<DOC>
[DOCID: f:lk984.wais]

 
INLAND STEEL MINING COMPANY
July 17, 1998
LAKE 98-4-RM

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041

                          July 17, 1998

INLAND STEEL MINING COMPANY,  :  CONTEST PROCEEDINGS
                   Contestant :
            v.                :  Docket No. LAKE 98-4-RM
                              :  Citation No. 7809287;
                              :  9/5/97
SECRETARY OF LABOR,           :
  MINE SAFETY AND HEALTH      :  Docket No. LAKE 98-5-RM
  ADMINISTRATION (MSHA),      :  Citation No. 7809288, 9/9/97
                   Respondent :
                              :  Minorca Mine
                              :  Mine ID No. 21-02449
                              :
SECRETARY OF LABOR,           :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH      :
  ADMINISTRATION (MSHA),      :  Docket No. LAKE 98-45-M-A
                   Petitioner :  A.C. No. 21-02449-05611
          v.                  :
                              :  Minorca Mine
INLAND STEEL MINING COMPANY,  :
                   Respondent :

                            DECISION

Appearances:  L. Joseph Ferrara, Esq., Jackson & Kelly,
              Washington, D.C., for Contestant/Respondent;
              Christine M. Kasak, Esq., Office of the Solicitor,
              U.S. Department of Labor, Chicago, Illinois,
              for Respondent/Petitioner.

Before:  Judge Hodgdon

     These consolidated cases are before me on Notices of Contest
and a Petition for Assessment of Civil Penalty filed by Inland
Steel Mining Company against the Secretary of Labor, and by the
Secretary, acting through her Mine Safety and Health
Administration (MSHA), against Inland Steel, respectively,
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C.  815.  The company contests the issuance to
it of two citations alleging violations of the Secretary's
mandatory health and safety standards.  The petition seeks a
penalty of $1,328.00 for the contested violations.  For the
reasons set forth below, I vacate one citation, modify and affirm
the other, and assess a penalty of $50.00.

                           Background

     The Minorca Mine is an open pit, taconite[1] mine in St.
Louis County, Minnesota, operated by Inland Steel.  On September
5, 1997, while conducting a semi-annual inspection of the mine,
MSHA Inspector Leon Mertesdorf issued two citations alleging
violations of section 56.20011 of the Secretary's regulations, 30
C.F.R.  56.20011.  Citation No. 7809287 alleges that:

     At the South side of the Plant Electric Shop, there was a
     Service road that passed along said shop that was [a] travel
     route from the Fines Crusher and other associated shops.
     There was a Fifth Wheel Semi-Trailer used for storage
     parked at the said location, South of the Plant Electric
     Shop, which was a hazard to any vehicles traveling from
     the lower plant site.  The said Trailer front end was
     raised by placing blocks under the dolly wheels.  The
     height of the trailer was 51 inches from the
     roadway/ground that was graded up to the trailer.  The
     hood of a pickup truck was 48 inches, and could travel
     under the raised trailer.  The trailer supports/dollies
     were 10 feet back from the end of the raised end of the
     trailer, that was parked with the front facing South.  The
     traffic traveled from the South and curved toward the
     left/West.  There was no barricade or even a warning to
     prevent travel under [the] raised  trailer.

Citation 7809288 alleges that:

     At the bottom floor of the Flux Plant of the Pellet
     Plant, there was an Over-head Crane with a Repair Bay
     below that was not barricaded while an employee was
     inspecting and working with hand tools on the said over-
     head crane, and the hand tools could be dropped upon persons
     below.  The area was not barricaded or warning placed
     at the entrance to said Service bay, to prevent persons
     from entering below a hazardous condition that would alert
     that person of conditions that were unaware to them.

Section 56.20011 requires, in pertinent part, that:  "Areas where
health or safety hazards exist that are not immediately obvious
to employees shall be barricaded, or warning signs shall be
posted at all approaches."

     A hearing was held on March 31, 1998, in Duluth, Minnesota.
The parties also submitted post-hearing briefs in the cases.

