Rock of Ages Corp. v. Secretary of Labor, 98-4095
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Citation | 170 F.3d 148 |
| Docket Number | No. 98-4095,98-4095 |
| Parties | 1999 O.S.H.D. (CCH) P 31,771 ROCK OF AGES CORPORATION, Petitioner, v. SECRETARY OF LABOR, United States Department of Labor, and Federal Mine Safety and Health Review Commission, Respondents. |
| Decision Date | 03 March 1999 |
Page 148
v.
SECRETARY OF LABOR, United States Department of Labor,
and
Federal Mine Safety and Health Review Commission, Respondents.
Decided March 3, 1999.
Page 151
Henry Chajet, Patton Boggs, L.L.P., Washington, D.C. (Duane A. Siler, David Farber, Patton Boggs, L.L.P., Washington, D.C., of counsel), for Petitioner.
Robin A. Rosenbluth, U.S. Department of Labor, Office of the Solicitor, Arlington, VA (Marvin Krislov, Edward P. Clair, W. Christian Schumann, U.S. Department of Labor, Office of the Solicitor, Arlington, VA, of counsel), for Respondents.
Before: MINER, WALKER, and SACK, Circuit Judges.
MINER, Circuit Judge:
Petitioner Rock of Ages Corporation ("ROA") petitions for review of a decision of respondent Federal Mine Safety and Health Review Commission (the "Commission") affirming a decision of an administrative law judge of the Commission (the "ALJ"). The ALJ found that ROA violated four regulations promulgated under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., (the "Mine Act") and imposed a fine of $180,000. The Commission also affirmed the ALJ's finding that each violation was the result of an unwarrantable failure to comply with a mandatory health or safety standard. ROA challenges the Commission's interpretation and application of each regulation, as well as its findings of unwarrantable failures to comply.
For the reasons that follow, we grant review in part and deny review in part.
I. Granite Quarrying
ROA is a large granite quarrying company that owns the Smith Quarry in Vermont. At the Smith Quarry, the process of quarrying granite involves the creation of "benches," large six-sided, rectangular blocks of stone. A typical bench is 40 feet wide, 35 feet deep and 16 feet high. To begin quarrying, an operator uses an automated channel-burning torch to cut seams approximately 6 inches wide around the four sides and on the top of the bench to be quarried. After the channel-burning process is completed, workers drill a series of horizontal lift holes 1 to 2 inches wide into the base of the bench. Rows of vertical holes are then drilled into the top of the bench. After the drilling, certain horizontal lift holes are loaded with explosives in various patterns. The explosives are then detonated in a single blast. The blast is intended to separate the bench from the granite below, along the seams created by the channel burner.
After each detonation, the bench is examined to evaluate the success of the blast and to check for any undetonated explosives. If a blast is "clean," the top half of each lift hole becomes part of the removed bench and the bottom half remains in the granite to be quarried on the next level below. However, if a blast is not "clean," caprock, rock debris covering the lift holes, may remain on the surface of the unremoved granite. These intact lift holes may contain undetonated explosives. Similarly, underbreak may occur when rock beneath the lift holes cracks, leaving intact lift holes in the removed bench that may contain undetonated explosives. Because a bench may contain more and less stone than was intended to be quarried, both caprock and underbreak can occur on the same bench.
After the blast, the bench is further divided into slabs of granite and lifted out of the quarry. After an entire bench is removed, the exposed surface is cleared, scraped and inspected and then becomes the top of a future bench. Prior to 1993, with the exception of certain test blasts described below, ROA routinely utilized seismic cord, a continuous cord of explosive material, as its blasting agent. After 1993, ROA continued to use seismic cord, but conducted seven blasts utilizing
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pyrodex, a granular explosive packed into a bag for detonation.II. ROA's Use of Pyrodex
During 1986 and 1987, Glenn Barrett, a representative of Hodgdon Powder Company ("Hodgdon"), a manufacturer of pyrodex, visited the Smith Quarry to demonstrate the use of pyrodex as an alternative to seismic cord. Barrett explained that pyrodex would be beneficial to ROA because it can split granite without undesirable fracturing.
During his visits, Barrett performed pyrodex test blasts, distributed literature and instructed ROA personnel on how to load the pyrodex into the lift holes. Several times, Barrett stressed the need to pressurize the lift holes to ensure proper separation of the granite. Pressurization causes the bags of pyrodex to burn sequentially after ignition of the outermost bag of pyrodex.
