FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

On the plants secondary work boat used to work on the pipeline and dredge, as well as the back up for the transportation to and from the dredge. Was not provided with any railings to include mid-rail, to keep a person from falling into the water should the boat shift for any reason while being worked on. The operator did have a lifejacket on when he went to operate the unit. If a man fell from the boat it could result in lost work days or restricted duty. Depending on how the man fell. Boat was in operation when the violation was cited. Boat is usually operated by one person.

Inspector Bell determined that an injury or illness was unlikely to occur, but that any injury would result in lost workdays or restricted duty, that the violation was not significant and substantial (“S&S”), that one person would be affected, and that the violation was a result of moderate negligence on the part of the operator. The Secretary has proposed a penalty of $100.00 for this violation.

On March 9, 2011, the Secretary filed a Motion to Amend Citation No. 6186226 and the Petition for Assessment of Penalty to Allege, in the Alternative, a Violation of 30 C.F.R. § 56.11027 (“Motion to Amend). The Motion to Amend was granted by the Court on April 21, 2011. Section 56.11027 provides, in pertinent part, that “working platforms shall be . . . provided with handrails[.]” 30 C.F.R. § 56.11027.

II. STIPULATIONS

The parties jointly stipulated to a number of key facts. The stipulations are as follows:[1]

Voss Sand Works is the operator of the mine in this case, Mine ID 1103114.
Voss Sand Works is a mine as that term is defined in the Mine Act.
Voss Sand Works’ operation or the products of the mine enter commerce within the scope of the Mine Act.
The Administrative Law Judge has subject matter and personal jurisdiction over the dispute in this case.
On April 25, 2007, the Mine Safety and Health Administration (“MSHA”) inspected the Voss Sand Works, Portable #1 mine.
MSHA Inspector Jay Bell was acting in his official capacity as an authorized representative of the Secretary when he inspected said mine.
MSHA issued Citation No. 6186226 to Voss Sand Works on April 25, 2007, alleging a violation of 30 C.F.R. § 56.11001.
The Secretary requested that she also be allowed to plead in the alternative a violation of 30 C.F.R. § 56.11027.
The equipment involved in this citation is a secondary work boat that can be seen in Exhibits G and H.
At the time of inspection on April 25, 2007, this boat was used by Respondent to work on the pipeline and the dredge, as well as used as a source of transportation to and from working on the dredge pipeline.
Citation No. 6186226 was terminated at 1:00 p.m. on April 26, 2007, after Voss Sand Works added a safety railing around the entire boat, and the violation was thereby abated.
MSHA also issued Citation No. 6186227 to Voss Sand Works on April 25, 2007, alleging a violation of 30 C.F.R. § 56.4201(a)(2).
Respondent no longer contests Citation No. 6186227 and agrees it has been proven for the purposes of this case.
MSHA also issued Citation No. 6186228 to Voss Sand Works on April 25, 2007, alleging a violation of 30 C.F.R. § 56.20003(a).
Respondent no longer contests Citation No. 6186228 and agrees it has been proven for the purposes of this case.
The Respondent exercised good faith in timely abating all of the conditions cited as violations.
MSHA’s penalty assessment is based upon the following and calculated pursuant to 30 C.F.R. § 100.3:

Mine Hours: 8,455
Controller Hours: 15,045
Number of Violations: 3 written individually
Number of Inspection Days: 2
Number of Repeat Violations: 0
Number of Persons Affected: 1
Mine Size Points: 1
Controller Size Points: 0
VPID Points: 0
RPID Points: 0
Negligence Points: 20
Likelihood Points: 10
Severity of Injury Points: 5
Number of Persons Affected Points: 1
Good Faith Points: 0
Total Points: 37

30 C.F.R. § 100.3 provides that 37 assessed points result in the penalty of $112.00 for each of the three violations, totaling $336.00. With the 10% good faith reduction, the total penalty amount proposed by the Secretary for all three violations totals $300.00.
Payment of the proposed penalty will not affect Voss Sand Works’ ability to continue in business.

III. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS

A. Secretary of Labor’s Motion for Summary Decision

The Secretary asserts that she is entitled to summary decision. She contends that the boat, also referred to as the “secondary work boat,” is both a “working platform [and working place] . . . used to work on the pipeline and the dredge, as well as for transportation [over the lake] to and from work on the dredge and pipe line.” Sec’y Mot. 5, 9. At the time the subject citation was issued, the boat did not have handrails of any kind. Id. at 5.

