FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N
WASHINGTON, DC
20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949
May 31, 2013
|
SECRETARY OF LABOR, |
: : : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. SE 2012-510-M A.C. No. 31-02167-000287638 C5A Mine: Pittsboro Plant |
DECISION
| Appearances: | Breyana A. Penn, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor; Tina M. Stanczewski, Esq., Law Office of Adele Abrams, P.C., Beltsville, Maryland, on behalf of Drilling and Blasting Systems, Inc. |
| Before: | Judge Rae |
This
case is before me on a Petition for Assessment of Penalty filed by the
Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §815(d).
The petition alleges two violations of the Secretary’s Safety and Health
Standards for Surface Metal and Nonmetal Mines, 30 C.F.R. § 56.7012, and
proposes civil penalties in the amount of $1,080.00. A hearing was held in Atlanta, Georgia on
March 26, 2013, and the parties filed post-hearing briefs following receipt of
the transcript. For the reasons set
forth below, I vacate the two citations and dismiss the proceedings.
BACKGROUND
Drilling
& Blasting Systems, Inc., (D&B) is a drilling contractor operating at
approximately 47 sites in North Carolina, South Carolina and Georgia. It
employs 39 people and has 22 drills in its fleet. Tr. 252-53. The company has been in business for over 42
years with Brent Taylor as its President since 1998. Tr. 252. The company works almost exclusively in
drilling blast holes for quarries such as the Pittsboro Plant. Tr. 253. Pittsboro is a crushed and broken granite
quarry owned by Lucky Stone Corporation located in North Carolina.
The
drill in question in the instant citations is an Ingersoll-Rand model DM30. It is a relatively large hydraulically
operated piece of equipment that trams on tracks similar to a bulldozer and is
approximately 12 feet in length. Tr. 112, Ex. S-4. The
drill steel (the “steel”) is contained in a mast structure in front of the cab
and is approximately 30 to 40 feet in height.
Tr. 209, Ex. S-4. Located at the rear of the drill is the
enclosed cab in which the control levers are located. Ex. R-17. Once the machine reaches the location in
which the hole will be drilled, the lever is set to raise the tracks off the
ground and lower the hydraulic jacks which support the drill. The feed and rotation speed controls are then
set. Tr. 168-69. The controls are not used again by the
operator until the rods need to be changed. Tr. 214. The drill is equipped with an emergency stop
control which shuts off the drill automatically in the event of an
emergency. There is also one on the
control panel in the cab. Tr. 210, Ex. R-17.
During a regular inspection conducted by Mine Safety and
Health Administration (MSHA) Inspector Cecil Worrell, Jr., D&B was cited
with two alleged violations of mandatory standard 30 C.F.R. § 56.7012. The first was on March 14, 2012 at 8:05 p.m.
and the second on March 15, 2012 at 8:10 a.m.
Exs.
S-1, S-3. The
facts surrounding both of the alleged violations are essentially identical for
the purposes of discussion here. On the
evening of the 14th as Inspector Worrell was approaching the drill,
he saw the drill operator at a distance of approximately 18 feet from the drill
walking towards it. Tr.
26, 28. The next morning as he
approached the drill, he saw the same operator inside the cab of a pickup truck
located approximately 20 feet from the drill.
Tr. 70.
In both instances the drill was in operation. The area in which he saw the operator was
within the blasting area. The mandatory
standard Worrell cited requires that “while in operation, drills shall be
attended at all times.” 30 C.F.R. §
56.7012 (2013).
Based upon his
observations, he issued these two citations.
