[CITE: United Minerals v. DNR, 13 CADDNAR 87 (2013)]
[VOLUME 13, PAGE 87]
Cause #: 07-186R
Caption: United Minerals v. DNR
Administrative Law Judge: Lucas
Attorneys: Rudisill and Hargis (United); Boyko (DNR)
Date: January 4, 2013
[NOTE: THIS ORDER ENTERED ON REMAND. SEE United Minerals, Co., LLC v. DNR, 12 CADDNAR 153 (2009).]
FINAL ORDER
As a result of decoupling of the geophone from the soil, the seismograph reading that formed the basis for NOV #N70801-S322 is unreliable. The NOV must be and is now vacated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Statement of the Proceeding
1. On August 29, 2007, United Minerals Company, LLC (“United”) filed a petition for administrative review (the “Petition”) of a Notice of Violation designated as N70801-S322 (“the NOV”) issued by the Division of Reclamation of the Department of Natural Resources (the “DNR”) on August 2, 2007. The Petition initiated a proceeding that is governed by Ind. Code § 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 Ind. Admin. Code § 3-1 to assist with implementation of AOPA. United and the DNR are collectively the “parties”.
2. The NOV seeks to exercise authority under § 14-34 (the “Indiana Surface Coal Mining and Reclamation Act” or “ISMCRA”) and rules adopted by the Commission at 312 IAC § 25 to assist with implementation of ISMCRA.
3. For administrative review of a notice of violation issued for ISMCRA and 312 IAC § 25, an administrative law judge appointed by the Commission under IC 14-34-2-2 is the “ultimate authority” under IC § 4-21.5-1-15.
4. On August 26, 2009, a Commission administrative law judge ruled in favor of the DNR and affirmed issuance of the NOV on summary judgment under IC § 4-21.5-3-23. United Minerals, Co., LLC v. DNR, 12 Caddnar 153 (2009). This administrative decision is sometimes referred to in these Findings as the “initial United Minerals decision”.
5. United sought judicial review to the Gibson Circuit Court, Cause No. 26C01-0909-PL-0013. On June 11, 2010, the Gibson Circuit Court reversed the administrative law judge and granted summary judgment in favor of United Minerals.
6. DNR appealed the decision of the Gibson Circuit Court to the Court of Appeals of Indiana in No. 26A05-1007-PL-453. The Court of Appeals ruled on March 31, 2011 that neither the administrative law judge nor the Gibson Circuit Court should have granted summary judgment in 945 N.E.2d 830 (Ind. App. 2011), slip op.:
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). There may be such a genuine issue if the trial court is required to resolve disputed facts, but summary judgment is likewise inappropriate if conflicting inferences arise from the facts. Lawson v. Howmet Aluminum Corp., 449 N.E.2d 1172, 1175 (Ind. Ct. App. 1983). To preclude summary judgment, the conflicting inferences must be decisive to the action or a relevant secondary issue. Id. Here, they are.
United and DNR disputed below, and continue to dispute on appeal, the validity of the seismographic reading on which the ALJ’s order is based – in other words, they disagreed on the factual inferences the ALJ should have drawn from the evidence. At the proceedings before the ALJ, both parties agreed “the underlying facts were not disputed and that the proceeding might be appropriately disposed of through summary judgment.” (App. at 21.) But even if the facts were undisputed, there was disagreement over the determinative inferences to be drawn from the facts – i.e., whether the reading that showed a violation was accurate or was an aberration because of the placement of the seismograph and the condition of the geophone. As these are determinations of ultimate facts, not legal decisions, summary judgment for either party was improper.
In a footnote, the Court of Appeals observed the standard for summary judgment is the same under IC § 4-21.5-3-23(b) as under Trial Rule 56(C). The matter was remanded to the administrative law judge for a hearing on the merits.[1]
7. Following remand, the administrative law judge scheduled a telephone status conference and notified the attorneys for the parties. United moved subsequently for a change of venue from the administrative law judge under Trial Rule 76(C)(3). The telephone status conference was conducted as scheduled on February 22, 2012. The administrative law judge acknowledged receipt of United’s motion, granted the motion, and appointed a substitute administrative law judge.
8. The substitute administrative law judge qualified on February 23, 2012. Following multiple conferences, and the scheduling, continuance, and rescheduling of hearings, a hearing of the merits was conducted in Evansville, Indiana on October 3, 2012. Immediately following adjournment, the parties agreed and the substitute administrative law judge then ordered:
Either party may file either or both of the following by November 15, 2012:
(1) Post-hearing brief.
(2) Proposed findings of fact and conclusions of law with final order.
9. On November 15, 2012, the “Respondent DNR’s Hearing Brief” was filed timely.
10. On November 15, 2012, United filed timely the “Claimant’s Post-Hearing Brief” and proposed “Findings of Fact, Conclusions of Law, with Final Order of Administrative Law Judge”.
11. The proceeding is ripe for a disposition on the merits.
B. Legal Framework of ISMCRA
12. The legislative intent for enacting the federal Surface Mining Control and Reclamation Act (“SMCRA”) was considered in Hodel v. Indiana, 101 S.Ct. 2376, 452 U.S. 314, 329, 69 L.Ed.2d 40 (U.S. 1981):
Congress adopted [SMCRA] in order to ensure that the production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, injury to any of which interests would have deleterious effects on interstate commerce. See 30 U.S.C. § 1202(f) (1976 ed, Supp. III); S. Rep. No. 95-128, supra, at 49-53; H.R. Rep. No. 95-218, supra, at 57-60.
13. The importance accorded the regulation of blasting under SMCRA was underlined in the Congressional history.[2] Also illustrative was reference to a bill amendment in the House Committee on Interior and Insular Affairs that “included more comprehensive requirements concerning notice to persons prior to blasting and maintenance of blasting records.” A letter from the Administration admonished: “We would oppose deleting safety protections provided by the bill. Blasting limitations are particularly important….” H.R. Rep. No. 95-218.
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14. The historical posture for ISMCRA was described in Ind. Dep’t of Nat. Resources v. Krantz Bros. Const. Corp., 581 N.E.2d 935, 937 (Ind. App. 1991):
…[SMCRA] is designed to provide a uniform nationwide program for the reclamation of land affected by surface coal mining operations. 30 U.S.C.A. § 1202. Uniformity is to be achieved, however, not through direct United States Department of the Interior control of surface mining across the nation, but rather through Interior Department oversight authority over state programs which must be at least as stringent as the federal program. 30 U.S.C.A. §§ 1253, 1271(d)….
