Stillwater Mining Company

Plain-English summary

Stillwater Mining operated an underground platinum mine where a chute gate assembly failed and a miner was buried under falling ore. Judge Arthur J. Amchan affirmed a violation alleging that the chute-gate bolts were used beyond their design capacity, but assessed a $1,500 penalty instead of the proposed $5,000. He vacated a second citation alleging that the chute controls did not provide a safe location, finding that the Secretary had not shown the control location was unsafe. The decision covers three consolidated dockets.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.14205 and 57.9309
• Outcome: One citation was affirmed with a $1,500 penalty, and the second citation and proposed penalty were vacated.
• Key point: A serious accident can support a violation finding, but each cited standard still requires proof of the specific alleged unsafe condition.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF A D M INISTRA TIV E LA W JUDGES
                        2 SK YLINE, 10 th FLOOR
                         5203 LEESBURG PIK E
                   FA LLS CHURCH, V IRGINIA 22041



                         July 31, 1996

STILLWATER MINING COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. WEST 95-539-RM
: Citation No. 3908599; 9/5/95
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEST 95-540-RM
ADMINISTRATION (MSHA), : Citation No. 3908600; 8/24/95
Respondent :
: Stillwater Mine
: Mine I.D. 24-01490
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 96-131-M
Petitioner, : A.C. No. 24-01490-05577
v. :
STILLWATER MINING COMPANY, : A.C. No. 24-01490-05579
Respondent :
: Stillwater Mine

                            DECISION

Appearances: Kristi Floyd, Office of the
Solicitor,
U. S. Department of Labor, Denver, Colorado,
for the Secretary;
James J. Gonzales, Esq., Holland and Hart,
Denver, Colorado, for Respondent.

Before: Judge Amchan

 This case involves two citations and proposed civil

penalties resulting from MSHA=s investigation of a fatal accident
at the Stillwater underground platinum mine near Nye, Montana.

Page 2

On August 21, 1995, Kenneth Goode, a 38-year old experienced
miner was buried under tons of ore when the assembly securing the
gate of ore chute 5620 East failed.

 Citation 3908599 was issued on September 5, 1995, and

originally alleged that Respondent had violated 30 C. F. R.
' 57.3360 because the mounting design for the 5620 ore chute did
not provide support for loads imposed during mining operations.
In February 1996, the citation was amended to allege a violation
of section 57.14205 in that Athe chute gate assembly... was being
used beyond its intended (design) capacity in that the strength
of the fasteners (bolts) used to attach the chute gate to the
support structure were (sic) inadequate for the anticipated
loads...1@ In April 1996, MSHA proposed a $5,000 civil penalty
for this citation2.

 Citation 3908600 alleges a violation of section 57.9309 in

that the 5620 chute was not designed to provide a safe location
for persons pulling (emptying) this chute. A $309 civil penalty
was proposed. The issues pertaining to this citation involve the
location of the valve used to control the gate to chute 5620.
The parties agree that Mr. Goode=s death is unrelated to this
alleged violation. For the reasons stated below, I affirm
citation 3908599 and assess a $1,500 civil penalty. I vacate
citation 3908600 and the corresponding penalty proposal.

             The Accident of August 21, 1995

 On August 21, 1995, Stillwater foreman Randy Johnson

assigned miners Kenneth Goode and Duane Hudson to the task of
emptying or Apulling@ the 5620 East ore chute (Tr. 527). This
chute is 210 feet long and 6 feet in diameter. It descends from
5200 feet above sea level to 5000 feet above sea level in a
South-North direction. The chute drops at an angle of 80 degrees

 1
  Section 57.14205 states that AMachinery, equipment, and

tools shall not be used beyond the design capacity intended by
the manufacturer, where such use may create a hazard to persons.@
2
The Petition for Assessment of a Civil Penalty does not
reflect the amendment alleging a violation of section 57.14205.

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to horizontal until it reaches a location about 10 feet above the
bottom of the chute. At this point the chute changes direction
to an angle of 83 degrees from the horizontal in a southerly
direction. At the bottom of the chute is a metal plate angled at
45 degrees. This plate directs the falling ore out of the chute
to the East. Thus, ore falling from the top of the chute changes
direction twice (Tr. 127-29, 619-27, Exhs. R-8, R-10, G-20).