Summary of
Testimony of Inspector Worrell
Worrell has been an inspector for MSHA for just over five
years. He has a mining history spanning
13 years in various positions including safety director and quality control
manager. He has no experience in
operating a drill. Tr. 14-16. On the evening of the 14th of
March, he issued a citation to D&B when he saw the drill operator located
approximately 18 feet from the drill. On
the morning of the 15th, he saw the same operator sitting in the cab
of a pickup truck located in the blasting area but approximately 20 feet from
the drill while it was in operation. In
his opinion, the operator had left the drill unattended when he was not at the
controls in the cab of the machine. Tr. 28. He knew of no program policy publications,
PIBs, statutory or other authority for his opinion that the operator had to
remain at the controls of the drill at all times. However, it was his opinion that the standard
(referring to 30 C.F.R. § 56.2 defining the term “attended,”) requires the
operator to remain within arm’s reach of the controls at all times.[1]
Tr. 29, 52. He stated that the definition of attended is
designed to prevent “unauthorized injury or accidents.” Tr. 89. He further referred to 30 C.F.R. § 56.7052
“Drilling Positions” which states that “persons shall not drill from positions
which hinder their access to the control levers” in support of his
position. He stated that in order to be
in compliance with this standard, the operator must shut down the drill if he
needs to exit the cab. Tr. 29-30, 52-53.
The hazard he cited in both violations,
although unlikely, was that “a miner may suffer fatal injuries in the event the
steel and/or bit becomes hung in a hole causing the steel to fragment under
pressure while the drill is in operation” and the drill is unattended. Ex. S-1, S-3. He testified that when there is a change in
strata, “the steel or bit could get hung [up] in the hole causing the steel to
fragment under pressure…something gives, it can explode.” Tr. 32. He saw the “aftermath” of such an occurrence
at Ararat[2]
which formed the basis of his assessment of these two citations. Tr. 32, 33, 50, 59, 60, 62, 88.
Worrell stated
that he was unaware of any reasons why a drill operator would need to be
positioned outside the cab of the drill while it was in operation. Tr. 30-31.
He was not able to question the drill operator about his actions due to
a language barrier and did not ask the foreman, Solin
Hernandez, for any explanation either.
Tr. 42-43.
Summary of Testimony of Solin Hernandez
Mr. Hernandez is the foreman for D&B. He has been a drill operator for eight years,
three of which has been for D&B. Tr.
100, 108. He testified that at the time
these citations were written, D&B was engaged in stripping, or taking off,
the aggregate to widen the quarry. Tr. 105-07. The area
in which they were drilling was soft dirt which poses a risk of destabilizing
the supporting jacks from the vibration caused by drilling. Tr. 110-11. The jacks must remain level to stabilize the
drill. Monitoring ground conditions
throughout the drilling process is an essential safety measure undertaken by
the drill operator to ensure the jacks do not sink or become otherwise
unstable. The composition of the ground,
the vibration of the drill and even the presence of rain can affect the ground
conditions rather rapidly. Tr. 110, 144-45. If
the ground were to give out, the drill and the operator, if he is inside the
cab, could go over the high wall with fatal results. Tr. 113. In addition to constantly monitoring ground
conditions for changes, the drill operator must repeatedly check the engine and
compressor for leaks and other
problems which cannot be done while located inside the cab. Tr. 106,144. The operator normally works alone and is
solely responsible for these functions. Tr. 130-31.
Hernandez testified that the drill operator, as a matter
of standard practice, would be located outside the cab anywhere within the
blasting zone. As long as the operator
stays within this zone, it would not be possible for an unauthorized person to
access the area. Tr.
118. This drilling zone, or area,
is where the holes are being drilled.
The pickup truck was located within this area and it was likely that the
operator was in the cab getting a drink of water or he could have been pumping
the water from the tank located on the truck to fill the water tank on the
drill. Tr. 117-18,
143, 152-54. Water must be
sprayed while the drill is operating to keep the dust down to prevent
inhalation of silica. Tr.
117.
According to Hernandez, if a bit or the drill gets hung
up underground, the drill will stop rotating automatically. If it were to explode somehow, the fragments
would be contained underground.
