8.   The alleged violation was abated in good faith.

 

 

BACKGROUND

 

            The Maysville Mine is an underground limestone mine which produces chemical grade limestone for industrial use. Tr. 34-35. After being mined, the limestone is crushed into the desirable size underground and is carried to the surface via a series of conveyor belts. Tr. 36. One of the conveyor belts at the mine is the M-29 conveyor belt. The M-29 belt is kept taut along its rollers while transporting crushed limestone, a heavy product, by a 10,000 lb. counterweight which is suspended from the underside of the belt. Gov’t. Br. 8 n.5.

 

            The Link Belt RTC-8035 Crane is the only underground crane at the Maysville Mine. Tr. 208-209. It is designed to lift heavy loads to different heights and locations. Gov’t. Br. 5. The crane’s maximum rated lifting capacity, under ideal circumstances and working conditions, is 35 tons (77,000 lbs). Tr. 213. The hoist mechanism is located behind the hoist operator’s cab. A hoist line runs along the length of the crane’s boom from the crane’s hoist mechanism. At the end of the boom the hoist line is attached to a hook. When a load is lifted, the hook is attached to the load, the hoist mechanism reels in the hoist line, and the load is raised. Gov’t. Ex. 8. The crane’s boom has a computerized “boom angle indicator” which calculates the angle of the boom in relation to the body of the crane. Tr. 58-59. The crane is mounted on an undercarriage with four tires which are used to transport the crane to its designated location. Tr. 60. Once at the designated location, the individual acting as the crane operator must decide whether to let the crane remain on its tires, or to utilize the crane’s outriggers.

There are four outriggers, one on each corner. Their purpose is to level and stabilize the crane. Each outrigger has three components. The first is a horizontal outrigger beam, an arm-like steel beam structure which may be adjusted outward from the center of the crane to provide the crane with a wider base. Gov’t. Ex. 8. The second is a vertical shaft located at the end of the outrigger beam, which extends downward at a 90 degree angle from the outrigger beam. Id. The third is a pontoon or float which is located at the end of the vertical shaft and rests on the ground. Id. The float is attached to the vertical shaft with a ball and socket joint which allows the float to be located on slightly un-level ground. Id. When the crane is used on outriggers, each of the four floats functions as a foot of the crane with each float spreading out the weight of the crane upon the ground. Gov’t. Br. 6. The outriggers can be used in three configurations - the outriggers may be fully extended (the maximum length of the outriggers), intermediately extended, or fully retracted (the minimum length of the outriggers). Resp’t. Ex. 2, at 5. The length to which the outriggers are extended is a factor in determining the rated lifting capacity of the crane. Resp’t. Ex. 2.  

 

 

SECRETARY’S WITNESS

 

Richard L. Jones

 

            MSHA Inspector Richard L. Jones was the only witness called by the Secretary. Tr. 3-5. Inspector Jones has been employed with MSHA for 25 years. Tr. 16-17. During his employment with MSHA, he has regularly inspected cranes used on mine property. Tr. 18. Prior to working for MSHA, Jones spent five years working in Kentucky coal mines and three years working in the State Mine Inspector’s Office in Arizona; he came in contact with cranes in both these positions. Tr. 29-30. Jones has a degree in mine inspection from Marshall University and between 1988 and 2011, he completed five crane safety classes. Tr. 18, 32. However, Jones conceded that he did not sufficiently understand crane operation to fully operate a crane. Tr. 22-23. Prior to the July 16, 2009 inspection, Jones had frequently inspected Carmeuse’s Maysville Mine. Tr. 32-33.

 

            On July 16, 2009, during his inspection of the Maysville Mine, Jones came across an area beneath the M-29 conveyor belt where he observed the Link Belt RTC-8035 Crane. Gov’t. Ex. 1, at 1-2. The crane operator had set up the crane the prior day, on July 15, 2009, to repair the M-29 belt which had broken and dropped its 10,000 lb. counterweight. To repair the belt, Carmeuse had to lift the counterweight and secure it to the belt frame, repair the belt by placing a saddle (belt splice) across the torn section, and then place the counterweight back into position under the belt. Gov’t. Br. 8.

