FINDINGS OF FACT
1. The 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[FOOTNOTE 1], 310 IAC 12 apply to these proceedings.
3. Solar Sources, Inc. ("Solar") operates a number of surface coal mines within Indiana.
4. The DNR is the state agency responsible for the regulation of coal mines in Indiana.
5. On August 23, 1994, a duly authorized representative of the DNR issued a letter to Solar requiring Solar to revise its blasting plans.
6. On or about February 7, 1995, Solar requested that the Director make a special status determination with regard to blasting plans.
7. On April 3, 1995, the Acting Director issued a special status determination adverse to Solar's position.
8. On April 12, 1995, Solar filed a timely petition for review.
9. At issue is the construction of 310 IAC 12-5-36.
10. Special status determinations are governed by 30 IAC 0.6-1-15.
11. For a number of years, most if not all, of Solar's blasting plans were written in such a way as to allow Solar to decide which blasting limits would apply after the blast and after the seismographic data from the blast has been received.
12. 310 IAC 12-3-43 requires each permit to contain a blasting plan which sets forth the maximum ground vibration which will not be exceeded.
13. 310 IAC 12-5-36(h) sets forth three methods of setting ground vibration.
14. These three methods are: (1) the scaled-distance equation, (2) the maximum peak particle-velocity limits, or (3) the blasting-level chart.
15. The scaled-distance equation is the only method which can apply if there is no monitoring, or if the monitoring equipment fails.
16. The briefs submitted by the parties do not indicate that the use (or non-use) of the scaled-distance equation is an issue of contention. In other words, generally, if seismographic readings are available, whether or not there is a blasting violation depends on the readings obtained from the seismograph. See 310 IAC 12-6-36(h).
17. At issue is the fact that as the permits are written, Solar may have blasts that would be a violation under the blasting chart but not a violation under the peak particle-velocity limits or vice versa. For example if a blast registered .70 ips with a vibration frequency of 3 Hz, it is a violation on the chart (See 310 IAC 12-5-36(h)) but is never a violation of the maximum peak particle-velocity limit which is based on distance from the blast and not frequency. Likewise, a blast may register a reading of 1.5 ips and thus be a violation of the maximum peak particle-velocity limit but if its vibration frequency is 30 Hz, it would not be a violation of the blasting chart.
18. 310 IAC 12-3-43 requires the permit to contain a blasting plan which sets the maximum ground vibration which will not be exceeded.
19. By allowing Solar to conduct a blast and then pick the enforcement standard that will apply, Solar gets to pick the best of all possible worlds any time blast frequency is monitored. Solar would never be subjected to ppv limits of less than .75 ips even at low frequencies, and would not be bound by the maximum 1.25 ips limit of peak particle-velocity any time the blasting frequency exceeds 20 Hz.
20. The surface mining act (IC 13-4.1 and 310 IAC 12) requires Solar to elect its blasting plan prior to the commencement of blasting, not after the blast is concluded and the readings have been taken.[FOOTNOTE 2]
21. This decision does not in any way prevent an optional blasting plan which is contingent on whether or not vibration frequency monitoring is performed for a particular blast. The plan, however, must subject the mine to only one of the blasting standard prior to the blast; not allow Solar
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to choose the most favorable plan after examining the seismograph readings.
FOOTNOTES:
1. Subsequent to rebriefing, IC 13-4.1 has been recodified into IC 14. Recodification had no effect on the substantive law and does not affect the final decision.
2. Documents from the Federal Office of Surface Mining stating the Federal Regulations and Federal oversight require these conclusions were included in the department's brief. The administrative law judge is singularly unimpressed with this argument since Federal inspectors have examined these same Solar mines and permits for at least ten years, and have never taken any action to require a change.
1. Petitioner Solar Sources, Inc. ("Solar") is an Indiana corporation engaged in the mining of coal.
2. Respondent Department of Natural Resources ("DNR"), is an agency of the state of Indiana within the meaning of I.C. 4-21.5.
3. For many years, Solar mined coal by the surface method under the authority of eight permits issued by DNR.
4. In those permits, Solar was able to state that it would use any of the three methods in 310 IAC 12-5-36(h) to demonstrate compliance with the limits imposed on ground vibration accompanying blasting.
5. On August 23, 1994, Mike Sponsler, Director of the Reclamation Division of DNR, ordered Solar to revise its eight permits and select only one of the three allowable methods of demonstrating compliance with the limits imposed on ground vibration.
6. On August 31, 1994, Solar responded to the Sponsler order, stating that it did not believe that the law required it to make the changes.
7. On January 11, 1995, Sponsler again wrote to Solar, rejecting the reasoning of Solar's August 31 letter and again requiring that the permits be revised.
