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[DOCID: f:ct2000101.wais]
ALCOA ALUMINA & CHEMICAL, L.L.C.
December 26, 2000
CENT 2000-101-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
December 26, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-101-M
Petitioner : A.C. No. 41-00320-05591
v. :
: Bayer Alumina Plant
ALCOA ALUMINA & CHEMICAL, L.L.C., :
Respondent :
DECISION
Appearances: Ernest A. Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
Harold J. Engel, Esq., Arent Fox Kintner Plotkin &
Kahn, PLLC, Washington, D.C., for Respondent.
Before: Judge Bulluck
This case is before me upon a Petition for Assessment of
Penalty filed by the Secretary of Labor, through the Mine Safety
and Health Administration ("MSHA"), against Alcoa Alumina &
Chemical, L.L.C. ("Alcoa"), pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C.
� 815(c). The Petition seeks civil penalties for alleged
violations of 30 U.S.C. �� 56.18002(a), 48.28(a), and 48.31(b),
in the amounts of $1,603.00, $9,000.00, and $3,000.00,
respectively.
A hearing was held in Houston, Texas. The parties' post-
hearing briefs are of record.[1] At hearing, the parties moved for
approval of settlement of 104(d)(2) Order No. 7879416, which
settlement motion was granted on the record, subject to filing of
the executed agreement (Tr. 6). The terms of the agreement and
final approval of settlement shall be set forth as part of this
Decision. Order Nos. 7879697 and 7879698, for the reasons set
forth below, shall be AFFIRMED, as amended.
I. Stipulations
The following are the parties' stipulations:
1. Alcoa stipulates, for the purposes of this proceeding
only, that Order 7879416, 7879697 and 7879698 were timely issued
and contested.
2. It is also stipulated, for the purpose of this
proceeding only, that the Federal Mine Safety and Health Review
Commission has jurisdiction over this proceeding.
3. It is further stipulated, for the purpose of this
proceeding only, that the proposed penalties will not have an
effect on Alcoa's ability to continue in business.
4. The parties are also prepared to stipulate as to the
authenticity of the exhibits and admissibility of the exhibits
that the other party's going to offer in this proceeding.
5. And it is also noted for the record that the parties
have settled Citation [sic] No. 7879416, on the grounds that it
be reduced to a 104(a) citation and the penalty amount shall
remain as proposed.
II. Factual Background
Alcoa's Bayer Alumina Plant, located in Point Comfort, Texas
("Point Comfort plant"), produces alumina from bauxite that is
mined and shipped from Africa, Puerto Rico, and other overseas
locations (Tr. 12-13). Point Comfort is a large plant, employing
700-800 workers and operating 24 hours a day, seven days a week
(Tr. 14-16). Bauxite, taken from storage at the plant, is mixed
and ground with sodium hydroxide to form a slurry (Tr. 54, 169-
70). The slurry is combined under high heat and pressure with
steam in large vessels called digesters, which creates sodium
aluminate (Tr. 170-72). The sodium aluminate is then clarified,
which is the settling out of the mud characteristics of the
liquor stream, thus leaving the other chemicals intact in the
solution (Tr. 173). The final product produced at the plant is
alumina, which is aluminum oxide (Tr. 173, 175). Point Comfort's
processing of bauxite is a milling operation and, therefore,
subject to the jurisdiction of the Act (Tr. 13, 54).
On July 13, 1999, MSHA Inspector Larry Parks conducted an
inspection of the Point Comfort plant, in response to a hazard
complaint made that day by a Point Comfort employee to MSHA's San
Antonio Field Office (Tr. 11). Specifically, the complaint
alleged that there were "frontline supervisors and other
supervisors who had not had any refresher training (Tr. 16)."
Inspector Parks met with Alcoa safety specialist Richard Ripley
(standing in for Point Comfort's safety and industrial hygiene
manager Ray Scott) and union representative Mike Monroy,
discussed the particulars of the complaint, reviewed Alcoa's
training records for the previous year, and interviewed several
employees, in order to ascertain when their last training had
occurred (Tr. 16-17, 158; ex. P-10).
