OSHRC Docket No. 90-0328


This matter is before the Commission on a Direction for Review entered by Commissioner Edwin G. Foulke, Jr. on May 29, 1991.  The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission.  The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order, and we set aside the Administrative Law Judge's Decision and Order to the extent that it is inconsistent with the Stipulation and Settlement Agreement.  This is the final order of the Commission in this case.  See 29 U.S.C. 659(c), 660(a) and (b).

Edwin G. Foulke, Jr.

Donald G. Wiseman

Velma Montoya

Dated: December 20, 1991






OSHRC Docket No. 90-0328



The parties have reached agreement on a full and complete settlement and disposition of the issues in this proceeding which is currently pending before the Commission.


It is hereby stipulated and agreed by between the Complainant, Secretary of Labor, and the Respondent, F.M.C. Gold Company, Inc., that:

1. This case concerns a drill site near Ditch Creek in Salmon National Forest, Idaho.  Previous exploratory drilling had established the presence of a gold deposit in the Ditch Creek area.  The purpose of the drilling at this site in 1989 by Elsing Drilling and Pump, Inc., an independent contractor, was to extract core samples of the gold deposit in the Ditch Creek area.

2. The Commission has granted discretionary review, in part, concerning whether the Administrative Law Judge erred in ruling that Respondent failed to establish that the Ditch Creek drillsite was exempt from the requirements of the Act pursuant to Section 4(b)(1) of the OSH Act.

3. After a review of the record evidence and consultation with officials of OSHA and MSHA regarding the specific facts of this case, Complainant concludes that the Ditch Creek drill site came under the regulatory authority of the Mine Safety and Health Administration and was exempt from the requirements of the Act pursuant to Section 4(b)(1) of the OSH Act.

4. Complainant hereby withdraws with prejudice all citations issued to respondent on January 3, 1990, including Citation No. 1, Items 1 and 2, the complaint, and the notification of proposed penalty.

5. The parties request that the Commission set aside the ALJ's decision in this case.

6. Each party agrees to bear its own fees and other expenses incurred by such party in connection with any stage of this proceeding.

7. Respondent states that there are no authorized employee representatives of affected employees.

8. The parties agree that this Stipulation and Settlement Agreement is effective upon execution.

9. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at its Salmon, Idaho worksite on the 10th day of December, 1991, and will remain posted for a minimum period of ten (10) days. Respondent avers that its employees report to the Salmon worksite on a regular basis.

10. This Stipulation and Settlement Agreement shall not be deemed to constitute an admission by respondent concerning any matter contained within the citations, notification of penalty, and the complaint, and shall not be deemed to constitute an admission by respondent of a violation of any state or federal law or regulation.

James J. Gonzales (Date) Attorney for F.M.C. Gold Company, Inc.
Holland & Hart
Orlando Pannocchia (Date)
Attorney for the
Secretary of Labor
U.S. Department of Labor Office of the Solicitor







APPEARANCES: For the Complainant:

Jay A. Williamson, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington

For the Respondent:
James J. Gonzales, Esq., Holland & Hart,
Denver, Colorado


Loye, Judge:
This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C. Section 651 et seq.; hereafter called the "Act").

Respondent, FMC Gold Company, Inc. (FMC), is an employer with its principle offices at 5011 Meadowwood Way, Reno Nevada, whose primary purpose is the location of gold mines (Answer, 2; Tr. 273).  FMC is engaged in a business affecting commerce as it regularly uses the mail and other facilities of interstate commerce as well as goods transported in interstate commerce to conduct its business (Request for Admissions 1-3).  Respondent is, therefore, an employer within the meaning of and subject to the Act.  Jurisdiction is correctly in the Occupational Safety and Heath Review Commission under 29 U.S.C. 652(5).

Following an inspection of respondent's workplace in the Salmon National Forest, Idaho, on November 1, 1989, by the Occupational Safety and Health Administration (OSHA), the Secretary of Labor issued citations to FMC alleging violation of 29 CFR 5(a)(1), 1910.1200(e)(i), 1920.1200(g)(i) and 1920.1200(h).  Penalties totaling $1,710.00 were proposed.  Respondent timely contested the citation.

