FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                  ATTORNEYS FOR APPELLEES:

PETER M. RACHER                           Squaw Creek Coal Company:
STEPHANIE T. ECKERLE
JOSH S. TATUM                             E. SEAN GRIGGS
Plews Shadley Racher & Braun LLP          DAVID R. GILLAY
Indianapolis, Indiana                     Barnes & Thornburg LLP
                                          Indianapolis, Indiana

                                          Indiana Department of Natural Resources:

                                          GREGORY F. ZOELLER
                                          Attorney General of Indiana

                                          FRANCES BARROW
                                          Deputy Attorney General

                                                                        FILED
                                          Indianapolis, Indiana

                                                                    Mar 21 2012, 9:31 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                              CLERK
                                                                          of the supreme court,
                                                                          court of appeals and
                                                                                 tax court




BIL MUSGRAVE,                             )
                                          )
      Appellant-Respondent,               )
                                          )
             vs.                          )   No. 49A05-1104-MI-164
                                          )
SQUAW CREEK COAL COMPANY and              )
INDIANA DEPARTMENT OF NATURAL             )
RESOURCES,                                )
                                          )
      Appellees-Petitioners.              )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Michael D. Keele, Judge
                           Cause No. 49D07-1001-MI-3153
                                      March 21, 2012

                              OPINION - FOR PUBLICATION

BAILEY, Judge


                                      Case Summary

       Bil Musgrave (“Musgrave”), a former coal miner, appeals the trial court’s order in

favor of Squaw Creek Coal Company (“SCCC”) and the Indiana Department of Natural

Resources (“DNR”) on SCCC’s petition for judicial review. SCCC petitioned the trial court

for judicial review of an order issued by an Indiana Natural Resources Commission

(“Commission”) Administrative Law Judge (“ALJ”) vacating the DNR’s decision to release

certain portions of SCCC’s reclamation bond on its surface mining permit, and the trial court

reversed. The DNR cross-appeals the trial court’s order. We affirm.

                                           Issues

       The parties raise several issues for our review, which we consolidate and restate as

the following three issues:

       I.     Whether the trial court erred by denying Musgrave’s motion to dismiss
              SCCC’s petition for judicial review for lack of jurisdiction because
              SCCC did not serve summonses upon the Commission, the DNR, and
              the Indiana Attorney General, and did not pay the Marion County
              Superior Court filing fee;

       II.    Whether Musgrave is collaterally estopped from challenging the
              DNR’s decision to release the reclamation bond at issue; and

       III.   Whether the trial court erred by reversing the ALJ’s order and
              remanding for entry of judgment in favor of SCCC and the DNR.




                                             2
                                     Facts and Procedural History

          SCCC was formed in 1960 as a joint venture between Alcoa, Inc. and Peabody Coal

Company to mine the coal from Squaw Creek Mine. The extracted coal was used to power

Alcoa’s nearby aluminum production facility on the banks of the Ohio River. Musgrave is a

former miner who worked at Squaw Creek Mine.

          The Squaw Creek Mine was mined in segments using a method called “surface

mining.” (App. 636) Using this method, SCCC drilled and blasted the overburden1 that

covered the coal, removed the blasted and drilled pieces with draglines and shovels, and

dumped the pieces to the side, making “structureless pile[s] of debris” (App. 692) that ranged

from twenty-five to eighty feet tall. The exposed coal was then extracted and transported to a

processing area using “haul roads” that were approximately fifty feet wide and inclined

because the mine floor was well below the original grade of the land. (App. 636)

          Between 1965 and 1979, Alcoa used abandoned haul roads in Squaw Creek Mine to

dispose of waste generated at its aluminum production facility, such as chromium sludge,

spent pot lining, and tarry wastewater and tars from tunnel kilns. Because the haul roads

were lower than the surrounding spoil, the waste was dumped at relatively low levels. Alcoa

dumped its wastes in coordination with the Indiana Department of Health, the predecessor to

the Indiana Department of Environmental Management (IDEM), and the wastes were

covered with native overburden. It is estimated that Alcoa dumped its waste at twelve

locations in Squaw Creek Mine, but some former miners assert that waste was dumped in


1
    Overburden is material of any nature except topsoil that overlies a coal deposit. 312 IAC § 25-1-93.

                                                       3
several additional locations.

