<DOC>
[DOCID: f:s96-222.wais]

 
IMC-AGRICO COMPANY
February 13, 1997
SE 96-222-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION


               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        February 13, 1997

SECRETARY OF LABOR,             :     CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :     Docket No. SE 96-222-M
               Petitioner       :     A.C. No. 08-00768-05519
                                :
          v.                    :
                                :     Fort Green
IMC-AGRICO COMPANY,             :
               Respondent       :


                            DECISION

Appearances:  Sharon D. Calhoun, Esq., Office of the
              Solicitor, U.S. Department of Labor, Atlanta,
              Georgia, for Petitioner;
              Patrick  S. Casey,  Esq., Sidley & Austin,
              Chicago,
              Illinois, for Respondent.

Before:  Judge Hodgdon

     This case is before me on a Petition for Assessment of Civil
Penalty filed by the Secretary of Labor, acting through  his Mine
Safety  and  Health  Administration  (MSHA),  against  IMC-Agrico
Company (IMC) pursuant to section 105 of the Federal Mine  Safety
and  Health  Act  of 1977, 30 U.S.C. � 815.  The petition alleges
two violations of the  Secretary's  mandatory  health  and safety
standards and seeks a penalty of $8,000.00.  For the reasons  set
forth below, I vacate one citation, affirm the other and assess a
penalty of $500.00.

     A  hearing was held on November 6, 1996, in Bartow, Florida.
In addition,  the  parties  have submitted post-hearing briefs in
this matter.

                            Background

     IMC is the owner and operator  of  the  Fort Green phosphate
mine in Polk County, Florida.  Phosphate is mined by 26 draglines
which dig it up and unload it into a pit where  it  is mixed with
water.   The  resulting mixture, called "slurry" or "matrix,"  is
then pumped through  pipes  to  the  processing  plant  where  it
ultimately becomes fertilizer.  The draglines, which have 60-yard
buckets, and the pumps are electrically powered.

     Because  the  phosphate rock is in veins of five or six feet
in depth, the draglines have to be moved as the vein is followed.
This in turn requires  that  the  power  lines, cables, pumps and
power line poles be moved.  The power lines  and  pumps are moved
on  a daily basis by electricians and linemen.  The  electricians
are generally  responsible for the power cables on the ground and
the linemen take care of the power lines overhead.

     On September 12, 1995, Jennings O. Gainer had been a lineman
for 30 years and  had worked as a first class lineman for IMC for
14  years.   On  that  date,  he  was  assigned  to  assist  some
electricians  in  attaching   power  cables  from  a  pump  to  a
disconnect  switch  on a power pole.    To  accomplish  this,  he
placed a closed, six-foot,  fiberglass,  step  ladder against the
pole  and  climbed to the top of it.  He then pulled  himself  up
onto the cross arm of the pole, stood up, grabbed the ground wire
with his right  hand  and  the  far left phase wire with his left
hand.  He was not using hot line  tools.  His actions resulted in
his being electrocuted.

     MSHA Inspector Donald Collier  and his superior, Supervisory
Inspector  Harry  L. Verdier, were assigned  to  investigate  the
fatal accident.  They  arrived at the mine on September 14, 1995.
After  interviewing  witnesses   and   viewing  the  scene,  four
citations were issued, two of which are involved here.

     Both citations state that:

          A  fatal  accident occurred at this  operation  on
     September 12, 1995, at about 6:10 p.m. when an employee
     contacted an energized  4160 volt power conductor.  The
     employee attempted to climb  on  the  cross  arm of the
     power  pole  at  the  No.  4  matrix  lift pump, No.  8
     dragline  side  in  order  to  connect the switch  gear
     conductors to the knife blade disconnects  on the power
     pole cross arm.

The first citation, No. 4301373, alleges a violation  of  section
56.12017  of  the  Secretary's Regulations, 30 C.F.R. � 56.12017,
because "[t]he power  circuit was not de-energized and locked out
and hot line tools were  not  being  used."   (Govt. Ex. 1.)  The
second  citation,  No.  4301374, asserts a violation  of  section
56.1101,  30  C.F.R.  � 56.1101,  since:  "Safe  access  was  not
provided.  A 6 foot fiberglass  step  ladder  leaned  against the
power pole had been used.  The lower cross arm was about  11 feet
above  the ground.  A bucket truck was available at the site  but
was not used."  (Govt. Ex. 2.)

