<DOC>
[DOCID: f:c-94-108.wais]
WESTERN MOBILE NEW MEXICO, INC.
December 18, 1995
CENT 94-108-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
December 18, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 94-108-M
Petitioner : A.C. No. 29-01380-05511
:
v. :
: Sedillo Hill Mine
WESTERN MOBILE NEW MEXICO, INC., :
Respondent :
DECISION
Appearances: Robin S. Horning, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
Katherine Shand Larkin, Esq., Jackson & Kelly,
Denver, Colorado, for Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against
Western Mobile New Mexico, Inc. ("Western Mobile"), pursuant
to sections 105 and 110 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. �� 815 and 820 ("Mine Act"). The
petition alleges one violation of the Secretary's safety
standards. For the reasons set forth below, I find that the
Secretary did not establish the violation and I vacate the
citation.
A hearing was held in this case on April 11 and 12, 1994,
in Albuquerque, New Mexico. The parties presented testimony
and documentary evidence and filed post-hearing briefs.
I. FINDINGS OF FACT
Western Mobile operates the Sedillo Hill Mine, a surface
limestone mine in Bernalillo County, New Mexico. Limestone is
mined and crushed at the mine site. The pit consists of
several benches, the faces of which are between 15 and 35 feet
high. (Tr. 221). Limestone is loosened from a bench using
explosives. A series of holes are drilled down from the top of
the bench, explosives are loaded into the holes and the
explosives are detonated from some distance away. The
loosened material is loaded and transported to the crushing
plant. At the time the citation was issued, drilling and
blasting at the Sedillo Hill Mine were performed by an
independent contractor, Sandy Jones Construction Company
("Jones Construction"). Each bench was blasted once every
week or two. (Tr. 166).
On September 15, 1993, an employee of Jones Construction,
Marvin Anglin, blasted a bench near the northwest corner of
the pit. Three individuals were in the same area of the pit
as Mr. Anglin at the time of the blast: Matt Carnahan,
Western Mobile's plant manager; and two employees of Jones
Construction's insur- ance carrier. One of these insurance
agents, Mike Wilson, was seriously injured when fly rock from
the blast struck him. He suffered a bruised liver and back
trauma. (Tr. 149-50). Appar- ently, his injuries were not
of a permanent nature.
Mr. Sandy Jones, owner of Jones Construction, notified MSHA
of the accident and MSHA Inspector Omar Sauvageau was sent to
the mine to investigate. He was accompanied by Thomas J. Loyd,
an MSHA supervisory mining engineer. After conducting an
investiga- tion, Inspector Sauvageau issued citations to
Western Mobile and to Jones Construction. The section 104(a)
citation issued to Western Mobile alleges a violation of 30
C.F.R. � 56.6330. The citation states:
On 9/15/93 a blasting accident occurred at
the Sedillo Hill Mine, where one person was
injured and hospitalized by fly rock, and two
other persons were peppered by small ma- terial
from the round which was blasted in the pit. The
men were located approximately 500 feet from the
blast site when they initi- ated the blast.
There was not a suitable blasting shelter in the
area where the blast was initiated. The men were
standing next to pickup trucks which were
intended to be used as shelters, not behind them
as intended.
(Ex. G-6). In the citation, the inspector determined that the
alleged violation was significant and substantial and was caused
by Western Mobile's moderate negligence. The inspector also
determined that the alleged violation was reasonably likely to
cause a fatal injury. (Ex. R-1). The Secretary assessed a
penalty of $3,000.00 against Western Mobile.
The cited safety standard provided:
Ample warning shall be given before blasts are
fired. All persons shall be cleared and removed
from the blasting area unless suit- able blasting
shelters are provided to pro- tect persons
endangered by concussion or fly- rock from
blasting.[1]
The term "blasting area" is defined as "the area near blasting
operations in which concussion or flying material can reasonably
be expected to cause injury." 30 C.F.R. � 56.2. The issue in
this case is whether the four individuals were in the "blasting
area" at the time the explosives were detonated.
Inspector Sauvageau testified that a mine operator must
look at a number of factors when establishing its blasting
procedures. He stated that these factors include the
geological makeup of the rock, type of round that is drilled,
depth of the holes, amount of explosives used, and the history
of blasting at the pit. (Tr. 28, 52). Based on his analysis
of these factors, he determined that the individuals were
within the blasting area.
