CADDNAR


[CITE: Jarrett v. DNR and Amax Coal Company, 5 CADDNAR 254 (1991)]

 

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Cause #: 90-265R

Caption: Jarrett v. DNR and Amax Coal Company [Jarrett II]
Administrative Law Judge: Teeguarden
Attorneys: Goodwin, Pope; Blanton; Spicker
(Amicus Curiae: Noland, Indiana Coal Council; Cobb Hoosier Environmental Council)
Date: March 15, 1991

ORDER

 

Claimant's request for temporary relief filed with respect to permit S-00041-2 is denied. Claimant's request for temporary relief from the decision of the Department of Natural Resources to modify cessation order C00801-S-00041 to allow pumping to resume us denied.

FINDINGS OF FACT

 

1. The Department of Natural Resources ("DNR") is an agency within the meaning of IC-4-21.5-3-1.

 

2. The DNR has primary responsibility for regulating surface coal mining in the State of Indiana.

 

3. Surface Coal Mining in the State of Indiana is regulated under IC 13-4.1 and 310 IAC 12 ("I-SMCRA").

 

4. Regulation is the responsibility of the Division of Reclamation ("DOR") of the DNR.

 

5. Amax Coal Company ("Amax") operates several coal mines in the State of Indiana and holds permit S-00041 ("Cass Permit") to conduct surface mining operations in Sullivan County, Indiana.

 

6. During the fall of 1988, Amax filed an application to amend the Cass permit area and increase the mining area. This was denominated S-00041-2 and has been known as the "Cass 2" application and permit.

 

7. The Cass 2 permit was approved with conditions by the appropriate delegates on May 17, 1990, and several issues regarding that approval are currently undergoing judicial review in Marion County Superior Court #1.

 

8. Jack Jarrett ("Jarrett") owns over 300 acres of land near Dugger, Indiana, which is adjacent to a portion of the Cass 2 permit area.

 

9. Jarrett and his wife maintain a residence on this property. Two grown sons and their families also live in homes on this tract.

 

10. Jarrett also operates a computerized typesetting business in a separate structure called the Engineering Building which is also on the property.

 

11. Jarrett filed a timely appeal of the approval of the Cass-2 permit.

 

12. On February 5, 1990, Jarrett also requested temporary relief from the approval of Cass 2 permit. (Administrative Cause Number 90-026R).

 

13. During the late winter and early spring of 1990, a 24 day hearing ("Jarrett I") was held.

 

14. One result of that hearing was the grant of summary judgment motion by the Administrative Law Judge (ALJ) that ultimately led to the judicial review referred to in paragraph 7 above.

 

15. In Jarrett I, the ALJ found that the Cass 2 permit was void and thus Jarrett's request for temporary relief was moot.

 

16. On August 21, 1991 the Natural Resources ("NRC"), acting as the ultimate authority within the meaning of IC 4-21.5 (AAA) on administrative appeals taken from Department actions, dissolved that portion of the non-final order of the ALJ and ruled that the permit could be issued in the manner used by the DNR and subject to conditions dealing with pumping and blasting.

 

17. On October 29, 1990 the NRC published a revised order which modified certain findings and orders contained in the ALJ's decision.

 

18. The NRC action of October 29, 1990, necessitated a reopening of Jarrett's request for temporary relief on the Cass-2 permit since the ALJ's decision was based on procedural grounds and not substantive grounds.

 

19. A considerable amount of site specific data was generated between the close of the evidence in Jarrett I (mid April 1990) and the final order issued by the NRC (October 29, 1990).

 

20. Accordingly, requests to open the record for the purpose of taking evidence generated or discovered since April of 1990 were granted.

 

21. On or about July 22, 1990, the Cass 2 pit suddenly became flooded with ground water.

 

22. Jarrett immediately noted an unusual drop in the water level in a monitoring well into the Regent Coal VI old works under his property.

 

23. The decrease in water

 

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level continued and eventually, on August 1, 1990, the DOR issued cessation order CO-00801-S-0004 to Amax which prohibited the further use of pit pumps until the ground water level decreases could be explained and were under control. The grounds for issuance dealt only with unplanned for and unexplained drops in ground water more than 1000 feet from the pit.

 

24. On August 3, 1990, the DOR modified the cessation order to allow pit pumping to resume subject to certain monitoring and other conditions.

 

25. On September 10, 1990, the Hearings Division of the NRC received a copy of an amendment to Jarrett's petition for review and temporary relief from the modification of C 00801-S-00041.

 

26. On September 15, 1990, the Hearings Division of the NRC received a copy of Jarrett's Petition for review and request for Temporary Relief. The documents are dated August 31, 1990.

 

27. Filings dealing with cessation order 00801-S-0041 are known as Jarrett II.

 

28. Pending temporary relief hearings for Jarrett I and Jarrett II were consolidated since the parties, issues, and expected evidence were the same for both cases.