             Findings of Fact and Conclusions of Law

Citation No. 7809287

     Inspector Mertesdorf had been to the mine twice before the
inspection in this case, once for an accident investigation and
in March 1997 for a previous semi-annual inspection.  He
testified that as he drove up the road toward the trailer,
"[e]verything looked different than I had seen it before and I
couldn't understand how I could have missed something like this
before" in March.  (Tr. 37-38)  He stated that the difference was
that

     [T]he trailer was higher and there was -- the road was
     graded off entirely underneath the trailer and you couldn't
     find the road edge like it normally was.  There used to be a
     road edge where the, you know, where a grader goes along the
     road.  You'd leave a lip and there was kind of a washout
     there before.  And this is all graded over.

(Tr. 38.)  The inspector later explained that the edge or lip
that he was referring to was grader windrow.[2]  He contended
that "the hazard would be to possibly run underneath [the
trailer]."  (Tr. 40.)

     The company's evidence indicated that the trailer had been
in the same location since 1988 and there had not been any
traffic incidents involving it.  Mr. Gus Josephson, Inland's
Staff Safety and Environmental Engineer, further testified that
the roadway up to and on either side of the trailer was graded
twice weekly and that any windrow resulting from the grading was
not intended to serve as a berm along the road.  He contended
that any hazard involving the trailer was immediately obvious.

     The issue in this citation is whether the hazard perceived
by the inspector, driving underneath the trailer, was
"immediately obvious."  The Commission has held that although
something may be "readily observable" and "very much in plain
sight" the hazard associated may not be obvious.  American
Materials Corp., 4 FMSHRC 415, 481 (March 1992).  However, this
is not such a case.  I conclude that any hazard involving the
trailer, and particularly the hazard of driving underneath it, is
immediately obvious to someone approaching the trailer on the
frontage road.

     The old saying that "a picture is worth a thousand words,"
applies to this citation.  I base my decision mainly on
Respondent's Exhibit B-1, a picture of the scene.  In the picture
it is clear that the trailer is not hidden from the roadway;
anyone approaching it can see it from a long way off.  Nor does
it appear that the roadway goes under the trailer.  The roadway
plainly goes on either side of it.  Even if one were not
concerned with driving under the trailer, one would still stay
clear of the trailer to avoid hitting it.

     I find that the evidence strongly supports the Respondent's
contention that any hazard involving the trailer would be
"immediately obvious" to employees and that, therefore, no
barricade or warning sign was required.  Accordingly, I will
vacate the citation.

Citation No. 7809288

     In August 1997, Inland contracted with Lakehead Constructors
to build a new overhead flux mill crane in the Flux Plant.  While
the construction project was proceeding, Inland flagged or
blocked with tape all access ways to the work area.  On the
morning of September 9, 1997, the employee performing the
preshift inspection in the area noted that the entrances to the
work area were still blocked with tape at 7:30 a.m.  However,
when the inspection party arrived at the area,  between 10:00
a.m. and 11:00 a.m., the tape blocking one of the doors was no
longer up, but was found lying on the ground partially under the
wheel of a basket-lift truck belonging to Lakehead.  A Lakehead
employee was on the crane checking the tightness of the bolts
with a torque wrench at the time.  Although there is no direct
evidence as how the tape came down, it seems clear that someone
maneuvering the Lakehead truck had knocked it down.

     Inland has stipulated that the citation sets out a violation
of the Secretary's rules.  Nevertheless, it argues that the
citation should be vacated because the Secretary abused her
discretion in issuing a citation to both Inland and the
independent contractor.  The company maintains that the
Secretary's failure to follow the guidelines set out in III MSHA
Program Policy Manual, Part 45, at 6 demonstrates this abuse of
discretion.  I do not agree and find that the Secretary did not
abuse her discretion in this case.

