FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933 / FAX: 202-434-9949

December 19, 2012

SECRETARY OF LABOR,    MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA),   Petitioner v. LAFARGE BUILDING MATERIALS, Respondent

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CIVIL PENALTY PROCEEDING Docket No. SE 2011-791-M A.C. No. 09-01126-263238 Mine: Morgan County Mine Site

DECISION

Before: Judge Moran

Appearances: Melanie L. Paul, Esq., Office of the Solicitor, U.S. Department of Labor, and James R. Shaffer, Conference and Litigation Representative, MSHA, for the Petitioner.

Brian D. McNamara, CMSP, for the Respondent.

This case is before the Court upon a petition for civil penalty filed by the Secretary of Labor, pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act” or “Act”). The docket consists of a single alleged violation of the Act, with a proposed penalty of $100. Petitioner issued a citation alleging a violation of standard 30 C.F.R. § 56.20003, the relevant part of which requires that working places be kept clean and orderly. In this instance, the focus was upon a cluttered truck bed. At trial, the Secretary pled, in the alternative, that standard 30 C.F.R. § 56.11001 was violated. That standard requires that a safe means of access shall be provided and maintained to all working places. The underlying issue in this case is whether and under what conditions a service truck’s bed can be considered to be a “working place” under the cited standards.

For the reasons that follow, the Court finds that the truck bed was a working place, that the materials within that bed presented a slip, trip, and fall hazard, and accordingly, that the standard was violated. While the Court determines the truck’s bed to be within the standard’s ambit, it also recognizes that this represents an apparently new application of the standard. Taking that into account, the Court modifies the level of negligence from “moderate” to “low” and reduces the penalty to $20.

Also, in considering the appropriate penalty, the Court takes note that both sides presented plausible arguments as to the application of the term “working place” to the cited truck bed. Although the Court takes into account that mining is, by its nature, not a pristine activity, in looking to the remedial nature of the Mine Act, the Court finds that upon considering the items in the truck bed and how those items were used, LaFarge’s truck bed was a working place. The undisputed cluttered condition of the bed violated standard 56.20003’s requirement.

The Working Place Issue: Citation No. 8631203, alleging a violation of 30 C.F.R. § 56.20003, by failing to have a clean and orderly working place.

Standard 30 C.F.R. § 56.20003 addresses various aspects of working place cleanliness and order. The portion at issue, section (a), provides:

At all mining operations--

(a) Working places, passageways, storerooms, and service rooms shall be kept clean and orderly[.]

The “Condition or Practice” section of the citation states:

At the time of [the MSHA] inspection, the C5500 Chevy service truck bed was cluttered with several articles and debris. The bed was strewn with buckets, hoses, welding leads, ladders, chocks, blocks of wood, chains[,] and come-a-longs. This exhibited poor housekeeping, and [runs contrary to the standard’s requirement that] passageways shall be kept clean and orderly to prevent slip, trip and fall hazards to miners.

Ex. P-5; Ex. R-1.

Fact of Violation

Inspector William Russell Hall, a MSHA inspector with five years of experience, conducted a routine inspection of Respondent company LaFarge’s Six Mine (“Respondent”) at the Morgan County mine site, a rock quarry, on June 15, 2011. Tr. 15, 21, 22, 77. Inspector Hall met with Allen Aaron, Respondent’s quality control technician, who accompanied him on the inspection. Tr. 20, 22. Don Richards, who serves as LaFarge’s Six Mine plant manager, was not present on the tour but met Hall at the closeout conference. Tr. 20-22, 33.

During the course of his inspection, Hall examined LaFarge’s C5500 Chevy service truck. Tr. 23. At the hearing, Hall noted that a service truck has several functions and that it typically carries tools to assist in tasks at the mine. Tr. 30. The service truck at issue was no different in providing that function.

The Inspector examined and took photographs of the truck’s bed. As the photos reflect, he saw buckets, hoses, welding leads, ladders, chock blocks, chains, gas cans, a chainsaw, a sledgehammer, come-a-longs, a creeper, and a compressor. Tr. 23, 25, 45-53, 59; Ex. P-7, P-8. It was Hall’s opinion that the truck bed’s contents were the sort of items that a worker “might need during [his] work day.” Tr. 25. Hall later asserted that the items he observed in the truck were not the sorts of parts likely to be thrown away. Tr. 31.

