CADDNAR

[CITE: United Minerals, Co., LLC v. DNR, 12 CADDNAR 153 (2009)]

 

 

[VOLUME 12, PAGE 153]

 

 

Cause #:07-186R      

Caption: United Minerals, Co., LLC v. DNR

Administrative Law Judge: Jensen

Attorneys: Hargis (United Minerals); Boyko (DNR)

Date: August 26, 2009

 

[NOTE: ON SEPTEMBER 23, 2009, UNITED MINERALS SOUGHT JUDICIAL REVIEW IN THE GIBSON CIRCUIT COURT (CAUSE NO. 26C01-0909-PL-0013). ON JUNE 11, 2010, GIBSON CIRCUIT COURT ENTERED ORDER AND REVERSED ALJ. ON JULY 12, 2010, THE DNR SOUGHT APPEAL (26A05-1007-PL-00453). ON MARCH 31, 2011, COURT OF APPEALS ENTERED ITS MEMORANDUM DECISION. (NFP) REVERSING AND REMANDING FOR FUTHER PROCEEDINGS. ON REMAND, THE ADMINISTRATIVE LAW JUDGE RESUMED JURISDICTION ON JANUARY 17, 2012.  ON REMAND, A FINAL ORDER WAS ENTERED ON JANUARY 4, 2013.  SEE United Minerals v. DNR, 13 CADDNAR 87 (2013).]

 

FINAL ORDER OF THE ADMINISTRATIVE LAW JUDGE

 

68.  The NOV issued by the Department is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

Procedural Background

 

1.      On August 29, 2007, United Minerals Company, LLC (“United”), by its Permit Specialist, Rich Montgomery, filed its petition for administrative review (“Petition”) of a Notice of Violation designated as N70801-S322 (“the NOV”) issued by the Department of Natural Resources, Division of Reclamation (“Department”).

 

2.      Within its Petition, United alleges that the Department’s seismograph reading that formed the basis of the NOV was inaccurate because “seismic readings gathered at the same and other locations show abnormal differences” that render the reading, and thus the NOV, to be invalid.

 

3.      On September 12, 2007, counsel, John A. Hargis, entered his appearance on behalf of United and on September 7, 2007, counsel, Ihor N. Boyko, entered his appearance on behalf of the Department. 

 

4.      A prehearing conference was originally scheduled for September 20, 2007 but on the motion of United was rescheduled for and conducted on October 26, 2007.

 

5.      During the prehearing conference the parties’ respective attorneys explained that the underlying facts were not disputed and that the proceeding might be appropriately disposed of through summary judgment.  Mr. Hargis did observe that the degree of expert testimony might make disposition by summary judgment tedious.  A discovery schedule and a schedule for filing summary judgment motions and briefs were established.

 

6.      Through a series of agreed upon extensions of time, discovery and summary judgment briefing was completed with both United and the Department filing cross motions for summary judgment on March 2, 2009 and briefs in response to the opposing motions on May 4, 2009.  United filed its reply brief on June 30, 2009, while the Department elected not to file a reply brief.

 

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7.      The instant proceeding is governed procedurally by the Administrative Orders and Procedures Act (“AOPA”).  I.C. 4-21.5-3, 312 IAC 3-1.

 

8.      Substantively, this proceeding is generally controlled by I.C. 14-34-12, et seq. and 312 IAC 25-6, et seq. More particularly applicable are administrative rules found at 312 IAC 25-6-29 through 312 IAC 25-6- 33, which relate to blasting regulations.

 

9.      The Natural Resources Commission (“Commission”) has jurisdiction over the persons of the parties and the subject matter of the instant proceeding.

 

10.  The administrative law judge is the ultimate authority with respect to the instant proceeding.  312 IAC 3-1-2(b).

 

 

Findings of Fact

 

11.  United operates Black Beauty Coal Company’s Somerville Mine, Pit #6 (“Somerville Mine”).

 

12.  United maintains that the seismograph reading that resulted in the Department’s issuance of the NOV is an “aberration” that cannot be relied upon because ground vibrations as a general rule dissipate over distance and seismograph readings associated with the same blast recorded by units located nearer to the blast location were lower than those recorded by the Department’s seismograph installed at the Nolan residence.[1] (This seismograph will hereinafter be referred to as the “Nolan #1 seismograph.”).  United supports its position with evidence that the Nolan #1 seismograph was not properly installed in that one of its geophones was not sufficiently embedded in the soil and that it was located in or near the root base of a green mound juniper.  United adds support by noting that according to an approved scaled distance equation the peak particle velocity (“PPV”) reading should have been 0.35 inch/second and further that the blast complied with the blast level chart set forth at 312 IAC 25-6-32(h)(4).

