.
KNIFE RIVER COAL MINING CO.
August 8, 1996
WEST 95-500
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 8, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-500
Petitioner : A. C. No. 24-00106-03516
v. :
: Savage Mine
KNIFE RIVER COAL MINING CO., :
Respondent :
DECISION
Appearances: Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner; Laura E. Beverage, Esq., and
Rebecca Graves Payne, Esq., Jackson & Kelly,
Denver, Colorado, for Respondent.
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of
Civil Penalty filed by the Secretary of Labor, acting
through his Mine Safety and Health Administration
(MSHA), against Knife River Coal Mining Company pursuant
to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. � 815. The petition alleges two
violations of the Secretary's mandatory health and
safety standards and seeks a penalty of $2,000.00. For
the reasons set forth below, I affirm the citation and
order and assess a penalty of $2,000.00.
A hearing was held on March 1, 1996, in Billings,Montana.
In addition, the parties filled post-hearing briefs in
this matter.
Background
The Basic facts are not disputed. On February 8,
1995,Bryan Carr and another miner were blasting in the
Savage Mine pit. They were not able to detonate their
last shot before quitting time. Carr suggested to Rich
Kalina, Mine Superintendent, that since Kalina was a
certified blaster he could set off the shot.
Carr then proceeded to the bath house to shower and go home.
As he was combing his hair after showering, Kalina came into
the bath house and requested that Carr return to the pit
with him because the shot had not detonated. Kalina was in
a hurry. As he was leaving the bath house, Carr turned to
go back in and get his hard hat and hard toe boots. At that
point Kalina said, "We don't have time, let's go." (Tr. 52,
434.)[1]
Carr accompanied Kalina to the pit without his hard hat or
hard toe boots. Once there, he proceeded to detonate the
shot. He then returned to the bath house. The whole
incident took about 20 minutes.
Carr filed a 103(g), 30 U.S.C. � 813(g), request concerning
this incident.[2] MSHA Inspector James Beam conducted an
investigation of this request on April 19, 1995. As a
result of his investigation, he issued Citation No. 3591319
and Order No. 3591320 under section 104(d)(1) of the Act.[3]
The citation alleges a violation of section 77.1710(d), 30
C.F.R. � 77.1710(d), because "[a] miner was transported to
the pit by the mine superintendent to assist in a coal shot
on February 8, 1995. The miner was not wearing a suitable
hard hat. The Superintendent said he knows the miner should
of [sic] had a hard hat on." (Govt. Ex. 2.) The order sets
out a violation of section 77.1710(e) in that "[a] miner was
transported to the pit by the mine superintendent on
February 8, 1995 to assist with a coal shot. The miner was
not wearing suitable protective footwear. The
Superintendent said he knows the miner should have had
protective footwear on." (Govt. Ex. 3.)
The regulation states that:
Each employee working in a surface coal mine or in
the surface work area of an underground coal mine shall
be required to wear protective clothing and devices as
indicated below:
. . . .
(d) A suitable hard hat or hard cap when in or
around a mine or plant where falling objects may create
a hazard. . . .
(e) Suitable protective footwear.
Findings of Fact and Conclusions of Law
There can be little doubt that these two sections of the
regulation were violated when Carr went to the pit and detonated
a blast without his hard hat and hard toe boots. Indeed, the
Respondent does not even address the issue of whether the
regulation was violated in its brief. Accordingly, I conclude
that this conduct violated the regulation. The company does,
however, contest the allegations that the violations were
"significant and substantial" and resulted from an "unwarrantable
failure."
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).
As is usually the case, it is the third and fourth Mathies
criteria, i.e., whether there was a reasonable likelihood that
the hazard contributed to by the violation would result in an
injury and whether there was a reasonable likelihood that the
injury would be of a reasonably serious nature, which are at
issue. The Respondent concedes that the first two criteria, a
violation of a mandatory health standard and a discrete health or
safety hazard contributed to by the violation, are present in
this case. (Resp. Br. at 14.)
The inspector testified that the hazards that a hard hat and
protective shoes would have shielded against were rocks falling
from the highwall and flyrock or coal propelled through the air
by the blast. He submitted that "[i]t wouldn't be very
difficult, it would be easy to be injured" under the facts in
this case. (Tr. 12.) He stated that a fractured skull, broken
toes, cuts or bruises serious enough to result in lost work time
could occur.
The Respondent argues that Carr was not working near the
highwall or falling material, that injuries sustained when
failing to wear protective footwear would not be reasonably
serious and that Carr was only exposed to a potential hazard for
a short period of time. These arguments are not persuasive.
The testimony indicated that the highwall was approximately
55 feet high. Carr testified that he went within 15 feet of the
highwall to check the misfire and to make sure that the deta cord
was properly attached to the charges. He estimated that this
took him five or six minutes. He then went about 30 feet from
the highwall to attach the blasting cap to the deta cord. After
the shot, he related that he again went within 15 feet of the
highwall to make sure that all rounds of the explosive had
detonated.
In addition, both Carr and the inspector testified that
there was a lot of sloughage off of the highwall. Carr stated
that the highwall was at the worst end of the pit for sloughage
because there was a significant gravel pocket and a spring at the
top of the highwall. Furthermore, both asserted that February
was a bad time for sloughage because of the thawing and freezing
that occurs. Carr explained that in walking near the highwall he
kept his head up because he expected something to fall.
