CADDNAR

[CITE: Jarrett v. DNR and Amax Coal Company, 5 CADDNAR 265 (1992)]

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Cause #: 89-106R

Caption: Jarrett v. DNR and Amax Coal Company [Jarrett III]
Administrative Law Judge: Teeguarden
Attorneys: Goodwin, Pope; Blanton; Spicker
Amicus Curiae: Noland, Indiana Coal Council; Cobb, Hoosier Environmental Council
Date: May 22, 1992

ORDER

[NOTE 1: JARRETT SOUGHT JUDICIAL REVIEW IN THE SULLIVAN SUPERIOR COURT IN CAUSE NUMBER 77D01-9206-CP-0100. ON JUNE 6, 1996, THE SUPERIOR COURT DISMISSED AS MOOT. SUPERIOR COURT DECISION FOLLOWS ADMINISTRATIVE DECISION. ON MAY 15, 1997, THE COURT OF APPEALS ENTERED AN ORDER OF DISMISSAL. (77A01-9701-CV-28). COURT OF APPEALS ORDER FOLLOWING CIRCUIT COURT DECISION BELOW.]

[NOTE 2: ON MAY 22, 1992, THE NRC MODIFIED THE ALJ'S "REPORT, FINDINGS OF FACT, AND NONFINAL ORDER" AND ADOPTED THE DNR DIVISION OF RECLAMATION RECOMMENDATIONS]

1. The NRC reverses the ALJ, and finds that the burden of proof in administrative review actions under I-SMCRA is upon the party seeking to reverse the agency action.

2. The NRC reverses the ALJ and finds the "status quo" is that AMAX Coal Company operated and is operating under valid permits numbers S-0004102 and S-00242 as approved by the NRC in May and December of 1989, respectively. The NRC further finds the permits were not stayed nor was temporary relief granted to parties attempting to reverse the agency action; AMAX's approval to mine under permits S-00041-2 and S-00242 has never been reversed by any agency action or court order under the AAA or SMCRA.

3. The NRC reverses the ALJ and finds the blasting limits set forth in state rules, 310 IAC 12-5-36(h)(2)(i) and in the subject permit are satisfactory to protect property from blasting damage in this case because the usual limits take into account low frequency blast vibrations and the usual limits have been enforced for years with no finding of blasting damage, when the limits are complied with.

4. The NRC reversed the ALJ and finds the third and fourth non-final orders should be stricken as well as all related findings. The third non-final order should be revised to state, "Permit S-0004102 is approved and issued without condition 12 subject to final disposition on the issue of water rights and replacement requirements under I-SMCRA in the Indiana courts." . The fourth non-final order should be revised to state, "Permit S-00242 is approved and issued.".

5. The NRC finds it is bound by the Marion Court decision until the outcome of the appeal actions taken by the DNR in the Indiana Court of Appeals concerning water rights, and therefore adopts the ALJ's findings with respect to all matters related to the issue of water rights in this case. However [emphasis not supplied] the NRC continues to assert its position in opposition to the Marion Superior Court decision in the Indiana Court of Appeals, Cause Number 99-A01-9112-CV-419. [603 N.E.2d 1349 (Ind. App.), 638 N.E.2d 1418(Ind.)]

Final Order (Regarding Administrative Cause Number 90-264R

[NOTE: THIS FINAL ORDER WAS NOT TAKEN ON JUDICIAL REVIEW]:

CO 00801-S-00041 is vacated. Condition 13 to permit S-00041-2 has been satisfied.

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NONFINAL ORDER

Condition 12 to permit S-00041-2 is improper and is stricken from the permit. Condition 13 to permit S-00041-2 is a valid exercise of regulatory authority and remains part of the permit. Permit S-00041-2 is approved and issued subject to the blasting limits contained in paragraph 122 of the Findings of Fact. Permit S-00242 is approved and issued subject to the blasting limits contained in paragraph 122 of the Findings of Fact.

FINDINGS OF FACT

1. The department of natural resources is an agency within the meaning of IC 4-21.5.

2. The department of natural resources has the primary responsibility for regulating surface coal mines in Indiana including the grant (or denial) of surface coal mining permits.

3. Surface coal mining in Indiana is regulated under IC 13-4.1 and 310 IAC. 12.

4. The division of the department of natural resources which deals with coal mine regulation is the division of reclamation.

5. The Indiana surface mining program is subject to oversite [sic] by the U.S. Department of Interior Office of Surface Mining.

6. Amax Coal Company operates a number of surface coal mines in Indiana and currently holds permits S-00242 and S-00041 which allow the surface mining of coal near Dugger, Indiana, in Sullivan County.

7. Jack Jarrett and his family own approximately 300 acres of land near Dugger, Indiana. This tract of land includes three residences, one business building, several ponds, out buildings used in connection with farming and livestock, and one detached garage with an apartment.