Additionally, there is a metal table that the drill passes through that
would contain any fragments and prevent them from becoming projectiles above
ground. In his years of drilling, he has
never seen a drill fragment. Tr. 118-121, 148.
Summary of
Testimony of Kirt Murray
Mr. Murray is a 16-year employee of D&B. He has held positions as a drill operator,
director of operations and safety manager.
Tr. 155-56. In this last position, he was responsible for
training the drillers and conducting toolbox safety talks. Tr. 156.
In his opinion, “attendance” as used in the standard
means the driller shall remain in the shot or blasting area. Tr. 160. The driller is responsible for looking for
changing ground conditions, oil leaks, hydraulic line leaks, compressor
problems and the like. In order to
properly monitor these conditions, the drill must be running so that the lines
are pressurized. Tr.
180-81. The drill operator walks
around the entire drill and would need to be 18 to 20 feet away from the drill
in order to gain a proper vantage point.
Part of D&B’s training includes instructing the driller to get out
of the cab to continually monitor the ground conditions to ensure stability is
maintained as the drill penetrates the solid rock. This is done for the safety of the driller
because if the ground breaks away beneath the drill, the drill can fall off the
wall and take the driller with it if he is located in the cab. Tr. 160-65. The driller can hear changes in the strata by
the sound the drill makes. He can also
hear the pumps and belts functioning but being inside the cab, where the noise
of the drill is louder, all of these sounds are more difficult to hear. Tr. 174-75.
The drill is locked in place and barred from movement
when drilling is underway. The drill
rests on its jacks rather than the tracks it uses for tramming. Tr. 169-70. There is an automatic shut-off that activates
when temperature or pressure becomes too high. Tr. 177-78.
Murray testified that Policy Instruction Bulletin 31
instructs drillers to exit their drill in order to monitor ground conditions
while the drill is operating. Tr. 184-85. Under
Best Practices, drillers are instructed to constantly monitor ground conditions
during all phases of drilling. Tr. 192. It also
explains that the meaning of 30 C.F.R. § 56.7052, referred to by Worrell
regarding not drilling from positions which hinder their access to the control
levers, means that the drill shall not be positioned where the miner would have
to pass between the high wall and the drill to get to the controls or
travel through an unsafe area. It does not mean the driller must be in the
cab. Tr. 208.
The driller could be located as far as 20 to 30 feet away
from the drill in performance of his duties because the mast is 30 to 40 high. In order to get a good look at it, one is
required to back up a significant distance.
Tr. 210.
Once the controls are set in the cab, the operator does not need to
remain in it. Tr. 209.
He will remain in the drill area which
is defined by a berm around the shot area. Tr. 214. In the event of an emergency, the safety
switch turns the drill off automatically without the driller having to access
the controls. Tr. 210. It is not necessary for the driller to access
the controls once set for drilling until the steel requires changing. Tr. 214.
In December 2010, D&B was cited for violation of the
same standard as is involved here at the Greenwood Quarry in South
Carolina. Ex. R-18.[3] After discussing the citation with the Field
Office Supervisor in Columbia, South Carolina, the supervisor determined that
D&B’s practice of having the drill operator outside the cab when the drill
was in operation was proper and the drill was “attended.” The citation was vacated by the Field Office
Supervisor. D&B has continued this
practice since then believing that MSHA approved of the practice. Because the South Carolina site is within the
same MSHA region as Pittsboro, they did not expect to be cited for this
violation. Tr. 189-90.
Murray surmised that the drill operator may have been in
the pickup truck because the drillers may keep their drill log in the truck as
well as drinking water and sandwiches.
The drill log must be filled out during the drilling of each hole to
indicate the amount of material broken up, the geology encountered and any
other information required by the mine operator. It is then provided to the
blaster to assist him in determining how to properly load the explosives. Because it must be filled out for every hole
drilled, it is common practice to fill it out while the drill is in
operation. Tr. 195,
214-15.
