[CITE: Jarrett v. DNR and Amax Coal Company, 5 CADDNAR 265 (1992)]
[VOLUME 5, PAGE 265]
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.
[VOLUME 5, PAGE 266]
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.
(c)
"NRC" refers to Indiana Natural Resources Commission.
(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
[VOLUME 5, PAGE 267]
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
[VOLUME 5, PAGE 268]
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
[VOLUME 5, PAGE 269]
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
[VOLUME 5, PAGE 270]
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.
[VOLUME 5, PAGE 271]
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
[VOLUME 5, PAGE 272]
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.
(c)
Great Britain limits blasts to .47 ips for
frequencies below 12 Hz.
(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
[VOLUME 5, PAGE 273]
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
[VOLUME 5, PAGE 274]
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.
_________________________________________________________________
[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.