Fred Chismar, employed by Cyprus Sierrita Corporation

Plain-English summary

Fred Chismar supervised operations at the Sierrita copper mine, where employees and a contractor were unloading lime into a tailings pond to neutralize an acidic mixture. An employee walked to the pond without protective clothing, fell into the lime mixture, and suffered serious burns requiring skin grafts. The ALJ found that the mine operator violated standards requiring protective clothing and available water or neutralizing agents, but the Secretary did not prove that Chismar knowingly authorized, ordered, or carried out either violation with aggravated conduct. The $500 penalties against Chismar were vacated, and the proceeding was dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.15001 and 30 C.F.R. § 56.15006
• Outcome: Both $500 civil penalties against Fred Chismar were vacated, and the proceeding was dismissed.
• Key point: Chismar’s mistaken assumptions and failure to provide more explicit instructions were not enough to establish the aggravated conduct required for personal liability under section 110(c).

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

                                      January 20, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-110-M
Petitioner : A.C. No. 02-00144-05563 A
:
v. : Sierrita Mine
FRED CHISMAR, employed by :
CYPRUS SIERRITA CORPORATION, :
Respondent :

                                        DECISION

Appearances: Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania, for
Respondent.

Before: Judge Manning

   This case is before me on a petition for assessment of penalty filed by the Secretary of

Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Fred
Chismar pursuant to section 110(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §820(c) (the “Act”). The petition alleges that Mr. Fred Chismar knowingly violated
30 C.F.R. §§ 56.15001 and 56.15006 of the Secretary’s safety standards. A hearing was held in
Tucson, Arizona, and the parties filed post-hearing briefs.

                                    I. BACKGROUND

      A. Summary of the Facts

    On November 25, 1997, MSHA Inspector Jack Sepulveda issued a citation and order

under section 104(d)(1) of the Act against Cyprus Sierrita Corporation (“Sierrita’) for two
alleged violations at its Sierrita Mine in Pima County, Arizona. The citation and order were
issued following an accident at the mine. Sierrita contested the citation, order, and proposed
penalty in WEST 98-254-M. On October 30, 1998, Commission Judge Todd Hodgdon approved
a settlement in that case in which the characterizations as to gravity and negligence remained
unchanged. In addition, the settlement did not change the unwarrantable failure and significant
and substantial determinations made by the MSHA inspector.

Page 2

    On February 22, 1999, the Secretary filed this proceeding under section 110(c) of the Act

alleging that Mr. Chismar “knowingly authorized, ordered, or carried out” these violations.
Chismar admits that he is an agent of Sierrita, subject to the provisions of section 110(c), but
denies that he knowingly authorized, ordered, or carried out the violations.

    This case arose out of an accident at the Sierrita Mine on September 26, 1997. George

Borquez was helping unload a truckload of lime into the tailings dam catch pond (the “tailings
pond”) when he came in contact with a mixture of lime and the solution in the tailings pond. His
legs were severely burned in the accident. The lime was being transported by an independent
contractor, CTI Trucking (“CTI”). At the time of the accident the only two individuals at the
tailings pond were Mr. Borquez and Warren Forrey, the driver of the CTI truck.

     CTI regularly delivers lime to the Sierrita Mine, which is a large copper mine. On

September 26, 1997, the lime was being placed in the tailings pond to neutralize an acidic
mixture in the pond called raffinate1. The raffinate is produced during the solvent extraction
(“SX”) process in which copper is leached from oxide ore through the use of sulfuric acid. As a
result of a power failure and heavy rains, the tailings pond was considerably more acidic than
usual. Sierrita decided to add lime (which is a base) to the tailings pond to neutralize the acid.
This was a rare event at the mine and Mr. Chismar had only been responsible for adding lime to
the tailings pond once since 1991. The tailings pond is about two and a half miles outside the
main gate of the mine and one must travel on a county road to get there.

