Leadville Mining & Milling Corporation

Plain-English summary

Leadville Mining & Milling Corporation operated the Hopemore Shaft, a small underground gold and base metals mine. MSHA cited the mine for failing to maintain a second escapeway while miners extracted ore during development work. Judge Michael A. Lasher, Jr. held that the regulation required two escapeways because the work involved mineral extraction, even though the operator characterized it as exploration or development. He found the violation was not Significant and Substantial, modified the citation to remove that designation, affirmed it otherwise, and assessed a $100 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. § 57.11050(a); 30 U.S.C. §§ 814(a) and 820(a)
• Outcome: Citation No. 3633365 was modified to remove the Significant and Substantial designation, affirmed otherwise, and assessed a $100 penalty.
• Key point: Mineral extraction during development work is mining for purposes of the two-escapeway requirement, but the evidence here did not establish a reasonable likelihood of serious injury.

Full text (FMSHRC public release)

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           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                       1244 SPEER BOULEVARD #280
                         DENVER, CO 80204-3582
                   (303) 844-5266/FAX (303) 844-5268

                           December 14, 1992

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 92-124-M
Petitioner : A.C. No. 05-04055-05507
:
v. :
: Hopemore Shaft
LEADVILLE MINING & MILLING :
CORPORATION, :
Respondent :

                               DECISION

Appearances: Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
George E. Reeves, Esq., Denver, Colorado,
for Respondent.

Before: Judge Lasher

 In this matter, MSHA, proceeding pursuant to Section 110(a)

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeks assessment of a civil penalty for an allege
violation of 30 C.F.R. § 57.11050(a) pertaining to escapeways in
underground mines. This standard provides:

         Every mine shall have two or more separate,
       properly maintained escapeways to the surface
       from the lowest levels which are so posi-
       tioned that damage to one shall not lessen
       the effectiveness of the others. A method of
       refuge shall be provided while a second open-
       ing to the surface is being developed. A
       second escapeway is recommended, but not re-
       quired, during the exploration or development
       of an ore body.

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Contentions of the Parties

 Respondent (herein "LMMC") contends that it was engaged in

exploration or development of the ore body and thus was not
"required" to have a second escapeway, although such is "rec-
ommended" by the regulation.

 Petitioner (herein "MSHA") contends that LMMC was not en-

gaged in exploration or development but rather was engaged in
actual mining operations. MSHA also contends that the alleged
violation was "Significant and Substantial."

Findings

 The Section 104(a) Citation in question (No. 3633365) was

issued by MSHA Inspector Ronald L. Beason on July 3, 1990, during
a regular inspection, and described the alleged violation as
follows:

       A separate escapeway to the surface was not
       provided at the mine. A method of refuge was
       provided; but, development towards a second
       escapeway was not being conducted at the time
       of this inspection. The employees were work-
       ing on the 740 West Vent drift. Blasted a
       slab round in the 640 Zinc Stope. 1990.

       In 1989 Mining was conducted on the 500 and
       700 level. In 1988 Drifting 700 level.

       An active development program must be estab-
       lished to comply with the standards and pro-
       vide a second escape to the surface.

       (Ex. R-4).

  Although the allegedly violative condition was never actu-

ally abated, MSHA does not contend that LMMC did not proceed in
good faith to achieve abatement. The mine was closed in November
1990.

 The parties have stipulated (Court Ex. 1; T. 36-37) that the

mine did not, on July 3, 1990, have two or more separate escape-
ways to the surface. The record is clear that the mine did have
one escapeway--the Hopemore Shaft itself, and that a method of
refuge was provided on the inspection day (T. 95). The second
escapeway, contemplated by Respondent, was called the Hunter
Shaft. (T. 94-95).

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During his inspection of the Hopemore Shaft [an underground
gold and base metals mine (T. 60, 68-69)] on July 3, Inspector
Beason was accompanied underground by lead miner Robert Calder
and by Oliver Jeter on the surface. The mine (Hopemore Shaft)
had been in existence since 1985 (T. 44; Ex. 6-7). Two miners
were working underground on the day of the inspection. (T. 59,
60, 72).

