Rock of Ages Corporation
Rock of Ages Corporation (FMSHRC YORK 94-76-RM through YORK 95-55-M): Explosives violations partly affirmed after fatality
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This order from 1995 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Rock of Ages Corporation faced contest and civil penalty proceedings after quarryman Michael Bassett died when a torch ignited concealed pyrodex blasting material at the Smith Quarry. Judge Jerold Feldman granted the Secretary's motion to vacate four orders, affirmed one citation and three orders involving post-blast inspection, work near misfires, open flames, and blasting-personnel training, and denied the related contests. The judge assessed a total $180,000 civil penalty, while the separate civil penalty matter was dismissed upon timely payment.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.6306(g), 56.6311(b), 56.6904, and 56.6300(a)
- Outcome: Four orders were vacated, four contests were granted, four contested items were affirmed, and a $180,000 penalty was assessed.
- Key point: Quarry operators must identify and remove misfires, prevent open flames near explosives, and train blasting personnel for the specific explosives used.
Full text (FMSHRC public release)
FED ERA L M INE SA FETY A ND HEA LTH REV IEW COM M ISSION
OFFICE OF A DM INISTRA TIVE LA W JUDGES
2 SK YLINE, 10th FLOOR
5203 LEESBURG PIK E
FA LLS CHURCH, VIRGINIA 22041
Novem ber 3, 1995
ROCK OF AGES CORPORATION, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. YORK 94-76-RM
: Citation No. 4282251; 5/20/94
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. YORK 94-77-RM
ADMINISTRATION (MSHA), : Order No. 4282252; 5/20/94
Respondent :
: Docket No. YORK 94-78-RM
: Order No. 4282253; 5/20/94
:
: Docket No. YORK 94-79-RM
: Order No. 4282254; 5/20/94
:
: Docket No. YORK 94-80-RM
: Order No. 4282255; 5/20/94
:
: Docket No. YORK 94-81-RM
: Order No. 4282256; 5/20/94
:
: Docket No. YORK 94-82-RM
: Order No. 4282257; 5/20/94
:
: Docket No. YORK 94-83-RM
: Order No. 4282258; 5/20/94
:
: Rock Of Ages Lite Side
: Mine ID 43-00024
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 95-55-M
Petitioner : A.C. No. 43-00024-05518
v. :
: Rock of Ages Lite Side
ROCK OF AGES QUARRIES, INC., :
A/K/A ROCK OF AGES CORP., :
Respondent :
DECISION
Appearances: Henry Chajet, Esq., Patton Boggs, L.L.P.,
Washington,
D.C., and M.
Page 2
Shane
Edgington,
Esq., Patton
Boggs, L.L.P.,
Denver,
Colorado, for
the
Contestant/Resp
ondent;
David L. Baskin, Esq., Office of the Solicitor,
U.S. Department of Labor, Boston, Massachusetts,
for the Respondent/Petitioner.
Before: Judge Feldman
These consolidated contest and civil penalty proceedings are
before me as a result of a petition for civil penalty filed by
the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C.
' 801 et seq. These proceedings concern a 104(d)(1) citation
and seven 104(d)(1) orders that were issued as a result of the
Mine Safety and Health Administration=s (MSHA=s) accident
investigation of the May 20, 1994, death of Michael Bassett, a
Rock of Ages (ROA) quarryman. Bassett, a channel burner operator
at ROA=s Smith Quarry in Graniteville, Vermont, was killed when
his torch ignited pyrodex blasting material.1
Prior to the hearing, the Secretary moved to vacate
Order Nos. 4282252, 4282253, 4282254 and 4282258. The petition
seeks a total civil penalty of $135,000 for remaining 104(d)(1)
Citation No. 4282251 and 104(d)(1) Orders Nos. 4282255, 4282256
and 4282257.
The hearing was conducted from January 10 through
January 13, 1995, in Boston, Massachusetts, and, from April 25
through April 28, 1995, in Montpelier, Vermont. On July 28 and
October 19, 1995, ROA filed unopposed Motions to Correct a total
of approximately 540 errors in the transcript of these
proceedings. However, ROA has not alleged any significant
substantive transcript errors in its post-trial brief. I find
the transcript to be substantially accurate, particularly with
respect to the transcript pages referenced in this decision.
1
The Smith Quarry is a component of Rock of Ages' Lite Side
Quarry which is the subject mine site in this proceeding.
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Accordingly, ROA's Motions to Correct are granted with the
exception of any requested corrections that are substantively
inconsistent with the transcript pages discussed and cited
herein.
ROA is a granite manufacturing company that is subject to
the Act. ROA is a large operator in that it has approximately
300 employees and annually produces approximately 1.2 million
cubic feet of granite. (Tr.II at 453-55; ROA Proposed Findins at
p.2).2 The parties= post-hearing briefs and replies are of
record.
Statement of the Case
ROA=s Smith Quarry is a solid massive granite formation
where blocks of stone, called benches, are removed by quarrying
in a downward, fairly cubicle fashion. Thus, the base of a
quarried (removed) bench becomes the top of the bench to be
quarried below. A typical bench is approximately 40 feet wide,
35 feet deep and 16 feet high.
Benches are separated by a channel burner operator who
proceeds with a torch up one side of the bench, along the back,
and then down the other side to create the bench. After channels
are burned to separate the bench on the sides and in the rear,
the bench is separated from the quarry floor by blasting material
that is loaded into lift holes drilled every six inches along the
base of the bench at its face.
Typical lift holes are 1-7/8 inches in diameter and
approximately 32 feet long. When a lift (blast) is clean, the
top half of the lift hole becomes part of the lifted bench, while
the lower half of the hole remains at the surface at the top of
the next bench to be quarried. If the lift is not clean, caprock
may remain in place at the surface after the bench is removed
with the lift hole intact and the possibility of explosives
inside.
ROA routinely used a continuous charge of primacord or
seismic cord as its lift hole blasting agent prior to 1993.
Beginning in February 1993, ROA departed from its usual blasting
procedure and substituted pyrodex bags for blasting cord in
2
Transcript references are cited as "Tr.I" and ATr.II@ for
the first and second phases of the trial, respectively.
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several shots in February through July 1993. The pyrodex bags
were separated at the front, middle and rear of the loaded lift
holes without any connecting ignition or detonating agents. The
blast procedure contemplated that the flame and heat from each of
the pyrodex bags at the mouth (front or collar) of each loaded
lift hole would ignite the center and rear bags in sequence.
On Friday, May 20, 1994, channel burner operator Bassett
was killed when his torch ignited pyrodex concealed in caprock
as a result of misfires that occurred in June 1993. Bassett had
been burning a channel at the rear of the bench being quarried.
Quarry operations were suspended immediately after Bassett=s
death, at which time the post-accident investigation revealed,
in addition to the fatal charge, two bags of unexploded pyrodex
within two feet of Bassett=s torch path. Ultimately, MSHA
determined there were a total of 22 bags of unexploded pyrodex in
the vicinity of the previously quarried June 22, 1993, Adeath
bench.@ A total of 40 unexploded pyrodex bags, including those
found in the Adeath bench,@ were found in ROA=s Adams and Smith
Quarries which are in the Barre complex.
