Newmont Gold Company

Plain-English summary

Newmont Gold contested five citations and five related withdrawal orders at its Genesis Mine. The citations alleged that moving engine parts on five haul trucks lacked required guards, while the withdrawal orders were later vacated by the Secretary. Judge August F. Cetti dismissed the five order contests and vacated the five citations because the inspector set an abatement deadline before the written citations were issued, and the Secretary did not prove the alleged guarding violations. The consolidated proceedings were dismissed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14107
• Outcome: Five citations were vacated, five withdrawal-order contests were dismissed, and all ten dockets were dismissed.
• Key point: Mine enforcement citations must comply with statutory written-notice and reasonable-abatement-time requirements.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

                        October 14, 1997

NEWMONT GOLD COMPANY, : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 97-159-RM
: Order No. 7704275; 4/21/97
:
: Docket No. WEST 97-160-RM
: Order No. 7704276; 4/21/97
:
: Docket No. WEST 97-161-RM
: Order No. 7704277; 4/21/97
:
: Docket No. WEST 97-162-RM
: Order No. 7704278; 4/21/97
:
v. : Docket No. WEST 97-163-RM
: Order No. 7704279; 4/21/97
:
: Docket No. WEST 97-164-RM
: Citation No. 7704270; 4/17/97
:
: Docket No. WEST 97-165-RM
: Citation No. 7704271; 4/17/97
:
: Docket No. WEST 97-166-RM
: Citation No. 7704272; 4/17/97
:
: Docket No. WEST 97-167-RM
: Citation No. 7704273; 4/17/97
:
: Docket No. WEST 97-168-RM
SECRETARY OF LABOR, : Citation No. 7704274; 4/17/97
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Genesis Mine
Respondent : Mine ID 26-00062

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                                           DECISION

Appearances: David J. Farber, Esq., PATTON BOGGS L.L.P.,
Washington, D.C.,
for Contestant;
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia.,
for Respondent.

Before: Judge Cettti

    These ten consolidated cases are before me on the request of Newmont Gold Company

(Newmont) for a hearing under section 105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. ' 801 et seq., the "Act" and Commission Rule 20, 29 C.F.R. 2700.20, to contest the
validity of the five citations and the five 104(b) orders.

    At the hearing, the Secretary by counsel entered into the record the order of the Secretary

vacating the 104(b) orders in Docket Nos. WEST 97-159-RM through WEST 97-163-RM. (Ex.
N-2) and requested an order dismissing these dockets. There being no objection, the undersigned
Judge at the hearing verbally issued a bench order dismissing docket Nos. WEST 97-159-RM
through WEST 97-163-RM and now by this decision confirms the bench order in writing. This
leaves for resolution the issues arising out of the citations in Docket Nos. WEST 97-164-RM
through WEST 97-168-RM including the validity of the citations.

                                       STIPULATIONS

      At the hearing, the parties entered into the record the following stipulations:

    1. Contestant, Newmont Gold Company, is a mine operator as defined under section 3(d)

of the Mine Act and has products and mining operations and extracts products which enter and
affect commerce.

   2. The Administrative Law Judge has authority to hear and rule in these proceedings

under section 113(d)(1) of the Federal Mine Safety and Health Act of 1977.

                         STATEMENT OF THE PROCEEDINGS

     On April 21, 1997, Inspector Bonifacio issued five citations to Newmont Gold Company.

Each citation alleges an identical guarding violation of the moving parts of the front mounted
engine of each of the five haul trucks used at the Genesis Mine. All five trucks were Dresser
Haulpak 510 haul trucks. Each of the citations has an identical description of the alleged violation
for all of the haul trucks. Each citation alleges violations of 30 C.F.R. ' 56.14107 concerning the
guarding of moving parts of the engine of each haul truck. The identical description in each
citation reads as follows:

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           The fan blades and accessories drive pulleys and v-belts located at
           the front of the motor on the Dresser Haulpak 510 haultruck Co.
           No. HT-026 weren=t guarded. The unit is operated at the pit 24
           hours per day and the motor is left running during shift change, the
           truck operator must stand within 7 feet of the moving parts in order
           to check for defects to the steering, braking and suspension
           components during the pre-operational inspection of the unit. The
           truck driver could contact the moving parts and sustain a serious
           injury.

