CADDNAR

[CITE: S & G Excavating, Inc v. DNR, 2 CADDNAR 49 (1985)]

 

[VOLUME 2, PAGE 49]

 

Cause #: 84-244R

Caption: S & G Excavating, Inc v. DNR
Administrative Law Judge: Shadley
Attorneys: Monday; Spicker, DAG
Date: March 4, 1985

ORDER

 

It is ordered this date as follows:

1. NOV #N40723-S-00044, violation 1 of 3 is modified to delete reference to 310 IAC 12-5-35, under the provision violated.

 

2. NOV #40723-S-00044, violation 1 of 3, as modified, is affirmed.

 

3. NOV #N40723-S-00044, violation 2 of 3 is affirmed.

 

4. NOV #N40723-S-00044, violation 3 of 3 is vacated.


FINDINGS OF FACT

 

1. The Department of Natural Resources is an agency as the term is defined in IC 4-22-1. The Director is the ultimate authority of the Department with respect to the subject matter of this administrative action.

 

2. The Director has jurisdiction over the subject matter and parties to this action.

 

3. S & G Excavating, Inc. (S & G) holds permit S-00044 to engage in surface mining at the S & G Pit #3 in Clay County, pursuant to IC 13-4.1.

 

4. The Director may delegate any or all powers and duties assigned to him under IC 13-4.1 to other employees of the Department of Natural Resources.

 

5. William Hess, an authorized representative of the Director, issued Notice of Violation #N40723-S-00044, in three parts, to S & G pursuant to IC 13-4.1-11-4 and 310 IAC 12-6-6.

 

6. Violation 1 of 3 alleged a violation of 310 IAC 12-5-38 and 310 IAC 12-5-35 for the blasting records having inadequate sketches of delay patterns for the number of holes shot, delay patterns, sequence and systems being used and required S & G to prepare and submit a standard form to be completed for diagrams for the delay pattern, complete the form sketch for each shot between May 2, 1984 and July 19, 1984 and attach it to the blasting record and submit a revised blasting plan for non-el system to be used, all to be done by August 7, 1984.

 

7. S & G's permit #00044 is a permanent program permit.

 

8. The version of 310 IAC 12-5-38(q) in effect on July 23, 1984, required the blasting record to contain, among other things, a sketch of the delay pattern.[FOOTNOTE i]

 

9. The purpose of the sketch of delay being in the blasting (sic) record is to be able to determine if S & G has complied with the requirements of IC 13-4.1-10 and 310 12-5-36.

 

10. A blast which occurs in surface mining is conducted by setting off blasts in a pre-determined number of holes, with a pre-determined weight of explosives over a pre-determined period of time.

 

11. The amount of time which elapses between the blasts going off between holes and between rows of holes is the delay period.

 

12. 310 IAC 12-5-36 limits the maximum ground vibration and airblast which a blast can cause in terms of weight of explosives to be exploded in any eight millisecond period.

 

13. Only by knowing the number of holes blasted and the delay between each hole is it possible to determine if the permittee has met the applicable weight of explosives per eight milliseconds required by 310 IAC 12-5-36.

 

14. A sketch of the delay pattern must show the number of holes, the delay between each hole and the wiring pattern that connects one hole to another.

 

15. S& G's blasting records for May 15, 1984 through July 19, 1984 were compiled by making one record per day, which covered anywhere from one blast to nine blasts occurring that day.

 

16. S & G's sketch did not show the delay between holes.

 

17. In the blasting record, but not as part of the sketch, the delay was recorded.

 

18. S & G's sketch showed the number of holes and the wiring connecting hole to hole.

 

19. In a different part of the blasting record the number of holes was recorded.

 

20. The number of holes recorded in the blasting record and the number of holes shown on the sketch were different.

 

21. For each record, except May 17, 1984, if the number of holes recorded was divided by the number of blasts for that day, the number of holes in the sketch equaled the calculated number.

 

22. The blasting record

 

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for May 17, 1984 recorded thirty-nine holes for eight blasts that day. The sketch for the blasts showed five holes being used.

 

23. It was not possible to divide the number of holes by the number of blasts occurring May 17, 1984 and calculate that the five holes shown in the sketch were shot for each blast.

 

24. The sketch contained in S & G's blasting records was inadequate.[FOOTNOTE ii]

 

25. An inadequate sketch in blasting record is a violation of 310 IAC 12-5-38.[FOOTNOTE iii]

 

26. Violation 2 of 3 alleged a violation of 310 IAC 12-5-145, 310 IAC 12-5-146 and the Plan of Reclamation, part IV(C)(3) and (6) for failure to remove the prime farmland "B" horizon of the soil before drilling, blasting or mining at the north highwall area of the working pit on the south pit operation and required S & G to immediately commence proper soil handling procedures and to retrieve and stockpile all salvageable "B" soil on the highwall and maintain "B" removal 48 inches in depth and 50 feet in advance of the highwall by August 7, 1984.

