<DOC>
[DOCID: f:ws99315.wais]
AU MINING INCORPORATED
June 28, 2000
WEST 99-315-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
June 28, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST
99-315-M :
Petitioner : A.C. No. 05-01506-05526
:
v. :
: Golden Wonder
AU MINING INCORPORATED, :
Respondent :
DECISION
Appearance: Edward Falkowski, Esq., U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Lance Barker, Pro Se, for Respondent.
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 "Mine Act." The Secretary of Labor, on behalf of the
Mine Safety and Health Administration, (MSHA), charged Au
Mining Incorporated (Au Mining) with the violation of the
mandatory safety standards 30 C.F.R. � 57.14130(a) and �
57.14132(b) and proposed penalties of $300.00 for the
violations.
Au Mining filed a timely answer challenging the
citation. A hearing on the merits was held in Grand Junction,
Colorado. The parties presented testimony and
documentary evidence and filed post-hearing statements of
their position as to their interpretation and
applicability of the cited standard to the facts of this
case. The main issue in the case is the applicability of
the ROPS standard to a wheel loader known as an LHD
(which is the abbreviation for a load, haul and dump
loader) when the loader is intermittently used on the
surface area of an underground mine. See Pet.'s Exs. 12-
A, B, C, D and F for photographs of the LHD. Apparently,
the applicability of the ROPS standard to an LHD is a
case of first impression.
Stipulations
1. Respondent Au Mining, Inc., is engaged in mining in
the United States.
2. Respondent is owner and operator of a gold mine known
as the Golden Wonder mine having MSHA ID number 05-01506.
3. The mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977.
4. The proposed penalties, if upheld, will not affect
the Respondent's ability to continue in business.
5. The operator demonstrated good faith in abating the
violations.
6. The Respondent is a small operator. Approximately
4,000 person hours are worked at the mine per year.
Facts
The evidence presented at the hearing demonstrates that
there is no dispute as to the basic relevant facts. Au
Mining owns and operates a small underground gold mine
named the Golden Wonder Mine. The mine is essentially a
two-man operation. The two owners do the mining work
themselves. They enter the mine and do the drilling and
blasting in the underground area being mined. They then
retrieve the mined material using a Wagner model ST2,
"load, haul, and dump loader" which is referred to by its
initials LHD. The LHD was manufactured in 1975 and
acquired by Au Mining in 1997. The LHD is driven bucket-
first into the mine portal, travels bucket first through
the mine, scoops up a load of mined material and then is
backed out of the mine. (Tr. 47-48). The LHD operator
sits sideways on the machine so that he can look either
toward the front or the rear as he drives. (Tr. 42).
There is no seat belt.
After backing the loader out of the mine portal onto
the surface portion of the mine, the operator turns the LHD
around and hauls the load, traveling approximately 100
feet, to a box lined with a large plastic bag and dumps
the load of muck into the bag in much the same manner as
any wheeled front-end loader would dump its load. See
photographs in Pet.'s Ex. 12. The operator then again
turns the loader around, so the bucket is facing toward
the portal, and enters the portal to retrieve another
load. If necessary, the loader is fueled while on the
surface of the mine before reentering the underground
portion of the mine.
Mr. Barker testified that the mine started using the
LHD in 1997 and states it is still the original equipment
which is used just as designed to be used. It was never
equipped with ROPS or a seat belt. It appears from Mr.
Barker's testimony that it was designed to be driven to
the portal of the mine, enter into the mine one way,
scoop muck in its bucket, back out of the underground
portion of the mine, turn around, haul the load in its
bucket along the surface area to the dump box where the
muck is dumped. He stated "obviously it was designed to
go in and come out." It has been used exactly as it was
designed to be used. Asked as to how often the LHD goes
into the mine and comes out, Barker testified that it
varies with production from "as high as 20 times a day to
as low as twice a week."
Citation No. 7924004
On March 9, 1999, MSHA Inspector George Rendon issued
Citation No. 7924004, alleging an S&S violation of 30
C.F.R. � 57.14130(a), because the loader was not equipped
with a ROPS or a seat belt, and it was being used on the
surface area of the mine each time it came out of the
portal of the mine to haul and dump a load of mined
material.
The citation, in pertinent part reads as follows:
The ST2 frontend loader that the miners use to tram
the muck from under ground to the surface was not
equipped with seat belts, backup alarm or ROPS. The
travels a distance of approx. 100' when on the surface
on level ground.
Shortly after receiving the citation charging the mine
with the violation of the standard, Mr. Barker wrote to
MSHA headquarters in Arlington, Virginia, to complain
about the application of � 57.14130(a) to equipment that
is used primarily underground. By letter dated July 1,
1999, Earnest C. Teaster, Jr., Administrator for Metal
and Nonmetal Mine Safety and Health at MSHA, replied to
Mr. Barker as follows:
Thank you for your letter of May 27 concerning the
application of [section 57.14130(a)] to a piece of
equipment that you use at the surface areas of your
underground mine. The equipment is used in the under-
ground section of your mine and also works at the
surface . . .
It is the Mine Safety and Health Administration's
(MSHA) position that mobile equipment used at the
surface areas of underground mines is surface equipment.