During the test blasts, Barrett did not provide any warnings that moisture in the lift holes could diminish the effectiveness of pyrodex. However, employees at ROA were made aware that water should be eliminated from lift holes when ROA received a scientific paper describing the use of pyrodex in January of 1993. 1
After each test blast, ROA conducted extensive post-blast inspections; however, Barrett did not train or supervise ROA personnel in these inspections. Some of the test blasts were unsuccessful, leaving undetonated pyrodex in the lift holes ("misfires"). See 30 C.F.R. § 56.6000 ("Misfire [means] [t]he complete or partial failure of explosive material to detonate as planned."). Following the tests in 1986 and 1987, ROA continued to utilize seismic cord as its blasting agent, apparently discouraged by the intensive labor required to pressurize the lift holes when using pyrodex.
In January of 1993, ROA informed Barrett that it was interested in resuming experimentation with pyrodex. In response, Barrett sent information and recommended that ROA use several bags of pyrodex in each pressurized lift hole. Between February and July of 1993, ROA utilized pyrodex as its blasting agent in the Smith Quarry. Because it was using pyrodex on an experimental basis, ROA kept detailed reports, noting the location and dimensions of the benches at which pyrodex was utilized, the number of pyrodex bags loaded into each lift hole, and the loading sequence within each bench.
III. June 22, 1993 Blast
In preparation for a blast on June 22, 1993, ROA loaded twenty-one lift holes with 84 bags of pyrodex by placing four bags in each hole that was loaded. The loading pattern was every fourth hole. Following the blast, foreman Earl Kelty and powderman Bud Reynolds inspected the bench and reported their observations in the ROA blast report. They noted that the bench was "tight in front," meaning that the front of the bench did not separate as anticipated. Inspector Fowler of the Mine Safety and Health Administration ("MSHA") testified that neither Kelty nor Reynolds pressurized the lift holes prior to detonation. Additionally, wet weather on the day of the blast created moisture in the lift holes, interfering with ignition of the pyrodex.
Approximately seven to ten days after the June 22nd blast, derrick operator Earnest Batchelder was loading blocks of granite for removal from the quarry when he noticed four bags of unexploded pyrodex in intact lift holes. Batchelder reported the discovery to Kelty, who amended the ROA blast report to reflect that four bags of pyrodex did not ignite. After the discovery, Kelty ordered that the lift holes be washed out to neutralize any undetonated pyrodex in them; however, it is unclear whether this operation was performed. Neither Kelty nor other ROA personnel conducted any further search for misfires, such as probing under caprock. When asked during a later investigation why he did not search for additional bags of undetonated pyrodex, Kelty replied that he "forgot."
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IV. May 20, 1994 Accident
On May 20, 1994, while operating a channel burner, Michael Bassett was killed in an explosion. Unbeknownst to Bassett, his torch passed within two feet of a lift hole containing two bags of undetonated pyrodex, which were obscured by caprock. The pyrodex instantly ignited.
MSHA concluded that the fatal accident was at the site where ROA had blasted on June 22, 1993. Although bench dimensions from the June 22nd blast did not precisely match the dimensions of the accident bench, MSHA based its conclusion on the loading sequence of the lift holes. ROA reached the same conclusion in its report, which it prepared immediately after the accident.
An ensuing search for additional misfires revealed seven more lift holes containing two bags of pyrodex each. ROA discovered a total of 22 misfires on the bench out of 84 bags loaded for the June 22nd detonation. The lift holes were embedded in caprock measuring 22 inches by 30 inches and varying in thickness from one to six inches.
V. Citations Issued
Following its accident investigation, MSHA issued four citations against ROA. MSHA charged ROA with violating (1) 30 C.F.R. § 56.6311(b), for permitting work other than work necessary to remove a misfire in the blast area; (2) 30 C.F.R. § 56.6306(g), for permitting work to resume prior to adequate post-blast inspections following the June 22nd detonation; (3) 30 C.F.R. § 56.6904, for permitting an open flame within 50 feet of explosive material; and (4) 30 C.F.R. § 56.6300(a), for inadequately training blast personnel. MSHA alleged that the violations were significant and substantial in nature and a result of ROA's "unwarrantable failure to comply" with mandatory safety and health standards.
ROA contested the citations, and an eight-day hearing was held before an ALJ. The ALJ determined that the citations and unwarrantable failure charges were justified in light of the violations, and assessed penalties totaling $180,000. See Rock of Ages Corp. v. Secretary of Labor, Mine Safety & Health Admin., 17 F.M.S.H.R.C.1925, 1955 (1995).
VI. Commission's Review and Remand
ROA petitioned the Commission for review of the ALJ's decision. The Commission's decision affirmed the ALJ's decision for reasons we...
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