<DOC>
[DOCID: f:k94-1208.wais]
BROKEN HILL MINING COMPANY
March 10, 1995
KENT 94-1208
THIS DOCUMENT HAS BEEN CORRECTED FROM THE VERSION PRINTED
IN THE BLUE BOOK.
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 10, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-1208
Petitioner : A. C. No. 15-15637-03560 S
v. :
: No. 1 Mine
BROKEN HILL MINING COMPANY, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 94-1209
Petitioner : A. C. No. 15-15637-03559 M
v. :
: No. 1 Mine
DONALD KIDD, employed by :
BROKEN HILL MINING COMPANY, :
INCORPORATED, :
Respondent :
DECISION
Appearances: Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for Petitioner;
Hobart W. Anderson, President, Broken Hill
Mining Co., Inc., Sidney, Kentucky, Pro Se, for
Respondents
Before: Judge Hodgdon
These cases are before me on petitions for assessment
of civil penalty filed by the Secretary of Labor, acting
through his Mine Safety and Health Administration (MSHA),
against Broken Hill Mining Co., Inc. and Donald Kidd, an
employee of Broken Hill, pursuant to Sections 105 and 110
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� � 815 and 820. The petition against the company alleges
a violation of the Secretary's mandatory health and safety
standards and seeks a penalty of $2,500.00. The petition
against Mr. Kidd alleges a violation of Section 317(c) of
the Act, 30 U.S.C. � 877(c), and seeks a penalty of $250.00.
For the reasons set forth below, I modify and affirm the
citation against the company and assess a penalty of
$1,000.00 and I vacate the citation against Mr. Kidd and
dismiss the petition.
The cases were heard on January 18, 1995, in St.
Albans, West Virginia. MSHA Inspectors Buster Stewart and
Gary Gibson and MSHA Coal Mine Safety and Health Specialist
Cheryl S. McGill testified for the Secretary. Donald Kidd
and Charles R. Lavender, Jr. testified on behalf of Broken
Hill Mining.
FACTUAL SETTING
The facts in this case are undisputed. On May 19,
1995, MSHA Inspectors Stewart, Gibson and Jimmy Brown
arrived at the Broken Hill Mine No. 1 to conduct a spot
inspection for smoking materials. After directing the mine
employee on the surface not to announce their presence to
the people in the mine, Stewart and Gibson went into the
mine. On arriving at the working section, the inspectors
had the mine superintendent assemble all of the miners and
conduct a search for smoking materials.
When that was completed, those miners who had lunch
buckets were directed to get them. Inspector Stewart
accompanied Donald Kidd to the scoop Kidd operated to
retrieve Kidd's lunch bucket. Kidd opened the lunch bucket
in the presence of Stewart and Gibson. Inside were some
keys, an ear spray, a half filled bottle of Coca Cola,
some headache pills, some yellow napkins from Happy Mart
and a yellow Cricket lighter.
As a result, Inspector Stewart issued Citation No.
4012941 to the company for a violation of Section 75.1702,
30 C.F.R. � 75.1702, of the Secretary's Regulations.
(Pet. Ex. 1.) The citation was subsequently modified on
May 25, (Pet. Ex. 2), June 2, (Pet. Ex. 3), and September
1, 1994, (Pet. Ex. 4). As modified, it stated that:
The operator's search program approved May 16, 1991,
is inadequate because Donald Kidd, the scoop operator,
was allowed to carry a yellow Scripto disposable
cigarette [lighter] underground. A search of the
employee's lunch bucket by the mine supt. revealed
the cigarette lighter in the lunch bucket. The search
was conducted in the No. 5 entry.
Citation No. 4227560 was issued to Donald Kidd. It
alleged a violation of Section 317(c) of the Act, and
stated: "A yellow Scripto disposable butane cigarette
lighter was observed in the lunch bucket of Donald Kidd a
scoop operator on the 001-0 Section. The lunch bucket
was opened by Mr. Kidd in my presence and later by Mine
Supt. R. B. Hughes in No. 5 entry." (Pet. Ex. 7.)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Section 317(c) of the Act and Section 75.1702 of the
Regulations are identical and provide, in pertinent part,
that: "No person shall smoke, carry smoking materials,
matches, or lighters underground . . . . The operator
shall institute a program, approved by the Secretary, to
insure that any person entering the underground area of
the mine does not carry smoking materials, matches or
lighters." With respect to individual miners, the Act
also provides in Section 110(g), 30 U.S.C. � 820(g), that:
"Any miner who willfully violates the mandatory safety
standards relating to smoking or the carrying of smoking
materials, matches, or lighters shall be subject to a
civil penalty assessed by the Commission, which penalty
shall not be more that $250 for each occurrence of such
violation."
