[CITE: Peabody Coal Company v. DNR, 5 CADDNAR 205 (1991)]
[VOLUME 5, PAGE 205]
Cause #: 88-251R
Caption: Peabody Coal Company
v. DNR
Administrative Law Judge: Teeguarden
Attorneys: Joest; Posey
Date: November 13, 1991
ORDER
The
assessment of penalty Points by the Department of Natural Resources and the
resulting fine of $1,300 imposed on Peabody Coal Company is
affirmed.
FINDINGS OF FACT
1. At all times relevant to these proceedings, Peabody Company
("Peabody") possessed surface coal mine permit S-00010, which allowed
the mining of coal at the Hawthorne Mine.
2.
The Department of Natural Resources ("DNR") is an agency within the
meaning of IC 4-21.5.
3.
IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these
proceedings.
4.
The DNR is responsible for the regulation of surface coal mines under IC
13-4.1.
5.
In the case of enforcement actions in which a request for administrative review
is brought, the administrative law judge is the ultimate authority within the
meaning of IC 4-21.5.
6.
On June 29, 1988, an authorized representative of the DNR issued a notice of
violation to Peabody for exceeding authorized blasting limits at the Hawthorne
mine.
7.
Peabody did not contest the violation.
8.
Subsequently, a penalty under 310 IAC 12-6-12.5 was assessed in the amount of
$1,400.
9.
On September 6, 1988, Peabody requested an administrative review of the $1,400
penalty contending that the assessment of "points" under 310 IAC
12-6-12 was in error.
10.
On or about January 30, 1989, the DNR employee responsible for assessments
reviewed his calculation and decided in light of the information presented to
reduce the point total by one point thus resulting in a civil penalty of $1,300
instead of $1,400.
11.
Peabody indicated it wished to continue its appeal contending that the DNR was
in error on its points assessment in two areas, those
being:
a.
The DNR erred in giving 12 points for negligence, the highest number allowable
unless there is a finding of recklessness.
b.
The DNR erred in giving nine points for "probability of harm", a
value which is the highest number of points for "harm not likely to occur.[FOOTNOTE 1]
12.
The blast in question recorded a measured ground vibration peak particle
velocity (ppv) of 1.92 inches per second (ips) at a distance of approximately 2,700 feet from the
blast.
13.
310 IAC 12-5-36 limits ppv to 1.25 ips under any circumstances and 1.00 ips
between 301 and 5,000 feet of the blast.
14.
310 IAC 12-6-12 sets forth the method used to calculate civil penalties for
notices of violation. There are a number of different factors, the only two of
which are at issue here are "seriousness" and "negligence".
The remaining 12 points assessed for other criteria were not questioned by
Peabody.
15.
"Seriousness" deals with the likelihood of causing damage that the
regulations are trying to prevent. The following table is used:
None 0
Insignificant 1-4
Unlikely 5-9
Likely 10-14
occurred 15
16. "Negligence" deals with the degree of fault shown by the
operator. The following table is used:
None
0
Simple Negligence 1-12
Recklessness 13-19
Knowing or intentional 20-25
[VOLUME 5, PAGE 206]
17.
Peabody does not argue with the finding by the DNR that the seriousness
category is "unlikely" or the negligence category is "simple
negligence." Peabody disputes being assessed the maximum points for each
category.
18.
The blasting limit for ground vibration prior to the passage of the Surface
Mining and Control Act (SMCRA) in 1977 (Federal) and 1982 (Indiana) was 2.0 ips.
19.
DNR Exhibit B contains two of the standard blasting studies as by the U.S.
Bureau of Mines. Among other things, they show there is a small but measurable
possibility of damage occurring at certain frequencies in blasts with ppv under 1.0 ips.
20.
The former ppv limit of 2.0 ips
was chosen to prevent significant damage from occurring.
21.
The current limits were chosen to limit any damage being caused by a blast.
22.
The blast in question produced a ppv very close to
the former limit. It was almost twice the allowable limit for a station 2,700
feet from the blast. It was significantly over the 1.25 ips
allowed for properties 300 feet from the blast.
