<DOC>
[DOCID: f:ct98153.wais]
NORTHWESTERN RESOURCES
April 8, 1999
CENT 98-153
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 8, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-153
Petitioner : A.C. No. 41-03164-03542
:
v. :
: Jewett Mine
NORTHWESTERN RESOURCES, :
Respondent :
DECISION
Appearances: Ned Zamarripa, Conference and Litigation Represen-
tative, Mine Safety and Health Administration, U.S.
Department of Labor, Denver, Colorado, for the
Petitioner;
Charles C. High, Jr., Esq., Kemp, Smith, Duncan &
Hammond, P.C., El Paso, Texas, for the Respondent.
Before: Judge Feldman
This proceeding concerns a petition for assessment of civil
penalty filed by the Secretary of Labor against Northwestern
Resources (the respondent) pursuant to section 110(a) of the
Federal Mine Safety and Health Act of 1977 (the Mine Act), 30
U.S.C. � 820(a). The petition seeks to impose a total civil
penalty of $734.00 for seven alleged violations of the mandatory
safety standards in 30 C.F.R. Part 77 of the Secretary's
regulations governing surface coal mines. Three of the seven
cited conditions were designated as significant and substantial
(S&S).[1] These matters were heard on January 20 and January 21,
1999, in Huntsville, Texas.
At the hearing, the parties agreed to settle one of the
citations and they waived the filing of post-hearing briefs
with respect to three of the citations so that a bench
decision could be entered with respect to those citations.
The settled citation and bench decisions, with non-substantive
edits, will be addressed in the initial portion of this decision.
The parties have filed post-hearing proposed findings and
replies with respect to the remaining citations that are
contested by the respondent. These citations involve the issue
of the circumstances under which deposits of hydraulic or
lubricating oils on engines, transmissions and frames of
equipment operating at a surface mine constitute a prohibited
accumulation of combustible materials under section 77.1104, 30
C.F.R. � 77.1104, of the Secretary's mandatory safety
standards.[2]
I. Pertinent Case Law and Penalty Criteria
This decision applies the Commission's standards with
respect to what constitutes an S&S violation. A violation
is properly designated as S&S in nature if, based on the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to by the
violation will result in an injury or an illness of a
reasonably serious nature. Cement Division, National
Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal
Co., 6 FMSHRC 1 (January 1984), the Commission explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum, the Secretary of Labor 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 [by the violation] will result in an
injury; and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious nature. 6
FMSHRC at 3-4.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).
In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129,
(August 1985), the Commission explained its Mathies criteria as
follows:
We have explained further that the third element of the
Mathies formula `requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury.'
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984).
The Commission subsequently reasserted its prior
determinations that as part of any "S&S" finding, the Secretary
must prove the reasonable likelihood of an injury occurring as a
result of the hazard contributed to by the cited violative
condition or practice. Peabody Coal Company, 17 FMSHRC 508
(April 1995); Jim Walter Resources, Inc.,18 FMSHRC 508 (April
1996).
This decision also applies the statutory civil penalty
criteria in section 110(i) of the Act, 30 U.S.C. � 820(i), to
determine the appropriate civil penalty to be assessed.
Section 110(i) provides, in pertinent part, in assessing civil
penalties:
. . . 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.
The parties stipulated that the respondent is a large
operator that is subject to the jurisdiction of the Mine Act and
that the small civil penalty sought to be imposed by the
Secretary will not affect the respondent's ability to continue
its business. The evidence further reflects that Northwestern
abated the cited conditions in a timely manner. (Joint Ex. 1).
Northwestern does not have a significant history of previous
violations in that, during the two years preceding the issuance
of the citations in issue, Northwestern was cited for only
14 violations, ten of which were designated as non S&S.
(Ex G-8).
II. Findings of Fact and Bench Decisions
This matter concerns seven citations that were issued as
a result of a regular Triple A inspection that was conducted
during January and February 1998 by Mine Safety and Health
Administration (MSHA) Inspector Alfonso Castaneda, Jr., at
Northwestern's Jewett Mine, a surface coal facility located
in Leon County, Texas. Although all of the citations were
initially characterized as S&S, three of the citations were
subsequently modified to delete the S&S designation
following MSHA Health and Safety Conferences conducted on
March 31 and April 28, 1998.
a. Citation No. 7599225
Citation No. 7599225 was issued by Inspector Castaneda
on February 12, 1998, for accumulations of loose coal and
fine coal dust, prohibited by section 77.1104, that
were located under the No. 1 Belt that transports coal
from the coal hopper to the coal transfer tower. The
cited condition was designated as S&S and the Secretary
proposed a civil penalty of $178.00. At the hearing,
Northwestern agreed to accept the citation as issued,
and it agreed to pay the $178.00 proposed civil penalty.
