<DOC>
[DOCID: f:l97-42rm.wais]
TILDEN MINING COMPANY, L.C.
January 29, 1998
LAKE 97-42-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 29, 1998
TILDEN MINING COMPANY, L.C., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 97-42-RM
: Citation No. 4537230; 2/19/97
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 97-43-RM
ADMINISTRATION (MSHA), : Citation No. 4537231; 2/19/97
Respondent :
: Tilden Mine
: Mine ID No. 20-00422
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 97-60-M
Petitioner : A. C. No. 20-00422-05670
v. :
: Docket No. LAKE 97-92-M
TILDEN MINING COMPANY, L.C., : A.C. No. 20-00422-05680
Respondent :
: Docket No. LAKE 97-94-M
: A.C. NO. 20-00422-05681
:
: Tilden Mine
DECISION
Appearances: Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for
Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, Pennsylvania, for Respondent.
Before: Judge Hodgdon
These consolidated cases are before me on Notices of Contest
and Petitions for Assessment of Civil Penalty filed by Tilden
Mining Company, L.C., against the Secretary of Labor, and by the
Secretary of Labor, acting through her Mine Safety and Health
Administration (MSHA), against Tilden, respectively, pursuant to
section 105 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 815.[1] The company contests the issuance to it of a
combined order and citation and a citation. The petitions
allege four violations of the Secretary's mandatory health and
safety standards and seek penalties of $8,618.00. For the
reasons set forth below, I approve the parties settlement
agreement with respect to Docket No. LAKE 97-60-M, vacate the
order and modify and affirm the citation in Docket Nos. LAKE 97-
42-RM and LAKE 97-92-M, vacate the citation in Docket Nos. LAKE
97-43-RM and LAKE 97-94-M, and assess penalties of $559.00.
A hearing was held on September 24, 1997, in Marquette,
Michigan. The parties also submitted post-hearing briefs on the
contested violations.
Settled Docket
At the beginning of the hearing, counsel for the Secretary
announced that the parties had settled Docket No. LAKE 97-60-M.
The agreement provided that Citation No. 4536738 would be vacated
and that Citation No. 4536737 would be modified to allege a
violation of section 56.1101, 30 C.F.R. � 56.1101, rather than
section 56.15005, 30 C.F.R. � 56.15005, and to have the
description of the condition or practice read: "A safe means of
access was not provided on the bed of a flat bed truck being used
to transport the new crusher into the secondary crusher building.
Three employees were on the truck and the bed of the truck and
the timbers on the bed were covered with snow. One employee was
standing on wet and slippery tires which provided insufficient
footing." The penalty for the modified citation would remain as
originally assessed, $309.00.
After considering the parties' representations, I concluded
that the settlement was appropriate under the criteria set forth
in section 110(i) of the Act, 30 U.S.C. � 820(i), and informed
the parties that I would approve the agreement. (Tr. 9-12.) The
provisions of the agreement will be carried out in the order at
the end of this decision.
Contested Matters
Background
Ore at the Tilden iron mine is hauled from the ore pit to a
primary crusher to be reduced in size. The primary crusher is
located in a building at the bottom of a 20-foot deep crusher
pit. Trucks back up to the east and west sides of the building
and dump ore into the pit. A bumper, 2 feet high and 6 feet
wide, prevents trucks from backing into the pit. On the south
side of the pit is a control room and on the north side is a
repair bay.
Ore is fed by gravity into the crusher bowl located in the
center of the pit. The crusher bowl is 10 feet wide at the top
and its walls slope inward so that it is 9 feet, 1 inch wide at
the bottom. Inside the bowl is a cone-shaped mantle, narrow at
the top and wider at the bottom. It is held in place by a
"spider" bushing which is connected to opposite sides of the bowl
and which rises several feet above floor level. The mantle moves
back and forth concentrically, crushing the ore, so that at the
narrowest point of the bowl and the widest point of the mantel
there are 8 to 9 inches on the closed side and 11 to 12 inches on
the open side. The crusher bowl is about 7 or 8 feet deep.
