Cyprus Emerald Resources Corporation
Cyprus Emerald Resources Corporation (FMSHRC PENN 94-23 and PENN 94-166): Refuse-pile violations affirmed
Apply this to your situation
This order from 1995 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
Cyprus Emerald Resources operated Emerald No. 1 Mine, where coal refuse was placed in an unstable pile beside a slurry pond. The pile failed twice, including an incident in which a bulldozer and its operator slid down the pile and the operator had to be helped out with ropes. Judge William Fauver found that Cyprus violated accident-reporting, refuse-pile construction, and dumping-location standards, and that several violations were S&S and unwarrantable. He modified two negligence descriptions from reckless disregard to high negligence, affirmed all citations and orders, and assessed $54,400 in civil penalties.
Decision snapshot
- Cited standards: 30 C.F.R. § 50.10, 30 C.F.R. § 50.11(b), 30 C.F.R. § 77.215(f), 30 C.F.R. § 77.215(h), and 30 C.F.R. § 77.1608(b)
- Outcome: All citations and orders were affirmed with two negligence descriptions modified to high negligence, and $54,400 in civil penalties was assessed.
- Key point: Continuing to place and push refuse onto an unstable pile after a prior failure supported S&S and unwarrantable-failure findings.
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 29, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. PENN 94-23
Petitioner : A.C. No. 36-05466-03980
v. :
: Docket No. PENN 94-166
CYPRUS EMERALD RESOURCES, : A.C. No. 36-05466-03990
CORPORATION, :
Respondent : Emerald No. 1 Mine
DECISION
Appearances: Myrna A. Butkovitz, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll Corp.,
Pittsburgh, Pennsylvania, for Respondent.
Before: Judge Fauver
These are civil penalty cases under ' 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. ' 801 et seq.
The principal issues are whether Respondent=s placement of
coal refuse was a Arefuse pile@ under 30 C.F.R. ' 77.215, whether
the accident-reporting and investigating standard in ' 50.10 and
' 50.11 applied to a collapse of coal refuse on December 27,
1992, and, if violations are found, whether they were significant
and substantial and due to an unwarrantable failure to comply.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, probative,
and reliable evidence establishes the following Findings of Fact
and further findings in the Discussion below:
Page 2
FINDINGS OF FACT
-
Respondent owns and operates Emerald Mine No. 1, which
produces coal for sales in or affecting interstate commerce. -
On April 2, 1993, MSHA received a ' 103(g)1 complaint
alleging dangers involved in a partial collapse of a refuse pile
on that date. -
On April 5, 1993, Federal Mine Inspector Walter Daniel
investigated the complaint and issued an imminent danger order
and three citations alleging safety violations. -
During the investigation on April 5, 1993, Inspector
Daniel received another ' 103(g) complaint alleging that there
had been a failure of the same refuse pile on December 27, 1992.
After investigating the complaint, Inspector Daniel issued five
citations and orders alleging safety violations.
Impoundment Plan
- Respondent has an MSHA-approved plan for disposing of the
refuse from its coal preparation plant. Known as the Impoundment
Plan (short for ASlurry Impoundment Coal Refuse Disposal
Facility@), it calls for four stages of construction of an
impoundment embankment built up from refuse material. Stages II
and III involve upstream construction, whereby refuse material is
systematically placed over a slurry pond in compacted lifts
according to certain construction standards. Stage IV involves
downstream construction as well as upstream construction as the
slurry pond is finally filled in and covered over. Stage IV is
to be constructed to a final crest elevation of 1310 feet.
1
Section 103(g) of the Act provides in part: AWhenever a
representative of the miners or a miner in the case of a coal or
other mine where there is no such representative has reasonable
grounds to believe that a violation of this Act or a mandatory
health or safety standard exists, or an imminent danger exists,
such miner or representative shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger.@
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- The Impoundment Plan provides that each layer of the
impounding embankment:
should be compacted by either a sheepsfoot roller, rubber-
tired construction equipment, or approved compaction
equipment exerting a force of 10 tons or more. For
uniformity of compaction, a minimum of two passes of the
roller should be made for each layer. A complete roller
pass is defined as the passing of a specified roller over
the entire surface of the layer once, with a minimum overlap
of one foot between successive trips of the roller.
Subsequent lifts should not be placed until the layer under
construction has been thoroughly compacted. . . .
- The Impoundment Plan provides specific lift limitations
for upstream construction in Stages II and III:
for upstream construction, the initial lift of coarse refuse
over the settled fines of the previous stage should be
approximately five to six feet thick to provide a working
pad for earth-moving equipment. Subsequent lifts should be
two feet thick or less.
- Under the Impoundment Plan, Stage IV development is
expected to be completed in the year 2002.
Respondent=s Practice of Piling Refuse Material
-
Coal and refuse material were brought up from the mine to
the preparation plant where the coal was washed and separated.
