.
GETCHELL GOLD CORPORATION
May 24, 1999
WEST 99-162-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
May 24, 1999
GETCHELL GOLD CORPORATION, : CONTEST PROCEEDING
Contestant :
: Docket No. WEST 99-162-RM
: Order No. 7966725; 3/05/99
v. :
: Turquoise Ridge Mine
SECRETARY OF LABOR, : Id. No. 26-02286
MINE SAFETY AND HEALTH :
Respondent :
DECISION
Appearances: Laura E. Beverage, Esq., and L. Anthony George, Esq.,
Jackson & Kelly, Denver, Colorado, for Contestant;
Susan Gillett Kumli, Office of the Solicitor, U.S.
Department of Labor, San Francisco, California, for
Respondent.
Before: Judge Manning
This case is before me on a notice of contest filed by
Getchell Gold Corporation ("Getchell") against the Secretary of
Labor pursuant to sections 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. � 815(d)(the "Mine Act"). Getchell
contested an order of withdrawal issued on March 5, 1999, at its
Turquoise Ridge Mine alleging a violation of the Secretary's
safety standard at 30 C.F.R. � 57.14204. An expedited hearing
was held on May 5 and 6, 1999. The parties presented testimony
and documentary evidence, presented oral argument, and waived
post-hearing briefs. At the close of the hearing, I entered a
bench decision in which I vacated the subject order of
withdrawal. (Tr. 482-96). This written decision supersedes my
bench decision. I have amplified certain findings and
conclusions in this written decision based on my review of the
record and further legal research.
I. BACKGROUND
The Turquoise Ridge Mine is an underground gold mine in
Humboldt County, Nevada. It is less that a mile away from the
Getchell Mine, which is also operated by Getchell. The two mines
are jointly managed by Getchell. On February 16, 1999, one miner
was killed and another seriously injured while attempting to
adjust a compressed air line at the Turquoise Ridge Mine.
The area of the Turquoise Ridge Mine where the accident
occurred was under development and the compressed air lines were
being installed on February 16. The compressed air system was
working in parts of the mine. Two types of piping are used in
the compressed air system. Steel utility pipes carry air
throughout the mine. Wire-braided rubber air hose is used in
working sections. This hose is referred to as a "bull hose." In
this instance, the bull hose was installed to carry compressed
air through the intersection of the TR1550 ramp and the TR3955
access roadway. At the north end of the intersection, the bull
hose was already connected to a steel pipe. A steel pipe had
recently been installed up to the south end of the intersection.
On February 16, Thomas Gross and Thomas Crowley were to
connect the bull hose to the steel pipe at the south end of the
intersection. After completing installation of the airline, Mr.
Gross noticed that the handle of the valve located at this
coupling was facing the rib rather than the haulageway. While
repositioning the valve at the south end, Mr. Gross noticed that
a part of the coupling had not been properly installed by the
previous crew. The two employees began disconnecting the
coupling to reposition the valve and to correctly install the
misadjusted portion of the coupling. Unknown to these employees,
the compressed air system was energized at this location. When
they loosened the coupling, the bull hose began thrashing about
violently. The hose struck the employees, killing Mr. Gross and
seriously injuring Mr. Crowley.
MSHA conducted an investigation of the accident and issued a
number of citations and orders. Only Order No.7966725 is at
issue in this proceeding. It alleges a violation of 30 C.F.R.
� 57.14205 as follows:
At the three-way intersection of the 1550
Turquoise Ridge ramp and the TR3955 access, a
combination nipple [was] being utilized as
the interconnecting device between a
Victaulic coupling and 4-inch diameter rubber
hose on a high pressure air line.
Accordingly to readily available information
from the manufacturer, this nipple was
designed for low pressure discharge and
suction purposes and was not engineered for
use on high pressure air lines. The mine
operator's failure to require and insure that
this device was used in applications within
its design capacity as intended by the
manufacturer is a lack of reasonable care
constituting more than reasonable negligence
and is an unwarrantable failure to comply
with the standard.