     The Commission has recently summarized the law in this area,
as follows:

          The Commission and various courts have long recognized
     that, under the Mine Act's scheme of strict liability, an
     operator, although faultless itself, may be held
     liable for the acts of its independent contractor.  Bulk Transp.
     Services, Inc., 13 FMSHRC 1354, 1359-60 (September 1991); Cyprus
     Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116, 1119 (9th
     Cir. 1981).  In instances of multiple operators, the
     Secretary has "wide enforcement discretion" and may proceed
     against an  operator, independent contractor, or both.  Mingo
     Logan Coal Co., 19 FMSHRC 246, 249 (February 1997), aff'd per
     curiam, No. 97-1392 (4th Cir. January 8, 1998); Consolidation
     Coal Co., 11 FMSHRC 1439, 1443 (August 1989).  The Commission
     has determined that "its review of the Secretary's action in
     citing an operator is appropriate to guard against abuse of
     discretion."  W-P Coal  Co., 16 FMSHRC 1407, 1411 (July 1994).
     A litigant seeking to establish an abuse of discretion bears
     the heavy burden of establishing that there is no evidence to
     support the Secretary's decision or that the decision is
     based on an improper understanding of the law.  Mingo Logan,
     19 FMSHRC at 249-50 n.5.

          The Commission has considered various factors in
     determining whether an enforcement action constitutes
     an abuse of the Secretary's discretion, including the
     operator's day-to-day involvement in the mine's operation
     (Mingo Logan, 19 FMSHRC at 250, W-P, 16 FMSHRC at 1411),
     whether the operator is in the best position to affect
     safety (Bulk, 13 FMSHRC at 1361) and whether the enforcement
     action is consistent with the purpose and policies of
     the Act (Old Ben Coal Co., 1 FMSHRC 1480, 1485 (October
     1979)).  In addition, the Commission has considered whether
     any of the criteria of the Secretary's Guidelines for
     proceeding against an operator have been satisfied.  See,
     e.g., Bulk, 13 FMSHRC at 1360; Mingo Logan, 19 FMSHRC at
     250.  While failure to satisfy the criteria is not
     fatal to an enforcement decision (Mingo Logan, 19 FMSHRC at
     250), the Commission has relied upon satisfaction of
     the criteria in concluding that there was no abuse (e.g.,
     Bulk, 13 FMSHRC AT 1360).4

     4  The Commission has repeatedly recognized that the
     Guidelines are policy statements and not binding on the
     Secretary.  Mingo Logan, 19 FMSHRC at 250; D.H.
     Blattner & Sons, Inc., 18 FMSHRC 1580, 1586 (September
     1996), appeal docketed, No. 96-70877 (9th Cir. Oct. 21,
     1996).

Extra Energy, Inc., 20 FMSHRC 1, 5-6 (January 1997).

     In this case, Inland, not Lakehead, had assumed the
responsibility for barricading the entrances to the area where
the crane was being installed, from the beginning.  Having taken
on that responsibility, it follows that Inland should also be
responsible for the violation when the blocking ribbon came down.
In addition, since the crane was being constructed in Inland's
building, Inland clearly was in the best position to affect
safety by preventing access to the area in which the crane was
being erected.  Furthermore, the barricades were clearly for the
benefit of Inland's employees who may have to walk through the
area, not Lakehead's employees who were already working in the
blocked off area.  Accordingly, I conclude that the Secretary
properly cited the operator for this violation.

     Significant and Substantial

     The Inspector found this violation to be "significant and
substantial."  A "significant and substantial" (S&S) violation is
described in Section 104(d)(1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard."  A violation is properly designated S&S "if, based upon
the particular facts surrounding that 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 out four criteria that have to be met for a
violation to be S&S.  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 Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria).  Evaluation of the criteria is made in terms
of "continued normal mining operations."  U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984).  The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation.  Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

     As in most cases, the issue here is whether the third
criterion has been met, that is, whether the violation
contributed to a hazard which would be reasonably likely to
result in an injury.  The inspector testified that he found this
violation to be S&S because he believed that the employee
tightening the bolts on the crane could drop his torque wrench
and it could hit someone below.

     In order for this to occur, there would have to be a
confluence of events which happened simultaneously.  First,
someone would have to enter the area through the one door at
which the blocking ribbon had been knocked down.  Second, the
employee would have to drop the wrench.   Third, the person
entering the area would have to be below the employee dropping
the wrench.  Fourth, the wrench would have to hit the person
below.  The evidence indicates that one or two Inland employees
per shift were likely to be in the area.  The evidence further
establishes that the job of "torquing" the bolts took about two
hours and then work on the crane was complete.