    Mr. Chismar, who is the operations supervisor for the leach fields and the SXEW plant,

ordered lime from CTI. He was present when the first truck was unloaded. The lime was
contained in tanks on the truck and it was unloaded using a hose that can be attached to the truck.
Each hose is about 20 feet long and is between 4 and 6 inches in diameter. Persons unloading the
truck were not required to handle the lime. The lime is a dry powder and a pump on the truck
blows the powder out the hose. Mr. Chismar sent Larry Whitman, a Sierrita employee, to get
supplies needed to tie the hose to a pipe that joined the tailings pond with another tailings pond.
Mr. Chismar instructed Mr. Whitman to wear personal protective equipment when he was
working near the pond. The personal protective equipment consisted of rubber boots, rubber
pants, rubber coat, and a face shield. This equipment is commonly called “acid gear” at the
SXEW plant. Mr. Whitman wore protective clothing when he was near the tailings pond and
removed it after he returned to the road adjacent to the tailings pond.

   As the first truck was being unloaded, Mr. Chismar called Mr. Borquez to the tailings

pond so that he could assume responsibility for escorting the lime trucks to the tailings pond
from the mine gate. Mr. Borquez frequently acted as a relief supervisor when Mr. Chismar was
absent and also as a lead man directing other employees who worked with him.

   1
        Raffinate is the "aqueous solution remaining after the metal has been extracted by the

solvent; the tailing of the solvent extraction system." A Dictionary of Mining, Mineral, and Related
Terms 2nd edition, 443 (1997).

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Page 3

     A road ran between the tailings pond and the adjacent tailings pond. Mr. Borquez’s job

was to wait at the main gate in a pickup truck. When a CTI truck arrived, he would instruct the
driver of the CTI truck to follow him to the tailings pond. After they arrived at the tailings pond,
Borquez would show him where to dump the lime. Mr. Chismar instructed Mr. Borquez to not
let the lime build up along the side of the tailings pond.

     When Mr. Borquez received a call from Mr. Chismar to report to the tailings pond, he

was told to bring a flotation device. This flotation device consisted of several plastic barrels,
each about the size of a “pony keg,” that were tied together. A hose and a rope were attached to
the flotation device and the device was put into the tailings pond. Mr. Chismar testified that he
expected that once the flotation device was set up, everyone associated with this project would
stay up on the road. The bank along the side of the road declined rather steeply to the tailings
pond. Mr. Chismar expected that as each lime truck arrived, the driver of the truck would attach
his hose to the end of the other hose at the road and that the far end of this hose would remain
attached to the flotation device. He also believed that if the flotation device needed to be moved
to a different location in the tailings pond, the employees would pull it out by the rope, move it to
a lime-free area of the pond, and throw it back into the pond. Government Exhibit 1 shows the
proximity of the road to the tailings pond and the steep bank that separated the two.

     During most of the day, Mr. Borquez simply escorted trucks to and from the main gate.

Near the end of his work day, the Sierrita employee who was assisting him had to leave. When
the sixth CTI truck arrived, Mr. Borquez stayed at the tailings pond and assisted the CTI driver,
Mr. Forrey. Mr. Borquez noticed that the hose had come loose at the flotation device and the
lime was shooting straight up rather out into the pond. He walked down the bank to the edge of
the tailings pond to fix the problem. He was not wearing any protective clothing. As he turned
to return to the road, both of his feet fell into the tailings pond. Apparently he was not standing
on solid ground, but was standing on a crust of lime that had built up on top of the pond. When
lime and water mix, intense heat is produced in an exothermic reaction. Large portions of his
legs got wet as he exited the tailings pond. Mr. Borquez realized that his legs were badly burned
and he went to his truck as quickly as possible to pour eye wash onto his legs. He then drove to
where there was water in an Igloo container. He called Mr. Chismar on the radio who advised
him to go to the adjacent reclaim tank to rinse off. Mr. Borquez declined and told Chismar that
he was going to the main gate where there were showers.

    The mine’s “first responders” were notified and met Mr. Borquez at the gate. They

assisted Mr. Borquez by removing his clothing and getting him into the shower. He showered for
about 20 minutes and then Mr. Chismar drove him to a hospital. Mr. Borquez received very
serious burns on his legs and he required skin grafts. Although Mr. Borquez is still employed at
Sierrita, this accident was a life-altering event for him.

