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[DOCID: f:ct2000298.wais]
CHINO MINES COMPANY
CENT 2000-298-M
February 22, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
February 22, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-298-M
Petitioner : A.C. No. 29-00708-05577
:
v. : Chino Mine
:
CHINO MINES COMPANY, :
Respondent :
DECISION
Appearances: Sheryl L. Vieyra, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
Laura E. Beverage, Esq., Jackson & Kelly, Denver,
Colorado, for Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against Chino Mines
Company ("Chino"), pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 815 and
820 (the "Mine Act"). A hearing was held in Silver City, New
Mexico. The parties presented testimony and documentary evidence
and filed post-hearing briefs.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Chino Mine is a large surface copper mine operated by
Chino in Grant County, New Mexico. Phelps Dodge Corporation has
a controlling interest in Chino. On February 2, 2000, MSHA
Inspector Abel Cisneros conducted an inspection at the mine. A
number of citations were issued including the single citation at
issue in this proceeding.
Citation No.4450231 alleges a violation of 30 C.F.R. �
56.3131. The condition or practice section of the citation
stated, as edited by me to correct spelling and grammatical
errors:
Between the Lampbright Road and the North
face of P-16 dump, a very large rock
averaging approximately 30 tons was sitting
on loose, unconsolidated material, where the
weather "rainfall" had washed out
approximately a third of the rock support.
The rock was sitting approximately 150 feet
from Lampbright Road where employees travel
on a daily basis conducting regular assigned
duties in a sloped area of approximately
70/80 percent grade thus creating potential
hazards to vehicles/employees of being
accidentally hit by large rock, if for some
reason it became loose.
By not removing potential hazards in
employees' work or travel areas, injury to
employees is reasonably likely to happen in a
given time. Note: other very large rocks had
rolled down the North face of P-26 dump and
were sitting on the Lampbright Road adjacent
berm thus indicating the potential hazard of
being hit by rolling rocks.
(Ex. G-1; Tr. 12-13). In the citation, Inspector Cisneros
determined that the violation was of a significant and
substantial nature ("S&S"), and that Chino's negligence was
moderate. The Secretary proposes a penalty of $557 for this
violation. The safety standard provides, as follows:
In places where persons work or travel in
performing their assigned tasks, loose or
unconsolidated material shall be sloped to
the angle of repose or stripped back for at
least 10 feet from the top of the pit or
quarry wall. Other conditions at or near the
perimeter of the pit or quarry wall which
create a fall-of-material hazard to persons
shall be corrected.
During his inspection, Inspector Cisneros traveled down the
Lampbright Road (the "road"). The road travels alongside one of
the dumps at the mine. This dump had been used to deposit waste
rock from the pit, but new material was no longer being added.
The road was at the bottom of this dump with a large hillside of
waste rock on one side of the road and a berm on the other side.
The hillside was at an angle of about 35 degrees above the road.
(Tr. 134). This hillside had not been disturbed for several
years. (Tr. 137).
While traveling down the road, Inspector Cisneros observed a
large rock on this hillside, where he stopped to inspect. He had
observed this same rock during an inspection he conducted at the
mine in mid-September 1999. In September he believed that this
rock was supported. (Tr. 14, 35). For that reason, he did not
issue a citation at that time. He testified that at the conclusion
of his September 1999 inspection, he recommended to company
representatives that the rock be taken down.
When Inspector Cisneros observed the rock in February 2000,
he believed that the rock was no longer adequately supported. He
believed that heavy rains that occurred after his previous
inspection "had washed out about a third of the support in front
of that rock." (Tr. 13-14). He looked at the rock from several
angles and "observed a lot of unconsolidated material, loose
material from [adverse] weather conditions." (Tr. 14). He
determined that there had been a "heavy rainfall and [that this]
rainfall had washed most of the support out from the front of the
rock." Id. He believed that this rainstorm occurred during the
previous week. (Tr. 21). The inspector estimated that the rock
weighed about 30 tons.
Inspector Cisneros also observed other rocks along the side
of the road. He testified that he did not recall seeing these
rocks there during his September inspection. (Tr. 18-21). He
believes that many of these rocks had rolled down the hillside of
the dump as a result of the heavy rains between his September and
February inspections. Id. In short, he believes that the
hillside suffered heavy erosion as a result of the rains. The
inspector also stated that the muddy conditions in the area
indicated recent rains. He feared that unconsolidated material,
including the cited rock, could roll down the hillside and hit a
vehicle using the road. (Tr. 21).
