FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

Telephone: (202) 434-9933

Facsimile: (202) 434 9949

October 14, 2011

DECISION

Before: Judge William B. Moran

Appearances:    Leon Pasker, Esquire, on behalf of the Secretary of Labor, Mine Safety and Health Administration.

Laura E. Beverage, Esquire and Dana M. Svendsen, Esquire, Jackson Kelly, P.L.L.C, on behalf of the Respondents.

            This case arose in connection with a fatal accident which occurred on September 1, 2008 at the Freeport-McMoran Morenci Mine in Greenlee, Arizona. On that day Raymond Saldana, who was working on a belt replacement project at the Mine’s Number 6 bedding plant, fell to his death through a 4 foot by 5 foot opening on an elevated walkway, which was situated some 28 feet above the bedding plant. Two civil penalty actions arose from that event. The Respondent mine was charged with violating 30 CFR 56.11012 and a Section 110(c) investigation concluded that mine supervisor Ronald Y. Jurado was also culpable for the violation. Mr. Jurado was specially assessed a $7,000.00 civil penalty for his culpability in the accident. A hearing was held in Carefree, Arizona on April 25 and 26, 2011. For the reasons which follow, the Court affirms both violations and assesses the same civil penalty amounts as proposed in the civil penalty petitions.

 The standard cited provides:

                            Openings above, below, or near travelways through which

                           persons or materials may fall shall be protected by railings,

                           barriers, or covers. Where it is impractical to install such

                           protective devices, adequate warning signals shall be installed.

30 C.F.R. § 56.11012

Findings of Fact

-The Fatal Accident Scene and Circumstances of the Accident

             There is no dispute that on September 1, 2008, contractor employee Raymond Saldana fell to his death through a 4 feet by 5 feet opening in the floor of BC conveyor belt Number 6 bedding area, dropping in a free fall some 28 feet to the ground below. Tr. 22-26. The hole through which the victim fell was created through the removal of two steel gratings. The floor of the bedding area is made up of such steel gratings. Tr. 37. Ralph Valenzuela, a contract employee from H & S Contracting was the person who removed the gratings. Tr. 38. The gratings were removed so that equipment, parts, and welding material could be raised and lowered through the opening which was created. The grating pieces remained removed from approximately 7 to 7:30 a.m. on the morning of the accident and remained removed up to the time the victim fell through the opening created by their removal. Tr. 38. Thereafter, Mine Safety and Health Administration (MSHA) Inspector David Small arrived at the Respondent’s mine on September 3, 2008 for the purpose of conducting an accident investigation stemming from the fatal accident.

            To better understand the circumstances which led to the opening being created, it is necessary to provide some background. The mine was replacing the tail pulley belt on the BC conveyor. Consequently the belt was not operational during that time. By the date of the fatal accident, September 1, 2008, the project was nearly completed, with the work remaining to be done consisting of cleaning up and the replacement of conveyor guards. Tr. 25. Ronald Jurado was the Respondent’s maintenance supervisor and he was in charge of the belt replacement project. As such, he was the person responsible for ensuring that the belt replacement project was completed. No other supervisor for the Respondent’s mine was present at the scene of the accident when it occurred. Tr. 50.

            Government Exhibit P 4 is a diagram of the BC conveyor elevated walkway area, and it depicts where the fatal accident occurred, including the measurements around the accident area. Tr. 36-37. The elevated area itself had two entrances: one from the pulley coming off the conveyor and the other at the doorway. Tr. 29. As mentioned, the hole, through which the victim fell, was used to hoist equipment, including the conveyor belt and tools. Tr. 31. When Inspector Small arrived at the accident site, there was no cover, nor railing, around the hole. The Inspector did not observe any tape immediately around the hole; there was simply the opening. Tr. 31. As distinct from the perimeter of the hole itself, in the area between the conveyor pulley and the floor opening, there was yellow caution “tape” from one side of the walkway to the other side between the pulley and the created floor opening. Tr. 31. Thus the inspector observed the yellow caution tape from one side of the walkway to the other side, between the pulley and the opening in the floor. Tr. 31. Inspector Small identified, within Exhibit P 2, which is a photograph of the area where the accident occurred, the location where Mr. Valenzuela and Mr. Jurado were standing at the time of the victim’s fall through the hole. The Inspector stated that those individuals were near to the yet to be installed guards on the side of the BC conveyor, in the Number 6 area of the bedding mill. Both individuals were relatively close to where the victim was just prior to his fatal fall. The inspector identified Exhibit P 3 as a diagram of the elevated walkway up by the BC conveyor and he identified the location of Mr. Valenzuela and Mr. Jurado at the time of the accident with both of them then about 20 to 30 feet from the opening through which the victim fell. Tr. 28. Inspector Small stated that the distance from the yellow tape, that is marked with an ‘X’ on Exhibit P 2, and the hole in the floor, was 5 feet 9 inches on one side and 10 feet on the other. Tr. 38-39. The distance between the pulley doorway and the hole in the walkway was measured as 7 feet 10 inches. Tr. 3.

            In sum, when the accident occurred, Mr. Ralph Valenzuela and Mr. Jurado were up where Mr. Saldana was located and Mr. Herrera was on the ground level, 28 feet below and almost directly underneath the hole through which the victim fell. Tr. 26, 57. Herrera was quite fortunate as the victim, in his fall, came within 2 feet of striking him. Tr. 51.

            Based on statements received as part of the investigation, Inspector Small concluded that Mr. Jurado knew about the opening in the walkway floor and that he knew about the opening around 6 a.m. on September 1, 2008. Tr. 43. The witness expressed that, in any event, Mr. Jurado certainly knew by 9:30 that morning that the grating had been removed because he acknowledged that he was up in that area at that time. Tr. 45. At a minimum, the Court finds the latter to be a fact.

            Inspector Small participated in the interview of Mr. Valenzuela, which occurred on September 3^rd. As noted, when the victim fell, Mr. Valenzuela was located by the head pulley of the BC conveyor, discussing replacement of guards with Mr. Jurado. Tr. 45. According to the inspector, Mr. Valenzuela advised that no other belting or equipment needed to go through the hole after 9:30 a.m. that morning and that he spoke to the victim about 10 to 15 minutes prior to his fatal fall through the hole. Tr. 46.

            Pennington also took a formal statement from Mr. Valenzuela as part of his 110(c) investigation. On the day of the fatality, Valenzuela’s duties were the same as Herrera’s; that is, they were to clean up the area and Mr. Jurado assigned them that task. Tr. 157. Valenzuela stated that he worked with the victim on the day of the fatal accident, September 1, 2008. Tr. 157. Valenzuela stated to Pennington that he had discussed with Saldana the type of guards that needed to be installed on the head pulley and, some 15 to 20 minutes after that discussion, the accident occurred.