On August 6 and 7, 1990 a hearing was held in Coeur d'Alene, Idaho.  Additional testimony was received on January 11, 1991 in Salt Lake City, Utah.  Both parties have filed briefs, and this case is now ready for decision.

Alleged Violation

Serious citation 1, item 1 alleges:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970:  The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to:

(a) Drill Site Located on Ditch Creek - On or about October 26, 1989, and times prior thereto, mobile equipment was not blocked and/or the wheels turned into the bank to prevent unexpected movement on inclined roads.

Among other methods, one feasible and acceptable abatement to correct this hazard is to block/chock the wheels of mobile equipment.

Serious citation 1, item 2 alleges:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970:  The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to:

(a) Drill Site Located on Ditch Creek - On or about October 26, 1989, and times prior thereto, no reliable means of communication was provided for obtaining assistance in the event of an emergency.

Among other methods, one feasible and acceptable abatement method to correct this hazard is to install a two-way radio in all mobile equipment used on drill sites.

Section 5(a)(1) of the Act provides:

Sec.5.(a) Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

Serious citation 1, item 3 alleges:

The alleged violations below have been grouped because they involve similar or related hazards that may increase the potential for injury resulting from an accident.

29 CFR 1910.1200(e)(1):  Employer had not developed or implemented a written hazard communication program which describes how the criteria in 29 CFR 1910.1200(f), (g) and (h) will be set:

(a) F.M.C. Gold - Employees are potentially exposed to hazardous chemicals such as, but not limited to, fuels, lubricants, drilling mud, and silica.

29 CFR 1910.1200(g)(1):  Employer did not have a material safety data sheet for each hazardous chemical used in the workplace:

(a) F.M.C. Gold - No material safety data sheets to cover hazardous chemicals such as, but not limited to, fuel, drill mud, and silica.


29 CFR 1910.1200(h):  Employees were not provided information and training as specified in 29 CFR 1910.1200(h)(1) and (2) on hazardous chemicals in their work area at the time of their initial assignment and whenever a new hazard was introduced into their work area:

(a) F.M.C. Gold - Employee(s) working in and around the drill riggs (sic) were exposed to hazardous chemicals such as, but not limited to, fuel, drill mud, silica, and lubricants.

The cited standards provide:

29 CFR 1910.1200(e)(1):

(e) Written hazard communication program.  (1) Employers shall develop, implement, and maintain at the workplace, a written hazard communication program for their workplaces which at least describes how the criteria specified in paragraphs (f), (g), and (h) of this section for labels and other forms of warning, material safety data sheets, and employee information and training will be met, and which also includes the following:

29 CFR 1910.1200(g)(1):

(g) Material safety data sheets.  (1) Chemical manufacturers and importers shall obtain or develop a material safety data sheet for each hazardous chemical they produce or import.  Employers shall have a material safety data sheet for each hazardous chemical which they use.

ton pickup modified to carry diesel fuel, was parked approximately 20 feet up the road from Elsing's drill rig, facing downhill (Tr. 265).  Schaubs and Filsinger backed the FMC truck down the road and parked about 12 feet above the Elsing truck (Tr. 266).

Mr. Filsinger's duties on October 26th were to assure that drill samples were collected properly, and to carry them back to the tailgate of the FMC truck, where Schaubs was examining the samples "as to lithology, alteration, [and] any possible mineralization. . .," and logging his observations (Tr. 271).

At about 3:52 p.m. that afternoon (Tr. 267), an Elsing employee, Tracy James, prepared to refuel the drill rig.  James chocked one wheel of the Elsing truck, started up the engine, and put the truck in neutral (Tr. 209-210, 227, 231, 245, 324-331; Ex. R-A, R-C p. 2, 6).  While James was unstringing the hose, the Elsing truck rolled over the chocks, down the hill and pinned Brad Filsinger between itself and the drill rig.  Though Schaubs immediately transported him to the nearest hospital, in Salmon, Filsinger's injuries proved fatal (Tr. 289, 300).