 After Inspector Beason entered the mine, he rode the "skip"

to the 700 level, and then went to the 740 "raise" and on to what
is called the "640 stope" (T. 26-28, 35-36). He said a "stope"
is not development work. (T. 42, 43, 49; Ex. G-2). He testified
he saw men working, but not on the second escapeway:

       I seen [sic] that they were working in the
       500 (Footnote 1) and 700 levels and he 600
       level. I observed that they were working in
       the 640 zinc stope while I was there and the
       740 west drift. I did not observe any work
       towards a second escape. I didn't see in
       the previous reports and the previous
       citations issued for radon that they were in
       the 500 level working toward a second escape.
       (T. 36).

 I conclude from the entire record on this point that while

miners previously may have done some work in the 500 level, they
had not been engaged in developing a second escapeway for at
least a year (T. 37-39, 65).

 The mine layout is shown in Exhibit R-1. The Hopemore Shaft

(a vertical shaft) is shown thereon as a rectangle on the edge of
square 427. The Hopemore Shaft is intersected by four different
horizontal tunnels called the 5 level, 6 level, 7 level, and 8
level, and such are indicated respectively on R-1 by the colors
yellow, green, brown, and red.

 The Inspector's testimony relating to whether LMMC was en-

gaged in production (mining) was first stated in the form that it
was his "understanding" (T. 71) that such was the case:

1 The Inspector said that, to "gain access" to a second escape, the work
would have to be performed from the 500 level, and that "they were not working
on the 500 level" (T. 36), contradicting what he said in the testimony quoted
above. He said, in further explanation, that work would have to be done on
the 500 level to be "toward the Hunter shaft" (T.37, 42) which he was told was
developed down 24 feet from the surface (T. 37) but was unable to confirm
since it was timbered over (T. 38). This contemplated second escapeway, the
Hunter Shaft, would have been 500 feet top to bottom, i.e., from the surface
to the 500 level (T. 63-64).

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A. The 740 raise, they had completed that. And from my
discussion with them, I determined that they had made
a slab round and was in the process of using a slusher
to move that down the stope, or down the raise into
the skip.

    Q.   So where was this slab round?

    A.   In the 640 stope.

    Q.   And could you describe what a slab round is and what
         its significance is, if it has any?

    A.   Normally when you drive a drift, you drive it through
         an ore-bearing area or waste rock, that type of thing.
         If there's some ore or something where you want to
         widen it or some-thing like that, you drill into the
         side of your drift and blast that off. And that's a
         slab.

    Q.   Did this seem like an occasion where they wanted to
         widen it?   Did it seem like they were blasting for
         the ore?

    A.   It was my understanding that they were blasting for the ore,
         the skip--the car at the bottom of the 740 raise, we
         discussed that and how he moved the car of ore out to the
         shaft. And he told me he had to do it by hand. And we
         discussed that some.

         So it was my understanding that they were blasting or
         putting it in the raise, and he was pushing this car
         to the shaft and hoist-ing it to the surface. (T. 27-
         28).

 The Inspector said that "When they leave the levels and start pulling

ore out of the shaft in the 640 stope, they were "mining." (T.43). He said
he was told that ore had been hauled up with the skip out of the shaft and
taken to the mill where it was stored in stockpiles (T. 45, 79, 99, 102). He
did not see the stockpile. There were three such stockpiles (T. 162). More-
over, Donald Wilson, the President of LMMC, confirmed that there were
stockpiles of gold ore which would have been salable after milling and that
there were approximately 15 to 20 tons of such ore in the stockpiles. (T.
137-138, 193, 222-223, 224).

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Inspector Beason said that the way LMMC was interpreting the regulation,
"you'd have the mine mined out or have a cave-in before you ever got a second
escapeway in." (T. 101-102) (Footnote 2)

    Inspector Beason said development and exploration are the same thing:

          What you do is you drive a drift in a spe-cific part
          of the mine to determine the ore value. You long-hole
          it to determine how much you may have in that mine.
          And that's development and exploration. (T. 46).

