Freeman United Coal Mining
Freeman United Coal Mining (FMSHRC LAKE 94-3, LAKE 95-262, and LAKE 95-269): Walkway citation affirmed after collapse injured four workers
Apply this to your situation
This order from 1996 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
Freeman United operated the Orient No. 6 coal mine, where an elevated walkway in an old preparation plant collapsed and four men fell about 17 feet onto a concrete floor and were severely injured. The judge found that the walkway was not maintained in good repair as required by 30 C.F.R. § 77.200. He also found that engineer-supervisors Neal Merrifield and James Yancik knowingly failed to take steps within their authority to inspect and repair deteriorated steel members after receiving warnings about the plant's structural condition. Citation 3537447 was affirmed, and the judge assessed penalties of $10,000 against Freeman United, $5,000 against Merrifield, and $4,000 against Yancik.
Decision snapshot
- Cited standard: 30 C.F.R. § 77.200
- Outcome: Citation 3537447 was affirmed, with $19,000 in civil penalties assessed across the three respondents.
- Key point: A mine operator and responsible engineer-supervisors must act on known structural deterioration and warnings that identify repair needs before miners use an elevated walkway.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 29, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-3
Petitioner : A.C. No. 11-00599-03883
v. :
: Mine: Orient No. 6
FREEMAN UNITED COAL MINING, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-262
Petitioner : A.C. No. 11-00599-03925-A
v. :
: Mine: Orient No. 6
JAMES YANCIK, Employed by :
FREEMAN UNITED COAL MINING, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-269
Petitioner : A.C. No. 11-00599-03926-A
v. :
: Mine: Orient No. 6
NEAL MERRIFIELD, Employed by :
FREEMAN UNITED COAL MINING, :
Respondent :
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DECISION
Appearances: Christine M. Kassak, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;
Richard R. Elledge, Esq., Gould & Ratner, Chicago,
Illinois, for Respondent;
Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C., for Respondent.
Before: Judge Fauver
These civil penalty cases were brought under §§ 105(d) and
110(c) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. The corporation and two of its
supervisors, who are qualified engineers, are charged with
failure to maintain an elevated walkway in good repair to prevent
accidents and injuries to employees. The walkway collapsed and
four men were severely injured.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative
and reliable evidence establishes the Findings of Fact and
further findings in the Discussion below:
FINDINGS OF FACT
1. Freeman owns and operates Orient No. 6 Mine in
Waltonville, Illinois, where it produces bituminous coal for
sales in or substantially affecting interstate commerce.
2. Freeman is a large coal mine operator, producing over 4
million tons a year. Orient No. 6 is a large mine, producing
over a million tons a year.
3. In 1968 Freeman engaged Roberts and Schaefer Company,
Engineers and Contractors, Chicago, Illinois, to design and build
a preparation plant at Orient No. 6 Mine.
4. The plant is 105 feet high, 100 feet long and 100 feet
wide. It is a frame structure with steel columns and beams that
provide a basis for installing and removing floors as needed for
conveyor belts and other equipment used in the plant.
5. Because of of the unique properties of the coal at Orient
No. 6 Mine, the atmosphere in the preparation plant is very
corrosive to metal. This condition hastens the deterioration of
steel columns, beams and other metal supports.
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6. Because of widespread corrosion and deterioration of
steel members in the preparation plant, in 1984 Freeman built a
new preparation plant adjacent to the old one. The old plant was
abandoned as a preparation plant but kept as a building for
certain functions. Walkways and conveyor belts run through the
old plant to the new plant, and the plants are connected by pumps
and motor controls. In addition, there is a large electric power
station in the old plant. The areas of the old plant that are
most frequently used are elevated walkways, conveyor belts, the
electrical power station, and a drainage system.
7. Once metal deterioration begins, it continues to worsen
until rust disintegrates the metal. Steel beams, columns, and
metal supports in the old plant continued to deteriorate after
the new plant was built. In 1987 a conveyor belt collapsed in
the old plant because of deterioration of steel members.
8. The collapse of the conveyor belt in 1987 shut down
production and caused Freeman to recognize that it needed to
rehabilitate or replace weakened and deteriorated steel members
in the old plant. Rehabilitation work moved slowly. In 1989
Freeman engaged Roberts and Schaefer to evaluate the structural
condition of the old preparation plant and to make
recommendations for its rehabilitation. R & S was chosen because
it had designed the old preparation plant, built it, and knew the
loads the members could carry and had expertise in diagnosing
defective steel members and how to repair them. It also had
built the new preparation plant.
9. After inspecting the old preparation plant, R & S
submitted a report to Freeman on November 30, 1989, prepared by
Engineer Paul G. Meifert. The report is entitled “Report to
Determine Structural Integrity of Existing Coal Preparation Plant
for Freeman United Coal Company Orient No. 6 Mine.” Govt.
Exh. 3.
