Secretary of Labor v. WESCO

Plain-English summary

WESCO is a blasting contractor that loaded and shot the explosives at the Adams Claim Mine, a surface gypsum mine in Lyon County, Nevada, operated by Art Wilson Company. Three days after an October 16, 2015 blast, a woman who lives next to the mine complained to MSHA that rock had rained down around her while she was outside. An MSHA inspector found fresh, unweathered gypsum pieces ranging from baseball to softball size on her property and cited WESCO under 30 C.F.R. § 56.6306(e), which requires all persons to leave the blast area before a shot is fired. WESCO's defense was that the rocks were not flyrock from the mine, pointing out that its three-man crew saw nothing unusual and that the inspector found no impact craters. Judge Richard W. Manning credited the inspector instead, finding the crew was 500 feet behind the shot under an overcast sky and could easily have missed small white rocks in flight, and that a rock's velocity determines whether it leaves a mark. Because flyrock reached the neighbor's yard, that yard was part of the blast area and a person was in it, so the standard was violated. The judge affirmed the citation as written, including the significant and substantial and moderate negligence findings, and assessed a $5,000 penalty against the proposed $5,080.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.6306(e)
• Outcome: Citation No. 8789786 affirmed as issued, penalty assessed at $5,000.
• Key point: The blast area is defined by where the blast can actually hurt someone, not by the mine's property line, so flyrock that reaches a neighboring yard puts that yard, and anyone standing in it, inside the blast area.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

Office of
Administrative Law Judges

721 19 th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

December 20, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

WESCO,

Respondent

CIVIL
PENALTY PROCEEDING

Docket No.
WEST 2016-209-M

A.C. No.
26-00668-397355 NFU

Mine: Adams
Claim Mine

DECISION

Appearances:               D.
Scott Horn, U.S. Department of Labor, Vacaville, CA, for the Secretary;

Tim Wright, WESCO, Salt Lake City,
UT, for the Respondent.

Before:                                    Judge Manning

This case is before me upon a
petition for assessment of civil penalty filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration (“MSHA”), against WESCO
pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The parties presented
testimony and documentary evidence at a hearing held in Reno, Nevada. Closing
arguments were made on the record. One section 104(a) citation was adjudicated
at the hearing. WESCO was an independent contractor performing blasting work at
the Adams Claim Mine, a surface gypsum mine in Lyon County, Nevada. For reasons
set forth below I affirm the citation and assess a penalty of $5,000.00.

I.  DISCUSSION
WITH FINDINGS OF FACT

& CONCLUSIONS
OF LAW

Citation No. 8789786 alleges a
violation of section 56.6306(e) of the Secretary’s safety standards and asserts
that the blast area at the mine was not being controlled to prevent flyrock
from traveling off of mine property. Specifically, the citation notes that
flyrock was found on a neighboring property where persons lived. Section
56.6306(e) requires that “[i]n electric blasting prior to connecting to the
power source, and in nonelectric blasting prior to attaching an initiating
device, all persons shall leave the blast area except persons in a blasting
shelter or other location that protects them from concussion (shock wave),
flying material, and gases.” 30 C.F.R. § 56.6306(e).

Inspector Joshua K. Wilmoth [1]
determined that an injury was reasonably likely to be sustained and, if an
injury were sustained, it could reasonably be expected to be fatal. He
determined that the violation was significant and substantial (“S&S”), that
one person was affected, and that WESCO’s negligence was moderate. The Secretary
has proposed a penalty of $5,080.00 for this alleged violation.

Summary of the Evidence

The Adams Claim Mine is a surface
gypsum mine operated by Art Wilson Company. Tr. 7-8. Gypsum is extracted from
the pit through blasting. Although Art Wilson Company was responsible for drilling
blast holes at the mine, it contracted with WESCO, an explosives and blasting
contractor, to load the explosives and conduct the actual blasting. Tr. 24.  Blasting
occurred two to three times per week. Tr. 19-20.

On October 16, 2015, WESCO
personnel conducted a blast at the mine. Tr. 35. Bryan Lloyd [2]
was the WESCO employee in charge of the blast. Tr. 36. Travess Lane and Cody
Jensen, both employees of WESCO, were also present. Tr. 44, 47. Lane, a bench
hand responsible for priming holes, loading and running equipment, testified
that he noticed nothing abnormal about the loading and stemming for the blast. Tr.
44.

