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[DOCID: f:ct9825.wais]
MINERAL TECHNOLOGY CORPORATION
June 12, 1998
CENT 98-25-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
June 12, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-25-M
Petitioner : A.C. No. 39-00670-05519
:
v. : Dakota Quartz Plant
:
MINERAL TECHNOLOGY CORPORATION, :
Respondent :
DECISION
Appearances: Ann M. Noble, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Robert L. Cullum, Mineral Technology
Corporation, Custer, South Dakota, for
Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of
penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against
Mineral Technology Corporation ("MinTec"), 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").
The petition alleges three violations of the Secretary's
safety standards. A hearing was held in Rapid City, South
Dakota.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Dakota Quartz Plant produces high purity quartz
for the semiconductor industry. (Tr. 58-60). The plant
receives raw material from two sources. Quartz ore is
shipped from North Carolina, Wyoming, and the Black Hills.
The plant also recycles quartz glass and fused quartz
cullet.[1] This material is shipped to the plant from all
over the world. About 60 percent of the raw material
processed at the plant is fused quartz cullet. MinTec
grinds and purifies the raw material at the plant. The
plant is very small and processes small quantities of
material.
The company no longer mines quartz ore. (Tr. 59).
MinTec uses a number of techniques to grind and purify the
cullet, quartz glass, and quartz ore that is shipped to the
plant. Part of the purification process involves screening
material and passing the material through an electro-magnet
to remove impurities.
Mr. Robert L. Cullum, President of MinTec, stated that
he is "not certain" that the plant is subject to the
jurisdiction of the Mine Act. (Tr. 4). He stated that he
did not contest MSHA's jurisdiction in this proceeding.
MinTec did not offer evidence on this issue except Mr.
Cullum's description of the plant. The question whether the
plant is subject to the jurisdiction of the Mine Act is
always at issue in a proceeding before the Commission. As
discussed below, I conclude that MSHA had jurisdiction to
inspect the Dakota Quartz Plant at the time the citations
were issued.
The starting point for an analysis of Mine Act
jurisdiction is the definition of the term "coal or other
mine," in section 3(h)(1). A coal or other mine is defined,
in pertinent part, as "(C) lands, ... structures,
facilities, equipment, machines, tools, or other property
... on the surface or underground, used in ... the work of
extracting minerals from their natural deposits, ... or
used in ...the milling of such minerals...." 30 U.S.C.
� 802(h)(1). The Senate Committee that drafted this
definition stated its intention that "what is considered to
be a mine and to be regulated under this Act be given the
broadest possible interpretation, and ... that doubts be
resolved in favor of inclusion of a facility within the
coverage of the Act." S. Rep. No. 181, 95th Cong., 1st
Sess. 14 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health
Act of 1977 at 602 (1978); see also Donovan v. Carolina
Stalite Co., 734 F.2d 1547 (D. C. Cir. 1984).
The issue is whether MinTec's grinding, screening, and
purifying of quartz-bearing material is the "milling" of
"minerals." The term "milling" is not defined in the Mine
Act. The MSHA-OSHA Interagency Agreement defines "milling"
as "the art of treating the crude crust of the earth to
produce therefrom the primary consumer derivatives."
44 Fed. Reg. 22827, 22829 (April 17, 1979). The
Interagency Agreement goes on to provide, in pertinent
part, that "milling consists of one or more of the
following processes: crushing, grinding, pulverizing,
sizing, concentrating, washing, drying, ...." Id. It is
clear that at least some of these activities occur at the
Dakota Quartz Plant. In addition, it is undisputed that
some of the materials that are milled at the plant are
minerals extracted from the "crude crust of the earth"
from their natural deposits. Thus, I find that the plant
is subject to Mine Act jurisdiction for purposes of this
case. If the plant processed only cullet and quartz glass,
it would not be subject to the jurisdiction of the Mine Act.
It is important to keep in mind that the Commission and
the courts have uniformly held that the Mine Act is a strict
liability statute. See, e.g. Asarco v. FMSHRC,
868 F.2d 1195 (10th Cir. 1989). "[W]hen a violation of a
mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty." Id. at 1197. In
addition, the Secretary is not required to prove that a
violation creates a safety hazard, unless the safety
standard so provides.
The [Mine Act] imposes no general requirement that a
violation of MSHA regulations be found to create a safety
hazard in order for a valid citation to issue. If
conditions existed which violated the regulations,
citations [are] proper.
Allied Products Co., 666 F.2d 890, 892-93 (5th Cir. 1982)
(footnote omitted). The negligence of the operator and the
degree of the hazard created by the violation are taken
into consideration in assessing a civil penalty under
section 110(i). 30 U.S.C. � 820(i).