The Secretary argues that, by failing to provide handrails of any kind on the boat, Voss violated Section 56.11001, which requires that “[s]afe means of access be maintained to all working places.” Id. at 6-7. The boat was designed and built “to carry miners from the dock to the dredge and pipe line” and “safe access would include a railing around the sides of the boat/platform.” Id. at 7. As support for her position, the Secretary cites Evansville Materials, Inc. in which a Commission judge determined that safe access was not provided because hand-holds were not available for miners to use when getting off of a ferry boat and onto a dredge deck. 12 FMSHRC 6, 14 (1990) (ALJ); Sec’y Mot. 7-8. Further, in Redland Genstar, Inc., a Commission judge found that an operator failed to provide safe access when a boat, which was used by the operator to transport employees to the dredge, was too heavy and sank. 19 FMSHRC 442 (1997) (ALJ); Sec’y Mot. 8.

Alternatively, the Secretary argues that Voss does not satisfy Section 56.11027, which requires that “working platforms shall be . . . provided with handrails.” Sec’y Mot. 6-7. She argues that the boat is a “working platform” and points to Judge Barbour’s decision in Rohloff Sand & Gravel Co. where he held that platforms near water should have handrails in situations were a miner could slip and fall into the water. 20 FMSHRC 868, 872 (1998) (ALJ); Sec’y Mot. 8-9.

The Secretary notes that both the originally cited standard and the alternatively cited standard are grouped in her regulations under the larger heading of “travelways,” which are defined as “a passage, walk or way regularly used and designated for person to go from one place to another.” 30 C.F.R. § 56.2; Sec’y Mot. 7.

Finally, the Secretary argues that, based on the inspector’s findings regarding the criteria set forth in Section 110(i) of the Mine Act and Section 100 of the Secretary’s regulations, the proposed penalty of $100.00 is appropriate. Sec’y Mot. 9.

B. Voss’ Response

Voss argues that there are factual issues that must be resolved and that the Secretary is not entitled to summary decision. Voss Resp. 1. Specifically, Voss contends that the Secretary’s use of multiple standards raises factual questions. Id. at 1-2. Voss objects to the use of several different standards and argues that there is no standard that requires mid-rails or hand-holds to be installed on boats. Id. at 7. Voss asks that the citation be vacated and the proposed penalty be dismissed. Id.

Voss argues that a MSHA investigator previously asked Josh Voss, owner of Voss, about any problems with the secondary work boat and Voss responded that lifejackets were worn when working on the water. Id. at 5. Subsequently, when Inspector Bell wrote Citation No. 6186226 he did not mention anything about a platform, so the secondary boat cannot be considered a platform. Id. at 5-6. Moreover, during a previous inspection, Kevin LeGrand, a MSHA field office supervisor observed the boat but did not issue a citation. Id. at 6. Case law points to the fact that MSHA inspectors have conceded that handholds and mid-rails are not required on a dredge. Fleniken’s Sand & Gravel, 10 FMSHRC 1509 (1988) (ALJ); Voss Resp. 6. In Fleniken, the ALJ found that, “if MSHA believes that such safety devices (mid-rails/hand holds) are necessary to prevent persons from falling off a dredge operating over water, it should promulgate standards covering this hazard.” Id. at 1517; Voss Resp. 6. Additionally, Voss points to the fact that, in Fleniken, the inspector’s interpretation of Section 56.15020 was that lifejackets were to be worn at all times when an employee is working on a dredge deck. Voss Resp. 6.

Voss also points to APAC-Mississippi, Inc., 26 FMSHRC 811 (2004) (ALJ), where a walkway on a floating dredge had not been fixed with railings to prevent a person from walking, tripping or slipping into the water when traversing the walkway. There, the judge found that the Secretary’s evidence fell short of establishing that the cited area was a travelway. Id. at 812; Voss Resp. 7.

Voss no longer contests Citation Nos. 6186227 and 6186228 and concedes that the penalties for those citations are appropriate. Voss Resp. 7. Voss requests Citation No 6186226 be vacated and that “the Administrative Law Judge den[y] the proposed penalty.” Id.

C. Secretary of Labor’s Reply

Although Voss alleges that there are factual issues that still need to be resolved, Voss offers no information regarding the relevant facts that remain at issue. Sec’y Rep. 1. Voss contends that the Secretary’s use of different standards raises factual issues, however, that is not the case. Id. The Court has already granted the Secretary’s Motion to Amend Citation No. 6186226 and Plead in the Alternative. Id. at 2. The Secretary can move to amend her petition at any time during the investigation. Id. at 3. An amendment is a procedural issue and “not a factual issue to be resolved.” Id.

