FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th
Street, Suite 443
Denver, CO 80202-2536
303-844-5267/ FAX
303-844-5268
March 26, 2013
|
SECRETARY OF LABOR, |
: : : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. CENT 2011-835-M A.C. No. 39-00292-254729 Concrete Materials Sand Plant |
Appearances: Alena E. Amundson, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Godwin,
Gill & Lohr, Sioux City, Iowa, for Respondent.
Before: Judge Manning
DECISION
This case is
before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against Concrete Materials-Division of Sweetman
Construction Company (“Concrete Materials” or “Respondent”) pursuant to
sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (the “Mine
Act”). The parties introduced testimony
and documentary evidence at a hearing held in Sioux Falls, South Dakota. In lieu of filing post-hearing briefs, the
parties presented oral argument at the hearing and submitted statements of
relevant case law.
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS
OF LAW
Citation
No. 6588806
On March 22,
2011, MSHA Inspector Alan Roberts issued Citation No. 6588806 under section
104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 56.1000. The citation alleges that the “mine operator
sent in a notice of closure to the Rapid City MSHA Field Office on 11/20/2010
but the mine did not close.” (Ex.
G-2). The citation went on by stating
that the mine “has had maintenance and load-out activity throughout the winter
as weather permitted.” Id. Inspector Roberts determined that an injury was
unlikely, that the violation was not significant and substantial (“S&S”),
that no miners would be affected, and that the violation was the result of high
negligence on the part of the operator. The
safety standard provides, in part, “[w]hen any mine is closed, the person
in charge shall notify the nearest district office . . . and indicate whether
the closure is temporary or permanent.” The
Secretary proposed a penalty of $100.00 for this alleged violation.
a. Summary of Testimony
Inspector Alan Roberts conducted an
E01 Inspection of all the active areas of the Concrete Materials Sand Plant in
Yankton (the “Yankton Mine”) on March 22, 2011.
(Tr. 17-18). Mine maintenance had
occurred at the Yankton Mine prior to Roberts' inspection despite the fact that
the operator had submitted a notice of closure.
(Tr. 19). Inspector Roberts
testified that he did not observe any miners perform maintenance; rather,
miners told him that they had done so on previous days. (Tr. 99).
He testified that he witnessed someone load a truck with a front-end
loader across from the office. (Tr. 99, 102). Inspector Roberts testified that MSHA
considered the activities that he observed to be mining. Id.
Roberts testified that he issued Citation 6588806 to Concrete Materials
for a violation of section 56.1000 due to failure to notify MSHA that the Yankton
Mine was active. (Tr. 24).
Roberts testified that he determined
that the violation was the result of Respondent's high negligence because
Respondent has multiple mines and had opened and closed mines as required in
the past. (Tr. 25). Roberts testified that he learned from
interviews with miners and examination of records that the Yankton Mine had
only closed for a few days during the winter for bad weather. (Tr. 26; Ex. G-5).
Andrew Haas, the Yankton Mine
superintendent, testified that he accompanied Inspector Roberts during the
March 22, 2011, inspection. (Tr.
111). Haas testified that Respondent
sent a notice of closure to MSHA dated November 20, 2010 because it was ceasing
production and did not produce between that time and March 22, 2011. (Tr.
112). He also testified that the
sand plant and all of its components were locked-out and tagged-out for the
entire time between November 20, 2010 and March 22, 2011. (Tr. 114).
Haas did testify that Respondent often loaded material out of stockpiles
into vehicles and performed various forms of maintenance at the mine between
November 2010 and March 2011. (Tr.
115-16, 147-48).
Roger Danielson, the lead man at Yankton
Mine, testified that no production occurred between November and the time of
the inspection and that he locked out the power at the breaker box during that
time period. (Tr. 153).
b. Discussion and Analysis
I find that Respondent violated
section 56.1000 because it performed maintenance and loading while representing
to MSHA that the Yankton Mine was closed.
I credit the testimony of Inspector Roberts, Andrew Haas and Roger
Danielson that Respondent performed maintenance at the mine between November
20, 2010 and March 22, 2011. I also
credit the testimony of Inspector Roberts and Haas that vehicles of customers were
loaded during the period that Yankton Mine was registered with MSHA as
closed. The use of a front loader to
load the vehicles of customers denotes an active mine. See John Richards Construction, 23
FMSHRC 1045, 1050 (Sept. 2001) (ALJ).
Combined with the maintenance, loading the vehicles of customers establishes
that Concrete Materials should not have notified MSHA that the Yankton Mine was
closed for the season. Allowing Yankton
Mine to be listed as “closed” and not “active” endangers the health and safety
of its miners.
