[NOTE: DEPARTMENT FILED FOR JUDICIAL REVIEW ON AUG. 25, 1994 IN WARRICK CIRCUIT COURT (87C0l-9408-MI-342). ON OCTOBER 7, 1998, CIRCUIT COURT AFFIRMED ALJ. WARRICK CIRCUIT COURT ENTRY FOLLOWING ADMINISTRATIVE DECISION. ON NOVEMBER 6, 1998, DNR APPEALED IN 87A01-9901-CV-00025. ON FEBRUARY 1, 1999, APPEALS COURT GRANTED, WITH PREJUDICE, APPELLANT DNR'S MOTION TO DISMISS.]
Amax's "Motion for Summary Judgment" filed on March 4, 1994 is granted.
The Department's Motion for Summary Judgment" filed March 4, 1994 is denied.
Notice of Violation N10808-S-00004 is vacated.
FINDINGS OF FACT
1. The department of natural resources (the "Department") is an "agency" as the term is defined in IC 4-21.5-1-3.
2. The "administrative orders and procedures act" or "AOPA" is applicable to an "agency action" of the Department.
3. The Department issued notice of violation N10808-S-00004 (the "NOV") with respect to a Permit S-0004 for surface coal mining which was granted to Amax Coal Company ("Amax") under IC 13-4.1 and 310 IAC 12 ("ISMCRA"). Issuance of the NOV is an agency action which is controlled by the AOPA.
4. Pursuant to IC 13-4.1-2-1(c), the Administrative Law Judge is the "ultimate authority" for contests of notices of violation under ISMCRA.
5. Amax took timely administrative review under the AOPA of the NOV. The Administrative Law Judge has jurisdiction over the person of the Department and Amax and jurisdiction over the subject matter of this proceeding. The Administrative Law Judge is the "ultimate authority" for administrative review of the NOV.
6. As provided in 310 IAC 12-5-36(e)(4), the director of the Department (the "Director") "may require airblast measurements of any or all blasts and may specify the location of such measurements" at a surface coal mining operation.
7. On November 18, 1989, the Order of the Director (the "November 18 Order") was issued against Amax with respect to Permit 00004. The November 18 Order included a provision which required that "Amax conduct air overpressure monitoring for every blast detonated at the Ayreshire Mine to demonstrate compliance with the air overpressure limits found at 310 IAC 12-5-36(e)(1)."
8. As a result of discussions between representatives of the Department and those of Amax, the November 18 Order was modified on December 20, 1989 (the "December 20 Order"); however, the air overpressure monitoring requirement remained essentially unchanged from the original order. Amax was required to "conduct air overpressure monitoring for every blast detonated at the Ayrshire Mine to demonstrate compliance with the air overpressure limits found at 310 IAC 12-5-36(e)(1)." The December 20 Order was continued in subsequent orders from the Director as entered on September 7, 1990 and March 8, 1991.
9. On January 19, 1990, the Department sent a letter to Amax to clarify the intent and expected implementation of the items outlined in the December 20 Order. The letter stated in part: [A]ir blast shall be monitored for all shots detonated at the Ayrshire Mine during the times specified in the . . . (December 20 order]. Air blast monitoring is required for each dwelling, school, church, public or community or institutional building that is required to be monitored as outlined below in number 3.
10. The December 20 Order also required Amax to do the following: [s]ubmit to the Department an Application for Blast Design Approval on the form provided by the Department for each shot to be detonated regardless of the distance to protected structures. The Application shall include all the information required by 310 IAC 12-5-33(e)(2), (3), and (4).
11. On January 25, 1990, Amax sent a letter to the Department with an Application for Blast Design (the "January 25 Application) attached. The January 25 Application stated that "Amax does not intend to use methods other than those proposed in Parts III.C.B and III.C.4 (of the Permit] to ensure compliance with the ground
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vibration and air blest [sic.] limits of 310 IAC 12-5-36 (e) and (h).
12. Neither the November 18 Order nor the December 20 order expressly directed Amax to change its method of monitoring, at least relative to the set-up of its seismographs.[FOOTNOTE 1] Amax was required only to monitor every blast (all shots), as opposed to periodic monitoring as required in Permit S-00004.