One of the larger items that Hall saw was an air compressor that was mounted on the truck bed, just behind the cab. Tr. 47; Ex. P-7, P-8. Hall testified that he had inspected this type of air compressor previously and, at trial, Petitioner presented a manual that included the manufacturer’s prescribed maintenance schedule for the compressor. Tr. 34; Ex. P-30-38. The schedule included a daily maintenance regimen that included checking the oil, lubricating the machine, and draining moisture via a valve on the bottom of the compressor. Tr. 37-38; Ex. P-32. The schedule also included weekly and periodic maintenance schedules which required changing the crankcase oil, inspection of the air system, tightening of the nuts and bolts, and replacement of various parts as needed. Tr. 39; Ex. P-33. Hall stated that the maintenance requirements, including fueling the compressor, changing the crankcase oil, tightening the compressor’s nuts and screws, and checking the gaskets could only be performed from within the truck bed. Tr. 38-40. Therefore, those tasks could not be performed from outside of the truck bed. Id. Hall also stated that the compressor was not locked or tagged out, indicating that it was “available to be used as needed.” Tr. 82.

At trial, Hall concurred with the Court’s suggested definition of “work” as “activities related to the performance of various jobs at a mine site[.]” Tr. 49-50.[1] The Court then asked Hall whether the types of items found—the chain saw, the blocks, and the compressed air cylinder—would all be instruments that would be used for activities related to the performance of various jobs at the mine site; Hall replied “[y]es.” Tr. 54.

Hall’s concern was that a miner performing his daily activities would risk injury while performing work in the truck bed. He believed that if a miner tried to walk over the items in the bed there was a good chance that he would encounter a slip, trip, and fall hazard. Tr. 45. Even if the truck bed did not contain the mounted air compressor, Hall testified that it would still be possible for the bed to be cited, unless there was “safe access … to perform the jobs that need[ed] to be performed.” Tr. 55. For example, Hall noted that a miner needing to retrieve the hoses from the truck’s bed to perform a task would be performing work. Tr. 56. The Court then posed a hypothetical to Hall asking whether, if there was no compressor, it would still be unsafe for a miner to access the other items located at the front of the truck bed; Hall replied affirmatively, believing that a miner could not safely access those items. Tr. 58-59.

No mitigating circumstances were presented to Hall when he issued the citation, and it was terminated after Respondent cleaned up the truck bed. Tr. 28, 29. When asked to describe the difference between the state of the truck bed before and after the termination, Hall remarked that “some things were removed and other things were simply placed in order to provide passageway up through the middle of the bed of the vehicle.” Tr. 31.

At the closeout conference Richards disagreed with Hall’s determinations. Tr. 33, 93. According to Hall, Richards contended that the truck was “haul[ing] stuff” on the morning of the inspection and at the time of the inspection was on its way to a dump site. Tr. 70-71. At trial, Hall testified that he didn’t believe that the truck was going to a dump site to throw out usable parts, including “a creeper[,]…air hoses[,] and equipment.” Tr. 70-72. Respondent then asked Hall at what point a truck bed could become citable. Tr. 72. Hall answered that there was no specific time frame; as long as the truck bed was being used as a working space, it needed to be clean and orderly. Id. Respondent pressed further by asking, for instance, if a miner did not need to access the compressor, and stayed closer to the rear end of the truck bed, whether it would still be a violation. Tr. 72-74. Hall answered that if “there are articles in [the truck bed] that are going to remain in the truck[,] they sure shouldn't be [there] in [a] way [that] present a slip, trip and fall hazard for somebody that needed to get to the compressor.” Tr. 73.

Discussion

The issue in this case is whether the truck bed can reasonably be construed to be a “working place” under 30 C.F.R. § 56.20003. Standard 30 C.F.R. § 56.2, the definitional section applicable to the cited standard, provides that a “working place” is “any place in or about a mine where work is being performed.”