Voss’ argument that an inspector saw the secondary workboat during a prior inspection and did not cite it does not mean that a hazard did not exist at the time of the subject inspection. See Sunny Ridge Mining Co., 19 FMSHRC 254, 267-7 (1997) (ALJ) (citations omitted); Sec’y Rep. 3. Moreover, the other cases cited by Voss in support of its arguments are distinguishable from the matter at hand. Sec’y Rep. 3-4.

D. Voss’ Surreply.

Voss again claims there are factual issues to be resolved. Voss Surr. 1. When the Secretary filed her Motion to Amend Citation No. 6186226, it was the third standard the Secretary used to address the alleged violation. Id. at 2. When Voss offered to settle the case, the Secretary responded by changing the standard. Id. Voss contends that the Secretary is using “procedural options” to find a violation for the condition. Id. Voss is at a disadvantage when another standard is used to fit the conduct. Id. Citation No. 6186226 should be vacated and the proposed penalty should be dismissed. Id.

IV. DISCUSSION

Commission’s Procedural Rule 67 sets forth the grounds for granting summary decision as follows:

A motion for summary decision shall be granted only if the entire record, including the pleadings, depositions, answer to interrogatories, admissions, and affidavits, shows:

(1) That there is no genuine issue as to any material fact; and

(2) That the moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67. I find that there are no genuine issues as to any material fact and the Secretary is entitled to summary decision as a matter of law. While Voss does not stylize its Response or Surreply as a cross-motion for summary decision, I treat them as such given that the parties have submitted joint stipulations and that Voss argues that the citation should be vacated based on the evidence before me. Finally, I note that the parties have relied primarily on the decisions of other administrative law judges. While I am not bound by the decisions of other Commission judges, in appropriate circumstances I may be guided by those decisions.

For organizational purposes, I first address Voss’ argument that the Secretary’s use of multiple legal standards raises genuine issues regarding material facts of this case. Voss maintains that there is a factual issue embedded in the alternative pleadings that needs to be resolved. Voss Rep. 2; Voss Surr. 2. I disagree with Voss, and agree with the Secretary, who stated in her Reply that, while Voss “believes ‘there are factual issues to be resolved,’ it offers no argument of the factual issues.” Sec’y Rep. 2 (citing Sec’y Resp. 1). The use of alternative standards in the context of this proceeding is a question of law that has already been answered. The Secretary properly filed a Motion to Amend Citation No. 6186226 and allege, in the alternative, a violation of 30 C.F.R. § 56.11027. On April 21, 2011, in granting the Secretary’s motion, Judge Biro held:

The gravamen of the charge described in the text of Citation Number 618226 is the lack of any railings on Respondent’s work boat. The standard that the Secretary now seeks to allege Respondent violated (30 C.F.R. 56.11027) more precisely specifies a legal requirement for handrails than the general “safe access” rules originally cited (30 C.F.R. § 56.11001).

Order Granting Sec’y Mot. to Plead in the Alternative 4 (Apr. 21, 2011).[2] I see no reason to disturb Judge Biro’s ruling and agree that the Secretary properly amended her petition and that the Respondent’s argument is without merit. Accordingly, I will first analyze the record in the context of the originally cited standard, Section 56.11001, and then in the context of the alternatively cited standard, Section 56.11027.

Section 56.11001 requires that “[s]afe means of access shall be provided and maintained to all working places.” 30 C.F.R. § 56.11001. The Secretary’s regulations define “working place” to be “any place in or about a mine where work is being performed.” 30 C.F.R. § 56.2. It is undisputed that the secondary boat “was used by Respondent to work on the pipeline and the dredge, as well as being used as a source of transportation to and from working on the dredge pipe[]line.” Stip. 10. I find that both the boat and the dredge are working places. The stipulation makes clear that, at times, miners stood on the boat while working on the pipeline and dredge. Moreover, the statement that the boat was used to transport miners “to and from working on the dredge[,]” makes clear that work was also done while standing on the dredge itself. Id. (emphasis added). The standard requires that safe access be provided and maintained to all working places. While the facts do not reveal if there was safe access to the boat, it is clear that safe access to dredge, via the boat, was not provided. The boat provided the means of access to the dredge. While Section 56.11001 does not explicitly require handrails, “a reasonably prudent person familiar with the mining industry and the protective purposes of the standard” would certainly not expect the subject boat, which had no restraints to prevent a miner from falling off of the boat, to be considered a “safe means of access” to the dredge. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). The boat had no restraints to prevent a miner from falling off of the boat and, therefore, did not provide the safe access required by the Secretary’s regulation. While lifejackets do provide a measure of safety to prevent against drowning, they do not prevent a miner from falling off the boat and sustaining other types of injuries, e.g., striking their head on the side of the boat, dredge, pipeline, etc. I find that the undisputed material facts evidence a violation of 30 C.F.R. § 56.11001.

