FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
303-844-5267/ FAX 303-844-5268
|
SECRETARY OF LABOR, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. WEST 2011-957-M A.C. No. 05-00864-252219 Morrison Plant |
Appearances: Amanda
K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Al Quist, Safety Manager, Aggregate
Industries WRC, Inc., Golden,
Before: Judge Manning
DECISION
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 Aggregate Industries WRC, Inc., (“Aggregate
Industries”) 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
I. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS
OF LAW
On March 9,
2011, MSHA Inspector David Grosek issued Citation No. 6581985 under section
104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 56.11012. The citation alleges the following:
The Atlas Copco Drill has 2 elevated
work platforms, and the platform around the cab area does not have a fall
prevention barrier to prevent miners from falling and being injured. Also the work platform around the actual
drill mechanism has rails and chains at the access ladders, but an approximate
15 inch gap between the rails, at the top, which would allow a miner to fall
and be injured. These platforms are
approximately 4 ft. above the ground and have
(Sec’y Ex. 1).
Inspector Grosek determined that an injury resulting in lost
workdays or restricted duty was reasonably likely to occur, that the violation
was of a significant and substantial (“S&S”) nature, that one person would
be affected, and that the violation was the result of high negligence on the
part of the operator. The Secretary has
proposed a penalty of $687.00 for this alleged violation.
A. Summary
of Testimony
Inspector Grosek inspected Aggregate
Industries’ Morrison Plant for an E01 inspection. (Tr. 16-17). This mine has two E01 inspections every
year. (Tr. 17). An E01 inspection includes inspecting the
subject drill. (Tr. 34). He issued Citation No. 6581985 for a
violation of § 56.11012. (Tr. 18-19; G.
Ex. 1). The citation was issued because
the drill had an elevated platform that did not have a barrier across the
ladder access. (Tr. 19; Ex. G-1). Inspector Grosek took photos of the
condition, which the Secretary submitted as Exhibit 2. (Tr. 19-20; Ex. G-2). Inspector Grosek was concerned that there
were two openings on this platform that a person walking by could fall
through. (Tr. 24). The first opening for the ladder access was
two feet wide. (Tr. 24, 39). The second opening, on the other side of the
drill, was ten inches wide. (Tr.
27). The platform was four feet above
the ground. (Tr. 25). The operator terminated the citation by
putting chains across the openings. (Tr.
28).
Inspector Grosek testified that he
believed previous inspectors had failed to cite an obvious hazard. (Tr. 32, 35).
It was his opinion that a reasonably prudent person familiar with the
mining industry would have known that this area should have been
protected. (Tr. 29). He also believes that the chain does not
create an additional safety hazard because it is possible to unhook the chain
and climb the ladder while maintaining three points of contact. (Tr. 45-46).
Robert Gentry, a quarry supervisor
for Aggregate Industries, testified that the Atlas Copco, Ingersol-Rand DM45
drill was delivered to the Morrison Plant in 1995. (Tr. 55-56).
He moved the cab access from the original location to its current
location to make it safer when drilling at the highwall. (Tr. 57-58).
He did not feel that a barrier across the ladder was necessary. (Tr. 58).
When operating the drill, Mr. Gentry would walk past the opening once
per shift, but never believed he would fall through the opening. (Tr. 59).
The walkway surface is expanded metal that provides a lot of grip. (Tr. 60).
In inclement weather, miners take extra care because there is a slight
chance that a miner could slip. (Tr.
60). Gentry noted that a Caterpillar 988
front-end loader used at the quarry had a ladder attached to a small, raised
platform from which stairs led to the operator’s cab. (Tr. 69-70; Ex. R-A7). A miner would have to travel through the area
to access the cab and, more importantly, maintenance would sometimes have to be
performed at that location. There is no
fall protection barrier at the top of the ladder, yet MSHA has never issued a
citation for the lack of a fall protection barrier.
Mr. Gentry testified that he
believes the chain is a hazard because it cuts off the miner’s emergency access
from the cab should the drill sink while on the highwall. (Tr. 61-62).
