.
NEWMONT GOLD COMPANY
May 11, 1998
WEST 97-122-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
May 11, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 97-122-M
Petitioner : A.C. No. 26-00271-05503
:
v. :
: Genesis Mine
NEWMONT GOLD COMPANY, :
Respondent :
SUMMARY DECISION
Before: Judge Cetti
This case is before me upon a petition for assessment of
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 801 et seq., the "Act" and
on cross-motions of the Parties for Summary Decision and
Respondent's Motion for Declaratory Relief.
On September 15, 1996, a 150-ton Caterpillar end dump haul
truck operated by Respondent's driver Gary Morin backed through a
berm at an elevated dump site at the Genesis Mine. The haul
truck overturned and traveled 50 feet down the sloped embankment
coming to rest upside down at the base of the dump. The driver,
Gary Morin, was hospitalized at the Elko General Hospital. The
post-accident drug test administered on Mr. Morin by the hospital
as well as a pre-accident drug test of September 12, 1996
"yielded results that were positive for marijuana." Newmont did
not submit an MSHA 7000-1 Accident, Injury Report on the
September 15, 1996, incident prior to October 23, 1996. Newmont
asserts that since Mr. Morin was in the hospital on September
16th and retroactively resigned his employment effective
September 12th, it was not required to file such a report.
The Secretary of Labor on behalf of the Mine Safety and
Health Administration (MSHA), charges the Respondent, the
operator of the Genesis Mine with the violation of 30 C.F.R.
� 56.9101 and 30 C.F.R. � 50.20.
30 C.F.R. � 56.9101 in relevant part provides:
Operators of self-propelled mobile equipment shall
maintain control of the equipment while it is in motion.
Newmont asserts that MSHA should not have charged Newmont
with the violation of C.F.R. � 56.9101 but instead should have
cited Newmont for a violation of 30 C.F.R. � 56.20001 which
provides:
Intoxicating beverages and narcotics shall not be
permitted or used in or around mines. Persons under
the influence of alcohol or narcotics shall not be
permitted on the job.
CROSS MOTIONS FOR SUMMARY DECISION
When the Secretary and the Respondent, Newmont Gold,
were unable to resolve their differences, the parties filed
cross-motions for Summary Decision. The parties assert
that there are no material facts in dispute and that the
issues are ripe for summary decision.
Newmont in its Motion for Summary Decision contends
that by charging Newmont for an alleged "accident," and
deeming Newmont to have "fail[ed] to control" its
equipment, "MSHA interprets its regulations in a manner
that obviates the real cause of the incident. Newmont
states:
MSHA, as it has in the past, masks the role that
illegal drug use played in creating a safety hazard and
damaging a valuable piece of equipment. Most importantly,
MSHA's actions mask the drug relationship from identification
in its national database and training programs, depriving all
interested parties of critical information and violating the
purpose, goals and mandates of the Mine Act. Newmont also
asserts that declaratory relief is both proper and necessary
in this instance in light of the public policy importance of
maintaining a drug-free workplace.
Newmont contends that the Commission "should exercise its
sound discretion and issue declaratory relief mandating MSHA to
list drug abuse as the cause of this incident and all such future
incidents."
JOINT STIPULATIONS
The parties, in support of their respective positions,
jointly entered into the record under the heading "A. General
Stipulations" stipulations Nos. 1 through 8 and under the
heading "B. Specific Stipulations" stipulations Nos. 1 through
15. The parties state these stipulations of fact are admissible
for all purposes.
A. General Stipulations
1. The Genesis Mine is owned and operated by Newmont Gold
Company ("Newmont").
2. The products of the Genesis Mine enter and affect
commerce and the mine is within the jurisdiction of the Mine
Safety and Health Act, 30 U.S.C. � 801 et seq. ("the Act"). The
Administrative Law Judge has jurisdiction to decide these
matters.
3. All of the citations at issue in this matter were
properly served by an authorized representatives of the Secretary
of Labor ("Secretary").
4. All of the civil penalties and/or citations at issue in
this matter were timely contested by the operator of the Mine.
5. The size of the Genesis Mine, as of February 12, 1997,
was 1,005,387 man-hours and the size of Newmont was 4,059,826
man-hours.
6. Newmont's Genesis i.d. number had 15 assessed violations
in the 25 months preceding February 12, 1997.
7. The amount of penalties assessed herein will not affect
Newmont's ability to continue in business.
8. The parties agree that Newmont has sought this
litigation to challenge positions of the Secretary with respect
to the requirements of 30 C.F.R. � 50.20, and the Secretary's
enforcement policy with respect to 30 C.F.R. � 56.20001.
B. Specific Stipulations
1. On September 15, 1996, Gary Morin was employed by
Respondent Newmont Gold Company (hereinafter "Newmont") as a haul
truck driver.
