FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
Office of Administrative Law
Judges
7
Parkway Center,
Telephone: 412-920-7240
Facsimile: 412-928-8689
July 21, 2011
| SECRETARY OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION (MSHA), Petitioner, v. CARMEUSE LIME & STONE, Respondent, |
: : : : : : : : : : : |
CIVIL PENALTY PROCEEDING (Judge Lewis) Docket No. SE 2010-566 A.C. No. 40-02545-210961 Mine Name: Lime Plant |
DECISION
Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, on behalf of the Secretary of Labor;
R. Henry Moore, Esq., Jackson Kelly PLLC, on behalf of Carmeuse Lime and Stone.
Before: Judge John Kent Lewis
This case is before me on a petition for assessment of civil penalty, filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”) against Respondent, Carmeuse Lime and Stone, Inc., (“Respondent”), at its lime plant pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815 and 820 (“Mine Act” or “Act”). The case originally involved one docket with twelve (12) violations, and an assessed a total penalty of $16,670.00. Prior to the hearing, the parties filed a motion to approve a partial settlement of six of the citations for a penalty of $1,339.00.
This court has reviewed the documentation and representations submitted as to the aforementioned six citations.[1] I have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act. Accordingly, an order approving the partial settlement and directing payment of those penalties is incorporated into this decision.
As to the
remaining six (6) citations, the parties presented testimony and documentary evidence
at the hearing held on April 28, 2011 in
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Carmeuse
Lime and Stone operates the Luttrell Lime Plant in
The parties have stipulated, inter alia, that the operator is medium in size, that its mine’s operations affect interstate commerce, that it is subject to the jurisdiction of the Mine Act and that the proposed penalty will not affect the operator’s ability to proceed in business. See Joint Motion to Approve Partial Settlement. See also stipulations at Government Exhibit (Gov. Ex.) 1.
At hearing the parties also stipulated as to Respondent’s violation history as set forth at Gov. Ex. 27 based upon the Secretary confirming that “0” on said “assessed violation history report” meant a vacated citation. See Hearing Transcript (Tr.) 20. The Secretary confirmed this interpretation by letter, dated May 10, 2011.
A. Citation No. 6596503
On January 5, 2010, Inspector Joe Norwood issued Citation No. 6596503 to Carmeuse Lime and Stone for a violation of 30 C.F.R. §56.12034. The citation alleged:
The 208 volt light attached to and about 20 inches above the handrail. Located on the 113 head pulley platform was not guarded to protect miners from accidental contact. Possible contact with the light result in electrical shock, burns, and/or cuts.
Gov. Ex. 2.
The inspector
found that an injury was unlikely to occur, that an injury could reasonably be
expected to be fatal, and that the negligence was high. See
Gov. Ex. 2. Although inspector
The standard for citation 6596503, 30 C.F.R §56.12034, Guarding Around Lights, reads, “Portable extension lights, and other lights that by their location present a shock or burn hazard, shall be guarded.” 30 C.F.R §56.12034 (2010).
At
hearing, Inspector Norwood testified that the unguarded light was a mercury
light, which was alongside a metal walkway.
It was located on the corner where a miner would go up and down the steps.
At hearing Mr. Wolfenbarger disagreed that the unguarded light constituted a hazard in that the light was pointed toward stone piles away from the walkway where persons would travel. Tr. 46. Anyone stumbling into the light would be exposed to the back of the light, not to the bulb. Wolfenbarger further denied that there was any work order pertaining to the light in question. Wolfenbarger Aff. Res. Ex. 1, at 7; Tr. 47.
Analysis
The record
clearly establishes that the location of the unguarded light in question was a
violation of §56.12034 in that a shock,
burn or cut hazard existed. Given
the location of the light on a walkway and the poor weather conditions, there
was a risk that a miner could come into contact with the light and be exposed
to a fatal shock. See inter alia Gov Ex. 3. The ALJ accepts the testimony of Inspector
Norwood and the Secretary’s argument that a shock hazard, however remote, was
existent and could reasonably be expected to result in death. Tr. 18; See also Secretary’s (Sec’y’s) Post-Trial (PT) Brief (Br.) 4-5.
.
I find, given the
totality of the circumstances, including that the light was pointing away from
any approaching miner, that it was “unlikely” that any injury could occur. Indeed, the Secretary conceded such. See Tr.
17.
