[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
[VOLUME 2, PAGE 50]
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
[VOLUME 2, PAGE 51]
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.