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[DOCID: f:l94-3.wais]
FREEMAN UNITED COAL MINING
March 29, 1996
LAKE 94-3
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 29, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-3
Petitioner : A.C. No. 11-00599-03883
v. :
: Mine: Orient No. 6
FREEMAN UNITED COAL MINING, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-262
Petitioner : A.C. No. 11-00599-03925-A
v. :
: Mine: Orient No. 6
AMES YANCIK, Employed by :
FREEMAN UNITED COAL MINING, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-269
Petitioner : A.C. No. 11-00599-03926-A
v. :
: Mine: Orient No. 6
NEAL MERRIFIELD, Employed by :
FREEMAN UNITED COAL MINING, :
Respondent :
DECISION
Appearances: Christine M. Kassak, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Richard R. Elledge, Esq., Gould & Ratner, Chicago,
Illinois, for Respondent;
Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C., for Respondent.
Before: Judge Fauver
These civil penalty cases were brought under �� 105(d) and
110(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq. The corporation and two of its supervisors,
who are qualified engineers, are charged with failure to maintain
an elevated walkway in good repair to prevent accidents and
injuries to employees. The walkway collapsed and four men were
severely injured.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the Findings of Fact and further
findings in the Discussion below:
FINDINGS OF FACT
1. Freeman owns and operates Orient No. 6 Mine in Waltonville,
Illinois, where it produces bituminous coal for sales in or substantially
affecting interstate commerce.
2. Freeman is a large coal mine operator, producing over 4 million
tons a year. Orient No. 6 is a large mine, producing over a million
tons a year.
3. In 1968 Freeman engaged Roberts and Schaefer Company,
Engineers and Contractors, Chicago, Illinois, to design and build
a preparation plant at Orient No. 6 Mine.
4. The plant is 105 feet high, 100 feet long and 100 feet wide.
It is a frame structure with steel columns and beams that provide a
basis for installing and removing floors as needed for conveyor belts
and other equipment used in the plant.
5. Because of of the unique properties of the coal at Orient
No. 6 Mine, the atmosphere in the preparation plant is very corrosive
to metal. This condition hastens the deterioration of steel columns,
beams and other metal supports.
6. Because of widespread corrosion and deterioration of steel
members in the preparation plant, in 1984 Freeman built a new
preparation plant adjacent to the old one. The old plant was
abandoned as a preparation plant but kept as a building for certain
functions. Walkways and conveyor belts run through the old plant to
the new plant, and the plants are connected by pumps and motor controls.
In addition, there is a large electric power station in the old plant.
The areas of the old plant that are most frequently used are elevated
walkways, conveyor belts, the electrical power station, and a drainage
system.
7. Once metal deterioration begins, it continues to worsen
until rust disintegrates the metal. Steel beams, columns, and metal
supports in the old plant continued to deteriorate after the new plant
was built. In 1987 a conveyor belt collapsed in the old plant because
of deterioration of steel members.
8. The collapse of the conveyor belt in 1987 shut down production
and caused Freeman to recognize that it needed to rehabilitate or
replace weakened and deteriorated steel members in the old plant.
Rehabilitation work moved slowly. In 1989 Freeman engaged Roberts and
Schaefer to evaluate the structural condition of the old preparation
plant and to make recommendations for its rehabilitation. R & S was
chosen because it had designed the old preparation plant, built it,
and knew the loads the members could carry and had expertise in
diagnosing defective steel members and how to repair them. It also
had built the new preparation plant.
9. After inspecting the old preparation plant, R & S submitted
a report to Freeman on November 30, 1989, prepared by Engineer Paul G.
Meifert. The report is entitled "Report to Determine Structural
Integrity of Existing Coal Preparation Plant for Freeman United Coal
Company Orient No. 6 Mine." Govt. Exh. 3.
10. The R & S report found many structural hazards. It stated
that part of the floor at elevation 454 "is beginning to collapse and
has been roped off above and below per [the R & S engineer's] request.
Obviously this area needs attention." An abandoned coal conveyor above
elevation 468 was "on the verge of collapse . . . [which would be] life
threatening" (p.4). Vertical bracing was "virtually nonexistent due to
deterioration and to field removal for access. Bracing should be brought
back to original as much as possible . . . ." p.4. The report called
for "immediate attention" to "beams and columns where holes exist or can
be punched out with a hammer." p.3. It also stated that "many beams
and columns were tested by hammer blows to determine the extent of rust
and deterioration" and that, "although many sections were reduced due to
rust scale. . . , in the majority of cases, enough material remains to
carry reduced loads." Emphasis added; p.2. To reduce the loads, heavy
equipment and other materials were to be removed from a number of floors.