 The 5620 East chute had been filled with approximately

280 tons of ore about 4 days prior to August 21, 1995. It is
common for a chute at Respondent=s mine to be full for such a
period (Tr. 526-27. 546). There was water flowing into the chute
at a rate between 0.7 to 2.0 gallons per minute (Tr. 412, 503-06,
545-46). A small amount of water was flowing out the chute,
which is also a normal occurrence (Tr. 574). It has not been
established that a substantial amount of water was trapped in the
chute or had been absorbed by the ore inside it.

 To unload the chute the miners positioned four ore cars,

each with a ten-ton capacity on the railroad track under the
chute (Exh. R-9, p. 21). Mr. Hudson operated the locomotive that
moved the cars and Goode operated the valve controlling the gate
that regulated the flow of ore from the chute (Tr. 575, Exh. G-3,
p. 1).

 Prior to starting their work, Hudson and Goode examined the

condition of the chute. Hudson checked the bolts holding the
chute gate assembly to the wall with a 12-inch crescent wrench.
There appeared to be nothing wrong with the bolts or any other
part of the chute (Tr. 571-72, 608)

 When Goode opened the chute gate, the ore moved very slowly.

After filling the first 1/4 of a rail car, the ore appeared to
Hudson to be a sticky cement-like mixture. It came out of the
chute a little bit at a time (Tr. 577, Exh. G-3, p. 1).

 Hudson and Goode then employed several customary measures to

unload a jammed chute. Goode slammed the chute gate open and
shut a few times, hoping to loosen the ore with vibration. They
also opened the chute gate a little and sprayed the ore with
water several times (Tr. 577-78).

 Having little luck in freeing the ore, the two miners placed

a half stick of explosive approximately 8-10 feet up the chute
with a long pole. This is also a common and widely accepted
means of unjamming an ore chute. Hudson and Goode used
explosives 4 to 5 times and were able to fill three of the four
railroad cars. Then the chute jammed again (Exh. G-3, p. 1).

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Page 4

 Goode signaled Hudson to get off the locomotive and walk

back to his location at the chute gate valve control. The two
miners then walked North towards the chute while trying to decide
whether to use another explosive charge (Tr. 583, Exh. G-3,
p. 7). They walked only a few feet when the chute gate and the
assembly holding it to the chute suddenly gave way. Hudson
turned and ran to the South. He was struck in the back of the
legs and knocked down by the falling rock at a location near the
valve control. These controls were about 16-20 feet South of the
mouth of the chute (Exh. R-9, p. 60). When Hudson got up he
could not find Goode (Tr. 584-87).

 Goode was buried under the ore, a few feet closer to the

mouth of the chute than Hudson3. Approximately 50 tons of ore
came out of the chute when the gate assembly gave way. It
stopped flowing when the mouth of the chute was choked off
(Tr. 5-6, Stip. No. 8, Tr. 526, 531, Exh. R-9, 23-24). The pile
of ore extended approximately 20 feet from the chute at an angle
of approximately 45 degrees. It covered the rail car under the
chute (No. 4 in Exhibit G-2) and was knee - waist deep at the
site of the gate control valve (Tr. 671-73).

Citation 3908599: Equipment used beyond the design capacity
intended by the manufacturer

 The parties agree that the immediate cause of the August 21,

1995 accident was the failure of the bolts that held the chute
gate assembly to the 5620 chute (Tr. 300, 348, 674-76). The
assembly was affixed by eight 1-inch diameter grade 8 bolts, four
on each side of the chute. The location of these bolts was
clearly indicated by Respondent=s mine manager Alan Buell on
Government Exhibit 20, which is reproduced below.

 3
  Hudson indicated Goode=s location the last time he saw him

on Exhibit G-2 (Tr. 587).

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Page 5

 One issue before me is whether these bolts are Aequipment@

or part of Aequipment@ within the meaning of section 57.14205. I
conclude that the bolts are Aequipment@ because the word is broad
enough to encompass any physical asset used in mining operations.
Moreover, the term should be interpreted in a manner that
effectuates the purposes of the Act, Allied Chemical Corp.,
6 FMSHRC 1854 (August 1984).

 My inquiry focuses on the bolts, not only because both

parties agree they failed, but also because they are the only
component of the chute and gate assembly for which there is any
evidence regarding the design capacity intended by the

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manufacturer. There is no such evidence pertaining to the chute
or chute gate assembly as a whole.

