FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

   February 14, 2012

DECISION

Appearances:  Brooke Werner McEckron, Esq., Office of the Solicitor, U.S. Department of Labor,61 Forsyth St., S.W., Room 7T10, Atlanta, GA 30303, for Petitioner;

                        Larry R. Evans, Health and Safety Manager, Oil-Dri Corp. of America, P.O. Box  380, 28990 Georgia Hwy 3 N, Ochlocknee, GA 31773, for Respondent

Before: Judge Rae

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration, against Oil-Dri Corporation of Georgia, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). Docket SE 2008-898-M was initially assigned to Judge Paez while docket SE 2008-1012-M was assigned to Judge Barbour. On September 27, 2010, Judge Paez granted a motion to consolidate those two dockets. On June 24, 2010 docket SE 2008-793-M was assigned to me by the chief judge. Thereafter, on November 18, 2010, the chief judge assigned SE 2008-898-M and SE 2008-1012-M to me. Prior to the hearing, the Secretary vacated citation number 6084950 in docket SE 2008-898-M. Pursuant to my Notice of Hearing, the remaining six citations were heard in Valdosta, Georgia. The parties presented evidence and filed post-hearing briefs.

            On August 19, 2011, I granted a motion made by the Secretary to amend citation numbers 6084953 and 6084954 contained in docket SE 2008-898-M to plead alternative theories of the violations as discussed below.

            The parties entered into written stipulations that were accepted by the Court and entered as Ct. Ex. A.

I.         FINDINGS OF FACT AND CONCLUSIONS OF LAW

            Oil-Dri Corporation of Georgia (“Oil-Dri”) operates the Simpson clay mine. The facility was inspected in early December 2007 by MSHA Inspector David Rosenau and again in June and December 2008 by Inspector James Ellison. They issued the six citations addressed herein.

A.  Significant and Substantial

            A violation is significant and substantial (“S&S”) if the violation is “of such a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §814(d)(1). There must be “a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). Under the National Gypsum definition, “the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard –that is, a measure of danger to safety – contributed to by the violations; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)(footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-104 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (De. 1987) (approving Mathies criteria).

            In order to meet the requirements of the third, and most difficult to establish, element of the Mathias formula, the Commission has provided the following guidance:

We have explained further that the third element of the Mathias formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc. 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining CO., Inc., 6 FMSHRC 1573- 1574 (July 1984).

             This evaluation is made in consideration of the length of time that the condition in violation existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is S&S depends upon the surrounding circumstances of the violation. Texasgulf, Inc, 10 FMSHRC 498 (Apr. 1988); Youghioghen & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

B.  Docket SE 2008-793-M

            1. Citation No. 6107482 dated 12-3-07

            This citation was issued by MSHA Inspector David Rosenau for a violation of 30 C.F.R §56.11002. He assessed the alleged violation as reasonably likely to result in a permanently disabling injury, significant and substantial, and the result of high negligence. The proposed penalty is $1,026.00. The narrative portion of the citation states:

The warehouse east side loading dock adjacent to the rail line has no safety chain, curbing, or handrails for a length of 23 feet. The unguarded condition could allow persons or vehicles to travel off the edge. Persons and forklift equipment travel in the area 24 hours/day and a fall off the 4 foot high concrete deck could be expected to cause serious debilitating injury. It was stated the area was formerly used as a railcar loading position but has been unprotected for an extended period. The condition is obvious to any observer and supervisory personnel are in the area throughout the week.

Ex. S-1.

            The standard cited requires that elevated walkways, ramps and stairways be of substantial construction, provided with handrails and be maintained in good condition.

            Respondent alleges that the loading dock was not a walkway as docks are designed for use primarily by forklifts to load over-the-road trucks, not for persons to travel to and from appointed work areas. They go on to state that the Secretary conceded the invalidity of the citation and changed her theory to a violation of 30 C.F.R. §56.11012 pertaining to travelways. From there, they cite the decision in Secretary of Labor v. Magma Copper Company,1 FMSHRC 837 (July 1979)(ALJ) in which Judge Koutras found the intent of the standard (§56.11012) was to protect miners who use a travelway on a regular and frequent basis to move to and from their regular duty stations or in and about the mine. (Post Hearing Brief For Oil-Dri.) The Respondent is incorrect in their statement that the Secretary changed her position with respect to this alleged violation. The Secretary did not seek to amend this citation and has continued to maintain that the facts support a finding that the area was an elevated walkway in violation of 30 C.F.R. §56. 11002. (Sec’y of Labor’s Post Hearing Brief at pg. 15).

            In support of her position, the Secretary cites Secretary of Labor v. Alan Lee Good, 23 FMSHRC 995 (Sept. 2001) which defined a walkway or passageway as “a way that allows passage to or from a place or between two points.” Id. at 999.