The refuse was then moved by conveyor belt to a 500-ton refuse
storage bin. -
At the bin, refuse was loaded onto 35-ton dump trucks
and under the Impoundment Plan the refuse was to be taken to the
impoundment embankment for use in its construction. -
At the time of the inspection in April 1993, the regular
lay down area for the impoundment embankment was approximately
southeast of the 500-ton bin and was at a crest elevation of
about 1255 feet. -
Coarse refuse deposited at the impoundment embankment is
required to be placed in lifts and compacted pursuant to the
Impoundment Plan. The Impoundment Plan provides specific lift
limitations for upstream construction in Stages II and III:
for upstream construction, the initial lift of coarse refuse
over the settled fines of the previous stage should be
approximately five to six feet thick to provide a working
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pad for earth-moving equipment. Subsequent lifts should be
two feet thick or less.
-
At the time of the inspection in April 1993, a practice
had existed for the last 18 years of depositing coal refuse on a
refuse pile located southwest of the 500-ton bin. The refuse
pile, which abutted the shore line of a large part of the slurry
pond, was commonly referred to as the Ashort haul area.@ In
inclement weather, or when the road to the impoundment embankment
was considered to be too muddy, icy, or dusty to travel, refuse
was hauled to the refuse pile rather than to the impoundment
embankment. Thirty-five ton dump trucks were used to haul refuse
from the 500-ton bin and dump loads along the edge of the refuse
pile. Bulldozers spread the piles and pushed refuse over the
edge of the refuse pile toward the slurry pond to make room for
more refuse. This practice was followed for years before
December 1992, and continued from December 1992 until a failure
of the refuse pile on April 2, 1993. By the time of the
inspection in April 1993, the practice of depositing coal refuse
in the area southwest of the 500-ton bin had created a large
refuse pile that was about 1,000 feet long, 60-80 feet high, and
300 feet wide. -
The practice of pushing coal refuse over the edge of the
refuse pile toward the slurry pond caused the toe of the refuse
pile to extend over the slurry pond. The refuse pile lacked
compaction. As more coal refuse was pushed over the edge, the
weight of the refuse pile over the slurry pond increased and the
angle of the slope became very steep. These conditions caused
the refuse pile to be unstable. -
The refuse pile was not part of the impoundment
embankment and was not designed, constructed, or maintained in
accordance with the requirements of the Impoundment Plan or the
requirements of the refuse pile standards in 30 C.F.R. ' 77.215. -
The refuse pile was not intended to be an impoundment
embankment, nor was it intended to be a temporary stockpile.
Although a small part of the refuse on the refuse pile was used
at times to build up the impoundment embankment, the great
majority of the refuse deposited on the refuse pile was pushed
over the edge toward the slurry pond to make room for more refuse
material. -
Under the Impoundment Plan, as Stage IV construction
advances, some of the area adjacent to the 500-ton bin is to be
developed as part of the impoundment embankment. Any part of the
refuse pile that will be affected by the growing impoundment
embankment under Stage IV construction will have to be removed or
regraded into two foot lifts before it can be incorporated into
the impoundment embankment. The reason for this is that the
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refuse pile does not meet the standards for the impoundment
embankment under the Impoundment Plan.
December 27, 1992, Incident
-
On December 27, 1992, there was a failure of part of the
refuse pile. A 35 foot-wide section of coarse refuse material
broke off, caved in, and slid down toward the slurry pond. An
employee was operating a bulldozer on the part of the refuse pile
that failed. The bulldozer slid about 30 feet down the refuse
pile toward the slurry pond and was partially buried in refuse
material. Ropes were thrown down to the employee to help him
climb up the steep slope of the refuse pile. -
The bulldozer that slid down the refuse pile was covered
by coarse refuse material midway up the cabin and the blade was
buried in the coarse refuse. -
Respondent knew that the refuse pile had collapsed and
the bulldozer and driver slid down the refuse pile on
December 27, 1992. -
After the accident Respondent did not rope off or danger
off the area where the refuse pile had collapsed.
April 2, 1993, Incident
-
On April 2, 1993, there was another failure of the
refuse pile. An area about 350 feet long, 60 feet high, and 40
feet wide broke off, caved in, and slid into the slurry pond. -
The steepness of the refuse pile slope, the instability
of the refuse pile material, and the slurry foundation=s
inability to support the weight of the coarse refuse deposited on
the refuse pile were the primary causes for the refuse failures
in December 1992 and April 1993. -
Over the years, including the period from December 1992
through April 2, 1993, coarse coal refuse was hauled by 35-ton
trucks from the 500-ton bin to the refuse pile. The dump trucks
deposited piles of coarse refuse along the land-side edge of the
refuse pile. Bulldozers were used to spread the piles of coarse
refuse and to push refuse over the pond-side edge of the refuse
pile. -
The coarse refuse piled on the refuse pile was not
compacted or deposited in layers two feet or less. -
The operator was aware of the fact that miners were
bulldozing the coarse refuse material over the edge of the refuse
pile toward the slurry pond.
