NSIG #3 and NSIG #4 to be “meaty”. Response, Exhibit I, p 15 and 30.
69. DOR staff comments regarding a proposed revision’s potential impact on public water supplies or aquifers, compared to the proposal contemplated during the original review of the Permit, would be submitted to the inspector for inclusion in a modification letter. A modification letter would also include comments following consideration of whether a proposed revision would involve a change in handling toxic or acid forming materials or refuse where changes have a potential for causing additional impacts from those contemplated during the original review of the Permit. Response, Exhibit I, p. 35, 37, 39-40, 42.
70. DOR’s written comments reveal the need for more information to avoid potential noncompliance by the Permit holder. DOR’s written comments were incorporated into correspondence from DOR to United Minerals dated October 31, 2017, and thereafter, on December 6, 2017. In both letters, United Minerals was advised that NSIG #4 did not comply with 312 IAC 25 and could not be approved as proposed. Response, Exhibit I, p 53 and UM-MSJ, Exhibit 19.
71. In the correspondence dated October 31, 2017, DOR notified United Minerals that revisions were insufficient regarding necessary changes to multiple maps and to Part IV, V and VI of the Permit. Insufficiencies included the need for additional information concerning necessary drainage diversion, and updates to mining depth, swell factor, spoil replacement depth, post-mining elevation height and a narrative regarding the necessity of retaining the prior non-disturbance avoidance area. UM-MSJ, Exhibit 19.
72. The correspondence, dated October 31, 2017, also stated that the proposed changes in the elevation for mining required new information. The proposed operation changes required new water quality data in multiple locations, as well as the replacement of a well. In addition, the proposal required revisions to the pre/post mining topographic cross-sections and the reclamation plan map. Multiple other deficiencies were also noted throughout the correspondence. Id.
73. In the correspondence dated December 6, 2017, DOR notified United Minerals that revisions to Part IV of the Permit were insufficient regarding the use of overland flow diversion ditches and the disposal of excess spoil. In addition, the letter expressed the need for additional drill logs in the upper geology. Id.
74. Amendments to NSIG #4 were submitted by United Minerals on November 20, 2017, and January 12, 2018. Id.
75. On January 18, 2018, DOR conditionally approved NSIG #4. The conditions of NSIG #4 required the submission and approval of information identified in the deficiency letter from DOR’s hydrogeologist, dated October 31, 2017, prior to surface disturbance. In addition, the approval was conditional upon the drilling of an additional exploration drill hole, at a specific elevation, prior to removal of overburden, with the drilling log submitted to DOR for a determination as to further required analysis. Id.
Permit Revision #5.
76. On June 15, 2018, DOR received a request to revise the approved Permit from United Minerals to clarify water monitoring well sampling and installation. The request was identified by DOR as NSIG #5. The evidence submitted does not clearly identify the DOR staff member who logged in the request and identified it as nonsignificant. UM-MSJ, Exhibit 22.
77. NSIG #5 reflects the satisfaction of the ground water monitoring requirements set forth in the conditional approval of NSIG #4.
78. NSIG #5 was amended on August 6, 2018, and approved by DOR on August 10, 2018, as amended. Id.
Permit #S-374 Renewal
79. A Permit Renewal Application for Permit #S-374 was filed by United Minerals on November 12, 2019. UM-MSJ, Exhibit 25.
80. A copy of the Permit Renewal Application was filed in the Warrick County Library on November 19, 2019. UM-MSJ, Exhibit 24.
81. A copy of the Permit Renewal Application was mailed to Hendrickson on November 20, 2019. UM-MSJ, Exhibit 26.
82. Hendrickson filed an objection to the Permit Renewal Application. UM-Reply, Exhibit C.
83. On January 24, 2020, DOR issued correspondence to United Minerals that notified the Permit holder that an informal conference was scheduled for February 25, 2020. UM-Reply, Exhibit D.
Conclusions of Law Applicable to Facts Established
Aggrieved or Adversely Affected
84. The Department asserts that Petitioner Hendrickson lacks standing to pursue the issues presented within his Petition because the Petition fails to show he is aggrieved or adversely affected. DNR-MSJ.
85. In order to qualify for administrative review, a written petition must states facts that demonstrate the petitioner is a person to whom an order is specifically directed, the petitioner is aggrieved or adversely affected by the order or the petitioner is entitled to review under any law. IC 4-21.5-3-7(a)(1)(B).
