FMC Wyoming Corporation
FMC Wyoming Corporation (FMSHRC WEST 92-174-RM): Abatement orders affirmed, contests dismissed
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This order from 1993 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
FMC Wyoming Corporation operates the FMC Trona Mine, where MSHA cited housekeeping and electrical-cover conditions and later issued failure-to-abate orders. The judge approved settlements that reduced or amended several penalties, affirmed the three citations and related orders, and assessed $100 penalties for each of the three contested citations. The three contest proceedings were dismissed after FMC withdrew its contests, while the civil-penalty proceedings were resolved through the affirmed findings and amended penalties.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 57.20003 and 57.12032
- Outcome: The citations and failure-to-abate orders were affirmed, settlements were approved, penalties were reduced or assessed, and three contest cases were dismissed.
- Key point: A mine operator's failure to abate non-S&S conditions supported section 104(b) orders even when the underlying hazards were considered unlikely to cause injury.
Full text (FMSHRC public release)
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268
November 8, 1993
FMC WYOMING CORPORATION, : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 92-174-RM
: Order No. 3634714; 11/27/91
v. :
: Docket No. WEST 92-175-RM
: Order No. 3634718; 11/27/91
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEST 92-176-RM
ADMINISTRATION (MSHA), : Order No. 3634720; 11/27/91
Respondent :
: FMC Trona Mine
:
: Mine I.D. 48-00152
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 92-464-M
Petitioner : A.C. No. 48-00152-05608
:
v. : Docket No. WEST 92-542-M
: A.C. No. 48-00152-05612
FMC WYOMING CORPORATION, :
Respondent : FMC Trona Mine
DECISION
Appearances: Matthew F. McNulty, Esq., VAN COTT, BAGLEY,
CORNWALL & McCARTHY, Salt Lake City, Utah,
for Contestant/Respondent;
Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.
Before: Judge Morris
These contest and civil penalty proceedings arose under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq. (the "Act"). In the civil penalty proceedings, the Secre-
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tary seeks to impose civil penalties against FMC Wyoming Corpo-
ration ("FMC").
After notice to the parties, a hearing on the merits took
place in Salt Lake City, Utah.
The parties filed post-trial briefs.
STIPULATION
At the commencement of the hearing, the parties stipulated
as follows:
1. FMC Wyoming Corporation ("FMC") is engaged in mining
and selling of sodium compounds in the United States, and its
mining operations affect interstate commerce.
2. FMC is the owner and operator of FMC Trona Mine, MSHA
I.D. No. 48-00152.
3. FMC 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/orders were properly served by
duly authorized representatives of the Secretary upon an agent of
FMC on the dates and places 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 FMC 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 FMC's ability to
continue in business.
8. FMC is a large mine operator with 3,132,680 hours
worked in 1991.
9. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to December 9, 1991.
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SETTLEMENTS
At the commencement of the hearing, the parties further
agreed to settle certain citations:
1. As to Citation No. 3634735 FMC seek to withdraw its
contest and pay the proposed penalty of $100. (Tr. 7).
2. As to Citation No. 3634706 the parties seek to reduce
the penalty from $1000 to $780. They further noted FMC abated
the violative condition, and it was agreed the accompanying non-
penalty 104(b) Order should be affirmed. (Tr. 7).
3. As to Citation No. 3904302 FMC moved to withdraw its
notice of contest and pay the proposed penalty of $1800.
(Tr. 9).
4. As to Citation No. 3904303 the parties sought to amend
the Citation and reduce the penalty for $206 to $50. (Tr. 9).
I have reviewed the proposed settlements as stated on the
record and I find they are reasonable and in the public interest.
They should be approved.
STATEMENT OF THE CASE AND ISSUES
No dispute exists as to the three citations issued under
Section 104(a) of the Act. The citations, described hereafter,
are supported by the testimony of MSHA Inspector Gerry Ferrin, an
electrical specialist. FMC's witness Carl Watson offered no con-
trary evidence.
The dispute centers on whether the Inspector abused his dis-
cretion in failing to extend the time of abatement when he was
requested to do so. Further, the proposed penalties are an issue
in the case.
Citation No. 3634712 alleges FMC violated 30 C.F.R.
57.20003. (Footnote 1) It reads
1 57.20003 Housekeeping.
At all mining operations--
(a) Workplaces, passageways, storerooms, and
service rooms shall be kept clean and orderly;
(b) The floor of every workplace shall be
maintained in a clean and, so far as possible, dry
condition.
