<DOC>
[DOCID: f:ct200130.wais]
THE DOE RUN COMPANY
CENT 2001-30-M
December 5, 2001
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                        December 5, 2001
SECRETARY OF LABOR,            : CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       : Docket No. CENT 2001-30-M
               Petitioner      : A.C. No. 23-01787-05549
          v.                   :
                               : West Fork Mine/Mill
THE DOE RUN COMPANY,           :
               Respondent      :
                             DECISION
Appearances: Gregory Tronson, Esq. and Lydia Tzagoloff, Esq.,
             Office of the Solicitor, U.S. Department of
             Labor, Denver, Colorado;
             R. Henry Moore, Esq., Buchanan Ingersoll,
             Pittsburgh, Pennsylvania.
Before: Judge Bulluck
     This case is before me upon Petition for Assessment of
Penalty filed by the Secretary of Labor, through her Mine Safety
and Health Administration ("MSHA"), against the Doe Run Company
("Doe Run"), pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977 ("the Act"), 30 U.S.C.  815(d).
The petition seeks a civil penalty of $25,000.00 for an alleged
violation of section 57.15005, 30 U.S.C.
 57.15005.
     A hearing was held in St. Louis, Missouri.  The parties'
Post Hearing Briefs are of record.  For the reasons set forth
below, the citation shall be AFFIRMED, as modified.
     I.  Stipulations
     1.  Doe Run operates the West Fork Mine, MSHA ID No. 23-
01787, an underground lead and zinc mine near Bunker, Missouri.
     2.  Doe Run and its mine are subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977 ("the Act"), 30
U.S.C.  801 et seq.
     3.  In the year 2000, Doe Run worked 1,719,972 hours and
West Fork worked 228,525 hours.  West Fork was a medium-sized
mine and Doe Run is a medium-sized operator.
     4.  In the 24 months prior to January 24, 2000, the West
Fork Mine had 28 assessed violations in 42 inspection days.
     5.  The presiding Administrative Law Judge has jurisdiction
over these proceedings, pursuant to Section 105 of the Act, 30
U.S.C.  815.
     6.  The parties stipulate to the authenticity of their
exhibits, but not to the relevance or truth of the matters
asserted therein.
     7.  Citation No. 7880464 was issued pursuant to Section
104(a) at Doe Run's West Fork Mine on January 24, 2000, alleging
a violation of 30 C.F.R.  57.15005.
     8.   Under the heading and caption "Condition or Practice"
the citation alleges as follows:
          A shaft maintenance man was fatally injured at
     this operation on October 18, 1999, when his lanyard
     snagged a bolt on a shaft guide fish plate.  The
     lanyard had not been attached to the hoist cable,
     instead it was left with both clips attached to the
     belt D-ring.  Standing on the guard elevated the worker
     above the handrail, allowing a 32 inch loop to overhang
     the handrail and hook the bolt on the skips ascent.
     9.  The citation was terminated on January 12, 2000, when a
newly redesigned cage was installed.
     10.  The subject citation was properly served by duly
authorized representatives of the Department of Labor upon agents
for Doe Run on the date and at the place indicated therein.
     11.  The subject citation may be admitted into evidence to
establish the issuance, but not for the truth of any statement
asserted therein.
     12.  Doe Run's mining operations affect interstate commerce.
     13.  Mining at the West Fork Mine was conducted by room and
pillar mining by a process of drilling and shooting the faces and
then loading the material into trucks for transport.
     14.  In 1998, the Doe Run Company took over the operation of
West Fork from Asarco Incorporated.
     15.  The mine was normally operated two, ten-hour shifts per
day, five days a week.  Total employment was 101 employees.  The
mine is no longer producing ore and no longer has a separate MSHA
ID number.
     16.  The ore body was drilled, blasted, loaded onto haul
trucks, and transported to the production shaft.
     17.  The ore was hoisted by skip to the surface where it was
crushed and conveyed to the mill.
     18.  This case arose out of an accident on October 18, 1999.
At about 9:30 a.m. on that day, James W. ("Billy") Vest, a shaft
maintenance repairman, was fatally injured while performing a
routine shaft inspection.
     19.  Mr. Vest was working with another employee, Willard
Cooper, another maintenance repairman.
     20.  The accident occurred during the weekly hoist and shaft
inspection that was typically performed on Monday mornings.
     21.  Mr. Vest and Mr. Cooper had already inspected the
service hoist first that morning and were in the process of
starting the inspection process of the production hoist and
shaft.
     22.  The inspection involves riding the work deck on top of
the production skip.
