The following article is the Petition for Review of the Decision on the MSHA Hearing. It is part of the Appeal process. Photos of the mine and miners are included.
PETITION FOR REVIEW
A hearing was held in Downieville, California, on January 17 and 18, 2001, and was continued and concluded on April 3, 2001, in Nevada City, California. The Decision of Administrative Law Judge Zielinski of the Federal Mine Safety and Health Review Commission was issued on October 19, 2001. During the twelve-year period, 1985 to 1997, there were a total of 83 citations issued to the Sixteen to One Mine. Mining operations during this period was significantly larger than during the two year period, 1997 to 1999. During this two-year period in which the citations under appeal were issued, a total of 85 citations were written.
Although our position that the intent of the Act was overlooked remains unchanged, we accept the Administrative Law Judge’s (ALJ) decision and are not petitioning for review citation number 7969536 and number 7969519. The remaining citations as referenced above and addressed in the Decision of October 19, 2001, are respectfully submitted in this Petition for Review by the Commission.
The Federal Mine Safety and Health Act of 1977 (the “Act”) is site specific. The administrative law judge was very fair and we were fairly treated; however, with all due respect to the ALJ, he was unfamiliar with hardrock mining, this specific mine and the unique geological nature of this mine. His decision overvalued the opinions of the inspectors versus the opinions and statements of the miners. Training, no matter how limited, was valued over years of experience. It is noted in the Decision that “Both Petty and Allard had limited experience as inspectors at the time of the inspections here at issue. However, they received considerable training and had substantial experience in the mining industry. Their conclusions are entitled to weight appropriate to their experience and qualifications.” Most individuals in the mining industry agree that experience is valuable: however, all true miners understand that each mine in the industry is unique unto itself. Some general terms and conditions of the standard cannot be applied to the uniqueness of a specific mine, such as the Sixteen to One. It should also be recognized that this was the first time that Allard had been in the Sixteen to One. His experience in this mine was non-existent. The manner in which he conducted his inspection jeopardized his safety and the safety of the miners required to accompany him. The amount of time he spent in the escapeway raises question as to the degree of thoroughness. He did not take measurements and observations were brief. While many areas of the escapeway are similar, they are not the same. General statements are not specific or factual. A prejudicial error of procedure was committed when Allard gave testimony in contradiction to his previous statements.
The ALJ credits the testimony of Burke, Witkopp and Miller and found that measurements that were presented at hearing were accurate. This certainly discredits Petty’s testimony and validity of the citations. In areas where Burke, Witkopp and Miller did not measure, but Petty contended were in violation, the validity of Petty’s position comes into question when he previously demonstrated an error in judgment.
Specifics addressing the decision rendered on each citation follow:
Citation No. 7969922
The secondary escapeway was not maintained as required. The fourth ladder from the 800 level had only one rail. The next ladder did not project 3 feet above the landing. Air/water pipes travel along the escapeway restricting access, requiring a person to either belly crawl under them or climb over them. The first ladder at the 2100 sub-level was not secured properly (loose) and the last ladder below the 2100 level was not secured properly as well. The third ladder above the 2200 level has a broken rail and the last ladder has a broken rung. Several ladders were not properly equipped with landings. In the event of a mine emergency requiring usage of the secondary escapeway miners could be endangered trying to travel through this section. If the escapeway was used to evaluate an injured miner, it is reasonably likely that at least one ladder would not support the weight of rescuers and victim.
The conclusions of the inspectors bore no merit. Petty did not take measurements at critical points to determine the slope of ladders or stopes or the size of openings. Inaccurate assumptions were made. The Respondent discredits the position of Petty in its testimony by Mr. Burke and Mr. Witkopp. It is also acknowledged in the Decision that the citation was written under the standard of travelways and not escapeways. The Decision that air and water lines in one location did create restrictions that would impede expeditious travel is not relevant because the clearance of 24 inches by 24 inches met the requirement of the standard. It is the Respondent’s position that ladders were secured. One wrap of bailing wire (properly known as #9 wire) is of more than sufficient strength to secure a ladder.
