Akzo Nobel Salt, Inc.
Akzo Nobel Salt, Inc. (FMSHRC LAKE 96-45-RM and related dockets): Hoist and escapeway citations vacated
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
Akzo Nobel operated the Cleveland underground salt mine in Ohio. MSHA cited the mine after planned hoist maintenance was not immediately reported and miners continued working while one hoist was unavailable. Judge Koutras found that the cited reporting and escapeway standards did not support MSHA's interpretation requiring automatic mine evacuation and one-hour abatement, and that the interpretation was an improperly imposed substantive rule. He vacated all four citations and denied the proposed civil penalties.
Decision snapshot
- Cited standard(s): 30 C.F.R. §§ 50.10, 50.20(a), and 57.11050(a)
- Outcome: Four citations were vacated, and proposed penalties of $600 and $400 were denied and dismissed.
- Key point: An agency cannot impose a new substantive evacuation requirement through an unpublished interpretation that goes beyond the cited regulation.
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
November 19, 1996
AKZO NOBEL SALT, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. LAKE 96-45-RM
: Citation No. 4100787; 11/28/95
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. LAKE 96-65-RM
ADMINISTRATION (MSHA), : Citation No. 4546275; 1/25/96
Respondent :
: Docket No. LAKE 96-66-RM
: Citation No. 4546276; 1/25/96
:
: Docket No. LAKE 96-80-RM
: Citation No. 4546323; 1/30/96
:
: Cleveland Mine
: Mine I.D. No. 33-01994
:
:
SECRETARY OF LABOR : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 96-125-M
Petitioner : A. C. No. 33-01994-05659
v. :
: Cleveland Mine
AKZO NOBEL SALT INCORPORATED :
Respondent :
DECISIONS
Appearances: Edward H. Fitch IV, Esq., Office of the
Solicitor, U.S. Dept. of Labor, Arlington,
Virginia, for the Respondent/Petitioner;
Mark N. Savit, Esq., Ruth L. Ramsey, Esq.,
Patton, Boggs & Blow, Washington, D.C.,
for the Contestant/Respondent.
Before: Judge Koutras
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Statement of the Proceedings
These consolidated proceedings concern proposals for
assessment of civil penalties filed by the Secretary of Labor
(MSHA), against the respondent mine operator Akzo Nobel Salt Inc.
(AKZO), 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 of $1,000, for alleged violations of mandatory
reporting regulations 30 C.F.R. 50.10 and 50.20(a). (Civil
Penalty Docket No. LAKE 96-125-M, and Contest Docket Nos. LAKE
96-65-RM and LAKE 96-80-RM).
Contest Docket Nos. LAKE 96-45-RM and LAKE 96-66-RM concern
contests filed by AKZO challenging the legality of two section
104(a) non-”S&S” citations alleging violations of regulatory
sections 50.10 and 57.11050(a).
At the request of the parties, a prehearing conference was
held on the record to allow the parties to explore and address
the issues, proposed stipulations, and the filing of documentary
evidence, depositions, and briefs, for submission of these
matters for summary decisions. I have considered all of the oral
and written arguments presented by the parties in the course of
my adjudication of these matters.
Issues
The issues presented in these cases are (1) whether the
conditions or practices cited by the MSHA inspectors constitute
violations of the cited mandatory safety and reporting standards
and (2) the appropriate civil penalties to be assessed for the
alleged violations, taking into account the civil penalty
assessment criteria found in section 110(i) of the Act.
Additional issues raised by the parties are identified and
discussed in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of
1977; Pub. L. 95-164, 30 U.S.C. § 801 et seq.
2. Section 110(i) of the Act, 30 U.S.C. § 820(i).
3. 30 C.F.R. 50.10, 50.20(a), and 57.11050(a).
4. Commission Rules, 29, C.F.R. § 2700.1 et seq.
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Joint Stipulations
The parties stipulated to the following:
-
The Cleveland Mine was opened in 1961, has operated
continuously since that time, and it is within the
jurisdiction of the Mine Act. -
The presiding judge has jurisdiction to hear and decide
these matters. -
The citations were properly issued by authorized
representatives of MSHA and were properly served on AKZO. -
The citations were timely contested by AKZO, and no
part 100 post-inspection conferences were held. -
The parties agree that AKZO has sought this litigation
to challenge the positions of MSHA with respect to the
implementation of 30 C.F.R. § 50.10 and 30 C.F.R.
§ 57.11050(a). -
The mine produces approximately 2.5 million tons of
salt per year, and the mined product (sodium chloride or
rock salt) is used primarily for road salt, animal feed and
chemical process additives. Salt is non-flammable and is
recommended material for use in extinguishing fires. -
Underground employment at the mine varies somewhat on a
seasonal basis. However, at the time of incidents, total
employment was approximately 174 on three production shifts
and three maintenance shifts. -
The mine is currently classified as a Category VI mine
under the “gassy mine regulations.” 30 C.F.R. § 57.22003(a)(6).
That categorization “applies to mines in which the presence of
methane has not been established and are not included in
another category or subcategory.” 30 C.F.R. § 57.22003(a)(6). -
The production shaft is approximately 1853 feet deep
from the shaft collar to the sump, and it is approximately
1763 feet from the shaft collar to the mine level. -
The service shaft is approximately 1805 feet deep from
the shaft collar to the sump, and is approximately 1765 feet
from the shaft collar to the mine level. -
The parties agreed to the technical descriptions of the
production and service hoists (not included herein, but a
part of the record).3
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-
Salt is extracted from the mine in a “room and pillar”
formation, and a second, lower level is being developed.
Three methods of salt extraction are currently being used in
the mine. -
The following type of combustible and flammable
materials are used or stored for use in the mine: diesel
fuel, hydraulic oil, greases, small quantities of paint,
small amount of paper and wood, tires and fire resistant
conveyer belting. The quantities of any of these materials
underground vary significantly over time. However, the
underground diesel fuel storage facility has a maximum
capacity of 1,500 gallons. Furthermore, all of the
flammable materials listed are stored in storage cabinets. -
There are also various types of explosives, including
ANFO along with boosters caps, detonators and primer cord
that are used and stored, in magazines, for use in the mine.
The mine has also experienced misfires on occasion. The
mine has never been cited for any violation relating to the
mishandling of misfires. -
There have been two fires in the mine that were
reported to MSHA pursuant to 30 C.F.R. § 50.10. The first
was in 1983 and the second in 1996. The first involved a
haulage truck while the second involved a lubrication truck.
It appears that both fires apparently were caused by a
diesel fuel line leak, and they were extinguished by mine
personnel. -
AKZO maintains that due to the construction of the wire
ropes used in the hoisting equipment at the mine, it is
necessary that the hoist ropes be “shortened” or adjusted
periodically so that they are tight and of equal length.
This must be done because, as the ropes are subjected to
load, they stretch unequally. Once the variance in length
among the ropes exceeds certain tolerances, they must be
adjusted so that they are of equal length. Notwithstanding
the variance among the lengths of individual ropes, the
ropes must also be shortened if any of them exceed a certain
maximum length. -
AKZO maintains that the process of “shortening the
ropes” must be undertaken more frequently with regard to the
production hoist than with regard to the service hoist,
because the ropes on the production hoist are subjected to
greater loads and speeds than are the ropes on the service
hoist. -
AKZO maintains that the frequency with which this
process must be undertaken decreases with the age of the4
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ropes, because they stabilize as the construction gaps
between the wires are squeezed out with time.
-
MSHA maintains that the aforementioned maintenance work
is required as a result of the wear and damage to the
hoisting ropes which are caused by their use.The Planned Hoist Outage of November 9, 1995
(Docket No. LAKE 96-45-RM ) -
A planned outage of the production hoist was conducted
in order to “shorten” two of its four hoist ropes, in order,
in part, to test AKZO’s understanding of MSHA’s
interpretations of the applicability of the standards.
Although AKZO’s notification to MSHA and the citation state
that the outage occurred at approximately 11:56 p.m. on
November 9, 1995, the hoist log indicates that the outage
occurred at approximately 12:56 p.m. on November 10, 1995.
While no one can explain definitively the disparity, it has
been suggested that the hoisting equipment clock had not
been changed for daylight saving time. Counsel agree that
this disparity is immaterial to the reporting issue because,
in either case, the hoist was unavailable for use for more
than 30 minutes. According to the hoist computer log, the
hoist was put back into service at approximately 1:46 a.m.,
November 10, 1995. -
This hoist incident was not immediately reported to
MSHA, however a fax was received at the MSHA Newark Office
at 8:34 a.m., on November 10, 1995. -
On November 15, 1995, MSHA inspector Don Foster
conducted interviews with both management and labor
personnel with knowledge of the planned incident. AKZO
management did not believe that the hoist could have been
put back into service in less than 1 hour. MSHA also
received statements from two miners who worked on the hoist
which indicated that they believed that, in an emergency,
the hoist could have been put back into service in
approximately 40 minutes. -
During the shift on which these events occurred, there
were approximately 25 miners underground performing work
unrelated to the maintenance activity at the production
hoist. This work consisted entirely of maintenance
activities on production equipment other than the hoist. No
salt extraction occurred during the shift nor did any
welding or cutting occur during the shift. -
On November 28, 1995, MSHA inspector Okey Reitter
issued section 104(a) Citation No. 4100787 in respect to the5
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event of November 9, 1995, citing a violation of 30 C.F.R.
§ 50.10.
-
On November 6, 1995, Mark Savit, AKZO Counsel, wrote MSHA
seeking guidance regarding the enforcement of 30 C.F.R. §
57.11050 (the “Savit letter”). (Index of Documents, Tab N). -
On December 8, 1995, MSHA Administrator Vernon Gomez
respondent to Mr. Savit’s letter of November 6, 1995 (the
“Gomez Response”). (Index of Document, Tab S). -
On December 15, 1995, prior to the Government budget
shut down, counsel for AKZO informed counsel for the
Secretary, that AKZO would plan a hoist outage over the
holidays that would provide a test case for this litigation.The Planned Hoist Outage of December 24, 1995
(Docket Nos. LAKE 96-65-Rm and LAKE 96-66-RM ) -
A planned outage of the production hoist occurred on
December 24, 1995. The hoist computer log indicates that it
was shut down at approximately 12:53 a.m., in order to
“shorten” all four of its hoist ropes. According to the
hoist log, the hoist was not put back into service until
approximately 3:34 a.m., December 25, 1995. -
At the time that the ropes were shortened, they had not
yet stretched beyond the limit allowed by MSHA’s retirement
criteria, at 30 C.F.R. § 57.19024, or by the manufacturer
for safe operation. -
It is possible that the hoist could have been put back
into operation in less than the time that it was out of
service. However, during that time, there was a period
during which it would not have been possible to put the
hoist back into service in less than one hour and miners
were not evacuated from the mine. -
During the shift on which these events occurred, there
were three miners underground performing work unrelated to
the work on the production hoist: a mechanic, an
electrician, and a foreman. This work consisted of checking
pumps and fans and preventive maintenance on the service
hoist. No salt extraction occurred during this shift nor
did any cutting or welding occur during this shift. -
This hoist incident was not immediately reported to
MSHA, however a fax was received at the MSHA Newark Office
on December 26, 1995.6
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33. Following AKZO’s report of these incident, MSHA
Inspector Donald Foster traveled to the mine on December 28,
1995, and started his investigation. He was accompanied by
MSHA Inspector Jim Strickler during part of his inspection.
34. Inspector Foster conducted interviews of both hourly
and management employees at the mine and by telephone on
December 28 and 29, 1995, and January 4, 5, 9 and 11, 1996.
Management employees were accompanied by AKZO counsel during
their interviews. On January 25, 1996, Inspector Foster
issued Citation No. 4546275 citing a violation or 30 C.F.R.
50.10, and Citation No. 4546276, citing a violation of 30
C.F.R. 57.11050(a).
Discussion
Docket No. LAKE 96-45-RM
Section 104(a) non-”S&S” Citation No. 4100787, issued at
2:45 p.m., on November 28, 1995, cites an alleged violation of
section 103(j) of the Act, and mandatory reporting standard 30
C.F.R. 50.10, and states as follows:
At about 11:56 p.m., on November 9, 1995, the
production hoist was disabled for approximately 50
minutes while two of four hoist ropes were
shortened. The rope shortening interfered with
the use of the hoist equipment for more than
thirty minutes while miners were underground.
MSHA was not immediately notified of the
interruption.
Docket Nos. LAKE 96-125-M, LAKE 96-65-RM and LAKE 96-80-RM
Section 104(a) non-”S&S” Citation No. 4546275, issued at
8:00 a.m., on January 25, 1996, cites an alleged violation of
section 103(j) of the Act and mandatory reporting standard 30
C.F.R. 50.10, and states as follows:
On December 24, 1995, at about 12:53 a.m., the
production hoist was damaged in that it was unavailable
for service due to maintenance to shorten the four
stretched hoist ropes. This damage to the hoist
interfered with its use for more than 30 minutes and
MSHA was not contacted immediately. The requirement to
report this type of hoisting accident had been
communicated to the mine operator by MSHA inspectorate
in the past and to the company’s lawyer through an MSHA
letter dated December 8, 1995 (LAKE 96-65-RM).
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Section 104(a) non-“S&S” Citation No. 4546323, issued at
4:00 p.m., on January 31, 1996, cites an alleged violation of
section 103(d) of the Act and mandatory reporting standard 30
C.F.R. 50.20(a), and states as follows:
The mine operator failed to complete and mail
to MSHA as required 7000-1 forms, for hoist damage
which became immediately reportable when the
production hoist was taken out of service for
maintenance faults or damage, which exceeded 30
minutes. The outages were reported to MSHA by
telephone for the following dates but no completed
7000-1 reports have been received. The operator
had been informed in the past about the reporting
requirements and has failed to submit the reports.
The dates are as follows: July 21, 1995,
August 8, 1995, September 26, 1995, October 16,
1995, October 30, 1995, November 9, 1995, December
17, 1995, December 23, 1995, December 24, 1995 and
December 28, 1995 (LAKE 96-80-RM).
Docket No. LAKE 96-66-RM
Section 104(a) non-”S&S” Citation No. 4546276, January 25,
1996, 8:03 a.m., cites an alleged violation of 30 C.F.R.
57.11050(a), and the cited condition or practice states as
follows:
On December 24, 1995, at about 12:53 a.m.,
the production hoist was not available for use for
approximately three hours and thirty-seven
minutes. Miners continued to work underground
performing tasks that were unrelated to the hoist
rope shortening operation. The production hoist
is part of one of the two escapeways at this mine.
The mine operator therefore failed to comply with
this standard because the miners who were
underground were not provided with two properly
maintained escapeways to the surface to use in the
event of an emergency for a period in excess of
one hour. During part of the time that the
production hoist was out of service, the service
hoist (the primary escapeway) was also out of
service for a maintenance procedure which did not
result in its use being interfered with for over
30 minutes. However, during that time both
escapeways were not in service.
This incident was staged to test MSHA’s
enforcement of this mandatory safety standard.
MSHA interpretation of this standard had been
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communicated to the mine operator by inspectorate
previously and to their lawyer in an MSHA letter
dated December 18, 1995.
Deposition Testimony
MSHA Inspector Donald J. Foster, Jr. , has served in that
capacity since May 1991, and he confirmed that Mr. C. Okey
Reitter is his supervisor. Mr. Foster has inspected the
Cleveland Mine and is familiar with the hoists that are in use.
He has taken a class dealing with ropes and hoists at the mine
academy, and has prior mining industry experience (Tr. 4-16).
Mr. Foster stated that he investigated the hoist incident
that occurred on November 9, 1995 (Citation No. 4100787), made
notes, and reviewed them with Mr. Reitter. He confirmed that
Mr. Reitter issued the citation (Tr. 17-22). Although the
citation states that the hoist was disabled for approximately 50
minutes, Mr. Foster confirmed that this is not mentioned in his
notes and he did not know where this information came from (Tr.
23). Based on statements he received during his investigation,
he would say that the hoist was disabled for 40 minutes (Tr. 24).
He confirmed that he did not review the citation, but believes
that it is consistent with what he found during his
investigation, except for the difference between 40 and 50
minutes that the hoist was down (Tr. 26). He believed the
citation was justified.
Mr. Foster explained his understanding of section 50.10, as
follows at (Tr. 28):
Q. The 30 minutes that’s necessary to
trigger the reporting requirement in
section 50.10 is computed with regard to
the amount of time it takes to put the
hoist back in service . . . . In other
words, I could leave the hoist down all
day; but if I can get it back running in
15 minutes, I don’t have to report it
under section 50.10. Is that right?
A. Yes. To my understanding of that, Yes.
Mr. Foster stated that it makes no difference why the hoist
is disabled for more than 30 minutes, or whether it is planned or
unplanned. As long as it is unavailable for over 30 minutes, it
is reportable. If power was not available to the hoist due to a
power substation problem and the hoist was down for over 30
minutes, it would be immediately reportable (Tr. 29-30). He did
not believe that ice in the shaft, which he considered a natural
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occurrence, and which may render the hoist inoperable for more
than 30 minutes, would be reportable, but he was not sure (Tr.
30).
After reviewing a MSHA Program Circular, “Report on 30
C.F.R. Part 50,” December 1986 (Exhibit C-10, Tab F), he stated
that according to this circular, ice in the shaft that results in
hoist outage for more than 30 minutes would not be reportable
(Tr. 32). The circular reference in question was read into the
record (Tr. 31-32), and it states as follows:
Q. What constitutes “Damage to hoisting
equipment in a shaft or slope which endangers
an individual or which interferes with the
use of the equipment for more than 30
minutes?”
A. Damage may be considered to be caused by some
accident that involved hoisting equipment, or
resulting from hoisting equipment failure. A
natural occurrence such as ice in a shaft may
cause the shaft and hoist to be shut down for
more than 30 minutes. However, where no
accident occurs, equipment is not damaged,
and no individuals were endangered, the
natural occurrence would not itself be
reportable.
Mr. Foster confirmed his understanding that ice in the shaft
that results in the unavailability of the hoist, regardless of
its duration, does not have to be reported, as long as there is
no hoist damage, accident, or endangerment to miners (Tr. 33-34).
Mr. Foster stated that the hoist was out on November 9,
1995, because “they had experienced a stretch in the ropes, to
the ropes, and they were tightening them up.” He did not know if
the hoist was malfunctioning at that time (Tr. 34). In response
to a question of how the hoist was damaged at that time, Mr.
Foster stated as follows at (Tr. 35-37):
* * * * So those ropes at that point were
stretched where they needed to take the slack
out of them. Those ropes were stretched.
Those ropes were damaged.
Q. Do you know for a fact -- and I think you
said you did not know for a fact -- that the
ropes were stretched to such a point that
they had a skip that already exceeded the
location they were supposed to go to?
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A. No, I don’t.
Q. Let’s go back. Let’s suppose that the rope-
adjusting exercise was undertaken before the
ropes had stretched to the point that they
exceeded that limit. In other words, they
were undertaken as a matter of preventive
maintenance. It was done before there was
any damage to the rope. Okay?
A. Okay.
Q. Then how is the hoist damaged?
A. If we’re looking at a situation where they
preventively -- or for preventive maintenance
purposes were taking this slack out, in my
opinion, if there was enough slack to take
out of there, then it had to have exceeded
the point where they wanted it to be. Okay?
So there was already stretching of the rope
in order to take the initiative and to go
through this whole process to eliminate it.
Q. Are you willing to say that the work that was
undertaken that you investigated in this
regard was preventive maintenance? Do you
know whether it was or not?
A. No.
* * * *
So in my opinion, preventive maintenance is
the troubleshooting, the visual, the looking
at it. Once you’ve started the mechanics on
something, in my opinion the damage has
started.
Mr. Foster confirmed that the purpose of changing his
automobile oil is to prevent engine damage, and he would consider
this to be preventive maintenance. He would presume that his
engine is not damaged, and he does not check the engine to
determine any damage (Tr. 37-40).
Mr. Foster confirmed that he issued Citation No. 4546276 on
December 24, 1995, citing a violation of section 57.11050(a),
which requires at least two separate functioning escapeways or
methods of getting in and out of a mine (Tr. 41). In a mine with
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two shafts and two hoists, a violation of section 57.11050(a)
would occur “when either one of the hoists go down, and it cannot
be put back into service within an hour” (Tr. 41). He conceded
that the “one-hour” requirement is not stated in the regulation,
and that it is derived from the one-hour oxygen supply of a W65
self rescuer (Tr. 42).