The heart of SMCRA is the permit, inspection, enforcement, and penalty scheme it creates….
[ISMCRA] is largely a copy of SMCRA…. In enacting [ISMCRA], our General Assembly made clear its unequivocal intent to avoid federal control of Indiana surface coal mining and land reclamation…. Indeed, the first purpose of the Reclamation Act is to implement and enforce SMCRA. Id. Therefore, because our first goal in construing a statute is to give effect to the intent of the legislature, Matter of P.J. (1991), Ind. App., 575 N.E.2d 22, 27 (Baker, J., dissenting) (citing Spaulding v. International Bakers Services, Inc. (1990), Ind., 550 N.E.2d 307), we will look to SMCRA and the federal rules adopted under it” [to help construe ISMCRA].
15. In implementing and enforcing ISMCRA, the Commission may not adopt a rule that is more stringent than corresponding provisions under SMCRA. IC § 14-34-1-4. In a blasting plan that accompanies a SMCRA permit application, the blast plan must show the general approach to all blasts. A blast design is more detailed and is blast specific. The same rules that apply under SMCRA apply under ISMCRA. Dept. of Natural Resources v. Solar Sources, 701 N.E.2d 1244, 1246 (Ind. App. 1998).
16. Subsequent to Krantz Bros, Indiana courts routinely turn to SMCRA precedents from jurisdictions outside Indiana. Illustrative is Ind. Dept. of Nat. Resources v. Hoosier Environmental Council, 831 Ind. App. 804 (Ind. App. 2005).
C. Burden of Proof
17. For a notice of violation, the DNR has the burden of proof. The burden of persuasion may shift to the alleged violator if the DNR establishes a prima facie case. An ISMCRA notice of violation was considered in Peabody Coal Co. v. Ralston, 578 N.E.2d 751, 754 in which the court held:
…Like defendants in a criminal proceeding, those charged with violations of DNR’s regulations are often facing punitive sanctions such as fines. Similar to the rationale for affixing the ultimate burden of proof on the state in criminal matters, it would be a fundamentally unfair procedure to shift the burden of persuasion to one charged with a violation to prove his innocence. The burden of production may shift to the alleged violator when the agency pursuing sanctions for the violation has demonstrated a prima facie case of violation, but the ultimate burden of persuasion may never so shift.
The plain wording of I.C. § 4-21.5-3-14(c) supports this interpretation. This section provides in full:
(c) At each stage of the proceeding, the agency or other person requesting that an agency take action or asserting an affirmative defense specified by law has the burden of persuasion and the burden of going forward with the proof of the request or affirmative defense. Before the hearing on which the party intends to assert it, a party shall, to the extent possible, disclose any affirmative defense specified in law on which the party intends to rely. If a prehearing conference is held in the proceeding, a party notified of the conference shall disclose the party’s affirmative defense in the conference.” [Emphasis supplied by the court.]
…[The DNR] has the ultimate burden of proof…. If the [DNR] were not the party in essence prosecuting [a coal company] for a regulatory violation, the ultimate burden would be on the party petitioning the [Commission’s administrative law judge] for relief. In either case, [a company], defending its mining procedures and operations, would not labor under this heavy burden. This holding does not, however, relieve [a company] of its burden of production in rebutting DNR’s prima facie showing of a violation in the course of the proceeding; that is, [a company] must still carry its burden of production. We hold only that to place the ultimate burden of proof on those [companies] defending charges of regulatory violations would be contrary to statutory mandate and principles of fair procedure.
18. In this proceeding, the DNR has the burden of persuasion and the burden of going forward with a prima facie showing to prove the NOV. These burdens do not relieve United from its burden of production in rebutting the prima facie showing, but the ultimate burden of proof remains with the DNR.
D. Expert Witnesses at Hearing
19. Phyllis Ann Hart (“Hart”) has been employed by the DNR for more than 20 years and has served as the blasting specialist for DNR’s Division of Reclamation for approximately 18 years. She manages inspection and enforcement of the blasting regulatory program under ISMCRA. In 1990, Hart obtained a bachelor of science from the University of Indianapolis in earth-space science and geology. She was the first witness called at hearing by the DNR.
20. Hart’s duties as the Division of Reclamation’s blasting specialist include the installation and removal of seismographs. For ISMCRA, seismographs are used to monitor ground vibrations and air blasts that are generated from a coal mining operation and to assist with determining whether ground vibrations and air blasts are within the statutory and regulatory limitations.
21. Ryan Neal Gogel (“Gogel”) began employment with United in about 2002. For the last seven years, he has served as United’s drill and blast supervisor. He oversees all drilling and blasting for United. Gogel advises concerning “what drill pattern to use” and “how to load the explosives based on things around us that we need to be concerned with. I do all the state reports and install the majority of the seismographs.” Gogel orders the explosives used for blasting. He was the second and final witness called at hearing by the DNR.
22. Gogel testified he obtained a Bachelor of Science degree in computer graphics from Purdue University in 1999. For the past eight years he has held an Indiana Blasting Certification.[3]
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23. John E. Wiegand (“Wiegand”) obtained a Bachelor of Science Degree in 1976 in geography and geology from Ball State University. He is licensed as a geologist in Indiana and in Kentucky. He also has a blasting certification in Indiana. Wiegand is a member of several professional societies and associations. He is the founder and owner of Vibronics, Incorporated, a business that provides blasting and acoustic consultation. Claimant’s Exhibit 2 and testimony. Wiegand was the only witness called by United to testify at hearing.
24. Wiegand is familiar with blasting activities at Permit S-322 and was employed by United as a consultant in connection with Permit S-322 and particularly the NOV. He testified he “reviewed the seismographic data from both the [DNR’s] instruments and [United’s] instruments.” He also “reviewed the interrogatories that have both been offered by both sides of the issue.” He testified he reviewed the readings and mapped locations of Unit 2849, Unit 1684, and Unit 468. Hart visited the site near the Bruce Residence where Unit 2036 and later Unit 2654 were located. He did not visit site near the Nolan Residence where Unit 1684 recorded the reading which is the basis of the NOV, where it and Unit 2849 were located on February 23, 2007 (and where Unit 468 and Unit 2036 were subsequently located).
