FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

875 GREENTREE ROAD

7 PARKWAY CENTER, SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412)920-7240

FAX:(412)928-8689

January 5, 2011

DECISION

Appearances:              Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7^th Street, Suite 3-700, San Francisco, CA , for the Secretary of Labor

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18^th Street, Suite 2150, Denver, CO, for Respondent

STATEMENT OF THE CASE 

            This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This matter concerns an alleged violation of the mandatory safety standard 30 C.F.R. § 57.8528. Order No. 6482848 was served on Newmont USA Limited (“Respondent” or “Newmont”) on January 26, 2010. The alleged violation was found to be significant and substantial in nature, as well as an unwarrantable failure to comply with a mandatory safety standard. A hearing was held in Reno, Nevada on September 26, 2011, and the parties participated fully therein. They later submitted post-hearing briefs.

STIPULATIONS AT HEARING

            Prior to hearing, the parties stipulated to the following:

            1.        Newmont is engaged in mining operations in the United States and its mining operations affect interstate commerce.

            2.        Newmont is the owner/operator of the Midas Mine, MSHA ID No. 26-02314.

            3.        Newmont is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 USC § 801 et seq.

            4.        The Administrative Law Judge has jurisdiction in this matter.

            5.        Order No. 6482848 was properly served by a duly authorized representative of the Secretary upon an agent of Newmont on the dates and places therein, and may be admitted into evidence for the purpose of establishing its issuance.

            6.         The exhibits to be offered by Newmont and the Secretary are stipulated to be authentic with the exceptions of Respondent’s exhibits 6, 9, 10, 14, 16 and 17.

            7.         The operator demonstrated good faith in abating the violation cited in Order No. 6482848.

            8.         The assessed penalty, if affirmed, will not impair Newmont’s ability to remain in business.

            9.         Shon Guardipee, a former Mine Health and Safety inspector, wrote Order No. 6482848, which is the subject of this case. Mr. Guardipee lives in Idaho. The parties have agreed to present Mr. Guardipee’s evidentiary deposition testimony in its entirety at the hearing, subject to objections made at the deposition.

            10.       Midas Mine is an underground gold mine operated by Newmont in Northern Nevada.

            11.       The alleged violation occurred at the North and South headings at the 5301 level of Spiral 1 at Midas Mine, which Midas refers to as 1-5301N and 1-5301S.

            12.       At the time of the MSHA inspection on January 26, 2010:

                        a.         The ventilation bag that directs air into the 1-5301 South heading at Midas Mine was tied off.

                        b.         Signs stating “Danger Heading Inspection Required” were posted at the 1-5301 North and 1-5301 South headings.

                        c.         Rope barriers were hanging across the 1-5301 North and 1-5301 South headings.

SUMMARY OF THE TESTIMONY

            Shon Guardipee (“Guardipee”) is a former inspector who worked for MSHA in its Elko, Nevada field office from December 2008 until April 2010. Depo Tr. 14, 18, 24. Prior to working for MSHA, he had four to five years of experience and was involved in the mine rescue competitions. Depo Tr. 12, 13. After leaving MSHA, Guardipee went back to mining with a contractor at the Buckhorn Mine out of Republic Washington. Depo Tr. 18. He left MSHA because he was not particularly fond of the way business was conducted, and he was informed that his citation count was too low, and he would be fired if he did not increase it. Depo Tr. 92.

            Guardipee began his regular inspection of the Midas Mine on January 26, 2010 at the top of Spiral 1 with an employee of Respondent named Ivan Castelanos and Jamie Wolicki, Miner Representative. Depo Tr. 29, 41. As he approached the 5301 heading, which was the access off of the main haulage, he checked the area for loose ground and observed that the sill fan at the 5301 level was off. Depo Tr. 35. This observation was based on the fact that the fans are very loud and there was a distinct lack of noise , as well as the fact that the ventilation bags were not pressurized. Depo Tr. 35, 36. As he moved in to inspect the 5301 South heading, he noticed that the ventilation bags were tied off, turned around and noticed that the others had not followed him into the headings. Depo Tr. 40,41. The fans remained off throughout the entire time of the inspection. Depo Tr. 42.

            When Guardipee questioned the others in the inspection party, they informed him that the headings had been inactive for a week and a half. Depo Tr. 42; Ex. A, pg 6 . In his recollection, the ventilation bags were tied off fairly close to the entrance of the heading. Depo Tr. 42. There were signs hanging by a rope or chain at the headings stating, “Danger, Heading Inspection Required.” Depo Tr. 46, 51, 52; Ex. A, pg 6.

            On January 26, 2010, from the information observed during his inspection, Guardipee wrote Order No. 6482848, citing a violation of 30 C.F.R. § 57.8528 , stating:

At the 1-5301 North and South headings the ventilation fan was off. The headings have been inactive for a week and a half. The headings were not barricaded or signed stating the nature of the hazard. The area is readily accessible. If a miner were to enter the heading fatal injuries could occur from lack of oxygen or high concentration of toxic gasses. Management engaged in aggravated conduct constituting more than ordinary negligence in that they were aware of the heading being inactive and did not take the appropriate actions to prevent inadvertent entry by miners. This violation is an unwarrantable failure to comply with a mandatory standard. Depo Tr. 55; Ex. 1.

            Guardipee designated the Order as reasonably likely to result in a fatal injury. Ex. F, pg 1. He based this decision on the fact that the ventilation was off and, if the atmosphere was either toxic or lacking in oxygen, a miner entering the heading could sustain a fatal injury. Ex. F., pg 1 Finally, he designated the Order as high negligence on the part of the operator because Respondent had previously been cited and talked to about this behavior during inspections and the shifter, who was an agent of Respondent, was aware that the heading was inactive and unventilated and did nothing to correct it. Depo Tr. 85, 86; Tr. 58; Ex. F, pg 1; Ex. GGG. This Order was terminated when Respondent barricaded the headings with a chain link fence bolted to the ribs and put up a sign that read “Danger, Inactive Heading” and underneath, Respondent included the words “inactive heading.” Depo Tr. 59; Ex. F, pg 3.

