Valdez Creek Mining Company

Plain-English summary

Valdez Creek Mining Company operated a placer gold mine in Alaska with about 100 employees when MSHA issued 17 citations during July and August 1985. The company admitted that the violations occurred but disputed the penalty amounts. Judge Michael A. Lasher, Jr. found that the operator's negligence and the seriousness of the hazards varied across the citations, including hazards involving mobile equipment, electrical systems, falls, and mine equipment. One citation was vacated, while the remaining 16 citations were affirmed. The total civil penalty was $990.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9087, 56.9022, 56.9011, 56.12025, 56.12032, 56.11001, 56.15003, 56.9054, 56.11002, 56.16005, 56.18006, and 56.12016
• Outcome: Citation No. 2394378 was vacated, the remaining 16 citations were affirmed, and a total civil penalty of $990 was assessed.
• Key point: The judge assessed penalties individually based on the Mine Act criteria, including negligence, gravity, operator size, violation history, good-faith abatement, and ability to continue in business.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. VALDEZ MINING
DDATE:
19870227
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 85-179-M
PETITIONER A.C. No. 50-01315-05503
v.
Denali Mine
VALDEZ CREEK MINING COMPANY,
RESPONDENT

                            DECISION

Appearances: William W. Kates, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington, for
Petitioner;
Mr. Don H. Schultz, Valdez Creek Mining Company,
Anchorage, Alaska, pro se.

Before: Judge Lasher

 This proceeding was initiated by the filing of a proposal

for assessment of a civil penalty by the Secretary of Labor
(herein the Secretary) on November 5, 1985, pursuant to Section
110(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. Section 820(a) (1977) (herein the Act). A hearing on the
merits was held in Anchorage, Alaska on September 8, 1986.

 In this matter, the Respondent admits that the violations

charged actually occurred but questions the amount of MSHA's
administrative penalty assessments. (FOOTNOTE 1)

 The amount of a penalty should relate to the degree of a

mine operator's culpability in terms of willfulness or
negligence, the seriousness of a violation, the business size of
the operator, and the number and nature of violations previously
discovered at the mine involved. Mitigating factors include the
operator's good faith in abating violative conditions and the
fact that a significantly adverse effect on the operator's
ability to continue in business would result by assessment of
penalties at a particular monetary level. Factors other than the
above-mentioned six criteria which are expressly provided in the
Act are not precluded from consideration either to increase or
reduce the amount of penalty otherwise warranted.

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The Respondent concedes that payment of penalties will not
jeopardize its ability to continue in business. At the outset of
the hearing, it was determined that Respondent has no history of
violations occurring prior to the issuance of the Citations here
involved.

 The Respondent is the largest placer gold mine in the State

of Alaska and had 100 employees on its payroll at the time of the
violations. Respondent pointed out, however, that compared to
gold mines in the lower 48 states it was not a particularly large
gold mine, and on the basis of all the evidence it is concluded
that Respondent is a medium-sized mine operator.

 No challenge to the so-called "significant and substantial"

charges contained on various of the Citations was made by
Respondent. The Secretary alleged that several of the violations,
which were issued during the period July 10 through August 9,
1985, by MSHA Inspector James B. Hudgins, were not abated
promptly and in good faith and such contention will be determined
where appropriate in the discussion of the 16 remaining
violations which follows. Unless specifically discussed and
determined otherwise, the Respondent is found to have proceeded
in good faith to promptly abate the violations in question upon
notification thereof by the Inspector.

               FINDINGS, CONCLUSIONS AND DISCUSSION

Citation No. 2393637

   The standard infracted, 30 C.F.R. | 56.9087 provides:

       "Heavy duty mobile equipment shall be provided with
       audible warning devices. When the operator of such
       equipment has an obstructed view to the rear, the
       equipment shall have either an automatic reverse signal
       alarm which is audible above the surrounding noise
       level or an observer to signal when it is safe to back
       up."

 MSHA Inspector James B. Hudgins, who issued all 17 Citations

involved in this matter on two different inspections, testified
that he commenced the first of the two inspections on July 10,
1985, and the second inspection on August 8, 1985 ( T. 17).