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Page 4

   B. MSHA’s Enforcement Action

   MSHA did not investigate this accident until it received an anonymous complaint. At the

conclusion of its investigation, MSHA issued one citation and one order dated November 25,
1997, under section 104(d)(1) of the Mine Act. Citation No. 4718158 alleges a violation of 30
C.F.R. § 56.15006 as follows:

           Safe equipment or protective clothing was not used [by] an
           employee who on Sept. 26, 1997, suffered chemical (lime) burns,
           after he fell in lime.

           The employee was assisting in dumping (unloading) lime at the
           south-side of the Sierrita tailings dam, at a catch pond.

           Management engaged in conduct constituting more than ordinary
           negligence in that they knew employees were working around/with
           caustic material and did not have suitable protective clothing. This
           violation is an unwarrantable failure. Fred Chismar, SXEW
           Supervisor.

     This citation was modified a number of times and the language above represents the final

language adopted by MSHA on December 22, 1997. The citation was terminated on November
25, 1997. Section 56.15006 provides that “[s]pecial protective equipment and special protective
clothing shall be provided, maintained in a sanitary and reliable condition and used whenever
hazards of process or environment, chemical hazards, radiological hazards, or mechanical
irritants are encountered in a manner capable of causing injury or impairment.”

   Order No. 4718159 alleges a violation of 30 C.F.R. § 56.15001 as follows:

           An employee was seriously injured when he fell in lime to about
           waist high. This employee was not provided with water or
           neutralizing agents in an appropriate amount to counteract harmful
           substances being used. This occurred on Sept. 26, 1998, at about
           1600 hours.

           The occurrence was at the South-side of the Sierrita tailings dam
           and at the catch pond.

           Management engaged in aggravated conduct constituting more
           than ordinary negligence in that they knew employees were
           working around/with caustic material and did not provide suitable
           or an adequate supply of water or neutralizing agents. This



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Page 5

           violation is an unwarrantable failure. Fred Chismar, SXEW
           Supervisor.

   This order was also modified a number of times and the language above incorporates the

modifications. The order was also terminated on November 25, 1997. Section 56.15001
provides, in part, that “[w]ater or neutralizing agents shall be available where corrosive
chemicals or other harmful substances are stored, handled, or used.”

   C. Summary of the Parties’ Arguments

           1. Secretary of Labor

    Mr. Chismar was aware that chemical hazards were present in the tailings pond that were

capable of causing injury or impairment. Mr. Chismar planned the entire liming project. He was
familiar with the hazards and knew that protective clothing should be worn. At the hearing, he
admitted that he did not even think about having water present as a first aid precaution. His only
defense in this case is his testimony that he did not think that the precautions required by the
standards were necessary, given the work to be performed at the tailings pond.

    A supervisor’s blind acquiescence to unsafe working conditions is not permitted under

the Mine Act. Mr. Chismar failed to require Mr. Borquez to wear protective clothing. Chismar
failed to recognize that Borquez would be exposed to the hazard even though Chismar observed
other employees working very close to the tailings pond. He failed to task train Mr. Borquez on
how to perform his work safely. He never specifically told Borquez to stay away from the edge
of the tailings pond. Chismar also failed to have the minimum amount of clean water at the
worksite available to ensure emergency treatment in the event of an accident. Mr. Chismar’s
“see no evil” approach does not protect him from liability. Chismar’s inexcusable failure to
provide Mr. Borquez and the other employees who worked on the liming project with the
minimum level of protections required by MSHA’s standards clearly amounts to aggravated
conduct. Mr. Chismar knowingly authorized, ordered, or carried out the violations set forth in
the citation and order at issue.

           2. Sierrita

    Mr. Chismar did not knowingly violate section 56.15006. He did not have knowledge,

either direct or constructive, of the violation regarding protective clothing. Such clothing was
not necessary to perform the tasks that Mr. Chismar assigned to Mr. Borquez. Chismar
reasonably did not expect anyone to handle the hose while the lime was being unloaded. He
expected that the flotation device would be moved by using the rope attached to it. Mr. Chismar
was aware of the hazard as indicated by the fact that he told Whitman to put protective clothing
on when he was required to go down to the tailings pond earlier that day. He did not expect
Mr. Borquez or anyone else to do so without wearing protective clothing. The evidence clearly
establishes that if Chismar had been at the tailings pond when Borquez walked down to bank to

                                            5

Page 6

the pond, he would have ordered him away or told him to get his protective clothing. Chismar
reasonably believed that Mr. Borquez was aware of the hazard.