            Guardipee explained that it appeared that the air in Respondent’s Midas Mine comes up from the bottom of the ramp, all the way to the top of the spiral and then moves into the main haulage. Depo Tr. 67, 68. During his inspection, Guardipee took gas readings at the 5351 North heading and did not find any noxious gas or lack of oxygen. Depo Tr. 69. However, he explained that the failure to have a chain link fence barricade to prevent access to an unventilated heading could result in miners accessing bad air. Depo Tr. 70, 71. He also acknowledged that it is common practice for a ventilation bag to be tied off to provide more air to the working face, but, in his experience, barricades in other mines were typically snow fences and rib-to-rib signage that expresses that there is no ventilation or the ventilation has been withdrawn. Depo Tr. 74, 75.

            When asked about the ventilation of these particular headings, Guardipee could not specifically rule out that some natural ventilation would migrate to the headings. Depo Tr. 79, 80. He stated that the area cited was ninety degrees in two directions off of the spiral and referred to the area, instead, as a dead heading. Depo Tr. 79. However, he admitted that he was not an engineer qualified to determine how far the air coursing through the spiral would extend into those areas without any further ventilation. Depo Tr. 106.

            When questioned as to his confidence in his penalty designations, Guardipee stated that as a trainee he had been somewhat involved in a similar situation at the Barrick Meikle Mine where, he believed, the sign was hanging from a rope and did not meet the definition of “barricaded,” which would prevent the passage of persons, vehicles, or flying materials. Depo Tr. 83, 84. Here, one miner entered an unventilated area and lost consciousness. Depo Tr. 107. Another miner attempted to save him and either lost consciousness or became very disoriented. Depo Tr. 107, 108. It took a third man to turn on the ventilation fans to get the other two to safety. Depo Tr. 108.

            Kevin Hirsch (“Hirsch”) has been working for MSHA since 2002 and has been the Assistant District Manager for the Western District for the last two and a half years. Tr. 15,16. His job duties include reviewing citations, orders and reports, specifically when these involve unwarrantable failures, knowing and willful violations, and special assessments to insure that they are properly cited and issued. Tr. 19, 61.

            Hirsch testified that mines need to be ventilated to insure that oxygen remains at the appropriate levels above nineteen and a half percent. Tr. 27. Gases, such as carbon monoxide, dioxygen and sulfur dioxide, can occur naturally within a mine, but can also be produced through the usage of equipment or blasting. Tr. 27. To keep these gases at acceptable levels, mine operators must create and submit ventilation plans that must then be reviewed by MSHA prior to operation. Tr. 27,28, 116. Under cross-examination, Hirsch acknowledged the gas readings taken in the 1-5301 North and South headings indicated that there was no lack of oxygen or accumulation of gases. Tr. 63, 64, 65. He further stated that environmental methods of ventilation exist and, depending upon several factors, including whether the heading was near enough to the vent raise, air could have naturally been traveling to the heading. Tr. 66, 69, 70. He admitted that air would travel through the ventilation bags even if the auxiliary fan was off, but he had never, in his experience, seen a ventilation bag fully inflated without the fan running. Tr. 86. However, he also testified that he would not enter the heading without the auxiliary fan operating. Tr. 66.

            Hirsch further testified that he had read Guardipee’s notes and acknowledge that they indicated that the fan was off. Tr. 34. In his experience, he would not accept a sign stating “Danger, heading inspection required” as meeting the requirements of the regulation because a typical miner would walk in and inspect items that he could see. Tr. 34, 59. The problem is that the lack of oxygen or existence of bad gas is not something that can be seen, and it is not normal practice for Midas miners to use gas monitors in order to perform heading inspections. Tr. 34, 35, 59. He would want a sign that states “Unventilated area” to indicate that miners need gas monitors to determine whether there is adequate oxygen. Tr. 35. Under cross-examination, he did acknowledge that the Midas Mine does not naturally emit sulfur dioxide, dioxide, carbon monoxide or the lower explosive limits of any other gas. Tr. 114. However, he also testified that a violation of § 75.8528 can exist even when oxygen levels are adequate because the oxygen levels may not be adequate in the future. Tr. 119.

            After the accident described by Guardipee at the Meikle Mine, a meeting was held at the Fire Science Academy outside of Elko, NV in June 2009. Tr. 40. The purpose of the meeting was to discuss ground control, but the focus turned to barricades because of the two miners that had been overcome by lack of oxygen. Tr. 41, 117. Representatives for MSHA read the definition of “barricade” and discussed the minimum requirements to meet the regulation to all operator representatives that were present. Tr. 43,44. Tim Burns and Mark Ward both attended this meeting for Respondent. Tr. 41. After this meeting, Respondent was cited several times for violations of 30 C.F.R. § 57.8528. Tr. 48, 59, 60; See FN 6.

            Hirsch was also somewhat involved in the investigation of the incident at the Meikle Mine, although he was not present at the mine. Tr. 76. He acknowledged that there was some form of barricade in this mine and the miners went through it intentionally before being overcome by lack of oxygen. Tr. 76, 77. In his view, the barricade here would not have been adequate under the regulations because it did not extend from rib to rib. Tr. 77. The result of this accident is that although the miners had to go to the hospital, they did not end up missing any workdays due to the injuries they sustained. Tr. 80.