The first time Murray had ever heard of a steel getting hung up and fragmenting was when this
citation was issued. Tr.
197.
Summary of
Testimony of Expert Witness Paul Earl, Jr.
Mr. Earl was offered and accepted as an expert witness in
mechanical engineering and drilling. Tr. 219-20. He earned
his degree in mechanical engineering from the University of Tulsa in 1962. He spent his career designing and building
drilling machines used in the oil industry.
He designed a built a drill for Ingersoll-Rand substantially the same as
the DM30 involved here; the only difference is that the oil rigs are bigger and
not track mounted. The controls are
similar and they operate in much the same way.
Tr. 220-25.
Prior to appearing in court, Earl made a site visit to
one of D&B’s drilling sites to observe their drills. The one he observed
was not a DM30 but was of similar design and function. Tr. 229-30.
He explained that once the machine is in place, it is
lifted off the ground and rests on its hydraulic jacks which keep it level. It cannot be moved when drilling is
underway. Drills are not designed with
the intention that the operator remain in the cab at
the controls once the load or pressure has been set and the drill starts to
rotate. Tr. 235-36. At that point, it is necessary for the
driller to exit the cab and start monitoring the ground
conditions to ensure fissures or cracks are not developing. Tr. 237. He likened the drilling to using a
jackhammer. The pressure and vibration
caused by the drilling literally shakes the ground and can cause the cracks to
open up which could result in the drill going over the wall. Tr. 239. The driller also needs to monitor the
hydraulics, fluid levels and the like to ensure the drill is operating
properly. These observations need to be
done while the drill is in operation and the driller is outside the cab. A miner is properly attending the drill when
he is performing all of these tasks. Tr. 242.
Never in the 50 years being in the industry, has he known
of a steel to fragment. Tr. 248. In fact,
when asked his opinion of the allegations contained in the citation of the
steel hanging and fragmenting, his response was “completely erroneous.” Tr. 239.
Summary of
testimony of Brent Taylor
Mr. Taylor is the owner/CEO of D&B and has been a
driller since age 15. Tr.
251. He testified that it is
industry practice across the United States for drillers to remain outside the
control cab of the drill when it is in operation. Tr. 254. Over the past 20 years, D&B has had MSHA
inspectors at its drilling sites on a weekly basis. The mine operators also inspect their
practices routinely. Tr.
254-55. D&B is part of state
mining associations in multiple states whose function is to discuss safety
issues and study Part 46 of the Code.[4] Taylor attends all of the conferences. Tr. 256. In discussing the meaning of “attended” it
has been determined that D&B’s practices are in line with those
associations’ interpretations of the standard. Tr. 260-62. The industry definition of “attended” is
“being in the vicinity of the machine; being able to check out the ground
issues.” Tr. 258.
Taylor pointed out that the fatalgram
referred to by the Secretary involved loading drill steel which is very
different from drilling holes. Changing the steel requires someone to hold the
steel while it is being threaded which poses a distinct hazard to the miner
which is not present when drilling. Tr. 259-60. D&B
never loads steel during normal working hours and uses two people to reduce the
risk. Tr. 261. In over 42 years of D&B being in
business, drilling and average of 41,000 feet per week, it has never had an
incident of a steel fragmenting. Ibid.
Taylor reiterated the need for the driller to
monitor ground conditions while the drill is operating because as the pounding
of the drill starts, the rocks start falling.
He recounted an incident as an example of the danger as follows: “We’ve also had, again, two drills that were
drilling in this situation where everybody thinks it’s safe, that all of a
sudden, a slit that you couldn’t see back in there, from all this drilling and
vibration, a whole 50 foot section just slid off and took the drill with
it.” The wall just “evaporates.” Tr. 266-67. This occurred after the high wall was
inspected by the plant manager due to the vibration caused by the drilling. If the drillers had not been outside the cab,
they would have been lost as well, he said. Tr. 258-59.
