<DOC>
[DOCID: f:ct2000395.wais]
BILBROUGH MARBLE DIVISION, TEXAS ARCHITECTURAL AGGREGATE
June 28, 2001
CENT 2000-395-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 28, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-395-M
Petitioner : A.C. No. 41-01684-05507
v. :
: Roper Quarry
BILBROUGH MARBLE DIVISION, :
TEXAS ARCHITECTURAL :
AGGREGATE, :
Respondent :
DECISION
Appearances: Tina D. Campos, Esq., Mary Schopmeyer Cobb, Esq.,
U.S. Department of Labor, Office of the Solicitor,
Dallas, Texas, for Petitioner;
David M. Williams, Esq., San Saba, Texas, for
Respondent.
Before: Judge Bulluck
This case is before me upon Petition for Assessment of
Penalty filed by the Secretary of Labor, through her Mine Safety
and Health Administration ("MSHA"), against Bilbrough Marble
Division, Texas Architectural Aggregate ("Bilbrough"), pursuant
to section 105(d) of the Federal Mine Safety and Health Act of
1977 ("the Act"), 30 U.S.C. � 815(d). The petition seeks a civil
penalty of $500.00 for an alleged violation of section 56.15003,
30 U.S.C. � 56.15003.
A hearing was held in San Antonio, Texas. During the course
of the hearing, the parties reached a settlement on all eight
citations respecting Docket No. Cent 2000-336-M, which was
approved by Decision Approving Settlement issued April 27, 2000.
The parties' Proposed Findings of Fact and Briefs are of record.
For the reasons set forth below, the citation and order shall be
VACATED.
I. Stipulations
The parties stipulated to the following facts:
1. Bilbrough Marble Division of Texas Architectural
Aggregate ("Bilbrough") Mine ID No. 41-01684, is the lessee and
operator of the Roper Quarry.
2. Bilbrough is engaged in mining, and its mining
operations affect interstate commerce.
3. Bilbrough is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
4. True copies of Citation Nos. 7889527, 7889528, 7889529,
7889530, 7889531, 7889532, 7889533, 7889534 and 7889535 were
served on Bilbrough or its agent, as required by the Act.
5. The plastic gasoline can brought to the hearing by
Respondent was fairly and accurately represented by Government
Exhibit P-13.
6. The language on the back of the plastic gasoline can
brought to the hearing by Respondent read: "Nonmetallic petroleum
product container, classified by UL, Inc., in accordance with the
standard specs for plastic container (Jerry cans) for petroleum
products, ANSI/ASTN @ 343J-00, approved mass gasoline container."
7. The idler brought to the hearing by Respondent was
fairly and accurately represented by Government Exhibit P-5.
8. The mine history, Government Exhibit P-1, was authentic.
II. Factual Background
On March 2, 2000, MSHA Inspector Danny Ellis conducted a
regular inspection of Bilbrough's Roper Quarry, a surface
limestone/dolomite mine and crushing operation, located in Marble
Falls, Texas. At the time of the inspection, 8:30 a.m., he
observed stockpiles of material, a front-end loader loading a
customer truck, a Euclid haul truck operating, and two employees
in the open break area (Tr. 12-14, 18-19, 87). Inspector Ellis
observed the operator of the Euclid haul truck wearing tennis
shoes and another employee wearing cowboy boots and, with all
employees assembled in the break area, the inspector inquired
whether they were wearing hard-toed footwear and he physically
checked their footwear by touch of his hand or foot (Tr. 16-19,
85, 87-89). Foreman Ollie Joe Conely, who had been working the
excavator in the pit, summoned general manager Joe Williams, Jr.
to the mine, and by the time Williams arrived within the half
hour to accompany Inspector Ellis on his inspection, Ellis had
prohibited the workers' entry to certain areas of the plant,
unless they changed to steel-toed footwear (Tr. 14, 53, 59, 83-
84, 97, 144, 150-52). As a consequence, Conely had instructed
the workers to cease operations (Tr. 91).