    The Secretary did not establish a violation of this standard because it is

unconstitutionally vague. Mr. Chismar also did not knowingly violate section 56.15001. Given
the scope of the work to be performed, Mr. Chismar did not believe that there was a potential
hazard present that merited his providing clean water in the immediate area. He believed that
Mr. Borquez and other Sierrita employees would simply be escorting the CTI trucks between the
gate and the tailings ponds and, if they needed to assist the CTI driver in unloading the lime, they
would perform this task without exposing themselves to the hazard presented by the lime.

             II. DISCUSSION WITH FINDINGS AND CONCLUSIONS

    Whenever a corporate operator violates a safety or health standard, any director, officer,

or agent of such corporation “who knowingly authorized, ordered, or carried out such violation”
shall be subject to civil penalties. 30 U.S.C. § 820(c). In order to assess penalties against
Mr. Chismar in this case, I must find that (1) Sierrita committed the alleged violations set forth in
the citation and order; (2) Mr. Chismar was a director, officer, or agent of Sierrita; and
(3) Mr. Chismar knowingly authorized, ordered, or carried out the alleged violations. Chismar
stipulated that he was an agent of Sierrita. (Stip. 7).

    The principal issue is whether Mr. Chismar knowingly authorized, ordered, or carried out

the violations set forth in the citation and order.2 The Secretary must establish that Mr. Chismar
knew or had reason to know of the violative conditions. Kenny Richardson, 3 FMSHRC 8, 16
(January 1981). She must prove that Mr. Chismar knowingly acted, not that he knowingly
violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992). An
individual has knowingly acted when he “fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a violative condition.” Richardson, at 16. The
Secretary is required to show that the person charged demonstrated aggravated conduct
constituting more than ordinary negligence. BethEnergy Mines, 14 FMSHRC 1232, 1245
(August 1992). A finding of ordinary negligence will not, by itself, support a violation of section
110(c). Freeman United Coal Mining Co., 108 F3d. 358, 364 (1997).

   A. Failure to Wear Protective Clothing, § 56.15006



   2
      Mr. Chismar also contends that the Secretary’s investigation and issuance of the proposed

civil penalties in this case were unreasonably delayed by the Secretary and that the case should be
dismissed on that basis. Mr. Chismar’s motion is denied. In an unpublished order dated July 2,
1999, I set forth the chronology of MSHA’s investigation in this case. Based on that chronology and
the stipulations filed by the parties (Nos. 24-35), I find that the Secretary did not unreasonably delay
the investigation and prosecution of this case.

                                               6

Page 7

     On September 26, 1997, Mr. Chismar determined that, due to a power failure and heavy

rains, the raffinate in the tailings ponds was too acidic and needed to be neutralized. He called
CTI and ordered lime to be delivered by truck. Although Sierrita orders lime for other purposes,
it is unusual for Sierrita to put lime in the tailings pond.3 When the first CTI truck arrived at the
gate, Mr. Chismar escorted it to the tailings pond. Mr. Larry Whitman was with him and the
hose from the truck was first placed over the bank directly into the tailings pond. When the CTI
driver attempted to unload the lime through the hose, it did not work well. Mr. Chismar stopped
the unloading process and told Mr. Whitman to get his protective clothing and other supplies.
Mr. Whitman’s protective clothing was in his locker at the SX shop.

    When he returned, Mr. Whitman put on his protective clothing, went down to the tailings

pond, and attached the hose with wire to a culvert that extended into the pond. After Whitman
secured the hose to the culvert, he returned to the road and Mr. Chismar told the CTI driver to
start pumping the lime again.

