Ozarkamahoning Company
Ozarkamahoning Company (FMSHRC LAKE 88-4-M, LAKE 87-85-M and LAKE 88-22-M): Noise and injury-reporting violations affirmed
Apply this to your situation
This order from 1988 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Ozarkamahoning Company contested eight alleged violations involving excessive noise exposure and failure to report an injury at its Annabel Lee and Denton Mines. Judge George A. Koutras affirmed the noise citations, including an S&S citation for a jumbo drill operator exposed to noise levels far above the allowable limit, and affirmed the injury-reporting citation after finding that an employee's hydrogen sulfide eye injury received medical treatment. One separately paid citation was no longer contested. The judge ordered payment of $205 in civil penalties for the affirmed violations and dismissed the proceedings upon payment.
Decision snapshot
- Cited standards: 30 C.F.R. § 50.20, § 57.5050, and § 57.5050(b)
- Outcome: The contested citations were affirmed, the S&S finding for Citation No. 2865785 was affirmed, and $205 in penalties was assessed.
- Key point: A mine must report an occupational eye injury treated with prescription medication, even when the employee's lost workday is disputed.
Full text (FMSHRC public release)
+CCASE:
SOL (MSHA) V. OZARK-MAHONING
DDATE:
19880817
TTEXT:
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 88-4-M
PETITIONER A.C. No. 11-02780-05506
v.
Docket No. LAKE 87-85-M
OZARKÄMAHONING COMPANY, A.C. No. 11-02780-05504
RESPONDENT
Annabel Lee Mine
Docket No. LAKE 88-22-M
A.C. No. 11-02667-05505
Denton Mine
DECISIONS
Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for the Petitioner;
Thomas M. Dowling, Safety and Industrial Relations
Manager, and Vic A. Evans, General Manager, OzarkÄMahoning
Company, Rosiclare, Illinois, for the Respondent.
Before: Judge Koutras
Statement of the Proceedings
These proceedings concern civil penalty proposals filed by
the petitioner against the respondent pursuant to section 110(a)
of the Federal Mine Safety and health Act of 1977, 30 U.S.C.
820(a), seeking civil penalty assessments for eight alleged
violations of MSHA's mandatory noise standards found in Part 57,
and the injury reporting standards found in Part 50, Title 30,
Code of Federal Regulations.
The respondent contested the citations and proposed civil
penalty assessments, and pursuant to notice served on the
parties, hearings were held in Evansville, Indiana. The parties
filed posthearing briefs, and I have considered the
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arguments made therein in the course of my adjudication of these
cases.
Issues
The issues presented in these proceedings are as follows:
1. Whether the respondent violated the cited mandatory
safety standards, and if so, the appropriate civil
penalties to be assessed for the violations based on
the criteria found in section 110(i) of the Act.
2. Whether the inspector's "significant and
substantial" (S & S) finding concerning one noise
citation violation is supportable.
3. Additional issues raised by the parties in this
proceeding are identified and disposed of in the course
of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95Ä164, 30 U.S.C. 801 et seq.
2. Section 110(i) of the 1977 Act, 30 U.S.C. 820(i).
3. Commission Rules, 20 C.F.R. 2700.1 et seq.
Stipulations
The parties stipulated to the following (Exhibit PÄRÄ1):
1. OzarkÄMahoning Company, a Delaware Corporation, is
the owner and operator of the Denton and Annabel Lee
Mines located in the state of Illinois and the county
of Hardin.
2. The mines operated by OzarkÄMahoning Company are
subject to the Federal Mine Safety and Health Act of
1977 as it relates to 30 C.F.R. Part 57 for metal and
nonmetal mining and milling operations.
3. The Denton Mine is classified under the Act as a
small mine having accumulated a
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total of 35,136 work hours in the preceding calendar year.
4. The Annabel Lee Mine is classified under the Act as
a small mine having accumulated a total of 53,131 work
hours in the preceding calendar year.
5. On May 27, 1987 at 2:00 p.m., MSHA Inspector Jerry
Spruell issued Citation No. 2865780 to OzarkÄMahoning
for an alleged violation of 30 C.F.R. 50.20.
6. On May 27, 1987 at or near 3:00 p.m., MSHA Inspector
James Bagley issued Citation Nos. 2865757, 2865758 and
2863759 for alleged violations of 30 C.F.R.
57.5050(b).
7. On May 27, 1987, MSHA Inspector Jerry Spruell issued
Citation Nos. 2865785, 3059584 and 3059585 for alleged
violations of 30 C.F.R. 57.5050(b). Citation No.
2865785 was issued for an alleged violation of 30
C.F.R. 57.5050.
8. Pursuant to the provisions of section 110(a) of the
Federal Mine Safety and Health Act OzarkÄMahoning
Company posted Notices of Contest and requested
hearings in the matter of alleged violations of 30
C.F.R. 50.20 and 30 C.F.R. 57.5050(b) as issued by
Citation Nos. 2865780, 2865757, 2865758, 2863759,
2865785, 3059584 and 3059585.
9. During the preceding year OzarkÄMahoning Company's
Mining Division accumulated a total of 238,015 hours
worked for all its reportable locations covered under
the Mine Safety and Health Act of 1977 as it relates to
30 C.F.R. Part 57 for metal and nonmetal mining and
milling operations.
10. Payments as originally proposed for the alleged
violations in this matter will not adversely affect the
operator's ability to remain in business.
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Discussion
The citations in issue in these proceedings are as follows:
Docket No. LAKE 88Ä4ÄM
Section 104(a) non-"S & S" Citation No. 2865757, May 28,
1987, cites a violation of 30 C.F.R. 57.5050(b), and the
condition or practice is stated as follows (Exhibit PÄ6):
The full shift exposure to mixed noise levels of the
No. 1 Haulage Truck operator exceeded unity (100%) by
4.25 Times (425%) as measured with a dosimeter. This is
equivalent to an 8Ähour exposure to 100.3 dBA. Personal
hearing protection was being worn. Feasible engineering
controls were not being used to reduce the noise
exposure to permissible units.
Section 104(a) non-"S & S" Citation No. 2865758, May 28,
1987, cites a violation of 30 C.F.R. 57.5050(b), and the
condition or practice is stated as follows (Exhibit PÄ7):
The full shift exposure to mixed noise levels of the
No. 2 Haulage Truck operator exceeded unity (100%) by
3.65 times (365%) as measured with a dosimeter. This is
equivalent to an 8Ähour exposure to 99.3 dBA. Personal
hearing protection was being worn. Feasible engineering
controls were not being used to reduce the noise
exposure to permissible units.
Section 104(a) non-"S & S" Citation No. 2865759, May 28,
1987, cites a violation of 30 C.F.R. 57.5050(b), and the
condition or practice is stated as follows (Exhibit PÄ8):
The full shift exposure to mixed noise levels of the
Front-end Loader, operating in the south end of the
mine (Miller's Ridge), exceeded unity (100%) by 2.96
(296%) as measured with a dosimeter. This is equivalent
to an 8Ähour exposure to 97.7 dBA. Personal hearing
protection was being worn. Feasible engineering
controls were not being used to reduce the noise
exposure to permissible units.
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Section 104(a) "S & S" Citation No. 2865785, May 28, 1987, cites
a violation of 30 C.F.R. 57.5050, and the condition or practice
is stated as follows (Exhibit PÄ5):
The full shift exposure to mixed noise levels of the
jumbo drill operator exceeded unity (100%) by 18.67
times (1867%) as measured with a dosimeter. This is
equivalent to an 8Ähour exposure to 111 dBA. Personal
hearing protection was being worn. This drill operator
was exposed to continuous noise, when both drills were
being used, at 118 dBA level, measured at the
operator's ear with a sound level meter, on this date.
The left drill was not nullified and the right drill
exhausted toward the operator.
The respondent asserted that it has previously paid the
civil penalty assessment of $20 for section 104(a) non-"S & S"
Citation No. 2865784, issued on May 28, 1987, for a violation of
30 C.F.R. 57.5050, and no longer wishes to contest this
citation. Petitioner's counsel agreed that this was the case (Tr.
143Ä147).
Docket No. LAKE 88Ä22ÄM
Section 104(a) non-"S & S" Citation No. 3059584, issued on
June 17, 1987, cites a violation of 30 C.F.R. 57.5050(b), and
the condition or practice states as follows (Exhibit PÄ9):
The full shift exposure to mixed noise levels of the
Wagner 2B loader operator working underground exceeded
unity (100%) by 1.583 times (158.3%) as measured with a
dosimeter. Personal hearing protection was being worn.
This exposure is equivalent to an 8Ähour exposure to 93
dBA.
Section 104(a) non-"S & S" Citation No. 3059585, issued on
June 17, 1987, cites a violation of 30 C.F.R. 57.5050(b), and
the condition or practice states as follows (Exhibit PÄ10):
The full shift exposure to mixed noise levels of the
operator of the loader (Scoopy #2) working underground
exceeded unity (100%) by 3.04 times (304%) as measured
with a dosimeter. Personal hearing protection was being
worn. This exposure is equivalent to an 8Ähour exposure
to 98 dBA.
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Docket No. LAKE 87Ä85ÄM
Section 104(a) non-"S & S" Citation No. 2865780, May 27,
1987, cites a violation of 30 C.F.R. 50.20, and the condition
or practice is stated as follows (Exhibit PÄ1):
A lost time injury accident occurred at this property
on 4Ä30Ä87. A 7000Ä1 form, report of accident or
injury, had not been submitted to MSHA as required. The
employee injured was not worked on 5Ä1Ä87 due to the
accident.