Inspector David Kerber determined that a fatal injury was
reasonably likely; that the alleged violation was of a
significant and substantial nature; and that Getchell's
negligence was high. He issued the order under section
104(d)(2) of the Mine Act. The cited safety standard
provides:
Machinery, equipment, and tools shall
not be used beyond the design capacity
intended by the manufacturer, where such use
may create a hazard to persons.
Getchell contested the order in this proceeding and the
parties attempted to resolve the issues through settlement
negotiations. On April 19, 1999, I granted Getchell Gold's
motion to schedule an expedited hearing in this case because the
cited combination nipple is used throughout the Turquoise Ridge
and Getchell Mines. Replacing them with another type of coupling
would require shutting down the compressed air system for a
significant period of time. At the hearing, Leland Page, who is
the mine manager for the Turquoise Ridge and Getchell Mines,
testified that there are about 98 such couplings in the Getchell
Mine and about 43 in the Turquoise Ridge Mine. (Tr. 302).
It is important to understand the parts used to connect the
6-inch steel pipe with the 4-inch bull hose. Three interlocking
parts are used: a reducer, shut-off valve, and the combination
nipple. The reducer is attached at the end of the steel pipe.
The reducer changes the diameter of the opening from 6 inches to
4 inches. It is attached to the end of the steel pipe by a
Victaulic coupling. A Victaulic coupling consists of two C-
shaped metal bands that are drawn together with two bolts around
the joint to be connected. A rubber gasket is placed between the
Victaulic coupling and the joint. A groove is cut into the end
of the pipe and a groove is manufactured into the various devices
to be attached, such as the reducer. When the Victaulic coupling
is tightened, the ridge on each edge of the coupling fits into
the corresponding groove on the components that are being
attached. As the bolts on the Victaulic coupling are tightened,
the rubber gasket is compressed, making an airtight joint, and
the ridges engage in the grooves, making a mechanically strong
coupling.
A Victaulic coupling is also used to attach the shut-off
valve to the reducer and to attach the combination nipple to the
shut-off valve. The use of Victaulic couplings to attach the
components in the compressed air system at the mine is not
contested by MSHA. That is, MSHA does not consider the use of
Victaulic couplings to be in violation of section 57.14205.
The method of connecting the combination nipple to the bull
hose is what is in dispute in this case. As stated above, the
combination nipple has a groove at one end that was used to
attach the nipple to the shut-off valve with a Victaulic
coupling. The combination nipple fits inside the bull hose at
the other end and is secured with several band clamps. The
outside surface of the steel nipple is equipped with a number of
ridges that face away from the outer edge of the nipple. Thus,
when the nipple is forced into the bull hose these ridges cut
into the hose to help prevent the hose from separating from the
nipple. The band clamps are tightened with a special tool. Once
the clamps are attached, they cannot be removed except by cutting
them off.
As stated above, the accident occurred when Mr. Gross
noticed that the Victaulic coupling attaching the nipple to the
shut-off valve was not properly seated into the groove for the
valve. When he attempted to fix the problem by loosening the
bolts for the Victaulic coupling, the energized bull hose began
whipping around and struck Messrs. Gross and Crowley. The
connection between the bull hose and the nipple did not fail.
MSHA contends that the use of the combination nipple in the
mine's compressed air system exceeds the design capacity intended
by the manufacturer. During its accident investigation, MSHA
asked for information about the combination nipple and received
from Getchell a copy of the parts catalogue from Dixon Valve and
Coupling Company ("Dixon"). Under the entry for Dixon's "King
Combination Nipple" the catalogue states as follows:
Combination nipples are recommended for low
pressure discharge and suction services. The
working pressure of combination nipples
varies with the size of the nipple, the size
and construction of the hose, and the type of
clamping system used; consult the Factory for
recommendations. NOT INTENDED FOR COMPRESSED
AIR.