Mr. Foster explained his reasons for issuing the citation as
follows at (Tr. 45-64).
A. Through the statements of the people
involved, it was determined that the
production hoist had exceeded an hour from
the furthest point that it could be put back
into service. The four ropes had been, all
four ropes had been involved; and if they
had, at the very furthest point that they had
this apart with the eight clamps off, the
other ones loose, the chain falls on, to
reverse that process exceeded an hour.
Q. And at that point, in your interpretation of
the standard, what was the violation?
A. The violation was that, number one, that the
occurrence exceeded an hour and was not
immediately reported; and that it also
exceeded an hour, it was longer than an hour
that it could be brought up even in an
emergency situation. Okay? And that
violated having the two ways out of the mine
that had your continuous escapeways to the
surface.
Q. In your judgment is there a requirement that
everybody be evacuated from the mine except
for those people working on the hoisting
equipment at that time after an hour?
A. In my understanding, once that hoist has
become disabled and is realized it is going
to be longer than an hour to get it back in,
then those people should be given orders to
evacuate at the time that that’s determined
to be, the damage, the extent, to exceed an
hour.
Mr. Foster stated that section 57.11050(a) has no specific
language that requires mine evacuation, and he was aware of no
standard that requires automatic evacuation of the entire mine
within any given time period (Tr. 53-54). However, he would rely
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on section 57.11050(a) to accomplish a mine evacuation. He
further confirmed that a section 104(a) citation does not require
any withdrawal of miners from the area of a violation, or a mine
evacuation. However, he then stated that the absence of two
escapeways would require a mine evacuation, and in his opinion,
the section 104(a) citation he issued “was a withdrawal order”
because the standard requires two or more separate and properly
maintained escapeways to the surface (Tr. 55). He further
believed that a section 104(a) citation would require that the
other escapeway be repaired and made available within one hour,
even though this is not stated in the regulation (Tr. 56).
Mr. Foster stated that “a reasonable amount of time” to
abate a section 104(a) citation for a violation of section
57.11050(a), would be one hour to repair the other escapeway
regardless of what is wrong with the hoist, or what the other
people underground are doing, and no matter what the likelihood
of a fire underground might be (Tr. 57, 60-61).
Mr. Foster confirmed that although the second escapeway
service shaft in the instant case was working and nothing would
have prevented miners from escaping a fire using that escapeway,
he still believed that a one-hour abatement time was reasonable
(Tr. 59).
Mr. Foster stated that if he found a situation where the
production hoist was down and was told that it would take two
hours to repair it and miners have not been withdrawn, he would
issue a section 104(a) citation citing a violation of section
57.11050(a), and would require an abatement time of one hour to
evacuate the mine to eliminate the hazard (Tr. 63-64). He knew
of no other situations where he has issued section 104(a)
citations and required the withdrawal of miners to terminate the
citation (Tr. 65).
Mr. Foster stated that he has seen a portion of the February
22, 1990, memorandum from District Manager Salois (Exhibit C-8,
Tab G), but never received it through MSHA channels or told to
use it to enforce section 57.11050(a). (Tr. 70, 73). He
confirmed that he has always based his one-hour evacuation
interpretation of section 57.11050(a), on the fact that the W65
self rescuer would enable a miner to get out of the mine within
an hour using that device (Tr. 74). He confirmed that part of
his understanding in this regard came from his experience and
interpretation that he learned when he worked at a coal mine, and
this was later confirmed from conversations with other MSHA
inspectors, including his supervisors (Tr. 75-76).
In response to questions by MSHA’s counsel, Mr. Foster
stated that if a hoist used as an escapeway is broken, miners are
exposed to the hazard of not having two well maintained
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escapeways available for their use. Apart from repairing the
hoist, evacuating the mine will eliminate the hazard (Tr. 80.).
C. Okey Reitter, Jr. , MSHA Supervisory Inspector, Newark,
Ohio office, testified that he has never been to AKZO’s Cleveland
mine (Tr. 16). He confirmed that he issued Citation No. 4100787
on November 28, 1995, because AKZO failed to immediately report a
hoist outage which exceeded 30 minutes (Tr. 19). He identified a
copy of his notes which reflect that the hoist outage was
reported by fax by AKZO’s counsel on November 10, 1995, (Tr. 23).
He received the information which is stated as the “condition or
practice” in the citation from inspector Foster who went to the
mine to check out the situation (Tr. 24). Mr. Foster determined
that the hoist was down for 50 minutes after speaking with the
company and the miners. He believed the 40 to 50 minutes time
frame “was probably what we came up with how long it would have
taken to put the hoist back into service if an emergency
occurred” (Tr. 28). He confirmed that Mr. Foster’s notes
reflected different down times for the hoist in question (Tr.
29).
Mr. Reitter expressed his understanding of section 50.10, as
follows at (Tr. 32):
If there is a hoist outage, accident or
incident, that exceeds being able to put the
hoist back into service, that exceeds 30
minutes, that incident becomes immediately
reportable to MSHA.
He further explained at (Tr. 33-34):
Q. Okay. That 30 minutes, is that in your
interpretation of the standard, is that the
actual time the hoist is out?
A. That is the time that it would take to put it
back into service.
Q. Go ahead
A. If the hoist were to be out one hour, let’s
say we had the hoist shut down for one hour,
and we were able to, any time during that one
hour we were able to put it back into service
within 30 minutes, that would not have been
immediately reportable.
Q. So if the hoist were out for all day, if the
hoist was shut down all day, but I could put
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Page 15
it back into service in less than 30 minutes,
then that is not a reportable hoist outage?
A. Correct.
Mr. Reitter stated that his interpretation of section 50.10,
is referred to in the December 8, 1995, letter from Vernon Gomez
to AKZO’s counsel where it addresses the 30 minutes loss of
service (Tr. 34-35). This is the only written guidance that he
was aware of with respect to the 30 minute immediately reporting
requirement (Tr. 40).
Mr. Reitter stated that the cited hoist was disabled for use
because two of the four tail ropes were being adjusted to equally
distribute the rope lifting capacity and he explained the
tightening procedure (Tr. 41). He confirmed that prior to this
work the hoist was functioning fine and the work was performed to
preclude any future problem (Tr. 42).
Mr. Reitter stated that nothing was broken on the hoist when
it was taken out of service and put back together again (Tr. 45).
In explaining why he believed the hoist was “damaged” within the
meaning of the definition of “accident” found in section
50.2(h)(11), Mr. Reitter stated as follows at (Tr. 42-44):
Q. Now I want you to explain to me how the hoist
was damaged.
A. Any time that I can’t use something, it’s
damaged.
* * * *
Q. What I want to know is how the hoist was
damaged in this case?
A. It interfered with the use of it.
Q. But what was the damage to it? What was
wrong with it? You just explained to me your
--
A. Once it was taken out service, it’s damaged.
I mean once it’s -- To me, I would consider
the hoist damaged because I could no longer
use it. It was not a usable thing to me.
So there was damage to it.
Q. So any time you can’t use the hoist for more
than 30 minutes, then it’s damaged, right?
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Page 16
A. If I can’t put it into service.
Q. So if the power were out to it, say, at the
substation level more than 30 minutes and I
couldn’t get it on for more than 30 minutes,
that would be damage, would it?
A. Yes, I believe so.
* * * *
Q. So what you’re saying is that any condition
that renders the hoist unusable for more than
30 minutes, any condition, is damage to the
hoist in your understanding?
A. In my understanding, if I could not use the
hoist as needed, if it’s down and I can’t use
it because I can’t travel -- It’s like a
timber beam being broken or ice in it, then
if it exceeded 30 minutes, then I would
assume it would be immediately reportable.
Mr. Reitter agreed that an automobile oil change is done to
prevent engine damage, and even though the car is unavailable for
use while the oil was changed he would not consider the car to be
“damaged” (Tr. 49).
Mr. Reitter stated that in his experience an “accident” is
an “unplanned event” (Tr. 51). He confirmed that he consulted
with Mr. Salois before issuing the citation, and “at different
times we ran it by different people,” including Mr. Narramore in
MSHA’s Arlington office, Mr. Vernon Gomez, MSHA counsel Fitch,
and his assistant district manager (Tr. 52-54).
Mr. Reitter confirmed that he supervised Mr. Foster in the
issuance of Citation No. 4546276, on January 25, 1996, for a
violation of section 57.11050(a), and that he and several
individuals discussed it before it was issued, including Mr.
Salois, Mr. Narramore, Mr. Gomez, and counsel Fitch (Tr. 55-57).
Mr. Reitter stated that section 57.11050(a), requires two
operative escapeways at all times (Tr. 58). He then stated that
one escapeway could be unavailable “for basically one hour,”
which is the normal time that self rescuers are good for in the
event of a mine fire (Tr. 56-60). He confirmed that subsection
(b) requires a refuge for miners who cannot reach the surface
through at least two escapeways within an hour, and he conceded
that its legal to leave people underground for more than an hour
from evacuation (Tr. 62).
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Page 17
Mr. Reitter confirmed that the text of section 57.11050(a),
does not state that the mine must be evacuated in one hour.
Apart from the Gomez letter to AKZO’s counsel, he knew of no
other written MSHA directive requiring the evacuation of the mine
within an hour (Tr. 64). He further stated that as an inspector,
he was always told by other inspectors and by “word-of-mouth“
that “they needed to be able to evacuate the mine within an hour”
(Tr. 65).
Mr. Reitter stated that the one-hour time limit to evacuate
a mine starts “from the time I realize that I can’t get the hoist
back into service within an hour” (Tr. 65). After discussing a
number of “case-by-case” scenarios (Tr. 66-70), with respect to
when the one-hour evacuation must be made, Mr. Reitter stated as
follows at (Tr. 71):
Q. Okay. But now I thought you -- I am very
confused. I understand that answer. Once you
realize that you cannot evacuate the mine -- Once
you realize you can’t put the hoist back in
service in an hour, then you must begin evacuation
procedures at that moment.
A. Yes.
Q. At that moment, okay. If it takes you more than
an hour to evacuate the mine to start with, is it
or is it not your statement that you must begin
evacuation procedures immediately when one hoist -
- when you are down to one escape route?
A. I would have to ask for an interpretation of that.
Q. Who would you ask?
A. I would start with Jim Salois.
Mr. Reitter was not aware of any MSHA regulations that
require the automatic evacuation of all miners (Tr. 72-730). He
confirmed that the issuance of a section 104(a) or (d) citation
does not require the withdrawal from the area where the violation
has occurred or the evacuation of the mine (Tr. 74). The
circumstances under which MSHA can require evacuation are very
limited and are based on specific hazard exposure (Tr. 75). He
agreed that the rope adjusting activities taking place when the
citation was issued was part of hoist maintenance. He confirmed
that none of the “hour language” is in the regulation and some of
it is from the December 8, 1995, Gomez letter, and “from
direction of what other people in the agency that review policies
and procedures are interpreting it as” (Tr. 81-82).
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Page 18
Mr. Reitter stated that prior to the Gomez letter, he
believed that if there were no escapeway for one hour there would
be a violation and he would issue a section 104(a) citation which
does not require an automatic evacuation. The citation would be
abated by providing a second means of escape or putting the
escapeway into service. He would establish an abatement time
based on the hazards presented to employees working underground.
In that scenario, he would provide a short abatement time to
correct the condition, and if it is not corrected, the work area
that was directly affected would have to be evacuated. He would
use a section 104(b) order, on a case-by-case basis, to evacuate
the work area and that order would require the people affected by
the hazard to be removed. (Tr. 82-84).
Mr. Reitter stated that he first became aware of the
February 22, 1990, Salois memorandum approximately a year and a
half ago after he became a supervisor in 1992. He was unaware of
the memo for a year while he was a supervisor and became aware of
it when AKZO advised him that the memo was being recalled
(Tr. 85, 90). He explained that he learned of the Salois policy
sometime in 1994 and possibly as early as late 1993, and the
inspectors in the office told him that they were following that
policy, and had he known of the policy he would have followed it.
However, he never had to use the policy because no hoist outages
occurred that he was aware of (Tr. 94-95).
Mr. Reitter stated that the high negligence finding
associated with the January 25, 1996, citation was based on the
fact that the incident was staged to test MSHA’s enforcement of
the standard and MSHA’s interpretation had previously been
communicated to AKZO and its attorney by letter dated December 8,
1995. He concluded that AKZO knew that the cited condition would
be a violation and intentionally violated the law (Tr. 102-103).
He agreed with the non-”S&S” finding (Tr. 106). He also agreed
that the service hoist was not unavailable for any period longer
than 30 minutes (Tr. 110).
MSHA metal and non-metal Inspector James D. Strickler
testified that he accompanied inspector Foster to the mine on
January 4 and 5, 1996, to interview company officials with
respect to hoist citation No. 4546276, issued on January 25,
1996. Mr. Foster told him that AKZO wanted a citation to issue
so it could take it to court and he went with Mr. Foster to take
notes of the interviews. He reviewed the citation and agreed
with it, including the finding that an injury or illness was
unlikely (Tr. 4-12).
Mr. Strickler stated that he has never seen the Salois
memorandum but has heard about it from other inspectors in his
office who told him that at one time miners were allowed to work
underground until the end of the shift. This was not the case in
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Page 19
Illinois where the Sperry U.S. Gypsum Company evacuated miners
immediately (Tr. 11, 15-16). He arrived at his field office in
1993, and the Salois memorandum had previously been rescinded and
has never been used since he has been there. (Tr. 17-18).
Mr. Strickler stated that section 57.11050, requires two
fully functional escapeways at all times. If he were to inspect
a mine with two escapeway hoists and one is unavailable or
unusable for any reason, the operator would have a 30 minute time
period before deciding to bring people out. If the hoist is down
for more than 30 minutes it must be reported to MSHA. The
operator must then evacuate the mine “unless they are up and
running within an hour.” Once MSHA is notified after the
expiration of the initial 30 minutes, if the operator determines
that the hoist cannot be repaired within the next 30 minutes, it
must then evacuate people at that time. This understanding on
his part is not in writing or part of the standard, and he
learned it from other inspectors and his experience. The
evacuation must begin within the hour because the miners’
breathing apparatus, the P65 and the MSAW65, is only good for an
hour (Tr. 20-22).
Mr. Strickler stated that a “reasonable abatement time” for
a violation is left to the inspector’s discretion after asking
the operator how long it will take to correct the condition, and
he has used his experience to make this determination. He had no
hoist experience, but would ask an operator about any hoist
problem and how long it would take to repair it. He did not
believe that section 104(a) required the withdrawal of miners
while a violation is being abated (Tr. 23-25).
Mr. Strickler agreed that if an accident occurred as a
result of the violation it could reasonably be expected to be
fatal, and his opinion was based on his underground experience
and the fact that a mine fire could cause a fatality. He
confirmed that one of the escapeways was functioning and he would
reasonably expect that everyone would be able to escape a fire.
He agreed that the mine has no history of serious fires, but
non-fatal fires have occurred. He confirmed that three people
were working underground on the night of the incident in question
and they were not exposed to any hazards other than those they
are normally exposed to doing their normal job. He agreed they
were exposed to less hazards because there was no active mining
taking place (Tr. 26-28).
In response to MSHA’s counsel’s question, Mr. Strickland
stated that if a hoist is out in an escapeway, it is unusable and
broken, and miners who are underground must be evacuated. He
would issue a citation for not evacuating the mine and because
there was only one escapeway. A reasonable time to abate this
violation would be one hour because “that’s all their life
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Page 20
support is in my opinion,” and he has found that an hour can be a
reasonable time to evacuate at AKZO and other mines that he has
been in (Tr. 28-30).
In response to further AKZO questions, Mr. Strickler stated
that the word “evacuation” is not part of section 57.11050(a),
and he is aware of no Part 57 regulations that require a mine
evacuation for non-compliance. He confirmed that he has no
authority to withdraw miners under section 104(a) of the Act, but
believed that section 57.11050 gives him that authority (Tr. 31-
32).
Mr. Strickler stated that a fire burning out of control must
be reported to MSHA if it goes on for more than 30 minutes, but
an evacuation is not required. However, in the event of such a
fire or emergency, an operator is supposed to evacuate miners,
but not from the entire mine. If the mine is not evacuated, a
separate order would be required to evacuate the mine in the
event a fire is out of control. However, based on his
“experience,” a separate order to evacuate would not be required
for a violation of section 57.11050 (Tr. 33).
MSHA metal/non-metal mine Inspector Herbert D. Bilbrey ,
testified that he conducted a regular inspection of AKZO’s mine
on November 2, 1995, with Inspector Bill Backland and interviewed
people regarding a hoist shutdown which required possible
evacuation of the mine. He explained that section 57.11050,
requires an operator to maintain two fully functional escapeways
at all times, but that the regulation does not state that a mine
has to be evacuated if one of the escapeways is not functioning
(Tr. 8-9).
Mr. Bilbrey stated his understanding of when a citation
pursuant to section 57.11050(a), would have to be issued as
follows at (Tr. 11):
A. The mine has a time limit to evacuate the
mine. There could be several different
cases. You would have to take each case by
case. But if it was determined that the
hoist could not be put back on line within
the hour, then evacuation had to start.
Q. If the hoist couldn’t be put back on line
within an hour, when does the evacuation
begin?
A. If the company had then determined it
couldn’t be.
20
Page 21
Q. So how long does the company have to
determine that the hoist can’t be put back in
service?
A. Well, there was a floating time period which
would give them an hour to make that
determination, and then an hour after that to
evacuate the mine.
Q. So they have one hour to determine if they
can get the equipment working again; and then
once they make that determination, they have
an hour from the time they decide that can’t
be put back in service to put it back in
service.
A. Right.
Q. And where is that policy stated?
A. There’s no written policy that I am aware of,
that I know of.
Mr. Bilbrey stated that he was unaware of the Salois
memorandum of February 22, 1990, and he learned about the
unwritten policy to evacuate a mine when a hoist is out from a
staff meeting and verbally from his lead supervisor Robert
LeMaster, and discussions with Mr. Reitter (Tr. 12). He heard
about this policy approximately a year ago, and prior to that the
issue never came up in the first three years in his district (Tr.
13).
Mr. Bilbrey stated that it was his understanding that a
hoist that is out for 30 minutes or more is considered to be an
accident, but he could not explain how a hoist that is taken out
of service for preventive maintenance is considered to be an
accident. He then stated that he did not believe that a hoist
that is taken out of service for preventive maintenance is an
accident (Tr. 15).
Referring to the section 50.2(h) definitation of an
accident, Mr. Bilbrey stated that preventive maintenance is
“something that would prevent a breakdown” and something that
would be done before the equipment is broken. He defined
“damage” as “inoperative” and stated that this would not include
equipment that is intentionally taken out of service for
maintenance purposes (Tr. 15).
In response to further AKZO questions, Mr. Bilbrey stated
that an unplanned outage of a hoist must be reported “if it’s 30
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Page 22
minutes.” If power is cut off to the hoist for more than 30
minutes, it would be a reportable accident. If ice were on the
shaft and the hoist was inoperable for 30 minutes or more, he did
not know if this would be reportable and he would have “to look
in the books” and “I would run it by my supervisor” (Tr. 22-23).
MSHA Inspector Dale A. Backland , has served in that capacity
for over 21 years and Mr. Reitter is his supervisor. He has
inspected AKZO’s mine on more than 30 occasions. He was at the
mine for a regular inspection on November 2, 1995, and spoke to
plant manager Higgins who informed him that he wanted him to
issue a citation for a hoist outage on the previous evening.
Mr. Backland stated that he contacted Mr. Reitter and Inspector
Bilbrey explained the situation to him. Mr. Reitter told them
that he would contact the district office to determine what
further steps would be taken (Tr. 6-11). Mr. Backland agreed
with Mr. Bilbrey’s conclusion that no violation existed due to
the fact that the hoist could be part back on line and the event
was planned (Tr. 11).
