[CITE: Peabody Coal Company v. Department of Natural Resources, 5 CADDNAR 203 (1992)]
Cause #: 89-126R
Caption: Peabody Coal Company v. Department of Natural Resources
Administrative Law Judge: Rider
Attorneys: Joest; Earle
Date: February 3, 1992
ORDER
[NOTE: JUDICIAL REVIEW WAS TAKEN BY DNR TO VIGO CIRCUIT COURT (CAUSE NO. 84D039203MI376). THE COURT DETERMINED THE DNR WAS "NOT AN 'AGGRIEVED PARTY' ... AND NOT ENTITLED TO TAKE JUDICIAL REVIEW OF ITS OWN ORDER."]
Points assessed Peabody Coal Company for Notice of Violation #N81214-S00195 are twenty seven (27). Any penalty assessment for this point total is waived and any assessment paid is ordered refunded.
FINDINGS OF FACT
1. On July 10, 1989, the Peabody Coal Company filed a petition for administrative review (the "petition") of assessment of Civil Penalty (CPA) for Notice of Violation (NOV) N81214-S-00195.
2. At the time the NOV was written Peabody held permit S-00195 which allowed it to mine coal at its Universal Area 15 mine.
3. IC 4-21.5, IC 13-4.1 and 310 IAC 12 apply to this proceeding.
4. The department of natural resources (DNR) is an agency as defined in IC 4-21.5.
5. In the case of enforcement actions in which a request for administrative review is brought, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
6. On December 14, 1988, an authorized representative of the DNR issued the NOV to Peabody for exceeding authorized ground vibration limits.
7. Peabody did not contest the violation.
8. Subsequently, a penalty under 310 IAC 12-6-12.5 was assessed in the amount of $1,200, which was tendered with the petition.
9. A telephonic assessment conference was held on February 27, 1989, and later, Peabody provided to the DNR additional information.
10. Before or on June 6, 1989, the DNR employee responsible for assessments (the "assessor") reviewed his calculation and decided no reduction was indicated.
11. Peabody contended in its petition that the DNR was in error on its points assessment in the negligence area (12 pts were assessed).
12. The blast in question was shot on November 9, 1988 and recorded a measured ground vibration peak particle velocity (ppv) of 1.44 inches per second (ips) at a distance of approximately 1,049 feet from the blast.
13. 310 IAC 12-5-36 limits ppv to 1.25 ips under any circumstances and 1.00 ips between 301 and 5000 feet of the blast.
14. 310 IAC 12-6-12 sets forth the method used to calculate civil penalties for notices of violation. There are a number of different factors, the only one of which at issue here is "negligence". The remaining points assessed for other criteria were not questioned by Peabody.
15. "Negligence" deals with the degree of fault shown by the operator. The following table is used:
None 0
Simple Negligence 1-12
Recklessness 13-19
Knowing or intentional 20-25
16. Peabody does not argue with the finding by the DNR that the negligence category is "simple negligence." Peabody disputes being assessed the maximum points.
17. The amount of negligence points is important because the total points assessed for this violation was 32 (History-3, Seriousness-17, Negligence-12).
18. DNR policy at that time was to waive any penalty assessment where the points totaled 30 or below.
19. The assessor testified that DNR policy was to start at twelve negligence points and move up or down depending on mitigating or aggravating factors involved.
20. This procedure is reasonable and workable if properly applied.
21. In this case proper application was not made. Peabody presented to the assessor and at hearing several factors which should have been used to mitigate culpability.
22. At hearing the assessor made the admission that he lacked expertise in the blasting
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area.
23. In fact, the assessor testified that he "always" gives twelve points for ppv violations.
24. It appears that this lack of expertise made it difficult for the assessor to understand the facts surrounding the NOV and how these facts mitigated Peabody's culpability.
25. The day the violation occurred Peabody fired four blasts.
26. Blasts one, two and four were in compliance.
27. Blast three was in violation and is the subject of the NOV.
28. Peabody was using a special technique called Vibramap LVST (Vibramap).
29. Vibramap is a special technique developed by a company called Vibratech.
30. In Vibramap, a computer develops the best timing sequence for a blast with an eye toward protecting nearby dwellings, etc.
31. Peabody first began to use Vibramap at its Blanford mine in 1987 as a result of many citizen complaints of dwelling damage.
32. Complaints at the Blanford mine dropped dramatically as a result of the use of Vibramap.
33. Vibramap costs greatly exceed costs of blasting in a conventional manner, but Peabody feels the results are worth the cost.
34. As a result of the Blanford mine success Peabody decided to use Vibramap at its Universal Area 15 mine.
35. Blasts one through three had a two row configuration and were substantially similar.
36. Blast four used a three row configuration.
37. All shots were conducted as designed.
38. The blasting personnel were thoroughly familiar with the Vibramap system.
39. No reason can be given with any certainty as to why blasts one, two and four were well within compliance and blast three was not.
40. Vibratech, when queried, advanced the theory that if shot three had been shot as a three row it might have been okay.
41. This theory was only a rough guess on the part of Vibratech and was advanced as one possibility.
42. In his letter of decision dated June 6, 1989 the assessor based his decision not to mitigate as follows: "You admitted the November 9, 1988 blast was fired with a two row pattern as opposed to the designed three row pattern."
43. The assessor felt that a failure to follow the shot design is highly negligent. He is correct.
44. However, he misunderstood the fact that the shot was designed for two rows NOT three rows.
45. The three row theory was advanced after the fact.
46. Shots one and two were configured about the same as three; they were fired in two rows; and they were well within compliance.
47. The three row theory in regard to shot three is not very credible and indeed it appears that Vibratech was "grasping at straws."
48. It is more likely than not that someone was negligent in some manner in regard to shot three.
49. The negligent act has not been identified.
50. In mitigation, Peabody was using a new, expensive technique which is designed to make life easier for all concerned.
51. The shot was fired as designed.
52. Other like shots that day were not in violation.
53. Based on the above, Peabody's negligence would be in the middle simple category and should not rate more than seven points.
54. Peabody's assessment should be revised as follows: History-3 (unchanged), seriousness-17 (unchanged), Negligence-7, and Good Faith-0, for a new total of 27 points.
55. This new total would cause any monetary penalty to be waived (see Finding 18).