MSHA Inspector Edward Blow arrived at the Smith Quarry on
the afternoon of May 20, 1994, to secure the scene and open the
investigation. Steven Luzik, who is the Chief of MSHA's
Engineering and Testing Division at the Technical Support Center
in Tridelphia, West Virginia, Supervisory Inspectors Donald
Fowler and Michael Music, and Inspector Guy Constant conducted
the accident investigation from Monday, May 23, 1994, through the
closeout conference on June 29, 1994.
As a result of MSHA's accident investigation, the Secretary
seeks to impose penalties on ROA for four alleged violations of
mandatory safety standards in Subpart E of Part 56, 30 C.F.R.
Part 56, which govern hazards associated with explosives.
Namely, ROA was cited for an inadequate June 22, 1993, post-blast
inspection in violation of 30 C.F.R. ' 56.6306(g); permitting
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work other than work necessary to remove a misfire in the
affected blast area in violation of 30 C.F.R. ' 56.6311(b);
permitting an open flame within 50 feet of explosive material in
violation of 30 C.F.R. ' 56.6904; and inadequately trained
blasting personnel in violation of 30 C.F.R. ' 56.6300(a).
At the hearing the Secretary called Glenn Dean Barrett of
the Hodgdon Powder Company, ROA=s pyrodex supplier, and
investigating officials Blow, Luzik, Fowler and Music. ROA
relied upon the testimony of its Chief Engineer, Donald Murray,
and ROA employees David Gomo, a channel burner operator, and
Arnold Bolio, a front-end loader operator. ROA also called
Dr. Chapman Young, a specialist in Geophysics and Material
Science Engineering, as an expert witness. However, ROA did
not call Earnest Batchelder, the derrick operator who found
the critical four pyrodex misfires on or about July 1, 1993,
Richard ABud@ Reynolds, the powderman who loaded those misfires,
and Earl Kelty, the foreman who supervised Reynolds.
Background
ROA is a granite quarry manufacturing company with
approximately 300 employees. The Smith Quarry, the site of the
accident, is a solid massive formation in the Barre complex and
has approximately 50 to 75 quarrymen. Quarrying proceeds in a
fairly cubical fashion. The walls stay fairly straight. The
quarry size remains relatively constant as the process proceeds
downward, it does not taper. There are typically from five to
seven levels of operation at the quarry. At these levels, a
total of approximately a dozen benches (individual blocks of
stone) are being worked at any given time.
The first step in the stone removal process is the channel
burning operation. The channel burner operates the channel
burning torch which creates thermal stresses causing the stone to
break off. The channel burner proceeds up one side of the bench,
along the back and then down the other side to create a channel,
approximately six inches wide, on the sides and rear of the
bench. Benches vary in size. A typical bench is approximately
40 feet wide, 35 feet in depth and 16 feet in height. (Ex. C-2).
The channel burning process is completed in approximately
15 days.
After channel burning, lift holes are drilled at the base of
the bench. The lift holes are about 1-7/8 inches in diameter,
are drilled approximately six inches on center, and proceed from
the base of the open face back into the bench, stopping about one
foot from the channel in the back of the bench. The drill holes
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are approximately one foot from the base of the quarry floor.
The lift hole drilling process is completed by the 26th day of
the bench quarrying process.
After the lift holes are drilled, a line of vertical holes
are drilled every 5-2 feet in the top of the bench to create
vertical slabs of stone. The vertical holes are drilled four
inches apart and are drilled down to within a foot of the lift
holes, but they do not intersect. The vertical drill holes
eventually create slabs that are about 5-2 feet in width. The
vertical holes are completed approximately 34 days into the
process.
After all the holes are drilled, some, but not all, of the
lift holes in the bench are loaded by the powderman and his
assistant using various loading patterns. For example, every
third or fourth lift hole may be loaded with explosives. With
the exception of approximately seven pyrodex shots that occurred
from February to July 1993, ROA used seismic cord which is
continuous detonating cord placed in various lift holes connected
by a trunk line ignited by blasting caps. Following the blast,
the powderman, his assistant and the foreman go to the face of
the bench to conduct an examination for a successful lift and to
look for any evidence of a misfire.
In conducting a post-blast examination, the powdermen look
for: (1) proper cracking from lift hole to lift hole; (2) signs
of discoloration from blast residue on loaded holes; and
(3) any indication of non-initiated blasting materials or other
abnormalities. They also observe the top of the bench to see if
the bench shifted in the blast. The blasting process is
completed approximately 35 days into the process.
After blasting, the bench is quarried by separating slabs
approximately 5-2 feet in width, by jack hammering a series of
shims and wedges into the vertical holes in the top of the bench.
The 5-2 foot slabs are then split from the bench by a front-end
loader with a tipping boom used to topple each line down. As
each line is toppled, fresh stone is exposed beneath and behind
the line. The powdermen and quarrymen then examine this newly
exposed stone in the same manner they examined the face.
The toppled slabs are split into smaller blocks 5'6" by 5'6"
by the height of the bench. These smaller blocks are then
transported by the front-end loader to an area underneath one of
the derricks where the block is hoisted out of the quarry. The
process of splitting off slabs and reducing the slabs to smaller
blocks is repeated until the entire bench is quarried. During
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this 10 to 12 day period following blasting during which the
stone is removed, i.e., the post-blast inspection period, the
quarrymen continue to examine the freshly exposed stone for
misfires or other safety hazards. (See Tr.II at 15-16). The
entire bench is removed approximately 10 to 12 days after the
blast and 47 days after the initiation of channel burning work on
the bench.
Findings of Fact and Conclusions
As noted above, ROA routinely used primacord or seismic cord
as the blasting agent at the Smith Quarry. Seismic cord is
unlikely to misfire if the blasting caps and trunk line ignite at
the mouth of the loaded lift holes and detonate the cord because
it is a continuous cord of blasting material. The greatest
concern is the potential for a break in the seismic cord by a
sharp piece of rock when the cord is unrolled and shoved into the
lift hole. A break in the cord can usually be detected by the
powderman because the cord would stop unrolling before it
approached the rear of the bench. (Tr.I at 233).
The Hodgdon Powder Company is a manufacturer of pyrodex.
Pyrodex is often referred to "as a replica of black powder" and
is similar to black powder in ingredients. (Tr. I at 128).
Black powder is a mixture of charcoal, sulfur and potassium
nitrate. Pyrodex has all of the ingredients of black powder
plus potassium perchlorate and binders and burning rate
modifiers.
Pyrodex is a propellant explosive as contrasted with black
powder which is a detonating explosive. A propellant explosive
burns generating gas and energy. A detonating explosive
generates gas and energy as well as shock energy through
detonation. (Tr.I at 132). The Department of Transportation
(DOT) classifies black powder as a Class A Explosive and pyrodex
as a Class B Explosive. (Tr.I at 128).
In 1986, ROA was contacted by Glenn Dean Barrett,
Vice-President of the Hodgdon Powder Company. Barrett encouraged
ROA to use pyrodex as an alternative to seismic cord or other
black powder blasting agents. Barrett stressed that pyrodex
would have rock fracturing properties that were beneficial to the
quarrying process because it could split dimensional stone
without radial fracture. (Tr. I at 144). Barrett visited ROA's
Adams, Smith, and Rock of Ages quarries, where he performed a
total of four pyrodex test shots with Ernie Silly (phonetic) of
the Rock of Ages Quarry, Jumbo Harris, foreman of the Adams
Quarry, and an individual identified as "JR", foreman of the
Smith Quarry. Barrett did not recall meeting Richard "Bud"
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Reynolds or Earl Kelty, the powderman and foreman, respectively,
who conducted pyrodex shots in 1993 at the Smith Quarry. (Tr.I
at 136, 149).