 In determining whether exploration or development was being conducted,

Inspector Beason relied (T. 47) on MSHA's Program Policy Manual, Subpart J,
pertaining to "Escapeways" (Ex. G-3) which provides, inter alia:

          This standard requires two or more separate escapeways
          to the surface for every under-ground mine. However,
          a second escapeway is recommended, but not required,
          during the exploration or development of an ore body.
          In this connection, "exploration or develop-ment of an
          ore body" should be used in its narrowest sense, i.e.,
          while an ore body is being initially developed, or
          development or exploration work is being conducted as
          an extension of a currently producing mine. Where
          mining occurs along a mineralized zone and production
          and development are indisting-uishable as separate
          activities, the standard shall be applied as it would
          to a producing mine.

 Inspector Beason inspected the mine's ventilation plan (Ex. G-6) and

determined that LMMC was not ventilating the 500 level and therefore could not
have been working on the 500 level. (T. 54). He also reviewed the locations
where the last inspector had taken radon samples and noticed that no samples
had been taken on the 500 level where the second escapeway would come down to
(T. 36) and concluded that work was not being performed on that level

2 LMMC contends that the regulation does not require a second escape to be
developed at all during the exploration or development of an ore body (Brief,
pg. 17). But see T. 73, 74, 79, 84, 99, 102, 107-109, 137-140, 156, 162, 168-
169, 193, 222-224, indicating that mining (extracting ore) was being
conducted.

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because federal mining inspectors are required to take radon sam- ples in all
areas men are working. (T. 36). Inspector Beason reasonably concluded from
so-called "contract" information (T. 37; Ex. G-2) and observations at the mine
on inspection day that work had not been performed on the second escapeway for
at least one year. (T. 37-38, 39).

 On cross-examination, Inspector Beason pointed out the sig- nificance of

determining where the miners had been working.
(T. 73-74). He stated:

       The work in the 500 drift toward the Hunter shaft
       would be to establish a second escape. Any work off
       of the main levels, such as the stopes, the raises,
       where you're into min- eralized areas or working in
       those areas is mining. (T. 74).

 There is no question but that ore was extracted from the mine and placed

in stockpiles near the mill (T. 27-28, 45, 71-72, 79, 99, 107-108, 137-140,
141, 193, 222-224), that the concen- trate therefrom could be sold after
milling (T. 141, 192-193, 222, 223), and that the President of LMMC intended
to sell it ultimately (T. 141, 192-194, 220-224).

 The ore and other material removed from the mine was dumped on the

ground and separated after a distinction was made whether it was "waste" rock
or was mineralized (T. 107, 155-156, 161, 164, 214-215). None of the
material put in the stockpiles has ever been milled by LMMC (T. 164) other
than for test runs of approximately 10 tons (T. 168-169).

 Inspector Beason identified the hazard involved as follows:

       ... if there's one escape, you only have one way out
       if you have a cave-in in any of your drifts, that
       prevents you from going out, or you lose your shaft,
       or if your skip gets hung up in there and drops, that
       type of thing, in the shaft. Or fire can occur in the
       shaft. Those types of things can create real hazards
       to the miners underground.
       (T. 59).

 The Inspector felt that this exposure to miners had endured from 1988 to

1990 (T. 61) and that if one of the contemplated events occurred and the main
shaft was blocked, and fire oc- curred, then fatal injuries could occur (T.
63). He acknowl-

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edged that the existence of a refuge chamber could lessen the likelihood of a
fatality (T. 63, 95).

 Inspector Beason concluded that LMMC was moderately negli- gent on the

basis of this rationale:

         Well, at previous times they had done some work in
       the 500 level. You see, on the con- tract report, I
       show that they had been in the 500 level, 527 level at
       one month--I think it was two months that they were
       there. So they were throughout that period of time in
       the 500 level. I'm assuming that the only reason they
       were doing that is to make their second escape.

         Then they had done the head frame and they claimed
       to be down 24 feet there, and they put the head frame
       in at that point. So, in that respect, they have
       mitigating circum-stances that they have done some
       work, so I determined it to be moderately negligent.
       (T. 65).


 LMMC established, contrary to Inspector Beason's assertion that blasting

slab rounds in the stope constitutes "pulling ore out," that:

 1.    The mere fact that such occurs in a stope does not
       necessarily mean that production (mining) is ongoing
       (T. 42, 78-79).