13. The term ''monitoring" is not defined in ISMCRA or in the federal counterpart to ISMCRA. Under well-accepted rules of statutory construction, a term is to be given its ordinary, contemporary, and common meaning. Perrin v. United States (1979), 44 U.S. 37, 42. Unless a contrary purpose clearly appears, words must be given their plain, ordinary, and usual meaning. In the Matter of Lawrence (1991), Ind., 579 N.E.2d 32, 38; Garvin v. Chadwick Realty Corp., (1937), 212 Ind. 499, 9 N.E.2d 268. This rule of statutory construction has been applied to rules. Empire Gas of Rochester, Inc. v. State of Indiana (1985), Ind. App. N.E.2d 1036, 1044.
14. Rather than require every blast to be "measured" as authorized by 310 IAC 12-5-36(e)(4), the November 18 Order and the December 20 order required Amax to "monitor" all blasts. Application of this monitoring requirement was consistent with Permit S-00004 and consistent with past Amax practices.
15. To "measure" is to determine the dimensions, quantity, or capacity of a substance or occurrence. To "monitor" is to check or scrutinize systematically for the purpose of collecting specified categories of data. See, generally, Webster's II New Riverside University Dictionary, The Riverside Publishing Company (1988).
16. Nothing in generally accepted definitions contemplate that "monitoring" requires a specific measurement of the magnitude of each event.
17. Prior to November 18, 1989, Amax always monitored air blast at its Ayrshire Mine by using a seismic trigger, even on non ST-4s. Amax continued the practice following receipt of the November 18 Order.
18. ST-4s have been approved by the Department as an acceptable means of monitoring air blasts at several other surface coal mines, both before and after the issuance of the November 18 order.
19. Particularly in light of the January 25 Application, there is nothing to support a finding that Amax understood or should have understood that it must use an acoustic trigger mechanism rather than a seismic trigger mechanism.
20. Under the facts of this case, Amax was reasonable in its expectation that the November 18 Order and the December 20 order did not create an obligation to measure every blast or to use an acoustic trigger mechanism instead of a seismic trigger mechanism.[FOOTNOTE 2] The Department had the legal authority to specify that each shot be measured but instead required only monitoring. The Department did not specify that Amax must use an acoustic trigger mechanism instead of the seismic trigger mechanism which it had historically employed.
21. Based upon the undisputed facts, the issuance of the NOV cannot be sustained. Amax is entitled to summary judgment as to all issues as a matter of law.
FOOTNOTES
1. These orders did require Amax to conduct monitoring at additional locations under specified conditions. This requirement is not at issue here.
2. This holding should not be construed as a limitation on the Director's authority to require the measurement of every blast or that every air blast be measured using a seismograph with an acoustic trigger. At issue in this case, however, is a notice of violation for which the Department has the burden of proof. Peabody Coal Co. v. Ralston (1991), Ind. App., 578 N.E.2d 751, 754. Upon the facts unique to this case, Amax was reasonable in believing that its actions satisfied the terms of the November 18 order and the December 20 Order. The Department cannot sustain the burden required for the NOV.
WARRICK CIRCUIT COURT FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter comes before the Court for judicial review of an administrative action under I.C. 4-21.5, et seq. The Court having heard oral argument and considered the administrative agency record and briefs of the parties, now enters the following findings pursuant to Ind. R. Tr. P. 52(A)3 and I.C. 4-21.5-14(c).
1. Petitioner, Indiana Department of Natural Resources (“Department”), is an administrative agency of the State of Indiana with responsibility for administrative and enforcement of a program for the regulation of surface coal mining known as “Indiana Surface Mining Control and Reclamation Act” (“ISMCRA”), consisting of a statute, IC 14-34 (formally IC 13-4.1) and implementing regulations, 310 IAC 12.
2. Respondent, Amax Coal Company (“Amax”) is a corporation which operates surface coal mining in the State of Indiana under ISMCRA permits issued by the Department.
3. Amax’s surface coal mining operations use blasting with explosives to remove the earth and rock materials which overlie the coal seam. The blasting operations are also regulated by the Department under ISMCRA.
4. As provided by 310 IAC 12-5-36(e)(5), the permittee must “conduct periodic monitoring to ensure compliance with airblast standards.” [FOOTNOTE 1]
5. As provided in 310 IAC 12-5-36(e)(4), the director of the Department (the “Director”) “may require airblast measurements of any or all blasts and may specify the location of such measurements” at surface coal mining operations.