He believed that the fact that a man was injured showed
that the people were too close to the blast site. (Tr. 27,
30, 53). He concluded that the history of blasting at this
particular mine should have alerted Western Mobile to the
hazard. He also con- sidered the fact that the pit wall was
highly fractured, and the blasting contractor, Jones
Construction, had difficulty loading at least one of the holes
because of cracks in the rock. He believed that the explosive
material went into cracks in the rock and that this condition
created an increased risk of fly rock.
On this particular blast, 27 holes were drilled from the top
of the bench. Each hole was 19 feet deep and was 3-1/2 inches in
diameter. Nine holes were in each of three rows and the first
row was about seven feet back from the edge of the bench. The
holes were filled with an ammonium nitrate-fuel oil blasting
agent ("anfo"). In one to four of the holes, the anfo entered
cracks in the rock. Mr. Anglin, the contractor's employee,
fol- lowed his usual practice when cracks are encountered. He
placed empty ammonium nitrate bags into the hole to block the
cracks, placed cuttings[2] into the hole, and then continued
to fill the hole with anfo.
The Secretary's witnesses testified that because anfo went
into the highly fractured rock, the rock did not blast as it
should. When blasted, rock will "pull out" in the direction
of least resistance. (Tr. 35) In this case, rock came
straight out the side of the bench. Inspector Sauvageau
testified that rock went a total of about 600 to 800 feet into
the pit. (Tr. 32). Matt Carnahan testified that when anfo
enters cracks in the rock, the contractor follows an
established procedure to minimize the risk and that fly rock
does not usually travel 500 feet in such circumstances.
II. SUMMARY OF THE PARTIES' ARGUMENTS
A. Secretary
The Secretary argues that because Western Mobile did not
have a suitable blasting shelter, it was required to remove all
people from the blasting area. He refers to the definition of
"blast area" at 30 C.F.R. � 56.6000.[3] The Secretary relies
heavily on the first sentence of this definition and argues
that the evidence establishes that people were in an area in
which flying material caused injury to an individual. He
further main- tains that the limestone formation contained
numerous vertical and horizontal cracks that created weak
zones and that a prudent person would recognize that such weak
zones may blow out and create a fly rock problem. Anfo
entered these cracks around a number of holes, creating a
greater potential for fly rock. He contends that blasters
frequently initiate shots at this mine from a distance of 1000
feet or more and that this history demon- strates Western
Mobile's knowledge of the hazard.
B. Western Mobile
Western Mobile does not dispute that it did not have a
blasting shelter. It contends that it did not violate the
safety standard because it removed all persons from the area
where fly rock was reasonably expected to cause injury. It
relies on the definition of blasting area in 30 C.F.R. � 56.2
and the Commis- sion's decision in Hobet Mining & Construction
Co., 9 FMSHRC 200 (February 1987). It contends that the
blaster, Mr. Anglin, con- sidered the relevant factors,
including the blasting history, geology of the area, the
amount and type of explosives and stem- ming used, and the
depth and pattern of the holes. It argues that Mr. Anglin
reasonably concluded that the men were not within the blasting
area when he fired the shot. Western Mobile main- tains that
the Secretary failed to establish that the blaster did not
consider or employ these factors when initiating the blast.
Western Mobile believes that the citation was issued solely
be- cause there was an injury. It contends that it complied
with the requirements of the standard and that the cited fly
rock incident was a "fluke occurrence." (W.M. Br. 4).[4]
III. DISCUSSION WITH FURTHER FINDINGS
AND
CONCLUSIONS OF LAW
The issue in this case is whether Western Mobile removed
all persons from the blasting area as required by section
56.6330. The applicable definition provides that the blasting
area is the area near blasting operations in which "concussion
or flying material can reasonably be expected to cause injury."
I reject the Secretary's contention that the definition of
"blast area" is applicable to the safety standard. Because
the new safety stand-dard at section 56.6306 uses the term
"blast area," the defini-tion of that term applies to that
regulation and not to the old standard at issue in this
case.[5] The Secretary's expert witness, Richard Fisher,
could not explain why the definition for the new standard
should be applied in a case involving the old standard.
(Tr. 114-15).