The Secretary’s position was that
the negligence associated with the violation was high, but I find that the
negligence is moderate. I resolve the conflict in the record
as to how long the hazardous condition existed and when Respondent had notice
of such in favor of Respondent. Compare Tr. 39 (Inspector Norwood claims
Mr. Wolfenbarger told him there was a work order placed during a plant shut
down that occurred between December 18, 2009 to January 4, 2010), with Tr. 44 (Wolfenbarger denies memory
or record of work order before January 5, 2010). Furthermore, Respondent had abated the
violation within the time frame given.
Based upon the foregoing, including evaluation of the six statutory criteria set forth in Section 110(i) of the Act, I find that a reduced penalty of $1,000.00 is warranted for this citation.
B. Citation No. 6596504
On
January 5, 2010, Inspector Norwood issued Citation No. 6596504 to Respondent
for violation of a mandatory safety standard at 30 C.F.R. §56.11002.
This citation reads:
Seven sections of toe boards were removed on
the top of the chat bin. The openings measured from about 56 inches to
about 18 inches. The walkway on top of
the bin is used each shift. Miners were
observed walking and operating mobile equipment about 40 feet below. Miners being struck from falling material
from this height could be seriously injured.
Gov. Ex. 4.
The inspector
found that an injury was reasonably likely to occur, that an injury could
reasonably be expected to be permanently disabling, and that the negligence was
high. See Gov. Ex. 4. Inspector
The mandatory standard at §56.11002, “Handrails
and toeboards” sets forth the following:
“Crossovers, elevated walkways, elevated ramps, and stairways shall be
of a substantial construction provided with handrails, and maintained in good
condition. Where necessary, toe boards[5]
shall be provided.” 30 C.F.R. §5611002.
At hearing, Inspector Norwood described the area in question as an
elevated walkway or travelway on top of the chat bin. See
Gov. Ex. 5;
Conversely, Mr. Wolfenbarger contended that the area in question was
not a cross-over, walkway, ramp or stairway.
Rather it was a platform not regularly traveled by individuals. Wolfenbarger Aff. Res. Ex. 4, at 7; Tr. 81. He did admit, however, that miners
cleaned the platform once a week and performed maintenance on it on rare
occasions. Tr. 79-80.
When a miner cleans the platform, Mr. Wolfenbarger testified that the road below was barricaded to protect miners underneath from falling gravel. Tr. 75. According to Inspector Norwood’s testimony, however, the flagging he witnessed was not a barrier that would prevent miners from passing underneath. Tr. 71.
Analysis
The Secretary has
contended that this violation was significant and substantial in nature. A violation is properly designated S&S
“if, based upon the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr 1981). The Commission has explained that:
In order to establish that a violation of a
mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor
must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete safety hazard – that is, a
measure of danger to safety—contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote
omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999); Austin
Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015,
2021 (Dec. 1987) (approving Mathies
criteria).
The Respondent has essentially asserted that
the Secretary has failed to prove any of the four prongs of National Gypsum.
At hearing sufficient evidence was provided
by the Secretary to show that individuals walked in the area in question such
that it can reasonably be found to be an “elevated walkway” within the meaning
of §56.11002 provisions. Whether
utilizing a “Chevron I or II analysis,” this Court finds that the Secretary has
properly construed the area in question as an elevated walkway. The
first inquiry in statutory construction is “whether Congress has directly
spoken to the precise question at issue.”
Chevron U.S.A. Inc. v. Natural
Res. Defense Council, Inc., 467
This court further credits the testimony of
Inspector Norwood that required toeboards were missing at various places in the
elevated walkway. See Gov. Exhibits 7, 8, 9, 10, 11, and 12;
Therefore,
this court finds that there was an underlying violation of §56.11002.
Further, I credit the
testimony of Inspector Norwood that this citation created a discrete safety
hazard -- that is, exposure to falling objects, including chat and maintenance
tools.
The challenge in finding a violation S&S
normally comes with the third element of the Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC
1125, 1129 (Aug. 1985), the Commission provided additional guidance:
We have explained further that the third
element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.”
U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with
the language of section 104(d)(1), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U.S.
Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574-75 (July 1984).
This evaluation is made in consideration of
the length of time that the violative condition existed prior to the citation
and the time it would have existed if normal mining operations continued. Elk Run
Coal Co., FMSHRC 899, 905 (Dec. 2005); U.S.