86. In this proceeding, the Petitioner does not assert that he is a person to whom an order is specifically directed. Therefore, that qualifier will not be addressed further.
87. The Indiana Supreme Court considered the language of I.C. 4-21.5-3-7(a)(1)(B) in Huffman v. Indiana Office of Environmental Adjudication, et. al., 811 N.E.2d 806 (Ind. 2004). In that proceeding it was determined that to be aggrieved or adversely affected by an order, a person “must have suffered or be likely to suffer, in the immediate future, harm to a legal interest, be it pecuniary, property or personal interest” as a result of the order.
88. Standing for administrative review of coal mining and reclamation operations is broader than the standing available pursuant to IC 4-21.5-3-7(a)(1)(B). For the approval of any permit revision, standing is possessed by an “applicant and any person with an interest that is or may be adversely affected….” 312 IAC 25-4-122(a), emphasis not in original.
89. Standing has been liberally construed by the Commission, particularly for issues of standing within the context of coal mining and reclamation operations. See Musgrave v. Squaw Creek Coal and DNR, 12 CADDNAR 192 (2009), remanded on other grounds; Musgrave v. DNR & Squaw Creek Coal, 12 CADDNAR 163 (2009); Musgrave v. DNR and Squaw Creek Coal, 10 CADDNAR 178, (2006), citing Hoosier Environmental Council v. DNR and Solar Sources, Inc., 7 CADDNAR 85 (1995); Roberts d/b/a Enterprise Oil & Associates v. DNR & Black Beauty Coal Co., 7 CADDNAR 206 (1999).
90. In Musgrave, the Commission determined that a person with an interest that is or may be affected would include a person:
(1) who uses any resources of economic, recreational, aesthetic, or environmental value that may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the state; or (2) whose property is or may be adversely affected by coal exploration or surface coal mining and reclamation operations or any related action of the state…
Musgrave, supra at 195.
91. Petitioner alleges that he is aggrieved or adversely affected by the determination by DOR that one or more permit revisions were nonsignificant revisions. As a result of DOR’s classification, individual notice to Petitioner was not required before DOR acted on each of the proposed revisions.
92. Petitioner alleges the revisions were misclassified as “nonsignificant” and were “significant”. Petitioner avers that he is a person with an interest that is or will be adversely affected by the approval of the revisions. Specifically, the Petitioner states that, “If the current revisions are granted, [Petitioner] will suffer property damage in the form of loss of wildlife, a decrease in property value, and a loss of his recreational use of the land.” See the Petition, Exhibit B at p 2.
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93. As to NSIG #1 and NSIG #3, the Department asserts that the “Petitioner has no possessory or other articulable legal interest in wildlife that may inhabit or be near his property….” See the Department’s Memorandum of Law in Support of Motion for Summary Judgment, pp 4-5. All wild animals, “except those that are: (1) legally owned under a license or permit as required by this article; or (2) otherwise excepted in this article; are the property of the people of Indiana.” IC 14-22-1-1(a). The Department is tasked with the “protection and proper management” of all legally or publicly owned wild animals in Indiana.” IC 14-22-1-1(b)[4].
94. The Department supports its positon by asserting that the Petitioner has no authority to enter upon the area of the Permit that is the subject matter of revisions NSIG #1, NSIG #3, NSIG #4 and NSIG #5.
95. As to NSIG #3, NSIG #4 and NSIG #5, the Department asserts that the Petitioner has no standing because United Minerals has no lease with the Petitioner that would allow for surface mining on Petitioner’s property.
96. The Petitioner does not assert an interest based on property he does not own. In addition, Petitioner acknowledges that he has no lease that would allow United Minerals the right to conduct surface mining activities on his property and no right to excavate on the Petitioner’s land.
97. The Petitioner asserts that he possesses standing to challenge NSIG #1 on the basis that he will suffer a loss to the recreational use and value of his own land.
98. However, Petitioner provided no support to show how an interest of his would or could be damaged by the revisions identified in NSIG #1. The Petitioner has failed to state a legal basis of his claim arising out of the revised success standards and the basis of his claim.
99. Even if his claim regarding the classification of NSIG #1 supported a finding of standing, insufficient evidence was presented to show any interest upon which damage could be more than mere speculation.
