FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Office of Administrative Law Judges
Telephone: (303) 844-5266/Fax: (303) 844-5268
May 16, 2012
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner,
v.
CCC GROUP, INC., Respondent. |
: : : : : : : : : : : : : : : |
CIVIL PENALTY PROCEEDINGS
Docket No. SE 2009-780-M A.C. No. 01-00003-191878-01 B96
Docket No. SE 2009-781-M A.C. No. 01-00003-191878-02 B96 A.C. No. 01-00003-194678-01 B96
Mine ID: 01-00003 Mine: O’Neal Quarry & Mill |
DECISION
Appearances: Winfield Murray, Les Brody, Office of the Solicitor, U.S. Department of Labor, Atlanta, GA, for Petitioner;
William H. Howe,
Howe, Anderson & Steyer, PC.,
Before: Judge Miller
These cases are
before me on petitions for assessment of civil penalty filed by the Secretary
of Labor (the “Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against CCC Group, Inc. (“CCC”) at
the O’Neal Quarry & Mill (the “mine”), 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”). The three
The
subject citations were issued in May, June and July of 2009, and in each
citation/order Respondent was cited for a violation of
I. BACKGROUND
Based upon careful consideration of the testimony and documentary evidence provided at hearing, my observation of the witnesses during their testimony, and my review of the exhibits, transcripts, and briefs submitted by the parties, I make the following findings.
The O'Neal Quarry and Mill, a multi-bench open pit limestone quarry owned and operated by Chemical Lime Company of Alabama, Inc., is located near Calera, Shelby County, Alabama. Limestone is drilled and blasted, then loaded into haul trucks and transported to the plant where it is crushed, sized, and separated according to chemical composition. CCC constructs buildings as a part of its business and was a contractor at the mine. The citations at issue relate to the construction activities of CCC at the mine, specifically the erection of a steel beam structure. The parties stipulated that the O’Neal Quarry and Mill is a mine as defined by the Act, that the mine is subject to the Mine Act, that CCC is subject to the provisions of the Mine Act and that the ALJ has jurisdiction. Jt. Ex. 1.
CCC
was engaged in the construction of a steel beam structure adjacent to the silos
at the mine. The construction required the hoisting of beams, often at a
forty-five degree angle. (Tr. 86); Sec’y Ex. 1. The project had been ongoing
for a month or two before the first “hoisting” citation was issued in April,
2009. The first citation, not at issue in this case, was eventually settled and
CCC paid a modified penalty. The citation was issued because a miner was not
clear of a suspended load; specifically, a
CCC asserts that in all situations, men were clear of the suspended loads and were not directly under the suspended beams at issue in the respective citations/orders. Witnesses for CCC explained the company’s procedure for lifting the steel beams and putting them into position on the structure.
With regard to the May and June 2009 citations/orders, the beams, while on the ground, were rigged onto the crane’s line at a 45 degree angle so that the beam was oriented in the position that it would eventually be attached to the structure. In both instances, the rigging was done by an experienced person who then signaled, either by radio or hand signal, to the crane operator to lift the load. Two men, Josh Phillips and John Carroll, were in a man-bucket near the position where the beam was to be placed, but approximately ten feet away from the structure. The beam was raised over the structure and then lowered into place. Phillips, from the man-bucket, used radio and/or hand signals to communicate with the crane operator and guide the beam. Phillips, at some point, moved the man-bucket to the beam so he and the other miner could position the beam by pushing it with their hands, and then install the bolts to hold the beam in place. According to Jimmy Allen Hodges, CCC’s project superintendent, the beam could not be placed without the miners placing their hands on it to move it into place and install the bolts. (Tr. 88-90). In contrast, MSHA asserts that the beam must be in position before it is touched and bolted.
CCC
witnesses testified that they were clear of the load, both when it was lifted
and lowered into place, and when using their hands to move the beam and
position it. CCC did not use tag lines when positioning the beams, and instead
relied on the miners to use their hands to move and direct the beam into place.
The inspector’s testimony reveals that the man-bucket was within 2-
Josh
Phillips, an iron worker for CCC for eight years, worked in the man-basket
along with another miner, John Carroll. Phillips was directing the installation
of the beam when the May and June citations were issued. When the July citation
was issued, he was on the ground moving a beam with his hands while standing in
its direct path. Phillips explained the procedure he used for rigging the beams
and moving them it into place. He utilized a radio and/or hand signals to communicate with the crane operator
as the load was being moved. At some point during the process, Phillips moved
the beams into place with his hands and then bolted the beams to the structure.