             Findings of Fact and Conclusions of Law

Citation No. 4301373

     Section  56.12017  provides, as pertinent to this case, that
"[p]ower circuits shall be  deenergized  before  work  is done on
such  circuits  unless  hot-line  tools are used . . . . Switches
shall be locked out or other measures  taken  which shall prevent
the power circuits from being energized without  the knowledge of
the  individuals working on them . . . ."  Everyone  agrees  that
the power  line  which  caused  Mr.  Gainer's  death  was not de-
energized  and  that he was not using hot-line tools.  Thus,  the
parties argue that  the  issue  is  whether he was working "on" a
"power circuit."  The company contends  that  he  was not because
attaching  the  cables  from  the  lift  pump to the knife  blade
switch[1] should only have required him to  attach  the cables to
the de-energized, bottom part of the switch.  On the  other hand,
it is the Secretary's position that "on" in the regulation  means
in close proximity to an energized circuit.

     IMC's  interpretation  of the regulation is too constricted.
I find that the facts in this  case  do  comprise  a violation of
section  56.12017,  but  not  for  the  reasons  advanced by  the
Secretary.

     If  there  is any doubt as to whether a regulation  provides
"adequate  notice   of   prohibited   or  required  conduct,  the
Commission   has  applied  an  objective  standard,   i.e.,   the
reasonably prudent  person  test."   BHP  Minerals  International
Inc., 18 FMSHRC 1342, 1345 (August 1996).  That test  is "whether
a reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the
specific  prohibition  or  requirement  of  the  standard.  Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990)."  Id.

     The  regulations  do  not  define the term "power  circuit."
According  to the DMMRT, the word  "power,"  in  connection  with
electricity,  is  "[u]sed  to  indicate the electric current in a
wire
. . . ."  DMMRT at 855.  It defines  the  word "circuit" as:   "A
conducting part or a system of conducting parts  through which an
electric  current  is  intended to flow."  Id. at 210.   Thus,  a
"power circuit" is a conducting  part  or  a system of conducting
parts through which electric current is flowing.   This  comports
with   the   definition   of   "power  circuit"  offered  by  the
Respondent's  expert,  Stanley S.  Burns,  at  the  hearing.   He
stated: "An electric circuit  requires  a conductor, some type of
loads,  pump.   That's  an  electric circuit  where  the  current
flows."  (Tr. 228.)

     Where  the company's argument  fails,  however,  is  in  its
attempt to limit  application  of  the  regulation  to only those
circuits through which current is flowing.  Burns testified  that
a  circuit  with  an  open  switch  is  no longer a power circuit
because it would not have current flowing  through it.  In such a
situation,  the  company maintains that the regulation  does  not
apply because work  on a circuit with an open switch would not be
work on a power circuit.   Such  an  interpretation nullifies the
purpose of the regulation, which is to  prevent miners from being
electrocuted.

     Following  IMC's  argument to its logical  conclusion  would
mean  that anytime a power  circuit  had  a  switch  in  it,  the
regulation  could be avoided by opening the switch.  However, one
of the ways that  the  regulation  prevents  electrocution  is by
requiring  that  a  switch  be  locked  out to "prevent the power
circuits  from  being  energized  without the  knowledge  of  the
individuals working on them."  Merely  opening a switch would not
serve this function.  Accordingly, I conclude  that  a reasonably
prudent person familiar with the mining industry would  recognize
that  the  term  "power  circuit"  in  the  regulation  means  an
electrical  circuit  which  is  capable  of  having  current flow
through  it and that to work on such a circuit, the circuit  must
be de-energized and locked out.

     Therefore,  I  find  that  Gainer  was assigned to work on a
power circuit within the meaning of the regulation,  even  though
it was not energized because the knife blade switch was open.  If
he  had  remained below the open switch to connect the cable,  as
the job was  normally  performed, he probably would not have been
electrocuted.[2]  However,   the  facts  of  this  case  are that
Gainer  did  not  remain below the open switch, but climbed above
it.  Even the company's  expert witnesses agreed that to go where
Gainer went the whole system  should  have  been de-energized.[3]
Since  it  was  not,  I  conclude that the company  violated  the
regulation.