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-
The operator was aware of the fact that coal deposited
on the refuse pile was not being compacted and was not being
placed in lifts two feet or less. The operator knew that this
practice had been in existence before December 1992, and
continued through April 2, 1993. -
From December 1992 through April 2, 1993, the majority
of the coarse refuse hauled from the 500-ton bin was deposited on
the refuse pile. -
The lack of compaction of the refuse material deposited
on the refuse pile and the failure to deposit the refuse material
in lifts two feet or less contributed to the failures of the
refuse pile in December 1992 and in April 1993. -
Slope instability was one of the primary factors causing
the failures of the refuse pile in December 1992 and April 1993. -
The slope instability was caused, in major part, by the
fact that the refuse pile was developed over the years by coarse
coal refuse being dumped on the refuse pile, pushed over the
edge, and allowed to settle on the fines of the slurry pond. -
Over time, the foundation of the fines of the slurry
pond could not bear the weight of the heavy coarse refuse
deposited on the refuse pile. -
The refuse pile was not constructed in a way to prevent
the refuse material from shifting and ultimately sliding off. -
The coarse refuse deposited on the refuse pile was not
placed pursuant to any engineering plan and did not meet the
engineering principles and requirements of either Respondent=s
Impoundment Plan or the refuse pile standards in 30 C.F.R.
' 77.215.
MSHA=s Investigation of
December 27, 1992, Incident
- During the inspection in April 1993, Inspector Daniel
received a ' 103(g) complaint concerning a failure of the refuse
pile on December 27, 1992. After investigating the complaint, he
found that a 35-foot wide section of the refuse pile had broken
away, caved in, and slid down toward the slurry pond. A miner
was operating a bulldozer on top of the refuse section that broke
away, caved in, and slid down toward the slurry pond. He and the
bulldozer slid down the slope and came to rest near the slurry
pond.
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Page 7
-
At the time of the refuse pile failure on December 27,
the operator of the bulldozer was pushing coarse refuse material
over the edge of the refuse pile toward the slurry pond. -
Dump trucks traveled on the refuse pile, including the
area that failed, in order to deposit loads of coarse refuse
along the edge of the refuse pile. -
Respondent knew that dump trucks were hauling coarse
refuse from the 500-ton bin to the refuse pile and bulldozers
were pushing material over the edge of the refuse pile.
Respondent also knew that the trucks and bulldozers were
operating on a refuse pile that was not stable and presented a
serious risk of collapse. -
Before the failure in December 1992, a report from the
Pennsylvania Department of Environmental Resources noted that
refuse material was being deposited on the refuse pile. -
Before and after December 27, 1992 (until April 2,
1993), Respondent failed to take reasonable steps to prevent
vehicles from depositing coarse refuse material on the refuse
pile and pushing it over the edge toward the slurry pond. After
the December 27 incident, Respondent continued the same practice
that led to a second failure of the refuse pile on April 2, 1993.
ISSUES
-
Whether the incident on December 27, 1992, was an
Aaccident@ as defined in 30 C.F.R. ' 50.2 so that it had to be
reported under 30 C.F.R. ' 50.10 and investigated under 30 C.F.R.
' 50.11(b). -
Whether Respondent violated '' 50.10 and 50.11(b) and if
a violation of 30 C.F.R. ' 50.11(b) occurred, whether it was
properly designated Asignificant and substantial.@ -
Whether 30 C.F.R. '' 77.215(f) and (h) applied to
Respondent=s placement of refuse material southwest of the 500-
ton bin and whether Respondent violated those standards. -
If violations of '' 77.215(f) and (h) occurred, whether
they were significant and substantial and due to an unwarrantable
failure to comply. -
If violations of ' 77.1608(b) occurred, whether they
were significant and substantial and due to an unwarrantable
failure to comply. -
Whether the proposed penalties are appropriate under the
criteria for penalties in '110(i) of the Act.
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DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
As a result of its investigation of both the December 27,
1992, and the April 2, 1993, failures of the refuse pile, MSHA
issued an imminent danger order and eight citations and orders
alleging violations.
Order No. 3658637
Order No. 3658637 was issued under ' 107(a) on April 5,
1993, alleging an imminent danger due to the April 2 failure of
the refuse pile. The order states in part:
. . . [A] section of the lay down area sheared off into the
slurry pond. (Approximately 40 feet of material). The area
that sheared off has been an area in which mobile equipment
has been operating.
Citation No. 3658682
Citation No. 3658682 was issued under ' 104(a) on April 7,
1993, alleging a violation of 30 C.F.R. ' 50.10, concerning the
December 27, 1992, incident as follows:
An accident occurred at the Emerald Mine No. 1, and the
operator did not immediately contact the MSHA District or
Subdistrict office having jurisdiction over its mine, in
that, an unstable condition in the mine refuse pile in by
the 500-ton bin at the edge toward the slurry pond failed
causing approximately 35 feet of material to slide along
with the bulldozer and the operator. The bulldozer slid
down the material approximately 34 feet. There was 1
violation issued during the last inspection period 10-1-92
through 12-31-1992 of C.F.R. 50.10.
As modified, the citation alleges a non-significant and non-
substantial violation with high negligence. The proposed penalty
is $400.
Section 50.10 provides:
If an accident occurs, an operator shall immediately contact
the MSHA District of Subdistrict Office having jurisdiction
over its mine. If an operator cannot contact the
appropriate MSHA District of Subdistrict Office, it shall
immediately contact the MSHA Headquarters Office in
Arlington, Virginia by telephone, at (800) 746-1553.
The term Aaccident@ in ' 50.10 is defined in ' 50.2(h).
Subpart (10) of ' 50.2(h) states that an Aaccident@ includes:
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An unstable condition at an impoundment, refuse pile, or
culm bank which requires emergency action in order to
prevent failure, or which causes individuals to evacuate an
area; or, failure of an impoundment, refuse pile, or culm
bank.