8. The following abbreviations will be used in this decision.

(a) "DNR" refers to the Indiana Department of Natural Resources.

(b) "DOR" refers to the Division of Reclamation of the DNR.

(d) "Amax" refers to Amax Coal Company, Amax Coal Industries, Meadowlark Farms, Inc., or any other subsidiary or sister company owned or operated by Amax Coal Company.

(e) "Jarrett" refers to any or all members of the Jarrett family or anyone having an interest in the computerized typesetting business operated on the Jarrett property in Dugger, Indiana.

(f) "I-SMCRA" refers to the Indiana Surface Mining Act (IC 13-4.1) and the rules promulgated under the act (310 IAC 12).

(g) "F-SMCRA" refers to the Federal Surface Mining Reclamation and Control Act (30 USCA 1201 et seq.) and regulations promulgated under the act (30 CFR 700 et seq).

(h) "Cass 2" refers to surface coal mine application and permit S-00041-2, an amendment of the original S-00041 which added extensive acreage to the permit area.

(i) "Caledonia" refers to surface coal mine application and permit number S-00242.

(j) "ALJ" refers to an administrative law judge employed by the NRC for the purpose of hearing requests for administrative review of DNR actions.

(k) "AOPA" refers to IC 4-21.5, the Indiana Administrative Orders and Procedures Act.

(l) "Jarrett I" refers to the ALJ decision covering a series of requests for administrative review by Jarrett and Amax decided on July 27, 1990, and modified by the NRC on October 29, 1990.

(m) "Judicial review" refers to the court proceedings instituted under the AOPA by the parties on those portions of Jarrett I that constituted final order of the NRC. It was filed in Marion County Superior Court #1 as cause #49D-01-9008-MI-1286.

(n) "CO" refers to Cessation Order C 00801-S-00041 given by DOR to Amax on August 1, 1990.

(o) "Jarrett II" refers to the ALJ decision on Jarrett's requests for temporary relief on the Cass 2 permit and the DNR decision to modify the CO which was published by the ALJ on March 14, 1991.

(p) "Condition 12" refers to condition 12 attached to the Cass-2 permit which prohibited Amax from increasing the pumping of ground water from underground works until certain requirements were satisfied. (q) "Condition 13" refers to

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condition 13 attached to the Cass-2 permit which prevented Amax from blasting in the Cass 2 permit area until Amax provided more information about safe blasting levels near abandoned underground mines.

(r) "Regent" refers to a set of abandoned underground works coal in Seam VI which underlay the Jarrett property and the Cass 2 permit area.

(s) "Vandalia" refers to a set of abandoned underground works in Coal Seam VI which also underlay the Jarrett property and the Cass 2 permit area.

(t) "Coal VII refers to the major seam nearest the surface of the ground in Sullivan County, Indiana. This coal is mined by surface mining methods.

(u) "Coal VI" refers to the major seam of coal lying under coal Seam VII in Sullivan County, Indiana. It lies approximately 100 feet below the surface of the earth and most prior coal mining of this seam in this area involved the underground mining method known as "room and pillar" mining.

(v) "Abandoned underground works" refers to underground coal mines in Coal Seam VI, Coal Seam V, and Coal Seam IV which are no longer active or maintained and have not been worked or maintained in more than 35 years.

(w) "Subsidence" refers to a lowering of the elevation of the surface of the ground due to the collapse of abandoned underground works.

(x) "Usual blasting limits" refer to the usual limits on blasting vibrations off the permit property found in many surface coal mine permits issued by the DNR. Those limits are 1.25 ips within 300 feet of the blast, 1.0 ips for locations between 301 and 5000 feet from the blast, and .75 ips for location farther than 5000 feet from the blast. See 310 IAC 12-5-36 (h) (2).

9. The ALJ is the ultimate authority within the meaning of the AOPA with respect to requests for administrative review of I-SMCRA cases involving enforcement actions and thus is the ultimate authority over cause numbers 90-251R and 90-264R which deal exclusively with the CO.

10. The ALJ is the ultimate authority within the meaning of the AOPA with respect to whether or not Amax submissions with respect to condition 13 were sufficient to find that condition 13 had been satisfied and that Amax could commence blasting and thus is the ultimate authority with respect to cause number 90-211R.

11. The NRC is the ultimate authority within the meaning of the AOPA with respect to whether or not a surface coal mining permit should be granted or denied, thus the NRC is the ultimate authority with respect to cause numbers 89-106R and 90-012R which challenge the grant of the Cass 2 and Caledonia permits, respectively. With respect to cause number 89-099R in which Amax objected to conditions 12 and 13, those issues are involved so intimately with the overall grant (or denial) of the Cass 2 permit that the case cannot be separated from this process and thus the NRC exercise ultimate authority over this matter contemporaneously with its decision on 89-106R.