     A short time later, Mr. Chismar called Mr. Borquez on the radio and told him to report to

the tailings pond and to bring a flotation device. Chismar frequently used Borquez as a “lead
man” and Borquez also functioned as his relief supervisor from time to time. Because of his
work history at several copper mines, Chismar believed that Borquez was fully aware of the
hazards of working around lime. Mr. Borquez had never worked around the tailings pond at
Sierrita and testified that he was not aware of the hazard. When Borquez arrived, Whitman was
up on the road and he may have been wearing some of his protective clothing. Mr. Borquez
brought Bobby Martinez along to assist him. Chismar did not tell Borquez to bring his protective
clothing and Borquez left his protective clothing in his locker in the SX shop.

    When he called, Chismar told Borquez to bring a flotation device so that a hose could be

attached to it. Chismar decided that a hose should be attached to the flotation device and that it
should be placed in the tailing pond so that as the lime was pumped out, it would spray out into
the pond rather than accumulate along the shore. He testified that he used this system so that
Sierrita employees would not be required to handle the hose or go down the bank to the pond.
He stated that it was his expectation that everyone would stay up on the road. Mr. Whitman
briefed Mr. Borquez about the project. Borquez was told that he would be “taking over” the
project and that his principal duty would be to escort the CTI trucks to the tailings pond.
Mr. Borquez was not given any safety training with respect to this project by Mr. Chismar.
Mr. Borquez took the floater off his pickup and put it about 10 to 15 feet from the pond.
Borquez then went to escort the next CTI truck in. Mr. Whitman left the area at some point after
Mr. Borquez arrived to attend to other duties. The record does not reveal who placed the
flotation device into the tailings pond or how close anyone was to the pond when this task was
performed.

   3
      On the most recent occasion, CTI delivered lime in dump trucks and the lime was dumped

directly into the tailings pond.

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Page 8

    Mr. Chismar escorted the third truck in and Mr. Borquez escorted the fourth CTI truck.

At some point, Mr. Chismar was called away to the SX plant and so Mr. Borquez continued
escorting the trucks from the mine gate to the tailings pond. Mr. Martinez stayed in the tailings
pond area while the trucks were unloaded by the CTI drivers.

    Sometime between one and two that afternoon, Mr. Chismar traveled to the tailings pond

to check on the status of the liming project. He observed Mr. Martinez down near the pond
holding the flotation device while shooting the lime across the pond. Chismar yelled at Martinez
and told him to get away from the tailings pond. Mr. Borquez was present when Chismar
ordered Martinez back up to the road. Chismar did not tell anyone to get protective clothing.

     Later that afternoon at about 2:30, Mr. Chismar returned to the tailings pond area with his

supervisor Ramon Hernandez. Mr. Hernandez saw Mr. Borquez in his pickup on the road near
the tailings dam and told Mr. Borquez to be careful around the lime because it can get very hot.4

    Later that afternoon, Mr. Borquez called Mr. Chismar to tell him that Mr. Martinez was

leaving for the day. Borquez told Chismar that he would finish the job. Chismar told Borquez
not to allow lime to accumulate along the bank of the tailings pond and to move to a “clean” area
whenever it was necessary. At about 3:45 p.m., Mr. Borquez called Chismar to tell him that he
had been burned by the lime. Only the CTI truck driver and Mr. Borquez were present when the
accident occurred. As stated above, Mr. Borquez walked down the bank to the tailings pond to
adjust the hose on flotation device. Without knowing it, Mr. Borquez walked onto the pond and
was standing on accumulations of lime. When he fell in, he was badly burned.

     I find that the Secretary established that Sierrita committed a violation of section

56.15006.5 As discussed above, the liming project was an unusual undertaking. Sierrita did little
to plan the project or consider the potential hazards present. Sierrita’s safety department did not
send a safety representative to the area to evaluate the hazards. Mr. Borquez and the other
Sierrita employees had little or no experience in the work involved or the hazards present.
Mr. Borquez and the other employees should have been told to bring their protective clothing to
the tailings pond area and told not to walk down from the road to the tailings pond without
wearing their protective clothing under any circumstances. Sierrita’s failure to properly instruct

   4
       At the hearing, Mr. Borquez was not asked whether he observed Chismar ordering

Martinez away from the tailings pond or whether Mr. Hernandez warned him that the lime could get
hot. I credit the testimony of Messrs. Chismar and Hernandez with respect to these events. This
testimony is consistent with the statements they gave to the MSHA special investigator.
5
Under the principles set forth in Kenny Richardson, I am required to independently
determine whether Sierrita violated the safety standards despite the fact that Sierrita admitted
liability for purposes of the Mine Act when it settled the civil penalty case brought against it. 3
FMSHRC at 9-11.