2. On September 15, 1996, Gary Morin was operating a
150-ton Caterpillar model 785 B end dump haul truck (i.d.
#HT-094) at the Genesis Mine.
3. At about 1:30 p.m. on September 15, 1996, the haul
truck being operated at the time by Gary Morin backed through a
berm at the elevated dump site of the north area leach pad,
overturned and traveled about 50 feet down the sloped bank coming
to rest on its top at the base of the dump.
4. Gary Morin was sent by Newmont to the Elko General
Hospital during the early evening of September 15, 1996, and was
admitted for observation. He was discharged from the hospital on
the morning of September 17, 1996.
5. Gary Morin submitted to a voluntary random drug
test administered as part of Newmont's routine program on
September 12, 1996.
6. Newmont did not have the results of the September
12, 1996, Morin drug test at the time of the incident on
September 15, 1996.
7. Newmont was notified after the accident that the
September 12, 1996, Morin drug test yielded results that were
positive for marijuana.
8. Elko General Hospital administered a post-accident drug
test to Gary Morin which yielded results that were positive for
marijuana.
9. Upon notification of the test results on September 16,
and while in the hospital for observation, Gary Morin resigned
from employment with Newmont, effective September 12, 1996 (the
date of the first drug test).
10. Prior to his retroactive resignation, Gary Morin's
next scheduled shift was to begin September 16, 1996.
11. Gary Morin also was unable to return to work his
next scheduled shift on Septem-
ber 16, 1996, because he had not been discharged by Elko General
Hospital.
12. On October 23, 1996, MSHA Inspector Bob Caples
issued Newmont Citation No. 7951406 for an alleged violation of
30 C.F.R. � 50.20. The violation was characterized as
non-significant and substantial, and the citation was modified to
reflect no negligence "based on confusion caused by different
information given the company by HSAC (MSHA's statistical center
in Denver, Colorado)."
13. Prior to October 23, 1996, Newmont did not submit
to MSHA an MSHA 7000-1 Accident, Injury and Illness Report on the
Morin September 15, 1996, haul-truck incident.
14. On September 20, 1996, Inspector Caples issued
Citation No. 4140633 to Newmont for an alleged violation of 30
C.F.R. � 56.9101. The alleged violation was characterized as
significant and substantial, and the citation was modified to
reflect no negligence.
15. Newmont has not been cited by MSHA for a violation
of standard 30 C.F.R.
� 56.20001 related to the September 15, 1996, haul-truck
incident, despite MSHA's awareness that Gary Morin tested
positive for marijuana on the day of the incident.
Citation No. 4140633
This citation alleges a significant and substantial
violation of the mandatory safety standard 30 C.F.R. � 56.9101
which mandates that the operator of mobile equipment, such as the
haul-truck in question to "maintain control of the equipment
while it is in motion."
Item 8 of the citation describes the alleged violation as
follows:
At about 1:30 P.M. on September 15, 1996 Gary Morin,
haul truck driver did not maintain effective control of
the 150 ton Caterpillar model 785B, end dump haul
truck, company I.D. #HT-094, while in the process of
attempting to dump his loaded truck at the North area
leach pad at the Genesis Mine.
Due to the speed of the truck while backing and not
applying the brakes in a timely manner the truck
traveled through the berm at the elevated dump site and
after over-turning, traveled about 50 feet down the
sloped bank coming to rest on its top at the base of the
dump.
The parties stipulate that on September 15, 1996, Gary Morin
was operating a 150-ton Caterpillar model 785B end dump haul
truck (I.D. #HT-094) at the Genesis Mine and that at
about 1:30 p.m. on September 15, 1996, the haul-truck being
operated at the time by Gary Morin backed through a berm at the
elevated dump site of the north area leach pad, overturned and
traveled about 50 feet down the sloped bank coming to rest on its
top at the base of the dump. (Specific Stipulations Nos. 1 and
2).
On January 12, 1996, Newmont Gold Company ("Newmont"),
pursuant to Commission Rule 10(b), 29 C.F.R. � 2700.67 moved that
Citation Nos. 7951406 and 4140633 be vacated and requested that
"this Court issue Declaratory Relief mandating that MSHA: (1)
enforce its prohibition against drug use on mine sites; and (2)
abandon its current policy of hiding drug-abuse caused incidents
and initiate a national policy of reporting such incidents,
identifying them as a hazard to employees and emphasizing
prevention through its enforcement and training efforts."
Newmont asserts that MSHA should have cited Respondent for
violation of 30 C.F.R. � 56.20001 rather than 30 C.F.R. � 56.9101
for the incident involving the fall of the haul-truck. The
citation, nevertheless, alleges a violation of � 56.9101
which provides that:
The operators of self-propelled mobile equipment
shall maintain control of the equipment while it is in
motion.