8. On February 7, 1995, Solar filed a request for a special status determination pursuant to 310 IAC 0.6-1-15. Solar ask [sic] the Director of DNR to interpret 310 IAC 12-5-36(h) as allowing surface mining operators to put all three methods of demonstrating compliance in their permits.
9. On April 3, 1995, DNR issued a special status determination stating that the regulation requires operators to designate in their permits only one method of demonstrating compliance.
10. On April 10, 1995, Solar filed a petition for administrative review.
11. On May 17, 1995, Administrative Law Judge William K. Teeguarden issue a final order denying the petition for review on the grounds that it was a prohibited collateral attach on a final non-reviewable order of DNR (that is, the Sponsler letter of August 23, 1994, ordering Solar to revise its permits).
12. On May 23, 1995, Solar filed a Motion to Reconsider the final order, which motion was granted in part.
13. Following rebriefing, the administrative law judge on January 26, 1996, issued a Final Order affirming the April 3, 1995 response to the special status determination issued by the Director of the Department of Natural Resources.
14. Solar timely filed a petition for judicial review in this Court.
15. In order to conduct surface mining operations in Indiana, an operator must obtain a permit from DNR. I.C. 14-34-3-1. In order to obtain a permit, an operator must submit a permit application that contains a blasting plan for the proposed permit area. The blasting plan must include, among other things: (1) the maximum ground vibration and air-blast limits the permittee will not exceed during blasting operations. (2) the bases for the establishment of the proposed ground vibration and airblast limits; (3) the methods to be applied to control the adverse effect of blasting operations; 310 IAC 12-3-43.
16. Ground vibration limits are set out in 310 IAC 12-5-36(h). That regulation provides three methods for measuring compliance with ground vibration limits generated by blasting at a surface coal mine. They are as follows: (h)(1) In all blasting operations, except as otherwise authorized in this section, the maximum ground vibration shall not exceed the limits approved in the blasting plan required by 310 IAC 12-3-43. The maximum ground vibration at the location of any dwelling, public building, school, church, or community or institutional building shall be established in accordance with either the maximum peak particle-velocity limits of subsection (h)(2), the scaled-distance equation of subsection (h)(3), the blasting-level chart of subsection (h)(4) or by the director under subsection (h)(5) of this section.[FOOTNOTE 1]
17. The three specific methods of measuring compliance were developed and established by the federal Office of Surface Mining (OSM) using the results of yeas of empirical research on the effect of ground vibration on structures. See, 48 Fed.Reg. 9797-9800, 9788-89 (March 8, 1983).[FOOTNOTE 2]
18. Based upon this empirical data, OSM determined that each of the three options for measuring compliance with ground vibration limits was sufficiently and equally capable of preventing damage to structures. 48 Fed.Reg. 9800.
19. OSM has adopted the same three limitations as Indiana for ground vibration. 30 C.F.R. section 816.67(d).
20. The scaled-distance equation method does not use seismic monitoring to measure ground vibration. It is an equation that uses the weight of the explosives that can be detonated in any 8-millisecond period, the distance from the blast site to the nearest protected structure, and a specified scaled-distance factor. 310 IAC 12-5-36(H)(3). If the amount of explosives used does not exceed that allowed by the equation, then the blast is within allowable limits and the structure should not be harmed.
21. The maximum peak-particle velocity method uses a seismometer. A seismometer measures the peak particle velocity of ground vibration at the site of the seismometer. A table in 310 IAC 12-5-36(h)(2) sets out the allowable limit on peak-particle velocities at various distances from the blasting site.
22. The blasting-level chart method also is based upon a seismograph recording. It considers not only the peak particle velocity of the ground vibration, but also the frequency of the wave which transmits the frequency. A chart plots the peak particle velocity on one axis and the blast vibration frequency on the other.
23. The two methods using seismographic records, while equally effective in preventing damage, are not in agreement on every blast. It is possible that a blast can be within the limit allowed by the chart and outside the limits allowed by the peak particle velocity method, or vice versa. Whichever method of measuring compliance is used, the actual effect of the blast on the dwelling is the same.
24. The purpose of regulating blasting is to prevent damage. Indiana law directs the Natural Resources Commission to adopt rules that will: Limit the type of explosives and detonating equipment and the size, timing, and frequency of the blasts based upon the physical conditions of the site to prevent the following:
(A) Injury to person.
(B) Damage to public and private property outside the permit area.
(C) Adverse impacts on an underground mine.
(D) Change in the course, channel, or availability of ground or surface water outside the permit area. I.C. 14-34-12-3.
This language is identical to that in 30 U.S.C. section 1265(b)(15)(C) and 30 C.F.R. section 816.67(a).