Given that I have already found a violation of Section 56.11001, I need not address the Secretary’s alternative pleading. However, had the undisputed material facts not shown a violation of Section 56.11001, I nevertheless would have found a violation of Section 56.11027. Section 56.11027 requires, in pertinent part, that “working platforms shall be . . . provided with handrails[.].” 30 C.F.R. § 56.11027. The Secretary’s regulations do not define the term “working platform.” “In the absence of a statutory or regulatory definition of a term, the Commission applies the ordinary meaning of that term.” Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). The dictionary defines “platform” as “a horizontal flat surface usu. higher than the adjoining area.” Webster’s New Collegiate Dictionary 873 (1979). Given that a “working place” is “any place in or about a mine where work is being performed,” 30 C.F.R. § 56.2, logically, a “working platform” is any elevated, horizontal, flat surface in or about a mine where work is being performed. (emphasis added); 30 C.F.R. § 56.2; see also Empire Iron Mining, 19 FMSHRC 1912, 1920 (Dec. 1997) (ALJ). Again, it is undisputed that the boat “was used by Respondent to work on the pipeline and the dredge, as well as being used as a source of transportation to and from working on the dredge pipe[]line.” Stip. 10. The stipulation makes clear that miners stood on the boat while working on the pipeline and dredge. Moreover, it is undisputed that handrails were not provided on the boat. The only question that remains is whether the boat is a “platform.” I find that the boat is a platform. The photographs of the boat reveal that the deck was an elevated, horizontal, flat surface. Sec’y Mot. Exs. G and H. The boat’s deck was higher than the waterline. Moreover, while it is not clear how deep the water in the area was, obviously the boat’s deck was higher than the lake bed beneath the surface of the water. The boat had no restraints to prevent a miner from falling off of the boat and into the water. Given that the boat was a working platform, and that there were no handrails provided, the undisputed material facts evidence a violation of 30 C.F.R. § 56.11027.

Voss argues that the secondary boat had not been cited during previous inspections and that, consequently, the citation should be vacated. However, this argument does not address the existence or nonexistence of this particular violation. Hazardous conditions can develop quickly, and an investigator may inadvertently overlook violative conditions. In short, even if the violation was not cited during previous MSHA inspections, it does not mean the hazard did not exist at the time the subject citation was issued.

Voss cites two other Commission ALJ decisions for the proposition that a handrail was not needed on the boat, i.e., Fleniken’s Sand & Gravel and APAC Mississipi. However, as correctly pointed out by the Secretary, neither of these cases addresses the standards at issue.

Consistent with the above analysis, I find that the Secretary has established a violation of Section 56.11001.

V. CITATION NOS. 6186227 AND 6186228

Voss has agreed to accept Citation Nos. 6186227 and 6186228 as written and pay the associated penalties. Accordingly, I assess the $100.00 penalties originally proposed by the Secretary for Citation Nos. 6186227 and 6186228.

VI. APPROPRIATE CIVIL PENALTY

Section 110(i) of the Act lists six criteria to be considered in determining appropriate civil penalties.[3] Notably, Voss does not dispute the Secretary’s assessment of the penalty criteria. Rather, Voss only argues that the citation should be vacated and no penalty should be assessed. Voss Resp. 7. I have already found a violation of the originally cited standard. I accept the Secretary’s assessment of the penalty criteria and Voss’ stipulation that the proposed penalty will not affect its ability to continue in business. Stip. Nos. 17 and 19. I find that the Secretary’s proposed penalty of $100.00 is appropriate for Citation No. 6186226.

VII. ORDER

The Secretary’s motion for summary decision is GRANTED. Citation Nos. 6186226, 6186227, and 6186228 are AFFIRMED in all respects. Voss is ORDERED TO PAY the secretary of Labor the sum of $300.00 within 30 days of the date of this decision.

/s/ Margaret Miller

Margaret Miller

Administrative Law Judge

Distribution:

Beau Ellis, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708.

Daniel P. Foltniewicz, Voss Sand Works, Inc., P.O. Box 5312, Wheaton, IL 60189.

[1] I note that Stipulation Nos. 10 and 11, while not included in the Secretary’s Motion, were included in Voss’ Response. The Secretary does not dispute those stipulations. I find that Voss has stipulated to such.

[2] On January 26, 2012, LAKE 2008-422-M was reassigned from Judge Biro to the undersigned judge.

[3] The Act requires that, in assessing civil monetary penalties, the Commission [ALJ] shall consider six statutory penalty criteria:

[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).