[CITE: Squaw Creek C. Company v. DNR, 2 CADDNAR 53 (1985)]
[VOLUME 2, PAGE 53]
Cause #: 84-266R
Caption: Squaw Creek C.
Company v. DNR
Administrative Law Judge: Shadley
Attorneys: Joest; Spicker, DAG
Date: April 1, 1985
ORDER
Cessation
Order #C41012-S-00008 is modified to change the provision violated from 310 IAC
12-5-36(g)(h) to 310 IAC 12-5-36(g) and 310 IAC 12-5-36(h).
Cessation
Order #C41012-S-00008 is modified to delete as provisions violated, 310 IAC
12-3-4 Condition of permit part III C(2), and 310 IAC 12-6-5(a)(1)(i).
Cessation
Order #C41012-S-00008 is modified to write the violation as a Notice of Violation.
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 of the parties to this
action.
3.
Squaw Creek holds permit S-00008 to engage in surface mining at the Squaw Creek
Mine, North Area in Warrick 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.
Irv Goldblatt, an authorized representative of the
Director issued Cessation Order #C41012-S-00008 to Squaw Creek pursuant to IC
13-4.1-11-5 (a)(1)(i). The Cessation Order alleged a
violation of 310 IAC 12-6-5 (a)(1)(i),
310 IAC 12-5-36 (g)(h)[FOOTNOTE 1]
and 310 IAC 12-3-4 condition of permit part III C(2)[FOOTNOTE 2] and required Squaw Creek to immediately ceased all
blasting operations. The cessation order provided that it could be abated by
the observance by an authorized representative of a blast in which flyrock is controlled pursuant to 310 IAC 12.
6.
Squaw Creek did not contest the fact that flyrock
leaving the permit area is a violation of 310 IAC 12 and IC 13-4.1, but does
contest the department's authority to write a cessation order for the
violation.
7. A
cessation order shall be issued if an inspector determines that a condition or
practice exists or a violation has occurred which creates imminent danger to
the health or safety of the public.[FOOTNOTE 3]
8.
An imminent danger to the health and safety of the public means the existence
of any condition or practice, or any violation, which condition, practice or violation
could reasonably be expected to cause substantial physical harm to persons
outside the permit area before that condition, practice, or violation is
abated. A reasonable expectation of death or serious injury before abatement
exists if a rational person, subjected to the same conditions or practices
giving rise to the peril, would not expose himself to
the danger during the time during the time necessary for abatement. [FOOTNOTE 4.]
9.
Casting flyrock off the permit area into the yard of
a private dwelling is a violation of 310 IAC 12-5-36 (g) which has occurred.
10.
If a person were struck with type of flyrock which
was cast into the yard of this private dwelling, a reasonable expectation of
substantial physical harm exists.
11.
The flyrock being cast off the permit area resulted
from the explosives not being properly confined in the hole due to either
inadequate stemming, the explosives being too close to the surface or improper
loading of the hole.
12.
Statistically, one would not expect two blasts in a row to "blow-out"
resulting in flyrock being cast outside the permit
area.
13.
Person outside the permit cannot reasonable expect substantial physical harm
occur on the blast following the blast which "blew-out."
14.
A condition or practice does not "exist" based on one occurrence of flyrock being cast outside the permit area.
15.
Conducting blasting that results in flyrock being cast into the yard of a private dwelling,
outside the permit area, is not a condition or practice which exists after the
violation has occurred.
16.
Conducting blasting that results in flyrock being cast into the yard of a private dwelling,
outside the permit area is not a violation which has
[VOLUME 2, PAGE 54]
occurred which creates an imminent
danger to the health or safety or the public.
17.
A Notice of Violation is written for a violation, which does not create an
imminent danger or harm for which a cessation order must be issued.[FOOTNOTE 4]
FOOTNOTES
1. There is no rule cited as 310 IAC 12-5-36 (g) (h). There is a rule 310 IAC
12-5-36 (g) which relates to casting flyrock outside
the permit area and a rule 310 IAC 12-5-36(h) which relates to conducting
blasting to prevent injury to persons outside the permit area. From the facts
of this case it appears the citation was meant to be 310 IAC 12-5-36(g) and
(h).
2.
No testimony was introduced to explain what permit condition Part III C(2) is.
3.
See IC 13-4.1-11-5(a) (1) and 310 IA. 12-6-5 (a)(1)(I).
4.
See IC 13-4.1-1-3 (4).