Donald Kidd
Turning first to the violation concerning Donald Kidd,
I conclude that the evidence does not establish that he
willfully violated the mandatory safety standard. While
there are no Commission decisions defining the term
"willfully," Black's Law Dictionary 1599 (6th ed. 1990)
defines "willful" as "[p]roceeding from a conscious motion
of the will; voluntary; knowingly; deliberate. Intending
the result which actually comes to pass; designed;
intentional; purposeful; not accidental or involuntary."
There is no evidence in this record to show that Kidd
intentionally, knowingly or voluntarily carried a lighter
into the mine or to rebut his claim that he accidentally
took the lighter into the mine.
Mr. Kidd testified concerning the incident as follows:
And that particular day, when it was time to go
to work, I had a bottle of Swim Ear, not nasal spray;
it was Swim Ear - it's for the ears, and it's
basically the same thing. Just a bottle of stuff - a
screwdriver, ink pen and keys and a bottle of -- well,
it wasn't Excedrin. It was an off-brand medicine for
headaches.
The cigarettes, as he said, was outside in my
truck, which I told them where they were inside [the
mine], after they found the lighter -- or after I
showed them the lighter. And the cigarettes . . .
But it inadvertently got in the bucket.
(Tr. 178.)
Q. Did you know that lighter was in that bucket?
A. No.
(Tr. 179.)
I put my Swim Ear and my screwdriver and my keys
and my medicine in the bucket. And I took the coffee
jug in the office and I put the bucket on the scoop
and took the coffee jug in the office, I filled it up.
That was the first and only time I was in the bucket
that day.
. . . .
The lighter, I do not recall ever putting the
lighter in the bucket, period. To my knowledge, as I
assumed and everybody does, I put the lighter with the
cigarettes in the truck bed or in the seat of my truck.
They found the cigarettes in the seat of my truck but
no lighter.
So when I put the other stuff in my pocket, then
the lighter had to be, you know, just put in there
[the bucket].
. . . .
Yeah, at some point that morning I had to put
the lighter in there [the bucket]. No one else did.
(Tr. 192-93.)
Inspector Stewart testified with regard to finding the
lighter: "Well, Mr. Kidd told me that morning, told me
when we found the lighter, that he just got all of his
material out of his pockets and put it in his lunch
bucket." (Tr. 59.) He further stated: "But just as I've
testified, there's a good possibility that when he got his
stuff out, that he didn't know that lighter was in his
bucket." (Tr. 67.) Finally, he related that Mr. Kidd
acted surprised when he saw the lighter in his lunch
bucket. (Tr. 107.)
Concerning this violation, Inspector Gibson stated:
"Well, in this situation here, at the time this occurred,
I really don't think that Mr. Kidd -- I mean, the way he
acted when the lighter was found and things, he acted like
he was really sincere, that he didn't know that it was
there." (Tr. 118.)
It is Mr. Kidd's contention that the lighter somehow
got in his lunch bucket when he emptied his pockets before
entering the mine, placing his cigarettes in his truck and
everything else in the lunch bucket. He maintains that he
did not have occasion to open the lunch bucket, which
apparently had no lunch in it anyway, until asked to do so
by the inspectors. Therefore, he asserts that he did not
"willfully" take the lighter into the mine. This scenario
is not implausible on its face.
Against this, the Secretary has offered only the
finding of the lighter and speculation that Mr. Kidd either
had cigarettes secreted somewhere else in the mine or
planned to go out of the mine with the lighter to smoke the
cigarettes in his truck. This does not stand up to
scrutiny. In the first place, the inspectors corroborate
Kidd by agreeing that he looked surprised when the lighter
was discovered. In the second place, if Kidd were going to
go to the trouble of secreting his cigarettes in the mine,
it seems logical that he would also have secreted his
lighter. Similarly, if he was going to go out of the mine
to smoke a cigarette, why keep his lighter in the mine.
Based on the evidence of record, I conclude that Mr.
Kidd did not willfully violate the Act. Consequently, I
will vacate the citation and dismiss the civil penalty
petition.
Broken Hill Mining Company
I reach a different conclusion on the company's
violation. The Act imposes strict liability on mine
operators for violation of the mandatory standards
regardless of fault. Western Fuels-Utah v. Fed. Mine
Safety & Health, 870 F.2d 711, 716 (D.C. Cir. 1989); Bulk
Transportation Services, Inc., 13 FMSHRC 1354, 1359
(September 1991); Republic Steel Corporation, 1 FMSHRC 5,
9-10 (April 1979). Therefore, "[i]f smoking materials are
found underground, there is a violation of � 75.1702 and
the operator is liable without regard to fault." Mingo
Logan Coal Co., 17 FMSHRC ___ (Judge Fauver, February
1995). Accordingly, I conclude that Broken Hill violated
the regulation.
