FMC Wyoming Corporation

Plain-English summary

FMC Wyoming operated a trona mining and processing facility near Green River, Wyoming. During maintenance work removing asbestos-type insulation from a turbine, the company did not conduct exposure surveys before the work began. Judge August F. Cetti affirmed the modified citation for failing to conduct the required dust, gas, mist, and fume surveys, found it was not significant and substantial or unwarrantable, and assessed a $600 penalty. He vacated the order alleging a failure to examine the workplace and vacated another order and its proposed penalty.

Decision snapshot

• Cited standards: 30 C.F.R. § 57.5002 and § 57.18002(a)(b)
• Outcome: Citation No. 2647693 was affirmed with a $600 penalty, while Order Nos. 2647694 and 2647695 and their proposed penalties were vacated.
• Key point: The record supported a penalty for failing to conduct required exposure surveys, but did not establish the separate workplace-examination violation.

Full text (FMSHRC public release)

CCASE:
FMC WYOMING V. SOL (MSHA)
DDATE:
19880628
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of the Administrative Law Judges

FMC WYOMING CORPORATION, CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEST 86-43-RM
v. Citation No. 2647693; 11/23/85

SECRETARY OF LABOR, Docket No. WEST 86-44-RM
MINE SAFETY AND HEALTH Order No. 2647694; 11/23/85
ADMINISTRATION (MSHA),
RESPONDENT Docket No. WEST 86-45-RM
Order No. 2647695; 11/23/85

                                                   FMC Trona Mine

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 86-110-M
PETITIONER A.C. No. 48-00152-05535
v.
FMC Trona Mine
FMC WYOMING CORPORATION,
RESPONDENT
AND
UNITED STEEL WORKERS OF
AMERICA,
INTERVENOR

                                  DECISION

Appearances: James H. Barkley, Esq., Margaret A. Miller, Esq., Office
of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Respondent/Petitioner;
James Holtkamp, Esq., VanCott, Bagley, Cornwall & McCarthy,
Salt Lake City, Utah, for Contestant/Respondent;
Stan Loader, Staff Representative, United Steelworkers of
America, Rock Springs, Wyoming, Intervenor.

Before: Judge Cetti

                           Statement of the Case

 These consolidated contest and civil penalty proceedings

arise under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq., (1982) ("Mine Act"). The Secretary on
behalf of the Mine Safety and Health Administration (MSHA)
charges the FMC Wyoming Corporation ("FMC") with violating three
regulatory safety standards.

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The three violations charged are based upon MSHA's mine inspector
Robert Scheneman's November 19th inspection of FMC's Trona mine
surface facility.

                         Factual Background

 FMC operates a trona mining and processing facility near

Green River, Wyoming. The trona is found in thick underground
seams. FMC extracts the trona from its natural deposits by using
underground mining and in situ leaching methods. Adjacent to the
mine is a large surface plant where the trona is processed into
various products.

 The citation and orders in these proceedings arise not from

extracting or processing trona but from maintenance work done by
FMC's maintence crew on the No. 3 turbine in the "Sesqui"
powerhouse, located in the surface plant. The turbine is one of
three turbines which are used to generate electricity for use at
the surface plant. The turbines and associated boiler are
enclosed in the powerhouse which has large doors on the west side
for heavy equipment access.

                            STIPULATIONS

   The parties stipulated as follows:

   1. FMC is a large operator.

   2. The violations were abated within the period proscribed.

 3. Payment of the amended penalties will not impair FMC's

ability to continue in business.

 4. The operator's history of prior violations is average for

an operator of its size.

Citation No. 2647693

 This citation was issued under section 104(a) of the Mine

Act on November 23rd by MSHA Inspector Robert Scheneman.

 The citation alleges a violation of 30 C.F.R.     57.5002

which mandates the following:

        Dust, gas, mist, and fume surveys shall be conducted as
        frequently as necessary to determine the adequacy of
        control measures.