MSHA's Testimony and Evidence Concerning the Accident Reporting
CitationÄDocket No. LAKE 87Ä85ÄM
MSHA Inspector Jerry L. Spruell testified as to his training
and experience, and he confirmed that he conducted an inspection
on May 27, 1987, with fellow Inspector James Bagley, and upon
requesting to look at any mine records relating to accidents in
the mine, management produced records which showed that a lost
time injury accident had occurred and that an employee had missed
1 day of work because of that accident. Since an MSHA Form No.
7000Ä1, had not been submitted as required by section 50.20, he
issued the citation. The company records he reviewed indicated
that the employee was involved in an "injury" and missed 1 day of
work and was not able to perform his regular duties because of
being overcome by hydrogen sulfide gas. Mr. Spruell confirmed
that the records did not show that the employee was involved in
an "accident" (Tr. 9Ä16).
Mr. Spruell confirmed that at the time he issued the
citation he was not aware that the employee received any medical
treatment. After speaking with the employee he told him that he
was unable to work on May 1, 1987, "because he was blind and
couldn't see to run his drill," and was unable to work because
"he couldn't see to do the job safely." The employee also told
him that he had visited a doctor and that the doctor told him he
did not want him exposed "to the gas at the high level like that
at that short period of time without a recovery time" (Tr. 17).
Mr. Spruell believed that the respondent was familiar with
MSHA's injury reporting requirements because it has the forms and
the instructions which are on the front cover. Mr. Spruell
confirmed that he made a gravity finding of "unlikely" because
the failure to report the injury would not
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cause an injury or illness, and he found "lost days or restricted
duty" because the employee had an injury that resulted in a lost
day. He also confirmed that he made a negligence finding of
"moderate" because the office person who fills out the report
advised him that she was not aware of the fact that lost time
injuries had to be reported. Mr. Spruell abated the citation that
same day after the person filled out a reporting form (Tr. 18).
Inspector Spruell confirmed that he based his citation on
certain documents which were given to him by mine management
during his inspection. A supervisor's Report of Accident shows
that the employee lost 1 day of work on May 1, 1987 (Exhibit
PÄ2Äa). A worker's compensation form filed by the respondent
reflects that the incident concerning the employee was a "lost
work day case" (Exhibit PÄ2Äb); (Tr. 20Ä23).
On cross-examination, Mr. Spruell confirmed that except for
the violation in question, the respondent's other records were
reasonably kept and the respondent made a reasonable attempt to
keep them up to date. He did not believe that any of the
respondent's employees were conspiring to "cover up" the injury
report in question (Tr. 24).
Mr. Spruell confirmed that he has been trained in the
effects of hydrogen sulfide gas, and while it affects individuals
differently, the normal result of exposure to the gas results in
eye irritation to anyone who has been exposed to high gas levels
(Tr. 26). He also confirmed that the supervisor's report reflects
the time of the injury as "all day," and this would indicate that
the employee worked all day (Tr. 34).
Mr. Spruell stated that he was familiar with MSHA
Information Bulletin 86Ä6C, 86Ä3M (Exhibit RÄ1), and he denied
that the respondent's accountant, Mrs. Spivey, told him that she
used this bulletin in filling out injury and accident forms (Tr.
37). Mr. Spruell made reference to a certain information
contained in the bulletin which requires the reporting of a
"doubtful" injury (Tr. 40).
In response to further questions, Mr. Spruell stated that it
was his understanding that the employee worked his whole shift
and went to a doctor after the shift (Tr. 46).
Mr. Spruell stated that the employee in question, Joseph
Clanton, did not contact him or his office with regard to his eye
injury, and that he did not go to the mine to specifically look
for any report incident to Mr. Clanton's eye condition.
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Mr. Spruell confirmed that his citation was issued solely on the
basis of the records that the respondent showed him, and that he
was not aware of Mr. Clanton's injury prior to the inspection
(Tr. 72Ä73). Mr. Spruell was made aware of the fact that another
MSHA inspector was at the mine on May 1, making gas readings, but
this inspector was not looking into the injury reporting
situation (Tr. 73).
Mr. Spruell reaffirmed the fact that he issued the citation
because of the respondent's injury report and the worker's
compensation form which indicated that the employee missed 1 day
of work because of gas exposure to his eyes (Tr. 106Ä107). Based
on this information, he concluded that the lost day of work was a
direct result of the injury, and all lost time injuries must be
reported. He agreed that if the employee simply decided to take a
day off for a reason other than an injury, then it would not have
to be reported (Tr. 108Ä109).
Joseph Clanton, confirmed that he is employed by the
respondent as a drillman, and that he worked his shift on April
30, 1987. After coming to the surface at the end of his shift,
his eyes were exposed to the light, and he stated that "I was
blinded. I was in extreme pain, excruciating pain." He stated
that he was angry, and was exposed to the same condition 2Ädays
prior to April 30, and that he told the secretary and the mine
superintendent "that when they got that place straightened out,
fit to work in, I'd be back." He confirmed that he intended to
stay off "until they got this condition abated" (Tr. 50Ä51).
Mr. Clanton stated that he attempted to drive home as he had
done the previous two evenings, but after driving 5 miles he
stopped at a friend's house and asked to be taken to a doctor.
Mr. Clanton stated that he blindfolded himself, and after it was
dark he was able to see. After arriving at the doctor's office,
he was directed to the emergency room where his eyes were flushed
out with sterile water. The doctor examined him and put some
salve in his eyes and gave him the rest of it to use. The next
morning his eyes "scabbed over a little bit, but they cleared up"
(Tr. 54Ä55). Mine Superintendent Pilcher called him, and Mr.
Clanton advised him that he did not care to come to work that day
because he did not want to be exposed to the gas again (Tr. 55).
Mr. Clanton stated that after visiting the doctor on
Thursday, April 30, the doctor told him "you better not work
tomorrow," referring to Friday, May 1, 1987. The doctor did not
order him a prescription other than the tube of ointment
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which he gave him, and Mr. Clanton could not identify that
medication. The ointment "made it hurt a little worse. But, it
cleared up over night" (Tr. 56Ä58). Mr. Clanton was shown copies
of the doctor's statements, (Exhibit PÄ3Äa, b, c), and he
confirmed that he had not previously seen these reports (Tr. 57).
Mr. Clanton confirmed that he did not work on May 1, 1987, and
that he was not paid workmen's compensation that day because he
was not eligible for it (Tr. 63).
Mr. Clanton could not remember the doctor instructing him to
return to the clinic on May 5, 1987, as stated in his report
(Exhibit PÄ3Äa), but that he did return the next morning on May
1, 1987, and that on that day his vision was intact and his eyes
were clear as stated in the doctor's report. However, his eyes
"still hurt a little bit," and he had to wear sun glasses which
he had purchased (Tr. 64Ä65).
Mr. Clanton stated that while he was able to return to work
on Friday, May 1, he was unwilling to do so, and that he informed
Mr. Pilcher that he would not be back "until he got the air
cleared up." Mr. Clanton stated that he would not have returned
to work that day even if the doctor had told him to (Tr. 65Ä66).
He returned to work on Saturday, May 2, and worked in another
area of the mine "where the good air was at," and was paid
overtime (Tr. 66, Exhibit RÄ2). He confirmed that he has walked
off the job on one prior occasion without notifying his
supervisor (Tr. 68).
Respondent's Testimony and Evidence
Daniel Pilcher, respondent's mine superintendent, testified
as to his experience, background, and education, and he confirmed
that the mine air is monitored constantly by the respondent, as
well as Federal and State inspectors when they are at the mine
for inspections. In addition, mine employees are trained to
recognize the hazards associated with hydrogen sulfide gas which
is normally liberated by entrapped water. Measures are taken to
exhaust the gas and to insure adequate ventilation to remove it
(Tr. 77Ä81).
Mr. Pilcher confirmed that he has reviewed the doctor's
report which indicated that Mr. Clanton's eyes were clear and his
vision intact the day after his injury. He had not seen the
report when he spoke with Mr. Clanton that day, and Mr. Clanton
led him to believe that the doctor did not think he should work
that day (Tr. 82).
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Mr. Pilcher stated that Mr. Clanton has walked off the job on two
separate occasions without notifying anyone, and he was
reprimanded for this (Tr. 85Ä86, Exhibit RÄ3).
On cross-examination, Mr. Pilcher confirmed that he was
familiar with MSHA's reporting procedures, and according to the
guidelines if there is "a serious question" or doubt concerning
an injury, it will be reported. If the respondent is sure of its
status, it will not be reported. Mr. Pilcher agreed that the
doctor's report, (Exhibit PÄ3Äa) states that Mr. Clanton could
return to work on May 2, 1987, but "as far as we are concerned,
that is not reportable." With regard to "a first aid case" where
an employee loses a day of work, Mr. Pilcher believed it was a
matter of judgment as to whether it had to be reported, and that
in Mr. Clanton's case it was a first aid case, rather than a
medical treatment case. In short, Mr. Pilcher believed that the
regulation is not clear as to whether a first aid case is
required to be reported (Tr. 91Ä93).