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Page 9

its employees as to these requirements constitutes a violation of the safety standard. Moreover,
because the Mine Act imposes strict liability on mine operators, Sierrita is responsible for
Mr. Borquez’s failure to wear protective clothing when he walked down to the tailings pond.

    I find, however, that the Secretary did not establish a knowing violation of section

56.15006. Mr. Chismar did not know or have reason to know that Mr. Borquez or any other
employee would walk down the bank at the edge of the road to the tailings pond without wearing
protective clothing. Mr. Chismar testified that he understood that Mr. Borquez had worked
around lime for a number of years at the Sierrita Mine and at the Anamax Mine, an unrelated
copper mine. Mr. Borquez had protective clothing in his locker and he had been warned just 45
minutes earlier by Mr. Hernandez, in Mr. Chismar’s presence, that the lime in the tailings pond
could get very hot. When Chismar observed Mr. Martinez near the tailings pond, he ordered
Martinez to return to the road in Mr. Borquez’s presence. Mr. Chismar credibly testified that,
because he did not expect Mr. Borquez to walk down to the tailings pond, Chismar did not
believe that protective clothing was necessary.

    The Commission’s holding in Roy Glenn is instructive. 6 FMSHRC 1583 (July 1984). In

that case, several miners were instructed by their supervisor, Mr. Glenn, to weld a valve on an
oxygen line in a mill building. To perform this welding, it was necessary to stand on an adjacent
girder some distance above the floor. Rather than using a ladder to access the area, the miners
climbed some stairs and walked along the girders without using safety lines to get to the work
site. Glenn went to another area to check other valves and when he returned he saw one of the
miners walking across the girder. He waived him down with a flashlight just as an MSHA
inspector was entering the area.

    The Commission reversed the administrative law judge and determined that Glenn did

not knowingly violate the safety standard. The Commission determined that the judge’s finding
that Glenn had reason to know that miners “might”or “could” walk across the girders was
insufficient to establish a knowing violation. Id. at 1588. A supervisor always has “reason to
know” that miners “might” perform tasks in an unsafe manner. Id. This “degree of knowledge is
too contingent and hypothetical to be legally sufficient” under the test set out in Kenny
Richardson. Id. The Commission went on to state:

                   Before personal liability under section 110(c) can be
           imposed on an operator’s agent for “knowingly” authorizing,
           ordering, or carrying out a violation, the Secretary’s proof must rise
           above the mere assertion that, at the time of assignment, an
           assigned task could have been performed by miners in an unsafe
           manner. Adoption of this rationale could mean that ... an
           operator’s agent could be held personally liable under section
           110(c) for failing to anticipate the miner’s unsafe actions and not
           giving specific instructions to each miner, at the time of the



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           assignment, to avoid all hazardous approaches to a task that could
           be followed.

Id.

     In Roy Glenn, the Commission tailored its Kenny Richardson analysis to those situations

where a “violation of a mandatory standard does not exist at the time of the corporate agent’s
failure to act, but occurs subsequent to that failure.” Id. at 1586. The Commission held as
follows:

           [A] corporate agent in a position to protect employee safety and
           health has acted “knowingly,” in violation of section 110(c) when,
           based on the facts available to him, he either knew or had reason to
           know that a violative condition or conduct would occur, but he
           failed to take appropriate preventive steps. To knowingly ignore
           that work will be performed in violation of an applicable standard
           would be to reward a see-no-evil approach to mine safety, contrary
           to the strictures of the Mine Act.

Id.