10. The R & S report found many structural hazards. It
stated that part of the floor at elevation 454 “is beginning to
collapse and has been roped off above and below per [the R & S
engineer’s] request. Obviously this area needs attention.” An
abandoned coal conveyor above elevation 468 was “on the verge of
collapse . . . [which would be] life threatening” (p.4).
Vertical bracing was “virtually nonexistent due to deterioration
and to field removal for access. Bracing should be brought back
to original as much as possible . . . .” p.4. The report called
for “immediate attention” to “beams and columns where holes exist
or can be punched out with a hammer.” p.3. It also stated that
“many beams and columns were tested by hammer blows to determine
the extent of rust and deterioration” and that, “although many
sections were reduced due to rust scale. . . , in the majority of
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cases, enough material remains to carry reduced loads.” Emphasis
added; p.2. To reduce the loads, heavy equipment and other
materials were to be removed from a number of floors.
11. The R & S report included the following cautionary
notice: “Although the structure appears to be sound in general
these findings are based only upon a visual inspection. No load
tests or calculations were performed to determine actual
stresses. Extent of deterioration and actual safety of structure
cannot be determined without extensive measuring, testing, and
calculation” (p.5).
June 1993 Collapse of Elevated Walkway
12. On June 8, 1993, Mr. Steve Stanley, the surface manager
of the mine, led a crew of two supervisors and two miners to work
on a coal belt on the first floor (elevation 454 on the R & S
drawing). To gain access to the belt, the men were standing on
an elevated walkway parallel to the belt, 17 feet above a
concrete floor. Mr. Stanley left to get a bolt. Shortly after he
left, the walkway suddenly collapsed and the four men fell to the
concrete floor amidst jagged and broken steel and concrete
debris. They were severely injured.
13. MSHA began an investigation on June 9. On June 10,
Engineers Terence Taylor and Dan Mazzei, from MSHA’s Safety and
Health Technology Center, inspected the fallen walkway as well as
the general plant.
14. Mr. Taylor is a professional engineer and has both a
bachelor’s and a master’s degree in civil engineering with
specialization in structural engineering. He is a member of the
American Society of Civil Engineers. Mr. Taylor’s supervisor is
Dan Mazzei, who has a bachelor’s degree in civil engineering and
a master’s degree with an emphasis on water resources.
15. The Tech Support team observed widespread deterioration
of steel members with some remedial work done to some of the
columns in the basement. They did not inspect every steel
member, but they looked at the supports for the walkway and found
widespread corrosion and deterioration of structural members. At
the accident site they observed that members that were still
dangling or touching the ground were severely corroded. Much of
the cross section was missing on some of the dangling members.
The failed members were badly deteriorated and one failed beam
was almost totally deteriorated.
16. The area where the collapse occurred is delineated by
column lines E and F in the north-south direction and 4 and 5 in
the east-west direction of the original plant drawings. These
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four columns are the corners of a 5 by 20 foot bay. The slab
that collapsed was supported at its north and south ends by two
wide flange beams, along its east edge by a wide flange beam, and
its west edge by six-inch wide channel sections. The center of
the slab was supported by a wide flange beam and the quarter
points by light beams. The three intermittent support beams had
fallen along with the west and east edge supports. The north and
south beams were still in place. The west or east edge support
was the first support to fail. Most likely the beam on the east
edge collapsed first, transferring the load to the west edge,
shearing the channel sections and bending down the three
intermittent beams. The east edge beam was almost completely
deteriorated with many holes and extensive corrosion. There was
extensive rust on the 20 foot long wide flange beam supporting
the edge of the slab. The bottom flange and parts of the web
were deteriorated, reducing the load-carrying capabilities of the
section. In the collapsed bay, the connection between the east
edge beam and the column was still intact on the column,
indicating that the beam sheared right through its cross section.
17. Along the same column line that failed, in the bay to
the south of the area of collapse, Mr. Taylor and Mr. Mazzei saw
a steel member that was identical in section and dimensions to
the beam that failed on June 8, 1993. This member was still in
place, but deterioration holes could be seen plainly. This
member is the subject of Govt. Exh. No. 6 and was the support for
the walkway farther south of the point of collapse. The unsafe
condition of this beam was similar to that of the beam that
failed on June 8.
18. The failure on June 8 was caused by excessive corrosion
reducing the section-carrying capacity at the edge supports where
the shear load was the highest and where it ultimately failed.
19. Before the accident on June 8, the deteriorated steel
members supporting the walkway section that collapsed were
observable from the floor below, and were visibly in bad repair.
20. Some beams under the walkway in other bays were also
visibly in bad repair. The walkway presented numerous hazards of
steel corrosion and deterioration.
21. A number of beams had holes in them and were rusted and
twisted and deteriorated. MSHA inspector Charles Conaughty
observed instances where a hammer struck against a structural
member traveled through the member.