(Tr. 340). Accordingly, the parties' settlement of
Citation No. 7599225 was approved on the record and Citation
No. 7599225 shall be affirmed.
b. Citation No. 7599226
Castaneda testified that, during the course of his
inspection, he asked miners if they had any safety
concerns. A miner expressed concern about the adequacy
of the lights around the No. 28 dragline shoes. Conse-
quently, Castaneda performed an evening shift light check
at the No. 28 dragline. Each dragline has two sets of "star
wars" type shoes that move approximately eight feet per step
when it is necessary to maneuver the dragline.
Castaneda observed a shadow area adjacent to the
dragline shoes that he concluded was not adequately
illuminated by the dragline lights. However, Castaneda
did not take any objective measurements of the
illumination in the area. (Tr. 39). Castaneda stated
the shoe area is the location where the dragline oiler
mounts and dismounts the dragline. Castaneda testified
the oiler would have to step down a distance of
approximately six inches to two feet depending on the
terrain. Castaneda concluded it was reasonably likely
that the oiler would sustain a serious slip and fall
injury. Consequently, he issued Citation No. 7599226
alleging an S&S violation of the mandatory safety
standard in section 77.207, 30 C.F.R. � 77.207. This
mandatory standard requires, in pertinent part,
"illumination sufficient to provide safe working
conditions."
In defense of the citation, Northwestern elicited
contradictory testimony from Castaneda with regard to
whether Castaneda believed the illumination was
inadequate or whether he was relying on the miner's
complaint as the basis for issuing the citation.
Moreover, Castaneda conceded that Northwestern had
increased the wattage of the dragline lights from 400
watts each to 1,000 watts, and that Northwestern had
added additional lights to the dragline to increase the
number of lights from those that were initially
installed.
The Secretary did not call any miners to testify that
the illumination was inadequate. However, Northwestern
called employee Terry Mosely, a dragline oiler, who
opined that the light around the No. 28 dragline shoes
was adequate. (Tr. 74). Mosely testified the lighting
problem at the No. 28 dragline primarily was caused by
lights on the adjacent No. 27 dragline that was
operating in the same pit. Mosely testified the lights
from the No. 27 dragline were "blinding" personnel at
the No. 28 dragline.
At the hearing, the following bench decision was entered
with respect to Citation No. 7599226:
Citation No. 7599226, which cites a violation of section
77.207, states:
The dragline 28, Marion 8750, outside
illumination was not sufficient to provide
safe working conditions. The shadow cast
alongside the propel, shoe walkway, and on
the ground adjacent to the propel shoes made
it difficult for a person to safely walk and
mount the machine. The machine was in use at
the D pit.
**FOOTNOTES**
[1]: A violation of a mandatory safety standard is properly
characterized as S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an event,
i.e., an accident, resulting in serious injury. U.S. Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
[2]: As discussed infra, the Secretary concedes that
petroleum deposits in engine compartments and on transmissions
are unavoidable consequences of operating internal combustion
equipment, and, that not all such deposits constitute violations
of section 77.1104. Section 77.207 provides:
Illumination sufficient to provide safe
working conditions shall be provided in
surface structures, paths, walkways,
stairways, switch panels, loading and dumping
sites and working areas.
Thus, the operative phrase is "illumination sufficient
to provide safe working conditions." Whether the
illumination required by the mandatory standard is
adequate to provide safe working conditions must be
viewed in the context of the circumstances upon which
personnel will be working in the area being
illuminated. Here, the concern is for the oiler who is
called upon to mount and dismount the dragline via a
ladder of several steps that is installed adjacent to
the shoes of the dragline. The uncontroverted
testimony is the distance of descent from the bottom of
the ladder to the surface varies between six inches and
two feet depending on the terrain.