25. Each of the witnesses testified with veracity and was generally forthright. They demonstrated expertise sufficient to offer their testimonies, and they declined or qualified testimony when they believed a question required knowledge outside their expertise or beyond their knowledge particular to the proceeding.
E. Summary of Evidence at Hearing and Prima Facie Showing in Support of NOV
26. On direct examination, Hart testified the NOV was issued for DNR’s Permit S-322 for Black Beauty Coal Company’s Somerville Mine which is operated by United. In the blast plan for Permit S-322, United specified and was approved to use the scaled-distance equation to determine compliance for the site of the NOV. Hart testified on cross-examination, “You use that equation; however, you also are using seismograph data as your demonstration for compliance.”[4]
27. On February 23, 2007 at 9:04 a.m., the Division of Reclamation’s seismograph Unit 1684 recorded a peak particle velocity of 1.09 inches per second which is the basis for the NOV. The NOV stated the nature of the violation was that United failed to conduct blasting operations so the maximum ground vibration limit did not exceed 1.00 inch per second at the location of any dwelling, public building, school, church, or community or institutional building. Provisions cited in support of the violation included 312 IAC § 25-6-32(h)(1), 312 IAC § 25-6-32(h)(2)(A), 312 IAC § 25-6-29(a), and 312 IAC § 25-4-4 conditions of the permit. See, particularly, 312 IAC § 25-6-32(h)(2)(A).[5]
28. The Division of Reclamation removed Unit 1684 on February 28, 2007 and replaced it with Unit 2849. Hart testified Unit 1684 and Unit 2849 were located in similar areas, but in different holes, east of and about ten inches from the overhanging branches of a “juniper bush”[6]. In May 2007, the Division of Reclamation added another seismograph, Unit 468, west of the green mound juniper. Hart testified United maintained Unit 2036 south of the green mound juniper from September 18, 2006 until March 21, 2007 when United replaced Unit 2036 with Unit 2654 in the same general location. On May 23, 2007, United relocated Unit 2036 west of the green mound juniper. Respondent’s Exhibit A.
29. On February 23, 2007, Unit 1684 was located near the Nolan Residence. Unit 2036 was then located near the Bruce Residence approximately 574 feet south-southwest of Unit 1684. Unit 2036 was almost in a direct line between Unit 1684 and the blast location, and, consequently, was closer to the blast location than Unit 1684 by nearly the same distance of 574 feet. Hart testimony and Respondent’s Exhibit C.
30. The parties stipulated at hearing that Unit 468, Unit 1684, Unit 2036, Unit 2654 and Unit 2849 were calibrated properly.
31. On cross examination Hart was asked, “Is it fair to say that if the DNR had not had some question about the accuracy of the violation reading at issue, that it would have issue a notice of violation within a week or two” of February 23, 2007 rather than deferring until August 2, 2007 to issue the NOV? She responded, “That’s correct.” On a follow-up question, she acknowledged that “possibly, yes,” there was some question about the accuracy of the reading on Unit 1684.[7]
32. On cross examination, Hart testified Unit 2849 and Unit 468 were placed approximately 20 feet apart. “Granted, it’s not our normal procedure to install additional seismographs side-by-side” and thousands of feet from the blast site. The placement of Unit 468 may have been requested by United, and “to gather data is the reasoning, I believe.” Unit 468 was placed to determine if there would be discrepancy with Unit 2849, as well as Unit 2036. She testified concerns the root system of the green mound juniper could have had an effect is the reason Unit 468 was placed “on the other side”. The DNR and a mining company sometimes place units “side-by-side”.
33. On direct examination, Wiegand testified DNR’s removal of Unit 1684 and replacement with Unit 2849, and the location of Unit 468 about 20 feet away from Unit 2849, was “not normal. But in this case, he believed the DNR “was trying to determine” whether the February 23, 2007 seismograph reading on Unit 1684 “was an accurate reading.”
34. Although Unit 1684 provided data on February 23, 2007 to support the issuance of an ISMCRA notice of violation, the DNR conducted additional research before issuing the NOV. Hart testified her best recollection is DNR delayed in issuing the NOV because there were differences in what United seismographs recorded compared to what DNR seismographs recorded before February 23. “After that, I think we felt like more data needed to be gathered.” Both DNR and United relocated or installed additional seismographs as indicated in Finding 28.
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35. The International Society of Explosive Engineers publishes the ISEE Blasters’ Handbook. Hart described the publication as a “good general reference handbook of explaining ground vibration, causes and effects…, as well as…general explosive uses…. It talks about regression analysis, and it talks about seismographs themselves, and, of course, seismograph placement and installation. But it’s just anything that has to do with explosives. It’s a good handbook.”
36. Hart testified “typically, when a blast is generated,” vibrations “dissipate with distance. However, there are instances that can cause vibrations to increase as it goes farther out.” The ISEE Blasters’ Handbook and investigative reports by the Bureau of Mines from sites in southwestern Indiana support the existence of these anomalous conditions. The reports have demonstrated “unconsolidated materials, excessive thick layers, also cause a tendency to increase vibrations as well.” She has observed “other instances” from Permit S-322 in which vibrations increase as distances increase.
37. On cross examination, Hart testified she reviewed “the geology logs that were conducted” for the permit. “[T]he drill logs themselves indicated a high unconsolidated material soil in those areas, and that was about 17 inches….” Based on her research, she determined these unconsolidated materials “do tend to cause anomaly factors.”
38. On direct examination, Hart testified the ISEE Blasters’ Handbook and investigative reports by the Bureau of Mines also indicate that changes in surface elevations effect “how ground vibrations waves travel and propagate.” More specifically, “You’re looking at the geology and the rock that’s in between…the surface and the coal or where the blast was generated from. Depth is what I’m trying to prospect, as well as changes in elevation and what the ground waves are traveling through.”
