.
NEWMONT GOLD COMPANY
October 14, 1997
WEST 97-159-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
October 14, 1997
NEWMONT GOLD COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 97-159-RM
: Order No. 7704275; 4/21/97
:
: Docket No. WEST 97-160-RM
: Order No. 7704276; 4/21/97
:
: Docket No. WEST 97-161-RM
: Order No. 7704277; 4/21/97
:
: Docket No. WEST 97-162-RM
: Order No. 7704278; 4/21/97
:
v. : Docket No. WEST 97-163-RM
: Order No. 7704279; 4/21/97
:
: Docket No. WEST 97-164-RM
: Citation No. 7704270; 4/17/97
:
: Docket No. WEST 97-165-RM
: Citation No. 7704271; 4/17/97
:
: Docket No. WEST 97-166-RM
: Citation No. 7704272; 4/17/97
:
: Docket No. WEST 97-167-RM
: Citation No. 7704273; 4/17/97
:
: Docket No. WEST 97-168-RM
SECRETARY OF LABOR, : Citation No. 7704274; 4/17/97
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Genesis Mine
Respondent : Mine ID 26-00062
DECISION
Appearances: David J. Farber, Esq., PATTON BOGGS L.L.P.,
Washington, D.C., for Contestant;
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia.,
for Respondent.
Before: Judge Cettti
These ten consolidated cases are before me on the request of
Newmont Gold Company (Newmont) for a hearing under section 105 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq., the "Act" and Commission Rule 20, 29 C.F.R. 2700.20, to
contest the validity of the five citations and the five 104(b)
orders.
At the hearing, the Secretary by counsel entered into the
record the order of the Secretary vacating the 104(b) orders in
Docket Nos. WEST 97-159-RM through WEST 97-163-RM. (Ex. N-2) and
requested an order dismissing these dockets. There being no
objection, the undersigned Judge at the hearing verbally issued a
bench order dismissing docket Nos. WEST 97-159-RM through WEST
97-163-RM and now by this decision confirms the bench order in
writing. This leaves for resolution the issues arising out of
the citations in Docket Nos. WEST 97-164-RM through WEST 97-168-
RM including the validity of the citations.
STIPULATIONS
At the hearing, the parties entered into the record the
following stipulations:
1. Contestant, Newmont Gold Company, is a mine operator as
defined under section 3(d) of the Mine Act and has products and
mining operations and extracts products which enter and affect
commerce.
2. The Administrative Law Judge has authority to hear and
rule in these proceedings under section 113(d)(1) of the Federal
Mine Safety and Health Act of 1977.
STATEMENT OF THE PROCEEDINGS
On April 21, 1997, Inspector Bonifacio issued five citations
to Newmont Gold Company. Each citation alleges an identical
guarding violation of the moving parts of the front mounted
engine of each of the five haul trucks used at the Genesis Mine.
All five trucks were Dresser Haulpak 510 haul trucks. Each of
the citations has an identical description of the alleged
violation for all of the haul trucks. Each citation alleges
violations of 30 C.F.R. � 56.14107 concerning the guarding of
moving parts of the engine of each haul truck. The identical
description in each citation reads as follows:
The fan blades and accessories drive pulleys
and v-belts located at the front of the motor
on the Dresser Haulpak 510 haultruck Co. No.
HT-026 weren't guarded. The unit is operated
at the pit 24 hours per day and the motor is
left running during shift change, the truck
operator must stand within 7 feet of the
moving parts in order to check for defects to
the steering, braking and suspension
components during the pre-operational
inspection of the unit. The truck driver
could contact the moving parts and sustain a
serious injury.
The citations fixed the abatement time as 8 a.m. on April
21, 1997.
It is undisputed and clear from the citations and the record
that the citations were not for guards that were available from
the manufacturer or for missing guards that had been previously
installed by the manufacturer or others and then removed for
making repairs or maintenace and not replaced. The citations
were issued because Respondent did not install new additional
guards which the inspector believed should be added to supplement
the guards installed by the truck's manufacturer.