On October 19, 2015, a private
citizen filed a hazard complaint with MSHA alleging that flyrock from blasting
operations at the Adams Claim Mine had fallen on her residential property. Tr.
7-8, 14; Ex. P-1. The complaint alleged that she was outside at the time and
could hear flyrock landing around her. Ex. P-1. In addition, the complaint
alleged that this had happened two other times, once in September 2015 and once
in August 2011. Tr. 13-14; Ex. P-1. [3]

In response to the hazard
complaint, MSHA Inspector Wilmoth traveled to the mine to investigate the
incident. Tr. 13. Wilmoth interviewed the private citizen who filed the
complaint and credited her statements concerning the events. He photographed
multiple pieces of gypsum on the individual’s residential property. Tr. 14-16,
20; Exs. P-3. -4 & -5. Wilmoth indicated on a map the location where the
rocks were found. Tr. 12; Ex. P-12 [4] .
He did not notice any indentation marks on the ground. Tr. 30.

WESCO personnel detonated the blast
on October 16 from a position 500 feet east of the shot location. Tr. 39-40, 42.
At hearing, Lloyd indicated on a map the location of the shot as well as the
location from which the group detonated the shot. Tr. 39-40; Ex. R-2 [5] .
 According to Lloyd, the group’s location was chosen because it was higher up a
hill and allowed them to overlook the pit area. Tr. 40. He agreed that their
location was behind the shot and, while they could not see the blast pattern,
they had a clear view of the sky, which was overcast. Tr. 35; Ex. R-1. Jensen agreed
with Lloyd’s depiction on Ex. R-2 as to their location during the detonation. Tr.

51. Jensen initially testified that their location was such that they were
    positioned between the shot location and the residences and any flyrock that
    went onto the residential property would have had to pass over top of them, but
    later indicated that they were not between the shot location and the residences.
    Tr. 47-53. Lloyd estimated that the residential property line was 770 feet from
    the location of the shot. Tr. 39.

Lloyd, Lane, and Jensen testified
that they did not see any flyrock or hear any unusual sounds during the blast. Tr.
40, 44-45, 47, 50. However, at hearing, each acknowledged that it was possible
they could have missed seeing flyrock. Tr. 46, 50. Lloyd stated that there was
nothing out of the ordinary about the shot, but agreed that the blast did not
go the way he wanted it to because the rocks were too big following the blast. Tr.
38, 41. As a result, WESCO, along with Art Wilson Company, changed the blast
pattern after that blast. Tr. 35, 37.

At hearing, Lloyd opined that,
depending on the velocity of the rocks, there would be an indentation where
they hit the ground.  Tr. 41. According to Wilmoth, the gypsum seen in the pictures
was the same material mined at the neighboring Adams Claim Mine. Tr. 14-15. The
photographs, which included a MSHA investigation folder in the frame for scale,
show that the pieces of gypsum ranged in size from slightly smaller than a
baseball to slightly larger than a softball. Tr. 29-30; Exs. P-3, -4 & -5. Based
on the bright white color of the material and the lack of weathering, Wilmoth
determined that the material was “fresh” and “didn’t appear to have been there
for a [long] period of time[.]” Tr. 15. Other material from the mine site was
also observed on the residential property at the time, but it was easily
distinguishable due to discoloration and browning from dirt buildup. Tr. 15. Wilmoth
estimated that the rocks traveled between 200 and 500 yards from the location
of the blast to where the rocks were found. Tr. 30.

The following day Wilmoth met with
representatives from the mine to discuss the incident. Tr. 16. The mine
representative, Lonnie Kleyseth, told the inspector that both Art Wilson
Company and WESCO had recently altered the blast pattern to tighten it up and add
more stemming. Tr. 17. According to Wilmoth, Kleyseth opined that the flyrock
could have come from the use of less stemming before the pattern was changed. Tr.

17. Following meetings with the individual who filed the hazard complaint as
    well as representatives of the mine operator and WESCO, Wilmoth issued Citation
    No. 8789786 on October 23, 2015 to WESCO for an alleged violation of section
    56.6306(e). [6]
    Tr. 19.