            Jack Stull (“Stull”) is a mine inspector in the Elko, Nevada field office with three years of experience. Tr. 126. Prior to his employment with MSHA, he worked at the Goldstrike Mine in northeast Nevada for approximately fourteen years. Tr. 126. He inspected the Midas Mine for the first time in October 2009 as part of a general inspection and was accompanied by Inspector Gerald Killion and Respondent’s Health and Safety Specialist, Sandy McFarland (“McFarland”). Tr. 128, 139.

            During the inspection on October 15, 2009, Stull observed and took pictures to verify that the ventilation bags had been disconnected and were hanging from the back. Tr. 131. Because the bags were not inflated, Stull concluded that the area was not ventilated. Tr. 143. Based on this observation, he issued a citation to Respondent under 30 C.F.R. § 57.8528. Tr. 131. During his testimony, Stull stated that, although there was a berm in place from rib to rib, the citation was issued because Respondent had no sign posted against entry. Tr. 135, 136. The gas reading at the entrance of the heading showed adequate levels of oxygen, but Stull would not traverse further into the heading because he “did not want to put himself in danger.” Tr. 135. Later, Respondent was issued a citation under the same code section because, although it had posted a sign against entry, it had only placed a chain across the heading, which Stull stated did not meet the definition of “barricade” as contemplated by the statute. Tr. 143, 144, 146. He then explained what MSHA would accept as a barricade. Tr. 146.

            When Stull issued Citation No. 6488539 on October 20, 2010, he observed that the ventilation bag was tied off and damaged, there was a sign stating “Danger, heading inspection required” and only a small piece of rope was used to barricade the heading. Tr. 148, 149. On cross examination, Stull recognized that he does not know the Midas Mine’s procedure for conducting a heading inspection. Tr. 170. Because Respondent was already on the D series , Stull decided then to speak directly to his supervisor, Jim Fitch (“Fitch”), as well as the Safety Specialist for the Western District, Rod Gust, to ensure that the information that he was giving to Respondent was correct. Tr. 151 - 153. They confirmed that Stull was correct and Fitch met Stull at the Midas Mine the next day to discuss the appropriate measures to be taken, given the definitions under 30 C.F.R. § 57.8528. Tr. 154, 155. Upon completing the inspection, Stull found one other violation of the standard. Tr. 159.

            On cross-examination, Stull acknowledged that, while snow fencing would impede a person attempting to enter a heading, it would not stop him if he intended to do so. Tr. 165. He testified that a rope would possibly impede a person as well. Tr. 165. In training, he was not given the definition of “unventilated;” rather, he was trained to look for the conditions that would lead to an area being unventilated - fans turned off, ventilation bags down or damaged, etc. Tr. 166. If the auxiliary fan was off and/or the ventilation bags were tied off, the area was unventilated in his opinion. Tr. 166.

            When asked about the ventilation plan in place at the Midas Mine, Stull stated that, although he was never involved in making such a plan, he had a reasonable understanding of it. Tr. 181, 182. He testified that Respondent uses a main fan that pulls air from the surface to the underground and boosters or auxiliary fans are used to move that air into the headings and laterals. Tr. 182. The reused air then goes out the ventilation or drift. Tr. 182. Although a smoke tube can be used to determine whether there is air circulation, Stull did not use this equipment during his inspection and, therefore, could not determine the quantity of air that was moving through the mine. Tr. 183, 184.

            Sid Tolbert (“Tolbert”) has been the Mine Supervisor at the Midas Mine for approximately three years and was the supervisor at the time that the Citation was issued in January 2010. Tr. 209. In his professional capacity, he is responsible for the health and safety of all personnel, including those underground, and was actually a miner at the Midas Mine prior to 2004, working in mine development. Tr. 210.

            Tolbert testified that the citation as issue here was written in a development area. Tr. 213. During the development process, miners drill holes in the area to be excavated with a rock drill, load the holes with explosives and blast the rock into a muck pile. Tr. 213, 214. The rock is then removed by a front end loader, ground supports consisting of friction bolts and wire are added and then miners finish mucking out the area. Tr. 214.

            Tolbert explained that a vent raise is used to bring fresh air into the active sill headings for the purposes of ventilation. Tr. 216. An auxiliary fan was also permanently located in the 1-5301 headings in the bulkhead, which is structure made out of concrete and wire mesh to seal off the area and make it airtight. Tr. 217. It is turned on by pushing a button in the electrical power box. Tr. 217. If the box malfunctions, the electricians are called down to fix it. Tr. 217, 218.

            As for the geology of the mine, Tolbert testified that there are three basic types of rock within the mine. Tr. 218. “Tuffs” are basically waste development that are formed by volcanic eruption when the ash shoots into the air, comes down and layers upon itself. Tr. 218. “Mafic flows” are basically lava flows that slow into cracks that run horizontally. Tr. 219. Finally, “intrusive flows” occur where the rock cracked open and allowed either lava or mineralized veins to form. Tr. 219. According to Tolbert, the mine does not have the rock strata to cause an oxygen deficiency and these geological formations do not emit sulphur dioxide, nitrogen dioxide, carbon monoxide or the lower explosive limit of any other gas. Tr. 219. However, he does acknowledge that manmade contaminants exist in the mine, such as carbon monoxide from the blasting and diesel engines as well as nitrogen dioxide from the blasting. Tr. 255.

