[NOTE: ON OCTOBER 31, 1989, JUDICIAL REVIEW WAS TAKEN IN MARION SUPERIOR COURT (CAUSE NUMBER 49-DO5-8910-CP-1475). IN JANUARY 1991, CAUSE WAS DISMISSED FOR FAILURE TO PROSECUTE.]
Notices of Violation #N80225-S-00118, #N80322-S-00118, #N80408-S-00118, and #N80303-S-00118 are affirmed.
FINDINGS OF FACT
1. On April 19, 1988, Jaeco, Inc. ("JAECO") requested a review of the issuances of Notices of Violation #N80225-S-00118, #N80408-S-00118, #N80322-S-00118 and #N80303-S-00118.
2. At the prehearing conference the parties agreed to consolidate the above listed notices of violation (the "NOV") for hearing.
3. IC 4-21.5, IC 13-4.1, 310 IAC 0.6 and 310 IAC 12-5 apply to this proceeding.
4. The department of natural resources (the "Department") is an agency as defined in IC 4-21.5-1-3. The director is the ultimate authority for the Department with respect to this proceeding.
5. JAECO holds permit S00118 to conduct surface coal mining operations in Clay County at its Eel River Mine.
6. This case deals with alleged violations by JAECO of blasting performance standards contained in 310 IAC 12-5-36.
7. The performance standards for the blasts in question were airblast not to exceed 129 dB and peak particle velocity (PPV) for ground vibration not to exceed 1.00 inch/second (ips).
8. Charles Armbrust, an authorized representative of the director, issued all NOV.
9. NOV #N80225-S-00118 was issued on February 25, 1988 for blasts with dates and readings as follows: January 22, 1988 -1.03 ips PPV, January 23, 1988 - 1.05 ips PPV, and January 29, 1988 - 1.31 ips PPV.
10. NOV #N80322-S-00118 was issued on March 3, 1988 for a February 19, 1988 blast with a 1.11 ips PPV.
11. NOV #N80322-S-00118 was issued on March 22, 1988 for blasts conducted on February 15, 1988 with an airblast peak of 131 dB and on March 21, 1988 with an airblast peak of 130 dB.
12. NOV #804Q8-S-00118 was issued on April 8, 1988 for a March 17, 1988 blast with a 1.01 ips PPV.
13. JAECO challenges all NOV on the following grounds: evidence of violations is not admissible on hearsay grounds; evidence failed to establish any violations; the equipment was neither properly located nor properly installed; and, for various reasons, the readings obtained were unreliable.
14. The Department utilizes a contractor, Dallas Instruments, Inc. ("Dallas"), 10205 Plano Road, Dallas, Texas 75238, to produce blast and seismographic reports which allow the Department to carry out its responsibility to monitor compliance with blasting performance standards.
15. The Department utilizes the following procedure in carrying out its responsibility: a Dallas seismograph is installed at a proper location; the seismograph records blasting data on a cassette tape; the tape is sent to a Dallas field office where it is read by a computer program(s), which convert(s) the blast data onto a human readable form; this human readable form is printed out as a blast and seismographic report, analyzed and signed by a technician, and dispatched to the Department.
16. JAECO asserts that the information contained on the blast and seismographic reports is inadmissible hearsay because the technician who performed the analysis on each report in question here (John Wiegand) was not present at hearing to testify.
17. Under the Administrative Adjudication Act (AAA) (IC 4-21.5) there is no such thing as inadmissible hearsay. Hearsay is always admissible at the discretion of the administrative law judge but if properly objected to and if it does not fall under a recognized exception to the hearsay rule, a resulting order may not be based solely upon the hearsay evidence.[FOOTNOTE i]
18. If JAECO is correct in its assertion that the
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information used to justify the NOV is hearsay, and it does not fall under an exception to the hearsay rule, the NOV could not stand because there would be no usable evidence to substantiate the allegations of violation of blasting performance standards.