As a result of his investigation, Inspector Parks concluded
that over 80 supervisors had not received annual refresher
training and six salaried employees had not received hazard
training, during the period covering one year prior to the
inspection date (Tr. 18, 28, 35-36). Consequently, Inspector
Parks issued 104(g)(1) Order Nos. 7879697 and 7879698, for
violations of the Part 48 training standards (Tr. 18-21). Alcoa
subsequently contacted MSHA's Dallas District Manager, Doyle
Fink, who agreed to "work with [Alcoa]," to avoid negatively
impacting production by withdrawal of the affected employees (Tr.
60-63, 161-62). In response, Alcoa promptly abated the Orders by
training all the affected miners within the ensuing week (Tr. 68,
161-62).
III. Findings of Fact and Conclusions of Law
A. Order No. 7879697
1. Fact of Violation
104(g)(1) Order No. 7879697, as modified, charges a
violation of 30 C.F.R. � 48.28(a), describing the condition or
practice as follows:
Allegation: seven day-shift supervisors in area two
have not received Part 48 annual refresher training and
there may be additional supervisors not trained in other
areas of the plant.
Finding: eighty-seven salary employees which includes
supervisors working in the plant have not received annual
refresher training within the last 12 months. The mine
operator was aware of the training requirements. The
operator is hereby ordered to withdraw the eighty-seven
employees from the affected work area until they have
received the required training. The Federal Mine Safety and
Health Act of 1977 declares that an untrained miner is a
hazard to himself and to others. (Listed names of 87
salaried and supervisory employees omitted)
(Ex. P-3).
30 C.F.R. � 48.28, Annual refresher training of miners;
minimum courses of instruction; hours of instruction, provides
that: " (a) Each miner shall receive a minimum of 8 hours of
annual refresher training as prescribed by this section." The
scope of the standard is found in Subpart B, section 48.21, which
covers " miners working at surface mines and surface areas of
underground mines." By definition, "miner," for purposes of the
standard, means, in pertinent part, "any person working in a
surface mine or surface areas of an underground mine and who is
engaged in the extraction and production process, or who is
regularly exposed to mine hazards, or who is a maintenance or
service worker employed by the operator or a service or
maintenance worker contracted by the operator to work at the mine
for frequent or extended periods." 30 C.F.R. � 48.22(a)(1). At
the time of inspection, the only surface supervisors exempted
from Part 48 training were those certified under an MSHA-approved
State certification program, which exemption was inapplicable at
Point Comfort, because it applies to the coal industry and, in
any case, Texas has no State certification program (Tr. 33-34,
222; see ex. P-8).
Alcoa takes the position that Part 48 training standards are
not applicable to Point Comfort, however, because the plant is
neither a surface mine nor a surface area of an underground mine,
but a milling operation (Tr. 170-71; Resp. Br. at 9-12).
Essentially, Alcoa appears to be arguing that Point Comfort is a
mine for jurisdictional purposes under the Act, but not a surface
mine for purposes of Part 48 training regulations (Resp. Br. at
9-14). The meaning of the scope and definitional provisions of
Part 48, Subparts A and B, is plain and unambiguous, and the two
sections distinguish training required for underground miners
from that which is required for surface miners. Nothing on the
face of the provisions suggests an interpretation of "mine,"
whether underground or surface, that would exclude any operation
deemed a "mine" under section 3(h)(1) of the Act, 30 U.S.C.
� 802(h)(1), from training its employees under the applicable
standards (Tr. 28). Accordingly, I find that Alcoa's Point
Comfort plant is covered by Part 48, Subpart B.
The violation period at issue spans July 13, 1998, to July
13, 1999 (Tr. 26). At the time the Orders were issued, there had
been no active training program for the supervisory and salaried
personnel since, at least, 1986, and Alcoa stipulated at hearing
that "the employees listed in both Citation [sic] Order No.