At hearing, Wilmoth explained that section
56.6306(e) requires all persons to leave the blast area. Tr. 20. WESCO was responsible
for determining the blast area. Because material flew out of that area to where
people were, it was not in compliance. Tr. 26. Here, he cited WESCO because it
did not control the blast area to prevent flyrock from leaving mine property
and landing on neighboring property where a person was outside. Tr. 19, 21. Failing
to control the blast area exposed miners and non-miners to potentially being
struck by flyrock. Tr. 20.

Lloyd testified that he was not notified
of the alleged flyrock incident until Friday, October 23, at which point he,
Lane, and Jensen documented the event on company incident forms. Exs. R-1, R-3
and R-4; Tr. 33-36, 47. At hearing, Lloyd agreed that the some of the rocks
found by the inspector were fairly small and it was possible they did not see
them during the blast. Tr. 42.

Fact of Violation

I find that the Secretary established
a violation of the cited standard. The cited standard requires that, before
blasting, all persons be removed from the blast area, but provides an exception
to that requirement when persons are in a blasting shelter or other location that
protects them from the harmful effects of the blast. In order for an operator
to comply with the standard they must not only ensure that everyone is outside
of the blast area, they must also control the blast so that the concussion,
flying material and gasses do not extend outside of the planned blast area. Accordingly,
a violation will exist when persons are in the blast area during a blast and not
in one of the excepted areas. Here, there is no dispute that the exception does
not apply. As a result, the only question is whether persons were in the blast
area when the blast occurred. For reasons set forth below, I find that persons
were in the blast area.

The Secretary’s regulations define
the term “blast area” as “the area in which concussion (shock wave), flying
material, or gases from an explosion may cause injury to persons.” 30 C.F.R. § 56.2.
The regulation states that “[i]n determining the blast area the following
factors shall be considered: (1) Geology or material to be blasted. (2) Blast
pattern. (3) Burden, depth, diameter, and angle of the holes. (4) Blasting
experience of the mine. (5) Delay system, powder factor, and pounds per delay. (6)
Type and amount of explosive material. (7) Type and amount of stemming.” Id .
In a case involving a different subsection of the cited standard, Commission Judge
Moran explained that this list of factors, “while helpful, does not represent
an exclusive list of the factors that are to be considered when conducting the
ultra-hazardous activity of blasting.” Lakeview Rock Products , 34 FMSHRC
244, 246 (Jan. 2012) (ALJ); see also Austin Powder Co. , 35 FMSHRC 3656,
3672 (Dec. 2013) (ALJ) [7] .
In Lakeview , Judge Moran found that, because flyrock landed on and
penetrated the roof of a residence, the residence was “within the blast area.” 34
FMSHRC at 249-250.

In Orica USA, Inc. , 32
FMSHRC 709 (May 2010) (ALJ), Chief Judge Lesnick addressed a somewhat similar
situation where an operator was cited under subsection (f) of the standard, which
requires that access routes to blast areas be guarded or barricaded. A blasting
contractor was alleged to have set off a production shot in a quarry which
resulted in flyrock traveling off mine property and onto a highway, where it
struck vehicles and caused injuries. Chief Judge Lesnick, in denying the
operator’s motion to dismiss for lack of jurisdiction, noted “the Secretary’s
reasonable interpretation that [the operator was] not absolved of its duty to
protect people in the blast area from injury merely because the blast area
extended beyond the legal property line of the . . . mine.” Id. at 712. Moreover,
he found that the operator should not be able “to escape liability for
violations of section 56.6306 that result in injuries simply because the
injuries occur off of the mine property.” Id.

The parties offer two conflicting
factual accounts. WESCO’s primary argument in this matter is that the gypsum
material found by the inspector on the residential property was not flyrock
from the mine. The Secretary, on the other hand, asserts that the material was
flyrock from the mine. For reasons set forth below, I credit the Secretary’s
factual account and find that the Secretary has met his burden of establishing
a violation by a “preponderance of the credible 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) (“The
Secretary's burden is to prove the violations and related allegations, e.g.,
gravity and negligence, by a preponderance of the evidence.”)