            Inspector Small was present when Mr. Ronald Jurado was interviewed by Inspector Pennington. As noted, Jurado was the supervisor of the conveyor belts at the mine and he was in charge of replacing the BC conveyor belt Number 6. Tr. 151. Jurado told Pennington that he supervised the H & S contractors that worked on the belt replacement project. Tr. 151. Although the Respondent has tried to suggest that Mr. Saldana was de facto in charge, there is no genuine factual dispute about Jurado’s position or authority. According to the inspector, Mr. Jurado stated in that interview that he was talking with Mr. Valenzuela about replacing the guards, when the victim fell through the hole. Mr. Jurado did state that he was waiting for a welding truck to arrive. Tr. 47. Neither Mr. Jurado nor Mr. Valenzuela saw the victim fall through the hole, as the were not facing in the direction of the floor opening at the moment of Saldana’s fatal fall. Tr. 49. Mr. Jurado himself admitted that everything had been done on the project except for the waiting for the welding truck to arrive. Tr. 328. Further, he conceded that, based on his tailgate meetings, he was aware of the fall hazard in the floor opening. Tr. 329.  

            The testimony of MSHA’s Inspector Pennington confirmed Inspector Smith’s description. Pennington stated that contract employees of H & S, Juan Herrera and Ralph Valenzuela, were assigned to the area to finish the belt change job. As mentioned before, Herrera was down below the hole through which the victim fell. His job was to roll up the sections of the old belt and load them on a truck. Tr. 153. According to Inspector Pennington, he determined that most of the equipment from the task had been lowered down the hole; all that remained were some small items. Tr. 156. At the time the victim fell through the hole, the welding truck had not arrived. Tr. 153.

Determination that the standard was violated.

A yellow ribbon does not satisfy the standard’s requirements.

            The Respondent contends that there were “barriers” present. These were in the form of yellow tape with a tag affixed to the tape. It is Respondent’s view that both tape and tag warned of the hazard. Respondent also asserts that fall protection was being used when people entered the area where the fall occurred. Suggesting that, at this stage of the work, the tape was sufficient, Respondent further argues that the job, while nearly done, was not completed. In support of this contention, it maintains that the mine was awaiting a welding truck’s arrival. That truck would be bringing the welding leads, which would go up and through the hole so that the guards could be welded back onto the equipment. As noted, the Court finds that welding leads would need to pass through the opening and that small items still needed to be disposed of, as part of the clean-up phase of the project.

            Accordingly, the Respondent’s defense variously contends:

            - the tape plus the tag constitutes a barrier under the “plain meaning” of the regulation

because the opening was still being used to raise and lower equipment at the time of the accident.

            - a reasonably prudent person would not have recognized the cited condition as unsafe

              because the tape and tag warned of the hazard and there was fall protection to use

              nearby.

            - the regulation does not require a railing, barrier or cover when it is not practical to so

               provide such protective devices.

R’s Br. at 12.

            The Court rejects each of these contentions.

            Surprisingly, there have not been many cases dealing with this standard that offer insight regarding its construction. However, in Secretary v. Hanna Mining, 3 FMSHRC 2045, 1981 WL 141400, (Sept. 1981) the Commission addressed the standard. There, openings were present through which miners could fall, though the openings were such that one could not completely fall through them. The Commission rejected the contention that one would have to fall through such an opening to constitute a violation, holding that falling into an opening was sufficient to trigger the standard. More important, for the purposes of this case, were the Commission’s words regarding construction of the such standard, as it noted its “construction is in accord with the well-established rule that remedial legislation and its implementing regulations are to be liberally construed as long as such an interpretation is reasonable and promotes miner safety.” (emphasis added).

            No case could be found to support the proposition that tape can satisfy the protective purpose of the standard. In Secretary v. Fann, 2006 WL 2927266 (Sept. 2006), a 20 inch opening at the top of an elevated jaw crusher was not barricaded, exposing miners to a fall of sixteen feet. There the judge found that “a reasonably prudent person, familiar with the mining industry and the protective purposes of the regulations would have realized that the regulation required that the opening be protected while a miner worked on the platform.” The judge also noted that “standards like that addressing fall protection, [ ] must be written in simple terms in order to be broadly adaptable to myriad circumstances.” Id. at *27, (emphasis added), citing Alabama By-Prods. Corp., 4 FMSHRC 2128, 2129 (December 1982).

            In Secretary v. Weathers, 22 FMSHRC 1032, 2000 WL 1683040, August 2000, another judge dealt with the same standard and, as here, a fatality was involved. In that case, chains, were used as a railing or barrier, but they were not in place. The absence of the chains created a 40 square inch opening through which one could fall. While it was implicit that the chains were required, the judge found that contamination of the accident scene by rescue personnel made it impossible to determine if the chains had been present. Although the uncertain state of the evidence controlled the outcome, the key point from that decision was the implicit recognition that a chain railing, as opposed to tape or flagging, was required. So too, in Imerys Pigments, 28 FMSHRC 180, 2006 WL 1080230 (March 2006), a judge upheld violations for the same standard, where there were openings on the tops of blending tanks which were not marked, barricaded, or covered or provided with railings. Lids were available to cover the openings, but were not used. The condition was abated by the installation of railings.

            As noted, Investigator Small cited 56.11012 as having been violated. He expressed that the standard requires that “[a]nywhere there’s a hole in or near a travelway, covers, barriers, or railings shall be provided.” Tr. 53. Small determined, and there is no contention otherwise, that there was no cover over the large hole, through which Saldana fell, at any time after Mr. Valenzuela took off the floor grating, which grating had covered the hole, earlier that morning. Again the evidence is that the cover removal occurred at approximately 7:30 a.m. and the accident occurred about 10:02 a.m. It is also undisputed that there was no railing around the hole. Tr. 53.

            Respondent takes issue only with the Inspector’s determination that there was no “barrier” around the hole on the date of the accident. They do not claim that there was a railing or cover present. As noted, in terms of compliance with the standard, Respondent contends that the tape constituted a barrier and, alternatively, that it was impractical to do more than provide the yellow tape.

            Although there was yellow tape between the head pulley and the opening, Inspector Small did not consider the tape to be a barrier “[b]ecause Freeport-McMoran did not use it [with] the intent of being a barrier.” Tr. 54, 68. Small did believe that the tape was there to “inform persons that there might be a hazard once they pass[ed] that tape.” Tr. 54. He learned from Mr. Valenzuela that the tape had been installed at the beginning of the project on August 28^th and this was confirmed by Mr. Herrera. Tr. 56. While Freeport placed the tape to warn persons of the hazard beyond it, the Inspector noted that the tape could not stop anyone from going to the floor opening, as anyone could walk past it. Tr. 56. Mine management’s Mr. Paul Boman also acknowledged the obvious, that anyone could go past the yellow tape, but from his perspective, according to Small, the tape should have caused individuals to recognize the hazard. Tr. 57. The hazard created by the opening was, rather obviously, that persons or material could fall through it.

