FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Findings of Fact and Conclusions of Law

C & E’s mine CR #1 (“the mine”) is a crushed limestone mine that produces concrete. It is located 35 miles from Milan, New Mexico, and has its own quarry. Tr. 21-22. On August 31, 2010, MSHA inspector James Coats inspected the Mine. Tr. 21. Coats has been an MSHA inspector for nine years, during which time he has inspected sand gravel operations, underground mines, and surface operations. Tr. 19-20. Prior to becoming an MSHA inspector, Coats had twenty years of underground mining experience. Tr. 20. He has conducted hundreds of inspections, and at least ninety percent of his inspections involved the inspection of conveyors. When inspecting conveyors, he would look for exposed rollers, head pulleys, tail pulleys and return rollers. Tr. 20-21.

During the August 31 inspection of the mine, Coats was accompanied by Benny Lara, the MSHA field officer at Albuquerque and Coats’ supervisor. Tr. 22. Lara supervises seven inspectors in his field office. Tr. 40. Lara has been a supervisor for MSHA for thirteen years. Tr. 41. Prior to becoming an MSHA inspector, Lara had thirteen years of mining experience. Lara has conducted approximately seven hundred inspections in his career. Tr. 41. Lara occasionally accompanies inspectors on inspections for the purpose of evaluating them. During these inspections, Lara makes his own observations in addition to the inspector’s observations. Tr. 41.

Coats was also accompanied by Wayne Vigil, who was the supervisor at the mine, and John Lopez, the safety officer at the mine. Tr. 22-23. Coats inspected the entire conveyor belt system. Tr. 32. In the course of the inspection, Coats inspected the #32 conveyor belt of the mine which transported crushed limestone. Tr. 23-24. Coats testified that it is common for some of the crushed limestone being transported on a conveyor belt to fall off, and for the miners to clean up the fallen limestone. Tr. 24-25.

While inspecting the #32 conveyor belt, Coats noticed that the #1 and #2 return rollers on this belt lacked guarding on the side. Tr. 25. In GX. 4, the top left photo is of the #1 return roller, and the top right photo is of the #2 return roller. Coats explained that while the #1 roller was completely exposed, the #2 return roller was partially covered by a skirt board. Tr. 32. Coats later testified that these two return rollers were also exposed from below. Tr. 37. Coats testified that C & E had guards on some of its other rollers. Tr. 32.

Coats stated that the #1 return roller was approximately five feet above the ground, and the #2 return roller was six feet above the ground. Tr. 27-28. Coats noticed during his inspection that there were at least three miners in the vicinity of the #32 conveyor belt; these miners were cleaning up and repairing some guards. Tr. 28-29. However, he could not recall the distance between these miners and the conveyor belt. Tr. 35. The conveyor belt was in operation during his inspection. Tr. 29. Coats told Vigil that two return rollers were exposed, and Vigil responded that due to a deficiency in the hydraulics system, the conveyor belt was lower than normal. Tr. 29-30.

Coats testified that a miner could come into contact with these two exposed return rollers in a variety of ways. Tr. 30-31. A miner could come into contact with the rollers if he was walking beside the conveyor belt and stumbled, or if he was underneath the conveyor belt, or if part of his shovel became stuck in the return roller. Tr. 30-31. A miner who came into contact with one of these two exposed rollers could suffer permanently disabling injuries. Tr. 31. In connection with Coats’s testimony, the Secretary also offered evidence of an employee at a different mine who was fatally injured when his arm became entangled between a return roller and the conveyor belt. GX. 10.[2] Based on his observations of the exposed return rollers, Coats issued Citation 6567956 for a violation of 30 C.F.R. § 56.14107(a), which states that “moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drives, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” GX. 3, 6.

Lara, the MSHA field supervisor who accompanied Coats on the August 31 inspection, confirmed all of Coats’ observations and agreed with his issuance of Citation 6567956. Tr. 46-47. Lara also indicated that the two return rollers were high enough for miners to walk underneath them, but low enough that miners walking underneath may come into contact with them. Tr. 53. Lara stated that if these two rollers were only two and a half feet above the ground, MSHA inspectors would normally not issue a citation since it would be very unlikely that a miner would be underneath the rollers. Tr. 53.

C & E does not dispute that the two return rollers were exposed. However, C & E claims that even though these two rollers were exposed, no violation of 30 C.F.R. § 56.14107(a) occurred. Under 30 C.F.R. § 56.14107(b), which provides an exception to 30 C.F.R.