 

After he arrived at the crane’s location, Jones testified that he noticed that the float of the right front outrigger was located on unstable ground. Half of the float was sitting on a solid surface and half had sunk into wet unstable ground. The unstable ground was a foot deep and had the appearance of wet concrete. Tr. 92-94. Jones testified that the sunken part of the float caused the float to tilt at a severe angle away from the body of the crane. Tr. 80., Gov’t. Br. 9. The hydraulic cylinder (the vertical shaft of the outrigger) was 3.5 degrees out of plumb and the float was 7.5 degrees out of level, sloping away from the crane based on measurements taken by Jones with his iPhone. Tr. 194.

 

Wooden cribbing had been placed under the portion of the float located in the wet material, but Jones testified that the cribbing failed to effectively widen the footprint of the float since it was of uneven thickness, was not anchored together to prevent the float from shifting, and was smaller than the float. Tr. 99, 101. He testified that the ball and socket joint which attached the float to the vertical shaft permitted the float to be placed on un-level ground, but not on unstable ground. Tr. 113. In addition, the load was being lifted over the right front outrigger thus placing immense pressure on this outrigger. Tr. 128. Jones alleged that if the right front outrigger stayed sunken in the unstable ground, the pressure on the outrigger could pull the entire crane over causing the crane to topple and severely injure nearby miners including the crane operator. Tr. 131. 

            While conversing with Carmeuse’s employees, Jones determined that the maintenance supervisor, Gerald Fields, on July 15 (the day prior to the inspection) observed the crane lift a 10,000 lb. counterweight while the float was sunk into the unstable ground. Jones testified that Fields allowed the lift even though he was aware that the ground was unstable (in his notes, Jones wrote that Fields admitted to him that the condition of the right front outrigger was unsafe). Gov’t. Ex. 2., Tr. 178. As a result of his observations and conversations, Jones issued Citation No. 6510324 to Carmeuse for a violation of 30 C.F.R. § 57.14205, which states that “[m]achinery, equipment, and tools shall not be used beyond the design capacity intended by the manufacturer, where such use may create a hazard to persons.” Gov’t. Ex. 1, at 1-2. He alleged that on July 15, by operating the crane while its right front outrigger was sunk in unstable ground, Carmeuse violated the design capacity of the crane, as intended by the manufacturer. He testified that his understanding of the manufacturer’s intended design capacity was based on a provision of the crane operator’s manual which states that:

 

The outrigger pontoons [floats] must set on a smooth, solid surface flush with ground with no hills or valleys under them, or they may be damaged or destroyed. If there is any doubt as to the ground condition, use mass under pontoons. Check pontoons before and during operations. If they are allowed to settle, they may lose their effectiveness and make continued operation unsafe.

 

            Gov’t. Ex. 4-22, Tr. 90 

 

Prior to issuing the citation, Jones only read the crane operator’s manual, not the crane ratings manual. Tr. 185-186. As a result, Jones conceded that he did not check the charts in the crane ratings manual to determine the crane’s rated lifting capacity. Tr. 78. He stated that his main concern was the unstable ground, not the charts. Tr. 182-186. Jones asserted that the violation was easily remedied by drawing in the right outriggers, which were fully extended, to an intermediately extended position. Tr. 137. After drawing in the right outriggers, all the outriggers were on stable ground (and all the outriggers were equidistant from the body of the crane). 

 

 

CARMEUSE’S WITNESSES

 

            Carmeuse’s witnesses consisted of five employees who worked at the Maysville Mine between July 15 and July 16, 2009. Three of the witnesses - Donald Cooper, Jack Stafford and Darren Payne - set up the crane for operation on July 15. A fourth witness - Gerald Fields - observed the crane on July 15 and talked with Inspector Jones during the inspection of the crane on July 16. The fifth witness, Edward Reinders, accompanied Inspector Jones on his inspection of the crane.

