[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.