100. Any claim in the Petition regarding NSIG #1 is deemed insufficient to state a claim upon which relief may be granted due to his failure to show he is aggrieved or adversely affected by the classification of NSIG #1 as nonsignificant. For that reason, the Petitioner’s challenge with respect to NSIG #1 must fail.
101. Both NSIG #3 and NSIG #4 propose revisions resulting from changes to the PEP area designated in the original Permit. Briggeman offered numerous potential impacts to property generally that suffers from the removal of a forested buffer. The potential damage she identified offered no specific science to support the majority of her conclusions for the specific property owned by the Petitioner. However, for purposes of standing, those claims survive.
102. A decrease in the Petitioner’s property value would result in the Petitioner being aggrieved or adversely affected by the Department’s order regarding classification due to a legal interest in his property.
103. Petitioner also claims potential damage to his property value due to revised water quality protections, waste storage plans and increased spoil near his property.
104. Petitioner identified an interest in the value of his property that would, or could, be damaged by the changes reflected in NSIG #3 and NSIG #4. Consistent with the expanded standing identified by the Commission available for situations that involve reclamation, his assertions are sufficient to support a finding of standing in this proceeding for the classifications of NSIG #3 and NSIG #4. Roberts v Black Beauty, supra.
105. NISG #5, presented as a revision to clarify water monitoring, well sampling and well installation. This proposed revision offers a mere clarification of the implementation requirements set forth in the revision identified as NSIG #4.
106. The Petitioner offered no basis with which to support Petitioner’s standing to challenge the clarifications made in NSIG #5.
107. Petitioner presented no specific interest that would, or could, be damaged by NSIG #5. Petitioner is determined to have no standing to challenge the DOR’s classification of NSIG #5 as nonsignificant.
108. Petitioner is found to lack standing to challenge the DOR’s classification of NSIG #1 and NSIG #5 as nonsignificant. Petitioner has demonstrated sufficient facts upon which to establish standing to initiate this proceeding to challenge the DOR’s classification of NSIG #3 and NSIG #4 as nonsignificant.
Administrative Review of a Nonsignificant Revision
109. United Minerals claims that Petitioner lacks standing to seek administrative review of the permit revision as nonsignificant because the right is only available to the Permittee.
110. United Minerals does not dispute the right of the public to comment and to object to a significant revision and for the Department to conduct an informal conference that is not subject to IC 4-21.5-3, prior to approval of the revision. UM-MSJ, IC 14-34-5-8(a), 312 IAC 25-4-127(b) and 312 IAC 25-4-112(b)(4).
111. United Minerals identifies no right of the public to comment and object to a nonsignificant revision prior to approval of the revision. UM MSJ, 312 IAC 25-4-127(b)(1).
112. United Minerals identifies the right of the permittee to receive notice and to request administrative review before the Commission within 15 days of receipt of a determination by the DOR, on behalf of the Department, regarding a nonsignificant or minor field permit revision. UM-MSJ, 312 IAC 25-4-127(b).
113. Approval of a nonsignificant revision, does not require compliance with the public notice and hearing requirements that are required prior to the approval of a significant revision. 312 IAC 25-4-127(b)(2)(C).
114. However, after the Department’s approval or denial of any permit revision, the applicant or “any person with an interest that is or may be adversely affected shall be entitled to a hearing before the [C]ommission.” 312 IAC 25-4-122(a).
115. The right to challenge the DOR’s classification identified in 312 IAC 25-4-122(a) is not limited to the permittee.
Was Petitioner’s Objection Timely Filed?
116. United Minerals asserts that the Petitioner waived any right he may have had to administrative review by failing to timely file an objection?
117. United Minerals asserts that constructive notice of the permit revision would trigger the time frame required for the Petitioner to submit his request for administrative review. UM-MSJ.
118. A reclamation permit must be filed in a public library and the DOR’s office. The file must be available for inspection. IC 14-34-3-6 and IC 14-34-3-9.
119. A permit application must be on file for permitted surface mining activities in Warrick County in the Boonville-Warrick County Public Library. 312 IAC 25-4-109(b)(23).