In support of its argument, WESCO
asserts that its employees did not see flyrock leave the mine property and
there was nothing unusual about this particular blast. I find these arguments
unavailing. Each of the WESCO witnesses conceded that it was entirely possible
that they did not see flyrock leave the mine property. Given the white color of
the gypsum rock, the overcast skies that were present on the day of the blast,
the relatively small size of the rocks, and the position of the individuals 500
feet away from the location of the shot, I find it likely that Lloyd, Lane and
Jensen missed seeing the material travel off the mine property and onto the
residential property, which was even further away from their location than the location
of the shot. Moreover, while WESCO asserts that there was nothing unusual about
the blast, Lloyd conceded that it did not go the way he wanted it to and, in
response, WESCO and Art Wilson Company changed the blast pattern following the
October 16 blast, but before the contractor was ever aware of the hazard
complaint.

The Secretary’s factual account,
while reliant in part on circumstantial evidence, is consistent with that alleged
in the hazard complaint and the credible evidence presented at hearing. The
inspector found the individual who lodged the hazard complaint to be credible. I
credit the inspector’s testimony that the gypsum rocks he observed on the
residential property were fresh and of the same type of material mined at the
Adams Claim Mine. WESCO did not dispute this. While WESCO asserts that the
inspector would have found indentations in the ground had flyrock landed on the
property, Lloyd testified that the presence of an indentation would have been
dependent on the velocity with which the rocks hit the ground. In addition, the
rocks could have landed at a different location on the residential property and
bounced or rolled to the location where they ultimately came to rest. As a
result, the fact that the inspector did not find indentations is not
determinative of whether the material was flyrock. [8]
I find that the rocks observed by the inspector were from the Adams Claim Mine
and. As a result of the blast on October 16, were propelled onto the residential
property and in close proximity to the individual while she was outside. Because
flyrock landed on the residential property, that area of the property was
within the blast area.

I find that WESCO failed to control
the blast and rocks from the mine left the planned blast area and landed on the
residential property near an individual.  It is clear that there was at least
one person in the blast area, i.e., “the area in which . . . flying material .
. . from an explosion may cause injury to persons,” [9]
in violation of section 56.6306(e)’s requirement that “all persons . . . leave
the blast area” prior to either “connecting to the power source” or “attaching
an initiating device[.]” 30 C.F.R. § 56.6306(e) and 30 C.F.R. § 56.2. The
Secretary has proven a violation of the cited standard. [10]

Gravity and Negligence

I
find that the violation was S&S. An S&S violation is a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In order
to establish the S&S nature of a violation, the Secretary must prove “(1)
the underlying violation of a mandatory safety standard; (2) a discrete safety
hazard - that is, a measure of danger to safety - contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of
a reasonably serious nature.” Mathies Coal Co. , 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc. , 52 F.3d 133, 135 (7th Cir.
1995); Austin Power Co., Inc. , 861 F.2d 99, 103 (5th Cir. 1988)
(approving Mathies criteria). An experienced MSHA inspector's opinion
that a violation is S&S is entitled to substantial weight. Harlan
Cumberland Coal Co. , 20 FMSHRC 1275, 1278-79 (Dec. 1998).

The
Commission has explained that the focus of the Mathies analysis “centers
on the interplay between the second and third steps.” ICG Illinois , 38
FMSHRC ___, slip op. at 3, No. LAKE 2013-160 (Oct. 21, 2016) (citing Newtown
Energy Inc. , 38 FMSHRC 2033 (Aug. 2016)). The second step requires the
judge to adequately define the “particular hazard to which the violation
allegedly contributes[,]” and then determine whether “there exists a reasonable
likelihood of the occurrence of the hazard against which the mandatory safety
standard is directed.” Id . at 3-4. This determination must be made
“based on the particular facts surrounding the violation[.]” Id . The
third step then requires the judge to assume the existence of a hazard and assess
whether the hazard “was reasonably likely to result in serious injury.” Newtown
at 2038; ICG Illinois at 4.

Wilmoth
designated the violation as S&S because, given the varying sizes of the
rocks that were ejected by the blast and landed on the neighboring property near
at least one person, it was reasonably likely that material would strike a person
and cause a serious injury. Tr. 21-22, 26-28. Wilmoth testified that flyrock
striking a person have caused fatalities in the past. Tr. 12-12, 26-27; Ex. P-11.

