Content-Type: text/html 89-239r.v5.html

CADDNAR


[CITE: Amax Coal v. DNR, 5 CADDNAR 83 (1989)]

[VOLUME 5, PAGE 83]

Cause #: 89-239R
Caption: Amax Coal v. DNR
Administrative Law Judge: Rider
Attorneys: Blanton; Spicker, DAG
Date: December 15, 1989

ORDER

Temporary relief is granted to Amax Coal Company in regard to compliance with NOV #N91026-S-00004. This NOV is not required to be abated until the facts of the NOV are adjudicated and the Director, Department of Natural Resources, issues a Final Order. (See 89-238R: Amax v. DNR, Division of Reclamation, 5 CADDNAR 127 (1990).)

FINDINGS OF FACT

1. Notice of Violation (NOV) #N91026-S-00004 was issued to Amax Coal Company (the "Claimant") on October 26, 1989, with a compliance time of 8:00 a.m. November 13, 1989.

2. The Claimant filed a petition for temporary relief from this compliance time on November 10, 1989 and amended said petition on November 13, 1989.

3. The NOV was issued by Mark Jaworski, an authorized representative of the Director, Department of Natural Resources.

4. The NOV specifies a violation of 310 IAC 12-5-38: specifically a failure to make available for inspection by the Director and the public, on request, seismographic and airblast records, when obtained.

5. The administrative law judge is the ultimate authority for this action.

6. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.

7. The Department agreed to suspend compliance time until a temporary relief hearing could he held.

8. Under IC 13-4.1-11-8(e) the administrative law judge will grant temporary relief if:

a. hearing is held in locality of permit and all parties are heard,
b. applicant shows a substantial likelihood he will prevail when facts of NOV are adjudicated, and
c. health or safety of the public will not be adversely effected or significant, imminent harm to the environment will not be caused.

9. Hearing was held in Evansville, Indiana and all parties were heard. This satisfies 8a above.

10. The Department presents 310 IAC 12-5-38 which begins, "A record of each blast,...shall be retained by the permittee ... and shall be made available to the Director and the public upon request."

11. The Department maintains that the words "each blast" speak for themselves and must be taken literally when determining what records a coal company must make available.

12. Further, the Department points out that because of the myriad of citizen's complaints in regard to the mine in question it was reasonable and necessary that the Director ask Amax for all blasting data in its possession.

13. Amax maintains a "record of blasting operations" which includes monitoring of the peak particle velocity (PPV) - of each blast at designated compliance monitoring stations and measuring of airblast at least once a quarter from at least seven consecutive blasts or all of the blasts within a period of one week, whichever produces more readings.

14. Amax keeps additional airblast data for litigation purposes. However, the only data required to be kept by Amax permit is that listed in 13 above.

15. The NOV was written because Amax refused to show the additional data. This additional data was not required to be kept according to the Amax permit.

16. The Department quotes 310 IAC 12-5-36(e)(4) which states, "the Director may require airblast measurements of any or all blasts and may specify the location of such measurements."

17. Amax maintains that the language above applies to the drafting and approval of the blasting plan which is approved by the Director as part of the permit.

18. Amax's point is well taken. The Director has the authority to require any and all data to be kept for each blast, but what must be looked at is the proper vehicle to implement the requirement.

19. It is likely that the proper procedure would be the Director orders the coal company to revise its permit and then an NOV is issued if revisions are not complied with.

20. There is a substantial likelihood that

[VOLUME 5,PAGE 84]

Amax will prevail when the facts of the NOV are adjudicated.

21. Since this NOV has to do with the release of records already kept, there is no evidence that the health or safety of the public will be adversely effected or significant, imminent harm to the environment will be caused if temporary relief is granted.