FMC Corporation (ALJ decision, October 7, 1982)

Plain-English summary

FMC Corporation contested a citation after an inspector found blasting material in two drill holes at its underground trona mine. Judge John J. Morris found that the remaining ammonium nitrate fuel oil showed at least partial failure of the charges to explode, so both holes had to be treated as misfires under 30 C.F.R. § 57.6-177. He rejected FMC's argument that the material was necessarily inert after the blast, because the evidence did not establish when compaction would make it inert. He affirmed citation 577230 and dismissed FMC's contest. Given FMC's low negligence and prompt abatement, he reduced the proposed $1,000 penalty to $200. The release also prints inconsistent rule numbers in later discussion; the citation description and quoted rule identify section 57.6-177.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.6-177, reporting and disposing of misfires.
• Outcome: Citation 577230 affirmed; penalty reduced from $1,000 proposed to $200 assessed; contest dismissed.
• Key point: Explosive material left in a hole after a blast can establish a misfire even if the cap or primer is not found.

Full text (FMSHRC public release)

CCASE:
FMC V. SOL (MSHA)
DDATE:
19821007
TTEXT:
~1823

Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

FMC CORPORATION,
CONTEST OF CITATION PROCEEDINGS
CONTESTANT
v. DOCKET NO. WEST 81-131-RM
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
MINE: FMC
ADMINISTRATION (MSHA),
RESPONDENT

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 81-234-M
PETITIONER
v. MINE: FMC

FMC CORPORATION,
RESPONDENT

Appearances:

John A. Snow, Esq., VanCott, Bagley, Cornwall & McCarthy Salt Lake City, Utah, for the FMC Corporation

Robert J. Lesnick, Esq., Office of H enry C. Mahlman, Associate Regional Solicitor United States Department of Labor, Denver, Colorado, for the Secretary of Labor

Before: Judge John J. Morris

DECISION

In these consolidated cases the FMC Corporation, (FMC), contests an order of withdrawal issued by the Mine Safety and Health Administration, (MSHA), for an alleged violation of Title 30, Code of Federal Regulations, ~1824
57.6-177. (FOOTNOTE- 1) The Secretary of Labor, on behalf of MSHA, seeks to impose a civil penalty for the alleged violation.

All of the proceedings herein arise under the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. (Supp. III, 1979).

After notice to the parties a hearing on the merits was held in Green River, Wyoming on September 2, 1981.

FMC filed a post trial brief.

ISSUES
The issues are whether FMC violated the regulation and, if so, what penalty is appropriate.

SUMMARY OF THE EVIDENCE

Ammonium nitrate, (ANFO), a blasting agent, has the appearance and texture of BBs. The explosive is mixed with fuel oil (Tr. 5, 49). In its underground trona mine FMC explodes the ANFO with high velocity cap and dynamite. These serve as a primer. An 18 inch water bag acts as a stemming device (Tr. 6, 11, 44).

After the blast the area is mucked out. Roof bolts provide overhead protection (Tr. 6).

On the day of the inspection an MSHA representative found two misfires (Tr. 7, 8, P1, P2). Ignition wires were sticking out of one of the drilled holes. FMC washed out the misfire holes after the withdrawal order was issued (Tr. 9, P2).

The top hole: was shot "clear through" and both sides of the hole could be seen. No cap or primer could be seen. No cap or primer washed out (Tr. 9, 31, 39, 42-43, 50-51).
~1825
The bottom hole: detonation wires were sticking out. It could not be determined if the hole had fired. Only the blasting agent (ANFO) could be seen in the hole (Tr. 50-51).

The holes had been primed and fired on the swing shift the previous night. This was 11 hours before the inspection (Tr. 12, 15). The day shift foreman hadn't seen the misfires (Tr. 13).

In everyday use ANFO is as inert as cement. It is insensitive to friction, drop weight, and cap sparks. Shooting it with a bullet will not cause it to explode (Tr. 67, 68).

If over compacted, as from a blast, ANFO will desensitize (Tr. 68). But the compaction of ANFO to the point of being inert cannot always be determined (Tr. 70, 74).

DISCUSSION

MSHA's witness defines a misfire as a drilled hole loaded with explosives which did not fire on the initial detonation (Tr. 27).

The Secretary's definition in Title 30, Code of Federal Regulations, Section 57.2 states:

Misfire means the complete or partial failure of a blasting charge to explode as planned.

The facts here establish a violation of the regulation.
Both the top and bottom holes had misfired.

The misfire in the top hole was somewhat more obscure than the bottom hole since it had "shot through," that is, the hole on the back side of the blast would indicate that the primer and cap had exploded (Tr. 27). No evidence was presented as to precise appearance of a drill hole after it is "shot through".