Taylor made the decision to contest this interpretation
of the standard, not because of the penalty involved but because he believes
“that making my drillers stay in the cab was the most dangerous thing in the
world to do.” Tr. 262.
DISCUSSION AND ANALYSIS
At issue in this case is the proper definition of
“attended” as it applies to the cited standard. The Secretary maintains that
the proper interpretation is that the driller must remain within arm’s reach of
the control levers located inside the cab of the drill. In that way, should a drill steel become hung
up and fragment, the driller could turn off the drill quickly. The Respondent’s position is that “attended”
means being within the area where the drilling is being done so that the drill
operator can monitor the area for changing ground conditions destabilizing the
drill jacks, malfunctioning of the pressurized hoses, overheating, leaking or
other complications.
With regard to interpreting the language of a regulation,
the language of the regulation is the “starting point.” Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987). Where the language of a regulatory provision
is clear, the terms of that provision must be enforced as they are written
unless the regulator clearly intended the words to have a different meaning or
unless such a meaning would lead to absurd results. See Utah
Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 1555,
1557 (Aug. 1993). If the regulation is
ambiguous, however, the agency’s interpretation is given controlling deference
unless it is “plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Where an agency’s interpretation is not
entitled to controlling deference, it may still be entitled to some deference,
the level of which is dependent upon the circumstances such as the agency’s
care, its consistency, formality, and relative expertness, and the persuasiveness
of the agency’s position.” United States v. Mead Corp., 533 U.S. 218, 221 (2001).
I find the term “attended” in Section 56.7012 is
ambiguous on its face. Either of the
interpretations proposed by the Secretary or the Respondent could be envisioned
here. There is no guidance from
legislative history nor are there controlling Program Information Bulletins or
other instructional materials issued by MSHA to reflect the agency’s considered
interpretation of the meaning. Section
56.2 is the only definition of the term “attended” which is stated as in the
“presence of an individual” or under “continuous monitoring” which in itself is
ambiguous and dependent upon circumstances.
I find, however, that the Secretary’s interpretation is
erroneous and not worthy of deference.
There are two reasons for this determination. First, it appears that the Secretary’s
interpretation of the standard with regard to these two citations has been
rejected by a higher authority within MSHA in the same region against the same operator
just one year prior to these citations being issued. The Field Office Supervisor in South
Carolina, after discussing with Taylor the risks and hazards attendant with
drilling on high walls, determined that D&B’s practice was within the
meaning of the standard and vacated the one and only previously issued citation
under this standard. Worrell is
admittedly unfamiliar and inexperienced in drilling. His only source of information for believing
“attended” meant within arm’s reach of the controls was his recollection of
being told that when he attended the Mine Academy five years ago. His lack of expertise in this area is also
evident from his determination that the hazard associated with the driller
being outside the cab was that the steel could hang up in a hole and
fragment. His only frame of reference
for this belief was that he saw the “aftermath” of an incident involving a
drill. He was admittedly not present at
the time; he could give no details as to its cause or describe any of the facts
surrounding the event. The fatalgram provided by the Secretary to support his
testimony involved an accident which occurred while threading a new steel on a drill which is a very different situation
than here. In contrast, each one of the
highly experienced witnesses for the Respondent testified credibly that such a
fragmenting could not happen and has never been seen by any of them.
Secondly, the Secretary’s interpretation would lead to
extraordinarily dangerous results.
Hernandez, Murray and Taylor have over 46 years of drilling experience
with a company that specializes in the field.