Although Phillips avers that he stays back from the beam until it is in place,
the inspector’s testimony and the photographs entered into evidence demonstrate
otherwise. In both the May and June citations, the beams were within feet of
the bucket in the photos, and in some instances the beam was above the bucket,
at least partially. Phillips agreed that the bucket was only 2-
Connie Person, the safety supervisor for CCC at this worksite, testified that she has worked for CCC for eleven years. According to her testimony, in May of 2009, she was called to the operation area because an inspector alleged that the men in the man-bucket were under the beam. She approached the area and subsequently determined that the man-bucket was not operating under the suspended load. She recalled that the inspector explained several alternative methods to move the beam into place but did not agree with the assessment of the inspector. (Tr. 157-158). The procedure CCC was using had been used in other locations and she considered it a safe way to operate. After the May citation was issued, Person was instructed by the company to re-enact the procedure and take photographs to submit to her supervisor, which she did. The photographs demonstrate that in doing so, she was often directly under the suspended load. Subsequently, after submitting the photos to MSHA, CCC received the June citation for workers not being clear of the load during the re-enactment. (Tr.160). Finally, when the third citation was issued in July, Person had just walked away from the area when the beam shifted and Phillips attempted to redirect it with his hands. Person testified that Phillips was near the end of the beam and since it was not above his head, she saw no violation. As the miner in charge of safety and training, Person held a meeting after each citation was issued and reinforced the fact that men should not be under a suspended load or cross into the flagged area. (Tr. 170).
Person, like the other CCC’s witnesses testified that she was aware of the various citations issued, beginning in April and ending in July, but disagreed that there was a violation in each case. CCC also agreed that, in April, a miner walked under the beam as it was being hoisted and, as a result, CCC was issued a citation that led to CCC using a louder horn to warn workers away. Nevertheless, Inspector Tucker observed the same conduct when he issued the citation in May.
Inspector
Tucker and Inspector Wilkes testified to the facts as explained in the
“condition or practice” in each citation. I find both Inspectors to be
knowledgeable and credible witnesses. The photographs bolster their testimony,
and demonstrate that they observed miners, either on the ground or in the
man-bucket, who were not clear of the loads. There is little dispute of fact in
this case, except perhaps as to the distance the miners were from the beam
during certain portions of the beam placement. I find that the man-bucket at
issue in the May and June citations was 2-
There may or may not have been tag lines on the beams, but CCC witnesses agree that the tag lines were used only in the event that the beam began to spin or move out of control. In order to place beams safely into their intended location on the structure, Inspector Tucker explained that a tag line on each side of the beam would be a safe alternative, and that the miner on one side can push, while a miner on the other side can pull the beam without being in the radius of its movement until it is in place. CCC insists that a tag line is not practical given that a miner would have to climb the stairs to the area where the beam is being hoisted, and then, with safety measures in place, pull the beam into the correct location. In any event, the method employed by CCC exposed miners in the man-bucket to the arc or swing area of the beam, and in many instances, the man-bucket was located partially or fully under the beam as the beam was lowered from above.
II. DISCUSSION
The
three citations/orders at issue involve alleged violations
Section 56.16009 is straightforward.
“Persons shall stay clear of suspended loads.” A “load” is defined as “a mass
or weight supported by something.” Webster's
Third New International Dictionary (2002) at 1325. The noun “load” is
modified by the adjective “suspended,” and when used as an adjective
“suspended” is defined as being “held in suspension.”
. . .
The standard’s goal is to prevent persons from being hit by such loads through barring persons from locating within a hanging load’s possible arc or radius. The logic is simple and irrefutable. When persons are outside the limits of a load’s point of suspension, they will not be struck and injured or struck and killed when the load moves freely.
. . .