The Secretary contends that the event on December 27, 1992,
was a Afailure of a refuse pile@ and was therefore a reportable
accident. Respondent contends that the incident was not a
reportable accident because the collapsed refuse was in a
temporary stockpile, not a refuse pile, and the incident did not
jeopardize the integrity of the impoundment embankment and
residents downstream of the impoundment
I find that the failure of refuse material was in a refuse
pile, not a temporary stockpile. The refuse pile was built up
over many years and the great majority of the refuse was left as
refuse or was pushed over the edge toward the slurry pond to make
room for more refuse.
The definition of a reportable accident includes Afailure of
a refuse pile.@ It also includes an Aunstable condition at ...
[a] refuse pile ... which requires emergency action in order to
prevent failure ...@ ' 50.2(h)(10). There is no requirement that
the condition must cause individuals to be evacuated, or that it
must also affect the integrity of an impoundment. This is clear
from a comparison with ' 77.215(e) which prohibits using a refuse
pile to impound water. If ' 50.2(h)(10) were intended to cover
only failures that affect an impounding structure, then failure
of a refuse pile, which may not be used to impound water, would
not be included in the definition of a reportable accident
without words connecting a refuse pile failure to the integrity
of an impoundment.
I therefore hold that the failure of the refuse pile on
December 27, 1992, was a reportable accident.
Failure to notify MSHA immediately after an accident is a
clear violation of the regulation. In JBA Industrial Fuel, Inc.,
16 FMSHRC 1778 (1994), the Aoperator delayed almost 12 hours@
before notifying MSHA of the accident. The judge found that Athe
operator could have called MSHA=s 24-hour phone number to comply
with this regulation@ and upheld a violation of ' 50.10, stating
that Athe requirement that an operator immediately report certain
types of accidents to MSHA is an important part of mine safety
and enforcement in terms of both accident investigation and
assistance to injured or trapped miners.@ Id. at 1780.
Respondent knew that part of the refuse pile failed on
December 27, 1992, and that a bulldozer, with its driver, slid
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down the refuse pile toward the slurry pond and was partially
buried. Respondent did not contact MSHA.
Respondent=s failure to call MSHA cannot be dismissed as a
mere difference of opinion as to what is a reportable accident.
No witness for Respondent testified that at the time a reasoned
decision was made that, in his or her best judgment, the failure
of the refuse pile in December 1992 was not a reportable
accident. John Meyers, preparation plant foreman, knew about the
failure and did not notify MSHA. He presented no testimony
indicating that he consulted with management or Respondent=s
safety director and received an opinion that contacting MSHA was
not required under the regulations. Gary Bochna, Respondent=s
safety director, testified that although it was his
responsibility to conduct accident investigations and complete
accident reports, management never consulted him about whether
the December 1992 failure was a Areportable accident@ and he was
not informed of the December 1992 failure until April 1993.
Mr. Bochna acknowledged that under Respondent=s policies, the
December 1992 incident should have been reported to him.
I find that Respondent=s failure to report the December 27
accident was due to high negligence and that the violation was
serious. Considering all the criteria for civil penalties in
' 110(i), I find that a penalty of $400 is appropriate for this
violation.
Citation No. 3658696
Citation No. 3658696 was issued under ' 104(a) on May 26,
1993, alleging a violation of 30 CF.R. ' 50.11(b) concerning the
December 27, 1992, incident as follows:
An accident occurred at the Emerald Mine No. 1, and the
operator did not investigate the accident, in that, an
unstable condition in the mine refuse pile inby the 500-ton
bin at the edge toward the slurry pond failed causing
approximately 35 feet of material to slide along with the
bulldozer and the operator. The bulldozer and the operator
slid down the material approximately 34 feet. There was 0
violations issued during the last inspection period 10-01-92
through 12-31-92 of C.F.R. 50.11(b).
The citation alleges a significant and substantial violation
with high negligence. The proposed penalty is $3,000.
Section 50.11(b) provides:
Each operator of a mine shall investigate each accident
and each occupational injury at the mine. Each operator of
a mine shall develop a report of each investigation. No
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operator may use Form 7000-1 as a report, except that an
operator of a mine at which fewer than twenty miners are
employed may, with respect to that mine, use Form 7000-1 as
an investigation report respecting an occupational injury
not related to an accident. No operator may use an
investigation or an investigation report conducted or
prepared by MSHA to comply with this paragraph. An operator
shall submit a copy of any investigation report to MSHA at
its request. Each report prepared by the operator shall
include,
(1) The date and hour of occurrence;
(2) The date the investigation began;
(3) The names of individuals participating in the
investigation;
(4) A description of the site;
(5) An explanation of the accident or injury, including a
description of any equipment involved and relevant events
before and after the occurrence, and any explanation of the
cause of any injury, the cause of any accident or cause of
any other event which caused an injury;
(6) The name, occupation, and experience of any miner
involved;
(7) A sketch, where pertinent, including dimensions
depicting the occurrence;
(8) A description of steps taken to prevent a similar
occurrence in the future; and
(9) Identification of any report submitted under ' 50.20 of
this part.