Mr. Backland stated that section 57.11050(a) requires at
least two or more fully functional hoists at all times. A hoist
that is taken out of service for planned preventive maintenance
is not necessarily a violation of that section, depending on how
fast it can be put back into service in the event of an
emergency. In a planned event, the hoist needs to be back in
service in “a one-hour period” (Tr. 12). If the planned
maintenance time is exceeded and it takes more than an hour, he
would expect the mine to be evacuated (Tr. 13-14). He confirmed
that section 57.11050(a) does not discuss mine evacuation, and
his authority to require evacuation if it takes more than an hour
to repair a hoist relates back to the self-rescuer which has a
life period of one hour when activated. This policy is not in
writing, but he believes it is district policy, but did not
recall who told him about this policy (Tr. 15).
Mr. Backland reviewed the Salois memorandum and confirmed
that he was aware of it in 1990, but did not believe it was the
policy in his district. However, when he saw the memo in 1990,
it was his understanding that regarding the time element, it
should be followed. However, he never had to implement the
policy because he never had a situation that required him to do
so (Tr. 16).
Mr. Backland stated that a planned hoist outage probably
would not be reportable under section 50.10, if the hoist can be
activated within a reasonable amount of time, 10 to 15 minutes,
for evacuation in the event of an emergency. An unplanned event
that causes a hoist to go out in excess of the 30-minute required
period would be reportable, and this includes a power outage at a
site off mine property (Tr. 17-18). He stated that in fixing a
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Page 23
reasonable abatement time to restore the equipment to service,
the circumstances must be evaluated (Tr. 18).
Mr. Backland was of the opinion that pursuant to the
reporting requirements of section 50.10, and the definition of
“accident” found in section 50.2(h), preventive maintenance that
takes more than 30 minutes is not an accident. He believed that
preventive maintenance could take place for a full shift. He
stated that maintenance that takes a hoist out of service for
more than 30 minutes need not be reported if the hoist can be put
back in service within a reasonable amount of time to evacuate
the mine. There is no set time during which the maintenance has
to be completed or in which the hoist has to be put back in
service (Tr. 20-21).
Mr. Backland stated that if a hoist is taken out of service
in order to shorten or adjust the ropes, and it takes more than
30 minutes, it “is reportable due to the fact that you don’t have
a secondary escapeway available” (Tr. 22). He stated that the
stretching of a hoist rope is normal and does not mean that the
hoist is truly damaged or not functioning properly (Tr. 23). In
response to a question as to whether the adjustment of an
undamaged hoist rope that has been subjected to some stretching
is a reportable accident, Mr. Backland responded as follows at
(Tr. 24):
A. Well, you’re taking it out of service for
more than 30 minutes to conduct this and --
It’s a tough question to answer. We’re
talking about reportable, right? I don’t
know. I would probably have to converse with
my supervisor on that.
Vernon R. Gomez, MSHA Administrator for Metal and Non-Metal,
testified that he supervises all of the agency metal and non-
metal enforcement operations, and part of his duties are to
ensure consistent regulatory enforcement policies. He recently
had occasion to consider the enforcement policy with regard to
section 57.11050, because of his involvement with the instant
litigation (Tr. 7-8).
Mr. Gomez confirmed that “he was in the loop” in the
discussions of Citation Nos. 4546276 and 4546275, issued on
January 25, 1996, citing violations of sections 57.11050(a) and
50.10, for a hoist incident on December 24, 1995, and Citation
No. 4100787, issued on November 28, 1995, citing a violation of
section 50.10, for a hoist incident on November 9, 1995. He
stated that he reviewed the citation language that describe the
conditions and probably saw more than one draft, but did not
recall recommending any changes, or reviewing the gravity or
negligence findings (Tr. 10).
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Page 24
Mr. Gomez stated that he has never been in AKZO’s Cleveland
Mine or in any salt mines in that area (Tr. 11). He confirmed
that he became aware of the Salois memorandum of February 8,
1990, and the draft of that memorandum approximately a year ago
(Tr. 11-13). He was concerned about the memorandum because it
was contrary to what he considered the policy to be (Tr. 13).
Mr. Gomez stated he was district manager of the Rocky Mountain
District in February 1, 1990, and his enforcement policy
concerning section 57.11050, was not like the policy stated in
the Salois Memorandum (Tr. 14). His policy was to require two
properly maintained escapeways to the surface at all times, and
if this could not be done, miners had to be evacuated. If one
escapeway was lost “and could not be restored where we could get
the people out of the mine within an hour” a violation of section
57.11050, would occur (Tr. 15).
Mr. Gomez stated that if he found only one functioning
escapeway in a mine, he would issue a citation. If he did not
have two escapeways out of the mine within an hour, he would
issue an imminent danger order and have the mine evacuated. The
imminent danger and hazard are that “I have to be able to get the
people out and they have to have two separate escapeways to the
surface” (Tr. 16-17).
Mr. Gomez stated that MSHA policy concerning section
57.11050, requires the shutdown of mining operations in the event
one of two escapeway hoists is down and miners cannot evacuate
within an hour. This would be done through an imminent danger
order regardless of the number of people who may be doing some
work unrelated to the repairing of the disabled escapeway. He
described the nature of the imminent danger as “the possibility
of something occurring and not being in compliance with the two
escapeways to the surface” (Tr. 19-21). He confirmed that the
MSHA policy requiring evacuation if the hoist cannot be made
available within an hour is based on section 57.11050, and not
the time it might take to abate the violation (Tr. 23).
Mr. Gomez was not sure why Mr. Salois rescinded his
memorandum, and he stated that he checked with everyone who may
have been a district manager, and the current managers, to
determine whether they had a policy such as the one discussed by
Mr. Salois, and he found no such policy (Tr. 29).
Mr. Gomez stated that his December 8, 1995, letter to AKZO
counsel Savit was drafted and reviewed with his safety division
staff and states MSHA’s current enforcement policy concerning
section 57.11050. He stated that the letter was distributed to
all MSHA districts except for the North Central District, and
this was due to “a slipup” (Tr. 32). He did not know if the
letter was distributed to any mine operators, but copies are
available for hand out by the inspectors. The policy
interpretation contained in the letter is not in writing anywhere
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Page 25
else, and the contents of the letter was put together by MSHA
headquarters personnel, with no input from anyone outside the
agency. Except for the Solicitor’s office, the letter was not
shown to others for comment before it was sent out (Tr. 34-35).
Mr. Gomez stated that he was familiar with Citation No.
4100787, issued on November 28, 1995, and Citation No. 4546275,
issued on January 25, 1996, for violations of section 50.10, and
he confirmed that MSHA’s position is that a hoist that becomes
unavailable for a period of more than 30 minutes, that is, for a
period of 30 minutes during which it could not become available,
must be reported to MSHA no matter the reason for its
unavailability (Tr. 36).
With regard to his prior statements concerning the use of an
imminent danger order to evacuate miners, Mr. Gomez further
explained that an inspector could issue a citation with a short
abatement time, and a (b) order, “in other words, repair the
condition and get the people out. Then we would write you the
order and remove the people” (Tr. 38). He would consider the
lack of two properly maintained escapeways to the surface to be
an imminent danger, “in and of itself” (Tr. 39).
Mr. Gomez stated that based on his December 8, letter,
inspectors do not have the discretion to issue a section 104(a)
citation with an abatement time exceeding one hour, and the
actual abatement time would be less than an hour because “I have
to be able to get people on the surface within an hour,”
regardless of the number of people underground or the activity
they are engaged in (Tr. 39-41). He did not believe that the
mining industry is confused about its responsibility if there are
two escapeways and one is down for any particular reason (Tr. 45).
With regard to the Salois policy memorandum, Mr. Gomez
stated that during the five years he was a district manager, and
the six years he was a subdistrict manager, he never heard of the
regulatory interpretation stated in that memorandum and he
believed it is internally inconsistent. He saw no unique reason
for allowing miners to work underground with one escapeway for
the rest of a shift but not send the next shift underground with
only one available escapeway. He believed that both shifts are
entitled to escapeways, and that miners cannot be underground
doing work other than fixing a problem if there is only one
escapeway in a producing mine (Tr. 50-51).
Mr. Gomez did not believe that AKZO’s position in the
instant litigation is reasonable, and he confirmed that his
December 8, letter articulates his understanding of the
regulations as they relate to escapeway maintenance and
reporting. Contrary to his earlier statements concerning the
policy aspects of his letter, he explained as follows at (Tr.
52):
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Page 26
Q. Now that letter doesn’t state any policy,
does it?
A. No.
Q. There is a method for instituting agency
policy, isn’t there?
A. Yes.
Q. Do you always issue policy when you address a
question that is raised by somebody?
A. No. There’s different ways of handling it,
such as that letter.
Mr. Gomez confirmed that the issuance of MSHA’s Program
Policy Manual in 1987, revoked any policy not included therein,
and any prior existing policy would be inoperative by the
issuance of the manual (Tr. 54). The Salois memorandum was not
existing national policy, but it is possible that such policy
may have existed in some form that he was not aware of (Tr. 56).
Mr. Gomez further explained why he believed the existence of only
one workable escapeway would be an imminent danger (Tr. 56-64).
Rodric M. Breland, Chief, Division of Safety, MSHA,
Arlington, Virginia, since August 1994, stated that he serves as
the principal advisor to the administrator on safety issues,
regulatory policy development, petitions for modifications, and
answering inquiries concerning regulatory enforcement and
interpretations from interested mining parties (Tr. 8). He
stated that he received an inquiry from MSHA’s Dallas acting
manager, Doyle Fink over a year ago concerning AKZO’s mine in
Louisiana concerning the unavailability of one of their
escapeways. Mr. Fink asked whether there was any change in
policy that would not require the evacuation of miners pursuant
to section 57.11050 when maintenance was performed on the hoist,
and Mr. Breland advised him that he was not aware of any change
in policy (Tr. 11). After consulting with Mr. Gomez, Mr. Breland
informed Mr. Fink that there was no policy change and that miners
would have to be withdrawn “as soon as you don’t have two
escapeways” and that this would be a violation (Tr. 13).
Mr. Breland stated that in a two-hoist situation, if one
goes down a “technical” violation occurs immediately because
miners are entitled to two ways out of the mine at all times.
However, as a practical matter, an operator needs time to
evaluate the situation, and has 30 minutes from the time the
hoist is interfered with to report the matter (Tr. 23). He
explained the evacuation requirement as follows at (Tr. 24-25):
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Q. Assuming a two hoist, two shafts, no refuge
chamber. Let’s assume that situation.
Assuming that situation. You say they have
an hour to escape?
A. They have an hour to evacuate from the time
they’ve made that decision. You’re talking
about the evacuation portion of this
requirement.
Q. When must they make that decision? What
triggers the decision they must evacuate?
A. Once they decided they can’t repair whatever
is wrong within the hour they need to start
evacuating.
Q. And however long that takes them, up to an
hour, I guess?
A. Yeah. Essentially, you know, it’s -- I think
there’s allowance for a reasonable amount of
time to make the determination, what problem
you’re dealing with, how long is it going to
take you to repair it. Once that decision is
made, if it is going to take you longer than
an hour you should start.
Mr. Breland stated that his interpretation of section
57.11050, with respect to the “evacuation within an hour” is
found in subsection (b), and the self rescuer and fire evacuation
standards, and he believed it is based on the limits of the self
rescuer (Tr. 27).
Mr. Breland confirmed that he was aware of Citations Nos.
4100787 and 4546275, citing violations of section 50.10, and
Citation No. 4546276 citing a violation of section 57.11050(a).
He believed that the lack of a second escapeway would be an “S&S”
violation if normal production activities were taking place, and
further explained how he would evaluate “S&S” under several
scenarios (Tr. 36-40).
Mr. Breland was of the opinion that “one hour for the
abatement for this standard is reasonable because that is what we
expect in the evacuation” without regard to the length of time if
takes to fix the hoist or the number of people underground (Tr.
45-46, 49).
Mr. Breland stated that he first saw the February 22, 1990,
Salois memorandum sometime in the fall of 1995, when a draft was
brought to a meeting with AKZO representatives and MSHA officials
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where the matter of doing maintenance work and having a hoist
unavailable while people were still working was discussed (Tr.
52). He was never aware of any policy change such as that
discussed in the Salois memorandum and he always followed the
“instant violation and an hour to abate” policy as stated as
follows at (Tr. 53).
Q. You always thought of it, this kind of
instant violation and an hour to abate?
A. Yes, and that people would -- if your hoist
became unavailable you would evacuate and
your planned kind of maintenance activities
were going to be done on off shifts,
weekends, things like that. That’s standard
for most of the industry.
Q. That’s standard for most of the industry, in
your experience?
A. Yes.
Mr. Breland stated that he told Mr. Salois that he did not
agree with his policy statement because it did not comply with
his understanding of how section 57.11050(a), should be applied,
but he did not know who may have directed Mr. Salois to rescind
his memorandum. He confirmed that he may have had something to
do with this because he informed Mr. Gomez of his opinion that
Mr. Salois’ policy was not correct (Tr. 56).
Mr. Breland stated that he and his staff initially drafted
the December 8, 1995, Gomez letter to AKZO counsel Savit, and Mr.
Breland believed the letter “is a well-written explanation of our
policy and philosophy” regarding the enforcement of section
57.11050, and he does not disagree with anything in the letter.
He was not aware that the policy stated in the letter was in any
other written form other than the present program policy manual.
He has never shown the letter to other mine operators and did not
know whether any district managers have done this (Tr. 59-60).
Mr. Breland stated that the two citations citing violations
of reporting section 50.10, were issued because a hoisting
accident occurred and interfered with the use of a hoist for
longer than 30 minutes and this was not reported. It was his
understanding that the “accident” as defined by section 50.2
concerned “working on repairing damage to hoisting equipment”
(Tr. 61). He was not aware of any other reason for shutting down
the hoist other than to do the “maintenance” in question. He
further explained as follows at (Tr. 62):
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Page 29
Q. Well, do you know -- do you know whether or
not the ropes on the hoist were so out of
balance in terms of length that the hoist was
incapable of being run safely at the time
these operations were undertaken?
A. At the time they were done it would be my
assumption they were trying to prevent the
damage from being such they would have been a
danger to continue running.
Q. So what was the damage you’re talking about?
A. Well, once you start using equipment it’s
going to be exposed to damage almost
immediately once you start using it, but they
were, I understand, cutting slack rope.
And, at (Tr. 64-65):
Q. So it’s your experience as soon as something
starts running it starts to be damaged?
A. Yeah. It starts to wear. Machinery wears
from the time you start it.
Q. Is it damaged? The standard says damaged,
right?
A. Correct.
Q. Is it damaged the moment you start it?
A. Yes, actually, instantly. It is damaged to
some degree.
Q. It is an accident when that happens?
A. For our purpose, if the damage gets to the
point it requires interference with the
hoisting for more than 30 minutes.
Mr. Breland stated that any hoist that is interfered with
for more than 30 minutes is always reportable even if it is one
one of seven escapeways, and this would include power outages
that occur off mine property. In short, any hoist that is
interfered with for more than 30 minutes, regardless of the
reason, is reportable under section 50.10 (Tr. 66). If a diesel
generator that is used to run a hoist is shut off to lubricate
it, and it takes more than a half-hour to do this work, he would
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Page 30
consider this to be “damage” because “you’re treating the damage.
You’re trying to prevent progressive damage” (Tr. 69). He would
consider ice in a shaft that prevented the use of the hoist to be
a “natural occurrence” that would not be reportable. However, if
there were people in the mine “and you can’t get them out, you’ve
lost your second way out,” it would be reportable (Tr. 67).
James M. Salois, MSHA Metal/Non-metal North Central District
Manager since September 1989, testified that he was familiar with
citation Nos. 4100787 and 4546276, citing violations of section
50.10 and 57.11050(a), and he confirmed that he was involved in
the decision to issue citation No. 4546276, and discussed it with
Mr. Reitter, Mr. Foster, Mr. Gomez, and Mr. Narramore. He was
somewhat familiar with the cited conditions as reported by the
inspector and he reviewed the citation and findings before it was
issued (Tr. 15-16).
Mr. Salois stated that his memorandum of February 22, 1990,
dealt with planned and unplanned shutdowns of hoists that were
designated as escapeways and it provided examples for the
inspector to use when determining a mine evacuation when hoist
repairs were made. Pursuant to that memorandum, when planned
maintenance was being carried out, and one hoist was disabled as
a result of this work, as long as the other hoist was available
to transport persons, then it was permissible to work through the
end of the shift (Tr. 18).
Mr. Salois explained that he issued the memorandum after
Mr. Frank Delimba, Chief of Safety, advised him to do so because
he (Salois) was enforcing the regulation different than the other
districts. Mr. Delimba’s instruction was the result of the issue
raised by the Morton Salt Company who claimed that he (Salois)
was enforcing the regulation differently from the other
districts. Mr. Salois stated that he was a new district manager
at that time and he did not speak with any other district
managers about their policy. Mr. Salois stated that he was not
sure that he agreed with his policy memorandum at that time but
issued it because he was asked to do it. He felt that the policy
provided less protection than the regulation. Prior to the
issuance of the memorandum, miners were required to be out of the
mine when hoist maintenance was performed, and it was always his
understanding when he was an inspector “that you always had to
have two ways out of the mine.” Since Mr. Delimba informed him
the other districts were doing otherwise, Mr. Salois stated “I
didn’t argue with him, but I didn’t necessarily agree with it,
either” (Tr. 22).
Mr. Salois stated that his understanding that miners had to
be evacuated when hoist work was performed came from what he
“learned on the job.” He never issued a citation concerning this
issue, and he did not recall any citations that came to his
attention while serving as district manager (Tr. 23).
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Page 31
Mr. Salois confirmed that his 1990 memorandum was the policy
in his district for five years, but that it was withdrawn in
February, 1995, because he did not have the authority to
establish enforcement policy for his district that was contrary
or inconsistent with national policy. He stated that he was
naive when he was asked to issue his original memorandum and he
withdrew it after learning through discussions with other
district managers that it was inconsistent with their policy (Tr.
25).
Mr. Salois stated that he is not aware of any written
national policy interpretation concerning section 57.11050. His
interpretation was stated as follows at (Tr. 27-30):
A. Is, as I would interpret it, okay, is that
you have to have two escapeways -- in talking
about 1150(a) you have to have two escapeways out
of the mine when you have people working
underground, okay. And they have to be able to
get out through those escapeways within one hour
or they have to have a refuge chamber if they
cannot.
* * * *
A. I would say the violation could start at the
point the hoist went down, depending on what was
wrong with the hoist and the time necessary to fix
it.
* * * *
A. Let’s say a guide breaks and the hoist -- the
cage hangs in the shaft and nobody has any
knowledge of how severe the damage is, okay, or
how long it’s going to take to fix it, okay.
What I’m saying, at that point the clock
starts ticking. They only have one way out of the
mine, okay. And if they know they can’t fix it
right away then they should pull their people out
of the mine, based on this standard.
Q. Under Section 11050(a) they automatically
have to begin evacuating at that moment.
A. Well, I would say that under the standard,
but in (b) where it says they have to be able to
get out of the mine through two separate
escapeways within one hour, and they only have one
escapeway, they would have to pull their people
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Page 32
out. To me this standard clearly says they have
to have two separate ways out of the mine.
Q. Right.
A. Okay. All the time, all right. So if they
only have one they’re not in compliance with the
standard.
Mr. Salois stated that if no one is in the mine “they can
have all the time they need” to abate the violation. If miners
other than those necessary to repair the hoist are underground
they must evacuate the mine, and the time for abatement would be
“the hour that it would be necessary to withdraw them and not put
anybody at risk” (Tr. 31). If a manager recognizes that the
repair is a major problem that will take a great deal of time, “I
would say the clock starts ticking there and you should have your
people out as soon as you can get them out.” Mr. Salois stated
that assuming a section 104(a) citation is issued, and the hoist
problem cannot be fixed in one hour, he would fix one hour as a
reasonable abatement time to evacuate people from the mine (Tr.
36-37).
Mr. Salois confirmed that he reviewed and agreed with
Citation Nos. 4100787 and 4546275 that were issued for violations
of reporting section 50.10. He stated that both citations
involved a planned shutdown of the production hoist to shorten
two ropes in one case, and four ropes in the other case. He did
not know why the ropes were being shortened, and did not know
whether the ropes had already stretched to a point where they
were beyond the allowable tolerances for good hoisting
operations. He was aware that ropes are sometimes changed or
shortened before reaching that point, and that this would be a
form of preventive maintenance (Tr. 61-64).