39. On direct examination, Hart testified the February 23 blast occurred on the “down-slope of a hillside…. [W]ithin 100 feet or so is a valley where an intermittent stream would be passing through, and then it goes uphill again and plateaus out.” Where Unit 2036 was located on February 23 “is on a down-slope, too.” Unit 1684[8] was located “on the up-slope up on a hill, again, so we have a difference in elevation between the two locations of the seismographs….” She reasoned that increased vibrations resulted because “it’s going through a valley fill…. It’s a lesser rock material, and then we’re hitting harder ground as it may progress forward toward the blasts themselves.”
40. On cross examination, Hart referred to Unit 2036 as being “a little bit below 500 feet”. Unit 1684 was “probably 30 or 40 feet above that.” The change in elevation could affect seismograph readings.
41. On cross examination, Wiegand testified his experience was unconsolidated soils could have an effect on ground vibrations. “You can’t…give it one particular trait, but it definitely can have some influence.” He was aware of “varying soil conditions” in the vicinity of the blast and the seismographs, but these conditions were not something he particularly looked into.
42. Assuming that the February 23, 2007 seismograph reading resulted from an anomaly, Hart was asked whether an excessive level would constitute a violation of ISMCRA. She responded, “Yes, it would…. Anomalies do exist. I mean there are factors that are out there that say that this is what can cause an anomaly between the unconsolidated materials or soils, thick layers of soils, topography changes…, the type of geology that is involved, the amount of explosives and type of explosives, the blast design itself…. With the documentation we had shown that other instances where seismographs had read higher at farther distances on this particular Permit S-322…. What I’ve seen since that date through to the present is anomalies do exist….”
43. Gogel designed and detonated the February 23 blast which is the basis for the NOV. He testified the purpose of the blast was to help remove the overburden above the #5 coal at the mine. He used electronic detonators for the blast because a neighbor was complaining, and the “frequencies of the seismograph readings weren’t where we like them to be.” The primary compliance structure was the Gene Pflug residence located about 1,980 feet from the blast. He testified the compliance structure was usually the residence nearest to the blast. A seismograph at the Pflug residence had a peak particle velocity of 0.375 and an airblast of 121 decibels. Respondent’s Exhibit D.
44. Gogel testified the Pflug residence was nearer to the blast than Unit 1684 or Unit 2036, but the reading at Unit 2036 was higher than the reading at the Pflug residence.
45. Other than for the February 23 blast which is the basis for the NOV, Gogel was asked whether he had observed a seismograph that was farther away from a blast yield a higher ground vibration than a seismograph that was nearer to a blasting operation. He answered, “Every once in a while you see it. Yes.” He added he has worked for United exclusively at Permit S-322, so any such occurrence he observed would have been at Permit S-322. An illustration of a ground vibration for Permit S-322 recorded by a seismograph that was higher farther away from the blast than what was recorded at another seismograph nearer the blast occurred on August 5, 2010. Respondent’s Exhibit G.
46. On cross examination, Wiegand testified to a general principle that through attenuation seismic waves tend to decay as distance increases. He agreed “there have been cases” where the general principle did not apply. Wiegand also reviewed a report he made for Vibronics at another surface coal mine in southwestern Indiana where a reading by a coal company’s seismograph located nearer a blast was lower than a DNR seismograph operated farther from the blast. Respondent’s Exhibit H.
47. On direct examination, Gogel was asked why he used a two-pound primer in the bottom deck compared to a one-pound primer in the top deck. He responded, “[T]hrough this whole pit that we’re mining…, we have had some extremely hard-cap rock above our coal, and the reason I used the two-pounder is to give it more of a boost, more velocity, to shoot that bottom cap rock.” He testified the blast design was not confined. The initiation direction starts “at the front hole and will continue along each row to…the west, and then back towards the north.” Gogel used an ANFO/emulsion blend to increase the explosive energy to assure rock breakage. He testified overshooting or undershooting a blast could increase ground vibrations.
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48. Hart was asked on direct examination her opinion of the overall purpose for establishing blasting limits in ISMCRA. She responded, “To prevent damage at structures.”
49. Hart described a geophone as “an instrument that measures the ground vibrations…in two horizontal ways and one vertical way.”[9] The geophone installed for Unit 1684 had three-inch spikes. “It was a square puck, and the orientation was pointed toward the blasting operation itself.” We “dug a hole 14 to 16 inches and then compacted material on it.”
50. On cross-examination, Hart testified the recommended depth for installation was generally two or three times the height of the geophone. She placed Unit 1684 at the greater depth of 14 to 16 inches because United’s blasting expert, John Wiegand, told her “he likes to get down into a clay-material soil…. When you’re…on the top portion of the soil itself, it may be not as compactable a material…. When you get down into a deeper depth, you get into a clay-type material that has a better compaction to it.” When Hart installed the seismograph, the deeper material was different than what was on the surface “coloration-wise, and I could put the soil in my hands and make a compaction to it.”
51. On cross-examination, Hart testified she “did not run into any roots” of the green mound juniper when she installed Unit 1684. The width of the hole was eight to nine inches, and the depth was approximately 14 inches.
52. Hart testified the DNR informed United of the intention to unearth and remove Unit 1684. An opportunity was provided to United to observe its removal, but United did not exercise the opportunity.
53. Hart testified when she and her former supervisor, Steve Weinzapfel, removed the geophone on February 28, 2007, we “removed it as gingerly as we could.” We wanted “to get to the top of the geophone to see what it looked like, and the soils were wet at that time. When the geophone was finally removed to the top of the surface that we could see, basically three sides were coupled with the soil. There was a slight decoupling…from the fourth side of the square itself. I’m going to say it was probably less than an eighth of an inch or one-sixteenth of an inch. It wasn’t very much at all. But you could see that it was just slightly decoupled.”
54. On cross examination, Hart was asked whether Unit 1684 was cautiously removed. She answered, “Yes, we tried to remove” the soils “as best we could.” Weinzapfel started the excavation with a 14-inch spade, and they “knew the approximate depth of the puck,” so after the initial spading “hands were used”. She estimated the last inch of excavation was done by hand. She described the puck as being a square with sides approximately 1½ inches (or possibly two inches) long. The purpose for proceeding cautiously “was so, if at all possible, the position of Unit 1684 would not be disturbed.”
55. On direct examination, Hart was asked, “Is there any way to tell whether or not the decoupling was present” on February 23, 2007? She answered, “You could look at waveforms, but we could not see any type of decoupling that occurred prior to that…. We could not see anything in the wave train that showed a significance in the decoupling.”