6. On November 18, 1989, a Director’s Order (the “November 18 Order”) was issued to Amax with respect to Permit S-00004. The November 18 Order included a provision which provided in part that “Amax conduct air overpressure monitoring for every blast detonated at the Ayreshire Mine to demonstrate compliance with the air overpressure limits found at 310 IAC 12-5-36(e)(1).”
7. As a result of discussions between representatives of the Department and Amax, the November 18 Order was modified on December 20, 1989 (the “December 20 Order”). The air overpressure monitoring requirement set forth above remained unchanged. The December 20 Order also required Amax to do the following: “[s]ubmit to the Department an Application for Blast Design Approval on the form provided by the Department for each shot to be detonated regardless of the distance to protected structures. The Application shall include all the information required by 310 IAC 12-5-33(e)(2), (3), and (4).” [DNR Exhibit B].
8. On January 19,1990, the Department sent a letter to Amax discussing implementation of the items outlined in the December 20 Order. The letter stated in part: “[A]ir blast shall be monitored for all shots detonated at the Ayreshire Mine during the times specified in the … [December 20 Order]. Air blast monitoring is required for each dwelling, school, church, public or community or institutional building that is required to be monitored as outlined below in the number 3.” [Amax Exhibit A, paragraph 10].
9. On January 25, 1990, Amax sent a letter to the Department with an Application for Blast Design (the “January 25 Application”). The January 25 Application stated that “Amax does not intend to use methods other than those proposed in Parts III.C.B and III.C.4 [of the Permit] to ensure compliance with the ground vibration and air blast limits of 310 IAC 12-5-36(e) and (h).” [Amax Exhibit A, paragraph 11. Ex. 6].
10. On January 27, 1990, Amax began implementing the December 20 Director’s Order in accordance with the terms stated therein and subsequently supplemented by January 25, 1990 Application.
11. At no time during implementation of the December 20 Order did the Department inform Amax its blast design or monitoring methods set forth in the January 25, 1990 Application were insufficient. [Amax Exhibit A, paragraphs 15, 17].
12. The December 20 Order was continued in subsequent orders from the Director as entered on September 7, 1990 and March 8, 1991. [DNR Exhibits C, D].
13. There are two methods for monitoring air blasts. One method, using seismic triggers, measures air overpressure whenever seismic trigger level is exceeded. The other method, using an acoustic trigger, measures air overpressure whenever a preset acoustic trigger level is exceeded. [DNR Exhibit M, Amax Exhibit A, paragraphs 6, 7].
14. Amax historically monitored air blasts using seismic triggers. This method was approved by DNR in Amax’s permit and the preset seismic trigger level was set forth in the permit. [Amax Exhibit A, paragraph 6, 14].
15. Seismic trigger method was approved by the DNR as an acceptable means of air blast monitoring at several other surface coal mines. [Amax Exhibit C].
16. Department inspection reports indicated that from January 1990 through August 1991, the Department found Amax to be “in compliance” with its permit and the Director’s Orders. [Amax Exhibit A, paragraph 16].
17. Not until July 1991 did the Department assert that Amax was not implementing the Director’s Order in the manner intended by the Department. [DNR Exhibit E, paragraph 3].
18. On August 8, 1991, the Department issued Notice of Violation N10808-S-00004 (“NOV”) with respect to permit S-00004. The NOV was issued for violation of the Director’s Order requiring Amax to monitor all air blasts [FOOTNOTE 2] [DNR Exhibit J].
19. On August 28, 1991, Amax initiated timely administrative review of NOV. Amax’s request for review was referred to Steven L. Lucas, an Administrative Law Judge for the Natural Resources Commission (“ALJ”), for administrative review of the Department’s determination.
20. On July 27, 1994, the ALJ entered his Report, Findings of Fact, and Final Order of the Administrative Law Judge (“Final Order”). The ALJ entered the following findings among others:
"12. Neither the November 18 Order nor the December 20 order expressly directed Amax to change its method of monitoring, at least relative to the set-up of its seismographs. Amax was required only to monitor every blast (all shots), as opposed to periodic monitoring as required in Permit S-00004.