[S]ection 56.16009, like many of the standards promulgated under the Mine Act, contains the sub silentio requirement the operator ascertain the specific prohibition of the standard and determine whether a hazard exists. Since it is clear the hazard against which the standard is directed is that of a person being struck by a hanging load, the question is whether a reasonably prudent person familiar with the industry and the protective purposes of the standard would have recognized that under the circumstances [the operator was required to relocate its employees to a different and safer location such that they were clear of the suspended load]
Haines at 516-517. Further, Commission Judge Morris interpreted the standard to include not only the limit of the load from the point of suspension, i.e., the arc or swing, as Judge Barbour did, but also the area under the load and the “area which the load would strike in falling, or after impact, in toppling over, and that area encompassed by the possible spilling of any contends [sic]. The position of the miner in relation to the suspended load is the pivotal factor which determines whether the standard has been violated.” Anaconda Co., 3 FMSHRC 859, 861 (Apr. 1981) (ALJ).
There is no dispute that the beams
cited by Tucker and Wilkes are suspended loads within the meaning of the
standard. Once the crane lifts the beams off of the ground, and before the beams
are placed and secured, they are suspended in the air and, hence, considered a
suspended load.
The primary issue in this case is whether persons were “clear” of the suspended loads. The cited standard is aimed at preventing a miner from being struck by a suspended load. I agree with the earlier ALJ decisions and find that, in order to comply with the cited standard and be “clear” of the suspended loads, miners must not only be outside the limit of the point of suspension, i.e., the limit of the arc or swing of the load, should the load move/spin, but also must not be underneath the load or in the area that would be affected should the load fall. While Section 56.16009 does not explicitly require the use of taglines or prohibit the use of one’s hands to position a load, “a reasonably prudent person familiar with the mining industry and the protective purposes of the standard” would certainly not expect to be in compliance with the standard when miners are present within the arc of the load, directly under the load, or in the area that would be affected should the load fall. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).
Each of the three violations at issue were designated by the respective inspector as significant and substantial. A S&S violation is described in section 104(d)(1) of the Act as a violation “of such 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). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists 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).
The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, 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 violation; (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,
103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
The Secretary further alleges that
the violations were the result of high negligence or reckless disregard on the
part of CCC, and, in some cases, amounted to an unwarrantable failure to comply
with the mandatory standard. The term “unwarrantable failure” is defined as
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or the “serious lack of reasonable care.”
a. Docket No. SE 2009‑780-M
Citation No. 6084023
On
Three miners were not
clear of a suspended load. The miners were working in a man lift under and
traveling below an area that the 75 ton crane was using to move a
The inspector found that a fatal injury was highly likely to occur, that the violation was significant and substantial, that three persons would be affected, and that the violation was the result of the operator’s high negligence and unwarrantable failure to comply with the mandatory standard. The Secretary has proposed a civil penalty in the amount of $70,000.
Based upon my discussion of the facts and applicable law set forth above, I find that the persons in the man-bucket, and the individual on the ground who walked into the barricaded area, were not clear of the suspended load. I credit Inspector Tucker’s testimony that the suspended beam was either partially or fully above both individuals in the man-bucket and the individual on the ground that entered the barricaded area. Moreover, the individuals in the man-bucket were within the arc, or swing, of the beam. Accordingly, I find that the Secretary has established a violation of the cited standard.
I also find
that the Secretary has established that the violation was S&S. I have found
a violation of the cited standard and I find further that the violation will
lead to an accident, which in turn will result in a reasonably serious injury.
The violation contributed to a discrete safety hazard, the hazard of being
either under or within the arc of the suspended
Inspector Tucker found the violation was the result of CCC’s high negligence. Tucker explained that he “had conducted safety meetings with every person at this – job site[,]” including Hodges and Person who was the onsite safety supervisor. (Tr. 28). In addition, Tucker, on “multiple occasions,” stopped work he observed being done CCC employees when he thought the miners were about to be placed in a hazardous position. He explained, more than once, alternative methods to lift and move the beams without exposing workers to the load. After the first citation in April, CCC continued to argue with Tucker and assert that OSHA law applied. (Tr. 32). CCC denies that it was put on notice that the process exposed workers to the moving load, or that Chemical Lime advised CCC to change its practice to conform to MSHA standards. In this regard, I credit the testimony of Tucker and find that CCC was put on the notice that greater compliance efforts were needed and that CCC’s negligence was high.
Tucker determined that this violation was the result of aggravated conduct on the part of the operator and that it amounted to an unwarrantable failure to comply with the standard. Tucker credibly testified that the unwarrantable designation was based upon several factors, including the fact that an identical citation had been issued to CCC the previous month and, following that citation, there were discussions with CCC regarding the proper method to place the beams that would keep the miners clear of the arc, or swing, of the load, as well as keeping the miners out from under the load. The day the subject citation was issued, Tucker described the condition as obvious. He observed a miner lift the barricade tape and walk into the area as the beam was being lifted and moved into place, and also saw men in the bucket above, who were within feet of the moving beam, place their hands on the beam to move it into place. He saw no tag line.