 

Donald Cooper

 

            In July 2009 Donald Cooper was employed as a mine maintenance employee at the Maysville Mine. Tr. 207. As part of his job, he personally used the Link Belt RTC-8035 crane once a month. Tr. 209. Prior to the issuance of Citation No. 6510324, Cooper had received eight hours of training on the use of the crane from Link Belt, the crane manufacturer. Tr. 209-210. Cooper testified that on July 15, 2009, he, Jack Stafford and Darren Payne set up the crane for lifting the counterweight. Tr. 215-216. Cooper, the crane operator, operated the crane from the crane cab while Stafford and Payne were on the ground checking to make sure the crane was stable. Tr. 214-215. Cooper testified that during set up, he first lowered all four of the crane’s outriggers onto the ground. He was able to fully extend the two right outriggers, but not the two left outriggers because of a rib (underground wall) on the left side of the crane. Tr. 217.

 

Three of the outriggers were lowered onto solid rock from the outset, but the fourth - the right front outrigger - was initially lowered onto wet and unstable ground. Cooper then raised the right front outrigger after which Stafford and Payne installed cribbing underneath the float of the outrigger. Tr. 217-218. Cooper then lowered the outrigger for a second time, and the outrigger’s float again sank into the ground. Id. For a second time, Cooper raised the outrigger after which Stafford and Payne shoveled some of the unstable ground underneath the outrigger and installed additional cribbing. Id. Cooper then lowered the outrigger for a third time. Id. Cooper testified that the third time he lowered the right front outrigger, he was satisfied that the outrigger was on solid ground. Id.

 

Cooper determined that the crane was level using a device within the cab. Tr. 222-223. He also conducted a test lift in which the counterweight was lifted a couple feet before being lowered. During the test lift, the right front outrigger remained stationary indicating that the ground below it was stable. 227-230. After determining that the crane was level and that the outriggers were stable, he used the crane to lift the counterweight and attach it to the belt frame. Tr. 230. Cooper noted that the rated lifting capacity of the crane according to the crane monitor was 24,000 lbs., much greater than the weight of the load (the 10,000 lb. counterweight). Tr. 223.

 

 The crane computer inside the crane cab determines whether the crane is safe for use based on a number of factors including the lengths of the extended outriggers, the boom angle, the length of the boom, and the weight of the load. Gov’t Br. 7. In this regard Cooper conceded that on July 15, prior to the crane’s lift of the counterweight, he entered inaccurate data into the crane computer. Cooper input into the computer that all four outriggers were fully extended when in fact only the two right outriggers were fully extended (the two left outriggers were intermediately extended). Tr. 251. However, Cooper explained that the non-equidistant outriggers on July 15 did not render the crane unsafe. He testified that the outriggers were fully extended on the right side for the purpose of stability since the load would be lifted over the right side. Tr. 219-221. Having the right outriggers fully extended while the left outriggers were intermediately extended was preferable to the alternative of having all outriggers intermediately extended. Tr. 249-250.

 

Jack Stafford

 

            In July 2009, Jack Stafford was employed as a mechanic at the Maysville Mine. Tr. 253. As part of his job he used cranes three to four times a week. Id. He had 15 years of mining experience. Prior to his mining career, he had 15 years of experience with cranes during his time working on bridges. Tr. 254-255. Stafford corroborated Cooper’s testimony that the crane’s right front outrigger rested on stable ground prior to lifting the counterweight. Tr. 262-263.  

 

Stafford estimated the crane’s rated lifting capacity based on the chart for fully extended outriggers in the crane rating manual as 19,900 lbs. (the calculation was based on fully extended outriggers, boom mode B, boom angle of 55 to 60 degrees and boom length of 60 feet). Tr. 275,

             Resp’t. Ex. 2, at 11. Alternatively, the rated lifting capacity based on the chart for intermediately extended outriggers would be 13,400 lbs. Resp’t. Br. 11-12, Resp’t. Ex. 2, at 23. Both rated lifting capacities are greater than the 10,000 lb. weight of the counterweight. However, Stafford conceded that his estimate of the length and angle of the crane was based on a photograph of the crane taken on July 16, 2009, not on actual measurements of the crane. Tr. 269-270, Gov’t. Br. 3, Gov’t. Ex. 3-10.  

