Notice of Violation N40815-S-260 is hereby vacated.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency responsible for the regulation of surface coal mining operations under IC 13-4.1 and 310 IAC 12 ("SMCRA").
3. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
4. At all times relevant to these proceedings, Little Sandy Coal Company held surface coal mine permit S-260 issued by the DNR which allowed the surface at the Pond Creek Pit in Owen and Clay counties in Indiana.
5. At all times relevant to these proceedings, Foertsch Construction Company ("Foertsch") operated all aspects of the Pond Creek Pit under an agreement with Little Sandy Coal Company. In its reply brief, the mine states that the two companies are related.
6. On August 15, 1994, an authorized representative of the DNR issued Notice of Violation N40815-S-260 ("NOV") to Foertsch for an alleged blasting violation at the S-260 permit site.
7. On September 14, 1994, Foertsch filed a petition for administrative review of the NOV.
8. Since the substantive issue involved in the administrative review is an enforcement action brought under SMCRA, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.
9. The NOV was written for alleged violation of 310 IAC 12-3-4, 310 IAC 13-3-33(a), and parts of 310 IAC 12-5-36(h).
10. 310 IAC 12-3-4 requires that all persons shall conduct their surface mining operation in accordance with SMCRA and the terms of the approved permit.
11. 310 IAC 12-5-33(a) requires that "[e]ach permittee shall comply with all applicable Indiana and federal laws and regulations in the use of explosives."
12. 310 IAC 12-5-36(h)(1) sets forth methods of complying with blasting requirements including ". . . the scaled-distance equation of subsection (h)(3). . . ."
13. Parts III(c)(3)(a) and (b) of the S-260 permit sets forth the blasting plan to be used. III(c)(3)(a) states that the scaled-distance equation will be used and III(c)(3)(b) specifies the scaled-distance factor to be used.
14. The details of the scaled-distance equation are contained in 310 IAC 12-5-36(h)(3)(i), and is intended to prevent damage at the nearest protected structure.
15. The scaled-distance equation is W = (D/Ds)2 , where W is the maximum weight (in pounds) than can be detonated in any eight millisecond period, D is the distance (in feet) to the nearest protected structure, and Ds is the scaled distance factor found in the approved permit.
16. III(c)(3)(b) provides values of Ds as follows:
Distance to nearest protected structure Ds
0 - 300 feet 50
301 - 5000 feet 55
Over 5001 feet 65
17. The NOV was written because Foertsch conducted a blast on March 9, 1995 using 77 pounds of explosive per millisecond delay.
18. The DNR contends that the Buttram trailer was the closest protected structure (approximately 90 feet from the blast) while Foertsch contends that the Hale residence (approximately 500 feet from the blast) is the closest protected structure.
19. if the DNR is correct, the maximum pounds per eight millisecond delay allowed would be under four pounds; and thus, there would be a violation of SMCRA blasting provisions.
20. If Foertsch is correct, the maximum pounds per eight millisecond delay would be over 80 pounds; and thus, the blast would be within the limits provided by SMCRA.
21. In the "statement of fact" portion of both summary judgment
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motions, both parties agree that the "Buttram trailer" is on wheels, and has no foundation,
water lines, electricity, or sewer connections. Mr. Buttram apparently visits the trailer on some weekends.
22. The issue to be resolved is whether or not the trailer is a "protected structure".
23. 310 IAC 12-5-36(h) applies to dwellings, public buildings, schools, churches, community and institutional buildings. If a structure does not fall in one of those categories, it dies not trigger the protection provided by this code section.
24. The only possible category the Buttram trailer could fit into is a "dwelling".
25. The term "dwelling" does not appear to be defined by either Indiana SMCRA, or its federal counter part, 30 U.S.C. 1201 et seq.
26. As pointed out by the Department, the term "occupied dwelling" is defined by Indiana SMCRA. 310 IAC 12-0.5-77 defines "occupied dwelling" as "any building that is currently being used on a regular or temporary basis for human habitation", but this does not provide much assistance in this particular case.
27. Foertsch counters by saying that the trailer cannot be a "dwelling" because it does not meet the local health and zoning ordinances necessary to qualify it as a living unit.
28. The clear intent of Indiana (and federal) SMCRA is to protect structures which actually [are] inhabited whether or not habitation is lawful according to local law. It is a "de facto" test, not a "de jure" test.
29. In the absence of a specific definition of "dwelling" in SMCRA, the most logical definition to use is the one in Black's Law Dictionary.
30. "Dwelling" means "the house or other structure in which a person or persons live; a residence; abode; the apartment or building, or group of buildings occupied as a place of residence. Structure used as a place of habitation." See Black's Law Dictionary, Fifth Edition.
31. There is insufficient evidence to allow the trier of fact to conclude that the trailer in question is occupied or used as a residence or place of habitation, or even intended to be used as a place of habitation.
32. The fact that the owner visits the trailer on a periodic basis does not imply that he resides or intends to reside there.
33. The fact that there is no foundation, no tie-downs, and no utilities tends to imply that there is not an intent to use the trailer as an abode or place of habitation.
34. Since this is an enforcement action, the burden of persuasion is on the Department. See Peabody v. Ralston (Ind. App. 1991) 578 N.E.2d 751.
35. Absent sufficient evidence that the owner of the trailer uses or intends to use the trailer as a place of habitation, the trailer is not a "protected structure", and thus, the NOV should be vacated.