4(b)(1) Exemption

Respondent contends that the FMC drill site named in the citation is exempt from requirements of the Act pursuant to 4(b)(1) of the Act.   Section 4(b)(1) provides that:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies. . .exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

In its brief respondent claims that working conditions at the FMC drill site were governed by occupational safety and health regulations promulgated by the Department of Transportation or, alternatively, by regulations of the Mine Safety and Health Administration.  (See also, Tr. pp. 167, 391; FMC representatives stated that they believed that the worksite was subject to and that they had a duty to comply with MSHA regulations).

In order to establish a section 4(b)(1) exemption, it must be shown that an agency other than OSHA has the statutory authority to regulate the health and safety of certain workers, and that the other agency exercised its statutory authority in such manner as to exempt the cited working conditions.  Northwest Airlines, Inc., 8 BNA OSHC 1982 (No. 13649, 1980).  The burden of proving that another agency has so exercised its authority is on the employer claiming the 4(b)(1) exemption.  Idaho Travertine Corp., 3 BNA OSHC 1535 (No. 1134, 1975); Crescent Wharf & Warehouse Co., 2 BNA OSHC 1623 (No. 1672, 1975).

Respondent introduced no evidence on the exemption issue, but cites 49 CFR 392.20 of the Federal Motor Carrier Safety Regulations, and various sections of CFR Title 30, regulations of the Federal Mine Safety and Health Administration (MSHA).

49 CFR 392.20 establishes safety regulations of general applicability for commercial motor vehicles and employees involved in the operation of same.  Commercial motor vehicles are defined at 390.5.

Commercial motor vehicle means any self-propelled or towed vehicle used on public highways in interstate commerce to transport passengers or property when:  (a) The vehicle has a gross vehicle weight rating or gross combination weight rating of 10,001 or more pounds; or (b) The vehicle is designed to transport more than 15 passengers, including the driver; or (c) The vehicle is used in the transportation of hazardous materials in a quantity requiring placarding under regulation issued by the Secretary under the Hazardous Materials Transportation Act (49 U.S.C. App. 1801-1813).

It is clear from the evidence in the record that neither the FMC nor the Elsing truck is a commercial motor vehicle as defined by 49 CFR 390.5(a) or (b).  Moreover, respondent failed to demonstrate that the quantities of diesel fuel transported by the Elsing vehicle brought it under the placarding requirements of the Hazardous Materials Transportation Act.

Respondent has failed to show that the Federal Motor Carrier Safety Regulations are applicable to the vehicles at issue or that they exempt respondent from coverage under the Act.

Title 30 CFR 56 et seq. sets forth "mandatory safety and health standards for each surface metal or nonmetal mine, including open pit mines, subject to the Federal Mine Safety and Health Act of 1977."  30 CFR 57 regulates underground metal or nonmetal mines.  The term "mine" is not defined for the purposes of 56 and 57; however, Mr. Larry Weberg, a Supervisory Inspector with MSHA (Tr. 61), testified that MSHA does not exercise any authority over exploratory drilling prior to the development of an area for the commercial extraction of minerals (Tr. 62-63, 81-82). Specifically, Weberg stated that MSHA standards were inapplicable to FMC's drill site at Ditch Creek in the Salmon National Forest (Tr. 67).

The evidence clearly establishes that the Ditch Creek site was an exploratory drill site.  Larry Weberg testified, without contradiction, that MSHA exercises no authority over exploration.  Respondent has not, therefore, shown that its Ditch Creek operations were exempt from OSHA regulation under 4(a)(1) of the Act.[[2]]

Alleged Violation of 5(a)(1)
Serious Citation 1, item 1

It is uncontested that on October 26, upon Schaubs' and Filsinger's arrival at the drill site, the Elsing and FMC trucks were parked in gear with their emergency brakes on, but the wheels were neither chocked nor turned into the bank (Tr. 248, 266-267, 268- 269, 317-318).  Schaubs testified that he was not aware of any instances of a truck in gear with its brakes engaged rolling out of a parked position, and was unaware of any hazardous condition on the site (Tr. 320).