    Although the present case has some similarities with Roy Glenn, there are some important

differences. Mr. Glenn had specifically instructed the miners to bring their safety lines while
Mr. Chismar did not mention or require protective clothing, except in the case of Mr. Whitman.
The work that the miners were to perform for Mr. Glenn required safety lines. Mr. Chismar
believed that Mr. Borquez did not need protective clothing to escort CTI’s trucks to and from the
mine gate because he would not be required to walk down to the tailings pond.6 In Roy Glenn,
the hazard of falling was obvious while in the present case the hazard of being injured by the
lime-raffinate mixture was not obvious.

    In Warren Steen, Mr. Steen was held liable under section 110(c) even though he was not

at the mine when a fatal accident occurred. 14 FMSHRC at 1131. In that case, however, he
carried out the violation by ordering a stacker-conveyor to be moved to an area that he knew was
within 10 feet of energized power lines. Thus, he knowingly authorized the violation.

   6
       At the hearing, the Secretary took the position that the miners should have been wearing

protective goggles or face shields when they were on the road adjacent to the tailings pond to protect
their eyes from blowing lime. This allegation is not contained in the citation. The citation relates
solely to Sierrita’s failure to require Mr. Borquez to wear protective clothing when he was adjacent
to the tailings pond. The CTI driver was not wearing goggles or a face shield and CTI did not
receive any MSHA citations. Mr. Borquez was wearing safety glasses on the day of the accident.
I reject the Secretary’s attempt to expand the citation beyond that written by the MSHA inspector.

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     Messrs. Chismar and Hernandez should not have relied on their understanding that

Mr. Borquez and other Sierrita employees had worked at other copper mines with similar
hazards. Apparently they believed that Mr. Borquez was fully aware of the hazard presented by
the presence of lime in the tailings pond as a result of his work history. I credit Mr. Borquez’s
testimony that he did not realize that he could be severely burned if he got the tailings mixture on
his skin. Mr. Borquez should have been given more explicit instructions as to the nature of the
work he was to perform and the hazards present.7 In addition, Mr. Chismar should have
anticipated that something might go wrong as the lime was being unloaded and that Sierrita
employees might be tempted to work next to the tailings pond to fix the problem. It is human
nature for someone to take a shortcut in such situations to avoid driving two miles to get
protective equipment.

    Mr. Chismar is at least partially responsible for the violation. A finding that Mr. Chismar

was negligent, however, is insufficient to establish a section 110(c) violation. Freeman United
108 F3d. at 364. The Secretary must establish that the violation was the result of Mr. Chismar’s
aggravated conduct. I find that Mr. Chismar’s conduct did not amount to aggravated conduct
with respect to this violation. He envisioned, incorrectly as it turned out, that Mr. Borquez and
the other Sierrita employees would only be escorting CTI trucks to and from the tailings pond.
He believed that they would only be driving company pickup trucks back and forth from the
mine gate, not working down by the tailings pond. Chismar also thought that any assistance
given the CTI truck drivers could be provided without leaving the road. He simply did not
believe that protective clothing was necessary for the work assigned to Mr. Borquez. His belief
was incorrect.

     Mr. Chismar did not take a “see-no-evil” approach, however. When Mr. Whitman was

required to walk down to the pond to attach the hose to the culvert, Chismar told him to wear his
protective clothing. When he observed Mr. Martinez down near the tailings pond, he told
Martinez to get away. I find that if Mr. Chismar had been present when Mr. Borquez approached
the tailings pond, Chismar would have told him to get away as well. In his mistaken belief that
the employees were aware of the hazard, Chismar did not provide sufficient instruction or
training to Mr. Borquez, but this failure does not rise to the level of aggravated conduct. As
stated above, Chismar heard Hernandez warn Borquez about the hazard 45 minutes before the
accident. Accordingly, the $500 civil penalty proposed against Mr. Chismar for an alleged
knowing violation of section 56.15006 in Citation No. 4718158 is VACATED.

   B. Failure to Have Water or Neutralizing Agents Available, § 56.15001

    Sierrita did not make any provision for water or neutralizing agents in the immediate area

of the tailings pond where lime was being deposited. The closest water supply was a tank,
referred to as the “reclaim tank,” that was somewhere between 75 and 200 yards away. This tank

   7
      I reject Chismar’s argument that Mr. Borquez was working as a relief supervisor on this

project after Mr. Chismar left the area.