 

13.  The Department counters United’s position and argument with site specific evidence that ground vibrations within 5,000 feet of the Somerville Mine do not always dissipate at greater distances as would be expected by the general rule.  This evidence is also counter to United’s position that the Department’s seismograph reading resulted from faulty installation. 

 

14.  On August 2, 2007, United was issued the NOV on the basis that the Department’s “seismograph located at the Nolan residence recorded a peak particle velocity reading of 1.09 inch/second” with respect to a blast that occurred on February 23, 2007 at 9:04 a.m. C.S.T at the Somerville Mine.  NOV pg 1, Affidavit of Phyllis Hart, paragraphs 4 & 5, February 26, 2009 Affidavit of John Wiegand, paragraph 5.

 

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15.  For the same blast, United’s seismograph, located at the Bruce residence recorded a PPV reading of .73 inch/second.[2]  (This seismograph will hereinafter be referred to as the “Bruce #1 seismograph”.)  February 26, 2009 Affidavit of John Wiegand, paragraph 6, Affidavit of Phyllis Hart, paragraph 5.

 

16.  United’s blast in question was located at N294590, E426115 and the Bruce #1 seismograph was located at N296137, E427496.  Response of Claimant, United Minerals Company, LLC, to Respondent’s First Set of Interrogatories and First Request for Production of Documents, Response of Claimant, United Minerals Company, LLC, to Respondent DNR’s Second Set of Interrogatories and Second Request for Production of Documents, Response to Interrogatory 2,  Blasting Map dated 12/1/06.  These locations are approximately 2,897 feet apart.  February 26, 2009 Affidavit of John Wiegand, paragraph 7.

 

17.  The Nolan #1 seismograph is located at N297778, E427655 and is approximately 3,540 feet from the blast location.  Id.

 

18.  The Nolan #1 seismograph is approximately 640 – 650 feet further away from the blast location than was the Bruce #1 seismograph.  February 26, 2009 Affidavit of John Wiegand, paragraph 8, Affidavit of Phyllis Hart, paragraph 5, NOV, Blasting Inspection Report, page 1.

 

19.  The Nolan #1 seismograph was installed on May 23, 2006 where it remained until February 28, 2007.  Respondent DNR’s Responses to Claimant’s First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 2.  The Bruce #1 seismograph was installed on July 28, 2006 where it remained undisturbed until October 2, 2006 when a microphone had to be removed, repaired and replaced.  However the geophone for the Bruce #1 seismograph remained installed and undisturbed between July 28, 2006 and March 21, 2007. Affidavit of James Richard Montgomery, paragraph 4.

 

20.  The Noland #1 seismograph was installed adjacent to the east side of a large green mound juniper.  February 26, 2009 Affidavit of John Wiegand, paragraph 11, Respondent DNR’s Brief and Response to Claimant’s Motion for Summary Judgment, pg. 2.

 

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21.  The blast in question was “in compliance with the modified scaled distance equation” approved by the Department to address a malfunctioning seismograph unit at the Pflug residence.  Respondent DNR’s Responses to Claimant’s First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 6.

 

22.  The 1.09 PPV reading taken from the Nolan #1 seismograph on February 23, 2007 was in compliance with the blast level chart.

 

23.  The Department replaced the Nolan #1 seismograph with seismograph unit #2849 on February 28, 2009, 5 days after the PPV reading at issue in this proceeding was recorded.[3]  (Seismograph unit #2849 will hereinafter be referred to as the “Nolan #1A seismograph.”)   February 26, 2009 Affidavit of John Wiegand, paragraph 12, Affidavit of Phyllis Hart, paragraph 8. 

 

24.  The Noland #1A seismograph was installed “approximately 10 inches from the end of one of the green mound juniper overlying branches.”  February 26, 2009 Affidavit of John Wiegand, paragraph 12, Respondent DNR’s Brief and Response to Claimant’s Motion for Summary Judgment, pg. 2.

 

25.  United replaced the Bruce #1 seismograph with seismograph unit # 2654 on March 21, 2007.[4]  (Seismograph unit # 2654 will hereinafter be referred to as the “Bruce #1A seismograph.”).  Response of Claimant, United Minerals Company, LLC, to Respondent’s First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 2.