     Considering all of these factors, I conclude that it was not
reasonably likely that an injury would occur in this situation.
Accordingly, I will modify the citation to delete the
"significant and substantial" designation.

     Negligence

     The inspector determined that Inland's negligence for this
violation was low because "when [the Lakehead employee is]
climbing about on a crane he should have also made sure that this
area was roped off below."  (Tr. 67.)  I agree that the
contractor's employee should have made sure that the area was
blocked off.  This is particularly true since he apparently was
the one who knocked down the tape in the first place.  I
disagree, however, with the inspector's assessment of negligence.
In view of the fact that Inland's preshift inspection had
verified that the tape was still in place and that the tape was
not taken down by an Inland employee, I conclude that Inland was
not negligent at all in this instance and will modify the
citation.

                    Civil Penalty Assessment

     The Secretary has proposed a penalty of  $309.00 for
Citation No. 7809288.  However, it is the judge's independent
responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section
110(i) of the Act, 30 U.S.C.  820(i).  Sellersburg Stone Co. v.
FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers,
Inc., 18 FMSHRC 481, 483-84 (April 1996).

     In connection with the criteria, the parties have stipulated
that the "Minorca Mine worked in excess of 600,000 hours during
the period January 1, 1996 - December 31, 1996."  (Jt. Ex. 1.)
Therefore, I conclude that it is a large mine.  The Assessed
Violation Report indicates that 189 violations had occurred at
the mine in the 2 years preceding these violations.  (Id.)  I
find this to be in the average range for a mine this size and,
thus, it neither aggravates nor mitigates a penalty.  Inland did
not present any evidence that a penalty would have an adverse
effect on its ability to remain in business, so I conclude that
it would not.  I have already found that the violation was not
S&S, so its gravity is not serious, and I have already found that
the company was not negligent.  The evidence indicates that the
Respondent demonstrated good faith in achieving rapid compliance
after being informed of the violation.  Taking all of these
factors into consideration, I conclude that a penalty of $50.00
is appropriate for this violation.

                              ORDER

     Accordingly, Citation No. 7809287 in Docket Nos. LAKE
98-4-RM and LAKE 98-45-M-A is VACATED and Docket No. LAKE 98-4-RM
is DISMISSED;  and Citation No. 7809288 in Docket Nos. LAKE
98-5-RM and LAKE 98-45-M-A is MODIFIED by deleting the
"significant and substantial" designation and reducing the level
of negligence from "low" to "none" and is AFFIRMED as modified.
Inland Steel Mining Company is ORDERED TO PAY a civil penalty of
$50.00 within 30 days of the date of this decision.  On receipt
of payment, Docket Nos. LAKE 98-5-RM and LAKE 98-45-M-A are
DISMISSED.

                               T. Todd Hodgdon
                               Administrative Law Judge

Distribution:

L. Joseph Ferrara, Esq., Jackson & Kelly, 2401 Pennsylvania
Avenue, N.W., Suite 400, Washington, DC 20037 (Certified Mail)

Christine M. Kassak, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)

/fb

***FOOTNOTES***

     [1]  "Taconite" is "[a] local term used in the Lake Superior
iron-bearing district of Minnesota for any bedded ferruginous
chert or variously tinted jaspery rock, esp. one that enclosed
the Mesabi iron ores (granular hematite); an unleached iron
formation containing magnetite, hematite, siderite, and hydrous
iron silicates (greenalite, minnesotaite, and stilpnomelane).
The term is specif. applied to this rock when the iron content,
either banded or disseminated, is a least 25%."  American
Geological Institute, Dictionary of Mining, Mineral, and Related
Terms 560 (2d ed. 1997) (DMMRT).

     [2]  "Windrow" is a "ridge of soil pushed up by a grader or
bulldozer."  DMMRT at 628.  "Windrow" is incorrectly reported as
"windroll" throughout the transcript.