In enacting the Federal Mine Safety and Health Act of 1977, Congress intended to ensure safe working conditions for miners. The Commission and Courts of Appeal have construed the application of the Mine Act liberally.[2] One Circuit Court held that “[s]ince the Act in question is a remedial and safety statute, with its primary concern being the preservation of human life, it is the type of enactment as to which a narrow or limited construction is to be eschewed.”[3] The Commission, too, has held in multiple cases that the Mine Act, as a remedial statute, must be interpreted broadly to further the Act’s remedial goals.[4] Thus, close cases of interpretation of safety standards are to be resolved in favor of furthering the goals of the Mine Act.

In applying the cited standard to the facts, the Court notes that 30 C.F.R. § 56.20003 requires that workplaces be kept clean and orderly and that the intent behind the standard is to prevent, among other hazards, slip, trip, and fall injuries. While a truck bed does not usually come to mind as a typical working place, if it is shown that work is being performed in the bed, the area comes under safety standard 56.20003.[5] Accordingly, if the truck bed was used as a working place, the Court must then decide whether the state in which Inspector Hall found the truck violated the cited standard.

The Court finds that the truck bed was a working place under standard 56.20003. Accessing the truck bed in any way—whether to retrieve tools or access the compressor—constitutes work under the broad definition of working place. Using the air compressor in the truck required that a worker enter the space of the truck bed to access it, an action that constitutes “work,” under any definition of that term. The Court credits the inspector’s testimony that the service truck traveled around the mine to conduct various jobs and that work was performed, at least in part, by having to access the truck bed. Completion of these tasks would have required accessing the cluttered truck bed, as workers would have needed to obtain items such as hoses, blocks, and the creeper. Furthermore, assuming that LaFarge would be performing the prescribed maintenance on the air compressor, a LaFarge worker would have needed to enter the truck’s bed at least once a day. Therefore, the truck bed, as found, was a working place.

The photographs in the record are consistent with Inspector Hall’s testimony and independently establish that the truck’s bed was not clean and orderly, and therefore ran afoul of the standard’s requirement. The risk of entanglement with the various items in the bed exposed miners to a slip, trip, and fall hazard. To access the machinery, workers would have been required to navigate a disorganized, unsecured pile of parts. Any one of the parts alone in the position that the inspector found them, including the chock blocks or hoses, could pose a tripping hazard.[6]

Although the Respondent has contended that the standard is ambiguous as applied to a truck bed, the Court has found otherwise.[7] Further, the low penalty imposed takes into account the novelty of the application.

Likelihood of Harm

Hall rated the likelihood of the injury as “unlikely.” Hall opined that because the truck was probably used infrequently and only on a need-to-use basis, an injury was unlikely to occur. Tr. 26. The Court affirms this determination.

Type of Injury

Hall determined that if an injury was to occur, it would be one that would cause “lost work days or restricted duty.” Tr. 26. Hall estimated a likely scenario would be where a miner slips and falls, causing “a serious cut” or if he trips, a sprained ankle or broken bone. Id. The Court affirms this determination.

Negligence

Hall rated the negligence as “moderate,” a determination made because he had no information that any of Respondent’s managers were aware of the situation. Tr. 27. As noted, considering a truck bed to be a working place is not a well-established application of the standard and for that reason, the Court finds the negligence in this instance to be “low.”

Civil Penalty Assessment

The Court, upon taking into account the civil penalty criteria set forth in section 110(i) of the Act. 30 U.S.C. § 820(i), finds that the appropriate civil penalty here is $20.00 (twenty dollars).

ORDER

It is ORDERED that Citation No. 8631203 be MODIFIED to reduce the level of negligence from “moderate” to “low.”

Within 30 days of the date of this decision, Respondent IS ORDERED to pay a civil penalty of $20.00 (twenty dollars) for the violation of standard 30 C.F.R. § 56.20003, as set forth in Citation No. 8631203. Upon payment of the penalty, this proceeding IS DISMISSED.[8]

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution: (First Class U.S. Mail)

Melanie L. Paul, Esq., Office of the Solicitor, United States Department of Labor, 61 Forsyth St., SW, Room 7T10, Atlanta, GA 30303

James R. Shaffer, U.S. Department of Labor, 135 Gemini Circle, Suite 212, Birmingham, AL 35209

Brian McNamara, CMSP, Division Safety Manager, EUS, 12735 Morris Road Extension, Suite 300, Alpharetta, GA 30004

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[1] While his testimony did not directly address the definition of “work,” Richards’ statements accord with the definition recommended by the Court. When he was being questioned about the service truck’s function, Richards replied:

A: Some days it's used as just a mode of transportation, to and from. Depending on the operation working, some days it's used for doing oil changes, some days they made need the air compressor, some days they may never touch the air compressor. It's used for a myriad of different things.

