[CITE: Otto Rone v. DNR, 2 CADDNAR 58 (1985)]
[VOLUME 2, PAGE 58]
Cause #: 84-308R
Capton:
Otto Rone v. DNR
Administrative Law Judge: Shadley
Attorneys: Rone, pro se; Spicker,
DAG
Date: January 31, 1985
ORDER
IT
IS ORDERED this date as follows: Cessation Order #C41123-S-00097 is vacated.
FINDINGS OF FACT
1.
The Director of the Department of Natural Resources is included in the definition
of agency as used in IC 4-22-1-2 and is duly empowered to conduct
administrative hearings pursuant to IC 4-22-1.
2.
Otto Rone is a sole proprietor with office address at
R.R. #2 Box 79, Dale, Indiana 47523.
3.
The Director has jurisdiction over the subject matter and parties to this
action.
4.
On December 11, 1984, Cessation Order #C41123-S-00097 was issued by Lance
Myers, an authorized representative of the Director, pursuant to IC 13-4.1-11-5(a)(2)
and 310 IAC 12-6-5(b)(2).
5.
On December 17, 1984, Otto Rone requested administrative
review of Cessation Order #C41123-S-00097.
6.
On January 23, 1985 a hearing was conducted pursuant to IC 4-22-1, for the
purpose of reviewing Cessation Order #C41123-S-00097.
7.
Cessation Order #41123-S-00097 was issued for failure to abate Notice of
Violation #N41115-S-00097.
8.
Notice of Violation #N41115-S-00097 cited Otto Rone
for failure to have on site complete blasting records and to have them
available for inspection in violation of 310 IAC 12-5-38.
9.
Notice of Violation #N41115-S-00097 required Otto Rone to submit to the
Jasonville field office complete blasting records for blasts on November 1,
1984, November 6, 1984, November 7, 1984 and November 12, 1984 by November 23,
1984 at 5:00 PM.
10.
Otto Rone did submit blasting records to the
Jasonville Field Office by November 23, 1984, 5:00 PM.
11.
310 IAC 12-5-38 requires a blasting record to contain, among other things, the
direction and distance in feet to the nearest dwelling, school, church,
community or institutional building, number of holes, burden and spacing, if
mats or other protection was used and a sketch of the delay pattern.
12.
The record submitted by Otto Rone for November 1, 1984
did not contain the direction to the nearest structure, did not contain a
sufficient description of the location of the blast, did not contain the proper
burden, did not contain the proper number of holes in relation to the total
weight of explosives and maximum weight of explosives per eight milliseconds,
did not contain a proper sketch of the delay pattern, did not indicate if mats
or other protection was used.
13.
The records for November 6, 1984, November 7, 1984 and November 12, 1984 did
not contain a sufficient description of the location of the blast, a proper
sketch of the delay pattern or if mats or other protection was used.
14.
The records submitted were not complete blasting records as defined by 310 IAC
12-5-38.[FOOTNOTE 1]
15.
Otto Rone's blasting records for the dates prior to
November 6 contained similar deficiencies to those identified in the November 1,
November 6, November 7, and November 12 records.
16.
The November blasts were the last conducted by Otto Rone
on Permit Number S-00097.
17.
Otto Rone had dismissed his blasting employee after
the November blasts.
18.
Otto Rone contacted his prior employee as soon as he
learned of the Notice of Violation.
19.
Otto Rone's prior employee was ill, but returned from
Kentucky to Indiana as soon as he was able, in order to abate the Notice of Violation.
20.
Otto Rone and his prior employee traveled 1600 miles
attempting to correct the blasting records.
21.
Otto Rone or his prior employee attempted to reach
and did speak with the Jasonville Field Office to learn what was necessary to
abate the violation on
[VOLUME 2, PAGE 59]
several occasions.
22.
The complete blasting records were submitted on January 11, 1985.
23.
Otto Rone's failure to submit complete blasting
records by November 23, 1984 was not due to lack of diligence.[FOOTNOTE 2]
FOOTNOTES
1. Blasting records must contain all of the information in the rule. Without a
proper sketch much of the other information becomes worthless. The sketch must
explain the timing pattern, if crossovers occur and how the blast is initiated
or detonated. The description of the location must be in greater detail than
the entire mine. The location must be sufficient to pinpoint where the blast
occurred in relation to the nearest structure in order to allow a determination
of whether or not the performance standards have been met. Otto Rone must take much greater care in preparing future
blasting records or continuous notices of violation will be properly written.
2.
In no way do I intend to give the impression that maintaining on-site complete
records is unimportant, or that Otto Rone's actions
were acceptable. A Notice of Violation was properly issued for his failure to
have on site and available for inspection complete records. A large civil penalty,
due to seriousness and negligence, should have been assessed for the Notice of Violation.
However, in this case Otto Rone submitted records
like those he had previously kept within the specified time frame and did make
steady attempts to resolve the completeness