STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1704

)

E. R. JAHNA INDUSTRIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Inverness, Florida, on September 24-25, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Daniel Y. Sumner, Esquire

Department of Insurance 428-A Larson Building

Tallahassee, Florida 32201

For Respondent: Jack P. Brandon, Esquire

Post Office Box 1079

Lake Wales, Florida 33853 and

Don Bradshaw, Esquire

204 West Main Street Inverness Florida 32650

ISSUE

Whether Respondent's explosives license should be revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 4A, Florida Administrative Code, as set forth in Administrative Complaint, dated June 9.1981, as amended.

This proceeding arises under an Administrative Complaint filed by the State Fire Marshal, Department of Insurance, against Respondent, F. R. Jahna Industries, Inc., alleging that on or about February 26, 1981, Respondent violated Rules 4A-2.19(6) and (8), Florida Administrative Code, by detonating explosives in such a manner that rocks, dust and blast debris encroached on Highway 491 and residences in Beverly Hills, Florida. Violation of the aforesaid rules is predicated upon the allegation that the blast was done in a

congested area, in close proximity to structures and highways, without using a mat to prevent fragments from being thrown, and by failing to block off adjacent roads. The State Fire Marshal seeks to revoke Respondent's explosives license issued under Chapter 552, Florida Statutes, or to impose any appropriate lesser penalties.

Respondent filed a petition requesting a Section 120.57 (1), F.S., hearing and the petition was referred to this Division for the appointment of a Hearing Officer.

At the hearing, Petitioner presented the testimony of seventeen witnesses, including deposition testimony of two witnesses. Respondent called seven witnesses and submitted ten exhibits in evidence.

Proposed recommended orders filed by the parties have been fully considered, and those portions thereof which have not been adopted herein are considered either to be unnecessary, irrelevant or unsupported in fact or law.

FINDINGS OF FACT

1. Respondent E.R. Jahna Industries, Inc. is licensed by Petitioner Department of Insurance under Explosives License No. 0463570178-00, for the operations of its limerock mine located on Highway 491 four miles north of Lecanto, Florida. Respondent was so licensed at all times relevant to this proceeding. (Petitioner's Exhibit 1, Pleadings)

   
   

2. Respondent's Lecanto mine or quarry is comprised of approximately 100 acres where blasting operations are conducted for the purpose of producing limestone aggregate in various sizes for use in asphalt, concrete block, and ready-mix concrete. Blasting takes place along the "face" of the quarry and each "shot" is designed to dislodge and move a predictable amount of limestone. The Respondent routinely follows standard industry "state of the art" procedures in conducting its blasting operations under the supervision of state licensed "blasters" employed by the firm. The customary procedure employed is to decide on the desired location of a blast, strip the soil from the top of the rock deposit, and lay out the shot pattern on the ground with red marking paint to designate the holes into which the explosives will be placed. A. specified number of holes are drilled to a predetermined depth, after which the explosive material and detonating devices are inserted into the holes, leaving enough room at the top for "stemming" material which consists of the drill cuttings which are tamped by a wooden rod. Stemming is designed to hold pressure in the hole for a long enough period to achieve maximum blasting force for movement of rock. Too little stemming can cause "fly-rock," which are uncontrolled pieces, to fly out of the top of the hole in a ballistic trajectory at great speed. Such an occurrence would almost always be due to the negligence of blasting personnel in failing to insert sufficient stemming material for the particular blast. In quarry blast operations, it is customary to use a plastic "sleeve" in the drilled hole into which the explosive material is poured. A sleeve is used in order that the powder will not concentrate in a fissure or other void and thus cause a "blowout" of the explosion through the face of the quarry. (Testimony of Day, Froedge, Respondent's Exhibit 10, supplemented by Respondent's Exhibit

   8-9)

   
   

3. Respondent's rock mine is directly across Highway 491 from the Beverly Hills residential development. A forested buffer area lies between the housing development and Highway 491. (Testimony of Hubbard, Connor, Respondent's Exhibits 1-4 a-c)