56. On cross examination, Hart testified several factors could cause decoupling. Possibilities included freezing-and-thawing, wetness, and improper installation. She could not testify with certainty when decoupling occurred, but decoupling was present when Unit 1684 was removed on February 28.
57. On cross examination, Hart agreed decoupling can result in abnormal readings on a seismograph, even if the seismograph is calibrated properly. The greater the amount of vibration, the greater the impact would be on the reading if there was decoupling.
58. An agency should perform its regulatory investigations as the nature of the circumstance requires. An investigation is not required to take a particular form. Substantial evidence should be given to the agency to fulfill its statutory responsibility. Ordinarily, an agency action is measured following the conclusion rather than during the process of collecting and evaluating data. Industrial Welfare Com’n v. Superior Court, 166 Cal. Rpt. 331, 613 P.2d 579 (Cal. 1980).
59. The DNR placed seismograph Unit 1684 to monitor blasts by United for surface coal mining operations at Permit S-322. On February 23, 2007, Unit 1684 recorded a peak particle velocity of 1.09 inches per second, a velocity that is in excess of the maximum limit of 1.00 inch per second.. Before issuing the NOV, the DNR considered site conditions at Permit S-322 and at surface coal mines similarly situated in southwestern Indiana. Although recognizing the principle that attenuation typically causes ground vibrations to be reduced with increasing distance from a blast site, anomalies sometimes cause exceptions to the principle. Each expert witness supported this conclusion. By illustration, a seismograph reading at Unit 2036 was higher than at a unit placed at the Pflug residence even though the Pflug residence was closer to the blast. Hard-cap rock above the coal being mined at Permit S-322 motivated United’s certified blaster to design and use an aggressive charge to loosen the cap rock. Under these circumstances, the DNR reasoned that differences in elevation and the presence of unconsolidated materials could cause an anomaly and that resulted in a seismograph reading at Unit 1684 which exceeded regulatory limits.
60. Because there were differences in what United’s seismographs recorded compared to what DNR seismographs recorded before February 23, 2007, the DNR delayed in issuing the NOV. The DNR removed Unit 1684 to inspect the condition of the seismograph and its immediate environment. One concern was roots could have encroached on the equipment and caused an excessive and inaccurate reading. Earth from around the seismograph was excavated gingerly, with last stages of the removal done by hand. The surrounding soils were wet. Just as when Hart placed Unit 1684, no roots were observed. Three of the four sides of the geophone were coupled with the soil. There was a slight decoupling from the fourth side. The gap on the fourth side was between one-eighth and one-sixteenth of an inch wide. DNR reviewed the waveforms, but at least within the experience and expertise of DNR’s expert witness, the review did not bear the signature for decoupling. Substitute seismographs were placed by the DNR and United, and the DNR concluded these were supportive of the February 23 reading on Unit 1684. The DNR concluded the recorded violation was likely the result of an anomaly but was genuine. Structures and in particular the Nolan Residence could be jeopardized by the blast. Operating under authority of a SMCRA permit, United would be responsible for an excessive blast, and the blast was the proper subject for the NOV.
61. Deferral by the DNR from February 23 until August 2, 2007 to issue the NOV was judicious and appropriate. Particularly with the legislative history and sensitivity for environmental and safety concerns pertaining to blasting, the DNR must be responsive to and responsible for a regulatory program that accords the best practicable evaluation of blasts that may exceed regulatory limits. Deferral allowed for additional investigation and resulted in evidence that could be interpreted reasonably to support issuance of the NOV. Unit 1684 recorded a peak particle velocity of 1.09 inches per second, a velocity that was in excess of the maximum limit of 1.00 inch per second, and although likely the result of an anomaly, the violation appeared to the DNR to be genuine. The DNR interpreted correctly the intent of SMCRA and ISMCRA to regulate ground vibrations that result from geological anomalies, as well as those that conform to the general principle of attenuation.
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62. In the “Respondent DNR’s Hearing Brief”, the agency urged four factors contributed to the excessive ground vibration reading of 1.09 inches per second on February 23, 2007 on Unit 1684, and the reading was true and accurate. Of these four factors, sufficient evidence existed to support issuance of the NOV based upon at least three:
1) Significant changes in topography.
2) Subsurface geology that included areas of high unconsolidated soil material.
3) Use of a an aggressive explosive along with a large pound primer to loosen hard-cap rock located above the mineable coal
63. DNR had a reasonable basis, and provided sufficient evidence in the proceeding, to establish a prima facie case for issuance of the NOV.
64. In the “Respondent DNR’s Hearing Brief”, the DNR also cited Indiana Farms, Inc. v. Department of Natural Resources, 8 Caddnar 21 (1997) to support issuance of the NOV.[10] The DNR contends Indiana Farms is analogous. The DNR and the ISMCRA permit holder had separate seismographs, and they recorded different measurements. DNR urged Indiana Farms “was decided in favor of…DNR based on the following facts:
1) The DNR seismograph was checked and calibrated by an independent contractor.
2) The calibrations were found to be within normal limits.
3) The DNR seismograph was more or less permanently stationed at the location.
Here the parties stipulated that their respective seismographs were properly calibrated and…DNR’s seismograph was also more or less permanently stationed at its location.”
65. The administrative law judge in Indiana Farms made a finding of fact the permit holder’s movement of its seismograph “from blast to blast (and even mine to mine)” caused the seismograph to be more prone to error than was the DNR seismograph which remained stationary and appeared “to be functioning properly on all other blasts.” Evidence may demonstrate repeated movement of a seismograph compromises the accuracy of its readings, but the evidence does not support such finding in this proceeding. More critically, the permit holder in Indiana Farms offered no explanation why DNR’s seismograph provided false readings. Inconsistent readings between a DNR seismograph and a permit holder’s seismograph are not enough to overcome a determination the DNR has established a prima facie case for issuance of a notice of violation. The permit holder must produce evidence to rebut the DNR’s prima facie case, and the permit holder in Indiana Farms did not. In this proceeding, United has provided evidence in rebuttal.
66. In the Court of Appeals order for remand to the Commission, the scope of the evidence is refined to whether the seismograph reading that showed an ISMCA violation was accurate or was an aberration because of the placement of the seismograph and the condition of the geophone. The “placement of the seismograph” and the “condition of the geophone” are distinct matters that are considered separately infra.