Mr. Pilcher confirmed that the doctor's report was presented
well after the issuance of the citation and that the information
he had available as to whether Mr. Clanton was able to return to
work on Friday, May 1, 1987, was the conversation that he had
with him that day during which Mr. Clanton informed him that he
did not want to work in the same area and wanted to work
elsewhere. Mr. Pilcher stated that he informed Mr. Clanton that
this was not an option. Mr. Pilcher stated that he came to the
conclusion that Mr. Clanton did not want to return "because he
didn't want to return" and not because of any gas exposure. In
support of this conclusion, Mr. Pilcher stated that two other
individuals working within a few feet of Mr. Clanton did not
believe the gas was bad enough to see a doctor (Tr. 100).
Thomas M. Dowling, respondent's Safety and Industrial
Relations Inspector, confirmed that the filing of accident forms
with MSHA is his responsibility and that the forms are kept in
his office. He also confirmed that he is familiar with MSHA's
accident reporting bulletin and that he uses it as a guide for
the preparation of the reports. He stated that no report was
filed in Mr. Clanton's case because it did not appear to be a
lost time accident which met MSHA's criteria guidelines. He
believed that a first aid situation establishes a "doubtful case"
under the guidelines, and that there was no attempt to hide
anything from MSHA, nor was it an oversight. He stated that based
on MSHA's available criteria, "we did what we thought was right"
(Tr. 115Ä117).
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On cross-examination, Mr. Dowling confirmed that worker's
compensation reports are filed in any accident or injury
situation that requires medical treatment or first aid, even in
cases of no lost work days. This is done so that payment of the
medical services may be obtained (Tr. 119Ä120). When asked why
the forms which were filed in Mr. Clanton's case reflect "one
lost day," Mr. Dowling responded "I don't rightly know at this
time" (Tr. 121).
Mr. Dowling conceded that taking the position that Mr.
Clanton lost a day of work for worker's compensation purposes,
but not for MSHA's reporting requirements, was contradictory (Tr.
122). The discussions with Mrs. Spivey as to whether the incident
had to be reported to MSHA took place the week following the
incident, but Mr. Dowling could not recall whether he discussed
with Mrs. Spivey whether or not a report should be filed. The
decision was probably made after the doctor's report was
received, and Mr. Dowling concluded that it was a first aid case
since no charges were received from the doctor for any
prescription medication, and he probably instructed Mrs. Spivey
not to file any report (Tr. 124Ä129).
Mr. Dowling stated that he did not speak to the doctor
concerning Mr. Clanton's case, and that the letter received from
the doctor on June 19, 1987, was obtained to enforce his belief
that there was some reasonable doubt, and to support the
respondent's defense to the contested citation (Tr. 130).
Mr. Dowling confirmed that Mr. Clanton worked in a different
mine area when he returned to work on Saturday, May 2, because
there was no activity in the area where he had previously worked
on April 30, and all employees are given the option to do other
work when they work on Saturdays (Tr. 131).
Inspector Spruell was called by the respondent, and he
confirmed that he had a conversation with Mr. Evans during which
he advised Mr. Evans that Mr. Clanton could not be moved from a
work area where he was experiencing a problem with gas in order
to avoid lost time because this would be considered "restricted
duty" which would have to be reported (Tr. 132Ä134).
MSHA's Testimony and Evidence concerning the Noise
CitationsÄDockets LAKE 88Ä4ÄM and LAKE 88Ä22ÄM
MSHA Inspector Jerry L. Spruell confirmed that all of the
noise citations in these proceedings were issued after
inspections at the mines, which included noise surveys taken in
connection with the cited equipment operator occupations, and
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mine management was informed of the inspections and surveys. Mr.
Spruell confirmed that he issued Citation No. 2865785, after
finding a muffler missing from one of the drill mechanisms
mounted on the front of a two-boom jumbo drill. The drill
operator was prepared for the noise survey at the start of his
work shift, and a sound level meter test indicated that he was
constantly exposed to noise levels above 115 dBA, and that is why
he cited a violation of section 57.5050. Although the drill
operator was wearing hearing protection, he was not wearing it at
all times, and Mr. Spruell stated that he observed him on the
drill without his hearing protective muff in place.
Mr. Spruell stated that one of the drills was equipped with
a muffler, and the other was not. He considered the muffler to be
a feasible engineering control which reduced the level of noise
exposure to the operator. He explained that the exposure level of
111 decibels as stated in the citation was the average noise
exposure for the drill operator over his full work shift, and
that the 118 decibels indicated a continuous noise exposure level
as measured with a sound level meter. He confirmed that the
equipment operators were "hooked up" for the noise survey before
they went underground, and that the testing devices were removed
when they came to the surface after their work shift. He also
confirmed that the maximum allowable noise exposure pursuant to
section 57.5050 is 90 decibels over an 8Ähour work shift, and 115
decibels for any particular time (Tr. 149Ä155). Mr. Spruell
explained the noise testing procedures which he follows in
conducting noise surveys, and he confirmed that the dosimeter and
noise level meters were properly calibrated and used to support
the citations which he issued (Tr. 155Ä159).
Mr. Spruell stated that the jumbo drill is either
factory-equipped with a muffler, or is manufactured in such a way
as to facilitate the installation of a muffler. He stated that
the respondent used "rubber type" mufflers, but that in this
instance did not equip one of the drills with a muffler because
"they didn't feel it had done that much good, and they didn't see
any reason they would have to have it there" (Tr. 159).
Mr. Spruell stated that the drill violation presented a loss
of hearing and permanently disabling type injury, and that he
made a gravity finding of "highly likely" because the operator
was not wearing hearing protection at all times, and he had to
consider it highly likely that he would suffer some type of
hearing loss from being exposed to noise of the level
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tested. Mr. Spruell confirmed that he made a "moderate"
negligence finding because the operator was wearing hearing
protection "at times," and one of the drills had a muffler (Tr.
161Ä162).
On cross-examination, Mr. Spruell confirmed that the drill
was running at the time he observed the operator without his
hearing muffs, and while conceding that he stated on the citation
that "personal hearing protection was being worn," he explained
that he made that statement to give the respondent the benefit of
the doubt, and because the operator was wearing ear muffs "the
biggest part of the time" (Tr. 164, 165). Mr. Spruell conceded
that in the 9 years he has inspected the respondent's mines, he
has not previously cited any noise violations (Tr. 167), and the
reason for this is that no prior noise surveys were made at the
mines (Tr. 208).
Mr. Spruell confirmed that in the course of issuing his
noise citations, he monitored the employees, but did not stay
with them for the entire 8 hours. He confirmed that the employees
were exposed to other mixed noise sources in the course of their
work, and although they were wearing muffs, they were still
exposed to measured noise levels above those required by the
cited standards. With regard to the jumbo drill, his noise level
meter recorded the sound level from that particular piece of
equipment only, and his 118 decibel reading with the sound level
meter was from that drill (Tr. 170). Noise levels measured with a
dosimeter indicate the work environment noise exposure, while
sound level meter readings measure an instantaneous noise
exposure level (Tr. 173).
Mr. Spruell explained that a dosimeter records all noise
exposure levels that are 90 decibels or above over a full working
shift, and while it is true that it records noise levels from
different sources and does not differentiate the amount of noise
coming from any one particular source, a sound level meter
reading can (Tr. 177). In the case of the jumbo double drill
citation, a noise level meter reading alone was sufficient to
support the citation (Tr. 178).
Mr. Spruell confirmed that among his suggestions to the
respondent for achieving compliance with the noise standards was
a suggestion that mufflers be installed or put back on the
equipment in question. He agreed that the installation of
mufflers would not achieve total compliance and that the
equipment operators would still be required to wear personal
hearing protection. Mr. Spruell also agreed that there were no
other feasible engineering controls that would bring the
Page 15
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respondent into compliance with the noise standards, but that in
one instance a cab did bring the drill operator in his
compartment into compliance, but would probably not bring others
who are exposed to the drill noise into compliance (Tr. 180Ä181).
Mr. Spruell contended that with the installation of
equipment mufflers, which are feasible engineering controls, and
the wearing of personal hearing protection, the respondent will
come into compliance, but without the personal hearing
protection, it would not be in compliance (Tr. 184). Respondent's
representative agreed that this is the issue that is basically
involved in all of the noise citations which were issued in these
proceedings, and that it has done everything required by MSHA to
abate the citations and attempt to stay in compliance (Tr.
184Ä185).
Diane Brayden, Industrial Hygienist, MSHA's Duluth,
Minnesota District Office, testified as to her experience,
education, and training in noise matters. She confirmed that she
holds a B.S. degree in biology, and a master's degree in
industrial hygiene, and that she has been in her present position
with MSHA for 10 years (Tr. 249Ä251). She has participated in
approximately 50 MSHA inspections involving noise, has visited
mine sites where violations have occurred, and has testified for
MSHA as an expert witness (Tr. 253).
Ms. Brayden confirmed that she has reviewed the citations in
this case, and that the mufflers involved are the exhaust type
used to decrease the amount of energy being exhausted from
compressed air, and to dissipate exhaust noise, which is a major
contributor to the total noise emitted by the machines. She
stated that the use of mufflers is feasible, and that the small
noise decibel decreases resulting from the use of such mufflers
translates into a significant change in the amount of energy that
is doing the noise damage. In her opinion, the use of personal
hearing protection to achieve a degree of compliance that has not
been achieved by other means is unreliable because the hearing
protectors such as muffs and ear plugs are tested under
laboratory conditions which are not reflective of actual mine
conditions and the use of other equipment, and she referred to
several articles dealing with the testing and reliability of such
personal hearing devices (Tr. 253Ä263).
