CADDNAR


[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.

 

 

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[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.