[NOTE: PEABODY TOOK JUDICIAL REVIEW IN VERMILLION CIRCUIT COURT CAUSE NO. 83C0l-9007-CP-0067. TRIAL COURT AFFIRMED ALJ. PEABODY TOOK AN APPEAL IN CAUSE NO. 83A01-9103-CV-76. COURT OF APPEALS REVERSED TRIAL COURT. SEE Peabody Coal Company v. Ralston, 578 N.E.2d 751 (Ind.App., 1991).]
Notices of violation #N80627-S-00113 and #N81115-S-00113 are affirmed.
FINDINGS OF FACT
1. On July 18, 1988, Peabody Coal Company (Peabody) requested a review of the issuance of Notice of Violation (NOV) #N80627-S-00113 which cited two blasts dated May 31, 1988 and June 2, 1988. This request was assigned Administrative Cause (AC) No. 88-220R.
2. On November 28, 1988, Peabody requested review of the issuance of NOV #N81115-S-00113 which cited a blast on July 18, 1988. This request was assigned AC No. 88-289R.
3. At the prehearing conference Shirley Zell was granted status as Respondent Intervenor; and AC No. 88-220R and 88-289R were consolidated for hearing.
4. A hearing was held on May 30, 1989, and a Report, Proposed Findings of Fact and Recommended Order was signed by the administrative law judge on September 6, 1989.
5. On October 2, 1989, this case was remanded by the Director to the administrative law judge with an order to reopen the hearing to allow the Claimant to offer the testimony of Mr. Stan Preskitt.
6. On November 27, 1989, Shirley Zell withdrew her intervention in this case.
7. After numerous continuances, the remand hearing was held on May 1, 1990.
8. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12-5 apply to this proceeding.
9. The Department of Natural Resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The Director is the ultimate authority for the Department with respect to this proceeding.
10. Peabody holds permit S-00113 to conduct surface coal mining operations in Vermillion County at its Universal Mine Blanford West Pit.
11. This case deals with alleged violations by Peabody of blasting performance standards dealing with airblasts contained in 310 IAC 12-5-36.
12. The performance standards for the blasts in question were airblast not to exceed 129 db.
13. Richard Montgomery, an authorized Representative of the Director, issued all NOV included in this section.
14. NOV #N80627-S-00013 was issued on June 27, 1988, for blasts with dates and readings as follows: May 31, 1988 - 130db (Albrecht residence) and June 2, 1988 - 135db (Peabody machine in Blanford).
15. NOV #N81115-S-00113 was issued on November 15, 1988, for a blast on July 18, 1988, which measured an airblast reading of 13ldb at the Albrecht residence.
16. Motion for Summary Judgment was granted against Peabody on April 25, 1989 in regard to the June 2, 1988 blast.
17. This Motion was made by the Department and not contested by Peabody.
18. Motions for Summary judgment made by all parties in regard to the other two blasts were denied because questions of material fact were in dispute.
19. At the request of the parties, the administrative law judge takes judicial notice of the affidavits filed with the various motions made in this case. This notice is for the limited purpose of establishing assertions not conclusive facts.
20. The Claimant stipulates to the authenticity of the airblast readings in question but not to their accuracy.
21. The parties stipulate that the wind speed was eight m.p.h. on May 31, 1988 and five m.p.h. on July 18, 1988.
22. The Claimant's issue is that the monitoring was not properly conducted in regard to the microphone which transmitted the airblast readings to the seismograph.
23. The Claimant makes three arguments: that the absence of a windscreen from the microphone invalidates the readings; that the plastic cover placed over the microphone
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invalidates the readings; and that the placement of the microphone was close enough to the building to substantially increase the readings.
24. The parties and the administrative law judge agree that the standard to be applied here is whether the airblast readings are reliable enough to be the basis for a Notice of Violation.
25. It is not enough to show that a testing procedure was not followed exactly but, rather, the challenger must show that the modified procedure rendered the test results unreliable.[FOOTNOTE 1]
26. The claimant maintains that any one of this challenges in regard to the microphone render the airblast data unreliable as prescribed in Ponds.
27. However, a close examination of the sometimes conflicting expert testimony does not support the Claimant's contention on any of the three arguments.
28. The Claimant has made a valid point: desirable procedure is that windscreens should be placed on microphones used to monitor airblasts.
29. However, if the Claimant is to discredit the airblast readings in question he must, according to Ponds, also establish how the absence of the windscreen renders the readings unreliable.
30. The Claimant has stipulated that the wind velocity was five and eight m.p.h. respectively on the days the airblast readings were taken.
31. There is no evidence to indicate that winds of that magnitude would have any significant effect upon airblast readings of 130db or over.
32. At the remand hearing, Mr. Stan Preskitt opined that he would not rely on any reading taken by a microphone without a wind screen.
33. However, Mr. Preskitt did not offer any direct evidence to repudiate other testimony and evidence that indicated a five to eight mph wind would not significantly effect the blast readings in question.
34. Mr. Preskitt honed in on the already established fact that wind screens should be used on the microphones.
35. As already stated, Ponds requires a showing of the unreliability of the test results gathered by the modified procedure.
36. The weight of the evidence is that wind velocity would have to be much greater than that stipulated in order to render unreliable the readings used here.
37. In regard to the plastic cover over the microphone, the evidence conflicts but it indicates that such plastic cover would only affect an airblast reading if it was not tightly installed.
38. Testimony of the on-site Department people involved with the seismograph was that the cover was tightly installed.
39. The Claimant attempts to discredit this testimony by pointing out that the mine inspector is not a blasting expert.
40. One need not be a blasting expert to be qualified to determine whether a plastic cover is tightly installed. This type of observation would qualify as an application of experience and common sense.
41. As to the placement of the seismograph, evidence shows that it is desirable but not mandatory that it be placed at least five feet away from any structure.
42. Again, the Claimant must discredit the reliability of these readings by showing the placement of the seismograph in relation to the structure probably caused the airblast readings to be higher than the effect of the actual blast.
43. Evidence shows that the seismograph was placed at the corner of the structure with the blasting area generally in line with the microphone and the corner.
44. It is obvious that the configuration mentioned above would allow for little or no deflection of airblast from the structure to the microphone.
45. The Department presented a strong prima facie case as to the procedures followed and their effect upon the reliability of the airblast readings in question.
46. Peabody Coal Company's evidence was not strong enough to rebut this prima facie case so as to render the airblast readings unreliable as required by Ponds.
FOOTNOTE
1. Electric Co. v. Ponds, 426 N.E.2d 45, 50 (Ind. App. 1981).