12. The issues presented by these six administrative cases are as follows:

(a) Who bears the burden of proof at an administrative hearing involving an appeal of the DNR's decision to grant a permit? Amax and the DNR contend that the AOPA, F-SMCRA, and I-SMCRA place the burden of proof on the party challenging the initial agency decision. In these cases, this contention places the burden of proof on Jarrett since the initial agency decision was to grant the permits. Jarrett contends that I-SMCRA places the burden of showing a permit should be issued on the applicant (Amax) at all stages of the administrative proceeding.

(b) What does the word "damage" mean when used in the context of F-SMCRA and I-SMCRA blasting rules and regulations. Jarrett contends that "damage" is a broad concept which includes nuisance and inconvenience. Amax and the DNR contend that SMCRA provisions dealing with blasting so as not to damage persons and property means that blasting does not cause physical injury to persons or structural damage to property.

(c)What is the appropriate regulatory level for blasting so as to assure that property in the Cass 2 and Caledonia permit areas are not damaged? This issue includes the prevention of damage to

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abandoned underground works under the Jarrett property. Amax and the DNR contend that the limits contained in the permits and established as a result of condition 13 of the Cass 2 permit will prevent damage. Jarrett contends that the permit limits do not protect local residents from damage due to blasting.

(d) Will depressurization of abandoned underground works cause an increased risk of collapse and therefore an increased risk of subsidence damage to the surface and to buildings on the surface? Amax contends that neither F-SMCRA nor I-SMCRA amends the common law of Indiana water rights and thus Amax can pump as much groundwater as it wishes as long as the pumping is done on property owned or legally controlled by Amax and the pumping is done for a valid business purpose and not done maliciously. The DNR and Jarrett contend that I-SMCRA gives the DNR the right to regulate the pumping of ground water. Amax also contends that the abandoned underground works in question were designed and mined to subside and that because the mining was done at least 35 years ago and more than 60 years ago in some areas, all portions of the underground works except shafts and major haulage ways have already failed. Jarrett contends that a number of areas of the underground works may still be standing and depressurization places those roofs and pillars in extreme peril.

(e) Can the DNR issue a cessation order banning all pumping of ground water and if so, under I-SMCRA, F-SMCRA or the AOPA, does Jarrett have a right to obtain specific enforcement action by the DNR against a surface mine permit holder?

13. The Cass-2 permit was approved by representatives of the agency on May 17, 1989.

14. The Caledonia permit was approved by representatives of the agency on December 15, 1989.[FOOTNOTE 1]

15. Jarrett filed timely requests for review of both permits.

16. The Cass 2 permit contained a number of conditions. Amax filed a timely appeal of conditions 12 and 13 which were added to the permit to address some of Jarrett's concerns.

17. Condition 12 reads as follows: No additional wells to dewater Coal VI and VII shall be activated until sufficient detail is added to the statement of probable hydrological consequences to determine the effects that the dewatering may have on potential subsidence both within the permit and adjacent off-site areas. In addition, a groundwater monitoring well must be installed in Coal VI at a location approved by the Division of Reclamation and a monitoring plan approved and initiated before any additional dewatering wells are activated.

18. Condition 13 reads as follows: Prior to any blasting in the amendment area, Amax shall establish a monitoring plan to prevent adverse effects to the abandoned underground mines from their surface mine blasting on permit #S-00041-2. Amax shall submit for review and approval the following:

(1) The location(s) of seismograph placement.

(2) The Peak Particle Velocity not to be exceeded at the monitoring location.

(3) All the references which support #1 and #2 above.

(4) A copy of the report which will be completed after each blast and that will contain the date collected above and that will be made available to DNR upon request.

19. Condition 13 was deemed satisfied by the DNR on September 12, 1989.

20. Jarrett filed a timely request for administrative review of the DNR's decision that submissions by Amax satisfied condition 13.

21. All real estate in the area of the Cass mine, the Caledonia mine, and the Jarrett property have abandoned old works underneath the surface.

22. Underground mining commenced in this area shortly after the turn of the century and appears to have ended in 1954.

23. All of these abandoned old works are filled with groundwater which has flowed or seeped into the cavities.

24. Jarrett is concerned that pumping and blasting will increase the risk of his property subsiding because of pillar or roof failure in the old works under his property.

25. Jarrett is also concerned about blasting damage to his property and contends that the regulatory limits set in the permits do not prevent damage as

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required by I-SMCRA and F-SMCRA.

26. Both the Indiana Coal Council and the Hoosier Environmental Council were granted amicus curiae status in Jarrett I because of their interest in some of these issues.

27. On or about July 22, 1990, monitoring wells in old works in the Cass-2 permit area began to show a rapid reduction of groundwater levels.

