Hecla Limited v. Secretary of Labor; Secretary of Labor v. Cementation USA, Inc.; Secretary of Labor v. Hecla Limited

Plain-English summary

An arsonist set fire to a waste pile in Hecla's underground Lucky Friday Mine, prompting MSHA to cite Hecla and contractor Cementation for allowing waste to accumulate in quantities that could create a fire hazard. The mine was safely evacuated, and no one was injured. Judge L. Zane Gill found that the pile consisted mostly of rock and dirt, with limited timber, a pallet, pipe, and other material that witnesses did not view as readily ignitable. The Secretary did not prove how much combustible material existed before the fire or identify a realistic ignition source apart from the intentional open flame. Because strict liability did not substitute for proof that the waste accumulation itself could create a fire hazard, the Judge vacated both violations and dismissed the dockets.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.4104(a)
• Outcome: Order No. 8565445 and Citation No. 8565446 were vacated, eliminating proposed penalties of $38,000 and $63,000.
• Key point: An intentionally set fire does not by itself prove that stored waste existed in quantities that could create a fire hazard under the standard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

HECLA
LIMITED,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CEMENTATION
USA, INC.,

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

HECLA,
LIMITED,

Respondent

CONTEST
PROCEEDING

Docket
No. WEST 2011-1390-RM

Order
No. 8565445; 08/16/2011

Mine:
Lucky Friday

Mine
ID: 10-00088

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2012-0631-M

A.C.
No. 10-00088-281470 M445

Mine:
Lucky Friday Mine

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2012-0760-M

A.C.
No. 10-00088-283636

Mine:
Lucky Friday Mine

DECISION AND
ORDER

Appearances:               Matthew
Vadnal, United States Department of Labor, Office of the Solicitor, Seattle,
Washington for Petitioner;

Willa
B. Perlmutter, Crowell & Moring, Washington, DC 20004, for Contestant and Respondents;

Mike
Clary, Hecla Limited, Coeur d’Alene, Idaho, for Respondent Hecla, Limited.

Before:                                    Judge
L. Zane Gill

This proceeding arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994)
(“Mine Act” or “Act”), involves one section 104(d)(2) Order, 30 U.S.C. § 814(d)(2),
issued by the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) to Hecla, Limited, and one section 104(d)(1) Citation, 30 U.S.C. §
814(d)(1), issued by MSHA to Cementation USA, Inc. (“Cementation”). The parties
presented testimony and documentary evidence at the hearing held in Coeur
d’Alene, Idaho, on January 14 and 15, 2014.

The
original dockets before me consisted of two civil penalty proceedings – WEST
2012- 0760M and WEST 2012-0631M − and three contest proceedings – WEST
2011-1390 RM, WEST 2011-1428RM, and WEST 2011-1429RM. On November 5, 2012, I
signed an Order to Sever and Reconsolidate. I ordered that Citation Nos.
8559609 and 8559610 be severed from WEST 2012-0760M, be given a new docket
number, and be consolidated with WEST 2011-1428RM and WEST 2011-1429RM. I also
ordered that WEST 2012-0760M, WEST 2012-0631M, and WEST 2011-1390M be
consolidated. Therefore, only Order No. 8565445 and Citation No. 8565446 are
before me in this proceeding.

For
the reasons stated below, I vacate both Order No. 8565445 and Citation No. 8565446.

I.                  
Stipulations

At the hearing, the Secretary read the
Stipulations into the record: (Tr. 9:3 – 10:20)

1.       Hecla admits
that its Lucky Friday Mine is a mine within the definition of the Mine Safety
and Health Act of 1977.

2.      At all times
relevant to these matters, the Lucy Friday Mine had products that entered
interstate commerce or had operations or products which affected interstate
commerce within the meaning and scope of Section 4 of the Act.

3.      Hecla admits
that is was a mine operator within the meaning of the Act and subject to the
Act.

4.      Cementation
admits that it is a mine contractor within the meaning of the Act and subject
to the Act.

5.      Cementation and
Hecla admit that this proceeding is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission, and the presiding administrative law
judge has authority to hear this case, issue a decision, and assess the appropriateness
of the evidence.

6.      At all relevant times,
Keith Palmer was an authorized representative of MSHA acting in an official
capacity.

7.      Hecla and
Cementation were served copies of the citation or order with qualifications at
issuance in this proceeding by an authorized representative of MSHA.

8.      Exhibit A of the
Secretary’s Petition for Assessment of Civil Penalty, actively sets forth the
number of inspection days at the site for Cementation and Hecla, their history
of violations, and the number of persons affected.