(Ex. S-9, emphasis in original). Dennis Ferlich, who is a
mechanical engineer with MSHA's Mechanical Safety Division at the
Approval and Certification Center in Triadelphia, West Virginia,
contacted Dixon. Mr. Ferlich testified that Paramjit Singh, Vice
President of Engineering with Dixon, told him that its King
combination nipple should not be used with any type of compressed
air. (Tr. 96; Ex. S-4 at 9). After considering the language in
Dixon's catalogue and discussions with Mr. Singh, MSHA officials
determined that Getchell was in violation of section 57.14205 and
the subject order was issued by Inspector Kerber.
II. DISCUSSION AND FINDINGS OF FACT
One of the key disputes in this case is the meaning of the
words "used beyond the design capacity intended by the
manufacturer" in the safety standard. The Secretary contends
that if equipment is put to a different use than that intended by
the manufacturer and that use may create a hazard to persons, a
violation has been established. Getchell, on the other hand,
argues that the equipment must be used beyond its "design
capacity." That is, the use must be beyond the design tolerances
of the equipment. Thus, according to Getchell, there is a
quantitative element in the standard.
I find that the words "design capacity" cannot be equated
with use. Thus, if a mine operator uses a piece of equipment for
a purpose not intended by the manufacturer, there is no violation
without proof that such use exceeds the design capacity. None of
the witnesses at the hearing could precisely define the term
"design capacity." Indeed, none of the witnesses were very
comfortable with the term because it is not a traditional
engineering concept. The word "capacity" means, "the power or
ability to hold, receive, or accommodate ... the ability to
store, process, treat, manufacture, or produce...." Webster's
Third International Dictionary 330 (1976). Thus, based on the
language of the standard, I interpret the standard to mean that a
mine operator cannot use equipment for a task that is beyond the
ability of the equipment to perform, as designed by the
manufacturer, if such use may create a hazard to persons. There
is a quantitative element in the standard and the mere fact that
equipment is used for a different task than that intended or
anticipated by the manufacturer does not establish a violation.
A review of the regulatory history is instructive. This
standard has existed in a similar form for a considerable time.
In 1988, the Secretary substantially revised its standards for
machinery and equipment in metal mines. In the preamble to the
final rule, the Secretary addressed some of the comments filed by
mine operators about this standard, as follows:
Some commenters considered the
requirement to use machinery, equipment, and
tools according to the manufacturers'
specifications and instructions ... to be
unrealistic in some mining situations. They
propose that this standard be deleted. MSHA
agrees that the manufacturers' specifications
and instructions could go beyond the intent
of this regulation. However, MSHA notes that
serious mining accidents can occur from the
misuse of equipment. For example, haulage
trucks can be loaded beyond their design
capacity, and braking and suspension systems
can fail. MSHA has, therefore, retained the
requirement that machinery, equipment, and
tools shall not be used beyond the design
capacity intended by the manufacturer where
such use may create a hazard to persons.
The final standard permits mine
operators to modify the machinery, equipment,
or tools they purchase from manufacturers to
suit their particular mining needs provided
that hazards to persons aren't created.
Overloading of equipment, such as haulage
equipment and cranes, that can create a
hazard to equipment operators and other
persons in the area would not be permitted by
the standard.
Some commenters also considered this
standard to be duplicative of [�
56/57.14100(b)] (defects affecting the safe
operation of machinery, equipment, or tools).
The focus of this standard is the safe use
and modification of mining equipment while [�
56/57.14100(b)] addresses defective
equipment....
(53 Fed. Reg. 32496, 32514-15 (August 25, 1988)(emphasis added).
The regulatory history makes clear that mine operators can modify
equipment for their own use so long as they do not "overload"
such equipment in such a way as to create a hazard to persons.
Thus, one issue in this case is whether, by using a combination
nipple in its compressed air system, Getchell overloaded the
nipple beyond its capacity as intended by the manufacturer.