28. On August 1, 1990, the DNR issued a CO which was served on Amax on August 2, 1990.

29. The CO required Amax to cease pumping groundwater out of the pit.

30. The CO was modified on August 3, 1990, and allowed pumping to resume subject to the certain conditions.

31. Amax filed a timely request for administrative review of the issuance of the CO.

32. Jarrett filed a timely request for review of the modification of the CO.

33. Jarrett also requested temporary relief under I-SMCRA from the modification.

34. Jarrett I was decided by the ALJ on July 27, 1990, in a 48 page decision following 24 days of hearing.

35. Jarrett I was modified by the NRC (the ultimate authority) in August of 1990 and a final decision issued by the NRC in October of 1990.

36. Jarrett I did not decide the matter of temporary relief with respect to the issuance of the Cass-2 permit.

37. Jarrett II was decided by the ALJ on March 14, 1991, and denied Jarrett temporary relief from both the modification of the CO and the issuance of Cass-2 permit.

38. Jarrett II was decided after 18 more days of testimony and the decision consisted of another 20 pages.

39. A site visitation was held in connection with Jarrett I during March of 1990.

40. The purpose of this visit was to see the Jarrett property and the mine location.

41. The current set of hearings in this matter will be referred to as "Jarrett III."

42. Two site visitations were held in May of 1991 in order to undergo blasts.

43. The ALJ is bound by all final decisions made by the NRC on October 29, 1991, in Jarrett I except those overturned on judicial review.

44. Judicial review was taken by both Amax and Jarrett. On June 17, 1991, Judge Metz of Marion Superior Court #1 reversed the NRC on the issue of water rights (and subjacent support) and entered an order finding that I-SMCRA and F-SMCRA do not change Indiana Law on water rights. See Exhibit A attached to this decision.[FOOTNOTE 2]

45. All parties have agreed in Jarrett III that since the parties are the same and the issues are the same or similar, all evidence, objections, exhibits, testimony, briefs and arguments of the parties in Jarrett I and Jarrett II will be considered part of this administrative appeal and the ALJ takes official notice of all such items pursuant to IC 4-21.5-3-26(f).

46. With respect to burden of proof, the Indiana Court of Appeals correctly noted that the AOPA is a little sketchy in discussion burden of proof. In Peabody Coal Co. v. Ralston (Ind. App. 1991), 578 N.E. 2d 751, the Court of Appeals discussed the concept of burden of proof in I-SMCRA cases and found that in Enforcement proceedings, the burden is always on the DNR. This decision does not aid in helping establish who has the burden of proof in permitting cases.

47. F-SMCRA clearly places the burden on any party seeking to reverse an agency action, this implying the regulatory authority never has the burden of proof in a administrating hearing. 30 CFR 775.11(b) (5).

48. In Jarrett I, the ALJ held that an administrative hearing on whether or not a permit should be issued is essentially a de novo hearing; that is, the ALJ stands in the shoes of the initial agency decision maker and is required to consider all available evidence and information relevant to the issuance of the permit. The ALJ specifically does not act as a reviewing authority limited to deciding whether or not the initial determination was correctly made on the basis of the information available at the time. This finding has not yet been modified or altered in any way by the NRC or a court of law.

49. Neither the Cass-2 nor the Caledonia permit has been the subject of a final determination by an ultimate authority within the meaning of the AOPA.

50. Applying a "status quo" test, as of this hearing there has not been

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approval for I-SMCRA permits for Cass-2 and Caledonia, therefore the "status quo" is simply that Amax does not have final approval to mine the areas.

51. IC 13-4.1-4-3(a) provides that the applicant has the burden of establishing application complies with all requirements of I-SMCRA. Until that time, the NRC may not approve the permit application.

52. The ALJ now hods that the word "approval" in paragraph 51 means "final approval" and that under I-SMCRA, the applicant (who is the person seeking to change the status quo) retains this burden until the ultimate authority approves the permit.

53. Amax, therefore, still has the burden of proof of showing the Cass-2 and Caledonia permits should be issued. This conclusion is based on the specific provisions of I-SMCRA and not the AOPA.

54. With respect to condition 13, the matter has been decided by the Marion County Superior Court #1. (See Exhibit A). Until the Court of Appeals decides otherwise, all parties, the ALJ, and the NRC are bound by this decision.

55. In Jarrett I, the ALJ held that I-SMCRA did not affect Indiana water rights but the DNR could regulate pumping in the vicinity of abandoned underground mines under a subjacent support theory.

56. The NRC subsequently modified Jarrett I by finding I-SMCRA did amend the Indiana Law of water rights, affirmed the ALJ holding on subjacent support, and agreed that the DNR could regulate pumping as per condition 12.

57. The Marion County Superior Court #1 held that the Indiana law of water rights was not and is not changed by I-SMCRA and the law of subjacent support cannot be used to defeat water rights.