            Tolbert further testified to the specifics of the ventilation system at the Midas Mine by stating that the mine uses both primary and auxiliary ventilation. Tr. 220, 221. The primary ventilation had two intakes at the time and the portal was for negative flow. Tr. 221. The deep raise vent consisted of two 350 horsepower fans sitting on the surface pushing approximately half a million cubic feet of air per minute (“CFM”) down into the bottom of the mine and dumping it out at the Five Haulage. Tr. 221, 222; Ex. B. As it is pushed down, the air is sucked up a second vent raise by the auxiliary fan and the main North Vent Raise fan, splitting the air that was originally pushed down. Tr. 223. Of this split air, approximately 100,000 CFMs comes up the Three Spiral and approximate 151,000 CFMs go up Four Spiral. Tr. 223; Ex B. This air is then dumped back into the Five Haulage, where it works its way up the Five Spiral, comes down the 5450 Haulage and is exhausted back into the atmosphere by the North Vent Raise. Tr. 223, 224; Ex. B. The South Vent Raise exhausts approximately 331,000 CFM and about 110,000 of this came from Spiral one at issue here, which is primarily ventilated through the portal ventilation. Tr. 225; Ex B.

            Tolbert testified that the secondary ventilation consisted of a 125 horsepower fan located at the bottom the ventilation raise. Tr. 226; Ex B. It is bulkheaded off and sealed so that it cannot recirculate as it pushes about 100,000 CFMs up the raise. Tr. 226. Several auxiliary fans draw the air out of the raise and direct into the development drifts in the sill headings through the use of ventilation bags. Tr. 226, 227. In his opinion, there would be ventilation whether the auxiliary fans were running or not because pressurization of the vent raise will push air into the openings. Tr. 226, 227, 236, 241. He, however, acknowledged that, when miners are working in the drifts, the auxiliary fans are typically on. Tr. 227. This is insured through the five-point heading inspection that is required before any work can commence in an area. Tr. 227; Ex 7. New miners to the Midas Mine are trained during a four-week class to understand what the lay of the mine, the five-point inspection, and what they are looking for during this inspection. Tr. 228.

            During the five-point inspection, Tolbert explained that a miner would start right off the spiral and would look at the intersection to check for loose ground, damaged wire, damaged ground support or other hazards. Tr. 229. As he got closer to the intersection of the sill headings, he would start looking at ventilation, checking the utilities, such as ventilation bags, and making sure that the fan is on and operable. Tr. 229-231. If the fan was off on arrival, he would start it before he proceeded any further than the starter box. Tr. 230. Once any hazards were corrected, he would remove the barricade and take down the sign. Tr. 230. Prior to October 2009, the Midas Mine had always used a rope that stretched from rib to rib and metal sign that stated, “Danger, heading inspection required.” Tr. 231. Miners were taught that this meant that a heading inspection was to be done before work commenced and any hazards or deficiencies were to be corrected. Tr. 231, 232. If any of these could not be corrected, the miners were to call their shift foreman for help. Tr. 232. There is no procedure at the Midas Mine for when headings must be tested for has levels. Tr. 257. Although it is not common, miners have been disciplines or fired for failing to perform adequate heading inspections. Tr. 233.

            After the inspections in 2009, Mark Ward (“Ward”), mine manager for the Midas Mine, sent out a memorandum stating that Tolbert needed to give direction to the supervisors as to how to barricade and what types of headings needed to be barricaded. Tr. 237, 238, 280. Tolbert admitted that after the inspection, he was not clear on what needed to be barricaded because it had not been an issue prior to this inspection. Tr. 238. However, after receiving the citations, he suggested to Respondent’s personnel that snow fence needed to be attached at all four corners, top and bottom. Tr. 252. Tolbert later developed a standard operating procedure, but it was not presented to the miners and, later, Tolbert testified that Respondent was actually complemented on its barricading procedures by another miner; although, Tolbert was not present to hear this complement. Tr. 239, 240, 248. During cross examination, Tolbert agreed that snow fencing and chain link fencing were used in some instances in the mine and that, at least for the snow fence, the installation is done through the use of a handheld drill and takes less than thirty minutes to finish. Tr. 249, 251.

            Under cross examination, Tolbert explained that a crew consisted of twenty-five to thirty men. Tr. 245. One foreman per crew carries an air quality monitor, but the miners on the crew do not carry them. Tr. 245. Further, the air quality monitors are kept on the surface. Tr. 245. So, should a miner get underground and realize that he needs a monitor, he must either walk back up to the surface or call to have someone bring it down to him. Tr. 245, 246. He also testified that, although miners are supposed to verify that air from the vent bag is sweeping the face, no smoke tubes or anemometers are used to ensure that this is the case. Tr. 255. He stated that although air would travel to a heading without the use of an auxiliary fan and with the ventilation bag tied off, the air would not sweep the face. Tr. 271. Enough air would migrate through the heading to dilute gases though. Tr. 273.

            While the members of any crew who work for the mine are required to take the four-week training session, Tolbert acknowledged that subcontractors do not have to take this training session. Tr. 247. He stated that he is further aware of instances in the last three years where miners have failed to complete heading inspections and maintain ventilation bags. Tr. 247.

            As previously stated, Mark Ward is the Mine Manager for Respondent’s Midas Mine and has held this position for a little over four years. Tr. 280. Prior to this, he was the mine manager at Respondent’s Carlin operations for about ten years. Tr. 281. In total, he has worked in the mining industry for over twenty-five years and graduated from South Dakota School of Mines and Technology where received his Bachelor of Science degree in Mining Engineering. Tr. 281, 282. However, except for three months in 1981, all of his experience prior to the Midas Mine had been in surface mines. Tr. 302. His primary duties at the Midas Mine are to maintain safe and cost effective production. Tr. 282.

            Ward is further involved in forecasting, which is the updating of the mining and development production plan and determining all the operating and capital costs associated with operations for the life of the mine. Tr. 282, 283. This is then used as a business model for the operator and leads to a sequence of development and production. Tr. 283. However, mining is a fairly dynamic environment, so things can change from quarter to quarter. Tr. 283. The map he creates is color-coded to signify periods of time when activity is going to take place. Tr. 283, 284; Ex 17.