With regard to Citation No. 2865785 for the jumbo drill, and
after hearing the testimony regarding that citation, Ms.
Brayden's was of the opinion that while the noise exposure was
significantly reduced by the installation of a muffler to
Page 16
~1049
abate the citation, the dosimeter reading of 1,867 percent of
allowable noise exposure would indicate that the drill operator
was losing his hearing to a significant degree even if he were to
wear his ear muffs all day. With regard to this piece of
equipment, the driller would be required to wear both ear plugs
and muffs as well as having a muffler on the drill (Tr. 265Ä266).
Ms. Brayden considered the installation of mufflers on the
equipment to be extremely important, and that the installation of
such a muffler would take about 2 or 3 hours. She conceded that
mufflers used on equipment under freezing conditions do aggravate
existing freezing conditions, but that the use of air dyers to
alleviate this problem is common in the industry. She believed
that the use of mufflers as an engineering noise control device
will permit the personal hearing protection to work more
effectively in that the individual is exposed to less noise
exposure (Tr. 269).
On cross-examination, Ms. Brayden stated that as a general
rule, exhaust noise is a major contributor to the total amount of
noise exposure from other sources, but she could not state the
percentage of noise that would be attributable to the exhaust
without testing the particular piece of equipment (Tr. 270). She
agreed that a muffler would not bring a drill into total
compliance below 90 decibels, and that this would probably be
true also for ear muffs. She stated that while MSHA would like to
achieve total noise protection, in most cases total protection is
not possible, and that to the degree that protection is
available, the employee should have it (Tr. 272).
Ms. Brayden also conceded that the wearing of ear protection
throughout the day will not guarantee an employee's hearing, but
that MSHA's position is that engineering controls are to be
implemented to the degree that compliance can feasibly be met in
that manner and that hearing protection will be accepted after
that to achieve the remainder of the compliance. She believed
that mufflers are a feasible engineering control in that they
reduce noise to a significant degree, but that they are not
capable of bringing the operator's exposure down to a 90 decibel
level. However, mufflers are still considered by MSHA to be a
feasible control in that their use reduces the noise exposure
significantly, and without the muffler the employee would be
exposed to a greater degree of noise than he would be with the
muffler, regardless of whether he is in full compliance with the
standard (Tr. 276Ä277).
Page 17
~1050
Findings and Conclusions
Docket Nos. LAKE 88Ä4ÄM and LAKE 88Ä22ÄM
In these cases, the respondent is charged with violations of
the mandatory noise exposure requirements found in 30 C.F.R.
57.5050. Citation Nos. 2865757, 2865758, 2865759, 3059584, and
3059585 were issued because of the failure by the respondent to
utilize feasible engineering controls to reduce noise levels of
over 90 decibels for an 8Ähour period in violation of section
57.5050(b), and Citation No. 2865785 was issued for the failure
by the respondent to utilize feasible engineering controls to
reduce noise exposure in excess of 115 decibels in violation of
section 57.5050. The cited noise standards provide as follows:
57.5050 Mandatory. (a) No employee shall be permitted
an exposure to noise in excess of that specified in the
table below. Noise level measurements shall be made
using a sound level meter meeting specifications for
type 2 meters contained in American National Standards
Institute (ANSI) Standard S1.4Ä1971. "General Purpose
Sound Level Meters," approved April 27, 1971, which is
hereby incorporated by reference and made a part
hereof, or by a dosimeter with similar accuracy. This
publication may be obtained from the American National
Standards Institute, Inc., 1430 Broadway, New York, New
York 10018, or may be examined in any Metal and
Nonmetal Mine Health and Safety District or Subdistrict
Office of the Mine Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES
Duration per day, Sound level dBA,
hours of exposure slow response
8 . . . . . . . . . . . . . . . . 90
6 . . . . . . . . . . . . . . . . 92
4 . . . . . . . . . . . . . . . . 95
3 . . . . . . . . . . . . . . . . 97
2 . . . . . . . . . . . . . . . . 100
1-1/2 . . . . . . . . . . . . . . 102
1 . . . . . . . . . . . . . . . . 105
1/2 . . . . . . . . . . . . . . . 110
1/4 or less . . . . . . . . . . . 115
Page 18
~1051
No exposure shall exceed 115 dBA. Impact or impulsive noises
shall not exceed 140 dB, peak sound pressure level.
NOTE. When the daily exposure is composed of two or
more periods of noise exposure at difference levels,
their combined effect shall be considered rather than
the individual effect of each.
If the sum
(C1/T1) + (C2/T2) + . . . (Cn/Tn)
exceeds unity, then the mixed exposure shall be considered
to exceed the permissible exposure Cn indicates the total time of
exposure at a specified noise level, and Tn indicates the total
time of exposure permitted at that level. Interpolation between
tabulated values may be determined by the following formula:
log T = 6.322 - 68 0.0602 SL
Where T is the time in hours and SL is the sound level
in dBA.
(b) When employees' exposure exceeds that listed in the
above table, feasible administrative or engineering
controls shall be utilized. If such controls fail to
reduce exposure to within permissible levels, personal
protection equipment shall be provided and used to
reduce sound levels to within the levels of the table.
The respondent agreed that all of the contested citations
concern common issues, and involve the absence of mufflers on the
particular pieces of equipment being operated by the miners who
were out of compliance with the noise exposure requirements found
in the cited standard (Tr. 211). All of the affected miners were
wearing personal hearing protection at the time the citations
were issued, and although abatement was achieved by the
installation of mufflers on the cited equipment, the respondent
was still out of full compliance with the cited standards. The
respondent denied that it seeks to discontinue the use of
personal hearing protection devices, or that it had any problems
in installing mufflers on the cited equipment in question (Tr.
231Ä233). Respondent contended that section 57.5050(b) does not
include a requirement
Page 19
~1052
that noise levels be reduced to any specific level and permits
the continued use of personal hearing protection notwithstanding
the fact that feasible engineering noise control devices such as
mufflers still do not reduce the noise levels to within
permissible levels (Tr. 215). Respondent took the position that
requiring it to install mufflers on its equipment is an exercise
in futility because it would still be out of compliance and the
equipment operators would still be required to wear personal
hearing protection. In this regard, respondent's representative
stated that MSHA "wants us to spend money for remedies that don't
work."
The respondent conceded that MSHA has not required it to do
anything other than install mufflers and to insure that its
employees wear personal hearing protection. However, it is
concerned that future inspections will require it to do more and
that "it's an ongoing thing" (Tr. 199Ä201). Inspector Spruell
stated that had the mufflers been installed on the equipment, and
all employees were wearing personal hearing protection, he would
not have issued the citations (Tr. 203). He confirmed that he
issued the citations because of the absence of mufflers which are
considered feasible engineering controls to reduce noise levels
(Tr. 203). Although Mr. Spruell mentioned the use of cabs as
feasible noise controls, he conceded that they are not feasible
at the respondent's mines, but that mufflers definitely are.
Further, Mr. Spruell could cite no other feasible noise controls
available at this time for the respondent other than mufflers
(Tr. 207).
During the course of the hearing, the respondent conceded
that all of the cited equipment was out of compliance with the
noise level requirements found in the cited standards, and it did
not deny the existence of the conditions cited and described by
the inspectors on the face of the citations. Further, the
respondent did not question the noise exposure levels cited by
the inspectors as a result of their noise survey tests, nor did
it question the test procedures followed by the inspectors with
respect to the use of dosimeters and noise level meters in
support of the citations (Tr. 212Ä215; 220, 236, 239Ä241). The
respondent further agreed that a dosimeter which is attached to a
miner during a noise survey records the sound levels in his
normal working environment, and that once it is attached to an
employee, there is no requirement that an inspector stay with the
employee and monitor his movements during the entire 8Ähour
working shift (Tr. 170). Respondent also agreed that a dosimeter
measures the noise exposure level for an employee's working
environment
Page 20
~1053
over a full 8Ähour shift, and that a noise level meter gives an
instantaneous reading of the noise level exposure.
In its posthearing brief, the respondent asserts that as a
result of the mobility of its employees, they are exposed to
numerous noise sources such as loaders, trucks, drills, fans, and
rock breakers during the normal course of a days work, and it
rejects MSHA's argument that the installation of a muffler on a
single piece of equipment being operated by an employee resulted
in a reduction of the noise exposure level, and that coupled with
the use of personal hearing protection, the respondent is in
compliance with the standard. Respondent states that it rejects
this argument because MSHA did not address the issue of total
8Ähour exposure and the feasibility of muffling of all noise
exposure sources that an employee would encounter during the
duration of his work shift. In support of this argument, the
respondent cites my prior decision in ASARCO, Inc., v. Secretary
of Labor, 3 FMSHRC 1300 (May 1981), in which I vacated a noise
citation after finding that MSHA's suggested use of certain noise
controls were not technologically feasible because of the
required mobility of the cited equipment operators.
The respondent further argues that MSHA has failed to prove
that any feasible engineering controls are available for
multi-noise sources resulting from equipment operator mobility,
and that in the abatement of the citations MSHA made no effort to
inspect for 8Ähour noise exposure to the employee, but simply
relied on an instant sound meter reading on single items of
equipment. The respondent suggests that this type of testing
fails to prove that the type of muffler suggested by the
inspectors for installation on the cited equipment did in fact
lower the 8Ähour noise exposure levels in question. The
respondent points out that while Inspector Spruell agreed that it
was in compliance after the mufflers were installed, he could not
speak for other inspectors, and the respondent expressed concern
that other inspectors may in the future continue to cite it for
being out of compliance in the same circumstances.