     23.  The work deck on top of the skip was provided with a
top handrail, midrail and 3 inch high toe board around the
perimeter of the work deck on all four sides.  The top handrail
was 40 inches above the deck floor and the midrail was 22 inches
above the work deck floor.  The top guide rollers projected above
the work deck floor and were guarded by expanded metal enclosures
26.5 inches high x 12 inches deep x 30 inches wide.  The work
deck was protected by a 54 x 53 inch bonnet installed at a height
of 93.5 inches above the deck floor.
     24.  The railings on the entrance side to the work deck were
removed immediately after the accident to provide better access
to provide assistance to Mr. Vest.  The photographs taken after
the accident do not show the two railings on one side of the work
deck but they were present at the time of the accident.
     25.  The shaft opening was guarded with a handrail and
provided with a gate for access onto the top of the skip.
Additionally, the collar level access was restricted by a fence
equipped with a gate.  The skip blocked the shaft when it was in
position at the collar level of the shaft.
     26.  Mr. Vest and Mr. Cooper positioned the production skip
at the shaft collar so they could step onto the work deck on top
of the skip.
     27.  Mr. Vest and Mr. Cooper had accessed the work deck on
top of the production skip.
     28.  Both Mr. Vest and Mr. Cooper were wearing safety belts
and lanyards when they got on the work deck.
     29.  Mr. Vest radioed Gary Huffman, hoistman, at
approximately 9:30 a.m. to raise the skip so he and Mr. Cooper
could inspect the ore chutes in the head frame.
     30.  Mr. Vest received internal injuries from the safety
belt and lanyard pulling him down against the handrail.
     31.  Mr. Vest had a total of 13 years and 9 months
experience, all at West Fork.  He had held the job of shaft
maintenance repairman for 2 years and 9 months.  He and Mr.
Cooper had received the required training, including task
training, in accordance with 30 C.F.R. Part 48.  He and Mr.
Cooper were experienced in the inspection of the hoist and shaft.
     32.  MSHA conducted an investigation with the assistance of
mine management and selected employees.
     33.  After the accident, MSHA did a thorough inspection of
the production hoist's electrical circuits and mechanical
components and they were functioning properly.  Tests were
performed on the limit switches, speed and over travel devices,
as well as the bell signal and all were functional and working
properly.
     II.  Factual Background
     On the morning of October 18, 1999, after completing a
visual inspection of the service hoist that transports miners
into and out of the underground levels of the mine, shaft
maintenance repairmen Billy Vest and Willard Cooper began a
weekly inspection of the production hoist and shaft (Tr. 24, 149-
50).  The production hoist moves ore from the mine to an above
ground, elevated chute, and then dumps it into a bin (Tr. 64-65,
176).  Inspection of the production hoist involves riding up to
the top of the head frame to the ore chutes, on the work deck
atop the production skip, for a maintenance check of the liners
and scrolls, and a check of the shaft guide rails and fishplates
during ascent and descent for build-up of calcium deposits,
cracks, loose bolts and any conditions that could be hazardous in
the shaft (Tr. 24, 34, 175-76, 202, 205-06).  There are actually
two skips, side-by-side, in the shaft; when one is up dumping ore
the other is underground for loading (Tr. 63-64).  After bringing
the north skip to the collar, Billy Vest stepped onto one of two
elevated wheel guard cages on the work deck, followed by Willard
Cooper who stepped onto the other (Tr 150-151, 158-59).  Both
miners had on safety belts with lanyards (Stip. 28; Tr. 150, 152,
156).  Cooper tied-off above the thimble on the rope, then turned
his back to Vest, facing the shaft rails for the visual
inspection on ascent (Tr. 156-59; Ex. P-2,   p. 5).  The last
time Cooper saw Vest before the accident, Vest was standing on
the wheel guard cage, facing the center hoist cable with his back
to the guide rails and his lanyard attached to the back of his
belt (Tr. 75-76, 159).  As soon as Cooper tied-on, at
approximately 9:30 a.m., Vest radioed to hoistman Gary
"Sugarbear" Huffman to take them up to the chutes, and the skip
began moving slowly (Stip. 29; Tr. 152, 159-60).  At the same
time, having not seen Vest tie-off, Cooper asked Vest what he was
hooked onto, and as he turned around to face Vest, Vest was
already caught  (Tr. 152, 160-61, 167).  Vest's lanyard, hanging
outside of the moving skip into the shaft, had snagged a bolt on
a fishplate and pulled him down against the railing (Tr. 25).
Cooper found Vest sitting on top of the wheel guard cage with his
left leg underneath him and the other on the work platform floor,
with his back against the top handrail (Tr. 16, 53, 152-55, 187).