7879697 and 7879698 did not receive the training required by the
listed standard in the citation [sic] (Tr. 21, 86; Resp. Br. at
4)." Accordingly, having found that the Point Comfort plant is
covered by Part 48 training standards, and that the listed
supervisory and salaried miners had not received annual refresher
training, I conclude that Alcoa violated section 48.28(a).
2. Significant and Substantial
Section 104(d) of the Act designates a violation
"significant and substantial" (S&S) when it is "of such a nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A
violation is properly designated S&S "if, based upon the
particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set forth the four criteria that the Secretary must
establish in order to prove that a violation is S&S under
National Gypsum: 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 of a reasonably serious nature. See also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995);
Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria). Evaluation of the third criterion, the
reasonable likelihood of injury, should be made in the context of
"continued mining operations." Texasgulf, Inc., 10 FMSHRC 498,
501 (April 1998).
Inspector Parks determined that the violation was S&S. He
testified that there are many kinds of valves and caustic acid at
Point Comfort, and that miners untrained in the proper procedures
to be followed in the plant are exposed to tripping and traffic
hazards, which could result in burns, falls and guarding injuries
of a very serious nature (Tr. 23-24). Moreover, the inspector
testified that a vital component of annual refresher and hazard
recognition training is emergency evacuation, irrespective of the
limited exposure of the supervisory or salaried employee to the
plant operations (Tr. 75-76). I find, based on the evidence,
that there was a reasonable likelihood that supervisory and
salaried miners, not updated periodically on safe plant
procedures, could be seriously injured by machinery or chemicals.
Therefore, I conclude that the violation was S&S.
3. Penalty
While the secretary has proposed a penalty of $9,000.00, the
judge must independently determine the appropriate assessment by
proper consideration of the six penalty criteria set forth in
section 110(i) of the Act, 30 U.S.C. � 820(j). See Sellersburg
Co., 5 FMSHRC 287, 291-92 (March 1983), aff'd, 763 F.2d 1147 (7th
Cir. 1984). Section 110(i) provides, in pertinent part:
the Commission shall consider the operator's history of
previous violations, the appropriateness of such
penalty to the size of the business of the operator
charged, whether the operator was negligent, 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.
Alcoa urges a reduction in penalty based on its good faith belief
that it had a grace period in which to complete training of its
supervisors (October 1999), and because of the exemplary manner
in which it trained all the affected employees to abate the
Orders (Resp. Br. at 18).[2]
Point Comfort is a large mine, and the parties have
stipulated that the proposed penalties will not affect Alcoa's
ability to continue in business.
In analyzing the history of previous violations, the
Commission has indicated that the operator's general history,
rather than its history of similar violations, should be
considered. Cantera Green, 22 FMSHRC 616, 623 (May 2000)
(citations omitted). In the 24-month period prior to the subject
inspection, Alcoa was issued 234 citations, one of which involved
violation of a Part 48 training standard, distinguishable from
the standards at issue herein (Tr. 15, 129-30, 134-36; exs. P-7,
P-11). Although Alcoa has a significant overall history of
violations, I find that the company has a good record respecting
training violations and, therefore, consider its violations
history a mitigating factor in assessing appropriate penalties.
A finding on the gravity criterion requires an assessment of
the seriousness of the violation. Hubb Corporation, 22 FMSHRC
606, 609 (May 2000), citing Consolidation Coal Co., 18 FMSHRC,
1541, 1549 (September 1996); Sellersburg, 5 FMSHRC at 294-95. In
evaluating the seriousness of a violation, the Commission has
focused on "the effect of a hazard if it occurs." Consolidation
Coal Co., 18 FMSHRC at 1550. In this case, the annual refresher
and hazard training standards contemplate safety awareness and
procedures for supervisory and salaried employees who are
exposed, irrespective of frequency, to the operations in the
Point Comfort plant, which exposure could result in serious
injury. For the reason that failure to train these miners on
safe plant procedures on a regular, periodic basis, exposes them
to the very hazards that the standards seek to prevent, I find
the violations to be serious.