4. On February 26, 1981, at 4:50 P.M., Respondent's personnel conducted a blasting operation at the mine. The location of the blast was 1065.32 feet in a straight line direction west of Highway 491, and 1660.21 feet from Washington Street in Beverly Hills. The shot pattern consisted of 22 holes 30 feet deep placed 14 feet apart in three rows. There was a 12 foot separation between each row. Two hundred and fifty pounds of explosive material consisting of nitrocarbonitrate was poured into a plastic sleeve inserted into each hole. Nitrocarbonitrate is ammonium nitrate fertilizer with 6 percent diesel fuel. Total explosive material for the shot was 250 pounds per hole for a total of 5500 pounds. Two primers per hole were used for a total of 44 pounds. The holes were tamped with eight feet of stemming material each. Preparation for the shot and the loading of the explosive materials was supervised by Respondent's general manager, Aggregates Division, who is a licensed blaster, and by the mine superintendent, Willard Thompson. The head foreman was Billy McCranie, a licensed blaster who supervised the drilling and loading of the holes, and personally wired and stemmed the shot. A tape measure with a weight was used to insure that each hole contained eight feet of stemming. The manner in which the shot was prepared and detonated followed customary practice and was appropriate under the prevailing conditions for the amount of rock intended to be moved from the face of the mine. Although in prior mining operations, blasts had been conducted some 750 feet closer to Highway 941 than the shot on February 26th, there had never been an incident where fly-rock or other material had reached the highway. At the time the February 26th shot was laid out, there was a prevailing northwest wind of approximately 15 to 20 miles per hour which was gusty, but would not normally have impacted significantly on the blast. The wind did increase considerably at the time of the blast, but the superintendent did not consider it sufficient to warrant postponing the shot with the requisite notification to the State Fire Marshal. It is hazardous to leave explosives in the ground overnight unless it cannot be avoided. However, wind does not blow rock particles larger than a "BB" in size for any distance. Larger particles or rocks would simply be blown up and come down in the same locale, regardless of the strength of the wind, unless on a ballistic trajectory due to negligence in stemming of the shot. In such cases, rocks would travel at great speed and ultimately be imbedded in the earth. (Testimony of Day, McCranie, Thompson, Froedge, Respondent's Exhibits 5-6)

   
   

5. At the time of the blast, general manager Day was located approximately 800 feet away from the site of the shot, foreman McCranie was approximately 400 feet away underneath a loader, and Thompson was at the front entrance of the mine. All three individuals observed that the rock was displaced in a normal manner as a result of the explosion and that no rocks reached their positions. They saw a large dust cloud drift across the area toward Highway 491 which was somewhat farther than normal due to the prevailing wind. At no time, did any of them believe that unusual precautions were necessary such as blocking off the highway. They did not consider the use of a blasting mat to cover the explosion. Such a mat, which is usually constructed of steel cable or chain, is not feasible for use in industrial mining operations due to the great size and weight required, and because an explosion would simply disintegrate the steel material and create a hazardous condition. Blasting mats are primarily used for small shots in heavily congested urban areas. Experts in the field of blasting are of the opinion that blasting mats are totally inappropriate for use in mine blasting operations. They further are of the opinion that the conditions of the

   shot on February 26th did not warrant any unusual precautions such as road closing, due to the location and type of blast, plus the fact that it could not be reasonably anticipated that any material would be thrown by the explosion more than three to four hundred feet from the blast site location. (Testimony of Day, McCranie, Muldrow, Thompson, Younginer, Froedge)

   
   

6. The impact of the blast on various residents of Beverly Hills was varied, but there was general agreement among those who testified at the hearing that they heard a loud blast which shook the ground and was followed by a large grey or black cloud which drifted across Highway 491 into the Beverly Hills development at a height of several hundred feet. The cloud contained dust particles of salt size which peppered a number of the residents who were standing in their yards. One individual, Sidney Holt, who lives on the second street of the housing area from Highway 491, observed several pebbles fall in his yard which looked like sandstones, including one as big as a "pullet egg" which imbedded itself about a half inch in the sandy soil. Another resident, H.