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A quantity of trona had spilled on the stair- way by
E11 elevator, sesqui shipping; on the stairway access
and on the access to the valves beside the stairway.
The passageway and stairway was (sic) was not
maintained in a clean and orderly condition. (Ex. G-
2).
When FMC failed to abate the violative conditions, the In-spector issued
Order No. 3634717 under Section 104(b) of the Act. (Ex. G-2).
Citation No. 3634713 alleges FMC violated 30 C.F.R. 57.12032.
(Footnote 2) It reads:
The thermostat in the restroom in Sesqui shipping was
not provided with a cover over the 110 VAC terminals.
The thermostat was about 4.5 feet above floor level.
The ter- minals were somewhat recessed so that contact
was unlikely. (Ex. G-3).
When FMC failed to abate the violative conditions, the Inspector issued
Order No. 3634718 under Section 104(b) of the Act. (Ex. G-3).
Where wet processes are used, drainage shall be main-
tained, and false floors, platforms, mats, or other
dry standing places shall be provided where
practicable; and
(c) Every floor working place, and passageway shall
be kept free from protruding nails, splinters, holes,
or loose boards, as practicable.
2 57.12032 Inspection and cover plates.
Inspection and cover plates on electrical equipment
and junction boxes shall be kept in place at all times
except during testing or repairs.
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Citation No. 3634714 alleges FMC violated 30 C.F.R.
57.20003.(Footnote 3) It reads
In the old sesqui bagging/shop platform, housekeeping
had not been performed through- out the entire area.
Bags of soda ash had been dropped in walkways,
cardboard, paper, rags, and metal materials were
strewn about. (Ex. G-4).
When FMC failed to abate the violative conditions, the Inspector issued
Order No. 3634720 under Section 104(b) of the Act. (Ex. G-4).
DISCUSSION AND FURTHER FINDINGS
On November 26, 1991, MSHA Inspector Gerry Ferrin issued Ci- tation Nos.
3634712, 3634713, and 3634714. These three Citations were issued under
Section 104(a) of the Act. (Gov. Exs. G-2,
G-3, and G-4). On November 27, 1991, approximately 24 hours later Inspector
Ferrin issued an accompanying 104(b) order for each Citation.
Evidence as to 104(a) Citations
CITATION NO. 3634712
The area involved in this Citation was identified as a pas-sage or
travelway. (Tr. 16, 58). Inspector Ferrin considered the area to be in use
because he observed packed-down trona as well as footprints in the trona.
(Tr. 17). Mr. Watson con- firmed the passageway was in use and access had not
been restricted. (Tr. 54, 60, 74).
Inspector Ferrin identified slip, trip, or fall as the hazard. He
believed supervisory personnel traveling through the area should have
recognized the hazard and taken care of it. (Tr. 16, 18, 59).
The uncontroverted facts establish a violation of 57.20003 and Citation
No. 3634712 should be affirmed.
3 Cited, supra fn 1.
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Citation No. 3634713
This Citation was issued on November 26, 1991, at approx- imately 10:23
p.m. Inspector Ferrin indicated the conditions cited presented an electrical
shock hazard. (Tr. 24). He fur- ther testified as to the absence of any
testing or repairs on the thermostat. (Tr. 24). Both management and
employees use the restroom. Mr. Ferrin felt someone should have recognized
the hazard and corrected it. (Tr. 26).
On the uncontroverted evidence Citation No. 3634713 should be affirmed.
Citation No. 3634714
This Citation was issued on November 26, 1991, at approxi- mately 10:24
p.m. Inspector Ferrin described the area in ques- tion as a passageway and
mechanic's storage/work areas. A slip, trip, or fall were identified as the
hazards.
Mr. Watson indicated that access was not restricted to this area. In
addition, it was possible that a mechanic might enter the area. (Tr. 64, 75-
76).
Inspector Ferrin thought that someone should have recog- nized the
hazards and taken corrective action. (Tr. 32).
On the uncontroverted evidence, Citation No. 3634714 should be affirmed.
Order Nos. 3634717, 3634718, and 3634720
The above 104(b) orders were issued on November 27, 1991, approximately
23 hours after the above 104(a) citations. Because of the circumstances
surrounding the issuance of the orders, as well as the evidence of FMC, all
three orders can be discussed together.
It is uncontroverted that FMC failed to abate the original citations.