The citation alleges that this violation was
"significant and substantial." A "significant and
substantial" (S&S) violation is described in Section
104(d)(1) of the Act as a violation "of such 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 that 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 out criteria for determining whether a
violation is S&S. See also Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power,
Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving Mathies
criteria). This evaluation is made in terms of "continued
normal mining operations." U.S. Steel Mining Co., Inc.,
6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be
based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 1007 (December 1987).
The dangers of mine explosions are well known as are
the propensities of an open flame in a mine for causing
explosions. One has only to consider the recent
Southmountain Coal Inc. and the AA&G Elmo No. 5 explosions
and resulting fatalities, alluded to by Ms. McGill and
believed to have been caused by smoking materials in the
mine, to recognize the seriousness of this violation.
Consequently, applying the Mathies criteria to this case, I
conclude that this violation was "significant and
substantial."
The citation also alleges that Broken Hill was highly
negligent in permitting this violation to occur and that
the violation resulted from the company's "unwarrantable
failure" to comply with the regulation. The Commission has
held that "unwarrantable failure" is aggravated conduct
constituting more than ordinary negligence by a mine
operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
1987). "Unwarrantable failure is characterized by such
conduct as 'reckless disregard,' 'intentional misconduct,'
'indifference' or a 'serious lack of reasonable care.'
[Emery] at 2003-04; Rochester & Pittsburgh Coal Corp.,
13 FMSHRC 189, 193-94 (February 1991)." Wyoming Fuel Co.,
16 FMSHRC 1618, 1627 (August 1994).
The evidence in this case does not support findings of
high negligence or "unwarrantable failure" on Broken Hill's
part. Broken Hill had in effect an underground search
program required by Section 75.1702 which had been approved
by MSHA. The program provided that searches would be
conducted once a week at irregular intervals and that
apparently was done. (Resp. Ex. A.) There is no evidence
that these searches were conducted with indifference or
incompletely. Furthermore, Broken Hill's policy that anyone
caught taking smoking materials underground would be
terminated indicates that it did not take its
responsibilities in this area lightly. Finally, having
found that the violation in this case was not willful, it
cannot be inferred from the violation that the company's
program was ineffectual.
Accordingly, I conclude that this violation was not
the result of an "unwarrantable failure" by Broken Hill
and that the company was no more than moderately negligent
in this instance. The citation will be modified from a
104(d)(1) citation, 30 U.S.C. � 814(d)(1), to a 104(a)
citation, 30 U.S.C. � 814(a).
CIVIL PENALTY ASSESSMENT
The Secretary has proposed a civil penalty of
$2,500.00 for this violation. Section 110(i) of the Act,
30 U.S.C. � 820(i), sets out six criteria to be considered
in determining an appropriate civil penalty. In
connection with these criteria, I find that Broken Hill
has a lower than average history of
previous violations, with no evidence of previous smoking
violations; that the No. 1 mine is a small mine and Broken
Hill a small operator; and that the company demonstrated
good faith in abating the violation. (Pet. Exs. 5 and 6.)
Broken Hill made no claim at the hearing that the penalty
proposed by the Secretary was inappropriate to its size or
that the penalty would adversely affect its ability to
remain in business. Finally, while I am reducing the level
of negligence, as I indicated earlier in the decision this
is a serious violation. Taking all of this into
consideration, I conclude that a penalty of $1,000.00 is
appropriate in this case.
ORDER
Citation No. 4227560 in Docket No. KENT 94-1209 is
VACATED and the civil penalty petition is DISMISSED.
Citation No. 4012941 in Docket No. KENT 94-1208 is
MODIFIED from a Section 104(d)(1) to a Section 104(a)
citation by deleting the "unwarrantable failure"
designation and reducing the level of negligence to
"moderate." The citation is AFFIRMED as modified.
Broken Hill Mining Company, Inc. is ORDERED to pay
a civil penalty of $1,000.00 within 30 days of the date of
this decision. On receipt of payment, this proceeding is
DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Hobart Anderson, President, Broken Hill Mining Co., Inc.,
P.O. Box 356, Sidney, KY 41101 (Certified Mail)
Donald Kidd, Broken Hill Mining Co., Inc., P.O. Box 1360,
Ashland, KY 41101 (Certified Mail)
/lbk