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[DOCID: f:se200127.wais]
U.S. STEEL MINING COMPANY, LLC
August 2, 2001
SE 2001-27
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 2, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 2001-27
Petitioner : A. C. No. 01-00851-04092
v. :
: Oak Grove Mine
U.S. STEEL MINING COMPANY, LLC, :
Respondent :
DECISION
Appearances: William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama, on
behalf of Petitioner;
S. Andrew Scharfenberg, Esq., Ford & Harrison, LLP,
Birmingham, Alabama
on behalf of Respondent.
Before: Judge Zielinski
This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor against U.S. Steel Mining
Co., LLC, pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977 (the "Act"). 30 U.S.C. � 815. The petition
alleges a single violation of the then applicable noise standard,
30 C.F.R. � 70.501,[1] and proposes a civil penalty of $399.00.
A hearing was held in Hoover, Alabama on June 14, 2001. For the
reasons set forth below, I affirm the citation and impose a civil
penalty of $225.00.
Findings of Fact
On May 31 and June 1, 2000, John R. Craddock, an inspector
and health specialist for the Secretary's Mine Safety and Health
Administration (MSHA), conducted dust sampling and a noise survey
during the midnight shift at U.S. Steel's Oak Grove Mine. The
focus of his noise survey was the longwall mining operation.
The highest level of noise that a miner may be continuously
exposed to for an entire 8 hour shift is 90 dB (decibels).
Higher levels of noise, up to 115 dB, may be sustained for
shorter durations. Exposures to varying levels of noise of 90 dB
or higher over different time periods are computed using a
formula set forth in 30 C.F.R. � 70.502. The result is a time
weighted average (TWA) of exposure to noise expressed as a
percentage of the maximum allowable exposure, with 100 being the
equivalent of 8 hours of exposure to 90 dB. The standard is
considered to have been violated if the TWA exposure exceeds 100.
MSHA allows for an error reading of 2 dB. Consequently, the
maximum allowable TWA used by health inspectors is 132, the
equivalent of 8 hours of exposure at 92 dB. Under the regulatory
scheme then applicable, if a miner wore some form of hearing
protection, e.g., ear plugs, the T WA of the miner's noise
exposure was multiplied by the device's noise reduction rating
(NRR) to arrive at a final noise exposure level for that miner.
For example, if a miner was exposed to noise with a measured TWA
of 200, but wore ear plugs with a NRR of 0.25, his actual
exposure would be only 50 (200 x 0.25 = 50), well below the
allowable limit of 132.
MSHA inspectors use an electronic device called a dosimeter
to measure noise levels. For this inspection, Quest model Q200,
dosimeters were used. They had been approved as measuring
devices and had been calibrated as required by regulation.
Specific miners are designated to wear dosimeters for the entire
shift. 30 C.F.R. � 70.500(f) described a dosimeter:
(f) Personal noise dosimeter means equipment worn by
an individual, which performs noise level measurements
along with exposure time measurements. The circuitry
of the instrument is such that it automatically
performs the computation of the multiple noise exposure
specified in � 70.502.
The dosimeter continually monitors the noise levels to which
the miner is exposed and calculates the level of exposure as a
function of the noise level and time of exposure. The results
are reported on a digital display as a percentage of the TWA of
the maximum allowable noise exposure. Taking into account the
error factor used by MSHA, readings above 132, after taking into
account the NRR of any hearing protection worn by the miner,
indicate exposure to excessive noise in violation of the
standard.
Inspector Craddock followed his normal procedure in
conducting the dust and noise surveys. He arrived at the mine
site at about 10:00 pm on May 31, 2000, about an hour before the
midnight shift began. He met with the longwall shift foreman,
Steve Hayes, and designated the miners who were to wear the
dosimeters and dust pumps. Five miners were designated to wear
dosimeters; B. Boyd, a stage loader; D. Ingle, the longwall
shearer operator; S. Reed and A. William, two shield operators;
and, S. Bartges, an electrician. Dosimeters and dust pumps were
distributed at a table near the dressing area shortly before the
miners went underground.