On March 16, 1998, all five Commissioners in a unanimous
decision interpreting the meaning of this identical safety
standard � 56.9101 stated "The reasons for a loss of control are
irrelevant to consideration of whether control over moving
equipment was maintained." (Emphasis added). Daaren and
Janssen, Inc., slip op. (March 16, 1998). In that case, the
operator of a front-end loader traveled through the berm and the
loader fell 40 feet to the quarry floor. In that case, as here,
there was no evidence that the operator intentionally drove the
mobile equipment through the berm.
On consideration of the entire record before me, I find the
operator of the haul-truck did not maintain control of the truck
while it was in motion. The most reasonable inference that I can
draw from the record before me is that the accident would not
have happened if the driver of the truck had maintained control
of the haul truck while it was in motion. Clearly the driver of
the truck did not maintain control of the haul truck while it was
in motion as mandated by the safety standard. There is no
evidence that Mr. Morin intentionally drove the truck through the
berm. Citation No. 4140633 is affirmed.
SIGNIFICANT AND SUBSTANTIAL
Inspector Caples found the violation charged in Citation No.
4140633 to be "significant and substantial". A "significant and
substantial" (S&S) violation is described in � 104(d)(1) of the
Act, 30 U.S.C. � 814(d)(1), 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 (January 1984), the
Commission further 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 will result in an injury; and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature.
Id. At 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F2d 99, 103 (5th Cir. 1988) (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).
In the instant case, it is clear from the particular facts
surrounding the violation, primarily the failure to maintain
control of the haul-truck as it was backing up to the berm at an
elevated dump site, that it was a violation of such a nature that
could significantly and substantially contribute to the cause and
effect of a mine safety hazard and that there was a reasonable
likelihood that the injury that would result would be one of a
reasonably serious nature. Accordingly, the violation is
properly designated significant and substantial.
DECLARATORY RELIEF
Newmont is to be commended for its enforcement of its drug
policy as set forth in Respondent's brief. Newmont is clearly
seeking more help from MSHA to assist them achieve its worthy
goal of a drug-free workplace. However, I see no legal basis in
this case to grant Respondent's motion for declaratory relief
seeking to require the Secretary to issue a citation to
Respondent charging it with the violation of 30 C.F.R. � 56.20001
or to enforce MSHA's anti-drug abuse policy at the mine and to
stop the alleged hiding drug-abuse caused incidents, or to
initiate national policy of reporting and identifying such use as
hazardous or even emphasizing prevention through its enforcement
and training efforts as requested by Respondent..
The Secretary has the authority and the discretion to cite
or not cite violations of a particular safety standard under the
Mine Act. The Commission in its decision Secretary of Labor v.
Mechanicsville Concrete Inc., 18 FMSHRC 877 at 879 (June 20,
1996) stated:
The Supreme Court has held that an administrative
agency has virtually unreviewable discretion in making
decisions not to take particular enforcement action relating
to its statutory or regulatory authority. Heckler v.
Chaney, 470 U.S. 821, 831-32 (1985): see Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986).
The Commission has recognized that the Secretary's
discretion to vacate citations is unreviewable. RBK
Construction, Inc., 15 FMSHRC 2099, 2101 (October 1993)."
We perceive no material difference between the Secretary's
discretion on the one hand to vacate a citation and his
discretion on the other hand not to issue a citation in the
first instance . . . . (Emphasis added).
I agree with the Secretary that the Secretary of Labor has
the sole authority and discretion to cite or not cite a
particular violation and to disseminate and develop enforcement
policy under section 103 of the Mine Act.
See also Thunder Basin Coal Co. v. Reich, 127 L. Ed. 2d 29,
36, 40 (1994); RBK Construction, Inc., 15 FMSHRC 2099, 2101
(October 1993); Mettiki Coal Corp., 13 FMSHRC 760, 764 (May
1991).
Respondent's Motion for Declaratory Relief is denied.
Citation No. 7951406
MSHA charges Newmont with a non-significant and substantial
violation of 30 C.F.R. � 50.20 which requires that an operator
file an "MSHA Form 7000-1" report "within 10 working days after
an accident, occupational injury or occupational illness."
An "occupational injury" is defined in � 50.2(e) as any injury
to a miner which occurs at a mine for which medical
treatment is administered, or which results in death or
loss of consciousness, inability to perform all job
duties on any day after an injury, temporary assignment to
other duties, or transfer to another job.
Citation No. 7951406, item 8, accurately states the facts as
follows:
A MSHA 7000-1 Accident, Injury and Illness report was
not completed and submitted for employee Gary Morin.