   The citations fixed the abatement time as 8 a.m. on April 21, 1997.

    It is undisputed and clear from the citations and the record that the citations were not for

guards that were available from the manufacturer or for missing guards that had been previously
installed by the manufacturer or others and then removed for making repairs or maintenace and
not replaced. The citations were issued because Respondent did not install new additional guards
which the inspector believed should be added to supplement the guards installed by the truck=s
manufacturer.

    As a preliminary matter Newmont presented undisputed evidence that no miner had ever

sustained any injury because of contact with a moving machine part of the engine of any of the
haul trucks.

    Newmont entered into the record undisputed measurements it took to support its

contention that in any event, the exposed moving parts of the truck=s engine were at least seven
feet away from walking or working surfaces. MSHA on the other hand never took any
measurements whatsoever and thus, MSHA did not provide any measurements that refute
Respondent=s measurements or contentions that the moving machine parts came within the
express exception stated in subsection Ab@ of the cited safety standard. Each citation was issued
for the alleged violation of 30 C.F.R. ' 56.14107 which expressly provides under subsection (b):

    AGuards shall not be required where the exposed moving parts are at least seven feet

away from walking or working surfaces.@

    In support of its position that the cited standard was applicable to the engines of haul

trucks, counsel for the Secretary placed in evidence as Exhibit G-2 a copy of the preamble of the
cited safety standard which states in part:

           ... larger, off-road vehicles present special hazards because of the
           greater accessibility to their moving machine parts. In some
           instances persons can walk directly under the vehicle to inspect the
           engine and be exposed to its moving parts. In most instances, these
           parts are already guarded by the manufacturer but guards are
           sometimes removed during repair work and not replaced. MSHA=s

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           objective is to ensure that these guards remain in place. (Emphasis
           added).

    In my opinion, the wording and context of the preamble shows that the promulgators of

the standard intended that, except in a rare exceptional case, there would be no requirement to
supplement the existing guards that the manufacturer of the truck had installed in and around the
truck=s engine area. The preamble clearly indicates that its primary purpose was to insure that the
truck manufacturer=s installed guards were reinstalled and Aremain in place@ after any removal for
maintenance or repair of the engine.

The Inspector Exceeded His Statutory Authority In Issuing Citations That Did Not
                 Conform With the Statutory Requirements of
                        Section 104(a) of the Mine Act

    The inspector did not act in conformance with the mandate of section 104(a) of the Act in

issuing the citations in question. Section 104(a), in addition to requiring the citation to be in
writing, mandates that the 104(a) citation Afix a reasonable time for the abatement of the
violation.@ The time specified for abatement in the written citation was 8 a.m. on April 21, 1997,
which was more than 7 hours before the written citation was issued to the operator. The citations
were issued on April 21st at approximately 3:30 p.m. Thus it clearly appears that the inspector
did not even attempt to comply with this mandatory requirement of fixing a reasonable time for
abatement of the alleged violations and under the facts of this case, the citations should be
dismissed.

     Counsel for MSHA in attempting to justify its issuance of the written citations that did not

conform to the statutory requirements, entered into the record evidence and arguments which on
close analysis demonstrate that it was pushing for enforcement of what the inspector referred to
as an Aoral citation@ issued a few days before the abatement time of 8 a.m. April 21, 1997. This
oral citation must also fall as it clearly exceeds the statutory authority granted in section 104(a) of
the Mine Act.

    The evidence presented by the Secretary demonstrates that the inspector was apparently

intentionally trying to enforce an oral citation. First the inspector testified that, although he never
observed haul truck drivers making the required preoperational inspections of the haul trucks, he
determined on the 9th of April by interview with truck drivers and the foreman and looking at the
trucks, there was a violation of the cited standard in that the factory installed guards were
inadequate. (Tr. 161, 737). The inspector notified this determination to the maintenance foreman
Mr. Mueller. The inspector testified Mr. Mueller agreed that he would install supplementary
guards as soon as possible. Mr. Mueller, on the other hand, gave credible testimony that the
inspector misunderstood what he said. He only said he Acould,@ not that he Awould,@ add the
requested supplementary guarding.@
On April 14, 1997, the inspector inquired about the supplemental guarding and learned
Mr. Mueller=s boss, Mr. Peske, wanted to check with the truck=s manufacturer about a permanent

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guard installation and the fact that additional guards might cause other problems.1 The inspector
agreed but insisted that temporary guards to be installed as soon as possible. (Tr. 169).