Steel Mining Co., Inc., 6 FMSHRC at 1574.
The question of whether a particular violation is S&S must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
There is a reasonable likelihood that missing
toeboards could allow falling debris to strike and injure miners. Inspector
It is reasonably likely that a miner on top
of the chat bin could kick objects onto miners below, causing injury. Toeboards would stop tools or gravel from falling
off of the edge of the chat bin. I find
that the violation meets the third prong of the Mathies test for S&S.
Moreover, it is reasonable that falling chat
or tools could injure a miner in a reasonably serious nature. Even small gravel falling 30 to 40 feet could
cause severe injuries if it struck a miner.
A falling tool striking a miner could cause a broken back, severe
concussion, or other permanently disabling injuries. Thus, I conclude that there is a reasonable
likelihood that the injuries caused by exposure to falling debris or tools
would be of a reasonably serious nature so as to satisfy Mathies’ fourth prong.
For
this citation, the Secretary assessed a penalty of $2,678.00. The Commission outlined its authority for
assessing civil penalties in Douglas R.
Rushford Trucking, stating that “the principles governing the Commission’s
authority to assess civil penalties de
novo for violations of the Mine Act are well established.” 22 FMSHRC 598, 600 (May 2000). While the Secretary’s point system in 30
C.F.R., Part 100 provides a recommended penalty, the ultimate assessment of the
penalty is solely within the purview of the Commission.
Nevertheless, after
reviewing all of the relevant facts and weighing the §110(i) factors applicable
to such, I find no reason to depart upward or downward from the penalty amount
arrived at by the Secretary. Accordingly
the $2,678.00 penalty is warranted.
C. Citation No. 6596506
On January 5, 2010,
Inspector Norwood issued Citation No. 6596506 to Respondent which averred as
follows:
Toe boards were not provided for a 44 inch
walkway at the pre-heater ram platform. Miners were observed working about 35
feet below. Miners travel this area each
shift. Being struck from falling
material from this height could cause serious injury.
Gov. Ex. 15.
The inspector
found that an injury was reasonably likely to occur, that an injury could
reasonably be expected to be permanently disabling, and that the negligence was
moderate. See Gov. Ex. 15. Inspector
The mandatory safety standard at
§56.11002 has already been cited supra.
At hearing, Mr.
Wolfenbarger testified that the walkway in question, which led to a step to the
platform, had a toeboard. Tr. 93. The cited toeboard or lip was a grated metal
extension fabricated by Respondent which had approximately 1.5 inch designed
height.
Miners used the walkway both to
access the step to the ram platform and as a work platform. See Tr.
86. According to Mr. Wolfenbarger, miners
traveled this area each shift.
Miners were working directly below
this section of walkway. Inspector
Analysis
It was Respondent’s
position that the 1.5 inch toe board was of sufficient height to prevent tools
or other items from falling off of the walkway.
As there was no specific height requirement for toe boards in §56.11002, Respondent asserted that no violation
had occurred. See Wolfenbarger Aff. Res. Ex. 5, at 7; Tr. 94.
I reject Respondent’s argument that the 1.5
inch lip would be of sufficient height to prevent chat or tools or other
objects from accidentally being kicked over the side. The toe boards in the immediately adjoining
areas were several inches higher and plainly more suited to preventing injury
from falling objects. Although there is
no set statutory standard for the height of toe boards, I agree with Inspector
Norwood’s assessment that the lip of the grated area in question was clearly
not of sufficient height to prevent chat or tools from accidentally being
kicked over the top of such.
After careful review of the record, including
a consideration of factors set forth in the previous citation analysis, I again
find that a violation of §56.11002 took place as to this subject area, that a
discrete safety hazard – exposure to falling objects – was created. There was a reasonable likelihood that the
hazard contributed to would result in an injury, and that there was a
reasonable likelihood that the injury in question would be of a reasonably
serious nature. Thus, I conclude that
the citation was properly designated S&S.
Accordingly, the assessed penalty of
$807.00 is appropriate for citation 6596506.