I
also find that Citation 6588806 resulted from the high negligence of
Respondent. The Secretary defines
conduct that constitutes negligence under the Mine Act as follows:
Negligence is conduct, either by commission or
omission, which falls below a standard of care established under the Mine Act
to protect miners against the risks of harm. Under the Mine Act, an operator is
held to a high standard of care. A mine operator is required to be on the alert
for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions
or practices. The failure to exercise a high standard of care constitutes
negligence.
30 C.F.R. § 100.3(d). Although
this definition is not binding upon the Commission, it is useful in analyzing
Respondent’s conduct in this case. Respondent should have known of
the violation and it did not provide any mitigating factors to explain why it notified
MSHA that it was closed for the season when it knew it would be performing
maintenance and loading the trucks of its customers during the winter. Respondent’s high
negligence led to the cited condition underlying the citation.
I AFFIRM Citation
6588806 as written by the inspector. A
penalty of $500.00 is appropriate for this violation because of the high
negligence designation.
Citation
No. 6588807
On March 22,
2011, Inspector Roberts issued Citation No. 6588807 under section 104(a) of the
Mine Act for an alleged violation of 30 C.F.R. § 56.12004. The citation alleges the following:
There is a 50”, 110 volt, yellow
extension cord hanging on the wall in the tool shed that is damaged. The outer insulating jacket has been pulled
out of the female plug, exposing the inner insulated conductors to mechanical
damage. There is about 1/4” of outer
jacket missing. The cord is used as
needed for service work in and around the wash plant. This condition exposes miners to fatal
electric shock hazards.
(Ex. G-14).
Inspector Roberts determined that an injury was
unlikely, that the violation was not S&S, that one miner would be affected,
and that the violation was the result of Respondent’s moderate negligence. The safety standard provides, in part,
“[e]lectrical conductors exposed to mechanical damage shall be protected.” The Secretary proposed a penalty of $100.00
for this alleged violation.
a. Summary of Testimony
On March 22, 2011, Inspector Roberts
issued Citation 6588807 as a violation of section 56.12004. (Tr. 44).
The inspector testified that an extension cord in the tool room had exposed
conductors that were not protected from mechanical damage because the outer
insulation had pulled away from the plug, exposing miners to a shock hazard. (Tr. 44-46, 48; Ex. G-16). The inspector testified that although an
injury was unlikely, the possibility of shock combined with the mine’s wet
conditions made an injury likely to be fatal to a miner if it occurred. (Tr. 46-47).
Inspector Roberts testified that the
condition was obvious and that Respondent should have known of the
violation. (Tr. 47). He issued the citation as a result of
Respondent's moderate negligence because he did not believe that the condition
existed for a long amount of time. Id. The inspector testified that a miner told
him that the cord was used in the wash plant the day before his
inspection. (Tr. 49; Ex. G-15).
Andrew Haas agreed that the
insulation on the extension cord had pulled out about 1/4 inch, but said that
the copper wire was covered. (Tr.
117). During the winter, no one used
water in the plant and the area was not damp or wet. (Tr. 118).
Haas did not believe that a person could be electrocuted by the cord. Id.
Haas admitted that miners used the cord during the winter while the
plant was “closed.” (Tr. 149).
Roger Danielson testified that about
1/8 inch of insulation was exposed on the extension cord, but that there was no
chance of a fatal injury as a result.
(Tr. 155-56). He also testified
that when the plant was not producing, the conditions were dry. (Tr. 156).
b. Discussion and Analysis
I find that Citation 6588807 was a
violation of section 56.12004 because the extension cord was an electrical
conductor that was not protected from mechanical damage adjacent to the female
plug. The testimony of the witnesses and
the photos show that the outer insulation of the cited extension cord did not
cover the inner conductors. (Ex. G-16). The fact that the outer jacket on the
electrical cord did not protect the inner conductors near the plug exposed the
extension cord to further mechanical damage at that location, which is a violation
of section 56.12004. All of the witnesses
testified that the cord was routinely used.
If the inner conductors suffered mechanical damage during use and the copper
wires became exposed, the extension cord would pose a shock hazard to
miners. It is well established that
shock hazards can be fatal to miners regardless of the conditions and dampness
of the mine. See Carmeuse Lime and Stone, 33 FMSHRC 1654, 1663
(July 2011) (ALJ); Nelson Brothers Quarries, 24
FMSHRC 167, 170 (Feb. 2002) (ALJ); United
Nuclear – Homestake Partners, Now Homestake Mining Company, 3 FMSHRC 1552, 1559 (June 1981) (ALJ).