120. The Permit was originally filed in the Boonville-Warrick County Public Library. UM-MSJ, Exhibits 2 and 3.
121. United Minerals also asserts, without supporting evidence, that the permit file is maintained in library records.
122. United Minerals asserts that, through constructive notice, the Petitioner is deemed to have been provided sufficient notice of the proposed Permit revisions and the DOR’s determinations to classify NSIG #1, NSIG #3, NSIG #4 and NSIG #5 as nonsignificant revisions.
123. United Minerals asserts that updates to the Permit file maintained by the DOR and copies of the Permit file, as maintained by the Boonville-Warrick County Public Library, would trigger the time frame within which the Petitioner was required to submit his request for administrative review.
124. The ALJ issued an “Order on Motions to Dismiss” on March 11, 2019, addressing this issue. In that order, she found, in part, that an applicant for a permit revision must publish information in the county of the operation in at least one newspaper and mail the advertisement to certain persons. 312 IAC 25-4-109. Following DOR’s written approval of a revision, the Department is required to publish a “summary of the decision in a newspaper of general circulation in the general area of the proposed operation.” 312 IAC 25-4-117(e)(2).
125. Upon the Department’s approval or denial of an application for a permit revision, the applicant or “any person with an interest that is or may be adversely affected shall be entitled to a hearing before the [C]ommission on such approval or denial upon filing within thirty (30) days after receipt of notice of such approval or denial or within thirty (30) days after publication of the summary of the decision in the newspaper pursuant to [312 IAC 25-4-117(e)(2)]” to be conducted under IC 4-21.5. 312 IAC 25-4-122(a). See also IC 14-34-5-8.
126. There is no requirement for the Department to provide specific or public notice regarding a revision characterized by the Department’s DOR as nonsignificant prior to the Department’s approval of the proposed revision. However, public notice is required after the DOR’s action and the time frame for administrative review of a nonsignificant revision does not begin until that public notice is provided. 312 IAC 25-4-122(a) and 312 IAC 25-4-127(b). See also IC 14-34-5-8.3.
127. The 30 day time frame for a person to request administrative review of the DOR’s classification of a revision as nonsignificant, begins on the date of receipt of notice or the Department’s publication of the summary of the DOR’s decision in the newspaper.
128. A specific time frame has been designated by administrative rule and determines the timeliness of a request for administrative review.
129. “Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party.” Travelers Indem. Co. of America v. Jarrells, 906 N.E.2d 912, 915 (Ind. App. 2009).
130. No evidence of the Department’s publication of the “summary of the decision” in the newspaper is included in the evidence submitted for consideration.
131. The evidence submitted fails to support a conclusion that the Petitioner’s time frame to request administrative review of the classification expired.
Is the Petitioner’s Claim Moot
132. United Minerals asserts the Petitioner’s claim is moot. The basis of its claim is that the Permit is currently in the renewal process and that the Petitioner has now had an opportunity to provide public comment on portions of the Permit.
133. United Minerals cites a decision issued by the Indiana Court of Appeals. In that decision, the Court concludes, “An issue is deemed to be moot when the case is no longer live, and the parties lack a legally cognizable interest in the outcome of its resolution or where no effective relief can be rendered to the parties.” UM-MSJ, p 21, citing Anderson v Huntington Co, 983 N.E. 2d 613, 617 (Ind. App. 2013).
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134. United Minerals asserts that it is “universal practice” to dismiss a case when it is unnecessary to decide the issue presented. UM-MSJ at p 21, citing Haggerty v Bloomington, 474 N.E. 2d 114, 116 (Ind. App. 1985).
135. A surface mining permit is effective for five years. Thereafter, the permit must be renewed. At the time of renewal, notice of the application is required and the Department’s Director may order a public hearing. After a public hearing, the Director must issue written findings. IC 14-34-4-1; 14-34-4-6 and IC 14-34-4-11.
136. Following the application renewal process, the Director will issue a renewal permit unless findings are made by the Director that any of the following exist:
(1) The terms and conditions of the existing permit were not satisfactorily met.
(2) The present surface coal mining and reclamation operation does not comply with IC 14-34-10[5].
(3) The renewal request substantially jeopardizes the operator's continuing responsibility on existing permit areas.
(4) The operator has not provided evidence that the performance bond in effect for the operation will continue in full force and effect for a renewal requested in the application as well as an additional bond the director requires under IC 14-34-6.
(5) The permittee has not provided the director with required additional revised or updated information.