F. Placement of the Seismograph
67. The geophone installed for Unit 1684 had three-inch spikes. The geophone had a square puck, and the orientation was pointed toward the blasting operation. As DNR’s blasting specialist, Hart dug a hole 14 to 16 inches deep and then placed compacted material around the puck. The width of the hole was eight to nine inches.
68. The recommended depth for installation is generally two or three times the height of the geophone. Hart placed Unit 1684 at the greater depth of 14 to 16 inches consistent with recommendations of United’s blasting expert. In particular at sites with unconsolidated materials near the surface, at the deeper depth a clay-type material is present that has a better capacity for compaction. When Hart installed the seismograph, she observed the deeper material was colored differently than what was on the surface. She put the deeper clay-type material in her hands and was able to cause compaction.
69. United did not challenge the proprietary of Hart installing the geophone at a depth greater than the generally recommended depth. Hart had a rational basis for installation at a depth of 14 to 16 inches. Nothing in the record supports a finding the depth of placement was inappropriate.
70. On direct examination, Wiegand testified the green mound juniper was in the travel path of vibrations from the blast site to Unit 2849.
71. On direct examination, Wiegand was asked whether he had an understanding of whether the green mound juniper had a root system. He did not claim expertise with the plant but testified, “I assume at the size of it that it probably would have a significant root system.”
72. The record is devoid of evidence concerning the root system typical to the species Juniperus procumbens or particular to the green mound juniper. Wiegand’s assumption as to the significance of a root system for the species, or for the green mound juniper in particular, makes speculative any resulting opinion derived from the extent of its root system.[11]
73. On direct examination, Wiegand testified he had installed geophones many times in the exercise of his profession. He seeks to avoid placing a seismograph in the vicinity of a plant so as to avoid all roots.
74. On cross examination, Wiegand testified that he placed a seismograph at another mine in southwestern Indiana to help evaluate the readings from two DNR seismographs. Undergrowth was located in proximity to this seismograph, and the undergrowth and two trees were located roughly between it and the blast site being monitored. Respondent’s Exhibit I.
75. The ISEE Blasters’ Handbook indicates placement of a seismometer “within grass roots or other plant roots” is improper.
76. Hart “did not run into any roots” of the green mound juniper when she installed Unit 1684. No roots were encountered when the DNR removed Unit 1684.
77. The record is devoid of evidence that Unit 1684 or its geophone was within roots of the green mound juniper or another plant.
78. The evidence does not support a finding the geophone was placed in such proximity to the green mound juniper that placement was improper. Unit 1684 was not placed in the roots of the green mound juniper. There is no showing that roots from the green mound juniper subsequently expanded and came into unreasonable proximity to the green mound juniper.
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79. As a hypothetical, plant roots in proximity to a seismometer can cause it to function improperly. Evidence does not support a finding the green mound juniper or another plant caused Unit 1684 to function improperly.
80. Although minimizing the extent to which ground vibrations pass through roots between a blast site, and a seismograph placed to determine the impact on a dwelling or another structure may be a worthy goal, United did not provide professional literature to support a conclusion roots in the pathway must be avoided. The practices of United’s expert are not consistent with avoidance. Avoidance of plant roots in the pathway between a blast site and a seismograph at a protected structure is an aspiration not a mandate.
81. In what is understood as an effort to support the theory that roots of the green mound juniper caused distortions to seismograph readings, Wiegand graphed readings for Unit 2849 (IDNR #1) and Unit 468 (IDNR #2) between June 4, 2007 and July 30, 2007. Claimant’s Exhibit 1. He concluded “nearly all the readings for the [Unit] 1684”[12] were “higher than the second instrument that was installed.” Wiegand affirmed when asked if was comparing the readings for Unit 2849 with those of Unit 468.
82. On cross examination, Hart compared peak particle velocities that Wiegand charted for Unit 2849 and Unit 468. She was asked her opinion why Unit 2849 readings charted higher than Unit 468 readings. Hart responded that Unit 2849 may have been oriented more directly to the blast sites than Unit 468. In addition, Unit 2849 was placed in February and Unit 468 in May, and readings can be higher for a recently-placed seismograph than one placed previously because soils dry out. Hart was asked whether the differences for recently-placed and previously-placed seismographs would diminish with the passage of time, and she agreed they would. Claimant’s Exhibit 1 identifies 37 blasting events. For seven of these events, the readings from Unit 2849 appear to be higher, and Hart agreed at least some of them were significantly higher. Five of these seven occurred early in the charted period before soils may have dried. For one event, the reading from Unit 468 appeared to be higher. For the other 29 events, the readings appeared to be identical or nearly so.
83. No weight is accorded to the comparison of seismograph readings in Claimant’s Exhibit 1. The evidence is inconclusive. Although enough to satisfy relevance, the relationship of readings between Unit 2849 and Unit 468 to a blast recorded previously at Unit 1684 is tenuous. The results were subject to multiple interpretations. If anything, Hart’s conclusions were more persuasive than Wiegand’s.
84. The evidence does not support a finding Unit 1684 was placed improperly when the blast was recorded that formed the subject of the NOV.
G. Condition of the Geophone
85. Hart placed seismograph Unit 1684 on behalf of the DNR.
86. After recording the blast which is the basis for the NOV, the DNR determined to remove and inspect Unit 1684. The primary purpose for removal was to observe the geophone. The geophone has a square puck with sides approximately 1½ inches or two inches long. DNR invited United to attend and observe the removal process, but United elected not to attend.
87. On February 28, 2007, Hart assisted her supervisor, Steve Weinzapfel, in removing Unit 1684. Weinzapfel started the excavation with the use of a 14-inch spade. Because Hart had placed Unit 1684, she and Weinzapfel knew the approximate depth of the geophone. After the initial spading, Weinzapfel used his hands for the last inch of the excavation. He removed Unit 1684 as gingerly as practicable. DNR’s purpose for proceeding cautiously was to avoid disturbing the position of the geophone.
88. At the time of removal of Unit 1684, DNR observed the surrounding soils were wet. Three of the four sides of the geophone were coupled with the soil. There was a slight decoupling from the fourth side. The gap on the fourth side was between one-eighth and one-sixteenth inch wide. In other words, the fourth side was not in contact with the soil.