 In the citation MSHA inspector Robert Scheneman correctly

states the facts as follows:

        The company Industrial Hygienist was not notified when
        work was being started to remove the asbestos type

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insulation from the No. 3 turbine in Sesqui Powerhouse.
There were no surveys taken to determine if the people
working were overexposed to asbestos. The Industrial
Hygienist did take samples after the work was done
and they were cleaning up.

 This citation was modified from a 104(a) citation to a

104(d)(1) citation on December 12, 1985.

 On November 4, a maintenance crew supervised by FMC foreman

John Wilfong began the process of dismantling the No. 3 turbine
for its scheduled 5Äyear overhaul.

 The dismantling work began with the removal of the turbine

covers and blanket insulation. The blanket appeared to be made of
"grayish" fiberglass cloth 2 inches thick. It extended only along
the flange area of the turbine cover. The blanket insulation was
placed over the handrail behind the control room which is near
the turbine.

 Next the maintenance crew removed the flange bolts using a

hydraulic wrench and separated the halves of the turbine. This
process took approximately three days and entailed the chipping
away of insulation around the bolts.

 The insulation in the bolt area appeared to be a hardboard

type mortar. As the insulation was chipped away, the pieces fell
on either side of the turbine down to the first floor below. The
mortar was enmeshed in chicken wire. Underneath the mortar were
bricks of insulation, held in place by baling wire. The removal
of the mortar insulation entailed cutting the chicken wire with
pliers and chipping some of the mortar to loosen it from the
bricks. The chicken wire with the mortar then fell underneath the
turbine to the floor below. The brick insulation was removed by
cutting the baling wire, allowing the bricks to fall to the floor
beneath the turbine. The brick insulation was a soft chalky
substance that would stick under a thumb nail if scratched. The
mortar and brick insulation removal required approximately two to
four hours of work. The total time taken to remove the insulation
was about three days. The insulation debris was left scattered
about the area for approximately two weeks.

 It is undisputed that FMC did not take dust surveys during

the three day period the maintenance crew removed the insulation
nor during the following two weeks. It it also undisputed that
MSHA never took any air samples at any relevant time.

 During the bolt removal process, some dust was kicked up

into the air. Before the bolt could be removed the crew had to
use hammers to remove the second layer of insulation. This
plaster like insulation was held together with chicken wire. It

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was soft and would crumble when hit. As the material was broken
up it was dropped or thrown to the floor below. As the insulation
was dropped to the floor it created dust. One maintenance
employee described the dust as a heavy flour type dust that would
fly up when hit.

 The maintenance foreman in charge of the crew was John

Wilfong. He had been assigned the task of overhauling the No. 3
turbine by his immediate supervisor, Mike Hruska. Foreman Wilfong
was asked by three members of his crew whether insulation they
were handling contained asbestos, and whether it was safe to
handle it. The foreman gave them vague assurances that it was
safe. Hruska as well as Wilfong saw the insulation being removed
from the turbine.

 On November 18, 1985, FMC's industrial hygienist Carl Watson

came to the Sesqui powerhouse to check on the work of an
independent outside contractor who had a crew that specialized in
removal of material containing asbestos. This crew wore protive
clothing and equipment. This crew was engaged in removing
insulation containing asbestos from the 61 foot high upstairs
ceiling of the facility. The building was properly posted with
warning signs. This ceiling insulation removal is unrelated to
the citation and orders in this case except to show FMC awareness
and attention to airborne hazards. During his November 18th check
of the Sesqui powerhouse, FMC's industrial hygienist first became
aware that insulation had been removed from turbine No. 3. He
indicated to the foreman Mr. Wilfong that the insulation blankets
could contain asbestos and asked that they be properly bagged. He
also directed that the insulation on the floor below the turbine
be cleaned up by wetting the insulation and putting it into
plastic bags. Two employees cleaned up the insulation after it
had been wetted down. Those engaged in the cleanup wore
protective clothing with canister masks.