IC 14-34-5-4(b).
137. Permit #S-374 is currently in the renewal process. An application to renew the Permit was filed with DOR and the Petitioner received specific notice of the application and the opportunity to object. UM-MSJ, Exhibits 24 and 26.
138. The Department’s permit renewal determination does not include a consideration of the classification of prior revisions as significant or nonsignificant.
139. United Minerals relies on the Commission’s former decision in Jarrett v DNR & Amax, 5 CADDNAR 265 (1992), to support its positon that dismissal is appropriate in this case. In Jarrett, a permit had expired. Thereafter, a proceeding filed by a petitioner to challenge the permit was dismissed and the issues were determined to be moot.
140. In Jarrett, the permit was no longer being pursued. In this proceeding, the permit is currently being considered for renewal. Unlike the situation in Jarrett, the permit in this proceeding is a valid permit that is still being pursued.
141. The issues presented by the Petitioner in this proceeding regarding the classification of the revisions are not the same issues as those that may be presented during the renewal process.
142. Effective relief can be rendered to the parties in this proceeding and the issues are not determined to be moot.
Classification, Significant or Nonsignificant: NSIG #3 and NSIG #4
SMCRA & I-SMCRA
143. United Minerals asserts that DOR properly classified the revisions identified as NSIG #1, NSIG #3, NSIG #4 and NSIG #5 as nonsignificant.
144. The Commission has previously determined, “A state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the agency’s legislative grant of authority may not be assumed by the agency nor implied to exist in its powers.” Markland v. Swistek d/b/a Crack of Dawn Hunt Club, 13 CADDNAR 194, 197 (2013), citing Bell v. State Board of Tax Commissioners, 615 N.E.2d 816, 819 (Ind. Tax Ct. 1995), citing Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201, 216 (Ind. App. 1988).
145. The Indiana Surface Mining Control and Reclamation Act (I-SMCRA) is codified at IC 14-34.
146. One purpose of IC 14-34 is to “Implement and enforce the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C 1201 through 1328).” IC 14-34-1-3(1).
147. SMCRA provides for the following regarding permit revisions:
An application for a revision of a permit shall not be approved unless the regulatory authority finds that reclamation as required by this chapter and the State or Federal program can be accomplished under the revised reclamation plan. The revision shall be approved or disapproved within a period of time established by the State or Federal program. The regulatory authority shall establish guidelines for a determination of the scale or extent of a revision request for which all permit application information requirements and procedures, including notice and hearings, shall apply: Provided, That any revisions which propose significant alterations in the reclamation plan shall, at a minimum, be subject to notice and hearing requirements.
30 U.S.C.A. § 1261(a)(2).
148. While SMCRA does not, Indiana’s General Assembly has provided information to assist in the identification of a revision as a significant or nonsignificant permit revision. IC 14-34-5-8.1 and 8.2.
149. The Department is an administrative agency of the State of Indiana with responsibility for the administration and enforcement of a program for the regulation of surface coal mining and reclamation pursuant to I-SMCRA and its implementing rules set forth at 312 IAC 25.
150. United Minerals correctly identifies the duties of the Department’s Director to supervise the administration and enforcement of reclamation efforts and the authority to delegate those powers and duties to other Department staff. IC 14-34-2-3 and IC 14-34-2-5.
151. The Department, through its DOR, has the authority to classify a proposed permit revision as significant or nonsignificant.
AOPA de novo review
152. United Minerals asserts that DOR’s classification of a revision as nonsignificant should be afforded deference.
153. United Minerals relies on NIPSCO v NIPSC, 31 N.E.3d 1 (Ind. App. 2015), to assert that the Department should receive deference for its determination to classify the revisions as nonsignificant. In the NIPSCO case, the Indiana Court of Appeals gave great deference to decisions made by the Indiana Utility Regulatory Commission (IURC), within the authority granted to it by statute. NIPSCO at 17. IURC issues “final agency actions” and is the ultimate authority for decisions within its jurisdiction.
154. In the context of the instant proceeding the Department’s determinations are not “final agency actions”.
155. With respect to the instant proceeding, the Commission’s ALJ is the ultimate authority who issues the final agency action. IC 14-10-2-2.5; IC 14-34-2-2 and 312 IAC 3-1-2.