OSHA Compliance Officer Jack Heier testified, based on his past inspections of mining and logging companies, that it is standard practice within those industries, while working in national forest Iands, to permanently mount chocks on their vehicles for use when parking on grades.  In addition vehicle wheels are turned into the hillside (Tr. 118, 121-123).[[3]]

Mine Safety and Health regulations, specifically 30 CFR 56.14207 require the chocking or turning of wheels:

Mobile equipment shall not be left unattended unless the controls are placed in the park position and the parking brake, if provided, is set.   When parked on a grade, the wheels or tracks of mobile equipment shall be either chocked or turned into a bank.

MSHA Inspector Weberg testified that 56.14207 was applicable to any unattended motor vehicle parked on a grade if, when taken out of gear with the emergency brake off, the vehicle started to roll of its own weight (Tr. 79-80).   A vehicle is unattended unless there is an operator in the cab of the vehicle (Tr. 81).  Weberg stated that the standard assumes the failure of the brake and gear mechanism and is intended to protect from mechanical failure (Tr. 82).


The Commission has held that:

To prove that an employer violated section 5(a)(1), the Act's general duty clause, the Secretary must prove that the cited employer failed to free the workplace of a hazard that was recognized by the cited employer or its industry, that was causing or likely to cause death or serious physical harm, and that could have been materially reduced or eliminated by a feasible and useful means of abatement.

Pelron Corporation, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986).

The Commission has held that a recognized hazard is a practice, procedure or condition under the employers' control that is generally known to be hazardous in the industry.   "Thus, whether or not a hazard is 'recognized' is a matter for objective determination. It does not depend on whether the particular employer appreciated the nature of the hazard."  Georgia Electric Co., 5 BNA OSHC 1112, 1115, 1116 (No. 9339, 1977).

The feasibility of the Secretary's suggested abatement depends on whether such precautions are recognized by "knowledgeable persons familiar with the industry as necessary and valuable steps for a sound safety program in the particular circumstances existing at the employer's worksite."  Cerro Metal Products Division, Marmon Group, Inc. 12 BNA OSHC 1821, 1822, 1823 (No. 78-5159, 1986).

The evidence establishes both that the mining industry recognizes the hazard of being struck by a driverless vehicle rolling down an incline and that chocking or turning the wheels of a vehicle are considered appropriate methods of abatement.  This Judge finds that respondent's exploration activities, though not directly subject to MSHA regulation, are sufficiently related to the mining industry that knowledge of hazards recognized by MSHA is imputable to FMC. Respondent's argument that it believed its operations to have been covered by MSHA regulations while simultaneously claiming to have been ignorant of the requirements of those regulations is especially disingenuous.  Every employer has a duty to inform itself of regulations affecting its operation.  FMC therefore should have been aware of the MSHA regulation requiring the blocking or turning of wheels into a bank.

The accident which occurred on October 26 amply demonstrates that being struck by a driverless vehicle may result in death or serious bodily harm.

Complainant has demonstrated that FMC, in failing to chock or turn the wheels of its vehicle into the bank, was in violation of 5(a)(1) of the Act.   As the violation has been established, this Judge need not and does not consider whether FMC had an additional duty to assure that its contractor, Elsing Drilling and Pump, had freed its workplace of those same hazards.

Alleged Violation of 5(a)(1)
Serious Citation 1, item 2

It is also uncontested that there was no radio, telephone or other two-way emergency communication system at the Ditch Creek drill site (Tr. 291, 297).  Respondent acknowledges that it was a 15 to 20 minute drive to the nearest two-way communication (Tr. 202-203).  Schaubs and Filsinger had a telephone at their trailer office in North Fork about seven miles from the drill site (Tr. 297, 300).   There was also two-way radio communication available at the North Fork Ranger station, eight miles from the Ditch Creek site (Tr. 53-54).