       On March 28, 1984, SCCC obtained Permit S-008 to mine a certain area of Squaw

Creek Mine’s North Field. The entire area covered by Permit S-008 is approximately 4,467

acres, 1,273.01 acres of which were actually mined. Successful reclamation of the land that

was mined was secured with a bond.

       All active mining at Squaw Creek Mine ended in 1987, and on October 26, 2007,

SCCC applied for release of certain portions of the bond on Permit S-008. The DNR held a

public hearing on the bond release petition on January 3, 2008 at which Musgrave and other

concerned citizens testified, as did an Alcoa safety representative. Much of the hearing

focused on Alcoa’s disposal of the waste, whether all disposal locations had been discovered,

and the various health and environmental impacts that the waste disposal has allegedly had

on Squaw Creek Mine. On January 4, 2008, the DNR conducted a field investigation of the

area covered by the bond and approved SCCC’s bond release application on February 1,

2008. In approving the bond release, the DNR concluded that “[t]he actual or theoretical

threat of pollution from industrial wastes is not the type of impact anticipated by the bond

release requirements.” (App. 96)

       On February 15, 2008, Musgrave sought administrative review of the DNR’s decision

from the Commission. After the parties filed several motions and participated in multiple

conferences, Musgrave moved for summary judgment on April 3, 2009. SCCC and the DNR

filed responses and cross motions for summary judgment on June 25, 2009 and June 26,

2009, respectively.


                                             4
        On December 28, 2009, the ALJ issued an order affirming the DNR’s decision to

release parts of the bond on certain portions of SCCC’s reclamation bond, but vacating the

DNR’s decision to affirm the release on others.2 Although the ALJ concluded that none of

the identified sites where Alcoa dumped waste were located within the bonded area, the ALJ

vacated the DNR’s decision as to certain portions of land because she concluded that “the

migration of waste or constituents of that waste from the disposal sites throughout [Squaw

Creek Mine] and possibly beyond is facilitated by the permeable overburden layer created

throughout [Squaw Creek Mine] by SCCC’s mining operations.” App. 69. The ALJ based

this conclusion on evidence that the mining spoil was behaving as an “unconfined aquifer”

(App. 748) where lateral migration of water occurs.

        SCCC sought judicial review of the ALJ’s order by filing its Verified Motion for

Judicial Review in Marion County Superior Court on January 22, 2010. That same day,

SCCC sent a copy of its petition for judicial review to Musgrave, the Indiana Attorney

General, the DNR, and the Commission. It also sent a summons with the petition sent to

Musgrave. SCCC did not send summonses to the Attorney General, the DNR, or the

Commission.

        On January 27, 2010, Attorney April Lashbrook of the Indiana Attorney General’s

Office entered an appearance on behalf of the DNR. On February 8, 2010, Attorney Peter

Racher entered an appearance on behalf of Musgrave. Then, on March 17, 2010, Attorneys
2
  As we discuss below, bonds on reclamation permits are released in three phases. Each phase requires
satisfaction of certain criteria before it may be released. In its bond release application, SCCC applied for
phase I release on some parts of the land, phase II release on other parts, and phase III release on yet other
parts. The ALJ affirmed the DNR’s decision to release the bond on the land that SCCC requested phase I and
phase II releases. The ALJ vacated the DNR’s approval on the land for which phase III release was requested.

                                                      5
Peter Racher and Stephanie Eckerle filed an “Amended Limited Appearance by Attorneys in

a Civil Case” (App. 98) as well as a motion to dismiss SCCC’s petition for lack of subject

matter jurisdiction, lack of personal jurisdiction, insufficiency of process, insufficiency of

service of process, and failure to state a claim upon which relief may be granted. The trial

court denied Musgrave’s motion to dismiss on May 26, 2010.

       The parties briefed the issue of whether the ALJ properly reversed the DNR’s decision

on phase III release of the bond, and the trial court held oral argument on December 16,

2010. On March 11, 2011, the trial court issued its “Order on Verified Petition for Judicial

Review” reversing the ALJ’s order and remanding for entry of judgment in favor of SCCC

and the DNR.