On December 27, 1992, part of the refuse pile failed. About
35 feet of refuse material broke off, caved in, and slid down
toward the slurry pond. A bulldozer was operating on the part of
the refuse pile that failed. The bulldozer, along with the
driver, slid down with the fallen material about 30 feet toward
the slurry pond, and was partially buried. Respondent, through
management personnel, including Ron Stotka and Jim Graznak, knew
of the failure of the refuse pile shortly after it occurred. The
foreman, John Meyers, participated in the efforts to assist the
operator of the bulldozer in climbing up the steep slope.
Despite its knowledge of the failure of the refuse pile,
Respondent did not investigate and develop a report of the
failure and measures needed to prevent a recurrence until after
MSHA=s investigation, four months after the accident.
Soon after the failure, the only Ainvestigation@ into the
failure was initiated by the miner representative for the United
Mine Workers, not the Respondent. Tim Brown, acting safety
committeeman, was asked by Mr. Prodan, UMW safety committee
chairman, to look into the failure of December 27, 1992. In
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response, Mr. Brown asked Mr. Meyers, preparation plant foreman,
to accompany him to the area of the failure.
In the failure area, Tim Brown expressed his concern for the
safety of the miners. Mr. Brown did not participate in the
writing of an investigative report of the failure. Mr. Brown
relied upon the oral comments of John Meyers that the practice of
pushing piles over the edge would be stopped. However, the
practice of pushing piles over the edge continued. The evidence
shows an indifferent attitude by management, demonstrated by its
failure to properly investigate the December accident, to develop
a report, and to take reasonable measures to prevent future
similar accidents. When asked whether he took preventive
measures after the December 27, 1992, accident, Mr. Meyers, the
preparation plant foreman, testified:
If my memory serves me right, I believe everyone was
instructed here that there would be no more pushing over the
side of the impoundment. In fact, I believe that there were
-- I wouldn=t want to swear to this, but it sticks in my
mind that there were piles dumped along the haul road, more
or less to barricade, to keep people out of there, but it
didn=t work. [Emphasis added.]
If Respondent had conducted a reasonable investigation with
a report of steps to prevent future similar accidents, the
failure of the refuse pile on April 2, 1993, could have been
prevented and employees would not have continued the dangerous
practice of operating trucks and bulldozers on an unstable refuse
pile.
Respondent=s accident report was not prepared until April
1993, and was prompted not by the accident but by MSHA=s
investigation on April 5, 1993.
The importance of the investigation and report required by
' 50.11(b) was addressed by the Commission in Steele Branch
Mining, 15 FMSHRC 597 (1993). The Commission noted that
' 50.11(b) Arequires operators to investigate all accidents and
to >develop a report= of each investigation.@ Id at p. 601. The
Commission took note of Athe purpose of the regulation which is
to ensure that operators are in fact investigating accidents and
injuries and are engaged in constant upgrading of health and
safety practices. 42 Fed. Reg 65534 (December 30, 1977).@
Id. at 602.
Respondent violated the regulation by not investigating and
developing a report of the December 1992 failure of the refuse
pile including measures needed to prevent a recurrence, until
prompted by MSHA four months after the accident. Respondent
introduced into evidence a report of investigation dated
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April 23, 1993. This report was prepared about four months after
the accident occurred. The portion dealing with preventive steps
was not completed until April 30, 1993. Respondent=s delay
demonstrates not only a violation of the regulation, but a high
degree of negligence regarding the violation.
Respondent challenges the Asignificant and substantial@
finding in Citation No. 3658696 on the ground that ' 50.11(b) is
not a mandatory safety or health standard and therefore not
within the scope of ' 104(d)(1). However, the citation was
issued under ' 104(a), not ' 104(d). An allegation of a
Asignificant and substantial@ violation in a ' 104(a) citation is
an allegation of gravity, not an assertion of jurisdiction to
apply the sanctions of ' 104(d). Accordingly, I do not reach the
issue whether the sanctions of ' 104(d) apply to a violation of
Part 50.
I find that Respondent=s violation of ' 50.11(b) was
significant and substantial. Continued operations without
investigating the causes of a failure of a refuse pile and the
measures needed to prevent a recurrence could contribute
significantly and substantially to another failure of the refuse
pile with a risk of serious injury. In fact, another failure
occurred little more than three months after the December
failure.
I also find that the violation was due to high negligence.
There was a serious failure of the refuse pile on December 27.
An employee was operating a bulldozer on the refuse material that
failed. The bulldozer, along with the driver, slid down a steep
slope toward the slurry pond. The operator of the bulldozer was
frightened by this accident. This was a serious accident. A
reasonably prudent operator would have thoroughly investigated it
and prepared a report of measures needed to prevent another
failure of the refuse pile. Respondent did neither.
Considering all the criteria for civil penalties in
' 110(i) of the Act, I find that a penalty of $3,000 is
appropriate for Respondent=s violation of ' 50.11(b).
Order No. 3768690
Order No. 3768690 was issued under ' 104(d)(1) on April 26,
1993, alleging a violation of ' 77.215(f) concerning the
December 27, 1992, incident as follows:
The refuse being deposited on the mine refuse pile was not
constructed in such a manner as to prevent accidental
sliding and shifting of the material, in that, a section of
the lay down area sheared off at the edge toward the slurry
pond. The mine refuse failed causing approximately 35 feet
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of material to slide along with the bulldozer and the
operator. The bulldozer slid down the material
approximately 34 feet. There were 0 violations issued
during the last inspection period 01-01-93 through 3-31-93
of C.F.R. 77.215(f).