Order No. 7969514
This order alleges a violation of a failure to maintain the escapeway in a “safe [and] travelable condition”. The conditions that led Allard to issue the order, barring access to “all areas of the underground mine affected by the secondary escapeway,” were noted on the order as:
The secondary escapeway from the surface to the 2200 level was not maintained in a safe, travelable condition. Hazards in the escapeway included but were not limited to the following: there were only two landings from the surface to the 1500 [level]. Below the second landing there was a steep slope without a ladder or stairs that ended at a ladder which did not project above ground level. Air and water pipes crossed over the ladder restricting access. Several ladders were offset from the ladders below. Some ladders had rotten and cracked rungs. An area below the 1500 level did not have ladders, stairs or other means of making travel safe. Loose rock had been allowed to accumulate behind ladders in some unguarded holes along the travel ways on the 1700 level and the 2200 level. The escapeway must be used on a regular basis for inspection purposes. With continued use of the escapeway in this condition, it is reasonably likely that serious injuries could occur. The operator engaged in aggravated conduct constituting more than ordinary negligence in the [it] had been cited for this condition and had not repaired the escapeway before working below the 800 level. (Reference citation #796922) This violation is an unwarrantable failure to comply with a mandatory standard.
It is the position of the Respondent that they were in compliance with the order as the order specifically stated, “All areas of the underground mine affected by the secondary escapeway”. The miners were working underground in an area not affected by nor had any barring on the secondary escapeway. The miners were driving a raise to facilitate a means for a new secondary escapeway in conjunction with the approved refuge chamber. The decision states that essentially the same conditions and/or types of conditions were present. Respondent maintains that conditions were not the same or conditions cited were not in violation of the standard. As previously noted under Citation 7969922, measurements had not been taken by Allard and he made assumptions. Assumptions that were discredited by the testimony of Burke and Witkopp. The decision states that “while each individual condition was not violative of any standard in itself.” The argument of the Respondent now becomes that this statement is ambiguous since each individual condition was not violative of any standard, but yet the order was issued. Again, Allard issued citations applicable to underground travelways, not escapeways.
The prior allegations on which the order was based have not been substantiated under the Respondent’s right to due process.
Citation No. 7955049
This citation is simple and is argued that the decision is contrary to law. The citation reads in part “the area is not often used but was going to be used during the week of 8/30/99”. The citation was written by Allard on August 26, 1999. The standard is clear regarding examinations of the work place. This was not a working area of the mine. Work was planned for the week of 8/30/99, but had not yet commenced; therefore the workplace examination and/or inspection had not been done nor was it required. There cannot be a responsibility to fix a problem until it is noticed. It is the practice and policy of the mine to do a workplace examination of an area that has not been worked prior to the start-up of any new work. The decision also made reference to freshly painted markings on the walls indicating where mining was to occur. This is a conclusion of material fact not supported by substantial evidence. Throughout the mine over the course of years, markings (paint) have been applied to the wall. Some are representative of mining targets, others are the end product of research. Unless the paint is wet or the area is heavily worked there is no way to ascertain whether the paint is newly applied or residual from a previous time.
Citations No. 7969525 and No. 7969526
It is stated in the decision “no ore extraction had occurred in that area of the mine since that time [February 12, 1999, when the miners were called out of the mine and laid off]”. The Respondent disputes the conclusion of material fact, as it is not supported by substantial evidence. Once the miners had been called from the mine and routine daily operations ceased on February 12, 1999, the area cited in this violation was posted to prohibit entry without authorization. Again, Allard states “miners were going to be working there in the future.” It is the policy and procedure of the Respondent to conduct a proper workplace examination before any would be done in an area of the mine that had been out of operation and that all defects and hazards would be corrected. Allard continually makes incorrect assumptions as to the operations of the mine. This area was posted to prohibit entry; however, Allard choose to ignore the posting and charged into the unexamined prohibited area, jeopardizing not only his own health and safety, but the health and safety of the miner he demanded accompany him. The materials found were not stored nor were they intended to be stored in the area in which they were located. The blasting of a round generally occurs at the end of the workday, which normally concludes at 3 o’clock. It was approximately 2:00 p.m. when the miners were called from the mine and unknown to them, they were not going to return to complete the day’s round. The day’s explosive material was left in the area in which it was scheduled to be used. There is no violation of 30 CFR 57.6161 as this was not an auxiliary storage facility.
