.
SHINE QUARRY INC.
August 15, 1995
WEST 95-165-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 15, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-165-M
Petitioner : A.C. No. 45-03208-05515
v. :
: Shine Quarry
SHINE QUARRY INC., :
Respondent :
DECISION
Appearances: Cathy L. Barnes, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington,
for Petitioner;
Erwin P. Jones, Jr., Sequim, Washington, for
Respondent.
Before: Judge Amchan
Background
On August 18, 1994, MSHA Inspector Wallace Myers issued
Imminent Danger Order/Citation No. 4341786 alleging that
Respondent violated sections 107(a) and 104(a) of the Act, and
section 56.3200 of Volume 30 of the Code of Federal Regulations.
MSHA subsequently proposed a $315 civil penalty for this alleged
violation. The penalty was contested and this matter came to
hearing on June 8, 1995, in Seattle, Washington.
Section 56.3200 provides as follows:
Ground conditions that create a hazard to persons
shall be taken down or supported before other work
or travel is permitted in the affected area. Until
corrective action is completed, the area shall be
posted with a warning against entry and when left
unattended, a barrier shall be installed to impede
unauthorized entry (emphasis added).
The August 18, 1994 inspection
Respondent operates a basalt rock quarry on the Olympic
Peninsula, west of Seattle, Washington. The basalt is
separated from the quarry wall by drilling and blasting (Tr.
71, 103-04). It is crushed, sized and then sold primarily to
small local contractors for use on private driveways and in
the construction of ornamental walls (Tr. 111). There is no
evidence that any of the mine's product is sold outside of
the State of Washington (Tr. 111).
When Inspector Myers arrived at the quarry on August 18,
1994, he observed one of Respondent's employees operating a
Caterpillar front-end loader approximately 14 to 20 feet from
the quarry wall. The loader operator was clearing rocks off
of a roadway on the quarry floor (Tr. 14-15, 38-39, 63, 89-90).
The quarry wall is approximately 700 feet long and from
50 to 70 feet high (Tr. 16, 71). Respondent had blasted
sections of this wall on August 12 and on August 17, 1994
(Tr. 41, 104, 109, 118). On the day of the inspection Myers
observed several large boulders on the quarry wall which he
considered unstable. He also observed some smaller rocks
dribbling down the slope of the wall for approximately a
minute (Tr. 15-34).
Beneath the newly blasted areas were "muck piles" which
are ramp-like projections extending out from the wall
approximately 30 to 50 feet (Tr. 45, 119-20, Exhs. P-7, 8 and
9, R-2 and 3). In some areas there were indications that a
muck pile had been disturbed by some of Respondent's equipment
(Tr. 38, P-8). Inspector Myers concluded that the unstable
boulders presented an imminent danger to the front-end loader
operator and any other miner who might go near the quarry wall.
He therefore issued section 107(a) order/section 104(a) Citation
No. 4341786.
In response to this order, Respondent erected a barricade
of rocks (Tr. 47, Exh. P-7). On the day after the order/citation
was issued, Respondent's driller/blaster Lloyd Fultz drilled
four holes and then blasted one large boulder off the quarry
wall (Tr. 126-28). On August 22, 1994, Inspector Myers
returned to the quarry and the citation/order was terminated
(Tr. 124-25).
Respondent's Quarry is Subject to the Mine Act
Respondent argues that because it sells only to local
contractors who construct driveways and ornamental walls, it
is not engaged in interstate commerce and thus is not subject
to the Federal Mine Safety and Health Act. However,
Respondent buys parts and supplies from a firm in Portland,
Oregon, and uses Caterpillar brand equipment (Tr. 113-14),
which is generally manufactured in the State of Illinois. I
find these factors alone sufficient to establish MSHA
jurisdiction, United States v. Dye Construction Company, 510
F.2d 78, 83 (10th Cir. 1975).
Congress intended to exercise its authority to regulate
interstate commerce to the "maximum extent feasible" when it
enacted the Mine Act, Jerry Ike Harless Towing, Inc. and
Harless, Inc., 16 FMSHRC 683 (April 1994); U.S. v. Lake, 985
F.2d 265, 267-69, (6th Cir. 1985). Thus, if Respondent's
quarry falls within the scope of the commerce clause, it is
subject to MSHA jurisdiction.
Purely local activity falls within the commerce clause if
it affects interstate commerce, Wickard v. Filburn, 317 U. S.
111 (1942). Indeed, regardless of the strictly local nature
of a particular business, Congress can regulate its affairs on
the basis of the class of activity in which it engages, Perez
v. United States, 401 U.S. 146 (1971).
In enacting the Federal Mine Safety and Health Act,
Congress found that "the disruption of production and the
loss of income to operators and miners as a result of coal or
other mine accidents or occupationally caused diseases unduly
impedes and burdens commerce," 30 U.S.C. � 801(f). Thus,
regardless of the local nature of its business, Respondent is
subject to the Act simply by virtue of the fact that it is
engaged in mining.