Cooper immediately belled the skip to a stop, then down, until he
saw slack in Vest's belt (Tr. 153-54).  The skip had traveled
about a foot when the lanyard snagged the bolt, and an additional
two feet before it stopped (Tr. 25).  Cooper immediately released
Vest's belt and radioed Huffman for help (Tr. 155-56).  While
workers were administering first aid to Vest,      he commented,
"I killed myself," and ultimately died as a result of internal
injuries (Tr. 78, 165).
     MSHA Inspector Michael Davis arrived on-site on October 19th
and, along with MSHA Inspectors Robert Seelke and Vern Miller,
conducted an accident investigation.  On January 12, 2000, prior
to issuance of Citation No. 7880464 by Inspector Davis on January
24th , Doe Run abated the hazardous condition by redesigning the
cage, and the citation was terminated the same day it was issued
(Tr. 45, 77).  The work platform floor surrounding the rope
attachment and thimble was raised above the wheel guard cages to
increase the standing and work surface, and screening was
installed to prevent objects from extending beyond the cage (Tr.
191-92).  Citation No. 7880464 alleges that Doe Run's violation
of section 57.15005 was "significant and substantial" and the
result of the operator's moderate negligence.
     III.  Findings of Fact and Conclusions of Law
            A.  Fact of Violation
          30 C.F.R.  57.15005 provides, in pertinent part, that
"[s]afety belts and lines shall be worn when persons work where
there is danger of falling. . . ."   Like the surface companion
to the underground standard at issue herein, the mandate that
safety belts and lines   be worn under section 57.1005
necessitates that they be worn properly.  Mar-Land Industrial
Contractor, Inc., 14 FMSHRC 754, 757 (May 1992), citing Austin
Power, Inc., 9 FMSHRC 2015 (December 1987), aff'd 861 F.2d 99
(5th Cir. 1988).  Furthermore, the Commission has  held that
"[t]he fact that belts are not worn properly is a violation under
this standard for which the operator is liable irrespective of
employee misconduct."  Id. (citations  omitted).
     The parties have stipulated that safety belts and lanyards
were worn by Billy Vest and Willard Cooper when the accident
occurred (Stip. 28).  Doe Run has conceded that there was a
danger of falling from the wheel guard cages on the skip (Tr.
224-25, 239-40).  However, the company challenges that there was
a danger of falling from the work platform floor, where it
contends that Vest had been standing, because of the two-tiered
handrails surrounding the skip.  Moreover, Doe Run argues that
there was no violation because Vest did not actually fall.  Since
it is undisputed that there was a danger of falling from the
wheel guard cage, the issue, then, is whether that danger existed
from the work platform floor, if I find that Vest had been
standing there.  An actual fall need not have occurred for a
violation to be established.  Under applicable precedent, a
determination must be made as to whether a reasonably prudent
person familiar  with the mining industry and the protective
purposes of the standard would have recognized a danger of
falling under the circumstances in this case.  Ideal Cement Co.,
12 FMSHRC 2409, 2416 (November 1990); Lanham Coal Co., 13 FMSHRC
1341, 1343 (September 1991).
     Inspector Davis testified that he interviewed witnesses,
took measurements, photographs and made sketches of the accident
scene, compiled field notes, and concluded that Billy Vest's
death was caused by his failure to properly wear his fall
protection while riding the skip (Tr. 14-15, 18-19; Ex. P-1, P-2,
P-3).  Davis's conclusion was based, in part, on his findings
that the size of the skip's work platform floor restricted work
activity, and that Vest had been standing on one of the wheel
guard cages when his lanyard snagged the bolt (Tr. 22-23, 29, 31-
32).  Davis testified that, in positioning Vest on the wheel
guard cage, he considered the length of Vest's lanyard, the
location of the bolt, the amount of travel of the skip, Vest's
location after the accident, interview statements, and
particularly Willard Cooper's statement that Vest had been
standing on the cage (Tr. 25-26).  That position, he explained,
would have put the top handrail approximately 13 to 14 inches
above Vest's foot (midcalf) (Tr. 27, 71; Ex. P-2, p.6).  Finally,
Davis testified that, because the hoist is a moving conveyance,
the potential for falls always exists, irrespective of whether
workers stand on the floor or elevated above the handrails on the
wheel guard cages, due to unforseen jerks, sudden stops and
falling objects, as well as the leaning and moving required of
the workers in performance of their maintenance duties (Tr. 32-
34, 85).  In the instant case, he opined, had Vest's back not
slammed into the shaft guide rail, he would have been pulled from
the cage (Tr. 85-86). Therefore, he concluded, fall protection is
always required "[a]ny time that they step on top of that
conveyance" (Tr. 33-34).
