<DOC>
[DOCID: f:l96-128m.wais]
VULCAN MATERIALS COMPANY
June 11, 1997
LAKE 96-128-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 11, 1997
VULCAN MATERIALS COMPANY, : CONTEST PROCEEDING
Contestant :
:
v. : Docket No. LAKE 96-128-RM
: Citation No. 4105681; 5/7/96
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Mine ID No. 12-00136
Respondent : Francesville Quarry
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 97-16-M
Petitioner : A. C. No. 12-00136-05514
:
v. :
:
VULCAN MATERIALS COMPANY, :
Respondent : Francesville Quarry
DECISIONS
Appearances: Rafael Alvarez, Esq., Office of the
Solicitor, U.S. Department of Labor,
Chicago, Illinois, for the Petitioner/Respondent;
William K. Doran, Esq., Smith, Heenan & Althen,
Washington, D.C.,
for Contestant/Respondent.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern a proposal for
assessment of civil penalty filed by the petitioner against the
respondent pursuant to section 110(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 820(a). Petitioner seeks a
civil penalty assessment of $220, for an alleged violation of
mandatory safety standard 30 C.F.R. 56.11001. The contest
proceeding concerns a Notice of Contest filed by the contestant
challenging the legality of the citation. A hearing was held in
Peru, Indiana, and the parties appeared and participated therein.
The parties filed posthearing briefs and I have considered their
arguments in the course of my adjudication of these matters.
Issues
The issues presented in these proceedings are (1) whether
the respondent violated the cited mandatory safety standard, (2)
whether the alleged violation is "significant and substantial"
(S&S), and (3) the appropriate civil penalty to be assessed
pursuant to the penalty criteria found in section 110(i) of the
Act. Additional issues raised by the parties are identified and
disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 301, et seq.
2. Sections 104(a), 105(d) and 110(a) and (i) of the Act.
3. 30 C.F.R. 56.11001.
4. Commission Rules, 29 C.F.R. � 2700.1, et seq.
Stipulations
The parties stipulated as follows:
(1) The Federal Mine Safety and Health Review
Commission has jurisdiction over these
proceedings.
(2) Vulcan's operations affect interstate
commerce.
(3) Vulcan owns and operates the Francesville
Quarry which is located in Pulaski County, IN.
(4) The Francesville quarry crushes limestone.
(5) The Francesville Quarry worked 43,084 man-
hours from October 16, 1995 through October 16,
1996.
(6) Vulcan worked 7,978,113 man-hours from
October 16, 1995 through October 16, 1996 at all
of its mines.
(7) The Francesville Quarry had 18 violations
in the preceding 24 months ending on May 7, 1996.
(8) The payment of $220.00 will not affect
Vulcan's ability to continue in business.
(9) On May 7, 1996, Inspector Victor W. Chicky
of the Federal Mine Safety and Health
Administration conducted an inspection of the
Francesville Quarry.
(10) During the course of the inspection, Mr.
Chicky issued 104(a) Citation
No. 4105681 for a violation of 30 C.F.R. �
56.11001.
(11) Vulcan owns and operates a Euclid 302 LD
haulage truck, serial
number 72754.
(12) The Francesville Quarry had 25 inspection
days in the preceding
24 months ending on May 7, 1996.
Discussion
Section 104(a) "S&S" Citation No. 4105681, May 7, 1996,
alleges a violation of mandatory safety standard 30 C.F.R.
56.11001, and the cited condition or practice states as
follows:
A outside handrail (retro-fit) was not provided on
the elevated walkway of the Euclid, 302 LD, Ser. #
72754 operating in the quarry. The walkway is
18.5 inches wide, 8 feet long. Access is done on
2 shifts, 2-3 times a day. A fall of
8.5 feet would be possible from here. Conditions
range from dry to wet due to weather. Hazard.
Fall potential.
MSHA's Testimony and Evidence
MSHA Inspector Victor W. Chicky testified to his experience
and training, including 15 years in private industry, and
the operation of bob cats, drilling machines, and work as a
blaster. He confirmed that he conducted an inspection of
the quarry on May 7, 1996, and that it was his first
inspection visit to that mine. He observed two 300 Series
50-ton Euclid haulage trucks in operation, and upon
inspecting them he found that they were not equipped with
handrails along the walkway adjacent to the operator's cab.
He identified photographic Exhibits R-4 (1) and (2), as one
of the trucks in question, or one that appears to be similar
to the cited truck. He cited both trucks, but the second
citation was vacated after the truck was lost in a fire (Tr.