11. The R & S report included the following cautionary notice:
"Although the structure appears to be sound in general these findings
are based only upon a visual inspection. No load tests or calculations
were performed to determine actual stresses. Extent of deterioration
and actual safety of structure cannot be determined without extensive
measuring, testing, and calculation" (p.5).
June 1993 Collapse of Elevated Walkway
12. On June 8, 1993, Mr. Steve Stanley, the surface manager of
the mine, led a crew of two supervisors and two miners to work on a
coal belt on the first floor (elevation 454 on the R & S drawing).
To gain access to the belt, the men were standing on an elevated
walkway parallel to the belt, 17 feet above a concrete floor. Mr.
Stanley left to get a bolt. Shortly after he left, the walkway suddenly
collapsed and the four men fell to the concrete floor amidst jagged and
broken steel and concrete debris. They were severely injured.
13. MSHA began an investigation on June 9. On June 10, Engineers
Terence Taylor and Dan Mazzei, from MSHA's Safety and Health Technology
Center, inspected the fallen walkway as well as the general plant.
14. Mr. Taylor is a professional engineer and has both a bachelor's
and a master's degree in civil engineering with specialization in
structural engineering. He is a member of the American Society of
Civil Engineers. Mr. Taylor's supervisor is Dan Mazzei, who has a
bachelor's degree in civil engineering and a master's degree with an
emphasis on water resources.
15. The Tech Support team observed widespread deterioration of
steel members with some remedial work done to some of the columns in
the basement. They did not inspect every steel member, but they looked
at the supports for the walkway and found widespread corrosion and
deterioration of structural members. At the accident site they observed
that members that were still dangling or touching the ground were
severely corroded. Much of the cross section was missing on some of
the dangling members. The failed members were badly deteriorated and
one failed beam was almost totally deteriorated.
16. The area where the collapse occurred is delineated by column
lines E and F in the north-south direction and 4 and 5 in the east-west
direction of the original plant drawings. These four columns are the
corners of a 5 by 20 foot bay. The slab that collapsed was supported
at its north and south ends by two wide flange beams, along its east
edge by a wide flange beam, and its west edge by six-inch wide channel
sections. The center of the slab was supported by a wide flange beam
and the quarter points by light beams. The three intermittent support
beams had fallen along with the west and east edge supports. The north
and south beams were still in place. The west or east edge support was
the first support to fail. Most likely the beam on the east edge
collapsed first, transferring the load to the west edge, shearing the
channel sections and bending down the three intermittent beams. The east
edge beam was almost completely deteriorated with many holes and extensive
corrosion. There was extensive rust on the 20 foot long wide flange beam
supporting the edge of the slab. The bottom flange and parts of the web
were deteriorated, reducing the load-carrying capabilities of the section.
In the collapsed bay, the connection between the east edge beam and the
column was still intact on the column, indicating that the beam sheared
right through its cross section.
17. Along the same column line that failed, in the bay to the
south of the area of collapse, Mr. Taylor and Mr. Mazzei saw a steel
member that was identical in section and dimensions to the beam that
failed on June 8, 1993. This member was still in place, but deterioration
holes could be seen plainly. This member is the subject of Govt. Exh. No.
6 and was the support for the walkway farther south of the point of
collapse. The unsafe condition of this beam was similar to that of the
beam that failed on June 8.
18. The failure on June 8 was caused by excessive corrosion reducing
the section-carrying capacity at the edge supports where the shear load
was the highest and where it ultimately failed.
19. Before the accident on June 8, the deteriorated steel members
supporting the walkway section that collapsed were observable from the
floor below, and were visibly in bad repair.
20. Some beams under the walkway in other bays were also visibly
in bad repair. The walkway presented numerous hazards of steel corrosion
and deterioration.
21. A number of beams had holes in them and were rusted and twisted
and deteriorated. MSHA inspector Charles Conaughty observed instances
where a hammer struck against a structural member traveled through the
member.
22. Government Exhibits 4,5, and 11 show the area where the
June 8 accident occurred. Exhibit 4 shows the beam that failed under
the east side of the walkway. Exhibit 5 shows part of the material
that was still hanging from the collapsed walkway. Exhibit 11 shows
deteriorated vertical bracing that was at the end of the row of columns
in the same row in which the collapse occurred.
23. Government Exhibits 6, 7, 8, 9 and 10 show other areas of
deterioration adjacent to or near the accident site. The beam shown
in Exhibit 6 was in the adjacent or a nearby bay just south of the area
that fell, and was in the same column line (column line 4) in which the
accident occurred. The steel members that failed would have been exposed
to the same corrosive elements as the beam depicted in Exhibit 6.
24. In 1989, when Freeman was removing the floor area described
in the R & S report (defined by column lines A to F and 4 and 5), Freeman
personnel were within close visual range of the steel members of the
walkway section that failed on June 8, 1993.