 The violative condition (or practice) involved is described

in the subject Citation as follows:

       "The 988 CAT Front-end loader equipment No. 203 loading
       trucks in the B channel section of the pit did not have
       a operable reverse signal alarm nor was an observer
       being used. The equipment operator has an obstructed
       view to the rear (blind spot)"

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The Secretary established that Respondent's mine superintendent
at the time, Dennis Babcock, "didn't believe" in the automatic
back-up alarm requirement and that the loader operator had turned
the equipment in for repair several times without success. This
is a willful violation which was also serious since a fatality
could have resulted had a miner been run over by the loader while
it was backing up. Since there was no "foot traffic", that is
miners working in the area on foot, the probability of such an
accident was not likely, and thus a low or moderate degree of
seriousness is attributed.

 Based on these findings as to negligence (willfulness),

gravity, and the other 4 assessment criteria required by the Act,
a penalty of $30.00 is found appropriate.

Citation No. 2393638

 The standard infracted, 30 C.F.R. | 56.9087 is set forth

above in connection with the discussion of Citation No. 2393637.

 The violative condition (or practice) is described as

follows:

     "The 35 ton DJB CAT haul truck equipment No. 307
     operating in the pit did not have a operable reverse
     signal alarm nor was an observer being used. The truck
     driver has an obstructed view to the rear (blind
     spot)."

 While there was no evidence as to the length of time this

violation existed, such is nevertheless found to be willful in
view of the mine superintendent's statement to the Inspector that
he "did not believe" in such automatic back-up alarms and that
such alarms were a "nuisance".

 There were no miners working foot around the equipment.

However, had the equipment backed over a miner a serious (injury)
or fatality could have occurred. Because the occurrence of such
an accident was unlikely, a penalty of $30.00 is assessed.

Citation No. 2393639

 The standard infracted, 30 C.F.R. | 56.9087 is the same as

that involved in the first two citations herein discussed.

 The violative condition (or practice) is described in the

Citation as follows:

     "The Galion Road Grader operating at the mine did not
     have a operable reverse signal alarm nor was an
     observer being used. The operator has an obstructed
     view to the rear. Equipment No. 502."

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This violation is found to be of a low degree of gravity since
the Inspector testified that there was no foot traffic in the
area where the grader was operating and that the hazard
envisioned was "not likely" to occur. Based on my prior findings
concerning this operator's intransigence with respect to
installing automatic backup alarms, this violation is found to be
willful. The violation was not abated in good faith within the
time established by the Inspector, and the cavalier attitude of
the mine operator with respect to this mine safety standard was
again in evidence in this respect. A penalty of $50.00 is found
to be appropriate.

Citation No. 2393640

   The standard infracted, 30 C.F.R. | 56.9022 provides:

       "Berms or guards shall be provided on the outer bank of
       elevated roadways."

 The violative condition (or practice) is described as

follows:

       "The elevated roadway from the plant to the slurry tank
       with a drop off on both sides upto approximately 50
       feet was not bermed. The road was being used daily by
       various pieces of equipment."

 The evidence adduced with respect to this violation

indicated that the dropoff on one side of this 175-foot long
roadway was approximately 50 feet and was from 10-15 feet on the
other side. The roadway appeared to have been used for
approximately one month-from the time it was built-and the
Inspector indicated that had a vehicle gone over the side, the
resultant injury could "very likely" be expected to be fatal.
This is found to be a very serious and obvious violation which
resulted from the negligence of the mine operator. The violative
condition described in the Citation was not abated in good faith
by the operator since berms were not installed until
approximately three weeks after the period for abatement had run
and only after the Inspector had returned to the mine site. This
violation is thus found to have not been promptly abated in good
faith by the mine operator after being notified thereof.
Respondent presented no rebuttal to the Secretary's allegation
that this was a "serious and substantial" violation. In view of
the deteriorating condition of the roadway, the severity of the
hazard posed by the violation, and the operator's apparent lack
of concern for compliance with mine safety standards, it is
concluded that the Secretary established the prerequisite
elements of proof for "significant and substantial" violations
mandated by the Federal Mine Safety and Health Review Commission
in its decision in Mathies Coal Co., 6 FMSHRC 1 (1984) to wit:

       "(1) the underlying violation of a mandatory safety
       standard; (2) a discrete safety hazard--that is, a
       measure

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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 in question will be a
reasonably serious nature."