Getchell contends that its use of the combination nipple to
connect the bull hose to the shut-off valve does not violate the
safety standard. It raises a number of factual and legal issues
in its defense. First, it contends that there is no proof that
the combination nipple in question was a King combination nipple
manufactured by Dixon. Its witnesses testified that combination
nipples are manufactured by a number of different companies.
Because Getchell purchases combination nipples from a supplier
rather than directly from a manufacturer, it does not know where
they come from. All combination nipples are essentially the same
and brand names are not marked on them. Getchell introduced into
evidence portions of parts catalogues from three other
manufacturers that sell combination nipples. (Ex. C-4, 5 & 6).
These exhibits do not contain language indicating that such
nipples are not intended for use in compressed air systems.
Because the cited combination nipple may well have been
manufactured by Dixon and Getchell provided MSHA with Dixon's
catalogue when asked for information about the nipple, I will
assume, for purposes of this case, that the cited combination
nipple was a King combination nipple manufactured by Dixon.
Next, Getchell argues that it was the manufacturer in this
instance because it assembled the coupling by inserting the
nipple into the bull hose and secured the connection with band
clamps. It states that the combination nipple by itself is just
a component part of the assembly. In addition, it maintains
that if a failure were to occur in this assembly, the hose or the
band clamps would fail, not the nipple. The nipple is made of
heavy gage steel that can withstand more pressure than that found
in Getchell's compressed air system.
I agree with Getchell that it manufactured the combination
nipple, bull hose, and band clamp assembly (the "nipple
assembly"). Getchell assembles these components on the surface
before the bull hose is taken underground. The nipple itself is
just one part of the assembly and the Secretary did not show that
the nipple was incapable of holding or carrying 118 psi of
compressed air, which is the working pressure in Getchell's
system.
Nevertheless, because Dixon put the disputed language in its
catalogue, further analysis is required. I will assume that
Dixon is one of the manufacturers of this assembly along with the
manufacturer of the bull hose and the band clamps. I find the
language in the catalogue to be confusing and somewhat
contradictory. On one hand, it states that "the working pressure
of combination nipples varies with the size of the nipple, the
size and construction of the hose, and the type of clamping
system used." (Ex. S-11 at 109). On the other hand, it states
that it was not "intended for compressed air." Id. The amount
of pressure the nipple can safely hold depends on many factors
including the construction of the hose and the integrity of the
clamping system. The "design capacity intended by the
manufacturer" likewise depends on these factors. There does not
appear to be a quantitative element to Dixon's recommendation.
Even if the pressure were very low, it would not recommend use of
the nipple in air systems. The reasons for this recommendation
are not clear.
The Secretary issued a subpoena to Mr. Singh but he did not
appear at the hearing because of a family medical emergency.
(Ex. S-1). Mr. Singh testified, without objection, through his
affidavit dated April 29, 1999. (Ex. S-2). In his affidavit,
Mr. Singh testified that:
The KNC [King Combination Nipple] is not
intended to be used with compressed air.
This means that it is not intended to be used
with compressed air at any level of pressure.
Absolutely under no circumstances is a KNC
intended to be used with compressed air at a
pressure level of 100 psi (pounds per square
inch).
(Ex. S-2, at 2)(emphasis added). Mr. Singh goes on to state that
Dixon manufactures other devices that it recommends for use in
compressed air systems. He states that such couplings are
"either swaged onto hoses using swaging equipment, or they are
installed with bolt-on type clamps for which tightening torque
can be specified and readily measured in order to ensure a
sufficiently tight connection." Id.[1] He suggests two
proprietary devices manufactured by Dixon be used to connect a
hose to a compressed air system.
At the end of his affidavit, Mr. Singh raises safety issues
by stating:
Although it is difficult to quantify risk of
hose separation, it is safe to say that this
risk is increased if inappropriate equipment,
such as the KNC used with compressed air, is
used. Dixon also cautions that air hose
couplings are of particular concern because
when pressurized air releases suddenly, it
does so explosively and can cause rapid
hosewhip.