The dragline's initial 400 watt lights installed on
the dragline were replaced with 1,000 watt lights. In
addition, additional lights were installed. Although
there was reference made to Terry Mason, a dragline
oiler who reportedly complained to Castaneda about the
lights, Mason was not called by the Secretary as a
witness in support of the citation. On the other hand,
the respondent presented testimony from Terry Mosely,
another oiler employed by Northwestern, who opined the
lighting was adequate.
The adequacy of lighting, in the absence of objective
lumen measurements, is subjective. Although reasonable
people may differ with regard to what constitutes
adequate lighting conditions, Castaneda's opinion is
unsupported by, and outweighed by Moseley's testimony.
Given the Secretary's burden of proving the fact of a
violation, the evidence is inadequate to support
Citation No. 7599226. Accordingly, Citation No.
7599226 shall be vacated. (Tr. 342-45).
c. Citation No. 7599212
During the course of his inspection, Castaneda observed
Northwestern's D106 Komatsu bulldozer in the D pit
area. The bulldozer had a fire suppression system with
discharge hoses and nozzles on the right and left sides
of the dozer. The discharge hoses were connected to
metal canisters containing fire suppression chemicals
that were located on the right and left sides of the
dozer. Castaneda noted the actuating line was
disconnected from the right canister, thus disabling
the right side discharge hoses and nozzles. Castaneda
recalled the threads on the disengaged connection
fitting were rusted which gave him reason to believe
this condition had existed for a considerable period of
time.
Consequently, Castaneda issued Citation No. 7599212
citing an alleged violation of section 77.1110, 30 C.F.R. �
77.1110. This mandatory standard requires firefighting
equipment to be continuously maintained in a usable and
operative condition. Although the cited condition was
initially designated as S&S, it was subsequently
modified to a non S&S citation.
The respondent does not dispute that the right actuator
was disconnected and that the system was not fully
functional. However, the respondent asserts that the
right side canister system was redundant in that the
left side canister and hoses, alone, constituted an
effective fire suppression system. In addition, the
respondent argues that the actuator connection had not
been repaired because it recently had become
disconnected as evidenced by the fact that the
malfunction had not been noted in the preshift book.
Thus, the respondent asserts, somewhat inconsistently,
that although it believed the right side discharge
hoses to be superfluous, it would have repaired the
condition immediately had it been aware of the
situation. Finally, the respondent argues that fire
extinguishers, which were available to the dozer
operator, are sufficient to satisfy the cited mandatory
standard.
The following bench decision was issued for Citation No.
7599212:
Citation No. 7599212, citing a violation of section
77.1110, states:
The fire suppression system provided on the
Komatsu bulldozer, Model D375A, Company No.
106, was not maintained in an operative
condition. The actuator line had come loose
from the actuating cartridge. The bulldozer
was in use at the D Pit.
Section 77.1110 requires that "firefighting equipment
shall be continuously maintained in usable and
operative condition." I am sensitive to the
respondent's argument that the cited fire suppression
system was not mandatory and that, ordinarily, fire
extinguishers are adequate. However, once the
respondent took it upon itself to install this fire
suppression system, it had a continuing duty to
maintain it. It is undisputed that, while the system
was operative on the left side, it was inoperative on
the right side. Whether or not the left side alone was
sufficient to extinguish a fire, the malfunction on the
right side undoubtedly would cause a diminution in
effectiveness.
Turning to the respondent's assertion that the
condition had just occurred, notwithstanding
Castaneda's testimony concerning the corrosion on the
actuator connection, the Commission has noted the
failure to note a condition in a preshift book does not
establish the condition occurred after the shift began.
See Peabody Coal Company 14 FMSHRC 1258, 1262 (August
1992) citing Eastern Associated Coal Company, 13 FMSHRC
178, 187 (February 1991). To the contrary, the
condition may have been overlooked, or, it may not have
been considered hazardous in which case it would
continue to be excluded from the preshift notations.
In any event, the evidence supports the cited
violation. Accordingly, Citation No. 7599212 is affirmed,
and the $50.00 civil penalty proposed by the Secretary for
this non S&S condition shall be assessed for this citation.