 The 5620 East chute and the chute gate assembly were

installed by Respondent in approximately 1990. Prior to the
accident approximately 205,000 tons of ore had been dropped
through this chute without incident (Exh. R-9, pp. 18-22). The
5620 chute design had been used in constructing other chutes by
Chevron Resources, which operated this mine before Stillwater
(Tr. 772, Exh. R-16, p. 17). Thus, the manufacturer of the chute
and chute gate assembly in this instance is Stillwater Mining
Company, and there is no evidence indicating the intended design
capacity of the chute or chute gate assembly.

 Similarly, there is no evidence as to who manufactured the

eight grade 8 bolts that held the gate assembly to the chute.
However, I credit the testimony of Complainant=s expert Carl
Schmuck and find that the manufacturer=s design capacity for
these bolts is that specified for all manufacturers by the
American Institute of Steel Construction in its ASpecification
for Structural Joints Using ASTM A325 and A490 Bolts4@ (Tr. 308-
09, Exh. G-8, pp. 8-11, Appendix E, page E6). The design

 4
  A Grade 8 bolt is called an A490 bolt by the American

Society for Testing and Materials (ASTM) (Tr. 309).

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capacity of eight grade 8, one-inch diameter bolts is 408,408 lbs
(Tr. 309-312)5. The bolts used to affix the chute gate assembly
for the 5620 East chute at the time of the accident were
manufactured to these specifications (Tr. 247-249).

 The fatal accident of August 21, 1995, establishes to my

satisfaction that the design capacity of the eight bolts holding
the chute gate assembly was exceeded by the forces applied to
those bolts before they failed. Had only loads not in excess of
the design capacity been applied to these bolts, the chute gate
assembly would not have failed.

 There simply is no credible alternative explanation for the

failure of the 5620 chute gate assembly. While there is some
evidence that at least one of the bolts was deformed prior to the
accident, it has not been established that the bolts did not meet
the design capacity of 408,408 pounds prior to the accident (See
Tr. 675). Moreover, while it is impossible to calculate the
force applied to the bolts prior to the accident, I conclude that
it exceeded this design capacity.

 Much of the evidence in this case concerned Mr. Schmuck=s

calculations of the potential forces applied to the bolts prior
to the accident. Respondent has demonstrated that calculating
the force applied to these bolts is a very complicated
undertaking. The force applied to the bolts cannot be derived
simply by taking a given amount of ore and the distance it drops.
Such a calculation leads to absurb results. For example, if
6 tons fell 10 feet and all the force was transmitted to the
bolts, they would break (Tr. 317-22).

 5
  Respondent=s mine manager, Alan Buell, agreed with Mr.

Schmuck=s calculation of the tensile strength of the bolts and
his dividing the static load capacity by two to account for the
force of a dynamic load (Tr. 665-66).

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Page 8

 The force applied to the bolts was dissipated by many

factors. These are frictional forces, the affect of the change
of direction 10 feet above the bottom of the chute and the
45 degree change of direction right at the chute gate. All these
things are, however, irrelevant to the outcome of the case.
Whatever load was applied to the bolts on August 21, 1995, had to
have exceeded the design capacity of the bolts; otherwise the
chute would not have failed and Mr. Goode might not be dead.
Therefore, I conclude that the Secretary has established a
violation of section 57.142056.

             Assessment of a Civil Penalty7

 The Commission assesses civil penalties de novo after

 6
  I believe an extended discussion of the Asignificant and

substantial (S & S)@ issue is not necessary in this case. If
there was a violation, it satisfied the AS & S@ criteria set
forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
7
Respondent argues that I have no jurisdiction over the
penalty for this citation on the grounds that the Secretary has
never petitioned for a penalty for an alleged violation of
section 57.14205. However, the Secretary proposed a civil
penalty for citation 3908599; therefore, I hereby sua sponte
amend the pleadings to conform to the evidence at hearing
pursuant to Rule 15(b) of the Federal Rules of Civil Procedure.
See my decision in Higman Sand and Gravel, Inc., _ FMSHRC
___ (ALJ June 19, 1996, slip opinion at pp. 8-9). The penalty
petition is deemed to seek a penalty for a violation of
' 57.14205.

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considering the six penalty criteria in section 110(i) of the
Act. It is not bound by MSHA regulations or determinations with
regard to proposed penalties, United States Steel Mining Co.,
6 FMSHRC 1148 (May 1984).

