Knife River Coal Mining Co.

Plain-English summary

Knife River Coal Mining operated the Savage Mine in Montana. After a shot misfired, a supervisor required a miner to return to the pit in street clothes and without required protective equipment to help detonate it. Judge T. Todd Hodgdon affirmed two violations, found the conduct an unwarrantable failure, and ordered Knife River to pay $2,000 total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1710(d) and 77.1710(e)
• Outcome: Citation No. 3591319 and Order No. 3591320 were affirmed, with a $2,000 total penalty.
• Key point: Requiring a miner to enter a pit without the required protective equipment to address a misfired shot was aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA 22041

                        August 8, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-500
Petitioner : A. C. No. 24-00106-03516
v. :
: Savage Mine
KNIFE RIVER COAL MINING CO., :
Respondent :

                           DECISION

Appearances: Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner;
Laura E. Beverage, Esq., and Rebecca Graves Payne,
Esq., Jackson & Kelly, Denver, Colorado, for
Respondent.

Before: Judge Hodgdon

 This case is before me on a Petition for Assessment of Civil

Penalty filed by the Secretary of Labor, acting through his Mine
Safety and Health Administration (MSHA), against Knife River Coal
Mining Company pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815. The petition alleges
two violations of the Secretary’s mandatory health and safety
standards and seeks a penalty of $2,000.00. For the reasons set
forth below, I affirm the citation and order and assess a penalty
of $2,000.00.

 A hearing was held on March 1, 1996, in Billings, Montana.

In addition, the parties filled post-hearing briefs in this
matter.

                          Background

 The Basic facts are not disputed. On February 8, 1995,

Bryan Carr and another miner were blasting in the Savage Mine
pit. They were not able to detonate their last shot before

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quitting time. Carr suggested to Rich Kalina, Mine
Superintendent, that since Kalina was a certified blaster he
could set off the shot.

 Carr then proceeded to the bath house to shower and go home.

As he was combing his hair after showering, Kalina came into the
bath house and requested that Carr return to the pit with him
because the shot had not detonated. Kalina was in a hurry. As
he was leaving the bath house, Carr turned to go back in and get
his hard hat and hard toe boots. At that point Kalina said, “We
don’t have time, let’s go.” (Tr. 52, 434.)1

 Carr accompanied Kalina to the pit without his hard hat or

hard toe boots. Once there, he proceeded to detonate the shot.
He then returned to the bath house. The whole incident took
about 20 minutes.

 Carr filed a 103(g), 30 U.S.C. § 813(g), request concerning

this incident.2 MSHA Inspector James Beam conducted an
investigation of this request on April 19, 1995. As a result of
his investigation, he issued Citation No. 3591319 and Order No.
3591320 under section 104(d)(1) of the Act.3

 1
   The transcript in this case consists of 66 pages. In

addition, the parties agreed that certain transcript pages from
the hearing in Docket No. WEST 96-130-D would be considered as
evidence in this case. Those transcript pages are 427-438, 442-
443, 457-460, 467-483, 486-489, 492-496, 581-583, 611-622, 626-
629, 693-702, 707-721, 754-758, 769-770, 785 and 794-796.
2
Section 103(g) provides, in pertinent part, that:
“Whenever . . . a miner has reasonable grounds to believe that a
violation of this Act or a mandatory health or safety standard
exists . . ., such miner . . . shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger.”
3
Section 104(d)1) provides:

      If, upon any inspection of a coal or other mine,
 an authorized representative of the Secretary finds
 that there has been a violation of any mandatory health
 or safety standard, and if he also finds that, while
 the conditions created by such violation do not cause
 imminent danger, such violation 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, and if he finds such violation to be

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 The citation alleges a violation of section 77.1710(d), 30

C.F.R. § 77.1710(d), because “[a] miner was transported to the
pit by the mine superintendent to assist in a coal shot on
February 8, 1995. The miner was not wearing a suitable hard hat.
The Superintendent said he knows the miner should of [sic] had a
hard hat on.” (Govt. Ex. 2.) The order sets out a violation of
section 77.1710(e) in that “[a] miner was transported to the pit
by the mine superintendent on February 8, 1995 to assist with a
coal shot. The miner was not wearing suitable protective
footwear. The Superintendent said he knows the miner should have
had protective footwear on.” (Govt. Ex. 3.)