 

29. The consolidated temporary relief hearing commenced November 12, 1990, and resulted in 18 days of evidence and approximately 200 exhibits to go with the 24 days of evidence and 300 exhibits in Jarrett I.

 

30. Amax has raised the issue of the appropriate ultimate authority in matters involving temporary relief.

 

31. Amax contends that since July 1, 1990, the ALJ cannot be the ultimate authority in a matter involving temporary relief.

 

32. PL 28-1990 amended IC 14-3-3-21 to provide that the NRC is the ultimate authority of the Department of Natural Resources for all proceedings brought under IC 4-21.5.

 

33. Prior to this legislation, the Director of DNR was the ultimate authority for a number of IC 4-21.5 proceedings including cessation orders.

 

34. IC 13-4.1-2-1 allows the NRC to delegate any duties assigned to it under I-SMCRA.

 

35. Nothing in PL 28-1990 appears to prohibit delegation by an ultimate authority. Both I-SMCRA and F-SMCRA (Federal Surface Mining Control and Reclamation Act) encourages delegation.

 

36. The NRC adopted rule 310 IAC. 0.6-1-4 in April of 1988. This rule specifically delegates to an ALJ the duty to act as the ultimate authority on matters involving temporary relief under I-SMCRA.

 

37. The subsequent amendment of a statute does not necessarily invalidate a rule enacted under the former statute. See Van Allen v. State, (1984) 467 N.E. 2d 1210 which stands for the proposition that a rule in place at the time a statute is changed remains effective unless it is amended or repealed by the changed statute.

 

38. Nothing in P.L. 28-1990 can be read to explicitly or implicitly repeal this delegation.

 

39. In fact, until the passage of P.L. 28-1990, IC 14-3-3-21 (b) specifically prohibited the NRC from delegating its ultimate authority. P.L. 28-1990 repealed that portion of IC 14-3-3-21(b) and replaced it with a requirement that the NRC adopt rules to carry out its duties.

 

40. Accordingly, 310 IAC 0.6-1-4 applies and the ALJ is the ultimate authority in these matters.[FOOTNOTE 1]

 

41. Jarrett contends that I-SMCRA requires the Director of the DNR to be the ultimate authority of matters involving cessation orders.

 

42. The language of IC 13-4.1-11-5 would appear to support this contention and in fact, this was clearly the law prior to July 1, 1990.

 

43. However, the language of PL 28-1990 is clear and unambiguous. It provides that "notwithstanding any other provision of law, the Natural Resources Commission is the ultimate authority of the Department of Natural Resources under IC 4-21.5."

 

44. The intent of the legislature is clear. Currently, the NRC is the ultimate authority over all appeals under IC 4-21.5. The Director of the DNR can only be the ultimate authority on a AAA appeal if the NRC delegates that authority to him.

 

45. In a temporary relief hearing, the burden of persuasion falls on the party requesting temporary relief.

 

46. IC 13-4.1-4-6 thus requires Jarrett to show a substantial likelihood that he will prevail on the merits at the time of final determination.

 

47. Both the area covered by the Cass-2 permit and the Jarrett property have numerous abandoned underground mine tunnels, shafts, and panels beneath them.

 

48. The Vandalia #17 Coal VI

 

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old works and the Regent Coal VI old works lie beneath both the Jarrett property and the Cass-2 permit area.

 

49. The sudden increase in water in the Cass 2 pit on July 22, 1990, was a result of mining over the Regent old works and uncovering cracks or faults which directly connected the pit to the Regent VI works.

 

50. Regent was last mined in 1954. Vandalia was last mined in 1933. Both were mined by room and pillar extraction techniques.

 

51. Both old works have become filled with naturally occurring ground water.

 

52. Jarrett's contention is that the mining activities of Amax in the Cass 2 pit (primarily blasting over the underground works and pumping water out of the underground works) will lead (or have led) to surface subsidence on his property.

 

53. With respect to CO 00801-S-00041, Jarrett contends that the DNR's decision to modify the CO and allow unlimited pit pumping and draw down of the water levels above the old mines subjects his property to an increased risk of surface subsidence.

 

54. The precise wording of the original cessation order and the modification are important.

 

55. IC 4-21.5-2-5 exempts a number of agency actions from being subject to administrative review. Among them is "A decision to issue or not issue a complaint, summons, or similar accusation."

 

56. In general, a person cannot appeal a decision not to take an enforcement action.

 

57. 310 IAC 12-6-2 attempts by rule to grant rights that IC 4-21.5-2-5 specifically exempts. 310 IAC 12-6-2 give citizens the right to request inspections and investigations. It does not give a citizen the right to appeal the refusal to take an enforcement action.