Citations No. 7969532 and No. 7969533
These citations represent the inconsistency of enforcement by MSHA inspectors at the mine. Although it doesn’t negate the situation, it does bring to light the interpretation of some inspectors as being within the standard, while the same conditions are not acceptable by others. The tree addressed had been there for a good ten years. Although the small amount of grass may have been brown, it wasn’t because it was dry or dead, it was because it was the time of year that the grass turns brown during the winter months. Testimony was given that the rain fall had been substantial within the week prior to the citation; however, the ALJ questioned the validity of the rain fall stating that it would depend on where the measurements were taken as it can vary significantly within a short distance and was determined immaterial. It was never allowed to be established that the testimony was data from the Department of Forestry and taken within close proximity to the mine. The ALJ stated that he “agreed with Respondent’s assessment that combustion was highly unlikely and that virtually no threat was posed to the magazines”.
Appropriate Civil Penalty
Respondent maintains that it is not able to pay the penalties as assessed. The mine has continually operated at a loss due to the lack of finding substantial gold. Retained assets as stated in the Decision, are the mining properties, equipment necessary for mining operations and inventory. Subsequently, the assets are offset by Respondent’s liabilities, accounts payable, property taxes and loan obligations. Payment of penalties will impair the Respondent’s ability to continue in business. Respondent is currently struggling to pay its utilities, workers’ compensation insurance, wages and day-to-day operating costs. The most recent Securities Exchange Commission 10-QSB filing for period ending September 30, 2001, is enclosed.
First, it is recognized that the court afforded the Respondent many liberties during the course of the hearing and is appreciative of this fact. This process has been very much a learning experience. The Respondent maintains a small underground hardrock mining operation with limited administrative personnel. However, Respondent believes passionately that the merit of the citations addressed is based on attitudes of the team of inspectors at the time, rather than factual conclusions. Subsequently, the current inspectors vacated one pending citation written by their predecessors. Inspections prior to this time period were reasonable. Citations were issued on average of one violation for every two days of inspection. Respondent’s most recent inspection yielded no citations. What was different? The mining operation has remained the same, the inspectors have changed, which reinforces Respondent’s statement that it felt MSHA was on a “search and destroy” mission of the mine.
The Decision is correct in stating the excessive nature of citations written during the two year time period of 1997 to 1999, in which these citations were issued. The Decision consistently acknowledges gravity determinations made by the inspectors were excessive; therefore, giving indication that conditions cited may also have been the result of the growing antagonism between the MSHA inspectors and the Respondent. It is believed that the intent of the Act was overlooked as inspectors utilized their positions to demonstrate their power of authority. The Respondent issued subpoenas to the former Assistant Director of the Department of Labor and two other officials to testify at the hearing as to the intent of the Act, regulatory provisions and enforcement policies that would explain what it viewed as excessive and arbitrary government enforcement action. The subpoenas were quashed. And, as addressed previously, the administrative law judge was unfamiliar with hardrock mining, this specific mine and the unique geological nature of this mine.
This Request for Review of the Decision of October 19, 2001, is requested on:
A. Conclusion of material fact is not supported by substantial evidence.
B. A necessary legal conclusion is erroneous.
C. A substantial question of law, policy or discretion is involved.
D. A prejudicial error of procedure was committed.
Original Sixteen to One Mine, Inc.
Michael M. Miller
President and CEO