 On the following day, November 19, 1985, MSHA Inspector

Robert Scheneman was making a regular inspection at the FMC
facility. The inspector came to the powerhouse to check on FMC
personnel cleaning up insulation material taken off the turbine.
When the inspector arrived at the No. 3 turbine he saw Carl
Watson, FMC's industrial hygienist taking samples and observed
the cleanup crew wearing protective clothes and masks cleaning up
the insulation.

 The mine inspector took a "grab" sample out of one of the

bags of insulation, which he sent to Denver MSHA Tech Support for
analysis. The report, petitioner's exhibit 1, indicates that the
sample contained 4.4 percent amosite and .3 percent crysotile by
weight.

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FMC presented evidence that it had in place at the time of the
issuance of the citation a policy regarding asbestos
identification and cleanup (Ex. PÄ2, PÄ6). I am satisfied from
the evidence presented that if the foreman Wilfong had been aware
that the insulation contained asbestos or that had Mr. Watson the
industrial hygienist had been aware that the insulation was being
removed, that the appropriate policy guidelines would have been
implemented.

 Approximately 17 months before the issuance of the current

citation and orders FMC's Industrial Hygienist, Mr. Watson, had
distributed a memorandum dated July 1, 1985 to senior managers at
the FMC plant. (Ex. PÄ3). This memorandum showed the results of
sampling and analysis for asbestos in various materials located
throughout the facilities. Included in the memo was the analysis
of the No. 3 turbine insulation which showed that it contained
asbestos. Mr. Hruska, the general maintenance foreman, an
immediate supervisor of Wilfong, testified that he does not
recall seeing the July 1, 1985, memorandum before the turbine
overhaul began and consequently did not advise Mr. Wilfong that
the No. 3 turbine insulation contained asbestos.

 The cited safety standard,   57.5002, mandates that dust

surveys be conducted as frequently as necessary to determine the
adequacy of control measures. It is a broad general standard.
Such a standard should be evaluated by reference to an objective
standard of what actions a reasonably prudent person familiar
with all the facts, including those peculiar to the mining
industry, and the protective purpose of the standard, would have
taken to provide the protection intended by the standard. Section
57.5002 is broadly written so as to be adaptable to myriad
circumstances. This safety standard is of central importance in
the crucial regulatory area of avoiding overexposure to airborne
hazards.

 Upon review of the entire record I'm satisfied and find that

a reasonably prudent person familiar with the facts including
those peculiar to the mining industry and the protective purposes
of the standard would have conducted dust surveys to determine
what control measures would be adequate to prevent the possible
overexposure of the employees working with the insulation. Dust
surveys should have been conducted during the three days the
maintenance crew removed the insulation from turbine No. 3. Since
respondent took no dust surveys during that period of time
respondent violated and thwarted the protective purposes of the
standard.

 Without air samples there is no way to determine whether any

employee in the maintenance crew was overexposed.

 Respondent's contention that the application of   57.5002 is

conditioned on a finding of exposure to airborne contaminants in

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excess of the permissible limit defined in 57.5001 is rejected.
The rationale of the Commission's decision in Tammsco, Inc., and
Schmarje, 7 FMSHRC 2006 [3 MSHC 2026] (December, 1985) is not
applicable to the facts and the safety standard charged in this
case.

 Section 104(d)(1) of the Mine Act provides that a violation

is significant and substantial if it is of "such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30
U.S.C. 814(d)(1). A violation is properly designated
significant and substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal
Co., 6 FMSHRC 1, 3Ä4 (January 1984) the Commission explained:

      In order to establish that a violation of a mandatory
      safety standard is significant and substantial under
      National Gypsum, 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 in question will
      be of a reasonably serious nature.

 The Commission has explained that the third element of the

Mathies formulation "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984) (emphasis deleted). They
emphasized that, in accordance with the language of section
104(d)(1), 30 U.S.C. 814(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that must be
significant and substantial. Id. In addition, the evaluation of
reasonable likelihood should be made in terms of "continued
normal mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (July 1984). Applying these principles to the instant
case. It is concluded that the cited violation is not of a
significant and substantial nature.