            Addressing the facts of this case, Inspector Rosenau, an MSHA inspector since 1999, testified that on December 3, 2007, he observed a concrete loading dock on the east side of the operator’s warehouse that was unprotected by a chain or other safety device to prevent persons or forklifts from traveling over the edge of the deck. The deck was measured by him to be 23 feet in length and four feet above the railroad tracks at ground level. (Tr. 94.) He was told by a company representative, Tony Brannen, who accompanied him on the inspection, that the loading area was used daily by persons on foot as well as by forklift drivers. The area is a warehouse and there is movement of materials and pallets within the area. (Tr. 95.)

            Rosenau determined that the area was an elevated walkway because he was told that persons and forklifts travel through this area of the warehouse daily. (Tr. 102.) He said he also cited the condition as an unprotected elevated ramp because there is a ramp out of view in the photograph on which forklifts traveled to access the bridge that connects the two buildings depicted in the photograph. (Tr. 103, Ex. S-3.) There is a water fountain and telephone call box to the south end of the open edge of the loading dock which Rosenau felt supported a finding that it is an area designated for people to travel on foot. (Tr. 95-96, Ex. S-3.)

            Bobby Lee Battle, Safety Coordinator for Oil-Dri, initially testified that the loading dock was rarely accessed by people. He then went on to say, however, that the loading docks are for the purpose of loading tractor trailers. There is commonly forklift traffic on them. It is uncommon for people to walk in this area and those who would be there would be the supervisor or lead person of that warehouse or the forklift driver. (Tr. 146-47.) He further acknowledged that the company has a policy that individuals on foot have to give way to the forklifts. (Tr. 146-47.) Additionally, the Respondent stipulated prior to hearing that miners travel a portion of the loading dock on foot. (Ct. Ex. A.)

            The loading dock was used as a means for miners to go to or from one area of the mine to another. Brannen’s comments to Rosenau on the day of the inspection are more credible than Battle’s attempt to minimize the frequency with which the cited area was accessed. All of these factors lead me to the conclusion that the area was accessed by persons on foot in the regular performance of their duties in the mine. I therefore find that the area was a travelway within the meaning of the standard and the violation has been established.

S&S and Negligence

            Inspector Rosenau found the gravity of the violation to be S&S; that is it was reasonably likely, given the conditions, that a person could fall off the edge of the deck and suffer reasonably serious injuries such as bruises and broken bones. Should a forklift travel off the edge, there is a reasonable likelihood of more serious injuries of a permanently disabling nature from a forklift pinning the operator beneath it. (Tr. 104-06.)

            He found the negligence to be high because the company has been cited for the same standard in the past and because Oil-Dri demonstrated a low standard of care. Furthermore, there was no physical evidence to suggest that this area has ever been protected by any warning signs, flags, handrails or chains. (Tr. 106-07.)

            I concur with Rosenau’s S&S determination. Under normal continued mining operations, it was reasonably likely that the unguarded edge posed a hazard of a person falling off the edge of the dock and suffering reasonably serious injuries. I find that the nature of the injuries likely to occur would be broken bones and contusions or possibly a head injury. Because this mandatory standard pertains to a walkway used by pedestrians rather than mobile equipment, I have not taken into consideration the likely injuries involving a forklift accident.

            With regard to negligence, I find mitigation in the fact that the docks had been inspected numerous times in the past by MSHA inspectors, none of whom had indicated the need for the chain or handrails across the raised deck. (Tr. 146-47.) I assess the negligence as moderate.

1.   Citation No. 6107485 dated 12-4-07

             This citation was written by Rosenau for an alleged violation of 30 C.F.R. §56.11012. He assessed this condition as reasonably likely to cause a permanently disabling injury to one person, S&S and the result of high negligence. The proposed penalty is $1,026.00. The narrative portion of the citation reads as follows:

The access ladder to the top of the corrugated bin located in the LVM drier area does not have a safety chain or gate across the top of the handrails that surround the top of the bin deck. This condition could allow a person to fall back through the opening while working on the top of the bin. The height of the ladder is at least 15 feet. A fall from this height could result in serious injury or death. It was stated persons access the top deck of the bin every 3-4 weeks for service.

Ex. S-4.

            The mandatory standard requires that openings above, below or near a travelway through which persons or materials may fall shall be protected by rails, barriers or covers. (Tr. 109-10.) Inspector Rosenau testified that the corrugated material is an outer covering around a bin designed to provide additional strength to the bin wall. (Tr. 110.) The bin deck is the roof of the bin which was accessed by ladder surrounded by a cage. The top of the cage has a vertical rail that ascends from the top rung of ladder to the horizontal handrail that runs around the bin deck. ( See Photo. Ex. S-6.) Rosenau stated that the standard would require a chain between the two vertical rails to prevent a fall through the opening of the cage. (Tr. 110-11.) This area was approximately 15 feet above the ground. (Tr. 111.) Rosenau’s field notes taken contemporaneously with the inspection indicate that Battle and McCabe told him at the time he observed the condition, that the bin deck was accessed every three to four weeks. (Tr. 111, Ex. S-7 at pg 39.)