            Ward testified that the process of developing an area is a very complicated process that takes a long time from drilling into development and ultimately into production based upon economics; and it requires several stages. Tr. 286. Initially, Respondent uses drill holes to drill a two-inch core through the vein to determine where it is located, its thickness and to obtain assay results on the gold and silver content. Tr. 287, 288. From these results, geologists build a geological wire frame model that shows in space based upon the surveys and intercept where the intercept is located. Tr. 288. The model is then turned over to the modelers, who apply geostatistical analysis, break the model down into twenty-five foot long by twenty-five foot wide blocks that are the thickness of the vein intercept and use the assay results to assign a metal value to the block. Tr. 288. Depending upon where the operator is at in the process, development could take several weeks or up to a year. Tr. 288.

            During the time of development, people are required to access the development heading, like heading 5301 at issue, in order to collect information, such as channel samples for metal analysis. Tr. 288, 289. This, in turn, can drastically effect the development plan as more knowledge of the value of the core is determined, such as in 5301 which was developed much different than what was conceptualized the year prior to its development. Tr. 303, 304. In his opinion, Ward would label this area as an active area that is not a working area because there may not be someone assigned to that area that day or for the week. Tr. 289. However, he explained that Respondent would be aware that someone needed to enter the area sometime before it had to be done. Tr. 289.

            Ward mirrored the testimony of Tolbert that a five-point safety inspection must be conducted prior to work being conducted in the area and that there are rigorous training requirements for new miners. Tr. 290. He further stated shifters visit working places once at shift at a minimum and they normally carry gas detection devices with them. Tr. 291. However, he further testified that this mines does not naturally produce gas so oxygen deficiency is not a problem in this mine and he relies on the mineralogy of the rock and history of the mine to make these statements. Tr. 291.

            Ward testified that he attended the meeting at the Fire Science Academy in Elko, NV in June 2009. Tr. 292. He recalled that a PowerPoint presentation was shown concerning the industry trends on injuries, but does not recall that any other topics were discussed at length. Tr. 292, 293. He further cannot recall ever having seen any policy guidance that is written with respect to the application of 30 C.F.R. § 57.8528 and, in his opinion, unventilated means that there is a lack of oxygen. Tr. 293. He does not agree that the fact that an auxiliary fan was off means that the area is unventilated because the fan can easily be turned on and, in any event, air migrates into the headings even when the fan is not turned on. Tr. 293, 294. In the event that a gas producing event is occurring, such as blasting, the area is barricaded for a minimum of thirty minutes and the area is blocked by mine employees so that no one can enter. Tr. 294.

            Ward recognized that rope barricades and signage stating “Danger, heading inspection required” was not in compliance around October 2009, when the mine was issued a number of citations. Tr. 294, 295. In response to this, Ward drafted a policy document relating to active versus short term inactive versus long term inactive headings to give the miners some guidance in what type of barricade and signage would be required in different situation to avoid future citations. Tr. 295, 296. Chain link fence was to be used to barricade long term inactive headings, snow fence was to be used on short term active headings and rope barriers were to be used on active headings, which included headings that were scheduled for production or development in the following four weeks where the ventilation bags had been tied off. Tr. 306-308. To this end, he stated that it is not practical to install snow fencing every time a heading is unproductive for a period of time because it could be inactive for a very short period of time, such as a week, and there is some flexibility in the mining plan. Tr. 297.

            Ward testified that all of the previous citations issued to Respondent under the code section at issue here had been settled. Tr. 312. These citations had ranged in penalty from $128.00 to $285.00. Tr. 313. The assessed penalty for Citation No. 6482848 is $35,000.00. Tr. 313. Ward stated that it was an economic decision to contest this citation. Tr. 313.

            Ivan Castellanos (“Castellanos”) is General Foreman at Respondent’s Midas Mine and has been with Respondent for thirteen years. Tr. 316. Prior to this, he worked at Turquoise Ridge and the Miekle Mine belonging to Barrick Goldstrike. Tr. 316. Before his position as General Foreman, Castellanos was a lead man or active shifter. Tr. 316. His responsibilities include enforcing all policies in order to ensure that everyone gets home safely at the end of the day. Tr. 316.

            Castellanos was present during the inspection on January 26, 2010. Tr. 319. He testified that when he arrived at the 5301 elevation, the auxiliary fan was turned on, but he turned it off when he got to the crosscut because the inspector asked him what level they were on and he had to turn it off in order to talk to him. Tr. 319, 320. He stated that no one was working at the time of the inspection and he conducted the heading inspection that was required. Tr. 321. Both headings were roped of and posted with the exact same signage. Tr. 327. Castellanos testified that both he and Guardipee walked all the way to the face of the north heading and Guardipee’s gas meter did not alert them to any problems. Tr. 322. He further corroborated Guardipee’s testimony that he did not follow him into the south heading because there was a hazard and he held his men back. Tr. 322. He did not witness Guardipee taking any air quality samples and his gas meter did not alert them to any problems in the heading. Tr. 322, 323. Although he did not follow Guardipee into the south heading, he was not concerned that the air quality was bad in the heading. Tr. 328. He stated that he simply didn’t want to go against company policy. Tr. 328.

            In the course of his employment, Castellanos has only had his gas monitor go off when he was following a truck too closely and the carbon monoxide alarm went off. Tr. 325. He has never had it go off without the presence of running equipment, however. Tr. 325. In his position as foreman, he visits the crews during their work shifts at least once a day. Tr. 325, 326. If a fan happens to go down, he typically gets in touch with the electricians, tags the fan out and pulls the miners out of the heading until the fan is replaced. Tr. 326.