25. As of the date of the collapse, a number of areas in the old
plant still needed rehabilitation and repair work, including the section
that collapsed.
26. At the time of the collapse, Mr. Thomas J. Austin had been
the safety director of the mine since 1987. There were three employees
in the safety department. Mr. Austin's immediate supervisor was Respondent
Neal Merrifield. Mr. Austin is not an engineer and has never taken any
engineering courses.
27. Prior to the accident, Mr. Austin never received any instructions
to have his safety employees look for holes in beams and columns or
perform tests with a hammer on any of the beams or columns that supported
walkways. Nor did he see or discuss the R & S report before the accident.
He first learned about the R & S report during the investigation following
the walkway collapse.
28. In 1989, Mr. Steve Stanley was the assistant mine manager
of the Orient No. 6 mine. Mr. Stanley became surface manager of the
mine in 1991. He is not an engineer, but he was called upon to direct
rehabilitation work and repairs in the old plant. He made decisions
on a day to day basis as to where to assign employees. Prior to the
accident, no one directed Mr. Stanley to put more people to work in
the old plant or to give any priority to checking beams and other metal
supports that held up the walkways. Nor did anyone instruct Mr. Stanley
to have employees look for holes in beams and columns or perform tests
with a hammer on any beams or columns that supported walkways.
29. Mr. Stanley had never seen and was not given a copy of the
R & S report until after the accident. No one discussed the R & S report
with Mr. Stanley until after the accident.
30. On June 8, 1993, when Mr. Stanley directed four employees
to work on the conveyor belt by standing on the walkway, he had no
knowledge of the R & S report or the dangers observed in the report.
Respondent James Yancik
31. At all relevant times, Respondent James Yancik was manager
of quality control and plant maintenance and the preparation engineer.
Mr. Yancik has a B.S. degree in mining engineering and is a member of
the Society of Mining Engineering. One of his specialties is structural
analysis.
32. Mr. Yancik accompanied Engineer Paul Meifert of the R & S
Company during Mr. Meifert's inspection of the old preparation plant
in 1989. During their inspection they used three tools: a chipping
hammer, a wire brush, and a hammer. They did not take core samples.
They were visually looking at steel members and in some cases they
would scale and test steel members.
33. Mr. Meifert and Mr. Yancik observed a crack in a floor that
was beginning to sag. Mr. Meifert identified the floor as dangerous
and had it roped off.
34. When part of the floor at elevation 454 was removed, Mr. Yancik
reviewed the work. During the time he was conducting inspections for
Mr. Mullins, he remembered seeing several beams in a condition like that
of the beam in Govt. Exh. No. 6. At the hearing he stated that some
of these were possibly not repaired.
35. Before accompanying Mr. Meifert, Mr. Yancik had personally
inspected the old preparation plant. In 1987, when starting the initial
rehabilitation program, Mr. Yancik spent eight hours a day there, five
days a week, for several weeks. Mr. Yancik did not continue that
frequency of inspections after the R & S report. During the period from
the issuance of the R & S report (November 30, 1989) until the walkway
collapse on June 8, 1993, Mr. Yancik conducted inspections of the old plant
"on a periodic basis" depending upon his "available time." His inspections
were not frequent.
36. Mr. Yancik read the R & S report several times and was very
familiar with its contents. He received his copy of the R & S report
from Mr. Mullins, vice president of operations.
37. Before the accident, Mr. Yancik had seen holes in some beams
like those that were shown on figures 7 and 9 in the R & S report but
never directed anyone to repair or rehabilitate those beams. Mr. Yancik
did not personally set priorities for the rehabilitation or repair of
the old plant.
38. Mr. Yancik had "expertise in structural analysis." He agreed
that when an engineer sees a corroded hole in a steel beam he views it
as a potential hazard.
Respondent Neal Merrifield
39. At the time of the collapse in June 1993, Mr. Merrified was
vice president of operations. He is a mining engineer. Prior to
becoming vice president of operations, he had been the mine superintendent.
As vice president of operations, his responsibilities included safety
of the operations of the mine facilities. Mr. Yancik reported to
Mr. Merrifield.
40. Mr. Merrifield read the R & S report and, as an engineer,
he understood it. After 1991, when he became vice president of operations,
Mr. Merrifield set priorities for the rehabilitation work in the old
plant. Mr. Merrifield approved the mine's budget and had responsibility
for the budget for the old plant. Although he did not have final
authority on the budget, Mr. Merrifield's budget recommendations were
not normally overruled by his supervisor.