On February 17, 1997, the crusher bowl became clogged by ore
and would not operate. Normal methods of unstopping it were
unsuccessful and on February 18 the company decided to attempt to
drill through the material to unclog it. Ore material on the
east side of the pit had to be removed by a backhoe before an air
track drill could be placed in the northeast corner of the pit.
Drilling on February 18 failed to achieve a breakthrough.
The company began removing material with the backhoe from
the west side of the pit on February 19 so that the drill could
be moved if necessary. In the meantime, drilling on the
northeast side continued. At about 10:00 a.m. that day Inspector
Stephen W. Field, who was conducting a regular inspection of the
mine, left the secondary crusher building to go to the primary
crusher building. On his way to the building he observed Terry
Kainulainen, a Tilden employee, on the west side of the primary
crusher building. He believed that Kainulainen was within 2 feet
of the pit and that he was not wearing a safety line.
The inspector followed Kainulainen into the repair bay on
the north side of the building. From the repair bay he observed
the drill operator and his assistant drilling the material in the
crusher bowl. They appeared to be standing on the edge of the
bowl. Neither had on a safety line. Inspector Field observed a
hole in the material in the bowl where they were working which he
estimated to be 8 feet long, 44 inches wide and 7 feet deep.
Based on this observation, he informed the company representative
that he was issuing a verbal 107(a) order, 30 U.S.C. � 817(a), to
remove the two employees from the area of the crusher bowl until
safety lines were furnished to them.
From the repair bay, the inspector went to the control room
where he interviewed the two employees and their supervisors.
Safety lines were set up, and the drilling continued. It turned
out that a steel shank and tooth from the bucket of shovel, used
to mine the ore, had become lodged between the mantle and the
crusher bowl wall. It was necessary to cut the shank and tooth
into pieces with "oxygen lanes"[2] to remove it.
On February 21, Inspector Field issued Order and Citation
No. 4537230 and Citation No. 4537231 to the company. Both
alleged violations of section 56.15005 of the regulations,
30 C.F.R. � 56.15005.[3] Order and Citation No. 4537230 stated:
A verbal imminent danger withdrawal
order was issued to Scott Perry, coord. on
February 19, 1997 at 10:05 am. Two employees
were standing on the metal rim of the primary
crusher bowl while attempting to unplug the
crusher. Safety belts and lines were not
being used to prevent them from falling into
the opening, approximately 8' in length by 7'
in depth, between the crusher mantle and
bowl. One employee was leaning over the very
edge of the bowl while working the boom
controls of the R-61 Gardner Denver Air Track
drill. The other employee was standing on
the edge of the bowl while loosening material
directly below him with a water hose. Mine
management failed to insure that fall
protection was used, constituting more than
ordinary negligence.
(Govt. Ex. 1.) Citation No. 4537231 declared:
A means was not provided to prevent
persons from falling, approximately 20' into
the primary crusher cavity from the east and
west sides dump ramps. Both ramps had been
filled to the top of the bumper blocks with
shot rock to allow the backhoe to clean out
the cavity. An employee was standing within
2' of the edge on the west side while
directing the backhoe and the lead
coordinator was standing with 3' of the edge
on the east side. A person falling onto the
shot rock on the bottom of the crusher cavity
would most likely sustain fatal injuries.
The lead coordinator involved was previously
issued two citations during this inspection
for violation of this standard. The lead
coordinator engaged in aggravated conduct
constituting more than ordinary negligence in
that this condition was allowed to exist.
This is an unwarrantable failure.
(Govt. Ex. 3.)
Order/Citation No. 4537230, Docket Nos. LAKE 97-42-RM and LAKE
97-92-M
Order/Citation No. 4537230 was issued as a combined 107(a)
Order and 104(a) citation. Tilden argues that both the order and
the citation should be vacated. The Secretary contends that both
should be affirmed. I find that the order cannot be sustained,
but that the Secretary has established a 104(a) violation.