Inspector Cisneros does not dispute that Chino was complying
with the first sentence of the safety standard. Although he
believes that the hillside contained loose, unconsolidated
material, it was sloped to the angle of repose. (Tr. 63). He
cited Chino for violating the second sentence of the standard.
He believes that erosion around the cited rock on the hillside
created "a fall-of-material hazard to persons" who travel down
the road. Inspector Cisneros believes that the
violation was S&S.
For the reasons set forth below, I find that the Secretary
did not establish a violation of section 56.3131. There is no
question that during the relevant time period, the road was a
"place where persons worked or traveled in performing their
assigned tasks." Thus, Chino was required to comply with the
requirements of the standard along the road. The issue is
whether the rock or the hillside presented "a fall-of-material
hazard to persons."
First, I find that conditions along the hillside had not
changed significantly between Inspector Cisneros's September 1999
and February 2000 inspections. The only witness who testified
that the area around the rock had been recently eroded was the
inspector. Concepcion Fierro, an hourly employee who was on the
safety committee at Chino, was subpoenaed by the Secretary to
testify at the hearing. He testified that there was no
significant change in the support for the rock between the two
inspections. (Tr. 75-77). He believed that any erosion of
material around the rock occurred before the September 1999
inspection, not after. Id. As set forth in more detail below,
the two company witnesses testified that the hillside was stable;
the rock was well supported; and there had been no erosion of
support for the rock between the two inspections.. (Tr. 103).
All of the witnesses who worked at the mine testified that the
weather had been cool and dry in the weeks preceding the February
2000 inspection. The U.S. Department of Commerce has a weather
monitoring station about seven miles from the mine. Weather data
from that station shows that it did not rain in the area in
October or November 1999. (Ex. R-2). It rained 0.2 inches in
December 1999. The data also establishes it rained 0.04 inches
on January 2 and 3, 2000. Id. Local conditions could vary,
however.
There is no evidence, other than the testimony of the
inspector, that heavy rains at the mine caused the support in
front of the rock to be washed out in the weeks prior to February
2, 2000. I find that the conditions on the hillside did not
change to any significant degree between Inspector Cisneros's two
inspections. This finding does not end the matter, however,
because the issue is whether the standard was violated on
February 2, 2000, not whether any hazard presented by the rock
was of recent origin. The presence of this rock on the hillside
may have violated the safety standard in September 1999, even
though the inspector did not issue a citation.
The language of section 56.3131 is "simple and brief in
order to be broadly adaptable to myriad circumstances." Kerr-
McGee Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-
Products Corp., 4 FMSHRC 2128, 2130 (December 1992). A broadly
written standard must "give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may
act accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343
(September 1991). The mine operator need not have actual notice
of a specific requirement, but the standard must "provide
adequate notice of prohibited or required conduct." Id. The
Commission developed the "reasonably prudent person test" to be
applied in such circumstances. The test is "whether a reasonably
prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard." Id.
(citations omitted). Thus, the issue is whether such a
reasonably prudent person would have recognized the hazard
presented by the cited rock.
Prior to the September 1999 inspection, several miners
complained about the rock to the union-management safety
committee or to a Chino supervisor. Inspector Cisneros testified
that Mr. Fierro and others reported this condition. (Tr. 30).
Around the time of the September inspection, Herby Allsup, a
dozer foreman with about 23 years experience at the mine, was
asked by Chino management to look at the cited rock on the dump
hillside. He investigated the conditions and did not observe any
evidence of cracks or movement in the area supporting the rock.
(Tr. 98-99). He concluded that the "rock had not moved; it was
in the same position since day one, [and that it did not present]
a safety hazard." (Tr. 99). He concluded that it was safer to
leave the rock in place than to bring it down. (Tr. 103-04). He
testified that the particular slope on which the rock rested had
a history of being very stable. (Tr. 91). This particular slope
existed since about 1995. Id.
Terry Rigoni, the mine superintendent, who has a degree in
geological engineering, testified that the hillside in the area
of the rock was stable. (Tr. 138). When he was advised that
Chino was going to be issued a citation, he went to observe the
cited rock. He testified that there was no evidence that any of
the material supporting the rock had eroded away. (Tr. 139). He
believes that the rock was stable and that it was not prudent to
take it down. (Tr. 143). He testified that he reached this
conclusion based on the "lack of any kind of evidence of slope
movement or instability...." Id. He stated that the hillside
was "set up like concrete." Id. He also believes that it was
not prudent to disturb the bank by bringing the rock down. As
discussed below, Chino cut into the hillside to gain access to
the rock in order to abate the citation. Because this abatement
exposed fresh material and steepened the hillside, Chino
permanently closed the road for safety reasons after the rock was
brought down. (Tr. 143-44).