 2.    The mere fact that LMMC was in the stope and blasting
       a slab round does not establish that LMMC was pulling
       out ore, i.e., extracting mineral (T. 85).

 3.    That the slab round which Inspector Beason thought was
       blasted on July 2, 1990 (the day before the
       inspection) in the 640 stope, was actually blasted on
       the 5 level drift (T. 27 71, 85, 154; Exs. R-2 and R-
       6; See LMMC's Brief, pp. 5-7, 15).

 4.    That the purpose of blasting the slab round in
       question, as stated by Mr. Calder, the miner who
       performed the task, was to turn a drift, which he
       explained as follows:

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I had to go at an angle with the drift so
it enabled me to have more time to turn
around to put a car in mud, car and
track." (T. 154).

    5.    That the mere existence of the muck chute does not
          warrant the inference that such was being used by LMMC
          for removal of ore (T. 57, 58, 72, 79).

                               DISCUSSION

A. Occurrence

 This matter calls for interpretation of the standard.       I construe the

cited regulation, and conclude therefrom, as follows:

 The first of the three sentences requires, without qualifi-cation, that

every "mine" have two escapeways. Reference to the Act itself reveals that a
"coal or other mine" is "... an area of land from which minerals are extracted
... ." Thus, it would seem that if minerals are being extracted, for whatever
reason, from an area of land, as here (T. 222-224), then the operation is a
mine and the first sentence of the regulation applies so as to require two
escapeways.

 The second sentence of the regulation, requiring a "method of refuge

while a second opening to the surface is being devel-
oped" was being complied with on the day the citation was issued. Respondent
had put in such method of refuge (T. 95, 207).

 The third sentence states that a second escapeway is recom- mended but

not required during the exploration or development of the ore body. I
construe this third sentence to be an exception to the requirement of the
first sentence and concur with MSHA's position (stated in its Program Policy
Manual) that the exception should be construed narrowly. (Footnote 3) So
read, the regulation requires that when mining, extracting mineral, is
ongoing, two escapeways

3 The Mine Act and the standards promulgated thereunder are to be in-
terpreted to ensure, insofar as possible, safe and healthful working
conditions for miners. Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417, 419-
420; (4th Cir. 1979). The conclusion reached here would prevent a mine
operator from extracting ore and conducting mining under the guise of
development by rejecting an "either-or" analytical approach and recognizing
that development (or exploration) work and mining can be carried on
simultaneously.

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are required. (Footnote 4) Carrying this construction to finality, I con-
clude: (1) If such mining is incidental, in combination with, or part of
exploration or development, it nevertheless is mining; (2) As mining, it is
covered by the general rule of the regula- tion requiring two escapeways; (3)
LMMC was required by the regulation to first install the second escapeway
before engaging in other exploration or development work in which minerals
were extracted; (4) If mineral extraction occurs as a direct result of the
work involved in developing the second escapeway, no vio- lation occurs; (5)
If mineral extraction occurs as a result of work performed in other
development not related to installation of the second escapeway, a violation
does occur; and (6) If exploration or development work not related to
installation of the second escapeway does not entail extraction of minerals,
no violation is committed.

 In this matter, LMMC was engaged in development work which did involve

extraction of mineral and was not part of the work necessary to install the
second escapeway. While such was de-
velopment work, it also was mining (production). As mining, it was covered by
the regulation and two escapeways were required to have been in place before
such work was commenced.

 Accordingly, it is concluded that a violation did occur.

B. Significant and Substantial

 LMMC's position that this violation was not "Significant and

Substantial" is found meritorious and is here adopted.

 A violation is properly designated "Significant and Substan-

tial" if, based on the particular facts surrounding that viola-
tion, there exists a reasonable likelihood that the hazard con-
tributed 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., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission explained:

4 At page 9 of its Brief, LMMC argues "... the mere fact that the mate-
rial excavated in a particular operation is ore or mineralized rock does not
prevent that operation from being exploration or development." When such ore
or mineralized rock is extracted and stockpiled for future sale, is this not
"mining" also? Is the regulation to be construed narrowly in a manner adverse
to safety, or broadly to cover its obvious intent to require two escapeways
when mining is going on?