 In the premises, the Citation is affirmed in all respects

and a penalty of $150.00 is assessed.

Citation No. 2393643

   The standard infracted, 30 C.F.R. | 56.9011 provides:

       "Cab windows shall be of safety glass or equivalent, in
       good condition and shall be kept clean."

 The violative condition (or practice) is described as

follows:

       "The windshield on the Teres 72-61 front-end loader
       (equipment No. 201) was severlly (sic) fractured
       through out the viewing area of the operator. The
       front-end loader was used daily at the plant stockpile
       area."

 According to the Inspector, the windshield was severely

fractured, visibility was very poor, the loader's driver had
complained about it for "some time", and the condition could
"reasonably likely" result in an accident which "could very well
be fatal." It also appears that the windshield became in such
condition as a result of sun heat or some trauma-not
gradually-and that the Respondent had ordered a new windshield
which had not arrived by the time the inspection was conducted.
The violative condition was abated promptly and in good faith.
The Inspector, upon observing the windshield, determined not to
remove the vehicle from use. While this was a serious, and
"significant and substantial" violation, I find no evidence it
resulted from Respondent's negligence. A penalty of $75.00 is
assessed therefor.

Citation No. 2393544

   The standard infracted, 30 C.F.R. | 56.9011 provides:

       "Cab windows shall be of safety glass or equivalent, in
       good condition and shall be kept clean."

 The violative condition (or practice) is described as

follows:

       "The front windshield on the 988 B Caterpillar
       front-end (equipment No. 203) was fractured through out
       the operations viewing area. The loader was operated in
       the pit area."

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While the entire windshield was fractured, visibility through
this windshield-unlike that involved in the preceding violation-
was, according to Inspector Hudgins, "still fairly decent" and
the fractures would not increase the possibility of an accident.
No evidence of negligence was proferred. Since this was not a
serious violation, the penalty sought by the Secretary, $20.00,
is found appropriate and is assessed.

Citation No. 2394341

   The standard infracted, 30 C.F.R. | 56.12025 provides:

       "All metal enclosing or encasing electrical circuits
       shall be grounded or provided with equivalent
       protection. This requirement does not apply to
       battery-operated equipment."

 The violative condition (or practice) is described as

follows:

       "The 110 volt power cable from wash plant control box
       to the outside lights was not grounded. The green
       ground wire was not connected."

 The Inspector testified that while it was unlikely that an

accident would occur as a result of this violation, the hazard
contemplated by the Inspector was "shock" which the Inspector
noted on the Citation could be "fatal." The condition had existed
"a few days or a few shifts" before the inspection and was due to
an electrician's failure to tape up and finish the connection in
question. I find no basis in the record for attributing the
electrician's negligence to Respondent's management. The
violation is found to be but moderately serious and the penalty
sought by the Secretary, $20.00, is assessed.

Citation No. 2394342

   The standard infracted, 30 C.F.R. | 56.12032 provides:

       Inspection and cover plates on electrical equipment and
       junction boxes shall be kept in place at all times
       except during testing or repairs.

 The violative condition (or practice) is described as

follows:

       "The door for the 220 volt distribution box in the wash
       plant electrical control room was not in place. (The
       box was energized)."

 This violation could have resulted in a fatal electrical

shock hazard. Several employees were exposed to the hazard and it
was very likely such could come to fruition. This serious

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violation is thus found to be "serious and substantial", Mathies
Coal Co., supra. There was no evidence of specific negligence on
the part of the mine operator. A penalty of $100.00 is assessed.

Citation No. 2394344

The standard infracted, 30 C.F.R. | 56.9087 provides:

     "Heavy duty mobile equipment shall be provided with
     audible warning devices. When the operator of such
     equipment has an obstructed view to the rear, the
     equipment shall have either an automatic reverse signal
     alarm which is audible above the surrounding noise
     level or an observer to signal when it is safe to back
     up."