 

58. The specific enforcement action taken by the DOR on August 1, 1990, was to order a halt to the removal of groundwater from the pit because of the rapid draw down of ground water beyond 1000 feet of the active pit. (Exhibit 2028)

 

59. On August 3, 1990, the CO was modified to allow pumping to resume in part because Amax submitted hydrological information and the modification required monitoring of both ground water elevations and surface elevations.

 

60. On numerous occasions from July 23, 1990, through early August, DOR was urged by Jarrett to require cessation of pit pumping because of the increased risk of surface subsidence to the Jarrett property. See Exhibits 2002, 2003, 2004, 2005, 2006, 2008, 2009, 2010, 2013 and 2015, which are letters written by Jarrett's counsel requesting immediate cessation of pit pumping because of the loss of pressure head under the Jarrett property and resulting risk of surface subsidence.

 

61. Additionally, Jarrett held in-person meetings with DOR during this time.

 

62. Jarrett's request for administrative review likewise deals extensively with the withdrawal of water being the withdrawal of subjacent support. 63. The practical effect of the administrative appeal is to request the ALJ to order the DOR to take an appropriate enforcement action on behalf of Jarrett.

 

64. IC 4-21.5-2-5(8) makes the decision of an agency not to issue a specific enforcement action non-appealable.

 

65. The ALJ has no jurisdiction or authority to grant the request for relief in this matter as to do so would be to compel the DOR to issue a new complaint, a matter which is non-reviewable.

 

66. The ALJ thus concludes that Jarrett has failed to show a substantial likelihood that he will succeed on the merits of his case at final hearing and thus temporary relief from the modification of C00801-S-00041 is denied.

 

67. With respect to 90-026R, temporary relief from permit S-00041-2, the ALJ originally ruled this permit void because the inclusion of conditions 12 and 13 dealing with blasting near underground mines and pumping water out of the underground mines indicated that the NRC delegates were not convinced that mining could take place safely within the parameters prescribed by I-SMCRA. [FOOTNOTE 2]

 

68. In its decision of October 29, 1990, the NRC dissolved this finding and found that the inclusion of conditions of this type were allowed by I-SMCRA.

 

69. The NRC also found that "With regard to the Cass-2 permit, any errors in the process were not so fundamental to the integrity of the permit as to not be correctable by a AAA hearing." Page 6 of Natural Resources Commission order.

 

70. Prior

 

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to any different order being entered on judicial review the ALJ is bound by this decision.

 

71. The ALJ is also bound by the other issues decided by the NRC on Jarrett I including Indiana water rights under I-SMCRA, subjacent support rights, and the decision on the Indiana Open Door Law.

 

72. One issue left open by the NRC in its Jarrett I decision is the issue dealing with the nature of the proceedings.

 

73. Jarrett has contended that the ALJ's primary function in this matter is to review the information available to the NRC delegates in May of 1989 and decide whether or not the application for the Cass-2 permit should be approved.

 

74. Amax contends that the administrative review process is totally de novo and any and all information that is available to the ALJ should be considered.

 

75. Generally, administrative reviews of initial agency actions are de novo.

 

76. This cannot be entirely true, however, for cases involving permits.

 

77. It makes no sense to say an applicant for a permit does not need to make an effort to respond truly, accurately, and completely with respect to information required on a permit application and with the idea of filing an administrative appeal and filling in the gaps.

 

78. To mean anything and be of any value, the permit application must meet a minimum threshold standard. From that point forward, the administrative appeal is de novo.

 

79. Little or no Indiana case law exists to identify the proper role of the AAA in reviewing an initial permitting decision.

 

80. In the absence of persuasive authority, a balanced approach should be applied which will adequately address the legitimate interests of all concerned.

 

81. Substantive issues in a permit appeal are de novo. For example, as long as the applicant has addressed the matter of appropriate blasting limits and monitoring thereof in the permit, the ALJ may hear unlimited testimony about appropriate limits and monitoring and issue a non-final order changing the plan found in the permit.

 

82. The NRC held in Jarrett I that the Department of Natural Resources could approve a permit subject to conditions which would not be removed until more blasting and pumping information was received.

 

83. Because of this holding, the ALJ is required to find that the Cass 2 permit (Exhibits 295 and 1102A through E) met a minimum threshold standard for permit applications and adequately set the foundation for further review of all substantive matters.

 

84. Having made the finding contained in paragraph 83, all further proceedings dealing with the Cass-2 permit are de novo.

 

85. An incredible amount of data and testimony dealing with ground water monitoring and scientific principles of ground water flow and pressure has been introduced into evidence. [FOOTNOTE 3]

 

86. The evidence shows there has been no mining activity in Vandalia #17 for some 55 years prior to submission of the Cass-2 application.

 

87. The evidence shows there has been no mining activity in Regent for 25 years prior to the initial approval by the DNR of the Cass 2 permit.

 

88. Roof bolts and other effective long-term means of artificial support were not in use when Vandalia #17 was mined and rarely used when Regent was mined.