The order was initially issued as a ' 104(a) citation with Ahigh@
negligence, which was modified to Amoderate@ negligence and then
back to Ahigh.@ The citation was modified to a ' 104(d)(1)
order. The proposed penalty is $8,000.
Section 77.215(f) provides:
Refuse piles shall be constructed in such a manner as to
prevent accidental sliding and shifting of materials.
On December 27, 1992, part of the refuse pile failed. The
shifting and sliding of the refuse material resulted from the
unsafe manner in which the refuse pile was constructed. Over the
years, refuse material was dumped on the pile and pushed over the
edge toward the slurry pond. This was done without an
engineering plan and without adherence to accepted engineering
practices to prevent accidental sliding and shifting of
materials. Accordingly, the refuse pile was plainly in violation
of ' 77.215(f).
For the reasons stated here and in the discussion of
Citation No. 3658639, below, I find that the violation was
significant and substantial and was due to high negligence and
therefore unwarrantable within the meaning of ' 104(d)(1) of the
Act.
Respondent knew that the refuse pile was developed without
an engineering plan to prevent accidental sliding and shifting of
refuse materials. Its risk-taking in this regard was more than
ordinary negligence. Continued operations without abatement of
the violation was reasonably likely to result in serious injury.
Considering all the criteria for civil penalties in
' 110(i), I find that a penalty of $8,000 is appropriate for this
violation.
Citation No. 3658639
Citation No. 3658639 was issued under ' 104(a), on April 5,
1993, alleging a violation of 30 C.F.R. ' 77.215(f) concerning
the April 2, 1993, incident as follows:
The refuse being deposited on the mine refuse pile was not
constructed in such a manner as to prevent accidental
sliding and shifting of the material, in that, a section of
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Page 15
they lay down area sheared off into the slurry pond. The
area that sheared off has been an area in which mobile
equipment has been operating. This citation was one of the
factors that contributed to the issuance of imminent danger
order No. 3658637 dated 04-02-93. There was 0 violations
issued during the last inspection period 10-01-92 through
12-31-92 of C.F.R. 77.215(f).
The citation initially alleged Amoderate@ negligence but was
modified first to allege Ahigh@ negligence and then Areckless
disregard.@ The proposed penalty is $8,500.
Slope instability was one of the primary factors causing the
failure of the refuse pile. This was caused, in major part, by
the fact that the refuse pile was developed over the years by
coarse coal refuse being dumped on the refuse pile, pushed over
the edge, and allowed to settle on the fines of the slurry pond.
Over time, the foundation of the fines of the slurry pond could
not bear the weight of the heavy coarse refuse deposited on the
refuse pile.
On April 2, 1993, a substantial amount of refuse material
shifted, caved in, and slid into the slurry pond. The area that
failed was about 350 long, 60 feet high, and 40 feet wide. The
refuse pile had been constructed over the years without an
engineering plan to prevent the refuse material from shifting and
sliding. This was plainly a violation of ' 77.215(f).
I find that the violation was significant and substantial in
that continued use of vehicles on the unstable refuse pile was
reasonably likely to result in a failure of the pile with serious
injuries.
I also find that the violation was due to high negligence.
Respondent knew that the refuse pile was not being constructed in
accordance with the engineering requirements for an impoundment
embankment, i.e., in its Impoundment Plan. This is clear from
Respondent=s acknowledgment that before the refuse pile could be
incorporated into the impoundment embankment, the refuse material
would have to be regraded and compacted. The regrading and
compacting would not be necessary if the material had been
properly graded and compacted in the first instance. Respondent
also knew from the December 27 failure of the refuse pile that
the refuse pile was not being Aconstructed in such manner as to
prevent accidental sliding and shifting of materials@ as required
by ' 77.215(f). After the December incident, Respondent
continued the same practice of depositing refuse on the pile and
pushing it over the edge toward the slurry pond. I find that its
continued violation was due to high negligence. However, I do
not find that its conduct amounts to Areckless disregard@ for the
safety of its employees as alleged in the citation. The citation
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will be modified to change Areckless disregard@ to Ahigh
negligence.@
Considering all the criteria for a civil penalty in
' 110(i), I find that a penalty of $8,500 is appropriate for this
violation.
16
Page 17
Citation No. 3658640
Citation No. 3658640 as amended was issued under ' 104(d)(1)
on April 5, 1993, alleging a violation of 30 C.F.R. ' 77.215(h)
concerning the April 2, 1993, failure as follows:
The refuse being deposited on the mine refuse pile was
not constructed in compacted layers and not exceeding 2 feet
in thickness and shall not have any slope exceeding 2
horizontal to 1 vertical (approximately 27N) in that, the
refuse was not constructed in compacted layers and did
exceed the 2 feet in thickness, and the slope exceeded 2
horizontal to 1 vertical approximately 27N. This citation
was one of the factors that contributed to the issuance of
Imminent Danger Order No. 3658637 dated 04-02-93. There was
0 violations issued during the last inspection period 10-01-
92 through 12-31-93 of CFR 77.215(h).
