[CITE: Peabody Coal Company v. DNR, 2 CADDNAR 28 (1985)]
[VOLUME 2, PAGE 28]
Cause #: 84-171R
Caption: Peabody Coal Company
v. DNR
Administrative Law Judge: Shadley
Attorneys: Joest; Wahnsiedler, DAG
Date: August 28, 1985
ORDER
Notice
of Violation #N40725-S-00016 is vacated.
FINDINGS OF FACT
The
provisions of the Administrative Adjudication Act (IC 4-22-1 govern this action.
2.
The Department of Natural Resources is an agency the term is defined in IC
4-22-1. The Director of the Department (hereinafter "Director") is
the ultimate authority with respect to enforcement of the Surface Coal Mining
and Reclamation Act (IC 13-4.1)
3.
The Surface Coal Mining and Reclamation Act is applicable to the subject matter
of this action.
4.
The Director has jurisdiction over both the subject matter and parties to this
action.
5.
The parties stipulated to rendering a determination in this cause based on the
record formed at the Temporary Relief hearing.
6. Pursuant
to IC 4-22-1 Notice of the Temporary Relief Hearing and service was made upon:
David R. Joest, Attorney, Peabody Coal Company, 1314 Burch Drive, PO Box 4331, Evansville,
Indiana 47711; Charlotte Kinderman, Vermillion County
Recorder, Courthouse, Newport, Indiana 47966; Myra Spicker,
Deputy Attorney General, 309 West Washington Street, Suite 201, Indianapolis,
Indiana 46204.
7.
On July 25, 1984, Notice of Violation #N40725-S-00016 was issued by Eric Gerst, an authorized representative of the Director to Peabody
Coal Company (hereinafter "Peabody").
8.
On August 6, 1984, pursuant to IC 13-4.1-411-8, Peabody requested review of
Notice of Violation #N40725-S-00016.
9.
Notice of Violation #N40725-S-00016 cited Peabody for failure to prepare and
publish a revised blasting schedule before blasting in areas not previously
described in the schedule, in violation of 310 IAC 12-5-35(c) (1) and 310 IAC
12-3-4 condition of permit.
10.
The location of the violation was identified as the Peabody Universal Mine,
Blanford East area, at the extreme northern and southern portions of the blasting
area.
11.
310 IAC 12-5-35 (1), as it existed on July 25, 1984, provided that before
blasting in areas not in a previous schedule, the person who conducts the
surface mining activities shall prepare a revised blasting schedule according
to the procedures in paragraphs (a) and (b).
12.
310 IAC 12-5-35(a), as it existed on July 25, 1984, required each person who
conducts surface mining publish a blasting schedule, at least 10 days but not
more than 25 days before beginning blasting, in a newspaper of general
circulation in the locality of the blasting area, and required the person to
republish and redistribute the schedule at least every 12 months.
13.
310 IAC 12-5-35(b), as it existed on July 25, 1984, provided that the blasting
schedule should not be so general as to cover the entire permit area and should
identify as accurately as possible the location of the blasting sites. Further,
it required the blasting schedule include an identification of the specific
areas in which blasting would take place and provided that each specific
blasting area described be reasonably compact and not larger than 300 acres.
14.
Peabody did publish a blasting schedule for their Universal Mine, Blanford East
area, for blasting commencing on October 2, 1983.
15.
Peabody intended this schedule to cover all blasting conducted between October
2, 1983 and October 1, 1984.
16. The
blasting schedule published by Peabody identified the area of blasting by
listing the State, County, Latitude, Longitude, Township, Range, Section and
Meridian of the center of blasting area and provided the perimeter of the
blasting area would be
[VOLUME 2, PAGE 29]
marked with signs and encompass the
area for 1500 feet easterly and westerly and 9400 feet northerly and southerly
from the above defined center.
17.
Inspector Gerst testified that he plotted the center
as described and drew a rectangle by measuring 4700 feet directly north and
south from the center and 750 feet directly east and west from the center and
determined that approximately 4.2 acres on the northern boundary and 2 acres on
the southern boundary were not within the plotted rectangle. Those acres would
constitute approximately 2.8% of the described blasting area.
18.
Bradley Stearley, Engineer for Peabody, testified
that the description in the blasting schedule was an engineering description of
an irregularly shaped area where the described center of the blasting area was
actually the centroid or the area where all areas
around are equally influenced and the 9400 feet is the maximum length, which
runs generally easterly and westerly.
19.
Using Peabody's interpretation of the description of the blasting area, the
northern and southern most areas of the blasting area were contained in the
October 2, 1983 blasting schedule.
20.
Peabody's description of the blasting area was subject to different
interpretations.[FOOTNOTE i]
21. Peabody
did not describe the area in terms of a rectangle because that description
would have exceeded 300 acres.
22.
If Peabody had described the blasting area as a rectangle it would have included
areas where no blasting was to occur.
23.
Peabody's engineering description of the blasting area was a more accurate
description of the blasting area than a rectangular description would have been.[FOOTNOTE ii].
24.
Peabody did publish a blasting schedule which described as accurately as
possible the location of the blasting sites.
25.
Peabody did not blast in areas not previously described in a blasting schedule.
26.
No testimony was given to explain what 310 IAC 12-3-4, condition or permit,
required.
27.
The Respondent did not prove a violation of 310 IAC 12-3-4, condition of permit
occurred.
FOOTNOTES:
i.
Although this description was subject to varying interpretations, Peabody
testified that all persons within one-half mile of the actual blasting area,
which included the northern most and southern most area of concern to the
Division of Reclamation, received the certified mail notice of blasting, as
required by 310 IAC 12-5-35.
ii. Peabody's engineer testified that this type description was more accurate
than a rectangular