156. Administrative review is conducted “de novo”. IC 4-21.5-3-14(d).
157. Rather than deferring to a Department determination, de novo review requires the ALJ to consider and apply proper weight to the evidence. A de novo hearing under AOPA is designed to provide a thorough examination of the evidence and to assure affected persons with due process. DNR v United Refuse Co, Inc. 615 N.E. 2d 100 (Ind. 1993).
158. In the United Refuse case, the Indiana Supreme Court held “…where an ALJ does not conduct a de novo hearing of the evidence presented at an administrative hearing, the aggrieved party is entitled to a new hearing before an ALJ.” Id at 104.
159. Thereafter, Indiana Court of Appeals clarified that the de novo standard of review is also proper on summary judgment. IN-KY Electric Corp. v IDEM, 820 N.E.2d 771, 781 (Ind. App. 2005).
160. However, the ALJ “may not…cause implementation of [IC 14-34] to be inconsistent with or not in accordance with the federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 through 1328).” IC 14-34-1-5.
161. In this instance, it is the final agency action issued by the ALJ, as the ultimate authority for the Department, that would be the equivalent of the IURC’s decision in the NIPSCO case and entitled to deference on judicial review.
162. DOR’s standard practices or policies may provide valuable historic information concerning ongoing practices and industry standards.
163. A permittee may submit an application to revise an existing permit for surface mining operations and the Director is responsible for “establishing guidelines for a determination of the scale and or extent of a revision request for which all permit application information requirements and procedures apply.” IC 14-34-5-5(b).
164. The DOR has developed written guidelines within its Procedural Manual concerning significant permit revisions that are obtained according to 312 IAC 25-4-126. A significant revision under 312 IAC 25-4-126 is a revision ordered by the Director following a review to ensure compliance with IC 14-34 and 312 IAC 25. In this proceeding, the revisions were not ordered by the Director and 312 IAC 25-4-126 is not applicable. The Procedural Manual does not provide instruction to DOR staff regarding a significant permit revision that is not ordered by the Director.
165. DOR guidelines generally advise staff to determine if a submittal is nonsignificant revision by reference to 312 IAC 25-4-127.
166. While the ALJ could find the DOR’s direction to staff to be relevant to a conclusion in this matter, the DOR’s written guidance only provides a reference to 312 IAC 25-4-127.
Significant or Nonsignificant: NSIG #3 & NSIG #4
167. Compliance with the public notice and hearing requirements for significant revisions is not required for nonsignificant revisions. 312 IAC 25-4-127(b).
168. Implementing rules identify a revision is a significant revision if any of the following conditions exist:
(1) The change may result in an adverse impact beyond that previously considered, affecting cultural resources that are listed on or eligible to be listed on the:
(A) National Register of Historic Places; or
(B) Indiana state register of historic sites and historic structures established under IC 14-21-1.
(2) Blasting will be used in a manner that is likely to cause adverse impacts beyond that previously considered to persons or property outside the permit area.
(3) The change may result in an adverse impact beyond that previously considered, affecting a water supply to which IC 14-25-4 applies.
(4) The change:
(A) requires the identification, disturbance, or handling of toxic forming or acid forming materials in a manner different from that previously considered; and
(B) has the potential for causing an additional impact not previously considered.
(5) The change may result in an adverse impact on fish, wildlife, and related environmental values beyond that previously considered.
(6) The addition of any following facility where the addition will cause an impact not previously considered a:
(A) coal processing facility, except that the addition of a temporary coal processing facility used exclusively for crushing and screening need not be considered a significant revision; or
(B) permanent support facility.
(7) The change will cause a:
(A) new or an updated probable hydrologic consequences determination; or
(B) cumulative hydrologic impact analysis to be required under section 115(a)(5) of this rule.
(8) A postmining land use will be changed to any of the following:
(A) A residential land use.
(B) A commercial or industrial land use.
(C) A recreational land use.
(D) Developed water resources, as defined at 312 IAC 25-1-39, that meet the size criteria of 30 CFR 77.216(a).
312 IAC 25-4-127(d). See also IC 14-34-5-8.1.
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169. Implementing rules identify a revision is a nonsignificant revision to an existing approved permit if any of these conditions exist:
(1) For a surface mine within the permit area, a change of the:
(A) direction of mining; or
(B) location of mining equipment.