(Tr. 345-47).
d. Citation No. 7599214
On January 28, 1998, Castaneda inspected the auxiliary
room of the Caterpillar backhoe, Model LS01. Although this
area is referred to as "a room" it is more accurate to
describe it as a very small tool shed that is located
under the operator's compartment. (See photographs
admitted as Exs. R-9A-9F). The area is accessed from a
door that is located to the left of a ladder that is affixed
to the side of the backhoe. The ladder is used to climb
from the surface onto the backhoe catwalk structure. The
dimensions of the subject "room" are 49 inches wide by 50
inches long. Upon opening the door to this area, Castaneda
observed tool boxes, wrenches, sledge hammers and various
machine parts lying on the floor.
Based on his observations, Castaneda issued Citation No.
7599214 citing the respondent for an alleged violation
of section 77.208(a), 30 C.F.R. � 77.208(a), that
provides, "materials shall be stored and stacked in a
manner which minimizes stumbling or fall of material
hazards." Although the citation was issued as S&S, it
was subsequently modified to delete the S&S designation
as a result of a Health and Safety Conference after
MSHA conceded the cited area "was not a high traffic
area" where exposure to serious injury was likely.
Indeed.
At the hearing, the following bench decision was issued
with respect to Citation No. 7599214:
The subject area is approximately 4 feet by 4 feet.
The cited standard requires that materials be stored
and stacked in a manner so as to minimize stumbling and
falling. The standard must be reasonably interpreted
to require that tools and other materials be kept in a
corner or along a wall so that mine personnel can
traverse an area without tripping and falling.
However, this area, which is analogous to a truck bed
where tools are stored, is not a walk through area as
the entire area can be reached by standing in place.
Thus, MSHA's characterization of this space as "not a
high traffic area" is disingenuous in that it is not a
traffic area at all.
To determine if a broadly worded mandatory standard
applies to a given factual situation the Commission
applies the reasonably prudent person test. Ideal
Cement Company, 12 FMSHRC 2409, 2416 (November 1990).
A reasonably prudent person familiar with the purposes
of the cited mandatory standard would not think the
standard was applicable to this situation. MSHA's
attempt in this instance to micro manage the placement
of tools in this closeted area trivializes the Mine
Act, and, in so doing, undermines its purpose.
Accordingly, Citation No. 7599214 shall be vacated.
III. Further Findings and Conclusions
The remaining three citations concern alleged violations
of section 77.1104 as a result of Castaneda's observations of
fuels, oils, or lubricants on internal combustion engines,
frames and transmissions of equipment used in the mining
process. Section 77.1104 provides:
Combustible materials, grease, lubricants, paints, or
flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.
Thus, in considering whether violations of section 77.1104
have occurred the Secretary must demonstrate: (1) the presence
of combustible material; (2) that the combustible material was
"allowed" to accumulate; and (3) that the accumulations are
located in an area "where they can create a fire hazard."
In evaluating the merits of the citations discussed below,
the first element of a section 77.1104 violation is present in
that it is undisputed that deposits of hydraulic and lubricating
oils and diesel fuel are combustible. The third element requires an
analysis of potential ignition sources and their proximity to the
combustible material.
However, the second element of section 77.1104, namely
whether the cited deposits are "accumulations," and, if so,
whether they were "allowed" to accumulate, raise difficult issues
that must be resolved on a case by case basis. For example, the
Secretary's characterization of areas of oil deposits on engines,
hoses and frames of heavy duty mining equipment as
"accumulations" begs the question. In this regard, Inspector
Castaneda conceded not all oil deposits on engines constitute
violations of section 77.1104, stating that the issue is one of
degree. (Tr. 208-09, 231-33). Moreover, Castaneda admitted
internal combustion engines are designed to operate safely
despite seepage from gaskets and hoses, and, that engine deposits
are commonplace and not ignitable from engine heat. (Tr. 212).
Specifically, Castaneda testified:
COURT: The issue of oil, lubricants, hydraulic oil, in
an engine compartment, in your experience, I assume you've
frequently come into contact with oil on trucks; right?
A. Yes.
COURT: If you looked at the engine[s] of . . . heavy duty
truck[s], what percentage of them would be clean as opposed
to engines with residue or oil deposits on them? Isn't
it a common occurrence to have oil deposits on an engine
particularly engines, backhoes, this type of equipment?
Isn't it hard to keep it free of residue?
A. On all engines, yes.
COURT: So there was something about this condition that
distinguishes normal residue; is that --
A. About the amount that I would normally expect to see.
COURT: Would the heat from the engine be a source of ignition?