22. Government Exhibits 4,5, and 11 show the area where the
June 8 accident occurred. Exhibit 4 shows the beam that failed
under the east side of the walkway. Exhibit 5 shows part of tthe
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material that was still hanging from the collapsed walkway.
Exhibit 11 shows deteriorated vertical bracing that was at the
end of the row of columns in the same row in which the collapse
occurred.
23. Government Exhibits 6, 7, 8, 9 and 10 show other areas
of deterioration adjacent to or near the accident site. The beam
shown in Exhibit 6 was in the adjacent or a nearby bay just south
of the area that fell, and was in the same column line (column
line 4) in which the accident occurred. The steel members that
failed would have been exposed to the same corrosive elements as
the beam depicted in Exhibit 6.
24. In 1989, when Freeman was removing the floor area
described in the R & S report (defined by column lines A to F and
4 and 5), Freeman personnel were within close visual range of the
steel members of the walkway section that failed on June 8, 1993.
25. As of the date of the collapse, a number of areas in the
old plant still needed rehabilitation and repair work, including
the section that collapsed.
26. At the time of the collapse, Mr. Thomas J. Austin had
been the safety director of the mine since 1987. There were
three employees in the safety department. Mr. Austin’s immediate
supervisor was Respondent Neal Merrifield. Mr. Austin is not an
engineer and has never taken any engineering courses.
27. Prior to the accident, Mr. Austin never received any
instructions to have his safety employees look for holes in beams
and columns or perform tests with a hammer on any of the beams or
columns that supported walkways. Nor did he see or discuss the R
& S report before the accident. He first learned about the R & S
report during the investigation following the walkway collapse.
28. In 1989, Mr. Steve Stanley was the assistant mine
manager of the Orient No. 6 mine. Mr. Stanley became surface
manager of the mine in 1991. He is not an engineer, but he was
called upon to direct rehabilitation work and repairs in the old
plant. He made decisions on a day to day basis as to where to
assign employees. Prior to the accident, no one directed Mr.
Stanley to put more people to work in the old plant or to give
any priority to checking beams and other metal supports that held
up the walkways. Nor did anyone instruct Mr. Stanley to have
employees look for holes in beams and columns or perform tests
with a hammer on any beams or columns that supported walkways.
29. Mr. Stanley had never seen and was not given a copy of
the R & S report until after the accident. No one discussed the
R & S report with Mr. Stanley until after the accident.
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30. On June 8, 1993, when Mr. Stanley directed four
employees to work on the conveyor belt by standing on the
walkway, he had no knowledge of the R & S report or the dangers
observed in the report.
Respondent James Yancik
31. At all relevant times, Respondent James Yancik was
manager of quality control and plant maintenance and the
preparation engineer. Mr. Yancik has a B.S. degree in mining
engineering and is a member of the Society of Mining Engineering.
One of his specialties is structural analysis.
32. Mr. Yancik accompanied Engineer Paul Meifert of the R &
S Company during Mr. Meifert’s inspection of the old preparation
plant in 1989. During their inspection they used three tools: a
chipping hammer, a wire brush, and a hammer. They did not take
core samples. They were visually looking at steel members and in
some cases they would scale and test steel members.
33. Mr. Meifert and Mr. Yancik observed a crack in a floor
that was beginning to sag. Mr. Meifert identified the floor as
dangerous and had it roped off.
34. When part of the floor at elevation 454 was removed,
Mr. Yancik reviewed the work. During the time he was conducting
inspections for Mr. Mullins, he remembered seeing several beams
in a condition like that of the beam in Govt. Exh. No. 6. At the
hearing he stated that some of these were possibly not repaired.
35. Before accompanying Mr. Meifert, Mr. Yancik had
personally inspected the old preparation plant. In 1987, when
starting the initial rehabilitation program, Mr. Yancik spent
eight hours a day there, five days a week, for several weeks.
Mr. Yancik did not continue that frequency of inspections after
the R & S report. During the period from the issuance of the R &
S report (November 30, 1989) until the walkway collapse on June
8, 1993, Mr. Yancik conducted inspections of the old plant “on a
periodic basis” depending upon his “available time.” His
inspections were not frequent.
36. Mr. Yancik read the R & S report several times and was
very familiar with its contents. He received his copy of the R &
S report from Mr. Mullins, vice president of operations.
37. Before the accident, Mr. Yancik had seen holes in some
beams like those that were shown on figures 7 and 9 in the R & S
report but never directed anyone to repair or rehabilitate those
beams. Mr. Yancik did not personally set priorities for the
rehabilitation or repair of the old plant.
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38. Mr. Yancik had “expertise in structural analysis.” He
agreed that when an engineer sees a corroded hole in a steel beam
he views it as a potential hazard.
Respondent Neal Merrifield
39. At the time of the collapse in June 1993, Mr. Merrified
was vice president of operations. He is a mining engineer.