 The violative condition (or practice) is described as

follows:

     "The D-8K Cat dozer equipment No. 402 operating in the
     pit did not have a reverse signal alarm nor was a
     spotter in use at this time. The operator has an
     obstructed view to the rear. The Ripper screen and size
     of machine create a blind spot to the rear from the
     operator's."

 The hazard envisioned by the Inspector was that the dozer

"could back over someone entering the area" and cause fatal
injuries. However, the Inspector also concluded that it was not
likely that such an accident would occur. As in the case of the
30 C.F.R. | 56.9087 violations previously discussed, this
violation is found to be willful in view of the mine
superintendent's lack of belief in back up alarms (T. 99). A
penalty of $30.00 is assessed for this moderately serious
violation.

Citation No. 2394378

 As previously noted, this Citation was vacated at the

hearing and my bench order approving such (T. 107) is here
affirmed.

Citation No. 2394379

The standard infracted, 30 C.F.R. | 56.11001 provides:

     Safe means of access shall be provided and maintained
     to all working places.

 The violative condition (or practice) is described as

follows:

     "Safe means of access was not provided to the work area
     in back of the feed hopper where the operator stands to
     control the amount of material the trucks dump when
     dumping in the hopper."

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The employee directing the dumping could have fallen 35 feet
since there was no ladder or work platform for him to stand on.
This practice occurred continually during the shift and had been
going on for one or two months. Had the employee lost his balance
it was reasonably likely that he would fall backwards and sustain
injuries which could have been fatal (T. 121). The mine
superintendent admitted to the Inspector that he should have
noticed the hazard and conceded that it was very likely that
someone could have fallen and sustained very serious injuries.
Accordingly, this serious violation is also found to be
"significant and substantial" and to have resulted from
Respondent's negligence. A penalty of $125.00 is assessed.

Citation No. 2394561

   The standard infracted, 30 C.F.R. | 56.15003 provides:

       All persons shall wear suitable protective footwear
       when in or around an area of a mine or plant where a
       hazard exists which could cause an injury to the feet.

 The violative condition (or practice) is described as

follows:

       "The warehouse person was wearing tennis shoes in the
       warehouse storage and shop area. This person is
       required to lift and store various heavy items that
       could injure a persons feet."

 The warehouseman, who customarily handled heavy objects, had

been issued steel-toed safety shoes by Respondent which he had
available at the mine. However, mine supervision had not required
him to wear the safety shoes even though the warehouseman
regularly wore the tennis shoes (T. 124). This is found to be a
moderately serious violation jeopardizing but one miner which
resulted from supervisorial negligence. A penalty of $30.00 is
assessed.

Citation No. 2394562

   The standard infracted, 30 C.F.R. | 56.9054 provides:

       Berms, bumper blocks, safety hooks, or similar means
       shall be provided to prevent overtravel and overturning
       at dumping locations.

 The violative condition (or practice) is described as

follows:

       "The bumper block at the main feed hopper was covered
       with material and no longer effective to prevent
       overtravel and overturning at this dumping location.
       This dumping location was used on a daily basic [sic]
       by 25 ton and 35 ton haul trucks."

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The Inspector testified that it was likely that a truck might
back into the hopper. A remote possibility existed that an
employee who regularly works on a shaker screen in back of the
hopper might become apprehensive and fall or leap from his
position to the ground--a 25-35 foot drop. There was no specific
evidence as to negligence. The violation was abated approximately
two hours after the abatement period expired. I find that the
Respondent was not negligent in the commission of this violation
and that Respondent, in a relatively reasonable manner, abated
the same. The $20.00 penalty urged by the Secretary is assessed.

Citation No. 2394564

   The standard infracted, 30 C.F.R. | 56.11002 provides:

       Crossovers, elevated walkways, elevated ramps, and
       stairways shall be of substantial construction provided
       with handrails, and maintained in good condition. Where
       necessary, toeboards shall be provided.

 The violative condition (or practice) is described as

follows:

       "The walkway from the wash plant control booth to the
       walkway around the dump hopper has the middle section
       of handrail missing and no toeboards were provided.
       Falling rock was observed falling from the trucks when
       dumping on this walkway and rolling over the edge
       approximately 25 feet below where clean up work is
       required."