MSHA promulgated these standards to address a number
of serious hazards that can occur when miners operate
a piece of mobile equipment on the surface. Although
the piece of equipment came from the underground mining
area, it is still required to meet all applicable
standards when used at surface areas of a mine.
(Emphasis supplied).
Mr. Teaster's letter was received in evidence as Pet.'s
Ex. 8.
Discussion
30 C.F.R. � 57.14130 in pertinent part provides:
� 57.14130 Roll-over protective structures (ROPS) and
seat belts for surface equipment.
(a) Equipment included. Roll-over protective structures
(ROPS) and seat belts shall be installed on--
(1) Crawler tractors and crawler loaders;
(2) Graders;
(3) Wheel loaders and wheel tractors; (emphasis
supplied)
The Secretary's interpretation of this safety standard
is that the standard requires a ROPS and a seat belt be
installed on any equipment listed in the standard even if
used only intermittently for short periods of time on the
surface area of an underground mine. The LHD is a "wheel
loader" (See Pet.'s Ex. 12) which is listed in subsection
(a)(3) of the cited standard as requiring ROPS and a seat
belt when used on the surface of an underground mine. It
is immaterial whether the amount of time the equipment is
used on the surface is brief in comparison to the amount
of time the equipment is regularly used underground.
The Secretary's counsel set forth the regulatory history
of the standard stating that this history clearly shows
that promulgators of the standard clearly intended by use
of the term "surface equipment" to include any equipment
listed in the cited standard such as "wheel loaders"
(which is what the LHD is) that is used, however briefly,
in a surface area of the mine.
The standard was first promulgated a mandatory ROPS
standard for metal/non-metal mines in 1977 by MSHA's prede-
cessor, the Mine Enforcement and Safety Administration (MESA)
of the Department of the Interior. In adopting the standard,
MESA stated:
Section 57.9, Loading, hauling, dumping, is amended as
follows: New mandatory standard 57.9-88 which is applicable
to surface only is added to read as follows:
� 57.9 Loading, hauling, dumping
* * * * *
57.9-88 Mandatory. (A) Excluding equipment that is
operated by remote control, all self-propelled track-
type (crawler mounted) or wheeled (rubber-tired) scrapers;
front-end loaders; dozers; tractors; including industrial and
agricultural tractors . . .; all as used in metal and non-metal
mining operations, with or without attachments, shall be used
in such mining only when equipped with (1) Roll-Over Protective
Structures (ROPS) . . ., and (2) seat belts . . . . (Emphasis
supplied).
42 Fed. Reg. 7010 (Feb. 4, 1977).
After Congress enacted the Federal Mine Safety and Health
Act in 1977, the duty to promulgate and enforce mine
safety and health standards was transferred from MESA to
the newly created MSHA. On January 29, 1985, MSHA
recodified and renumbered the Part 57 standards,
including MESA's ROPS standard, without changing the text
of the standards, except to add descriptive headings.
See 50 Fed. Reg. 4048, 4107-4108 (Jan. 20, 1985). The
recodified standard reads as follows:
SURFACE ONLY
� 57.9088 Roll-Over protective structures (ROPS) and
seat belts.
(A) Excluding equipment that is operated by remote
control, all self-propelled track-type (crawler
mounted) or wheeled (rubber-tired) scrapers; front-
end loaders; dozers; tractors; including industrial
and agricultural tractors . . .; all as used in metal
and non-metal mining operations, with or without
attachments, shall be used in such mining only when
equipped with (1) Roll-Over Protective Structures
(ROPS) . . ., and (2) seat belts . . . . (Emphasis
supplied).
Id; see also Petitioner's Ex. 4 (30 C.F.R. � 57.9088 (July 1,
1987).
The agency further explained that regulations appearing
under the heading "surface only" as in the case of the
ROPS standard, "apply . . . to the surface operations of
underground mines." 30 C.F.R. � 57.1 (Jul. 1, 1985).
The standard thus clearly required that whenever any
listed equipment was used in a "surface operation" (such
as the operation of hauling and dumping mined material
into a surface bin), the equipment had to be equipped
with a ROPS and a seat belt.
The standard was modified to its current form in August
1988. The 1988 revision: (a) updated the references to
the documents that are incorporated by reference in the
standard (which contain the performance criteria for the
required ROPS and seat belts); (b) required that each
ROPS must bear a permanent label, identifying among other
things the ROPS manufacturer and model number; (c)
required that each ROPS must be installed in accordance
with manufacturer's recommendations; and (d) required
that each ROPS must be maintained in a condition that
meets the performance requirements of the standard. In
modifying the standard, however, MSHA made it clear that
it was not changing the scope of the standard, which
would continue to apply to listed equipment that was used
in a "surface" area. Thus the final standard retains the
existing standard's scope and applies to surface mines
and surface areas of underground mines. 53 Fed. Reg.
32511 (Aug. 25, 1988) (Petitioner's Ex. 5). Accordingly,
the standard, as revised in 1988 (and as it exists
today), continues to require that ROPS and seat belts
must be installed on any listed equipment which is used
for any length of time in a surface area.
