A. Claimant Jaeco, Inc., is obligated to conform to the updated Order of the Director sent by certified mail P-591 190 528 commencing March 18, 1989, with respect to that part of the order requiring seismic and acoustic monitoring of all blasts.
B. All references in the above order of the Director to Jaeco's failure to revise its blasting plan or submit a proposed revision are hereby deleted.
FINDINGS OF FACT
1. On Match 20, 1989, Jaeco, Inc. ("Jaeco") requested a hearing to review an updated order of the Director sent by certified mail, #P 591190528.
2. IC 4-21.5 and IC 13-4.1 apply to this proceeding.
3. The department of natural resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The director is the ultimate authority for the Department with respect to this proceeding.
4. Jaeco holds permit S-00118 to conduct surface coal mining operations in connection with the Eel River Mine.
5. On March 8, 1989, Jaeco, Inc. received certified mail P 591190328 containing an undated order of the Director admitted into evidence as part of the Department's request for admissions.
6. On or about April 11, 1988, the Department issued an Order to Show Cause to Jaeco.
7. On September 22, 1988, the Department and Jaeco finalized a settlement agreement on the Order to Show Cause consisting of five (5) pages and entered into evidence as part of the Department's Request for Admissions.
8. Neither the Department nor Jaeco was represented by counsel in drafting the settlement agreement referred to in Finding 7.
9. The order of the Director which is the subject of administrative review refers to the settlement agreement of September 22, 1988, and ordered Jaeco to conduct seismic and acoustic monitoring of blasts.
10. The Order of the Director which is the subject of administrative review referring to the failure of Jaeco to submit a revised permit pursuant to the settlement agreement of September 22, 1988.
11. The Order of the Director which is the subject of the administrative review give Jaeco ten (10) days to install machines capable of providing seismic and acoustic data.
12. Ten (10) days from March 8, 1989 is March 18, 1989.
13. No evidence was introduced to show that Jaeco was not still monitoring blasting as per the September 22, 1988 settlement agreement.
14. Jaeco submitted a revised blasting plan dated November 28, 1988.
15. This revised plan apparently was not approved and it appears as though there was a total break down in communications between the parties at that point.
16. There have been a number of complaints filed dealing with Jaeco's blasts.
17. Some of these complaints were for blasts which were not in violation of Department standards, and thus no further action was taken by the Department.
18. Some of these complaints resulted in notice of violation being issued by the Department.
19. Jaeco has paid fines for six (6) blasting violations since November of 1987 and has approximately eight (8) alleged violations currently under administrative review.
20. Jaeco contends that the settlement agreement has expired.
21. Jaeco contends that the Order of the Director which is the subject of this administrative review is arbitrary and capricious.
22. 310 IAC 12-5-36 provides in part that "The Director may require a permittee to conduct seismic monitoring of any or all blasts ... ."
23. There exists sufficient evidence of blasting problems to conclude that Order of the Director ... is not arbitrary or capricious and the evidence justifies additional monitoring or blasts independent of the existence of the agreement of September 22, 1988.
24. The Order of the Director in question became effective on March 18, 1989.
25. There exists sufficient evidence to show attempted compliance with the terms of the agreement of
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September 22, 1988 with respect to the filing of revised plans. Accordingly, that portion of the Director's Order in question dealing with the failure to submit revised plans is deleted from the Director's order.