       Musgrave now appeals. Additional facts will be supplied as necessary.

                                 Discussion and Decision

                               The Trial Court’s Jurisdiction

       We first address Musgrave’s argument that the trial court should have dismissed

Musgrave’s petition because it lacked jurisdiction to review the ALJ’s order. Specifically,

Musgrave maintains that SCCC committed certain errors in petitioning for judicial relief,

namely that it did not serve summonses upon the Commission, the DNR, and the Indiana

Attorney General with its petition; did not name the DNR and Attorney General as parties on

the summons it served upon Musgrave; and did not pay a filing fee in Marion County Court.

According to Musgrave, as a result of these alleged errors, SCCC’s petition for judicial

review was untimely and thus the trial court should have dismissed SCCC’s petition.


                                              6
       Decisions concerning surface coal mining and reclamation under Indiana Code article

14-34 are subject to judicial review under the Indiana Administrative Orders and Procedures

Act (AOPA). Ind. Code § 14-34-17-1. AOPA “establishes the exclusive means for judicial

review of an agency action.” I.C. § 4-21.5-5-1. Judicial review of an administrative order is

initiated by filing a petition for review in the appropriate court. I.C. § 4-21.5-5-2. A person

is entitled to judicial review only if that person has standing, has exhausted administrative

remedies, files a petition for review within thirty (30) days after the date that notice of the

agency action is served, and timely transmits the agency record. I.C. § 4-21.5-5-2(b). The

petition must be filed with the clerk of the court, be verified, and contain certain information.

I.C. § 4-21.5-5-7. In addition:

       A petitioner for judicial review shall serve a copy of the petition for judicial
       review upon:

              (1) the ultimate authority issuing the order;

              (2) the ultimate authority for each other agency exercising
              administrative review of the order;

              (3) the attorney general, and

              (4) each party to the proceeding before an agency;

       in the manner provided by the rules of procedure governing civil actions in
       the courts.

I.C. § 4-21.5-5-8.

       We first turn to Musgrave’s argument that the summons he received was defective and

that SCCC did not send summonses to the DNR, Attorney General, or the Commission. The

parties dispute the meaning of AOPA’s directive to serve the petition for judicial review “in

                                               7
the manner provided by the rules of procedure governing civil actions.” I.C. § 4-21.5-5-8.

Musgrave argues that it refers to the Indiana Trial Rules’ requirements governing process and

service for the commencement of a new civil action which require a summons along with the

complaint. Under Indiana Trial Rule 3, a party commences a civil action by filing the

complaint or equivalent pleading specified by statute, paying a prescribed filing fee, and,

where service of process is required, furnishing the clerk with as many copies of the

complaint and summons as is necessary. Trial Rule 4, entitled “Process”, addresses the

various requirements of the form and content of a summons. Trial Rules 4.1 through 4.17

govern how that process (the summons and complaint) is served, depending on the type of

party to be served or the method by which service is to be effected.

        SCCC, on the other hand, argues that it needed only to serve the petition for judicial

review and did not need to include a summons. Working from the position that judicial

review of an administrative order is merely the continuation of an ongoing dispute, SCCC’s

argues that AOPA’s reference to the trial rules means rules governing actions already

commenced.3 Trial Rule 5 governs the service of subsequent pleadings and papers, such as

written motions, pleadings subsequent to the original complaint, written motions, briefs,

documents related to discovery, and other written notices.

        Both parties attempt to support their position here by directing us to our opinion in

Lindsey v. De Groot Dairy LLC, 867 N.E.2d 602 (Ind. Ct. App. 2007), trans. denied. In that


3
 In its brief, SCCC explains that the person who assisted in filing the petition saw Musgrave’s name in the
caption and, out of familiarity and “perhaps overzealously”, prepared and sent a summons to Musgrave.
Appellee’s Br. p. 22.

                                                    8
case, we addressed whether the service of a summons and the petition for judicial review on

a party’s attorney, rather than the party himself, met the service requirements of AOPA. We

concluded that it did, and wrote that “service pursuant to Trial Rule 5 satisfies Indiana Code

Section 4-21.5-5-8” and that “[i]f the General Assembly would prefer service be achieved

under Trial Rule 4, it should so specify.” Id. at 605.