Barrett testified that he stressed the need for stemming
lift hole collars with paper or rags to ensure the holes were
pressurized and gas tight. Pressurization would ensure proper
lift because there would be no loss of gas energy. (Tr.I at 141,
147). Although the pyrodex bag placed at the mouth of the lift
hole is ignited by an electric squib, pressure creating a flow
channel is also essential to ignition of bags placed in the
middle and rear of the lift holes as these bags are not
connected by any fuse or other ignition device. (Tr.I at 142).
Ultimately, ROA Quarry Superintendent Larry Beede informed
Barrett that ROA was not interested in pyrodex because the
stemming process required to pressurize the lift holes was too
labor intensive. (Tr.I at 147-48).
Barrett participated in a subsequent pyrodex test shot at
the Smith Quarry in 1987, at which time he also did not recall
meeting Reynolds or Kelty. (Tr.I at 149). This shot was used to
demonstrate a mechanical plug that addressed ROA's concerns about
manual stemming. However, the test shot did not adequately split
the rock. Consequently, Beede informed Barrett that ROA was no
longer interested in using pyrodex. (Tr.I at 149-50).
In January 1993, Barrett was advised by Beede and
Controller Paul Hutchins that ROA was interested in resuming
their experimentation with pyrodex. (Tr.I at 150). Barrett sent
ROA information concerning the proper pyrodex pre-blast, blasting
and post-blasting procedures. The information addressed hole
cleaning and testing, loading patterns, blast initiation and
hygroscopicity (pyrodex's water absorption qualities that
interferes with ignition).
With respect to his views on proper loading, at trial,
Barrett was reluctant to admit that he had recommended that the
pyrodex bags be spaced in the lift holes, claiming that bags were
touching each other in the 1987 test shot. (Tr.I at 171-72).
However, Barrett ultimately conceded on cross-examination that he
believed pyrodex bags spaced throughout a 30 to 40 foot lift hole
could be ignited by a single squib at the outermost bag, provided
there were no obstructions in the lift hole. (Tr.I at 174-77,
186). In fact, Barrett stated he has not advised pyrodex users
to cease spacing pyrodex bags in lift holes despite Bassett's
fatality. (Tr.I at 176). Finally, Barrett's paper on "Splitting
Granite Using Pyrodex" presented to the Society of Explosive
Engineers in February 1987, and provided to ROA in January 1993,
notes that "powder had to be placed in more than one section of
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the hole." (Ex. R-4, at p.3) In summary, the evidence reflects
Barrett's recommended blasting procedure involved the placement
of separated pyrodex bags in pressurized lift holes that were
unconnected by any detonating cord or other ignition device.
During the period February through July 1993, ROA used
separated bags of pyrodex in several blasts at its Smith and
Adams Quarries by using an electric squib to ignite the outermost
bag in each loaded lift hole. (Tr.I at 593-94). ROA had been
operating the quarry for over 90 years. (Tr.II at 458).
However, these were the only production uses of pyrodex as a
blasting agent. Consequently, ROA Chief Engineer Donald Murray,
Engineer Doug Goldsmith and Foreman Kelty informed MSHA accident
investigators Fowler and Constant that pyrodex blasting reports
were kept because these pyrodex shots were experimental rather
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than routine. (Tr.I at 564, 569, 593). The blasting reports
detailed the bench's quarry section location and dimensions, and
identified the loading pattern by identifying the lift hole
loading pattern and the number and spacing of pyrodex bags in
each loaded hole. (See Ex. R-7).
Although blasting reports were made for each pyrodex shot,
ROA Chief Engineer Donald Murray claimed blasting reports for
three pyrodex shots at the Smith Quarry could not be located.
Murray has characterized these "missing report" pyrodex blast
sites as "possible pyrodex shots" based on witness recollections,
none of whom were called by ROA at the hearing. (Ex. C-10 at
p.4; see also n.4, infra). The existing reports detail pyrodex
shots on February 5, 1993 at the U-1 Section of the Smith Quarry,
shots on May 7, May 10 (or May 12), and June 22, 1993, at the
U-13 Section of the Smith Quarry (where Bassett was ultimately
killed), and a shot on July 29, 1993, at the Adams Quarry.
(Exs. R-7, R-24, Tr.II at 638-50).
The June 22, 1993, blasting report reflects that 80 lift
holes, 37 feet in length, were drilled approximately 6 inches
apart at the base of the bench=s 42 foot face. (Ex. R-7). The
report further reflects powderman Richard ABud@ Reynolds, under
the supervision of Foreman Earl Kelty, loaded a total of 52
pounds of pyrodex in 84 bags by placing four bags in each of
21 holes. (Tr.I at 567-68). The four bags in each loaded hole
consisted of one bag at the mouth of the hole, one bag in the
center of the hole, and two bags at the rear. The rear bags were
placed approximately 32 to 37 feet from the hole's mouth. The
loading pattern was every fourth hole, i.e., holes 1-4-8-12-16-
20-24-28-32-36-40-44-48-52-56-60-64-68-72-76-80). (Exs. R-7,
R-10; Tr.I at 569, 577-78).
Kelty and Reynolds examined the bench after the blast. They
noted the bench was "tight in front" and that the "back lifted
good." (Ex. R-7). Fowler testified that "tight in front" meant
the bench did not separate or move as anticipated. (Tr.I at 582,
638). On or about July 1, 1993, approximately seven to ten days
following the June 22, 1993, shot, derrick operator Earnest
Batchelder found three or four bags of pyrodex that had
shaken loose from blocks of granite lifted from the quarry
floor. (Ex. C-10 at p.5). Batchelder did not observe any
matches or detonators with the bags. (Ex. R-19). The pyrodex
misfires were reported to Kelty. Foreman Kelty noted that
"4 bags [of] powder did not go off" on the June 22, 1993,
blasting report. (Ex. R-7; Tr.I at 579-80).
Murray testified for ROA that Kelty ordered Reynolds to
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wash out the lift holes after Batchelder's find. However, on
cross-examination, Murray admitted he did not know whether the
holes were first washed in July 1993, after the bags were found
by Batchelder, or after Bassett's fatality. (Tr.II at 544-45,
564-65). Inspector Fowler also testified on the extent of
Kelty's efforts to find more misfires. Fowler testified he
interviewed Kelty on June 1, 1994, shortly after Bassett's death,
in the presence of Murray and ROA Engineer Doug Goldsmith.
Fowler testified:
Q: Did you ask [Kelty] whether four bags of powder had
been found?
A: Yes.
Q: And did he respond?
A: Yes, he did.
Q: What did he say?
A: He said yes, that he was aware of four bags that
had been found.
Q: And what did you say to him then?
A: Well, the question was to Mr. Kelty is, if he was
aware of four bags of explosives that was not detonated
in the 6/22/93 shot, why didn't you follow up on those
four bags, the bags that was (sic) not detonated.
Q: And did he respond?
A: He did.
Q: And what did he say?
A: He shrugged his shoulders and said, I forgot.
Q: And what did Mr. Goldsmith do at that point?