 

27. The location of the alleged violation was an area of the permit which contained prime farmland.

 

28. 310 IAC 12-5-146 requires the "B" horizon of the soil to be separately removed before any drilling, blasting or mining.

 

29. A shovel was being used to remove overburden in the area of the alleged violation on July 23, 1984.

 

30. Removal of overburden by use of a shovel is mining.

 

31. The "A" horizon in the area of the alleged violation was twelve inches thick.

 

32. The "B" horizon in the area of the alleged violation was forty-eight inches thick.

 

33. The area of the alleged violation had not had soil material removed to a depth of sixty inches.

 

34. The area of the alleged violation had in place unremoved "B" soil horizon material.

 

35. S & G did not separately remove the "B" soil horizon before mining at the north highwall area of the working it in the south pit area.[FOOTNOTE iv].

 

36. Violation 3 of 3 alleged a violation of 310 IAC 12-2-1 (d) for failure to comply with conditions approved for a road variance at the east and west of County Road 81 west and required S & G to immediately permanently barricade each end of this section of road to prevent access to pit area.

 

37. On July 23, 1984, the road segment itself was not being mines.

 

38. The road segment did have Mine Health and Safety Administration berms alongside the road to prevent a vehicle from going off the side of the road and over the highwall.

 

39. S & G was using the road segment as a haul road for the purpose of hauling out the mined coal.

 

40. S & G did have signs posted notifying the public the road was closed.

 

41. The east end of the closed road segment was barricaded by a small wooden barricade which was approximately nine feet wide and three and one half feet high, but which did not extend across the full width of the road and did not prevent access to the road.

 

42. The west end of the high closed road segment was not barricaded to prevent public access.

 

43. S & G did park a bulldozer across the road segment at night.

 

44. As a condition to closing the road, Permit S-00044 required S & G to construct proper signs and barricades and to erect and maintain all proper signs and barricades and take all necessary steps to protect persons while the segment of the road was temporarily closed.

 

45. The requirement to erect and maintain proper detour signs and barricades and take all necessary steps to protect persons while such segment of the road is temporarily closed did not require S & G to have the road permanently barricaded before mining through the road itself, and while using the road as a haul road.

FOOTNOTES

 
i. There was some confusion about what the prior requirement had been, and when it had changed. The requirement which existed during the interim program was to maintain a log detailing the location of blasts, the pattern and depth of the drill holes, the amount of explosives used per hole and the order and length of delay in blasts. (See Acts of 1978, Acts of 1979, P.L. 314, and Acts of 1981, P.L. 331, and 30 USC 1265 (b) (15) (B). The first requirement for permanent program permits is the one at issue here. On December 1, 1984 the permanent program rule was revised to require a sketch of the blast pattern including the number of holes, burden, spacing, decks and delay pattern. (See 310 IAC 12-5-38, as revised at 7 IR 822.)

 

ii. Clearly the May 17, 1984 sketch, in light of the other information in the blasting record, was either wrong or the other information was wrong. The remaining records are subject to interpretation, only one interpretation being that the sketch accurately depicts the number of holes. It is important that

 

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blasting records not be subject to differing interpretations and that the records be sufficiently clear to be able to determine compliance with 310 IAC 12-5-36.

 

iii. S & G testified that the records cited in the NOV were not available on July 23, 1984, and that it believed the NOV was written relating to a change to the non-el system. The Department testified it did review some records during the July 23 inspection and requested copies be sent to the Division and based on what was observed on July 23 the NOV for inadequate sketches was written. Because records for the date of the alleged violation were introduced, and those records contained all the information necessary to review and affirm the violation.

 

iv. S & G supports their contention that all the "B" soil horizon had been removed by hearsay testimony of the person who removed the soil material and with information contained in a revision to the permit which shows that the "B" and "C" horizons are of similar quality which could have been confused by the inspector as "B", when really the "C" horizon. The Department submitted testimony from the inspector that through visual observation he could see that a total of sixty inches had not been removed in the area cited for a violation, and from a qualified soil expert that the results of samples of the unremoved soil, analyzed by Purdue University, showed that the unremoved material in the area of the cited violation was from the top two to two and one half feet of the soil horizon. The Department has made a primae facie case that the "B" horizon was not removed and S & G has not successfully rebutted that evidence.