 

26.  The Department installed seismograph unit #486 on the Nolan property on May 22, 2007[5] on the west side of the green mound juniper.  (This seismograph will hereinafter be referred to as the “Nolan #2 seismograph”).  Respondent DNR’s Responses to Claimants First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 4,. February 26, 2009 Affidavit of John Wiegand, paragraph 13, Response of Claimant, United Minerals Company, LLC, to Respondent’s First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 2, Respondent DNR’s Brief and Response to Claimant’s Motion for Summary Judgment, pg. 2.

 

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27.  On May 23, 2007, United installed seismograph #2036[6] on the Bruce property approximately 100 feet west of the Nolan #1A and Nolan #2 seismographs and “at approximately the same distance from the blasting operations.”  February 26, 2009 Affidavit of John Wiegand, paragraph 13 and Respondent DNR’s Brief and Response to Claimant’s Motion for Summary Judgment, pg. 2.

   

28.  For nearly every instance from June 1, 2007 through August 1, 2007 the Nolan #1A seismograph registered seismic readings “at amplitudes in excess of 0.3 ips” that were “significantly greater” than both the Department’s Nolan #2 seismograph or United’s Bruce #2 seismograph.  February 26, 2009 Affidavit of John Wiegand, paragraph 19, Respondent DNR’s Brief and Response to Claimant’s Motion for Summary Judgment, pg. 2.

 

29.  United maintains that the 1.09 PPV in/sec reading received by the Nolan #1 seismograph on February 23, 2007 was an aberration.  In support of this position, Mr. Wiegand states:

…DNR SJ Response shows seismic readings from 25 shots between 5/23/07 and 7/30/07.  This exhibit shows readings from DNR seismograph unit #2849 (Nolan #1A), located on the east side and adjacent to the juniper, to be equal to or greater than the readings from unit #468 (Nolan #2), located on the west side and adjacent to the juniper, for 20 out of 25 shots.  While these seismograph units were only about 20 feet apart, according to DNR’s First Discovery Response (Interrogatory #4), the readings for the east DNR unit #2849 are significantly higher than the reading for the west DNR unit #468.  In one case the vibration reading difference is more than doubled from the east side of the juniper to the west side. June 29, 2009 Affidavit of John Wiegand.

 

30.  The installation of a seismograph within a plant’s root system commonly results in poor coupling of the seismograph to the soil and this can cause exaggerated ground vibration readings.  February 26, 2009 Affidavit of John Wiegand, paragraph 15, Claimant’s Exhibit A, Page 12.

 

31.  Despite the proximity to the green mound juniper, there is no evidence that roots infiltrated the holes dug for installation of the Nolan #1, Nolan #1A or Nolan #2 seismographs.  Respondent DNR’s Responses to Claimant’s First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 4.

 

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32.  The disparate seismic reading from the Nolan #1A seismograph and the Nolan #2 seismograph, which are both installed adjacent to the juniper proves is that the juniper’s root system is not the cause of the discrepancy.  This evidence supports the determination that the root system was also not the cause of the higher reading recorded by the Nolan #1 seismograph unit that resulted in the Department issuance of the NOV.

 

33.  The Department, in conducting seismic monitoring for the Somerville Mine has determined that on three occasions the placement of seismograph units in loose soils or soils underlaid by septic system components resulted in artificially high readings.  Respondent DNR’s Responses to Claimant’s First Set of Interrogatories and First Request for Production of Documents, Response to Interrogatory 2.

 

34.  Evidence of previous Departmental errors in the installation of seismographs is not indicative that this instance involves a similar error. This determination is especially appropriate when consideration is given to the fact that those errors occurred over five years prior to the incident at issue here. Id.

 

35.  It is also noted that on those previous occasions the Department, when presented with evidence of its errors, acted appropriately in invalidating its own results.  Id.

 

36.  At the time the Nolan #1 seismograph was removed it was determined that only three of the four sides of the geophone were coupled with the soil.  “The fourth side was slightly pulled away from the soil due to wetness.”  Affidavit of Phyllis Hart, paragraph 8.

 

37.  Upon removal, the Department sent the Nolan #1 seismograph “to the manufacturer for an incoming calibration to check the accuracy of the seismic components,” which indicated that the unit was operating within normal parameters.  Affidavit of Phyllis Hart, paragraph 8, DNR SJ Response Exhibits B & C.  United’s Bruce #1 seismograph was also calibrated after its removal on March 21, 2007 and also found to be operating within normal parameters.  Affidavit of James Richard Montgomery.

 

38.  Even properly calibrated seismograph units can record inaccurate PPV readings when coupling between the geophone and the ground is insufficient.  June 29, 2009 Affidavit of John Wiegand, paragraph 4.