In response to questions asking him to explain how a hoist
has sustained damage when it is taken out of service for routine
preventive maintenance before the ropes affected the hoisting
operation, Mr. Salois stated as follows at (Tr. 67-69):
A. Well, it’s my feeling that the company felt
there was a need to shorten those hopes and to
accomplish whatever they intended to accomplish,
whether that was balancing the weight or to
equally distribute the weight so the hoist
performed the way it was supposed to so that -- so
that one hoist rope would not wear faster and be
damaged more rapidly than the others.
When you put hoist ropes on and you begin to
use them, in my opinion the wear and damage begins
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Page 33
and they have a life that they will last. And
based on maintenance and a host of things you do
you do that to extend the life. But the damage
begins the day you put those ropes on, they begin
to wear.
Q. So the day you buy a brand new car, as soon
as you drive it off the lot you would consider it
damaged, wouldn’t you?
A. In effect, yes.
Q. Ever sold a used car Mr. Salois?
A. I never got the value of what it was as new.
Q. Did you ever advertise it as damaged?
A. No, advertised it as used.
Q. In your judgment, used, necessarily means
damaged?
A. Yes.
Q. In your view that’s well understood by an
average person, an average miner, as soon as you
put a brand new piece of equipment into use it is
considered damaged at the moment?
A. I’m not sure everybody would look at it that
way. I’m saying that everything has a life, and
once you begin to use it you shorten that life.
And because of wear, which is damage, because of
use, which is damage, everything leads up to the
final -- when you throw it away, okay. And ropes
all have a life, they’re all changed.
Mr. Salois conceded that he did not know for a fact that the
ropes were changed because they were damaged and could no longer
be used (Tr. 69-70). He believes that even though the shortening
of the ropes was done as a matter of preventive maintenance, this
still constitutes damage to the ropes because he considered rope
wearing and stretching that occurs as soon as the ropes are used
to be damage, notwithstanding the fact that the ropes were being
changed before they affected the safe or productive use of the
hoist (Tr. 72-74).
Mr. Salois believed that any event that is specific to the
hoisting equipment and takes it out of sevice for more than
thirty minutes is reportable damage. He would not consider ice
in the shaft to be reportable because “it’s not damage directly
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Page 34
to the hoist equipment.” However, “if the ice caused the damage
then I would certainly consider it reportable” (Tr. 76). If a
decision were made not to run the hoist because of concern that
the ice would cause some damage, he did not believe it would be
reportable “if you were going to wait for it to melt.” However,
taking the hoist out of service to shorten the ropes because of
concern that damage may occur would be different because the
ropes are a direct part of the hoist system (Tr. 78).
Mr. Salois believed that any event that impairs or
interferes with the use of a hoist for more than thirty minutes
would be considered damage (Tr. 80-81). He would consider a loss
of power off mine property that interferes with the use of a
hoist as damage, but would not consider ice in the shaft that
interferes with the use of the hoist to be damage (Tr. 82-84).
In response to MSHA counsel’s questions, Mr. Salois stated
that in order to achieve evacuation of the mine for a violation
of section 57.11050(a), he would issue a section 104(a) or 104(d)
citation if the hazard was not imminent, and would fix the
abatement time at one hour. If an underground rescue chamber is
not provided, the regulation requires mine evacuation through
both escapeways within an hour (Tr. 88). He believes that an
hour is a reasonable time to evacuate the mine and once it is
evacuated the escapeway would be available for use. He would not
terminate the citation after the hour by the evacuation of
personnel only, and would extend the abatement time to focus on
other problems (Tr. 89).
Mr. Salois stated that the December 8, 1995, letter from
Mr. Gomez to AKZO counsel Savit accurately reflects his
understanding of the proper interpretation of sections 50.10 and
57.11050, as they relate to reporting hoist outages and
evacuating the mine, and is consistent with what might have been
a verbal understanding of the regulations prior to the issuance
of the letter (Tr. 104).
Mr. Salois stated that a violation of section 57.11050,
occurs when one of two escapeways is down, and that depending on
the circumstances, it is reasonable and appropriate to allow the
operator a few minutes to determine if the hoist is immediately
fixable before evacuating the mine (Tr. 105). He further
explained as follows at (Tr. 106, 108):
A. If it’s -- if it’s damage that takes more
than 30 minutes to correct they would have to
report it to us. If they can repair it and
evacuate the mine within an hour they would not
have to evacuate the mine, in my opinion, they
would just fix the problem in 35 minutes. They
would not have to evacuate the mine.
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Page 35
* * * *
Q. If they thought they could fix it in 20
minutes you would not expect them to evacuate the
mine, would you?
A. Yes. We would not expect them to evacuate.
Q. But if yo -- if they knew it was going to
take them an hour and 10 minutes to fix it you
would?
A. Yes.
Mr. Salois was of the opinion that in the event of
preventive maintenance work on a perfectly working hoist that
cannot be put back into use within an hour or half-hour, he would
consider the hoist to be damaged by the maintenance work itself
(Tr. 111). He explained as follows at (Tr. 112-114):
Q. So complying with the standard damages the
equipment?
A. In effect, yes.
Q. And that creates an accident, doesn’t it,
because it’s reportable as an accident. It’s part
of the definition of accident, isn’t it?
A. Yes.
Q. And it also creates a violation of the
standard, doesn’t it?
A. Yes.
Q. Which requires the issuance of a citation or
evacuation from the mine?
A. Yes.
Q. So complying with the terms of the standard
requires that you violate it?
A. If there are people underground.
Q. Okay. So you’re required to evacuate the
mine in order to comply with the terms of the
standard?
A. Yes.
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Page 36
Mr. Salois stated that if a hoist is down for more than an
hour, and people cannot be evacuated in an hour or more, and
repairs cannot be made within an hour, a section 104(a) citation
will be issued, and the reasonable time for abatement would be
one hour regardless of the circumstances. Based on the standard,
he did not believe that an inspector has discretion to grant more
than an hour to abate because two properly maintained escapeways
would not be available (Tr. 119-121).
Peter M. Tiley, Chief, Tiley and Associates, has been in the
mine hoisting consulting business since 1972, and his work
includes the engineering and installation of hoisting systems.
His first involvement with the AKZO hoist was in 1977 or 1978,
and he is very familiar with the mine production hoists, having
studied them for years, but not so familiar with the service
hoist (Tr. 3-10). He explained the problems and solutions
associated with the production hoists in the mine working
environment (Tr. 10-16).
Mr. Tiley stated that the atmosphere in the AKZO mine shaft
is a moist and salty corrosive atmosphere, and he would expect
the hoist ropes to endure this corrosive impact during their
life. Corrosion is a part of the deterioration process until the
ropes are retired and he would consider this to be “possibly”
damage. He would consider a wire that breaks due to corrosion to
be damaged, and that “it’s just degree, how fast is corrodes . .
. . ongoing deterioration. I don’t know if you call it damage or
not” (Tr. 18).
Mr. Tiley explained what occurs during the hoisting cycles,
including rope fatigue and stress (Tr. 22-26). He confirmed that
he has monitored the retirement of the mine ropes over the last
several cycles and had an idea as to how long the hoist ropes
last. He stated that the ropes appear to be wearing out from
corrosion rather than metal fatigue, and that lubrication is
necessary to enhance the useful duration of the ropes (Tr. 28).
Mr. Tiley stated that he was aware of the citations, and the
cited regulations, and has reviewed the December 8, 1995, Gomez
letter to AKZO counsel Savit (Tr. 31). Based on his experience,
Mr. Tiley stated his understanding as to how the term “damage” in
connection with hoisting operations is generally understood and
used in the industry as follows at (Tr. 31-34):
A. Sure. Damage, in my experience, is something
that happens to a hoisting system that is unusual
and is cause for stopping the hoisting system and
reviewing what has happened and then deciding
whether the damage -- what has been termed damage
will impinge upon safe -- further safe operation
of the hoist.
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Page 37
Q. Well, is maintenance ever required to fix
damage?
A. No. I say repair is for fixing damage.
Maintenance is carried on to avoid this unusual
occurrence, which -- which I consider to be what
damage is.
Q. So you read the word “damage” in very narrow
sense as to being something which actually stops
it from working?
A. Not necessarily stops it from working, but
you must pause when you have discovered something
that’s caused damage and decide whether or not it
is severe enough that you should stop the hoist or
not.
Typically, when I get phone calls, it’s
through damage and they want to know, do we have
to change the oil in this bearing now, for
example, and do we have to get somebody in to look
at this thing that’s happened. So it’s an unusual
occurrence that requires some stopping in the
hoisting activity to decide whether this reported
damage is serious or not.
Mr. Tiley was of the opinion that metal fatigue is not
damage because “that’s the physics of the material responding to
stress.” Broken wires in a lay of rope may or may not be
considered damage, as opposed to metal fatigue, depending on how
many wires are broken. He believed that damage begins when rope
retirement is required, and that prior to this time “it’s just
useful life” (Tr. 33). He explained that ropes arriving from the
manufacturer have broken wires “as part of the way they are
made,” and this does not mean that the rope is damaged. However,
failure of the mechanical structure that falls because of metal
fatigue would be damage (Tr. 34).
Mr. Tiley was of the opinion, based on his experience, that
changing hoist ropes with miners underground where there is only
one additional way out of the mine is a good mining practice and
fairly normal process in the worldwide mining community (Tr. 35).
He is aware that MSHA has required a mine evacuation by its
application of the one hour rule, and stated “I understand they
want to make sure that they can get men out of the mine in an
hour period, at least through one way” when one of the two ways
out is not available for use (Tr. 36-37). He further explained
his understanding as follows at (Tr. 37):
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Page 38
Q. Now, is it your understanding that that is
the practice in American mines, that you are aware
of?
A. Yes.
Q. That they will evacuate the mine if the hoist
is down, within an hour once it goes down?
A. Yes. My experience with them has been that
if they -- they can foresee an outage of longer
than an hour, then they evacuate the mine.
Mr. Tiley stated that if a hoist goes down halfway through a
shift and it appears that it will take an hour and a half to
repair it, the standard practice would be to initiate a mine
evacuation, and if it were fixed in that time frame, the
evacuation would be rescinded and those people who had already
been evacuated would go back underground. If the hoist is still
down at the beginning of another shift, it is not customary to
lower men in the other hoist while one of the two hoists is out
of commission. This is because if you know that one of the
hoists will be down for a long time, you do not have two
escapeways (Tr. 41).
Mr. Tiley stated that he considered “damage” to be some out
of the ordinary occurrence that has resulted from a failure of a
part or due to either external forces or a manufacturing defect
that wasn’t apparent (Tr. 4). As a general rule, hoist failures
that tend to occur frequently and need to be dealt with fall into
five major areas - namely, ropes, a skip stuck in the dump,
problems with the dumping mechanism, failed electrical relays and
limit switches, and defective electrical rotating equipment. He
would consider some of these items to be damaged, including brake
linkage pin breaks, a kink in a wire rope, or a broken or bent
skip wheel that causes skip jamming (Tr. 44).
Mr. Tiley believed that on a good hoist installation, a
hoist should be available 80% of the time, and the rest of the
time spent on maintenance, but he has not tracked AKZO to
determine the production/maintenance timing (Tr. 46). He did not
believe that much meaningful hoist maintenance work can be done
in less than an hour, and that changing all bearing lubricants,
cleaning and testing electrical rotating equipment, including 20
safety devices, would each require three to five hours on
scheduled maintenance days which are not necessarily on weekends.
Further, each of these items cannot be completed efficiently if
they are done piecemeal, and it takes time to prepare and finish
the work (Tr. 47).
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Page 39
Mr. Tiley stated that his prior statements concerning the
practice of allowing miners to remain in a two shaft mine where
one of the hoists is down, and provided the second hoist is still
available, did not apply to United States miners, but to Canadian
miners where the mine is not shut down for hoist maintenance or
changes. This practice complies with Canadian mining laws
requiring two escapeways, but this varies from province to
province (Tr. 51).
Mr. Tiley stated that based on his probability analysis, the
chances of both hoists being inoperative at the same time for a
period exceeding one hour is “once every hundred years” (Tr. 52).
He confirmed that corrosion in the wire rope constitutes damage
and that when a rope exceeds 10 percent strength loss it must be
retired from service. The last production ropes were retired
after approximately 18 months because tests indicated they were
damaged and exceeded the 10 percent retirement criteria (Tr. 56).
Mr. Tiley stated that it was his understanding and
experience in the United States that the law requires mine
evacuation if the hoist is going to be down for more than an hour
(Tr. 56-60). He agreed that major, unplanned accidents have
occurred in metal/non-metal mines in the last 15 years, and that
miners were possibly at greater risk if there was only one
escapeway rather than two (Tr. 62). He believed that maintenance
and repair of shaft equipment is a necessary and ongoing task and
that its purpose is to obtain maximum life and productivity of
the equipment and to maintain it in safe condition for use (Tr.
63).
Mr. Tiley stated that based on his review of the mine
maintenance records at the Cleveland Mine and other mines he
believed that AKZO’s preventive maintenance program was above
average, and he described what transpires on an average
maintenance day (Tr. 68-69). He explained the reasons for
shortening the hoist ropes as follows at (Tr. 73-74).
A. There’s two reasons why -- well, the ropes
have to be shortened in order to make them equal
length; and the reason they’re not equal length is
ropes stretch from the time they’re put in the
shaft. They stretch for two reasons.
The original rope that goes in there has
spaces between the various wires, because when you
form the rope, you must have spaces between the
wires. You can’t put wires together with zero
clearance. So as the tension is put on the rope,
it contracts and, therefore, stretches. Now, this
stretch occurs -- a large amount of the stretch
occurs in the first month or so of operation of
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Page 40
the hoist rope, and then it settles down; and the
rest of the stretch is a result of fatigue of the
wires.
Q. So the initial stretch of the rope is
expected to occur; is that correct?
A. Yes.
Q. Is it damage to the rope?
A. No. It’s -- nothing’s changed in the rope
excepting it’s shrunk to the point where the
clearances in it have more or less disappeared.
Q. So as the rope stretches initially, it has to
be shortened so that the ropes will be of equal
lengths?
A. Of equal length, yes.
Mr. Tiley stated the rope will eventually stretch to the
point where it is no longer suitable and when there is
significant fatiguing of the wires it is time to change the rope.
When asked about the rope shortening in question, he replied as
follows at (Tr. 75):
Q. So to the best of your knowledge and in your
expert opinion, were any of the rope shortening
occurrences that you observed in your review of
the records at the AKZO Cleveland Mine based on
damage to the rope?
A. It depends whether you consider fatigue of
the wire as damage or not. I don’t consider it
damage, but it could be interpreted as damage on a
microscopic scale.
Q. Were the ropes that you know of stretched to
a point where they were no longer fit for their
intended purpose?
A. No. They weren’t retired because of stretch.
H. John Head holds an MBA degree in management and an
undergraduate degree in mining engineering. He is employed as
the director of the technical services division of Archibald
Mining and Minerals, a mining engineering consulting services
company. He was previously employed with other consulting
companies, and also worked for the Morton Salt Company from 1982
to 1990, as mining engineering manager (Tr. 5-11, 17).
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Page 41
Based on his knowledge of the industry, Mr. Head believed
that the present evacuation procedure for mines with two shafts
is that if one hoist is out of service for more than an hour the
mine is evacuated, and this is standard practice among several
MSHA districts. He stated that during his contacts with a number
of mine operators concerning their current practices, all of them
confirmed that their practice was to evacuate the mine. Further,
they all appeared to recognize that there was a change in MSHA
enforcement policy in the past two or three years. He identified
the prior policy as the one followed by Mr. Salois and his
inspectors in MSHA’s North Central District. That policy
recognized that if hoists were down, it did not pose an
evacuation problem until the end of the shift, but if the outage
extended beyond the end of the shift, the subsequent shift was
not sent down and the shift that was in the mine should be
brought out at the end of their shift (Tr. 24-25).
Mr. Head identified several other mines where this policy
was followed, and his general understanding was that at mines
with two shafts, “if one hoist went down, you could work in the
mine until the end of the shift.” This was his understanding
while working at Morton Salt when he was in daily contact with
several mine operators, and the “Cleveland issue made me aware
that the situation had changed.” He confirmed that he never
spoke to MHSA about the practice of not withdrawing miners, but
he was reasonably sure that MSHA inspectors were at mines with
hoist outages, but made no comments (Tr. 30-32).
Mr. Head stated that in mines with numerous shafts, the
present two shaft evacuation issue would not apply. He
identified other mine operations that followed the prior practice
followed at Morton Salt (Tr. 34-35).
Mr. Head defined “damage” as follows at (Tr. 37-39):
A. Unexpected faulty condition.
Q. How about fixing something that’s broken?
Would that be -- if you’re fixing something that’s
broken, would that be fixing damage?
A. I think damage implies a degree of
uncertainty. Simply fixing something that’s
broken doesn’t necessarily imply whether it was
damaged or whether the damage occurred over a
period of time. So I think damage has a time
sense to it. Simply saying something was broken
doesn’t necessarily imply time.
Q. So if the power is out, the hoist isn’t
damaged, it’s just not usable?
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A. That’s correct.
Q. And before a wire rope gets retired because
it’s worn out, too damaged, it’s just wearing out?
A. It’s just wearing out. That, to my mind --
damage implies the reverse of preventive
maintenance, damage implies an accidental
situation, sudden occurrence. Clearly, a rope
that is seriously corroded is also damaged, but
it’s not -- it’s not broken because of damage,
it’s broken because of gradual corrosion.
* * * *
Q. If a guide in a shaft gets bent, is that
damage to the guide?
A. If it happens suddenly. If there is -- you
know, a problem with the guides, and a shoe on the
skip catches a guide and pulls it out of line,
that’s clearly damage. If there’s a gradual
creeping, for example, of the salt and, therefore,
the guides start to impinge on the skips, I don’t
consider that damage.
Q. But both might have to be replaced in order
to make it function right, correct?
A. Correct.
Q. And you would be replacing a piece of metal
that was damaged with one that was not, wouldn’t
you?
A. Correct.
Mr. Head stated that the probability of two hoists being
down at the same time is low and he discussed these probabilities
(Tr. 40-45). He agreed that unplanned accidents occur in mining,
and in his experience hoist preventive maintenance is taken very
seriously (Tr. 45, 48).
In response to AKZO questions, Mr. Head confirmed that when
he managed the Morton Salt Weeks Island mine from 1984 through
1985, the standard practice he followed was to allow people to
work to the end of the shift when a hoist was unavailable and not
to lower the next shift into a situation where one hoist was shut
down (Tr. 50). He believed that an acceptable hoist planned shut
down period would be more than an hour and less than six hours,
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based on different maintenance and production circumstances,
including the number of miners underground at any given time, and
their hazard exposure (Tr. 52-54). Based on his calculations,
the probability of two hoists being out at the same time would be
“once every 20-odd years” or “something like every 450 years”
based on the two different ways that he calculated these failure
probabilities (Tr. 55-56).
Thomas D. Barkand, MSHA Hoist Safety Specialist, testified
that he has a B.S. degree in electrical engineering and an M.S.
degree in industrial engineering from the University of
Pittsburgh, and has worked for MSHA since 1980. He serves as a
consultant on safety issues regarding mine hoists and elevator
safety, and conducts testing of hoists and elevators. He has
never supervised the day-to-day operations of a hoist (Tr. 6-8).
Mr. Barkand stated that he visited the Cleveland mine on
November 28 and 29, 1995, and April 2, 1996, and made notes of
his visit (Tr. 9). He disagreed with Mr. Head’s calculations of
the probability of failure of hoists, and he explained his
reasons (Tr. 13-17). He explained his experience with frictional
hoists and stated that the regulations do not explicitly require
preventive maintenance on hoists. He defined preventive
maintenance as “maintenance performed to keep a hoist
functioning” and to prevent “failures of the operation of the
hoist” (Tr. 19-21).
