Federal Mine Safety and Health
Review Commission
Office of Administrative Law
Judges
Office: (303) 844-5266/Fax: (303) 844-5268
June 20, 2012
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SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Respondent. |
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CIVIL PENALTY PROCEEDING
Mine: Keaau Quarry |
DECISION
Appearances: Timothy J. Turner, Office of the
Solicitor,
Russell Y. Kuwaye,
Puna Rock Company Ltd.,
Before: Judge Miller
This
case is before me on a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health
Administration (“MSHA”), against Puna Rock, Ltd. (“Puna”) at
the Keaau Quarry mine (the “mine”), pursuant to section 104(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 814 (the “Mine Act” or “Act”). The parties presented testimony and
documentary evidence at a hearing held on May 29,
I. BACKGROUND
The
Keaau Quarry is a basalt crushed stone operation owned and operated by Puna
Rock Company, Ltd. The quarry is located
near
II.
STATEMENT OF FACTS AND LAW
This case involves two related citations, arising from a single activity; one for failure to provide safe access, and one for failure to wear fall protection. MSHA inspector Scott Amos issued both citations, which were accompanied by an imminent danger order. Amos designated both violations as S&S with high negligence.
Inspector Scott Amos is employed in the Boise MSHA field office and has been with MSHA for 5 years. Prior to his employment with MSHA he spent eight to ten years in the mining industry and, at two different times, was the manager of a crusher operation.
On April 13, 2010, Amos arrived at the scale house at the Keaau quarry, and then drove to the crusher with Delbert Cambra, the mine’s supervisor, who accompanied Amos during his inspection. Amos immediately noticed two miners replacing a burned out motor while standing on a wet, muddy area above the crusher. He issued an imminent danger order, and instructed the miners to come down. Subsequently, he issued two citations in conjunction with the 107(a) order. The imminent danger order has not been contested by Respondent.
After
speaking with the miners and their supervisor, Amos learned that a small motor
on the conveyor belt was not operating that morning. The two miners were either
assigned, or decided on their own, to repair the motor. The manlift that would
normally have been used to lift the miners to the motor location was not
available as it was in the shop for repairs. Therefore, the miners, after
discussing whether the use of fall protection was warranted, climbed up at a
designated location, walked along a metal walkway, and then ducked under the
rail and stepped onto the narrow metal area directly above the conveyor belt. The area they stepped on to access the motor was
described as the 36-inch wide filter rock belt. The belt was
According to Amos, a safe way to repair the motor would have been from either a manlift or from a ladder with the proper safety precautions in place. If the miners choose, instead, to stand near the motor, MSHA would require the mine to construct a platform with a rail, similar to the walkway with the rail that was adjacent to the area cited. Sec’y Ex. 4.
As a result of the miners climbing over the guard rail and onto the narrow metal area six feet above the ground, Amos issued two citations. Citation No. 8558520 was issued for a violation of Section 56.15005, a mandatory safety standard for metal and non-metal mines that requires, “[s]afety belts and lines shall be worn when persons work where there is danger of falling; a second person shall tend the lifeline when bins, tanks, or other dangerous areas are entered.” 30 C.F.R. § 56.15005. There is no dispute that the miners were working in an area where there was a danger of falling. In fact, Amos believed that the fall was imminent given the conditions that he observed. While there is no dispute that lifelines and fall protection were available, there is evidence to support that they were not being worn. The standard for determining whether fall protection is required was articulated by the Commission in Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983), finding that the standard is “whether an informed, reasonably prudent person would recognize a danger of falling warranting the wearing of safety belts and lines.” Given the height of the work, the small area where the miners were standing, and the conditions at the time of the citation, the danger of falling was undeniable. The operator raised no defense to the fact of the violation, and I find, based upon the credible testimony of Amos, that a violation has been shown.
Amos
also issued Citation No. 8558521 as a result of the miners working in the
narrow area above the conveyor belt. Amos cited a violation of Section
56.11001, a mandatory safety standard for travelways that requires that“[s]safe
means of access shall be provided and maintained to all working places.”
