New Butte Mining Incorporated

Plain-English summary

New Butte Mining operated the Lexington gold mine in Montana. A miner was injured when he backed into a rib and was pinched by an ore car in an unmarked area where the clearance narrowed to zero. Judge John J. Morris found that the area was a travelway and that the restricted clearance created a hazard that had to be conspicuously marked under 30 C.F.R. § 57.11008. He affirmed Citation No. 2650622 and the proposed $750 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.11001 and 57.11008
• Outcome: Citation No. 2650622 and the $750 proposed penalty were affirmed.
• Key point: A passage used to move from one place to another is a travelway, and a hazardous restricted clearance must be marked even if the inspector did not personally observe the violation.

Full text (FMSHRC public release)

             Federal Mine Safety and Health Review Commission
                    Office of Administrative Law Judges
                           The Federal Building
                      Room 280, 1244 Speer Boulevard

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 90-168-M
PETITIONER A.C. No. 24-01841-05507
v.
Lexington Mine
NEW BUTTE MINING INCORPORATED,
RESPONDENT

                                 DECISION

Appearances: Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. David W. Kneebone, Esq., Consultant, New Butte
Mining, Butte, Montana,
for Respondent.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration (MSHA), charges Respondent, New Butte
Mining, Incorporated ("New Butte") with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Act, 30 U.S.C. 801 et seq. (the "Act").

 A hearing on the merits was held in Butte, Montana, on April

23, 1991.

   The parties filed post-trial briefs.

STIPULATION

 At the commencement of the hearing the parties filed a

written stipulation providing as follows:

 1. New Butte is engaged in the mining of gold in the United

States, and its mining operations affect interstate commerce.

 2. New Butte is the owner and operator of the Lexington

Mine, MSHA I.D. No. 24-01841.

 3. New Butte is subject to the jurisdiction of the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. 801, et seq.
(the "Act").

 4. The Administrative Law Judge has jurisdiction in this matter.

 5. The subject citations were properly served by a duly

authorized representative of the Secretary upon an agent of
respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

 6. The exhibits to be offered by respondent and the

Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.

 7. The proposed penalty will not affect respondent's ability

to continue in business.

 8. The operator demonstrated good faith in abating the

violation.

 9. New Butte is a small operator of a gold mine with 106,950

control hours in 1989.

 10. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the two
years prior to the date of the citations.

 11. On June 27, 1989, David Kneebone contacted Darrel

Woodbeck, MSHA inspector, to report the accident. After that,
Darrel Woodbeck contacted Jack Petty, former MSHA Assistant
District Director, who directed Darrel Woodbeck and Siebert Smith
to investigate the company because of the accident.

                               THE EVIDENCE

 On June 27, 1989, Darrell Woodbeck, an MSHA inspector

experienced in mining, issued Citation No. 2650622. The citation
alleged a violation of 30 C.F.R. 57.1101. On the same date, in
a subsequent modification, the citation was modified to allege a
violation of 30 C.F.R. 57-11008. (Footnote 1) (Exhibit P-2).

 The uncontroverted evidence shows that on June 26, 1989,

miner Rick A. Walter was swamping (Footnote 2) for Dana Lentz, the
assigned motorman. The two miners in this conventional stope
mine were joined by miner Conda Sluga. The men were spotting ore
cars under the #3 chute. In the process, a one-inch air hose had
become entangled in the rail cars. Messrs. Sluga and Walter
proceeded to untangle the hose. In the process, Mr. Walter and the
train moved slowly backwards. Mr. Walter backed into the rib. At
that point, he was pinched by the ore car and sustained injuries
to his neck, chest, and back. Mr. Lentz saw that something was
wrong and he immediately pulled the train forward. Mr. Walter was
hospitalized for his injuries.

 The company took photographs (Exs. P-3 through P-7). Copies

of the photographs were later given to the MSHA investigators.
However, the photographs were given to MSHA in a spirit of
cooperation and the inspector at the scene had indicated there
was no reason to write a citation. Subsequently, a citation was
issued.

 It is agreed the restricted clearance was not marked with

any reflectors or warnings. At the most restricted point, as a
ground control device, the protrusion of the granite slab had
been overlaid by a steel mat. The mat showed evidence that, at
times, it had been struck by the ore cars. At this point, there
was no clearance between ore cars and the wall.