13. The term ''monitoring" is not defined in ISMCRA or in the federal counterpart to ISMCRA. Under well-accepted rules of statutory construction, a term is to be given its ordinary, contemporary, and common meaning. Perrin v. United States (1979), 44 U.S. 37, 42. Unless a contrary purpose clearly appears, words must be given their plain, ordinary, and usual meaning. In the Matter of Lawrence (1991), Ind., 579 N.E.2d 32, 38; Garvin v. Chadwick Realty Corp., (1937), 212 Ind. 499, 9 N.E.2d 268. This rule of statutory construction has been applied to rules. Empire Gas of Rochester, Inc. v. State of Indiana (1985), Ind. App. N.E.2d 1036, 1044.
14. Rather than require every blast to be "measured" as authorized by 310 IAC 12-5-36(e)(4), the November 18 Order and the December 20 order required Amax to "monitor" all blasts. Application of this monitoring requirement was consistent with Permit S-00004 and consistent with past Amax practices.
15. To "measure" is to determine the dimensions, quantity, or capacity of a substance or occurrence. To "monitor" is to check or scrutinize systematically for the purpose of collecting specified categories of data. See, generally, Webster's II New Riverside University Dictionary, The Riverside Publishing Company (1988).
16. Nothing in generally accepted definitions contemplate that "monitoring" requires a specific measurement of the magnitude of each event.
17. Prior to November 18, 1989, Amax always monitored air blast at its Ayrshire Mine by using a seismic trigger, even on non ST-4s. Amax continued the practice following receipt of the November 18 Order.
18. ST-4s have been approved by the Department as an acceptable means of monitoring air blasts at several other surface coal mines, both before and after the issuance of the November 18 order.
19. Particularly in light of the January 25 Application, there is nothing to support a finding that Amax understood or should have understood that it must use an acoustic trigger mechanism rather than a seismic trigger mechanism.
20. Under the facts of this case, Amax was reasonable in its expectation that the November 18 Order and the December 20 order did not create an obligation to measure every blast or to use an acoustic trigger mechanism instead of a seismic trigger mechanism. The Department had the legal authority to specify that each shot be measured but instead required only monitoring. The Department did not specify that Amax must use an acoustic trigger mechanism instead of the seismic trigger mechanism which it had historically employed.
21. Based upon the undisputed facts, the issuance of the NOV cannot be sustained. Amax is entitled to summary judgment as to all issues as a matter of law."
(Final Order, Findings of Fact Nos. 12-21) (Footnotes omitted.)
Based on his findings, the ALJ entered the following Order: “Amax’s Motion for Summary Judgment” filed on March 4, 1994 is granted. The Department’s Motion for Summary Judgment filed March 4, 1994, is denied. Notice of Violation N10808-S-00004 is vacated. [DNR Exhibit L].
On August 25, 1994, the Department filed a timely petition for judicial review of the ALJ’s Final Order in the Warrick Circuit Court.
22. The Department does not challenge the factual findings made by the ALJ[FOOTNOTE 3], but contends that the Final Order is not in accordance with law. The Department argues that the ALJ erred by:
Finding the Director’s Order did not expressly direct Amax to “change its monitoring method” and that “Amax was required only to monitor ever blast.”
(b) Erroneously finding that there was no support for a finding that Amax should have understood that it must use an acoustic trigger rather than a seismic trigger mechanism.
(c) Erroneously finding Amax was reasonable in expecting the Order did not create an obligation to measure every blast or to use an acoustic trigger rather than a seismic trigger mechanism; the ALJ failed to address how Amax could demonstrate compliance without engaging the acoustic trigger.
CONCLUSIONS
Based on the foregoing findings, the Court makes the following conclusions of law:
1. The Department is an administrative agency whose orders and determination are subject to administrative and judicial review under IC 4-21.5.
2. IC 4-21.5 governs judicial review of administrative agency decisions. IC 4-21.5-5-14(c) provides:
“(d) The Court shall grant relief under Section 15 [IC 4-21.5-5-15] of this chapter only if it determines that a person seeking judicial relief has been prejudiced by an agency action that is:
1. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
2. Contrary to constitutional right, power, privilege, or immunity;
3. In excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
4. Without observance of procedure by law; or
5. Unsupported by substantial evidence.”
3. In reviewing the ALJ’s findings of fact, the Court analyzes the administrative record as a whole to determine the administrative findings are supported by substantial evidence. The Court may not substitute its judgment for that of the ALJ absent an error or law. Natural Resources Com’n v. Amax Coal Co., 638 N.E.2d 418, 423 (Ind. 1994). The ALJ findings of fact can be set aside only if the evidence demonstrates they are clearly erroneous. Natural Resources Com’n v. Sugar Creek Mobile Estates, 646 N.E.2d 61, 64 (Ind. Ct. App. 1995). This standard requires great deference to the ALJ’s findings of fact or application of the facts to law. Town of Beverly Shores v. Bagnall, 590 N.E.2d 1059, 1061 (Ind. 1992).