A: Dropped his pencil. He was sitting directly across
from him. (Tr.I at 586-87).
Fowler also testified that Quarry Superintendent Larry Beede
apparently was also aware, prior to Bassett=s death, that pyrodex
misfires had been found. (Tr.I at 601-04). Neither Kelty,
Reynolds, Goldsmith nor Beede were called by ROA as witnesses.
Murray testified but he did not rebut Fowler's testimony
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concerning Fowler's June 1 Kelty interview. While the evidence
concerning the washing of holes is equivocal, ROA presented no
evidence of any significant efforts to find additional misfires,
such as probing under caprock, following the discovery of the
June 22, 1993, misfires. However, Murray testified ROA was able
to find a total of 40 pyrodex misfires shortly after Bassett's
May 20, 1994, death. (Tr.II at 526, 562).
The temperature of a channel burner torch is approximately
4,200 to 4,400 degrees Fahrenheit. (Tr.I at 208). The ignition
temperature of pyrodex is between 750 and 800 degrees Fahrenheit.
(Tr.I at 187). On May 22, 1994, Bassett was channel burning a
bench in the U-13 Section. The bench was approximately 30 feet
wide by 35 feet in depth by 18 feet in height. Channels had been
cut on the east and west sides of the bench. The channel on the
north (rear) side of the bench had been cut approximately 16 feet
in length. At approximately 10:58 a.m. witnesses stated Bassett
was thrown approximately 10 feet in the air and killed instantly
when his channel burner apparently intersected pyrodex bags at
the rear of the bench approximately 16 feet from the northwest
corner. (Tr.I at 624, 625). ROA stipulated, for the purposes of
these proceedings, "that its more likely than not that the cause
of the fatality was ignition of Pyrodex bag(s) causing a fatal
injury to Mr. Bassett." (Tr.I at 428). In any event, as noted
below, Bassett=s torch passed within two feet, but missed, two
misfired bags of pyrodex just minutes before he was killed.
As indicated, MSHA Investigator Luzik determined Bassett's
torch passed within two feet of two bags of unexploded pyrodex
encapsulated in caprock only minutes before Bassett's torch tip
came within one foot of the fatal explosive material. (Tr.I at
433-34, 541, 688). The proximity of the channel burned by
Bassett to these unexploded bags is clearly depicted in
photographs proffered by the Secretary. (See Ex. R5-C, R5-D,
and R5-E). There were three unloaded holes between the
fatal lift hole and the two misfired bags, as depicted in
photograph R5-D. At trial, Luzik explained he arbitrarily
labeled these lift holes as Hole Nos. 1 through 5 in photograph
R5-D, with the fatal hole as Hole No. 1, intervening unloaded
holes as Hole Nos. 2, 3 and 4, and, the hole containing the two
misfires as Hole No. 5.3 (Tr.I at 455-56, 681). Luzik testified
3
ROA misstates Luzik=s testimony Athat he found pyrodex in
the fifth hole at the accident site.@ (ROA br. at p.14). The
rear channel had been burned 16 feet when Bassett was killed.
Luzik testified he arbitrarily labeled the fatal blast lift
hole as Hole No. 1, followed by three intervening unloaded
Hole Nos. 2, 3 and 4, and two misfires in the next loaded hole
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the June 22, 1993, blasting report was the only report that
corresponded to the three unloaded holes between every loaded
hole loading pattern found at the death scene. (Tr.I at 688-
89). The two bags found in the rear of the hole also conformed
to the June 22, 1993, loading pattern. (Ex. R-7).
Further investigation of the fatal U-13 bench site revealed
14 additional bags of unexploded pyrodex comprised of two bags in
the rear of each of seven lift holes. It is undisputed that
several of the seven misfired holes had three unloaded holes
between them entirely consistent with the June 22, 1993, loading
pattern. (See Ex. R-10). These 14 misfires, when combined with
the four misfires found by Batchelder, the two misfires
discovered by Luzik near the explosion, and the two bags believed
to have caused the explosion, resulted in a total of 22 misfires.
Thus, the 22 misfires of the 84 pyrodex bags loaded in the
June 22, 1993, shot represent a misfire rate of 26 percent.
Further Findings of Fact
and Conclusions of Law
a. Pyrodex Misfires are Governed
by Section 56, Subpart E
As a threshold matter, in an exercise in futility, ROA
argues that pyrodex is not an explosive regulated by Part 56,
Subpart E, because it is a propellant that ignites or
deflagrates, as distinguished from blasting agents such as black
powder, or seismic cord, that detonate. In this regard ROA
relies on the definition of "misfire" in section 56.6000:
The complete or partial failure of explosive material
to detonate as planned. The term also is used to
labeled Hole No. 5. This is the equivalent of Hole No. 16 being
loaded, with intervening Holes Nos. 17, 18 and 19 unloaded, and
Hole No. 20 the next loaded hole, which is consistent with the
June 22, 1993, loading pattern.
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describe the explosive material itself that has failed
to detonate (emphasis added).
The plain language of the definition section of 56.6000
defines "an explosive" or "explosive material" as any substance
classified as an explosive by the Department of Transportation
(DOT) in DOT regulations 49 C.F.R. '' 173.53, 173.88 and 173.100.
Section 173.88 of the DOT regulations defines liquid or solid
propellant explosives that function by rapid combustion rather
than detonation as Class B Explosives. Thus, it is indisputable
that propellants such as pyrodex are "explosives" and "explosive
material" under section 56.6000.
Regulations and statutes must be interpreted to harmonize
rather than conflict with their intended purpose. See Emery
Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414
(10th Cir. 1984). Here, it is obvious the word "misfire" in
section 56.6000 refers to any explosive material that has failed
to perform and thereby remains hazardous. Consequently, this
provision must reasonably be interpreted to include a misfire of
any explosive that has failed to detonate or ignite. Thus, it is
clear the 40 bags of unignited pyrodex found at the Smith and
Adams Quarries immediately after Bassett's death are properly
characterized as section 56.6000 misfires. Any other
interpretation is ludicrous for it would exempt pyrodex misfires
from Part 56 even though pyrodex is a Part 56 explosive.
b. The June 22, 1993, Blast Site
is the Site of the Fatality
The appearance of a quarry changes as benches are removed
and quarrying progresses to lower levels. Therefore, ROA
contends Ait [is] difficult to determine each location where
pyrodex had been used and to correlate that location with a
written shot report.@ (Ex. C-10 at p.3). Thus, ROA argues that
the Secretary has not established that the June 22, 1993, pyrodex
blast was the site of Bassett's fatal accident.4 While, as
4
ROA, in its brief, at p.3, n.6, citing Tr.II at 308-310,
alleges it was denied due process because the Court placed the
burden on ROA to demonstrate the June 22, 1993, pyrodex shot was
not the site of the fatal accident. A fair reading of these
transcript pages reflects that, given the overwhelming evidence
presented by the Secretary demonstrating the June 22, 1993,
pyrodex shot as the site of Bassett=s fatality, the Court ruled
the burden would shift to ROA to show where the accident
occurred, particularly if ROA, despite its previous admissions,
was now relying on purported blasting reports that no longer
14
Page 15
discussed below, the Secretary has satisfied his burden of proof
that June 22, 1993, misfires were the proximate cause of
Bassett's death, resolution of this issue is not material to the
disposition of important issues in this case, such as the
adequacy of ROA's efforts to find and remove misfires. For if
ROA had exercised reasonable prudence following the discovery of
four misfires shortly after the last documented Section U-13
pyrodex shot on June 22, 1993, regardless of whether this
blast was the site of Bassett=s fatality one year later, at
least 22 misfires would have been found. Discovery of these
22 misfires would have alerted ROA, given the potential use of
torches in a virtual mine field, to thoroughly inspect the Smith
and Adams Quarries for the additional 18 misfires that were
found. In so doing, Bassett would probably be alive today.