        Musgrave, however, presents a slightly different issue here in that his challenge is one

of insufficiency of process, not insufficiency of service of process. A claim of insufficiency

of process is a challenge to the content of a summons, whereas a challenge of insufficiency

of service of process challenges the manner or method of service. Cotton v. Cotton, 942

N.E.2d 161, 164 (Ind. Ct. App. 2011). Musgrave does not argue that SCCC sent its petition

to the wrong person. Nor does he argue that SCCC incorrectly sent the petition or otherwise

deficiently served the petition. Rather, Musgrave takes issue with the content of his

summons and the fact that no summons was sent to DNR, the Commission, and the Attorney

General.

        AOPA states that a party shall serve “a copy of the petition for judicial review” and

says nothing of a summons. The petition is therefore the only process required by AOPA.4

Just like Trial Rule 4, Indiana Code Section 4-21.5-5-7 lists the content requirements of the

process (the petition) necessary under AOPA. Service of this process is then to be achieved

in the manner provided for under the trial rule relevant to the particular party to be served, be
4
  This makes sense because AOPA requires service of the petition on the “ultimate authority issuing the order.”
 Practically speaking, there is no need to serve a summons on the ALJ that contains, among other things, “the
time within which these rules require the person to be served to respond, and a clear statement that in case of
his failure to do so, judgment by default may be rendered against him for the relief demanded in the
complaint.” T.R. 4(C)(5).

                                                      9
it on an individual, organization, the Attorney General, or through a party’s attorney. See De

Groot, 867 N.E.2d at 605.

       Here, the ALJ issued her order on December 28, 2009. SCCC filed its Verified

Motion for Judicial Review in Marion Superior Court less than thirty days later on January

22, 2010. That same day, SCCC sent a copy of its petition to Musgrave, the Indiana Attorney

General, the DNR, and the Commission. SCCC’s process and service thereof was sufficient.

       Similarly, we find no error in the trial court’s refusal to dismiss SCCC’s petition even

though it did not pay a filing fee. AOPA makes no mention of a filing fee. Even if we were

to accept Musgrave’s interpretation of AOPA’s language, Trial Rule 3 merely requires that a

party pay the “prescribed filing fee.” The Marion Superior Court prescribed no filing fee in

this case and SCCC should not be penalized for not paying a filing fee that it was never

required to pay. The trial court did not err by refusing to dismiss.

                                      Issue Preclusion

       Both SCCC and the DNR argue that Musgrave is collaterally estopped from

challenging the bond release on Permit S-008 because he challenged the bond release on

another permit, S-009, raising the same legal issues. In general, collateral estoppel, or issue

preclusion, bars subsequent litigation of a fact or issue that was necessarily adjudicated in a

former suit if the same fact or issue is presented in a subsequent lawsuit. Indianapolis

Downs, LLC v. Herr, 834 N.E.2d 699, 704 (Ind. Ct. App. 2005), trans. denied. Where issue

preclusion is applicable, the former adjudication will be conclusive in the subsequent action

even if the two actions are different claims. Id. However, the former adjudication will only


                                              10
be conclusive as to those issues that were actually litigated and determined therein. Id. Issue

preclusion does not extend to matters that were not expressly adjudicated and can be inferred

only by argument. Id.

          In order for a matter to have been “necessarily adjudicated” such that issue preclusion

applies, the determination must have been essential to the decision. Watson Rural Water Co.

v. Indiana Cities Water Corp., 540 N.E.2d 131, 137 (Ind. Ct. App. 1989), trans. denied.

Moreover:

          If a judgment of a court of first instance is based on determinations of two
          issues, either of which standing independently would be sufficient to support
          the result, the judgment is not conclusive with respect to either issue standing
          alone…

          [A] determination in the alternative may not have been as carefully or
          rigorously considered as it would have if it had been necessary to the result,
          and in that sense it has some of the characteristics of dicta…

          There may be cases where, despite these considerations, the balance tips in
          favor of preclusion because of the fullness with which the issue was litigated
          and decided in the first action. But since the question of preclusion will almost
          always be a close one if each case is to rest on its own particular facts, it is in
          the interest of predictability and simplicity for the result of nonpreclusion to be
          uniform.