The evolution of Supreme Court cases since Wickard v.
Filburn has brought virtually every commercial activity in the
United States within the purview of the commerce clause. This
trend continues despite the recent decision in United States v.
Lopez, 514 U.S. , 131 L.Ed 2d 626, 115 S Ct (1995). In
Lopez, the Court invalidated the Gun-Free School Zones Act of
1990 on the grounds that it exceeded congressional authority
under the commerce clause.
Chief Justice Rehnquist stated in the opinion of the court
that to determine whether an activity affects interstate
commerce "the proper test requires an analysis of whether the
regulated activity 'substantially affects' interstate
commerce," 131 L.Ed 2d at 637. However, it is clear that the
decision rests on the proposition that the invalidated statute
has nothing to do with "commerce" or any sort of economic
enterprise, 131 L.Ed 2d at 638, 642 (Chief Justice Rehnquist),
and 653 (Justices Kennedy and O'Connor, concurring). I
therefore conclude that the decision has no bearing on whether
a mining operation, even one which is purely intrastate in
scope, is subject to the Act. Thus, as was the case before
United States v. Lopez, Respondent falls within the commerce
clause and is covered by the Federal Mine Safety and Health
Act.
The Substantive Issue Presented
Respondent's President, Clifford Larrance, arrived at the
quarry on August 18, shortly after Inspector Myers departed
from the mine (Tr. 87). Larrance contends that the quarry
wall did not create a hazard to persons because the muck piles
prevent any loose material on the wall from reaching any miner
who works on the pit floor (Tr. 92-93, and 100-101, testimony
of Lloyd Fultz). The muck piles consist of loose,
unconsolidated material which absorbs the energy of any rocks
that may fall, preventing them from rolling or bouncing down
to the pit floor (Tr. 92-93).
The essence of this case is whether, in view of the muck
piles underneath the recently blasted areas, the condition of
the quarry wall was shown to create a hazard to persons[1]. As
this is a subjective judgement, the question under Commission
law is whether a reasonably prudent employer familiar with the
mining industry and the protective purposes of the standard
would have recognized that the condition of Respondent's
quarry wall posed a hazard to persons on the pit floor, Ideal
Cement Company, 12 FMSHRC 2409 (November 1990).
It is a normal condition to have loose material on a quarry
wall after blasting (Tr. 65). MSHA does not require that all
such material be taken down before miners are allowed to work
below it. Thus, before finding an operator in violation of
section 56.3200, it is only proper that conditions be shown to
pose a danger from an objective standpoint.
Given the instant record, I find that the Secretary has
not established a violation of section 56.3200. I therefore
vacate Citation No. 4341786 and the proposed penalty.
Although Inspector Myers considered the quarry wall hazardous,
he has limited training and experience in ground control and
related disciplines (Tr. 6-8, 57, 66). I do not regard his
opinion as representing the standard of care of a reasonably
prudent mine operator in this case.
In view of what appears to be an honest difference of
opinion as to the safety of Respondent's quarry, the Secretary
must do more than present the opinion of a non-expert inspector
to meet its burden of proof under a general standard such as
section 56.3200. For example, in Cyprus Tonopah Mining,
15 FMSHRC 367 (March 1993), the Commission upheld a violation
of this standard where the Secretary's case was supported by
the testimony of a mining engineer regarding the stability of
the operator's wall.
Much of the testimony in this matter, which appears to be
relevant at first glance, has little bearing on the validity
of the citation. For example, there was some discussion as to
whether the muck pile had been disturbed and whether the
loader operator would have been closer to the quarry wall than
he was when observed by Inspector Myers.
I conclude that the only issue is whether the Secretary
has shown that the muck piles were insufficient to protect
employees from loose material on the quarry wall. Since I
find that he has not done so, it does not matter how close the
loader operator, or other employees, may have come to the muck
pile. There is no evidence that would support a finding that
any person went on top of the muck pile, had reason to go on
the muck pile, or that any muck pile was disturbed at a time
when the portion of the quarry wall above it posed a
hazard[2].
ORDER
Citation No. 4341786 and the corresponding proposed penalty
are VACATED.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Cathy L. Barnes, Esq., U.S. Department of Labor, Office of
the Solicitor, 1111 Third Ave., Suite 945, Seattle, WA 98101
(Certified Mail)
Erwin P. Jones, Jr., Esq., 441 W. Washington, P.O. Box 1419,
Sequim, WA 98382 (Certified Mail)
\lh
**FOOTNOTES**
[1]:Respondent's driller/ blaster, Lloyd Fultz, testified
about a rock that "looked pretty bad" at first glance but upon
close examination "wasn't that bad" (Tr. 105). From this one
might conclude that a particular boulder did pose a potential
hazard to persons on the pit floor. However, without evidence
as to why Respondent's muck pile was inadequate to protect
miners on the quarry floor, I decline to draw such an inference.
[2]:A muck pile was apparently disturbed with a Caterpillar
shovel on or before August 12, 1994 (Tr. 38, 72-74).