58. The Indiana law of water rights allow a property owner to pump unlimited amounts of groundwater from beneath his own property as long as it is not done maliciously and solely for the purpose of injuring another party. See exhibit A for numerous citations.

59. Therefore condition 12 was an illegal and improper interference with Amax's right to pump groundwater from the area under its mining operations in the Cass-2 permit area and the condition should be stricken from the permit.

60. Similarly, the same analysis applies to the CO. The CO prohibited the pumping of groundwater which entered the pit.

61. The pit in question is on property owned or controlled by Amax. Further, as found in Jarrett I, pumping water out of the pit is done for a valid business reason.

62. The DNR was (and is) without authority to mandate the cessation of pit pumping.

63. The CO is therefore, vacated.

64. With regard to Jarrett's objection to the August 3 modification of the CO, since the ALJ has held the CO was improperly issued, there is no CO to modify and Jarrett's request for review should be dismissed.

65. Additionally, in Jarrett II, the ALJ found that the AOPA specifically exempts "A decision to issue or not issue a complaint, summons, or similar accusation" from being subject to administrative review. IC 4-21.5-2-5.

66. The request for review filed by Jarrett was really a request for the ALJ to order the DNR to issue the CO on grounds other than were cited by the DNR in issuing the CO.

67. As stated in Jarrett II, a person cannot appeal a decision by an agency to not take a specific enforcement action.

68. For their reasons as well, Jarrett's request for review of the CO modification must fall.

69. As to the definition of "damage" as used in I-SMCRA, incredibly it is an undefined term.

70. The ALJ is unaware of any attempt by the DNR to define "damage" in I-SMCRA and the DNR did not brief this issue.

71. Webster Dictionary defines damage as "impairment of the usefulness or value."

72. F-SMCRA does not specifically define "damage" but some of the comments to rules in the Federal Register discuss its meaning.

73. Since I-SMCRA and F-SMCRA are meant to be similar, the F-SMCRA interpretation is relevant and useful. Further, the Court of Appeals held in Indiana Department of Natural Resources v. Krantz Bros. Construction Corp. (Ind. App. 1991) 581 N.E. 2d 935, that in places where I-SMCRA is silent, F-SMCRA interpretations are useful and may be relied upon.

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74. Without question, the evidence shows that several persons in the area of Cass-2 undergo emotional distress related to blasting.

75. OSM's comments to rule making found in Volume 56, No.228 of the Federal Register (November 26, 1991) make it perfectly clear that the use of the word "damage" in blasting regulations does not include emotional distress but is limited to preventing injury or damage from fly rock or other direct blast effects.

76. Exhibit 455 (Volume 47 Number 57 of the Federal Register published in 1982) gives a definition of blasting damage by OSM. In this document, OSM states that "the level of changes subject to these rules (i.e. F-SMCRA blasting regulations) is considered to be any damage . . .which diminishes the value of the structure either to the owner or prospective buyer."

77. Nothing in I-SMCRA indicates that Indiana has ever considered a more stringent standard.

78. Jarrett relies in part on Cullison v. Medley (Ind. 1991) 570 N.E. 2d 27. To apply this case on emotional trauma, there must be a tortious trespass which the court points out is an unauthorized entry on the land of another.

79. Nothing in I-SMCRA or F-SMCRA can be read to consider ground motion set in place by energy released on the permit area as a trespass.

80. For purposes in I-SMCRA blasting regulations, the "damage" means physical injury caused by fly rock, ground vibration, or air blast, or a change in personal or real property caused by blasting which diminishes its usefulness to the owner or its fair market value.

81. As to appropriate blasting levels approved by the DNR a decision is not easily reached.

82. In the Federal Register articles cited in paragraphs 75 and 76, OSM makes it clear that the usual blasting limits are not etched in stone. OSM has rejected several attempts to reduce the usual limits, saying these limits are generally adequate and the regulatory authority has the right to lower the limits if local conditions require more stringent standards. In fact, a mandatory, across the board reduction of limits would not appear to be justified in those examining mining nationally shows a number of blasts take place in remote locations and to further restrict these limits makes no sense.

83. 30 CFR 816-67 requires blasting to be conducted so as to prevent injury to persons, damage to property outside the permit area, adverse impacts on underground mines, and changes in the course, channel, or availability of surface or ground water. In all permits, the maximum allowable ground vibration shall be reduced by the regulator if necessary to provide damage protection.

84. 310 IAC 12-5-36 sets forth similar requirements for I-SMCRA.

85. The usual blasting standards are a starting point for a permit approval; the DNR has a duty to modify these limits if necessary to prevent off-site damage.

86. With respect to condition 13, the DNR has an obligation under both I-SMCRA and F-SMCRA to look at the effect of blasting on underground mines in the area.

