Magma Copper Company

Plain-English summary

Magma Copper Company was cited after an inspector observed broken and distorted wires on a hoist rope at its Superior Mine. An Administrative Law Judge found a violation of the rule governing broken wires in a rope lay and assessed a $100 penalty. The Commission held that the evidence did not establish that more than six broken wires existed in one lay on the citation date, and that later laboratory testing followed months of storage and additional stress. It reversed the ALJ's decision and vacated the citation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.19-128(a) and 57.19-128(d)
• Outcome: The ALJ's decision was reversed and the citation was vacated.
• Key point: Evidence of a rope's condition months after citation, after storage and handling that could change it, did not prove the cited condition existed on the inspection date.

Full text (FMSHRC public release)

CCASE:
MSHA V. MAGNA COPPER
DDATE:
19860513
TTEXT:

            FMSHRC-WDC
            MAY 13, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

 v.              Docket No. WEST 83-17-M

MAGMA COPPER COMPANY

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners

            DECISION

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. $ 801 et seq.
(1982) ("the Mine Act"). The issue is whether Magma Copper Company
(Magma") violated 30 C.F.R. $ 57.19-128(a)(1982), a mandatory safety
standard for metal and non-metallic underground mines. The standard,
which has since been revised, provided:

Mandatory. Ropes shall not be used for hoisting when
they have:

 (a) More than six broken wires in any lay;
 (b) Crown wires worn to less than 65 percent of
    the original diameter;
 (c) A marked amount of corrosion or distortion; and
 (d) A combination of similar factors individually
    less severe than those above but which in
    aggregate might create an unsafe condition. [1/]

1/ The standard was revised and redesignated in 1983 as 30 C.F.R.
$ 57.19a-24, 48 Fed. Reg. 53228, 53231-32 (November 25, 1983), and

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was recodified in 1985 as 30 C.F.R. $ 57.19024. 50 Fed. Reg. 4082,
4119 (January 29, 1985).

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Although Magma was cited for a violation of subsection (d) of
the standard, former Commission Administrative Law Judge Virgil E.
Vail, following a hearing on the merits, found a violation of
subsection (a) and assessed a civil penalty of $100. (The judge
found that subsection (d) was too vague to be enforced.) 6 FMSHRC
1522, 1525 (June 1984)(ALJ). We granted Magma's petition for
discretionary review and granted the American Mining Congress'
request to participate as an amicus curiae For the reasons that
follow, we reverse.

On June 10, 1982, an inspector of the Department of Labor's

Mine Safety and Health Administration ("MSHA") conducted an
inspection at Magma's Superior Mine, a copper mine and mill located
near Superior, Arizona. The hoist in the mine's No. 9 shaft was
used to lower and raise miners into and out of the mine. During an
inspection of the hoist the inspector observed broken and distorted
wires in different lays of the wire rope attached to the counterweight
of the hoist mechanism. 2/ Based on his visual inspection of the rope
the inspector believed that there were 64 broken wires within a
distance of 100 feet and that there were as many as four broken wires
in one lay length. 3/ Based on his observations, the inspector
determined that the wire rope was in an unsafe condition and issued
the citation alleging a violation of section 57.19-128(d). Magma
abated the alleged violation by installing a new wire rope.

On June 15, 1982, at Magma's behest, Robert Donner, a wire

rope engineer for Bethlehem Wire Rope Company ("Bethlehem"),
examined the "worst section containing the worst rope lay." Donner
testified that at that time he found three breaks in the lay. At the
hearing Donner again examined the rope and testified that this time he
observed six broken wires. Approximately one month after the citation
was issued, Magma had a 12-foot piece of the rope which it considered
to be the "worst section" cut off and sent to Bethlehem. An
examination of the section revealed no signs of corrosion or rust and
showed that the rope maintained a breaking strength of 350,000 pounds.
(The catalogue strength of the rope was 358,000 pounds.)

In February 1983, eight months after the issuance of the

citation, Roy L. Jameson, an MSHA health and safety specialist,
examined the wire rope. After conducting an initial examination of
the rope at the mine, Jameson instituted a more extensive analysis
at an MSHA laboratory in Denver. The laboratory procedures involved
ultrasonic cleaning of the rope and a viewing of the rope with
magnification and special lighting. Based on that laboratory
analysis, Jameson concluded that the rope was unsafe. Jameson

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stated that he found 12 broken wires in one lay

2/ The wire rope was composed of six wire strands. Each wire strand
was composed of 25 individual wires. The six wire strands surrounded
a fiber core.

3/ A lay length is defined as "the distance parallel to the axis of
the rope in which a strand makes one complete turn about the axis
of the rope." Bureau of Mines, U.S. Department of the Interior, A
Dictionary of Mining, Mineral, and Related Terms, 629 (1968).

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length, that the rope had been "peened" and had a dry core, and
that the lay length of the wire rope had been extended. 4/

In finding that Magma violated section 57.128(a), the judge
noted the argument of Magma's counsel that subsection (d) was too
vague to be enforced and counsel's concession that subsections (a),
(b) and (c) set forth objective enforceable requirements. The judge
agreed that sub-section (d) was impermissibly vague, and stated that
had he not found a violation of subsection (a) of section 57.128 he
would have vacated the citation. The judge noted that subsection (a)
clearly requires the non-use and replacement of wire ropes with more
than six broken wires in one lay. The judge found Jameson's testimony
that he observed 12 broken wires in one lay of wire rope to be more
persuasive that that of Donner, who at the hearing testified that he
could see only six broken wires. The judge therefore concluded that
"a violation of subsection (a) ... was established as the most
credible evidence shows there were more than six broken wires in one
lay of the cited wire rope on the counterweight." 6 FMSHRC at 1526.