Respecting Alcoa's negligence in violating the standards,
Inspector Parks testified that he assessed the negligence as high
based on the substantial number of untrained employees, and his
conclusion that Alcoa was aware of the training requirements,
since the company had trained several similarly situated
supervisors and salaried employees in 1996-97, and during the
violation period (Tr. 25-28, 65-66). The inspector further
testified that Ray Scott explained to him that he (Scott) was
under the impression, from a previous safety director, that Part
48 training was not required for the supervisory and salaried
employees (Tr. 25, 66). Many of the affected employees
interviewed by Inspector Parks communicated to him that they had
been told that they did not need the training, while some stated
that they had taken the training with their departments, of their
own volition (Tr. 22, 27, 111; ex. P-10).
Alcoa takes the position that its failure to regularly
conduct annual refresher and hazard training for its supervisory
and salaried employees since, at least, 1986, was based on a good
faith belief that the training was not required, because those
employees had limited exposure to plant operations and did not
perform the hands-on work of the hourly workers. Ray Scott
testified that there was no training program in place for
supervisory and salaried employees in 1989, when he joined Point
Comfort's safety department, and that his predecessor, as well as
MSHA personnel, communicated to him that the training was not
required (Tr. 84-88, 100-01). Scott also explained that some
supervisory and salaried personnel had received training between
1990 and 1996, in preparation for strikes that never occurred,
since Alcoa had anticipated that those employees would be taking
on the duties of the hourly workers (Tr. 99, 101, 133-34).
Moreover, Scott testified that MSHA's San Antonio inspectors had
conducted Part 48 audits during regular inspections of the Point
Comfort plant between 1990 and 1994, had been satisfied with
Alcoa's training records, and had not cited Alcoa for training
violations, respecting its supervisors and salaried employees,
until the date of the instant Orders (Tr. 87-91, 122; ex. P-12).
Finally, Alcoa places great significance on a December 7, 1998,
cover letter from J. Davit McAteer, Assistant Secretary for Mine
Safety and Health, providing the mining community with a
"Compliance Guide for MSHA's Modified Regulations on Training and
Retraining of Miners," to assist the industry in complying with
new training requirements (Ex. R-6). Alcoa argues that, based on
its prior belief that its supervisors and salaried employees were
exempt from Part 48 training, the effect of the McAteer letter
and new Compliance Guide was to create the impression that those
employees were no longer exempt, and that Alcoa had until the end
of October 1999, to complete their annual refresher or hazard
training, as appropriate (Tr. 85, 91-95, 112, 137-38).
MSHA Inspector David Weaver, training specialist with
Educational Field Services Division, testified that all mines are
covered by Part 48 training, and that the new training
requirements under Part 48 modify the definition of "miner" to
include all supervisory personnel, whereas the old rule exempted
State-certified supervisors from annual refresher training (Tr.
192-93). "All other supervisory personnel," he testified, "were
required all of Part 48 training (Tr. 193)."
Alcoa had been operating for years under a misconception
that it had no duty to provide annual refresher and hazard
training for the affected Point Comfort miners. During that
time, MSHA had been examining Point Comfort's training records
and had failed to issue any citations or orders. The Secretary
called MSHA Inspector Melvin "Whitey" Jacobson to testify that,
pursuant to his Part 48 audit of Point Comfort's training in
1992, he had advised Ray Scott that supervisory and salaried
employees needed Part 48 training (Tr. 225-27; ex. P-12). While
the record as a whole substantiates Jacobson's testimony, it is
equally clear that MSHA dropped the ball after the audit, by
failing to take any enforcement action until July of 1998.