 

39.  The proposition that insufficient coupling caused the higher PPV readings is also undermined by the fact that the Nolan #1A continues to give consistently higher readings than the Nolan #2 seismograph unit and the Bruce #2 seismograph unit.  This is further bolstered by the fact that other seismograph units located at greater distances from the blast location also show lower readings that the Nolan #1A.

 

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40.  It was the location of the Nolan #1 seismograph that caused the 1.09 PPV in/sec. recording on February 23, 2007.

 

41.  Seismic waves do normally decay over distance February 26, 2009 Affidavit of John Wiegand, paragraph 9, but that general rule is not without variation.

 

42.  In addition to the fact that the Nolan 1A seismograph unit continues to record higher PPVs than the Nolan #2 and the Bruce #2 seismographs that are located at generally the same distance from the blast location, other seismograph units have on occasion recorded elevated PPVs at greater distances from the blast location than were recorded by seismograph units located closer to the blast location.  See Claimant, United Mineral Company LLC’s, Response to Respondent DNR’s Second Set of Interrogatories and Second Request for Production of Documents, Attachment 5d and Respondent DNR’s Filing and Certification of Summary Judgment Response Exhibits, DNR SJ Response Exhibits H, I & J as discussed in Findings 35 through 37, infra.

 

43.  Evidence presented by United reveals that the Bruce #1 seismograph unit is located closer to the blast location than the Bruce #2 seismograph.  Blasting Map dated 12/1/06.

 

44.  On certain occasions in June 2007 the Bruce #2 seismograph recorded higher PPVs at a greater distance from the blast location than did the Bruce #1 seismograph located closer to the blast location.  Claimant, United Mineral Company LLC’s, Response to Respondent DNR’s Second Set of Interrogatories and Second Request for Production of Documents, Attachment 5d.

 

45.  Additional evidence of elevated peak particle velocity at greater distances has been captured by the Department’s comparison of seismograph units located at the Hutchinson and Bass properties between March 3, 2008 and June 28, 2008.  These results show that on six randomly selected occasions the Bass site, which is located at a greater distance from the blast location, recorded higher PPV readings than did the seismograph unit located at the closer Hutchinson site.   Respondent DNR’s Filing and Certification of Summary Judgment Response Exhibits, DNR SJ Response Exhibits H, I & J.

 

46.  The numerous examples of higher PPVs being recorded by seismograph units located at greater distances from the blast location than are being recorded by seismograph units located nearer the blast location clearly establishes that the general rule that ground vibrations attenuate with distance from the blast location is not consistently applicable with respect to the geographical area surrounding the Somerville Mine.

 

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47.  Ample evidence exists to prove that an anomaly exists with respect to blasts and the resulting ground vibrations occurring in the area of the Somerville Mine.

 

48.  Given the extensive evidence that this anomaly does exist, it is not necessary for the Department to provide evidence of the reason for such anomaly.  

 

 

Conclusions of Law

 

49.  Summary Judgment is appropriate to terminate litigation where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Steven T. Gerber v. Department of Natural Resources, 9 CADDNAR 31, (2001).  

 

50.  It is the party moving for summary judgment who bears the burden of proving that summary judgment should be granted in its favor.  Id.

 

51.  A grant of summary judgment is inappropriate where facts necessary for proper disposition are in dispute or, although undisputed, are capable of supporting differing conclusions.  DNR v. Scope Operating Co., 11 CADDNAR 267 (2008).  However summary judgment may remain appropriate despite the existence of conflicting facts Stuteville v. Downing, 391 N.E.2d 629, (1979), and is appropriate where the court is required to make an interpretation.   Ancich v. Mobile Oil Corporation, 422 N.E.2d 1320 (1981).   

 

52.  The parties agree that 312 IAC 25-6-32(h)(1) specifies that maximum ground vibration will be determined as specified in the blasting plan as required by 312 IAC 25-4-42.

 

53.  United’s blasting plan requires seismographic recording of maximum peak particle velocities.

 

54.  Neither party disputes the evidentiary submissions of the other, except as it relates to the conclusions of United’s expert, John Wiegand’s, that are based upon the premise that a green mound juniper has a “substantial” root system, which premise was unsupported by additional evidence.

 

55.  Maximum allowable PPV at a distance between 301 to 5,000 feet is 1.00 inch/second.  312 IAC 25-6-32(h)(2)(A).

 

56.  The Nolan #1 seismograph unit recorded a PPV of 1.09 inch/second at a point 3,540 feet away from the Somerville Mine blast location, which, if accurate, constitutes a violation of 312 IAC 25-6-32(h)(2)(A).

