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

GFS(MIN) 20(1999)
(Cite as: 147 IBLA 323, *325)
Page 3
swelling, with the introduction and loss of *325 water. Id. at 5. They also
noted that a study conducted by Geotechnical Consultants, Inc. had determined
that Appellant's soil experienced an upward movement during 1994. Id. at 6-7.
Morrison and Eltschlager indicated that this was very likely to have also
occurred in 1990, when Appellant first experienced damage, due to the unusually
high precipitation-that year, on the order of 1.63 times what fell in 1989. Id.
at 6.
Morrison and Eltschlager also calculated what the impacts, in terms of ground
vibrations and airblasts, would have been in 1990 and 1991 at the site of
Appellant's house and outbuildings, which were, at their closest point, 6,000
feet (or 1.14 miles) from the area disturbed by Mid State's surface coal mining
operations under State permit No. 132. (Report at 4, "Figure 1.") They did so
based on logs kept by Mid State, which revealed a typical blast, in terms of
number, position, and sizes of holes, total pounds of explosives, and other
factors, conducted during that time period. Id. at 3, 4. Morrison and
Eltschlager determined that Mid State's blasting activities would have generated
ground vibrations and airblasts on the order of 0.10 inches per second (in/s)
and 110 decibels (dB). Id. at 4, 5. They stated that these impacts would have
been well below that sufficient to cause damage to any of Appellant's
structures, noting that ground vibrations and airblasts must exceed 0.5 in/s and
134 dB in order to cause damage to any part of a residential structure. Id. at
4, 5, 6.
For the foregoing reasons, Morrison and Eltschlager concluded that Mid State's
blasting activities were not responsible for any of the structural damage found
on Appellant's property. (Report at 1.) Rather, they considered soil movement to
be the "probable cause" of the damage. Id.
The SFO took no further action following Morrison and Eltschlager's July 1994
Report. By letter dated July 22, 1994, Appellant requested informal review of
the SFO's July 1992 Decision, as supplemented by OSM's July 1994 Report,
pursuant to 30 C.F.R. ~ 842.15. In his September 29, 1994, Decision, the
Assistant Director affirmed SFO's decision not to take Federal enforcement
action, concluding, on the basis of all pertinent information (including the
Report), that Mid State's blasting activities had not caused the damage to
Appellant's structures.
Appellant appealed from that Decision, contending in his October 13, 1994,
Notice of Appeal that his buildings were not cracked before Mid State started
its blasting activities, but are now "in total disrepair." He concludes that the
Report "indicates a cover up, biased opinions in favor of the mine and shows me
little or no scientific proof that damage has not been caused or aided by
blasting in my area."
[1] A party objecting to an OSM decision not to enforce SMCRA in response to a
citizen's complaint has the burden of proving that OSM acted in error. William
H. Pullen, Jr., 132 IBLA 224, 228 (1995). [FNa] To do so, Appellant in this case
Copr. m West 2001 No Claim to Orig. U.S. Govt. Works