Imminent Danger Order
Tilden maintains that because the imminent danger order was
issued verbally, and not reduced to writing and served on the
operator until 2 days after the alleged imminent danger, it was
not issued in conformance with Section 107 of the Act. While it
appears to be the company's position that an imminent danger
order must always be issued in writing and can never be issued
verbally and then reduced to writing, I find that based on the
facts in this case, the order was improperly issued.
Section 107 of the Act states, in pertinent part:
(a) If, upon any inspection or
investigation of a coal or other mine which
is subject to this Act, an authorized
representative of the Secretary finds that an
imminent danger exists, such representative
shall determine the extent of the area of
such mine throughout which the danger exists,
and issue an order requiring the operator of
such mine to cause all persons . . . to be
withdrawn from, and to be prohibited from
entering, such area until an authorized
representative of the Secretary determines
that such imminent danger and the conditions
or practices which caused such imminent
danger no longer exist.
. . . .
(c) Orders issued pursuant to subsection
(a) shall contain a detailed description of
the conditions or practices which cause and
constitute an imminent danger and a
description of the area of the coal or other
mine from which persons must be withdrawn and
prohibited from entering.
(d) Each finding made and order issued
under this section shall be given promptly to
the operator of the coal or other mine to
which it pertains by the person making such
finding or order, and all such findings and
orders shall be in writing . . . .
Clearly, the plain meaning of the Act is that an imminent
danger order must be in "writing" and given "promptly" to the
operator. Does this mean that if an imminent danger order is
given verbally and then reduced to writing it is invalid? I
think not. Although it has never directly addressed this
question, the Commission in denying a claim for compensation
under section 111 of the Act, 30 U.S.C. � 821, based on a verbal
imminent danger order, said the following:
The mandate of section 107(d) that an
imminent danger order be written is explicit.
It reflects congressional concern that an
operator be adequately advised of the
imminent danger so that corrective action may
be taken. In so doing it offers protection
to an operator's property and to a miner's
life and limb. Moreover, it offers all
parties procedural protection in any
subsequent litigation by placing them on
notice as to the conditions which constitute
the alleged imminent danger and the
conditions under which the order arose.
Presumably this eliminates much of the
speculation and dispute an oral order would
almost surely engender. This is not to say
that a claim for compensation may never be
based upon an oral finding of imminent
danger. There may well be extraordinary
circumstances wherein an inspector who makes
such a finding fails in or is prevented by
subsequent events from confirming it in a
written order of withdrawal. However, no
such special circumstances were pleaded by
the union. The mere assertion that an
inspector's statements are tantamount to an
oral order without assertions that he
intended to issue an imminent danger order
and as to why the inspector was prevented
from reducing it to writing will not support
a claim.
Williamson Shaft Constructing Co., 3 FMSHRC 32, 33 (January 1981)
(footnote omitted).
Williamson implies that imminent danger orders can be issued
orally and then reduced to writing. That makes sense. To take
Tilden's argument to its logical extreme, if an inspector saw a
rock about to fall on a miner, it would be ridiculous to expect
him to remain silent until he issued a written order telling the
miner to move. Consequently, I conclude that an imminent danger
order may be issued verbally and then reduced to writing.
The next question then is, how soon does it have to be
reduced to writing? Since the written order has be given
promptly to the operator, it follows that the order must be
reduced to writing promptly. The dictionary defines "promptly"
as "in a prompt manner : at once : immediately, quickly."
Webster's Third New International Dictionary (Unabridged) 1816
(1986). Black's Law Dictionary 1214 (6th Ed. 1990) states: "To
do something `promptly' is to do it without delay and with
reasonable speed." In determining what similar words,
"forthwith" and "expedite," mean in section 107(e), 30 U.S.C. �
817(e), the Commission decided: "We conclude that sections
107(e)(1) & (2) require the Commission to provide an opportunity
for a hearing on an imminent danger order with dispatch and
without undue delay but, nevertheless, within a period of time
reasonable under the circumstances of each case. The terminology
requires promptness, but does not require immediacy under all
circumstances." Wyoming Fuel Co., 14 FMSHRC 1282, 1287 (August
1992).