(Id. at 2-3).
There is no dispute that compressed air systems present
safety hazards and that a failure of a coupling can cause death
or serious injury. It is clear the Dixon does not intend for its
customers to use its combination nipple in compressed air
systems. It recommends that customers use proprietary couplings
that it manufactures specifically for use in compressed air
systems, such as "Boss Clamps." Mr. Singh states that the use of
its combination nipple in compressed air systems raises the risk
of hose separation, but he did not quantify that risk. He also
did not state that the nipple assembly used at the Turquoise
Ridge Mine exceeded the design capacity intended by Dixon.
The issue is whether Getchell, by using a combination nipple
in its compressed air system, overloaded the nipple and the
nipple assembly beyond its capacity as intended by the
manufacturer. The Secretary focuses on the words "intended by
the manufacturer" when interpreting the safety standard. She
argues that the fact that Dixon does not intend its King
combination nipple to be used in compressed air systems proves
that, by doing so, Getchell was exceeding the design capacity
intended by the manufacturer. She equates the manufacturer's
intended use with "design capacity." I reject this
interpretation of the safety standard.
First, as discussed above, the Secretary's interpretation is
not consistent with the plain language of the standard or the
preamble to the final rule. If I assume that the language of the
regulation is ambiguous, I must defer to the Secretary's
interpretation of the standard. It is well established that an
agency's interpretation of its own regulations should be given
"deference ... unless it is plainly wrong" and so long as it is
"logically consistent with the language of the regulation and ...
serves a permissible regulatory function." General Electric Co.
V EPA, 53 F.3d 1324, 1327 (D.C. Cir 1995)(citations omitted);
Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 234 (February 1997).
In addition, the legislative history of the Mine Act states that
"the Secretary's interpretations of the law and regulations shall
be given weight by both the Commission and the courts." S. Rep.
No. 181, 95th Cong., 1st Sess. 49 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 637 (1978).
Although the Secretary's interpretation is consistent with
the remedial purposes of the Mine Act, it is contrary to the
plain language of the standard and is therefore not reasonable.
In addition, I believe that the safety standard does not provide
mine operators with sufficient notice of the requirements of the
standard, as interpreted by the Secretary. The language of
section 57.14205 is "simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC
2496, 2497 (November 1981); Alabama By-Products Corp., 4 FMSHRC
2128, 2130 (December 1992). Such broadly written standards must
afford notice of what is required or proscribed. U.S. Steel
Corp., 5 FMSHRC 3, 4 (January 1983). In "order to afford
adequate notice and pass constitutional muster, a mandatory
[health] standard cannot be `so incomplete, vague, indefinite, or
uncertain that [persons] of common intelligence must necessarily
guess at its meaning and differ as to its application'" Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990)(citation
omitted). A standard must "give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly." Lanham Coal Co., 13 FMSHRC
1341, 1343 (September 1991).
When faced with a challenge that a
safety standard failed to provide adequate
notice of prohibited or required conduct, the
Commission has applied an objective standard,
i.e., the reasonably prudent person test.
The Commission recently summarized this test
as "whether a reasonably prudent person
familiar with the mining industry and the
protective purposes of the standard would
have recognized the specific prohibition or
requirement of the standard."
Id. (citations omitted). To put it another way, a safety
standard cannot be construed to mean what the Secretary intended
but did not adequately express. "The Secretary, as enforcer of
the Act, has the responsibility to state with ascertainable
certainty what is meant by the standard he has promulgated."
Diamond Roofing Co. V. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).
I find that a reasonably prudent person familiar with the
mining industry and the protective purposes of the safety
standard would not realize that the standard is violated because
a mine operator uses equipment for work that is not intended by
the manufacturer. The language speaks of design capacity not
intended use.