Morin was involved in a haul truck roll-over on September
15, 1996. Mr. Morin was admitted to Elko General Hospital
in Elko, Nevada on the 15th and released on September 17,
1996. Morin was scheduled to work on September 16, 1996.
Mr. Morin was released from his hospital confinement on
September 17, 1996. Mr. Morin's Discharge Diagnosis; attached as
Exhibit B to the stipulations filed by the Parties reads as
follows:
DISCHARGE DIAGNOSIS:
1. Concussion.
2. Cervical strain.
3. Lumbar strain.
4. Contusion left elbow.
SUMMARY: Patient is a 37 year old Newmont haulpak
driver who on 9-15-96 apparently drove his haulpak over
a berm and suffered a rollover. He was belted in but
struck his head, neck and left elbow. He presented
to Elko General Hospital Emergency Room where a work
up was undertaken. It was felt that he had significant
concussion, cervical and lumbar strains and he was
admitted for observation. Patient initially complained
of significant head and neck pain but denied any
numbness or tingling. Patient's activity was gradually
advanced; his discomfort gradually subsided and by
9-17-96, he was mobile enough and feeling good enough
to be discharged home.
DISCHARGE MEDICATIONS: Lortab prn.
PLAN: Follow up will be Thursday at Ruby Mountain
Orthopedics.
D: 9-19-96
T: 9-22-96
RAF/jmb3 R.A. JONES, M.D.
Although Newmont sent Gary Morin to the Elko General
Hospital right after the accident for observation, it is clear
from the record that evidence of injury was found by the treating
doctors at the hospital, such as significant concussion, cervical
strain, lumbar strains and contusion of left elbow. Therefore,
Newmont is unable to escape the requirement of filing an MSHA
Report Form 7000-1 on grounds that Mr. Morin was hospitalized for
observation only since evidence of injury was found. 30 C.F.R.
� 50.3(e) clearly implies that medical treatment does include
hospitalization for observation where evidence of injury or
illness is found.
I also find no merit in Newmont's contention that it was not
required to file a 7000-1 report with MSHA because Mr. Morin
while still in the hospital on September 16, 1996, retroactively
resigned his job with Newmont effective September 12, 1996. The
fact remains that Mr. Morin was confined to a hospital at the
start of his next scheduled shift.
The purpose of the filing requirement is to notify MSHA of a
serious incident occurring on mine property to allow MSHA "to
investigate, and to obtain and utilize information pertaining to
accidents, injuries, and illnesses." 30 C.F.R. � 50.1. Thus, an
operator is not relieved of the requirement to file the report by
changing the shift scheduling or obtaining a resignation after
the accident or incident resulting in injury. Citation No.
7951406 is affirmed.
PENALTY
The Secretary, on further consideration after issuance of
the citations, appropriately reduced the operator's negligence
factor for each of the two citations to "none" and has proposed a
penalty of $81.00 for Citation No. 4140633 alleging a violation
of 30 C.F.R. � 56.20001 and a single penalty assessment of
$50.00 for Citation No. 7951406 alleging a violation of 30 C.F.R.
� 50.20.
Neither party presented evidence or stipulations that
seriously challenged the penalties proposed by the Secretary.
Upon my independent evaluation and consideration of the
appropriate amount of penalty in accordance with the six penalty
criteria of section 110(i) of the Act, I find the penalties
proposed by the Secretary to be the appropriate penalty for each
of the violations.
ORDER
The Secretary's Motion for Summary Decision is GRANTED and
the Respondent's Motions for Summary Decision and for Declaratory
Relief are DENIED.
It is further ordered that Respondent within the next 30
days pay a civil penalty to the Secretary of Labor of $81.00 for
the violation of 30 C.F.R. � 56.20001 and $50.00 for the
violation of 30 C.F.R. � 50.20. Upon receipt of payment, this
case is dismissed.
August F. Cetti
Administrative Law Judge
Distribution:
Steven R. DeSmith, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson St., Suite 1110, San
Francisco, CA 94105
James B. Crawford, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
Henry Chajet, Esq., David Farber, Esq., PATTON BOGGS, L.L.P.,
2550 M Street, NW, Washington, DC 20037
/sh
STEVEN R DeSMITH, ESQ., OFFICE OF THE SOLICITOR, U S DEPARTMENT
OF LABOR, 71 STEVENSON ST #1110, SAN FRANCISCO CA 94105
HENRY CHAJET, ESQ.,DAVID FARBER, ESQ.,PATTON BOGGS LLP,2550 M ST.
NW.,WASHINGTON DC 20037
JAMES B CRAWFORD, ESQ.,OFFICE OF THE SOLICITOR, U S DEPARTMENT
OF LABOR, 4015 WILSON BLVD.,ARLINGTON VA 22203