Mr. Barkand defined “damage” as follows at (Tr. 21-22):
A. Yes, I can. My -- I think the confusion
surrounding damage has been that some people
consider damage to be a short-term effect, a
sudden impact or collision. And in my broader
view of damage it also includes effects from long-
term exposure to corrosive elements causing
corrosion, as well as short-term effects.
Q. Is there a difference in your judgment
between damage and what we would call normal wear
and tear?
A. No. Normal wear and tear does, in fact,
cause damage to the device.
Mr. Barkand was of the opinion that damage to equipment on a
car engine begins from the day one owns it and as soon as it is
placed in operation. He confirmed that when he sold a used car
he did advertise it as “use for parts” because it was damaged and
not just used (Tr. 24). He confirmed that his belief that wear
and tear and damage are the same is from a dictionary and not
from any written MSHA definitions (Tr. 24).
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Mr. Barkand agreed that preventive maintenance prevents
failures and can lessen the onset of damage, but believed that a
piece of equipment that has been disabled is damaged because it’s
unable to do its intended function (Tr. 25). He also considered
a locked out piece of equipment to be damaged “in its broadest
sense” (Tr. 26).
Mr. Barkand stated that rope “construction stretch” is a
term that applies to the initial stretching of the rope in which
the wires are brought into closer proximity to each other, and
that this is expected (Tr. 32). Apart from wire wear and
nicking, which are the primary causes of damage and wear, the
fact that the rope gains length and loses diameter through the
process of “construction stretching,” is not, of self, damage.
Mr. Barkand did not know whether any of the rope shortenings
at the mine were undertaken because of rope construction stretch.
He did not believe that the rope shortening on December 24, 1995,
was due to construction stretch because he recalled that the
records reflected that the ropes were put in service five months
or more prior to that time (Tr. 35). He confirmed that as a
rule, a rope must be retired when it loses 10 percent of its
baseline diameter as measured after the rope has stretched (Tr.
36).
Mr.Barkand stated that he has had experience with problems
associated with new hoists placed in service for a period of a
month and has spent several weeks on site addressing those
problems. He identified the problems as safety devices that
require calibration, deceleration cams that need to be physically
ground on a brass, and needed adjustments to the current
protection set points (Tr. 38-39). In response to a question as
to whether he believed these items constituted damage, he
responded as follows at (Tr. 39-40):
Q. All right. So are those things damaged?
A. The devices are not functioning as intended.
Q. Yes or no. Is it damaged?
A. In the instance -- in the examples I just
cited they are calibration problems.
Q. Do you understand the phrase yes or no?
A. In that example, no, they were not damaged.
Q. So if I were to miss one in my otherwise
rigorous testing process, and find out after it
had been placed in service that it was not
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calibrated correctly, and I had to stop the hoist
and recalibrate that control, that wouldn’t be
damage either, would it?
A. It’s repair.
Q. But it’s not damage, is it?
A. Something was calibrated wrong.
Q. I tried to do a rigorous analysis to find it.
I missed it. I put in into service and it is
still recalibrated wrong, the same way I got if
from the factory, the same way I installed it.
Then I discover it’s calibrated wrong. Is it
damaged or not?
A. In the broadest sense of damage it would be.
Mr. Barkand stated that he did not review any records
concerning hoist outages at the mine and did not know the
frequency of hoist unexpected unavailability (Tr. 41). He
confirmed that he did not closely examine the hoist ropes, but
observed that they appeared bare and moist with some fine salt
particles (Tr. 43). He stated that the regulations require
nondestructive rope testing at intervals not to exceed six
months, and based on his review of the records these tests were
being performed (Tr. 46).
Mr. Barkand stated that a rope could have a broken internal
wire with no surface indication on the rope itself and that this
occurs even during the manufacturing of the rope (Tr. 48). He
did not believe that the maintenance of 100 percent availability
of two independent hoisting systems is achievable. The mine
production plan calls for people underground 24 hours a day,
seven days a week, engaged in production activities unrelated to
hoist maintenance. With this plan, it is difficult to comply
with the minimum two escapeway requirement because system
failures are bound to occur (Tr. 52).
Mr. Barkand stated that the regulation requires two properly
maintained escapeways at all times, and if one is not operable,
this would constitute non-compliance (Tr. 55). He confirmed that
he has recommended the development of a comprehensive preventive
maintenance program for implementation during the maintenance
shift to increase the reliability and availability of escape
routes (Tr. 61).
Mr. Barkand stated that a hoist switch that sometimes
malfunctions would be considered damage and that his review of
Part 50 accident and injury abstracts for a ten-year period from
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1978-1988, reflects that mine operators have reported hoist
outages exceeding 30 minutes due to power failures. He concluded
from this that operators understand the “damage” reporting
requirements when a hoist is unavailable (Tr. 63-64).
In reply to further AKZO questions, Mr. Barkand stated that
approximately 600 Part 50 accident reports were submitted during
the aforementioned 10-year period and that 40 or 50, or less than
10 percent, concern hoisting. The summarized incidents listed
appear to be “normal wear” items (Tr. 67-68), with regard to the
listed eleven “power outages,” he presumed they were possibly
nonscheduled (Tr. 71). He was not aware of any official MSHA
guidance as to whether ice in a shaft has to be reported (Tr. 72-
73).
Arguments Concerning the Interpretation and Application of
30 C.F.R. 50.10
The two alleged violations of reporting standard 30 C.F.R.
50.10, as noted in section 104(a) non-”S&S” citation numbers
4100787 and 4546275, concern a November 9, 1995, production hoist
outage of approximately 50 minutes while two of the four hoist
ropes were shortened, and a December 24, 1995, production hoist
outage due to maintenance service to shorten four stretched
ropes. Citation No. 4100787, states that the hoist was
“disabled” while the rope shortening work was performed, and that
this interfered with the use of the hoist for more than thirty
minutes. Citation No. 4546275, states that the hoist was
“damaged” in that it was unavailable due to the maintenance work
being performed, and that the “damage” interfered with the use of
the hoist for more than 30 minutes. AKZO allegedly violated
section 50.10, by failing to immediately report these hoist
outages. MSHA takes the position that the cited hoist outages
were the result of reportable accidents under section 50.10, in
that both hoists were “damaged” within the “accident” definition
found in section 50.2(h)(11).
AKZO argues that MSHA has adopted a bizarre view that the
maintenance work conducted on the cited hoists constitutes
“accidents” within the meaning of section 50.2, and that MSHA’s
interpretation not only defies reason and common sense, but also
impermissibly expands the reporting requirements of section
50.10. AKZO maintains that the hoists were not “damaged” within
the meaning of § 50.2(h)(11), but were undergoing routine,
preventive maintenance. AKZO asserts that in order to arrive at
its current position, MSHA has given the operative words in the
applicable regulations meanings which directly contradict their
ordinary use and meaning.
Citing several supporting cases, AKZO asserts that canons of
statutory construction require that statutes and regulations be
applied so as to give effect to the plain meaning of words. AKZO
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points out that the applicable definition of “accident” found in
section 50.2(h)(11) involves damage to hoisting equipment. Since
the regulations do not provide a definition for “damage,” AKZO
asserts that its common and ordinary meaning should apply.
Citing Merriam Webster’s Collegiate Dictionary 291 (5th Ed.
1993), AKZO states that in its ordinary usage, “damage” means
“loss or harm resulting from injury to person, property . . . ”
AKZO maintains that MSHA has taken a view which contorts the
word “damage” beyond its ordinary meaning. AKZO cites the
conflicting testimony interpretations of the word “damage” by
MSHA officials, and characterizes it as “tortured and far-
fetched.” As examples, AKZO cites the following testimony by
MSHA officials with respect to their understanding of the term
“damage”:
Anytime that I can’t use something, it’s
damaged; If I have brakes on my car that are worn
out or need adjusted, there’s damage that needs
maintenance to it.” (C. Okey Reitter).
Statement of Rodric Breland that damage
occurs instantly from the moment equipment is put
into use.
“ . . . damage begins the day you put those
ropes on, they begin to wear”
“ . . . used necessarily means damaged,” and
both wear and use constitute damage (James E.
Salois).
Statement by Herbert D. Bilbrey who defined
damage as “inoperative,” but did not believe
equipment which is intentionally taken out of
service was “damaged.”
AKZO argues that these proffered definitions of “damage”
reflect a confused understanding of that term and are clearly
beyond the meaning found in Potash Company of America , 4 FMSHRC
56 (January 1982)(ALJ Stewart). In that case, a fire in the
power plant control room caused a power failure that affected the
use of two underground mine hoists for more than 30 minutes. The
power outage lasted for approximately two hours. The man hoist
normally used to hoist men was not energized until two or three
hours after power was restored because of circuit modifications
that were necessary to utilize outside power.
Potash was charged with a violation of section 50.10, for
not immediately reporting the “accident” to MSHA. The inspector
who issued the citation believed that an “accident” under 30
C.F.R. 50.2(h)(11) occurs any time a hoist is “down” for more
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than 30 minutes for any reason, without regard to damages , and
that a hoist is “damaged” within the meaning of 30 C.F.R.
50.2(h)(11), whenever there is an unplanned hoist outage for any
reason.
Potash took the position that when a hoist is not damaged,
but simply disabled by a loss of electrical power that affects
the mine in general, no “accident’ within the meaning of section
50.2(h)(11) occurs, and there is no obligation to immediately
report the loss of power pursuant to section 50.10. MSHA’s
belief that the issue presented was whether an unexpected fire
causing disruption of power to a hoist for more than 30 minutes
is an “accident” requiring immediate notification pursuant to
section 50.10, was rejected as too broad by Judge Stewart, and he
limited his decision to the specific facts of the case.
MSHA argued that in a lay sense the fire and loss of power
to the hoists were “accidental,” and that the hoisting equipment
was “damaged” because its usefulness was impaired. As support
for this argument, MSHA relied on The American Heritage
Dictionary of the English Language (1976), which defines
“accident” as: “1. An unexpected and undesirable event; a
mishap. 2. Anything that occurs unexpectedly or
unintentionally.” The dictionary defines “damage” as “Impairment
of the usefulness or value of person or property; loss; harm.”
Aside from the “lay definition” of “accident,” MSHA asserted
that the triggering alternative element for the definition of
“accident” as defined in section 50.2(h)(11) “or which interferes
with use of the equipment for more than thirty minutes” existed
because there was no power to the hoists from 9:40 p.m. to 11:35
p.m., and the hoists were not energized until 2:00 p.m. Although
MSHA conceded that the hoists were not physically damaged as a
result of the powerhouse fire and loss of power, it contended
that the loss of electrical power to the hoists, without more,
was a reportable accident within the meaning of sections 50.10
and 50.2(h)(11), because of the loss of power interfered with the
use of the hoists for more than 30 minutes.
Judge Stewart found that it was clear that section 50.10,
was not intended to require the reporting of every unexpected and
undesirable event or mishap, and that when read in context with
the regulatory definition of “accident,” the kinds of accidents
required to be reported are limited to the 12 types listed in
section 50.2(h). Judge Stewart concluded that the pivotal
question was whether the hoist interference was due to physical
damage to the hoisting equipment.
Judge Stewart found no basis to support the inspector’s
belief that a power outage for any reason constitutes damage to
the hoisting equipment when no physical damage to the equipment
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occurs as a result of the outage . Under the circumstances, he
concluded that the power outage was clearly not reportable under
the requirements of section 50.10, and vacated the citation.
AKZO contends that the Potash case limits the reporting
requirements of section 50.10 to the specific events listed in
section 50.2(h), and it points out that the judge relied on an
MSHA publication (Information Report on 30 C.F.R. Part 50) which
provided the following “Question and Answer” guidance as to what
constituted damage to hoisting equipment under section
50.2(h)(11):
41. Q. What constitutes “Damage to hoisting
equipment in a shaft or slope which
endangers an individual or which
interferes with the use of the equipment
for more than 30 minutes”?
A. Damage may be considered to be caused by
some accident that involved hoisting
equipment, or resulting from hoisting
equipment failure. A natural occurrence
such as ice in a shaft may cause the
shaft and hoist to be shut down for more
than 30 minutes. However, where no
accident occurs, equipment is not
damaged, and no individuals were
endangered, the natural occurrence would
not itself be reportable.
AKZO further argues that even if the plain meaning rule or
applicable precedent were not controlling, “damage,” within the
meaning of § 50.2(h)(11), should be considered “ . . . in light
of what a reasonably prudent person, familiar with the mining
industry and the protective purpose of the standard, would have
provided in order to meet the protection intended by the
standard.” Savage Zinc, Inc. v. MSHA, 17 FMSHRC 279, 283
(February 1995), quoting Diamond Roofing v. OSHRC, 528 F2d 643
(5th Cir. 1976). Since it believes that the regulations give no
indication that the work “damage,” as used therein, has any
meaning other than that in ordinary usage, AKZO concludes that a
reasonably prudent miner would operate on the belief that damage
means “loss or harm resulting from injury” rather than “used” or
“worn.” In support of this conclusion, AKZO cites the testimony
of Peter Tiley, who defined damage as “ . . . an unusual
occurrence that requires some stopping in the hoisting activity
to decide whether this reported damage is serious or not.”
Applying the common or ordinary meaning of the word
“damage,” AKZO further concludes that it is evident that there
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was no damage to hoisting equipment in this case as there was no
loss or harm to the property. AKZO points out that it did not
experience any problems with the use of the hoisting equipment,
nor had it received any complaints about the operation of the
hoists. It takes the position that the equipment was simply
taken out of service as a preventive care measure, and that such
routine maintenance does not constitute damage within the
ordinary meaning of that word. Further, based upon the Potash
analysis, AKZO maintains that the closure of the production shaft
hoist for routine maintenance purposes does not constitute an
accident under § 50.2(h)(11), and, therefore, is not reportable
under § 50.10. As in Potash, AKZO points out that there was no
hoist malfunction or physical damage to the hoisting equipment as
a result of the closure for maintenance.
AKZO maintains that MSHA’s guidelines indicate that if no
accident occurred and no equipment is damaged, the incident is
not reportable. AKZO asserts that both closures of the
production shaft hoist fully meet MSHA’s own criteria in this
regard, and that not only did the outages last no longer than
three and one-half hours, the outages did not involve any of the
circumstances, incidents or occurrences enumerated in § 50.2(h).
Although the production shaft was not available for more than 30
minutes, there was no physical damage as contemplated by Potash
and the MSHA guidelines. Under all of these circumstances, AKZO
believes that no violation of section 50.10 occurred.
AKZO concludes that MSHA’s interpretation fails to give
operators fair notice of which conditions would trigger the
reporting requirements under section 50.10. AKZO points out that
while MSHA contends that the regulation applies whenever there is
interference with hoisting equipment for thirty minutes, it also
appears from the Gomez letter of December 8, 1995, to AKZO’s
counsel, that MSHA has taken the broader view that section 50.10
is violated anytime hoisting equipment is interfered with. AKZO
maintains that this interpretation would render practically any
and all maintenance activities at a mine “damage,” which
potentially could require notification to MSHA each and every
time maintenance activities are undertaken.
AKZO concludes that it did not violate regulation § 50.10
because the production shaft hoist was not damaged within the
meaning of § 50.2(h)(11), and thus there was not an accident
within the meaning of § 50.2(h). The regulations very
specifically detail, in § 50.2(h), the circumstances, incidents,
and occurrences to which the term “accident” applies. The
subsection under which MSHA cited the Cleveland mine states
explicitly that there must be damage to the hoisting equipment
which interferes with its operation for 30 minutes or longer.
Further, since the regulations do not define “damage,” the
ordinary meaning of that word should be applied in determining
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whether preventive maintenance activities which take more than 30
minutes to accomplish constitute a violation of § 50.2(h). As
there was no loss or injury which resulted from the maintenance
activities, there was no damage at the mine, and therefore no
violation of § 50.2(h).
MSHA argues that a hoist outage that prohibits its use for
more than thirty minutes is a damaged hoist that is required to
be immediately reported pursuant to section 50.10. Relying on
the Gomez letter, MSHA takes the position that the relevant issue
in a hoist outage is its availability for use, and if the hoist
can be activated quickly in the event that it is needed, it is
not damaged and does not have to be reported. However, if
because of maintenance, the hoist is unavailable to be used and
cannot by placed back in use within 30 minutes, MSHA concludes
that it is clearly damaged, and while it may be intentionally
disabled, it is damaged and unavailable nonetheless.
MSHA asserts that there is no requirement that the damage,
loss, harm, or injury occur unexpectedly, and concludes that it
would be entirely inconsistent with the purpose of the regulation
to allow an operator to intentionally disable a hoist that is
being used as an escapeway but to prohibit such actions when the
disabling of the hoist was unintentional. MSHA contends that any
intentional and planned actions which render the hoist
unavailable for use are the equivalent damage, loss, harm, or
injury to the hoist which have the effect of damaging it for some
period of time. MSHA further concludes that when a hoist is shut
down for repairs and it is removed from a usable status for a
period of over thirty minutes, it has clearly suffered harm or
loss of use during that time period. MSHA believes that it is
the period of time that it is unavailable for use, not whether
the repair was planned or unplanned, that is the relevant issue
with respect to the reportability of the damaged hoist.
MSHA submits that AKZO’s interpretation would allow a hoist
to be unavailable for extensive periods of time without being
reportable to MSHA, so long as AKZO could say the repair activity
was not caused by an immediate, unintentional, or unexpected
“injury” to the hoist. MSHA submits that AKZO’s reading of the
regulation would allow the repairs and maintenance to go on for
days or weeks, and that its position is not reasonable because it
places far too much emphasis on the immediacy of the need for
repair, and on the surprise nature of the cause of the hoist
outage, and not on the fundamental focus of the unavailability of
the hoist for use in an emergency.
MSHA concludes that there is no basis in logic that only
unintentional, unexpected harm constitutes “damage” as that word
is used in 30 C.F.R. 50.2(h)(11), and points out that AKZO’s
position does not acknowledge the obvious damage that occurs when
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a hoist is taken apart in order to repair a damaged aspect of the
system, during which time the system cannot function when needed.
MSHA further concludes that if the hoist cannot be used because
of unintentional preplanned dismantling of part of its system,
the hoist is damaged under either scenario and that such damage
or unavailability for use must be reported if it lasts for 30
minutes or longer.
MSHA maintains that the regulatory reporting requirement in
section 50.10 in this case is clear, and that a reasonably
prudent person familiar with the mining industry understands the
requirement to be consistent with MSHA’s position. Even if the
regulation were to be construed as unclear, MSHA asserts that its
reasonable interpretation is entitled to deference by the
Commission.
Citing a number of precedent cases, MSHA argues that when a
statute is ambiguous, an adjudicatory body should give deference
to the interpretation of the statute adopted by the agency
entrusted with its enforcement, and that the agency’s
interpretation must be accepted as long as it is not unreasonable
or inconsistent with the language or the purpose of the statute.
MSHA asserts that a statute or regulation that is intended to
protect the health and safety of individuals must be interpreted
in a broad manner to actually achieve that goal, and that the
issue on review is not whether the agency’s interpretation
represents the most desirable choice in the view of the
adjudicatory body, but whether the agency’s interpretation
represents a permissible choice in view of the language and the
purpose of the statute or regulation.
MSHA maintains that requiring the reporting of any incident
that makes the hoist unavailable for more than 30 minutes is the
only interpretation that enhances safety, and that AKZO’s
position to the contrary would thwart the objectives of the Mine
Act and the regulation. Citing the American College Dictionary
definition of “damage” as injury or harm that impairs value or
usefulness, MSHA concludes that whenever a hoist (being used as
an escapeway) is unavailable for use for more than 30 minutes,
with miners underground, it is damaged, because it is useless as
a means of escape and therefore it is required to be immediately
reported.
Arguments Concerning the Interpretation and
Application of 30 C.F.R. 57.11050(a)
The alleged violation of mandatory safety standard 30 C.F.R.
57.11050(a), as noted in section 104(a) non-”S&S” Citation No.
4546276, concerns the unavailability of the mine production hoist
for approximately three-hours and thirty-seven minutes on
December 24, 1995, while the hoist ropes were being shortened.
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The incident was staged to test MSHA’s enforcement interpretation
of the regulation, and it would appear that MSHA was on notice
and cooperated and participated in the staging.