Compliance Officer Heier testified that it is standard practice within the mining or logging industries operating out of the national forests to establish two-way communications by mobile radio to contact the outside in the event of an emergency (Tr. 123; See also, Schaubs' testimony regarding Meridian Gold's two-way communication system, Tr. 291-293).  CO Heier stated that a radio is essential to avoid delays in obtaining assistance.  There may be no vehicle operational for transporting an injured party, or the injury may prevent a victim from being moved (Tr. 247).

MSHA inspector Weberg testified that MSHA requires that suitable communication systems be established at mine sites (Tr. 65).  30 CFR 56.18013 provides that "[a] suitable communication system shall be provided at the mine to obtain assistance in the event of an emergency."

Respondent's own Safety and Health Program provides for mobile radio telephones so that "[a]ll field crews can be in constant communication with each other for routine activities and more important, if an emergency arises, help can be summoned" (Tr. Ex. C-14, p. 337).  FMC originally made radio telephones available on its project sites, from 1985 through 1987, but found that with that system they were unable to transmit out of the line of sight (Tr. 298-299, 341, 348-349).   Radios were then provided only on an employee's request (Tr. 349-350).  FMC looked into the use of back-country radios but decided that "because of the cost involved and because of the personal pressures of one of our corporate officers that we were not going to use that particular type of a system because we didn't want a bay station" (Tr. 351-352).

Mr. Joseph Syczylo testified that he sells, installs and services two-way back-country radios in the Salmon National Forest area (Tr. 41-42).   Mr. Syczylo stated that radios on a high frequency single side band, at 4.6375 megahertz, with a peak envelope power from 110 to 150 watts, have been in use in the North Fork Ranger District for approximately 25 years (Tr. 43-44).  The cost of a radio unit and antenna is between $1,700.00 and $2,500.00 (Tr. 48). A mobile unit with a CB antenna normally has a range of from 50 to 75 miles in canyon conditions (Tr. 45).   In Salmon, Idaho, approximately 30 miles from the Ditch Creek site, Wilderness Air, a back-country radio service, monitors radio bands, takes messages and acts as a relay station for remote ranches, outfitters and guides from 6:00 a.m. to 6:00 or 7:00 p.m. daily.  For a charge of $45.00 per month any party can contract with Wilderness Air to provide radio services on one of their approximately 40 licensed bands (Tr. 46-48).   Syczylo testified that back-country radios transmitting from the North Fork Ranger District are in excess of 90% effective in attempted communications with Salmon, Idaho (Tr. II, p.104).[[4]]


The evidence establishes not only that the mining industry, but FMC itself recognized that the lack of two-way communication from a remote worksite is hazardous. The Ditch Creek site was remote, 15 to 20 minutes from the nearest phone, and the inability to contact outside help from the site could have resulted in the delayed treatment or the aggravation of serious injury.

This Judge finds that back-country radio service was known of and available to FMC. FMC's desire not to use a bay station is insufficient to relieve it of its duty to provide working two-way communication to its employees. Moreover, making radio phones, which had already proved inadequate, available to employees on an "as requested" basis is insufficient to fulfill that duty.

Complainant has shown a violation of 5(a)(1).


The Secretary has proposed penalties of $720.00 for each 5(a)(1) violation. FMC is a large company (Tr. 354). The Secretary introduced no evidence of prior violations. The existence of specific MSHA standards which governed the cited hazards, and which FMC believed were applicable to its operations, militates against any reduction for good faith. The gravity of the violations is high, both FMC employees on the site were exposed to hazards which could have caused or aggravated serious bodily harm.  The proposed penalties are deemed appropriate, and $720.00 will be assessed for each violation.

Alleged Violations of 1910.1200 et. seq.

In its drilling operation, Elsing made use of diesel fuel (Tr. 265), lubricating oils (Ex. C-3, p. 223), and ether (Tr. 247). Respondent admits that FMC had no written hazard communication program at the drill site on October 26, 1989 (Tr. 286-287).