A. Just the ambient heat?
COURT: Yes, from the engine itself.
A. No.
COURT: So the materials on the engine itself, the engine
running, the engine wouldn't be an ignition source?
A. No. (Tr. 211-12).
Although the subject citations primarily concern
"accumulations" of oil deposits, the citations dealing with the
backhoe and coal hauler also concern deposits of fine coal dust.
These pieces of equipment operate "knee deep" in outdoor, open
coal pits. In this regard, a video was admitted depicting Jewett
Mine heavy duty equipment operating in coal beds. See Ex. R-26.
Castaneda repeatedly admitted it is impossible to prevent fine
coal dust deposits on the frames and in the compartments of such
equipment. (See, e.g., Tr. 193-94, 236, 283-86). For example,
Castaneda testified:
COURT: When we saw the video [Ex. R-26] on the general
operations of the Jewett Mine, am I correct that these
haulers sometimes actually ride in these coal pits; is
that correct?
A. They always go to the coal pits.
COURT: That's what I'm saying. They're in
the coal pit?
A. Yes, sir.
COURT: So they're basically riding through extensive
areas of coal?
A. Yes, sir, they are.
COURT: How do you keep any degree of coal particles
from "accumulating" underneath the underbelly of a hauler
if it's riding through piles of coal?
A. You're not.
COURT: How do you determine when you're doing an in-
spection what is and what isn't a violation with regard
to the coal that's on the equipment itself?
A. I have to make a decision on whether it is or [is]
not when I'm looking.
COURT: Whether it's normal accumulations or
over and above?
A. Whether it's normal accumulations or it's
above and beyond. All these haulers, they
haul coal. You're going to get some coal
dust on them, but if you don't have the oil
and something to make it stick to the frames
or the equipment, then coal dust, whenever
it's dry, it can blow off as soon as it gets
on the road.
COURT: I see. Again these haulers, I think
of a hauler as a dump truck that's loaded,
but these particular haulers actually drive
through mounds of coal in the pit; is that
right?
A. Not in the pit.
COURT: I remember in the video that I saw
areas where they seemed to be riding over --
A. They're riding on top of the solid coal,
and then the backhoe or the . . . will rake
the coal out and swing over and dump it into
the bed of the truck.
COURT: Okay. So what I recall now was that
it was riding on the areas of solid coal.
A. And then it goes on a dirt road to the
coal stop light where, depending upon what
the plant wants, they'll either go over to
[inaudible] or they'll go over to the coal
stock pile.
COURT: Let me ask you this question. This
issue of transmission[s], I'm thinking in
terms of [a] transmission mechanism, the rear
end of a vehicle. In your opinion, is it
common to have residue of let's say seepage
of transmission fluids, oil, in and around
the transmission boxes and the rear end of
these vehicles, you know, the underbelly of
the vehicle?
A. Yes.
COURT: If you look at the underbelly of such
a vehicle, and you saw, as I said, that it
was coated, not with measurable amounts, but
just coated in the sense that there was a
deposit of transmission fluid and hydraulic
oils, again on the transmission and the rear
end of a vehicle like this, do you consider
that to be a violation of 77.1104?
A. This is a combination of coal dust and
oil or coal dust without oil?
COURT: If you have any degree of residue, I
would assume . . . in fact, that's the
quandary that I have; if you have any degree
of residue and you're riding through areas of
coal, how do you prevent some dust from
adhering to the coating that's not uncommon
that forms on transmissions and rear ends of
vehicles:
A. You will not prevent it. You're going to --
COURT: Is that a violation then, do you think?
A. It would depend upon the degree; I mean,
the amount of accumulation; just merely
having dry coal dust on a metal frame in its
normal operations, I would not think that I
would issue a citation on that.
COURT: What about the coating of coal dust
and hydraulic fluids on the transmission and
rear end, again the underbelly of the
vehicle?
A. It would depend upon the degree.
COURT: But these are not easy decisions, are they?
A. Not to me they're not.
COURT: I appreciate that these are difficult
calls, and that's what we're grappling with
here today. (Tr. 283-86).
In the context of the above analysis and testimony, we
now consider the subject section 77.1104 citations.
a. Citation No. 7599213 - Hitachi Backhoe B008
During the course of his inspection, Castaneda opened the
door to the engine compartment of the Hitachi backhoe.