§ 56.14107(a), “guards shall not be required where the exposed moving parts are at least seven feet away from walking or working surfaces.” (Emphasis added). C & E contends that when the conveyor belt is in operation, the exposed moving rollers are more than seven feet away from any walking or working surface.

Gustavo Delgado has been an employee of C & E for three years. Tr. 57. In 2010, he worked as a laborer for C & E, in which capacity he shoveled material and monitored the guards. Tr. 57. He testified that his work area was at least thirty feet away from the #32 conveyor belt. Tr. 58. He stated that in 2010, none of C & E’s employees ever went into the area of the #32 conveyor belt while it was in operation, and that all employees would stay at least thirty feet away from this conveyor belt. Tr. 59. He stated that while the rollers on this conveyor belt would occasionally require maintenance, the employees would ensure that the conveyor belt was shut off and locked out before working on the rollers. Tr. 59.

Delgado also testified that C & E used a specialized skid steer to rake out the material from underneath the conveyor belts, including material that fell through holes in the conveyor belts. Tr. 62, 65. According to Delgado, this skid steer precludes the need for employees to shovel underneath the conveyor belts. Tr. 65. Delgado also stated that material never spills off the belt at the section of the two return rollers. Tr. 60. However, he later conceded that at other sections of the belt, material may fall through holes in the conveyor belt. Tr. 64. To clean up such material, employees may sometimes shovel underneath the conveyor belt instead of using the skid steer. Tr. 64. However, prior to shoveling underneath the conveyor belt, employees always check that the conveyor belt has been shut off. Tr. 64.

John Lopez has been an employee of C & E for seven years. Tr. 68. For the last six years, he has been C & E’s safety officer, in which capacity he accompanies MSHA inspectors on inspections. Tr. 69. He stated that C & E’s employees who walk by the #32 conveyor belt are forty to fifty feet away from it. Tr. 71. He stated that the two exposed return rollers on the #32 conveyor belt do not need to be maintained while the conveyor belt is in operation. Tr. 72. He testified that he conducts safety meetings each week where employees are instructed to shut off the conveyor belts before trying to maintain or repair the belts. Tr. 72. He also testified that he has personally never seen anyone use the area underneath the two exposed rollers as a walkway. Tr. 73. He believes that none of the employees would have any reason to walk underneath these two rollers since just ten to fifteen feet away, they could walk right underneath the conveyor belt with plenty of space between them and the belt. Tr. 73-74.

Discussion

This penalty proceeding presents two issues. The first issue is whether a safety standard, 30 C.F.R. § 56.14107, was violated. If the evidence indicates that there was a violation, the second issue is whether the violation was significant and substantial.

Under 30 C.F.R. § 56.14107(b), “[g]uards shall not be required where the exposed moving parts are at least seven feet away from walking or working surfaces.” (Emphasis added). C & E claims that the two exposed rollers on the #32 conveyor belt fall within this exception since they are more than seven feet away horizontally from any walking or working surface (even though both rollers are less than seven feet above the ground). I will assume that the respondent, C & E, bears the burden of proof regarding whether the two rollers fall within the exception.[3]

At 53 Fed. Reg. 32509 (Aug. 25, 1988), in MSHA’s comments to the final rule Safety Standards for Loading, Hauling and Dumping and Machinery and Equipment at Metal and Non-Metal Mines, it is stated that “guarding by location is recognized as an alternative to a physical guard in instances where the exposed moving parts are elevated at least seven feet above walking or working surfaces.” (Emphasis added). But this comment, if meant to limit the application of §56.14107(b) to vertical guarding by location, is inconsistent with the plain language of the regulation, which states that “guards shall not be required where the exposed moving parts are at least seven feet away from walking or working surfaces.” (Emphasis added). The comment does not indicate how MSHA arrived at this restrictive interpretation of §56.14107(b) considering that section uses the word “away,” not “elevated” or “above,” in creating its exception to the requirements of § 56.14107(a).

Section 56.14107(b) is not ambiguous, and is not open to the interpretation suggested by the comment. Had MSHA intended to limit that section as the comment suggests, surely the regulation would have used the word “above,” not the word “away” which is far, far broader. Accordingly, based on the plain language of §56.14107(b), if the two exposed rollers at issue were at least seven feet from anywhere miners walk or work, C & E will have satisfied the exception to §56.14107(a)’s requirement of providing guards for moving machine parts, and will not have violated the Act.