 The purpose of a toeboard is to prevent rocks, tools and

other materials from falling on miners working 25 feet below the
walkway; the purpose of handrails (midrails) is to prevent
persons from falling off the walkway. The record does not permit
a finding of negligence on the part of Respondent in the
commission of this serious violation. A penalty of $50.00 is
assessed.

Citation No. 2394565

   The standard infracted, 30 C.F.R. | 56.16005 provides:

       Compressed and liquid gas cylinders shall be secured in
       a safe manner.

 The violative condition (or practice) is described as

follows:

       "One compressed gas cylinder located in the shop at the
       welding station was not secured."

 The Inspector testified that the unsecured 80-lb cylinder

could have fallen on someone's foot with the possible result of a
bruised foot or broken toe. This violation is found to have a

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low degree of gravity due to the remoteness of the hazard and the
type of injuries which might have resulted therefrom. The
violation is solely attributable to the unforeseen negligence of
an employee who apparently went on a break without first securing
the cylinder. Accordingly, I find no negligence imputable to
Respondent for this violation. A penalty of $10.00 is assessed.

Citation No. 2394566

The standard infracted, 30 C.F.R. | 56.18006 provides:

     New employees shall be indoctrinated in safety rules
     and safe work procedures.

 The violative condition (or practice) is described in the

Citation as follows:

     "A employee was observed standing on the top handrail
     of the railing around the main feed hooper. It is
     approximately 30 feet to the ground behind where the
     employee was standing. Also there is steel beams,
     electric motors and pumps located at the bottom. The
     employee was not properly trained in safe work
     procedures for this job."

 The record indicates that the employee in question advised

the Inspector that he engaged in the unsafe practice
"frequently," that he had not been trained in this aspect of his
job, and that he had never been told not to stand on the
handrail. The Inspector indicated that it was very likely that
the employee could have fallen because of the vibration and the
employee's wet shoes. Respondent is found to have been negligent
with respect to this violation which also is found to have
created a serious safety hazard. In view of the likelihood of the
accident contemplated actually happening, this violation is found
to be significant and substantial. The Citation is affirmed in
all respects and a penalty of $200.00 is assessed.

Citation No. 2394567

The standard infracted, 30 C.F.R. | 56.12016 provides:

     Electrically powered equipment shall be deenergized
     before mechanical work is done on such equipment. Power
     switches shall be locked out or other measures taken
     which shall prevent the equipment from being energized
     without the knowledge of the individuals working on it.
     Suitable warning notices shall be posted at the power
     switch and signed by the individuals who are to do the
     work. Such locks or preventive devices shall be removed
     only by the persons who installed them or by authorized
     personnel.

 The violative condition (or practice) is described as

follows:

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"Lock out measures was not done by the wash plant operator when
cleaning the water nozzels (sic) from the shaker screen. The
power switch was in the energized position. Employee was observed
standing in the screen plant."

 This Citation was issued on August 9, 1985, the final day of

Inspector Hudgins' second inspection. The hazard contemplated by
the Inspector was the shaker screen becoming energized-which
could have thrown the miner in question off balance leading to a
fall of some 6 to 15 feet. The Respondent had not instructed the
miner to lock out the main control switch and Respondent's
superintendent, Babcock, admitted it had not been policy to lock
out in such circumstances. There is no specific evidence in the
record from which to gauge the likelihood that the hazard
contributed to would result in an injury. However, Respondent did
not challenge this allegation and accordingly, it is concluded
that this violation was significant and substantial. The
violation, otherwise, is found to be but moderately serious and
to have resulted from Respondent's negligence. A penalty of
$50.00 is assessed.

                            ORDER

1. Citation No. 2394378 is vacated.

 2. The remaining 16 Citations hereinabove discussed are

affirmed in all respects.

 3. Respondent, if it has not previously done so, shall pay

the Secretary of Labor within 30 days from the date hereof the
penalties hereinabove individually assessed in the total sum of
$990.00.

                       Michael A. Lasher, Jr.
                       Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
~FOOTNOTE_ONE

 1 One of the 17 Citations involved, No. 2394378, was vacated

on the record by the Secretary at the instance of the undersigned
since it appeared that the pertinent standard had not been
infracted.