4. In reviewing the ALJ’s legal conclusions to determine whether the ALJ correctly interpreted and applied legal requirements, this Court is not required to give deference to the ALJ’s conclusions.
5. The Department, as the party challenging the administrative order, bears the burden of showing that there are no substantial facts to support the order. Indiana Department of Environmental Management v. Conrad, 614 N.E.2d 916, 919 (Ind. 1993).
6. The relevant facts in this case are undisputed. ALJ Findings of Fact 12-28 are uncontested by the Department and are supported by substantial evidence. These Findings must therefore be affirmed as a matter of law.
7. The ALJ did not err in finding that the Director’s Order did not expressly direct Amax to change its monitoring methods and that Amax was required only to monitor every blast, as opposed to the periodic monitoring required in Permit S-00004. Clearly, nothing in the Director’s Order addresses the monitoring method to be used. Particularly in light of Amax’s response to the Department in its Blast Design Application that it did not intend to change the air blast monitoring method used to demonstrate compliance with the air blast limits, it was reasonable for Amax to conclude its historical method of air blast monitoring was sufficient, and that the effect of the Director’s Order was to increase the frequency of air blast monitoring, as opposed to the periodic monitoring provided in the permit.
8. The ALJ did not err in finding that Amax had no obligation to use acoustic triggers rather than the seismic triggers it historically employed. Nothing in ISMCRA, the regulations or Amax’s permit sets forth a requirement for acoustic triggering. Nothing in the Director’s Order specifies acoustic triggering. Substantial evidence supports the ALJ’s conclusion that Amax was reasonable in its expectation that the Director’s Order did not create an obligation to use acoustic triggering.
9. The ALJ’s determination that acoustic triggers were not required in this instance is supported by substantial, particularly in light of the facts that other mines were monitoring air blasts using seismic triggers, that Amax had never before used the acoustic triggering method, and that Amax notified the Department that it would use the same air blast monitoring method it had always used to demonstrate compliance with the air blast limits. These factual findings were not challenged and are there binding on the Court. Id.
10. The Director’s Order did not specify that Amax change the method of air blast monitoring it historically employed, or that Amax use acoustic triggers. No statute, rule or any provision in Amax’s permit required use of acoustic triggers for air blast monitoring. The Court finds that acoustic air blast triggering is not required unless the obligation is properly set forth in the mining permit or clearly and specifically required in a duly authorized Director’s Order.
11. The ALJ Final Order is supported by substantial evidence and is in accordance with law. It is not arbitrary, capricious, or an abuse of discretion or in excess of statutory jurisdiction, authority, or limitations.
12. If any of the foregoing Findings of Fact should have been denominated a Findings of Fact, it is hereby adopted as such.
FOOTNOTES
1. Blasting causes ground vibrations and air vibrations. Ground vibration is not at issue in this case.
2. Amax was using acoustric triggers to monitor air blasts at this time. Amax had turned on the acoustic triggers when it first learned during a July 23, 1991 meeting with the Department’s Willard Pierce that the Department’s interpretation of the Director’s Order was that acoustic triggers were required.
3. The DNR’s Verified Petition for Judicial Review states that:
(a) The ALJ erroneously found that the Director’s Order did not expressly direct Amax to change its method of monitoring and that Amax was required only to monitor every blast, as opposed to periodic monitoring as required in the Permit. (Findings 12).
(b) The ALJ erroneously found that rather than require every blast to be “measure” as authorized by 310 IAC 12-5-36(e)(4), the Director’s Order required Amax to “monitor” all blasts. (Finding 14).
(c) The ALJ erroneously relied on Finding 18, which found that ST-4s have been approved by the Department as an acceptable means of monitoring air blasts at other surface mining, both before and after the issuance of the Director’s Order. (Finding 18). The DNR appears to have abandoned these objections. In any event, the DNR offered no evidence sufficient to carry its burden to show that the ALJ Findings of Fact were clearly erroneous. The Court must therefore affirm these findings of fact.