9.      Hecla timely
contested the order contained in these dockets, and Hecla and Cementation
served timely answers to the Secretary’s Petitions for Assessment of Penalty.

10.  The maximum
proposed penalties for the alleged violations will not affect the ability of
Hecla or Cementation to remain in business.

11.  The exhibits the
parties intended to offer into evidence and exchanged prior to the hearing are not
subject to objection on that basis.

II.               
Background
Facts

The
Lucky Friday Mine (“the Mine”) is an underground silver mine owned and operated
by Hecla Limited (“Hecla”) in Mullan, Idaho. (Tr. 25:2; 27:17-18) Hecla hired
Cementation USA, Inc. (“Cementation”) to construct a new vertical shaft at the
Mine. (Tr. 25:15-16) The 4860 slot[1]
of the Mine at the 51 ramp[2]
is a three-sided slot that is about eighteen feet high, twenty-five feet wide,
and eighty feet deep. (Tr. 36:19-20; 37:18; 37:23-24) The Mine uses slot 4860
for a gob pile, or waste debris pile. (Tr. 98:2-4) On April 7, 2011, a gob pile
located at the 4860 slot was cleaned up to remove combustible materials[3]
from the pile. (Tr. 48:14-19; 123:19-22; 242:7-19; 349:7-11) What remained
behind among rock, cement, and metal debris in the 4860 slot were some pieces
of timber, some fire-retardant vent bags, one HDPE pipe, and one wooden pallet.
(Tr. 215: 22-25; 266:20-267:19; 352:15-18) After the April 7, 2011 clean up
date, management at the Mine decided not to dump any more gob at the 4860 slot.
(Tr. 297:5-6)

Justin
Bartlett,[4]
who was in charge of cleaning up the 4860 slot on April 7, 2011, testified that
he did not think there was any waste debris left that was a fire hazard. (Tr. 352:19-24)
Mr. Bartlett testified that there was old wire mesh, rock, shotcrete, and some
timbers left, but nothing in the pile that he considered easily combustible.
(Tr. 215:21-25) William Strickland[5]
also testified that he did not consider anything he saw in the gob pile to be a
fire hazard. (Tr. 226:7; 242:16-19). James Duane Perryman[6]
also saw nothing in the pile that he considered to be a fire hazard (Tr. 285:10-22;
293:5-8) and said that he “went back up there to make sure that we got
everything, and I didn’t see anything else.” (Tr. 324:12-14)

The following month, however,
excavations in the Mine created more waste which was moved to the 4860 slot on approximately
May 29, 2011. (Tr. 295:3-6; 297:17-19; 300:14-16) The new gob items included
metal split sets, metal mats, and approximately three pieces of old wood
lagging (3” x 12” planks, each about six to eight feet long). (Tr. 296:4-7; 315:4-6;
317:6-7) After the additions to the gob pile at the 4860 slot, the slot area
was barricaded, first with a snow fence (Tr. 299:10-13), which was later replaced
by a chain-link fence. (Tr. 36:10-12, 234:12, 300:20) A sign was hung on the
fence notifying miners that the area was not ventilated. (Tr. 300:11-12)[7]
As of July 2011, the gob pile itself was approximately ten feet wide by twelve
feet high. (Tr. 330:15)

On July 26, 2011, an arsonist intentionally
set fire to the gob at the 4860 slot of the Mine at the 51 ramp at or around
6:30 pm. (Tr. 22:15; 27:24-25; 31:10-11; 170:22-23). The mine was safely
evacuated, and there were no injuries as a result of the fire. (Tr. 70:19-25) The
fire lasted about twelve to fourteen hours before it was put out. (Tr. 31:13) MSHA
Inspector Keith Palmer[8]
(“Inspector Palmer”) arrived on July 27, 2011, to investigate. (Tr. 26:11-20) Additionally,
personnel from the local Shoshone County Sheriff’s office, the Idaho State Fire
Marshal’s office, and the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives came to the Mine to investigate the fire. (Tr. 33:3-21)

III.            
The
Law

The Secretary bears the burden of
proving all elements of a citation by a preponderance of the evidence. In
re: Contests of Respirable Dust Sample Alteration Citations: Keystone Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C.
Cir. 1998); Jim Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008)
(ALJ Zielinski) (“The Secretary’s burden is to prove the violations and related
allegations, e.g., gravity and negligence, by a preponderance of the
evidence.”) The Citation and Order in this case allege a violation of Section

57. 4104(a) of the Mine Act, which states that “[w]aste material, including
    liquids, shall not accumulate in quantities that could create a fire hazard.” 30
    C.F.R. § 57.4104(a).

