Urralburu Mining Company

Plain-English summary

Urralburu Mining Company's Breezy Mine exposed two miners to radon-daughter concentrations above the 1.0 working-level limit in an active working area. Judge Michael A. Lasher found that the inspector's samples established a violation of 30 C.F.R. § 57.5039 and that the operator's explanation about a cave-in and restricted ventilation did not excuse the exposure. He found the violation serious because the measured levels exposed the miners to a lung-cancer hazard, but considered the mine's size, the operator's limited experience, the lack of a prior citation for this type of violation, and rapid abatement. The citation was affirmed and a $20 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.5039
• Outcome: Citation No. 2640417 was affirmed, and Urralburu Mining Company was ordered to pay a $20 penalty.
• Key point: A ventilation problem does not excuse excessive radon exposure when sampling establishes that miners were exposed above the regulatory limit.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. URRALBURU MINING
DDATE:
19890615
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-300-M
PETITIONER A.C. No. 05-03211-05502

      v.                            Breezy Mine

URRALBURU MINING COMPANY,
RESPONDENT

                             DECISION

Appearances: Jim D. Rogers, Esq., Robert J. Murphy, Esq., Office
of the Solicitor, U.S. Department of Labor, Denver,
Colorado,
for Petitioner.

Before: Judge Lasher

 This matter arises upon the filing of a proposal for penalty

by the Secretary of Labor on September 26, 1988, seeking
assessment of a civil penalty against Respondent for a violation
of 30 C.F.R. 57.5039 contained in Citation No. 2640417, dated May
4, 1988. The subject citation was issued by Inspector Dennis J.
Tobin pursuant to the provisions of Section 104(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. 815(d) (1977),
and charged the Respondent with the following violative condition
or practice:

 "The two miners working in the heading were exposed to 5.78

W.L. radon in the 3004 haulage and 1.38 W.L. radon in the
incline. The maximum allowable exposure is 1.0 W.L. radon. A
re-sample indicated 2.72 W.L. at the bottom of the incline and
1.13 W.L. in the 3003 haulage. Levels in the incline were
measured at nil. A close examination of the ventilation indicated
recirculation of the mine air at the fan."

 At the hearing in this matter in Denver, Colorado on April

26, 1989, Petitioner, as above indicated, was represented by
legal counsel. Respondent, which the record shows received actual
notice of the hearing (a Postal Service green card attached to
the notice of hearing in the Commission's official case file
reflects receipt of the notice of hearing by certified mail on
March 27, 1989), neither appeared nor advised the Presiding Judge
or counsel for Petitioner of its intent not to

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appear. In such circumstances, the testimony of the issuing
inspector, Dennis J. Tobin, was submitted on the record under
oath in support of the Petitioner's position together with
certain documentary evidence. Based thereon, at the close of
hearing, this bench decision was issued.

 Turning specifically to Citation No. 2640417, the record

indicates that the citation in question was issued by Inspector
Tobin on May 4, 1988, during an inspection of Respondent's Breezy
Mine. At this time, Inspector Tobin went underground at
Respondent's uranium mine and observed two miners picking up
broken ore. Inspector Tobin took three radon samples on three
calibrated devices for measuring such, all in accordance with his
prior training related to the detection of airborne contaminants
and matters involving toxicology. Inspector Tobin, whose
experience in mining generally and in the field involved here
specifically is impressive, testified that upon returning to the
surface he encountered Mr. Urralburu, the operator of the mine,
and that Mr. Urralburu was alarmed at his readings which
indicated high radiation. The inspector returned underground with
Mr. Urralburu and "resampled" in his presence the readings, all
of which are reflected in the citation.

 The regulation charged by MSHA to have been infracted in

this instance, 30 C.F.R. 57.5039, entitled Maximum Permissible
Concentration, provides: "Except as provided by standard Section
57.5005, persons shall not be exposed to air containing
concentrations of radon daughters exceeding 1.0 W.L. in active
workings."

 In his only communication in this matter, a letter dated

October 21, 1988, Mr. Urralburu indicated that he felt a penalty
was not called for since there had been a cave-in the night prior
to the inspection and that because of the cave-in the exhaust fan
in the mine had been restricted to a half flow "in the borehole."
Mr. Urralburu went on to point out that the cave-in was repaired
and ventilation was properly restored. Inspector Tobin, who
testified under oath, indicated that the explanation for the
violation, if such it be, contained in Mr. Urralburu's letter was
not meritorious because the violation would have continued if the
excessive radon levels had not been detected during his
inspection and Inspector Tobin was of the opinion that it was as
a result of his radon sampling that Respondent became aware of the
excessive radon levels cited. It does appear, and Petitioner
concedes, as Mr. Urralburu indicates in his letter that abatement
of the violative condition was achieved and that Respondent
proceeded in good faith to achieve rapid compliance with the
violated standard after notification of the violation.

 Accordingly, it is found that the violation cited in

Citation No. 2640417 occurred as charged and that an appropriate

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penalty must be assessed. Based on information in this record, it
is concluded that this mine operator was found to be a small mine
operator who had operated the subject Breezy Mine for a period of
at least 15 years. Looking at the Respondent as a specific
individual, that is, Mr. Ben Urralburu, it is found based on the
inspector's testimony that he has a limited education and that
this was the first time he had been cited for this specific type
of violation. These factors entered the inspector's judgment in
attributing a "moderate" degree of negligence to the violation,
and I agree. This violation is found to be serious in deference
to the inspector's opinion as to the propriety of this
characterization and also his evidence indicating that inhalation
of radioactive radon gases at the levels detected and documented
by him exposed the two miners who were present on May 4, 1988, to
the hazard of lung cancer.

 The record does not reflect, and Respondent has not

established, of course, at the hearing, or in pre-trial
submissions prior to the hearing, that assessment of penalties at
the level sought by Petitioner would jeopardize its ability to
continue in business. The Respondent mine operator has a history
of two previous violations (Exhibit P-1).

 In the premises, Petitioner's initial assessment of $20.00

for this violation is found appropriate and is here assessed.

                             ORDER

 Citation No. 2640417 is affirmed.

 Respondent is ordered to pay to the Secretary of Labor

within 30 days the sum of $20.00.

                        Michael A. Lasher, Jr.
                        Administrative Law Judge