In Hobet, the Commission interpreted the definition of
"blasting area" in conjunction with an identical safety
standard for surface coal mines. The Commission held that in
order to establish a violation, the Secretary must "establish
the factors that a reasonably prudent person familiar with
mine blasting and the protective purposes of the standard
would have considered in making a determination under all of
the circumstances posed by the blast in issue." Hobet, 9
FMSHRC at 202. The Secretary "must then prove that the
factors were not properly considered or employed." Id. The
Commission went on to hold:
An operator's pre-shot determination of what
constitutes a blasting area is based not only
upon the results of prior shots, but also depends
upon a number of variables af-fecting the
upcoming shot. The variables may include, but
are not limited to, the amount and type of
explosives used, the depth of the holes that
constitute the shot, the topo-
raphy, and the expertise and prior experience
of the blaster.
9 FMSHRC at 202-03 (citation and footnote omitted).
There is little dispute about the factors that a blaster
should consider when determining the boundaries of the
blasting area. The issue is whether the blaster
considered and employed these factors in this case. The
burden of proof lies with the Secretary to establish a
violation.
The first factor, the geology of the rock, was addressed
extensively at the hearing. The rock at the Sedillo Mine
is highly fractured and contains many horizontal and
vertical cracks, called "voids" at the hearing. These
voids are plainly visible in the photographs of the pit.
(Exs. G-3, G-5 ). The evidence establishes that a rock
formation with voids is more likely to produce fly rock
because the rock is highly fractured and because
explosive material can enter these voids when the shot is
loaded. The evidence does not establish, however, that
the presence of fractured rock should have put Western
Mobile or Mr. Anglin on notice that fly rock could
reasonably be expected to travel 500 feet into the pit.
Mr Carnahan discussed this particular shot with Mr.
Anglin prior to its detonation and
Mr. Anglin did not express any concerns about fly rock.
(Tr. 208).
The individuals in the pit were about 500 feet from the
area being blasted.[6] Mr. Carnahan testified that he has
observed 10 to 12 shots while working at the pit. (Tr.
200). In each case, Mr. Anglin was the blaster who
determined the blasting area. In these shots, Mr. Anglin
established a blasting area that varied between 400 and
550 feet. (Tr. 200, 203). Fly rock was not observed at
these distances in any of these shots. (Tr. 201-02).
Mr. Anglin has an established procedure he followed when
voids were encountered. He places ammonium nitrate bags down
the drill hole to block the void and stem off the hole.
He then places cuttings into the hole and continues to
load the hole. (Tr. 206). He adds a second detonator to
reduce the risk of a misfire. Voids were encountered in
a number of the holes in the shots that Mr. Carnahan
observed. He did not see any fly rock. (Tr. 207).
The Secretary's witnesses did not testify that
Mr. Anglin's procedures are inadequate when encountering
voids in the rock. Indeed, Mr. Fisher speculated that the
blaster must have "missed one" of the holes when using this
procedure and that this "missed" hole created the fly
rock. (Tr. 250). The Secretary's witnesses concluded
that the procedures were inadequate in this instance
because a person was hit and injured. This analysis begs
the question. There was no showing that the fact that
voids were encountered, a not infrequent occurrence,
should have put Western Mobile on notice that the people
in the pit were in an area where fly rock could
reasonably be expected. The procedures used by Mr.
Anglin were designed to compensate for the voids and had
apparently been successfully applied in previous blasts.
I note that Mr. Anglin has over 20 years of experience in
blasting and is a certified blaster. (Tr. 63, 209).[7]
A second factor is the blasting history at the mine.
Inspector Sauvageau testified that he observed Jones
Construction conduct a blast at the mine in 1991 that was
detonated from the plant. He stated that the distance
between the shot and the detonation point was about 1,500
feet. He also stated that all employees not involved in
the blast assembled at the entrance to the plant some
2,000 feet from the blast site. Mr. Carnahan tes- tified
that Western Mobile requires employees to assemble at the
plant gate so that a head count can be made to make sure
that no employees are in the blasting area. (Tr. 210-
12). In addition, under New Mexico law certain nearby
roads are required to be blocked during all blasts and
employees are dispatched from the plant gate to perform
this function. Id.