Furthermore, the Secretary has not rebutted the testimony of
Scott and Ripley, that discussions between Alcoa and MSHA, during
reviews of Point Comfort's training records, contributed to
Alcoa's assumption that it was in compliance with Part 48
standards; MSHA's behavior during inspections also indicates some
confusion on the part of San Antonio Field Office inspectors, as
to the requirements of Part 48 standards. Alcoa's interpretation
of the new requirements under Part 48, from its reading of the
McAteer letter and new Compliance Guide, was a continuation of
the misconception it held prior thereto. Simply stated, the
McAteer "package" was inapplicable to Point Comfort, because the
affected employees had never been exempt from training in the
first place. Whitey Jacobson's statements to Scott and his audit
report, alone, did not get Alcoa's attention or, at least,
straighten out its confusion over Part 48 requirements. It is
clear that MSHA's course of behavior over the years-- its failure
to cite Alcoa for its failure to appropriately train Point
Comfort's supervisory and salaried miners-- reinforced the
company's good faith belief that those employees were exempt;
likewise, there is no doubt that citing Alcoa at an earlier stage
would have brought its non-compliance to a head. There is no
reason to believe, especially in light of Alcoa's overall
training record and its rapid compliance in this matter, that
Alcoa knowingly ignored Part 48 requirements. Moreover, for the
reason that Point Comfort's considerable number of supervisory
employees is solely a consequence of its sizeable operation, I am
not persuaded by the Secretary's argument that the number of
affected miners is significant or justifies a finding of high
negligence. Therefore, having found that Alcoa proceeded on a
good faith belief that it was in compliance with the standards,
and that MSHA's lack of enforcement over several years reinforced
Alcoa's misconception, I find that Alcoa's negligence was low.
Finally, respecting Alcoa's good faith efforts at abatement,
the evidence establishes that Alcoa did an excellent job in
training all affected miners expeditiously.
Accordingly, having considered Alcoa's large size, ability
to continue in business, seriousness of violation, low degree of
negligence, and good record of past violations and rapid
compliance as mitigating factors, I conclude that a penalty of
$2,250.00 is appropriate.
B. Order No. 7879698
1. Fact of Violation
104(g)(1) Order No. 7879698, as modified, charges a
violation of 30 C.F.R. � 48.31(b), describing the condition or
practice as follows:
Allegation: seven day-shift supervisors in area
two have not received Part 48 annual refresher training
and there may be additional supervisors not trained in
other areas of the plant.
Findings: Six salary employees have not received hazard
training within the last twelve months. The mine
operator was aware of the training requirements. The
operator is hereby ordered to withdraw the six
employees from the affected work areas until they have
received the required training. The Federal Mine
Safety and Health Act of 1977 declares that an
untrained miner is a hazard to himself and others.
(Listed names of six salaried employees omitted)
(Ex. P-4).
30 C.F.R. � 48.31, Hazard Training, provides, in pertinent
part, that: (a) Operators shall provide to those miners, as
defined in � 48.22(a)(2) (Definition of miner) of this Subpart B,
a training program before such miners commence their work duties.
This training program shall include the following instruction,
which is applicable to the duties of such miners: (1) Hazard
recognition and avoidance; (2) Emergency and evacuation
procedures; (3) Health and safety standards, safety rules and
safe working procedures; (4) Self-rescue and respiratory devices;
and, (5) Such other instruction as may be required by the
District Manager based on circumstances and conditions at the
mine. (b) Miners shall receive the instruction required by this
section at least once every 12 months." "Miner," for purposes of
the standard, means, "any person working in a surface mine,
including any delivery, office, or scientific worker or
occasional, short-term maintenance or service worker contracted
by the operator, and any student engaged in academic projects
involving his or her extended presence at the mine." 30 C.F.R.
� 48.22(a)(2). As discussed above, Point Comfort is a "mine" under
section 3(h)(1) of the Act, its employees are covered by Part 48,
Subpart B, training requirements, and having found that the
listed salaried employees had not received hazard training during
the violation period, I conclude that Alcoa violated section
48.31(b).