Prior to becoming vice president of operations, he had been the
mine superintendent. As vice president of operations, his
responsibilities included safety of the operations of the mine
facilities. Mr. Yancik reported to Mr. Merrifield.
40. Mr. Merrifield read the R & S report and, as an
engineer, he understood it. After 1991, when he became vice
president of operations, Mr. Merrifield set priorities for the
rehabilitation work in the old plant. Mr. Merrifield approved
the mine’s budget and had responsibility for the budget for the
old plant. Although he did not have final authority on the
budget, Mr. Merrifield’s budget recommendations were not normally
overruled by his supervisor.
41. The chief engineer of the mine reported to
Mr. Merrifield. As supervisor of the engineering department,
Mr. Merrifield approved the time spent on rehabilitation efforts.
Along with other mine management and the corporate officers,
Mr. Merrifield approved the allocation of dollars for those
rehabilitation efforts.
42. Mr. Merrifield approved the engineering department’s
decisions regarding priorities for the rehabilitation of the old
plant. The engineering department reported to him regarding its
recommendations for sequencing repair work and to get
authorization to contract out rehabilitation work. When the
engineering department wanted items beyond the budget, it would
present its request to Mr. Merrifield and he would approve or
disapprove it.
43. Mr. Merrifield had input into the final report in
response to Mr. Mullin’s memorandum of January 1, 1990
(Govt. Exh. 26) including recommendations regarding replacement
of bracing as recommended by the R & S report. Mr. Merrifield
attended a February 1, 1990, meeting with Mr. Mullins regarding
corrective actions to be taken.
44. Mr. Merrifield did not give Mr. Jim Hess, his successor
as mine superintendent, a copy of the R & S report.
Mr. Merrifield also did not give Mr. Steve Stanley, surface
manager, a copy of the R & S report. Nor did he give a copy of
the report to the mine safety director.
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45. Mr. Mullins sent a copy of his letter regarding
Mr. Yancik’s job responsibilities (Govt. Exh. 18) to Mr.
Merrifield. A copy of an October 26, 1988, document regarding
inspection of all belt supporting structures on an annual basis,
to visually assess the competency of the structural members, went
to Mr. Merrifield. Mr. Yancik sent a copy of a memorandum of May
4, 1988 (Govt. Exh. 20), to Mr. Merrifield. A copy of a
memorandum of December 17, 1988 (Govt. Exh. 21), regarding areas
that required immediate attention and reporting that the second
floor was badly deteriorated, went to Merrifield.
46. Mr. Yancik sent copies of a memorandum of January 29,
1990 (Govt. Exh. 22), regarding the R & S report, and a
memorandum of August 13, 1990 (Govt. Exh. 23), regarding his
inspection of the old plant, to Mr. Merrifield. Mr. Yancik also
sent a memorandum of October 2, 1990 (Govt. Exh. 24), in which he
informed Mr. Merrifield that “no definitive plan has been
formulated to correct the deficiencies” in the old plant.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
I
RESPONDENTS’ CHALLENGE OF THE REGULATION
On June 8, 1993, a large section of an elevated walkway --
about 5 by 20 feet -- suddenly collapsed. The four miners
standing on it fell 17 feet to a concrete floor amidst jagged and
broken steel and concrete debris. They were severely injured.
The Secretary alleges that Respondents violated 30 C.F.R §
77.200, which provides:
Surface installations; general
All mine structures, enclosures, or other facilities
(including custom coal preparation) shall be maintained in
good repair to prevent accidents and injuries to employees.
Respondents challenge the regulation as being vague and
ambiguous.
A safety standard must provide adequate notice of the
conduct it prohibits or requires, so that the mine operator or
other affected persons may act accordingly. Southern Ohio Coal
Company, 14 FMSHRC 978,983 (1992). The “appropriate test is not
whether the operator had explicit prior notice of a specific
prohibition or requirement, but whether a reasonably prudent
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person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific
prohibition or requirement of the standard.” Ideal Cement Co.,
12 FMSHRC 2409, 2416 (1990).
In U.S. Steel Mining Co ., 14 FMSHRC 973, 974 (1992), the
Commission affirmed a decision in a § 77.200 case, noting the
judge’s holding that “the primary purpose of § 77.200 was to
assure the physical and structural integrity of surface coal
preparation facilities . . ..” I find that the regulation gives
sufficient notice of the safety conduct required. The plain
language of the regulation means that surface structures and
facilities must be maintained in good repair relative to safety.
In dictionary terms, “maintenance” means “The labor of keeping
something (as buildings or equipment) in a state of repair or
efficiency: care, upkeep . . . [p]roper care, repair, and keeping
in good order . . . [t]he upkeep, or preserving the condition of
property to be operated.” See Webster’s Third New International
Dictionary, Unabridged 1362 (1971); A Dictionary of Mining,
Mineral, and Related Terms 675 (1968); and Black’s Law Dictionary
859 (5th ed. 1979).