            Rosenau determined that the ladder was a travelway because it was used to access the bin deck at least occasionally which is sufficient to find it fit within the definition of a travelway. There did not appear to be any other means of access to the top of the bin than the cited ladder.

            (Tr. 115.) The top rung of the ladder was approximately one foot above the level of the bin deck. A person exiting the ladder onto the bin deck could potentially trip over the rung and fall onto the bin deck, or if backing onto the ladder, could trip backwards and fall down the ladder. The ladder was exposed to the elements thus increasing the potential for a slip and fall. (Tr. 116.) A chain across the opening of the ladder would prevent such a fall. (Tr. 117.) There did not appear to be any type of welded fasteners to suggest that there had ever been a chain installed. (Tr. 117.)

            Respondent refutes the interpretation that the top of the ladder is a travelway or that an opening above, below or near a travelway existed. They contend “the transition point from a ladder or stairs to an upper or lower surface is merely a continuance of a way for a person to go from one place to another, and thus …not an ‘opening.’” To require the installation of a chain would impose an additional obstacle making travel unsafe. They cite to Rosenau’s testimony that neither a staircase to the top of the bin nor a ladder into a haul truck requires a safety chain nor therefore this standard is inconsistent with other MSHA standards and OSHA standards. (Post Hearing Brief for Oil-Dri.)

            Addressing this last point first, Rosenau explained that a stairway leading to the top of the bin would not have to be equipped with a handrail; the difference being that a stairway allows for gradual assent which does not require the use of both hands to climb. A ladder, on the other hand, requires vertical assent where a person hangs onto the upper rung and pulls himself up requiring three –point contact. (Tr. 126-27.) Rosenau acknowledged that ladders leading to the cab of a large haul truck do not require rails nor does a ladder less than 20 feet tall require a back guard. (Tr. 129.) Although this ladder does have a back cage, Rosenau was of the opinion that a person standing on the bin deck could lose their balance and fall face first down the ladder without any protection from the back cage absent a chain across the top. (Tr. 130.) Regardless of the reasons why mandatory standards may vary or seem inconsistent with one another or why OSHA may have different standards than MSHA, the issue here is not whether a handrail is needed alongside a stairway or ladder but whether the ladder was a travelway with an opening at the top as Rosenau described that required a chain across it to prevent a fall. I note, however, that as stated below, Battle testified that another ladder he did believe was a travelway did have a chain across it in compliance with this mandatory standard.

            Turning to the issue of whether the ladder was a travelway, Battle testified that, contrary to his statement to Roseau at the time of the inspection that the top of the bin was accessed every three to four weeks, no work was performed on top of the bin. Since the installation of bin indicators, there was no reason to use the ladder to access the area. (Tr. 150.)There is a work area above the corrugated bin where the head pulley and conveyor are located. It is accessed by a second higher ladder at the top of the bins which is a travelway and has a ladder with a chain across it. (Tr. 150-51.) However, there is no barricade to prevent anyone from climbing the cited ladder to access the top of the bin and then the secondary ladder to the conveyor. Battle admitted that employees do go to the top of the bin, but he didn’t know why. (Tr. 157.)

            Brannen testified conversely that the top of the bin is a “travelway,” not a work area; however, he admitted that if work had to be performed on the tank, it would be a work area. (Tr. 180.) He further explained that the cited ladder was used as a travelway to the top of the bin from which the secondary ladder to the conveyor was in turn accessed. (Tr. 178.) He stated that the secondary ladder has a chain because it leads to a work area where people are moving around. On a travelway, such as the cited ladder, there is no need for a chain, he claimed. (Tr. 178-79.) 

            Despite Brannen’s characterization of the ladder as a travelway, Respondent refutes the interpretation that the top of the ladder is a travelway. They again cite Magma Copper Mine, Supra, in support of their theory that this is not a travelway. (Post Hearing Brief For Oil-Dri.) It is difficult to discern how a ladder which is a “way for a person to go from one place to another” as described by the Respondent, is substantially different than Judge Koutras’ definition of a travelway being a placed used “for movement to and from [one’s] regular duty stations.” The ladder in question is a travelway to the bin deck which is a work place in and of itself at times, and which is also a travelway to another ladder which in turn leads to an area that Battle and Brannen confirmed is a work area. Their argument, then, is that because this ladder is one segment of the travelway leading from the ground to the conveyor head pulley two levels up, it is no longer a travelway – just a “continuance of a way for a person to go from one place to another.” They offer no authority on point in support of this odd contention.

            The term “travelway” as it relates to section 56.11012 is defined in section 56.2. That section states “[t]ravelway means a passage, walk or way regularly used and designated for persons to go from one place to another.” 30 C.F.R. §56.2. Judge Manning in his Essroc Cement decision cites to Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995, 1000 (Sept. 2001) in stating that for an area to qualify as a travelway, “[t]he weight of the evidence must establish the area is regularly used and designated for persons to go from one place to another.” 33 FMSHRC 459, 463 (Feb. 2011)(ALJ). In Watkins Engineers and Constructors, the Commission determined that a breezeway was a walkway because it was the “designated way for accessing the bag house area” and it was the “only available route.” 24 FMSHRC 669, 678 (July 2002).