Each of the violations was designated by the inspector as significant and substantial (“S&S”). 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,
Inspector Amos explained that both
violations were S&S for substantially the same reasons. The miners were
standing on a narrow metal portion of the belt that was at an angle, with mud
and rock creating a slip and fall hazard. The miners had no safety line, and
there was no guard or railing to hold onto while maneuvering on the strip of
metal that did not exceed
A finding of S&S when such a fall hazard exists is in accord with prior ALJ decisions addressing this issue. For example in Moltan Co., LP, 31 FMSHRC 427 (Mar. 2009) (ALJ) the judge, crediting an inspector’s testimony that fatal falls have occurred from heights of ten feet or less, found an S&S violation where a miner was working without fall protection at a height of approximately seven feet. Here the miners were six feet above the ground, but Amos testified that fatalities have occurred from as low as three feet off of the ground. Hence, I find both violations to be significant and substantial.
Finally,
Amos designated both violations as being the result of high negligence,
although initially he marked both of them as moderate. He changed his view based
upon what he learned from the mine manager, Cambra, and based upon his belief
that Cambra knew that the motor was being repaired and that as a supervisor, he
should have ascertained that it was being done safely. Amos also took into account the fact that
Cambra was aware that the manlift was not working, but allowed the miners to
work at a six foot height without a safe, viable alternative. Amos was under
the impression that the supervisor assigned the two to complete the repairs,
not that they undertook it on their own. He also learned from the workers that
they considered using fall protection but determined that the height was not
great enough to require the use of lifelines.
Again, the supervisor did nothing to assure that they used the
protection that was readily available. Instead, the miners, left to their own
judgment, determined that under OSHA regulations, the area was not above
The mine operator testified that he questioned the manager and the miners and was given identical information regarding the life-lines. The workers did not believe they were required to wear the life lines given the location and height of the area in which they were working. However, the mine operator disagreed that the supervisor knew that the men were working on the motor. Instead, he explained, when a motor or minor repair must be made, the miners automatically do the repair and do not necessarily inform the supervisor. The supervisor is a mechanic, and if the miners have difficulty or can’t complete the repair, then they call on him. Otherwise, repairs are made daily as a matter of course without alerting the supervisor at the time. The operator further explained that the mine has not received citations of this nature in the past.
I find both the inspector and the mine operator to be credible witnesses. Given their testimony, I agree with Amos that Citation No. 8558521 is the result of high negligence. A manlift, although in need of repair, could have been available and the miners clearly should have known that it was not a safe practice to duck under a guard rail and access a cramped area that was wet and muddy to conduct repairs. The unsafe action was evident and the men should have known that such a practice could have deadly consequences. Further, even though the manlift was not working, it was quickly repaired so that the citation was terminated and the work completed from the manlift the same day.
I find that the violation for not wearing fall protection, described in Citation No. 8558520, was the result of moderate negligence. The miners explained that they considered the fall protection and believed that it was not necessary and that they would not be protected if they were to fall. If the supervisor was aware of the actions of the miners, he had a responsibility to ascertain that the work was done safely and in compliance with MSHA regulation. However, I find that there is not substantial evidence to support that he did know that the miners were doing the repair and were not wearing fall protection.
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). 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 [7] 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 as proposed will not affect the operator’s ability to continue in business. The violation was abated in good faith. This is a small mine operator with a very limited violation history. Sec’y Ex.1. I find that the Secretary has established the gravity of both violations at the levels cited. The Secretary issued a special assessment in this case. Having changed the negligence of Citation No. 8558520 from high to moderate, and based upon a review of all of the penalty criteria, a lower penalty is warranted. I assess a penalty of $2,000.00 for Citation No. 8558520 and a penalty of $4,000.00 for Citation No. 8558521.
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 $6,000.00. Puna Rock Company Ltd. is hereby ORDERED to pay the Secretary of Labor the sum of $6,000.00 within 30 days of the date of this decision.
/s/
Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution: (
Timothy J. Turner, Office of the Solicitor 1999 Broadway, Suite 800, Denver, CO 80202-5708
Russell
Y. Kuwaye, President, Puna Rock Company Ltd.,