Restatement (Second) Judgments § 27, cmt. i.

          The ALJ wrote the following in dismissing the Musgraves’5 challenge to the release of

the bond on Permit S-009:

          30.     However, the Musgraves [sic] complaint focuses on matters that are
                  either outside the scope of the bond release relating to Squaw Creek’s
                  Permit # S-009 or are outside the control or jurisdiction of the
                  Department, the Commission or the administrative law judge.

5
    Both Musgrave and his wife challenged the release of the bond on Permit S-009.

                                                     11
                                         *****

       37.    Therefore, the Department is without authority to deny bond release on
              Permit # S-009 as a result of activities that allegedly occurred within
              the permit area covered by Permit # S-008 or for the purpose of
              facilitating the remediation of contamination resulting from activities
              that allegedly occurred within the permit area covered by Permit # S-
              008.

       38.    In the event it were appropriate for the Department to deny any bond
              release relating to the Musgraves’ complaint of toxic dumping and
              the resulting contamination it would have to be the bond related to
              Permit # S-008, not the bond posted on Permit # S-009.

                                         *****

       47.    The Musgraves’ complaint fails to state a claim upon which relief
              may be granted for two reasons. First, the complaint relates to
              activities within the permit area of Permit # S-008, which is not the
              subject of bond release at issue in this proceeding. Second, the relief
              sought is the remediation of contamination resulting from alleged
              past toxic dumping, which is not within the jurisdiction of the
              Department, the Commission or the administrative law judge.

DNR App. 1-6.

       The ALJ’s decision was clearly based upon two separate but individually sufficient

grounds. The first was that the complaint challenged the release of the bond on Permit S-009

based on activities within the area covered by Permit S-008. The ALJ could have dismissed

the Musgraves’ action without more. However, it went on to state that neither the DNR nor

the Commission had jurisdiction to grant the requested relief over the waste that was

dumped. This, too, could have independently supported dismissal. Because the jurisdictional

question was one of two separate but independently sufficient grounds for dismissal, we

cannot conclude that it was necessarily adjudicated in the prior proceeding. Consequently, it

                                             12
cannot be the basis of issue preclusion, and the trial court was correct to conclude that

Musgrave is not collaterally estopped from challenging the release of the bond on Permit S-

008.

                                     Release of the Bond

                                     Standard of Review

         We now turn to the trial court’s order on SCCC’s judicial review petition. When we

review the decision of an administrative agency, we are bound by the same standard as the

trial court. Indiana Dep’t of Natural Res. v. Hoosier Envtl. Council, Inc., 831 N.E.2d 804,

808 (Ind. Ct. App. 2005). We do not try the case de novo and do not substitute our judgment

for that of the agency. Id. Pursuant to AOPA, we will reverse the administrative decision

only if it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law; (2) contrary to a constitutional right, power, privilege, or immunity; (3) in excess of

statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without

observance of procedure required by law; or (5) unsupported by substantial evidence. I.C. §

4-21.5-5-14; also Hoosier Envtl. Council, Inc., 831 N.E.2d at 808. While an appellate court

grants deference to an administrative agency’s findings of fact, no such deference is accorded

to its conclusions of law. LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000). The

burden of demonstrating the invalidity of the agency action is on the party who asserts the

invalidity. Dep’t of Natural Res. v. Peabody Coal Co., 740 N.E.2d 129, 134 (Ind. Ct. App.

2000).

         The ALJ’s order was entered on cross motions for summary judgment. In an


                                               13
administrative proceeding, a party may, at any time after the matter has been assigned to an

administrative law judge, move for a summary judgment in the party’s favor as to all or any

part of the issues in the proceeding. I.C. § 4-21.5-3-23. When a party files a summary

judgment motion, the administrative law judge considers the motion as a court would if

considering a motion for summary judgment filed under Trial Rule 56.