   R. Hubbard, who lives on Washington Street, which is the first street of the development, was in his yard at the time and heard stones falling close by. Although he did not personally see any rocks fall, he later found three large stones bearing greyish marks lying on the surface of an open ground area behind his house toward Highway 491. The largest of these stones was approximately the size of a grapefruit and the other two were somewhat smaller. Although Hubbard testified that he had raked that area the day before and the rocks had not then been present, expert opinion testimony of blasting experts rules out the probability that the rocks were thrown or otherwise resulted from the February 26th blast, due to the distance involved and the fact that ammonium nitrate would leave a white rather than gray powder burn. Insufficient evidence was presented to warrant a finding that the rocks found on ground as described by Hubbard resulted from the explosion. (Testimony of Froedge, Connor, Hubbard, J. Baffuto, Holt, Rospierski, Neison, Muldrow, Pease, Petitioner's Exhibits 4-5)

   
   

7. Other manifestations of the explosion experienced by Beverly Hills residents included chandeliers shaking and one falling from its mounting in a home three-quarters of a mile east of Highway 491. Another home owner approximately one-half mile east of the highway observed his awning windows open and close slightly from the blast. An individual who resides some one and

   three-quarter miles west of Respondent's mine saw his sliding glass patio doors "whip" or vibrate against the door frame several times. One Beverly Hills resident who lived two blocks east of the highway noticed that a pot on her stove vibrated onto the adjacent kitchen counter. Occupants of two motor vehicles traveling near the mine entrance at the time of the blast felt a strong concussion and observed the large dust cloud cross the highway into Beverly Hills. They also saw rocks the size of a fist and as large as a grapefruit in the air. One individual, Robert H. Martin, heard a rock hit his car and he also observed rocks falling on the highway. He slowed down and stopped at the time due to poor visibility caused by the dust cloud. He later found that there was a dent in his right front fender. The other automobile driven by Andrew Pustay was near the entrance of the mine at the time of the explosion. He continued driving although the blast caused him almost to lose control of his car and the dust obscured his visibility to approximately twenty or twenty five feet. He later observed a number of marks or dents on the hood, fenders and doors of his car -- several about the size of a dime --- where the paint had been removed and which had not been present prior to the explosion. The blast effect on residents would have been similar to lightning striking the ground. (Testimony of Jay Baffuto, DeMarta, Tripp, C. Baffuto, Martin, Schuster, A. Pustay (Deposition, Petitioner's Exhibit 3), M. Pustay Petitioner's Exhibit 2)), Froedge)

8. Respondent has maintained a seismograph near the mine site for the past several years to measure ground vibrations and over-pressure from blasting operations. The seismograph was operating on February 26, 1981 at the time of Respondent's blast and failed to register any vibration. Such a failure is indicative of the fact that vibration as a result of the blast was minimal and not sufficient to cause damage in the surrounding area of Beverly Hills. (Testimony of Straw, Respondent's Exhibit 7)

   
   

9. James R. Vereen, Petitioner's Chief, Bureau of Explosives, expressed the agency policy as to the use of blasting mats to be that the use of mats should be considered by the explosives user any time there is a possibility of fly-rock and consequent property damage or personal injury. However, he has never seen a blasting mat used in a quarry operation. (Testimony of Vereen)

   
   

   CONCLUSIONS OF LAW

10. Petitioner's rules allegedly violated by Respondent read as follows: 4A-2.19 Use; general

(6) When blasting is done in congested areas or in close proximity to a structure, railway, or highway or any other installation that

may be damaged, the blast shall be covered before firing with a mat so constructed that it is capable of preventing fragments from being thrown. When such blasting is being carried out near a highway, the operator may, in lieu of using a mat, and with the permis sion of local authorities, block the roads adjacent to the firing area while such firing is in progress.

(8) Persons authorized to prepare explosive charges or conduct blasting operations shall use every reasonable precaution, including but not limited to warning signals, flags, barricades, or woven wire mats to insure the safety of the general public and workmen.

11.. Sections 552.161 and 171, Florida Statutes, provide for the imposition of administrative fines, or suspension or revocation of licenses, by Petitioner for violation of any rules adopted pursuant to Chapter 552, Florida Statutes.

