In regard to the undated order of the Director received by Warrick County Coal Corp. on November 18, 1989, temporary relief is denied for the requirement to obtain a seismograph and to monitor all blasts as to air pressure and ground vibration, and granted for the requirement to submit a permit revision. Temporary relief granted will remain in effect until Warrick's objections to the order of the Director are adjudicated. (See 89-253R.)
FINDINGS OF FACT
1. An undated "Order of the Director" (the "Order") was received by Warrick County Coal Corp. (the "Claimant") on November 18, 1989.
2. The Order required the Claimant, within ten days, to do the following:
a. conduct air overpressure monitoring for every blast detonated at the Yankeetown #2 Mine to demonstrate compliance with the air overpressure limits found at 310 IAC 12-5-36(e)(1) and,
b. monitor ground vibration for every blast detonated at the Yankeetown #2 Mine to demonstrate compliance with the ground vibration limits found at 310 IAC 12-5-36(h)(2)(i) and,
c. submit for approval the necessary permit revisions to specify compliance with the above two (2) requirements.
3. On November 27, 1989, the Claimant objected to the Order and requested temporary relief from its requirements pending adjudication of said objection.
4. The administrative law judge is the ultimate authority for this action.
5. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12 apply to this proceeding.
6. 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.
7. Hearing was held in Evansville, Indiana and all parties were heard. This satisfies 6a above.
8. The order was issued because of numerous citizen complaints in regard to Claimant's blasting program.
9. The Claimant presently monitors blasts using the scale-distance formula.
10. The Department inspector testified that using the scale-distance formula, no violations have been noted.
11. However, since the scale-distance formula is not as effective as seismographic data in monitoring blasting compliance, the Director's Order was issued so as to ascertain the validity of the citizen complaints.
12. The following statement is attached to the Claimant's blasting plan: "Warrick County Coal Corp. does not currently own a seismograph. However, should a seismograph be required to comply with this section and specifically (01), a seismograph will either be leased or purchased. At that time, the Division will be notified in writing as to the make, model and specifications and its attended use."
13. The Director is required to do what is reasonable and necessary to monitor blasting.
14. Evidence shows that it is reasonable and necessary that the Director require the Claimant to obtain a seismograph and monitor blasts to ascertain the validity of citizen complaints.
15. The Claimant has not demonstrated a substantial likelihood that he would prevail when the facts of his objection to the order are adjudicated in regard to obtaining a seismograph and monitoring air overpressure and ground vibration of each blast.
16. However, there is a substantial likelihood the Claimant will prevail as to the requirement that a permit revision be submitted.
17. In this regard, the order is inconsistent. The seismograph monitorings stated purpose is "to demonstrate compliance with... 310 IAC 12-5-36 ..."
18. The words "demonstrate compliance" indicate a showing that would be temporary in nature provided the showing is favorable to Warrick.
19. Therefore, ordering a permit revision which has a
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high level of permanency attached to it would not be indicated unless the seismographic data is unfavorable to Warrick.
20. Granting temporary relief to the Claimant as to the submission of a permit revision will not adversely effect the health or safety of the public or cause significant, imminent harm to the environment.