41. The chief engineer of the mine reported to Mr. Merrifield.
As supervisor of the engineering department, Mr. Merrifield approved
the time spent on rehabilitation efforts. Along with other mine management
and the corporate officers, Mr. Merrifield approved the allocation of
dollars for those rehabilitation efforts.
42. Mr. Merrifield approved the engineering department's decisions
regarding priorities for the rehabilitation of the old plant. The
engineering department reported to him regarding its recommendations
for sequencing repair work and to get authorization to contract out
rehabilitation work. When the engineering department wanted items beyond
the budget, it would present its request to Mr. Merrifield and he would
approve or disapprove it.
43. Mr. Merrifield had input into the final report in response
to Mr. Mullin's memorandum of January 1, 1990 (Govt. Exh. 26) including
recommendations regarding replacement of bracing as recommended by
the R & S report. Mr. Merrifield attended a February 1, 1990, meeting
with Mr. Mullins regarding corrective actions to be taken.
44. Mr. Merrifield did not give Mr. Jim Hess, his successor as
mine superintendent, a copy of the R & S report. Mr. Merrifield also
did not give Mr. Steve Stanley, surface manager, a copy of the R & S
report. Nor did he give a copy of the report to the mine safety
director.
45. Mr. Mullins sent a copy of his letter regarding Mr. Yancik's
job responsibilities (Govt. Exh. 18) to Mr. Merrifield. A copy of an
October 26, 1988, document regarding inspection of all belt supporting
structures on an annual basis, to visually assess the competency of the
structural members, went to Mr. Merrifield. Mr. Yancik sent a copy of
a memorandum of May 4, 1988 (Govt. Exh. 20), to Mr. Merrifield. A copy
of a memorandum of December 17, 1988 (Govt. Exh. 21), regarding areas
that required immediate attention and reporting that the second floor
was badly deteriorated, went to Merrifield.
46. Mr. Yancik sent copies of a memorandum of January 29, 1990
(Govt. Exh. 22), regarding the R & S report, and a memorandum of
August 13, 1990 (Govt. Exh. 23), regarding his inspection of the old
plant, to Mr. Merrifield. Mr. Yancik also sent a memorandum of
October 2, 1990 (Govt. Exh. 24), in which he informed Mr. Merrifield
that "no definitive plan has been formulated to correct the deficiencies"
in the old plant.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
I
RESPONDENTS' CHALLENGE OF THE REGULATION
On June 8, 1993, a large section of an elevated walkway -- about
5 by 20 feet -- suddenly collapsed. The four miners standing on it
fell 17 feet to a concrete floor amidst jagged and broken steel and
concrete debris. They were severely injured.
The Secretary alleges that Respondents violated 30 C.F.R � 77.200,
which provides:
Surface installations; general
All mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in
good repair to prevent accidents and injuries to employees.
Respondents challenge the regulation as being vague and
ambiguous.
A safety standard must provide adequate notice of the
conduct it prohibits or requires, so that the mine operator or
other affected persons may act accordingly. Southern Ohio Coal
Company, 14 FMSHRC 978,983 (1992). The "appropriate test is not
whether the operator had explicit prior notice of a specific
prohibition or requirement, but 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." Ideal Cement Co.,
12 FMSHRC 2409, 2416 (1990).
In U.S. Steel Mining Co., 14 FMSHRC 973, 974 (1992), the
Commission affirmed a decision in a � 77.200 case, noting the
judge's holding that "the primary purpose of � 77.200 was to
assure the physical and structural integrity of surface coal
preparation facilities . . .." I find that the regulation gives
sufficient notice of the safety conduct required. The plain
language of the regulation means that surface structures and
facilities must be maintained in good repair relative to safety.
In dictionary terms, "maintenance" means "The labor of keeping
something (as buildings or equipment) in a state of repair or
efficiency: care, upkeep . . . [p]roper care, repair, and keeping
in good order . . . [t]he upkeep, or preserving the condition of
property to be operated." See Webster's Third New International
Dictionary, Unabridged 1362 (1971); A Dictionary of Mining,
Mineral, and Related Terms 675 (1968); and Black's Law Dictionary
859 (5th ed. 1979).
II
RULING ON RESPONDENTS' MOTION TO DISMISS
At the end of the Secretary's case, the individual Respondents
moved to dismiss the � 110(c) charges. The judge took the motion
under advisement to be ruled upon in the final decision. Respondents
then presented evidence on all matters.
The Commission's Rules of Procedure, the Administrative
Procedure Act and the Mine Act are silent as to the standards that
apply to motions to dismiss at the close of an opposing party's
case-in-chief. Accordingly, it is appropriate to consult the Federal
Rules of Civil Procedure for guidance. Basic Refractories,
13 FMSHRC 2554, 2558 (1981).
When a party moves for dismissal at the close of the opponent's
case, the judge has discretion to take the motion under advisement.