Citing a decision by former Commission Judge Charles Moore
in Hilo Coast Processing Company v. Secretary of Labor, 1 FMSHRC
895 (July 1979), respondent argues that the lack of any
identifiable and definitive MSHA criteria for economically
feasible noise controls when they do not bring noise exposure
within permissible limits leaves the matter to the judgment of
individual inspectors, and requires an operator to guess at what
must be spent on noise controls that will meet the estimate of
some unknown inspector at some future time. In the
Page 21
~1054
Hilo case, Judge Moore vacated several noise citations after
finding that MSHA had failed to prove that certain engineering
controls recommended by the inspector were technically and
economically feasible. Judge Moore found that for the most part,
MSHA's proof was based on the unsupported personal judgments of
the inspector who issued the citations, and that the operator was
left in the untenable position of "guessing" as to what was
required by the inspector for compliance.
During the course of the hearing, MSHA took the position
that although the installation of mufflers on the cited equipment
in question were feasible engineering controls which could
readily be used to reduce the noise level, personal hearing
protection would still be required in conjunction with the use of
the mufflers. MSHA pointed out that the respondent's complaint is
that it was still required to use personal hearing protection
even though the use of mufflers did not reduce the noise exposure
to within the levels required by the table found in section
57.5050 (Tr. 186). MSHA's view is that the installation of the
mufflers resulted in a significant reduction of the noise levels
to which the employees operating the equipment were exposed, and
that this is precisely what section 57.5050 mandates (Tr. 230).
In its posthearing brief, MSHA asserts that the mufflers
used to reduce the noise levels in question are feasible
engineering controls because (1) the operators of the equipment
were exposed to excessive noise; (2) the mufflers were capable of
reducing noise exposure and were technologically feasible; (3) a
significant noise reduction was obtained by the use of the
mufflers; and (4) the cost estimates for the mufflers were
sufficiently precise and were not wholly out of proportion to the
expected benefits.
In MSHA v. Callanan Industries, Inc., 5 FMSHRC 1900
(November 1980), the Commission construed the term "feasible" as
"capable of being done," and it concluded that the determination
of whether the use of an engineering control to reduce a miner's
exposure to excessive noise is capable of being done involves
consideration of both technological and economic achievability.
In allocating the burden of proof required to make this
determination, the Commission offered the following guidelines at
5 FMSHRC 1909:
[I]n order to establish his case the Secretary must
provide: (1) sufficient credible evidence of a miner's
exposure to noise levels in excess
Page 22
~1055
of the limits specified in the standard; (2) sufficient credible
evidence of a technologically achievable engineering control that
could be applied to the noise source; (3) sufficient credible
evidence of the reduction in the noise level that would be
obtained through implementation of the engineering control; (4)
sufficient credible evidence supporting a reasoned estimate of
the expected economic costs of the implementation of the control;
and (5) a reasoned demonstration that, in view of elements 1
through 4 above, the costs of the control are not wholly out of
proportion to the expected benefits. After the Secretary has
established each of the above elements, the operator in rebuttal
may refute any of the components of the Secretary's case.
In Todilto Exploration and Development Corporation v. MSHA,
5 FMSHRC 1894 (November 1983), an inspector cited a violation of
30 C.F.R. 57.5Ä50(b), after conducting an 8Ähour noise survey
with a dosimeter on a jackleg percussion rock bolt drill in an
underground uranium mine and finding that the drill operator was
exposed to 114 dBA. The drill operator was wearing ear plugs and
muffs, and the drill was not equipped with a muffler. The
violation was abated by the installation of a muffler on the
drill. However, subsequent noise readings with a sound level
meter showed that excessive noise levels still existed, and the
readings established that the drill operator's average noise
exposure levels ranged between 110 dBA and 113 dBA. Even though
Todilto attached a muffler to the drill, the drill operator was
still required to wear personal protective equipment.
The judge found that the drill operator was exposed to an
excessive noise level, and although he also found that MSHA
established that the installation of the muffler was an
engineering control available to Todilto, since the exposure to
noise was still not within permissible levels as required by the
regulation, even with the muffler attached, the judge concluded
that the installation of the muffler was not a feasible
engineering control, and he vacated the citation. On appeal, the
Commission reversed and stated as follows at 5 FMSHRC 1896Ä1897:
[W]e hold that a control may indeed be "feasible"
within the meaning of 30 C.F.R. 57.5Ä50(b) even
though it does not reduce the miner's exposure to noise
to permissible levels
Page 23
~1056
set forth in subsection (a) of the standard. Our holding is based
upon the express wording of the noise standard. Section
57.5Ä50(b) unambiguously provides that when excessive noise
exposure levels exist, "feasible administrative or engineering
controls shall be utilized." It continued, "[i]f such [feasible]
controls fail to reduce exposure to within permissible levels,
personal protection equipment is to be provided and used . . . ."
(Emphasis added). Thus, the noise standard clearly contemplates
that in a given case a control might not reduce the noise
exposure level to within permissible levels, but nevertheless be
a "feasible" control required to be implemented. To allow a mine
operator to proceed directly to the use of personal protective
equipment and thereby avoid implementing otherwise feasible
administrative or engineering controls, solely because use of the
controls themselves does not achieve permissible exposure levels,
would be to allow circumvention of the standard's clear
requirement that excessive noise levels first be addressed at
their source. We note that under the judge's approach a control
that reduces the level of noise from 114 dBA to 91 dBA (on the
basis of an 8Ähour exposure period) would not be feasible simply
because it fails to reduce the noise level to 90 dBA. We find no
support for this result in the standard.
The Todilto case was remanded for the judge's determination
as to whether or not MSHA proved a violation of section
57.5Ä50(b) for failure by the operator to implement a feasible
engineering control within the parameters of the Commission's
guidelines as enunciated in Callanan, supra. On April 17, 1984,
the judge issued his decision and found that MSHA had established
that the drill operator was exposed to an excessive noise level,
that the muffler was a technologically achievable engineering
control capable of reducing the drill operator's noise exposure,
and that the cost was not unreasonable for the benefits achieved.
The judge found that Todilto was in violation of section
57.5Ä50(b), and stated in pertinent part as follows at 6 FMSHRC
934 (April 1984):
Therefore, based upon the credible evidence in this
case, and the Commission's decision in Callanan, I find
that the Secretary has proven the respondent violated mandatory
Page 24
~1057
standard 57.5Ä50(b) by failing to implement the feasible
engineering control (muffler) which was available to it. The fact
that the muffler did not reduce the noise level to that required
by the standard is not a proper reason for an operator to avoid
the control and go directly to personal protection equipment. The
standard contemplates the use of such personal equipment only
after all other "feasible" engineering controls are installed to
achieve the best results possible.
In MSHA v. Landwehr Materials Inc., 8 FMSHRC 54 (January
1986), Judge Broderick affirmed a citation for a violation of
section 56.5Ä50(b), after finding that a shovel operator at a
limestone quarry who was wearing personal hearing protection was
exposed to a 96 dBA noise level for an 8Ähour shift. After the
termination date for the citation was extended, MSHA's Denver
Technical Support Group performed a noise control survey which
showed that the noise level in the shovel operator's environment
was reduced by approximately 33 percent, from an average of 101
to 98 dBA, when a vinyl curtain was installed between the shovel
operator and the engine compartment of the shovel. While
significant, this reduction did not bring the noise level down to
the permissible 90 dBA specified in the cited standard, and
personal protection equipment was still deemed necessary. Judge
Broderick found that the installation of the vinyl curtain was a
feasible engineering control available to reduce the operator's
noise exposure, and that Landwehr's failure to utilize this
feasible noise control constituted a violation of section
56.5Ä50(b).
In MSHA v. Texas Architectural Aggregates, Incorporated, 9
FMSHRC 1136 (June 1987), I affirmed a violation of section
57.5050(b), after finding that the development and installation
of a noise barrier on a drill were not wholly out of proportion
to the resulting noise reduction benefits which were achieved,
and that the fact that the 5 dBA noise reduction with the use of
the barrier did not bring the mine operator into total compliance
with the permissible level stated in the standard is no reason to
excuse the use of the barrier or from continuing to use personal
hearing protection in conjunction with the barrier.
After careful consideration of all of the arguments
presented in these proceedings, I conclude and find that MSHA has
the better part of the argument, and on the facts here presented,
its position is correct. The respondent's reliance on the ASARCO
and Hilo Coast decisions, supra, are not well taken.
Page 25
~1058
The facts in those cases are clearly distinguishable from those
presented in the instant proceedings. In those cases, the
citations were vacated because of a lack of any credible evidence
that feasible or economically achievable administrative or
engineering noise controls were available for use by the
operators to reduce noise exposure. The credible evidence
presented in the instant cases establishes that the use of
mufflers were economically feasible for use on the equipment, and
that once installed, the noise levels were reduced.