 The regulation states that:

      Each employee working in a surface coal mine or in
 the surface work area of an underground coal mine shall
 be required to wear protective clothing and devices as
 indicated below:

 . . . .

      (d) A suitable hard hat or hard cap when in or
 around a mine or plant where falling objects may create
 a hazard. . . .
      (e) Suitable protective footwear.

           Findings of Fact and Conclusions of Law

 There can be little doubt that these two sections of the

regulation were violated when Carr went to the pit and detonated

 caused by an unwarrantable failure of such operator to
 comply with such mandatory health or safety standards,
 he shall include such finding in any citation given to
 the operator under this Act. If, during the same
 inspection or any subsequent inspection of such mine
 within 90 days after the issuance of such citation, an
 authorized representative of the Secretary finds
 another violation of any mandatory health or safety
 standard and finds such violation to be also caused by
 an unwarrantable failure of such operator to so comply,
 he shall forthwith issue an order requiring the
 operator to cause all persons in the area affected by
 such violation, 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.

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a blast without his hard hat and hard toe boots. Indeed, the
Respondent does not even address the issue of whether the
regulation was violated in its brief. Accordingly, I conclude
that this conduct violated the regulation. The company does,
however, contest the allegations that the violations were
“significant and substantial” and resulted from an “unwarrantable
failure.”

Significant and Substantial

 A “significant and substantial" (S&S) violation is described

in Section 104(d)(1) of the Act as a violation "of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." A
violation is properly designated S&S "if, based upon 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 Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

 As is usually the case, it is the third and fourth Mathies

criteria, i.e., whether there was a reasonable likelihood that
the hazard contributed to by the violation would result in an
injury and whether there was a reasonable likelihood that the
injury would be of a reasonably serious nature, which are at
issue. The Respondent concedes that the first two criteria, a
violation of a mandatory health standard and a discrete health or
safety hazard contributed to by the violation, are present in
this case. (Resp. Br. at 14.)

 The inspector testified that the hazards that a hard hat and

protective shoes would have shielded against were rocks falling
from the highwall and flyrock or coal propelled through the air
by the blast. He submitted that “[i]t wouldn’t be very

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difficult, it would be easy to be injured” under the facts in
this case. (Tr. 12.) He stated that a fractured skull, broken
toes, cuts or bruises serious enough to result in lost work time
could occur.

 The Respondent argues that Carr was not working near the

highwall or falling material, that injuries sustained when
failing to wear protective footwear would not be reasonably
serious and that Carr was only exposed to a potential hazard for
a short period of time. These arguments are not persuasive.

 The testimony indicated that the highwall was approximately

55 feet high. Carr testified that he went within 15 feet of the
highwall to check the misfire and to make sure that the deta cord
was properly attached to the charges. He estimated that this
took him five or six minutes. He then went about 30 feet from
the highwall to attach the blasting cap to the deta cord. After
the shot, he related that he again went within 15 feet of the
highwall to make sure that all rounds of the explosive had
detonated.

 In addition, both Carr and the inspector testified that

there was a lot of sloughage off of the highwall. Carr stated
that the highwall was at the worst end of the pit for sloughage
because there was a significant gravel pocket and a spring at the
top of the highwall. Furthermore, both asserted that February
was a bad time for sloughage because of the thawing and freezing
that occurs. Carr explained that in walking near the highwall he
kept his head up because he expected something to fall.

 Add to the danger of sloughage the possibility that the

blast could send flyrock farther than the miners anticipated, and
it becomes apparent that an injury as the result of not wearing a
hard hat or protective footwear is reasonably likely. I find
that this is so even in the short time that Carr was at the pit.
I further find that bruised or broken toes or feet could result
in lost work time and are, therefore, reasonably serious
injuries. Accordingly, I conclude that these two violations were
“significant and substantial.”