 The Review Commission has ruled that "unwarrantable failure

means aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." It based this conclusion on the ordinary term
"unwarrantable failure". The purpose of unwarrantable failure
sanctions with in the Mine Act, the Act's legislative history and
judicial precedence. The Commission stated that whereas
negligence is conduct that is "inadvertent," "thoughtless," "or

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inattentive," conduct constituting unwarrantable failure is
conduct that is "not justifiable" or "inexcusable". The
Commission pointed out that by construing unwarrantable failure
by a mine operator to mean aggravated conduct constituting more
than ordinary negligence, can unwarrantable failure sanctions
assume their intended distinct place in the Act's enforcement
scheme. See Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004
(December 1987) and Youghiogheny and Ohio Coal Co., 9 FMSHRC
2007, 2010 (December 1987). Applying these principles to the
facts of this case I find that the violation of Section 56.5002
was not the result of FMC's unwarrantable failure to comply. The
violation was caused by ordinary negligence. For purposes of
determining the appropriate penalty, I would evaluate the degree
of negligence at the upper range of ordinary negligence.

 The evidence shows that FMC was not indifferent to the

hazard of airborne asbestos. It had shown an awareness and
attention to this hazard. As previously stated FMC had in place
at the time of the issuance of the citations a policy regarding
asbestos identification and cleanup (Exs. PÄ2 and PÄ6). FMC's
industrial hygienist Mr. Watson distributed a memorandum dated
July 1, 1985, to senior managers at the FMC plant regarding the
results of various sampling and analysis for asbestos, including
an analysis of the No. 3 turbine insulation (Ex. PÄ3). There is
no evidence indicating that had the maintenance foreman been
aware that the insulation contained asbestos or that had the
industrial hygienist been aware that the insulation in the No. 3
turbine was being removed, that FMC's asbestos policy guidelines
would not have been implemented.

 The record also shows FMC was not indifferent to the hazards

of airborne asbestos dust. At the time of the current inspection
FMC had an independent contractor with a crew wearing protective
clothes and equipment removing insulation containing asbestos
from the ceiling of the building that housed the turbine. While
ceiling insulation removal was unrelated to the citation and
orders in this case it indicates FMC's awareness and attention to
the hazard of airborne asbestos dust. These efforts to eliminate
the hazard of airborne asbestos dust tend to support the
conclusion that FMC's failure to comply with the safety standard
in question was due to ordinary negligence rather than to
aggravated conduct exceeding ordinary negligence.

 For purposes of determining the appropriate penalty FMC's

degree of negligence in violating the safety standard is
evaluated as reaching the upper range of plain ordinary
negligence. Considering FMC's large size, that the payment of
appriate penalties will not impair FMC's ability to continue in
business, that FMC's history of prior violations is average for
an operation of its size, and the potential seriousness of the
violation it is found that the appropriate penalty for FMC's
violation of 57.5002 is $600.00.

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Order No. 2647694

 This Order was vacated at the hearing upon motion by the

Secretary of Labor. The Secretary's counsel stated he had
reviewed the applicability of the standard and the sufficiency of
the evidence and determined not to proceed with Order No. 2647694
(failure to provide special protective equipment and clothing).
The Secretary's motion to withdraw the proposal for penalty and
vacate the citation was granted over the objection of the
Intervenor.

Order No. 2647695

 This Order was originally issued by the mine inspector as a

citation under section 104(d)(1) of the Act. The order alleges a
violation of 30 C.F.R 57.18002(a)(b) which provides:

      (a) A competent person designated by the operator shall
      examine each working place at least once each shift for
      conditions which may adversely affect safety or health.
      The operator shall promptly initiate appropriate action
      to correct such conditions.

      (b) A record that such examinations were conducted
      shall be kept by the operator for a period of one year,
      and shall be made available for review by the Secretary
      or his authorized representative.