D. Citation No. 6596515
On January 5, 2010,
Inspector Norwood also issued Citation No. 6596515 to Respondent, reporting
that: “The 120 volt power cord plugged
into the
The inspector found
that an injury was reasonably likely to occur, that an injury could reasonably
be expected to be fatal, and that the negligence was moderate. See
Gov. Ex. 18. Inspector
Standard 30 C.F.R §56.12004, electrical conductors, reads: “Electrical conductors shall be of a sufficient size and current-carrying capacity to ensure that a rise in temperature resulting from normal operations will not damage the insulating materials. Electrical conductors exposed to mechanical damage shall be protected.” 30 C.F.R §56.12004.
At hearing, Inspector Norwood testified that although the 120 volt cord carried the same voltage as in a residential home, it could still provide a fatal shock. Tr. 96. At the time of the inspection, the cord was not in use. Moreover, Mr. Buck testified that he did not know how long the cord was there or when it had last been used. Tr. 106.
Harold Hoskins, an employee of Respondent, does not believe that the inner conductor of the cord was damaged and, therefore, the cord was unlikely to shock any miners. Tr. 110.
Mr. Hoskins and Inspector Norwood
disagree as to whether a 20 amp breaker providing overcurrent protection would
protect a miner from receiving a shock from the cord. Hoskins suggested that it would, while
Analysis
Respondent does not contest the violation of the mandatory safety standard at §56.12004. Respondent, however, does contest the designation of the violation as S&S.
The condition of the inner circuits of the
cord is immaterial because the discrete safety hazard of exposure to electric
current existed due to the damage to the outer jacket. I agree with the Secretary that the inner
insulation did not provide protection from mechanical damage. The
same work conditions that damaged the outer jacket could also damage the inner
insulation, leading to the immediate exposure of a miner to electric current. The mandatory safety standard at §56.12004
specifically requires protection from mechanical damage to prevent this
scenario. Damage to the outer jacket of
the power cord would expose miners to electric current under normal working
conditions, creating a discrete safety hazard.
Although the cord was deenergized during the
inspection, it could be reenergized and used at anytime. Thus, it is reasonably likely that the hazard
of exposure to electric current could contribute to an injury. The damage to the outer jacket of the power
cord could injure any miner who came in contact with it, and every time the
welder was used, there was a risk that a miner could come into contact with the
cord. The discrete safety hazard of
exposure to electric current was reasonably likely to contribute to an injury.
Furthermore, I credit Inspector Norwood’s
testimony that the 20 amp breaker would not protect a miner from injury. I likewise reject Respondent’s argument that
the conductor was not powerful enough to be a hazard and find that the power
cord could reasonably cause a fatality.
Respondent argues that because the electrical conductor in question only
carried a level of voltage common to residential dwellings (120 volts), it
would not pose a significant safety hazard to miners if exposed to mechanical
damage. Res. PT Br. 22. Inspector
It is reasonably likely that the discrete
safety hazard of exposure to electric current caused by the damaged power cord
could injure a miner, and it is reasonable that the injury could prove fatal. Accordingly, I find that the violation was
S&S. I likewise agree with the
Secretary’s rationale as to gravity and negligence. Thus, I find that the penalty of $1795.00 is
warranted.
E. Citation No. 6596516
On January 5, 2010, Inspector Norwood also issued Citation No. 6596516 to Respondent, reporting the following:
The portable work light being used on the firing floor was not guarded. The light was in use and about 4 feet from the floor. Duct tape was being used from the top of the light. Contact with the hot energized lamp could cause electrical shock, burns, and or cuts.
Gov. Ex. 21.
The
inspector found that an injury was reasonably likely to occur, that an injury
could reasonably be expected to be fatal, and that the negligence was
moderate. See Gov. Ex. 21. Inspector
The mandatory safety standard at §56.12034 has already been cited supra.
At hearing,
Inspector Norwood said that there was glass over the bulb, but the glass became
hot enough to cause burns. Although
there were three pieces of metal over the glass,
Analysis
The unguarded light was only 4 feet tall and a worker was using the light as a stand during the inspection. Sec’y’s PT Br. 18. Coming in contact with the light could cause burns. Tr. 120. The light was unguarded, hot, and in the middle of a work area; thus, Respondent violated §56.12034 and clearly exposed miners to a discrete safety hazard in the form of burns.
However, it was unlikely that a miner could trip on a chain, fall, and contact the light at the precise angle to cause a burn. Thus, I conclude that a miner was not reasonably likely to sustain an injury from the light, precluding an S&S designation.
I further find that any injury actually suffered would not be fatal or permanently disabling in nature and would reasonably be expected to result in lost work days or restricted duty.