 

89. Testimony from Robert Trierweiler during day 23 of Jarrett I showed that the persons acquiring coal rights in the early 1900's under what is now the Jarrett property also acquired the right to subside the property. This fact can reasonably be interpreted to mean that subsidence to the surface was anticipated by those planning to mine the Coal VI seam in these areas.

 

90. During room and pillar mining, a mine constructs main shafts and entries, haulage ways, and panels.

 

91. The entries and haulage ways were designed to be stable over a lengthy period of time. Often less than 50% of the available coal was removed from these areas and large coal pillars were left in tact.

 

92. In the panels, there was no need for long term stability. Once a panel was mined, the miners would move on to another panel. Thus in Vandalia 17 and Regent mines, as much as 90% of the coal was removed and the remaining pillars were much smaller than in haulage ways.

 

93. Once mining ceased, there was no need to keep ground water out of the works.

 

94. Over an undetermined time span, ground water has flooded the old works.

 

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95. While there is no way of knowing how long, it took to totally flood the Regent and Vandalia 17 old works, 1980's well monitoring data shows ground water elevations 75 feet or more above the roofs of the old mines. That fact appears to indicate that flooding took place not long after mining and the water pressure has continued to build.

 

96. From the day a mine is abandoned, the roof and pillars begin to deteriorate. [FOOTNOTE 4]

 

97. The process of removing seam VI coal leaves cracks and fissures in coal pillars and roofs.

 

98. The structural integrity of an underground mine depends on a number of factors including the coal strength of the coal left in the pillars, the load bearing strength of the materials in the roof and the overburden, the height of the pillars, the width and/or cross-sectional area of the pillars, the extraction ratio, and the weight of the overburden.

 

99. Whether or not the failure of the structural integrity of an underground mine produces surface subsidence depends on a number of factors including the length and width of the total failure area, the depth of the mine below the surface, the nature of the overburden, and height of the cavity; that is, the collapse of pillars and roofs in a mine 4 feet high is less likely to produce surface effects than a mine containing tunnels 8 feet in height.

 

100. Coal strengths are greatly affected by exposure to water and air.

 

101. Once a mine owner has no interest in keeping water out, pillars begin to absorb moisture and begin to lose the ability to bear the load of the overburden.

 

102. Once this process begins, the pillars begin to "slough" and "spall." This means that the sides begin to peel off and crack further thus exposing other segments of coal to the elements and hastening the deterioration of pillar strength.

 

103. Unmined coal VI strengths in the Cass-2 permit area are approximately 2200 psi.

 

104. When the mine begins to flood, more water is readily available to saturate the coal pillars and enter into the cracks and fissures in the pillars.

 

105. Eventually, the mine becomes completely flooded. At that point, every square inch of surface area of every pillar and every crack and crevice in a pillar is exposed to water.

 

106. The reduction in coal strength at this point is hard to quantify but it can reach as high as 50%.

 

107. Once this point is reached, a vicious cycle commences. The loss of coal strength combined with the constant exposure to pressure from the overburden continues the problem with cracking and peeling of the coal in the pillars.

 

108. Thus not only is the coal strength significantly reduced, the effective crossectional area of a supporting pillar is steadily decreasing and the outer edges are contributing very little towards pillar strength.

 

109. Finally, a reduction in the crossectional area of the pillars also translates into an increase in the extraction ratio; that is the ratio of the amount of coal removed compared to the total amount originally present. In a haulageway, often only 50% of the coal was removed. In some Regent and Vandalia panels, over 80% of the coal was removed.

 

110. Small losses off the sides of large pillars or barrier pillars do not affect the extraction ratios a great deal. However, small losses off the sides of smaller pillars in panels already having 80% extraction ratio are significant.

 

111. As stated in paragraph 95, it appears likely that the total flooding stage was reached within a few years after mining for both Regent and Vandalia #17.

 

112. Up to this point, there has been little involvement by the roof. If the roof begins in a structurally sound mode, it is likely still structurally sound unless the pillars have failed and placed additional stress on the roof. If the roof (or a portion thereof) was not structurally sound, it has already sagged or collapsed and shifted its portion of load bearing responsibility to some other member.

 

113. Isolated roof failures in underground mines without accompanying pillar failure are not particularly likely to cause problems at the surface.

 

114. In fact, both exhibits 442 and 3144 discuss the fact that most surface expressions of subsidence near underground mines takes place in areas where the abandoned works are less than one hundred feet below the surface.

 

115. The overburden over the Regent and

 

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Vandalia #17 Seam VI mines ranges from 85 feet to 155 feet.