            The final witness, Lennon Van Kirk (“Van Kirk”) is an underground miner, tech five and lead man at the Midas Mine and has been with Respondent for approximately six years. Tr. 329. One of his responsibilities is to conduct five-point inspections prior to working in a heading. Tr. 329, 330. He testified that ground control and ventilation are the two most important parts of the inspection. Tr. 330. During the ventilation inspection, he inspects the condition of the vent tubing, fan controls and ventilation bags. Tr. 330.

            He testified that the auxiliary fan could be turned off for a number of reasons. Tr. 330. One reason would be during a blast, which create so much pressure coming out that it would blow the ventilation bag to the ground. Tr. 331. Another reason for turning the fan off is to talk on the phone. Tr. 331. The fans that are so loud that they must be turned off in order to have a conversation in the crosscut. Tr. 331. Finally, he stated that the fans would be turned off in order to repair or install ventilation bags. Tr. 331. He stated that it would not be practical to erect a barricade every time a fan was turned off because it would be very time-consuming and, in his opinion, is not necessary. Tr. 331.

            Van Kirk acknowledged that Respondent does use signs that say “unventilated area.” Tr. 331. He testified that these signs are typically used when the ventilation infrastructure, such as the control box or fan, has been removed and it is an inactive area, but this would not be used in a scenario where the fan is simply turned off. Tr. 331, 332. He confirmed that an auxiliary fan and ventilation bag would be located in every active heading, but stated that they would not always be present in heading that were short term inactive. Tr. 333. He testified that they may be absent for planning purposes or used in a different area of the mine if needed, but a snow fence would be erected with an “unventilated area” sign posted. Tr. 334.

LAW AND REGULATIONS

            30 C.F.R. § 57.8528 states, “Unventilated areas shall be sealed, or barricaded and posted against entry.”

            30 C.F.R. § 57.2 clarifies the meaning of “barricaded” as, “obstructed to prevent the passage of persons, vehicles or flying materials.”

            In interpreting the meaning of a statute, the Commission has recognized that “[w]hen the meaning of the language of a statute or regulation is plain, the statute or regulation must be interpreted according to its terms, the ordinary meaning of its words prevails and it cannot be expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 1989); Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle of statutory and regulatory interpretation that words that are not technical in nature “‘are to be given their usual, natural, plain, ordinary, and commonly understood meaning.”’ Western Fuels, 11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 U.S. 552, 560 (1932)). It is only when the plain meaning is doubtful that the issue of deference to the Secretary's interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (deference is considered “only when the plain meaning of the rule itself is doubtful or ambiguous”) (emphasis in original); Azno Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999).

            A violation is significant and substantial (“S&S”) “if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7^th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5^th Cir. 1998)(approving the Mathies criteria). The Commission has further found that “an inspector’s judgment is an important elements in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC at 825-826). An evaluation of the reasonable likelihood of injury should be made assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985)(quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

            In Emery Mining, the Commission determined that an unwarrantable failure is “aggravated conduct constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is characterized by such as conduct as “reckless disregad,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. At 2003-2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc., 52 F.3d at 136 (approving the Commission’s unwarrantable failure test).

            Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1998). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Consolidation Coal Co., 22 FMSHRC at 353.

ISSUES

            Did Respondent violate 30 C.F.R. § 57.8528 so as to justify the issuance of Order No. 6482484 pursuant to 30 U.S.C. § 104(d)(2) of the Act?

CONTENTIONS OF THE PARTIES

            The Secretary contends that Respondent’s mere use of a rope with a sign stating “Danger, heading inspection required” in an inactive heading is a violation of 30 C.F.R. § 57.8528. This is based on the Secretary’s belief that these actions neither meet the definition of “barricade” found in 30 C.F.R. § 57.2 nor meet the requirements of a sign posted against entry as contemplated by the regulation. She further argues that this violation is significant and substantial because it could cause fatal accidents if miners were to be overcome by a lack of oxygen, especially in light of the accident that occurred in the Miekle Mine in 2009. Finally, she asserts that Respondent’s actions constitute an unwarrantable failure to comply with a mandatory standard because it had been cited several times in the past, but refused to change its behavior to comply with the regulation.

            Respondent first argues that 30 C.F.R. § 57.8528 is inapplicable because the headings at issue were not “unventilated areas.” It asserts that this is a non-gassy mine and, further, no work activity was taking place to create toxic gases. It further argues that the geology of the mine allows for the natural migration of air due to the main shaft fan running, causing air to sweep the faces of the headings. Second, it contends that the auxiliary fans and vent bags were in place and all that had to be done was to untie the vent bags in the South heading and turn on the fan if work was to be done in the cited area. Third, it argues that the rope barricade was sufficient because even a snow or chain link fence could not stop a miner from entering the area if he or she wanted to enter. Finally, it argues that the Secretary’s interpretation of the standard is unworkable, less safe, confusing and arbitrary and that it is inconsistent with MSHA’s regulatory history and scheme as a whole.

DISCUSSION AND CONCLUSIONS

1. S&S Designation

            The undersigned concludes that this violation is S&S, but not an unwarrantable failure to comply with a mandatory safety standard. In first determining that the violation is S&S, the four criteria under Mathies must be examined. The first criterion of Mathies, a violation of a safety standard, is evident. 30 C.F.R. § 57.8528 explains that an unventilated area must be sealed or barricaded and posted against entry. Because the auxiliary fan was turned off and the ventilation bags were tied off, the undersigned concludes that the area was unventilated. Therefore, it should have been either sealed off or barricaded and posted against entry.