 The parties have stipulated that the proposed penalties will

not affect Respondent=s ability to stay in business. As to prior
history, they have also stipulated that Stillwater has not
previously been cited for violations of the standards at issue in
these proceedings. Exhibit G-1, an MSHA assessed violation
report, provides no reason to either raise or lower a penalty
based on the remaining criteria.

 Respondent is a relatively large operator, employing 448

people at this mine, 271 of whom work underground (Exh. G-5, p.
1, Tr. 59-60). In 1993 the mine had 711,691 hours of production,

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18 FMSHRC 34 at 41 (ALJ January 1996). Other things being equal,
I would assess a somewhat higher penalty than for a smaller
operator.

 Stillwater deserves maximum credit for exhibiting good faith

in rapidly abating the citation. It installed two large steel
pipes which extend from the chute assembly to the opposite rock
wall. This provides additional lateral support for the chute
gate assembly. Additionally, Respondent has installed a 3/4-inch
wire rope around and under the gate so that the assembly will not
separate from the wall if there is another failure of its
fasteners (Tr. 676-77).

 For new chutes, Stillwater has changed designs and has

purchased a very differently configured chute gate assembly which
is manufactured in Sweden (Tr. 676-78). This assembly
apparently has some different problems from the one formerly used
by Respondent. The chute gate is secured by chains, through
which pieces of ore can fall(Tr. 658-61, 678).

 The two most critical factors of the six penalty criteria

are the gravity of the violation and Respondent=s negligence, if
any. The instant violation is a very grave one. It resulted in
the death of one miner, Kenneth Goode, and could easily have
killed Mr. Hudson as well. It is important to note that the
accident herein was not the result of any misconduct by Goode and
Hudson. As far as this record indicates they were doing what
they were supposed to be doing in the manner in which they had
been instructed. Mr. Hudson, checked the condition of the chute
assembly, including to the best of his ability, the condition of
the bolts (Tr. 528, 591-2, Exh. G-3, pp. 3-4).

 I also find that Respondent was to some extent negligent.

It is axomatic that after a tragic accident occurs everyone
becomes much smarter than they were before. However, I find that
there were indications prior to the accident that the chute gate
assembly might not be adequate to support the forces that at some
point would be imposed upon it.

 Respondent essentially inherited the design of its chutes

and chute gates from Chevron. However, it made modifications to
reduce the forces imposed by ore falling against the gate
assembly. For example, in 1988 or 1989, John Thompson, then
general mine foreman, requested that the chutes be designed so
that the ore would change direction before it impacted the gate
assembly at the bottom (Exh. R-9, pp. 14-15). The 5620 East
chute was installed with such a change.

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Page 11

 More importantly, Stillwater experienced some twisting and

bending of the steel beams supporting the gate assemblies, which
gave it an indication that the original design of these
assemblies was inadequate (Tr. 647-48). The beams were then
embedded in concrete and gussetts were added to the beams to
provide additional support. I conclude that once Respondent
recognized that the original design of the chute gate assembly
suppport system was inadequate, prudence would have mandated
revisiting the engineering calculations with regard to the entire
system. There is sufficient evidence from which I infer that
this was not done (Exh. R-9, pp. 50-55).

 In this regard I again credit the testimony of Mr. Schmuck

that installation of the gussetts, which was done on the 5620
East chute sometime after its initial installation (Tr. 425-27,
647-48), had the affect of redistributing force to the bolts
(Tr. 288-89). There is no evidence that Respondent then
performed a thorough engineering analysis of the capacity of the
bolts and the loads to which they might be subjected. In the
absence of such an analysis it cannot be said that Respondent was
totally without fault with regard to the instant violation of
' 57.14205.

 In finding Respondent negligent, I do not give any

consideration to the incident where a miner named Dewey was
almost drowned by a gush of water from a chute. There is nothing
in the evidence regarding that incident that relates to the
structural adequacy of chute gate assemblies (Tr. 690-92,
Exh. G-3, pp. 3-4). I also do not rely on an incident involving
miner Brigham Garrett in approximately 1992 at the 5150 chute
(Tr. 179-80, 192-97). In the Garrett incident, the gate failed
but the gate assembly remained intact (Tr. 197). Moreover, there
insufficient evidence that Respondent=s management was aware of
the incident (Tr. 535, 693).