Also, having a chain at the top of the ladder creates a hazard by forcing
the miner to unhook the chain while on the ladder, exposing the miner to the
risk of losing his grip and falling.
(Tr. 67).
B. Summary of the Parties’ Arguments
1.
Secretary of Labor
The Secretary argues that the
standard is clear and most of the elements of the standard are not in
dispute. (Tr. 80). The opening was at least two feet wide. (Tr. 80).
It was reasonably likely that a person could fall through this opening
because once a shift a person must walk by the opening and a person could trip
on a nearby step and inclement weather could make the walkway slippery. (Tr. 81).
A “travelway” is “a passage, walk or way regularly used and designated
for persons to go from one place to another.” 30 C.F.R. § 56.2. A person falling from an opening four feet
high may have serious, even fatal, injuries, resulting in lost workdays (Tr.
82). As a preliminary matter, the
Secretary lowered the negligence from “high” to “moderate.” (Tr. 5).
Next, the Secretary argues that MSHA
inspectors miss things, but this does not excuse the mine from recognizing
hazards and complying with standards.
(Tr. 82-83). She relies on the
decisions in Blue Mountain Production
Company and Main Line Rock & Ballast
to support this argument. See Mainline Rock & Ballast, Inc., 33 FMSHRC 307, 326 (Jan. 2011) (ALJ); Blue Mountain Production Company, 32 FMSHRC 1464,
1474 (Oct. 2010) (ALJ).
Finally, in response to the
operator’s argument that it lacked notice, the Secretary argues that a
reasonably prudent person familiar with the mining industry would have
recognized this as a hazard. (Tr.
83). She relies on the testimony of the
MSHA inspector and evidence that similar openings on this drill had chains in
place. (Tr. 83-84).
2.
Aggregate Industries
Aggregate Industries argues that the
issuance of this citation was a subjective decision by the MSHA inspector. (Tr. 85).
The drill at issue has been through 30 previous inspections from several
different inspectors and no citation was ever issued for the two openings. (Tr. 85).
Aggregate also has other machines with similar configurations that were
not cited. (Tr. 85). Further, Aggregate
Industries argues that it was not reasonably likely that a person would fall
through the opening because there is no evidence that anyone has fallen through
similar openings at the quarry or at any other quarry. (Tr. 85).
Finally, Aggregate Industries argues that the chain creates an additional
safety hazard by forcing the operator to take his hands from the rail to remove
the chains to access the platform. (Tr.
11). The chain also prevents the
operator from leaving the drill cab area quickly in the event of an emergency. (Tr. 11).
C. Analysis of the Issues
The cited standard requires that “openings
above, below, or near travelways through which persons or materials may fall
shall be protected by railings, barriers, or covers.” 30 C.F.R. §
56.11012. A “travelway” is defined as “a
passage, walk or way regularly used and designated for persons to go from one
place to another.” 30 C.F.R. §
56.2. The danger of materials falling
from the platform through the openings is not an issue in this case.
I find that Aggregate Industries
violated this standard. The platform on
the drill extending from the cab and along the side of the drill was a
travelway and the drill operator walked along it at least once a day. (Tr. 23, 59).
Any miner walking along the decking from the cab to the back of the
drill would pass by the access opening which was not equipped with any protective
device to prevent the miner from falling.
(Tr. 19). The drill operator
walked in that direction once a day to check the fluid level in the radiator. The other opening was very narrow. At only 10-inches wide, it was highly
unlikely that anyone could fall through that opening even if he tripped or
stumbled. (Tr. 67; Ex. R-B4). A miner was in that area very infrequently to
perform maintenance on an air compressor.
I find that the Secretary did not establish that the opening was along a
travelway used by miners “to go from one place to another.” Id. As a consequence, I conclude that this
second opening did not violate the safety standard.
The Atlas Copco drill had been at
the Morrison Plant for 15 years before this citation was issued. (Tr. 56).