Fed. R. Civ. P. 52(c), "Judgment on Partial Findings," provides, in
pertinent part:
If during a trial without a jury a party has been fully
heard with respect to an issue . . ., the court may enter
judgment as a matter of law against that party on any claim
. . . or the court may decline to render any judgment until
the close of all the evidence.
The notes of the Advisory Committee on Rules to Fed. R. Civ.
P. 52(c) specify that a court has discretion to enter no judgment
prior to the close of all the evidence. Clifford Meek v. ESSROC
Corporation, 15 FMSHRC 606, 615 (1993). Here, as there, the judge
exercised that discretion. In making that determination, a court
is within its prerogative to weigh all the evidence, resolve any
conflicts in it, and decide for itself where the preponderance lies.
Local Union 103 v. Indiana Construction Corp., 13 F.2d 253, 257
(7th Cir. 1994).
In his dissent on other grounds in Mathies Coal Company,
5 FMSHRC 300, 307 (1983), Commissioner Lawson stated that "a
trial court's reservation of ruling on a motion for
involuntary dismissal [under 41(b) Fed. R. Civ. P., the
predecessor to 52(c)] is, in effect, a denial of the
motion." The Commissioner concluded that: "Respondent had
the choice of proceeding or standing on its motion. By
presenting evidence, Respondent waived its right to appeal
from the judge's `denial' of its motion."
Here, Respondents presented evidence following the judge's
reservation of a ruling. The motion is denied and the case
will be decided upon all the evidence.
III
DECISION ON THE MERITS
The first question is whether the walkway was "maintained
in good repair to prevent accidents and injuries" as required by
30 C.F.R. � 77.200.
Freeman contends that the old preparation plant had
undergone an extensive rehabilitation program to repair or
replace deteriorating steel columns and beams and that the
particular walkway section had not been observed as
requiring repairs.
This argument fails because the steel supports that
collapsed were visibly badly deteriorated due to corrosion.
Also, a number of other steel members supporting the walkway
were visibly deteriorated due to corrosion. Under the R & S
report, "immediate attention" was required for "beams and
columns where holes exist or can be punched out with a
hammer." Without rehabilitation or replacement of the
deteriorated members, the walkway clearly was not being
"maintained in good repair to prevent accidents and injuries
to employees." Freeman was therefore in violation of 30
C.F.R. � 77.200.
The next question is whether Freeman was negligent in
failing to maintain the walkway in good repair. I find that
it was.
Freeman contends that it had started the rehabilitation
program in 1987 and in 1989 engaged the engineering firm (R
& S) that built the plant to return to inspect the structural
condition of the plant and make recommendations. It states
that before the walkway collapsed it had taken corrective
action on the specific recommendations in the engineering
firm's report and was carrying out an ongoing inspection and
repair program on columns and beams in accordance with the
engineering report.
However, the walkway collapse occurred more than three and
a half years after the R & S report, which had warned Freeman
that "immediate attention" must be given to "beams and columns
where holes exist or can be punched out with a hammer" and that
"for beams, holes near connecting and concentrated loads are
critical." Exh. G-3, p.3. The steel supports that collapsed
under the walkway were badly deteriorated and were plainly visible
before the accident.
In Alabama By-Products, 4 FMSHRC 2128, 2129 (1982), the
Commission held:
[I]n deciding whether equipment or machinery is in safe or
unsafe operating condition, . . . the alleged violative
condition is appropriately measured against the standard of
whether a reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective
action.
The "reasonably prudent person" test applies to engineers
as well as to laymen. This case focuses upon the responsibility
of engineer-supervisors to protect the safety of miners using an
elevated walkway. Miners and supervisors who are not engineers
are not expected to know the structural integrity of steel beams
and columns. To a layman, including a supervisor who is not an
engineer, deteriorated or corroded steel beams 14 feet above the
floor may not seem dangerous if the company engineers indicate
that they have carefully checked the structural condition and
that the beams are safe. However, the walkway suddenly collapsed
because of deteriorated steel beams. The question raised is
whether a reasonably prudent engineer would have inspected and
repaired or replaced the beams before they collapsed.
The Respondent engineer-supervisors were fully aware of the
history of deterioration of steel members in the old plant,
including a major collapse of a conveyor belt in 1987 because of
deteriorated steel members, and the 1989 R & S report that warned
of the need to give "immediate attention" to "beams and columns
where holes exists or can be punched out with a hammer." I find
that a reasonably prudent engineer having such knowledge and
being familiar with the mining industry would have performed or
required careful and frequent inspections of the steel beams of
the elevated walkways including hammer tests of suspicious
looking beams. By the exercise of reasonable care, the failed
beams and steel supports could have been detected and corrected
to prevent the collapse that occurred on June 8, 1993. I also
find that, before the walkway collapse, a reasonably prudent
engineer who observed the other deteriorated steel members later
found by the MSHA engineers would have repaired or replaced them.