Based on the dictionary definitions and the Commission's
language, I conclude that section 107(d) requires that an
imminent danger order be reduced to writing and given to the
operator "without undue delay but, nevertheless, within a period
of time reasonable under the circumstances of each case."
Turning to the circumstances of this case, I find that the order
was not promptly reduced to writing and given to the operator.
It is undisputed that Inspector Field observed what he
believed to be an imminent danger from the north bay, issued the
verbal order and then proceeded to go to the control where he
interviewed witnesses and made notes. However, the written order
was not given to Tilden until 2 days later. No reason was
provided for this delay. Indeed, no reason was offered as to why
the order could not have been reduced to writing when the
inspector was in the control room. The act requires a written
"detailed description of the conditions or practices which cause
and constitute an imminent danger and a description of the area .
. . from which persons must be withdrawn " so that an operator
can be adequately advised of the imminent danger. Tilden did not
receive such a description until 2 days later. Such delay,
without adequate reasons, renders the requirements of the Act
meaningless. Therefore, I will vacate the 107(a) order.
Crusher Bowl Citation
There is no dispute that when Inspector Field observed the
drill operator and his assistant working at the crusher bowl they
were not wearing life lines. There is, however, disagreement as
to exactly where they were standing and the size of the hole in
the material clogging the crusher. The inspector, who was
standing in the north bay and had his view partially obstructed
by the spider head and parts connecting it to the crusher,
testified that they were right on the edge of the lip and that
the hole was 7 feet deep, 8 feet long and 44 inches wide.[4] The
drill operator and his assistant testified that only the operator
was on the edge of the crusher bowl and that the hole that had
been opened was only 3 feet long and 25 inches wide.
Based on this, Tilden argues that until a hole large enough
to fall into was developed fall protection was not necessary.
Nevertheless, the company did recognize that at some time fall
protection would be needed for the drill operator and his
assistant. In fact, at the time that the inspector made his
observations, Clem Anderson and Donald Powrozek, the company
supervisors in the area, had already ordered that safety lines be
brought in for the drillers. Powrozek said that this was done
because they realized that as the hole developed there could be a
fall hazard.
I find the Respondent's attempt to distinguish between what
had developed and what could develop too contrived. The company
had no way of knowing how fast a hole might progress once a
breakthrough occurred. Thus, it was possible, both at the time
the decision was made not to have the drillers wear safety lines
and at the time safety lines were ordered, that they would arrive
too late. The essence of the Act and the regulations is that
operators should err on the side of safety. See, e.g., Cleveland
Cliffs Iron Co., Inc., 3 FMSHRC 291, 293-94 (February 1981).
Consequently, I find that the drillers should have already had
safety lines attached at the time the inspector observed them and
that, therefore, the company violated section 56.15005 of the
regulations.
Significant and Substantial
The Inspector found this violation to be "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 four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); 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). Evaluation of the criteria 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).
While I have found that a fall was possible in this
instance, I do not view such a happening as being reasonably
likely. The problem had existed for 2 days. None of the usual
methods of unclogging the bowl had been even minimally
successful. Drilling had commenced the day before and had not
produced significant results. In fact, because the regular
methods were tried again the night before the inspection, what
little progress had been made by drilling was reversed and the
problem was worse than ever. With this history, it was not
likely that an immediate hole posing a fall hazard would develop.
Accordingly, I find that the third criterion of the Mathies test,
that there was a reasonable likelihood that the hazard
contributed to would result in an injury, was not present.
Therefore, I conclude that the violation was not "significant and
substantial."
Negligence
The inspector characterized the negligence of this violation
as "high" because he believed that the hazard was obvious,
supervisors were present during the drilling and he had
previously issued citations to the company for violations of the
same standard. The evidence does not support a finding that the
hazard was obvious. The fact that Powrozek and Anderson believed
that a hazard could develop, and took steps to deal with it,
indicates that they were aware of the necessity for safety lines
and were not just oblivious to the situation. Furthermore, their
experience with this specific problem was that nothing was
working. Drilling had not produced any breakthroughs. Since
there was little likelihood of a fall hazard developing, based on
past experience with this situation, their failure to require the
use of safety lines from the start was not "highly" negligent.