Turning to the issue of the accident site location, the
June 22, 1993, blasting report conclusively establishes that
Bassett was killed by a June 22, 1993, misfire. At the outset,
this conclusion is consistent with ROA's own initial accident
investigation. (See R-8). However, in an effort to refute its
own initial accident findings to minimize the significance of the
discovered misfires, ROA now attempts to change the facts by
portraying the plain meaning of the l-4-8-12 loading pattern on
the June 22, 1993, blasting report as indicative of a 1-4-8-12-
15-19-23-27-30-etc., loading pattern (repeating the pattern of
only two unloaded holes between Hole Nos. 1 and 4). (See Tr.I at
1050-1051, 1057).
ROA's interpretation of the June 22, 1993, loading pattern
is frivolous because: (1) ROA's claim was rejected by
Investigators Luzik, Fowler and Constant, who concluded, based on
information provided by ROA, that the June 22, 1993, blasting
report established loaded holes 16-20-24-etc., followed loaded
hole 12 (see, e.g., Tr.II at 105-07); (2) ROA's purported
irregular loading pattern of alternating configurations of two or
three unloaded holes defeats the purpose of pyrodex's intended
goal of creating even splitting and avoiding radial cracking;
(3) ROA's claim of different numbers of unloaded holes at the
same blast site is inconsistent with all other blast reports
which show a constant number of unloaded holes between loaded
holes at each pyrodex shot (Ex. R-7); (4) ROA's purported loading
pattern as illustrated in Ex. R-10A results in Hole No. 75,
exist. It is fundamental that the burden to rebut shifts to the
operator when the Secretary presents prima facie evidence.
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Page 16
rather than Hole No. 80, as the last loaded hole; and (5) ROA's
alleged exculpatory loading pattern is belied by ROA's own
May 25, 1994, initial accident report wherein it concluded
that,"[the fatal] undetonated explosive material must have been
remaining from [the] lift blast conducted in June of 1993 ...."
(Ex R-8, p.2).
As if this were not enough, the 14 bags found at the rear
of seven different lift holes at the "death bench" included
several loaded holes separated by three unloaded holes, which
is entirely consistent with the June 22, 1993, loading pattern
and inconsistent with all other blasting reports. (See Ex. R-10;
See also n.4, supra). In this regard, Murray could not explain
why Kelty, who supervised the loading of the June 22, 1993, blast
site, would draw the diagram, admitted as Ex. R-10, reflecting a
June 22 loading pattern of every forth hole at the fatal accident
site.5 (See Ex. R-10; Tr.II 663-66). Thus, the purported
loading pattern advanced by ROA at trial is insupportable as it
is inconsistent with all of the information and documentation
concerning the June 22, 1993, loading pattern provided to MSHA
officials by ROA during the course of the accident investigation.
ROA's assertion that the pressure of the explosion in each
lift hole makes it difficult to determine the original location
of misfired bags found at the rear of lift holes is unconvincing.
Since the pyrodex bags are spaced to ignite in sequence in
extremely small lift holes approximately 1-7/8 inches in
diameter, bags found at the rear of holes must have been loaded
the furthest distance from the mouth of the lift hole.
Therefore, the sets of two bags found at the rear of eight lift
holes at the accident site (seven lift holes plus the presumed
ignition of two bags at the blast lift hole) are consistent with
the June 22, 1993, loading pattern.
5
Ex. R-10 is a diagram prepared by Kelty depicting the
accident bench as the June 22, 1993, blast site showing the
location of the 14 misfired pyrodex bags and a loading pattern of
every fourth hole corresponding to "[the] holes loaded in 6/93."
This diagram was given to Inspector Fowler by ROA Engineer
Goldsmith who obtained it from Murray. (Tr.I at 827-28). This
exhibit was marked for identification on January 12, 1995, at
which time ROA's counsel requested postponement of admission
until Murray could authenticate the document. (Tr.I at 829-30).
Murray authenticated the exhibit on April 27, 1995. (Tr.II 656-
57, 663-66). However, Ex. R-10 was never formally admitted.
16
Page 17
ROA=s contention that the bags discovered by Batchelder were
in intact lift holes indicating underbreak (lift with intact lift
holes) that was not present at the accident site is equally
unconvincing. Luzik=s accident scene photographs depict pyrodex
concealed under caprock. Given the 40 misfires found after the
fatal accident, it is apparent that many of the misfires remained
in intact lift holes on the surface. ROA=s assertion that the
entire June 22, 1993, bench lifted with intact lift holes is
speculative and unsupported by the facts.
Finally, an admission is any oral or written statement,
or conduct, of a party, or his representative, which is
inconsistent with respect to the claim of that party with
respect to some fact relevant to the issues at trial.
Jerome Prince, Richardson On Evidence, ' 218 (10th ed. 1973).
Admissions are entitled to great weight if they were made
understandably and deliberately; if they are of pure fact within
the knowledge of the party; if they were made under conditions
and circumstances conducive to veracity; and if they are not
overborne by other facts in evidence. Id. at ' 229.
ROA's May 25, 1994, accident report finding that Bassett's
fatality occurred at the site of the June 22, 1993, misfires is a
probative admission worthy of great weight. This finding was
based on ROA's own blasting reports as well as facts personally
known to ROA blasting personnel. This finding is presumptively
truthful because ROA would have no reason to lie given this
admission's damaging nature. As a final matter, this admission
is supported by the accident investigators' observations of the
two misfires near Bassett's body as well as the 14 additional
misfires subsequently found by ROA nearby in seven lift holes.
ROA now seeks to distance itself from the admissions made in
its initial May 25, 1994, accident report. Thus, ROA has issued
a Arevised@ February 17, 1995, accident report in which ROA
attempts to move the fatal accident site from the June 22, 1993,
blast location to some other unspecified location in the U-13
section of the Smith Quarry, based on blasting reports that no
longer exist for "possible pyrodex shots" that might have
occurred. (Ex. C-10). ROA's revised accident report is
self-serving, speculative, undocumented, and of little probative
value. (See Exs. R-8, C-10 at p.4; and n.4, supra). It is also
noteworthy this revised accident report was first provided to
MSHA on February 27, 1995, more than one month after the initial
trial phase in these proceedings. (Tr. 561-62).
17
Page 18
While I am mindful that MSHA=s investigation revealed the
accident bench is 10 feet shorter in width than the June 22,
1993, bench, the accident bench is only two feet shorter,
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Page 19
35 feet as compared to 37 feet, in depth. (Tr.I at 685-87).