89. No direct evidence was offered concerning how or when one side of the puck for the geophone became decoupled.
90. On direct examination, Hart was asked if a determination could be made whether decoupling existed when the blast occurred that was the basis for the NOV. She testified waveforms could be reviewed, but DNR did not observe anything of significance in the wave train. Her understanding was a wave train would demonstrate more of a football shape and be more elongated. She added she was not an expert on waveforms and had never seen “what a true decoupling looks line on a wave train.”
91. Wiegand is experienced with the review of wave forms resulting from decoupling. He agreed with Hart that decoupling could result in a football-shaped waveform, but he testified decoupling could also result in a normal-looking waveform.
92. With respect to the relationship of decoupling and waveforms, the testimony by Wiegand is more persuasive. His experience supports the conclusion that a football-shaped or elongated waveform is not a necessary result of decoupling. The absence of a football-shaped waveform, from the blast which formed the basis for the NOV, does not support a conclusion decoupling was absent when the blast occurred.
93. On direct examination, Hart testified she believed the decoupling occurred when DNR removed Unit 1684 on February 28, 2007.
94. On cross examination, Wiegand testified it was unlikely decoupling occurred when Unit 1684 was removed because the DNR took care in the removal process. The evidence is supportive of Wiegand’s conclusion. The DNR exercised appropriate care in removing Unit 1684. Decoupling is unlikely to have occurred when DNR removed the seismograph.
95. On cross examination, Hart testified several occurrences could cause decoupling. Possibilities included freezing-and-thawing, wetness, and improper installation. These possibilities are not disputed by United. Hart also testified DNR briefs presented to the administrative law judge in the initial United Minerals decision suggested decoupling could have been caused by soil wetness.
96. Freezing-and-thawing could have occurred in February 2007 to cause decoupling, but the evidence is inconclusive.
97. On re-cross examination, Hart identified a rainfall event of 1.2 inches in the vicinity of Unit 1684 that occurred on February 12, 2007. This rainfall event was eleven days before the blast at issue. On cross examination, she had testified to a similar rainfall event the day after the blast. The rainfall events were based on data submitted by Black Beauty Coal Company, and the data were not disputed at hearing.
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98. The optimum condition for a seismograph is if all four sides of a geophone are coupled. Professional publications indicate coupling is extremely important to obtain an accurate seismograph reading. The ISEE Blasters’ Handbook is found to be a reliable source for evaluating blast data and states:
Poor Seismometer Coupling
…. It is important that there be good coupling between the vibration sensor (seismometer) and the ground. The most common result of poor coupling is to amplify (exaggerate) the true motion of the ground…. It is not unusual for such monitoring to register motions which are from 1.5 to 3 times that of the true ground motion….
Wiegand’s expert opinion also supported this portion of the ISEE Blasters’ Handbook.
99. Decoupling means contact between a geophone and the soil is not adequate, and the inadequacy may be formed by a gap. If a geophone is allowed to move in excess of the true ground motion, the seismograph reading is amplified from the actual ground vibration. The geophone may occupy the space or the gap while the vibration is being recorded. In most cases, the result is a higher vibration reading than what occurred. The side of a geophone that is uncoupled is irrelevant because vibration occurs in all directions. The stronger the vibration, the more excitement to the ground is likely to result. Extra vibration may be imparted into the geophone, and distortion may be more than for a lower vibration. Decoupling might cause a greater exaggeration of the recorded ground vibration for a stronger blast than for a weaker blast.
100. On February 23, 2007, Unit 1684 recorded a velocity that was relatively high at 1.09 inches per second, and this velocity would have exceeded the legal limit. The peak frequency was 22.2 hertz which was also a relatively high frequency. At this frequency, decoupling between the geophone and the soil likely resulted in an exaggerated seismograph reading. The higher frequency indicated a higher acceleration value which likely caused a greater impact on the geophone. At the peak frequency of 22.2 hertz, the additional vibration needed to raise a lawful peak particle velocity from 1.00 inches per second to a violation of 1.09 inches per second was the small amount of 0.000654 inches. A sixteenth of an inch exceeded what would be needed to cause a lawful peak particle velocity to be recorded inaccurately on Unit 1684 as a violation.
101. The predicted ground vibration for the blast formulated by Gogel was between 0.3 and 0.4 inches per second. Decoupling is expected to cause recorded ground vibrations to be exceeded by 1.5 to three times the actual ground vibrations. For the blast that is the subject of the NOV, the predicted ground vibration would be expected to be recorded at between 0.45 and 1.20 inches per second as a consequence of the decoupling. The peak particle velocity of 1.09 inches per second recorded by Unit 1684 is within the range of expectations.
102. Hart agreed decoupling could result in abnormal readings on a seismograph, even if the seismograph was calibrated properly. She also agreed the greater the amount of vibration, the greater the impact would be on the reading if decoupling occurred. The amount of decoupling required for a ground vibration of 1.00 inch per second to be misread on a seismograph as 1.09 inch per second could be determined through a software analysis. Hart did not analyze and could not testify how much decoupling would be required for a lawful blast level to be misread as a violation of 1.09 inches per second.
103. There was no evidence to support a finding Unit 1684 was installed improperly.
104. The ultimate findings are the geophone for Unit 1684 was probably decoupled by moisture and particularly the rainfall event of 1.2 inches that occurred on February 12, 2007. The rainfall event of 1.2 inches on February 27, 2007, and perhaps freezing-and-thawing, may have aggravated decoupling. Most probably decoupling occurred before February 23, 2007 when the blast was recorded that formed the basis for the subject of the NOV. This conclusion is further supported, because for the blast that is the subject of the NOV, the predicted ground vibration with decoupling would be expected to be recorded between 0.45 and 1.20 inches per second. The peak particle velocity of 1.09 inches per second recorded by Unit 1684 would be within the range of expectations for a decoupled geophone.
105. As a result of decoupling, the peak particle velocity recorded on February 23, 2007 would likely have been excessive. The amount of decoupling that existed on February 23 is unknown and perhaps unknowable. As a consequence, whether the genuine ground level vibration on February 23 exceeded the regulatory maximum of 1.00 inch per second is uncertain. But at the first opportunity to view the geophone following the recording, the evidence is undisputed that decoupling was between one-eighth and one-sixteenth of an inch.