            Regarding the mine’s tape (i.e. flagging) policy, Mr. Boman provided the inspector with “some information” that employees were not supposed to walk past the yellow tape unless they could recognize the hazard. Tr. 58. Boman conceded that while the mine had the tape policy, anybody could cross it. He guessed that the yellow tape is about 3 ½ inches wide, but didn’t know its actual width. Tr. 293. The words “caution” are repeated on the tape. Tr. 293. Boman did not know what the tag on the yellow tape said. Tr. 294. Employees were only supposed to recognize the hazard and then proceed. Tr. 121. This rationale did not change the inspector’s view that the tape did not act as a barrier. Although Inspector Small did agree that yellow caution tape was in place at the time of the accident and that “[c]aution tape can be used as a barrier in certain circumstances,” he stated that the situation here was not one of those circumstances. Tr. 108.

            The Court inquired about the Inspector’s assertion that tape can be used as a barrier under certain circumstances. The Inspector explained further that tape can be acceptable only:

                        [w]hen the company has a policy that they enforce that nobody

                        will go past that caution tape except to correct that condition or

                        to be working around that hole to do a particular job until that job

                        is complete, and then nobody else can cross that tape except the

                        people that’s either working on that condition. The company has

                        to have a policy and has to enforce that policy. It does no good

                        to have a policy if they don’t enforce that policy.

Tr. 117.

            The inspector added that this exception was imparted from the agency’s training at its West Virginia facility and his testimony made it clear how limited the “tape exception” is because there must be a “policy that nobody will cross [the] tape for any other reason other than to work on that condition, the hazard, or if they’re over there in this case here lowering or raising material, and nobody else can cross that tape, period, except for them few people. And then, of course, if you’re over there by that, you have to be tied off prior to getting to that hole.” Tr. 118 Such policies, if present, must be in writing. Oral policies are not acceptable. Written policies allow verification that employees were trained in such policies as well as how they were trained on the policy.

            Here, the Inspector stated that the Respondent showed him a policy pertaining to the use of tape but then added that the mine didn’t follow its own procedures. The Inspector knew this because he personally observed management people go past caution tape even though it was unnecessary to their travel. Accordingly, while there was a policy and the policy was in writing, it was not being followed. Tr. 119. Importantly, the inspector added that the Respondent’s policy provides that, wherever flagging is put up and there’s a chance that a person could fall, a barricade has to be provided. The Inspector added: “And a barricade is a lot different than a barrier. That’s written right in their policy.” Tr. 120. Additional comment is warranted about Respondent’s “Flagging Policy,” as it expressly provides that “Barricading is used to physically prevent access to significant hazards and must be installed when falls or other serious hazards exist. Flagging alone is not sufficient where there is potential for falls or other significant hazards, in these cases barricading must be installed in addition to flagging.” P. Ex. 9 (emphasis added).

            Based upon Inspector Small’s considerable experience of some 30 years in the mining industry, it was his opinion that a cover (i.e. a grate) or railings should have been installed around the hole.

            Inspector Pennington did not agree with the claim that the area where the work was being done stopped being a travelway once it was taped off. Thus he did not accept the notion that tape limited its use as a travelway nor did he accept that tape can be a “barrier” under the standard. Tr. 191. Although Pennington did state that tape can be a barrier if its put up effectively, he added that it must prevent anyone from bypassing it, as, once one passes the tape they would be exposed to the hazard of the floor opening. He made the significant distinction that, while the tape may provide a warning, it will not act as a barrier as it will not impede anyone. Tr. 194. The Court notes that this observation is consistent with the common sense understanding of the function of a barrier.

            It is true that in the definition section, at 30 C.F.R. § 56.2, a barrier is defined as “a material object, or objects that separates, keeps apart, or demarcates in a conspicuous manner such as cones, a warning sign, or tape.” However, to read the definition in such a manner that it dictates the application of the standard and, by that, produces outcomes inimical to the safety standard, would be to allow a simplistic analysis to prevail. See, Dyer v. United States, 832 F. 2d 1062, 1066 (9^th Cir. 1987), eschewing absurd results produced by a literal reading, and Sec’y of Labor v. National Cement Company, 27 FMSHRC 721, 728 (Nov. 2005). Common sense must be employed in construing a provision. Casbah, Inc. v. Thone, 512 F. Supp. 474, 479 (September 26, 1980). Accordingly, under a plain meaning analysis, the standard must be interpreted in the context of the regulation as a whole. San Juan Coal Co. v. Sec’y of Labor, 26 FMSHRC 427, 432 (May 2004). The principle of in pari materia also seems apt in that to consider a tape as a “barrier” would conflict with the other terms employed in the standard, namely railings and covers, because a tape is completely dissimilar to those. Erlenbaugh v. U.S., 93 S.Ct. 477, 480 (1972), Essex Mfg., Inc. v. U.S., 264 F.Supp.2d 1285, April 29, 2003.

            Lending support to this analysis, the standard only allows an exception when it is impractical to install “protective devices.” In those instances only may one use “adequate warning signals.” That latter language may suggest something akin to tape, if one could consider it to provide an adequate warning signal, but that alternative is only reached when it is determined that the protective devices are not practical. There is no credible evidence in this record that the other protective devices were impractical to install here. A railing could have been easily employed and the grating itself took but a minute or so to replace and provide full protection when not immediately needed to move materials through the opening.

            In addition, Pennington maintained that for tape to be a barrier it would have to be “installed properly.” But to so serve that role, the tape would need to be sufficient to prevent persons from that hazard. Tr. 198. As the one piece of tape could not prevent anybody from access to the floor opening, it did not serve as a barrier. In response to questions from the Court, Pennington stated that the grating would serve as an effective cover because it would prevent one from falling through the hole. Tr. 199. Pennington also agreed that a railing is not unlike the railing one would find in one’s home. That is, it is a substantial device that prevents one, without some effort, from falling through an opening. Tr. 200. Even temporary railings, Pennington advised, would act in such a protective manner. Tr. 200.

            With regard to the third type of protection cited in the standard, namely barriers, the Court notes that under the cited standard, openings are to be “protected” by them. Pennington agreed that for tape to serve as a barrier, one would need to have the tape encircle the openings “a dozen times” before one would create any sort of a barrier. Tr. 201. Nor, in Pennington’s considerable years of experience, has he ever heard of a single roll of tape serve as a barrier to an opening. Tr. 201.

            As mentioned earlier, Respondent’s Paul Boman was the mine’s health and safety manager in August and September of 2008. Tr. 218. His educational background includes one undergraduate course in toxicology and one such course while in graduate school. Tr. 220. Also, as noted earlier, Mr. Boman performed an accident investigation regarding the death of Mr. Saldana. Tr. 229. Consistent with the Respondent’s theme that the victim was at fault, either because Saldana was alleged to be impaired from medications he was taking, or because he was the one who was really in charge of the belt change project, Boman stated that the victim was recalled from retirement in order to “teach and mentor [Mr. Jurado].” Tr. 223.