With respect to the relatively small difference in depth, Murray
conceded on cross-examination the dimensions of benches change
slightly with depth. (See Ex. R-6, p.3; Tr.II at 566). With
respect to the 10 foot variation in width, it must be noted that
the MSHA investigators had no reason to take precise measurements
as ROA officials Kelty, Murray, and Goldsmith, as well as union
representative Price Lewis, had all agreed the fatal site was the
June 22, 1993, blast. (See, e.g., Tr.I at 816-19). Therefore,
the apparent variation in bench width is far outweighed by the
other evidence of record. Thus, the Secretary has established
the June 22, 1993, blast site was the scene of Bassett's May 20,
1994, fatality. (See Ex. R-8, p.2).
c. The Applicable Significant and Substantial
and Unwarrantable Failure Standards
A violation is properly designated as significant and
substantial if there is Aa reasonable likelihood that the hazard
contributed to will result in an event in which there is
[a serious] injury.@ U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). In addressing the significant and
substantial question, the Commission has noted the likelihood of
injury must be evaluated in the context of an individual=s
continued exposure during the course of continued normal mining
operations to the hazard created by the violation. Halfway,
Inc., 8 FMSHRC 8, 12 (August 1986); U.S. Steel Mining Co.,
7 FMSHRC 1125, 1130 (August 1985); U.S. Steel Mining Company,
6 FMSHRC 1573, 1574 (July 1984).
Here, continued normal mining operations involved the
routine channel burning process. It is evident, as illustrated
by the tragic events of this case, that the hazard contributed to
by the alleged violations, i.e., a flame in close proximity to
misfires, resulted in a fatal event, i.e., an explosion.
Consequently, the alleged violations in these proceedings, if
established by the Secretary, were properly characterized as
significant and substantial in nature.
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Page 20
Unwarrantable failure is "aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation to
a violation of the Act." Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987); Secretary of Labor v. Rushton Mining Company,
10 FMSHRC 249 (March 1988). In distinguishing aggravated conduct
from ordinary negligence, in Youghiogheny & Ohio the Commission
stated:
We stated that whereas [ordinary] negligence is conduct
that is >inadvertent,= >thoughtless,= or >inattentive,=
unwarrantable conduct is conduct that is described as
>not justifiable= or >inexcusable.= Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
9 FMSHRC at 2010.
Ultimate Findings and Conclusions
In addressing the matters in issue, there is one relevant
and crucial fact concerning the quarry process. Blasting
material is always placed in or near the first and last lift
hole, as well as near the rear of all loaded lift holes, to
ensure separation of the bench from the granite formation. The
channel burner operator tracks the placement of the previously
positioned blasting material when he torches the sides and rear
of the next lower bench. Consequently, it is of paramount
importance to make every reasonable effort to discover and remove
all potential misfires in order to minimize, if not avoid, the
catastrophic events that occurred in this case. If the likelihood
of misfired pyrodex was apparent, but overlooked or ignored, the
Secretary must prevail.
ROA, in its brief, argues that negligence is not relevant to
the question of fact of the violation. Therefore, ROA asserts
Asubstantial errors of law@ were committed when the Court stated
at trial that a fundamental issue in these proceedings was
whether ROA knew or should have known misfires were present at
the accident site.6 (ROA br. at p.8, n.2). ROA misses the
6
ROA also contends the Court interfered with its right to
present its case because the Court refused to allow Arelevant
cross-examination intended to rebut MSHA=s case.@ (ROA br. at
p.8, n.2). While the extensive eight day transcript in this
proceeding reflects ROA was given every opportunity to present
its case, this allegation must be briefly addressed. As stated
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Page 21
point. Although operators are strictly liable for their
violative conduct, the requisite precautions necessary to satisfy
the mandatory safety standards pertaining to post-blast hazards
are dependent upon whether there were any signs of potential
misfires at the blast site. ROA=s apparent failure to take any
meaningful action to find additional misfires after four misfires
were discovered is material to the fact of occurrence of each of
the cited standards, i.e., inadequate examination for misfires,
resumption of work in a blast site, open flames near explosive
material, and, inadequate training.
a. Citation No. 4282251
30 C.F.R. ' 56.6311(b)
As a result of MSHA's accident investigation, ROA was
issued 104(d)(1) Citation No. 4282251 for an alleged violation
of the mandatory safety standard in section 56.6311(b), 30 C.F.R.
' 56.6311(b). Section 56.6311 provides:
' 56.6311 Handling of misfires
(a) Faces and muck piles shall be examined for misfires
after each blasting operation.
(b) Only work necessary to remove a misfire and protect
the safety of miners engaged in the removal shall be
on the record, ROA's right to present its case must be balanced
by the Court=s responsibility to regulate the course of the
hearing under Commission Rule 55, 29 C.F.R. ' 2700.55, in order
to ensure a fair and accurate record. (See Tr.I at 970-75; see
also Tr.I at 963, Tr.II at 247). In this regard, the Court
stated, although it "repeatedly permitted the [contestant] to
pursue lines of questioning [it] deem[ed] to be irrelevant, there
comes a time when the Court must limit the cross-examination to
issues that are pertinent to this proceeding.@ (Tr.I at 972-73).
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Page 22
permitted in the affected area until the misfire is
disposed of in a safe manner.
(c) When a misfire cannot be disposed of safely, each
approach to the area affected by the misfire shall be
posted with a warning sign at a conspicuous location to
prohibit entry, and the condition shall be reported
immediately to mine management.
(d) Misfires occurring during the shift shall be
reported to mine management not later than the end of
the shift.
ROA argues that it properly disposed of the four misfired
bags of pyrodex found by Batchelder and noted by Kelty on the
June 22, 1993, blasting report. Consequently, ROA asserts the
Secretary has failed to demonstrate a violation of this cited
mandatory standard. However, this mandatory standard, when read
in its entirety and in conjunction with subsection (a), requires
adequate post-blast inspection procedures for the purpose of
finding and disposing of misfires. Surely, a perfunctory
post-blast inspection that results in the discovery and proper
disposal of one misfire, while overlooking numerous other
misfires, would not satisfy this mandatory safety standard.
In applying the provisions of section 56.6311, it is
important to note the Commission has recognized that mandatory
safety standards must be broadly adaptable to a myriad
of circumstances. Kerr McGee Corp., 3 FMSHRC 2496, 2497
(November 1981). Consequently, resolution of the fact of
occurrence issue requires an analysis of whether an adequate
post-blast granite quarry inspection occurred. Thus, the
adequacy of ROA's efforts to find and remove misfires at the
June 22, 1993, shot must be viewed in the context of
distinguishing granite quarry operations from blasts at muck
piles or blasts for the purpose of extracting crushed stone.
(Tr.II at 15-16).
ROA's assertion that the plain meaning of section 56.6306(g)
"clearly requires a single post blast examination" for granite
quarry operations is mindless, and, inconsistent with ROA's
proposed findings and conclusions. (ROA br. at 19). Granite
quarrying involves the removal, during an approximate ten day
period, of multi-ton benches with potential explosives concealed
in the middle and rear of lift holes. Even ROA, in its findings
and conclusions, admits the post-blast inspection period
consists of a series of examinations by powdermen and quarrymen
for misfires, just as they examined the face, as new stone is
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exposed after each line in the bench is toppled and removed
during the ten day bench removal period. (See ROA Proposed
Findings at p.4, Finding Nos. 24, 30, and 31; Tr.II at 15-16).
Thus, Batchelder's discovery, seven to ten days after the
June 22, 1993, shot, when the face of the bench was retreating as
each slab line was toppled by the front-end loader and hoisted by
the derrick operator, occurred during the post-blast inspection
period.