Section 104(b) of the Act contains the authority for a failure to abate
the order. It provides:
(b) If, upon any follow-up inspection of a coal or
other mine, an authorized representative of the Sec-
retary finds (1) that a violation described in a
citation issued pursuant to subsection (a) has not
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been totally abated within the period of time as
originally fixed therein or as subsequently extended,
and (2) that the period of time for the abatement
should not be further extended, he shall determine the
extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such
mine or his agent to immediately cause all persons,
except those persons referred to in subsection (c), to
be withdrawn from, and to be prohibited from entering
such area until an authorized representative of the
Secretary determines that such violation has been
abated.
Inspector Ferrin had originally set the time for abating the
104(a) violations as 4 p.m. on November 27, 1991. When he re-
turned to the cited areas, approximately 23 hours after the ini-
tial citations had been issued, he observed that no apparent ef-
fort had been made to abate the violations (Tr. 19-20, 27, 32).
FMC's Representative Watson verified the failure to abate.
(Tr. 67-72).
Mr. Watson agreed the time allowed for abatement by the
Inspector was reasonable (Tr. 78). Inspector Ferrin originally
set the abatement time for each citation based on past experience
and upon conversations with Carl Watson and the miner's repre-
sentative, both of whom had accompanied him on the inspection.
(Tr. 18).
DEFENSES
FMC offered several excuses regarding the failure to abate.
These excuses included: the absence of a supervisor or a foreman
on the inspection party (Tr. 52); [one foreman had called in sick
(Tr. 55)].
FMC inspections had not occurred on the swing shift (Tr.
52); there was no graveyard shift in the cited areas (Tr. 53).
The violations were not of a severe nature (Tr. 70).
Watson stated that he discussed all of the above factors
with Inspector Ferrin before the orders were issued (Tr. 70).
Mr. Ferrin testified that he had considered the nature of
the violations and degree of danger posed by them (Tr. 41).
Among the most important factors was whether the operator had
made a reasonable effort to abate the violations. In fact,
Mr. Ferrin stated that if a sincere effort has been made to abate
a citation, he will extend an abatement period (Tr. 29, 32). In
this case, however, the Inspector could find no mitigating cir-
cumstances or evidence of any effort made to abate the citations
that would allow him to grant an extension (Tr. 23).
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Mr. Ferrin believed that a lack of communication that allows
a hazardous condition to continue to exist is not an excuse suf-
ficient to allow an extension (Tr. 22). Opening and maintaining
lines of communication is the responsibility of management and
the breakdown of a communication line can not serve as an excuse
for failing to abate a hazard. Mr. Ferrin also stated that the
absence of a foreman on the inspection would not be a legitimate
reason for an extension (Tr. 42, 44). Similarly, one foreman
calling in sick hardly qualifies as an excuse; production does
not stop when one man is absent (Tr. 78).
Carl Watson, a member of management, accompanied Mr. Ferrin
on the inspection and was served with the three original Section
104(a) citations (Tr. 56). Mr. Watson then gave the citations
to the foreman that was working at the time. The foreman is also
a member of management (Tr. 72). Mr. Watson also informed Jack
Thorner, his boss, of the citations. Mr. Thorner also is a member
of management (Tr. 72).
APPLICABLE CASE LAW
The factors to be considered in determining whether an
abatement period should be extended are (1) the degree of danger
that any extension would have caused to miners; (2) the diligence
of the operator in attempting to meet the time originally set for
abatement; and (3) the descriptive effect an extension would have
had on operating shifts. Youghiogheny and Ohio Coal Company, 8
FMSHRC 330 (March 1986, Maurer, Judge) citing Consolidation Coal
Company, Barb 76-143 (1976).
In considering the initial facet, I conclude that the degree
of danger caused by an extension of abatement was low. The Sec-
retary does not claim otherwise and the 104(a) citations were not
designated as S&S. All three citations indicated that an injury
was "unlikely."
In considering the second facet, it appears the operator was
not diligent. No effort was made to meet the time originally set
for abatement.
In considering the third facet, the record fails to estab-
lish that an extension would disrupt the operating shifts.
FMC argues that for at least 15 years MSHA inspections had
been performed on the day shift. The instant inspection was the
first MSHA "off-shift" inspection.
An inspection during an "off-shift" could disclose safety
deficiencies that might not be observed during the day shift.
MSHA has considerable discretion in scheduling its inspections.