            Speaking to the function of the yellow tape, Boman himself conceded, when asked if it was intended to prevent access to the opening in the grating at the time of the accident, that “[t]he tape was intended to serve as a warning or an indicator that there was a hazard, that you would have to put on fall protection because of the hazard.” Tr. 249 (emphasis added). Thus, conceding what is obvious, by Respondent’s own admission, the yellow tape did not act as a railing, barrier or cover. Nor did the Respondent offer any testimony to show that it was “impractical” to install such “protective devices.”

            Suffice it to say that Mr. Boman believed that the tape prevented access to the area and also acted as warning signal of the hazard. Tr. 254-255. Based on the statements of others, Boman believed that the opening would still be used for the welder, or the welder’s leads, to pass through it. Tr. 255. While Boman conceded that he “may have said” to Inspector Small that anyone can walk past the yellow tape, it was his view that as long as one knows what the hazard is and has the ability to protect oneself from that hazard, that is sufficient. Later, he added that, in some instances, they may have a supervisor’s permission.

            Though Boman expressed that a barrier would be impractical because of the items to be passed through it, he admitted that he took no measurements to confirm this belief. Tr. 295. As to the installation of a railing such as that illustrated in P 7, Boman admitted that he was aware that such railing arrangements can have a section removed without removing the other three sides of the barrier. Tr. 296. Boman also agreed that the standard is not limited to addressing persons falling through openings but that it also speaks to materials falling through openings. Tr. 297. When asked what cover protected someone from kicking a tool through the hole on September 1, 2008 and what barrier protected Mr. Herrera who was exposed below the hole on that date, Boman conceded that no cover or barrier was present to deal with that. Tr. 297.

            Per the discussion and findings above, the Court does not agree with Respondent’s view that the “notice” the tape provided satisfied the standard. A yellow ribbon may provide notice when tied around the “old oak tree” but mere notice is not sufficient to satisfy this safety standard.

Assuming for the sake of argument that yellow tape can satisfy the standard, the Respondent did not employ such practice in an effective manner in any event.

            According to Inspector Pennington, Mr. Jurado advised him the victim did not need to ask for permission to pass through the tape. Pennington also stated that Jurado considered himself to be the one who could give permission to pass through the tape. Jurado advised that the tape’s purpose was to restrict access into the area. Further, according to Pennington, even Mr. Jurado was not quite sure about the mine’s tape policy. He knew one could pass through a tape area but even he did not know the details of Freeport’s “policy.” Although Jurado claimed there had been some training on the subject, he could not provide any specifics about that either. Nor could Mr. Jurado explain the mine’s policy as to open holes and flagging. Tr. 149. As to the use of handrails, Jurado was similarly vague, stating that he had “seen some at one time,” but he could not remember where they were used and he didn’t know “where any handrails were located for his use.” Tr. 150. Jurado told Pennington that, after the accident, the mine required the use of handrails around holes when grating is removed. Tr. 150

            Valenzuela told Pennington that the tape was up when they arrived on September 1^st. When asked why the tape was present, Valenzuela didn’t know what the policy was, although usually it was used to keep people away. However, that policy still allowed people to go under or around the yellow tape. Tr. 160.

            Mr. Boman told Pennington that, to pass the yellow tape, one had to have permission from the person who installed that tape. Tr. 165. Mr. Jurado stated that the mine uses “yellow [tape] to barricade everything off.” Tr. 314. Mr. Herrera, Jurado agreed, had permission to be within the taped-off area on the morning of September 1, 2008. Tr. 316. This admission by itself demonstrates the inadequacy of flagging. Herrera, though permitted to be within the flagging, had no protection, and nearly was struck by the falling Saldana.

            Bill Bogart, an employee of H & S Contracting, was also interviewed by MSHA. Bogart stated that the tape had been up for a couple of days before the accident and he advised that the policy at the mine was that people could go past the yellow tape if they had permission from the people working in the area. Tr. 167. Pennington also identified Ex. P 9 as the Boarding and Flagging policy for the mine, dated August 11, 2008. Tr. 169. From reviewing that policy, Pennington determined that the Mine did have a policy but that it was inadequate. Tr. 169. Pennington then read from that policy, which, as noted earlier, provides: “Flagging shall be used to warn persons of hazards and to isolate areas. Flagging may be used in conjunction with barricading but shall not be used in place of barricading. Red and yellow flagging may only be used as specified below, and no other flagging may be used to designate safety hazards. Flagging does not take the place of physical barriers such as handrails and/or grating.” (Italics added) Tr. 169-170. Accordingly, the Court notes that the mine’s own policy acknowledges that tape, (i.e. “flagging”) is not sufficient.

-The Respondent’s associated claim that it was “impractical” to install the protective devices identified in the standard.

            As for the cited standard itself, Respondent’s Counsel agreed that openings above, below, or near travelways through which persons or materials may fall are to be protected by “railings, barriers, or covers.” Respondent’s Counsel then candidly acknowledged that this requirement “impl[ies] I think a handrail.” Tr. 13. However, Counsel then noted that the standard allows that, where it is impractical to install such protective devices, “adequate warning signals shall be installed.” Tr. 13. Given those words, Counsel contended that, as it was impractical to have the holes covered, the protective measures were used, and that such actions satisfied the standard. The Court notes, in reaction, that this reasoning applies only where it is found to be impractical to install such protective devices, a conclusion the Court rejects in this case.

            Although the Court inquired whether a railing would have been an impractical alternative, as it would seem to be a cumbersome arrangement to install, Inspector Small explained that “[i]f the company would have set it up in the first place the way you could set up a railing, it could be set up and maintained and still lower and hoist equipment with a minimal amount of delay.” Tr. 76. He continued that “[m]ost companies actually have chain rails on one side that just hook up, and all they do is take them chains; let them dangle over here; hoist or lower their equipment; when they get done, they hook the chain back up.” Tr. 76-77. Small has seen such arrangements on multiple occasions; some have permanent rails on three sides and a chain on the remaining side, but he has also observed arrangements with chains on all four sides. Tr. 77. Thus, it was Small’s testimony that it would not have been impractical to install a railing, and the Court finds this to be the fact.

            Even accepting, for a moment, Boman’s assertion that large items could not be passed through the hole if handrails had been present, the testimony established that such large items; belts, a belt cooker and a large tool box, had already been sent through the hole and that only the welding equipment, which equipment was never precisely identified or described, was left to be passed through the opening.

The lack of “fair notice” claim

            Respondent contends that the Secretary’s claim that a barrier must prevent access to the hazard is at odds with its regulations. While conceding that the regulation refers to railings, barriers or covers, Respondent views this as showing that the mine may make a choice from among those, providing “flexibility” in compliance. R’s Br. at 14.

