ORDER
Notice of Violation N60612-S-321 is affirmed.
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 14-34, and 310 IAC 12 apply to this proceeding.
3. The DNR is the state agency responsible for the regulation of surface coal mining operations within the State of Indiana.
4. At all times relevant to this proceeding, Indiana Farms, Inc. ("IF") operated a surface coal mining business in Knox County, Indiana, pursuant to surface mine permit S-321 issued by the DNR.
5. On or about June 12, 1996, a duly authorized representative of the Blasting Section of the DNR Division of Reclamation reviewed the blasting records of a seismograph installed by the DNR at a structure near the S-321 blast site.
6. The DNR representative concluded that the blast records showed air blast violations on May 9, 1996, and May 31, 1996.
7. The DNR representative then wrote Notice of Violation N60612-S-321 ("NOV").
8. IF filed a petition for administrative review of the NOV.
9. A seismograph installed by IF in the same area as the DNR seismograph showed no violations.
10. Since this administrative review involves violations, the administrative law judge is the ultimate authority for the agency within the meaning of IC 4-21.5 and the DNR has the burden of persuasion. IC 14-34-2-2 and Peabody v Ralston (1991) 578 N.E. 2d 751.
11. The NOV alleges violations of section 3C (5) of the permit, 310 IAC 12-5-33 (a) and 310 IAC 12-5-36 (e) (1).
12. Section 3C (5) of the permit requires that air blasts not exceed 133 dB with a 2HZ microphone at any dwelling, public building etc.
13. 310 IAC 12-5-36 (e) (1) imposes the same air blast limits at 2HZ as the permit.
14. 310 IAC 12-5-33 (a) requires that all blasting must conform to state and federal laws and regulations.
15. The DNR seismograph reported readings of 134dB and 137db on May 9, 1996, and May
31, 1996, respectively.
16. The DNR seismograph was checked and calibrated by an independent contractor in October of 1995 and March of 1997.
17. The calibrations were found to be within normal limits and has "never found to be out by as much as 0.5 dB" Exhibit B.
18. The IF seismograph showed the May 9, 1996, air blast to be 133dB and the May 31, 1996, air blast to be 130 dB.
19. IF had its seismographs calibrated in June 1996, and they were found to be operating properly. Exhibit 2.
20. The seismographs were installed close to a nearby residence and were no more than 25 feet from each other.
21. IF moved its seismographs around so the machine was probably set up just prior to the blasts and removed right afterwards.
22. The air blast readings of May 9, 1996, did not surprise either blasting expert. Both agreed that a difference in machine measurements of one dB is not unusual or unexpected.
23. The air blast readings of May 31, 1996, however, did surprise both experts. Both agreed that a difference of 7dB is extremely unusual and unexplainable.
24. The NOV only charges one violation rather than alleging two separate violations.
25. The way the NOV is written, to uphold the NOV only requires a finding that either the May 9, 1996, air blast was in violation of blasting limits or that the May 31, 1996, air blast was in violation of the blasting limits.
26. Since the DNR seismograph was more or less permanently stationed at its location, appeared to be properly calibrated, and appeared to function properly on all blasts before and after May 31, 1996, the administrative law judge concludes that the evidence shows an air blast violation on that date. It is more likely that a seismograph that is being moved from blast to blast (and even mine to mine) is in error than one that remains stationed and appears to be functioning properly on all other blasts.
27. The NOV should be affirmed.
28. The administrative law judge does not need to further address the May 9, 1996, air blast readings to resolve
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this matter, however, the rationale of Solar Sources v DNR, 7 Caddnar 68, could possibly apply.
CONCLUSIONS OF LAW
Since the evidence shows at least one blast exceeding 133 dB, both permit condition 3C (5) and 310 IAC 12-5-36 (e) (1) have been violated. Therefore the NOV was properly issued.