106. The DNR appropriately unearthed Unit 1684 to confirm or deny the existence of a problem with the geophone. DNR encountered decoupling. Decoupling was a problem with the condition of the geophone. Decoupling likely caused the reading of Unit 1684 on February 23 to be excessive and almost certainly to be unreliable. The NOV cannot be sustained because it is based upon an unreliable seismograph reading.
[1] On remand, the hearing on the merits might have been based on evidence already in the record with additional testimony, particularly expert testimony, explaining how the witnesses evaluated the regulatory consequences of the evidence. Instead, the parties offered testimony that included evidence not referenced in the initial United Minerals decision. United objected on relevance to an aspect of DNR’s cross examination of John Wiegand, but for the most part, the parties did not object to the offer of what is seemingly new evidence. Absent from the record before the substitute administrative law judge were documents leading to the summary judgment granted by the administrative law judge in the initial United Minerals decision.
[2] “Congressional concern for the safety of persons and property in the vicinity of surface mining blasting operations was raised” in the House Subcommittee on Energy and the Environment. “The subcommittee hearings revealed that the cumulative effects of the damage inflicted on the victims of mine blasting had been enormous.” The inherent dangers associated with blasting operations were identified as: (1) geological and structural damage caused by excessive ground motion; (2) structural damage and annoyance caused by excessive air blast; and, (3) the danger to persons and property from flyrock. Regulations to address the potential hazards of blasting included those establishing maximum limits for peak particle velocity. The maximum velocity established at 1.00 inch per second was based on a “Department of Mines study which concluded that peak particle velocity was more closely associated with damage to structures than any other single measurement.” Note, Regulation of Blasting Practices under the Surface Mining Control and Reclamation Act of 1977, 81 W. Va. L. Rev. 763 (1979)
[3] An Indiana Blasting Certification is understood to reference an ISMCRA blaster certification that is governed by IC § 14-34-12 and 312 IAC § 25-9.
[4] The remand by the Court of Appeals is directed to determining the validity of the seismograph reading. This proceeding does not address whether seismograph data can determine regulatory compliance when an operator under ISMCRA is approved to use the scaled-distance equation. Hart conceded from documentation the blast was within the recommended scaled-distance equation and did not violate the blast level chart. Wiegand reviewed DNR’s documentation and agreed. On cross examination, Wiegand conceded a seismograph reading is the best measure for ground vibrations, assuming the seismograph is functioning properly and positioned properly.
[5] 312 IAC § 25-6-32(h)(2)(A) provides the maximum ground vibration limit from blasting must not exceed 1.00 inch per second at the location of a dwelling, public building, school, church, or community or institutional building located between 301 and 5,000 feet of the blasting site. Testimonies varied as to the distance between the subject blast and Unit 1684, but the testimonies were well within the range of 301 to 5,000 feet.
[6] The plant which Hart identified as the “juniper bush” is referenced in the initial United Minerals decision as “the green mound juniper” and is subsequently referenced as the “green mound juniper” in these Findings. A “green mound juniper” is a common name for the species Juniperus procumbens. The species is a native of southern Japan which has been introduced to the United States and “used for ground cover in rockeries and as bonsai.” Wikipedia (last modified July 12, 2012). The green mound juniper is depicted in a photograph admitted as Claimant’s Exhibit 5. Layperson observation of Claimant’s Exhibit 5 suggests the plant is probably a juniper. No witness claimed expertise in the botany of junipers or of Juniperus procumbens. The basis for a determination of species is undisclosed by the record presented to the substitute administrative law judge.
[7] The court reporter was not requested to prepare a transcript of the hearing. If a witness is shown as quoted in these Findings, the statement is as nearly verbatim as the substitute administrative law judge could determine from an audio recording. A stutter or verbal misdirection may be omitted. If a transcript is subsequently prepared that indicates different wording, the transcript constitutes the record, and a quotation here shall be considered to paraphrase witness testimony.
[8] During her direct examination, Hart stated “our Nolan seismograph…2036 is on the up-slope.” Evidence supports a conclusion that Unit 2036 was maintained by United rather than the DNR and was located near the Bruce Residence until being relocated near the Nolan Residence on March 21, 2007. See Finding 28 and Finding 29. From the context of her testimony and observing the contour lines in Respondent’s Exhibit C, the administrative law judge determines that Hart misspoke and intended to refer to DNR’s seismograph Unit 1684 rather than Unit 2036.
At hearing, witnesses testified to alternative names for Unit 468, Unit 1684, Unit 2036, Unit 2654 and Unit 2849. These included the “Bruce seismograph”, “United Minerals Number 2” and similar names. Exhibits also used different names for the six seismographs. The alternative names create challenges for testimony interpretation, in part because some of the seismographs were placed at different locations at different times. Post-hearing briefing by both parties was directed mostly to Unit numbers, so these Findings seek to track similarly by using Unit numbers.
[9] In its Footnote 1, the Court of Appeals of Indiana defined a geophone as “an electronic receiver designed to pick up seismic vibrations on or below the Earth’s surface and to convert them into electric impulses that are proportional to the displacement, velocity, and acceleration of ground movement.”
[10] Indiana Farms is considered as anticipated by IC § 4-21.5-3-27(c).
[11] Wiegand’s characterization of the green mound juniper as having a “significant” root system is uninformative. The depicted plant appears robust in Claimant’s Exhibit 5, so the root system must be significant to the species. The record does not identify how a determination of species was made or if the initial characterization as a “green mound juniper” was intended to identify a species. No finding is made, but if a Juniperus procumbens is used for used for ground cover in rockeries and as bonsai, the green mound juniper might have a relatively diminutive root system. There is no basis for determining root system’s significance relative to readings on a seismograph.
[12] From the context of Wiegand’s testimony, including testimony by Hart earlier during the hearing, the substitute administrative law judge determines that Wiegand probably misspoke and intended to refer to Unit 2849 rather than Unit 1684. The evidence is that Unit 1684 was removed on February 28, 2007 and not again used in the vicinity of the site of the NOV. Unit 1684 could not have been the subject of a graphic covering June 4 through July 30, 2007.