[CITE: S & G Excavating, Inc. v. Department, 2
CADDNAR 60 (1986)]
[VOLUME 2, PAGE 60]
Cause #: 84-311R
Caption: S & G
Excavating, Inc. v. Department
Administrative Law Judge: Shadley
Attorneys: Monday; Spicker, DAG
Date: February 21, 1986
ORDER
Notice
of Violation #N41206-S-00044 is affirmed.
FINDINGS OF FACT
1.
On December 18, 1984, S & G Excavating, Inc. requested a Hearing to review
the issuance of Notice of Violation #N41206-S-00044.
2.
IC 13-4.1 applies to this proceeding.
3.
The Department of Natural Resources is an agency as defined in IC 4-22-1. The
Director is the ultimate authority of the Department with respect to this
proceeding.
4.
The Director has jurisdiction over the subject matter and parties to this
proceeding.
5.
The parties agreed to waive their right to Hearing and in lieu thereof have
submitted stipulations of fact.
6. S
& G Excavating, Inc. holds permit S-00044 to conduct surface coal mining
operations in Clay County.
7.
William Hess, an authorized representative of the Director, issued Notice of Violation
#N41206-S-00044 which was written on December 6, 1984.
8.
The Notice of Violation was written for failure to have records of blasting
operations available for inspection by the Director and the public on request,
in violation of 310 IAC 12-5-38.
9.
Permit S-00044 has two pits, the North Pit and the South Pit.
10.
S & G has no regular hours at this permit; at time they work around the
clock, and on this date they were not working at all, except for a secretary who
was in the mine office at the South Pit.
11. On
January 30, 1986, the blasting records for both the North Pit and the South Pit
were on-site, but only the records of the North Pit were made available for
inspection.
12.
The records of the North Pit were made available by the mine superintendent who
lives on the mine site.
13.
The reason the records for the South Pit were not made available for inspection
was that the only person in the office did not know where the records were
kept, and no other persons were in the office due to extremely cold weather resulting
in mining operations having been called off.
14.
310 IAC 12-5-38 provides a "record of each blast, including seismograph
records when obtained, shall be retained by the permittee
for at least three years and shall be made available for inspection by the
director and the public on request."
15.
The records for the South Pit were not made available for inspection upon request
of Inspector Hess.
16.
This failure to make records of blasting available for inspection is a
violation of 310 IAC 12-5-38.[FOOTNOTE i]
FOOTNOTE
i. S & G argues that the effect of this Notice of
Violation is that the Department is telling S & G when they must be open
for business. I disagree, I believe the only effect of this Notice of Violation
is that records, which by law are required to be made available for inspection
upon request, must be maintained in such a way that they are available upon
request. It is important that these records not be kept in a way that
inspection is made impossible. By keeping records such that only one person can
locate them, the result is that accessibility is seriously impaired since
inspection can only occur when the person is available. I do not think it would
be proper to issue a Notice of Violation in the instance when the office was
locked, but if the office is open, the records should be maintained so that
inspection is possible, no matter which employee is possible, no matter which employee
is present in the office.