I now turn to the issue of whether the individual Respondents
are liable as corporate agents under � 110(c) of the Act. This
section provides:
Whenever a corporate operator violates a mandatory health or
safety standard or knowingly violates or fails or refuses to
comply with any order issued under this Act or any order
incorporated in a final decision issued under this Act,
except an order incorporated in a decision issued under
subsection 105(c), any director, officer, or agent of such
corporation, who knowingly authorized, ordered, or carried
out such violation, failure, or refusal shall be subject to
the same civil penalties, fines, and imprisonment that may
be imposed upon a person under subsections (a) and (d).
The individual Respondents were agents of the corporate
Respondent within the meaning of � 110(c). Respondent Neal
Merrifield was vice president of operations at the time of the
collapse of the walkway. He is a mining engineer. Before
becoming vice president of operations he had been mine
superintendent. As vice president of operations, his
responsibilities included safety of the operations of the mine
facilities. The safety and engineering departments reported to
him. Respondent James Yancik reported to Mr. Merrifield.
Mr. Yancik was manager of quality control and plant maintenance
and the preparation engineer at the subject mine. He is a mining
engineer with a specialty in structural analysis.
In Warren Steen Construction, Inc. and Warren Steen,
14 FMSHRC 1125, 1131 (1992), the Commission held that, "In
order to establish � 110(c) liability, the Secretary must
prove only that an individual knowingly acted, not that the
individual knowingly violated the law." In Kenny Richardson
v. Secretary of Labor, 3 FMSHRC 8, 16 (1981), aff'd, 689
F.2d 632 (6th Cir 1982), cert. denied, 461 U.S. 928 (1983),
the Commission defined the term "knowingly" as follows:
"Knowingly," as used in the Act, does not have any meaning
of bad faith or evil purpose or criminal intent. Its
meaning is rather that used in contract law, where it means
knowing or having reason to know. A person has reason to
know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact
in question or to infer its existence.
A "knowing" violation does not require a showing that the
corporate agent "willfully" violated the Mine Act or safety
regulations. Rather, the Commission held that:
If a person in a position to protect employee safety and
health fails to act on the basis of information that gives
him knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a manner
contrary to the remedial nature of the statute. [Id.]
The individual Respondents knew as early as 1984 that the
steel members in the old preparation plant were deteriorating.
After the new plant was built in 1984, the steel members in the
old plant continued to deteriorate. In 1987, a conveyor belt
collapsed because of deteriorated steel members. The collapse
shut down production and caused Freeman to recognize that the old
plant must be rehabilitated. However, progress toward
rehabilitation was slow. In 1989, Freeman engaged the
engineering firm (R & S) that built both plants to return to
evaluate the structural condition of the old plant and make
recommendations. After Freeman received the R & S report
(November 30, 1989), rehabilitation efforts still moved slowly.
More than three and a half years after the report, the cited
walkway was still in bad repair, as evidenced by the collapse of
the walkway on June 8, 1993, and the deterioration of other steel
members disclosed by the MSHA investigation after the walkway
collapsed. The three and a half years from the R & S report to
the walkway collapse represents about 1,600 workshifts during
which miners were exposed to the hazards of the elevated walkway.
Respondents had a legal duty to ensure that the elevated
walkway was "maintained in good repair to prevent accidents and
injuries to employees." 30 C.F.R. � 77.200. The R & S report
put them on notice that "immediate attention" was needed to
repair or replace all "beams and columns where holes exist or can
be punched out with a hammer. For beams, holes near connections
and concentrated loads are critical."
The individual Respondents were agents of the corporate mine
operator and were qualified engineers in positions to protect the
safety of miners who used the elevated walkway. Mr. Merrifield
prioritized the rehabilitation sequences to carry out the
recommendations in the R & S report and Mr. Yancik had the
responsibility to inspect the steel members for compliance with
the criteria in the R & S report. They knew that the steel
members supporting the elevated walkway needed to be inspected
carefully and frequently in order to give "immediate attention"
to "beams and columns where holes exist or can be punched out
with a hammer," as warned by the R & S report. This required
hammer testing of any suspicious beams. It is clear that the
beams that failed on June 8, 1993, were more than suspicious, but
had not been properly tested and remedied before the collapse.
Mr. Yancik testified that he never received any written
report that told him or caused him to believe that the plant was
not being maintained in a safe condition or that the walkway that
collapsed was dangerous. However, Mr. Yancik was the individual
charged with making inspections of the plant to create those
kinds of reports. In addition, he was aware of the 1987 collapse
of the conveyor belt and of the clear warnings in the R & S
report.