II
RULING ON RESPONDENTS’ MOTION TO DISMISS
At the end of the Secretary’s case, the individual
Respondents moved to dismiss the § 110(c) charges. The judge
took the motion under advisement to be ruled upon in the final
decision. Respondents then presented evidence on all matters.
The Commission’s Rules of Procedure, the Administrative
Procedure Act and the Mine Act are silent as to the standards
that apply to motions to dismiss at the close of an opposing
party’s case-in-chief. Accordingly, it is appropriate to consult
the Federal Rules of Civil Procedure for guidance. Basic
Refractories, 13 FMSHRC 2554, 2558 (1981).
When a party moves for dismissal at the close of the
opponent’s case, the judge has discretion to take the motion
under advisement. Fed. R. Civ. P. 52(c), “Judgment on Partial
Findings,” provides, in pertinent part:
If during a trial without a jury a party has been fully
heard with respect to an issue . . ., the court may enter
judgment as a matter of law against that party on any claim
. . . or the court may decline to render any judgment until
the close of all the evidence.
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The notes of the Advisory Committee on Rules to Fed. R. Civ.
P. 52(c) specify that a court has discretion to enter no judgment
prior to the close of all the evidence. Clifford Meek v. ESSROC
Corporation, 15 FMSHRC 606, 615 (1993). Here, as there, the
judge exercised that discretion. In making that determination, a
court is within its prerogative to weigh all the evidence,
resolve any conflicts in it, and decide for itself where the
preponderance lies. Local Union 103 v. Indiana Construction
Corp., 13 F.2d 253, 257 (7th Cir. 1994).
In his dissent on other grounds in Mathies Coal Company ,
5 FMSHRC 300, 307 (1983), Commissioner Lawson stated that “a
trial court’s reservation of ruling on a motion for involuntary
dismissal [under 41(b) Fed. R. Civ. P., the predecessor to 52(c)]
is, in effect, a denial of the motion.” The Commissioner
concluded that: “Respondent had the choice of proceeding or
standing on its motion. By presenting evidence, Respondent
waived its right to appeal from the judge’s ‘denial’ of its
motion.”
Here, Respondents presented evidence following the judge’s
reservation of a ruling. The motion is denied and the case will
be decided upon all the evidence.
III
DECISION ON THE MERITS
The first question is whether the walkway was “maintained
in good repair to prevent accidents and injuries” as required by
30 C.F.R. § 77.200.
Freeman contends that the old preparation plant had
undergone an extensive rehabilitation program to repair or
replace deteriorating steel columns and beams and that the
particular walkway section had not been observed as requiring
repairs.
This argument fails because the steel supports that
collapsed were visibly badly deteriorated due to corrosion.
Also, a number of other steel members supporting the walkway were
visibly deteriorated due to corrosion. Under the R & S report,
“immediate attention” was required for “beams and columns where
holes exist or can be punched out with a hammer.” Without
rehabilitation or replacement of the deteriorated members, the
walkway clearly was not being “maintained in good repair to
prevent accidents and injuries to employees.” Freeman was
therefore in violation of 30 C.F.R. § 77.200.
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The next question is whether Freeman was negligent in
failing to maintain the walkway in good repair. I find that it
was.
Freeman contends that it had started the rehabilitation
program in 1987 and in 1989 engaged the engineering firm (R & S)
that built the plant to return to inspect the structural
condition of the plant and make recommendations. It states that
before the walkway collapsed it had taken corrective action on
the specific recommendations in the engineering firm’s report and
was carrying out an ongoing inspection and repair program on
columns and beams in accordance with the engineering report.
However, the walkway collapse occurred more than three and a
half years after the R & S report, which had warned Freeman that
“immediate attention” must be given to “beams and columns where
holes exist or can be punched out with a hammer” and that “for
beams, holes near connecting and concentrated loads are
critical.” Exh. G-3, p.3. The steel supports that collapsed
under the walkway were badly deteriorated and were plainly
visible before the accident.
In Alabama By-Products, 4 FMSHRC 2128, 2129 (1982), the
Commission held:
[I]n deciding whether equipment or machinery is in safe or
unsafe operating condition, . . . the alleged violative
condition is appropriately measured against the standard of
whether a reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous
condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective
action.
The “reasonably prudent person” test applies to engineers
as well as to laymen. This case focuses upon the responsibility
of engineer-supervisors to protect the safety of miners using an
elevated walkway. Miners and supervisors who are not engineers
are not expected to know the structural integrity of steel beams
and columns. To a layman, including a supervisor who is not an
engineer, deteriorated or corroded steel beams 14 feet above the
floor may not seem dangerous if the company engineers indicate
that they have carefully checked the structural condition and
that the beams are safe. However, the walkway suddenly collapsed
because of deteriorated steel beams. The question raised is
whether a reasonably prudent engineer would have inspected and
repaired or replaced the beams before they collapsed.