 

116. The Viking mine experience presented during the testimony of Mr. Sargent during Jarrett II confirms that widespread roof failures without accompanying widespread pillar failures only affect the overburden for 20-30 feet above the mine and do not reach the surface. The principle involved is called "arching" or "beaming" and results in rubble and fractures directly above the mine but the cross-sectional area of fractures decreases as the distance above the old works increases and eventually a stronger portion of the overburden can support the weight above it so no further fracturing or movement takes place.

 

117. The next step in the mine-flooding scenario is that water continues to enter the mine even though the mine is full.

 

118. The effect of continued recharge depends somewhat on the condition of the roof.

 

119. If the roof is generally intact, water will enter into the cracks and fissures in the roof and eventually begin to exert a hydrostatic pressure on the roof. The more water enters the mine, the more pressure is exerted on the roof.

 

120. This hydrostatic pressure on the roof of the mine helps bear weight of the overburden and thus reduces the effective stress on the pillars and the roof.

 

121. The amount of force exerted by the water pressure in this situation may be measured by drilling an observation well into the old works and monitoring the level of the water in the well to see how high it is above the works.

 

122. If the roof at the time of complete flooding is in a state of wide spread collapse and numerous large fissures have formed in the overburden above the mine, the hydrostatic analysis above does not apply and very little or no pressure is being applied to the roof by the water since it is generally free to continue rising through the cracks and fissures.

 

123. Over a period of time, water will saturate the area above the mine which is in the condition described in paragraph 122.

 

124. The amount of total saturation can be measured by drilling observation wells and measuring the height of the groundwater.

 

125. Once total saturation of a part of the fractured overburden has occurred, there is a "buoyancy" effect.

 

126. Water, being denser than air, tends to support an object immersed in it.

 

127. In a mine in which the buoyancy effect applies, the effective stress on the pillars is decreased somewhat because the water is "supporting" a portion of the overburden.

 

128. All of the possibilities makes analysis of these mines appear difficult, however, Bob Cummings of Engineers International testified persuasively that the effects of hydrostatic pressure on a closed system are approximately the same as the buoyancy effect on the fractured system.

 

129. In either case, the lowering of the ground water level of the water present because of the flooding of the underground mines increases the load that must be borne by unfailed pillars or roofs.

 

130. If pillars reach this stage without beginning to fail, for some period of time, the pillars receive some assistance in supporting the overburden.

 

131. However, the coal in the pillars is still absorbing water and becoming saturated. Coal is still losing coal strength in areas being saturated and pillars continue to lose crossectional area because of sloughing and spalling.

 

132. In a mine which has been flooded as long as Vandalia #17, the pillars may have lost more than 50% of their initial strength and significantly decreased in cross-sectional areas.

 

133. Attempts have been made to analyze the state of both old works.

 

134. Bore hole data shows some areas of roof and pillar collapse and, in the Regent main entry, areas that are still intact.

 

135. A recognized method of analyzing pillar design is to calculate the general overburden weight and compare it to the amount of weight a pillar can hold. As long as the pillar estimated load carrying strength is comfortably more than the estimated weight it needs to bare, it should not fail.

 

136. Once a pillar begins to fail the stress-strength ratio does not apply. The formula only predicts stability, not what happens during instability.

 

137. The amount of stress a pillar must support (Ps) is the pre-mining vertical stress (Vs) divided by 1 minus the extraction ration (E), Ps=Vs/(1 - E). As a simple

 

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example, if mining removes 1/2 of the coal, the coal that is left must support twice the load it supported before mining to prevent collapse. If mining removes 80% of the coal, the coal that is left must support 5 times the load to prevent collapse.

 

138. Vs obviously can vary depending on the amount and nature of the overburden. Testimony was presented that the average density of the overburden in the Cass 2 area was 158 pound per cubic. If D is the distance from the top of the mine to the surface in feet, Vs= 158D/144 pounds per square inch or approximately 1.1D.

 

139. The amount of stress a pillar can support is a little more complicated. It depends on coal strength, width, and height of the pillar.

 

140. The Holland formula is a standard formula used in mining engineering. It provides that Sp = Scc [square root of (Wp/h) where Sp is the pounds per square inch (psi) a pillar can support, Scc is the unconfined compressive strength of a critical cubical specimen in psi, Wp is the pillar width in feet, and h is the height of the pillar in feet. Scc is calculated by the formula Scc = Qu [square root of (d/6)] where Qu is the coal strength in psi, and d is the size of the laboratory cube specimen in inches. d in this case was 3 inches so Scc = Qu [square root of (3/6)] = .29 Qu. Thus Sp = .29 Qu [square root of (Wp/h)].

 

141. The laboratory tested strength of unmined coal in the Cass-2 area is approximately 2200 psi. That is Qu for the mining design situation. This number will be reduced dramatically years after mining has ceased.

 

142. Exhibit 3051 shoes the thickness of coal in the coal VI Seam in the Cass permit area.

 

143. The seam thickness under the Jarrett property ranges from more than 5 1/2 feet but less than 6 feet near the Jack Jarrett house to approximately 8 feet near the Jarrett Engineering building and cornfield.