The measuring devices were activated about 10 minutes before
the start of the shift and Craddock traveled underground with the
men to monitor the testing. When they arrived below ground, he
checked the dust pumps and dosimeters,[2] and walked
approximately 1,000 feet with the longwall crew to the longwall
operation. Before production began, parameters of dust control
devices on the longwall mining machine had to be tested and the
men were all in the relatively confined area at the head gate of
the longwall while this was done. Craddock has extensive
experience as a coal miner and over 30 years of experience as an
inspector, including 15 years as a health inspector. He had
inspected the mine in the past and knew many of the miners,
including David Ingle. There was an ongoing exchange of
conversation between Craddock and the miners, including
considerable bantering and joking. Craddock recorded information
necessary for the noise survey report, the miners' names, the
serial numbers of the dosimeters, the miners' jobs and
corresponding codes and the time the dosimeters were turned on.
He asked each of the miners whether he wore hearing protection
and, if so, he determined the type of hearing protection and its
NRR, and also recorded that information. Whether the miner wears
hearing protection is important information because noise
exposure in a longwall operation will generally exceed allowable
limits and the wearing of hearing protection with an adequate NRR
would be essential to avoiding a violation of noise exposure
regulations.
The light-hearted conversation and joking between Craddock
and the miners continued throughout this process, including his
efforts to obtain information about hearing protection. One
miner stated in response to Craddock's inquiry that he just put
tissue in his ears. Another responded that he had worms in his
ears. Ingle responded that he didn't have any of that stuff in
his ears, he just wore a "hood," an elastic neck warmer that he
pulled up over his head. Despite the joking, the miners did
eventually supply information about hearing protection to
Craddock. As he explained, "they know you're serious and they
will eventually give you a straight answer" about whether they
wear hearing protection and what type it is. Craddock recorded
their responses on his report form and examined the packaging of
the ear plugs that the miners produced to obtain the NRR for that
particular device. Notably, Ingle, the shearer operator, never
provided Craddock with information different from his original
response, to the effect that he did not wear hearing
protection.[3] Ingle's foreman, Steve Hayes, was present during
this banter, including Ingle's response to Craddock's inquiry
about hearing protection, and did not contradict the information
supplied by Ingle, although he may have smiled during the
exchange.[4] After checking the parameters for dust control on
the longwall shearer, e.g., the number and minimum pressure of
sprays, and gathering the information from the miners, production
commenced with the longwall shearer making a pass toward the
tailgate.
Craddock stayed near the head gate to record air and gas
measurements. He then caught up with the shearer about half way
to the tailgate and again made air and gas measurements. He
caught up to the shearer again near the tailgate and again took
air and gas readings. After the longwall shearer reached the
tailgate, Ingle performed a cut out operation and backed the
shearer up, preparing to make another pass toward the head gate.
He was facing the coal face, holding the remote control for the
shearer in his hands, when Craddock approached him from his left
side. Craddock pulled the "hood" on Ingle's head back to look
into his left ear. Craddock did that because he wanted to check
to see if Ingle was wearing hearing protection. Because of the
joking that had gone on earlier, he felt that there was a
possibility that Ingle was kidding him when he said that he
didn't wear hearing protection.
In addition to the "hood," which miners wear for warmth and
to reduce the amount of coal dust on their heads, Ingle wore an
"airstream" helmet and face shield. The helmet extended over, or
around, his ears, but did not prevent someone from looking into
his ears. Ingle did not see Craddock as he approached and the
attempt to check Ingle's hearing protection surprised him
somewhat.[5] He turned toward Craddock when he felt the tug on
his "hood" and Craddock, thereafter, left the area and had no
further contact with Ingle. Craddock did not observe ear plugs
or any other form of hearing protection in Ingle's left ear.
Craddock collected the dust pumps, which are required to be
operated for no more than 8 hours, and went to the surface about
7:00 am. He encountered Hayes on the way out and responded "no"
when Hayes asked him if he had found anything. Dosimeters,
which must be operated for the entire shift, were collected when
the shift ended and the miners came into the bathhouse/dressing
area. Craddock checked and recorded the results of the dosimeter
survey from the readout display on the machines. B. Boyd's
dosimeter provided a reading of 213.2. However, the NRR of
his ear plugs was 0.125, which reduced that reading well below
the allowable limit of 132. S. Reed's dosimeter displayed a
reading of 164.1. Applying the 0.0719 NRR of his ear plugs
also reduced his exposure below the allowable limit. Ingle's
dosimeter displayed a reading of 324.0, the equivalent of 8 hours
of exposure to noise in excess of 98 dB.[6]
Because Ingle's dosimeter reading substantially exceeded the
allowable limit of 132, and he had not worn hearing protection,
Craddock issued Citation No. 7664187 for what he perceived to be
a violation of noise standard regulations. He determined that it
was highly likely that a miner exposed to that noise level over
his "working life" would suffer permanent hearing loss,
classified the violation as "significant and substantial" and the
degree of operator negligence as moderate. He served the
citation on Gary McGough, Respondent's midnight shift safety
inspector. At no time, including during the post inspection
conference, did anyone protest or contradict Craddock's
determination that Ingle was exposed to excessive noise because
he was not wearing hearing protection.