            The plain and unambiguous definition found in 30 C.F.R. § 57.2 states that a “barricade” must be sufficient to prevent vehicles, persons or flying materials. A single rope strung from rib-to-rib is incapable of preventing any of the items listed in the definition from entering the heading. Further, the sign made no mention that entry was prohibited or that the area was unventilated. Instead, it stated only that a heading inspection was required. Since any “experienced” miner can perform the heading inspection and air quality tests are not mandatory, this signage is not sufficient. Tr. 257. Under this analysis, the violation of a safety standard is clear.

            Under the second criterion, a discrete safety hazard must be contributed to by the violation. By employing this insufficient method of “barricade” and signage, the employer is contributing to the chance that a miner will underestimate the level of danger, access the area and be overcome by noxious air or a lack of oxygen.

            The third criterion under Mathies requires that the hazard contributed to must be reasonably like to result in injury. The undersigned finds that the following facts contribute to the hazard: the inferior barricade of the heading, the signage stating only that a heading inspection was required, the auxiliary fan in the “off” position and the ventilation bags tied up to redirect airflow to working areas of the mine. The undersigned finds that this confluence of factors contributed to the hazard of miner being overcome by noxious air or a lack of oxygen and is reasonably likely to result in an injury. Although there is agreement that there are legitimate reasons for the ventilation bags being tied off, the Act demands that these areas be barricaded and posted against entry to avoid the possibility of a miner walking, whether intentionally or unintentionally, into an unventilated heading.

            In meeting the fourth criterion of the occurring injury being of a reasonably serious nature, it is clear that if a miner was receiving insufficient level of oxygen to the brain, serious injuries would reasonably likely occur. Commission precedent regards the dangers of low levels of oxygen as “well-known” and obvious. See Kelly Creek Resources, Inc., 19 FMSHRC 457, 462 (Mar. 1997).

            In arguing that the injury is not reasonably likely to occur, Respondent states that 30 C.F.R. § 57.8528 has been misapplied to its Midas Mine because, first, the mine is non-gassy and, second, the areas are ventilated whether the auxiliary fan is on or not due to the natural migration of air through the mine. The undersigned does recognize that the fact that a mine is non-gassy is a mitigating factor in determining whether a serious injury is reasonably likely to occur. The mine itself may not emit gases; however, Respondent runs diesel and other equipment in the mine, which do emit combustible gases that can build up over time in unventilated areas.

            To illustrate its second argument, Respondent points to the gas readings taken by Guardipee during his inspection of the Midas Mine. Although Guardipee’s readings show sufficient oxygen and no measurable combustible gases, several facts and opinions weaken this argument. Depo. Tr. 69; Ex. A, pg 6. First, the Commission has acknowledged that the conditions in a mine can change unexpectedly. See Cumberland Coal Resources, LP, 28 FMSHRC 545, 553 (Aug. 2006) Second, Guardipee explained that air moving through the spiral would have to enter the heading and then move ninety degrees in either direction to fully ventilate the heading and this is combined with the testimony of Tolbert who acknowledged that without the fans on, air would not sweep the face as required. Depo. Tr. 79; Tr. 271. Finally, in the event of an auxiliary fan going down in the middle of the shift, Castellanos testified that it is company policy to contact the electricians and pull the miners out of the heading until the problem is fixed. Tr. 326. This procedure tends to be drastic for areas that are ventilated anyway. While Respondent’s action in pulling the miners is certainly applauded, it does tend to weaken any argument that the area is, in fact, ventilated, and Respondent has offered no explanation as to why it pulls its employees out if those areas remain ventilated. As a further note, although Tolbert suggested that sufficient air could be circulated through tied off ventilation bags, the undersigned finds this explanation to be beyond reason.

            Moreover, Guardipee’s entrance into the heading is an exact situation where more descriptive signage is necessary. Guardipee was unaware that the area was not ventilated and easily bypassed the rope to enter the heading. Although Respondent requires its employees to undergo a rigorous training course on heading inspections and company policy regarding these inspections, subcontractors do not receive this luxury and may be inclined to do the same thing that Guardipee did should there be some need to cross the rope. Tr. 247.

             Respondent also asserts that roping off the area is as sufficient as snow fencing or chain link fencing because none would stop somebody with the intent of crossing it from doing so. This argument falls flat and completely disregards the plain language and intent of the regulation. While it is true that any of these barricades would be unlikely to stop the miner absolutely determined to reach the other side of it, the simple rope is much less likely to stop anything from breaching it. Anything dropped could roll, bounce, etc., under or over it with little to no chance of it being stopped. A miner ducking under or stepping over the rope to retrieve the object would then be in a hazardous position. It is understood that company policy is not to enter the area, but it seems incomprehensible that Respondent could contend that no miner would violate this policy to quickly retrieve a lost item. Not only would a snow fence or chain link fence be more likely to stop the object, it would also give the miner pause before he heedlessly entered the unventilated area. For these reasons, the undersigned finds that a rope does not qualify as a “barricade” as contemplated by 30 C.F.R. § 57.2. In consideration of the foregoing, the undersigned finds that a violation of 30 C.F.R. § 57.8528 does exist and it was correctly designated as S&S.

            Respondent finally asserts that the Secretary’s definition of 30 C.F.R. § 57.8528 is unworkable, less safe, confusing and arbitrary. This is unpersuasive in that a very specific definition is given for the word “barricade.” Respondent cannot realistically argue that a single rope or chain is sufficient to stop people, vehicles or flying objects from entering the heading. It is further unclear how erecting a fence to prevent entrance is less safe than stringing a rope or chain and Respondent offers no explanation of this. Nor does it explain why is asserts that the Secretary’s plain language interpretation of the standard is arbitrary. In terms of the unworkable nature of erecting a fence, it has been recognized that some efficiency may have to be sacrificed in order to protect the safety of those working in the mine. See Plateau Resources Limited, 5 FMSHRC 605, 607 (1983)(ALJ). Moreover, a time intrusion of less than forty minutes does not seem like such a substantial burden as to outweigh the life or safety of a miner.