     In reaching this conclusion,  I am aware no one in authority
had any idea that Gainer would climb  up  on  the cross member to
attach  the  cable  and, indeed, could not reasonably  have  been
expected to anticipate  that  he  would  do such a foolish thing.
However, "the Mine Act clearly contemplates  that a violation may
be  found  where the wrongful act is performed by  someone  other
than the operator."  Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d
711, 716 (D.C.  Cir. 1989).  Thus, "the Act's scheme of liability
provides that an operator, although faultless itself, may be held
liable for the violative  acts  of  its  employees . . . ."  Bulk
Transportation  Services, Inc., 13 FMSHRC 1354,  1359  (September
1991).  Accord Fort  Scott  Fertilizer-Cullor,  Inc.,  17  FMSHRC
1112,  1115  (July  21,  1995).   Consequently, IMC is liable for
Gainer's failure to de-energize the  system  before climbing onto
the cross member.

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).

     There  can be little doubt  that  this  violation  was  S&S.
"Clearly, it  was  a  significant contributing cause to the fatal
accident."  Walker Stone Company, Inc., 16 FMSHRC 48, 53 (January
31,  1997).  Accordingly,  I  conclude  that  the  violation  was
"significant and substantial."

Negligence

     The  inspectors  concluded that this violation resulted from
"moderate"  negligence  on   the  part  of  the  operator.   They
concluded this because Barnes  closed  the  circuit breaker which
energized the circuit and he did not instruct Gainer to make sure
he  used  the  bucket  truck because the circuit  was  energized.
Supervisor Inspector Verdier testified:

          Well, we felt  after the statement that Mr. Barnes
     made that he wasn't sure,  but  felt he was the one who
     threw the breaker that really energized the line.

          Also, we didn't feel that Mr. Barnes probably told
     Mr. Gainer to take the bucket truck  and  go down there
     and  help  them and make sure you use the bucket  truck
     and use your hot line tools.  We just didn't feel there
     was enough instructions given.

(Tr. 92.)

     The evidence does not support the inspectors' feelings.  The
Secretary has not  shown  that  the  operator did anything that a
reasonably prudent person would not have  done,  or  failed to do
anything  that  a  reasonably  prudent  person  would  have done.
Consequently,  I conclude that the operator was not negligent  in
this case.

     The evidence  is  clear  that  Gainer was negligent, indeed,
that he acted with reckless disregard.  However, since Gainer was
not in a supervisory position, his negligence  cannot be directly
imputed  to  the operator.  Western Fuels-Utah, Inc.,  10  FMSHRC
256, 260-61 (March  1988); Southern Ohio Coal Co., 4 FMSHRC 1459,
1464 (August 1982).  Further, the evidence is uncontroverted that
IMC's supervising, training and disciplining of its employees was
more than adequate.   Finally, no supervisor was present when the
violation was committed.  Cf. Midwest Material Co., 19 FMSHRC 30,
35  (January  21,  1997) (foreman  watched  the  violation  being
committed by an employee).

     There is no evidence  to  support  the  inspectors' apparent
assumption  that  Gainer was not aware that the  power  line  was
energized.  Their accident  report  states  that  at  the No. 716
substation, Gainer:

     removed  his  grounding  jumpers  and  tag, then closed  the
     disconnects above the circuit breaker.

          Lee Barnes, electrical foreman, who  was  also  at
     the  substation, instructed Gainer to return to the No.
     4 matrix  lift  pump  location with the bucket truck to
     assist in connecting the  conductors  to  the bottom of
     the  disconnects, since all that was available  at  the
     pump was  a  six  foot step ladder.  Barnes then closed
     the circuit breaker for Circuit A, energizing the power
     line, and Gainer left the substation.

(Govt. Ex. 8, p. 2.)

     If  this  were the only  evidence  available,  it  would  be
unreasonable to  conclude  that  Gainer,  a lineman with 30 years
experience, the last 14 of which had been at  Fort Green, did not
know  that  when  he removed his jumpers and tag and  closed  the
disconnects that the  line was going to be energized.  Or that he
did not see Barnes close  the  circuit  breaker.  Or that telling
him  to  take  the  bucket  truck  to  assist in  connecting  the
conductors to the disconnects because all  that was available was
a six foot step ladder, did not put him on notice that the bucket
truck should be used to make the connections.[4]   But  this  was
not all of the evidence presented at the hearing.