Mr. Yancik acknowledged that it would have been reasonable
to inspect the walkway beams after Freeman removed the floor at
elevation 454. When asked why Freeman did not replace any of the
steel members under the walkway, Mr. Yancik concluded that the
structural condition was not bad enough to require remedial
attention. Yet the walkway failed because of advanced
deterioration and badly corroded steel beams.
Mr. Merrifield was a decisionmaker responsible for safety of
operations of the old preparation plant from the time he was mine
superintendent and later vice president of operations. He had a
thorough knowledge of the history of deterioration of the steel
members, including the 1987 collapse of the conveyor belt and the
1989 R & S report. He made monetary decisions regarding
rehabilitative efforts in the old plant. With his knowledge of
the R & S report, and his qualifications as an engineer, he had a
duty to heed the warnings of the R & S report and see to it that
beams, columns, and metal supports for the elevated walkway were
carefully and frequently inspected so that "immediate attention"
would be given to any beams or columns "where holes exist or can
be punched out with a hammer." He had the authority to provide
copies of the R & S report to the safety director and surface
manager (who both reported to him) and to discuss it with them.
However, he failed to do so.
When the surface manager, Mr. Stanley, led a crew of four
men onto the walkway on June 8, 1993, he had no knowledge of the
R & S report and its warning that "immediate attention" must be
given to "beams and columns where holes exist or can be punched
out with a hammer." Since he was not an engineer, and had no
training in structural analysis, he had to rely upon the
individual Respondents to see that the walkway was kept in a safe
condition. Respondent Merrifield prioritized the rehabilitation
sequences to carry out the recommendations of the R & S report,
and Respondent had the responsibility to inspect the steel
members for compliance with the criteria spelled out in the R & S
report. Both were qualified engineers who knew the significance
of the dangers found in the report, but they did not convey them
to Mr. Stanley or the mine safety director.
Had they informed Mr. Stanley, the surface manager, of the
need to look out for "beams and columns where holes exist or can
be punched out with a hammer," Mr. Stanley would have had crucial
safety information when he assigned four men to work with him on
the walkway that collapsed. This would have alerted him to
immediately report any beams "where holes exist or can be punched
out with a hammer," and may have alerted him to look at the beams
below before placing a concentrated live load on the walkway.
Had he looked at the beams, he would have seen the deterioration
and corrosion that the MSHA engineers saw after the collapse of
the walkway. This probably would have alerted him to call the
individual Respondents for an evaluation of the safety of the
walkway.
Respondents argue that a number of MSHA inspectors had
inspected the old plant before the collapse in June 1993, but did
not cite the walkway as being unsafe. However, MSHA inspectors
are not engineers, and the dangers of the walkway were such that
only specially qualified persons, such as engineers, could fully
understand the hazards involved in the context of the R & S
report. Moreover, in Raymer v. United States, 660 F.2d 1136,
1143 (6th Cir. 1981), cert. denied, 456 U.S. 944, 102
S. Ct. 2009 (1982), the court held that MSHA inspectors do not
undertake to perform a duty owed by the mine operator to its
employees. The court rejected the idea that responsibility for
mine safety is shifted to the federal government.
In Joseph B. Necessary, 6 FMSHRC 2567 (1984), Commission
Judge Koutras found that an agent with 45 years of experience in
the construction business who was supervising the repair of a
mine refuse storage bin that collapsed, killing three miners,
violated 30 C.F.R. � 77.200. Judge Koutras found that the
collapse was caused by a misalignment in the support columns and
that the supervisor was aware of the misalignment. In affirming
the citation, Judge Koutras found that, in light of the
supervisor's experience, "he knew or should have known that the
misalignment posed a serious potential safety hazard requiring
immediate correction."
I find that Respondents Merrifield and Yancik "knowingly
authorized, ordered, or carried out" a violation of 30 C.F.R.
� 77.200, within the meaning of � 110(c) of the Act, by failing
to take necessary steps within their competence and authority to
see that the cited walkway was "maintained in good repair to
prevent accidents and injuries to employees." Miners and
supervisors who are not engineers cannot be expected to judge the
structural integrity of steel beams and columns. However, when a
mine operator engages the engineering firm that constructed a
building to return to evaluate its structural condition after
years of corrosion of steel members, it is incumbent upon the
operator's own engineers to exercise due diligence and reasonable
care in implementing the builder's repair and rehabilitation
recommendations. The individual Respondents patently failed to
do so with respect to the walkway that collapsed on June 8, 1993.