The Hazard Communication Standard at 1910.1200 et seq. requires employers to provide information to their employees about hazardous chemicals known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.  This Judge does not believe, however, that the standard requires the employer to anticipate the use of hazardous chemicals by other employers at remote multi-employer worksites, or to institute a written hazard communication program addressing hazards to which their own employees might be incidentally exposed when visiting or conducting separate duties at the worksites of other employers.

Section 1910.1200 (e)(2) specifically addresses the multi-employer worksite and provides:

(2) Multi-employer workplaces.  Employers who produce, use, or store hazardous chemicals at a workplace in such a way that the employees of other employer(s) may be exposed (for example, employees of a construction contractor working on-site) shall additionally ensure that the hazard communication programs developed and implemented under this paragraph (e) include the following:

(i) The methods the employer will use to provide the other employer(s) with a copy of the material safety data sheet, or to make it available at a central location in the workplace, for each hazardous chemical the other employer(s)' employees may be exposed to while working;

(ii) The methods the employer will use to inform the other employer(s) of any precautionary measures that need to be taken to protect employees during the workplace's normal operating conditions and in foreseeable emergencies; and,

(iii) The methods the employer will use to inform the other employer(s) of the labeling system used in the workplace.

(3) The employer may rely on an existing hazard communication program to comply with these requirements, provided that it meets the criteria established in this paragraph (e).

It is undisputed that the hazardous chemicals on the Ditch Creek drill site were provided by and used in Elsing's operations and not those of FMC.   Under 1910.1200(e)(2) Respondent was entitled to rely on Elsing's hazard communication program to provide material safety data sheets and to apprise FMC employees of any precautionary measures that needed to be taken with regard to chemicals in use by Elsing.

Complainant has failed to show that FMC was in violation of 1910.1200 et seq. on October 26, 1989.  Serious citation 1, item 3 will, therefore, be dismissed in its entirety.

Findings of Fact and Conclusions of Law

All findings of fact and conclusions of law relevant and necessary to a determination of the contested issues have been found specially and appear in the decision above.  See Rule 52(a) of the Federal Rules of Civil Procedure.   Proposed Findings of Fact or Conclusions of Law that are inconsistent with this decision are denied.


1. Serious citation 1, item 1, alleging violation of 5(a)(1) of the Act is AFFIRMED, and a penalty of $720.00 is ASSESSED.
2. Serious citation 1, item 2, alleging violation of 5(a)(1) of the Act is AFFIRMED, and a penalty of $720.00 is ASSESSED.
3. Serious citation 1, items 3A, 3B, and 3C, alleging violations of 1910.1200(e)(1), (g)(1) and (h), respectively, are VACATED.

Benjamin R. Loye
Judge, OSHRC
Dated: April 19, 1991


[[2]] In its brief respondent also argues that 5(a)(1) is preempted by specific OSHA regulations.  That issue was disposed of by motion at the hearing and will not be discussed here (Tr. 6).  Respondent's due process argument is also found to be without merit.

[[3]] Complainant introduced the U.S. Army Corps of Engineers' Safety and Health Requirements Manual and the U.S. Department of the Interior Bureau of Reclamation's Construction Safety Standards to show industry recognition of the cited hazard (Ex. C-4, C-5).  According to CO Heier, the U.S. Army Corps of Engineers in Idaho is involved in surface construction on military installations (Tr. 126).   The Bureau of Reclamation is involved with dam reconstruction (Tr. 132).  It is the opinion of this Judge that those activities are not sufficiently related to the mining and exploration industries that the standard practices of the agencies involved constitute evidence of hazard recognition imputable to FMC.

[[4]] Joseph Syczylo's testimony, based on practical experience with a working system, is credited over that of respondent's witness Frank Wozniak, who testified that communications via high frequency radios are ineffective because they are susceptible to skip zones and shadow losses (Tr. II, pp. 18, 21-26, 30-32).