In this regard, first Delgado, an employee of C & E who monitored the condition of the guards, testified that his work area was at least thirty feet away from the #32 conveyor belt, and that he had personally never seen any of C & E’s employees come within thirty feet of this conveyor belt while it was in operation. Tr. 58- 59. Lopez, C & E’s safety officer, stated that all employees who walk by the # 32 conveyor belt are at least forty to fifty feet away from it. Tr. 71. Delgado and Lopez’s testimony indicates that the two exposed rollers were at least thirty feet from any walking or working surface. Tr. 71.

The Secretary alleges that during the inspection a truck was parked within thirty feet of the conveyor belt. The evidence the Secretary offered to prove her contention was a photograph in GX. 4 which shows that a truck was in the vicinity of the two rollers; however, the photograph fails to provide any definitive evidence of the distance between the truck and the rollers. Moreover, the Secretary has not contended that the photograph shows the truck to be as close as seven feet from the belt. It would have been a simple matter for the MSHA inspectors to measure the distance between the truck and the conveyor belt during the inspection, but they did not do it. While Lopez indicated that the truck probably belonged to C & E, he could not state either from the photograph or his own memory of the inspection just how far the truck was from the conveyor belt. Tr. 85-87. There is simply no probative evidence that the truck was within thirty feet of the conveyor belt, let alone seven feet.

Therefore, I find that no employees came closer to the exposed rollers than thirty feet while the conveyor belt was in motion.

Second, there was un-contradicted evidence, which I credit, that employees were warned to turn off the #32 conveyor belt before maintaining the rollers, and that they heeded such warnings. Delgado testified that while the rollers would occasionally require maintenance, employees would ensure that the conveyor belt was shut off by the operator before working on the rollers. Tr. 59. Lopez testified that the two rollers do not need to be maintained or repaired while the conveyor belt is in operation. Tr. 72. He also testified that he conducts safety meetings each week where employees are instructed to shut off the conveyor belts before trying to maintain or repair the belts. Tr. 72.

Third, C & E generally uses a specialized skid steer machine to remove any accumulated material from underneath the # 32 conveyor belt. Tr. 62, 65. Delgado conceded that material may fall through holes in the conveyor belt, and to clean up such material, employees may sometimes shovel underneath the conveyor belt instead of using the skid steer. Tr. 64. However, he testified that material never spills off at the section with the exposed rollers. Tr. 60. Moreover, he testified that prior to shoveling underneath any section of any conveyor belt, employees always check that the belt has been locked out. Tr. 64.

Fourth, if, miners would decide to walk beneath the conveyor belt to get to the other side while the belt was in motion, they would not have any reason to use the space underneath the two exposed rollers as a walkway. Lopez testified that the conveyor belt was much higher only ten to fifteen feet away from the two rollers, and miners could easily cross to the other side of the conveyor belt without fear of coming into contact with it at that spot. Tr. 73-74. There was no reason for anyone to cross to the other side of the belt underneath the two exposed rollers. It should be noted, however, that no evidence was presented that miners actually walked under the conveyor belt at any point while it was in motion.

C & E has therefore proven that its two exposed return rollers on the #32 conveyor belt fall within the § 56.14107(b) exception, since no miners came within seven feet of the moving conveyor belt, and I conclude C & E has not violated §56.14107.[4]

Since I have vacated the sole citation in this docket, it must be dismissed in its entirety.

ORDER

IT IS ORDERED that Citation 6567956 be vacated, the proposed penalty is DENIED, and this case is DISMISSED.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution: (certified mail)

Bryan Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, Colorado, 80202

Walter Lee Meech, President, C & E Concrete, P.O. Box 2547, Milan, New Mexico. 87021

/DM

[1] Citations to the record of this proceeding will be abbreviated as follows: GX.- Government’s Exhibit, RX.- Respondent’s Exhibit; Tr. – Hearing Transcript.

[2] Gov’t. Ex. 10 contains reports of two fatalities. The Secretary represented that only the Cherry Valley Pit fatality is relevant.

[3] The law is unclear regarding who bears the burden of proof on the §56.14107(b) exception. I will treat the § 56.14107(b) exception an affirmative defense. Accordingly, the Respondent bears the burden of proof.

[4] Since no violation occurred, S&S is no longer an issue.