The evidence establishes that after the installation of the
mufflers, the mixed noise exposure to the No. 1 haulage truck
operator was reduced from 100.3 dBA to 99.5 dBA; the noise level
exposure to the No. 2 truck haulage operator was reduced from
99.3 dBA to 95.5 dBA; the noise exposure to the front-end loader
operator was reduced from 97.7 dBA to 95.9 dBA; the noise
exposure to the jumbo drill operator was reduced from 111 dBA to
105.9 dBA; the noise exposure to the Wagner 2B loader operator
was reduced from 93 dBA to 92.3 dBA; and the noise exposure to
the Scoopy No. 2 loader operator was reduced from 98 dBA to 94.6
dBA.
Inspector Spruell confirmed that his noise level test with a
noise level meter recorded only the noise from the jumbo drill
because that was the only piece of equipment operating at the
time, and he did not test any of the jack legs located in another
heading because they were equipped with mufflers and would be in
compliance, and they were not in operation when he tested the
drill (Tr. 168Ä170). He also confirmed that the noise level
measurements taken by means of the dosimeters measured the mixed
noise exposure of each of the other equipment operators in their
respective work environments during the course of their work
shifts. MSHA's noise expert Brayden confirmed that exhaust noises
emitted by the machines in question are major contributors to the
total noise emitted by that equipment as well as to the total
noise exposure from other sources, and that the use of the
mufflers were feasible engineering controls that reduced the
total noise exposure to a significant degree. In her unrebutted
opinion, the small noise decibel decreases which resulted from
the installation of the mufflers on the equipment translated into
a significant change in the amount of exhaust energy causing
noise damage, and that the use of mufflers reduces the noise
exposure significantly. Without the use of the mufflers on the
equipment, the employees would be exposed to a greater degree of
noise.
In view of the foregoing findings and conclusions, I
conclude and find that the petitioner has established violations
Page 26
~1059
for each of the noise citations in question by a preponderance of
the credible evidence adduced in these proceedings, and they are
all AFFIRMED.
Docket No. LAKE 87Ä85ÄM
Fact of Violation
In this case, the respondent is charged with a violation of
mandatory reporting standard 30 C.F.R. 50.20, for failing to
report an eye injury to miner Joseph Clanton. The record reflects
that Mr. Clanton was exposed to hydrogen sulfide gas while
working underground on Thursday, April 30, 1987, and that after
coming to the surface at the end of his work shift and exiting
the mine, he experienced severe pain to his eyes and went to see
a doctor for treatment. Mr. Clanton did not work the following
day, Friday, May 1, but did work on Saturday, May 2. The
respondent maintains that Mr. Clanton's failure to report for
work on May 1, was not due to his injury, and the petitioner
claims that it was.
Section 50.20(a), 30 C.F.R. 50.20(a), of the regulations
provides:
(a) Each operator shall maintain at the mine office a
supply of MSHA Mine Accident, Injury, and Illness
Report Form 7000Ä1. These may be obtained from MSHA
Metal and Nonmetallic Mine Health and Safety
Subdistrict Offices and from MSHA Coal Mine Health and
Safety Subdistrict Offices. Each operator shall report
each accident, occupational injury, or occupational
illness at the mine. * * * The operator shall mail
completed forms to MSHA within ten working days after
an accident or occupational injury occurs or an
occupational illness is diagnosed.
* * * * * * * * * *
Section 50.2(e) 30 C.F.R. 50.2(e) states:
(e) "Occupational injury" means any injury to a miner
which occurs at the 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.
Page 27
~1060
Section 50.2(g), 30 C.F.R. 50.2(g) states:
(g) "First aid" means one-time treatment, and any
follow-up visit for observational purposes, of a minor
injury.
The criteria for differentiating between medical treatment
and first aid is found in section 50.20Ä3. Medical treatment
includes, but is not limited to, the treatments and procedures
described in subsection (a). First aid is described as follows:
First aid includes any one-time treatment, and
follow-up visit for the purpose of observation, of
minor injuries such as cuts, scratches, first degree
burns and splinters. Ointments, salves, antiseptics,
and dressings to minor injuries are considered to be
first aid.
The criteria for treatment of eye injuries is found in
section 50.20Ä3(a)(5), which provides as follows:
(5) Eye Injuries. (i) First aid treatment is limited to
irrigation, removal of foreign material not imbedded in
eye, and application of nonprescription medications. A
precautionary visit (special examination) to a
physician is considered as first aid if treatment is
limited to above items, and follow-up visits if they
are limited to observation only.
(ii) Medical treatment cases involve removal of
imbedded foreign objects, use of prescription
medications, or other professional treatment.
MSHA's policy guidelines with respect to the reporting
requirements of Part 50, Title 30, Code of Federal Regulations,
are found in MSHA Program Information Bulletin No. 86Ä6C and
86Ä3M, December 11, 1986, (Exhibit RÄ1). These guidelines provide
in pertinent part as follows:
In some cases, an injured or ill employee may miss one
or more scheduled days or shifts and it will be
uncertain if the employee was truly unable to work on
the days missed. Situations may arise when a physician
concludes that the employee is able to work but the
employee feels that he or she is not able. In such
Page 28
~1061
instances, the employer should make the final judgment based on
all available evidence. Similarly, if a doctor tells the employee
to take time off and the company requests a second opinion, and
the second doctor says the employee can return to work, it would
be the employer's decision as to when the employee was able to
return to work. (Page 8).
* * * * * * * * * *
Medically treated injuries are reportable. First-aid
injuries are not reportable provided there are no lost
workdays, restricted work activity or transfer because
of the injury.
Medical treatment does not include first-aid treatment
(one-time treatment and subsequent observation of minor
scratches, cuts, burns, splinters, and so forth, which
do not ordinarily require medical care) even if it was
provided by a physician or a registered professional
person.
* * * It is not possible to list all types of medical
procedures and treatments and on that basis alone
determine whether first aid or medical treatment was
involved. The important point to be stressed is that
the decision as to whether a case involves medical
treatment should be made on the basis of whether the
case normally would require medical treatment. The
decision cannot be made on the basis of who treats the
case. First aid can be administered by a physician or
another medical person and medical treatment can be
administered by someone other than a physician. (Page
9).
* * * * * * * * * *
Prescription medication--Any use of prescription
medication normally constitutes medical treatment.
However, it should be considered first aid when a
single dose or application of a prescription medication
is given on the first visit merely for the relief of
pain or as preventive treatment for a minor injury.
This situation may occur at facilities having
dispensaries stocked with prescription
Page 29
~1062
medications frequently used for preventive treatment and relief
of pain and attended by a physician or a nurse operating under
the standing orders of a physician. The administration of
nonprescription medication in similar circumstances would be
considered first aid. (Page 10).
* * * * * * * * * *
Eye injuries. First-aid treatment is limited to
irrigation, removal of foreign material not imbedded in
the eye, and application of nonprescription
medications. A precautionary diagnostic visit (special
examination) to a physician is considered as first aid
if the treatment is limited to the above items.
Follow-up visits are limited to observation only.
Medical treatment cases involve removal of imbedded
foreign objects, use of prescription medications, or
other physician-type treatment. (Page 11).
* * * * * * * * * *
23. Q. What are "days away from work" and how are
they calculated.
A. "Days away from work" are days which the
employee would have worked but could not because
of an occupational injury or an occupational
illness. * * * (Page 26).
* * * * * * * * * *
47. Q. What is an occupational injury?
A. An occupational injury is any injury to an
employee which occurs at a mine. To be reportable,
the injury must (1) require medical treatment, or
(2) result in death or loss of consciousness, or
(3) result in the inability of the injured person
to perform all of the job duties required by the
job on any day after the injury, or (4) require
the injured person to be temporarily assigned to
Page 30
~1063
other duties, or (5) require the injured person
to be transferred to another job, or (6) require
the injured person to be terminated. (Page 32).
* * * * * * * * * *
58. Q. Should an operator report questionable
injuries?
A. Operators have an obligation to investigate all
injuries happening or alleged to have happened on
mine property. After an investigation has been
completed, the operator must make the
determination as to whether the incident is
reportable to MSHA. If he has any doubt, he should
report. If the operator's conclusion is that no
incident occurred, then there is nothing to
report. (Page 34).
Respondent's Arguments
The respondent maintains that the facts surrounding Mr.
Clanton's eye injury constitutes a "doubtful reporting case," and
in deciding whether or not to report such an injury, it relied on
the guideline information contained on page 8 which allows a mine
operator to make the final judgment in situations of uncertainty.
Based on all of the available evidence at the time of the injury,
respondent concludes that the injury was not reportable.
In support of its position that the injury was not
reportable, the respondent points out that on the day of the
injury Mr. Clanton worked all day at his regular job as a
drillman, that his exposure to the gas did not hinder his ability
to perform his work that day, and that other employees working in
the same work environment did not file any reports of injury and
were present for work the following morning. Referring to the
Surgeon's Report dated May 5, 1987, (exhibit PÄ2B), the
respondent further points out that it states that Mr. Clanton's
eyes were congested, but that his vision was intact and his lungs
were clear, and that the treatment administered consisted of
irrigating his eyes with sterile water and an application of an
ointment. Given this treatment, and the fact that the report
states that further treatment was not needed, the respondent
concludes that on the day of his visit
Page 31
~1064
to the doctor, Mr. Clanton had no vision damage, could see
normally, his lungs were unimpaired, and no medical reason is
stated in the report as to why Mr. Clanton could not work.