Inspector Ellis ultimately cited Bilbrough for several
violations (including a citation for the four workers' unsuitable
protective footwear) which citations are not at issue herein, and
before the inspection actually got underway, the subject of
suitable protective footwear became a hotly contested issue
between Ellis and Williams, especially since the workers had
mistakenly believed that Ellis had shut down the mine (Tr. 25,
75, 83-84, 97, 100, 103, 127-28). Williams was wearing a pair of
Redwing Pecos leather workboots with leather reinforced toes (Tr.
32-33, 98-99), and pursuant to cellular phone conversations with
Ellis's supervisor, Ralph Rodriguez, Williams was permitted to
accompany Ellis on inspection in his leather workboots, except
for areas where, in Ellis's opinion, his footwear would pose a
hazard (Tr. 103-04, 144-46, 148-49). As the inspection and
footwear debate progressed, with Ellis pointing out to Williams
areas in the plant where falling objects could cause foot
injuries, Ellis inquired about a belt idler that had come into
view. By then, Williams had become quite frustrated, and while
explaining how the welder (in steel-toed footwear) would be
installing the belt idler on the tailing conveyor, that the idler
was light in weight and that installation would not pose a hazard
to the feet, Williams lifted the 25-35 pound belt idler waist
high to demonstrate how the task would be performed (Tr. 31-32,
105-110, 135-37). Inspector Ellis immediately directed Williams
to put the belt idler down and Williams complied (Tr. 32, 107,
109). Apparently, both Williams and Ellis were highly agitated,
and Williams telephoned Rodriguez again (Tr. 91-92, 107, 109,
135). As a consequence of Williams having lifted the belt idler,
Inspector Ellis issued combined 104(a) Citation/107(a) Order No.
7889528, alleging a significant and substantial violation of 30
C.F.R. � 56.15003 and describing the hazardous condition as
follows:
The supt. Joe Williams, Jr. was not
wearing hard toed footwear and he picked up a
30 inch belt idler that weighed approximately
20 lbs. The belt idler was made out of angle
iron with rollers attached to the angle iron.
The belt idler could have fallen on his feet
causing a lost time injury. This AR told Mr.
Williams to not pick up the belt idler since
he did not have on suitable protective
footwear and he still picked up the belt
idler
(Ex. P-4). Although the citation/order estimates the weight of
the belt idler at 20 pounds, 25-35 pounds is a more accurate
assessment (Tr. 31; Ex. P-5).
III. Findings of Fact and Conclusions of Law
A. 104(a) Citation No. 7889528
30 C.F.R. � 56.15003 provides as follows:
All persons shall wear suitable
protective footwear when in or around an area
of a mine or plant where a hazard exists
which could cause an injury to the feet.
The Commission and the courts have recognized the broad
applicability of generally worded standards, and have applied an
objective test to challenges based on failure to provide adequate
notice of prohibited or required conduct, i.e., 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. BHP
Minerals International, Inc., 18 FMSHRC 1342, 1345 (August 1996)
(citing Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990));
Freeman United Coal Mining Co. v. FMSHRC 108 F.3d 358, 362 (D.C.
Cir. 1997). In interpreting a standard, the Commission has
determined how a reasonable person would act by considering such
factors as accepted safety standards in the field, considerations
unique to the mining industry, and the circumstances at the
operator's mine. BHP Minerals International at 1345 (citing U.S.
Steel Corp., 5 FMSHRC 3, 5 (January 1983)).
Although section 56.15003 is not specific as to the type of
footwear necessary for adequate protection in and around the
various areas and activities of a mine, a reasonably prudent
person working in the mining industry is put on notice that,
where the feet are exposed to the hazards of being struck by
falling or stationary objects of a nature that can be expected to
cause broken bones or other serious injuries, hard-toed
protective footwear must be worn. MSHA's Program Policy Manual
is worded in general terms, as well, indicating that "substantial
hard-toed footwear" is considered the minimum protection
acceptable for most mining applications, and that there may be
instances where special purpose foot protection is need or,
conversely, where heavy leather shoes or boots will provide
adequate safety for the feet. MSHA Program Policy Manual, Volume
IV, Part 56/57, Subpart N (07/01/88). It follows, then, that
what constitutes suitable protective footwear is determined on a
case-by case basis and requires a situational analysis of the
tasks the miner is performing and could be performing during the
course of his shift (Tr. 50-52, 62-63, 133-34).