87. Therefore, requiring Amax to submit information dealing with blasting limits and underground mines prior to blasting is reasonable and a valid exercise of the DNR's regulatory authority.

88. Amax submitted a plan calling for ground vibrations not to exceed 2.0 ips over underground mines. The DNR approved this plan as part of the Cass-2 permit.

89. Jarrett requested review of the approval.

90. First, as a practical matter, the 2.0 ips blasting limits over underground mines are meaningless since the usual blasting limit also approved in the Cass-2 permit restricts blasts to a maximum of 1.25 ips off the Cass-2 permit area.

91. In Jarrett II, the ALJ found that blasting at coal mines is conducted in such a way as to fracture the overburden and leave the coal seam (Seam VII at Cass-2) undisturbed.

92. The underground mines in the Cass-2 area are Seam VI and below, so the vibrations in the vicinity of the underground works will be considerably less than at the Seam VII level.

93. In Jarrett II, the ALJ concluded the evidence showed that no more than 23% of the surface vibration would be reflected at any of the underground mines. No evidence was

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introduced in Jarrett III to contradict this finding.

94. Thus the vibration in the underground works would never exceed .3 ips under the usual blasting limits and rarely could exceed .25 ips.

95. Whether or not the old works are standing or in a state of collapse, no evidence has been introduced that vibrations of this magnitude could cause any further damage to the underground works.

96. The DNR’s action finding condition 13 of the Cass-2 permit to be satisfied was proper.

97. The one remaining issue deals with whether or not the usual blasting limits as approved in the Cass-2 and Caledonia permits satisfy the I-SMCRA and F-SMCRA requirements that blasting be conducted in such a manner and within such limits as to not cause damage off the permit area.

98. Appropriate blasting limits are currently being studied and a number of items dealing with blast vibrations in Indiana were introduced into evidence.

99. The literature indicates a difference between high frequency blasts and low frequency blasts.

100. The usual blasting limit treats the velocity of the ground vibration (inches per second) as the controlling factor.

101. The relationship between the velocity of ground vibration and the amount of ground movement (displacement) is d = v/2ns where d is the total displacement in inches of the ground (in any of the three dimensions), v is the peak particle velocity in inches per second, and f is the frequency of vibration in Hertz.

102. Mathematically, displacement increases as peak particle velocity increases and displacement increases as the frequency of vibration decreases.

103. Thus low frequency blasts cause more displacement of the ground surface than higher frequency blasts even if the peak particle velocity remains constant.

104. While there are not a lot of homes in the Cass-2 area, most that are there (including Jarrett) are constructed of brick and mortar materials and have plaster or lathe interiors, and several are over 20 years old.

105. Both I-SMCRA and F-SMCRA acknowledge the potential problem of low frequency blasting by providing in the rule for alternative limits based on frequency. See 310 IAC 12-5-36 (h)(4) and 30 CFR 817.67 (4).

106. Low frequency blasting is probably not a problem in areas where there are no structures.

107. However, even the early F-SMCRA blasting regulations noted that older homes can be at risk and options need to be available to take frequency into account. Exhibits 446 and 197.

108. It is interesting and informative to look at blasting regulations in other jurisdictions.

(a) The German vibration standards would limit blasting in the Cass-2 and Caledonia areas to a .32 ips peak particle velocity. In fact, because of the fact that several buildings in the vicinity have visible cracks in masonry, the limit may well be reduced to .16 ips. Exhibit 190.

(b) The Australian standard in .75 ips for frequencies in excess of 15 Hz and switches to a displacement limit (.008 in.) for frequencies under 15 Hz. (.008 in. corresponds to .5 ips peak particle velocity at 10 Hz and .25 ips at 5 Hz.) Exhibit 190.

(d) Illinois relies on the usual blasting limit. The department can reduce peak particle velocity limits if necessary to provide damage protection but no further guidance is provided and no reference made to frequency. 62 Ill. Ad. Code Chap., Sec. 1616.67.

109. On one occasion, the United States District Court, Southern District of Indiana, has seen fit to reduce blasting limits in a surface coal mine blasting case. While this case originated out of a complaint for nuisance, in Massa v. Peabody, IP 88-63-C, decided August 4, 1989, Judge Tinder found that blasting with frequencies in the 4-12 Hz range was a problem and ordered a .50 ips peak particle velocity limitation for any blast in the frequency range regardless of its distance from the blast.

110. Abandoned, flooded, underground mines increase the likelihood of undamped low frequency vibrations. In certain geological regions, low frequencies may not be a big problem because the energy from the blast dissipates this, the peak particle velocity decreases as the

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distance from the blast increases. The right subsurface will cause a rapid reduction of ground vibration as the distance from the blast increases and thus even if the frequency is in the problem range, the vibration is so low as to not cause a problem. However, the presence of flooded old works beneath the surface has the potential to create adverse vibrations with lower frequencies and longer durations. The mine opening traps seismic energy and transmits the waves a greater distance with little or no decay in amplitude. In simple terms, the vibration remains almost constant as it moves away from the center of the blast instead of rapidly diminishing. See Exhibit 196.

