<DOC>
[DOCID: f:lk200052.wais]
LARRY M. SCHMELZER, employed by National Steel Pellet Company
December 7, 2000
LAKE 2000-52-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
December 7, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. LAKE 2000-52-M
Petitioner : A.C. No. 21-00249-05679-A
v. :
: Steel Pellet Mine
LARRY M. SCHMELZER, employed by :
National Steel Pellet Company, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. LAKE 2000-53-M
Petitioner : A.C. No. 21-00249-05680-A
v. :
: Steel Pellet Mine
DONALD E. HEALY, employed by :
National Steel Pellet Company, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. LAKE 2000-54-M
Petitioner : A.C. No. 21-00249-05681-A
v. :
: Steel Pellet Mine
DAVID T. BATH, employed by :
National Steel Pellet Company, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. LAKE 2000-55-M
Petitioner : A.C. No. 21-00249-05682-A
v. :
: Steel Pellet Mine
ARTHUR C. BALDWIN, employed by :
National Steel Pellet Company, :
Respondent :
DECISION
Appearances: Robert A. Cohen, Esq., Jennifer Honor, Esq., Office
of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondents.
Before: Judge Feldman
These consolidated proceedings, brought by the Secretary
under section 110(c) of the Federal Mine Safety and Health Act of
1977 (the Mine Act), 30 U.S.C. � 820(c), concern whether civil
penalties should be assessed against each of four supervisory
personnel of National Steel Pellet Company because they "knowingly
authorized, ordered, or carried out" violations of sections
56.6311(b) and (c) of Part 56 of the Secretary's mandatory
safety standards governing the handling and disposal of misfires.
30 C.F.R. � 56.6311(b) and (c). A hearing in these matters was
conducted from October 31 through November 2, 2000, in Duluth,
Minnesota. At the beginning of the third day of trial, the parties
informed me that they had reached a settlement agreement. This
decision formalizes approval of the terms of the parties' agreement.
The underlying facts that gave rise to these proceedings
essentially are undisputed. These proceedings concern a non-fatal
blasting accident that occurred in the early morning on March 4,
1998, at National Steel Pellet Company's (National's) open pit
taconite mine located near Keewatin in Itasca County, Minnesota.
The accident occurred when the teeth of a bucket on a Caterpillar
Model 5230 hydraulic front shovel, operated by Lois Dunn from
the operator's cab located approximately 18 feet above ground
level, apparently detonated a significant quantity of ANFO
(ammonium nitrate and fuel oil mixture) that remained after a
December 15, 1997, shot of Bench No. 1510-85. The Caterpillar
Model 5230 hydraulic front shovel is a very large piece of earth
moving equipment that weighs approximately 700,000 pounds.
The dimensions of Bench No. 1510-85 were approximately
1,200 feet long by 150 feet wide by 40 feet high. National's
blasting records reflect the December 15, 1997, blast was
accomplished by loading a total of 521,970 pounds of ANFO mixture
into 199 drill holes spaced between 28 to 30 feet apart. The
drill holes were 16 inches in diameter and approximately
40 feet in depth. The drill holes were positioned in four rows
that extended the full length of the bench. Each hole contained
two primers and approximately 2,500 pounds of explosives. The
loaded holes were connected with plastic down-line tubing
that was designed to effectuate a sequential detonation.
Bench No. 1510-82 was located adjacent to Bench No. 1510-85.
Bench No. 1510-82 was blasted on November 5, 1997. While Bench
No. 1510-82 was being removed, Bench 1510-85 was being loaded in
preparation for the December 15, 1997 shot. During the course of
removing the blasted material from Bench No. 1510-82, a shovel
operator mistakenly dug into the outer perimeter of Bench No.
1510-85, causing the plastic down-line tubing to become dislodged
from the explosive material that had been placed in approximately
six vertical drill holes near the overburden. The plastic tubing
could not be retrieved from the steep slope of the embankment.
In order to preserve the sequential design of the shot, the
disconnected holes were rewired by bypassing the explosive
material in the six holes. Thus, National knowingly removed
these six holes from the detonation sequence at Bench No. 1510-
85.
National reportedly believed the explosive materials loaded
in these disconnected holes would be dissipated by the force of
the blast. National was wrong. It was estimated that the amount
of ANFO accidentally detonated on March 4, 1998, by Dunn's
hydraulic shovel was comparable to the amount of ANFO used to
destroy the Federal Building in Oklahoma City, Oklahoma.
As a result of an accident investigation conducted by the
Mine Safety and Health Administration (MSHA), National was cited
for violations of sections 56.6311(b) and (c) that govern the
proper procedures for protecting personnel from the hazards
caused by misfires. National did not contest the cited
violations.
In addition, as a result of MSHA's investigation, Larry M.
Schmelzer, National's Senior Mining Engineer, Day Pit Manager
David T. Bath, and, Area Manager Arthur C. Baldwin, were each
charged with knowingly authorizing, ordering, or carrying out
violations of sections 56.6311(b) and (c). The Secretary
sought to impose civil penalties of $2,000.00 on each of these
management personnel, consisting of $1,000.00 for each of the two
cited violations. In addition, National's Division Manager,
Donald E. Healey, was charged with knowingly authorizing,
ordering, or carrying out a violation of section 56.6311(b)
for which the Secretary sought to impose a civil penalty of
$1,000.00.
Specifically, sections (b) and (c) of the cited mandatory
safety standard provide:
� 56.6311 Handling of misfires.
(b) Only work necessary to remove a
misfire and protect the safety of miners
engaged in the removal shall be permitted in
the affected area until the misfire is
disposed of in a safe manner.