Reviewing the circumstances at the mine giving rise to the
citation at issue herein, Inspector Ellis observed a front-end
loader and haul truck being operated upon his arrival, and
despite his determination that four workers were not wearing
suitable protective footwear necessary for protection against
hazards, he determined that none of the men were currently
working in areas where hard-toed footwear was needed, and
prohibited them from entering those areas (Tr. 17, 21-23, 59, 68,
76, 144-46; Ex. P-2). I credit Williams' testimony that when he
arrived on-site in leather workboots, Ellis prohibited him from
accompanying him on the inspection (Tr. 97). Ellis testified
that he considered Williams to be wearing soft-toed boots (Tr.
77). Indeed, the inspection did not proceed until Rodriguez
overrode Ellis and authorized Williams to accompany Ellis in his
leather workboots (Tr. 97-100, 103-04, 144-46). Considering that
the miners were under the impression that the mine had been shut
down, and Ellis and Williams had locked horns as to the
suitability of the miners' footwear, it is apparent that the
inspection proceeded in an emotionally charged environment (Tr.
75, 97, 104, 134-35). I credit Ollie Joe Conely's testimony that
he overheard heated discussion between Ellis and Williams at the
time of the alleged violation (Tr. 91), and discredit Ellis's
testimony that he was not agitated (Tr. 56-57, 65). Because I am
convinced that discussion of the belt idler arose while tempers
flared, I credit Williams' testimony that his action, motivated
by extreme frustration, was spontaneous and not premeditated (Tr.
105-107). In so finding, I discredit Inspector Ellis's testimony
that beforehand, he specifically directed Williams not to pick up
the belt idler (Tr. 31-32, 36, 65-69, 108). A more likely
scenario, viewing the evidence in its entirety, is that Ellis
told Williams not to pick up the belt idler as it was being
lifted.
Although Inspector Ellis testified that he issued the
citation because Williams was engaging in activity that required
hard-toed footwear (Tr. 33), it is clear that MSHA determined
Williams' footwear suitable for accompanying Ellis on inspection,
consistent with its own policy that leather boots provide
adequate safety under some circumstances. Ellis testified that
the location of the belt idler posed no hazard of falling objects
(Tr. 155-56). It is also evident that Williams was not
performing any work when he lifted the belt idler, but
illustrating a point during the course of the inspection, and at
all times maintained control of the object. In explaining how he
happened to "snatch up" the belt idler, Williams testified
credibly that he had been picking up 100 pound bags since he was
12 � years old, which he considered "not much weight" (Tr. 106-
08). Moreover, Ellis testified that he had no indication that
Williams would drop the belt idler (64-65). Ellis even conceded,
as pointed out by Williams, that the top-heavy configuration of
the belt idler substantially reduced the possibility of it
dropping straight down onto the feet (Tr. 124-25, 146-47).
Consequently, having found that Williams' leather workboots were
suitable protective footwear for accompanying the inspector, and
having found that Williams was not in an area or performing a
task that would subject him to hazards that would cause foot
injury, I conclude that the standard was not violated.
Accordingly, Citation No. 7889528 is vacated.
B. 107(a) Order No. 7889528
Section 3(j) of the Mine Act defines "imminent danger" as
the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated."
30 U.S.C. � 802(j). Section 107(a) of the Mine Act provides, in
pertinent part, for imminent danger orders, as follows:
If, upon any inspection or investigation of a coal
or other mine which is subject to this [Act], an
authorized representative of the Secretary finds that
an imminent danger exists, such representative shall
determine the extent of the area of such mine
throughout which the danger exists, and issue an order
requiring the operator of such mine to cause all
persons, except those referred to in section [104(a)],
to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative
of the Secretary determines that such imminent danger
and the conditions or practices which caused such
imminent danger no longer exist.
