concurring.
Several important propositions are inextricably bound to this case which deserve special mention.
First, special findings by administrative tribunals serve important and salutory goals, including: (1) restraining agency discretion to lawful channels; (2) advising the person dealing with the agency of the grounds for denying governmental license or benefit; and (3) facilitating court review, avoiding encroachment by the courts upon legitimate agency action. See Carlton v. Board of Zoning Appeals (1969), 252 Ind. 56, 245 N.E.2d 337. I am in accord with the oversight of the process provided in the majority opinion.
Second, the administrative law judge, in this instance, was not the ultimate authority. Therefore, his findings and order issued pursuant to Ind.Code § 4-21.5-3-27 were tentative and not final or binding upon the Natural Resources Commission (NRC), the ultimate authority. United Refuse Company, Inc. (“United Refuse”) filed objections pursuant to I.C. § 4-21.5-3-29, in part objecting to the review standard employed by the administrative law judge. Pursuant to I.C. § 4-21.5-3-28, the NRC then conducted a third administrative proceeding and affirmed the decision to deny the permit, thereby incorporating the findings of the administrative law judge by reference. It is this order, and not the tentative findings and order of the AU, that constitutes the final agency action subject to judicial review in this case.
Pursuant to I.C. § 4-21.5-3-28(g)(2), the NRC was authorized in this third administrative proceeding to reject or modify the findings of the administrative law judge, and make its own findings “meeting the standards of section 27.” Accordingly, the error in applying an appellate review standard, identified in the majority opinion, is that of the NRC and not the administrative law judge. Upon such error of the NRC, I too would order the final agency action set aside.
Third, the statute provides the standard to be applied by the administrative law judge and the NRC in administrative review proceedings as follows:
(b) The order must include, separately stated, findings of fact for all aspects of the order,.... Findings of ultimate fact must be accompanied by a concise statement of the underlying basic facts of record to support the findings....
(c) Findings must be based exclusively upon the evidence of record in the proceeding and on matters officially noticed in that proceeding. Findings must be based upon the kind of evidence that is substantial and reliable. The administrative law judge’s experience, technical competence, and specialized knowledge may be used in evaluating evidence.
I.C. § 4-21.5-3-27(b) and (c). This standard makes the distinction between “ultimate facts” and “basic facts of record.” I would consider the differences between such facts to be that the one is general and more abstract, and the other is more specific and particular. The standard also calls for deference to be granted the findings. When the findings are those of the NRC, I regard such deference to be due from the courts when affording judicial review.
Fourth, it is important that courts view administrative findings as distinct from judicial findings. Administrative findings are often made by persons without a legal background. If the requirements for administrative findings becomes too formal or too restraining, legitimate administrative action may be frustrated.
Fifth, it is useful to observe that the tentative findings of the administrative law judge are against the party having the burden of proof in the hearing before him. When the findings of a tribunal are against the party having the burden of proof, as they are in this case, special problems in expression are presented. They only need be sufficient to communicate the basis for the negative decision. Some of the problem here stems from this source.
Finally, it is important that United Refuse has made no claim that the plenary adjudicatory hearing, conducted by the administrative law judge, was in any way *106defective. United Refuse was granted a full and fair opportunity to present its case for issuance of the permit. Since the integrity of the hearing and the record of the hearing stand unimpinged, a proper alternative to the remand chosen in the majority opinion would be to remand the case to the trial court to order the final agency action set aside, and the correct standard applied by the NRC without reopening the hearing for further evidence.
DICKSON, J., concurs.