     Barnes  testified  that  he told Gainer that he was going to
close the circuit breaker and that  Gainer  acknowledged  that he
heard  him.  He further testified that when he closed the circuit
breaker   it  made  a  "loud,  mechanical-type  noise"  like  the
"[s]lamming  together  of  contacts"  and that Gainer was present
when  that occurred.  (Tr. 200.)  Barnes  related  that  he  then
"asked  him  to take the bucket truck to assist in hooking up the
rouser  wires  because   my  electricians  could  not  reach  the
disconnects off of the step ladder."  (Tr. 201.)  He said he told
Gainer to take the bucket truck "[b]ecause we couldn't reach them
off the step ladder.  That was the best way of getting the height
we  needed to hook the wires  up."   (Id.)   This  testimony  was
corroborated by Myers, who was also present at the time.

     Based on this evidence, I find it inconceivable that Gainer,
an experienced  lineman,  did  not  know that the system had been
energized or that he was supposed to  use the bucket truck, which
was insulated, to attach the cables to  the  disconnect.   No one
knows  why  he did not make the connections from the bucket truck
the way he had  hundreds  of times in the past.  Witnesses at the
scene testified that there was no reason the truck could not have
been used.  Whatever reason  Gainer decided to park the truck and
climb up a ladder which he already  knew was too short, and which
he verified when he climbed up it, it  was  not the result of any
negligence on the part of the operator.

     I   find  that  the  operator,  through  Barnes,   exercised
diligence  and  could not have known what Gainer was going to do.
Therefore, I conclude that there was no negligence on the part of
IMC.

Citation No. 4301374

     Section 56.1101 states that "[s]afe means of access shall be
provided and maintained  to  all  working  places."  Because this
regulation is found under the general heading  "Travelways,"  the
Respondent argues that the citation should be vacated because the
facts  do  not  meet  the  regulations' definition of travelways.
This argument is not persuasive.   However,  I  conclude that the
Secretary has not shown that the company failed to provide a safe
means of access in this case.

     Section  56.2 of the Regulation, 30 C.F.R. �  56.2,  defines
"travelway" as  "a  passage,  walk  or  way  regularly  used  and
designated  for  persons  to  go from one place to another."  The
company maintains that a travelway  is  not involved here because
the ladder, the pole and the cross member were not regularly used
and designated for persons to go from one  place  to another.  In
the first place, not all of the regulations found in  Subpart  J,
"Travelways," involve travelways.  See e.g., 30 C.F.R. � 56.11003
(Construction  and  maintenance of ladders), 30 C.F.R. � 56.11007
(Wooden components of  ladders),  30 C.F.R. � 56.11027 (Scaffolds
and working platforms).  In the second  place,  it  is undisputed
that  at  the  Fort  Green mine a six foot step ladder is  a  way
regularly used and designated  for  electricians to connect leads
from  the disconnect switch on an electrical  pole.   (Tr.  170.)
Accordingly,  I  conclude that the regulation does apply to these
facts.

     That does not  mean,  however, that the company violated the
regulation.  The Commission,  in  construing  identically  worded
regulations, has held that:

     the  standard requires that each "means of access" to a
     working  place be safe.  This does not mean necessarily
     that an operator  must  assure  that  every conceivable
     route to a working place, no matter how  circuitous  or
     improbable,  be  safe.   For example, an operator could
     show  that a cited area is  not  a  "means  of  access"
     within  the  meaning  of  the standard, by proving that
     there is no reasonable possibility  that  a miner would
     use  the  route  as  a  means of reaching or leaving  a
     workplace.

Homestake Mining Company, 4 FMSHRC  146, 151 (February 1982); The
Hanna Mining Company, 3 FMSHRC 2045, 2046 (September 1981).

     IMC provided two means of access  to  the  electricians  and
linemen  attaching leads to  disconnect switches, a six foot step
ladder and  a  bucket  truck.   In connection with the use of the
ladder, the company's Safety Manual required that the step ladder
be fully open and the spreader bars  locked  into  place,  that a
safety belt be used when working at heights above eight feet  and
that the miner not climb higher than the second step from the top
of the step ladder.  (Tr. 160-61, Resp. Ex. A, pp. 7-8.)