Conclusions of Law - Further Factual Findings
In an enforcement proceeding under the Act, the Secretary
has the burden of proving an alleged violation by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd.,
Secretary of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096
(D.C.Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303, 1307 (July
1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov.
1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907 (May 1987).
The determination of whether there was a violation in this
instance turns upon the factual question of whether Ingle was
wearing hearing protection. Ingle testified that he was, in
fact, wearing hearing protection in the form of ear plugs issued
by Respondent.[7] He confirmed that he told Craddock that he
didn't wear anything in his ears, but explained that he knew
Craddock quite well and was just joking with him, as the other
miners were doing at the time. Respondent, also relying upon
Ingle's testimony, challenges Craddock's determination that Ingle
was not wearing ear plugs, arguing that the partial ear covering
provided by Ingle's helmet and the "hood" he was wearing, as well
as the angle at which Craddock had to look into Ingle's ear and
the fact that the ear plugs Ingle was wearing, as well as Ingle's
ear, were likely dirty from coal dust, would have made the ear
plug difficult, if not impossible, to see in the brief
opportunity provided by Craddock's pulling back of the "hood."
Craddock, however, testified that he had an adequate opportunity
to observe whether Ingle had an ear plug in his left ear and that
he definitely did not.
I find that Ingle was not wearing ear plugs at the time
Craddock checked his ear during the operation of the shearer. I
accept the testimony of Craddock, a highly experienced miner and
inspector, that he was able to determine by looking into Ingle's
left ear, that he was not wearing an ear plug. He had a brief,
but adequate, opportunity to observe Ingle's left ear. While a
longwall operation undoubtedly creates a lot of dust, less than
one-quarter of a shift's production had occurred and the hood
would have provided some barrier to the accumulation of dust in
the area of Ingle's ear. Respondent contends that Ingle may have
been wearing ear plugs he had used for as much as several weeks
and that they may have been more black than orange.[8] Even if
Ingle had been wearing dirty ear plugs, however, they would have
been observable to Craddock. I also find it highly unlikely that
Ingle, knowing the serious nature of a noise survey, would not
have eventually given Craddock a "straight answer," if he was
going to wear hearing protection that day.
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
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co, 6 FMSHRC 1, 3-4 (Jan. 1984), the
Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature. (footnote omitted)
See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th
Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015, 2021
(Dec. 1987) (approving Mathies criteria).
In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August
1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836
(August 1984). We have emphasized that, in accordance
with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of
a hazard that must be significant and substantial.
U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868
(August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574-75 (July 1984).
This evaluation is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. 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 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (Dec. 1987).
I find that the Secretary has not carried her burden of
proving that the violation was S&S. One could hardly dispute
Craddock's assessment that exposure to the equivalent of 98 dB of
noise over the course of a miner's working life, would result in
permanent hearing loss if no hearing protection was provided or
used. Ingle's TWA exposure was the equivalent of 8 dB above the
permissible limit for an 8 hour period. That is a significantly
high exposure. However, MSHA allows 2 dB, to account for reading
errors. While it is no doubt true, as explained by Judy
McCormick, MSHA's supervisory health specialist, that the chance
of hearing loss increases as the TWA increases, there was no
evidence to quantify the degree to which the risk increased due
to Ingle's actual exposure.
More significantly, assessments of the risk of hearing loss
associated with levels of exposure in the range of 98 dB appear
to be predicated on long-term exposure, e.g. working life.[9]
The duration of the exposure is an important factor in the risk
analysis. The violation established that Ingle was exposed to a
TWA of 324, but only for one shift. While he would typically be
exposed to that level of noise, it appears that his not wearing
hearing protection was the exception, rather than the rule. In
the absence of evidence tending to show that Ingle rarely wore
hearing protection, the Secretary has failed to establish that
the relatively short duration of the violation here was highly
likely to result in permanent hearing loss, or that it was
reasonably likely that the hazard contributed to would result in
an injury of a reasonably serious nature.