Courts defer to an agency interpretation of its
regulations "so long as it is reasonable, that is so long
as the interpretation sensibly conforms to the purpose
and wording of the regulations" Martin v. OSHRC 499 U.S.
144, 150-51, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991).
I find the Secretary's interpretation of its regulation
in question and its applicability to the LHD in this case
is reasonable and sensibly conforms to the purpose and
wording of the regulation. The LHD is a wheel loader
which is a listed piece of equipment covered by the
standard. Every time the LHD goes into the mine, it
comes out to the surface and hauls over the surface of
the mine its load to the point on the surface where it
dumps the load and then is driven back over the surface
of the mine until it enters the portal of the mine. It
makes this trip back and forth along the surface of the
mine, sometimes as often as 20 times a day.
The Secretary's interpretation of its standard and its
applicability to the LHD in this case is consistent with
the safety promoting purpose of the Mine Act. I find the
evidence presented establishes a violation of the cited
standard 30 C.F.R. � 57.14130(a).
Significant & Substantial
Citation No. 7924004 alleges that the failure to comply
with the provision of the cited standard when the LHD is
used on the surface of the mine was a significant and
substantial violation. I disagree. Based on the
evidence presented in this case and the Commission's
interpretation of significant and substantial as set
forth in Texasgulf, Inc., 10 FMSHRC 498, 501- 03 (April
1998). The significant and substantial designation of
the violation should be deleted.
The evidence presented does not establish the third
Mathies element.
Section 104(d)(1) of the Mine Act provides that a
violation is significant and substantial if it 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." 30 U.S.C. � 814(d)(1). A
violation is properly designated significant and
substantial "if, based on 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, 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984) the Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary . . .
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 by
the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
The Commission has explained further that the third
element of the Mathies formulation "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury." U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984). The Commission emphasized
that, in accordance with the language of section 104(d)
(1), 30 U.S.C. � 814(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that must
be significant and substantial. Id. In addition, the
evaluation of reasonable likelihood should be made in
terms of "continued normal mining operations." U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The
Commission has held that the resolution of whether a
violation is S&S must be based "on the particular facts
surrounding the violation." Texasgulf, Inc., 10 FMSHRC
498, 501 (April 1988). Applying these principles to the
instant case, I conclude that the cited violation was not
of a significant and substantial nature.
In the course of continued normal operations at this
mine, the LHD would be driven approximately 100 feet on a
flat level surface, from the portal of the mine to a dump
box, and then returns on a flat level surface to and
through the portal of the mine. In fact, there was a
level area just outside the portal of the mine of
approximately 300 to 400 feet. (Tr. 50). I am aware
that there is a possibility that the LHD without a roll-
over protective system could turn over on level ground
but that is not reasonably likely in this case based on
the particular facts surrounding the violation. On
evaluation of the evidence I find the preponderance of
the evidence presented in this case fails to establish a
reasonable likelihood that the hazard contributed to will
result in an event in which there is a serious injury.
I, therefore, find the violation of the cited standard in
this case was not of a serious and substantial nature.
Citation No. 7924021
This citation was issued by mine inspector George Rendon
on March 9, 1999, because the LHD while hauling muck as
it was traveling on the surface of the mine did not have
a back up alarm. At the hearing, Inspector Rendon
testified that the LHD did not have any obstructive view
to the rear. This also appears to be evident from the
photograph of the LHD. (Pet.'s Ex. 12). Counsel for
Petitioner moved to vacate the citation.
Citation No. 7924021 is vacated.
Appropriate Penalty
The parties stipulated that Respondent is a small
operator. The mine is operated by the two owners who do
the mining work themselves. It is stipulated that the
operator demonstrated good faith in timely abating the
violative conditions. Au Mining abated the violation by
agreeing in writing they will use the LHD only
underground. The history of prior violations is not
excessive. Petitioner states that it is moderate. The
violation history for the 2 years prior to the citations
was received as Petitioner's Ex. 2. I find the
operator's negligence to be very low. The violation
resulted from the operator's erroneous but understandable
and in good faith belief that the ROPS regulation cited
was not applicable to the LHD when it was used in the
surface area of the underground mine. The LHD was used
on the surface area of the mine for only brief periods
and then only on the flat level surface. I find the
gravity of the violation is low. Under the evidence
presented, my deletion of the S&S designation and my
findings above, I find the appropriate civil penalty in
this case is $55.00. Assessment of this penalty will not
adversely affect Au Mining's ability to continue in
business.
ORDER
Citation No. 7924021 is VACATED in accordance with
MSHA's motion at the hearing to vacate that citation.
Citation No. 7924004 is modified by deleting the S&S
designation, changing the negligence factor to "very low"
and the injury likelihood to "unlikely." The citation as
so modified is AFFIRMED and Au Mining is ORDERED TO PAY a
civil penalty of $55.00 for this affirmed violation
within 40 days of the date of this decision and order.
August F. Cetti
Administrative Law Judge
Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Mr. Lance Barker, AU Mining Inc., P.O. Box 821, Lake City, CO
81235 (Certified Mail)
/sh