     Gainer   was  sent  to  assist  the  electricians  with  the
expectation that  he  would  use  the  bucket  truck  to make the
connections.   For  reasons  known  only  to  him,  he  did  not.
Instead,  he  used  a  step  ladder in its folded up position and
resting against the pole.  This  violated the safety requirements
set out above.  Then he apparently  attempted  to pull himself up
on the cross member.

     The  two  means  of  access  provided  by the company,  when
properly  used,  were safe means of access.  Gainer's  method  of
access was highly  improbable  and against company rules.  It was
not a means of access within the  standard, in fact the company's
safety rules prohibited it as a means of access.  Consequently, I
conclude that the company did not violate section 56.11001.

                     Civil Penalty Assessment

     The secretary has proposed a civil  penalty of $5,000.00 for
the violation of section 56.17012.  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  proposed  penalty  will not  affect  the  operator's
ability to continue in business;  the  operator demonstrated good
faith abatement; the operator does not have  an excessive history
of  prior  violations; and, the size of the Fort  Green  mine  is
approximately  480,862  production tons or hours worked per year.
(Jt. Ex. 1.)  I further find  that the company's history of prior
violations is very good in that  it  had only received 11 non-S&S
citations  in  the  two  years preceding the  instant  violation,
(Govt.  Ex.  10),  and  it had  been  awarded  a  Certificate  of
Achievement in Safety by  MSHA  under  its  Sentinels  of  Safety
Program  "for  its  outstanding  safety record in 1994[,] 334,457
employee-hours worked without a lost  workday injury," (Resp. Ex.
C.).   In addition, as discussed above,  the  violation  was  not
caused by  negligence  on the part of the operator.  On the debit
side, the gravity of the  violation  was  very serious in that it
was not only "significant and substantial"  but  also resulted in
the death of a miner.

     The  Secretary's proposed penalty apparently considered  all
of the above,  except  that the penalty assessment indicates that
the violation resulted from  the  operator's  moderate  degree of
negligence.   (Govt.  Ex.  9.)   Taking  the  six  criteria  into
consideration, including the finding of no negligence, I conclude
that $500.00 is an appropriate penalty.

                              ORDER

     Accordingly,  Citation  No.  4301373 is MODIFIED by reducing
the  degree  of  negligence from "moderate"  to  "none,"  and  is
AFFIRMED as modified.   Citation  No.  4301374  is VACATED.  IMC-
Agrico  Company  is  ORDERED  TO PAY a civil penalty  of  $500.00
within  30  days of the date of this  decision.   On  receipt  of
payment, this proceeding is DISMISSED.





                              T. Todd Hodgdon
                              Administrative Law Judge

Distribution:

Sharon D. Calhoun, Esq., Office of the Solicitor, U.S. Dept. of
Labor,
1371 Peachtree St., NE., Atlanta, GA 30367 (Certified Mail)

Patrick S. Casey, Esq.,  Sidley  & Austin, One  First  National
Plaza,
Chicago, IL 60603 (Certified Mail)

                              /lt


**FOOTNOTES**

     [1]: A knife blade switch is one "which opens  or  closes  a
circuit  by the contact of one or more blades between two or more
flat  surfaces   or  contact  blades."   Bureau  of  Mines,  U.S.
Department of Interior,  A  Dictionary  of  Mining,  Mineral, and
Related Terms 614 (1968) (DMMRT).

     [2]: No evidence was presented as to whether the  switch was
locked out or not.

     [3]:  Lee  Barnes, the electrical instrumentation supervisor
at Fort Green, in response to a question as to whether the system
would have to be de-energized if someone was going to climb up on
the cross member  of   the pole, stated, "[y]es, it would."  (Tr.
215.)  Mr. Burns, in response  to a question whether he would de-
energize the line coming into the  top  of  the switch if he were
climbing up on the cross bar, said, "[y]es, I would."  (Tr. 250.)

     [4]:   Robert   E.  Myers,  Electrical  and  Instrumentation
Superintendent, stated that while electricians normally connected
the leads to the disconnect  switch  from a six-foot step ladder,
"on the higher ones the line crew does."  (Tr. 169-70.)  In other
words, the linemen were used when the  connections  could  not be
made from a ladder, but necessitated the use of a bucket truck.