AKZO asserts that section 57.11050 requires only that each
mine be equipped with “two escapeways to the surface,” and that
its purpose is to ensure that, in the event one of the ways out
of the mine cannot be used, there is an alternative means of
escape available. AKZO maintains that the standard contemplates
that there will be occasions when that purpose is not fulfilled;
that is, that one means of egress from the mine will be
unavailable, but the second means, as required by the regulation,
will be fully functional. AKZO believes that the fact that only
one of two escapeways is functional for some period of time does
not mean that the operator has failed to comply with section
57.11050, but rather, that it has complied with it. AKZO
concludes that to hold otherwise would mean that the moment that
the standard accomplished its intended purpose, it would be out
of compliance. AKZO believes that such a result would be absurd,
and it concludes that the regulation cannot be read to mean that
two escapeways must already be functioning. If this were the
intended meaning, AKZO believes the regulation would have
required that there be at least three escapeways so that, in the
event one was unavailable, there would be at least two operating.
AKZO maintains that the mine had two separate, properly
maintained escapeways to the surface in full compliance with
section 57.11050. AKZO asserts that MSHA’s contention that a
violation of section 57.11050 occurs the moment hoisting
equipment has been shut down for maintenance purposes for a
period of over one hour, requiring immediate evacuation of the
entire mine, is not supported by the statute, the regulation, or
the relevant decisions.
AKZO cites several court decisions in support of its
assertion that the regulation in question should be interpreted
as a whole to avoid conflicting inconsistent, and meaningless
interpretations. It points out that under section 57.11050, AKZO
must not only provide two escapeways from the mine, but it must
also ensure that the escapeways are “properly maintained.”
Considered in this light, AKZO concludes that issuing a citation
for taking an escapeway out of service for maintenance clearly
violates the spirit and intent of the regulation.
AKZO asserts that at the time of the violations, the
production hoist was out of service for routine upkeep and
maintenance rather than repair to broken or damaged equipment.
AKZO points out that this maintenance work generally takes the
hoist out of service for periods no longer than a few hours, is
done relatively infrequently, and that during this time the
service shaft remains an available, operable escapeway in the
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event of an accident or emergency. Simply put, AKZO points out
that it was conducting work which was necessary in order to
comply with the regulatory mandate that escapeways be properly
maintained. AKZO concludes that it would defy logic to hold that
maintenance activities which are necessary in order to comply
with the regulation are, when undertaken, a violation of the very
rule which requires their undertaking in the first place.
AKZO argues that while section 57.11050, requires that at
least two escapeways exist, it does not require that both be
functional at all times, but only requires that they are
positioned so that damage to one shall not lessen the
effectiveness of the other. Accordingly, AKZO concludes that
this clearly indicates that the drafters of this regulation
anticipated there may be occasions when not all escapeways are in
use. In support of this conclusion, AKZO cites the MSHA policy
regarding former standard section 57.11-50, as noted in the
Potash Company of America case, 4 FMSHRC 56.70 N.8 (January
1982). That policy allowed miners to remain underground the
remainder of the shift provided all personnel were notified and
were in agreement, but not to allow the next shift to go
underground until the hoist was repaired. Recognizing the
regulatory language “damage to one,” AKZO does not believe that
this exception would not apply when an escapeway is temporarily
closed so that maintenance work can be performed. In this case,
the second escapeway was out of use for only three and one-half
hours while undergoing preventive maintenance.
AKZO maintains that the issue is not whether it failed to
have two escapeways from the mine to the surface, but whether it
is required to evacuate the entire mine while performing routine
required preventive maintenance which renders one of the two
hoists unavailable for more than one hour. Since the regulation
contains no such requirement and, in order to adopt such a new,
substantive requirement, AKZO maintains that MSHA is required to
comply with the notice and comment requirements of both the Mine
Act and the Administrative Procedure Act (“APA”).
AKZO states that prior to MSHA’s newly articulated
compliance policy, it engaged in the practice widely accepted in
the mining industry, and sanctioned in Potash, 4 FMSHRC 56,
allowing a mine to continue operation until the end of the shift
when only one escapeway was available, provided the miners
underground were aware of the situation. If, however, at the
beginning of the next shift only one escapeway remained available
for use, the next shift was not allowed to be lowered
underground.
AKZO asserts that there is virtually no guidance as to how
to interpret section 57.1105(a) during the course of required,
routine maintenance, and that in a situation where one of the
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hoists is not operable for a period of time, analysis of the
standard must utilize the “reasonably prudent person” test
applied for general or vague regulations. In this regard, AKZO
points out that over the years, the standard has been subject to
several changes in interpretation and implementation, including
the uncertainty as to the existence of a national policy, the
“end of shift” rule noted in Potash, the absence of any national
policy as expressed in the Gomez, Bilbrey, Salois, and Breland
depositions, the February 1990 Salois Memorandum adopting the
“end of shift” rule in MSHA’s North Central District, and the
February 1995 recision of the Salois 1990 memo which replaced the
“end of shift” rule with the one hour policy in the North Central
District.
AKZO cites the testimony of its expert witness John Head,
who has worked in the mining industry for 20 years, who stated
that the “end of shift” rule appeared to be standard practice in
two shaft mines until two or three years ago. AKZO further cites
a Morton Salt Company March 1980 Memorandum (Exhibit Tab D)
indicating that the “end of shift” rule has in practice been
recognized in MSHA’s North and South Central Districts.
AKZO states that following the recision of the 1990 Salois
memorandum in February 1995, after the instant dispute had begun,
no written material was issued by MSHA to replace it. However,
AKZO asserts that notwithstanding MSHA’s conflicting evidence as
to how section 57.11050 should be implemented, it has attempted
to comply by following the policy most widely published as proper
policy -- the “end of shift” rule. AKZO contends that the fact
that MSHA itself has interpreted the regulation to allow
significant time periods to elapse while work is being done on
the shift makes clear the fact that AKZO acted as a reasonable
prudent person in complying with § 57.11050.
AKZO argues that the automatic evacuation requirement
engrafted by MSHA onto section 57.11050(a), is a substantive, not
interpretative rule that is subject to the notice and comment
requirement of both the Mine Act and the APA. In support of its
argument, AKZO points out that MHSA’s new automatice evacuation
requirement whenever a hoist may be inoperative is simply not
expressed in section 57.11050(a). Had MSHA intended that the
standard contain such a requirement, AKZO believes MSHA could
have (and should have) included it as part of the regulation.
Since MSHA has for almost 20 years consistently interpreted the
standard not to require any such action, AKZO maintains that to
now engraft such a new substantive requirement onto the
regulation is tantamount to the promulgation of an additional
rule, subject to the “notice and comment” requirements of section
101 of the Act, 30 U.S.C. § 811, and section 553 of the APA, 5
U.S.C. § 553.
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AKZO states that the automatic evacuation requirement has
never been subjected to notice and comment rulemaking
proceedings, and has never been published for general circulation
in the mining industry. AKZO maintains that such a significant
new requirement should have been subject to review and comment by
the mining industry, and since it was not, the requirement must
be struck down and the citations vacated.
AKZO takes note of the following rulemaking exceptions
applicable to substantive rules found in section 553(d) of the
APA:
(1) a substantive rule which grants or recognizes
an exemption or relieves a restriction;
(2) interpretative rules and statements of
policy; or
(3) as otherwise provided by the agency for good
cause found and published with the rule.
AKZO argues that the APA interpretative rule exception
should be construed narrowly, and that any deference accorded
MSHA’s interpretation of section 57.11050, should take into
account the consistency and reasonableness of its interpretation.
On the facts of this case, AKZO concludes that MSHA’s
interpretation should not be given deference because the new
compliance requirements are unreasonable and inconsistent with
past interpretations over the years.
AKZO takes the position that MSHA’s newly formed
interpretation of section 57.11050, is a substantive rule rather
than an interpretative one because it “set[s] forth a course of
conduct or behavior to which employers will be held under penalty
of law and has sufficient impact to justify the notice and
comment procedure.” Matter of Chicago Aluminum Castings Co.,
Inc., 535 F.Supp. 392,397 (N.D.Ill. 1981); Carter v. Cleland, 643
F.2d 1, 8(D.C. Cir. 1980)(substantive or legislative rule is one
that has the force of law and narrowly limits administrative
discretion.) Additional cases are cited holding that a
substantive rule is one that imposes obligations, creates
additional conditions, or has a substantial impact on a regulated
industry or an important class of members.
AKZO argues that while the existing regulation merely
requires that a mine have two properly maintained escapeways to
the surface, MSHA personnel seek to interpret the regulation to
require the evacuation of the entire mine whenever one of the two
hoists is “down” for more than one hour (Reitter, Breland,
Salois, and Strickler depositions). AKZO asserts that this
interpretation stands in stark contrast to the previously
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accepted and endorsed “end of shift” rule that interrupted mine
operations only if the hoist was not back in service at the start
of the next shift, in which case the next shift could not be
lowered into the mine. AKZO concludes that such a vastly
different implementation of a regulation is clearly more than an
interpretative rule, and as such is subject to the notice
requirements of the APA. AKZO further points out that MSHA’s top
officials indicated that MSHA’s interpretation allows its
inspectors no discretion in allowing a mine operator a reasonable
time for abatement, and they agreed that regardless of the
circumstances, an operator was allowed only one hour to evacuate
the mine if one of the two escapeways was not available for use.
(Gomez, Reitter, Breland, and Salois depositions).
AKZO maintains that beyond requiring an operator to evacuate
the mine when one of two escapeways is not available, MSHA’s
interpretation of § 57.11050(a) has a tremendous economic and
operational impact on underground mine operators because of
increased costs of operating an underground mine by unnecessarily
interrupting workflow and productivity. Conceding that financial
costs are clearly not an operator’s sole consideration, AKZO
nonetheless believes that MSHA’s evacuation requirement is too
broad-sweeping in that it establishes a definitive rule or course
of action in the event of a hoist outage without granting any
consideration to the actual hazard or risk posed by the
situation. AKZO asserts that this goes against the Mine Act’s
policy of giving consideration to several factors, including, the
risk or danger presented by the alleged violation, in determining
a reasonable period of time to abate a violation.
AKZO maintains that MSHA’s one hour automatic evacuation
requirement represents a significant departure from its past
position and therefore requires APA notice, comment, and
publication. Notwithstanding the status of the end of shift
rule, AKZO asserts that MSHA cannot deny that it was followed in
a large portion of the country for a substantial number of years
and that the new automatic evacuation requirement substantially
departs from it.
Reviewing the limited circumstances under which the Mine Act
authorizes the withdrawal of miners, AKZO points out that the
violations issued in this case were issued as section 104(a) non-
”S&S” citations which do not grant MSHA authority to effect an
evacuation of the mine. AKZO contends that MSHA’s action amounts
to a de facto order of withdrawal, issued without statutory or
regulatory authority, citing Aluminum Company of America v. MSHA,
14 FMSHRC 1721 (October 1992).
AKZO points out that section 104(a) of the Act requires that
MSHA fix a reasonable time for the abatement of a violation, and
it cites the relevant Commission precedent cases establishing the
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factors to be considered by an inspector in fixing a reasonable
abatement time. In the instant case, AKZO maintains that none of
the factors were followed by MSHA in requiring a one hour
abatement time.
On the facts of this case, AKZO maintains that there is no
dispute that there was no imminent danger at the mine while the
production hoist was out of service, and it points out that the
violation was issued as a non-”S&S” citation with “unlikely”
injury or illness findings, and that MSHA inspector Foster and
supervisory inspector Reitter testified that the danger was
minimal and that the normal hazards to which miners were exposed
were not affected by the hoist outages. Further, AKZO states
that the equipment was only out of service for a period of three
hours, another escapeway to the mine surface was available in
case of an accident or emergency, there were only three miners
underground, and no mineral extraction was taking place. Under
the circumstances, AKZO maintains that the inspector should not
have required an immediate abatement of the alleged violation,
but rather should have given it a reasonable period of time to
return the hoist to service.
AKZO concludes that it did not violate section 57.11050
because it provided two escapeways to the mine surface and was,
at the time of the alleged violation, in fact, ensuring
compliance with a provision contained in that standard by
performing preventive maintenance to ensure that the hoist was
properly maintained. While the production hoist was unavailable,
miners still had access to the service hoist in the event of an
accident or emergency. AKZO disputes MSHA’s view that the
requirement of at least two escapeways means that both of them
must be functional at all times, and notes that section
57.11050(a) does not state such a requirement, and if this had
been the drafters’ intent, the standard would read otherwise.
AKZO believes that MSHA’s insistence on automatic evacuation
of the entire mine within one hour if only one of two hoists is
available is contrary to prior agency acceptable policy and not
supported by the language of the standard. AKZO concludes that
failure to subject this substantive requirement to notice,
comment, and publication unfairly allows MSHA to promulgate a new
rule with no benefit of participation from those in the affected
industry, and fails to provide industry fair and adequate notice
of the substantive requirements of § 57.11050(a). AKZO further
concludes that MSHA’s automatic evacuation policy also
constitutes a de facto order of withdrawal, although under §
104(a) of the Act, MSHA does not have such authority, and that
the new requirement is an improper interpretation of §
57.11050(a) which clearly exceeds MSHA’s authority. Finally,
AKZO concludes that MSHA’s one hour abatement period in the event
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of a hoist outage, regardless of the circumstances , is
unreasonable and ignores consideration of several factors,
including the risk of danger presented, in determining a
reasonable abatement period.
MSHA’s position is that AKZO violated the provisions of 30
C.F.R. 57.11050(a) by intentionally taking one of the mine’s two
escapeways out of service for a period of more than one hour
while allowing normal mining operations to continue. MSHA
asserts that any event, whether planned or unplanned, that makes
the escapeway unavailable for more than one hour constitutes a
failure to properly maintain at least two escapeways and that
miners must be evacuated until both escapeways are available for
use. MSHA asserts that the regulation requires “at least two”
separate “properly maintained” escapeways in order for miners to
be allowed underground unless they are developing the second
escapeway or are working to make the unavailable escapeway
“properly maintained” and available for use.
MSHA maintains that the requirement for two separate
escapeways is a fundamental cornerstone of a miner’s safety net
in the event of an emergency and that AKZO’s operation of its
mine with only one “properly maintained” available escapeway
while it fixes its unavailable escapeway is not allowed by the
regulation. MSHA asserts that an escapeway that is not available
for any reason is not “properly maintained,” and that the
regulations require the evacuation of the mine when only one
escapeway is available until both have been “properly maintained”
and are again available. In support of its evacuation argument,
MSHA asserts that section 104(c) of the Mine Act allows only the
miners needed to correct the deficiency in escapeways to be
present in the affected areas of the mine.
MSHA asserts that the regulation does not allow AKZO to
maintain normal mining operations until the end of the shift with
only one properly maintained and available escapeway for the
miners to use in the event of an emergency. MSHA believes that
in order to stay in compliance, AKZO must schedule its
maintenance for time periods when miners are not scheduled to
work, or in the alternative, construct a third escapeway.
In response to AKZO’s assertion that the obligation to
evacuate miners facially violates the requirement in section
104(a) of the Act that each operator be given a “reasonable time
to abate” a violation, MSHA takes the position that when a
violation can be avoided and is intentionally created, no time
for abatement is reasonable, because an operator does not have a
right to operate in knowing noncompliance with a mandatory safety
standard. However, to the extent that an operator is unaware of
the existence of a violation, MSHA concludes that the operator is
obligated under the Mine Act to abate the violation as soon as
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reasonably possible. If only one escapeway is available for use,
and the second one cannot be made available for use within one
hour, MSHA insists that miners must be evacuated since only one
escapeway does not achieve the level of safety mandated by the
regulation. MSHA further concludes that the one hour requirement
is a reasonable length of time for achieving compliance, based on
the language of 30 C.F.R. 57.11050(b), which provides that
escapeways shall be positioned so that miners may exit the mine
within one hour.
MSHA rejects AKZO’s contention that its current escapeway
enforcement position and application of section 57.11050(a) is
inconsistent with its past enforcement practices as evidenced by
an MSHA memorandum mentioned in footnote 8, pg. 69, of former
commission Judge Stewart’s decision in Secretary v. Potash
Corporation of America , 4 FMSHRC 56, 69 (January 1982), and the
1990 memorandum from MSHA District Manager James Salois. AKZO
concludes from those documents that it “was widely understood in
the industry” that a violation of section 57.11050(a) would be
cited pursuant to the “policy” set forth in Potash, allowing
operators to continue to work until the end of the shift whenever
an escapeway is damaged or unavailable for use.
MSHA takes the position that pursuant to Commission Rule 72,
29 C.F.R. 2700.72, an unreviewed Judge’s decision (Potash), is
not a precedent binding on the Commission. MSHA asserts that it
is evident from both of AKZO’s expert witnesses that there is
currently a clear understanding in the industry that whenever a
mine only has two escapeways, it is now industry practice to
evacuate the mine immediately whenever one of the escapeways is
unavailable for any reason. MSHA concludes that this establishes
that at some point after the Potash decision was issued fourteen
years ago, it became clear to the industry that the guidelines
noted in Potash had not been adopted and were in fact not
applicable. MSHA concludes that AKZO must concede that MHSA’s
interpretation, as asserted in this case, is the very position
understood and relied upon throughout most of the mining
industry.
MSHA maintains that equitable estoppel does not apply in
Mine Act proceedings and that all of AKZO’s assertions of
conflicting prior enforcement practices that were arguably
inconsistent with the requirements of the regulation and the
footnote in the Potash decision do not provide a defense to the
fact of violation of 30 C.F.R. 57.11050(a). MSHA concludes that
it is clear that AKZO and other mine operators have been aware of
MSHA’s interpretation that the unavailability of an escapeway
requires evacuation of the mine until the escapeway is returned
to normal use. In this regard, MSHA cites the Gomez letter of
December 1995, as evidence that any prior misunderstandings or
conflicts were resolved and that the letter clearly sets forth
reasonable applications of the requirements of section
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57.11050(a), as it relates to maintenance activities that make
the hoist, and thereby one of the escapeways in a two-shaft mine,
unavailable for use for various periods of time. MSHA points out
that AKZO was aware of the position incorporated in the Gomez
letter when it took the actions it took to challenge the
interpretations of the regulation in this case.
Finally, as argued in support of the asserted violations of
section 50.10, MSHA maintains that section 57.11050, is clear and
that a reasonably prudent person familiar with the mining
industry understands that what is required is consistent with
MSHA’s position. Assuming the regulation may be construed to be
unclear or ambiguous, MSHA nonetheless concludes that its
reasonable interpretation is entitled to deference and must be
broadly interpreted to achieve the statutory goal of protecting
the health and safety of miners.
Findings And Conclusions
Fact of Violation, Citation Nos. 4100787 and 4546275
The respondent is charged with two alleged violations of 30
C.F.R. 50.10, for failing to immediately notify MSHA of two
production hoist interferences that occurred on November 9, and
December 24, 1995. MSHA’s position is that the two incidents
were reportable as “accidents” because the unavailability of the
hoists was the result of maintenance work to shorten several
stretched hoist ropes, and that these interferences with the use
of the hoists constituted hoist “damage” and a reportable
“accident” pursuant to definition of those terms found in 30
C.F.R. 50.2(h)(11). MSHA has the burden of proving the alleged
violations by a preponderance of the evidence.
30 C.F.R. 50.10, provides as follows:
§ 50.10 Immediate notification.
If an accident occurs, an operator shall
immediately contact the MSHA District or
Subdistrict Office having jurisdiction over its
mine. If an operator cannot contact the
appropriate MSHA District or Subdistrict Office,
it shall immediately contact the MSHA Headquarters
Office in Arlington, Virginia by telephone, at
(800) 746-1553.
The applicable definition of “accident” found
in 30 C.F.R. 50.2(h)(11), is as follows:
Damage to hoisting equipment in a shaft or
slope which endangers an individual or which
interferes with use of the equipment for more than
thirty minutes.
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Webster’s New Collegiate Dictionary , defines “accident” in
part as: “1a: an event occurring by chance or arising from
unknown causes, b: lack of intention or necessity; an unexpected
happening * * * .”