            As for Respondent’s contentions regarding the “plain meaning” issue, it admits that the words of the provision must be consulted first. However, it then contends that the words in this standard must not be plain, as Inspector Pennington was not sure if the “tape and tag” failed to satisfy the standard, believing that it could be left to judicial interpretation. R’s Br. at 13. From that, Respondent asserts that if the inspector was uncertain, that demonstrates that a reasonably prudent person could not be expected to know that the tape was insufficient. The Court notes that the fact that a given inspector may express uncertainty as to the meaning of the words expressed in a standard does not prevent the Court from determining its plain meaning. Respondent also maintains that the definition section for these regulations contemplates that a “tape and tag” can be considered a barrier.

            Respondent then moves to its alternate contention, pointing to the provision of the regulation allowing “adequate warning signals” where it is impractical to install “protective devices,” and from there maintains that it was impractical because the hole was being used to raise and lower equipment at the time of the accident and because “clearance issues” with the overhead I-beam precluded the use of a handrail. R’s Br. at 15. Being impractical to do more, Respondent contends that the Secretary must then show that the tape and tag were inadequate warning signals. Id.

            Responding to the Respondent’s claim that there was no fair notice of the Secretary’s interpretation, the Secretary asserts that the plain language of the standard in fact affords such notice. Sec. Reply at 2, citations omitted. Even if the plain meaning contention is not accepted, the Secretary notes that under Chevron U.S.A. Inc. v. Natural Resources Def. Council, 467 U.S. 837 (1984), deference must be afforded to the agency’s interpretation as long as it is reasonable. It adds that in a given situation the issue is whether “a reasonably prudent person, evaluating the purpose of the provision and the situation with which he or she is presented, would know that the provision applies to the situation.” Id. at 3. Thus, the Secretary highlights that it is not an inquiry as to whether the mine operator “had explicit prior notice of a specific prohibition or requirement, but 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.” Id. at 3-4, quoting Ideal Cement Co., 13 FMSHRC 1346, 1351 (September 1991) (emphasis added). With that in mind, the Secretary asserts that such a reasonable mine operator would realize that a “single strand of yellow tape affixed with a tag between the head pulley and one side of the four-sided hole . . .” would not comply with the standard’s design to protect persons from falling through openings. Id. at 4. Further, the Secretary observes that even the yellow tape offered no protection, as employees routinely crossed that tape. Rather obviously, the Secretary notes that neither tape nor a tag provided any kind of protection to the opening for those who were working on the project. The result here, the horrific fall of Mr. Saldana, is grizzly proof of that.

            Accordingly, the Secretary contends that the tape was neither a barrier nor did it provide an adequate warning signal. Sec. Reply at 5. While the Secretary dismisses the Respondent’s contention that the use of fall protection amounts to a cover, railing or barrier, it adds that there was no protection to guard against material falling through the hole. Thus, putting aside the matter that a person did fall through the hole, the standard speaks to persons or material falling through openings.

            The Court agrees with the Secretary’s analysis; the plain language of the standard applied to the 4 by 5 foot (20 square foot) opening which was both below and near travelways. Railings, covers and barriers require “protection” under the standard’s plain wording. Tape clearly cannot supply such protection against persons or material falling through openings.

The “work was not completed” contention and the associated claim that yellow tape satisfies the standard during such times.

            To recap, the previous discussion on this aspect, the Inspector agreed that Jurado had requested a welding truck in order to weld some pins back in place in the area of the head pulley. Tr. 91. Respondent’s Counsel therefore suggested that the work was not completed as welding leads would need to be sent up through the hole. However, the Inspector stated that the work was completed as far as lowering and hoisting things and that the welding truck would not arrive for some time. Tr. 92. The welding truck was called about 5 to 10 minutes before the accident occurred. Tr. 92. Either Jurado or Valenzuela had to leave the head pulley site and go get the truck. Tr. 93. On the morning of the accident, the belt installation had been completed and all the equipment for that task had been lowered down and they were in the process of reinstalling the guards for the head pulley. Tr. 95.

            Accordingly, there are no real factual disputes about the work that was remaining to complete the belt replacement project; some final clean-up was needed and the guards needed to be welded back on. It is Respondent’s argument that, as the operator was ‘waiting for the welder’ to arrive at the location to perform tasks to finish the belt replacement project, the yellow tape satisfied the standard. Thus, Respondent believes that, with those tasks remaining, the opening was somehow exempt from the standard, until those jobs were completed.

            This argument may be summarily rejected. The standard does not speak in terms of any exception for work activity. Warning signals only come into play where protective devices are impractical but here there is no credible evidence that the first line measures were impractical.

The fall protection distraction; the Respondent’s contentions regarding fall protection are not material to the issues in this proceeding.

            Inspector Small agreed that there is fall protection equipment in Ex. 2, a photograph. Small also agreed that he learned during his investigation that employees had donned the fall protection equipment when in the area of the fall though he added that only one person, Mr. Valenzuela, had so used that equipment when working around the hole. Tr. 90. However, the Inspector stated that fall protection is a last resort, and that other means could have been provided in this instance. Therefore, the last resort did not have to be employed. Tr. 89, 99, and Ex. 2.

            Speaking to Exhibit P 9, a procedure dated August 11, 2008, Inspector Pennington agreed that it doesn’t address the use of fall protection. Tr. 182. Pennington also agreed that his investigation revealed that people had used fall protection in the area that was taped off and that the only person he learned of that did not use fall protection was the victim. Tr. 182-183.

            The Court concludes that the Respondent’s attempt to bring the fall protection standard into this proceeding is not material. This is because the standard does not reference fall protection. That is the subject of another, distinct, standard. Further, the Court finds that the presence of fall protection equipment, which was either unused or improperly used, does not bear at all upon the special findings, the topic to which it now turns.

The issue of unwarrantable failure

            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.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts were necessary for compliance, the operator's efforts in abating the violative condition, whether the violation was obvious or posed a high degree of danger, and the operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must be examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.

            In defense of the unwarrantable failure charge, the Respondent contends that its conduct was not aggravated and that mitigating circumstances were present. Inspector Small’s testimony, on this issue, it contends, was supported only on the basis that the opening existed and that Jurado was present. R’s Br. at 18-19. Respondent believes that the tape and tag, along with its nearby fall protection equipment mitigates any negligence. They also assert that, because there was more work to be done, namely the welding, and because that work would involve use of the opening, this is a mitigating circumstance. R’s Br. at 19. Thus, Respondent believes that the inspector inadequately assessed “what activities were ongoing and the status of the project at the time of the accident.” Id. at 19. While Respondent acknowledges that supervisors are held to a heightened standard of care, they maintain that the circumstances here show only inadvertence, inattention or ordinary negligence, and that a lack of care at such levels does not make the failure an unwarrantable one simply because it was attributable to a supervisor. R’s Br. at 20. They also contend that the fact that Jurado was present, near the opening and the victim at the time of the accident, is offset by the fact that fall protection was present and that Jurado “enforced” its use. Those considerations, Respondent asserts, refute the claim that the violation was unwarrantable.