111. In the case of low frequency blasts, this creates a "double whammy" for brick and mortar structures in the area.

112. As in all other structures, a house (or a house-sized office building) generally absorbs a slight vibration with little or no problem. The energy released during the blast will cause a slight displacement of the ground near the house which will be transmitted through the structure in all directions and cause no more problem than the minor earth tremors which occasionally pass through west central Indiana.

113. As with all other structures, homes have one or more natural (or harmonic or resonant) frequency. The mathematical effect of a natural frequency is that induced vibrations which are the same frequency as a natural frequency will cause vibrations to increase with time rather than decrease with time. As a practical matter, this means the midwall response of a home subjected to vibrations from a blast (or any other source) could be a displacement of up to four times the displacement at the foundation. It can also cause "racking" or shaking of the structure. See exhibit 197.

114. When such a phenomena occurs, it clearly places considerable stress on the mortar between bricks, plaster walls and corners of a structure.

115. Exhibit 197, OSM report RI 8507, indicates natural frequency of wood frame structures is in the 5-10 Hz range for racking. Natural frequencies of one story homes can be as high as 18 Hz, but of course the initial displacement at 18 Hz is only 1/2 of the displacement of a 9 Hz frequency for the same peak particle velocity. This study concludes that frequencies below 10 Hz are the most serious ones.

116. The DNR (and NRC) has a duty to approve blasting plans which will not cause damage to off site property.

117. All properly designed blasts are designed with a safety factor in mind because to exceed the permit limits is an automatic notice of violation even if no damage is found. Thus if a permit limit at a monitoring station for a blast is 1.0 ips, the blast is unlikely to register anywhere near 1.0 ips.

118. Because of the site specific geology in the Cass-2 and Caledonia per it areas and the construction materials of the structures, blasting within the usual blasting limits but at low frequencies can cause damage to structures in the area.

119. Surface Coal Mine blasts generally feature the following characteristics:

(a) Relatively large charge weights per delay.

(b) Complex delay systems that are optimized for efficient fragmentation but that may produce adverse ground vibration frequencies.

(c)Relatively high ground vibration levels close-in from heavy confinement of high wall shots.

(d) Relatively rapid fall off of ground vibration levels with distance because of attenuation in weak rock.

(e) Ground vibrations having predominantly low frequencies because of thick soil overburdens, strong geologic layering that favors surface waves, and large blast-to-structure distances. Exhibit 197.

120. Exhibit 197 leads to the conclusion that plaster walls and mortar can be damaged within the meaning of I-SMCRA and F-SMCRA at blasting levels under the usual blasting levels if the geology is right and the blast produces low frequency waves.

121. The permit, however, can be modified to meet the I-SMCRA and F-SMCRA prohibition, against blasting damage off of the permit areas.

122. To assure protection from blasting damage in the Cass-2 and Caledonia permit areas, because of the low frequency waves, the nature of the surrounding homes, and the

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number of abandoned underground works in the area, the blasting plans should be amended as follows:

(a) All blasts will be monitored for frequency as well as ppv in a minimum of three off site locations, one of which must be the closest uncontrolled structure to the shot.

(b) The blasting limits as approved by the DNR shall apply whenever the monitored frequency is 20 Hz or higher. If the monitored frequency falls between 10 Hz and 20 Hz, the maximum displacement allowed shall be .008 in.[FOOTNOTE 3].

(c)Blasts which cause monitored frequencies of three to ten Hz shall not exceed a peak particle velocity of .50 ips. (Footnote Four)

(d) Blasts which cause monitored frequencies under 3 Hz shall not cause ground displacement in excess of .030 inches.

123. In Jarrett I, testimony showed an occasional interference from vibration with the computers in the Jarrett Engineering Building.

124. Interference with Jarrett's business would be "damage" as defined herein.

125. No incidents of recurrence were introduced in Jarrett II or III. Accordingly, the conclusion is drawn that this is not a current problem and no special consideration of Jarrett's equipment need be taken at this time.

FOOTNOTES

1. Jarrett raised a number of issues dealing with the procedures used by the DNR and NRC in approving both the Cass-2 and Caledonia permit. These issues were part of the final order in Jarrett I and are currently under judicial review. They will not be considered in this decision.

2. Judge Metz's decision has been appealed to the Indiana Court of Appeals by both Jarrett and the DNR and the ALJ believes this matter will be fully briefed prior to the time the NRC issues a final order on Jarrett III.

3. Exhibit 197 indicates this is the range of natural frequencies for midwall responses so such a limit prevents midwall movement from exceeding .032 inches, a safe level to prevent damage to plaster interiors.