After reviewing the record as a whole, we find that the judge's
finding of a violation of subsection (a) is not supported by
substantial evidence.

The judge's finding of a violation rests on the testimony of

Jameson. While Jameson's testimony that during his post-inspection
laboratory analysis he found 12 broken wires in one lay length was
unchallenged, the judge apparently failed to take into account other
undisputed, relevant evidence. The record as a whole clearly
militates against a conclusion that the Secretary proved that on
June 10, 1982, there were more than six broken wires in any one lay
of the wire rope.

First, we note that the inspector testified without contradiction

that on June 10, 1982, he observed a maximum of only four broken wires
in any one lay. The judge did not make reference to this testimony.
The judge likewise did not make reference to the testimony of Donner
that, when he examined the worst rope lay five days after the citation
was issued and the violation was cited, he was able to find only three
broken wires.

Second, the judge also did not discuss testimony concerning
the possible change in the condition of the wire rope between the
date of the citation and the time the rope was examined by Jameson,
eight months later. There is no dispute that, following the citation,
the wire rope was removed from the hoist and stored on a reel in an

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uncovered outdoor storage area. During this period, it was exposed
to the elements, unwound twice from the reel and dragged along the
ground. Thus, during the eight-month interval between the issuance of
the citation and Jameson's examination of the rope, it was exposed to
abnormal conditions and additional stresses. The judge erred in not
evaluating the possible

4/ "Peening" is a process whereby the metal in the wire rope flattens
and the flattened metal extrudes beyond the outer edge of the rope.
The extruded metal breaks off and the wire becomes brittle. 6 FMSHRC
at 1525, n.2.

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impact of these conditions and stresses in determining the weight
to be given Jameson's testimony. The weight given to evidence of
an object's subsequent condition is dependent upon the time that has
elapsed between the initial event and the date referenced in the
testimony, as well as upon the likelihood of change during the
interval. See, e.g., Manning v. New York Telephone Co., 388 F.2d
910, 912 (2d Cir. 1968).

Further, the techniques of laboratory analysis employed by
Jameson to detect breaks in the wire rope were not those imposed
by the MSHA standards governing inspection and maintenance of
hoists. See 30 C.F.R. $ 57.19-120.et seq (1982). Those standards
contemplated regular visual inspection with further field testing
when potential problems were indicated or at scheduled intervals.
The record indicates that Magma's wire rope examination procedures
met or exceeded applicable MSHA requirements. There is no credible
evidence that under the examination procedures imposed by the MSHA
standards that the inspector found, or Magma could have found, a
violation of section 57.19-128(a) on the date of the citation's
issuance. 5/

For all of the above reasons, we conclude that the judge's
finding of a violation of 30 C.F.R. $ 57.19-128(a) is not supported
by substantial evidence. 6/

Finally, we address the judge's finding that section 57.19-128(d)

is unenforceably vague. The judge stated that section 57.19-128(d)
was too vague to convey the standard of conduct required of the mine
operator. 6 FMSHRC 1525-26. The judge was in error. We reiterate
that the fact that a standard is drafted in general terms does not
mean that it is void for vagueness. Many standards must be drafted
broadly in order to be adaptable to the myriad of circumstances in a
mine. Kerr McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). Such a
standard, like section 57.19-128(d), is not unenforceably vague when a
reasonably prudent person,

5/ We are aware that the record does indicate that prior to the
subject citation being issued, replacement of the cable was under
consideration. However, there is no indication that the reason for
such replacement was because of noncompliance with the instant
regulation.

6/ On review Magma also challenges the judge's post hearing sua sponte
amendment of the Secretary's complaint to assert a violation of
subsection (a). Magma argues that it was prejudiced by the amendment

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in that it had not been given the opportunity to fully litigate the
issue. In light of our conclusion that the judge's finding of a
violation of subsection (a) is not supported by substantial evidence,
it is unnecessary to reach this.assignment of error. We note in
passing, however, the importance of compliance with Rule 15(b) of the
Federal Rules of Civil Procedure when considering such amendments and
that rule's emphasis upon the parties understanding that the unpleaded
claim is, in fact, being litigated.

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familiar with the mining industry and the protective purpose of
the standard, would recognize the hazardous condition that the
standard seeks to prevent. Ozark-Mahoning Co., 8 FMSHRC 190, 191
(February 1986), U.S. Steel Corp., 6 FMSHRC 1908, 1910 (August 1984);
U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama By-Products,
4 FMSHRC 2128, 2129 (December 1982).

Accordingly, the decision of the administrative law judge is
reversed and the citation is vacated. 7/

               Richard V. Backley, Commissioner


               Joyce A. Doyle, Commissioner


               James A. Lastowka, Commissioner


               L. Clair Nelson, Commissioner

7/ Chairman Ford did not participate in the consideration or
disposition of this case.

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Distribution

N. Douglas Grimwood, Esq.
Twitty, Sievwright & Mills
Suite 4007
2702 North Third Street
Phoenix, Arizona 85004

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

Michael F. Duffy, Esq.
Henry Chajet, Esq.
American Mining Congress
Suite 300
1920 N Street, N.W.
Washington, D.C. 20036