 

Darren Payne

 

            In July 2009, Darren Payne was employed as a mechanic at the Maysville Mine. Tr. 289. He had 16 years of mining experience. Tr. 290. Payne corroborated Cooper’s testimony that the crane’s right front outrigger rested on stable ground prior to lifting the counterweight. Tr. 294.

Gerald Fields

 

            In July 2009, Gerald Fields was employed as a maintenance supervisor at the Maysville Mine where he has worked for 30 years. Tr. 302-303. On July 15, he assigned Donald Cooper, Jack Stafford and Darren Payne to use the crane to lift the counterweight back to the belt frame. Tr. 304-305. Fields testified that he was asked by Stafford to watch the right front outrigger for any movement during the test lift, and that he observed that the outrigger was stationary during the test lift. Tr. 307-308. He denied admitting to Inspector Jones that the condition of the right front outrigger was unsafe, claiming that if he thought the crane was unsafe, the crane would not have been operated. Tr. 313-314. Fields corroborated Cooper’s testimony that the crane’s right front outrigger rested on stable ground prior to lifting the counterweight. Tr. 308.

 

Edward Reinders

 

In July 2009, Edward Reinders was the Health and Safety Manager at the Maysville Mine. He has a Bachelor of Science in occupational safety from Iowa State University, and has spent 15 years in the mining industry. Tr. 317-318. Reinders corroborated Cooper’s testimony that the crane’s right front outrigger rested on stable ground prior to lifting the counterweight. Tr. 339. 

 

 

ANALYSIS

 

Citation No. 6510324

 

Section 57.14205 states that “[m]achinery, equipment, and tools shall not be used beyond the design capacity intended by the manufacturer, where such use may create a hazard to persons.” Gov’t. Ex. 1, at 1-2. The Secretary bears the burden of establishing all elements of a violation by a preponderance of the evidence. Jim Walter Resources, Inc., 28 FMSHRC 983, 992 (Dec. 2006). The Secretary, relying on Inspector Jones’s testimony, first alleges that on July 15, 2009, while the crane was in operation, 1) the ground underneath the float of the right front outrigger was unstable and 2) the crane’s outriggers were non-equidistant from the body of the crane (the left outriggers were intermediately extended while the right outriggers were fully extended). Gov’t. Br. 11-13. Second, the Secretary alleges that the combination of these adverse work conditions caused the crane to be used beyond the design capacity intended by the manufacturer under 30 C.F.R. § 57.14205. Gov’t. Br. 10-13. Since the court concludes that the application of the standard to the facts of the case required the Secretary to prove the quantitative rated lifting capacity of the crane when used as cited, and since the Secretary failed in that regard, the court, as set forth below, holds that the Secretary failed to meet her burden of proof. 

The Secretary assumes that the design capacity intended by the manufacturer can be found by perusing the operator’s manual and the crane ratings manual. Therefore, if a crane violates a provision in the manual, it violates the governing standard. Gov’t. Br. 11-13. Regarding the provisions in the manuals, Inspector Jones testified that certain provisions in the operator’s manual (hereinafter referred to as “general prohibitions”) prohibit outrigger floats from resting on unstable ground and prohibit non-equidistant outriggers. Tr. 90, 118-119. The general prohibitions in the operator’s manual hold that “outrigger pontoons [floats] must be on a smooth, solid surface” and that “when operating on outriggers, all beams must be equally extended.” Gov’t. Ex. 4-9, 4-22. The Secretary interprets these two provisions of the operator’s manual to categorically prohibit outriggers from resting on unstable ground and non-equidistant outriggers. The Secretary argues that under the operator’s manual, if an outrigger rests on unstable ground or if the outriggers are non-equidistant, the crane is unsafe for lifting any load. Tr. 202-206. 