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contained a mixture of reclaimed water from the tailings dam and well water. The record reveals
that this water would have been of sufficient purity for Mr. Borquez to use to wash his legs, but
Mr. Borquez was not familiar with the tank, he did not know what was stored in it, and he did not
know where any valves or hoses were that he could use to wash himself. After he used all of the
water in his Igloo cooler, he got back in his pickup truck and drove to the mine to shower. His
refusal to use the reclaim tank and his decision to proceed to the showers is entirely reasonable.

   Mr. Chismar argues that the Secretary failed to prove that Sierrita violated the safety

standard. He contends that the standard is too vague to be enforceable for a number of reasons
including the fact that it does not set forth how much water is required, at what distance it must
be placed, and how pure the water must be. Sierrita admitted a violation of the standard, for
purposes of the Mine Act, when it settled the case brought against it.

    I reject the arguments raised by Mr. Chismar concerning the vagueness of the standard

under the facts presented in this case. I find that under any reasonable interpretation of the
standard, water or a neutralizing agent was not available at the tailings pond. The water in the
Igloo cooler was clearly not sufficient. The water in the reclaim tank was not available because it
was located some distance away and it was not designated for such use. The tank was not there
for the purpose of providing first-aid for chemical burns. The area was surrounded by weeds,
employees had not been advised to use it for first-aid, and they had not been given instruction as
to how to use it for the purpose washing off chemicals or other harmful substances. It was a
spur-of-the-moment suggestion by Mr. Chismar.

    Whether water or neutralizing agents were required at the tailings pond when the CTI

trucks were delivering lime is separate question. Mr. Chismar contends that since the liming
project did not entail handling “corrosive chemicals or other harmful substances,” water was not
required. He maintains that Sierrita’s employees were assigned to escort CTI trucks to the
tailings pond. I reject Mr. Chismar’s arguments. It is clear that Chismar knew that Mr. Whitman
would be working around the tailings pond. Mr. Chismar told him to get his protective clothing
before working near the pond. Sierrita had knowledge that at least one employee could be
exposed to the chemical reaction in the tailings pond. For purposes of this decision, I find that
the Secretary established that Sierrita violated section 56.15001.

    I find, however, that the Secretary did not establish that Mr. Chismar knowingly violated

the safety standard. The analysis set forth above with respect to section 56.15006 is also
applicable here. With the exception of Mr. Whitman, Mr. Chismar did not expect anyone to
work down along the tailings pond. Although he should have anticipated that water might be
needed for first-aid purposes, his failure to have water at the tailings pond does not rise to the
level of aggravated conduct. Once the liming project was started and the floater was placed into
the pond, Chismar did not believe that anyone would be exposed to chemicals or other harmful
substances. Thus, he believed, with some reason, that water was not necessary. Indeed, Chismar
and Hernandez testified that providing water for first-aid purposes did not occur to them because
of the nature of the work to be performed.

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    The principal chemical hazard in the SXEW area is acid. Sierrita provides washing

stations at several locations in the SXEW area as required by the safety standard. Thus,
Mr. Chismar is familiar with the safety standard and its requirements. He believed that the work
to be performed at the tailings pond did not require water or neutralizing agents because his
employees would not be handling the lime or working alongside the tailings pond. Although I
determined that the standard was applicable here, Mr. Chismar’s failure to require that water be
available does not demonstrate aggravated conduct. Accordingly, the $500 civil penalty
proposed against Mr. Chismar for an alleged knowing violation of section 56.150016 in Order
No. 4718159 is VACATED.

                                     III. ORDER

    The civil penalties brought against Fred Chismar for alleged knowing violations of

sections 56.15006 (Citation No. 4718158) and 56.15001 (Order No. 4718159 ) are VACATED
and this proceeding is DISMISSED.

                                        Richard W. Manning
                                        Administrative Law Judge

Distribution:

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 400, Arlington, VA 22203-1954 (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219-
1410 (Certified Mail)

RWM

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