The collapse was not an unforseen accident. There had
already been a major collapse in 1987. As rehabilitation work
progressed in the old plant, beams that were repaired or replaced
were painted yellow. As of the date of the collapse, yellow
horizontal beams were in areas where weight had been removed from
the floor and where holes had been covered to prevent falls
through the floor. Apparently there were no yellow beams
supporting the elevated walkway. The MSHA engineers found a
number of beams and supports that were deteriorated, similar to
the beams that collapsed on June 8, 1993. This indicates that
the walkway was in overall bad repair, that the collapse on June
8 could readily have occurred in many dangerous places in the
walkway, and that a concentrated live load (several miners) was
critical, as predicted by the R & S report.
This was not a situation in which a claim of "unforseen
accident" could be reasonably asserted. Rather, it was a
collapse ready to happen.
I find that the violations of � 77.200 by the individual
Respondents were due to high negligence and their negligence is
imputed to the corporation. In reaching this conclusion, I have
considered a number of factors. These include: their expert
knowledge as engineers of the history of deterioration of steel
members in the old plant, the 1987 collapse of the conveyor belt,
and the clear notice in the 1989 R & S report of the steps
necessary to maintain the elevated walkway in good repair; their
failure to heed the R & S report by taking necessary action to
inspect and repair the walkway that collapsed; their failure to
advise the safety director and the surface manager of the need to
look out for holes and weak spots in the beams under the walkway;
and the great risk to the miners who regularly used the elevated
walkway, including the four miners who were injured.
IV
CIVIL PENALTIES
The key to the Mine Act is prevention of mining hazards by
compliance with safety and health standards. This requires
diligence in monitoring changing mine conditions to see that
the mine is in compliance.
As found in the Discussion, Freeman and the two individual
Respondents were highly negligent in failing to maintain the
walkway in good repair to prevent accidents and injuries to
employees. Their violations of � 77.200 are aggravated by
the fact that they had a supervisory and professional
responsibility to protect laymen who were dependent upon
their expert knowledge. In Roy Glenn, 6 FMSHRC 1583, 1587
(1984), the Commission repeated its holding in Kenny Richardson,
supra, that "a supervisor's blind acquiescence in unsafe workings
would not be tolerated," and that "supervisors . . . could not
close their eyes to violations, and then assert lack of
responsibility for those violations because of self-induced
ignorance." Similarly, in passing the 1977 Mine Act,
Congress was particularly concerned over the high number of
mining injuries and fatalities that resulted from inadequate
supervision and hazardous "conditions reasonably within the
power of management to prevent." H.R. Rep. No. 312, 95th
Cong., 1st Sess. 4 (1977), reprinted in Legislative History
of the Federal Mine Safety and Health Act of 1977, at
360 (1977).
Section 110(i) of the Act provides six criteria for
assessing civil penalties. Considering each of the
criteria, I find that Freeman is a large operator, the civil
penalties in this Decision will not affect its ability to
continue in business, Freeman has an average compliance
history for its size, and after the citation was issued the
three Respondents made a good faith effort to achieve
compliance with 30 C.F.R. � 77.200. The three Respondents
violated that section, as found above. The gravity of the
violations was high and the violations were due to high
negligence on the part of each Respondent.
Considering all of the criteria for civil penalties in
� 110(i) of the Act, I find that the following civil
penalties are appropriate for Respondents' violations of �
77.200:
Respondent Freeman United Coal Mining Company, a civil
penalty of $10,000.
Respondent Neal Merrifield, a civil penalty of $5,000.
Respondent James Yancik, a civil penalty of $4,000.
The penalties are higher than the penalties proposed by the
Secretary because of Respondents' aggravated conduct in ignoring
the clear steps needed to protect the safety of the miners.
Through their high negligence in failing to replace defective
beams, the walkway was allowed to deteriorate to the point of a
sudden collapse causing severe injuries.
CONCLUSIONS OF LAW
1. The judge has jurisdiction.
2. Respondents violated 30 C.F.R. � 77.200 as found above.
ORDER
1. Citation No. 3537447 is AFFIRMED.
2. Within 30 days of the date of this Decision: Respondent
Freeman United Coal Mining Company shall pay a civil penalty
of $10,000; Respondent Neal Merrifield shall pay a civil
penalty of $5,000; and Respondent James Yancik shall pay a
civil penalty of $4,000.
William Fauver
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq., Office of the Solicitor,
U.S. Department of Labor, 230 S. Dearborn St., 8th Floor,
Chicago, IL 60604 (Certified Mail)
Richard R. Elledge, Esq., Gould & Ratner, 222 N. LaSalle St.,
Suite 800, Chicago, IL 60601 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring,
1001 Pennsylvania Ave., NW., Washington, DC 20004-2595
(Certified Mail)
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