            The Court does not agree with the Respondent’s perspective. There was a serious lack of reasonable care on Mr. Jurado’s part and therefore it is found that the violation was an unwarrantable failure. As noted, Inspector Small concluded that the mine’s yellow tape did not function as a barrier. The Court holds that any common sense use of the word “barrier,” in the context of this standard, precludes the conclusion that tape can be considered to be a barrier.

            The Inspector determined that there was high negligence and unwarrantable failure in connection with the failure to comply with the standard. Tr. 68. Freeport had knowledge of the hazard, as an agent of the company, Mr. Jurado, was in the immediate area prior to, and at the time of, the accident’s occurrence. Aggravating that, Mr. Jurado was in charge of the project. Inspector Small’s investigation concluded that the work had been completed, and further, he found that Mr. Jurado was not about to use the hole to bring welding equipment through it on the date of the accident. Tr. 69. Although Jurado did tell him that he had contacted the welding truck, Small determined that the hole had been left open since at least 7:30 of the morning of September 1, 2008, when Mr. Valenzuela had removed the grating, and that it remained open until the victim fell through it. There is no claim that any railing was present around the hole between the time the grating was removed and the time Mr. Saldana fell through it. Replacement of the grating, and therefore elimination of the hazard, would only have taken a mere 30 seconds to a minute to accomplish. Tr. 71-72.            

            In sum, with Jurado, Respondent’s management person in charge of the project, being right at the scene of the accident before it occurred and fully aware of the large opening, through which a person could, and did, fall, the violation was clearly an unwarrantable failure on the Respondent’s part.

The claim that the victim was impaired

            Respondent has, in the Court’s view, shamelessly suggested that the reason for the fatal fall is attributable to the victim’s use of drugs. Although one ought to describe these as prescription medications, which is what they were, Respondent opted to describe the victim as being “at the upper concentration limit of the therapeutic range for both oxycodone and hydrocodone” at the time of his death. They note those medications are “two different types of opiate narcotics.” R’s Br. at 22. On this basis Respondent blames both the victim and GeoTemps, the company that was the conduit which provided for the victim to return to the mine as a consultant for the belt replacement. GeoTemps failed, Respondent asserts, to alert the mine that the victim was using medication that “could” produce side effects impacting the performance of the job.

            The evidence does not support the Respondent’s implications at all.

            Herrera, who had seen the victim earlier that morning, when Saldana was up on the catwalk, did not assert to the Inspector that the victim appeared impaired. Tr. 51. Herrera only spoke inferentially to the general subject of the victim’s health, stating that Saldana’s knee was hurting. Tr. 52. The inspector added that Herrera told him that Saldana seemed like himself. Nor, when interviewed on September 1, 2008, did Mr. Jurado claim that the victim was impaired. Instead, Jurado told the Inspector that the victim was complaining about his knee on September 1, 2008. Tr. 150. Further, Jurado told Pennington that the victim was in a good mood on the day of the accident and that he did not notice any impairment with Mr. Saldana. Tr. 151. During the inspector’s investigation he never received any information leading him to believe that the victim was impaired. Tr. 52.

            Like the others, Mr. Valenzuela also did not assert that the victim was impaired in any way. Consistent with all the interviews of those who had useful information on the subject, Valenzuela told the inspector that one of the victim’s knees was hurting. Tr. 46-47. Valenzuela never claimed to Pennington that the victim was impaired on September 1, 2008. Tr. 162.

            Despite the foregoing, the Respondent, in pursuit of its claim that Saldana was impaired, points to the contents of the victim’s lunch box. Tr. 100 and Exhibit P 6. Without any personal knowledge about Mr. Saldana, not having seen him on the day of the accident, Paul Boman was not deterred from expressing his belief that the victim was impaired on the day of the accident. Tr. 164. In contrast, Geo Temps, the company that employed the victim and drug tested him, noted that, as far as illicit drugs, Mr. Saldana passed his drug tests. Tr. 164. Even Boman admitted that was the case. Tr. 164. The victim, in fact, carried his drug test results on his person. Tr. 164.

            Inspector Pennington also interviewed Scott Hall, a business manager for Geo Temps, a company that provides temporary employees to mining companies. As noted, that company hired the victim, Mr. Saldana. Tr. 170. Pennington also discussed with Geo Temps’ Scott Hall the subject of Mr. Saldana’s drug tests. Hall confirmed Saldana was tested and that the results were negative. Tr. 172.

            Pennington could not make a determination, medically speaking, as to whether the victim was impaired since he is not a doctor or other qualified expert to speak on that issue. Tr. 172. However, he, along with Inspector Small, made appropriate inquiry into the issue, including questioning of those who were working with the victim. Importantly, no individual, other than Mr. Boman, ever suggested that the victim was impaired. Tr. 172. Thus, it was only Boman, who didn’t even see the victim at any time before his fall on the day of the accident, that claimed Saldana was impaired.

            Although the autopsy report reflected positive tests for certain prescribed medications, the Inspector properly noted that all such drugs were prescribed by the victim’s physician and that Inspector Small concluded that the doctor would know whether the victim would be able to work while using those prescriptions. Tr. 103. More importantly, the Inspector, operating in the realm in which he had competence, noted that from all the statements he received during his investigation, the victim was his normal self that day, other than having some pain with one knee. Tr. 104.

            In sum, there was no indication that Mr. Saldana was impaired and the Court so concludes that to have been the fact. Accordingly, Respondent’s claims on the issue are entirely rejected.

Even if, purely for the sake of argument, it were assumed that the victim was impaired, the violations and special findings would be the same.

           Respondent persisted with its theme of blaming the victim for his own death. This prompted the Court to comment: “. . . if you’re suggesting that this individual was in some sort of hazed state and therefore contributed to his own accident, there’s no credible evidence from any perspective at this point [in] time . . . What I heard was that [the victim] had a sore knee . . . all you’re establishing from my perspective at this point in time is the importance of having an appropriate railing or cover or barrier, not tape, that because of the vicissitudes of the mining environment and that one can never be 100 percent certain that a given employee will be 100 percent dancing on his toes . . . on a given day, this underscores the importance of having the protection that this standard envisioned to provide.” Tr. 288.

            The Court also presented a hypothetical to the Inspector, asking him to assume that an individual was at the site of the hole and impaired due to illicit drugs in his system. The Inspector stated he still would have cited the mine, “[b]ecause, even if the employee was impaired, anybody else could have walked through there. The company did nothing to mitigate the circumstances to put a cover or railing over that hole, and they allowed employees to walk past caution tape. [Under the Company’s policy,] [t]hey don’t even have to put fall protection on if they’re going to walk past that hole as long as they recognize the hazard. Now, just because somebody recognizes the hazard, it don’t mean they can’t trip and fall while they’re walking in that area.” Tr. 130.

            The Inspector’s point is well taken. The idea behind the standard is to protect persons or materials falling through openings. Miners, and all workers for that matter, routinely come to work in varying degrees of well-being. Workers may have a cold or flu, or simply be overtired on a given day, and these factors can impact attentiveness. Then too, a person feeling quite well may still slip or lose hold of material, with the effect of either falling through such openings. Covers, railings, or barriers diminish the risk that an injury may occur in such an event.