 

Regarding unstable ground, Jones testified on the basis of his own knowledge that if the ground below the float of an outrigger is unstable, the crane cannot safely lift any load since “just the weight of the machine itself could cause . . . the thing to topple over with no load on at all.” Tr. 77. However, he conceded that he did not know the crane’s rated lifting capacity as it was currently set up stating that “I nor anyone else would . . . have the capacity to understand what it’s [crane’s] capable of doing unless its set up right.” Tr. 78. He also conceded that he did not look at the charts in the crane rating manual to determine the rated lifting capacity of the crane stating that when he cited Carmeuse, he “wasn’t concerned about the 10,000 lbs. [weight of counterweight],” but was simply concerned about the unstable ground. Tr. 183-185.

 

Regarding non-equidistant outriggers, the Secretary claims outriggers which are extended to different lengths from the crane’s body are categorically prohibited by the crane computer. In other words, if the crane computer determines that the outriggers are non-equidistant, the computer will immediately shut down to prevent unsafe use. Gov’t. Br. 9-10, 12. Cooper conceded that he entered equidistant lengths for all four outriggers into the computer, thus entering inaccurate data into the computer. Tr. 251. The Secretary alleges that Cooper purposely bypassed the crane computer’s safety mechanism since he knew that the computer would automatically shut down if he entered non-equidistant lengths for outriggers. Gov’t. Br. 9-10, 12.

 

Carmeuse first argues that the crane was operated safely. Resp’t. Br. 13-14. Cooper testified that the right front outrigger’s float was placed on stable ground. Tr. 218. This testimony was corroborated by Stafford, Payne, Fields and Reinders. Tr. 262-263, 294, 308, 339. Cooper conceded that the outriggers were non-equidistant, but claimed that since the load would be lifted over the right side, fully extending the right outriggers would increase stability even if the left outriggers were only intermediately extended. Tr. 219-221. Therefore, the non-equidistant outriggers provided for greater crane stability than if all the outriggers were intermediately extended. Tr. 249-250.

 

Alternatively, Carmeuse argues that the Secretary failed to meet her burden to prove a violation since the Secretary, when citing the provisions in the operator’s manual prohibiting unstable ground and non-equidistant outriggers, ignored another provision in the operator’s manual (hereinafter referred to as a “compensatory provision”). Resp’t Br. 12. This compensatory provision allows Carmeuse to continue operating the crane even in the presence of adverse work conditions such as unstable ground as long as Carmeuse compensates for such adverse conditions by reducing the rated lifting capacity of the crane, based on Carmeuse’s judgment and experience. Gov’t. Ex. 4-13. The full compensatory provision in the operator’s manual reads as follows:

 

When such [ideal] conditions cannot be attained, loads being handled must be reduced to compensate. The amount loads are reduced depends upon how good or how poor actual operating conditions are. It is a matter of judgment and experience. Some factors which may require reduction of capacities are:

 

a. Soft or unpredictable supporting surfaces.

b. Wind.

c. Hazardous surroundings.

d. Inexperienced personnel.

e. Poor visibility.

f. Fragile loads. 

g. Crane in poor condition.

h. Condition and inflation of tires.

    When in doubt, do not take a chance. Reduce ratings more than you think you need. 

 

            Gov’t. Ex. 4-13, Resp’t. Br. 12.

 

            A similar compensatory provision is present in the crane ratings manual stating that:  

The user shall operate at reduced ratings to allow for adverse job conditions, such as: soft or uneven ground, out of level conditions, wind, side loads, pendulum action, jerking or sudden stopping of loads, hazardous conditions, experience of personnel, traveling with loads, electrical wires, etc. Side load on boom or fly is dangerous and shall be avoided.

 

Resp’t. Ex. 2, at 4, Resp’t. Br. 12. Carmeuse argues that these compensatory provisions clearly indicate that there is no categorical prohibition against adverse work conditions such as unstable ground and non-equidistant outriggers. At trial Carmeuse cited the text of the compensatory provision in the crane ratings manual. Tr. 272-273. However, both at trial and in arguing her case, the Secretary ignored the existence of these compensatory provisions. Therefore, the validity of these compensatory provisions is not disputed in this proceeding.