The Morrison Plant has had two E01 inspections every year since that
time. (Tr. 17). At least 30 inspections of the Morrison Plant,
by various MSHA inspectors, had occurred without a citation being issued for
this condition. (Tr. 8, 17, 35). Thus, until this inspection, MSHA had not
considered the drill platform to be a travelway and had not recognized the
access opening as a hazard.
The Commission test for whether an
operator had notice of an interpretation is “whether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard.”
Ideal Cement Co. 12 FMSHRC 2409, 2416
(Nov. 1990). In Ideal Cement, the Commission held that this test is an objective
standard. BHP Minerals International Inc. 18 FMSHRC 1342, 1345 (Aug. 1996).
Prior
inconsistent enforcement of a safety standard is a factor the Commission
considers when evaluating whether a mine operator has received fair notice of
the Secretary’s interpretation of an ambiguous regulation. Alan
Lee Good d/b/a Good Construction,
23 FMSHRC 995, 1006 (Sept. 2001) (“Good
Construction”). In Good Construction, the mine had
maintained the cited areas for 18 years, with up to 20 MSHA inspections,
without an MSHA citation for the conditions at issue. The
Commission's decision was split on the issue of how that particular case should
be handled. The holding is essentially
the same in both opinions with respect to how this issue should be analyzed in
future cases, as summarized in the opinion of Commissioners Jordan and Beatty:
In
applying the reasonably prudent person standard to a notice question, the
Commission has taken into account a wide variety of factors, including the text
of a regulation, its placement in the overall enforcement scheme, its
regulatory history, the consistency of the agency's enforcement, and whether
MSHA has published notices informing the regulated community with
“ascertainable certainty” of its interpretation of the standard in question. Also relevant is the testimony of the
inspector and the operator's employees as to whether the practices affected
safety. Finally, we have looked to
accepted safety standards in the field, considerations unique to the mining
industry, and the circumstances at the operator's mine.
Id. at 1005 (citations and footnote omitted).
I find that the cited standard was
ambiguous with respect to the openings cited by Inspector Grosek. The opening of particular concern to the inspector
was at the top of the ladder. The drill
operator would only pass near this opening once a shift. The decking was expanded metal and the
guardrails on both sides of the openings were very substantial. (Ex. G-2).
The two openings did not create an obvious hazard. In addition, there is a similar opening at
the top of the ladder on at least one front-end loader that has never been
cited by MSHA. (Ex. R-A7). Parts on the loader must be serviced in the
area immediately adjacent to that opening.
Given these facts, the applicability of the safety standard to the cited
openings was very ambiguous especially considering the history of enforcement
at the quarry.
Aggregate Industries was led to
believe by about 30 prior citation-free inspections that the two cited openings
did not violate the safety standard and that the openings that required
protection were adequately secured.
There is nothing in the record that indicates Aggregate Industries knew
or should have known that the unchained openings might be considered a
violation of this safety standard. A
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have reached the same conclusion as Aggregate
Industries. As a consequence, I am
vacating the citation.
It is important for Aggregate
Industries to understand that by vacating the citation, I am not holding that
the safety standard does not apply to the opening at the top of the
ladder. I am only holding that Aggregate
Industries was not provided with the notice that is legally required to assess
a civil penalty for violating the safety standard. As a result of this decision, Aggregate
Industries has now been provided such notice and it is required to comply with
the requirements of section 56.11012 at the top of the ladder. As stated above, I find that the safety
standard does not apply to the cited 10-inch wide gap in the railing because
there was no danger of someone falling through the opening and the platform was
not a travelway.
II. ORDER
For the reasons set forth above,
Citation No. 6581985 is hereby VACATED and
this proceeding is DISMISSED.
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Amanda
K. Slater, Esq., Office of the Solicitor, U.S. Department of Labor, 1999
Broadway, Suite 800, Denver, CO 80202
Albert
Quist, Safety Manager, Aggregate Industries WRC, Inc., 1701 Cole Blvd, Suite 100, Golden, CO 80401
RWM