Although the inspector determined that an injury was unlikely, it was
still possible that a miner could have been injured and such an injury could have fatal
consequences. See Nelson
Quarries, Inc., 30 FMSHRC 443, 446 (May 2008) (ALJ). I also find that the violation was the result of Respondent’s
moderate negligence because Respondent should have known of the violation. I AFFIRM Citation
6588807, as written by the inspector. A
penalty of $100.00 is appropriate for this violation.
Citation
No. 6588808
On March 22,
2011, Inspector Roberts issued Citation No. 8588808 under section 104(a) of the
Mine Act for an alleged violation of 30 C.F.R. § 56.14109(a). The citation alleges the following:
The emergency stop cord for the plant
feed conveyor is not located where the conveyor could be deactivated if a miner
fell into or onto the conveyor. At the
tail end of the conveyor where the adjacent elevated walkway is accessed there
is an opening of about 30’ where a person could fall on or against the
conveyor. There are a few rocks on the
walkway. This condition exposes miners
to entanglement and fall hazards.
(Ex. G-7). Inspector Roberts determined that a fatal accident was
reasonably likely to occur, that the violation was S&S, that one person
would be affected, and that the violation was the result of Respondent’s low negligence. The safety standard provides, in part, “[u]nguarded
conveyors next to the travelways shall be equipped with emergency stop devices
which are located so that a person falling on or against the conveyor can
readily deactivate the conveyor drive motor.”
The Secretary proposed a penalty
of $127.00 for this alleged violation.
a. Summary of Testimony
Inspector Roberts issued Citation
6588808 on March 22, 2011, for a violation of section 56.14109(a). (Tr. 31).
Inspector Roberts testified that an emergency stop cord was not located
where it could be utilized if a miner fell onto or against the conveyor at the
tail end because there was a gap of 30 inches in the stop cord. (Tr. 31-33; Ex. G-9). Inspector Roberts believed that the gap in
the stop cord would not protect a falling miner and that there was slack in the
stop cord that made it difficult to use.
(Tr. 34, 105). The stop cord was
tied off to the support structure at the tail end of the belt and that support
structure was below the plane of the belt.
(Tr. 106; Ex. G-9). Inspector
Roberts also admitted that the regulation does not require that the cord cover the
entirety of the conveyor. (Tr. 70-71).
Inspector Roberts determined that
the violation was S&S. (Tr.
42). Based upon the wet conditions, the
daily access by miners, and the amount of time that miners travel through the
area, the inspector believed that an injury was reasonably likely to occur as a
result of this violation. (Tr. 40, 43). Although the power was locked-out, the
inspector believed that the equipment would have been energized and used in the
condition that he found it in. (Tr.
43). Inspector Roberts also believed
that an injury was likely to be fatal because a miner could become entangled in
a moving belt. Id. The conveyor moved from the left to right,
meaning that any miner who fell onto the conveyor through the gap in the stop
cord would move toward the stop cord and not toward the tail pulley. (Tr. 90).
Although the violation was obvious
to Inspector Roberts, he determined that the violation was the result of
Respondent’s low negligence because he believed that the hazard had existed
during previous MSHA inspections but was not mentioned to Respondent. (Tr. 41).
Although the stop cord was not cited as a violation by any other
inspector, Inspector Roberts believes that the cord had not always been in
violation of section 56.14109(a). (Tr.
65-66; Ex. R-8). The inspector also
testified that due to the size of this mine, it would be possible for other inspectors
to overlook the violation. (Tr. 103).
Andrew Haas testified that based
upon his conversations with other employees, he believed that the stop cord was
in the same condition since 2000. (Tr.
119-20). He was sure that it had not
changed since he began working for Respondent in 2007 and that other inspectors
had seen it without citing it. Id. He also testified that the stop cord worked,
that no one tried to use it during the inspection because the conveyor was
locked-out, and that no one pushed or pulled on the cord during the
inspection. (Tr. 122-23). Without the motor running, Haas testified
that there would be no way to tell if the cord was working or not. (Tr.
125).
Haas also testified that he measured
the opening to the conveyor and it was 24 inches wide and not 30. (Tr. 132; Ex. R-6). Haas thought it unlikely that a person could
get onto the conveyor belt and he felt that it was impossible to do so without
tripping the stop cord. (Tr.
134-35). He also testified that only one
person would enter the area every two to three weeks to grease the fittings and
that the conveyor would be locked and tagged-out when anyone greased them. (Tr. 142).