The misfire in the bottom hole was more readily apparent since the detonation wires were still hanging out of the hole after the blast (Tr. 39, P2).

The presence of ANFO, the explosive, in the drill hole after the blast, fairly indicates at least a partial failure of the blasting charge. It accordingly falls within the definition of a misfire.

CONTENTIONS

FMC contends that no misfire occurred, further, the drill holes contained only ANFO, and, finally, that even if a violation occurred the proposed civil penalty is excessive.
~1826
FMC's initial contention is that the drill holes observed by the MSHA inspector were not misfires. This position evolves in this fashion: 30 C.F.R. 57.6-8 (FOOTNOTE- 2) and 30 C.F.R. 57.6-190 (FOOTNOTE- 3) refer to ammonium nitrate as blasting agents therefore ammonium nitrate is not a "blasting charge" as contemplated in the regulatory definition of a misfire.

FMC correctly observes that the term "blasting charge" is not defined in the regulations. However, a common definition in a mining dictionary is that a "charge" is the explosive that is loaded into the borehole for blasting. (FOOTNOTE- 4) In short, the charge is the total explosive package. In this case it includes the primer, the ammonium nitrate, and the dynamite.

FMC places considerable reliance on the fact when the drill holes were washed out no cap or primer were observed. Therefore, it concluded the holes contained only ANFO.

FMC's view of the evidence is based on hind sight. With the wires sticking out of the bottom hole a strong possibility of a misfire existed. It is true that no cap or primer were found in either hole but one cannot ignore the fact that some of the material in the hole was originally a part of the explosive charge. FMC aptly states that the obvious purpose of 30 C.F.R. 57.6-77 is to avoid the possibility of an unplanned detonation of a live charge. In short, what appears to be a misfire should be treated as a misfire.

FMC also argues that any ANFO in the drill hole would have been inert after an explosion. Therefore, it presented no hazard.
~1827
I disagree. The evidence establishes that it is impossible to tell when and if a blast has compacted ANFO to a point where it becomes inert (Tr. 70, 74).

The nexus of this violation lies in the fact that an unplanned detonation could have occurred had a cap, or a primer, or ANFO exploded after the initial firing. The possibility of this occurring establishes that a misfire exists. This in turn mandates the remedial action contained in Section 56.9-177.

FMC cites Day Mines, Inc., 2 FMSHRC 1720, (1980), and Mulzer Crushed Stone Company, 2 FMSHRC 2497, (1980). While these cases involve the regulation in contest Judges Koutras and Moore did not address the issues raised here.

CIVIL PENALTY

The Secretary seeks to impose a civil penalty of $1000 for this violation.

FMC asserts that the penalty is excessive. I agree. While the gravity is severe the negligence is low. In the only the prior citation against FMC involving a misfire the inspector wrote up the citation as one involving unexploded materials (Tr. 84). Further, in this case MSHA issued the citation at 11 a.m. and the abatement was accomplished 11:23 a.m. (Tr. 18, Citation). This would indicate rapid abatement after notification of the violation.

Considering the statutory criteria, 30 U.S.C. 820(i), I deem that a penalty of $200 is appropriate.

Based on the foregoing findings of fact and conclusions of law I enter the following order:

1. Citation 577230 is affirmed.

2. A penalty of $200 is assessed.

3. The contest of Citation 577230 filed by respondent is dismissed.

John J. Morris
Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE
1 The cited regulation reads:
57.6-177 Mandatory. Misfires shall be reported to the proper supervisor. The blast area shall be dangered-off until misfired holes are disposed of. Where explosives other than black powder have been used, misfired holes shall be disposed of as soon as possible by one of the following methods:
(a) Washing the stemming and charge from the borehole with water;
 (b) Reattempting to fire the holes if leg wires are exposed; or (c) Inserting new primers after the stemming has been washed out.

~FOOTNOTE_TWO
2 57.6-8 Mandatory. Ammonium nitrate-fuel oil blasting agents shall be physically separated from other explosives, safety fuse, or detonating cord stored in the same magazine and in such a manner that oil does not contaminate the other explosives, safety fuse, or detonating cord.

~FOOTNOTE_THREE
3 Sensitized Ammonium Nitrate Blasting Agents All of the standards in this 57.6 in which the term "explosives" appears are applicable to blasting agents (as well as to other explosives) unless blasting agents are expressly excluded.
General -- Surface and Underground
57.6-190 Sensitized ammonium nitrate blasting agents, and the components thereof prior to mixing, should be mixed and stored in accordance with the recommendations in Bureau of Mines Information Circular 8179, "Safety Recommendations for Sensitized Ammonium Nitrate Blasting Agents," or subsequent revisions.

~FOOTNOTE_FOUR
4 A dictionary of Mining, Mineral, and related terms, United States Department of Interior, 1968.