(c) When a misfire cannot be disposed of
safely, each approach to the area affected by
the misfire shall be posted with a warning
sign at a conspicuous location to prohibit
entry, and the condition shall be reported
immediately to mine management.
The Commission discussed the criteria for determining if
there is personal liability under section 110(c) of the Mine Act
in Lefarge Construction Materials, and Theodore Dress, 20 FMSHRC
1140 (October 1998). The Commission stated:
The proper inquiry for determining liability under
section 110(c) is whether the corporate agent knew or
had reason to know of a violative condition. Kenny
Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other
grounds, 689 F.2d (6th Cir. 1982), cert. denied, 461
U.S. 928 (1983); accord Freeman United Coal Mining Co.
v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). To
establish section 110(c) liability, the Secretary must
prove only that an individual knowingly acted, not that
the individual knowingly violated the law. Warren
Steen Constr. Inc., 14 FMSHRC 1125, 1131 (July 1992)
(citing United States v. In'l Minerals & Chem. Corp.,
14 FMSHRC 1125, 1131 (July 1992) (citing United States
v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971)).
An individual acts knowingly where he is "in a position
to protect employee safety and health [and] fails to
act on the basis of information that gives him
knowledge or reason to know of the existence of a
violative condition." Kenny Richardson, 3 FMSHRC at
16. Section 110(c) liability is predicated on
aggravated conduct constituting more than ordinary
negligence. BethEnergy Mines, 14 FMSHRC at 1245.
20 FMSHRC at 1148.
Determining whether an agent's conduct constitutes the
requisite aggravated conduct to impose personal liability under
section 110(c) requires consideration of the degree of risk posed
to miners by the cited violations. It is axiomatic that, "[t]he
risk reasonably to be perceived defines the duty to be owed."
Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928). Thus, when
violations expose miners to a high degree of danger, a heightened
standard of care is required of management personnel. 20 FMSHRC
at 1147. A good faith belief that a condition is not unsafe is
not a defense to 110(c) liability if such belief is unreasonable.
Id. at 1150.
Section 56.6000 of the Secretary's regulations set forth the
definitions of the terms that are used in the Secretary's
regulations governing the safe use of explosives. 30 C.F.R.
� 56.6000. Section 56.6000 defines the term "misfire" as:
The complete or partial failure of explosive
material to detonate as planned. The term is
also used to describe the explosive material
itself that has failed to detonate.
(Emphasis added).
During the first two days of the hearing, the respondents
denied liability based on their assertion that a "planned
detonation" is a condition precedent to the applicability of
sections 56.6311(b) and (c) concerning misfires. The respondents
note that the ANFO, and the related blasting caps and primers,
were intentionally disconnected and bypassed during the
sequential December 15, 1997, blast. Thus, the respondents argue
the subject explosives were not misfires because there was no
"failure of explosive material to detonate as planned " as
required by section 56.6000 because detonation of these
disconnected loaded holes was not attempted.
At trial, the Secretary maintained that misfires commonly
occur when explosives, for whatever reason, become detached from
the connecting detonating cord. Thus, the Secretary asserts that
explosives are "misfires" regardless of whether the explosives
were intentionally, or unintentionally, disconnected from the
blasting cord.
The parties' settlement agreement precludes the adjudicatory
resolution of the applicability of sections 56.6311(b) and (c) to
the March 4, 1998, accidental blast. However, I note,
parenthetically, that a s afety standard must be construed
in accordance with its intended purpose. Consolidation Coal
Company, 15 FMSHRC 1555, 1557 (August 1993). Thus, when
interpreting a regulatory standard, the ordinary meaning of words
must prevail unless such meaning thwarts the purpose of the
regulatory standard or otherwise leads to an absurd result.
Emery Mining Corporation, 9 FMSHRC 1997, 2001 (December 1997).
At the beginning of the third day of trial, the parties
proffered a verbal settlement agreement that was approved on the
record. The settlement terms were formalized in a written joint
motion to approve settlement filed on November 15, 2000.
Pursuant to the terms of the agreement, Larry M. Schmelzer and
Arthur C. Baldwin have each agreed to a reduction in total civil
penalty, from $2,000.00 to $1,000.00, consisting of $500.00 for
each of their knowing violations of the mandatory regulatory
safety standards in subsections (b) and (c) of section 56.6311.
The parties' settlement terms include the dismissal of the civil
penalty cases against Donald E. Healy and David T. Bath because
the evidence is inadequate to demonstrate Healey or Bath knowingly
violated either of the cited mandatory safety standards.
ORDER
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered settlement
is appropriate under the criteria set forth in Section 110(i) of the
Act. WHEREFORE, the motion for approval of settlement IS GRANTED,
and IT IS ORDERED that Larry M. Schmelzer and Arthur C. Baldwin
each pay, within 30 days of the date of this Decision, as the
Secretary shall direct, a total civil penalty of $1,000.00 in
satisfaction of the two citations in issue. Upon timely receipt
of payment, Docket Nos. LAKE 2000-52-M and LAKE 2000-55-M ARE
DISMISSED.
IT IS FURTHER ORDERED, consistent with the parties'
agreement, that the civil penalty proceedings in Docket Nos. LAKE
2000-53-M and LAKE 2000-54-M brought by the Secretary against
Donald E. Healy and David T. Bath ARE DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Robert A. Cohen, Esq., Jennifer Honor, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite
400, Arlington, VA 22203 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, One Oxford Centre,
301 Grant Street, 20th Floor, Pittsburgh, PA 15219 (Certified
Mail)
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