The negligence associated with this violation was only “low” in nature. Given the foregoing, the penalty of $250.00 is appropriate.
F. Citation No. 6596533
On January 6, 2010, Inspector Norwood issued Citation No. 6596533 to Respondent, reporting: “The flex conduit was pulled from the 527 screw motor junction box. The motor wiring was exposed to vibration and the sharp metal. Electrical shock is reasonably likely if this condition continues to go uncorrected.” Gov. Ex. 24.
The
inspector found that an injury was reasonably likely to occur, that an injury
could reasonably be expected to be fatal, and that the negligence was
moderate. See Gov. Ex. 24. Inspector
The mandatory safety standard at §56.12004 has already been cited supra.
Inspector
The Respondent’s witnesses disagreed that the inner conductors could be damaged due to the loose conduit. Tommy Buck, Respondent’s Plant Supervisor, testified that the motor vibrates very little and that there are no sharp edges to damage the conductors. Tr. 148. Agreeing with Mr. Buck, Mr. Hoskins testified that there are no sharp edges on the conduit or near the area that attaches to the conduit. Tr. 151. Although he admitted that the conduit should be reattached, Hoskins also testified that the insulation of the inner conductors was unharmed and therefore, contacting the inner conductors would not shock a miner. Tr. 152.
Analysis
I credit the testimony of Respondent’s witnesses that the loose flex conduit and exposed wires were sufficiently insulated and safe from mechanical damage. The approximately two inches of wire exposed when the flex conduit moved were insulated and were of sufficient size and carrying capacity to prevent damage to the insulation under normal circumstances. Due to the low amount of vibration, the insulation and the location of the wires, they were protected from mechanical damage. Thus, I conclude that the cited condition did not violate the mandatory safety standard at §56.12004.
Accordingly, Citation No. 6596533 is hereby VACATED.
GRAVITY
AND NEGLIGENCE FINDINGS
The Gravity and Negligence findings as to all citations, where applicable, are set forth supra.
ORDER
Based upon the criteria in section 110(i)
of the Mine Act, 30 U.S.C. §820(i), the ALJ decides the following:
|
Citation No. |
30 C.F.R. § |
Penalty |
|
|
|
|
|
6596503 |
§56.12034 |
$1,000.00 |
|
|
|
|
|
6596504 |
§56.11002 |
$2,687.00 |
|
|
|
|
|
6596506 |
§56.11002 |
$807.00 |
|
|
|
|
|
6596515 |
§56.12004 |
$1,795.00 |
|
|
|
|
|
6596516 |
§56.12034 |
$250.00 |
|
|
|
|
|
6596533 |
§56.12004 |
VACATED TOTAL:
$6,539.00 |
For the reasons set forth above, citation No. 6596533 is hereby VACATED. The remaining citations are affirmed or modified as set forth herein. Respondent is ORDERED to pay the Secretary of Labor the sum of $6,539.00.
Respondent is further ORDERED to pay the additional sum of $1,339.00 it previously agreed to pay pursuant to its partial settlement agreement for Citation/Order Nos. 6596509, 6596510, 6596513, 6596514, 6596519 and 6596529.
Accordingly, Respondent shall pay a total penalty of $7,878.00 within 40 days of the date of this Order.[6]
John Kent Lewis
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456
R. Henry Moore, Esq., Jackson
Kelly PLLC, Three Gateway Center
/BJR
[1] The following Citations are addressed pursuant to the settlement agreement: 6596509; 6596510; 6596513; 6596514; 6596519; 6596529.
[2] In its pre-hearing Order, this court, over objections of the Secretary and Respondent, requested that the parties submit all direct examinations of each witness in writing in the form of an affidavit.
[3] “Significant and substantial” is a term included in section 104(d)(10) of the Act, which distinguishes as more serious any violation that “could significantly and substantially contribute to the cause and effect of a …mine safety or health hazard.” (30 U.S.C. §814(d)(1)).
[4] 30 CFR § 100.3, in pertinent part, defines negligence as “conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.”
[5] A toe board is a vertical barrier at floor level that is erected along exposed opening, such as a floor opening, platform, or runway. Toe boards prevent objects such as tools and materials from falling from one level to the next.
[6]
Payment should be sent to: Mine Safety
and Health Administration, U.S. Department of Labor, Payment Office, P.O. BOX
790390,