I
already determined that the Secretary established a violation of the cited
standard. Here, the hazard that the standard is designed to protect against is
a person being injured by the “concussion (shock wave), flying material, and
gases” from a blast. The specific hazard in this instance was the private
individual being struck by flyrock from the blast that traveled onto her
property. Here, WESCO’s failure to control the blast resulted in flyrock
leaving the property and falling around the private individual while she was
outside on her property. WESCO’s failure to control the blast to prevent the
rocks from going outside the planned blast area was reasonably likely to result
in someone being struck by flyrock. Both WESCO and the private individual were
lucky that the material fell around the individual and did not strike her. I
credit the inspector’s testimony that, assuming a person was struck by flyrock
of the size found on the property, an injury was likely to occur and that
injury was reasonably likely to be fatal or at least very serious. The
Secretary has met his burden of proving that the violation was S&S. [11]

I find that WESCO was moderately
negligent. I agree with the inspector that WESCO, as a blasting contractor, was
well aware of the need to control the blast area. Tr. 23. Its failure to do so
in this instance came close to resulting in a serious injury. I defer to the inspector’s
moderate negligence determination.

II.  APPROPRIATE
CIVIL PENALTY

Section 110(i) of the Mine Act sets
forth the criteria to be considered in determining an appropriate civil
penalty. 30 U.S.C. § 820(i). The parties did not present any evidence as to WESCO’s
history of previous violations but Exhibit A to the penalty petition indicates that
WESCO had a history of 23 violations. The parties did not present any evidence
as to WESCO’s size but Exhibit A to the penalty petition indicates that WESCO
was assigned 20 penalty points, which correlates to a moderately large contractor.
30 C.F.R. § 100.3 Table V. The violation was promptly abated and payment of the
proposed penalty will not have an adverse effect upon WESCO’s ability to
continue in business. Sec’y Response to Request of Prehearing Report 2. The
gravity and negligence are discussed above. Based on the penalty criteria, I
assess a civil penalty of $5,000.00 for Citation No. 8789786.

III.  ORDER

For the reasons set forth above,
Citation No. 8789786 is affirmed as issued. WESCO is ORDERED TO PAY the
Secretary of Labor the sum of $5,000.00 within 40 days of the date of this
decision.

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

D. Scott
Horn, Conference & Litigation Representative, U.S. Department of Labor,
MSHA, 991 Nut Tree Road, 2 nd Floor, Vacaville, CA, 95687

Tim Wright,
WESCO, 3135 S. Richmond Street, Salt Lake City, UT, 84106-3053

[1] Inspector Wilmoth has been with MSHA for over five
years and works as both an inspector and special investigator. Tr. 6. In
addition to standard mine inspector training, he has received training for
special investigations, including training provided by the FBI regarding
interviews, interrogation, and detecting deception. Tr. 7.

[2] Lloyd has been a blaster for 23 years and with WESCO
for 5 years. Tr. 32.

[3] At hearing Wilmoth confirmed that MSHA had made
positive findings regarding other hazard complaints for the same thing. Tr. 27.

[4] Wilmoth circled the area on the map where the rocks
were found. Tr. 12.

[5] The shot location is marked on the exhibit with a
pushpin graphic, while the group’s location during the detonation is marked
with a red “X.”

[6] A second, identical citation was issued to Art Wilson
Company. Tr. 24. Art Wilson Company did not contest the citation and paid the
proposed penalty in full. Tr. 24-25; Ex. P-10.

[7]
In Austin Powder, Commission Judge Barbour affirmed a violation of section
56.6306(e) after determining that the blast area at a limestone quarry had not
been cleared of persons by the operator, in part, because the operator, in
determining the blast area, had not adequately considered all of the seven
factors set forth in 30 C.F.R. § 56.2.

[8] At hearing WESCO’s representative declined to
speculate as to how the gypsum rocks ended up on the property and argued only
that they were not flyrock from the mine.

[9] WESCO did not present evidence regarding the factors
set forth in section 56.2.

[10] At hearing, Respondent’s representative conceded
that, if the rocks were determined to be flyrock from the blast, then a
violation would be proven. Tr. 55.

[11] At hearing, Respondent’s representative conceded
that, if the material were determined to be flyrock from the blast, then the
violation would be S&S. Tr. 55.