1. The evidence adduced at the hearing establishes that the blasting operation conducted by Respondent on February 26, 1981, was accomplished in conformity with the firm's prior practice and procedures with respect to the manner and extent of placement and firing of the explosive material. Under ordinary circumstances, it could not reasonably have been anticipated that the resulting extensive dust cloud containing sand-like particles and small pieces of exploded rock would have reached Highway 491 and beyond into the Beverly Hills residential development. However, the evidence shows that there was a gusty wind in excess of twenty miles per hour blowing in the direction of the Beverly Hills community at the time of the explosion. The wind caused the dust cloud to travel at least one-half mile easterly across the residential area. The wind also increased the noise level of the explosion considerably to the extent, as opined by one of Respondent's blasting experts, that it would have

   seemed as if lightning had struck in the near vicinity. The dust cloud obscured the vision of drivers passing by on the highway and thereby created a hazardous situation. Although the evidence was insufficient to establish that fly-rock extended into Beverly Hills in any appreciable size or amount, it is apparent that smaller rocks did pelt several automobiles driving past the mine on the highway at the time of the explosion, causing minor damage. It is concluded that Respondent's supervising personnel failed to use reasonable care in either permitting the explosion to take place in view of the prevailing weather conditions, or to take appropriate measures to warn drivers on the highway of the impending explosion. Respondent's mine superintendent acknowledged that the wind had increased considerably after the explosives had been placed and before firing, but maintained that a shot would not normally be postponed unless there was an emergency, in which case, the State Fire Marshal would be notified.

   Petitioner's rules are silent in this regard.

   
   

2. Although Petitioner's rules do not require that blasting operations be terminated or suspended due to unfavorable wind conditions, it is considered that such action would constitute a "reasonable precaution" to take in such a situation due to the extra hazardous nature of blasting operations and the relative unpredictability of their consequences. It is recognized that the decision to suspend a particular shot calls for the application of good judgment, and that other safety factors are involved in leaving the explosive material in the ground for any great length of time. However, if the latter consideration militated against postponement, the least that can be expected when blasting operations are being conducted relatively close to a highway and human habitation would have been to block the highway or to have stationed personnel with warning signals or flags to ensure the safety of the general public. Accordingly, it is concluded that Respondent did not exercise reasonable precautions under the circumstances and therefore violated Petitioner's Rule 4A-2.19(8), Florida Administrative Code. In this regard, however, it would seem appropriate that Petitioner should consider the promulgation of an additional rule dealing with the subject of wind factors during blasting operations.

   
   

3. The evidence does not establish a violation of Rule 4A-2.16), F.A.C., which requires the use of a "blasting mat" when blasting is done in congested areas or in close proximity to a highway that may be damaged. Although the rule appears to allow for no exceptions in the use of a covering mat, the evidence was overwhelming that such a protective device is never used nor is it considered feasible in cases involving quarry blast operations. It is therefore considered that a reasonable interpretation of the rule is that the use of mats was contemplated only for situations in which small shots are to be fired, particularly in urban areas where there is great danger of personal injury. In this regard, it is again believed that clarifying the rule to limit its scope should be considered by the agency. A further reason for its non-application in this particular situation is that the site of the blast is not considered to have been in a "congested" area or in "close proximity" to a highway or any other structure that might be damaged. The blast took place over a thousand feet from the highway and almost 1700 feet from the inhabitated area of Beverly Hills. These distances cannot be considered as proximate or very near the highway, or in an area where people were concentrated around the blasting site.

   
   

4. In view of the fact that only simple negligence was involved in the above mentioned rule violation, it is not considered that suspension or revocation of Respondent's user license is warranted. Contrary to Petitioner's assertion, license suspension or revocation is not mandatory for an established rule violation under Chapter 552, F.S. The provisions of Section 552.171, F.S.,

are considered to be merely directory, in light of the alternative measures specified in Section 552.161(1). An administrative fine of $500 is considered sufficient due to the fact that a minimal amount of property damage and no personal injury was involved in the incident.

RECOMMENDATION

That Petitioner impose an administrative fine of $500 against Respondent,

E. R. Jahna, Inc., pursuant to Section 552.161(1), Florida Statutes, for violation of Rule 4A-2.19 (8), Florida Administrative Code.

DONE and ENTERED this 9th day of November, 1981, in Tallahassee,

Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1981.

COPIES FURNISHED:

Daniel Y. Sumner, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32201

Jack P. Brandon, Esquire Post Office Box 1079

Lake Wales, Florida 33853

Don Bradshaw, Esquire

204 West Main Street Inverness, Florida 32650

Honorable Bill Gunter Treasurer and Insurance

Commission and State Fire Marshal State of Florida The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001704

Orders for Case No: 81-001704