Tucker could not say for certain
how long the condition existed, but he explained that, at one point, after instructing
CCC on the proper method for installing the beam, he observed them use tag
lines and do it in a safe manner. He observed that “they did it properly, they
used tag lines, pulled the beams into place, they knew how to do it. But do I
have faith that they did it for every lift after that? No.” (Tr. 43). Nevertheless,
based upon the attitude of Person, other supervisors, and Phillips, Tucker
believed that the mine returned to its own practice after he left the property
and that, from the time he issued the first citation in April until this
citation in May, the mine continued to use the practice they preferred, i.e.,
having men within 2-
Several
additional factors stand out in regard to the unwarrantable failure
designation. I find that the violative condition was not only obvious and extensive,
but it posed a high degree of danger in the two distinct areas covered by this
citation. First, the miner who moved the barricade and walked into the area
looked up and saw the beam above his head. Second, the miners in the bucket
were only 2-
b. Docket No. SE 2009‑781-M
Citation
No. 6084030
On
Two miners were not clear of a
suspended load. The miners were working in a man lift under an area that the 75
ton crane was using to move a
The inspector found that a fatal injury was highly likely to occur, that the violation was S&S, that two persons would be affected, and that the violation was the result of moderate negligence on the part of the operator. At hearing the Secretary moved to conform the pleadings to the proof and modify the citation to a 104(d)(1) order with high negligence. The motion was granted. The Secretary has proposed a civil penalty in the amount of $31,988.
Inspector Tucker issued Citation
No. 6084030 based upon a series of photographs provided by CCC. (Tr. 33). After
the citations for failure to stay clear of a suspended load were issued in
April and again in May of 2009, off-site CCC management decided to demonstrate
the method they use to install the beams and discuss the violations with MSHA.
To that end, the safety supervisor took photographs of miners engaged in the
same process and sent them to the CCC main office. CCC Ex. G. The main office
then forwarded some of the photographs to the MSHA district office. The
photographs eventually found their way back to Inspector Tucker. According to
Tucker, the photos were evidence of a violation of
With regard to the inspector’s S&S designation,
I have already found a violation of the cited standard. Moreover, the violation
contributed to a discrete safety hazard, the hazard of the suspended beam
striking the miners in the man-bucket. It is common for beams to swing while
being hoisted and put into place. I find that it is reasonably likely that a
miner in a man-bucket that is within the beam’s arc would be hit by a swinging
beam. Moreover, a miner hit by the
Tucker originally designated the violation as being the result of moderate negligence because he did not actually see the violation, and instead only viewed the condition in the photographs presented by the operator. At hearing, Tucker testified that the violation should have been designated as high negligence and an unwarrantable failure to comply, just as Citation No. 6084023 had been. While it is true that the safety supervisor who took the photographs exhibited a high degree of negligence, she was told to do so by Gary Klatt, the corporate safety director. Klatt testified that he believed that the persons on the job at CCC were following company policy, and that as long as no worker was under the load, there was not a violation. In this regard, Klatt was credible when he testified that he did not realize there was a violation or that taking the photograph would place men in an unsafe position. I find that Person and Hodges were highly negligent and, therefore, the citation should be designated as such. At the same time, I find that, given the testimony of Klatt, there are mitigating circumstances to negate a finding of unwarrantable failure. I believe that Klatt would not have taken photographs of an obvious violation if he believed the miners were in any danger, and he was not adequately advised by Person. I granted the Secretary’s motion to modify the citation to a 104(d)(1) citation, but I find that its original designation as a 104(a) citation is more appropriate. Accordingly, I modify the citation to a 104(a) citation with high negligence, and vacate the unwarrantable failure designation.
c. Docket No. SE 2009‑885-M
Citation No. 6513337
On
An Iron Worker/Rigger
was not using a tag line while positioning a hoisted I-beam. The man was
pushing the beam with his hands. The
beam was approximately
This condition was a
factor that contributed to the issuance of imminent danger Order No. 6513336
dated
The inspector found that a permanently disabling injury 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 moderate negligence on the part of the operator. Subsequently, after learning of the earlier violations, Inspector Wilkes modified the citation to a 104(d)(1) order for an alleged violation of Section 56.16009. He further modified the order to reflect that it was the result of the operator’s reckless disregard and unwarrantable failure to comply with the mandatory standard. At hearing the Secretary moved to conform the pleadings to the proof and modify the order to a 104(d)(2) order with high negligence. The motion was granted. The Secretary has proposed a civil penalty in the amount of $63,071.