The regulation requires that refuse piles Ashall be
constructed in compacted layers not exceeding 2 feet in thickness
and shall not have any slope exceeding 2 horizontal to 1 vertical
(approximately 27N). . . .@ The evidence plainly shows a
violation of this regulation.
The citation alleges a substantial and significant violation
due to high negligence, and therefore an unwarrantable violation.
The proposed civil penalty is $8,500.
The refuse material hauled from the 500-ton bin to the
refuse pile was routinely dumped on the refuse pile. It was not
compacted and was not constructed in lifts two feet or less.
Most of the refuse was simply pushed by bulldozers over the edge
of the refuse pile to make room for more refuse. The refuse pile
was not compacted and constructed in lifts so as not to exceed a
27 degree slope. The slope was much steeper.
I find that the violation of ' 77.215(h) was significant and
substantial. The safety hazard contributed to was a failure of
the refuse pile. Continued use of vehicles on the unstable
refuse pile was reasonably likely to result in a failure of the
pile with serious injuries.
I also find that the violation was due to high negligence,
and therefore was unwarrantable under ' 104(d)(1) of the Act.
Respondent knew that the refuse pile was not being constructed
properly and that it posed a high risk to the miners working on
it. Its conduct was aggravated and showed a serious disregard
for safety.
Considering all of the criteria for civil penalties in
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Page 18
' 110(i), I find that a penalty of $8,500 is appropriate for this
violation.
Citation No. 3658683
Citation No. 3658683 as amended was issued under
' 104(a)(d)(1) on April 7, 1993, alleging a violation of
' 77.215(h) concerning the December 27, 1992, incident as
follows:
The refuse being deposited in the mine refuse pile was not
constructed in compacted layers and did exceed 2 feet in
thickness and also the slope exceeding horizontal to 1
vertical approximately 27E resulting in an unstable
condition in the mine refuse pile inby the 500-ton bin at
the edge toward the slurry pond. The mine refuse failed
causing approximately 35 feet of material to slide along
with the bulldozer and the operator. The bulldozer slid
down the material approximately 34 feet. There was 0
violations issued during the last inspection period 10-01-92
through 12-31-92 of C.F.R. 77.215(h). This citation will be
terminated when the 107(a) Order no. 3658637 is terminated.
The citation was initially issued under ' 104(a), alleging a
significant and substantial violation with Ahigh@ negligence.
The negligence was modified to Amoderate@ and then back to Ahigh.@
The citation was modified to a ' 104(d)(1) citation. The
proposed penalty is $7,000.
For the reasons stated as to Citation No. 3658640, above, I
find that Respondent violated ' 77.215(h) as to its manner of
developing the refuse pile. The violation concerning the
December 27 failure of the refuse pile was significant and
substantial, due to high negligence, and was therefore an
unwarrantable violation.
Considering all the criteria in ' 110(i), I find that a
civil penalty of $7,000 is appropriate for this violation.
Order No. 3658698
Order No. 3658698 was issued under ' 104(d)(1) on May 26,
1993, alleging a violation of ' 77.1608(b) concerning the
December 27, 1992, incident as follows:
The ground where refuse dump trucks were dumping failed and
the trucks did not start dumping a safe distance back from
the edge of the refuse bin, in that, an area of the mine
refuse pile inby the 500-ton bin at the edge toward the
slurry pond failed causing approximately 35 feet of material
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Page 19
to slide along with the bulldozer and the operator. The
bulldozer and the operator slid down the material
approximately 34 feet. There was 0 violations issued during
the last inspection for 10-01-92 through 12-31-92 of C.F.R.
77.1608(b).
The order alleges a significant and substantial violation due to
high negligence and an unwarrantable failure to comply. The
proposed penalty is $9,500.
Section 77.1608(b) provides:
Where the ground at a dumping place may fail to support the
weight of a loaded dump truck, trucks shall be dumped a safe
distance back from the edge of the bank.
During the investigation in April 1993, Inspector Walter
Daniel received a ' 103(g) complaint alleging a failure of the
refuse pile on December 27, 1992. His investigation revealed
that on December 27 a part of the refuse pile, about 35 feet
wide, had broken away, caved in and slid down toward the slurry
pond. A miner was operating a bulldozer on the part of the
refuse pile that failed. The bulldozer was pushing coarse refuse
material over the edge of the refuse pile. When the refuse pile
failed, the bulldozer slid with the collapsed material about
35 feet down the slope and was partially buried. The driver was
pulled up the slope with a rope.
As found above as to violations of ' 77.215(f), the refuse
pile was unstable and constructed in violation of ' 77.215(f),
which requires that refuse piles be Aconstructed in such manner
as to prevent accidental sliding and shifting of materials....@
Dump trucks traveled on unstable parts of the refuse pile,
including the area that failed, in order to deposit coarse
refuse. Before the failure in December 1992, a report from the
Pennsylvania Department of Environmental Resources noted that
refuse material was being deposited on the refuse pile.
I find that Respondent violated ' 77.1608(b) by having dump
trucks drive on a refuse pile that might fail to support the
weight of a loaded dump truck. I also find that the violation
was significant and substantial in that it was reasonably likely
that, if unabated, the violation would result in serious injury.