As a preliminary matter Newmont presented undisputed
evidence that no miner had ever sustained any injury because of
contact with a moving machine part of the engine of any of the
haul trucks.
Newmont entered into the record undisputed measurements it
took to support its contention that in any event, the exposed
moving parts of the truck's engine were at least seven feet away
from walking or working surfaces. MSHA on the other hand never
took any measurements whatsoever and thus, MSHA did not provide
any measurements that refute Respondent's measurements or
contentions that the moving machine parts came within the express
exception stated in subsection "b" of the cited safety standard.
Each citation was issued for the alleged violation of 30 C.F.R. �
56.14107 which expressly provides under subsection (b):
"Guards shall not be required where the exposed moving
parts are at least seven feet away from walking or working
surfaces."
In support of its position that the cited standard was
applicable to the engines of haul trucks, counsel for the
Secretary placed in evidence as Exhibit G-2 a copy of the
preamble of the cited safety standard which states in part:
... larger, off-road vehicles present special
hazards because of the greater accessibility
to their moving machine parts. In some
instances persons can walk directly under the
vehicle to inspect the engine and be exposed
to its moving parts. In most instances,
these parts are already guarded by the
manufacturer but guards are sometimes removed
during repair work and not replaced. MSHA's
objective is to ensure that these guards
remain in place. (Emphasis added).
In my opinion, the wording and context of the preamble shows
that the promulgators of the standard intended that, except in a
rare exceptional case, there would be no requirement to
supplement the existing guards that the manufacturer of the truck
had installed in and around the truck's engine area. The
preamble clearly indicates that its primary purpose was to insure
that the truck manufacturer's installed guards were reinstalled
and "remain in place" after any removal for maintenance or repair
of the engine.
The Inspector Exceeded His Statutory Authority In Issuing
Citations That Did Not Conform With the Statutory Requirements of
Section 104(a) of the Mine Act
The inspector did not act in conformance with the mandate of
section 104(a) of the Act in issuing the citations in question.
Section 104(a), in addition to requiring the citation to be in
writing, mandates that the 104(a) citation "fix a reasonable time
for the abatement of the violation." The time specified for
abatement in the written citation was 8 a.m. on April 21, 1997,
which was more than 7 hours before the written citation was
issued to the operator. The citations were issued on April 21st
at approximately 3:30 p.m. Thus it clearly appears that the
inspector did not even attempt to comply with this mandatory
requirement of fixing a reasonable time for abatement of the
alleged violations and under the facts of this case, the
citations should be dismissed.
Counsel for MSHA in attempting to justify its issuance of
the written citations that did not conform to the statutory
requirements, entered into the record evidence and arguments
which on close analysis demonstrate that it was pushing for
enforcement of what the inspector referred to as an "oral
citation" issued a few days before the abatement time of 8 a.m.
April 21, 1997. This oral citation must also fall as it clearly
exceeds the statutory authority granted in section 104(a) of the
Mine Act.
The evidence presented by the Secretary demonstrates that
the inspector was apparently intentionally trying to enforce an
oral citation. First the inspector testified that, although he
never observed haul truck drivers making the required
preoperational inspections of the haul trucks, he determined on
the 9th of April by interview with truck drivers and the foreman
and looking at the trucks, there was a violation of the cited
standard in that the factory installed guards were inadequate.
(Tr. 161, 737). The inspector notified this determination to the
maintenance foreman Mr. Mueller. The inspector testified Mr.
Mueller agreed that he would install supplementary guards as soon
as possible. Mr. Mueller, on the other hand, gave credible
testimony that the inspector misunderstood what he said. He only
said he "could," not that he "would," add the requested
supplementary guarding."
On April 14, 1997, the inspector inquired about the
supplemental guarding and learned Mr. Mueller's boss, Mr. Peske,
wanted to check with the truck's manufacturer about a permanent
guard installation and the fact that additional guards might
cause other problems.[1] The inspector agreed but insisted that
temporary guards to be installed as soon as possible. (Tr. 169).
