ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
JEFFREY A. MODISETT MARY M. RUNNELLS
Attorney General of Indiana Bloomington, Indiana
MYRA P. SPICKER
Deputy Attorney General
Deputy Attorney General
INDIANA DEPARTMENT OF NATURAL ) RESOURCES, ) ) Appellant-Respondent, ) ) vs. ) No. 63A05-9708-CV-346 ) SOLAR SOURCES, INC., ) ) Appellee-Petitioner. )
(2) the bases for the establishment of the proposed ground vibration and
(3) the methods to be applied to control the adverse effects of blasting
(4) description of the blasting warnings and site access control equipment
and procedures to be used; and
310 IAC 12-3-43. The regulations promulgated under SMCRA also set forth three methods
by which an operator may prove compliance with ground vibration limits: (1) the scaled
distance equation, (2) the maximum peak particle-velocity limits, or (3) the blasting level
chart. 310 IAC 12-5-36(h). A blast may or may not violate ground vibration limits
depending on which method is utilized. For example a blast that would violate the blasting
chart would not violate the peak particle-velocity limits and vice versa.
For a number of years the permits under which Solar operated contained language that allowed Solar to decide which of the three blasting limits would apply after the blast and after the seismographic data from the blast has been received.See footnote 2 On August 23, 1994, the Director of the Reclamation Division of DNR sent a letter to Solar directing the company to submit a nonspecific revision for each of its permits. More specifically Solar was directed to revise the permits to identify which of the three methods would be used to prove compliance with ground vibration limits when seismic monitoring occurs. According to the letter "the intent of 310 IAC 12-5-36(h) is to allow the permittee to choose which one of the three methods will be used to prove compliance with ground vibration limits. It is not intended for the permittee to use whichever method happens to meet the compliance needs at the time." R. at 321(emphasis in the original). Thereafter Solar requested a Special Status
DNR's response was adverse to Solar's position. In part DNR determined
"[w]hile all options in the regulations are designed to prevent damage, the permittee must
determine prior to blasting, how compliance with ground vibrations will be met and at which
times the different options will be employed. . . . Solar's choice of a method in
demonstrating compliance after the blast has occurred is contrary to the intent of both
Federal and Indiana SMCRA." R. at 151 (emphasis in the original). Solar then sought
administrative review. An Administrative Law Judge (ALJ) affirmed DNR's Special Status
Determination. Thereafter Solar sought judicial review. After conducting a hearing the trial
court entered an order setting aside the ALJ's decision on grounds that the decision was
arbitrary, capricious, and contrary to law. This appeal followed.
Upon judicial review of an administrative decision the trial court is limited to determining whether the agency action is:
(1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) Contrary to constitutional right, power, privilege, or immunity;
(3) In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
can make the decision post-blast. DNR is correct. However in this case it has chosen the
incorrect method of insisting on the pre-blast determination.
In part, the purpose of Indiana's SMCRA is to implement and enforce the federal Surface Mining Control and Reclamation Act of 1977. Ind. Code § 14-34-1-3. In so doing DNR may not adopt a rule that is more stringent than corresponding provisions under the federal Act. Ind. Code § 14-34-1-4. The federal counterparts to 310 IAC 12-3-43 and 310 IAC 12-5-36(h) are found at 30 CFR § 780.13 (1998) and 30 CFR § 816.67 (1998) respectively. In both the federal and state rules there is a distinction between a "blasting plan" and a "blast design." Blasting plans, which must be submitted with each application for a permitSee footnote 4 "outline the procedures the operator intends to follow in conducting blasting operations." 48 Fed. Reg. 9,788, 9,789 (1983). In the blasting plan the operator must demonstrate how it will achieve applicable performance standards, and include information concerning applicable ground vibration and airblast limits and justify the use of these limits. Id. "The blasting plan must show the general approach to all blasts" and how all performance standards will be met. Id. at 9,790 (emphasis added). On the other hand a blast design is more detailed and is blast specific. Although blasting plans must be included in the permit application, there is no such requirement for a blast design. Indeed 310 IAC 12-5-33
(e)(2) provides "[t]he blast design may be presented as part of a permit application or at a
time, prior to the blast, approved by the director."
The Office of Surface Mining Reclamation and Enforcement (OSM)See footnote 5 specifically rejected the suggestion that blast designs be required in all blasting plans.
Such detail is unnecessary to assure safe blasting and is unnecessary for the regulatory authority to determine that the blasting will be conducted in accordance with the performance standards. It would be difficult or impossible to require and review blast design for every blast which will occur. Some conditions are unknown at the time of permitting, and operators need flexibility to design blasts for conditions as they are encountered. . . . OSM does not believe that submission of detailed designs is necessary in the permit application to assure safe blasting in accordance with the performance standards.
48 Fed. Reg. at 9,789-90 (emphasis added). Our reading of the applicable federal regulations discloses that an operator need not include in its permit a blasting plan that identifies which one of the three approved methods the operator intends to use in order to prove compliance with ground vibration limits. By interpreting 310 IAC 12-3-43 and 310 IAC 12-5-36 as requiring Solar to revise its permits to include such information, DNR adopted a rule more stringent than corresponding federal regulations. In short, DNR misconstrued the regulations that it is charged with enforcing. DNR's action was thus arbitrary and capricious and the trial court properly set aside the ALJ's decision. See, Peabody Coal, 606 N.E.2d at 1308. However, contrary to Solar's contention nothing in the regulations prohibits DNR from requiring an operator to include in its blast design a description of the precise method the operator will use to prove compliance with ground vibration limits. We here determine only
that such specificity is not required at the time of permitting. Thus Solar was not required
to revise its permits as DNR requested.
SHARPNACK, C.J., and DARDEN, J., concur.
A person may, in writing, request the department to interpret a statute or rule administered by the department as applicable to a specific factual circumstance. . . . The director [or ] the director's delegate . . . may, within forty-five (45) days, provide a written response to the request. The response may set forth an interpretation based upon the information provided in the request or may specify additional information needed to respond to the request.
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