A. Citation No. 4644826
On August 7, 1997, MSHA Inspector John R. King issued
a section 104(a) citation alleging a violation of
30 C.F.R. � 56.12008. In the citation, the inspector
alleged that the energized 220-volt line entering the No. 1
magnet in the mill was not properly bushed or adequately
insulated where it passed into the magnet. The citation
states that the outer jacket and the bushing had worn away,
subjecting the inner insulation to possible damage. It
states that such damage could potentially cause a short in
the system. Inspector King determined that the violation
was of a significant and substantial ("S&S") nature and
that MinTec's negligence was moderate. The Secretary
proposes a penalty of $178 for the alleged violation. The
safety standard requires that power wires and cables be
adequately insulated where they pass into electrical
compartments. It further requires that, where insulated
wires pass through metal frames, the holes shall be
substantially bushed with insulated bushings.
Inspector King testified that the outer jacket on the
power line had pulled out of the metal frame of the
electromagnetic separator and a bushing was not present in
the opening. (Tr. 12; Ex. P-3). The opening in the metal
frame was about an inch in diameter. He stated that the
insulated wires could become damaged due to vibration. The
purpose of a bushing is to keep the power wires locked into
place so that they do not come loose or sustain mechanical
damage. (Tr. 15). Inspector King further testified that
the condition was readily visible. (Tr. 14). He believes
that a bushing had been present in the past but that it had
been pulled loose or had fallen out. (Tr. 17). He
testified that the condition presented an electric shock
hazard if bare wires became exposed as a result of the
vibration. The inspector testified that the condition was
adjacent to a walkway and that if an employee were to slip
and fall, he could come in contact with any bare wires or
nearby metal components and suffer an electric shock.
(Tr. 18).
Inspector King determined that the violation was the
result of MinTec's moderate negligence because he assumed
"that the condition had existed for quite some time."
(Tr. 19). He believes that the violation was S&S because
it was reasonably likely that "a fatality could occur."
(Tr. 20). He also relied on the fact that the continuity
resistance testing of the grounding system had not been
conducted during the past year, that there was exposed
metal in the area, and that the violation was near a
walkway. Id. The condition was terminated immediately.
The magnetic separator is in an isolated room above storage
tanks. (Tr. 22). This room has only one entrance. MinTec
has a company policy that no employee is to enter the room
containing the magnetic separator until the electromagnet
is shut down. MinTec de-energized the electromagnet when
Inspector King inspected the area but he was not aware that
it was the policy of the company to shut it down whenever
anyone enters the area. The inspector testified that he
would have reconsidered the gravity of the violation had
he known about the company's policy. (Tr. 31). Mr. Cullum
testified that the company instituted this policy because
the room often gets very dusty when the magnetic separator
is operating and the company does not want to expose its
employees to the dust. (Tr. 61). He stated that there are
no exceptions to this policy. He further testified that
employees rarely enter the room containing the magnetic
separator. (Tr. 62). He stated that he did not know how
long the cited condition existed.
MinTec does not contest the fact that a bushing was not
present or that the outer jacket covering the wires had
pulled back. I find that the Secretary established a
violation of the safety standard. MinTec contests the
inspector's S&S and negligence findings. I find that,
given the particular conditions present in this case, the
violation was not S&S. I reach this conclusion because the
violation was in an isolated location and employees are not
in the area when the electrical wires are energized. It
was not reasonably likely that the hazard contributed to by
this violation would result in an injury, assuming
continued operations. Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984). The vibration of the machinery had not
exposed any bare wires. Even if an employee entered the
area while the equipment was energized, in violation of
company policy, the exposure to the hazard would not be
great. It is unlikely that anyone would suffer an
electrical shock, given the low level of exposure. I find
that the violation was moderately serious.
I find that MinTec's negligence was moderate to low.
Negligence is conduct that is "inadvertent," "thoughtless,"
or "inattentive." Youghiogheny & Ohio Coal Co.,
9 FMSHRC 2007, 2010 (December 1987). In this case, I
credit the testimony of Inspector King that the condition
had existed for some period of time. Section 56.18002
requires mine operators to examine each working place at
least once a shift for "conditions which may adversely
affect safety or health." MinTec's examinations should
have detected this violation. The fact that employees are
required to shut down the magnetic separator before
entering the area is a mitigating factor. Taking into
consideration the civil penalty criteria, a penalty of
$50.00 is appropriate for this violation.�B. Citation
No. 4644827
On August 7, 1997, Inspector King issued a section
104(a) citation alleging a violation of
30 C.F.R. � 56.12028. In the citation, the inspector
alleged that the continuity and resistance of grounding
systems had not been tested for a 12-month period. The
citation states that the most recent test had been
conducted on July 1, 1996. Inspector King determined that
the violation was S&S and that MinTec's negligence was
moderate. The Secretary proposes a penalty of $220 for the
alleged violation. As pertinent here, the safety standard
requires that continuity and resistance of grounding
systems shall be tested at least annually and that a record
of such tests be kept.
Inspector King testified that he asked employees at the
plant for a copy of the testing records and that they could
only produce the record for July 1, 1996. (Tr. 34). These
employees could not remember whether the test had been made
and believed that it had not. Inspector King testified
that if an operator fails to conduct this test, the
integrity of the grounding system remains unknown. If
there is an electrical short, the grounding system is
designed to return the power to its source. Because the
grounding test was not performed, it is possible that a
ground fault would not trip the breakers and one or more
employees could be injured. (Tr. 37-39).