The Respondent engineer-supervisors were fully aware of the
history of deterioration of steel members in the old plant,
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including a major collapse of a conveyor belt in 1987 because of
deteriorated steel members, and the 1989 R & S report that warned
of the need to give “immediate attention” to “beams and columns
where holes exists or can be punched out with a hammer.” I find
that a reasonably prudent engineer having such knowledge and
being familiar with the mining industry would have performed or
required careful and frequent inspections of the steel beams of
the elevated walkways including hammer tests of suspicious
looking beams. By the exercise of reasonable care, the failed
beams and steel supports could have been detected and corrected
to prevent the collapse that occurred on June 8, 1993. I also
find that, before the walkway collapse, a reasonably prudent
engineer who observed the other deteriorated steel members later
found by the MSHA engineers would have repaired or replaced them.
I now turn to the issue of whether the individual
Respondents are liable as corporate agents under § 110(c) of the
Act. This section provides:
Whenever a corporate operator violates a mandatory health or
safety standard or knowingly violates or fails or refuses to
comply with any order issued under this Act or any order
incorporated in a final decision issued under this Act,
except an order incorporated in a decision issued under
subsection 105(c), any director, officer, or agent of such
corporation, who knowingly authorized, ordered, or carried
out such violation, failure, or refusal shall be subject to
the same civil penalties, fines, and imprisonment that may
be imposed upon a person under subsections (a) and (d).
The individual Respondents were agents of the corporate
Respondent within the meaning of § 110(c). Respondent Neal
Merrifield was vice president of operations at the time of the
collapse of the walkway. He is a mining engineer. Before
becoming vice president of operations he had been mine
superintendent. As vice president of operations, his
responsibilities included safety of the operations of the mine
facilities. The safety and engineering departments reported to
him. Respondent James Yancik reported to Mr. Merrifield.
Mr. Yancik was manager of quality control and plant maintenance
and the preparation engineer at the subject mine. He is a mining
engineer with a specialty in structural analysis.
In Warren Steen Construction, Inc. and Warren Steen ,
14 FMSHRC 1125, 1131 (1992), the Commission held that, “In order
to establish § 110(c) liability, the Secretary must prove only
that an individual knowingly acted, not that the individual
knowingly violated the law.” In Kenny Richardson v. Secretary of
Labor, 3 FMSHRC 8, 16 (1981), aff’d, 689 F.2d 632 (6th Cir 1982),
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cert. denied, 461 U.S. 928 (1983), the Commission defined the
term “knowingly” as follows:
“Knowingly,” as used in the Act, does not have any meaning
of bad faith or evil purpose or criminal intent. Its
meaning is rather that used in contract law, where it means
knowing or having reason to know. A person has reason to
know when he has such information as would lead a person
exercising reasonable care to acquire knowledge of the fact
in question or to infer its existence.
A “knowing” violation does not require a showing that the
corporate agent “willfully” violated the Mine Act or safety
regulations. Rather, the Commission held that:
If a person in a position to protect employee safety and
health fails to act on the basis of information that gives
him knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a manner
contrary to the remedial nature of the statute. [ Id.]
The individual Respondents knew as early as 1984 that the
steel members in the old preparation plant were deteriorating.
After the new plant was built in 1984, the steel members in the
old plant continued to deteriorate. In 1987, a conveyor belt
collapsed because of deteriorated steel members. The collapse
shut down production and caused Freeman to recognize that the old
plant must be rehabilitated. However, progress toward
rehabilitation was slow. In 1989, Freeman engaged the
engineering firm (R & S) that built both plants to return to
evaluate the structural condition of the old plant and make
recommendations. After Freeman received the R & S report
(November 30, 1989), rehabilitation efforts still moved slowly.
More than three and a half years after the report, the cited
walkway was still in bad repair, as evidenced by the collapse of
the walkway on June 8, 1993, and the deterioration of other steel
members disclosed by the MSHA investigation after the walkway
collapsed. The three and a half years from the R & S report to
the walkway collapse represents about 1,600 workshifts during
which miners were exposed to the hazards of the elevated walkway.
Respondents had a legal duty to ensure that the elevated
walkway was “maintained in good repair to prevent accidents and
injuries to employees.” 30 C.F.R. § 77.200. The R & S report
put them on notice that “immediate attention” was needed to
repair or replace all “beams and columns where holes exist or can
be punched out with a hammer. For beams, holes near connections
and concentrated loads are critical.”
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The individual Respondents were agents of the corporate mine
operator and were qualified engineers in positions to protect the
safety of miners who used the elevated walkway. Mr. Merrifield
prioritized the rehabilitation sequences to carry out the
recommendations in the R & S report and Mr. Yancik had the
responsibility to inspect the steel members for compliance with
the criteria in the R & S report. They knew that the steel
members supporting the elevated walkway needed to be inspected
carefully and frequently in order to give “immediate attention”
to “beams and columns where holes exist or can be punched out
with a hammer,” as warned by the R & S report. This required
hammer testing of any suspicious beams. It is clear that the
beams that failed on June 8, 1993, were more than suspicious, but
had not been properly tested and remedied before the collapse.