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I am unwilling to conclude that a shift change in inspections
constitutes an abuse of that discretion.
As a further reason in support of its position, FMC asserts
its chain of command was broken because no superintendent or
foreman was able to participate in the inspection.
I am not persuaded the chain of command had broken down.
Carl Watson, a member of management, accompanied the Inspector
and was served with the three original citations (Tr. 56).
Mr. Watson gave the citations to the foreman who also is a mem-
ber of management (Tr. 72.) Mr. Watson informed his boss Jack
Thorner of the citations (Tr. 72). In sum, the communication
lines were well established.
FMC claims an extension should have been granted because of
extenuating circumstances citing Old Ben Coal Co., 1 MSHC 1452,
1456 (IBMOA 1976) and United States Steel Corporation, 1 MSHC
1490, 1492 (IBMOA 1976). These cases are not controlling.
In Old Ben the Interior Board held the Judge abused his dis-
cretion in vacating a notice of violation merely because it con-
tained an unreasonably short abatement period. This issue is not
present in the case at bar. FMC's witness Watson confirmed that
the abatement time was the next day. Further, he stated "these
people would have had time to abate the citations on the day
shift the next day" (Tr. 74).
United States Steel Corporation is not factually similar to
the instant case. 1 MSHC at 1491.
For the foregoing reasons, the 104(a) citations and 104(b)
failure to abate orders should be affirmed.
CIVIL PENALTIES
The Secretary states that the 104(b) orders should be af-
firmed with no penalty and further states that the (b) order
"enhances" the penalty for the 104(a) citations (Tr. 8).
I reject the Secretary's views that the 104(b) orders "enhance"
the 104(a) citations. Section 110(i) contains the critical cri-
teria on assessing appropriate civil penalties and no "enhance-
ment" exists in the Mine Act.
Section 110(i) of the Act mandates consideration of six
criteria in assessing appropriate civil penalties.
Considering the evidence, it appears that FMC is a large
operator with 3,132,680 hours worked in 1991 (Stipulation).
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The proposed penalties will not affect FMC's ability to
continue in business (Stipulation).
FMC's history of previous violations indicated it was as-
sessed 240 violations for the two-year period ending December 9,
1991 (Ex. G-1).
The operator was negligent in that the violative conditions
in the two housekeeping violations were open and obvious. In
addition, the lack of a cover over 110 VAC terminals was open and
obvious.
The evidence establishes to gravity was minimal. The
Inspector considered any injury to be "unlikely."
FMC failed to demonstrate any good faith since it did not
attempt to achieve prompt abatement of the violations.
Considering the statutory criteria, a penalty assessment of
$100 for each contested violation is appropriate.
For the foregoing reasons, I enter the following:
ORDER
-
WEST 92-542-M:
Citation No. 3904302 and the proposed penalty of $1,800.00 are AFFIRMED. Citation No. 3904303 and the amended penalty of $50.00 are AFFIRMED. -
WEST 92-464-M
Citation No. 3634706 and the amended penalty of $780.00 are AFFIRMED. Order No. 3634707 is AFFIRMED. Citation No. 3634735 and the proposed penalty of $100 is AFFIRMED. Citation No. 3634712 is AFFIRMED and a penalty of $100.00 is ASSESSED. Order No. 3634717 is AFFIRMED. Citation No. 3634713 is AFFIRMED and a penalty of $100 is ASSESSED.
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Order No. 3634718 is AFFIRMED.
Citation No. 3634714 is AFFIRMED and a penalty of $100.00 is
ASSESSED.
Order No. 3634720 is AFFIRMED.
- WEST 92-174-RM, WEST 92-175-RM, and WEST 92-176-RM, the
contest cases, are DISMISSED.John J. Morris Administrative Law Judge
Distribution:
Matthew F. McNulty III, Esq., VAN COTT, BAGLEY, CORNWALL &
McCARTHY, 50 South Main Street #1600, P.O. Box 45340, Salt Lake
City, UT 84145 (Certified Mail)
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Office Building, 1961 Stout Street, Denver,
Colorado 80294 (Certified Mail)
ek
Kristi Floyd, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Office Building
1961 Stout Street
Denver, CO 80294
Matthew F. McNulty III, Esq.
VAN COTT, BAGLEY, CORNWALL &
McCARTHY
50 South Main Street #1600
P.O. Box 45340
Salt Lake City, UT 84145
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