25. General blasting requirements are set out at 310 IAC 12-5-33 (the federal counterpart is 30 C.F.R. section 816.61). Those requirements include the submission of specific blast designs to DNR prior to any blasting operations within 1,000 feet of dwellings, public buildings, schools, churches, or community or institutional buildings. The blast design need not be included in the permit itself, but must be presented to DNR prior to the blast. The blast design must be prepared by a certified blaster and must include: sketches of the typical drill patterns, delay periods, and decking and shall indicate the type and amount of explosives to be used, critical dimensions, and the location and general description of the structures to be protected, as well as a discussion of design factors to be used, which protect the public and meet the applicable airblast, ground-vibration, and flyrock standards of 310 IAC 12-5-36.
26. State and federal regulations also require the filling of post-blast reports that contain information similar to that found in pre-blast design plans. Post-blast reports describe what was actually done. 310 IAC 12-5-38; C.F.R. section 816.68.
27. Some operators who have specified the scaled-distance equation in their permits as the sole method of demonstrating compliance with ground vibration limits nonetheless install a seismometer to measure ground vibration. Sometimes DNR installs a seismometer at a structure near a blasting site on a permit that has specified only scaled-distance equation. When a seismometer has been placed either by the operator or by DNR, it has been the practice of DNR to use only the seismic data to measure compliance with ground vibration limits, ignoring the scaled-distance equation.
28. During the many years when Solar's permits contained all three alternative methods of demonstrating compliance on blasting, OSM, exercising its oversight authority, inspected Solar's mines and permits. OSM never suggested that the permits needed to be changed.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this matter pursuant to I.C. 4-21.5-5-1 et seq.
2. This appeal of the January 26, 1996 decision of the administrative law judge involves only questions of law, there are no disputed facts. Because only questions of law are at issue, this Court is not bound by DNR's interpretation of law. Rather it is the role of this Court to determine whether DNR correctly interpreted and applied the law. Courts have the ultimate responsibility to resolve questions of statutory interpretation. Miller Brewing v. Bartholomew County Beverage Company, Inc. , (1996), Ind.App. 674 N.E.2d. 193, 200-201; Peabody Coal Co. v. Indiana Dept. of Natural Resources (1994), Ind.App., 629 N.E.2d 925, aff'd (1995) Ind., 664 N.E.2d 1171.
3. Rules which apply to the constitution of statutes also apply to the construction of administrative rules and regulations. Miller Brewing v. Bartholomew Beverage Company, Inc, supra at 205; Indiana Dept. of Natural Resources v. Peabody Coal Co. (1995), Ind.App., 654 N.E.2d 289.
4. When construing a statute, the objective is to ascertain and give effect to the intent of the legislature. The best evidence of legislative intent is the language of the statute itself, apply the plain and ordinary meaning of words and phrases. Legislative intent may also be determined from the goals and purposes of the statute and the reasons and policies underlying its enactment and by examining the act as a whole. Miller Brewing v. Bartholomew County Beverage Company, Inc., supra at 205; Hilburt v. Town of Markleville (1996), Ind.App., 649 N.E.2d 1036, trans.den,; Lewis v. Bd. of Sch. Trustees (1996), Ind.App., 657 N.E.2d 180, reh.den., trans.den.
5. In this case, legislative intent can also be ascertained from the federal legislative history found in the comments to the blasting regulations in the Federal Register, since Indiana courts must look to SMCRA and federal regulations in analyzing ISMCRA. Indiana Department of Natuarl Resources v. Krantz (1991, Ind.App., 581 N.E.2d 935 at 937; Natural Resources Comm'n v. Amax Coal Co. (1992), Ind.App., 603 N.E.2d 1349 at 1355.
6. The general intent expressed in the blasting statutes is to insure that operators conduct blasting in such a way as to prevent injury to persons, property, underground mines, and ground and surface waters. I.C. 14-34-12-2; 30 U.S.C. section 1265(b)(15)(C).
7. The state and federal regulations set out specific means of achieving these ends. Under those regulations, operators must submit blasting plans (310 IAC 12-3-43; 30 C.F.R section 780.14), pre-blast design plans (310 IAC 12-5-33; 30 C.F.R. section 816.61), and post-blast reports (310 IAC 12-5-38; 30 C.F.R section 816.68).