Black’s Law Dictionary , Revised Fouth Edition, 1968, defines
“accident” as follows:
S an unusual, fortuitous, unexpected,
unforeseen or unlooked for event, happening
or occurrence;
S some sudden and unexpected event taking place
without expectation, upon the instant, rather
than something which continues, progresses or
develops;
S an uncommon occurrence;
S an unusual or unexpected result attending the
operation or performance of a usual or
necessary act or event;
Webster’s New Collegiate Dictionary defines “damage” as
“loss or harm resulting from injury to person, property, or
reputation.”
The Dictionary of Mining, Mineral, and Related Terms , U.S.
Dept. of the Interior, 1968, does not define “damage.” However,
the definition of “damaging stress” found at page 300, is stated
as follows:
The least unit stress, of a given kind and
for a given material and condition of service,
that will render a member unfit for service before
the end of its normal life . It may do this by
producing excessive set, or by causing creeping
fatigue cracking, excessive strain hardening, or
rupture. (Emphasis Added)
Inspector Foster’s understanding of section 50.10, as
applied to hoists, is that the thirty minute time period referred
to in the section 50.2(h)(11), definition of accident, does not
apply if the idled hoist can be put back in service within
fifteen minutes. He confirmed that a hoist can be idled for an
entire shift, as long as it can be re-activated within fifteen
minutes (Tr. 28).
Inspector Foster believed that a hoist that is unavailable
for use because of ice in the shaft, a condition that he
characterized as “a natural occurrence,” need not be reported,
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regardless of the downtime duration as long as there is no hoist
damage, accident, or miner hazard exposure (Tr. 34). This
comports with MSHA’s Part 50 Program Circular interpretation
(Exhibit C-10, Tab F), but is contrary to MSHA’s interpretation
that does not exempt “natural occurrences,” and requires all
hoist outages longer than thirty minutes to be immediately
reported.
Inspector Foster’s supervisor, C. Okey Reitter, confirmed
that he issued the citation, and it was his understanding that
the thirty-minute regulatory reference in question refers to the
time that it would take to put an idled hoist back into service .
As an example, he stated that if a hoist was out of service for
an hour, as long as it could be put back in service within thirty
minutes, there is no reportable hoist outage. Mr. Reitter
identified the source of his interpretation as the Gomez letter
of December 8, 1995, and confirmed that this was the only written
guidance that he was aware of (Tr. 33-34).
Inspector Strickler believed that a hoist that is down for
more than 30 minutes must be reported to MSHA, and he believed
that an idled hoist “is unusable and broken” (Tr. 28-30).
Inspector Bilbrey’s understanding is that a hoist that is
out of service for more than thirty minutes would be considered a
reportable accident. He believed that an idled hoist that can be
restored to service in fifteen minutes and was not unavailable
for more than an hour would not be a reportable accident (Tr.
20). However, Mr. Bilbrey did not believe that a hoist that is
taken out of service for preventive maintenance constituted an
“accident” (Tr. 15). In his opinion, preventive maintenance is
“something that would prevent a breakdown and something that
would be done before the equipment is broken.” He defined
“damage” as “inoperative” but stated that this would not include
equipment that is intentionally taken out of service for
maintenance purposes (Tr. 15). Mr. Bilbrey did not know if an
inoperable hoist that is idled for more than thirty minutes by
ice in the shaft would be considered a reportable accident, and
stated that he would have to consult with his supervisor in this
regard (Tr. 23).
Inspector Backland testified that a planned hoist outage is
“probably” not reportable if the hoist can be activated within
ten to fifteen minutes, but if the outage is in excess of thirty
minutes, it is reportable. He further testified that preventive
maintenance in excess of thirty minutes is not an “accident”
pursuant to section 50.2(h), and that such maintenance could be
on-going for a full shift. He then stated that preventive
maintenance that takes a hoist out of service for more than
thirty minutes need not be reported as long as the hoist can be
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put back in service within a reasonable amount of time, but there
is no fixed time for completing maintenance or reactivating the
hoist (Tr. 20-21).
In response to a question as to whether or not a hoist that
is taken out of service to adjust an undamaged rope needs to be
reported, Mr. Backland responded that “It’s a tough question to
answer . . . I don’t know. I would probably have to converse
with my supervisor on that” (Tr. 24).
Inspector Breland believed that any hoist that is interfered
with for more than 30 minutes is reportable regardles of the
number of hoists in operation and regardless of the reason for
the outage (Tr. 66). However, he would consider a “natural
occurrence,” such as ice in the shaft, not to be reportable
unless there is no other way out of the mine (Tr. 67).
MSHA’s District Manager Salois testified that any event
specifically related to a hoist that takes it out of service for
more than thirty minutes is reportable damage. He would not
consider ice in the shaft that idles a hoist to be reportable,
unless the ice actually damaged the hoist (Tr. 75-76).
In Jim Walter Resources, Inc. , 17 FMSHRC 209 (February
1995), Commission Judge Barbour affirmed a violation of section
50.10, for a failure by the operator to immediately notify MSHA
of a hoist accident that resulted in the hoist being out of
service for over 30 minutes. The facts reflected that a skip
hoist stopped after losing its source of power. Upon
investigation by management at the hoist house containing the
hoist motor and drum, it was discovered that there was damage to
the hoist drum neoprene wearing strips which help to maintain
proper tension on the hoist ropes which are seated into grooves
on the drum as the ropes wind and unwind. The ropes were
slipping on the wearing strips and the resulting friction heated
the strips to the point where they had begun to melt and smoke.
The condition of the hoist was not reported until many hours
after the damage occurred.
The principal issue in Jim Walter was the application of
sections 50.2(h)(11) and 50.10 to a hoist that transported coal
and/or materials rather than miners. Judge Barbour found that
the accident reporting requirement in section 50.10, applied
equally to a hoist used to transport coal and materials and a
hoist used to transport miners. However, I take note of the
decision, at 17 FMSHRC 215, summarizing the testimony of the MSHA
inspector who had 13 years of service. Judge Barbour noted as
follows:
Tuggle stated that the regulations require
the reporting of all hoisting accidents which
result in a hoist being out of service for over
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thirty minutes, unless the hoist it out of service
for routine maintenance (Tr. 70-71). He stated,
“[if] it’s mechanical failure, which damages the
hoisting system for more than 30 minutes . . . it
needs to be investigated . . . [I]f the mechanical
damage it due to an accidental breakdown of the
components . . . it needs to be investigated. But
if it’s due to normal wear then, no, I don’t think
it needs to be investigated ” (Tr. 93). (Emphasis
Added)
It would appear to me that the experienced inspector in Jim
Walter did not believe that hoist outages for over thirty minutes
caused by routine maintenance or normal wear were required to be
immediately reported to MSHA pursuant to section 50.10. It would
further appear that the inspector would only require the
reporting and investigating of hoist incidents involving
mechanical failure resulting in damage to the hoisting system or
mechanical damage due to a breakdown of the hoist components.
In the instant proceedings, the common thread binding the
opinions of the inspectors with respect to the interpretation and
application of section 50.10, and the meaning of the terms
“damage” and “accident” is their inconsistent and contradictory
testimony offered in support of the violations. Under the
circumstances, I cannot conclude that a reasonably prudent person
familiar with the mining industry would understand that any
interruption to the use of a hoist renders it damaged and
reportable pursuant to section 50.10. If the experienced
inspectors charged with the enforcement of this regulation are
uncertain as to its meaning and application, I would not expect a
reasonably prudent mining person to be clear as to what is
required to be reported. Indeed, district manager Salois
conceded as much when he said he was unsure as to whether
everyone understood the reporting requirements as he did.
With respect to the use of the word “damage,” the testimony
of record reflects a variety of opinions. Mr. Foster testified
that the hoist was idled on November 9, 1995, because the ropes
that experienced some stretching were being tightened. Although
he was of the opinion that the stretching of the ropes
constituted damage, he conceded that he had no knowledge of any
hoist malfunctions, and he admitted that he had no factual basis
to support any conclusion that the ropes had stretched to a point
that would cause them to skip (Tr. 35-37).
Mr. Reitter confirmed that prior to the idling of the hoist,
it was not broken and was functioning fine. The work that was
performed was done to preclude future rope problems (Tr. 42-44).
He believed the hoist was “damaged” because it was out of service
and unavailable for use for more than thirty minutes and could
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not be used. In his opinion, a hoist that cannot be used for
more than thirty minutes is “damaged” per se. (Tr. 44).
I find Mr. Reitter’s explanations with respect to the
meaning of the term “damage” to be contradictory and confusing.
On the one hand, he believed that a hoist that is idled for more
than thirty minutes is damaged, but a hoist that is idled for one
hour is not damaged, as long as it can be put back into service
within thirty minutes. Further, Mr. Reitter’s explanations
contradict Mr. Foster’s opinion based on a 15 minute window of
opportunity for putting an idled hoist back into service.
Unlike Inspector Foster, Inspector Backland believed that
the stretching of a hoist rope is normal and does not indicate
that the hoist is damaged or not functioning properly (Tr. 23).
I find Mr. Backland’s testimony to be the more credible.
Inspector Breland assumed that the maintenance performed on
the cited hoists was done to prevent damage. He also testified
that damage occurs when a hoist is placed in service, but then
stated that it becomes an “accident” when the “damage” interferes
with hoisting for more than thirty minutes (Tr. 62). I find his
testimony to be contradictory and incredible, and he obviously
had no evidence that the hoists were physically damaged other
than his speculative assumptions that the maintenance was somehow
connected with some unexplained damage.
District Manager Salois did not know whether the cited hoist
ropes had stretched to a point beyond the allowable tolerances
(Tr. 61-64). He also had no factual knowledge that the ropes
were changed out because they were damaged and could no longer be
used (Tr. 69-70). Further, I find his testimony that a hoist
rope is damaged when it is placed in service and subjected to
stretching to be incredible and lacking any evidentiary support.
His testimony contradicts Inspector Backland’s belief that rope
stretching is normal. Further, when asked if his opinion
regarding rope damage is understood by the average miner, Mr.
Salois responded “I’m not sure everybody would look at it that
way” (Tr. 68-69).
Hoisting consultant Tiley distinguished rope deterioration,
fatigue, and damage. He believed that damage begins when rope
retirement is required, and that prior to this time “it’s just
useful life” (Tr. 33). Contrary to the opinion of Mr. Salois,
Mr. Tiley did not believe that a newly manufactured hoist rope
with broken wires was damaged, and he agreed with Inspector
Backland’s belief that rope streching is expected and does not
constitute damage (Tr. 74). He also confirmed that the hoist
ropes in questions were not retired because of stretching or were
no longer fit for use (Tr. 75). I find Mr. Tiley’s testimony in
this regard to be credible. Although he alluded to a “corrosive”
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mine atmosphere, I find no credible evidence that the cited ropes
were damaged by corrosion when they were cited, and the citations
do not state that they were.
Mining engineering consultant Head defined “damage” as an
“unexpected faulty condition” that implies “an accidental sudden
occurrence” that is the opposite of preventive maintenance
performed to prevent such unexpected events (Tr. 37-39). He
further indicated that damage is akin to the physical breakdown
of a hoist part, and I find his testimony to be credible.
MSHA’s hoist specialist Barkand was of the opinion that
damage and normal wear and tear are no different and that normal
wear and tear causes damage. However, he offered no credible
testimony that the cited hoists were damaged due to normal wear
and tear, and he conceded that he did not examine the ropes
closely (Tr. 22, 41). He cited rope wire wear and nicking as the
primary causes of damage, but offered no evidence that these
hoist conditions were present in the instant cases. Indeed, he
confirmed that the “constructive stretching,” of a hoist rope,
which results in the loss of rope diameter and increased
lengthening is not damage (Tr. 32-33).
The parties stipulated that when the cited ropes were
shortened they had not stretched beyond the limits allowed by
MSHA’s retirement criteria. MSHA has presented no credible
evidence that the cited hoists were physically damaged or
inoperable, or that the hoist ropes exceeded their normal life
expectancy or were not installed or maintained within the
applicable hoist rope specifications or tolerances. Further, the
citations were issued as non-”S&S” violations, and I find no
credible evidence to support any reasonable conclusion that any
miners were exposed to a hazard.
It would appear to me that the purpose and intent of the
Part 50 reporting requirements, as stated in section 50.1, is to
provide MSHA with information in connection with mine accidents,
injuries, and illnesses in order to enable MSHA to respond to
those events by investigating and developing facts to ascertain
the causes of such incidents, and to enable MSHA, in cooperation
with the mine operator, to find the ways and means for preventing
recurrences. A secondary purpose appears to be the establishment
of a system of reporting that will enable MSHA to compile
accident, injury, and illness statistics as a means of “tracking”
such events for publication and dissemination to the mining
community as a means of identifying problems associated with
these events.
Insofar as the definition of “accident” associated with
hoisting equipment as stated in section 50.2(h)(11) is concerned,
I have difficulty in understanding how a planned routine
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preventive maintenance procedure that is performed to prevent
damage and insure continued compliance with sections 57.11050(a),
in the absence of any actual hoist damage or hazard exposure to
miners, can reasonably be construed to constitute a reportable
accident pursuant to section 50.10. I cannot conclude that
requiring the reporting of such incidents is reasonably related
to the intent and purpose of sections 50.10 and 50.20.
MSHA’s position that any interference with the use of a
hoist for more than thirty minutes, regardless of the reason, and
notwithstanding the absence of any physical damage, nonetheless
constitutes damage that is immediately reportable as an accident
pursuant to section 50.10, IS REJECTED as an unreasonable and
rather strained interpretation of the common use of the word
“damage.”
As noted earlier in the Potash Company of America case, 4
FMSHRC 56 (January 1982), former Commission Judge Stewart
concluded that in the absence of any evidence of physical damage
to a hoist which interferes with its use, it is not “damaged”
within the common understanding of that word or the meaning of
section 50.2(h)(11), and the interference does not constitute an
“accident” under the immediate notification requirement found in
section 50.10.
I conclude and find that the common and ordinary meaning of
“damage” in connection with the cited hoists connotes some
readily recognizable physical damage that renders the hoist
inoperable and requiring some repair to place it back in service.
In this regard, I agree with Judge Stewart’s decision in the
Potash case, and I conclude and find that absent any evidence of
some physical damage to the cited hoists, taking them out of
service for reasons unrelated to any such damage, such as routine
preventive maintenance where no damage repairs are made, does not
amount to a reportable accident within the scope and intent of
section 50.10.
In my view, if MSHA desires the definition of a reportable
“accident” to include hoisting equipment that is idled for more
than thirty minutes for any reason, it should take the
appropriate procedural steps to re-draft and amend the regulatory
definition found in section 50.2(h)(11).
In view of the foregoing, I conclude and find that MSHA has
failed to establish any violations of section 50.10, by a
preponderance of the credible evidence adduced in these
proceedings. ACCORDINGLY, the contested citations ARE VACATED.
The parties agreed to hold the disposition of Citation No.
4546323 (Docket No. LAKE 96-80-RM) in abeyance pending my
decisions concerning section 50.10. The citation concerns an
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alleged violation of section 50.20(a), because of AKZO’s failure
to submit MSHA Mine Accident, Injury, and Illness Report Form
7000-1, for hoist maintenance outages of more than thirty
minutes. In view of my findings that such hoist outages are not
reportable accidents, I conclude and find that AKZO was not
obliged to submit the form in question. ACCORDINGLY, the
contested citation IS VACATED.
Fact of violation. Citation No. 4546276
The respondent is charged with a violation of 30 C.F.R.
57.11050(a), for allegedly failing to provide underground miners
with two properly maintained escapeways on December 24, 1995.
The cited production hoist, which was one of the escapeways, was
not available for use for approximately three hours and thirty-
seven minutes while the hoist rope was being shortened. Section
57.11050(a), provides as follows:
(a) Every mine shall have two or more
separate, properly maintained escapeways to the
surface from the lowest levels which are so
positioned that damage to one shall not lessen the
effectiveness of the others. A method of refuge
shall be provided while a second opening to the
surface is being developed. A second escapeway is
recommended, but not required, during the
exploration or development of an ore body.
The parties stipulated that a planned shut down of the cited
hoist escapeway occurred on December 24, 1995, in order to
shorten all of the hoist ropes and to afford AKZO an opportunity
to challenge the application of section 57.11050(a). The
duration of the shut down was over three hours, no miners were
evacuated, and three miners (a mechanic, an electrician, and a
foreman) remained underground checking fans and pumps, and
performing maintenance on the service hoist. No salt extraction
occurred during the shut down and no cutting or welding was
taking place.
The Evolution of MHSA’s Asserted “One-hour” Evacuation “Policy”
Past “Policy”
I find no credible evidence of the existence of any written
MSHA National policy statements prior to the institution of the
instant litigation, concerning mandatory evacuation of the entire
mine for a violation of section 57.11050(a), if compliance is not
achieved within one hour, the fixing of an “automatic” one-hour
abatement time to achieve compliance, or the uniform enforcement
methods to be followed by MSHA inspectors when citing a mine
operator for a violation of section 57.11050(a).
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The evidence establishes that on February 22, 1990, MSHA’s
Metal/Non-metal North Central District Manager Salois issued a
memorandum concerning the interpretation and application of
section 57.11050(a), to be followed by his district inspectors
when citing mine operators in that district, including AKZO’s
Cleveland Mine (Index of Exhibits, Tab G).
The Salois memorandum guidelines did not require the
immediate evacuation of miners if a hoist was unavailable for use
for more than one hour. In a planned hoist maintenance/repair
situation, if one of the hoists was disabled as a result of this
work, it was permissible to continue the work through the end of
the shift, with miners underground, as long as the second hoist
was available. The same rule essentially applied to unplanned
hoist repair shutdowns.
I take note of the fact that the Salois memorandum, at page
3, specifically noted the absence if any MSHA national policy for
“Mine Evacuation Related to Hoist Repairs/Maintenance Affecting
Two Escapeways,” the subject of the memorandum. The memorandum
further noted, on the first page, that when compared to five
other MSHA district practices, the practices in Mr. Salois’
district were “substantially different.” Since Mr. Salois states
that his district should follow the other district practices and
since his memorandum was apparently issued to accomplish this, I
believe it is reasonable to assume that the other districts
followed a similar practice of allowing hoist repairs to be made
during a production shift, and through the end of the shift,
without requiring the immediate evacuation of the mine within an
hour of discovering that a hoist was in need of repair.
Mr. Salois testified that he withdraw his memorandum in
February, 1995, because he lacked the authority to establish
enforcement policy for his district and his policy was
inconsistent with MHSHA’s national policy. Although Mr. Salois
indicated that prior to the issuance of his memorandum, miners
were required to be out of the mine when hoist maintenance was
performed, no evidence was produced to establish the existence of
any written MSHA policy requiring the evacuation of miners.
Indeed, Mr. Salois stated that his understanding that mine
evacuation was required when hoist work was performed came from
what he “learned on the job.” Further, although Mr. Salois
stated that other district managers informed him that his
memorandum was inconsistent with the policy they were following,
no credible evidence was produced to establish the factual
existence of any written policy in these other districts.
Supervisory Inspector Reitter, who never visited the AKZO
mine, testified that he first became aware of the Salois
memorandum after he became a supervisor in MSHA’s Newark, Ohio
district, and he was unaware of the memorandum for the following
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year until it was called to his intention by AKZO at the time it
was rescinded. He confirmed that his inspectors were following
the policy, and that if he were aware of it, he too would have
followed it.
Inspector Strickler, who inspected AKZO’s mine, never saw
the Salois memorandum but heard about it from other inspectors in
his office who informed him that at one time miners were allowed
to work underground until the end of the shift. He stated that
this was contrary to the policy in Illinois where a mine operator
evacuated miners immediately. However, I find no evidence of the
actual existence of any such written policy.
Inspector Bilbrey testified that he never saw the Salois
memorandum, and learned about the unwritten policy for mine
evacuation when a hoist was out at a staff meeting and verbally
from his supervisors, including Mr. Reitter.
Inspector Backland, who also inspected AKZO’s mine,
testified that he was aware of the Salois memorandum in 1990, but
did not believe it was the policy in his district. He did,
however, believe the stated “time element” should be followed.