            The evidence in this case leads me to the following conclusions: 1) the cited ladder was the way to go from the ground level to the corrugated bin top and also to the secondary ladder to the upper level where the conveyor head pulley was located. It was so defined by the Respondent’s own witness, Brannen, 2) it was designated as the means by which to access the upper work area as there was no other access to the upper ladder according to the uncontradicted testimony of Rosenau, 3) it was used regularly, and 4) there was an opening at the top of the travelway through which persons could fall. This is corroborated by the statements made by Battle and McCabe to Rosenau during the inspection that the ladder was used every three to four weeks which I find sufficiently frequent to be considered regular use. The mandatory standard has been violated.

S&S/Negligence

            In Rosenau’s opinion, it was reasonably likely that this condition posed the discrete hazard, under continued normal mining conditions, of a miner tripping, slipping or losing his balance and falling from the top of the ladder. Such a fall which would be reasonably likely to result in permanently disabling injuries or death due to the height involved. (Tr. 118-19.) He based his finding of high negligence on the fact that the company had two similar violations in the past, although not at this location. (Tr. 119.) 

            I concur with Rosenau’s opinion given the height of the ladder and the fact that it is exposed to the elements increasing the risk of slipping from the roof of the bin, that the violation is S&S. I further concur with his opinion that it was the result of high negligence. The condition was openly and obviously a dangerous one. Management described this ladder as a travelway to the secondary ladder which had a chain across it. Brannen testified that because this ladder was a travelway, it did not require a chain across the opening. This evidences cognizance of the need for the chain and the callous disregard for protecting the miners from danger.

            C. Docket SE 2008-898-M

1. Citation No. 6084953 dated 6-6-08

            This alleged violation of 30 C.F.R. §56.11001 was issued by Inspector James Ellison. Ellison accessed this non-significant and substantial violation as low in gravity which would be unlikely to result in an injury. An injury would be in the nature of lost workdays or restricted duty affecting one person. This alleged violation involved a moderate degree of negligence. The proposed penalty is $100.00. The citation reads as follows:

            Safe access was mot (sic) maintained in the walkway adjacent to the CV26 conveyor belt.  A material spill had occurred which covered the width of the walkway for about 6’             long (sic) to a depth of about 8 inches deep (sic). The walkway is inclined and the spill covered below (sic) an overhead conveyor with restricted headroom. Material spills             expose persons to the hazard of trip and fall injuries.

Ex. S-9.

            This mandatory standard states that a safe means of access shall be provided and maintained to all working places.

            The Secretary amended her pleadings with respect to this citation including mandatory standard section 56.20003 as an alternate theory of the violation. 30 C.F.R. §56.20003 provides workplaces, passageways, storerooms, and service rooms shall be kept clean and orderly.

            Ellison has a master’s degree in occupational safety and has been a safety manager for a cement mine where he worked for 32 years. He was an MSHA inspector from 2002 until his retirement in 2011. On June 6, 2008, during a regular inspection, Ellison observed clay material covering the width of a walkway below an overhead conveyor belt. The material was estimated by him to be approximately six feet in length and three feet in width and as much as eight inches deep in some areas. He gauged the depth of the spill by using his 9x12 inch notebook as a reference and observed that the material covered over one-half the 12” notebook. (Tr. 20-21, Photo. Ex. S-11.) He determined that the cited area was a working place as well as a walkway because another conveyor belt runs alongside the entire length of this walkway. That conveyor has throughing idlers, or rollers, that support the upper strand of the belt. It also has return idlers which support the belt as it returns on the lower side. The belt requires maintenance when the roller bearings wear out and require replacement or when the carrier rollers need to be cleaned, lubricated, or replaced. The belt also needs to be inspected. The walkway provides the platform from which to perform this work. ( Tr. 25.)

            The spill of material on the walkway would pose a danger of tripping resulting in a foot injury and lost workdays or restricted duty, Ellison testified. (Tr. 26-27.) Because there were access points at either end of the walkway enabling a miner to reach the portions of the belt not directly adjacent to the spilled material, Ellison felt it would be unlikely to cause an injury. (Tr. 27.) Further, it would be unlikely that more than one person would be injured at the same moment. (Tr. 28.)

            Oil-Dri contests the violation of §56.11001. Citing Judge Barbour’s decision in Millington Gravel Company, 21 FMSHRC 1065(Sept. 1999)(ALJ), they assert that it is necessary to prove the area involved was a means of access to a working place and that the means of access was not safe. The fact that there were points of access on either end of the walkway both of which were safe and allowed for passage up to the point where the spill was located leads to the conclusion that the standard has not been violated. Additionally, they argue that the evidence must prove that the area is a place where work is being performed at the time of the inspection to meet the regulatory definition contained in the mandatory standard. They cite to Standard Slag Company, 2 FMSHRC 3312 (Nov. 1980)(ALJ) in support of this proposition. (Post Hearing Brief For Oil-Dri.)