            The undersigned does recognize that there is no further definition of the phrase “posted against entry” found in the regulatory text and this could lead to some confusion, but the plain meaning of the words lead to the conclusion that the sign should indicate that a miner should not enter the area. Although Respondent’s full time employees are trained to understand what is meant by “Danger, Heading Inspection Required,” subcontractors and inspectors do not have the luxury of this training. This, it seems, would lead to more confusion than blatantly stating “Do Not Enter.” The undersigned finds that the Secretary’s interpretation of the plain language of the statute is reasonable.

2. Unwarrantable Failure

            In determining whether the unwarrantable failure designation, the undersigned must consider whether Respondent’s conduct was aggravated and consisting of more than ordinary negligence. Order No. 6482848 was the seventh violation of 30 C.F.R. § 57.8528 issued to Respondent since October 2009. Guardipee stated in his notes that he designated the Order as high negligence on the part of Respondent because, not only had the it been previously cited under the same regulation before, the accepted methods of barricading an unventilated heading had also previously been discussed with it. Depo. Tr. 85; Ex. F, pg. 1. As of the date of this hearing, Respondent had not changed its methods of barricading. Tr. 333.

            Respondent witness Tolbert testified that in light of the previous citations, it developed a policy for barricading in order to give the miners some guidance on the issue. Tr. 237, 238, 280. In its section entitled “active” headings, it defines an active heading as including those that are scheduled to be in production or development within four weeks. Ex. 17. To prevent entry, a rope with heading inspection sign attached to it are hung from the headings. Respondent testified that to actually barricade each of these headings would be inefficient, time-consuming and unnecessary. Tr. 334. However, witnesses for Respondent recognized that the erection of a barricade takes approximately thirty minutes and only a few minutes to take down. Tr. 249, 251. As noted above, efficiency cannot be weighed against the health and safety of a miner. See Plateau Resources Limited, 5 FMSHRC 605, 607 (1983)(ALJ). And, as the accident at the Meikle Mine illustrates, the barricading of unventilated headings is certainly not unnecessary.

            Respondent also argues that the auxiliary fans and vent bags were in place and all that had to be done was to untie the vent bags in the South heading and turn on the fan if work was to be done in the cited area, the undersigned finds this unpersuasive. While pushing a button to turn on the auxiliary fan is simple enough, a miner must then get equipment or a ladder in order to untie the ventilation bag. This amount of time spent in an unventilated heading could result in an injury to the miner. Because of this, this argument cannot be accepted.

            The undersigned is persuaded, however, by Respondent’s argument that it was not on notice of MSHA’s interpretation of the regulations. In it’s Post-Hearing Reply Brief, Respondent states that the Secretary argues that at the meeting in Elko, NV, Hirsch gave “operators specific guidance about what the Western District would accept as a barricade.” From this, it argues not that it did not understand what a barricade was, but, rather, when a barricade must be used. Based on its understanding of the guidance given, Respondent argues that it developed policies in order in an attempt to reduce the amount of citations issued under 30 C.F.R. § 57.8528. Although Respondent had been previously cited under the standard, the undersigned finds that Respondent possessed a good faith belief that its policy of roping off headings that were to be worked in the near future complied with the regulations. Although the undersigned stresses that Respondent is now on notice, he does not find its conduct to be so aggravated and of such negligence to justify the Secretary’s finding of an unwarrantable failure.

            As a final assessment, the undersigned finds the testimony of Castellanos claiming that the auxiliary fan was in the on position, but he turned it off in order to be able to talk to Guardipee to be incredible. Although Respondent argues in its Post-Hearing Brief that this fact was corroborated by Guardipee, there is no evidence of that. Guardipee testified that the auxiliary fan was off when they approached the heading. Further, and telling, Castellanos’ testimony was the first time that this issue was ever raised by Respondent. It seems beyond comprehension that Respondent would be cited for actions taken in an attempt to promote the efficiency of the inspection and not raise that issue until the second to last witness at hearing.

3. Penalty Assessment

            At hearing, Respondent witness Ward testified that all prior citations written under 30 C.F.R. § 57.8528 were assessed between $128.00 and $285.00. Tr. 313. However, the penalty assessment for Order No. 6482848 is $35,000.00. In determining the appropriateness of the penalty assessed for this Order, I am bound by to consider the operator’s history of violations, the size of the operator in comparison to the penalty amount, the operator’s negligence, the effect on the operator’s ability to continue in business, the gravity of the violation and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

            Respondent has received six other citations under 30 C.F.R. § 57.8528 since October 14, 2009. The seriousness of the injury that could result from miners entering an area of bad or insufficient oxygen is grave. However, in an attempt to reduce the number of citations issued under the standard, Respondent created company policies that it believed complied with the regulations. While the Secretary carried her burden in proving that the violation was significant and substantial, the undersigned found that she has not met her burden in proving an unwarrantable failure. Further, the undersigned finds that an increase in penalty from a previous maximum of $285.00 to $35,000.00 is excessive. In light of the finding that the Order is not an unwarrantable failure to comply with a mandatory safety standard, a more reasonable penalty is $5,000.

ORDER

            It is hereby ORDERED that Order No. 6482848 is MODIFIED from a 104(d)(2) order to a 104(a) citation. It is further ORDERED that Respondent PAY the Secretary of Labor the sum of $5,000.00 within 30 days of this Decision.

/s/ John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7^th Street, Suite 3-700, San Francisco, CA 94103

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202