 

As will be seen below, the court finds that this case can be resolved solely on the text of the compensatory provisions whose validity and applicability to this matter is not disputed. In light of these compensatory provisions, it is unnecessary to resolve certain factual and legal disputes between the Secretary and Carmeuse. Even if some facts alleged by the Secretary are taken as true (i.e., the ground underneath the right front outrigger was unstable, non-equidistant outriggers harm crane stability), the court would still find that the design capacity of the crane does not include categorical prohibitions against unstable ground and non-equidistant outriggers. Further, even if a legal argument presented by the Secretary is taken as true (i.e., the text of the manuals provide the crane’s design capacity), the court would still find that the design capacity of the crane does not include categorical prohibitions against unstable ground and non-equidistant outriggers.  

 

While both manuals contain general prohibitions proscribing unstable ground and non-equidistant outriggers, they also contain compensatory provisions allowing Carmeuse flexibility to operate the crane in less than ideal conditions. Gov’t. Ex. 4-13, Resp’t. Ex. 2, at 4. The compensatory provisions in each manual simply require that Carmeuse, in light of its judgment and experience, reduce the crane’s rated lifting capacity by incorporating the impact of adverse work conditions. Gov’t. Ex. 4-13. The flexible language of the compensatory provisions is in stark contrast to a genuine categorical prohibition in the crane ratings manual which defines the term No Load Stability Limit as “the radius or boom angle beyond which it is not permitted to position the boom because the crane can overturn without any load on the hook.” Resp’t. Ex. 2, at 4. Therefore, the court notes that there are no categorical prohibitions against operating the crane in the adverse work conditions at issue.           

 

In the context of these compensatory provisions, the Secretary needs to prove a quantitative element to meet her burden of proof. The Secretary needs to show that despite the flexibility of the compensatory provisions, the combined adverse work conditions reduced the crane’s rated lifting capacity below the weight of the counterweight. In other words, the Secretary must show that on July 15, 2009, despite Carmeuse’s ability to compensate for adverse work conditions, the unstable ground and the non-equidistant outriggers quantifiably reduced the rated lifting capacity of the crane below 10,000 lbs. In light of Carmeuse’s evidence that the rated lifting capacity was between 13,400 lbs. and 24,000 lbs., at a minimum the Secretary would need to prove that the rated lifting capacity was 13,400 lbs. and that the unstable ground and non-equidistant outriggers reduced the lifting capacity by more than 3,400 lbs. Resp’t. Br. 11-12, Tr. 223, Resp’t. Ex. 2 at 23. While Carmeuse’s data (which was based on photographs instead of actual measurements) is not as reliable as could be desired, in the absence of any data proffered by the Secretary, it is the only data available. Tr. 269-270, Gov’t. Br. 3, Gov’t. Ex. 3-10.

 

The court recognizes that such a showing is difficult for the Secretary since neither the operator’s manual nor the crane ratings manual quantified the impact of unstable ground or non-equidistant outriggers on rated lifting capacity. Gov’t. Ex. 4-13, Resp’t. Ex. 2, at 4. Such a showing is also rendered difficult by the fact that Inspector Jones made no attempt to calculate the rated lifting capacity of the crane instead citing the crane solely on the basis of unstable ground beneath an outrigger. Tr. 182-186. However, the text of the manuals clearly requires the Secretary to provide quantitative data, and in the absence of quantitative data supporting the Secretary’s argument, the court must hold that the Secretary failed to meet her burden of proof.

 

 

 

 

                                                            ORDER

 

IT IS ORDERED that Citation 6510324 be vacated, the proposed penalty is DENIED, and this case is DISMISSED.

 

 

 

 

 

                                                            /s/ David F. Barbour

                                                            David F. Barbour

                                                            Administrative Law Judge

 

 

Distribution: (Certified Mail)

Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, Tennessee 37219-2456

 

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, Pennsylvania 15222

 

 

/DM