 

57.  The evidence submitted by the parties requires interpretation and application by the administrative law judge.

 

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58.  Determining PPVs by use of a blast level chart or a scaled distance equation are not part of United’s blast plan, therefore the blast’s compliance with these measurement methods are not controlling.  See Claimant’s Brief in Reply to Respondent, DNR’s, Brief in Response to Claimant’s Motion for Summary Judgment, Section 3.

 

59.  A site specific modified scaled distance equation was approved for United by the Department with respect to a “very limited situation” to address a malfunctioning seismograph unit at the Pflug residence.  Therefore, that approved alternative method of determining ground vibration is inapplicable to the instant proceeding.

 

60.  While acknowledging that alternative methods of measuring ground vibration is not controlling under United’s permit, United nonetheless cites Solar Sources, Inc. v. Department of Natural Resources, 7 CADDNAR 68 (1995) in arguing that evidence that the blast would have been compliant with the blast level chart or the scaled distance equation should be considered.  United’s position fails for two reasons.

 

61.  Solar Sources, which does consider that the cited violations would have been compliant with the blast level chart, is distinguishable for the reason that its permit contained an “unusual feature” that “allows Solar to be in compliance as long as the blast complies with one of the ways of measuring.  Most plans require the mine to choose one of the other.”  Id., Footnote 1.

 

62.  Indiana Farms, Inc. v. Department of Natural Resources, 8 CADDNAR 21 (1997) involved a matter of disparate seismograph readings between the Department’s and Indiana Farms, Inc.’s seismograph units.  In that proceeding Indiana Farms, Inc.’s seismograph unit had been moved between blasts while the Department’s had been “more or less permanently installed”.  Under these circumstanced it was determined that the seismograph unit that had been checked and calibrated, found to be within normal operating limits and “remains stationed” was “more likely” to be functioning properly than one that is “moved from blast to blast”.

 

63.  Both United’s Bruce #1 and the Department’s Nolan #1 seismograph units meet the criteria established by Indiana Farms so these criteria offer little assistance in discerning between the parties’ dueling seismograph recordings.

 

64.  For United, as a moving party, to be granted summary judgment it must establish that it is entitled to a judgment in its favor as a matter of law.  To prevail on its motion for summary judgment, United would essentially be required to prove by a preponderance of the evidence that the 1.09 PPV in/sec reading recorded by the Nolan #1 seismograph on February 23, 2007 was, in fact, erroneous.  This, United, has failed to do.

 

65.  Similarly, for the Department to be granted summary judgment, the evidence must establish by a preponderance of the evidence that the Nolan #1 seismograph’s 1.09 PPV in/sec reading recorded on February 23, 2007 is accurate.

 

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66.  The proven fact is that ground vibrations in the area of the Somerville Mine do not consistently decrease in correlation to increasing distances from the blast site.

 

67.  The totality of the evidence clearly establishes that the Department’s February 23, 2007 seismographic reading of 1.09 PPV in/sec is accurate.

 

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been changed to match CADDNAR format.]


[1] Throughout the evidence provided in the parties’ summary judgment briefs and evidentiary material, this seismograph unit is referred to as DOR #1 (Nolan), IDNR #1 and IDOR #1. 

[2] Throughout the evidence provided in the parties’ summary judgment briefs and evidentiary material, this seismograph unit is referred to as UMI #1 (Bruce), UMI #1 and United Minerals Bruce #1.

 

[3] Throughout the evidence provided in the parties’ summary judgment briefs and evidentiary material, this seismograph unit is also referred to as DOR #1 (Nolan), IDNR #1 and IDOR #1.  In the exhibits it impossible to make a distinction between this seismograph unit and the Nolan #1 seismograph without referencing the relevant dates.

[4] Throughout the evidence provided in the parties’ summary judgment briefs and evidentiary material, this seismograph unit is referred to as UMI #1 (Bruce), UMI #1 and United Minerals Bruce #1.  In the exhibits it impossible to make a distinction between this seismograph unit and the Nolan #1 seismograph without referencing the relevant dates.

[5] Throughout the evidence provided in the parties’ summary judgment briefs and evidentiary material, this seismograph unit is also referred to as DOR #2 (Nolan), IDNR #2 and IDOR #2. 

[6] This is the same seismograph unit that was removed from the Bruce property on 3/21/07 and replaced with seismograph unit # 2654.  It was reinstalled at a different location on May 23, 2007.  Throughout the evidence provided in the parties’ summary judgment briefs and evidentiary material, this seismograph unit is referred to as UMI #2 and UMI North Bruce.