[NOTE: ON MARCH 1995, DNR TOOK JUDICIAL REVIEW IN WARRICK SUPERIOR COURT (87D01-9503-CP-35). ON FEBRUARY 11, 1998, HONORABLE EDWARD A. CAMPBELL, JUDGE, WARRICK SUPERIOR COURT, ENTERED ORDER GRANTING JOINT DISMISSAL. WARRICK SUPERIOR COURT ORDER FOLLOWING ADMINISTRATIVE ORDER.]
Notice of Violation N40413-B-89 is hereby vacated.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.
3. The DNR is the state agency charged with the responsibility of regulating surface coal mining operations located in Indiana.
4. At all times relevant to these proceedings, Solar Sources, Inc.("Solar 11) held surface coal mine permit S-89 issued by the DNR which allows Solar to conduct a surface coal mining operation at the Sky Point Mine in Gibson and Warrick Counties in Indiana.
5. In the normal course of business, Solar makes its blasting records available to authorized representative of the DNR.
6. In April of 1994, while conducting a routine examination of seismograph data dealing with blasts at the Sky Point Mine in January, a representative of the DNR discovered what appeared to be two blasting limit violations.
7. On April 13, 1994, the DNR issued notice of violation N40413-6-89 ("NOV'') for the violation of regulatory blasting limits for blasts performed on January 17, 1994, and January 24, 1994.
8. On May 2, 1994, Solar filed a petition for administrative review which contended that the blasts in question did not exceed limits set in the S-89 permit.
9. Because this administrative case involves the review of a surface coal mine NOV, the administrative law judge is the ultimate authority for DNR within the meaning of IC 4-21.5.
10. Because this administrative case involves the review of an enforcement action, the burden of persuasion is on the DNR. See Peabody V. Ralston (1991 lst District Court of Appeals) 578 N.E.2d 751.
11. A seismograph is capable of measuring ground velocity in three directions, air blast, and frequency.
12. The seismograph used by the DNR in this case was installed by the DNR blasting section at the northwest corner of the Johnson residence. The exact location was selected as a location that would give a representative reading at the house without being influenced by the septic tank or reflections of air blasts from the house.
13. A properly installed and functioning seismograph self calibrates after each event.
14. The NOV was written because the seismograph measured a ground peak particle velocity ("ppv") of 1.56 ips on the radial channel for the January 17 blast ("Blast I") and measured a ppv of 1.01 ips on the radial channel for the January 24 blast ("Blast III).
15. The DNR contends that any reading in excess of 1.0 ips at a structure that is 301 to 5,000 feet from the blast is a violation.
16. Solar also engaged in monitoring in the Johnson home area with its own seismograph.
17. Solar had noticed some surprising or unusual ppv readings were not expected under the scaled-distance blasting formula.
18. The Solar seismograph showed readings of 1.2 ips and .93 ips respectively.
19. Other blasts had shown different readings of up to 20% so Solar met with the DNR and examined both machines. Both appeared to be installed properly.
20. The President of Vibronics, Inc. testified about the seismographs. He installed Solar's and sold the DNR's to the state. The seismographs were built by the same manufacturer but were different models.
21. He testified that machines could differ by 10% because of wave phase differences. A 20% difference is an
[VOLUME 7, PAGE 69]
aberration and would not be expected.
22. His calibration test showed the machine to be reading 296 high at 30 Hz at 1.0 ips.
23. Exhibit I shows the distance from both blasts to the structure to be in the 400-500 foot range.
24. The NOV lists the nature of the violation to be "Failure to conduct blasting operations so that the maximum allowable ground vibration, as determined by PPV and the blast level chart, is not exceeded at a dwelling."
25. The provisions of law alleged to be violated are:
1. 310 IAC 12-5-36(h)(19)(2)(i)(4)(i).
2. 310 IAC 1205033(a); and
3. 310 IAC 12-3-4 condition of permit, Part III C (attachment III-C-3d). See Exhibit F.
26. 310 IAC 12-5-36(h) requires blasting to be conducted in such a way as to produce a maximum ppv within limits set by any of the following:
a. 1.00 ips between 301 and 5,000 feet from dwelling;
b. The scaled-distance equation, W=(D/Ds)**2
c. A blast level chart which varies the maximum ppv according to frequency.
27. 310 IAC 12-5-33(a) requires a permittee to mine in accordance with its permit.
28. 310 IAC 12-3-4 requires a permittee to mine in accordance with its permit. Part III C (attachment III-C-3d) is the relevant portion of the S-89 permit. See Exhibit I.