It is worth noting that the Secretary's interpretation could
lead to unintended results. A manufacturer of mining equipment
could state in its sales documents that its equipment can only be
safely used in conjunction with its own line of equipment and
that any other use could create a hazard to miners. A mine
operator would be forced to purchase all of the parts and
ancillary equipment from the same manufacturer to avoid potential
violations of the safety standard.
I hold that, in order to prove a violation, the Secretary
must establish that the manufacturer has tested its equipment and
determined that it is capable of performing a certain amount of
work. The Secretary can also rely on testing performed by such
organizations as the American Society for Testing and Materials
("ASTM"). The Secretary need not always produce evidence of
formal laboratory studies; the designed capacity can often be
based on empirical information or knowledge of the manufacturer.
For example, if a braking system on a haulage truck is designed
by the manufacturer to carry no more than the weight of the truck
plus 50 tons and the mine operator modifies the dump on the truck
to carry 80 tons, the Secretary may be able to establish a
violation with this information. My holding in this regard is
consistent with the decisions of other Commission administrative
law judges. See Stillwater Mining Co., 18 FMSHRC 1291 (July
1996), aff'd 142 F.3d 1179 (9th Cir. 1998); Eastern Ridge Lime
Co., 19 FMSHRC 398 (February 1997).
As further support for her position, the Secretary argues
that the nipple assembly was unsafe because the bands used to
secure the hose to the nipple cannot be tested for torque. She
believes that a clamping system that uses bolts that can be
tightened with a torque wrench and tested periodically provides a
greater measure of safety. She relies on the testimony of
Messrs. Singh and Ferlich. The Secretary contends that the
individual who installs the bands around the hose to secure the
nipple can only guess if the bands are tight enough through
visual examination and by the "feel" as they are installed. She
maintains that one never knows whether the bands are correctly
installed and mistakes can be made. With a bolting system, on
the other hand, the torque can be tested to make sure that the
coupling is secure.
Getchell argues that, in fact, the banding system is easier
to install and is less prone to human error. Bolts can become
loose over time and visual examination will not detect the
problem. Bands, on the other hand, cannot loosen and can be
checked with a visual inspection without the use of special
tools. Getchell produced evidence to support its position,
including the testimony of Michael Pfister, Vice President and
General Manager of Punch-Lok. His company manufactures several
types of coupling devices including band clamps. He testified
that it is easy to determine whether band clamps have been
properly attached and tightened to a nipple assembly. (Tr. 358).
He recommends using band clamps in this type of application
rather than swaged or bolted systems. (Tr. 356-62).[2]
**FOOTNOTES**
[1]: In a swaged system, a coupling is crimped onto the
hose with special equipment. This work would normally be done by
the distributor and not the customer. (Tr. 362).
[2]: Mr. Pfister sits on the standards committee of the
National Association of Hose and Accessory Distributors. (Tr.
321). In developing standards for industrial hoses, the
committee has determined that nipple assemblies will be allowed
in compressed air systems. (Tr. 355-56).
I find that this dispute is largely irrelevant. The issue
is not whether a system using bolted connectors are safer or less
prone to human error than a banded system; the issue is whether
Getchell's system exceeded the design capacity intended by the
manufacturer.
As part of its defense in this case, Getchell sent a sample
of its nipple assemblies to Michael Fourney, a registered
professional mechanical engineer, for testing. Each nipple
assembly consisted of a combination nipple that had been inserted
into a section of bull hose and secured with three band clamps.
This is the type of installation that is typically used by
Getchell. Mr. Fourney subjected the assemblies to a number of
tests. He pressurized the assemblies with gas in his laboratory
to determine at what pressure they would fail. (Ex. C-9). He
also performed these tests with water. He ran tests with only
one or two band clamps securing the hose as well.