Considering that an inspector must act quickly in the face of a
perceived dangerous condition, the Commission and the courts have
held that an inspector's findings and decision to issue an
imminent danger order should be supported unless there is an
abuse of discretion or authority. Island Creek Coal Co., 15
FMSHRC 339, 345 (March 1993); Utah Power & Light Co., 13 FMSHRC
1617, 1627 (October 1991); Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2164 (November 1989); Old Ben Coal Corp. v. Interior
Bd. of Mine Operations Appeals, 523 F.2d 25, 31 (1975).
There are several cases in which the Commission has held
that there must be some degree of imminence to support an
imminent danger order and has defined "imminent" as "ready to
take place[;] near at hand[;] impending...[;] hanging
threateningly over one's head[;] amazingly near." Island Creek
Coal Co. at 345; Utah Power & Light Co. at 1621. In Utah Power &
Light Co., the Commission stated that "where an injury is likely
to occur at any moment, and an abatement period, even of a brief
duration, would expose miners to risk of death or serious injury,
the immediate withdrawal of miners is required." 13 FMSHRC at
1622. In Rochester & Pittsburgh Coal Co., the Commission
recognized that "an imminent danger exists when the condition or
practice observed could reasonably be expected to cause death or
serious physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous condition
is eliminated." 11 FMSHRC 2163 (quoting Eastern Associated Coal
Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277,
278 (4th Cir. 1974)); Island Creek Coal Co. at 345. Finally, the
Commission has held that an inspector, albeit acting in good
faith, abuses his discretion, in the sense of making a decision
that is not in accordance with the law, if he issues a 107(a)
order without determining that the condition or practice presents
an impending hazard requiring the immediate withdrawal of miners.
Island Creek Coal Co. at 345; Utah Power & Light Co. at 1622-23.
Inspector Ellis testified that he issued an oral imminent
danger order the minute Williams picked up the 25-35 pound belt
idler, because if he were to drop it on his feet, it was more
than likely that he would have sustained broken bones (Tr. 32-
33). Ellis further testified that his order indicated that
"Williams did something at that time that could immediately
result in a serious injury to him or to someone else" and that
the effect of the order was "for him to cease and desist what he
was doing" (Tr. 61; see 143-44, 146-47).
The instant imminent danger order was issued under
circumstances where there was no likelihood of injury and no
degree of imminence necessitating Williams' withdrawal.
Williams' testimony that he was in control of the belt idler and
Ellis's acknowledgment that Williams was in no danger of dropping
it established that no dangerous situation existed. Moreover,
considering the order in light of a perceived dangerous condition
leads to the same conclusion, i.e., that Williams' withdrawal was
not required to avert the danger. Indeed, Inspector Ellis was
able to put a stop to Williams' actions by directing him to put
the belt idler down, thereby ending the perceived danger
immediately. I am convinced that Inspector Ellis's judgement was
affected by the antagonistic atmosphere attendant the inspection,
and because he failed to make a determination that the perceived
hazard was impending, it is my finding that he abused his
discretion in issuing an imminent danger order. Accordingly,
Order No. 7889528 is vacated.
ORDER
Combined 104(a)Citation/107(a) Order No. 7889528 is hereby
VACATED, and this civil penalty proceeding is DISMISSED.
Jacqueline R. Bulluck
Administrative Law Judge
Distribution:
Tina D. Campos, Esq., Mary Schopmeyer Cobb, Esq., U.S. Department
of Labor, Office of the Solicitor, 525 South Griffin Street,
Suite 501, Dallas, TX 75202
David M. Williams, Esq., Texas Architectural Aggregate, Bilbrough
Marble Division, P.O. Box 242, San Saba, TX 76877
/nt