29. The DNR blasting section head testified that the S-89 permit contained unusual blasting requirements.[FOOTNOTE 1]
30. Solar contends that since the blast designs show that the two blasts were designed to meet the criteria of the scaled-distance equation (see Exhibits 2 and 3), the blasts cannot be considered a violation.
31. The DNR correctly argues that the scaled-distance equation determines a violation only when ground vibration monitoring is not in place or does not function properly. The scaled-distance equation yields estimates that are not site specific. If actual monitoring takes place, the monitored values control as to whether or not there is a ground vibration violation.[FOOTNOTE 2]
32. Looking at Blast II first, the DNR gave a reading of 1.01 ips ppv. Solar's gave a reading of .93 ips.
33. The parties argued extensively over which reading should be used.
34. In this case, it does not make any difference.
35. A calibration check (Exhibit J) of the DNR's Seismograph shows the radial reading to read 3% high at 1.0 ips at 30 Hz and 2% high at 1.0 ips at 10 Hz.
36. The reading leading to the violation showed a frequency of 10 Hz.
37. To show a violation of the 1.0 ips standard, the DNR must show by a preponderance of the evidence that Blast II exceeded the legal limit. Since one seismograph showed no violation and the other showed a reading of 1.01 ips, .01 over the limit on a machine which tested as reading 1.02 ips in a laboratory controlled test at 1.00 ips, the trier of fact cannot conclude that Blast 11 produced limits in excess of 310 12-5-36(h) or the permit.
38. Blast 1, however, produced readings of 1.20 ips at 21 Hz on Solar's seismograph and 1.56 ips at 24 Hz on the DNR's machine.
39. The blast could still be within legal specifications under 310 IAC 12-5-36(h) and the permit if the frequency/ips chart in the rule is met.
40. The chart was developed by David Siskind, et al and published in a much larger form in the Department of Interior Bureau of Mines report RI 8507.
41. The chart limit would allow a ppv of approximately 1.5 ips at 21 Hz. Solar's seismograph shows no violation of the chart.
42. The chart limit would allow a ppv of approximately 1.6 ips at 24 Hz. DNR's machine registered 1.56 ips and thus that reading does not yield a violation.[FOOTNOTE 3]
43. Again, it is immaterial as to which seismograph reading is used, both exceed 1.0 ips but neither maximum reading is a violation if the chart is used as the standard.[FOOTNOTE 4]
44. The NOV should be vacated.
FOOTNOTES
1. The unusual feature is that the permit allows Solar to be in compliance as long as a blast complies with one of the ways of measuring. most plans require the mine to choose one or the other.
2. The DNR correctly points out that the scaled-distance equation has not been a good predictor of ground vibration at the Johnson residence and that is why both Solar and DNR monitor there.
3. The DNR's own computer print out shows the measurement is not in violation of the blasting chart. See Exhibit G.
4. The DNR's printout does show a reading at 13 Hz of 1.28 ips which would appear to be a violation of the limit of both the 1.0 ips and the blasting chart. The NOV (Exhibit P) did not make any reference to this value as being the reason for the issuance of the violation. Likewise, no testimony was
[VOLUME 7, PAGE 70]
introduced at the hearing about the 1.28 ips reading being the reason for issuing the NOV. The DNR's post hearing brief does not assert that the 13. Hz reading in any way contributed to the issuance of the NOV. Only in its reply brief is the 13 Hz reading mentioned as justifying the NOV. One important purpose of IC 4-2l.5 is to provide due process. The administrative law judge acts-as a trial court judge sitting without a jury. IDNR v. United Refuse Co., Inc. (1993) 615 N.E.2d 100. An enforcement action taken by DNR has been compared with a criminal proceedings in which the state has the burden of presenting evidence. Peabody v. Ralston, (1991) 578 N.E.2d 751. Due process considerations prevent affirmation of an enforcement action on grounds not asserted in the NOV or during the hearing, and thus not subject to cross Examination or rebuttal by the mine. Post-hearing briefing is not the place for the party bearing the burden of proof to change its theory of liability.
WARRICK CIRCUIT COURT ORDER
ORDER GRANTING JOINT DISMISSAL, "Petitioner, Indiana Department of Natural Resources, Solar Sources, Inc., have filed their Joint Motion to Dismiss. The Court having read the Motion and being duly advised in the premises GRANTS the Joint Motion to Dismiss. IT IS THEREFORE ORDERED this matter should be and hereby is Dismissed with prejudice." Signed Edward A. Campbell, Judge, Warrick Superior Court.