Chino's witnesses testified that most of the rocks that were
present along both sides of the road had been there since the
road was built. They stated that some of the rocks may have
fallen when an additional road was built higher up on the dump in
1998. They stated that these rocks did not represent material
that had fallen from the hillside between the September and
February MSHA inspections, as the Secretary contends. Mr. Allsup
testified that the road was not very wide and that if rocks had
fallen from the hillside many of them would have landed in the
road. (Tr. 94). As the dozer foreman, Mr. Allsup was
responsible for keeping the road clear of rocks and other
materials. He testified that he did not send out equipment to
remove rocks from the road. (Tr. 94). He believes that most of
the rocks along the side of the road were deposited there around
1995 when the dump was built. (Tr. 95-96). Mr. Rigoni testified
that he does not believe that the rocks along the road had
recently rolled down the bank. (Tr. 142). He testified that the
rock was placed there when the road and dump were built. He
testified that, as the mine manager, he would have known if
material was rolling off the dump slope.
It is not surprising that there were some concerns raised by
miners about the rock in the summer of 1999. Chino was building
a sump for its leaching solution in this area. Miners regularly
traveled on this road during that summer as this facility was
being built. Normally, the road was not used very frequently.
Mr. Fierro testified that he and other employees raised concerns
about the rock because it looked dangerous. (Tr. 78). In
response to these concerns, Chino evaluated the situation and
determined that the rock did not present a hazard. The rock is
shown in Exhibits G-4 through G-6. These photographs were taken
from the road after Chino had cut away the hillside as part of
the abatement process. From that angle, it is not clear whether
the rock is adequately supported. Chino determined that it was
supported in September and believes that it still was when it
received the citation. It investigated the stability of the rock
when miners raised questions about it and when the inspector
issued the citation.
Based on evidence presented by Chino, I find that the rock
was supported and did not "create a fall-of-material hazard to
persons" or equipment. The rock was sitting in a mini-bench that
was not readily observable from the road. This bench can be seen
to a certain extent in Exhibit G-6. Plastic pipelines are
present throughout the dump to transport a liquid called
"raffinate," which is produced during the solvent extraction
process in which copper is leached from the oxide ore through the
use of an acid. There is a partially buried raffinate pipeline
along the road and along another road above the Lampbright Road.
At one time, there was a pipeline running through the area where
the rock was sitting. Indeed, the rock was sitting in this
former "pipeline run," which was flatter than the surrounding
hillside. (Tr. 135). This mini-bench provided support for the
rock.
Chino arranges to have aerial photographs of the mine taken
on a regular basis. Coincidentally, such an aerial survey was
made on February 2, 2000, before Chino started to abate the
citation. An enlargement of the photograph taken during this
survey shows the road, the rock, the hillside, the raffinate
pipelines, and the mini-bench that the rock was in. (Ex. R-2).
Chino abated the citation by removing the rock. It
accomplished this task by using a front-end loader to remove some
of the hillside below the rock. The loader removed about 3,000
tons of material. (Tr. 140). Chino then used a water cannon to
remove the supporting material under the rock. The water cannon
pumped about 300 gallons of water a minute for about ten minutes
before the rock was dislodged. (Tr. 141). As stated above,
Chino believes that the abatement rendered the hillside unstable
so it permanently closed the Lampbright road.
Although it is understandable that someone viewing the rock
from the Lampbright Road might believe that the rock presented a
hazard, upon further investigation a "reasonably prudent person
familiar with the mining industry and the protective purposes of
the standard would have recognized" that the presence of the rock
on the hillside did not violate the "requirement of the
standard." I credit the testimony of Chino's witnesses on this
issue. The material on the hillside was stable rather than loose
and unconsolidated; the rocks at the bottom of the hillside had
not recently fallen and did not indicate a potential falling rock
hazard; the support for the cited rock had not eroded away during
recent rains; and the rock was sitting on a flat area that was
created when a pipeline was at that location. The inspector was
mistaken about some of the facts upon which he based the
citation. Consequently, I vacate the citation.
II. ORDER
Citation No. 4450231 is VACATED and this proceeding is
DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Sheryl L. Vieyra, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street,
Suite 2710, Denver, CO 80264
(Certified Mail)
RWM