            I find Millington Gravel supports the Secretary’s position with respect to this violation. Judge Barbour determined that a hole in an upper walkway was a violation of the same mandatory standard as cited here. Although the adjacent walkway let to an area that was used as a working place once every two years or so when sifting screens required replacement, that did not detract from the characterization as “a place where there was a reasonable possibility of a miner using the area involved as a way to reach or leave a working place.” Millington Gravel at 1068. Ellison credibly testified that this walkway was used to service and inspect the adjacent conveyor belt. There was no other point from which the conveyor could be serviced. A miner would be required to walk the entire length of the walkway including the area where the spill was located, to inspect the belt or service the rollers and bearings located adjacent to the spill. I do not find Battles’ or Brennan’s testimony that the conveyor belt never needed maintenance credible.(Tr.

135, 158, 171, 187.) Instead, I find Ellison’s testimony that the belt rollers do need lubrication, cleaning and replacement as well as regular inspections credible.

            Standard Slag Company involved a situation where the alleged work platform was used with far less frequency than here. The inspector in that case could not say how frequently the area was used. The uncontroverted testimony from the operator’s witness was that the cited area was not used for years at a time. Judge Koutras found the area was not being used as a work place at the time of the inspection or at any other relevant time. Here, Ellison credibly testified that when the conveyor needed to be serviced in the area of the spill or when the belt needed to be inspected, access to the cited area would be required as there was no other means of access thus making use of the walkway more frequent.

            I find the Secretary has met her burden of proving a violation of both 30 C.F.R. §56.11001 and §56. 20003.

Negligence

            Ellison opined that the condition was the result of moderate negligence because although it was visible, there was no evidence that it had been reported to management. (Tr. 28.) It was not possible to determine the exact length of time the condition was present. (Tr. 72.) I concur with his findings. I also find the gravity is low.

1.    Citation No. 6084954 dated 6-9-08

             Ellison issued this citation under 30 C.F.R. §56.14112(a)(1) the narrative of which states:

The guard for the drive belts, driven pulley, and fan shaft on the small Griffin dust collector located at the top of the dust silo was not maintained in a manner that would prevent persons from contacting the moving drive belts, the driven pulley, and therotation fan drive shaft. Sections of the expanded metal guarding material were missing which exposed the moving shaft, drive belts and driven pulley. Persons working in this area were exposed to injury from contact with the moving machine parts.

Ex. S-12.

            The gravity of this alleged violation was determined to be unlikely to result in a lost workday or restricted duty type of injury and not significant and substantial and affecting one person. The negligence was assessed as moderate and the proposed penalty is $100.00.

            The relevant section of the mandatory standard provides: “guards shall be constructed and maintained to withstand the vibration, shock, and wear to which they will be subjected during normal operation and not create a hazard by their use.”

            I granted the Secretary’s motion to plead 30 C.F.R. §56.14107(a) in the alternative. This mandatory standard requires “[M]oving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.”

            The evidence presented by Ellison is that on the day of the inspection he observed that a section of the metal guard on this dust collector located at the top of the dust silo had been cut away where a lubricating device had been inserted. The resulting 5”x 8” opening was sufficiently large for one hand or two hands held together to fit through and come into contact with moving parts on the dust collector. (Tr. 32-36.) Pinch points were present where the drive belts contacted the drive pulley, which the inspector opined, could result in the amputation of a finger or a crush injury. (Tr. 38, Photo. Ex. S-14.) Based upon the condition of the remainder of the guard, it appeared that the guard was of sufficient construction and had not been damaged due to an accident. It also appeared to have been missing for a lengthy period of time as the surrounding metal had rusted. (Tr. 39.) Ellison stated that miners walk within two feet of the dust collector which is in a working area of mine due to the fact that maintenance had to be performed on a periodic basis. (Tr 42.)

            Brannen confirmed that the guard was not damaged in an accident and Battle acknowledged that the opening was large enough for a hand to fit through and come into contact with moving parts. (Tr. 162, 139.) Respondent, however, maintains that the guard had always been in the condition as Ellison observed it. Therefore, the allegation that the guard was missing must fail. They further aver that the narrative portion of the citation alleges that the absence of the guard failed to protect persons from contacting the moving parts. Purposeful maintenance is not encompassed in this mandatory standard; rather, the standard seeks to prevent only inadvertent or accidental contact resulting from stumbling, falling, in attention or carelessness. Therefore, because the only contact with this fan is intentionally made by maintenance personnel and it was in an area on top of a silo with no tripping hazards were present, the citation must be dismissed.(Post Hearing Brief For Oil-Dri.)