The claim that the victim was in charge

            The Respondent’s view of this matter is that the deceased worker had been a long time employee of the company, having employment with it for more than 40 years. He had retired but returned to the mine because his belt conveyor expertise was needed. While Mr. Jurado was the maintenance supervisor when Mr. Saldana returned for the belt replacement job, Respondent still contends that, despite that title, it was Mr. Jurado who was learning from Mr. Saldana.

Thus, Respondent blames the victim, because he had long experience at the mine and served in a supervisory role during at least some of that employment. Put another way, it is Respondent’s idea that Mr. Saldana was the de facto boss of Mr. Jurado. This is based on the fact that Saldana was brought back from retirement because of his expertise regarding the belt changing project. Under Respondent’s view, somehow this made the victim in charge of the project and responsible for the accident which took his life. This is an interesting way to shuffle the deck and deal the cards, but it is not instructive in resolving the issues here.

            From there, the Respondent then turns to blaming the victim for the accident. In support of this, they note again that the tape and tag were present and that the victim was “a person directly involved with the decision to place the yellow caution tape and tagging.” R’s Br. at 21. No citation to the record was included with that claim about the victim’s participation in the yellow tape installation. There is a reason for that; the record does not contain testimony to support that claim. Accordingly, it is unsupported. Beyond that, the Court also rejects it as an immaterial contention to the issues in any event. The victim’s alleged involvement with placement of the tape, even if assumed to be the case, is not part of the violation, negligence or other findings.

            Mr. Saldana brought experience and the willingness to come back from retirement to aid his former employer, but he was not in charge of the project. Mr. Jurado was the one in charge. If dominant experience and knowledge were the sine qua non to be the supervisor, a large number of supervisors in all walks of life would be in line for immediate demotions.

Docket Number WEST 2009-1329-M         

The section 110(c) charge against Respondent Ronald Y. Jurado

            Section 110(c) of the Act provides in relevant part that whenever a corporate operator violates a mandatory health or safety standard or knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d). Where violations are found to have been “knowingly” committed by individuals, as agents of a

corporate operator, then appropriate civil penalties must be assessed utilizing the relevant criteria under Section 110(i) of the Act. Secretary of Labor v. Mize 33 FMSHRC 886, 2011 WL 2441302, April 2011.

            The Commission has interpreted the meaning of the word “knowingly” as knowing or having reason to know. “A person has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence.” Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 68 F. 2d 632 (6th Cir. 1982), cert denied, 461 U.S. 928 (1983). To clarify under what circumstances an individual may be personally liable for penalties, the Commission stated “a corporate agent in a position to protect employee safety and health has acted ‘knowingly,’ in violation of section 110(c) when, based upon facts available to him, he either knew or had reason to know that a violative condition or conduct would occur, but he failed to take appropriate preventative steps.” Secretary of Labor v. Roy Glenn agent of Climax Molybdenum Co., 6 FMRSHR 1583, 1586 (July 1984).

            The Commission has also held that “judges must make findings on each of the [statutory penalty] criteria [of section 110(i)] as they apply to individuals.” The “relevant inquiry with respect to the criterion regarding the effect on the operator's ability to continue in business, as applied to an individual, is whether the penalty will affect the individual's ability to meet his financial obligations … [w]ith respect to the ‘size’ criterion, … as applied to an individual, the relevant inquiry is whether the penalty is appropriate in light of the individual's income and net worth.” Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (Feb. 1997), Ambrosia Coal and Construction Co., 18 FMSHRC 819, 824 (May 1997) (Ambrosia I). The Commission further held that, if an individual is married, the judge should consider the individual's share of the household net worth, income, and expenses. Ambrosia Coal & Construction Co., 19 FMSHRC 381, 385 (April 1998) (Ambrosia II).

            Speaking to the knowing violation issued to Mr. Jurado, Inspector Small agreed that MSHA’s Charlie Sleath was a special investigator for the 110(c) matter and the individual to whom the Inspector gave his statement. Tr. 106. Although Respondent’s Counsel asked Inspector Small if his statement made no claim that Mr. Jurado’s knowingly authorized or carried out the violation, the Inspector responded that his statement does support a conclusion that the violation was knowing because Jurado was in the area, aware of the hole being open, aware there was no cover over the hole, nor any railing present, and he didn’t know where one of his employees was, and took no action to address those issues. Tr. 107, Ex. 39. As Inspector Small put it, Jurado “turned his back to the condition,” that is, turned his back to the hazard before the accident occurred, as he was over with Mr. Valenzuela looking at the guarding. Id.

            Addressing the Section 110 (c) charge against Mr. Jurado, Respondent admits that such liability may be established upon showing that the individual “knew or had reason to know of the violative condition.” R’s Br. at 23. However, it asserts that the record has no evidence of the “requisite knowledge of the alleged violation on the part of Jurado.” Id. To support this, Respondent states that Mr. Jurado was a credible witness with a history of protecting his employees, and that he was safety conscious. Respondent then adds that on the morning of the victim’s fatal fall, Jurado consulted with the victim “on how to get materials up to the project area.” Respondent then repeats its familiar themes of defense about the fatal accident. These include that it was determined that a handrail was not feasible, that the work was still ongoing, and that Mr. Jurado observed the tape on the morning of the victim’s fatal fall. R’s Br. at 23-24.

            Ronald Jurado testified at the hearing in this matter. Tr. 304. In 2006, he was the area supervisor at the Morenci Mine and later became the belt maintenance supervisor. Tr. 307. The victim, Mr. Saldana, had been his boss for 26 years. Tr. 307. Essentially Jurado testified that Saldana was very knowledgeable and he was brought back as a consultant because of his expertise in the belt replacement matter and other issues. Tr. 309-310. Jurado considered that Saldana was in charge of the methods of belt replacement. Tr. 312. Though he admitted to being in charge, Jurado stated that he could not have done the belt replacement without Mr. Saldana’s assistance. Tr. 312. Saldana was, after all, the maintenance supervisor for the belts at the mine before his retirement. Tr. 313. Jurado also stated that the opening needed to remain open only to allow the welding leads to be passed through the opening. Tr. 325. Mr. Jurado admitted that everything had been done on the project except for the waiting for the welding truck to arrive and he conceded that, based on his tailgate meetings, he was aware of the fall hazard in the floor opening. Tr. 328-329. Jurado also knew that the grating had been removed that morning. Tr. 150.

            As previously noted, Ronald Pennington, was the MSHA supervisory special investigator at the time of the accident. He conducted the Section 110(c) investigation related to Ronald Jurado together with MSHA’s Charlie Sleath, who is from the Agency’s Helena, Montana office. Tr. 136. Ultimately, Pennington recommended to MSHA headquarters that the 110(c) action was warranted. Documents were obtained and a number of people were interviewed as part of the investigation. Ex. P 8 represents the proposed penalty assessment for Mr. Jurado. Tr. 142-145.