Accordingly, I conclude, based on these extenuating and
mitigating factors, that the level of negligence involved in this
violation was "low" and will modify the citation to reflect that
conclusion.
Citation No. 4537231, Docket Nos. LAKE 97-43-RM and LAKE 97-94-M
This citation includes two alleged violations of section
56.15005. The first instance involves a Tilden employee who was
assisting the backhoe operator to clean shot rock out of the pit.
The second involves a supervisor looking into the pit to see how
work was progressing. I find that the Secretary has not proved
either of them.
Turning to the easier one first, the inspector testified
that Clem Anderson came to within 3 feet of the edge of the pit,
stood there for about 15 seconds and then walked away. Anderson
had a tough time recalling this incident because the inspector
did not question him about it when it happened,[5] but he
speculated that it occurred when he was checking to see that the
safety lines were being installed.
This allegation reduces the regulation to an impractical
extreme. In the first place, I find that there was no danger of
falling when Anderson stood 3 feet from the edge for 15 seconds
to make sure the safety lines were being installed. In the
second place, it makes no sense to require a supervisor to put on
a harness and safety line, an act which apparently takes far
longer than 15 seconds, to do no more than observe what is going
on in the pit unless there is a real danger of falling.
Therefore, I conclude that this instance did not violate the
regulation.
Nor did the Secretary prove that the first instance violated
the regulation. The inspector testified that: "Upon accessing
the crusher, we observed an employee on the west side standing
within 2 feet of the edge of the west dump ramp. Upon --- as we
progressed toward the crusher, this employee left the west side
dump ramp and traveled to the north side dump ramp." (Tr. 48.)
The inspector stated that the employee was not "wearing a safety
belt line." (Tr. 52.) He related that he made this observation
when he was between 125 and 150 feet away from the employee. He
further testified that while they were still approaching, when
they were about 75 feet away, the employee moved from where he
was and went into the north repair bay of the crusher building.
The citation was issued based solely in the inspector's
observations set out above. The inspector never discussed the
incident with John Lusardi or Scott Perry, who were accompanying
him during the inspection. He never discussed it with Terry
Kainulainen, the employee who allegedly committed the violation.
And he never questioned anyone at the scene, including Anderson
and Powrozek, as to whether Kainulainen was wearing a safety line
or if he was not, why he was not. Therefore, he did not know
that Kainulainen had been wearing a safety line, that he just
taken it off because his spotting on the west side had been
completed and he was going inside where a safety line was not
needed.
Six witnesses testified at the hearing that Kainulainen was
wearing a safety line. The inspector had not questioned any of
the six prior to the hearing. Powrozek testified that he
instructed Kainulainen to wear a harness and safety line that
morning and that sometime later he observed Kainulainen working
with the harness and safety line on. Kainulainen testified that
he had trouble getting the harness on and had to get help from
another employee to do it. He further testified that he wore the
harness and safety line while serving as a spotter on the west
wall for the backhoe operator. His testimony was corroborated by
Ed Schultz, the backhoe operator. Anderson and Dennis Van Buren
and Wesley Nordeen, the drill operators, also testified that they
saw Kainulainen working with a safety line attached.
None of this testimony is inconsistent with the inspector's
observations. While neither Kainulainen nor Schultz noticed the
inspection team and, therefore, could not specifically say what
was occurring when the inspector arrived at the crusher building,
they did testify that there came a point in time when Kainulainen
could no longer spot by looking over the west wall and that he
then went into the north repair bay to spot from the north wall.
Since there was a waist high wall on the north side, a safety
line was not needed, and Kainulainen had taken off the safety
harness. From the totality of the evidence, I find that this is
what happened as the inspector was approaching the crusher
building.