Q: So you are saying that this truck is a service truck and it's used to perform work?

A: Yes, sir.

Tr. 99.

[2] In St. Marys Sewer Pipe Co. v. Dir. Of U.S. Bureau of Mines, 262 F.2d 378, 381 (3d Cir. 1959), the Court held that:

This statute is remedial, with a humane purpose in view and is therefore entitled to a liberal construction. But, in the circumstances of this case, there is yet another principle that must be taken into account. We are dealing with a situation where there has been a construction of a remedial statute by the administrator charged with its execution and by the Board established by Congress to review his actions. Congress provided in detail for a Board of Review to be composed of experts in the field of coal-mining. These administrative interpretations should be recognized as having peculiar persuasiveness and weight. Ordinarily, such constructions should be accepted by the courts unless they could not be reasonably or soundly made under the terms of the statute.

Id. at 381 (citing NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944)). See Reliable Coal Corp. v. Morton, 478 F.2d 257, 262 (4th Cir. 1973); Freeman Coal Min. Co. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir. 1974); Emery Min. Co. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984) (“A safety standard “must be interpreted so as to harmonize with and further [the objectives of the Mine Act.]”) (citation omitted); Int'l Union, United Mine Workers of Am. v. Kleppe, 532 F.2d 1403, 1406 (D.C. Cir. 1976).

[3] Freeman Coal Min. Co., 504 F.2d at 744 (quoting St. Marys Sewer Pipe Co., 262 F.2d at 381 (discussing predecessor to the Mine Act, the Coal Act)).

[4] See, e.g., Hanna Min. Co., 3 FMSHRC 2045, 2048 (Sep. 1981); Cleveland Cliffs Iron Co., Inc., 3 FMSHRC 291, 293-94 (Feb. 1981); Allied Chemical Corp., 6 FMSHRC 1854, 1859 (Aug. 1984); S. Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 1985) (“[I]n light of the underlying purpose of the Mine Act, mandatory standards are to be construed in a manner that effectuates, rather than frustrates, their intended goal.”); Am. Coal Co., LAKE 2007-139 et al., 2012 WL 4026649 at *14 (FMSHRC) (Aug. 30, 2012).

[5] The parties agreed to the definition suggested by the Court at the hearing, which is consistent with those found in dictionaries. “Work” has been defined as: “Physical and mental exertion to attain an end, esp. as controlled by and for the benefit of an employer; labor.” Black's Law Dictionary 1742-44 (9th ed. 2009); “1. Physical or mental effort or activity directed toward the production or accomplishment of something.” The American Heritage Dictionary 1981 (4th ed. 2009).

[6] Respondent argued that the materials in truck bed were merely being transported for disposal at a trash dump. When asked what percentage of the items in the bed was actually thrown away when the citation was terminated, Richards estimated “[p]robably around 20 percent.” Tr. 98. Since a clear majority of the parts were not trash, Richards’ testimony supports Hall’s finding that the truck bed’s contents were not destined for a dumpsite and, therefore, the disorderly condition of the truck bed’s contents posed a hazard. See Tr. 70-72.

[7] It is noted that the Secretary pled a violation of standard 30 C.F.R. § 56.11001 in the alternative. Tr. 12. That standard provides that a “[s]afe means of access shall be provided and maintained to all working places.” The Commission has held that standard 56.11001 embodies the dual requirement of providing and maintaining safe access to working places. Watkins Engineers & Constructors, 24 FMSHRC 669, 680 (Jul. 2002) (citation omitted). Having found that the original basis for the citation was established, the alternative basis is not an essential determination. However, the Court finds that this alternative theory of liability was also established. As noted above, the truck bed contained no easily traversable path, and therefore lacked a safe means of access to items such as the compressor.

[8] Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390.