19. JAECO sites two Indiana cases that correctly identify hearsay as oral or written testimony given in court, of a statement made out of court, which statement is offered to show the truth of the matters therein. Its value is therefore reliant upon the credibility of an out-of-court asserter.[FOOTNOTE ii]
20. Courts dislike hearsay evidence because if the declarant is not available, the other side cannot exercise its right to cross-examine. In this case, JAECO wishes to cross-examine the technician who signed the line on the blast and seismographic report marked "Analysis by:" (John Wiegand) in an attempt to discredit the information produced by the computer which lead to the NOV.
21. It could very well be that the reports are not hearsay at all because the declarant is not Mr. Wiegand but, rather, the computer program that analyzed the data on the cassette tape and turned it into the information used as the basis for the NOV.
22. The Department does not question the hearsay nature of the reports but instead argues that the information falls under an exception to the hearsay rule which makes the availability of the declarant immaterial. This exception is identified in the Federal Rules of Evidence as "records of regularly conducted activity"FOOTNOTE iii] and in Indiana as the "business records doctrine"FOOTNOTE iv].
23. Federal Rule of Evidence 803(6) cites this exception as follows: "A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trust-worthiness. The term "business" as used in the paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."
24. The Department's argument that the blast and seismographic reports fall under this exception to the hearsay rule is well taken. The only questions would be whether the reports were properly admitted and whether or not the information is reliable.
25. Federal case law indicates that a representative of the business (Dallas) need not be present to properly admit this type evidence. The only requirement is that the "sponsoring witness" be in a position to attest to the documents authenticity[FOOTNOTE v]. The "sponsoring witnesses" here were Charles W. Armbrust and Eric Gerst. Mr. Gerst is accepted as a blasting expert and was trained by Dallas in regard to the process followed to produce the reports in question.
26. Federal case law further indicates that computer data compilations may be business records and should be treated as any other record of regularly conducted activity as long as they are shown to be kept pursuant to some routine procedure designed to ensure their accuracy[FOOTNOTE vi]. Here there is a routine procedure as explained previously. Further, there is no requirement to produce the computer programmer to testify that the software involved was accurate[FOOTNOTE vii].
27. The trustworthiness of the procedure followed by Dallas should not be in question as JAECO uses it in their monitoring as well. This does not say that JAECO cannot challenge the Department's actions in producing the cassette tape and usage of the information in regard to issuance of NOV. At this point, all that has been determined is that the blast and seismographic reports can be used by the administrative law judge as the basis for a recommended order because they are not hearsay at all or if they are hearsay they fall under the records of regularly conducted activity exception as articulated in Federal Rule of Evidence 803(6).
28. The majority of the other evidence offered at hearing was presented by two competing witnesses who were both adjudged to be experts in the field of blasting. These witnesses were, for the Department, Eric Gerst who was, at the time, the blasting specialist at the Division of Reclamation and, for JAECO, Jim Ludwiczak who is an industry blasting consultant.
29. The Department correctly asserts that JAECO has the burden of going forward with persuasive evidence as to its defense(s) to the charges made in the NOV.[FOOTNOTE viii]
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However, there is also a burden on the Department to first present a persuasive case as to why the NOV were written and that proper procedures were followed.
30. The AAA calls for the following procedure: the Department presents the NOV showing that they were properly issued and have a solid legal basis. The challenger then presents evidence challenging any aspect of the issuance of or the basis for the NOV and any affirmative defense(s) that may exist.
31. The administrative law judge must weigh all the evidence presented and recommend in favor of the most persuasive party provided the law is unclear as to the proper outcome.
32. In this case, each side has presented an expert witness and they disagree as to the correctness of many of the procedures followed by the Department in administering its oversight of blasting performance standards.
33. All but one of the challenges brought by JAECO go to the qualifications, believability and point-of-view of the expert witnesses. These challenges are to the installation of the seismograph and the reliability of the data received.