Moreover, the fact that one blast was detonated from
a greater distance than the September 1993 blast does not
establish an adverse "blasting history" at the mine. All
witnesses agreed that the blasting area changes with the
factors discussed above. Nothing in the record indicates
that blasts are routinely deto- nated from 1,500 feet or
that the blast at issue was detonated from an unusually
close location. In addition, Inspector Sauvageau did not
have any knowledge of factors considered by Jones
Construction when establishing the blasting area in the
1991 blast. For example, the blaster could have used
signifi-cantly more explosives in that blast, thereby
requiring that a larger blasting area be established.
Thus, the record does not establish that Western Mobile
or Mr. Anglin failed to consider the blasting history
when establishing the blasting area in this case.[8]
There is no evidence that MSHA considered any of the
other factors in determining that a violation occurred. For
example, MSHA did not consider the depth, diameter, and
angle of the holes, the delay system, powder factor, or
the amount or type of explosives used. MSHA is not
required to consider all factors, but it is difficult to
determine whether the blasting experience at a mine
should have alerted an operator to the danger of fly rock
in a particular blast without some consideration of these
other factors.[9]
In this case, the Secretary adequately set forth the
factors hat a reasonably prudent person should consider
in stablishing the blasting area. I find, however, that
he Secretary did not establish that Western Mobile or
ts contractor failed to ade-quately consider or employ
hese factors when the blast was deto- nated on September
5, 1993. Instead, the Secretary's witnesses asserted
hat because someone was injured, all persons were not
leared and removed from the blasting area.
Although the Secretary showed that fly rock is more
likely in the presence of highly fractured rock, it is clear
that large areas of the pit are fractured and that the blaster
takes precau- tions to deal with these conditions and the
resulting voids. The Secretary did not establish that
the blaster failed to consider the fractured nature of
the rock when detonating the blast or that he was
unqualified to establish a safe blasting area as a result
of these conditions.
IV. ORDER
Accordingly, Citation No. 4109895 issued to Western Mobile
New Mexico, Inc. is hereby VACATED and this proceeding is
DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Robin S. Horning, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Katherine Shand Larkin, Esq., JACKSON & KELLY, 1660 Lincoln Street,
Suite 2710, Denver, CO 80264 (Certified Mail)
RWM
**FOOTNOTES**
This safety standard was effective through January 31, 1994.
It has been superseded by section 56.6306, which differs
substantially from the standard at issue in this proceeding.
Cuttings are ground rock that is removed from the drill bit.
(Tr. 233).
"Blast area" is defined as:
The area in which concussion (shock wave),
flying material, or gases from an explosion
may cause injury to persons. In determining
the blast area, the following factors shall
be considered:
(1) Geology or material to be blasted.
(2) Blast pattern.
(3) Burden, depth, diameter, and angle of
the holes.
(4) Blasting experience of the mine.
(5) Delay system, powder factor, and pounds
per delay.
(6) Type and amount of explosive material.
(7) Type and amount of stemming.
Western Mobile also argued that it was not properly cited
for the alleged violation because Jones Construction was solely
responsible for drilling and blasting in the pit. Because I find
that the safety standard was not violated, I have not reached
this issue.
Nevertheless, the seven factors that are to be considered in
determining the "blast area" are similar to the factors that all
witnesses agreed should be considered by a reasonably prudent
blaster before he detonates explosives. It is the first sentence
of the definition of "blast area" that I have not considered in
resolving the issues in the present case.
Matt Carnahan measured the distance between the shot and his
location as 530 feet. (Tr. 198).
Despite the fact that Mr. Anglin knew more about the factors
considered in establishing the blasting area than anyone else
at the mine, Inspector Sauvageau did not talk to Mr. Anglin during
his investigation of this accident. (Tr. 57, 87).
Inspector Sauvageau also referred to an incident that occurred
in the late 1980's in which a piece of fly rock struck the mine's
scale house. (Tr. 37). He testified that the scale house was
located about 1,500 feet from the blast site. Id. Western Mobile
presented evidence that the scale house was at a different
location at the time of that incident and that the distance to
the blast site was about 300 feet. (Tr. 177). For the reasons stated
above, this incident does not establish a blasting history that
should have put Western Mobile on notice that 500 feet was not a
safe distance.
Of course, the blast that caused the accident in this case is
now an important part of Western Mobile's blasting history.