The lowest level of pressure at which a nipple assembly with
three band clamps failed was 1000 psi. (Ex. C-10). With two
bands, failure occurred as low as 700 psi; and with one band
failure occurred as low as 450 psi. Getchell contends that these
results demonstrate that its use of the combination nipple at 118
psi did not exceed the design capacity intended by the
manufacturer.
If the Secretary establishes the design capacity intended by
the manufacturer, independent testing performed by a mine
operator would be largely irrelevant. In this case, however, Mr.
Fourney's tests provide some support for my holding that the
Secretary did not establish a violation.
The Secretary produced evidence that, at the connection in
question, only one band clamp or perhaps two band clamps were
securing the hose to the nipple. Only one clamp was found at
the accident site; Mr. Crowley testified that he believes that
there was only one clamp, and there were only two clamps present
on the nipple assembly at the north end of the bull hose.
Getchell maintains that the Secretary's evidence is insufficient
to establish that less than three were present.
On reviewing the record as a whole, I find that it has not
been established that there was only one band clamp present.
The combination nipple was damaged as it whipped about the
haulageway following the accident. Parts were strewn all
over the area. The area was very muddy and clamps could
have been lost. Because the nipple assembly was not a
suspected cause of the accident, an exhaustive search for
band clamps was not undertaken. Mr. Crawley was not asked
about the number of bands on the cited nipple assembly until
two days before the hearing. There was no real effort to
look for the clamps on the scissors lift in the area. The
fact that only one was found does not establish that there
were not more clamps securing the nipple.
Mr. Crowley testified that he thought he saw only one
band clamp on the day of the accident. (Tr. 167-69). I find
that he was a credible witness and I do not question his
integrity or honesty. Nevertheless, the events that
occurred on that day were very traumatic and his memory on
this issue may not be accurate. Consequently, whether there
were less than three band clamps at the cited nipple
assembly has not been established. There well could have
been two clamps since two were installed on the other end of
the bull hose and these assemblies are put together on the
surface. It is important to recognize that the Secretary
did not base her allegations in the order of withdrawal on
the number of band clamps on the nipple assembly.
My holding would be the same if two clamps were present,
although I note that there is a smaller margin of safety as
the number of band clamps decreases. Mr. Fourney testified
that with compressed air systems, one should divide the test
results by four to provide a working pressure that is safe
to use. (Tr. 404-06). With three band clamps, the working
pressure would be 340 psi; with two band clamps, the working
pressure would be 230 psi; and with one band clamp, the
working pressure would be 120 psi. Id. The compressed air
system normally operates at 118 psi, but excursions above
that pressure are possible. Since Mr. Fourney sampled only
a small number of nipple assemblies, his results are not
exact.
The safety standard provides that there is a violation
only if the mine operator uses the equipment beyond the
design capacity intended by the manufacturer and such use
may create a hazard to persons. If I had deferred to the
Secretary's interpretation of the standard and determined
that Getchell's use of the nipple assembly was beyond the
design capacity of Dixon's combination nipple, I would still
find that a violation was not established. The record does
not show that Getchell's nipple assembly creates a hazard to
persons.
There is no question that compressed air systems have
seriously injured miners at the nation's mines. (Ex.
S-15). Given the testimony in this case, however, it has not
been established that a properly assembled and installed
nipple assembly creates a hazard to miners at the Turquoise
Ridge Mine. If a given nipple assembly is improperly
"manufactured" by Getchell, it would likely violate section
57.14100(b).
III. ORDER
For the reasons set forth above, the notice of contest
in this case is GRANTED and Order of Withdrawal No. 7966725
issued on March 5, 1999, is VACATED.
Richard W. Manning
Administrative Law Judge
Distribution:
Laura E. Beverage, Esq., and L. Anthony George, Esq., Jackson
& Kelly, 1660 Lincoln Street, Suite 2710, Denver, CO 80264
(Certified Mail)
Susan Gillett Kumli, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson St., Suite 1110, San Francisco,
CA 94105-2999 (Certified Mail)
RWM