 However, I do think that instances in which the gate

assemblies of much larger chutes were damaged should also have
alerted Respondent to the need for a reexamination of its
engineering assumptions with regard to the adequacy of the
assemblies on all its chutes (Tr. 641-644). Prior to August
1995, there were instances in which water and muck had fallen
several hundred feet in some chutes much larger than 5620 and had
caused extensive damage to the chute gate, its assembly and the
supporting steel beams (Tr. 641-42). Although much larger, these
chutes were of the same design type as the 5620 chute.

 Mine manager Alan Buell observed that:



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 [If] we have about 15 feet of broken rock at the bottom
 of the raise [another term for the chute] there=s not a
 problem. But if there=s nothing there, if it=s just
 empty air all the way to the gate, then this big plug
 of ore can come down and cause a lot of destruction on
 that chute gate package...

Tr. 643.

 Buell testified further that Stillwater generally doesn=t

have this sort of problem in chutes 200 feet in length (Tr. 644).
Nevertheless, for the sake of its employees, Stillwater had an
obligation to make sure that all its chute gates were capable of
withstanding any load that could impact upon them. Its
experience with the larger chutes was an indication that this was
not so.

The Secretary has not established that the 5620 East chute was
not designed to provide a safe location for persons pulling
chutes.

 Section 57.9309 requires that AChute loading installations

shall be designed to provide a safe location for persons pulling
chutes.@ The cited standard does not give any indication as to
what constitutes a "safe location". Thus, the issue is whether a
reasonably prudent mine operator familiar with the protective
purposes of the standard would have recognized that the location
of the control valve in this case violated its requirements,
Ideal Cement Company, Inc., 12 FMSHRC 2409 (November 1990). I
conclude that this has not been established.

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Page 13

 When the chute gate assembly failed in August 1995, ore

reached a depth of at least a miner=s knees at the location of
the gate controls (Tr. 672). This fact is irrelevant to whether
the cited standard was violated. There is no indication that
Asafe location@ means a location at which one would be protected
from the result of a catastrophic chute failure, such as occurred
in this case. Regardless of where the chute controls are
located, miners will often have to get closer to the chute,
particularly when the chute jams. The way to prevent death or
injury due to catastrophic chute failure is assure the integrity
of the chute, rather than to position the gate controls 10 feet
farther away from the mouth of the chute.

 Miners cannot be too far away from the gate when emptying

it. It is necessary that a miner operating the gate controls be
able to see the mouth of the chute (Tr. 726). Otherwise, he or
she will not be able to fill the ore cars properly.

 At the time of the citation the controls for the chute gate

were approximately 14 - 20 feet from the mouth of the chute
(Exh. R-9, pp. 33, 60). Nothing in this record indicates that a
reasonably prudent person would conclude that this was unsafe
because it was too close to the mouth of the chute (See Tr. 190,
552, 576-77).

 There was a 42-inch clearance between the gate controls and

the ore cars that were on the track next to them in August 1995
(Tr. 84-90, 111-13). MSHA apparently believes that this
clearance is inadequate to protect employees from an ore car that
derails. Nothing in the record indicates what MSHA considers to
be a safe clearance. I note, however, that section 57.9330
requires a clearance of at least 30 inches at locations near
moving railroad equipment. This to my mind establishes that a
reasonably prudent person would not necessarily conclude that the
42-inch clearance at the controls at chute 5620 East made that
location Aunsafe@ within the meaning of section 57.9309.

 While the record indicates that ore cars derail on a regular

basis, there is nothing that shows that a 42-inch clearance is
inadequate to prevent injury from such mishaps. There is no

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evidence that ore cars overturn or otherwise travel 42 inches
laterally from the track. None of the miner witnesses in this
proceeding believed that the clearance was inadequate (Tr. 190,
552, 576-77).

 For the reasons stated above, I conclude the Secretary has

not established a violation of section 57.9309 and I therefore
vacate citation 3908600 and the penalty proposed for that alleged
violation.

                          ORDER

 Citation 3908599 is affirmed and a $1,500 civil penalty is

assessed.

 Citation 3908560 and the corresponding proposed penalty are

vacated.

 The assessed penalty shall be paid within 30 days of this

decision.

                          Arthur J. Amchan
                          Administrative Law Judge

Distribution:

James J. Gonzales, Esq., Jeanne M. Bender, Esq., Holland & Hart,
555-17th St., Suite 2900, P.O. Box 8749, Denver, CO 80201-8749
(Certified Mail)

Kristi Floyd, Esq., Office of the Solicitor, U. S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202 (Certified
Mail)

dcp

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