34. Mr. Gerst is not as experienced as Mr. Ludwiczak in the general areas of blasting and seismology. However, in specific areas of installing seismographic equipment and using the output produced to monitor performance standards Mr. Gerst is as qualified as Mr. Ludwiczak because he (Mr. Gerst) has received intensive training in these specific areas. In other words, while Mr. Ludwiczak is the most qualified generally, Mr. Gerst is a least as well qualified as to the specific subjects at issue here.
35. Both witnesses were believable in their testimony. They were sincere and forceful in their disagreement. However, their points-of-view were vastly different.
36. As to equipment installation, Mr. Gerst testified that he installed the equipment properly and then checked it periodically. Mr. Ludwiczak challenges aspects of the equipment installation based on a recent inspection while preparing to testify for Jaeco.
37. As to the reliability of the data, Mr. Gerst testified that he used the information received from Dallas in the form of blast and seismographic reports properly, based on the training he received from Dallas and using standards implemented by the Department to carryout its monitoring responsibility. Mr. Ludwiczak, in his testimony, challenges the accuracy of the information and how it is used.
38. In regard to the installation of the equipment and the reliability of the information obtained, Mr. Gerst's first hand knowledge is more persuasive than Mr. Ludwiczak's later inspection and inquiries made in preparation for testimony and this leads to the conclusion that the Department must prevail as to this area.
39. The overall evidence shows that the general procedures followed by the Department in monitoring blasting performance standards are legally sufficient and the process produces reliable information in regard to the issuance of an NOV.
40. JAECO's final challenge deals with the location of the seismograph. The argument is that the Department placed the equipment at a location not protected by law. This argument is well taken.
41. The Indiana Administrative Code sections dealing with blasting performance standards clearly specify that both airblast[FOOTNOTE ix] and ground vibration[FOOTNOTE x] performance standards shall be measured "at the location of any dwelling, public building, school, church, or community or institutional building."
42. The readings leading to all these NOV were taken from a seismograph placed at least 83 feet from the nearest dwelling.
43. The Department maintains that the words "at the location" are not clearly defined.
44. The list of structures to be protected however, is very clear. The Department chose to locate the seismograph next to a metal garage type outbuilding. This type of building is not protected by the code.
45. The Department correctly states that seismograph can be "at the location" of a dwelling and still be some distance away from said dwelling if a factor[FOOTNOTE xi] exists that would require such a distant placement. In this case there is compelling evidence of a factor that would require a placement at least 83 feet away from the nearest dwelling.
46. The Department asserts that the seismograph was placed so as to be able to get unobstructed readings from the entire blasting area.
47. Evidence shows that there was no reasonable placement location near the house which would be unobstructed.
48. Willard Pierce, the current Department blasting specialist, testified that the corner of the shed was the most reasonable location for the seismograph.
49. The reasonableness of the placement was not refuted by John Carl VanDiver III, an expert called by the Claimant.
50. It is clear that the placement of the
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seismograph in this case was reasonable and "at the location of the dwelling" because of the obstructions present between the area to be monitored and the Robert Chafey dwelling.
51. Accordingly, the seismograph was not located in contravention with the blasting performance standards found in the Indiana Administrative Code.
FOOTNOTES
i. IC 4-21.5-3-36 (a)
ii. Plan-Tec, Inc. v. Wiggins (1983), Inc. App., 433 N.E. 2d 1212, 1231; Davis v. Eagle Products (1986), Ind. App. 501 N.E. 2d 1099, 1106.
iii. Federal Rule of Evidence 803 (6)
iv. Simmons v. State, 371 N.E. 2d 1316 (1978) 60 Ind. Dec. 544;
v. United States v. Evans, 572 F.2d 455 (CA 5th, 1978)
vi. Rosenberg v. Collins, 624 F.2d 659 (CA 5th, 1980)
vii. United State v. Young Bros., Inc., 728 F.2d 682 (CA 5th, 1984)
viii. IC 4-21.5-3-14 (c)
ix. 310 IAC 12-5-36 (e) (1)
x. 310 IAC 12-5-36 (h) (1)
xi. Topography, animals, children, vehicles, construction, etc.