       Pursuant to Indiana Trial Rule 56(C), summary judgment is appropriate when there

are no genuine issues of material fact and when the moving party is entitled to judgment as a

matter of law. “A genuine issue of material fact exists where facts concerning an issue which

would dispose of the litigation are in dispute or where the undisputed facts are capable of

supporting conflicting inferences on such an issue.” Mahan v. American Standard Ins. Co.,

862 N.E.2d 669, 675 (Ind. Ct. App. 2007) (quoting Scott v. Bodor, Inc., 571 N.E.2d 313, 318

(Ind. Ct. App. 1991)), trans. denied. The party moving for summary judgment bears the

burden of making a prima facie showing that there is no genuine issue of material fact and

that he or she is entitled to a judgment as a matter of law. Indiana-Kentucky Elec. Corp. v.

Comm’r, Ind. Dep’t of Envtl. Mgmt., 820 N.E.2d 771, 776 (Ind. Ct. App. 2005). Once the

moving party meets these two requirements, the burden shifts to the non-moving party to

show the existence of a genuine issue of material fact by setting forth specifically designated

facts. Id.

       The fact that the parties made cross-motions for summary judgment does not alter our

standard of review. Mahan, 862 N.E.2d at 676. Instead, we consider each motion separately

to determine whether the moving party is entitled to judgment as a matter of law. Id.


                                              14
                  Indiana Surface Mining Control and Reclamation Act

       The United States Congress has acknowledged that coal mining operations contribute

significantly to the energy requirements of the United States, and that surface coal mining is

an appropriate method of obtaining the natural resource. Natural Resources Comm’n of Ind.

v. AMAX Coal Co., 638 N.E.2d 418, 419 (Ind. 1994). However, recognizing the negative

environmental impacts and the public health and safety hazards associated with surface

mining operations, Congress adopted the federal Surface Mining Control and Reclamation

Act of 1977. Id. Indiana’s counterpart to F-SMCRA, the Indiana Surface Mining Control

and Reclamation Act (I-SMCRA), similarly recognizes the need to protect society and the

environment and assure the rights of surface land owners and others by preventing and

minimizing the adverse effects of surface mining operations. Id.

       I-SMCRA is codified at Indiana Code Article 14-34. Pursuant to I-SMCRA, a person

may not open, develop, or operate a new or previously mined or abandoned site for surface

coal mining in Indiana without holding a valid surface coal mining and reclamation permit.

I.C. § 14-34-3-1. The permit application must contain, among other things, a reclamation

plan. I.C. § 14-34-3-3(17). Each reclamation plan must include a proposed use of the land

following reclamation, and a description of the various steps necessary to achieve that

proposed use. I.C. § 14-34-3-12.

       After the mining and reclamation permit is approved but before it is issued, the

applicant must file a bond for performance payable to the state and conditional upon faithful

performance of all the requirements of the Indiana Code and the permit. I.C. § 14-34-6-1. In


                                             15
order to secure release of the bond, the operator must notify certain parties, including

adjoining property owners, and run a public notice advertising that the operator has applied

for release of the bond. I.C. § 14-34-6-7. Within thirty days of receipt of a bond release

application, the DNR must conduct an inspection and evaluation of the reclamation work

involved. I.C. § 14-34-6-9. That evaluation must include:

       (1) The degree of difficulty to complete a remaining reclamation.
       (2) Whether pollution of surface and subsurface water is occurring.
       (3) The probability of continuance or future occurrence of the pollution.
       (4) The estimated cost of abating the pollution.

Id.

       A person with a legal interest affected by the bond may file written objections and

request a public hearing within thirty days. I.C. § 14-34-6-10. If the DNR is satisfied that

the reclamation covered by the bond has been accomplished, then it may release the bond in

three phases. I.C. § 14-34-6-13. Sixty percent of the bond may be released in phase I when

the permittee completes backfilling, regrading, and drainage control in accordance with the

reclamation plan. I.C. § 14-34-6-13. After revegetation has occurred, the director may

release phase II of the bond. The final portion of the bond, phase III, may only be released

when the permittee has “successfully completed all surface coal mining activities” and “all

reclamation requirements of [I-SMCRA] are fully met.” I.C. § 14-34-6-13. One of these

duties is to ensure that:

       All debris, acid-forming materials, toxic materials, or materials constituting
       a fire hazard are treated, buried, and compacted or otherwise disposed of in
       a manner designed to prevent contamination of ground or surface water.

I.C. § 14-34-10-2(b)(17)(a).