2. Significant and Substantial
Inspector Parks determined that the violation was S&S. He
described salaried employees as those not performing the hourly
work in the plant, in occupations such as engineering, safety,
clerical/office and security, who go into the plant and are
exposed to its hazards, on a daily basis (Tr. 27-28, 32, 35-37).
He testified that, while the salaried employees primarily stay in
the office, the training is designed to teach hazard recognition
and emergency evacuation procedures, so that traffic hazards, as
well as hazards specific to equipment can be avoided (Tr. 38-39,
75-76). For these, and the reasons discussed above, I find that
there was a reasonable likelihood that salaried miners, not
periodically trained in recognizing hazards in the plant, could
be seriously injured by machinery or chemicals. Therefore, I
conclude that the violation was S&S.
3. Penalty
Consideration of the six penalty criteria under section
110(i) of the Act has been discussed fully above, and applies to
both Orders. The Secretary has proposed a penalty of $3,000 for
this violation. As discussed previously, my determination of the
appropriate penalty takes into account Alcoa's large size,
ability to continue in business, seriousness of violation, low
negligence, and the mitigating factors of good overall history
of training violations and rapid compliance. Accordingly, I
conclude that a penalty of $750.00 is appropriate.
C. Order No. 7879416
The parties' settlement agreement, respecting 104(d)(2)
Order No. 7879416, was considered under the criteria set forth in
section 110(i) of the Act, and approved at hearing. Under the
terms of the agreement, Alcoa agreed to pay-in-full the proposed
penalty of $1,603.00, and the Secretary agreed to modify the
Order to a 104(a) citation, with high negligence. The parties
having filed the executed agreement, approval of settlement is
hereby confirmed.
ORDER
WHEREFORE, the approval of settlement is GRANTED, it is
ORDERED that the Secretary MODIFY Order No. 7879416 to a 104(a)
citation, and that Alcoa Alumina & Chemicals, L.L.C., PAY a civil
penalty of 1,603.00.
IT IS FURTHER ORDERED that Order Nos. 7879697 and 7879698
are AFFIRMED, as modified to cite the appropriate standards, that
the Secretary MODIFY the Orders to reduce the level of negligence
to "low," and that Alcoa Alumina and Chemicals, L.L.C., PAY civil
penalties of $2,500.00 and $750.00, respectively, for the
violations.
IT IS FURTHER ORDERED that Alcoa Alumina & Chemicals,
L.L.C., PAY a total civil penalty of $4,853.00, in satisfaction
of the subject Citation and Orders, within 30 days of the date of
this Decision. Upon receipt of payment, this case is DISMISSED.
Jacqueline R. Bulluck
Administrative Law Judge
Distribution: (Certified Mail)
Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite 501, Dallas, TX 75202
Harold J. Engel, Esq., Arent Fox Kintner Plotkin & Kahn, PLLC,
1050 Connecticut Avenue, N.W., Washington, D.C. 20036-5339
/nt
**FOOTNOTES**
[1] The parties were notified that the record would be
closed on July 31, 2000. Consequently, portions of MSHA
Inspector Melvin "Whitey" Jacobson's deposition, appended to
Respondent's post-hearing brief, filed September 18, 2000, have
been considered as part of Respondent's closing argument only.
[2] Alcoa filed a Motion to Compel Depositions on March 31,
2000, in which it sought to depose "person or persons at MSHA's
Office of Assessments who made the decision regarding the amount
of the penalty for each of the orders which are the subject of
this proceeding." By Order of April 6, 2000, the motion was
denied. In its Post-hearing Brief, Alcoa moves for exclusion
from my consideration of penalty, of any evidence presented at
trial on the six penalty criteria, and requests reconsideration
of my ruling and reopening of the record for depositions (Resp.
Br. at 2, 15-17). The motion is hereby denied.