[CITE: Amax v. DNR, Division of Reclamation, 5
CADDNART 127 (1990)]
[VOLUME 5, PAGE 127]
Note: Page number was
corrected in May 2012 from “127A” to “127”.
Cause #:89-238R
Caption: Amax v. DNR,
Division of Reclamation
Administrative Law Judge: Teeguarden
Attorneys: Blanton; Law
Date: November 26, 1990
ORDER
[NOTE: THE DECISION OF THE
ADMINISTRATIVE LAW JUDGE WAS REVERSED BY THE COMMISSION AND THE FOLLOWING ENTRY
WAS ADOPTED. SUBSEQUENTLY, THE NRC WAS REVERSED ON JUDICIAL REVIEW (AND THE
DECISION OF THE ALJ EFFECTIVELY REINSTATED). THE DECISION OF THE MARION SUPERIOR
COURT IS SET FORTH BELOW.]
Notice
of Violation N91026-S-0004 is affirmed.
FINDINGS OF FACT
1.
Indiana Code 13-4.1-11-1 requires that the permittee
allow the director or his authorized representative to have access to or copy
any records and to require the permittee to provide
such other information relative to surface coal mining and reclamation
operations as the regulatory authority deems reasonable and necessary.
2.
Because of numerous complaints at Amax's Ayrshire
mine, the Division of Reclamation deemed it reasonable and necessary for Amax
to provide airblast records it had obtained.
3.
Indiana Administrative Code 310 IAC 12-5-38 requires that a record of each
blast, including seismograph records when obtained, shall be retained by the permittee for at least three years and shall be made
available for inspection by the director and the public on request. IAC 310
12-5-38 (p) clarifies that the seismograph records that are to be provided
include airblast records.
4.
Pursuant to a request, an authorized representative of the director was not
provided airblast information that Amax had obtained.
5.
Amax Coal Company was required to make available the airblast
records that it had obtained from its seismographs pursuant to Indiana Code
13-4.1-11-1 and 310 IAC 12-5-38.
6.
Amax's refusal to provide the airblast records upon
request and when obtained was a violation of both 310 IAC 12-538(p) and Indiana
Code 13-4.1-11-1.
________________________________________________________________________________
[NOTE: CADDNAR citation does not apply to the Marion Superior Court
entry.]
MARION SUPERIOR COURT NO.
7 (CAUSE NO. 49D07-9011-CP-1715)
September 3, 1992
FINDINGS OF FACT
1.
The following material facts are undisputed.
2.
On October 26, 1989 an authorized representative of the Department of Natural
Resources ("DNR") issued Notice of Violation No. N9102-S-00004
("NOV") to Amax, by which DNR alleged that Amax had violated 310 IAC
12-5-38(p) for failing to "make available for inspection by the Director
and the public on request, seismograph and air blast records when
obtained" at Amax's Ayrshire Mine. The terms of
the NOV required Amax to provide for public inspection records of all airblasts measurements from all seismographs it operated to
monitor blasting on specific dates. The NOV was subsequently modified to
include all of 310 IAC 12-5-38 as being the regulation that Amax allegedly
violated.
3.
Amax timely sought administrative review by the Natural Resources Commission
("Commission") of DNR's issuance of the NOV. In those proceedings,
Amax sought and obtained temporary relief from an administrative law judge.
Then, upon consideration of the parties' crossmotions
for summary judgment, another administrative law judge recommended that the NOV
be withdrawn. However, the Commission rejected that recommendation and affirmed
the propriety of the issuance of the NOV.
4.
Amax then timely petitioned this Court for judicial review of the agency
actions below.
5.
On July 10, 1991, this Court granted Amax temporary relief, by which the NOV
was stayed, Respondents were restrained from acting on the NOV pending
resolution of these proceedings, and DNR was directed to file with the Court
under seal the original and all copies of the data which Amax had provided to
DNR under seal on November 13, 1989.
6.
The dispositive issue to be decided by the Court is whether the determination
by the Commission that Amax has violated 310 IAC 12-538 is supported by substantial
evidence when the entire record is considered, arbitrary, capricious, and
contrary to law.
7.
310 IAC 12-3-43 requires that each application for a surface mining permit
include a "description of the procedures for recording and retention of
the information, required by 310 IAC 12-5-38 [, which sets forth information
that must be included in the 'record of each blast']".
8.
310 IAC 12-5-38 requires that Amax record certain information for review so
that a determination can be made as to whether or not the performance standards
of 310 IAC 12-5-36 have been satisfied as to each blast.
9.
Amax's permit specifically states how Amax must demonstrate compliance with
performance standards for ground vibration and with performance standards for airblasts and specifically sets forth exactly what data is
to be contained in the "record of each blast" for the Ayrshire Mine.
10.
Amax maintains seismic/air blast monitors which are
not made a part of the "record of each blast".
11.
Amax's designation of which seismic/air blast monitors are to generate data for
the purpose of compliance monitoring was specifically approved by the Director
of DNR as part of his approval of Amax's Ayrshire
Mine permit application.
12.
The NOV purports to require Amax to produce for public inspections data not
required by its permit to be maintained, but which are created and maintained
for Amax's own purposes; and this distinction had been specifically recognized
by the Director prior to the issuance of the NOV.
CONCLUSIONS OF LAW
1.
The airblast data at issue in this proceeding are not
part of the "record of each blast" required to be maintained by 310
IAC 12-5-38; and Amax has provided for inspection of all required data.
2.
Therefore, the NOV is contrary to law; and the Commission and the DNR exceeded
their regulatory authority by ordering Amax to produce the data at issue.
3.
Based upon the undisputed facts, Amax is entitled to summary judgment as to all
issues herein as a matter of law.
4.
Consequently, Amax is entitled to the return of all of the materials presently
being maintained by this Court under seal pursuant to its July 10, 1991 Order,
as well as the issuance of a final order permanently restraining Respondents
from acting in any way upon any information contained in the materials
presently being maintained by this Court under seal.
ORDER
NOW, THEREFORE, the Court being duly
advised, IT IS HEREBY ADJUDGED, ORDERED, AND DECREED as follows:
1.
That Amax's Motion for Summary Judgment, filed March 25, 1991, be, and hereby
is, GRANTED;
2.
That Amax's Petition For Judgment Review of Agency Action, filed November 19,
1990, be, and hereby is; GRANTED.
3.
That judgment in Amax's favor and against Respondents
as to all issues herein be, and hereby is; ENTERED.
4.
That Respondents, and each of them, be, and hereby are, PERMANENTLY RESTRAINED
from acting in any way upon any information contained in the materials
submitted to the Court by DNR pursuant to the Court's July 10, 1991 order.
5.
That the Court's staff be, and hereby are, DIRECTED to
immediately return to Amax all materials presently being maintained by the
Court pursuant to its July 10, 1991 order.