The Secretary must prove by a
preponderance of evidence that waste material accumulated and that the
accumulation “create[d] a fire hazard.” 30 C.F.R. § 57.4104(a). The regulation,
however, is silent on the quantity of waste that is allowed to accumulate
before a waste pile is considered to be a fire hazard. Therefore, the appropriate
analysis is whether a “reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.” Canon Coal Co., 9
FMSHRC 667, 668 (Apr. 1987); Rock of Ages Corp. v. Secretary of Labor,
170 F.3d 148, 156 (2d Cir. 1999); Walker Stone Co. v. Secretary of Labor,
170 F.3d 1080, 1083-1084 (10th Cir. 1998). This test is an “objective – not
subjective – analysis of all the surrounding circumstances, factors, and
considerations bearing on the inquiry in issue.” Canon Coal Co., 9
FMSHRC at 668.

In Essroc Cement Corp., 33 RMSHRC
459 (Feb. 2011) (ALJ Manning), Administrative Law Judge Manning vacated a
citation that alleged a violation of § 56.4104(a)[9]
and found that:

[T]he Secretary did not meet the burden
of establishing that the condition created a fire hazard. The flashpoint of
hydraulic fluid is quite high and there were no ignition sources in the area. A
spark or other similar event would be insufficient to ignite the fluid […]
Without a realistic possibility of a fire hazard, there is no violation.

33
FMSHRC at 465.[10]           

The
Secretary put great emphasis on the fact that the Mine Act is a strict
liability statute. He also emphasized that mine owners are vicariously liable
for employees’ deliberate violations and that “the Mine Act clearly
contemplates that a violation may be found where the wrongful act is performed
by someone other than the operator.” Western Fuels-Utah, et al. v.
FMSHRC, 870 F.2d 711, 716 (D.C. Cir. 1989) He further stated that the 9th
Circuit Court of Appeals, in affirming a decision of the Commission, held that
a mine owner was liable for a violation of the Mine Act committed by an unknown
person who entered the mine property without the knowledge of the owner. Miller
Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir. 1983)

IV.            
The
Violation

On August 16, 2011, MSHA Inspector
Palmer issued Order
No. 8565445 to Hecla and Citation No. 8565446 to Cementation alleging that both
had unwarrantably failed to comply with 30 C.F.R. § 57.4104(a).[11]
Section 57.4104(a) regulates a mandatory safety standard. The Citation and
Order allege:

An excessive amount of combustibles were
[sic] allowed to accumulate in the 4860 slot. The 4860 slot, off of the
51 ramp, was used as a gob area. Old timber, driscoll pipe, hydrolic [sic]
hoses, pallets, and card board[12]
had been thrown away in this area. Evidence indicated that this area contained
the combustibles since at least 04/07/2011. Hecla and Cementation management
was aware of this condition and had discussed this area on 04/07/2011.
According to a miner, a barricade was erected to prevent access in this area
sometime during the week of June 20, 2011 because of an ongoing MSHA
inspection. There are several miners that work and travel on the 4900 level and
the 51 ramp on a daily basis. There is no evidence that reasonable efforts were
made by Hecla or Cementation to correct this condition. A fire occurred in this
gob area on 7/26/2011 in which the excessive amounts of combustibles
contributed to the intensity and duration of the fire. Management engaged in
aggravated conduct constituting more than ordinary negligence because they were
aware of the excessive amounts of combustibles and did not take reasonable
efforts to remove them. This violation is an unwarrantable failure to comply
with a mandatory standard.

Ex.
G-1, Ex. G-4.

The Citation and the Order also allege
that the condition was reasonably likely to cause injury, that the injury was
reasonably likely to be fatal, that the violation was significant and
substantial (“S&S”), the negligence standard was high, and the number of
persons affected was eighteen. Ex. G-1, Ex. G-4. The Secretary proposed
a penalty of $63,000.00 against Cementation and $38,000.00 against Hecla for
this violation.

Inspector Palmer admitted that in some
cases some combustible waste is allowable underground and that the mine has the
discretion to decide how much combustible waste is stored underground. (Tr.
92:4-8; 92:9-18) Inspector Palmer testified that he believed the waste
materials that accumulated in the 4860 slot created a fire hazard (Tr. 69:22
−70:1) because the wood in the pile and the pallet could catch fire. (Tr.
70:3-14) He testified that there was at least one pallet that was considered
waste on the gob pile. (Tr. 89:18-21) However, Inspector Palmer admitted that the
slot held mostly rock and dirt. (Tr. 85:10-12; 108:5-6) The Secretary admitted
into evidence some photos taken on April 8, 2011, but they depict some limited
pieces of timber in the gob pile in slot 4860 that are not in close proximity
to one another. Ex. G-9.