Add to the danger of sloughage the possibility that the
blast could send flyrock farther than the miners anticipated, and
it becomes apparent that an injury as the result of not wearing a
hard hat or protective footwear is reasonably likely. I find
that this is so even in the short time that Carr was at the pit.
I further find that bruised or broken toes or feet could result
in lost work time and are, therefore, reasonably serious
injuries. Accordingly, I conclude that these two violations were
"significant and substantial."
Unwarrantable Failure
The Commission has held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987).
"Unwarrantable failure is characterized by such conduct as
`reckless disregard,' `intentional misconduct,' `indifference' or
a `serious lack of reasonable care.' [Emery] at 2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).
When Kalina went to the bathhouse to get Carr after the
misfire, he was in a hurry. Carr was in his street clothes.
Carr was not sure whether he told Kalina whether he wanted to
return to get his hard hat and protective shoes. He testified:
Q. Do you remember if you said anything to him about
not having hard-toed shoes or a hard hat?
A. I don't think he would have -- I don't think he
would have said, "We don't have time for that, let's
go," if I wouldn't have said that.
Q. Okay. Do you have a specific recollection of
whether you said it or not?
A. I really have a hard time with that one. I would
like to say yes, but the only thing I do remember for
sure is when Rich said, "We don't have time for that,
let's go." And that makes me feel that, yes, that is
what I said.
Q. And are you sure that you indicated to him that you
were about to go back?
A. Oh, yeah.
Q. Was that through you physical motion?
A. Yeah, we were walking out the door at the same time.
(Tr. 52.)
On the other hand, Kalina could only state that he could
"not recall" Carr specifically stating that he wanted to get
his protective gear. (Tr. 616, 617.) He did not testify
concerning whether Carr attempted to return to the bath
house or whether he told Carr, "We don't have time for that,
let's go." He did testify, however, that he was not
"thinking about hard toes and hard hat," he was thinking
about the misfire. (Tr. 616.) He further testified that he
"was not concerned with" the fact that Carr was in street
clothes and did not have a hard hat on. (Tr. 694.)
Mr. Kalina was the superintendent of the mine. He had 21
years of mining experience. Wearing a hard hat and
protective boots was not a sometime requirement at the mine,
it was required every day. I find that if Carr did not
specifically tell Kalina that he wanted to get his
protective gear, he indicated such by turning to go back
into the bath house. Kalina told him they did not have time
for that even though he was aware that Carr was in his
street clothes. I find that this was inexcusable on the
part of Kalina.
Accordingly, I determine that requiring Carr to go to the
pit to set off a shot that had just misfired without his
protective equipment, was aggravated conduct. Therefore, I
conclude that the two violations resulted from the
Respondent's unwarrantable failure to comply with the
regulations.
Civil Penalty Assessment
The Secretary has proposed a civil penalty of $1,000.00 for
each of these violations. However, it is the judge's
independent responsibility to determine the appropriate
amount of penalty, in accordance with the six criteria set
out in section 110(i) of the Act, 30 U.S.C. � 820(i).
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 six criteria, the parties have
stipulated that the proposed penalties will not affect the
Respondent's ability to continue in business and that the
Respondent is a large mine operator with 5,200,979
tons/hours of production in 1994. (Tr. 6.) The Assessed
Violation History Report for the two years preceding these
violations indicates only one citation, for a technical
reporting violation. (Govt. Ex. 1.) Nonetheless, the
gravity and negligence involved in these violations are very
serious. Therefore, taking all of this into consideration,
I conclude that a penalty of $1,000.00 for each violation is
appropriate.
ORDER
Accordingly, Citation No. 3591319 and Order No. 3591320 are
AFFIRMED. Knife River Coal Mining Company is ORDERED TO PAY a
civil penalty of $2,000.00 within 30 days of the date of this
decision. On receipt of payment, this case is DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
**FOOTNOTES**
[1]: The transcript in this case consists of 66 pages. In
addition, the parties agreed that certain transcript pages from
the hearing in Docket No. WEST 96-130-D would be considered as
evidence in this case. Those transcript pages are 427-438, 442-
443, 457-460, 467-483, 486-489, 492-496, 581-583, 611-622, 626-
629, 693-702, 707-721, 754-758, 769-770, 785 and 794-796.
[2]: Section 103(g) provides, in pertinent part, that:
"Whenever . . . a miner has reasonable grounds to believe that a
violation of this Act or a mandatory health or safety standard
exists . . ., such miner . . . shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger."
[3]: Section 104(d)1) provides:
If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory health
or safety standard, and if he also finds that, while
the conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards,
he shall include such finding in any citation given to
the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation, an
authorized representative of the Secretary finds
another violation of any mandatory health or safety
standard and finds such violation to be also caused by
an unwarrantable failure of such operator to so comply,
he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by
such violation, except those persons referred to in
subsection (c) to be withdrawn from, and to be
prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.
Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
Laura E. Beverage, Esq., and Rebecca Graves Payne, Esq.,
Jackson & Kelly, 1660 Lincoln St., Suite 2710, Denver, CO
80264 (Certified Mail)
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