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 4
must thus demonstrate, by a preponderance of the evidence, that DMM's response
to the TDN was arbitrary, capricious, or an abuse of discretion. See Morgan
Farm, Inc., 141 IBLA 95, 100 (1997) [FNb] and cases cited. For the reasons set
forth below, we find that Appellant has failed to meet his burden of proof.
*326 A surface coal mine operator in Illinois is required by section 3.13 of
the Illinois Surface Coal Mining Land Conservation and Reclamation Act,
111.Rev.Stat. ch. 96 1/2 (1991), and section 1816.67 (a) of the Illinois surface
coal mining regulations, I11.Admin.Code tit. 62 (1991), to limit the manner and
timing of blasting so as to "prevent *** damage to *** private property outside
the permit area." In order to accomplish this, sections 1816.67(b) and (e) of
the Illinois surface coal mining regulations further specify that, as a
consequence of blasting, airblasts, and ground vibrations shall not exceed 134
dB (measured at a frequency of 0.1 Hertz or lower) and 0.75 in/s at any dwelling
which, as was the case here in 1990-91, is located more than 5,000 feet from the
blast site. I11.Admin.Code tit. 62, §§ 1816.67 (b) and (e) (1991).
DMM, corroborated by OSM, concluded that Mid State's blasting activities bad
satisfied those requirements during the period of time when damage was said to
have first occurred (1990-91). (Mine-Site Evaluation Inspection Report, dated
May 23, 1994, at 4; Report at 3-5.) Appellant has provided no evidence to the
contrary. In addition, Appellant has presented no evidence that such activities
did not conform to the other requirements of section 1816.67 of the State
regulations.
The sole evidence offered by Appellant in support of his assertion that Mid
State's blasting was responsible for the structural damage to his buildings is
the fact that the initial damage coincided with the start of such activity.
Appellant has not shown that OSM erred in its determination that the cracks were
not associated with Mid State's blasting, since the ground vibration and
airblast impacts of blasting at Mid State's mine site would not have been
sufficient to cause any damage. He made no effort to demonstrate that OSM erred
in its calculation of those impacts or to offer his own calculation. Nor did he
present any evidence that the impacts were at any time actually greater than
those determined by OSM (or approached or exceeded the damage threshold levels),
or that damage would have occurred with impacts at the low levels calculated by
OSM. (Copy of Report attached to Notice of Appeal at 4.)
Appellant has not carried his burden of proof by merely asserting that the
evidence offered by OSM's experts, in corroboration of DMM's determination, does
not, in his estimation, constitute sufficient scientific proof that damage was
not caused by blasting. Nor has he carried that burden by merely expressing his
disagreement with the reasoned analysis and conclusions of OSM's and DMM's
experts, concerning a matter within the realm of their expertise. See Harvey
Catron, 134 IBLA 244, 265 (1995), (FNc] aff'd, Catron v. Babbitt, No. 96-0001-
BSG (W.D.Va. Mar. 5, 1997), vacated on other grounds, No. 97-1449 (4th Cir. Dec.
22, 1997). As we said in Betty L. Tennant, 135 IBLA 217, 230 (1996), (FNd] a
case which likewise involved purported damage to private buildings as a result
Copr. m West 2001 No Claim to Orig. U.S. Govt. Works