Mr. Gomez testified that he became aware of the Salois
memorandum a year ago. He was concerned because it was contrary
to what he considered to be MSHA’s policy. He explained that
when he served as manager of MSHA’s Rocky Mountain District in
February 1990, his policy was to require mine evacuation if there
were no properly maintained escapeways. If one escapeway was
down and could not be restored in one hour, a violation of
section 57.11050(a), would occur. Mr. Gomez stated that he
contacted every past and present district managers to determine
if they had a policy such as the one stated in the Salois
memorandum, and he found no such policy. He further stated that
during the eleven years he served as a district and subdistrict
manager, he was not aware of the regulatory interpretation stated
in that memorandum and he believed it was “internally
inconsistent.”
Mr. Breland stated that he first saw the Salois memorandum
in the fall of 1995, during a meeting with AKZO representatives
and MSHA officials. He was never aware of any policy change as
stated in the Salois memorandum, and he always followed the
“instant violation and hour to abate” policy.
Mr. Breland alluded to an inquiry from MSHA’s Dallas acting
manager over a year ago regarding any change in policy that would
not require the evacuation of miners under section 57.11050(a) at
one of AKZO’s mines in Lousiana when maintenance was performed on
a hoist. After consulting with Mr. Gomez, Mr. Breland advised
the manager that there was no policy change and miners would have
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to be evacuated. If would appear to me that Mr. Breland’s advice
to the manager was based on the Gomez letter of December 8, 1995.
The record includes a copy of a Morton Salt Company
memorandum dated March 10, 1980, stating an interpretation by
MSHA’s Dallas District office with respect to the intent of
section 57.11-50. That interpretation is the same as the Salois
policy memorandum of February 22, 1990, allowing production to
continue until the end of the shift while the unavailable hoist
is again made available. (Index of Exhibits, Exhibit D).
Mine Consultant Tiley initially testified that changing
hoist ropes with miners underground when there is only one
additional way out of the mine is a good mining practice and a
normal process in the worldwide mining community. He later
corrected himself and indicated that the practice of allowing
miners to remain in a two shaft mine when one of the hoists is
down applied to Canadian miners and not to U.S. miners. He was
aware of MSHA’s “one-hour” rule requiring mine evacuation if a
hoist is down for more than an hour and he believed that this was
the practice in American mines.
Mine consultant Head testified that the evacuation of miners
from a two-hoist mine if one of the hoists is out of service for
more than an hour is standard practice among several MSHA
districts. He confirmed that many mine operators recognized that
this was a policy change that occurred in the past two or three
years, and that the prior policy followed in Mr. Salois’ North
Central District, did not pose an evacuation problem until the
end of the shift. Mr. Head further confirmed that the prior
practice in a two-hoist mine allowed work to continue until the
end of the shift if one hoist was unavailable, and immediate
evacuation was not required.
Present “Policy”
MSHA’s position is that the Gomez letter of December 8,
1995, to AKZO’s counsel constitutes the prevailing definitive
interpretations of section 57.11050. Notwithstanding the absence
of any regulatory language requiring the evacuation of miners
within one hour for non-compliance, MSHA relies on the Gomez
interpretation to support the cited violation of section
57.11050(a). The relevant portion of the letter states as
follows:
With respect to the escapeway issue, 30
C.F.R. 57.11050 requires that producing mines have
two or more escapeways from the lowest level of
the mine to the surface. The standard also
requires that a method of refuge be provided for
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all underground miners who can not reach the
surface within 1 hours using both of the
escapeways.
During the March meeting we discussed the
need for evacuating miners from the Cleveland
Mine, or any other mine, during hoist outages when
the minimum requirements for escapeways could not
be met because the hoist was unavailable for use
in one of the two escapeways.
We believe that the standard does not
authorize maintenance to interefere with a mine
operator’s ability to use the hoist in the event
of an emergency if it is part of, or one of, the
two required escapeways.
We also informed AKZO officials at the March
meeting that, as a practical application of this
standard, if a hoist could be returned to service
within 1 hour of the need to be used then
evacuation of the mine would not be required.
This action would comply with the 1-hour time
provided for in 30 C.F.R. 57.11050(b) and the
requirement to have two escapeways available.
* * * *
* * * * Put another way, we believe that the
language and clear intent of the standard
indicates that routine maintenance is allowed with
miners underground, if, at all times, a hoist can
be reactivated and miners withdrawn from the mine
within 1 hour. Your second conclusion that the
mine need not be evacuated, regardless of the
length of a hoist outage so long as it could be
placed back into service and miners withdrawn from
the mine within 1 hour, is correct.
The Gomez letter is a private communication to AKZO’s
counsel Savit in response to his request of November 6, for an
explanation of MSHA’s interpretation of section 57.110509 (Index
of Exhibits, Tab N). The record reflects that the Gomez
response was prepared unilaterally and was not shared with other
members of the mining community, and its contents have
apparently never been reduced to other written form or included
as part of MSHA’s enforcement guidelines or policy manuals.
Indeed, MSHA’s policy with respect to section 57.11050, as
stated in the manual, has apparently not been revised or updated
since 1988.
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The record further reflects that prior to the
November/December 1995, exchange of the aforementioned
correspondence, a legal assistant in Mr. Savit’s firm, in a
letter dated September 11, 1995, to the Secretary’s solicitor’s
office in Arlington, Virginia, requested a copy of the proposed
section 57.11050, program directive referred to in the Potash
decision of January 19, 1982, as well as other explanatory
memorandums dealing with that regulation (Index of Exhibits,
Exhibit L). The letter was referred to Mr. Gomez’s office, and
it was answered on October 20, 1995, by letter from Mr. C.
Narramore, who signed it for Mr. Gomez. The response included a
page from MSHA’s July 1, 1988, Program Policy Manual regarding
section 57.11050, and statements that copies of the requested
memorandum could not be located, and that they were superceded
by the program policy.
Apart from the Gomez letter, there is no evidence that the
interpretation stated by Mr. Gomez is in fact reduced to any
other written form as a means of notifying mine operators about
MSHA’s mine evacuation and abatement requirements, or providing
guidelines or procedures for MSHA’s inspectors to follow when
inspecting and citing mine operators for violations of section
57.11050(a).
Inspectors Foster, Reitter, Strickler, Bilbrey, and
Backland all confirmed that section 57.11050(a), contains no
language requiring mine evacuation in the event a disabled hoist
escapeway could not be put back in service within one hour, and
they were unaware of any regulation that required automatic mine
evacuation within any particular time frame. With regard to
their understanding of what is required pursuant to section
57.11050(a), there appears to be inconsistent, uncertain, and
confusing enforcement practices among MSHA’s inspectors as to
the interpretation and application of this regulation, examples
of which follow below.
Inspector Reitter, who has never been in the mine, but who
nonetheless “supervised” Mr. Foster in issuing the citation, was
unaware of any written MSHA directive (except the Gomez letter)
requiring mine evacuation. His belief that one of two hoist
escapeways could be unavailable for one hour was based on the
one-hour normal life of a self rescue device, and “word of
mouth” discussions with other inspectors.
Inspector Bilbrey believed that when section 57.11050(a),
is cited because a hoist is unavailable and cannot be returned
to service within one hour, evacuation must begin. However, he
further believed that a mine operator had a “floating time”
frame to determine that the hoist cannot be restored to service.
He explained that one hour would be allowed to make the initial
unavailability determination, and that evacuation could begin
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during the next hour. He confirmed that there is no written
policy supporting his interpretation.
Inspector Backland believed that in the event of a “planned
maintenance situation,” if it takes more than one hour to repair
a hoist evacuation must begin. His belief in this regard
“relates” to the one-hour life of a self rescue device, and he
confirmed that there is no MSHA written policy in this regard.
However, he believed it is district policy, but could not recall
who advised him of this.
MSHA’s Safety Division Chief Breland’s interpretation that
section 57.11050(a), requires the evacuation of the mine within
one hour after non-compliance is based on his understanding of
subsection (b), the one-hour life of a self rescuer, and MSHA’s
fire evacuation standards. However, Inspector Strickler
testified that a fire that is out of control for more than 30
minutes must be reported, but no evacuation of the entire mine
is required, and a separate order would be required to achieve a
mine evacuation.
Inspector Foster’s “one-hour” evacuation interpretation is
based on the one-hour oxygen supply of a self rescue device, his
“experience” in coal mines, and conversations with fellow
inspectors and supervisors.
Inspector Strickland believed that if a hoist were down for
30 minutes, and could not be restored within the next 30
minutes, evacuation must begin. He was not aware of any MSHA
“one-hour evacuation” policy, and he based his belief in this
regard on the one-hour self rescue device, and his “experience”
and conversations with other inspectors.
Mr. Salois testified that he was not aware of any written
MSHA National policy determination concerning section 57.11050,
but that based on what he “learned on the job, miners have to be
evacuated when hoist work is performed.” He believed that the
regulation required two separate escapeways at all times, and if
only one was available, this would constitute non-compliance.
Although Mr. Salois claimed ignorance of any section
57.11050(a) national policy, Mr. Gomez stated that his December
8, 1995, letter states the current enforcement mine evacuation
policy for non-compliance. However, contrary to his earlier
testimony concerning the policy aspects of his letter, Mr. Gomez
later testified that his letter does not state any policy and
that he does not always issue policy when answering letters of
inquiry. In explaining further, Mr. Gomez stated there are
different methods and ways of handling and instituting agency
policy, and he cited his letter as one of these methods. I find
his explanation to be confusing and contradictory.
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The record further reflects a variety of methods that
inspectors would follow in citing violations of section 57.
11050(a), and requiring abatement. Inspector Strickland did not
believe that section 104(a) required the withdrawal of miners
while abatement is ongoing, and he confirmed he had no authority
under section 104(a) to order mine evacuation. However, based
on his “experience,” he believed that section 57.11050(a),
authorized him to evacuate a mine and that a separate order was
not required. He also believed that a one-hour abatement time
is reasonable based on the one-hour useful life of a self
rescuer.
Inspector Bilbrey questioned his authority to require mine
evacuation. Inspector Reitter believed that a section 104(a) or
(d) citation does not require withdrawal from a cited area.
However, if a hoist were unavailable for one hour, he would
issue a section 104(a) citation, with a short abatement time,
and would require mine evacuation by issuing a section 104(b)
order if the hoist could not be restored to use within the hour.
Mr. Salois would achieve compliance with section
57.11050(a), by issuing a section 104(a) or (d) citation if
there were no imminent danger, and he would fix the abatement
time at one hour.
Inspector Foster confirmed that a section 104(a) citation
does not require the withdrawal of miners, and he conceded that
there is no language in section 57.11050(a), requiring mine
evacuation in the event of non-compliance. However, in the
instant case, he considered the section 104(a) citation that he
issued to be a withdrawal order with a one-hour abatement time
regardless of the condition of the hoist, and without regard to
the other work being performed underground, or the likelihood of
a fire. I note from the pleadings however, that the citation be
issued was issued at 8:03 a.m., on January 25, 1996, and he
fixed the abatement at 5:00 p.m., the next day, January 26,
1996.
Inspector Strickler initially indicated that the fixing of
a reasonable abatement time is left to the inspector’s
discretion after consultation with the mine operator as to the
time it would take to correct the condition. He later indicated
that a reasonable time for abatement would be one hour based on
the useful life of a self rescuer.
Mr. Salois indicated that he would fix the abatement time
at one hour, and would extend the time to focus on other
problems, but only after the mine was evacuated. He further
stated that a one-hour abatement time is reasonable regardless
of the circumstances, and that based on section 57.11050(a), an
inspector has no discretion to grant more than an hour for
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abatement because two properly maintained escapeways would not
be available.
Mr. Breland believed that one-hour is a reasonable
abatement time because “that is what we expect in the
evacuation,” without regard to how long it might take to reapir
a hoist or the number of people underground.
Mr. Backland believed that all of the circumstances
presented must be evaluated in fixing a reasonable time to abate
a violation.
Mr. Gomez suggested that an inspector could issue a
citation with a “short” abatement time of less than one hour,
followed by a section 104(b) withdrawal order. He was of the
opinion that the absence of two functional escapeways
constituted a per se imminent danger, and he would achieve
compliance by initially issuing a section 104(a) citation,
followed by an imminent danger order if a cited unavailable
hoist was not restored to use within one hour.
The Gomez letter, at page 4, quotes a passage from Judge
Hodgdon’s decision in Savage Zinc, Inc., 17 FMSHRC 279,290
(March 1995), addressing the “S&S” hazard in failing to have two
escapeways. In that case, Judge Hodgdon affirmed a violation of
section 57.11050(a), after concluding that the mine had only one
escapeway. I take note of the fact that contrary to MSHA’s
asserted policy of requiring mine evacuation within one hour in
the absence of at least two escapeways, and the automatic one-
hour abatement rule, the inspector in the Savage Zinc case
issued a citation, did not require the immediate evacuation of
miners, and fixed the abatement time at one month, not one hour.
I further note that the citation was issued on October 14, 1994,
prior to the January 8, 1995, Gomez letter. In any event, the
failure to immediately evacuate the mine, and allowing 30 days
to abate appears to be contrary to Mr. Gomez’ avowed “long-
standing” policy of immediate mine evacuation and short, one-
hour abatement in the absence of two available escapeways.
MSHA’s reliance on subsection (b) of section 57.11050, as
its authority for requiring evacuation of the entire mine if one
of the two escapeway hoists is unavailable for more than one
hour is rejected. Subsection (b), on its face, does not provide
for any mine evacuation. Indeed, the plain language of
subsection (b) provides for refuges, not evacuation, if miners
cannot reach the surface within an hour by using the escapeways
provided by subsection (a). AKZO is not charged with a
violation of subsection (b). In any event, it is my view that if
the rule makers had intended to require the evacuation of the
entire mine, they would have clearly included this as part of
the regulation.
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MSHA’s assertion that section 104(c) of the Act supports
its belief that all miners are required to be evacuated from the
mine when one of the two escapeways is unavailable for use
because that section allows only the miners needed to correct
the escapeway deficiency to be present in the affected mine
areas is not well taken, and is rejected. In my view, section
104(c) of the Mine Act provides no independent evacuation or
withdrawal authority or requirement. That section must be read
in conjunction with the citation/order scheme found in section
104, and comes into play when a citation or withdrawal order
requiring abatement is issued. In the instant case, the
violation was issued as a section 104(a) non-”S&S” citation.
MSHA’s suggestion, at page 8 of its initial responsive
brief, that no time for abatement is reasonable because AKZO
“intentionally” created the violation in order to test the
application of section 57.11050(a), and “knowingly” violated the
law is not well taken and is rejected. AKZO specifically
informed MSHA of its intentions, and MSHA willingly accommodated
AKZO. In short, I conclude and find that MSHA was a cooperative
and knowing participant, and cannot now complain and seek
additional punishment against AKZO. I find nothing to suggest
that MSHA ever initiated any section 110(c) proceedings against
AKZO officials for any “knowing” violations. Further, the
alleged violation was issued as a section 104(a) non-”S&S”
citation, and AKZO was never charged with any aggravated or
unjustifiable or inexcusable conduct for any unwarrantable
failure noncompliance.
I disagree with MSHA’s assertions that its requirements
pursuant to section 57.11050(a) are clear and unambiguous, and
that a reasonably prudent person familiar with the mining
industry understands them. Apart from the Gomez letter of
December 8, 1995, which admittedly was not shared with other
mine operators, there is no evidence that MSHA has ever
published its contents as part of its policy manual, inspector
guidelines, or in any communications to the mining community at
large. It seems obvious to me from the testimony in this case
that the inspectors themselves do not have a clearly defined and
consistent understanding with respect to the interpretation,
application, and enforcement of section 57.11050(a). Except for
ad hoc interpretations, “word-of-mouth” advice, and possibly a
copy of the Gomez letter, it does not appear that MSHA’s
districts and inspectors have at their disposal a clearly
defined written official agency enforcement policy to follow,
particularly with respect to the issuance of citations and
orders, and the fixing of abatement times.
I find nothing in section 57.11050(a), that supports MSHA’s
position that mine evacuation must begin immediately if one of
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the two designated hoist escapeways is unavailable for more than
one hour, nor do I find support for MSHA’s position that the
cited hoist was not properly maintained because it was
unavailable for more than one hour.
I conclude and find that the regulatory language requiring
the positioning of escapeways so that damage to one shall not
lessen the effectiveness of the others recognizes the fact that
one escapeway in a two escapeway mine may not always be
available at all times because of damage. I believe that this
would also apply to a situation where a hoist is taken out of
service for maintenance to insure that it is kept in a properly
maintained condition.
In the instant case, the cited condition or practice
includes a finding that during part of the time the cited
production hoist was out of the service, the primary service
hoist was also out of service for a maintenance procedure which
did not result in its use being interfered with for over 30
minutes. Since there is no evidence that the service hoist was
damaged, or that its use was interfered with for more than
thirty minutes pursuant to section 50.2(h)(11), I cannot
conclude that the fact the production hoist was out of service
lessened the effectiveness of the service hoist within the
meaning of section 57.11050(a).
I conclude and find from the record in this case, that
prior to the December 8, 1995, Gomez letter, MSHA’s inspectors
in the North-Central District, and probably other districts,
followed an apparent long standing practice of not requiring the
evacuation of miners working underground when only a single
escapeway was available during a shift. This practice allowed
production to continue until the end of the shift, provided
miners were notified that only one escapeway was available and
they agreed to continue working until the end of the shift, and
provided the next shift was not permitted to go underground
until the second escapeway was repaired.
In the instant case, the cited production hoist was out of
service for maintenance, and I find credible AKZO’s assertion
that the rope shortening work was being done to insure continued
compliance with the regulatory requirement that the hoist be
properly maintained. I find it reasonable to conclude that if
MSHA were following its pre-Gomez letter policy, a citation
would not have been issued and work would have been allowed to
continue until the end of the shift until the unavailable hoist
was restored to service.
After further careful review and consideration of the
arguments presented by the parties, I agree with AKZO’s position
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that MSHA’s automatic one-hour mine evacuation requirement, a
requirement clearly not contained in cited section 57.11050(a),
is a significant departure from MSHA’s apparent prior practice
that has a substantial adverse impact on AKZO’s mining rights
and compliance obligations. The same can be said for MSHA’s
automatic one-hour abatement practices that appear to be
contrary to Commission precedents. MSHA’s requirement pursuant
to section 57.11050(a), creates and imposes new compliance
obligations on AKZO, under pain and penalty of immediate mine
closure, with little or no discretion left to the inspector not
to require mine evacuation in the event a hoist that is
undergoing routine preventive maintenance in order insure its
“properly maintained” condition is not returned to service
within an hour. Under these circumstances, I conclude and find
that the Gomez letter is more than a general explanatory or
interpretative statement regarding the application of section
57.11050(a). I conclude and find that the letter constitutes a
substantive rule subject to APA notice, comment, and publication
requirements. See: Drummond Company, Inc. , 17 FMSHRC 661 (May
1992).
Based on the entire record before me in this case, I
conclude that MSHA’s interpretation and application of section
-
11050(a), goes well beyond the regulatory languages found in
that section, and constitutes an unreasonable and impermissive
enforcement reach that is not entitled to deference.In view of the foregoing findings and conclusions, I
conclude and find that MSHA has failed to establish a violation
of section 57.11050(a), by a preponderance of the credible and
probative evidence adduced in this proceedings. Accordingly,
the contested citation IS VACATED.ORDERIn view of the foregoing, IT IS ORDERED as follows:
1). Section 104(a) non-”S&S” Citation Nos. 4100787, November 28, 1995, and 4546275, January 25, 1996, citing alleged violations of 30 C.F.R. 50.10, ARE VACATED. 2). Section 104(a) non-”S&S” Citation No. 4546323, January 25, 1996, citing an alleged violation of 30 C.F.R. 50.20(a), IS VACATED. 3). Section 104(a) non-”S&S” Citation No. 4546276, January 25, 1996, citing an alleged violation of 30 C.F.R. 57.11050(a), IS VACATED. 80
Page 81
4). MSHA’s proposed civil penalty assessments of
$600, for citation No. 4546275, and $400 for
Citation No. 4546323 in Docket No. LAKE 96-125-M,
ARE DENIED and DISMISSED.
George A. Koutras
Administrative Law Judge
Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Mark N. Savit, Esq., Ruth L. Ramsey, Esq., Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, D.C. 20037-1350 (Certified Mail)
\mca
81
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