Mr. Strickland testified that most of
the combustible materials were removed, put in dumpsters, and sent to the
surface of the mine to be discarded. (Tr. 241:25 – 242:1) Most importantly, Mr.
Strickland testified that “[a]nything of kindling size, that concerns me more.
Paper waste, of course, rags, of course, any material like that gets sent out
in bins to the surface.” (Tr. 232:18-21) Further, Inspector Palmer admitted
that the fire marshal was unable to determine how much combustible material was
present before the fire. (Tr. 105: 2-5) Inspector Palmer also testified that
there was no evidence that an abundance of combustibles had been present before
the fire due to the small about of ash after the fire was extinguished. (Tr. 105:9-13)
In Mark
Aamondt’s, the Fire Chief of Shoshone County Fire District No. 2, report he
noted that “[i]t could not be confirmed how much debris was removed or how much
remained after the cleanup.” Ex. R-6, pg. 4.

Mr. Strickland testified that the amount
of combustibles in slot 4860 was at most ten percent, maybe less (Tr. 218:2-6) He
also testified that he was not worried that the wood timbers were a fire hazard
because it is very difficult to light 4x4s, 2x12s, 6x8s, or 6x10 timbers. (Tr.
222:22 – 223:7) Mr. Strickland was also not worried that the pallet was a fire
hazard because it is very difficult to light a pallet. (Tr. 223:17-23) He was
not concerned that the HDPE pipe was a fire hazard because its melting point is
above 400 degrees. (Tr. 225:11-14) Inspector Palmer admitted that it would be
difficult to hold a match to a timber and light it on fire. (Tr. 112:8-10)

Inspector Palmer testified that there
was no ignition source identified at the 4860 slot other than the arsonist.
(Tr. 96:10-12) Further, to the best of Inspector Palmer’s knowledge, there is
no methane in the mine. (Tr. 101:6-7) Fire Chief Aamondt testified that he
found nothing in the 4860 slot that was an ignition source, (Tr. 189:6-8) and
that there were no electrical problems in the slot. (Tr. 189:9-19) After the
fire was investigated, it was concluded that the fire was intentionally set
with an open flame by a person. (Tr. 170:22-23) Inspector Palmer did mention other
potential ignition sources – cigarettes and/or a pressurized paint can that was
lit on fire. (Tr. 215:10-14; 228:9-10) However, the Secretary presented no
evidence at the hearing that these sources were anywhere near slot 4860.

As stated above, the Secretary put great
emphasis on the Mine Act being a strict liability statute and the fact that
there is vicarious liability even for unknown persons who enter a mine and
violate the Mine Act. However, the Secretary did not prove by a preponderance
of evidence that a trespasser accumulated waste material in quantities sufficient
to create a fire hazard in violation of Section 57.4104(a). The Secretary
cannot use vicarious liability or the Mine Act’s strict liability to infer that
a criminal intervener who intentionally set a fire to the gob pile in slot 4860
somehow violated Section 57.4104(a). The Secretary also did not prove by a
preponderance of evidence that a mine employee or agent accumulated waste
material in quantities sufficient to create a fire hazard in violation of
Section 57.4104(a). Indeed, the only thing that the Secretary proved by a
preponderance of the evidence is that a fire was set by an arsonist in slot
4860, which is not a violation of Section 57.4104(a).

While the Secretary did show that there
were some waste materials in slot 4860 that were combustible, the Secretary
failed to meet his burden by a preponderance of evidence that a reasonably
prudent miner familiar with the purposes of Section 57.4104(a) could find that
the accumulation of waste materials in slot 4860 could create a fire hazard. The
Secretary also failed to present sufficient evidence that there would have been
an ignition source to create a fire hazard if the arsonist had not intervened. Therefore,
I find that Hecla and Cementation did not violate Section 57.4104(a). Because I
find that no violation existed, I need not discuss the gravity, negligence,
significant and substantial, and unwarrantable failure standards.

WHEREFORE, it is ORDERED
that both Order No. 8565445 and Citation No. 8565446 be VACATED;

It is further ORDERED that Docket
Nos. WEST 2011-1390-RM, WEST 2012-0631-M, and WEST 2012-0760-M be DISMISSED.