 

144. The depth of overburden in the Jarrett property area ranges from 100 to 150 feet with the numbers in the vicinity of the Jack Jarrett house being roughly 135 feet and the Jarrett Engineering building being roughly 125 feet. The cornfield overburden appears to be around 140 feet. Exhibit 3052.

 

145. The Jarrett Engineering building area and the cornfield are over the Regent old works. While there are barrier pillars and region of unmined coal nearby, there are also panels where the extraction ration is 75% or more.

 

146. Panel pillars appear to be 10 to 15 feet in width.

 

147. Vs = 1.1D so Vs = 137.5 psi near the engineering building and 154 psi near the cornfield.

 

148. Assuming 75% initial extraction ratio, Ps = Vs/(1 - E) = 550 psi near the engineering building and 616 psi near the cornfield.

 

149. Sp = .29 Qu [square root of (Wp/h)]. At the close of mining, Qu is approximately 2200 psi. In the areas in question using an average pillar width of 13 feet, Sp = 638 [square root of (13/5.7)] and Sp = 638 [square root of (13/8)], respectively, or 957 psi and 804 psi.

 

150. The safety factor is Sp/Ps or approximately 1.75 and 1.3, respectively.

 

151. In Regent, mining ceased over 55 years ago. The testimony shows it is highly unlikely that any significant, long term, support aids were used. Additionally, there is adequate evidence that the coal strength began to deteriorate immediately and the pillars started to become narrower.

 

152. The evidence showed no one can say exactly what the initial loss of coal strength rate is, what the width loss rate is, or what length of time it will take to flood the mine. The following appears to be a reasonable assumption, however. By the time the mine floods completely, the coal strength will have reduced by 30% or so, and the overall pillar width decreased by at least one foot (6 inches on each side).

 

153. Leaving Ps the same for the time being, (which is incorrect since E has now increased) Sp for panels become 638 (.70) 12/5.8 [square root of (12/5.8)] = 626 psi and 638 (.70) [square root of (12/8)] = 545 psi, respectively.

 

154. This translates into safety factors of 1.14 and .91 respectively. This means that at this point, panels near the cornfield are probably failing and panels having pillar heights under 6 feet are close to failure.

 

155. Further, the 30% strength reduction may be conservative as there was testimony that would indicate a reduction of 1/3 to 1/2 is possible. Also, there was some evidence

 

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that the pillar size may eventually reduce its dimensions by as much as 2 1/2 feet.

 

156. Calculating the change in Ps due to the change in extraction ratio is a little more complicated.

 

157. Using exhibit 379 which typifies calculations of extraction ratios of 79.4% and 73.0%, a one foot dimensional reduction of each pillar changes the extraction ratios to approximately 81.6% and 74.6% respectively.

 

158. It seems reasonable to assume that a similar reduction in a panel with an initial extraction ratio of 75% would lead to a current extraction ratio of 76.5% to 77%.

 

159. Recalculating Ps for each area gives Ps = 137.5/1 - .767 psi and Ps =154/1 - .767 or 590 psi and 661 psi, respectively. This leads to safety factors of 1.06 and .83, respectively.

 

160. Again, this indicates that any panel in the Cass permit area with an initial extraction ratio of 75% had reached a critical point prior to any water pressure being exerted on the roof or any buoyancy effect occurring.

 

161. The conclusion can be drawn that any panel in Regent whose initial extraction ratio was in excess of 75% (some were in excess of 80%) underwent failure prior to completely flooding.

 

162. Consistent with this analysis is the fact that considerable evidence was introduced in Jarrett 1 dealing with the fact that the first person to acquire coal rights in this area (early 1900's) also acquired subsidence rights.

 

163. Even in an area of 70% extraction ratios with lower overburden depths, the safety factors would not be high enough to prevent collapse despite water support of the overburden.

 

164. For example, take D = 120 ft., E = 70%, h = 5.5 ft., an initial coal strength of 2200 psi and an average pillar width of 13 feet. The initial safety factor will be a comfortable 2.1. After 40 or 50 years of neglect, assume that the coal strength is cut by 50% and the pillar width is decreased by 2 feet. The applicable figures become Ps = 133/1 - .75 = 532 psi. Sp = 638 (.50) [square root of (11/5.5)] = 447 psi. Even adding 40 psi for either hydrostatic pressure or buoyancy does not change the fact that these pillars have failed somewhere along the years and any such panel is in a state of collapse. Panels with more overburden over them and or higher pillar heights also would fail much earlier.

 

165. 40 psi would be the amount of assistance the old mine works would receive from a pressure head of slightly over 90 feet, a pressure head which would take years to achieve in the first place.