     In addition to testifying that Billy Vest had stepped onto
the wheel guard cage just before the skip began its ascent,
Willard Cooper also maintained that, because the work platform
floor's  standing room allowance of  8  inches was "just too
tight to turn around," and because the floor was generally wet,
the maintenance crew always rode the skip standing on the cages
(Tr. 164, 166, 168, 172-73; see also Tr. 22-23, 32).  Myron "Rat"
Halbert, whom Vest had been training  to perform shaft
inspections, similarly testified that he and Vest had always
ridden on the wheel guard cages during entire inspections (Tr.
174, 178).
     Gharib Ibrahim, a civil engineer at MSHA's Bruceton Research
Center in Pittsburgh, Pennsylvania, assisted in determining Billy
Vest's position at the time of the accident, and testified as an
expert witness for the Secretary.  Ibrahim testified that he had
spoken with one of the investigators, reviewed the investigative
notes, sketches and photographs, and run a computer analysis of
the accident data (Tr. 94-95, 110).  The two possible scenarios
of where Vest had been standing, he explained, result in
different horizontal and vertical forces exerted by his body on
the top handrail: if he had been standing on the work platform
floor the force would be downward with at least 1/3 of that force
pushing outward, whereas standing on the guard cage would exert
downward force with outward force almost diminished to zero (Tr.
96, 98-99, 101-02, 103-06, 144).  Based on the downward
deflection of 10  inches and negligible outward deflection of
the top handrail, Ibrahim opined that Vest had been standing on
the wheel guard cage when the accident occurred (Tr. 97, 99-103,
120; Ex. 2, p.4; see Ex. 15).  Vest had not
been pulled out of the skip, he testified, because the shaft
guide rail provided a barrier (Tr. 119-20, 125).
     Doe Run's witnesses disagreed with Garhib Ibrahim's
conclusion as to Vest's placement on the skip.  Safety specialist
Owen Erickson opined, based on his own common sense, that no
matter where Vest had been standing, because he was not a
fixture, only vertical force would have been exerted on the
handrail by his body (Tr. 217-20).  Therefore, he reasoned, no
conclusion as to Vest's position could be drawn from the
defection of the top handrail  (Tr. 220).  Safety manager David
Brown testified that, in his opinion, more time had elapsed than
Cooper realized between Cooper's last view of Vest and when he
found him injured, and that Vest had probably stepped down from
the guard cage; otherwise, if he had been elevated on the cage,
he would have fallen down the shaft (Tr. 252-55, 266-67, 271,
279).  Neither Erickson nor Brown have any background or training
in engineering, and for that reason I give their opinions little
weight (Tr. 222, 266).
     I have considered the evidence in its entirety respecting
where Vest was situated when the accident occurred, including the
MSHA video simulating a similar type of accident  (Ex. R-1).
Based on credible evidence that Vest had last been seen standing
on the wheel guard cage, that he and other shaft maintenance
workers had routinely conducted shaft inspections riding the
cages, and Ibrahim's placement of Vest on the cage from an
engineering analysis, I find that Vest had been standing on the
cage when his lanyard snagged the fishplate bolt.  It is also my
finding that fall protection was required from all locations on
the skip, and that a reasonably prudent person would have
recognized the danger of falling for the reasons that Inspector
Davis enumerated--it is a moving conveyance that can become
unstable at any time, and the full range of maintenance duties
requires movement on the part of the workers.  As the Commission
noted, finding a violation of section 56.1005 applicable to
surface mines, where an employee had been standing on an 18 foot
ladder installing a light fixture without benefit of a safety
belt, "[e]ven a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental distractions,
which could result in a fall."  Great Western Electric Co.,
5 FMSHRC 840, 842 (May 1983).  Indeed, Doe Run recognizes the
danger of falling from moving hoists and provides safety belts at
no cost to its employees.  The company's Safety Rule Book, its
Handbook of Safe Practices, and its Preventive Maintenance Work
Order require use of safety belts and ropes during performance of
shaft inspection or work (Tr. 34-39, 212-15; Ex. P-5, p. 25, P-6,
p. 7).  Moreover, Doe Run's Part 48 annual training of its
employees and its weekly safety meetings address fall protection
(Tr. 188, 196, 227-33; Ex. R-4, R-5, R-6).  In this case, it is
clear that Vest's failure to wear his safety belt and lanyard
properly, as required, violated the standard.  As a consequence,
Doe Run is strictly liable.