Referring to a doctor's statement dated June 19, 1987,
(exhibit PÄ3), the respondent further points out that the
statement indicates that rather than reporting back to the doctor
on May 5, 1987, as instructed, Mr. Clanton returned the day after
his injury, May 1, 1987, without an appointment, and his vision
was intact and his eyes were clear. No symptoms or conditions
were cited that would have prevented Mr. Clanton from reporting
to work, and the doctor reported that Mr. Clanton could work on
Saturday, May 2, 1987. The respondent finds this unusual in that
Saturday was not normally a scheduled work day, but Mr. Clanton
was aware that the mine had been scheduled for work that day and
by being released that day he could and did in fact work at time
and one-half his normal rate. The respondent states that in most
cases, the doctor would have scheduled a reporting time as Monday
unless requested to do otherwise. Under these circumstances, the
respondent concludes that a prudent man would have to assume that
if all of the symptoms which gave rise to the problem in the
first place are gone, Mr. Clanton was fit, well and able to
return to work on May 1, 1987.
Finally, the respondent asserts that according to Mr.
Clanton's own testimony during the hearing, he admitted that he
was not unable to work on Friday, May 1, 1987, but was unwilling
to do so and that he would not have returned to work that day
even if the doctor had told him to do so (Tr. 65Ä66). The
respondent points out that Mr. Clanton had previously been
disciplined by verbal and written reprimand for walking off the
job on two occasions in March and August, 1987, {exhibit RÄ3),
and that his demeanor and statements made during the hearing
reflects a hostile dislike for his job assignment, the company,
and authority in general. The respondent concludes that Mr.
Clanton's failure to report for work on May 1, 1987, the day
after his injury, was not the result of his injury, but rather, a
decision of his own which had no connection with his injury. The
respondent further concludes that Mr. Clanton's injury was a
"doubtful case" consisting of first aid, and that the respondent
exercised its discretion and judgment in such cases in concluding
that the injury did not have to be reported (Tr. 139Ä140).
Petitioner's Arguments
During the course of the hearing, petitioner's counsel
asserted that Mr. Clanton lost a day of work on May 1, 1987,
Page 32
~1065
because of his eye injury. Counsel asserted that when Mr. Clanton
went to the doctor on April 30, he was treated and told to come
back the following Tuesday, May 5, and that the doctor "was
expecting that he wasn't going to work the following day."
Although Mr. Clanton was feeling better and went back to see the
doctor on Friday, May 1, and the doctor found that his eyes and
vision were clear, the doctor did not tell him to go to work that
day and "considered that he shouldn't go to work that Friday and
go back to work on Saturday." Since Mr. Clanton was unable to
work on Friday, counsel concluded that his injury was reportable
(Tr. 140Ä141).
In his posthearing brief, petitioner's counsel argues that
Mr. Clanton's eye injury was a reportable occupational injury
because it required medical treatment and he was unable to
perform all of his job duties the day after his injury. Counsel
cites the definition of "occupational injury" found in section
50.2(e), which states that such an injury is one which requires
medical treatment or which results in the miner's inability to
perform all job duties on any day after an injury. Counsel also
cites the criteria for treating eye injuries found in section
50.2Ä3(a)(5), which states that medical treatment cases involve
the use of prescription medications.
Citing page 1315 of the Physicians Desk Reference, 42
Edition, 1988, published by Edward R. Barnhart, regarding the
decadron family or prescriptions for eye treatment, petitioner's
counsel asserts that Mr. Clanton received prescription
medication, that Neosporin Opt Ointment was prescribed three
times daily, and that in first aid treatment the doctor does not
prescribe medications with instructions for its continued use.
Counsel also cites the unrebutted testimony of Mr. Clanton that
the doctor told him not to work the day following his injury (Tr.
56).
Finally, counsel states that the record establishes that the
respondent was familiar with MSHA's requirements for reporting
injuries, and in response to the respondent's "doubtful" case
defense, points out that MSHA's policy guidelines state that
doubtful cases should be reported.
Findings and Conclusions
Inspector Spruell confirmed that he issued the citation
after reviewing the respondent's accident and injury records. His
review included an examination of a report prepared by Mr.
Clanton's supervisor K.E. Clanton, who is not related to Mr.
Clanton, and it was prepared on May 6, 1987 (exhibit PÄ2). That
report indicates that Mr. Clanton "lost 1 day 5Ä1Ä87."
Page 33
~1066
At the time the citation was issued, Mr. Spruell was unaware of
the fact that Mr. Clanton had received any medical treatment, but
after speaking with him at a later time, he learned from Mr.
Clanton that he had been "blinded" by his exposure to gas and had
visited a doctor. Mr. Spruell also confirmed that he reviewed a
report filed by the respondent's accountant, Mrs. E.L. Spivey on
May 6, 1987, with the state workers' compensation office which
indicated that Mr. Clanton's case was a "lost workday case"
(exhibit PÄ2Ä2D). In view of the fact that the inspector could
find no record that the respondent had reported the injury to
MSHA, he issued the citation. The violation and citation were
abated that same day after Mrs. Spivey filled out the required
MSHA Form 7000Ä1 (exhibit PÄ2Ä2C).
Inspector Spruell confirmed that the respondent had never
been previously cited for failure to report accidents or
injuries, and with the exception of the citation which he issued
in this case, the respondent always maintained its records
current. He confirmed that Mrs. Spivey told him that she had not
filed the injury report in question because she was not aware of
the fact that all lost time injuries had to be reported.
Mrs. Spivey was not called to testify in this case. Although
Mine Superintendent Pilcher acknowledged that MSHA's guidelines
require the reporting of "serious question" injury cases, he took
the position that Mr. Clanton's case was a "first aid" type of
injury case, rather than a medical treatment case, and that in
his judgment, the injury did not have to be reported. He also
believed that the guidelines were not clear as to whether a
"first aid" case needed to be reported, and that Mr. Clanton's
failure to work on the day after his injury was unrelated to his
injury, and that Mr. Clanton simply did not wish to return to
work.
Safety and Industrial Relations Inspector Dowling confirmed
that no MSHA injury report was filed because it did not appear
that Mr. Clanton's case was a lost time accident case pursuant to
MSHA's guidelines. He believed that a first aid situation
establishes a "doubtful case" under MSHA's guidelines, and that
in the exercise of its judgment not to report the injury, the
respondent acted properly and did not attempt to hide anything
from MSHA. Mr. Dowling could offer no explanation as to why the
forms executed by the respondent which were reviewed by the
inspector reflected "one lost day," nor could he recall whether
he specifically discussed with Mrs. Spivey the need to file a
report with MSHA. Mr. Dowling concluded that since no charges
were received from the doctor
Page 34
~1067
for any prescription medicine, Mr. Clanton's injury was a first
aid case, and that he "probably" instructed Mrs. Spivey not to
file an MSHA report. Mr. Dowling confirmed that he did not speak
to the doctor, and that the doctor's statement of June 19, 1987,
was obtained to confirm Mr. Dowling's belief that Mr. Clanton's
case involved some reasonable doubt as to whether his injury
needed to be reported.
The evidence adduced in this case, including Mr. Clanton's
admissions, suggest that his eye condition had cleared up on May
1, 1987, when he voluntarily returned to see the doctor, and that
he was able to return to work that day but chose not to do so.
There is no evidence other than Mr. Clanton's self-serving
statement, that the doctor ordered him not to return to work that
day. Given the fact that the doctor found that Mr. Clanton's
vision was intact and his eyes were clear on May 1, and Mr.
Clanton's admission that he was unwilling to return to work
regardless of his eye condition, and that he would not have done
so even if the doctor had specifically cleared him for work that
day, I cannot conclude that Mr. Clanton was unable to perform his
job duties that day, or that his lost day of work was the direct
result of his eye injury.
Having viewed Mr. Clanton's demeanor and attitude toward the
respondent during his testimony, which indicates a dislike for
his general employment situation at the mine, I believe Mr.
Clanton's reluctance to return to work was based not only on his
fear of being further exposed to gas, but on his anger toward the
respondent. This anger prompted Mr. Clanton to tell Mr. Pilcher
and the office secretary that he would only be back to work "when
they got that place straightened out, fit to work," and that he
would not be back "until he got the air cleared up, so it
wouldn't hurt my eyes again" (Tr. 50, 65). As a matter of fact,
Mr. Clanton admitted that he was still angry about the incident,
and that he intended to stay off "until they got this condition
abated" (Tr. 50Ä51). I take note of the fact that although Mr.
Clanton claimed that he had been exposed to the same gas
condition 2Ädays prior to April 30, "when it got so I couldn't
stand it," he did not report any injuries on those days, and that
"what I done, was more or less to bring this to the attention to
the Federal agencies that working conditions were intolerable"
(Tr. 50). I also take note of the fact that Mr. Clanton returned
to work on Saturday, May 2, 1987, and received premium pay for
that day.
Although I have concluded that Mr. Clanton's lost day of
work on May 1, 1987, was not a direct result of his injury,
Page 35
~1068
this is not the sole determining factor as to whether or not his
eye injury which occurred the day before was required to be
reported to MSHA. The crucial question is whether or not Mr.
Clanton suffered a reportable occupational injury within the
meaning of MSHA's mandatory reporting regulations. An
"occupational injury" is defined as any injury which occurs at
the mine for which medical treatment is administered. The term
"injury" has been construed by the Commission as "an act that
damages, harms, or hurts," Freeman Mining Company, 6 FMSHRC 1577,
1578Ä1579 (July 1984).