 

166. The eastern and central portions of the Jarrett property are underlaid by the Vandalia #17 old works.

 

167. The Vandalia #17 mine was last worked 58 years ago.

 

168. The Vandalia old works has had even longer to deteriorate than Regent.

 

169. Again, the overburden in this area is generally 120 to 140 feet. Pillar heights in mined areas appear to be around 5 1/2 feet.

 

170. Initial panel extraction ratios are generally in excess of 70% and some approach 80%. Initial pillar widths appear slightly less than Regent. See exhibit 385.

 

171. Logic dictates that the current coal strengths will be less than Regent, and the reduction of pillar width will be somewhat greater than in Regent, thus present extraction ratios would be greater. In short, Vandalia #17 is ever more likely to be in a state of collapse than Regent.

 

172. Amax's contentions that the Regent and Vandalia #17 old works failed years ago appears, by a preponderance of the evidence, to be correct.[FOOTNOTE 5]

 

173. The video camera tapes also confirm this conclusion for those areas taped. That is, there are fractures, rubblezation, and failed pillars with evidence of "arching" or "beaming" some 20-30 feet above the top of Seam #6.

 

174. Robert Cummings' theoretical calculations about "arching" between 24 and 61 feet appear to be valid in this area. Since the overburden is well over 100 feet thick in most areas around the Cass and Cass 2 permit area, no surface effects would be visible.

 

175. All of this analysis is consistent with the testimony of Amax employees who view the Cass and Cass-2 high wall and pit every day and who testified at Jarrett I that at no time during the years of surface mining #7 coal in the Minnehaha area have they seen a major disturbance of the #7 seam that would indicate rapid downward movement.

 

176. The Jarrett survey data introduced into evidence does show ground motion.

 

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177. The motions involved are generally less than 1/2 inch and include some points where the elevations are slightly higher than preceding readings.

 

178. The testimony regarding mine subsidence was that the survey does not show mine subsidence because nearby points are behaving differently. In a subsidence situation, nearby points should be sinking at similar rates.

 

179. The fact that mines may have collapsed years ago does not absolutely prohibit long term settling above the mines. Studies in the subject are hard to come by as most of the time, no one begins a study until there has been a sudden, noticeable incident of surface subsidence.

 

180. So far, the survey data does not show surface movement that is more consistent with surface subsidence and settling than with changes due to weather, instrumentation, construction techniques, materials and soil mechanics. Future monitoring may show otherwise. For purposes of temporary relief, the claimant has not shown by a preponderance of the evidence that subsidence is actually occurring on his property.

 

181. Part of the temporary relief request on the Cass 2 permit dealt with blasting.

 

182. Considerable evidence involving blasting was introduced in Jarrett I. None was introduced in Jarrett II.

 

183. Blasting is important in surface mining because it is the easiest way of removing the overburden over the seam of coal being mined.

 

184. Blasting is designed to fracture the overburden and cause it to be thrown into the pit.

 

185. A mining company has the best reason in the world to limit the downward thrust of the blast, namely money. A blast must be conducted in such a way as to not fracture the coal seam being mined.

 

186. This means that an Amax blast in the Cass-2 pit will produce limited vibration at the top of the coal #7 seam.

 

187. The expert testimony in Jarrett I showed that at 100 feet below the surface, no more than 25% of the surface vibration will be reflected.

 

188. No further site specific seismographic data was received after April of 1990. The evidence at that time showed surface vibrations near the Jarrett home of less that .20 ips peak particle velocity for most blasts and never more than .23 ips peak particle velocity. Exhibits 194 and 195.

 

189. The Jarrett property is not the closest uncontrolled property or structure to the Cass 2 pit. Since, blasting limits are based on the nearest uncontrolled structure. At this time, Jarrett will not ever be subjected to the maximum limit allowed by the permit or by law.

 

190. Having concluded the underground mines are generally in a state of collapse, it is not necessary to discuss the effect of blasting on them; however, the mines under the Jarrett property are not receiving vibrations in excess of .06 ips peak particle velocity and normally much less. These values cannot cause further damage.

 

191. Blasting levels are receiving considerable study at the present time. Exhibit 197.

 

192. The controversial aspect to blasting deals with low frequency blasting.

 

193. Blasting limits to prevent damage when the vibration frequency is 40 Hz or more are not particularly controversial.

 

194. Blasting limits where the vibration frequency is 10 Hz or less are a hot topic.

 

195. The problem with low frequency blasts is that the frequency level may coincide with a resonant frequency in the structure. If this happens, the vibration in the house does not dampen out quickly, thus causing more opportunity for damage.

 

196. Both the evidence in Jarrett I and the personal observation of the judge at the site showed numerous hairline cracks in masonry, some nail pops, and some concrete cracking on the Jarrett property. The evidence in Jarrett II showed further cracking and problems with closet doors.

 

197. Such problems can be caused by vibration due to blasting. The problems can also be aggravated by vibrations even if not originally caused by blasting.