Their testimony makes it unquestionably clear that the driller’s most
important duties are to ensure the ground conditions remain stable, the
hydraulics, water pressure, temperature, compressor and other components of the
drill continue to work properly. These
tasks can only be accomplished while the drill is running and require the
driller to move freely about the entire blasting area. The stability of the drill depends upon
conditions that can change rapidly as a result of vibrations, cracks, weather,
and ground composition. Should the drill
become unstable or the wall give way beneath the drill, it can easily result in
being lost to the bench below. In
addition to the testimony of these three highly experienced D&B miners,
Earl, an expert in mechanical engineering and drilling with 50 years’
experience in the industry designing and building similar drills for the oil
industry, confirmed the same. In his
words, the drills are not designed for the driller to remain in the cab at the
controls. It is critical for the driller
to monitor the ground conditions as the vibrations from the drill can cause
fissures or cracks to open causing the ground to give out. It is also essential that the driller monitor
every aspect of the performance of the drill while it is in operation. This can only be done outside the cab of the
drill. Once the drill is set for load
and pressure and the steel starts to turn, there is no reason for the driller
to be at the controls. In the event of
an emergency, the automatic cut-off switch will stop the revolutions of the
drill.
The witnesses for the Respondent were in harmony in their
opinion that the area in which the driller should be to attend the drill is
within the blasting area where the holes are being drilled. It is also in accord with industry standards
according to Taylor who is a member of various associations that study and
discuss Part 46 on safety and training.
I find their testimony to be persuasive and the Respondent’s
interpretation of “attended” to be logical.
It is the driller’s “continuous monitoring” of the conditions surrounding
the drill that prevents catastrophic events such as the wall beneath it from
“evaporating” taking the drill and the
operator with it should he be forced to remain in the cab. If I accepted the Secretary’s interpretation
here, “it would be the most dangerous thing in the world to do.”
The Secretary has presented no evidence that the driller
was not attending to his drill on either occasion cited here within the meaning
of the standard as I have found. In the
first instance the evidence is solely that he was 18 feet away from the drill
walking towards it. There is nothing
that can be gleaned from that information indicating he was not observing the
functioning of the drill or monitoring the ground conditions. Likewise, there was an adequate explanation
provided by the Respondent as to why he would be in the pickup truck located
within the blasting zone during drilling operations. By contrast the Secretary offered no evidence
that he was not doing so.
I find the Secretary has not met his burden of proof
that the mandatory standard has been violated as set forth above.
ORDER
I hereby VACATE
Citation No. 8720235 and Citation No. 8720237 and DISMISS this case.
/s/
Priscilla M. Rae
Priscilla M. Rae
Administrative
Law Judge
Distribution:
Breyana A. Penn, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Ste. 800, Denver, Colorado 80202-5708
Tina M. Stanczewski, Esq., Law Office of Adele Abrams, P.C., 4740
Corridor Place, Ste. D, Beltsville, Maryland
20705
[1]30 C.F.R. §56.2 defines “attended” as “presence of an individual or continuous monitoring to prevent unauthorized entry or access.”
[2]Worrell repeated eight times that he saw the “aftermath” of the fragmenting and exploding of a steel which he feared would occur in this instance. However, he admitted that he was not present when the incident happened at Ararat. Despite being asked repeatedly to explain what he knew of the specific facts regarding that incident, he simply repeated that he saw the “aftermath.” The Secretary offered no evidence of the Ararat accident but instead provided one Fatalgram dated November 1, 2012 that involved the entangling of clothing while threading of a new steel which is a completely unrelated type of incident. Ex. S-7. Worrel stated numerous times that he has no experience in drilling. Tr. 14, 32, 34. I find Worrell’s opinion based upon the incident at Ararat Mine unfounded and his failure to expound upon the facts involved as evasive.
[3]The narrative section of this citation indicates the driller was not attending the controls while holes were being drilled. The risk identified was the he would not be able to quickly make adjustments to the feed rate, pulldown force and rotation speed which could cause the drill to become unstable. It did not cite possible fragmentation or explosion of the steel. Ex. R-18.
[4]30 C.F.R. Subchapter H Part 46 is concerned with training and retraining of miners engaged in shell dredging or employed at sand, gravel, surface stone, surface clay, colloidal phosphate or surface limestone mines.