                                             16
       Another requirement is to:

       Minimize disturbances to the prevailing hydrologic balance at the mine site
       and associated offsite areas and to the quality and quantity of water in surface
       and ground water systems during and after surface coal mining and
       reclamation operations by doing the following:

              (A) avoiding acid or other toxic mine drainage by measures such as
              the following:

                     (i)   Preventing or removing water from contact with toxic-
                     producing deposits.

                     (ii)   Treating drainage to reduce toxic content that adversely
                     affects downstream water upon being released to watercourses.

                     (iii) Casing, sealing, or otherwise managing boreholes, shafts,
                     and wells and keep acid or other toxic drainage from entering
                     ground and surface water.

I.C. § 14-34-10-2(b)(13).

                                     Phase III Release

       The parties dispute the meaning of several of I-SMCRA’s reclamation terms,

specifically, the “pollution” the DNR must evaluate, I.C. § 14-34-6-9, the “toxic materials”

of which SCCC must properly dispose, I.C. § 14-34-10-2(b)(17), and the “toxic mine

drainage” that SCCC must avoid, I.C. § 14-34-10-2(b)(13). Musgrave argues that these

terms do not have causal requirements, and therefore any material that could reasonably fall

within the meanings of the words—in this case Alcoa’s waste—must be evaluated by the

DNR and remediated by SCCC, regardless of whether SCCC caused the pollution or not.

SCCC and the DNR maintain that Alcoa’s hazardous waste and any migration thereof falls

within IDEM’s jurisdiction.

                                             17
        Words and phrases in Indiana statutes shall be taken in their plain, ordinary, or usual

sense, unless the construction is plainly repugnant to the intent of the legislature or of the

context of the statute. I.C. § 1-1-4-1. However, an interpretation of a statute by an

administrative agency charged with the duty of enforcing the statute is entitled to great

weight, unless this interpretation would be inconsistent with the statute itself. LTV Steel Co.,

730 N.E.2d at 1257. But an administrative agency does not have the power to make

decisions properly committed to another agency. Id. An administrative agency has only

those powers that the legislature has conferred to it, and unless we find the grant of powers

and authority in the statute, we conclude that no power exists. Id.

        The Commission6 and Musgrave broadly interpret the DNR’s requirement to evaluate

pollution and toxic waste so as to include Alcoa’s hazardous waste and the effect that

SCCC’s mining had thereon, but we think that this reading is in excess of DNR’s powers,

and is therefore unreasonable. The Indiana General Assembly has given IDEM, not the

DNR, the duty to “regulate and require the proper and safe transportation, treatment, storage,

and disposal of hazardous waste that is generated in or transported into Indiana.” I.C. § 13-

22-2-1. IDEM is also designated as the state agency to implement and enforce federal laws

concerning hazardous waste. For example, IDEM is the solid waste agency for all purposes

of the federal Resource Conservation and Recovery Act and is the agency tasked with

implementing and enforcing the federal Comprehensive Environmental Response,

6
  Although the DNR supervises the administration and enforcement of I-SMCRA, I.C. § 14-34-2-3, the
Commission is the “final authority” for the agency under AOPA except in consolidated proceedings with the
Office of Environmental Adjudication and proceedings concerning the approval or disapproval, suspension, or
revocation of a surface mining permit (but not reclamation bonds). I.C. § 14-34-2-2.

                                                   18
Compensation, and Liability Act of 1980 (CERCLA). I.C. § 13-13-5-1. Alcoa coordinated

its dumping of hazardous waste with IDEM’s predecessor. IDEM continues to work with

Alcoa on monitoring the hazardous waste and the potential migration of water with waste

constituents.

       We therefore conclude that the DNR’s duty under I-SMCRA to evaluate “pollution”

and SCCC’s obligation to properly dispose of “toxic materials” refers to those materials that

result from surface mining. As for “toxic mine drainage”, the term is defined in the Indiana

Administrative Code as “water that is discharged from active or abandoned mines or other

areas affected by coal exploration or surface coal mining and reclamation operations that

contains a substance that through chemical action or physical effects is likely to kill, injure,

or impair biota commonly present in the area that might be exposed to the substance.” 312

IAC § 25-1-155. By its very name and definition, then, toxic mine drainage means water

discharged as a result of mining operations. It does not include Alcoa’s waste, which was

dumped before SCCC started mining the bonded area at issue here.