There was no chance of injury.
(Tr. 147).
Roger Danielson testified that he
accompanied Inspector Roberts and Andrew Haas on the March 22, 2011,
inspection. (Tr. 151-52). Danielson testified that he helped set-up the
conveyor and the stop-cord in 2000; no changes were made to the conveyor or
stop cord between the set-up and the time of the inspection. (Tr. 157-59).
Danielson testified that between 2000 and March 2011 he accompanied
inspectors during inspections and none ever cited or mentioned the stop
cord. (Tr. 159-60). About once a month Danielson tested the stop
cord to insure that it worked and also made sure that the cord was tight enough
to easily activate. (Tr. 161, 164). Inspector Roberts did not test the
effectiveness of the cord because there was no way to do so with the power
off. (Tr. 165). Danielson also testified that if a person
were to start falling toward the conveyor belt, he could easily use the cord to
stop the conveyor. (Tr. 168-69).
Kevin Goembel, who has worked for
Respondent since 1978 and is currently the safety director, testified that the
stop cord had not changed since its construction in 2000. (Tr. 175-77).
Goembel had accompanied inspectors who found no problems with and made
no comments concerning the stop cord.
(Tr. 176, 181). Goembel testified
that anyone who fell against the conveyor could use the stop cord. (Tr. 178, 181). He also did not believe that a person could
fall onto the conveyor without contacting the stop cord. (Tr. 181-82, 185). During production, no one would approach the
stop cord unless the conveyor was locked out.
(Tr. 183).
b. Discussion and Analysis
I find that Respondent did not
violate section 56.14109(a) because a person falling on or near the conveyor
could readily deactivate the conveyor by using the stop cord. The photographs are particularly instructive
in this case. (Ex. G-9, R-6). The stop cord ran through eyelets supported
at the top of metal posts. For most of
its length, the stop cord fully complied with the safety standard. At the tail end of the conveyor belt, the
stop cord was angled down at about a 45 degree angle and was attached to a
support member that was below and parallel to the belt. The gap created was about 24 inches when
measured between the guarding at the tail pulley and the point where the cord
dips below the belt.
Section 56.14109(a) requires that a stop cord be located so
that a person falling on or against the conveyor can readily deactivate the
conveyor drive motor. In Buffalo Crushed Stone, Inc., 19 FMSHRC
231, 235 (Feb. 1997), the Commission held that the Secretary’s interpretation
of the safety standard to require that stop cords be located above the conveyor
so that a falling person’s arm or body can hit the stop cord on the way down
during the fall was consistent with the language of the standard. A falling miner should not have to
consciously look for the cord; it should be located so that he can easily hit
or grab it. Here the stop cord was suspended
above the conveyor to make it easier to pull and I credit Danielson’s testimony
that the cord was tight enough to be easily activated. Although there was an area at the tail end of
the conveyor where the cord dipped below the belt, the opening was small enough
that a miner would either hit the stop cord during the fall or could easily
grab it without having to think about it.
MSHA’s Program Policy Manual states that “MSHA expects that a miner
would be able to readily reach the emergency stop device to activate it . . .
.” (Ex. G-11). The preponderance of the evidence establishes
that the stop cord at the Yankton Mine could be easily reached by a falling or
stumbling miner in an emergency situation.
I credit Haas’ testimony that the opening was 24 inches based upon the photograph
that he took. (Ex. R-6). Even if the opening were 30 inches wide, it
would still allow a person falling to utilize the stop cord. Indeed, it is extremely likely that a falling
miner’s body or arm would hit the stop cord without the miner having to grab it
with his hand.
The fact that since the year 2000 numerous inspectors have observed
but not cited or commented upon the set-up of this stop cord also supports the
argument that the stop cord did not violate section 56.14109(a). I find that the cited stop cord did not pose
a hazard to the health and safety of miners and Respondent did not violate
section 56.14109(a). Consequently, Citation
6588808 is hereby VACATED.
II. ORDER
For the reasons set forth above,
Citation No. 6588808 is
hereby VACATED and Citation Nos.
6588807 and 6588806 are AFFIRMED. The
Concrete Materials division of Sweetman Construction Co. is ORDERED TO PAY the Secretary of Labor
the sum of $600.00 within 30 days of the date of this decision.[1]
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Alena
E. Amundson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, CO 80202
Jeffrey A. Sar, Esq., Baron, Sar,
Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102
/bjr
[1]
Payment should be sent to
the Mine Safety and Health Administration, U.S. Department of Labor, Payment
Office, P.O. Box 790390, St. Louis, MO 63179-0390.