Having determined ROA had an obligation to seek and remove
misfires throughout the bench removal process, we turn to the
dispositive question of whether ROA knew or should have known,
through the exercise of reasonable prudence, of the undisputed
systematic incomplete ignition (40 unexploded bags) of its non-
routine, experimental pyrodex shots performed from February
through July 1993.7 Assuming, arguendo, that ROA had no cause
for concern after viewing and examining the pyrodex blasted
benches prior to Batchelder's discovery, ROA certainly was on
notice one week after the June 22, 1993, blast when four pyrodex
misfires were noted by Kelty.
To determine the significance of these four misfires, it is
helpful to revisit the pyrodex blasting procedures. These
procedures called for sequential ignition of spaced bags of
pyrodex, without any connecting ignition sources, from bags with
electric squibs placed in the mouth of lift holes. Batchelder,
in a written statement, reported he did not find any electric
matches or squibs in the bags he discovered during the removal of
the June 22, 1993, bench. Thus, it is reasonable to assume that
these bags were not front lift hole bags. Therefore, they could
have come from the center of the hole if they were from four
separate holes. This would reflect eight additional misfires
(two bags in the rear of each of these four holes).
Alternatively, the four discovered bags could have come from
the rear of two holes. The failure of these two pair of rear
bags to be ignited by the middle bags should have alerted a
7
ROA objects to the characterization of these five
documented (by blasting reports) pyrodex shots as non-routine or
experimental. However, these blasts are the only documented
production uses of pyrodex by ROA in its 90 year history. (See
Tr.I at 592-94).
23
Page 24
reasonably prudent person familiar with pyrodex blasting of a
potential for systematic failure of rear bag ignition as well as
a possible failure of middle bag ignition.
Thus, it is clear that the discovery of four pyrodex
misfires either ensured the existence of additional misfires, or,
at the very least, was a significant indication of the potential
for a systematic failure of rear bag ignition. With respect to
washing of lift holes, ROA failed to call Kelty or Reynolds to
testify regarding whether they had washed down the lift holes.
In any event, even ROA expert witness Chapman Young opined that
washing holes after bags had been found is not an adequate
response when misfires are suspected but the exact location of
the misfires is unknown. In such instances, Young stated it is
prudent to "probe [the holes] in some fashion to investigate
them" if the misfire locations are unknown. (Tr.II 972-73).
In the absence of any meaningful efforts to search for and
remove additional misfires prior to Bassett's death, ROA failed
to perform the "work necessary to remove misfires" as required by
section 56.6311(b). The Secretary, therefore, has established
the fact of occurrence of the cited significant and substantial
violation.
With respect to the question of unwarrantable failure, it is
important to note any potential misfires would not harmlessly
remain under tons of rock. On the contrary, these misfires
would be exposed on the surface as the bench is removed.
Significantly, 40 misfired bags were found after Bassett's death.
Kelty's failure to take any meaningful action to probe caprock
in search of the apparent likelihood of additional misfires,
particularly in view of the channel burning quarrying process,
evidenced a callous disregard for the hazards associated
with misfires in the presence torch flames. Such conduct is
imputable to ROA and clearly constitutes the requisite aggravated
conduct to sustain the Secretary's unwarrantable failure charge.
See Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-98
(February 1991).
Finally, ROA's attempt to mitigate its negligence by
asserting Bassett did not adequately clean and check the vicinity
of the accident prior to channel burning is unavailing. (See,
e.g., Tr.II at 893-94). In this regard, the Commission has
stated that a requirement that employees work cautiously Adoes
not lessen the responsibility of operators under the Mine Act, to
prevent unsafe conditions.@ Eagle Nest Incorporated, 14 FMSHRC
1119 (July 1992).
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Page 25
Accordingly, 104(d)(1) Citation No. 4282251 is affirmed.
Given the large size of the operator, the extremely high degree
of negligence, the grave consequences of the violation, and, the
absence of any significant mitigating factors, the maximum civil
penalty of $50,000 is assessed for Citation No. 4282251.
b. Order No. 4282255
30 C.F.R. ' 56.6306(b)
The accident investigation resulted in the issuance
of 104(d)(1) Order No. 4282255 for an alleged significant
and substantial violation of section 56.6306(g), 30 C.F.R.
' 56.6306(g). The effective date of this mandatory standard was
January 31, 1994. 58 Fed. Reg. 69596 (1993). Section
56.6306(g) provides:
' 56.6306 Loading and blasting
* * * * * *
(g) No work shall resume in the blast area until a
post-blast examination addressing potential blast-
related hazards has been conducted by a person having
abilities and experience that fully qualify the person
to perform the duty assigned (emphasis added).
The violation of section 56.6311 for failing to adequately
perform a post-blast inspection and remove misfires is
distinguishable from a violation of 56.6306(g). Section 56.6311
concerns creating a hazardous condition by failing to adequately
search for and remove misfires. Section 56.6306(g) concerns
exposing personnel to the hazardous condition created by the
violation of 56.6311. Bassett would not have died had he not
resumed work on May 20, 1994, at the June 22, 1993, U-13 blast
site.
ROA argues that Order No. 4282255 must be vacated because it
is an impermissible retroactive application of a standard that
became effective at least seven months after ROA's last pyrodex
shot in July 1993. In response, the Secretary asserts the cited
violation occurred on May 20, 1994, when Bassett was assigned to
continue channel burning operations in the absence of an adequate
post-blast examination that addressed potential blasting
hazards.
The essence of ROA's contention is that the resumption of
work prohibition in potentially unsafe blasting areas does not
apply to areas that were blasted prior to January, 31, 1994, the
25
Page 26
effective date of section 56.6306. The limited applicability of
this important mandatory standard would result in the anomalous
situation where a channel burner operator=s life could be put at
risk with impunity simply because of the date of the hazardous
misfire. Such an interpretation cannot be reconciled with the
intent of the mandatory safety standard.
In addition, ROA argues that it already resumed work at the
blast site when it continued to quarry the June 22, 1993, bench.
However, the concept of resumption of work is a continuing
process. An operator cannot escape liability under section
56.6306(g) simply because it "resumed work" prior to the
implementation of this standard.
Nor is ROA prejudiced by the obligation to ensure a safe
workplace, particularly one in which torches are used near
potential misfires. Rather, ROA is responsible for knowing about
and implementing this mandatory safety precaution as of its
effective date on January 31, 1994. Thus, when ROA assigned
Bassett to channel burn on May 20, 1994, it did so at its own
risk. Accordingly, 104(d)(1) Order No. 4282255 is affirmed.
In view of the extremely high negligence and serious gravity
associated with this violation as discussed above, a civil
penalty of $40,000 is imposed for violation of this mandatory
safety standard.
c. Order No. 4282256
30 C.F.R. ' 56.6904
As a result of Bassett's fatality, ROA was cited for
violation of section 56.6904, 30 C.F.R. ' 56.6904. This safety
standard provides:
' 56.6904 Smoke and open flames
Smoking and use of open flames shall not be permitted
within 50 feet of explosive material except when
separated by permanent noncombustible barriers. This
standard does not apply to devices designed to ignite
safety fuse or to heating devices which do not create a
fire or explosion hazard.