      The MSHA inspector, in the citation alleges:

      The people responsible for setting up this maintenance
      [sic] job failed to notified [sic] the people doing the
      work that they would be working with asbestos. Their
      company memo section 3Ä(B) states that when they do
      work of this type, removing asbestos insulation while
      making repairs. The Industrial hygiest [sic] will be
      notified when this type of work is being done so he can
      observe the job and recommend protective equipment.
      They have a list of all places that have asbestos
      present. The place were [sic] the violation occurred
      was document [sic] on the list. They did not clean up
      after every shift. And placed in the proper container
      for disposal. This is a failure of the operator to take
      appropriate safety measure [sic] to insure that the
      employees were adequately protected. While working in
      this area. There were eight (8) people doing the work
      plus the foreman, and supervisor in this area. This job
      took from Nov. 4 to Nov. 18, 1985 with no protection
      provided. For the employees involved. There is no
      records [sic] showing off [sic] examinations of this
      area.

 On December 12, 1985, Inspector Scheneman modified this

citation to a 104(d)(1) order.

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To establish a violation of 30 C.F.R. 56.18002 the Secretary
must prove by a preponderance of the evidence that a competent
person failed to make an examination of the working place or that
no record of the examination was made. Upon careful review of the
record I find that the Secretary failed to prove that there was
no examination of the working place by a competent persons or
that no record of the examinations were made.

 The log of the examination of the Sesqui powerhouse during

the period of the No. 3 turbine overhaul shows the date and shift
on which the examinations were conducted and the name of the
person conducting the examinations and the work places examined.
This log was introduced into evidence by FMC as its Exhibit DÄ27.

 FMC also introduced into evidence an MSHA program directive,

dated November 20, 1979, in which MSHA clarified the record
keeping requirements of the safety standards (Ex. DÄ26). The
program directive specifies that the items that must be recorded
in order to comply with record keeping requirements are:

        (a) the date and shift;
        (b) the person(s) conducting the examination; and
        (c) the working places examined.

        The MSHA's program directives also specifies that:

        Citations for violations of this standard are to be
        issued only where there has been a failure to conduct
        an examination of a working place or a failure to
        record that an examination has been done. The standard
        is not to be used to cite an operator for a hazard that
        is not specifically covered by another standard, or for
        a hazard that is already covered by another mandatory
        standard, or for imminent danger.

 I'm satisfied that the program directive as it relates to

this case correctly interprets the safety standard in the manner
intended by its promulgator. On careful review of the record I
find that the evidence presented at the hearing does not
establish a violation of 30 C.F.R. 57.18002.

                         Conclusions of Law

   1. The Commission has jurisdiction to decide this case.

 2. Respondent violated the mandatory safety standard 30

C.F.R. 57.5002 as alleged in Citation No. 2647693. The
appropriate civil penalty for this violation is $600.00.

 3. FMC's violation of   57.5002 was not significant and

substantial and was not caused by FMC's unwarrantable failure to
comply.

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4. FMC did not violate 30 C.F.R. 57.18002(a)(b). Order No.
2647695 is vacated and the proposed penalty set aside.

 5. Order No. 2647694 and its related proposed civil penalty,

upon motion by the Secretary of Labor, are each vacated.

                             ORDER

                    Docket No. WEST 86Ä43ÄRM
                    Docket No. WEST 86Ä110ÄM

 Citation No. 2647693 as modified to a citation issued

pursuant to Section 104(a) is affirmed and the respondent is
ordered to pay a civil penalty of $600.00 to the Secretary within
within 30 days of the date of this decision.

                    Docket No. WEST 86Ä44ÄRM
                    Docket No. WEST 86Ä45ÄRM
                    Docket No. WEST 86Ä110ÄM

 Order Nos. 2647694 and 267695 and their related proposed

penalties are each vacated.

                          August F. Cetti
                          Administrative Law Judge