8. In addition, specific limits are set on ground vibrations. (310 IAC 12-4-36(h); 30 C.F.R section 816.67(d)).
9. Although the regulations are detailed, there is also an intent to allow mine operators flexibility in conducting blasting operations within the scope of the regulations. This intent was stated in the statutes and regulations themselves and in the OSM comments accompanying the issuance of the federal blasting regulations. See 48 Fed.Reg. 9788 et seq. (March 8, 1983). In rejecting the suggestion that blast designs be included in permits, OSM said: Such detail is unnecessary to assure safe blasting and is unnecessary for the regulatory authority to determine that the blasting will be conducted in accordance with the performance standards. It wold be difficult or impossible to require and review blast design for every blast which will occur. Some conditions are unknown at the time of permitting, and operators need flexibility to design blasts for conditions as they are encountered. 48 Fed.Reg. at 9789-90. OSM also said it used the term "anticipated" in the blast design regulation 'to allow operators the flexibility to change the designs based on unexpected conditions encountered at particular sites without having to resubmit the designs to the regulatory authority." 48 Fed.Reg. at 9792. OSM allowed the three options for measuring compliance to give operators more freedom in approaching blasting. 48 Fed.Reg. at 9800; Blasting Guidance Manual (March 1987), pp. 26-27.
10. The plain meaning of the "either...or" language of 310 IAC 12-5-36(h) is that an operator need only achieve compliance with one of the prescribed limits, not all four of them. It is not a limitation on the choices allowed in a blasting plan.
11. Both 310 IAC 12-5-36(h) and 310 IAC 12-3-43 use the term "limits" in discussing what needs to be set out in blasting plans. The use of the plural indicates that more than one limit can be stated in a blasting plan.
12. Looking at the blasting regulations as a whole, one can see that 310 IAC 12-3-43 (regarding blasting plans) is the only one contained in the permitting section of the regulations. The others (blast designs, allowable limits, and post-blast reports) are all contained in the performance standards section of the regulation. As set out in Conclusion of Law No. 9, above, not as much specificity is needed in the permit, since not all field conditions are known at the time the permit is submitted and approved. The blasting regulations in the performance standards section are far more detained and specific.
13. For many years, DNR and OSM allowed Solar's permits to state that any one of the ground vibration limitations would be met. Further, it has been DNR's practice to apply the seismographic limits for ground vibration when seismographic data is available, even if an operator's permit specifies the scaled-distance equation as the method of measuring compliance. There has been no change in the surface mining statutes or regulations that would require a change in these practices.
14. The intent of 310 IAC 12-5-36(h), as shown by its plain language, by the consideration of the statutes and regulations as a whole, and by the actual practice of DNR, is to allow an operator flexibility in demonstrating compliance with ground vibration limits. This intent is consonant with the federal intent, shown not only in the statutes, regulations, and practice, but also in OSM's commentary to the federal rules published in the Federal Register and in its Blasting Guidance Manual.
15. 310 IAC 12-3-4 provides that an operator must comply with the terms and conditions of the surface mining statutes and regulations, and the conditions of the permit under which it is operating. If a permit specifies that compliance with ground vibration limits will be measured solely by the peak particle velocity method, the operator could be cited for a violation of 310 IAC 12-3-4 for not complying with the permit if a given blast exceeds the allowable peak particle velocity, even if that blast is in compliance under the chart. Such a result is arbitrary and capricious, since the blast in fact is in compliance with the surface mining statutes and regulations concerning ground vibration limits.
16. By forcing operators to select one method of demonstrating compliance in the blasting plans contained in the permits, DNR is violating 310 IAC 12-5-36(h), which allows an operator to demonstrate compliance with ground vibration limits using any one of the specified methods.
17. To interpret 310 IAC 12-3-43 to require restriction in the blasting plan to one method is to make that regulation more stringent than its federal counterpart, in violation of I.C. 14-34-1-4.
18. For all the reasons set out in the Finding and Conclusions, the ALJ decision of January 26, 1996 is arbitrary, capricious and contrary to law.
WHEREFORE, it is hearby ordered, adjudged, and decreed that the ALJ decision of January 26, 1996 be set aside and this matter remanded to the ALJ for further proceedings not inconsistent with this decision.
FOOTNOTES
1. The possibility of limits set by the director under subsection (h)(5) is not an issue in this matter.
2. Surface mining is regulated under both state and federal law. See, 30 U.S.C. section 1201 et seq. (SMCRA). Indiana has achieved primacy and is responsible for its own program. I.C. 12-34-1-1 et seq. (ISMCRA). However, OSM retains oversight jurisdiction. State laws and regulations must meet the minimum requirement of federal law (30 U.S.C. sections 1253, 1255), but Indiana regulations may not be more stringent than corresponding provisions under SMCRA (I.C. 14-34-1-4). Indiana courts must look to SMCRA and federal regulations in analyzing ISMCRA. Indiana Department of Natural Resources v. Krantz (1991), Ind.App., 581 N.E.2d 935 at 937; Natural Resources Comm'n v. Amax Coal Co., (Ind.App., 603 N.E.2d at 1355.