                              DISCUSSION

 The Commission in Ideal Cement Company, 11 FMSHRC 2409 at

2416 (Nov. 1990), stated that in interpreting and applying
broadly worded standards, the appropriate test is whether a
reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard, citing Canon
Coal Co., 9 FMSHRC 667, 668 (April 1987), Quinland Coal, Inc., 9
FMSHRC 1614, 1617-1618 (Sept. 1987).

 The requirements of 30 C.F.R.   57.11008 are clear.

Restated, it requires that restricted clearance shall be
conspicuously marked under two circumstances. These are where the
clearance is restricted and a hazard exists due to the
restriction.

 As a threshold matter, it is uncontroverted that the area of

restricted clearance was not marked in any manner. The restricted
space went to zero distance between the ore cars and the wall. A
ground control mat at this point showed evidence that it had been
struck by the ore cars. The hazard was apparent: the swamper
backed against the rib and was struck by the side of the ore car.
(Exs. P-3 through P-7).

 New Butte raises several defenses. New Butte objects to MSHA

using the company's photographs which were originally given in a
"spirit of cooperation." New Butte's objections are without
merit. MSHA legally acquired the photographs and may use them as
evidence in a later hearing. The operator objected to the
Secretary's proceeding under 30 C.F.R. 57.11008 when the
company had been originally cited under 57.11001. (Footnote 3)
Such amendments are permitted under the Federal Rules of Civil
Procedure. See Rule 15(a), Fed. R. Civ. P.

 The operator also argues the area of this stope was not a

travelway. Therefore, by virtue of the headnote of the
regulation, Subpart J does not apply.

 I disagree, 30 C.F.R.   57.2 defines a travelway as "a

passage, walk, or way regularly used and designated to go from
one place to another." On this issue I credit the inspector's
testimony. New Butte, in fact, recognized this area as a
travelway since a walkway existed on the side away from the side
of the protrusion. In short, the passage from wall to wall
constituted the travelway.

 New Butte also contends the accident was not thoroughly

investigated by MSHA. The company is not in a position to
complain that the inspectors did not go underground. It is
uncontroverted that the company blasted the protruding rib before
the inspectors arrived to conduct their inspection. MSHA's
investigation (Ex. P-2) may contain some errors, but I find it is
a thorough outline of the accident. Further, an inspector does
not have to observe a violation to issue a citation, Emerald
Mines Co. v. Federal Mine Safety and Health Review, 863 F.2d 51
(D.C. Cir. 1988).

 New Butte also contends, and its evidence supports the argu-

ment, that the primary cause of the accident could have been
miner Sluga's activities in distracting the ore train operator
and giving him unauthorized signals.

 This case is not a hearing to balance the causes of the

accident. Even if miner Sluga or the crew's negligence
contributed to the accident, the ultimate issue is whether New
Butte violated the regulation.

 New Butte also contends it did not receive a copy of MSHA's

investigation although it requested that information. However, it
is uncontroverted that New Butte received the report. While there
was some delay, the operator did not establish any prejudice by
reason of the delay. New Butte's contentions are without merit
and for the foregoing reasons, Citation No. 2650622 should be
affirmed.

                                CIVIL PENALTIES

 The statutory criteria to assess civil penalties are

contained in Section 110(i) of the Act, 30 U.S.C. 820(i).

  The operator's history is favorable, inasmuch as the company

has only been assessed eight violations in the two years ending
June 26, 1989. The company had no violations before October 15,
1987.

 It is stipulated that the company is small and the proposed

penalty will not affect its ability to continue in business.

 The company was negligent inasmuch as a protrusion was

apparent. A mat had been placed at the protrusion as a ground
control device, hence the company should have known of it.

 The injuries sustained by Rick Walter are indicative of the

gravity of this violation.

 The operator blasted the protrusion before the MSHA

inspectors arrived. However, this action generally falls under
the broad umbrella of "good faith."

 On balance, I consider the proposed penalty to be

appropriate.

   For the following reasons,    I enter the following:

                                 ORDER

 Citation No. 2650622 and the proposed penalty of $750 are

AFFIRMED.

                                John J. Morris
                                Administrative Law Judge

Footnotes start here:-

 1. The cited regulation provides as follows:
        57.11008. Restricted clearance.
      Where restricted clearance creates a hazard to persons,

the restricted clearance shall be conspicuously marked.

 2. A swamper directs the movements of the underground ore

haulage train.

 3. The standard reads as follows:
        57.11001 Safe access.
      Safe means of access shall be provided and maintained

to all working places.