On the other hand, it appears that the inspector observed
Kainulainen and then assumed that he had been working all morning
without a safety line. Further investigation at the time may
have verified this assumption or it may have convinced the
inspector that no violation had occurred. Instead, no additional
facts or statements were obtained. Consequently, all that the
Secretary has presented is the inspector's assumption, which was
overwhelmingly rebutted by the testimony of six apparently
credible witnesses. This falls far short of proving the
violation. Accordingly, I conclude that neither Anderson nor
Kainulainen violated section 56.15005 and will vacate the
citation.
Civil Penalty Assessment
The Secretary has proposed a civil penalty of $4,000.00 for
Citation No. 4537230 and the parties have agreed on a penalty of
$309.00 for the settled citation. However, it is the judge's
independent responsibility to determine the appropriate amount of
penalty in accordance with the six penalty criteria set out in
section 110(i) of the Act. Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).
In connection with the penalty criteria, the parties
stipulated that the Tilden Mine worked 1,731,443 man-hours from
June 3, 1996 to June 3, 1997, that payment of civil penalties
would not affect Tilden's ability to continue in business, that
Tilden had been cited for 322 violations in the 24-months
preceding June 3, 1997, and that those violations had been issued
during 255 inspection days. Based on this, I find that Tilden is
a large company and that its history of prior violations is
average for a company of its size. I have already found that the
violation in Citation No. 4537230 was not "significant and
substantial." In accord with that finding, I find that the
gravity of the violation was not serious. I have also found that
the degree of negligence for the violation was "low."
Taking all of this into consideration, I conclude that
$250.00 is an appropriate civil penalty for Citation No. 4537230
in Docket No. LAKE 97-92. I further conclude that $309.00 is an
appropriate penalty for Citation No. 4536737 in Docket No. LAKE
97-60, as agreed to by the parties.
ORDER
Accordingly, Citation No. 4536737 is MODIFIED to allege a
violation of section 56.11001, instead of section 56.15005, and
is AFFIRMED as modified, and Citation No. 4536738 is VACATED in
Docket No. LAKE 97-60-M; 107(a) Order No. 4537230 is VACATED and
Citation No. 4537230 is MODIFIED by deleting the "significant and
substantial" designation and reducing the level of negligence
from "high" to "low" and AFFIRMED as modified in Docket Nos. LAKE
97-42-RM and LAKE 97-92-M; and Citation No. 4537231 is VACATED in
Docket Nos. LAKE 97-43-RM and LAKE 97-94-M.
Tilden Mining Company, LC, is ORDERED TO PAY civil penalties
of $559.00 within 30 days of the date of this decision. On
receipt of payment, these cases are DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
R. Henry Moore, Esq., Buchanan
Ingersoll Professional Corporation,
One Oxford Centre,
301 Grant Street, 20th Floor,
Pittsburgh, PA 15219 (Certified
Mail)
Rafael Alvarez, Esq., Office of the
Solicitor, U.S. Department of
Labor, 8th Floor, 230 South
Dearborn Street, Chicago, IL 60604
(Certified Mail)
/fb
**FOOTNOTES**
[1]: Docket No. LAKE 97-94-M, a civil penalty proceeding
concerning Citation No. 4537231, which was contested in Docket
No. LAKE 97-43-RM, had not been filed at the time of the hearing.
The parties agreed, however, that when the civil penalty was
filed it could be consolidated with these matters and adjudicated
without a further hearing. (Tr. 14.) It was filed on September
29, 1997, and consolidated with the rest of the cases on October
30, 1997.
[2]: "Oxygen lanes" are "magnesium rods that are 10 feet
long and they're hooked up to high pressure oxygen." A rod is
"lit with a torch. . . . once it gets hot enough, it will start
burning on its own." (Tr. 198.)
[3]: Section 56.15005 requires, in pertinent part, that:
"Safety belts and life lines shall be worn when persons work
where there is a danger of falling . . . ."
[4]: Given the dimensions of the crusher bowl and the fact
that it was effectively cut in half by the spider, this estimate
seems to be excessive. If the hole had been that large, the job
of unplugging would have been almost done.
[5]: The company was not served with the citation until 2
days later.