Castaneda observed an area of hydraulic oil and lube oil
about 3 feet by 3 feet in size "mostly on the surfaces of
the hose and frame" along with some fine coal dust. The
backhoe was in operation and had fine coal dust on it
because it was loading haulers. (Tr. 193-4).
Castaneda considered the oil deposits in the engine
compartment, and on and around the hydraulic pump motors
that were located outside the engine compartment at the
front of the backhoe, to be excessive and more than a
"normal accumulation." (Tr. 232). Although Castaneda did
not identify a specific leak in the engine compartment,
Castaneda determined, based on information provided by
Northwestern's maintenance supervisor, Ronald Carmichael,
that the hydraulic pump at the front of the backhoe was
leaking because an O-ring had been left off after the pump
had been overhauled. (Tr. 194, 214-15).
Consequently, Castaneda issued Citation No. 7599213,
alleging a violation of section 77.1104, because:
Combustible materials were allowed to accumulate on the
Hitachi Backhoe, B008, where they created a fire hazard.
Hydraulic oil, lube oil and fine coal dust had accumulated
on the engine, pumps, hoses, and frame of the backhoe. The
backhoe was in use at the D Pit loading coal haulers.
Castaneda concluded the violation was S&S although he was
unable to provide convincing testimony concerning any potential
ignition sources in the vicinity of the cited accumulations.
Flammable liquids have a flash point of less than 100 degrees
Fahrenheit. Combustible materials, such as the cited oil
lubricants, have flash points above 100 degrees Fahrenheit. As
previously noted, Castaneda conceded the ambient heat from the
engine was an insufficient ignition source. (Tr. 212). Although
he relied on the exhaust manifold as a potential source of
ignition he did not explain why the exhaust heat source
is more dangerous than the heat generated by the engine that is
in direct contact with the cited deposits. Castaneda also stated
that insulation on electrical wiring that could become damaged
and create an ignition spark could be another ignition source
although he admitted a defective spark plug wire was not a
significant source of ignition. (Tr. 214).
i. Discussion and Evaluation
As a general proposition, not all combustible accum-
ulations are prohibited accumulations, particularly at a surface
mine where underground considerations of permissible equipment,
coal dust suspension and propagation, are not safety concerns.
(See 30 U.S.C. � 678(i) pertaining to permissible equipment
in underground mines; see also Tr. 210, 301-02). For example,
a coal stockpile or a wet oil spot on the ground are not
prohibited accumulations.
Moreover, oil deposits on engines, hydraulic motors and
transmissions on surface mine equipment must be viewed
in context because they are not "accumulations" as that
term is normally applied to coal dust accumulations.
Unlike coal dust that can accumulate in depth over a
period of time, oil "accumulations" drip off on the
ground, or are vaporized from the heat of the engine.
(Tr. 234-36).
The Commission has held that a violative "accumulation"
exists "where the quantity of combustible materials is
such that, in the judgement of the authorized
representative of the Secretary, it likely could cause
a fire or explosion if an ignition source were
present." Old Ben Coal Co., 2 FMSHRC 2806, 2808
(October 1980). The mine inspector's judgement is
subject to a challenge before the administrative law
judge. Id. at 2808 n.7. The inspector's judgement
must be reviewed judicially by applying an objective
test of whether a reasonably prudent person, familiar
with the surface mining industry and the protective
purpose of the cited mandatory safety standard, would
have recognized the hazardous condition that the
regulation seeks to prevent. Utah Power & Light
Company, Mining Division, 12 FMSHRC 965, 968 (May
1990).
Having said that not all combustible accumulations are
prohibited, we turn to the provisions of the cited
mandatory standard in section 77.1104. As an initial
matter, it is important to recognize the distinction
between establishing the fact of occurrence of a
section 77.1104 violation, and establishing that such a
violation is S&S. To establish the fact of occurrence,
the Secretary must show that an operator "allowed"
combustible materials to accumulate at a location and
in a manner that are ill advised. In other words,
routine engine oil deposits, or other lubricating oil
deposits and residues, that are a consequence of normal
operations do not constitute a violation of section
77.1104. However, a discrete operational defect,
manifest by excessive accumulations of leaking
hydraulic oils and lubricants, constitutes a violation
of section 77. 1104. Here, the evidence reflects
combustible material was permitted to accumulate on the
subject backhoe by virtue of a defective or missing O-
ring on the hydraulic pump. Consequently, the
Secretary has demonstrated a violation of section
77.1104.