The Appropriate Civil Penalty
U.S. Steel's Oak Grove Mine is a very large producer, over
two million tons per year, and its controlling entity is also
very large, producing from five to ten million tons per year. It
has a relatively good history of violations, having paid 570
violations issued in the two years preceding the citation here.
Those citations were largely single penalty assessments and were
issued in 853 days of inspections, yielding a relatively low
ratio of violations to inspection days of 0.67. As noted above,
I do not find that the violation was S&S, and consequently, would
reduce the gravity to reasonably likely to result in lost work
days or restricted duty. I also find that Respondent's
negligence was somewhat lower than "moderate." Had Respondent's
hearing protection policy been complied with, there would not
have been a violation. Ingle's foreman, at least to that time,
had reason to believe that Ingle was "pretty good" about wearing
his hearing protection. He could, perhaps, be faulted for
tolerating the light-hearted banter and joking that occurred as
Craddock inquired about hearing protection. However, the
majority of the miners provided the information, and Hayes may
have been unaware that Ingle had not eventually supplied the
information. The violation was promptly abated.
Considering all of these factors, I assess a civil penalty
of $225.00.
ORDER
Based upon the foregoing, Citation Number 7664187 is
AFFIRMED and Respondent is ORDERED to pay a civil penalty in the
amount of $225.00.
Michael E. Zielinski
Administrative Law Judge
**FOOTNOTES**
[1]: The noise regulations applicable at the time were found
in Title 30 C.F.R., Subpart F, �� 75.000, et seq. Subpart F was
removed from the regulations, effective September 13, 2000, and
replaced with Subpart M, Part 62 - Occupational Noise Exposure.
The original regulatory reference in the citation was to 30
C.F.R. � 70.510(a). Prior to the hearing, the citation was
amended to cite a violation of 30 C.F.R. � 70.501.
[2]: MSHA's policy manual specifies that miners wearing
dosimeters are to be observed "frequently' during the shift. In
practice, observations are made at the beginning of the shift and
as other miners wearing dust pumps are checked.
[3]: At some point, Ingle stated that he had ear plugs in
his "bucket" in the "kitchen or dinner hole." Craddock
questioned what good they were going to do him back there.
[4]: There was testimony on cross-examination of Craddock
that Hayes smiled. However, it is unclear whether Craddock was
referring to Ingle or Hayes.
[5]: Ingle testified that he thought Craddock was joking and
that he "didn't think anymore about the situation."
[6]: One of the dosimeters failed to record and the other,
worn by the electrician, who likely did not spend a great deal of
time in close proximity to the longwall shearer, displayed a
reading of 102.6. A table showing the sound level which, if
constant over 8 hours, would result in the same noise dose as
measured and displayed by a dosimeter, is found in the Appendix
to the current regulations, 30 C.F.R., Subchapter M, Part 62.
[7]: After the citation was issued Ingle was questioned
about it by James Bell, the union safety representative, and by
Giovanni Buckarelli, Respondent's safety manager. Ingle told them
that he put his ear plugs in before beginning production and
would testify to that effect. Respondent issued hearing
protection to its miners and its policy on hearing protection
required that it be worn in noisy conditions, e.g., when the
shearer or other loud mechanical equipment was operating.
Respondent points out that the longwall miners were not obligated
to wear hearing protection prior to beginning production and
would not have had ear plugs in their ears when they were talking
with Craddock. At the time Craddock looked into Ingle's ear,
however, Ingle would have been required to wear hearing
protection.
[8]: Respondent also contends that the entire inspection was
fraught with errors, questioning whether the dosimeters were
approved devices and had been properly calibrated, the manner in
which Craddock attempted to look into Ingle's ear and the failure
to conduct a follow-up noise survey after submission of its
hearing conservation plan. With the possible exception of the
manner in which Craddock attempted to look into Ingle's ear, none
of these criticisms are valid.
[9]: See the background and related discussion included in
the publication, as a final rule, of the current noise
regulations. Health Standards for Occupational Noise Exposure;
Final Rule, 64 Fed. Reg. 49548 (September 13, 1999).
Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 150 Chambers Bldg., 100 Centerview Drive, Birmingham, AL
35216 (Certified Mail)
Anthony F. Jeselnik, Esq., U.S. Steel - Law Dept., USX Tower,
Fifteenth Floor, 600 Grant St., Pittsburgh, PA 15219-2749
(Certified Mail)
S. Andrew Scharfenberg, Esq., Ford & Harrison, LLP., 505 N. 20th
Street, Suite 1201, Birmingham, AL 35203 (Certified Mail)
/mh