(2) The substitution of mining equipment designed for the same purpose, the use of which is not detrimental to the achievement of final reclamation or subsidence control.
(3) For an underground mine, any change in the direction or location of mining within the permit area or shadow area in response to unanticipated events.
(4) Any other change in the mining or reclamation plan that the director reasonably determines:
(A) will not have a significant effect on:
(i) the achievement of final reclamation plans under this rule;
(ii) subsidence control plans; and
(iii) the surrounding area;
(B) does not involve significant delay in achieving final reclamation or significant change in the land use; or
(C) is temporary and necessitated by:
(i) unanticipated and unusually adverse weather conditions;
(ii) other acts of God;
(iii) strikes; or
(iv) other causes beyond the reasonable control of the permittee;
if all steps specified by the director to maximize environmental protection are taken.
312 IAC 34-25-4-127(e). See also IC 14-34-5-8.2.
170. NSIG #3, provides for the reduction of the PEP area and increased surface mining on Ditney Hill. Any other portion of the revision was conditionally deferred to NSIG #4.
171. NSIG #4 proposed revisions to the operations plan and the drainage control plan included within the original permit.
172. Both revisions, submitted to DOR on the same date, refer to the impact of alterations to the PEP area identified in the original permit. Because both revisions address different aspects of the same action, and because NSIG #3 is contingent on the approval of NSIG #4, these revisions will be addressed as a single proposed revision.
173. The Department and United Minerals assert that the revisions may have been, or were likely to have been, previously considered during the original permitting process.
174. NSIG #4 addresses modifications required due to the changes in mining operations proposed in NSIG #3. While NSIG #3 proposes a change to the mining efforts within the mining area, NSIG #4 specifically addresses additional changes necessary to address the expanded mining area. The proposal includes alterations of the drainage control plan, including the redesign and elimination of numerous basins and diversions, and an increased spoil disposal area.
175. The avoidance area identified as a PEP was previously considered by DOR in the originally approved permit. However, the consideration previously determined a need to maintain the area as an avoidance area. Because the Permit, as originally approved, did not consider surface mining of the avoidance area, it is determined that the potential for adverse impacts associated with the revisions proposed in NSIG #4 were not previously considered.
176. A hydrologic balance is the “relationship between the quality and quantity of water inflow to water outflow from and water storage in a hydrologic unit, such as a drainage basis, aquifer, soil zone, lake, or reservoir….” 312 IAC 25-1-67. The change in geology anticipated by the revision could impact the hydrologic balance of the area impacted within the PEP.
177. Modifications to the geology and the drainage control plan, including the redesign of basins and diversions may result in an adverse impact beyond that previously considered, affecting a water supply, pursuant to 312 IAC 34-25-4-127(d)(3) or require a new or an updated hydrologic consequences determination, pursuant to 312 IAC 34-25-4-127(d)(7).
178. For these reasons, NSIG #3 and NSIG #4 are determined to represent significant revisions.
Final Order on Motion for Summary Judgment
1. The Department’s Motion for Summary Judgment and United Minerals’ Motion for Summary Judgment are granted, in part. Petitioner Hendrickson failed to show he is aggrieved or adversely affected by the DOR’s classification of NSIG #1 and NSIG #5 as nonsignificant. Petitioner Hendrickson failed to state a claim for which relief can be granted on those issues.
2. The Department’s Motion for Summary Judgment and United Minerals’ Motion for Summary Judgment are denied in part, as follows:
a. The evidence does not support a conclusion that the Petitioner failed to timely file his administrative review request.
b. The disputed issues in this proceeding are not moot as a result of the Permit renewal application filed by United Minerals.
c. Petitioner is found to possess standing on DOR’s classification of NSIG #3 and NSIG #4 as nonsignificant.
d. NSIG #3 and NSIG #4 were improperly classified by the DOR as nonsignificant revisions.
3. The Department’s approvals of NSIG #3 and NSIG #4 are reversed. The revisions are remanded to the Department for consideration as significant revisions.
[1] Multiple Department divisions are referenced in this decision. For clarity, “DOR” has been referenced to identify the office or staff of the Division of Reclamation.
[2] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.
[3] There is no issue disputed in this proceeding concerning a revision that may be identified as #2.
[4] Referenced by the Department as IC 4-22-1-1. Corrected in this decision.
[5] Performance Standards.