     The inspector testified that on April 17th he went to the MSHA field office and at the

request of Dennis Tobin, the MSHA supervisor, made a call to Mr. Bill Miles, an agent of
Newmont. (Tr. 172). The inspector testified the MSHA supervisor, Mr. Tobin, got on the line
and told Mr. Miles that, in lieu of Newmont=s request for a ruling on whether they needed to
install additional guarding or not, AYes he had checked on it and that it was a violation@ and added
that a citation was issuing Aeffective then@ with an abate time of 8 a.m. April 21, 1997.

     On April 21 the inspector went to the mine Aa little bit before 12 o=clock,@ talked to Mr.

Mueller and handed him Adraft copies@ of the citations. (Ex. N-1). The Adraft copies@ had printed
at the top and bottom in large print ADRAFT COPY ONLY - NOT FOR ISSUE.@ The inspector
testified that Mr. Mueller and others seemed to have no knowledge of the conversation of April
17 between Mr. Tobin and Mr. Miles. On further questioning, the inspector testified that citations
were issued verbally on Thursday, the 17th of April to Mr. Miles. (Tr. 177).

    Again, on further direct examination, the inspector testified that on April 21, 1997, he

explained to Mr. Mueller and other company officers, Athat the citations had been issued the
previous Thursday (April 17, 1997) per a conversation with Mr. Miles.@ This obviously referred
to the phone conversation between Mr. Tobin and Mr. Miles. (Tr. 179).

    Thus it is clear from the record that the abatement time of 8 a.m. April 21, 1997, on the

written citations was no inadvertent error. It was the abatement date orally specified on
Thursday, April 17, 1997, to Mr. Miles and again specified in the written citations served
approximately 3:30 p.m. on April 21, 1997, seven hours after the abatement time deadline. The
inspector testified that when he went to the property on April 21 just before 12 o=clock, to see
what Aaction@ had been done and testified Aand if no action was done, you issue a noncompliance
order@ and that is exactly what the inspector did.@ (Tr. 181, lines 21-22). Thus it is clear from the
record that both the oral and written citations are invalid for failure to conform to the statutory
authority clearly set forth in section 104(a) of the Mine Act which requires that the citation be in
writing and that it fix a reasonable abatement time. As stated by the Chief Law Judge Merlin in
his Order of Dismissal in D.H. Blattner & Sons, Inc., 17 FMSHRC 1073, 1074 (June 1995), AAn
Administrative agency is a creature of Congress and cannot exceed the jurisdiction given to it by

   1
     At the hearing Newmont contended that the additional engine guards created a greater

hazard for drivers because of fire that could result from overheating the haul truck=s engine and its
interference with the engine fire suppression system.

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Congress.@ Lyung v. Payne, 476 U.S. 926, 937 (1986); Killip v. Office of Personnel
Management, 991 F.2d 1564, 1569 (Fed Cir. 1993).@ See, also, Kaiser Coal Corp., 10 FMSHRC
1165, 1169 (September 1988). The citations are dismissed.

                                       ORDER

   Citation Nos. 7704270, 7704271, 7704272, 7704273 and 7704274 are vacated and

Docket Nos. WEST 97-164-RM, WEST 97-165-RM, WEST 97-166-RM, WEST 97-167-RM
and WEST 97-168-RM are DISMISSED. Order Nos. WEST 97-159-RM, WEST 97-160-RM,
WEST 97-161-RM, WEST 97-162-RM and WEST 97-163-RM are DISMISSED, pursuant to
the Secretary=s order dismissing the corresponding 104(b) orders.

                                       August F. Cetti
                                       Administrative Law Judge

Distribution:

Henry Chajet, Esq., David Farber, Esq., PATTON BOGGS. LLP, 2550 M Street NW,
Washington, DC 20037 (Certified Mail)

James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail)

/sh

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JAMES B CRAWFORD ESQ
OFFICE OF THE SOLICITOR
U S DEPARTMENT OF LABOR
4015 WILSON BLVD #400
ARLINGTON VA 22203

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HENRY CHAJET ESQ
DAVID FARBER ESQ
PATTON BOGGS & BLOW LLP
2550 M STREET NW
WASHINGTON DC 20037