The inspector testified that on April 17th he went to the
MSHA field office and at the request of Dennis Tobin, the MSHA
supervisor, made a call to Mr. Bill Miles, an agent of Newmont.
(Tr. 172). The inspector testified the MSHA supervisor,
Mr. Tobin, got on the line and told Mr. Miles that, in lieu of
Newmont's request for a ruling on whether they needed to install
additional guarding or not, "Yes he had checked on it and that it
was a violation" and added that a citation was issuing "effective
then" with an abate time of 8 a.m. April 21, 1997.
On April 21 the inspector went to the mine "a little bit
before 12 o'clock," talked to Mr. Mueller and handed him "draft
copies" of the citations. (Ex. N-1). The "draft copies" had
printed at the top and bottom in large print "DRAFT COPY ONLY -
NOT FOR ISSUE." The inspector testified that Mr. Mueller and
others seemed to have no knowledge of the conversation of April
17 between Mr. Tobin and Mr. Miles. On further questioning, the
inspector testified that citations were issued verbally on
Thursday, the 17th of April to Mr. Miles. (Tr. 177).
Again, on further direct examination, the inspector
testified that on April 21, 1997, he explained to Mr. Mueller and
other company officers, "that the citations had been issued the
previous Thursday (April 17, 1997) per a conversation with Mr.
Miles." This obviously referred to the phone conversation
between Mr. Tobin and Mr. Miles. (Tr. 179).
Thus it is clear from the record that the abatement time of
8 a.m. April 21, 1997, on the written citations was no
inadvertent error. It was the abatement date orally specified on
Thursday, April 17, 1997, to Mr. Miles and again specified in the
written citations served approximately 3:30 p.m. on April 21,
1997, seven hours after the abatement time deadline. The
inspector testified that when he went to the property on April 21
just before 12 o'clock, to see what "action" had been done and
testified "and if no action was done, you issue a noncompliance
order" and that is exactly what the inspector did." (Tr. 181,
lines 21-22). Thus it is clear from the record that both the
oral and written citations are invalid for failure to conform to
the statutory authority clearly set forth in section 104(a) of
the Mine Act which requires that the citation be in writing and
that it fix a reasonable abatement time. As stated by the Chief
Law Judge Merlin in his Order of Dismissal in D.H. Blattner &
Sons, Inc., 17 FMSHRC 1073, 1074 (June 1995), "An Administrative
agency is a creature of Congress and cannot exceed the
jurisdiction given to it by Congress." Lyung v. Payne, 476 U.S.
926, 937 (1986); Killip v. Office of Personnel Management, 991
F.2d 1564, 1569 (Fed Cir. 1993)." See, also, Kaiser Coal Corp.,
10 FMSHRC 1165, 1169 (September 1988). The citations are
dismissed.
ORDER
Citation Nos. 7704270, 7704271, 7704272, 7704273 and 7704274
are vacated and Docket Nos. WEST 97-164-RM, WEST 97-165-RM, WEST
97-166-RM, WEST 97-167-RM and WEST 97-168-RM are DISMISSED.
Order Nos. WEST 97-159-RM, WEST 97-160-RM, WEST 97-161-RM, WEST
97-162-RM and WEST 97-163-RM are DISMISSED, pursuant to the
Secretary's order dismissing the corresponding 104(b) orders.
August F. Cetti
Administrative Law Judge
Distribution:
Henry Chajet, Esq., David Farber, Esq., PATTON BOGGS. LLP, 2550 M
Street NW, Washington, DC 20037 (Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
/sh
**FOOTNOTES**
[1]:At the hearing Newmont contended that the additional
engine guards created a greater hazard for drivers because of
fire that could result from overheating the haul truck's engine
and its interference with the engine fire suppression system.
JAMES B CRAWFORD ESQ
OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR
4015 WILSON BLVD #400
ARLINGTON VA 22203
HENRY CHAJET ESQ
DAVID FARBER ESQ
PATTON BOGGS & BLOW LLP
2550 M STREET NW
WASHINGTON DC 20037