Mr. Yancik testified that he never received any written
report that told him or caused him to believe that the plant was
not being maintained in a safe condition or that the walkway that
collapsed was dangerous. However, Mr. Yancik was the individual
charged with making inspections of the plant to create those
kinds of reports. In addition, he was aware of the 1987 collapse
of the conveyor belt and of the clear warnings in the R & S
report.
Mr. Yancik acknowledged that it would have been reasonable
to inspect the walkway beams after Freeman removed the floor at
elevation 454. When asked why Freeman did not replace any of the
steel members under the walkway, Mr. Yancik concluded that the
structural condition was not bad enough to require remedial
attention. Yet the walkway failed because of advanced
deterioration and badly corroded steel beams.
Mr. Merrifield was a decisionmaker responsible for safety of
operations of the old preparation plant from the time he was mine
superintendent and later vice president of operations. He had a
thorough knowledge of the history of deterioration of the steel
members, including the 1987 collapse of the conveyor belt and the
1989 R & S report. He made monetary decisions regarding
rehabilitative efforts in the old plant. With his knowledge of
the R & S report, and his qualifications as an engineer, he had a
duty to heed the warnings of the R & S report and see to it that
beams, columns, and metal supports for the elevated walkway were
carefully and frequently inspected so that “immediate attention”
would be given to any beams or columns “where holes exist or can
be punched out with a hammer.” He had the authority to provide
copies of the R & S report to the safety director and surface
manager (who both reported to him) and to discuss it with them.
However, he failed to do so.
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When the surface manager, Mr. Stanley, led a crew of four
men onto the walkway on June 8, 1993, he had no knowledge of the
R & S report and its warning that “immediate attention” must be
given to “beams and columns where holes exist or can be punched
out with a hammer.” Since he was not an engineer, and had no
training in structural analysis, he had to rely upon the
individual Respondents to see that the walkway was kept in a safe
condition. Respondent Merrifield prioritized the rehabilitation
sequences to carry out the recommendations of the R & S report,
and Respondent had the responsibility to inspect the steel
members for compliance with the criteria spelled out in the R & S
report. Both were qualified engineers who knew the significance
of the dangers found in the report, but they did not convey them
to Mr. Stanley or the mine safety director.
Had they informed Mr. Stanley, the surface manager, of the
need to look out for “beams and columns where holes exist or can
be punched out with a hammer,” Mr. Stanley would have had crucial
safety information when he assigned four men to work with him on
the walkway that collapsed. This would have alerted him to
immediately report any beams “where holes exist or can be punched
out with a hammer,” and may have alerted him to look at the beams
below before placing a concentrated live load on the walkway.
Had he looked at the beams, he would have seen the deterioration
and corrosion that the MSHA engineers saw after the collapse of
the walkway. This probably would have alerted him to call the
individual Respondents for an evaluation of the safety of the
walkway.
Respondents argue that a number of MSHA inspectors had
inspected the old plant before the collapse in June 1993, but did
not cite the walkway as being unsafe. However, MSHA inspectors
are not engineers, and the dangers of the walkway were such that
only specially qualified persons, such as engineers, could fully
understand the hazards involved in the context of the R & S
report. Moreover, in Raymer v. United States , 660 F.2d 1136,
1143 (6th Cir. 1981), cert. denied, 456 U.S. 944, 102
S. Ct. 2009 (1982), the court held that MSHA inspectors do not
undertake to perform a duty owed by the mine operator to its
employees. The court rejected the idea that responsibility for
mine safety is shifted to the federal government.
In Joseph B. Necessary, 6 FMSHRC 2567 (1984), Commission
Judge Koutras found that an agent with 45 years of experience in
the construction business who was supervising the repair of a
mine refuse storage bin that collapsed, killing three miners,
violated 30 C.F.R. § 77.200. Judge Koutras found that the
collapse was caused by a misalignment in the support columns and
that the supervisor was aware of the misalignment. In affirming
the citation, Judge Koutras found that, in light of the
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supervisor’s experience, “he knew or should have known that the
misalignment posed a serious potential safety hazard requiring
immediate correction.”
I find that Respondents Merrifield and Yancik “knowingly
authorized, ordered, or carried out” a violation of 30 C.F.R.
§ 77.200, within the meaning of § 110(c) of the Act, by failing
to take necessary steps within their competence and authority to
see that the cited walkway was “maintained in good repair to
prevent accidents and injuries to employees.” Miners and
supervisors who are not engineers cannot be expected to judge the
structural integrity of steel beams and columns. However, when a
mine operator engages the engineering firm that constructed a
building to return to evaluate its structural condition after
years of corrosion of steel members, it is incumbent upon the
operator’s own engineers to exercise due diligence and reasonable
care in implementing the builder’s repair and rehabilitation
recommendations. The individual Respondents patently failed to
do so with respect to the walkway that collapsed on June 8, 1993.