Turning to the S&S issue, the Secretary bears the
burden of proving the S&S nature of a violation. Union
Oil Co. Of Cal., 11 FMSHRC 289, 298 (March 1989); U.S.
Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). An
S&S violation of section 77.1104 requires a demonstration
of a "confluence of factors," such as presence of a fuel
source in proximity to a potential ignition source, to
establish a reasonable likelihood that ignitions or
explosions will occur. See Texasgulf, Inc., 10 FMSHRC
498, 501 (April 1988). As discussed above,
Castaneda's testimony with regard to the likelihood of
ignition sources was inconsistent and unconvincing.
Given Castaneda's concession that not all oil deposits
on engines and transmissions are violations, it is
clear that such deposits are not significant risks of
fire.[3] Accordingly, Citation No. 7599213 shall be
modified to delete the S&S designation.[4]
The Secretary initially proposed a civil penalty of
$178.00 for Citation No. 7599213. Although the S&S designation
has been deleted, the degree of Northwestern's
negligence was relatively high in view of its failure
to replace the missing O-ring. Accordingly, consistent
with the penalty provisions of section 110(i) of the
Mine Act, a civil penalty of $100.00 shall be imposed
for this violation.
b. Citation No. 7599215 - Light Plant No. 15
Northwestern uses light plants at various locations at
the mine to provide additional lighting at night. A light plant
consists of lights mounted on a small trailer-like device
that can be moved from location to location as needed.
(Exs. R-11A-E; Tr. 251). The lights are powered by a diesel
engine which starts and stops automatically by a photocell.
In the morning, when sufficient light appears, the photocell
will cause the engine to stop and the lights to go out. As
dusk appears and it becomes dark, the photocell causes the
engine to start and the lights to come on. In addition, the
light plant is equipped with two warning lights. An amber
light comes on when the light plant is ready and could start
at any time. When fuel becomes low, a blue light begins
flashing to indicate that additional fuel is needed.
Castaneda examined the light plant located on the highwall
of the D Pit that was used at night to provide additional
lighting to the pit floor below. The light plant was not
operating at the time. No employee worked near the light
plant. The nearest employee working was approximately 150 to
200 yards away. (Tr. 270).
Castaneda testified that he opened the engine door and saw
evidence of diesel fuel running down the side of the engine.
(Tr. 253). Castaneda determined there was a leak in a
return line that recirculates excess diesel fuel that is not
sprayed into the engine by the injectors. The respondent's
safety coordinator, David Evans, admits there was a leak in
the diesel fuel line that caused some diesel fuel to leak
onto the side of the engine.
As a result of his observations, Castaneda issued Citation
No. 7599215 citing a violation of section 77.1104 for
allowing combustible material, including diesel fuel, to
accumulate where it could cause a fire hazard on the Light
Plant No. 15. In view of the fact that employees did not
work in proximity to the light plant, Castaneda designated
the violation as non S&S in nature. The Secretary proposes
a civil penalty of $50.00 for this violation.
As discussed above, a violation of the mandatory safety
standard in section 77.1104 occurs if the respondent
allowed, by virtue of a discrete operational defect,
combustible materials to accumulate. Here the respondent
permitted diesel fuel leakage, albeit in small amounts, to
run down the side of the engine. Operating the light plant
in a state of disrepair, given the resultant diesel fuel
accumulation, constitutes a violation of section 77.1104.
Accordingly, Citation No. 7599215 shall be affirmed and the
$50.00 civil penalty proposed by the Secretary shall be assessed.
c. Citation No. 7599216 - Coal Hauler
Castaneda and David Evans, Northwestern's safety
coordinator, inspected coal hauler No. 001 at the D Pit and
observed some oil dripping down the side of the transmission.
Evans testified that occasional transmission oil discharge
through the transmission's oil breather was a normal occurrence.
Northwestern's maintenance supervisor, Ronald Carmichael opined
it is impossible to operate Euclid coal haulers, because of their
design, without getting some transmission oil through the breather
onto the outside of the transmission. Tr. 333, 338. The Euclid
transmission is designed to operate as a brake when going down a
slope. Downshifting, as well as operating under a heavy load,
causes heat buildup in the transmission. The heat causes the
transmission fluid to expand which results in the release of
"little burps" from the breather. Tr. 333-334.