ROA argues the application of this standard requires actual
knowledge of both the location and existence of explosive
material. (ROA br. at 26) It is clear this mandatory standard
requires actual knowledge of the location of the explosive
material because it prohibits conduct, i.e., use of an open
flame, within a defined 50 foot area. It is also clear that ROA
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Page 27
had actual knowledge of the exact location of the pyrodex
explosive material by lift hole number, and placement location
within each loaded lift hole. In fact, ROA's blasting reports
were "road maps" documenting the location of each pyrodex bag.
Finally, it is evident that ROA had actual knowledge that
the channel burner operator would be burning in close proximity
to the area where pyrodex bags had been placed at the rear of
lift holes. In fact, ROA's own witness, channel burner operator
David Gomo, admitted the greatest danger is channel burning the
rear channel, which intersects the previously loaded lift holes,
because pyrodex bags were always placed near the back of these
holes to ensure bench separation in the rear. (Tr.II at 832-34).
Having actual knowledge of the placement of this explosive
material and the fact that a torch flame would ultimately be used
within several feet of its placement, ROA now seeks to escape
liability because it ignored the signs of a potential systematic
ignition failure in the rear of the lift holes. However, the
misfires, discovered by Batchelder and noted by Kelty, provided
ROA with constructive knowledge of the likelihood of the
continued existence of the loaded explosive material. Thus,
ROA's actual knowledge of the location of the subject explosives
and the use of torch flames nearby, coupled with its constructive
knowledge of the explosive's continued existence provides a basis
for liability under section 56.6904.
Simply put, having closed its eyes to this potentially
extremely hazardous condition, ROA cannot hide behind its lack of
awareness. Accordingly, Order No. 4282256 is affirmed. The
extremely high negligence and serious gravity associated with
this violation warrants the imposition of a $40,000 civil
penalty.
d. Order No. 4282257
30 C.F.R. ' 56.6300(a)
Finally, ROA was cited for a violation of the mandatory
standard in section 56.6300(a), 30 C.F.R. ' 56.6300(a), which
provides:
' 56.6300(a) Control of blasting operations
(a) Only persons trained and experienced in
the handling and use of explosive material
shall direct blasting operations and related
activities.
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Page 28
(b) Trainees and inexperienced persons shall
work only in the immediate presence of
persons trained and experienced in the
handling and use of explosive material
(emphasis added).
As a threshold matter, ROA seeks to have it both ways. On
the one hand, ROA argues that propellant explosives such as
pyrodex should not be governed by Part 56 because they are
different from detonating explosives. On the other hand, ROA
asserts Kelty and Reynolds= experience with detonating explosives
qualifies them to use propellant explosives. Obviously, the
Aexperienced in the handling and use of explosive material@
language contained in section 56.6000(a) must not be broadly
construed. Rather, the standard requires blasting personnel to
be trained and experienced in the particular explosive being
used. One need look no further than ROA=s 26 percent June 22,
1993, misfire rate to conclude that Kelty and Reynolds were not
properly trained in the use of pyrodex.
Significantly, in addition to requiring expertise in
Ablasting operations@, the 56.6000(a) standard also requires
training in Arelated activities@ such as post-blast inspections
and misfire removal. Kelty=s failure to take any meaningful
action to determine if other misfires occurred after the four
bags were found by Batchelder, given the sequential ignition
process, alone establishes inadequate training in Arelated@ post-
blast activities. Consequently, the evidence clearly supports
the fact of occurrence of a significant and substantial violation
of the cited mandatory safety standard.
With respect to whether this training violation is
attributable to ROA=s unwarrantable failure, ROA blames its
numerous misfires on the instructions provided to it by Barrett
of the Hodgdon Powder Company during his four test shots in 1986
and one test shot in 1987. For example, ROA geophysics expert,
Chapman Young, maintains Barrett=s spaced loading procedure was
flawed because microscopic moisture in a lift hole would prevent
sequential ignition. Consequently, ROA argues Barrett did not
adequately warn it about the effects of moisture on the ignition
process. In contrast, Barrett attributes the systematic ignition
failure to ROA=s improper use of stemming to pressurize the
holes.
Resolution of whether Barrett=s pyrodex loading procedure
was flawed is unnecessary for disposition of the unwarrantable
failure issue. Regardless of the efficacy of Barrett=s
instructions, there is evidence that Barrett=s instructions were
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not followed. Inspector Fowler testified that he questioned both
Kelty and Reynolds in the presence of Murray about whether the
June 22, 1993, lift holes were pressurized. Neither Kelty nor
Reynolds recalled pressurizing the holes. (Tr.I at 588-89).
Moreover, it is not clear whether Kelty or Reynolds were
trained by Barrett. Barrett did not recall ever meeting them.
Neither Kelty nor Reynolds testified. What is clear is that
ROA personnel received no meaningful training in the use of
pyrodex during the approximate six year period between Barrett=s
last 1987 test shot and ROA=s use of pyrodex beginning in
February 1993. ROA seeks to minimize this six year hiatus in
pyrodex training as unnecessary Arefresher training.@ (Tr.II at
346; ROA br. at p.15). I view this six year lack of interim
training as evidence of an inexcusable and cavalier use of
pyrodex explosives by inexperienced and inadequately trained
individuals.
Finally, Kelty=s failure to order any meaningful searches
for additional misfires after four pyrodex bags were found during
the bench removal process, given the separated charge sequential
ignition blasting procedure, is further evidence of a grievous
lack of training justifying the Secretary=s unwarrantable
failure charge. Significantly, despite the efficacy of Barrett=s
loading procedure, Bassett=s death could have been prevented if
post-blast inspection procedures had been competently conducted.
Accordingly, 104(d)(1) Order No. 4282257 is affirmed. The
extremely high negligence exhibited by ROA=s failure to properly
train its blasting personnel in the use of pyrodex and the
significance of sequential misfires, as well as the serious
gravity that resulted from this lack of training, justifies the
imposition of the maximum statutory civil penalty of $50,000.
ORDER
In view of the above, the Secretary=s motion to vacate
104(d)(1) Order Nos. 4282252, 4282253, 4282254 and 4282258
IS GRANTED. Consequently, Rock of Age's contests in related
Docket Nos. YORK 94-77-RM, YORK 94-78-RM, YORK 94-79-RM and
YORK 94-83-RM, ARE GRANTED.
IT IS ORDERED that 104(d)(1) Citation No. 4282251, and,
104(d)(1) Order Nos. 4282255, 4282256 and 4282257 ARE AFFIRMED.
Consequently, Rock of Ages Corporation=s contests in related
Docket Nos. YORK 94-76-RM, YORK 94-80-RM, YORK 94-81-RM and
YORK 94-82-RM, ARE DENIED.
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IT IS FURTHER ORDERED that Rock of Ages Corporation pay a
total civil penalty of $180,000 within 30 days of the date of
this decision in satisfaction of the 104(d)(1) Citation and
Orders affirmed herein. Upon timely receipt of payment, the
civil penalty matter in Docket No. York 95-55-M IS DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W.,
Washington, D.C., 20037-1350 (Certified Mail)
M. Shane Edgington, Esq., Patton Boggs, L.L.P., 1660 Lincoln
Street, Suite 1975, Denver, CO 80264 (Certified Mail)
David L. Baskin, Esq., Office of the Solicitor, U.S. Department
of Labor, One Congress Street, 11th Floor, P.O. Box 8396,
Boston, MA 02114 (Certified Mail)
/rb
30
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