In the instant case, Mr. Clanton's unrebutted testimony,
which I find credible, indicates that he suffered severe eye pain
and discomfort as a result of his exposure to hydrogen sulfide
gas while working at the mine, and promptly sought treatment by
going to the doctor. Under these circumstances, I conclude and
find that Mr. Clanton's eye condition was an injury. The next
question presented is whether or not the treatment received by
Mr. Clanton constituted medical treatment or first-aid. A
medically treated injury is considered to be a reportable
occupational injury, regardless of any lost work days, but a
first-aid injury is reportable, provided there are no lost
workdays, restricted work activity or transfer because of the
injury.
With regard to the treatment of eye injuries, one factor in
determining whether such treatment is medical treatment or
first-aid treatment, is the use of prescription medication as
part of the treatment. The use of a prescription medication is
among the criteria for determining medical treatment, and the
application of nonprescription medication is included among the
criteria for determining first-aid treatment.
The evidence adduced in this case reflects that the
treatment received by Mr. Clanton on April 30, 1987, for his eye
inflammation, or conjunctivitis, included the application of
Neodecadron Ophthalmic Ointment. (See: Doctor's Report, May 5,
1987, exhibit PÄ2Ä2ÄB). The doctor's report of June 19, 1987,
also reflects that Mr. Clanton was treated with Neosporin
Opthalmic Ointment, three times daily, and contrary to Mr.
Dowling's assertion that no doctor's charges were received for
any prescription medication for Mr. Clanton, the hospital bill
apparently submitted to the respondent's insurance carrier,
includes an emergency room charge in the amount of $14.25 for
deodecadron. (See: exhibits PÄ3Ä3A and PÄ3Ä3C).
The Physicians Desk Reference, 42d Edition, 1988, published
by Edward R. Barnhart, cited by the petitioner in its posthearing
brief, is a standard reference source listing
Page 36
~1069
all prescription medications, and it is available at any public
library. I take official notice of the information contained in
this reference source with respect to the medication administered
to Mr. Clanton. Neosporin Ophthalmic Ointment is listed at page
814 as a prescription medication, and the prescribed application
is every 3 or 4 hours within a 7Äday period. Neodecadron
Ophthalmic Ointment is listed at page 1376 as a prescription
medication, and the prescribed application is "a thin coating 3
or 4 times daily."
Although Mr. Clanton could not recall receiving a written
prescription from the doctor for the medication in question, it
seems clear to me that prescription medication was in fact used
as part of his treatment, and the doctor's report of June 19,
1987, reflects that the Neosporin ointment was to be used three
times daily. Mr. Clanton confirmed that after his eyes were
flushed out at the emergency room, the doctor put some "salve" in
his eyes and gave him the rest to use. Mr. Clanton stated that "I
smeared it in there one more time" (Tr. 55).
MSHA's bulletin guidelines at page 10 state that the use of
prescription medication normally constitutes medical treatment,
but that a single doze or application of a prescription
medication given on a first visit merely for the relief of pain
or as a preventive treatment for a minor injury should be
considered first aid. The available evidence in this case
reflects that Mr. Clanton received more than a single dose of the
prescribed medication used for the treatment of his eye injuries.
Further, I find nothing in MSHA's regulatory definitions of
"first-aid" or the criteria for the treatment of eye injuries
that even mentions or suggests single or multiple doses of
prescription medication.
In view of the foregoing, and after careful consideration of
all of the available evidence in this matter, I conclude and find
that Mr. Clanton's eye injuries constituted a reportable
occupational injury, and that the treatment he received for his
condition constituted medical treatment rather than first-aid
treatment. I also conclude and find that the respondent's failure
to report the injury in question constituted a violation of cited
section 50.20, and the citation is therefore AFFIRMED.
With regard to the respondent's "doubtful case" defense,
although one may agree that MSHA's guidelines concerning a mine
operator's judgment and discretion in determining whether an
employee's lost work day is attributable to an injury, the
introduction of the term "single dose" in the discussion of
Page 37
~1070
prescription medication, and the reference to ointments and
salves as part of any first-aid treatment, without any specific
reference to whether they are prescription or nonprescription,
are somewhat ambiguous, the guideline instruction found on page
34 is not. It specifically states that a doubtful injury case
should be reported. Under the circumstances, I reject the
respondent's "doubtful case" theory as an absolute defense to the
citation, but have considered it in mitigation of the
respondent's negligence.
Significant and Substantial Violation
Noise Citation No. 2865785
In this instance, Inspector Spruell made a finding that the
citation was significant and substantial. As a result of his
dosimeter noise test, he found that the jumbo drill operator was
exposed to noise levels which exceeded the allowable limit by
1,867 percent, which was equivalent to an 8Ähour exposure of 111
dBA's. The jumbo drill was equipped with a left and right drill,
one of which had a muffler installed, while the other one did
not. The sound level which the inspector measured with a sound
level meter while both drills were in operation indicated that
the drill operator was exposed to continuous noise levels at 118
dBA's. The noise exposure in both instances was well over the
allowable limit of 90 decibels.
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act 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." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the 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, 3Ä4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
Page 38
~1071
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 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "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). We have emphasized that, in accordance with the
language of section 104(d)(1), 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
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574Ä75
(July 1984).
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, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Inspector Spruell's significant and substantial finding was
based on his belief that the noise levels to which the drill
operator was being exposed was such as to make it reasonably
likely that he would suffer some hearing loss. The inspector made
a gravity finding of "highly likely" and that a "permanently
disabling" injury of illness could reasonably be expected because
of the noise level exposure to the drill operator. Although Mr.
Spruell stated on the face of the citation that "personal hearing
protection was being worn," he explained that he made that
statement to give the respondent the benefit of the doubt since
the drill operator was wearing protective ear muffs most of the
time. However, when he observed the
Page 39
~1072
drill operator with the drill in operation, he was not wearing
his personal ear protection.
MSHA's noise expert Brayden testified that although the
installation of the muffler on the drill reduced the operator's
noise exposure, the dosimeter reading of 1,867 percent of the
allowable noise exposure would indicate that the operator was
losing his hearing to a significant degree even if he were to
wear his ear muffs all day. In her opinion, the drill operator
would need to wear ear plugs as well as ear muffs to protect his
hearing.
In view of the unrebutted testimony of Inspector Spruell and
Ms. Brayden, which I find credible and probative, I conclude and
find that the noise exposure levels to which the drill operator
was being exposed presented a hazard to his hearing capability,
and that such noise level exposures would reasonably likely
contribute to a serious loss of hearing. Accordingly, the
inspector's significant and substantial finding IS AFFIRMED.
History of Prior Violations
MSHA's civil penalty assessment computer print-out for the
respondent's Annabel Lee Mine for the period May 28, 1985 to May
27, 1987, reflects that the respondent paid penalty assessments
in the amount of $94 for three section 104(a) citations (exhibit
PÄ4). The computer print-out for the Denton Mine for the period
June 17, 1985 to June 16, 1987, reflects civil penalty assessment
payments in the amount of $74 for two section 104(a) citations. I
conclude and find that the respondent has a good compliance
record, and I have taken this into consideration in the civil
penalties assessed for the violations which have been affirmed in
these proceedings.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent's Denton and
Annabel Lee Mines are small mining operations, and I adopt these
stipulations as my findings on this issue. The parties also
stipulated that the proposed civil penalty assessments for the
violations in question will not adversely affect the respondent's
ability to continue in business. I find and conclude that the
payment of the civil penalty assessments for the violations which
have been affirmed in these proceedings will not adversely affect
the respondent's ability to continue in business.
Page 40
~1073
Good Faith Compliance
The record establishes that all of the violations were
timely abated in good faith by the respondent. I have taken this
into consideration in the assessments made for the violations in
question.
Negligence
I conclude and find that all of the violations which have
been affirmed in these proceedings resulted from the respondent's
failure to exercise reasonable care. Accordingly, I adopt the
inspector's moderate negligence findings with respect to all of
the citations as my negligence findings and conclusions on this
issue.
Gravity
With the exception of "S & S" noise Citation No. 2865785,
the inspector found that all of the remaining noise citations
were non-"S & S", and that any injury or illness would be
unlikely. They were all assessed as "single penalty" citations.
He made the same findings for reporting Citation No. 2865780. I
concur in these findings, and find that with the exception of "S
& S" noise Citation No. 2865785, which I find was serious, the
remaining violations were non-serious and not likely to result in
any serious injuries.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section 110(i) of the
Act, I conclude that the following civil penalty assessments are
reasonable and appropriate for the violations which have been
affirmed in these proceedings:
Docket No. LAKE 88Ä4ÄM
Citation No. Date 30 C.F.R. Section Assessment
2865757 05/28/87 57.5050(b) $ 20
2865758 05/28/87 57.5050(b) $ 20
2865759 05/28/87 57.5050(b) $ 20
2865785 05/28/87 57.5050 $ 85
Page 41
~1074
Docket No. LAKE 88Ä22ÄM
Citation No. Date 30 C.F.R. Section Assessment
3058584 06/17/87 57.5050(b) $ 20
3059585 06/17/87 57.5050(b) $ 20
Docket No. LAKE 87Ä85ÄM
Citation No. Date 30 C.F.R. Section Assessment
2865780 05/27/87 50.20 $ 20
ORDER
The respondent IS ORDERED to pay the civil penalties
assessed in these proceedings within thirty (30) days of these
decisions and orders. Upon receipt of payment by the petitioner,
these proceedings are dismissed.
George A. Koutras
Administrative Law Judge
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