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         In order to establish that a violation of a
       mandatory safety standard is significant and
       substantial under National Gypsum the Secre- tary 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 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 reason- ably serious
       nature.

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988).

 The third element of the Mathies formula requires "that the Secretary

establish a reasonable likelihood that the hazard con-
tributed to will result in an event in which there is an injury, and that the
likelihood of injury must be evaluated in terms of continued normal mining
operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). See also
Monterey Coal Co., 7 FMSHRC 996, 1001-1002 (July 1985). The operative time
frame for determining if a reasonable likelihood of injury exists includes
both the time that a violative condition existed prior to the citation and the
time that it would have existed if normal mining operations had continued.
Halfway, Inc., 8 FMSHRC 8, 12 (January 1986); U.S. Steel Mining Co., 7 FMSHRC
1125, 1130 (August 1985). The question of whether any particular violation is
significant and substantial must be based on the particular facts surrounding
the violation, including the nature of the mine involved. Texas-
gulf, Inc., 10 FMSHRC 498, 500-501 (April 1988); Youghiogheny and Ohio Coal
Company, 9 FMSHRC 2007, 2011-2012 (December 1987). It is the contribution of
a violation to the cause and effect of a hazard that must be significant and
substantial. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984).

 During Inspector Beason's direct testimony regarding whether the alleged

violation was "Significant and Substantial," he tes-tified in broad general
terms regarding cave-ins, fire, and col-lapse of the shaft (T. 59) and then
concluded that these events were "reasonable and likely," based on his
experience in other mines (T. 62). His testimony on both direct and cross-
examina-tion is devoid of any mention of the particular facts surround- ing
the violation (Cement Division, National Gypsum Company, 3 FMSHRC 822 (April
1981) which would support his conclusion. Even
from the record as a whole (including MSHA's evidence) it must be concluded
that Petitioner established only a possibility (T. 62-63, 91) that the hazard
contributed to by the violation would come to fruition so as to result in an
injury or fatality. Since the "reasonable likelihood" requirement of Mathies,
supra, has

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not been satisfied, it is determined that the "Significant and Substantial"
designation of this violation should be stricken.

C. Penalty Assessment (Footnote 5)

 LMMC is the owner and operator of the Hopemore Shaft, a small

underground gold and base metals mine. It had a history of seven violations
in the pertinent two-year period preceding the issuance of the citation.
LMMC's ability to continue in business will not be placed in jeopardy by the
payment of a reasonable penalty in this matter. MSHA does not contend that
LMMC, after notification of the violation did not proceed in good faith to
promptly abate the same (T. 67). Based on the evidence previous- ly
discussed, LMMC is found to be but moderately negligent in the commission of
this violation.

 In view of the failure of the evidence with regard to the alleged

"Significant and Substantial" nature of this violation, the paucity of the
evidence bearing on whether there was a rea- sonable likelihood that the
hazard envisioned would occur as a result of the violation's contribution, and
the Inspector's opi-
nion that the existence of the refuge chamber would lessen the likelihood of
the occurrence of a fatality should a contemplated hazard come to fruition,
the violation is found to be of only a moderate degree of gravity. Weighing
these criteria, a penalty of $100 is here assessed.

                              ORDER

 1.    Citation No. 3633365 is MODIFIED to delete the "Significant and

Substantial" designation thereon and is otherwise AFFIRMED.

 2.    Respondent LMMC SHALL PAY to the Secretary of Labor within 40 days

from the date hereof the sum of $100 as and for a civil penalty.

                                      Michael A. Lasher, Jr.
                                      Administrative Law Judge

5 Petitioner seeks a penalty of $85 in this matter.

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Distribution:

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of Labor, 1585
Federal Office Building, 1961 Stout Street, Denver, Colorado 80294
(Certified Mail)

George E. Reeves, Esq., 4704 Harlan Street, Suite 300, Denver, CO 80212
(Certified Mail)

ek
Tambra Leonard, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver, Colorado 80294
George E. Reeves, Esq.
4704 Harlan Street #300
Denver, CO 80212