ENFORCE35100

• Permit No: C1981013
• IBM Index Class Name: Enforcement
• Doc Date: 4/19/2001
• Doc Name: PREHEARING BRIEF OF BASIN RESOURCES INC
• Violation No.: CV2000009
• Media Type: D
• Archive: No

Page 2
GFS(MIN) 20(1999)
(Cite ae: 147 IBLA 323, *323)
1977 (SMCRA), 30 U.S.C. § 1267 (h) (1994), and 30 C.F.R. § 842.12. He charged
that Mid State's blasting activities were causing *324 structural damage to his
nearby private dwelling and outbuildings, which he had purchased in 1976.
Pursuant to section 521(a)(1) of SMCRA, 30 U.S.C. § 1271(a)(1) (1994), OSM
issued a Ten-Day Notice (TDN) to the Illinois Department of Mines and Minerals
(DMM), in response•to Appellant's citizen's complaint. DMM investigated the
matter, concluding that the blasting had been conducted in accordance with State
regulatory standards, and there was no reason to find that it had caused any
damage to Appellant's buildings. Thus, the State did not take enforcement
action. OSM also investigated, agreeing with DMM's findings. Based on these
findings, the SFO rendered its July 1992 decision declining to take any Federal
enforcement. There is no evidence in the record that Appellant sought informal
review of that decision pursuant to 30 C.F.R. § 842.15.
By letter dated April 22, 1994, Appellant renewed his citizen's complaint,
contending that structural damage to his private dwelling and outbuildings had
been occurring since August 19, 1990, and was still continuing. On May 19, 1994,
OSM inspector Perry L. Pursell, accompanied by William C. Morrison and Kenneth
Eltschlager, mining and civil engineers with OSM's Eastern Support Center,
inspected the buildings in the presence of Appellant. Pursell, together with
Morrison and Eltschlager, also visited Mid State's mine site, on which active
surface coal mining was occurring. Following the inspections, Morrison and
Eltschlager prepared a July 1994 Report of Investigation (Report), detailing
their analysis and conclusions.
The record indicates that Appellant's house, a one-story ranch house with a
cellar, consisted of an original structure, 30 feet and 8 inches by 28 feet,
which was over 50 years old, with a 28- by 28-foot addition built in 1976. There
was also a barn and a small shed. During their inspection, Morrison and
Eltschlager mostly observed vertical cracks through the concrete blocks and
mortar joints of both the foundation of the house and the walls of the barn and
shed. (Report at 2-3.) In the case of the house foundation, they attributed
horizontal cracking or separation of the mortar joints to "hydraulic surcharge
or *** expansion to the soils outside the building." Id. at 2. In the case of
the walls of the outbuildings, they attributed the "[l]imited" horizontal
cracking or separation of the mortar joints to the "drag or push of the block
adjacent to the vertical crack." Id. at 3. Morrison and Eltschlager also
attributed a crack in the concrete floor of the cellar to an "upward movement"
of the floor, a compression crack in the living room ceiling to an upward
movement and inward rotation of the walls, and various plaster cracks in the
house to "twisting and stresses within the structure." Id.
Morrison and Eltschlager determined that the majority of the cracks were not
typically associated with blasting since they were not horizontal or shear in
nature, but vertical. (Report at 7.) Rather, they noted that the cracks were
indicative of the movement of the underlying soil, owing to shrinking and
swelling. Id. Morrison and Eltschlager pointed out that the soil on Appellant's
property, "type 36B--Tama silt loam," was in fact susceptible to shrinking and
Copr. m West 2001 No Claim to Orig. U.S. Govt. Works