Unwarrantable Failure

 The Commission has held that unwarrantable failure is

aggravated conduct constituting more than ordinary negligence by
a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987).
“Unwarrantable failure is characterized by such conduct as

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‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference’ or
a ‘serious lack of reasonable care.’ [Emery] at 2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991).” Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).

 When Kalina went to the bathhouse to get Carr after the

misfire, he was in a hurry. Carr was in his street clothes.
Carr was not sure whether he told Kalina whether he wanted to
return to get his hard hat and protective shoes. He testified:

 Q. Do you remember if you said anything to him about
 not having hard-toed shoes or a hard hat?

 A. I don’t think he would have -- I don’t think he
 would have said, “We don’t have time for that, let’s
 go,” if I wouldn’t have said that.

 Q. Okay. Do you have a specific recollection of
 whether you said it or not?

 A. I really have a hard time with that one. I would
 like to say yes, but the only thing I do remember for
 sure is when Rich said, “We don’t have time for that,
 let’s go.” And that makes me feel that, yes, that is
 what I said.

 Q. And are you sure that you indicated to him that you
 were about to go back?

 A.   Oh, yeah.

 Q.   Was that through you physical motion?

 A.   Yeah, we were walking out the door at the same time.

(Tr. 52.)

 On the other hand, Kalina could only state that he could

“not recall” Carr specifically stating that he wanted to get his
protective gear. (Tr. 616, 617.) He did not testify concerning
whether Carr attempted to return to the bath house or whether he
told Carr, “We don’t have time for that, let’s go.” He did
testify, however, that he was not “thinking about hard toes and
hard hat,” he was thinking about the misfire. (Tr. 616.) He
further testified that he “was not concerned with” the fact that
Carr was in street clothes and did not have a hard hat on. (Tr.
694.)

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 Mr. Kalina was the superintendent of the mine. He had 21

years of mining experience. Wearing a hard hat and protective
boots was not a sometime requirement at the mine, it was required
every day. I find that if Carr did not specifically tell Kalina
that he wanted to get his protective gear, he indicated such by
turning to go back into the bath house. Kalina told him they did
not have time for that even though he was aware that Carr was in
his street clothes. I find that this was inexcusable on the part
of Kalina.

 Accordingly, I determine that requiring Carr to go to the

pit to set off a shot that had just misfired without his
protective equipment, was aggravated conduct. Therefore, I
conclude that the two violations resulted from the Respondent’s
unwarrantable failure to comply with the regulations.

                Civil Penalty Assessment

 The Secretary has proposed a civil penalty of $1,000.00 for

each of these violations. However, it is the judge’s independent
responsibility to determine the appropriate amount of penalty, in
accordance with the six criteria set out in section 110(i) of the
Act, 30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).

 In connection with the six criteria, the parties have

stipulated that the proposed penalties will not affect the
Respondent’s ability to continue in business and that the
Respondent is a large mine operator with 5,200,979 tons/hours of
production in 1994. (Tr. 6.) The Assessed Violation History
Report for the two years preceding these violations indicates
only one citation, for a technical reporting violation. (Govt.
Ex. 1.) Nonetheless, the gravity and negligence involved in
these violations are very serious. Therefore, taking all of this
into consideration, I conclude that a penalty of $1,000.00 for
each violation is appropriate.

                          ORDER

 Accordingly, Citation No. 3591319 and Order No. 3591320 are

AFFIRMED. Knife River Coal Mining Company is ORDERED TO PAY a
civil penalty of $2,000.00 within 30 days of the date of this
decision. On receipt of payment, this case is DISMISSED.

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T. Todd Hodgdon
Administrative Law Judge

8

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Distribution:

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)

Laura E. Beverage, Esq., and Rebecca Graves Payne, Esq., Jackson
& Kelly, 1660 Lincoln St., Suite 2710, Denver, CO 80264
(Certified Mail)

/lt

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