           B.  Significant and Substantial
          Section 104(d) of the Act designates a violation
"significant and substantial" ("S&S") when it is "of such a
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine or safety hazard."  A
violation is properly designated S&S "if, based upon the
particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature."  Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set forth the four criteria that the Secretary must
establish in order to prove that a violation is S&S under
National Gypsum: 1) the underlying violation of a mandatory
safety standard; 2) a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the violation; 3) a
reasonable likelihood that the hazard contributed to will result
in an injury; and 4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.  See also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995);
Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir.
1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).  Evaluation of the third criterion, the
reasonable likelihood of injury, should be made in the context of
"continued mining operations."  U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984).   Moreover, resolution of whether a
violation is S&S must be based "on the particular facts
surrounding the violation."  Texasgulf, Inc., 10 FMSHRC 498, 501
(April 1998).
     Inspector Davis testified that he determined the violation
to be S&S because of the resultant fatality (Tr. 40).  The
violation involved in this case created the discrete hazard of
falling.  Tragically, Billy Vest suffered the ultimate
consequence of his failure to use fall protection properly and,
furthermore, there is convincing evidence that, had the shaft
guide      rail not acted as a barrier, he would have fallen down
the shaft.  Because his injuries were fatal,   I find that the
violation was S&S and very serious.
           C.  Penalty
     While the Secretary has proposed a penalty of $25,000.00,
the judge must independently determine the appropriate assessment
by proper consideration of the six penalty criteria set forth in
Section 110(i) of the Act, 30 U.S.C.  820(j).  See Sellersburg
Co., 5 FMSHRC 287, 291-92 (March 1993), aff'd, 763 F.2d 1147 (7th
Cir. 1984).
     Doe Run is a medium-sized operator, with no violations of
the same standard at issue in its two year history (Stips. 3, 4;
Ex. 12).  The proposed penalty will not affect Doe Run's ability
to remain in business (Resp. Br. at 8).
     The remaining criteria involve consideration of the gravity
of the violation and Doe  Run's negligence in causing it.  As
stated previously, I find the violation to be very serious.  My
assessment of Doe Run's negligence, however, differs
substantially from that of the Secretary.  Inspector Davis
testified that he found Doe Run moderately negligent because
there was no supervisory oversight of shaft inspections to ensure
use of fall protection, by spot-check observation or
accompaniment, despite the heightened potential for falls in this
line of work,   and also because the lanyard was overly long
(Tr. 40- 43, 44-45, 83).  Respecting the lanyard, other than the
bare allegation, no evidence has been presented to support this
conclusion.  On   the other hand, the record is replete with
evidence that Doe Run is a safety conscious operation, and that
use of fall protection had been "pounded" into the shaft
maintenance crew not only by management, but also by Billy Vest
as trainer of many junior workers, and that fall protection had
been properly and uniformly used at the mine (Tr. 55-56, 59-61,
77-78, 160-62, 166, 168-69, 175-80, 185-86, 188-90, 193-99; Ex P-
1).  Additionally, there is some evidence that management had
periodically observed its maintenance crew riding the hoists
(Tr. 184-85, 192-98).  This level of observation, combined with
Part 48 annual training and weekly safety meetings, leads me to
conclude that Doe Run satisfied the level of care necessary to
ensure the safety of its shaft maintenance crew and that the
company was not negligent.  The record in its entirety is simply
lacking in evidence that Doe Run should have anticipated Vest's
failure to tie-off, nor is there any indication that spot-checks
would have prevented Vest's deviation from his routine, compliant
behavior.  Doe Run bears no duty, by law or regulation, to have
supervisors present each time employees tie-off.  See Mar-Land,
14 FMSHRC at 759.  Therefore, having considered Doe Run's medium
size, insignificant history of prior violations, seriousness of
the violation, lack of negligence, and good faith abatement, I
find that a civil penalty of $5,000.00 is appropriate.
                         ORDER
     Accordingly, it is ORDERED that Citation No. 7880464 is
AFFIRMED, as modified to reduce the level of negligence to
"none," and the Doe Run Company is ordered to PAY a penalty of
$5,000.00 within 30 days of the date of this decision.  Upon
receipt of payment, this case is DISMISSED.
                              Jacqueline R. Bulluck
                              Administrative Law Judge
Distribution: (Certified Mail)
Gregory Tronson, Esq. and Lydia Tzagoloff, Esq., Office of the
Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO  80202-5716
R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301
Grant Street, 20th Floor, Pittsburgh, PA  15219-1410
nt