On
With regard to the inspector’s
S&S designation, I have already found a violation of the cited standard. Moreover,
the violation contributed to a discrete safety hazard, the hazard of the
suspended beam striking the miner whose hands were on the beam. As noted above,
it is likely that a beam will move or be out of control, and a man standing
next to a
Wilkes testified that he based his
unwarrantable failure designation on the number of citations and orders that
CCC had been issued for the violations of the same standard. (Tr. 71). I agree
that the violation is the result of high negligence given the involvement of Phillips
in other violations and the continued insistence by MSHA that he stay clear of
suspended loads. However, I find that, while this violation does involve a
suspended load, it presents a sufficiently different set of facts from the
other violations discussed at hearing to render the Secretary’s unwarrantable
failure designation inappropriate. Moreover, while the condition may have been
obvious, it existed for only a short period of time, was not particularly
extensive, was immediately abated, and, although the violation is significant
and substantial, the evidence does not demonstrate that it presented a high
degree of danger. Accordingly, I find
sufficient mitigating facts to vacate the unwarrantable failure designation.
III. PENALTY
The
principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well
established. Section 110(i) of the Mine Act delegates to the Commission and its
judges “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess the 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).
In
keeping with this statutory requirement, the Commission has held that “findings
of fact on the statutory penalty criteria must be made” by its judges. Sellersburg
Stone Co., 5 FMSHRC 287,
292 (Mar. 1983), aff’d,
I accept the stipulation of the parties that the penalties proposed are appropriate to this operator’s size (i.e., large operator) and ability to continue in business. Jt. Ex. 1 The history shows a number of violations prior to the citations/orders that were issued in this case, including a number of citations for failing to stay clear of a suspended load. Sec’y Ex. 7. The negligence and gravity of the respective violations are discussed above. I note that given the attitude and lack of interest by the safety supervisor, the high negligence findings are warranted and are the basis for the increase in penalties. The citations were abated in a timely manner. The following penalties are appropriate in this case, given the statutory criteria.
Citation No. 6084023 $70,000
Citation No. 6084030 $45,000
Citation No. 6513337 $65,000
At hearing, the parties reached a settlement agreement regarding four other citations and orders included in Docket No. SE 2009-781-M. The originally proposed penalty for those four violations was $9,570.00. The parties have agreed to settle those citations and orders for a total modified amount of $3,618.00. The individual amounts and modifications are as follows.
Citation No. 6084017 modify from moderate negligence to low with a penalty of $541.00
Citation No. 6084019 modify to lost workdays with penalty of $1,995.00
Citation No. 6084020 modify to low negligence with a penalty of $541.00
Citation No. 8084021 modify to low negligence with a penalty of $541.00
I
accept the representations of the parties and find the settlement to be
reasonable.
IV. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. ' 820(i), I assess the penalties listed above for a total penalty of $183,618 for the citations decided after hearing and those that were settled at hearing. CCC Group, Inc. is hereby ORDERED to pay the Secretary of Labor the sum of $183,618 within 30 days of the date of this decision.
/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution:
(First Class
Winfield
Murray, Les Brody, Office of the Solicitor, U.S. Department of Labor, 61
Forsyth St. S.W., Room 7T10,
William
H. Howe, Howe, Anderson & Steyer, P.C.,
[1] While there is some disagreement as to the safety of the procedure utilized by CCC, it appears that the procedure may have been acceptable to MSHA if the men had not positioned the beam with their hands, but instead used tag lines to pull the beam into the proper position. Since the violations relate to any number of occurrences where the men were not clear of the load, the fact that they used their hands to put the beams in place is only one of the issues.
[2]
While I am not bound by the decisions of
other administrative law judges, in appropriate circumstances, their decisions may
provide guidance.
[3] The imminent danger Order No. was incorrectly recorded in the body of the citation. The correct number is Order No. 6084022