4. Exhibit 197 indicates that this range is the danger zone for "racking" or shaking of houses. The increased amplitude because of this effect does not exceed twice the ground amplitude; therefore a slight increase in amplitude as frequency decreases is not harmful.

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[NOTE: CADDNAR citation does not apply to Court entries below.

SULLIVAN SUPERIOR COURT

FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND ORDER

This matter having come before the Court pursuant to Respondent Amax Coal Company's ("Amax") Motion to Dismiss for Mootness, and being duly advised, the Court now GRANTS Amax's Motion to Dismiss and enters the following findings of fact and conclusions of law:

1. Petitioner, Jack L. Jarrett, sought judicial review of the Indiana Department of Natural Resources ("DNR") grant to Amax in 1989 of two permits to engage in surface coal mining activities at Amax's Minnehaha Mine in Sullivan County under IC 13-4.1 (recodified as IC 14-34). DNR granted Amax's Cass-2 permit on May 7, 1989 and Amax's Caledonia permit on December 15, 1989.

2. Following administrative review, DNR's 1989 permitting decisions were upheld in relevant part by the Natural Resources Commission ("NRC) Final Order of May 22, 1992. Jarrett thereafter sought judicial review of this NRC order.

3. Amax's 1989 Cass and Caledonia permits expired five years after issuance, respectively, as required by statute IC 14-34-5-1(a) and the terms of the permits.

4. Amax was granted new permits by DNR on May 6, 1994 (as to Cass) and February 4, 1995 (as to Caledonia) as to which Jarrett did not seek administrative or judicial review.

5. It is well settled that courts cannot review the propriety of agency action in granting a permit which has since expired or where the challenged agency action has been superseded by subsequent permitting decisions. Brown v. Dicus, 87 N.E. 716, 717 (Ind. 1909) (expiration of one year liquor license mooted judicial challenge to agency's approval of the license); Hale v. Berg, 83 N.E. 357, 357-358 (Ind. App. 1908) (same); Kaminsky v. Medicl Licensing Board of Indiana, 511 N.E.2d 492, 496 (Ind. App. 1987) (agency's suspension of license mooted by subsequent reissuance of a new license during judicial review of suspension order).

6. Accordingly, Jarrett's petition for judicial review is likewise moot in that the 1989 Cass and Caledonia permits which he challenges have expired and new permits issued on May 6, 1994 for Cass and on February 14, 1995 for Caledonia which demonstrate the mining had been completed and that only reclamation work remained.

7. No public interest exception to the mootness doctrine applies here. Such exception applies only where there is a showing that the issue involves a question of great public importance and [emphasis by Court not included] the factual situation precipitating the issue is likely recur; or that the issue arises in a context that will continue to evade review. In re Tina, 579 N.E.2d 32, 48, 54 (Ind. 1991); In re Buck Creek Coal, Inc., 639 N.E.2d 668, 671 & n. 2 (Ind. App. 1994). Jarrett fails under any of the elements.

8. The mootness exception does not apply for the following reasons.

9. DNR's determination to grant the 1989 Cass and Caledonia permits to Amax does not involve quesitons of broad public import, nor is the factual situation precipitating Jarrett's contentions about blasting with respect to these permits likely to recur. Jarrett contends that the NRC's final order is erroneous in accepting the normal regulatory blasting limits established by 310 IAC 12-5-36(h) because "the uniqueness of the Jarrett property" in terms of sub-surface geology, the age and nature of building materials in the Jarrett structures and other such site-specific considerations assertedly require lower blasting limits. See Brief in Support of Jack L. Jarrett's Motion for Summary Judgment, p. 18. By definition, the "uniqueness of the Jarrett property" is not a "factual situation to likely to recur" with respect to others or a decision resolving matters of broad public import beyond the interests of the immediate parties. Moreover, the mining has been accomplished with only reclamation work remaining and Jarrett did not challenge the new permits. Hence, the factual and legal issue will not reoccur as to Jarrett.

10. The permitting decisions do not arise in a context which will continue to evade review if this case is dismissed as moot. The time it has taken for this judicial review, originally filed in June 1992, has been the parties' choice, not the result of anything likely to reoccur. Any future DNR/NRC permitting decision involving the same issue, while not likely to reoccur, is not likely to "evade review" if this case is dismissed as moot.

11. Amax's Motion to Dismiss is GRANTED and judgment will be entered accordingly.

COURT OF APPEALS ORDER

This Court having heretofore entered its order granting the appellant an extension of time within to file the record of the proceedings to and including April 7, 1997 and the appellant having failed to file either the record or a further petition for extension of time within which to file the record, the Court now finds that this appeal should be dismissed. IT IS THEREFORE ORDERED that this appeal is dismissed. ORDERED this 15th day of May, 1997.