I also find that the violation was Aunwarrantable@ under
' 104(d)(1) of the Act. An Aunwarrantable@ violation has been
determined by the Commission to be aggravated conduct
constituting more than ordinary negligence. This may be
established by showing that the violative condition or practice
was due to Areckless disregard,@ Aintentional misconduct,@
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Aindifference,@ or a Aserious lack of reasonable care.@ Emery
Mining Corp., 9 FMSHRC 1997, 2203-2204 (1987); Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-194 (1989); Virginia
Crews Coal Co., 15 FMSHRC 2103, 2106-2107 (1993).
Respondent knew of the longstanding practice of dump trucks
dumping coarse refuse on the refuse pile. Statements made by
management that they attempted to Aencourage@ operators to dump
the material closer to the 500-bin is a plain indication of their
awareness of the danger of dumping on the refuse pile. Despite
awareness of this danger, no reasonable steps were taken to
prevent dump trucks from dumping on an unstable refuse pile. The
fact that Respondent was aware of the practice, anticipated the
danger, and took no reasonable steps to prevent danger to the
miners constitutes high negligence and therefore an unwarrantable
violation.
Considering all the criteria in ' 110(i), I find that a
penalty of $9,500 is appropriate for this violation.
Citation No. 3658700
Citation No. 3658700 was issued under ' 104(a) on June 1,
1993, alleging a violation of 30 C.F.R. ' 77.1608(b) concerning
the April 2, 1993, incident as follows:
The ground where refuse dump trucks were dumping failed, and
the trucks did not start dumping a safe distance back room
the edge of the refuse bank, in that, an area of the mine
refuse pile inby the 500-ton bin at the edge toward the
slurry pond failed causing approximately 40 feet of material
to slide, the area sheared off has been an area in which
mobile equipment has been operating. There was 0 violation
issued during the last inspection period 10-01-92 through
12-31-92 of C.F.R. ' 77.1608(b).
The citation alleges a significant and substantial violation
due to reckless disregard for safety. The proposed penalty is
$9,500.
The regulation requires that Awhere the ground at a dumping
place may fail to support the weight of a loaded dump truck,
trucks shall be dumped at a safe distance back from the edge of
the bank.@
Dump trucks were dumping loads of coarse coal refuse along
the edge of the refuse pile. The refuse pile was not stable.
The trucks were driven on the part of the refuse pile that failed
on April 2. Photographs of the slide area show the presence of
tire tracks to the edge of the area that broke away. An area
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Page 21
about 350 long, 50 feet high, and 40 feet wide broke off, caved
in, and slid into the slurry pond.
I find that loaded dump trucks were operated in an area that
might fail to support the weight of a loaded dump truck.
Therefore, there was a violation of the standard.
Because of the instability of the refuse pile, it was
reasonably likely that a failure of the refuse pile would occur
and cause a dump truck to roll over or fall with collapsed refuse
material, resulting in serious injury. The violation was
therefore significant and substantial.
Respondent knew in December 1992 that part of the refuse
pile had failed and caused a bulldozer and driver to slide down
the slope, partially burying the bulldozer. However, Respondent
took no reasonable steps to prevent dump trucks from dumping on
the unstable refuse pile. By failing to take corrective action
after the December incident, the operator demonstrated high
negligence. The violation was therefore Aunwarrantable@ within
the meaning of ' 104(d)(1). However, I do not find that the
facts sustain a finding of Areckless disregard@ for safety.
Accordingly, the citation will be modified to change Areckless
disregard@ to Ahigh negligence.@
Considering all the criteria for civil penalties in
' 110(i) of the Act, I find that a penalty of $9,500 is
appropriate for this violation.
Imminent Danger
The immediate dangers presented by the violations found as
to Citation No. 3658639, Citation No. 3658640, Citation No.
3658700, and Order No. 3658698 combined to create an imminent
danger within the meaning of ' 107(a) of the Act on April 5,
1993.
CONCLUSIONS OF LAW
-
The judge has jurisdiction in these proceedings.
-
Respondent violated the safety standards as alleged in
the following citations and orders (Citation Nos. 3658639 and
3658700 being modified to delete Areckless disregard@ and
substitute therefor Ahigh negligence@):
Citation or Order 30 C.F.R.
Citation No. 3658682 ' 50.10
Citation No. 3658696 ' 50.11(b)
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Order No. 3768690 ' 77.215(f)
Citation No. 3658639 ' 77.215(f)
Citation No. 3658640 ' 77.215(h)
Order No. 3658683 ' 77.215(h)
Order No. 3658698 ' 77.1608(b)
Citation No. 3658700 ' 77.1608(b)
ORDER
WHEREFORE IT IS ORDERED that:
-
The term Areckless disregard@ in Citation Nos. 3658639
and 3658700 is deleted and the term Ahigh negligence@ is
substituted therefor. With the modifications, all citations and
orders are AFFIRMED. -
Within 30 days of the date of this Decision and Order,
Respondent shall pay civil penalties of $54,400.
William Fauver
Administrative Law Judge
Distribution:
Myrna A. Butkovitz, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market St., 14480 Gateway Bldg.,
Philadelphia PA 19104 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Corp., One Oxford
Centre, 301 Grant St., 20th Floor, Pittsburgh, PA 15219-1410
(Certified Mail)
/lt
22
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