/s/
L. Zane Gill

L. Zane Gill

Administrative
Law Judge

Distribution:

Matthew Vadnal, United States Department
of Labor, Office of the Solicitor, 300 Fifth Avenue, Suite 1120, Seattle,
Washington 98101

Willa B. Perlmutter, Crowell &
Moring, 1001 Pennsylvania Avenue, NW, Washington, DC 20004

Mike Clary, Hecla, 6500 North Mineral
Drive, Suite 200, Coeur d’Alene, Idaho 83815

[1] A slot is an
“area that is cut out of rock that can be used to store materials… mine trash…
permanent electrical boxes… powder magazines, [and] cap magazines….” (Tr. 28:2-8)

[2] The 51 ramp is
a winding ramp “from the 4900 level going up along the vein and providing
access to the lead, silver, zinc veins for the mining activities.” (Tr. 213:12-14)

[3] “Combustible
material” is defined as “a material that, in the form in which it is used and
under the conditions anticipated, will ignite, burn, support combustion or
release flammable vapors when subjected to fire or heat. Wood, paper, rubber,
and plastics are examples of combustible materials.” 30 C.F.R. §57.2.

[4] At the time of
the hearing, Mr. Bartlett was employed by Cementation at the Lucky Friday Mine
and had been for approximately two and a half years. (Tr. 244:20 – 245:12) He had
worked as a construction miner for approximately three and a half years at the
time of the hearing. (Tr. 245:13-16)

[5] At the time of
the hearing Mr. Strickland was employed by the Franklyn Company and was working
as a contract employee for Hecla. (Tr. 202:5-10) He was project engineer for
all of Hecla’s projects by overseeing all design work, engineering work, and
supervises four construction coordinators. (Tr. 202:12-17)

[6] At the time of
the hearing, Mr. Perryman was employed by the Franklyn Company and was working
in a temporary-type position for Hecla. (Tr. 248:20-25) He was a construction
coordinator and was in charge of helping Hecla oversee the shaft construction
project. (Tr. 249:4-6)

[7] To the best of
Inspector Palmer’s knowledge, there was no active work being performed in the 4860
slot. (Tr. 98:10-12)

[8] At the time of
the hearing, Inspector Palmer had been employed by MSHA since January of 2001,
(Tr. 17:13-16) as the field office supervisor for the Kent, Washington MSHA
field office. (Tr. 20:19-20) At MSHA, Inspector Palmer worked as a mine
inspector, he worked for the educational policy and development educational
field services division, and was a field office supervisor at the time of the
hearing. (Tr. 19:17-21) Before working at MSHA, Inspector Palmer worked
approximately ten years at Asarco Incorporated in Arizona, which is an open-pit
copper mine. (Tr. 17:21-24) Inspector Palmer also worked for the State of
Arizona Game and Fish Department as a crew leader for about three or four
years. (Tr. 19:9-11)

[9] Section 56.4104(a)
states that: “[w]aste materials, including liquids, shall not accumulate in
quantities that could create a fire hazard.” 30 C.F.R. § 56.4104(a). This
language is exactly the same as Section 57.4104(a), however, Part 56 of the
Mine Act pertains to surface metal and nonmetal mines and Part 57 pertains to underground
metal and nonmetal mines.

[10] The Secretary
attempts to analogize Section 77.1104 to Section 57.104(a). He cited case law
that states that “the Secretary is not required to provide that an ignition or
explosion was reasonably likely to occur. Rather, he is required to prove the
presence of sufficient accumulations that can create a fire hazard or add to a
fire hazard if an ignition source is introduced.” Pittsburgh & Midway
Coal Co., 16 FMSHRC 574, 576 (Mar. 1994) However, I find this argument
unavailing because Part 77 pertains to surface coal mines and surface work
areas of underground coal mines. Additionally, Section 77.1104 states that “[c]ombustible
materials, grease, lubricants, paints, or flammable liquids shall not be
allowed to accumulate where they can create a fire hazard.” 30 C.F.R. §
77.1104. (emphasis added) Part 56 and 57 of the Mine Act specifically refer to
“waste materials,” whereas Part 77 specifically refers to “combustible
materials.”

[11] The Citation
and Order are identical in substance apart from the Order being a 104(d)(2)
violation and the Citation being a 104(d)(1) violation.

[12] Inspector
Palmer admitted at the hearing that there was no cardboard present in the gob
pile. (Tr. 105:19 − 106:9)