**FOOTNOTES**
[3]: As discussed infra, the conclusion that Castaneda
failed to provide persuasive testimony that an explosion or
fire was reasonably likely to occur is consistent with MSHA's
non S&S determination in Citation No. 7599216 that there were
no "obvious ignition sources" near "hydraulic oil and coal
dust . . . on the transmission, hoses and frame of [a Euclid]
coal hauler." (Ex. G-5, p.3).
[4]: In her post-hearing Proposed Findings, the Secretary
refers to a Mine Safety and Health Administration Technical
Support report that noted there were 106 mobile diesel equipment
fires during the years between 1978 and 1983. (Sec.'s Br. at
p.9-10). This information has not been considered because it was
not presented at the hearing. Moreover, the circumstances behind
these reported fires are unknown and they are, therefore, of
little evidentiary value in determining whether the cited
condition was likely to contribute to a fire and resulting
injury. As a result of his observations, Castaneda issued
Citation No. 7599216 alleging a violation of section 77.1104
because:
Combustible materials were allowed to accumulate
on the Euclid coal hauler, Company No. 001, where
they could create a fire hazard. Hydraulic oil
and coal dust was present on the transmission,
hoses and frame of the coal hauler. The coal
hauler was in use at D Pit.
Although the citation was initially issued as S&S, it was
modified to delete the S&S designation on May 4, 1998, as a
result of a Health and Safety Conference. In modifying the
citation, it was noted that, "the accumulation on this unit was
not excessive nor was it in an area where there were obvious
ignition sources." (Ex. G-5, p.3).
At the hearing Castaneda stated he inspected two Euclid
haulers at the Jewett Mine. One Euclid was observed at the fuel
station with hydraulic oil leaking out of a rear oil tank onto
the ground in the nature of an overflow. Another Euclid was
inspected at the D Pit located six miles from the fuel station.
The Euclid at the D Pit had the transmission leak. The
respondent contends Castaneda has confused the extensive oil
leaking to the ground from the Euclid at the fuel station with
the normal small amount of transmission fluid discharged from the
breather on the cited Euclid at the D Pit. Although Castaneda
insists the cited Euclid had an extensive transmission leak,
Castaneda's recollection of his inspection that occurred
approximately one year earlier is undermined by the results of
the Health and Safety Conference that was conducted shortly
after the subject inspection. Consequently, the evidence
supports the testimony of Evans and Carmichael that the cited
transmission discharge was "not excessive" or otherwise
extraordinary.
As previously discussed, normal petroleum discharges and
deposits through breathers, or seepage through hoses and gaskets,
do not constitute violations of section 77.1104 because the
operator has not "allowed" combustible accumulations to occur.
It is also significant that MSHA concedes "there were no
obvious ignition sources" in the vicinity of the cited "leak."
The absence of a showing of a potential ignition source also
precludes a finding of a section 77.1104 violation because the
plain language of this standard requires a showing that the cited
accumulations "can create a fire hazard." Accordingly, Citation
No. 7599216 shall be vacated.
ORDER
In view of the above, IT IS ORDERED that Citation Nos.
7599226, 7599214 and 7599216 ARE VACATED.
IT IS FURTHER ORDERED that, pursuant to the parties'
settlement agreement, Citation No. 7599225 IS AFFIRMED.
IT IS FURTHER ORDERED that Citation Nos. 7599212 and 7599215
ARE AFFIRMED.
IT IS FURTHER ORDERED that Citation No. 7599213 IS MODIFIED
to delete the significant and substantial designation.
ACCORDINGLY, IT IS ORDERED that Northwestern Resources pay
a total civil penalty of $378.00 within 45 days of the date
of this Decision. Upon timely receipt of payment, Docket
No. CENT 98-153 IS DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Ned Zamarripa, Conference and Litigation Representative, U.S.
Department of Labor, Mine Safety and Health Administration,
P.O. Box 25367, Denver, CO 80225 (Certified Mail)
Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C.,
1900 Norwest Plaza, P.O. Box 2800, El Paso, TX 79901-1441
(Certified Mail)
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