             I find both of these arguments to be without merit. With regard to the proposition that there had never been a guard so there could not be a failure to maintain it, this argument ignores the fact that mandatory standard 56.14112(a) requires that a guard shall be constructed in addition to being maintained. Mandatory standard 56.14107(a) imposes a requirement that moving machine parts be guarded. Under either standard, the operator has the burden of constructing a guard if one is not present where exposure to moving parts is present. It was obvious to Ellison that a guard was needed as cited. Ellison testified that it was also obvious that a guard had been cut away in order to install the automatic lubricating device on top. The metal appeared to have been cut with a torch which resulted in paint being worn away. There is also what appears to be a mounting bolt hole which would have held the missing guard in place. (Tr. 36.) The Respondent offered no evidence other than Battle’s self-serving statement that there had never been a guard in support of their position.(Tr. 140.) I do not find his testimony to be credible in light of Ellison’s observations. I do find Ellison’s testimony credible that there had been a guard and Oil-Dri failed to maintain it.

            There was no evidence presented by the Secretary to establish that the guard did not withstand the vibration, shock or wear of the dust collector as required by Section 56.14112(a). In fact, Ellison testified that from the remaining portion of the guard, it appeared to have been very well constructed, but removed. This theory of the violation fails.

            The Secretary has met her burden of proving a violation of 30 C.F.R. §56.14107. This standard seeks to prevent injuries that can occur from any type of inattentiveness, carelessness, accident or negligence by requiring that all moving parts be guarded. It is a strict liability standard and does not provide exceptions such as argued by Oil-Dri that it was not required because only intentional contact with this equipment was made. Ellison’s testimony established that a guard was needed, that the moving parts were exposed and that such exposure could cause a serious injury to a miner.

Negligence

            Moderate negligence was assessed by the inspector because Ellison found no evidence that the condition had been reported to management. I do not agree with this assessment as it was apparent to Ellison that the condition had been present for a sufficiently long period of time for the metal to have rusted. Additionally, the oiler had been added to the machine which would have been directed by management. It appeared that the portion of the guard that was removed was done for the purpose of installing the oiler. The evidence established, however, that the area was infrequently accessed and it was located in a remote area on top of the dust silo. Only miners servicing the equipment would be in contact with it and that would be infrequent. These facts provide sufficient mitigation to reduce the negligence to moderate.

2.   Citation No. 6084958 dated 6-11-08

            Ellison issued this citation which reads:

            A drop off (sic) of about 4” existed at the West (sic) end of the concrete slab for the  outside storage area at building #6. Forklifts use this area of the slab as a travelway to             access the storage racks. Fork lift (sic) tire tracks were observed within 5 feet of the drop off (sic). Unprotected drop offs (sic) which could cause the mobile equipment being             used to overturn exposes the operators to the hazards of injuries associated with powered haulage accidents.

Ex. S-15.

            The citation was written as unlikely to produce permanently disabling injuries and not S&S, affecting one person and the result of a moderate degree of negligence. The proposed penalty is $100.00.

            The section of the cited mandatory standard, 30 C.F.R. §56.9300(a), requires berms or guardrails be provided and maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.

            The photograph taken by Ellison of the cited condition depicts a cement slab running north-south alongside of which is an area of overgrown weeds. The ground was estimated by Ellison to be about four feet below the cement slab creating a drop-off of the same elevation. (Ex. S-17.) Ellison testified that this area is outside of Building 6 and it is used by forklifts as a travelway to the storage racks located to the right of the slab.(Tr. 45, Ex. S-17 pg. 2.) While he was conducting his inspection, Ellison observed a forklift travel from the area just north of building #6, up a ramp and onto the slab and then over to the storage racks. The ramp used by the forklift to access the slab was more gradual than the drop-off from the edge but was of the same elevation change – four feet. (Tr. 45-6.) Ellison also observed forklift tire tracks within five feet of the edge of the drop-off as recorded in his inspection notes. (Tr. 44, Ex. S-16.)

             Ellison determined that this slab area was a roadway or travelway (the terms being interchangeable in this particular instance) because he observed it being used as such while he was there. Also, it was paved and prepared for mobile equipment to travel upon it. (Tr. 49.) He estimated the weight of a forklift as ranging from one ton up to eight or ten tons which could cause a permanently disabling or fatal injury should it travel off the edge of the slab and overturn. (Tr. 47-48, 51-52.) Forklifts are normally equipped for only one occupant which formed the basis of his determination that one person would be affected if an accident occurred. (Tr. 52.) Because there was an alternate route to access the rack area, and because in the lengthy time in which the condition had existed there had never been an accident, he determined that such an injury was unlikely to occur. (Tr. 50-51.) The violation was abated by construction of a berm. (Ex. S-17.)

            Oil-Dri contests the violation on the basis that the concrete slab was a storage area rather than an elevated roadway. They argue that such an overly broad interpretation would be tantamount to a finding that every area in which a vehicle could be operated would be defined as a roadway. (Post Hearing Brief For Oil-Dri.) They cite cases in which they concede that scales and bridges have been found to be roadways, but cite no authority concluding that a concrete area that provides access for mobile equipment to travel to and from a storage facility is not a roadway.