Inspector King determined that MinTec's negligence was
moderate because it had been cited for a violation of this
standard in 1991 and 1995. He determined that the
violation was S&S because it is highly likely that an
employee will be seriously injured if a grounding system is
faulty. He testified that there have been fatal accidents
at mines under similar circumstances where these tests
were not performed. (Tr. 35).
Mr. Cullum stated that it is possible that the testing
was done but not recorded. (Tr. 63). Don Smith, the
employee who did this testing, retired from the company.
Cullum testified that he asked Mr. Smith about this test
and Smith thinks that he did the test but did not record
it. Id. Mr. Cullum further stated that in the previous
instances when MinTec was cited for failing to conduct the
test, the test had been completed but not recorded.
I find that the Secretary established a violation of
the safety standard. I also find that it is likely that
the test was never completed. Failure to complete the
required test can contribute to a serious safety hazard.
If a fault developed in the electrical system, employees
would not be protected from shock hazards. The violation
is S&S because it is reasonably likely that if the test is
not completed an employee will be seriously injured,
assuming continued operations. The violation was caused
by MinTec's moderate negligence. I reach this conclusion
based in part on the testimony of Inspector King that
MinTec violated this same safety standard on two occasions
in the recent past. A penalty of $150 is appropriate for
this violation.�C. Citation No. 7915033
On August 7, 1997, Inspector King issued a section
104(a) citation alleging a violation of
30 C.F.R. � 56.12030. In the citation, the inspector
alleged that the energized 110-volt electrical outlet by
the No. 2 magnet had the hot and ground wires reversed
and the 110-volt electrical outlet in the field office by
the coffee pot had the hot and neutral lines reversed.
Inspector King determined that the violation was S&S and
that MinTec's negligence was moderate. The Secretary
proposes a penalty of $220 for the alleged violation.
The safety standard provides that when a potentially
dangerous condition is found it shall be corrected before
equipment or wiring is energized.
Inspector King testified that he used an outlet tester
during his inspection to test the electrical outlets at the
plant. (Tr. 47). The tester indicates whether any of the
wires attached to an outlet are reversed. The violation
presents a potential hazard because electricity may
continue to run into the frame of any device that is
plugged into the socket, even after it is turned off. A
hazard is presented if there is a fault in the device being
used. In such an event, an employee could suffer a serious
injury. He believes that the violation is S&S. (Tr. 50).
He determined that the violation was caused by MinTec's
moderate negligence because the continuity and resistance
test, described above, should have revealed this violation
and the fact that testing for reverse polarity is easy to
perform. (Tr. 51).
Mr. Cullum testified that these electrical outlets had
been present in the same condition for at least 20 years.
He also stated that no other MSHA inspector had tested
these outlets during past inspections. (Tr. 52, 66-67).
He contends that the violation is not very serious and that
the company was not negligent.
I find that the Secretary established a violation.
Whether the violation is S&S is a close question. On one
hand, the inspector testified that this type of violation
can cause a fatal injury. On the other hand, this
condition had existed for 20 years in the case of the
outlet by the magnet and 30 years in the case of the outlet
in the field office. The coffee pot is used at the field
office outlet and electric hand tools may be used in the
outlet at the magnet. I find that the violation was not
S&S. While it is possible that an employee could suffer an
electric shock if the coffee pot or hand held tools
malfunctioned, such an event was not reasonably likely in
this case. The violation was moderately serious. I also
find that MinTec's negligence was very low. The cited
conditions had existed for a long time, had not been
previously cited by MSHA, and had not caused an injury to
an employee. The condition should have been revealed with
a thorough continuity and resistance test. Nevertheless,
MinTec was not aware of the violation and, given the length
of time that the violation existed without detection by MSHA
or the company, MinTec's failure to correct the cited
conditions was not the result of its moderate negligence.
A penalty of $50 is appropriate.
II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets out six criteria to
be considered in determining appropriate civil penalties.
I find that seven citations were issued at the Dakota
Quartz Plant between August 1995 and August 1997.
(Ex. P-8). The Dakota Quarts Plant is a small facility
and MinTec is a small operator. All of the violations
were rapidly abated. The penalties assessed in this
decision will not have an adverse effect on MinTec's
ability to continue in business. The gravity and
negligence criteria are discussed separately for each
violation. Based on the penalty criteria, I find that
the penalties set forth below are appropriate for the
violations.
III. ORDER
Based on the criteria in section 110(i) of the Mine
Act, 30 U.S.C. � 820(i), I assess the following civil
penalties:
Citation No. 30 C.F.R. � Penalty
4644826 56.12008 $50.00
4644827 56.12028 150.00
7915033 56.12030 50.00
Accordingly, the citations listed above are hereby
AFFIRMED as modified above, and Mineral Technology
Corporation is ORDERED TO PAY the Secretary of Labor the
sum of $250.00 within 40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
Robert L. Cullum, President, Mineral Technology Corp., Box
872, Custer, SD 57730 (Certified Mail)
RWM
[1] The term "cullet" is defined as broken or waste glass
produced at a glassworks. A Dictionary of Mining, Mineral,
and Related Terms, 289 (1968).