            Pennington marked on Ex P 2 where he believed Valenzuela was standing when the victim fell through the hole by adding a “V” on it. Similarly, he marked a “J” where he believed Mr. Jurado, the belt foreman, was standing. Mr. Herrera was in the area too, but 28 feet below, on the lower floor. Pennington stated that Jurado and Valenzuela were discussing how to replace guards on the tail pulley on the BC conveyor belt. Tr. 146. Jurado did not see the victim fall through the hole. Jurado was not facing the hole at the time of the accident, was not watching the hole opening at the time the victim fell through it, and consequently did not know where the victim was moments before the fall. Tr. 177. Pennington added that there was no work going on when the victim fell through the hole: “They were just standing around. They were waiting for a welder . . . so they could do some work on the guards.” Tr. 147. Pennington noted that there was tape between the head pulley and at the BC Number 6 and the floor opening and he indicated that on Ex. P 3 and the line with the letters A and B and the word ‘tape’ to identify his references. Tr. 147. Mr. Boman himself admitted that Mr. Jurado was the Freeport supervisor for the belt replacement project, telling the inspector that Mr. Jurado was the person responsible for ensuring that workers used fall protection around the BC conveyor Number 6. Tr. 165, 298.

            Pennington also took a formal statement from Ralph Valenzuela as part of his 110(c) investigation. Valenzuela arrived at the mine at the same time as Herrera, as they rode together. On the day of the fatality, Valenzuela’s duties were the same as Herrera’s; that is, they were to clean up the area and Mr. Jurado assigned them that task. Tr. 157. Valenzuela stated that he worked with the victim on the day of the fatal accident, September 1, 2008. Tr. 157. Valenzuela stated to Pennington that he was discussing with Saldana the type of guards that needed to be installed on the head pulley. Tr. 158. Some 15 to 20 minutes after Valenzuela and Saldana left one another’s presence, the accident occurred. People were alerted to the incident because the victim, upon falling through the hole, landed very close to Mr. Herrera, causing the latter to yell. Tr. 159. Herrera did not witness Saldana falling, becoming aware of the accident only upon Saldana’s impact. Tr. 159. As already noted, the hole was open so that things could be lowered down; the grate had been removed earlier in the morning; and they were waiting for the welder. Tr. 160. Valenzuela told Pennington that the tape was up when they arrived on September 1^st. When asked why the tape was present, Valenzuela didn’t know what the policy was, adding that usually it is to keep people away but that the policy still allowed people to go under or around the yellow tape. Tr. 160. Valenzuela did not state that the victim had a harness on at any time. Tr. 161. Valenzuela never claimed to Pennington that the victim was impaired on September 1, 2008. Tr. 162.

            Also, as noted earlier, Pennington interviewed Paul Boman, the safety director at the mine. A formal statement was taken from Boman by Inspector Sleath and him. Boman stated that Mr. Jurado was the belt maintenance supervisor at the mine and had been so for two years. Pennington’s interviews also included that of Scott Hall, a business manager for Geo Temps, a company that provides temporary employees to mining companies. That company hired the victim, Mr. Saldana. Tr. 170. Saldana was supervised by the mine, not by Geo Temps, and in Pennington’s opinion, his supervisor was Ronald Jurado. Jurado also conceded that, based on his tailgate meetings, he was aware of the fall hazard in the floor opening. Tr. 329.

            Pennington also determined that the floor opening of approximately 4 feet by 5 feet created a hazard to anyone in the area, and that Mr. Jurado was the mine’s agent at the accident site. Tr. 173. Further, he determined that Mr. Jurado knew or had reason to know of the hazardous condition. Tr. 173. The condition, that is the opening and the concomitant falling hazard, Pennington noted, was obvious and Jurado was in the area, being only 20 to 30 feet away from the hazard. Tr. 174. It is not disputed that Mr. Jurado was the belt project supervisor. Jurado knew the yellow flagging was present between the head pulley and the floor opening. Pennington also noted that there were harnesses in that area, which was “a good indication that somebody knew there was a fall hazard there.” Tr. 175. Pennington also concluded that it was Mr. Jurado who decided to leave the hole open on the date of the accident during the interval between the time the belting and equipment was removed and they were waiting for the welding truck to arrive. Tr. 175. Pennington informed that the time to replace the grating was minuscule, requiring only a minute or less to do that task and the time to terminate the citation supported that conclusion. Tr. 176.

            Pennington concluded that it was Mr. Jurado who was Freeport’s agent and as such had the responsibility to protect his miners and that it was Mr. Jurado who was charged with enforcing the mine’s drug policy at the time of the accident. Tr. 177- 178. After reviewing the information gathered from the investigation, Pennington did recommend that Mr. Jurado be assessed a penalty under section 110(c).

            There is no doubt that Mr. Jurado is liable under section 110(c). He knew, as he was right there, only a short distance away, at the location where Mr. Saldana fell through the opening, of the violative condition and failed to act. Accordingly, far beyond the “reason to know” standard, Jurado knew of the violative condition but did nothing.

Appropriate Civil Penalties.

Section 110(i) of the Mine Act sets forth the six criteria to be considered in determining an appropriate civil penalty.

            For WEST 2009-442-M, the section 104(d)(1) order, number 6449725, issued to Freeport-McMoran Morenci, Inc., the Court has considered the evidence of record, the gravity, negligence, its finding that the violation resulted from an unwarrantable failure, and that a fatality resulted, together with the mine size, violation history, good faith abatement, and effect on ability to continue in business. There is no recognizable mitigation in this matter and the penalty is appropriately assessed at $70,000.00 (seventy thousand dollars), although a larger penalty could be justified because a second, very serious, injury was narrowly avoided simply by luck.

            For WEST 2009-1329-M, the section 110(c) action brought against Mr. Jurado, each of the parallel penalty factors were considered, as adapted where an individual has been assessed a penalty for a violation and per the earlier discussion of this issue. Respondent offered no evidence to contradict MSHA’s finding that Mr. Jurado can pay the assessed penalty regarding his ability to meet his financial obligations nor to challenge the penalty in light of his income and net worth. The proposed assessment of $7,000.00 (seven thousand dollars) is fully warranted and the Court imposes that amount. As with the violation for WEST 2009-442-M, a higher penalty could be justified because of the narrow avoidance, through sheer luck, of another miner being seriously injured.

ORDER

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), the Court assesses the civil penalties amounts as identified next above. Within 40 days of this decision, the Respondents are ORDERED to pay the respective penalties, as imposed. Upon payment of those penalties, this proceeding is DISMISSED.

/s/

                                                                        William B. Moran

                                                                        Administrative Law Judge

Distribution:

Leon Pasker, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7^th Street, Suite 3-700, San Francisco, California 94103

Laura E. Beverage, Esq. and Dana M. Svendsen, Esq., Jackson Kelly PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202