            Oil-Dri’s contention that the standard must be read narrowly is incorrect. In Secretary of Labor v. Pappy’s Sand & Gravel, 20 FMSHRC 647 (June 1998)(ALJ) the judge found that a levee over which heavy equipment was dumping soil to raise its height it was an elevated roadway necessitating a berm despite the evidence that once the levee was completed, it was intended that grass would be planted on it. It would no longer be used for vehicular travel. The ALJ relied on the dictionary definition of the term “roadway” which included a “thoroughfare” which is defined as a place through which there is passing. Consequently, as soon as the area was traveled by the trucks, the levee became a roadway at least during the period of time in which it was being constructed. A similar result was reached by the Commission in Secretary of Labor v. El Paso Rock Quarries, Inc., 3 FMSHRC 35 (Jan. 1981) where the ALJ was instructed to consider a bench an elevated roadway because it was used to carry explosives to the top of the quarry. In Secretary of Labor v. Capitol Aggregates, Inc., 4 FMSHRC 846 (May 1982), the Commission interpreted an elevated ramp used by a front-end loader to access the coke hopper as an elevated roadway. Judge Miller found that the fact that a rubber-tired truck was seen traveling on a bench was sufficient evidence that the bench was a roadway. See Secretary of Labor v. Black Beauty Coal Company, 32 FMSHRC 356 (March 2010)(ALJ).

            I find these cases provide a myriad of examples of how broadly the definition of an elevated roadway is meant to be applied to effectuate the purpose of the standard and the Act as a whole. Ellison saw a forklift use the area cited as a means by which to travel from one part of the mine to another while he was conducting his inspection. Other tire tracks were visible in the area indicating that the area had been used in the same manner before. It stands to reason that with the slab being adjacent to storage racks, and having a ramp connecting the slab with the rest of the mine; vehicles would use the slab as the thoroughfare by which to travel between these areas. The thoroughfare or means by which the forklifts traveled is a roadway within the meaning of the mandatory standard. The citation was properly issued.

Negligence

             Ellison assigned moderate negligence to this condition because it had never been reported to the company despite the fact that it had existed for some time. Additionally, there had never been an accident due to the condition. The forklift operators were aware of it and “had learned how to handle it.” (Tr. 52.)

            I find the violation to be serious but agree with the inspector that there were sufficiently mitigating circumstances to support a finding of moderate negligence.

             D. Docket SE 2008-1012-M

1.   Citation No. 6084951 dated 6-23-08

            This alleged violation of 30 C.F.R. §56. 14100(b) was issued for the following condition:

The Show Box 3000 lbs (sic) cable hoist located on the 4^th floor of the mill building was not maintained is (sic) a safe condition to prevent exposure to hazards by persons using the hoist. Two legs of the four part 3/8” wire rope hoist line were kinked near the hoist drum on the fourth floor of the mill building. This 4 part hoist is used to lift equipment, tools and machine parts to work floors during maintenance operations in the mill building. The continued use of damaged wire rope hoisting cable exposes persons to the hazard of hoisting accidents and injuries from falling objects.

Ex. S-19. 

            This non-S&S citation records the gravity of the condition as unlikely to result in injury but such injury would be of a permanently disabling nature. One person was affected and it resulted from moderate negligence. The proposed penalty is $100.00.

            The cited standard requires defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.

            Ellison testified that two legs of the wire rope hoisting cable in question were kinked near the drum. (Tr. 54.) The condition is pictured in Ex. S-21. Upon closer inspection of the cables, he could see that the left leg was damaged horizontally across the wire rope where the metal stands had been damaged and appear to have rusted. The rust on inner wires of the rope indicated to him that the condition had been present for at least a couple of weeks although it was difficult to be sure because environmental factors would affect how quickly the metal rusts. (Tr. 66.)

            It was possible to tell with the aid of a magnifying glass that there was a void area inside the bent portion of the rope indicating that the wires had separated. (Tr. 59-62.) The significance of a kink in a wire rope is that the individual wires that make up the rope cease to function independently of one another and cannot take the load put upon them. The wires often break, reducing the overall strength of the cable. Should a sufficient number of wires break, a catastrophic failure of the cable can result. For this reason, once a wire rope is kinked, it should be removed from service. (Tr. 56-57.)

            Ellison stated that during his tenure as a maintenance foreman or manager for 14 years with Holcim, he was responsible for inspecting wire ropes for such damage and removing them from service. (Tr. 54-55.) He completed a training class with wire rope manufacturer Denver Wire Rope Company in 1992. He was instructed in this course that if a kink is present the rope must be removed from service. He is also familiar with the American National Standards Institute (“ANSI”) which has the same requirements. (Tr. 62-63.) He determined, based upon the visible kinks in two of the legs of this rope, that it posed a danger of failure when lifting a heavy load. Such failure could result in the load being hoisted falling and striking a miner working around or near the hoist. Permanently disabling or fatal injuries would result. (Tr. 57, 65-66, 84.) He determined that the likelihood of such an event was unlikely because the hoist was used once or twice a year. (Tr. 66.)