The collapse was not an unforseen accident. There had
already been a major collapse in 1987. As rehabilitation work
progressed in the old plant, beams that were repaired or replaced
were painted yellow. As of the date of the collapse, yellow
horizontal beams were in areas where weight had been removed from
the floor and where holes had been covered to prevent falls
through the floor. Apparently there were no yellow beams
supporting the elevated walkway. The MSHA engineers found a
number of beams and supports that were deteriorated, similar to
the beams that collapsed on June 8, 1993. This indicates that
the walkway was in overall bad repair, that the collapse on June
8 could readily have occurred in many dangerous places in the
walkway, and that a concentrated live load (several miners) was
critical, as predicted by the R & S report.
This was not a situation in which a claim of “unforseen
accident” could be reasonably asserted. Rather, it was a
collapse ready to happen.
I find that the violations of § 77.200 by the individual
Respondents were due to high negligence and their negligence is
imputed to the corporation. In reaching this conclusion, I have
considered a number of factors. These include: their expert
knowledge as engineers of the history of deterioration of steel
members in the old plant, the 1987 collapse of the conveyor belt,
and the clear notice in the 1989 R & S report of the steps
necessary to maintain the elevated walkway in good repair; their
failure to heed the R & S report by taking necessary action to
inspect and repair the walkway that collapsed; their failure to
advise the safety director and the surface manager of the need to
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look out for holes and weak spots in the beams under the walkway;
and the great risk to the miners who regularly used the elevated
walkway, including the four miners who were injured.
IV
CIVIL PENALTIES
The key to the Mine Act is prevention of mining hazards by
compliance with safety and health standards. This requires
diligence in monitoring changing mine conditions to see that the
mine is in compliance.
As found in the Discussion, Freeman and the two individual
Respondents were highly negligent in failing to maintain the
walkway in good repair to prevent accidents and injuries to
employees. Their violations of § 77.200 are aggravated by the
fact that they had a supervisory and professional responsibility
to protect laymen who were dependent upon their expert knowledge.
In Roy Glenn, 6 FMSHRC 1583, 1587 (1984), the Commission
repeated its holding in Kenny Richardson, supra , that “a
supervisor’s blind acquiescence in unsafe workings would not be
tolerated,” and that “supervisors . . . could not close their
eyes to violations, and then assert lack of responsibility for
those violations because of self-induced ignorance.” Similarly,
in passing the 1977 Mine Act, Congress was particularly concerned
over the high number of mining injuries and fatalities that
resulted from inadequate supervision and hazardous “conditions
reasonably within the power of management to prevent.” H.R. Rep.
No. 312, 95th Cong., 1st Sess. 4 (1977), reprinted in Legislative
History of the Federal Mine Safety and Health Act of 1977 , at
360 (1977).
Section 110(i) of the Act provides six criteria for
assessing civil penalties. Considering each of the criteria, I
find that Freeman is a large operator, the civil penalties in
this Decision will not affect its ability to continue in
business, Freeman has an average compliance history for its size,
and after the citation was issued the three Respondents made a
good faith effort to achieve compliance with 30 C.F.R. § 77.200.
The three Respondents violated that section, as found above. The
gravity of the violations was high and the violations were due to
high negligence on the part of each Respondent.
Considering all of the criteria for civil penalties in
§ 110(i) of the Act, I find that the following civil penalties
are appropriate for Respondents’ violations of § 77.200:
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Respondent Freeman United Coal Mining Company, a civil
penalty of $10,000.
Respondent Neal Merrifield, a civil penalty of $5,000.
Respondent James Yancik, a civil penalty of $4,000.
The penalties are higher than the penalties proposed by the
Secretary because of Respondents’ aggravated conduct in ignoring
the clear steps needed to protect the safety of the miners.
Through their high negligence in failing to replace defective
beams, the walkway was allowed to deteriorate to the point of a
sudden collapse causing severe injuries.
CONCLUSIONS OF LAW
1. The judge has jurisdiction.
2. Respondents violated 30 C.F.R. § 77.200 as found above.
ORDER
1. Citation No. 3537447 is AFFIRMED.
2. Within 30 days of the date of this Decision: Respondent
Freeman United Coal Mining Company shall pay a civil penalty of
$10,000; Respondent Neal Merrifield shall pay a civil penalty of
$5,000; and Respondent James Yancik shall pay a civil penalty of
$4,000.
William Fauver
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago,
IL 60604 (Certified Mail)
Richard R. Elledge, Esq., Gould & Ratner, 222 N. LaSalle St.,
Suite 800, Chicago, IL 60601 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Ave., NW., Washington, DC 20004-2595 (Certified Mail)
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