 

198. The general rule of thumb was that ground surface vibrations not exceeding 2.0 ips peak particle velocity would not cause damage to maintained structures. This is still accepted for vibrations having a frequency of 40 Hz but not for lower frequency blasts. Exhibit 190.

 

199. There is some reason to use this Siskind chart in low frequency blasting. Exhibit 190, page 73. This study concluded that the allowable vibration levels

 

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should decrease from 2.0 ips peak particle velocity at 40 Hz to .50 or .75 ips peak particle velocity at 10 Hz, depending on whether or not the structure has plaster or dry wall. In either case, the study indicates that a maximum safe level for vibration at 3 Hz is .50 ips for either material and should be approximately .29 ips for a surface wave frequency of 2 Hz and .19 ips at 1 Hz.

 

200. Exhibits 194 and 195 show the most recently provided blasting data recorded on the Jarrett property.

 

201. Again, the peak particle velocities at the Jarrett property from blasting at permitted levels in the Cass 2 pit range from .01 to .23 ips. Most are from .08 ips to .17 ips.

 

202. Frequencies, when measured, range from 3 Hz to 10 Hz with 4 Hz and 5Hz being the most common values.

 

203. The Siskind graph represents a departure from industry wide standards. It reduces blasting levels to help property owners avoid damage.

 

204. The Siskind graph provides for a peak particle velocity limit of .50 ips when frequencies are in the 3 Hz to 10 Hz range.

 

205. The data available at this time shows that blasting in the Cass 2 pit does not exceed .25 ips at the Jarrett property.

 

206. The damages complained of are the type of damage that can also be caused by weather conditions, settling, expansion and contraction of building materials, and construction techniques.

 

207. Amax, in fact, pointed out several hairline cracks in the interior of the main hearing room of the Vigo County Court House Annex. These were not caused by blasting or subsidence.

 

208. A cursory examination of other brick structures by the administrative law judge revealed stair step cracks in mortar joints, cracks in cement, and slightly dry wall separation and nail pops in structures nowhere near surface or underground mines.

 

209. In short, there is insufficient evidence at this time to conclude the level of blasting currently used in the Cass 2 pit is causing or has caused damage to the Jarrett structures.

 

210. One problem raised by Jarrett in connection with his computerized type set business in the Engineering Building is intriguing.

 

211. Testimony during Jarrett I showed that once in awhile, the vibrations from a blast caused computer malfunctions. This matter was not pursued any further and no testimony was introduced at Jarrett II to show this is an ongoing problem.

 

212. Absent more information as to frequency of occurrence, blast levels on the dates of occurrence and manufacturer's information as to the need for stability, there is insufficient evidence to conclude that Jarrett will prevail at the final hearing on this issue.

FOOTNOTES

1.
Amax also contends that the office of Surface Mining, (AOSM"), who has oversight responsibilities over state programs, has disapproved 310 IAC. 0.6-1-4, and thus it is not effective. An analysis of this disapproval is very interesting. OSM presumably, under F-SMCRA, has the power to disapprove and require changes in State programs. The reason for such disapproval must deal with whether or not the state law is less effective than F-SMCRA. The only reason for disapproval by OSM was that 310 IAC. 0.6-1-4 conflicted with that provision of IC 14-3-3-21 which said the NRC could not delegate its ultimate authority. Decisions involving apparent conflicts of state law are the responsibility of the Indiana Attorney General and the Indiana Court system, not OSM. No finding was entered that such a rule is less effective than F-SMCRA. Further, by the time OSM published its ruling (January 18, 1991), the legislature had long since passed PL 28-1990 which removed the prohibition on NRC delegation of its ultimate authority.

2. In a recent paper presented by Alfred E. Whitehouse, Deputy Assistant Director, Program and Technical Support Office, OSM, Pittsburgh, Pennsylvania, OSM emphasized how important it is for a regulatory authority to require and analyze detailed and site specific information on the environmental setting of

 

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the proposed mine before any dirt is removed. See Proceedings of the First Midwestern Region Reclamation Conference (Supplement) 16-1 published by the Coal Research Center, Southern Illinois University.

3. Perhaps 1/3 or more of the 42 days of testimony and over 100 exhibits deal with the effect of water pressure or monitoring water levels and pumping in the Cass 2 area.

4. Mine failures can occur in three ways: roof failure, pillar failure, or flood failure. The only testimony about floors in this case was that the mine floors in this area of Indiana are usually stable. There are, however, lower coal seams which were mined by room and pillar techniques under Regent and Vandalia #17 but the lack of evidence presented at the hearings on the Seam V and IV mines means any attempt to discuss their effect on Regent and Vandalia #17 would be pure speculation.

5. Entry ways and haulageways with 50% extraction ratios and extra width barrier pillars are still standing and will continue to stand with or without water pressure.