23.
Peabody's argument would be much stronger had the ppv
been closer to the 1.25 ips maximum allowable ppv.
24.
In light of the fact that the ppv was under 2.0 ips but close to 2.0 ips and almost twice the allowable limit, the DNR's
assessment of "seriousness" points at nine, the highest allowed for
"unlikely damage", was reasonable and rational and based on the
evidence.
25. The
blast in question was a "cast shot" meaning that the purpose was to
cast the overburden into the pit.
26.
Peabody investigated the abnormal ppv and could not
determine the exact problem.[FOOTNOTE 2]
27.
Peabody conceded that the design of the blast was improperly prepared in that
the overlapping delays meant that the total pounds per 8 millisecond (ms) delay
detonated were 2,800 lbs. and not 2,500 lbs.
28.
Exhibit C shows that the shot in question was designed with absolutely no room
for error. In addition to mistakenly allowing an overlap between the 2,500 lb.
charge and the 300 lb. charge, there are numerous instances of 2,500 lb.
charges being set off with 9 ms delays.
29.
Any human error or malfunction of equipment could then cause a charge of 5,000
lb (or even 5,300 lb) to be set off within 8 ms.
(Exhibit C)
30.
310 IAC 12-5-36 discusses the maximum amount of explosive to be set per 8 ms
delay.
31.
The scaled-distance equation is referred to in 310 IAC 12-5-36 and receives
widespread use in the industry.
32. This
equation reads as follows: W = (D/Ds), where W is the maximum weight of
explosives, in pounds that can be detonated in any 8 ms period, D is the
distance in feet from the blast to the nearest monitoring point, and Ds is the
scaled distance factor which is approved by the DNR. Ds is
50 for distances under 300 feet and 55 for distances between 301 and 5,000
feet.
33.
Applying this equation to the situation in this case, W = (2700/55)**2 = approximately 2400 lb. In theory, a charge of 2400 lb
per 8 ms would keep the ppv under 1.0 ips.
34.
Similarly, a charge of approximately 2,900 lb would keep the ppv under 1.25 ips.
35.
Cast blasting should not exceed the above limits because considerable energy is
used in "casting".
36.
Peabody's witness persuasively testified that a scale distance formula of 40
can be used safely when performing a correctly designed cast blast.
37.
The conclusion is thus drawn that the blast in question was improperly
designed, loaded, or ignited.[FOOTNOTE 3 & 4]
38.
The scaled distance equation is a way of relating ppv,
distance from blast, and amount of the charge per 8 ms delay.
39.
The scaled distance equation relies to some degree on site specific
information.
40.
The possible failure to conform to regulatory standards was not unforeseen in
this design, particularly since 2,500 lb charges were being detonated with
designed 9 ms delays. Due care could have avoided the problem.
41.
In light of the failure of Peabody to notice and log a relatively small overlap
of charges per 8 ms delay, the conclusion is drawn that the Peabody personnel
involved in this blast were careless to a degree approaching indifference.
42.
Accordingly, the assessment of penalty points at the high end of simple
negligence is more than justified and if anything, twelve penalty points errs
in favor of the permittee.
43.
The total of 33 penalty points and resulting imposition of a $1,300 fine
pursuant to 310 IAC 12-6-12.5 should be affirmed.
FOOTNOTES
1.
The one point reduction referred to in paragraph 10 occurred in this category.
The original assessment was 10 points which is the lowest allowed for
"harm likely to occur".
2.
Other shots during the same period of time caused no problems and were not
[VOLUME 5, PAGE 207]
in violation.
3.
Using the methodology found in Chapter 11 of the Mining Engineering Handbook
(Cummins and Given, 1973), a charge of 5,300 lb could produce a ppv between 1.9 and 2.0 at 2,700 ft.
4. it should be noted that for other blasts performed around
the same time (Exhibit A), the minimum delay is 17 ms, and on the day after the
violation, a similarly weighted charge with a minimum 42 ms delay produced a ppv of 0.55.