       The DNR determined that SCCC had completed all the necessary requirements for the

phase III release on certain portions of the land. Before reaching this conclusion, the DNR

held a public hearing and conducted a field investigation. The field investigation included an

evaluation of the hydrological balance and confirmed that the surface water, ground water,

and water impoundments were all acceptable. The report also concluded, among other

things, that acceptable practices to control and minimize water pollution were implemented,

pollution of ground water by drainage from acid and toxic-forming materials was avoided,


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and the quality of impounded water is suitable for use. The quality in the bonded area had a

pH level of between 6.5 and 7, and traces of metals were negligible.

       The DNR therefore fully investigated whether pollution or other toxic materials

resulting from mining were occurring or will occur in the future. If it is determined in the

future that SCCC’s mining spoil within the bonded area or elsewhere is indeed causing the

spread of groundwater containing waste constituents, it will be the responsibility of IDEM—

the agency tasked with such waste and its migration—to investigate and, if necessary, hold

those responsible for remediation of damage. Insofar as the reclamation requirements of I-

SMCRA are concerned, however, there is no genuine issue of material fact that they have

been satisfied.

                   Indiana Administrative Code and Reclamation Plan

       Musgrave also argues that SCCC’s bond release was premature because it has not

satisfied all the requirements of the Indiana Administrative Code.           Pursuant to the

Administrative Code, the DNR may release phase III of a surface mining reclamation bond

only after the “operator has successfully completed all surface coal mining and reclamation

activities required in IC 14-34, this article, or the permit.” 312 IAC § 25-5-16 (emphasis

supplied). According to Musgrave, the bond release is premature because:

       Surface mining activities shall be planned and conducted to minimize changes
       to the prevailing hydrologic balance in both the permit area and adjacent areas,
       to prevent material damage to the hydrologic balance outside the permit area,
       in order to prevent long term adverse changes in that balance which could
       result from those activities.

312 IAC § 25-6-12.


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       We are doubtful that the above rule is a reclamation requirement, as it only refers to

planning and conducting activities. Even so, the Indiana Administrative Code requires that

the operator satisfy the requirements of Indiana Code article 14-34, the Indiana

Administrative Code, or the permit. 312 IAC § 2-5-16. As we have already discussed,

SCCC met the reclamation requirements of Indiana Code article 14-34 and, as such, release

of phase III is in compliance with the Indiana Administrative Code.

       Finally, Musgrave contends that SCCC has not met all the requirements of its own

reclamation plan. SCCC’s plan states that “[i]n general non-coal waste will be hauled away

from the mine by contract trash haulers” and that “[a]ny non-coal waste which remains after

reclamation of the final pit will also be removed from the permit area for disposal.” App.

827. “Non-coal wastes” include grease, lubricants, paints, flammable liquids, garbage,

abandoned mining machinery, lumber, and other combustibles generated during surface

mining activities.” 312 IAC § 25-6-42. The definition of non-coal wastes clearly refers to

wastes that were generated during surface mining activities. SCCC began mining the bonded

area here after Alcoa finished dumping its waste, and we cannot agree with Musgrave that

the reclamation plan’s reference to non-coal wastes includes Alcoa’s hazardous waste.

Musgrave presents no error concerning SCCC’s failure to comply with its reclamation plan.

                                         Conclusion

       The trial court had jurisdiction to consider SCCC’s petition for judicial review and did

not err by refusing to dismiss it. Musgrave is not collaterally estopped from challenging the

DNR’s decision to release the bond on Permit S-008 because the jurisdictional issue


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regarding Alcoa’s hazardous wastes was not necessarily adjudicated in the prior proceeding.

There is no genuine issue of material fact that SCCC met the phase III release requirements

of I-SMCRA. SCCC has also satisfied the requirements of the Indiana Administrative Code

and its own permit. The trial court’s order reversing the ALJ’s order and remanding for entry

of judgment in favor of SCCC and the DNR is affirmed.

       Affirmed.

BAKER, J., and DARDEN, J., concur.




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