            Oil-Dri contests this alleged violation contending that the definition of a kink is a “pulled out twisted loop” under ANSI standards which is not the condition cited here. Further, they contend that safety would not be affected during continued use as 30 C.F.R. §56.16009 requires persons to stay clear of suspended loads, and finally, that management was not under an obligation to correct the defect because they were not aware of it and had no reason to be. (Post Hearing Brief For Oil-Dri.)

            Addressing their last argument first, the Respondent is correct in stating that there was no evidence presented that would establish the operator had any knowledge of the cited condition or that their lack of knowledge was unreasonable. They cite Judge Hodgdon’s decision in Secretary of Labor v. Lopke Quarries, Inc., 22 FMSHRC 899 (July 2000)(ALJ). That decision was reviewed and affirmed by the Commission in Secretary of Labor v. Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001), stating that because the Secretary failed to establish when the defect occurred, it could not be determined whether the operator’s failure to be aware of it and correct it was unreasonable. In this case, Ellison testified that the condition could have existed for a couple of weeks but he could not be sure as humidity and other environmental conditions would affect the rate at which the metal rusted. Furthermore, he testified that he reduced the level of negligence because he could find no evidence that management was aware of the defect. No evidence was presented to determine whether the operator should have known of the defect at the time of the inspection. For instance, there was no indication as to how often the hoist was required to be inspected. Brannen testified that the hoist is used once or twice a year and Ellison said in order to see the separated wires inside the rope, he used a magnifying glass. In light of these factors, I do not find a basis upon which to find that the operator should have known of the defect triggering the requirement to correct it in a timely manner.

            The citation is VACATED.

II.        PENALTIES

            The Mine Act delegates the duty of proposing penalties under the Mine Act to the Secretary. 30 U.S.C. §§815(a) and 820(a). When an operator challenges the Secretary’s proposed penalties, the Secretary petitions the Commission to assess them. 29 C.F.R. §2700.28. Once petitioned to assess the penalties, the Commission delegates to the administrative law judges the authority to assess civil penalties de novo for violations under the Act. Section 110(i), 30 U.S.C. §820(i). The administrative law judge is required by the Act to consider the following six statutory criteria in her assessment of the appropriate penalty:

            (1) the operator’s history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator charged, (3) whether the operator was negligent,  (4) the effect on the operator’s ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the person charged in attempting to         achieve rapid compliance after notification of a violation. 30 U.S.C. §820(I).

            The penalty assessment for a particular violation is within the sound discretion of the administrative law judge so long as the six statutory criteria and the deterrent purpose of the Act are given due consideration. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984); Cantera Green, 22 FMSHRC 616, 620 (May 2000).

            I have discussed the gravity and negligence involved in each citation within the body of the discussion of each above. I have given the additional statutory criteria consideration as well as the deterrent purpose of the Act in assessing the penalties below. The parties entered into stipulations of fact with regard to the proposed penalty for each citation. They are that the proposed penalties are appropriate to the size of the Respondent’s business, will not affect the operator’s ability to remain in business and that the Respondent promptly abated each of the cited violations in good faith. (Ct. Ex. A.) I accept those stipulations.

            Having considered the six statutory criteria and the stipulated facts, I assess the following penalties:

Docket No. SE 2008-793-M

1.   Citation No. 6107482 - $ 500.00

2.   Citation No. 6107485 - $1,026.00

Docket No. SE 2008-898-M

1.   Citation No. 6084953 - $100.00

2.   Citation No. 6084954- $100.00

3.   Citation No. 6084958- $100.00

Docket No. SE 2008-1012-M

1.   Citation No. 6084951- Vacated

A total of $1,826.00 is assessed for the violations that were heard and decided herein.

II.       ORDER

            Docket No. SE 2008-898-M, Citation No. 6084950 is VACATED upon request of the Secretary. I VACATE Docket No. SE 2008-1012-M, Citation No. 6084951. Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. §820(i), I assess a penalty of $1,826.00 for the remaining two violations under Docket No. SE 2008-793-M, and the three remaining violations under Docket SE 2008-898-M. Oil-Dri Corporation of Georgia is ORDERED TO PAY the Secretary of Labor the sum of $1,826.00 within 30 days of the date of this decision.

                                                                                    /s/ Priscilla M. Rae

                                                                                    Priscilla M. Rae

                                                                                    Administrative Law Judge

Distribution List:

Brooke Werner McEckron, Esq., Office of the Solicitor, U.S. Department of Labor,

61 Forsyth St., S.W., Room 7T10, Atlanta, GA 30303

Larry R. Evans, Health and Safety Manager, Oil-Dri Corp. of America, P.O. Box 380        

28990 Georgia Hwy 3 N, Ochlocknee, GA 31773