15-21).
Mr. Chicky stated that he took certain measurements and
determined that the walkway was 8 feet long and 18 � inches
wide. The distance from the front of the ladder used to
reach the walkway to the edge of the cab door was four to
five feet, and the distance from the top of the walkway to
the ground below was 8 � feet. The truck operator informed
him that he was on and off the truck two or three times a
day (Tr. 23-24, 33).
Mr. Chicky stated that he determined that the absence of a
handrail along the truck walkway presented a potential fall
hazard to the ground below, and he cited a violation of
section 56.11001, for a failure to provide a safe means of
access to the operator's cab, an area that he considered to
be a working place. He also considered the walkway to be a
travelway as defined by section 56.2. He concluded that the
lack of a handrail presented a slip and fall hazard,
particularly under wet or muddy conditions on a rainy day.
Although it was not raining when he inspected the truck,
there was intermittent rain later in the day (Tr. 25-26).
Mr. Chicky stated that he discussed the citation with plant
superintendent Irvin Wilson, and pointed out the hazard to
him. Mr. Wilson informed him that he made an inquiry in
September 1995, regarding handrail retrofit kits, and found
that there was a 8 to 10 week waiting period for the kits.
Mr. Chicky had no knowledge that any kits had been ordered
by Vulcan.
Mr. Chicky confirmed that he based his moderate negligence
finding on his conversation with Mr. Wilson. He believed
that Vulcan knew that handrails were necessary. Mr. Chicky
was of the opinion that no specific retrofit kits were
required to comply with the standard and that Vulcan could
have constructed its own handrails for the truck (Tr. 30-
32).
Mr. Chicky stated that he based his "S&S" finding on his
belief that it was reasonably likely that under adverse
weather and slippery conditions a "fall of person" hazard 8
� feet to the ground below would exist as the operator
entered or exited his operator's cab, and if this occurred,
the fall would result in relatively serious back, head, or
leg injuries. He further indicated that the grated walkway,
which he described as "good," would be exposed to slippery
conditions due to mud, frost, or snow (Tr. 32-35).
Mr. Chicky stated that the truck operator works alone while
operating the truck. He confirmed that he discussed the
citation with Mr. Wilson during his inspection closing
conference, and Mr. Wilson disagreed with his "S&S" finding,
and did not believe there was a violation of section
56.11001, because the truck was equipped with handholds.
Mr. Chicky stated that prior to his inspection of May 7,
1996, he had never issued any other citations for violations
of section 56.11001, at any mine for lack of handrails on
any haulage trucks
(Tr. 39-40).
Mr. Chicky identified exhibit P-2, a May 8, 1996, letter to
Mr. David Bach, Vulcan's purchasing agent, from the
McAllister Equipment Company, Chicago, Illinois, concerning
the availability of handrail kits for Euclid Trucks, and
stated that his supervisor faxed him a copy. He then
acknowledged that he may have been in error regarding this
letter, and on cross-examination clarified the matter and
explained that the document he received was Exhibit R-2,
a March 1, 1996, memorandum from his supervisor Ralph D.
Christensen concerning hand railings for Euclid Haul Trucks
(Tr. 39-40). Mr. Chicky did not know who made the notations
that appear on the exhibit (Tr. 35-37).
On cross-examination, Mr. Chicky confirmed that he was aware
of MSHA Program Information Bulletin No. P95-22, dated
October 24, 1995 (Exhibit P-1). With regard to the
"equipment precautions" listed on page two of the bulletin,
particularly the one that states "Handholds or handrails
should be within easy reach at critical locations," he
confirmed that the cited truck was equipped with handholds
within easy reach on the top of the operator's cab, along
the front windows, and along and over the top of the cab
door, which opens outward. He also stated that the truck
operator walks a distance of 4 or 5 feet from the top of
the ladder shown in photographic exhibit R-4 (1), to reach
the cab door (Tr. 46-50).
Mr. Chicky reviewed the last paragraph on page 2 of the
bulletin, and it was his opinion that it was not necessary
to install the handrail retrofit kits mentioned in the
bulletin in order to comply with the cited standard. He
further stated that he did not know how anyone would know
from the information in the bulletin that handrails were
required in order to comply with the cited standard. In
response to a question as to why previous inspections at
Vulcan's quarry did not result in citations for lack of
handrails on the Euclid Truck in question, he stated that
"some inspectors see things that others don't" (Tr. 46-51,
65).
Mr. Chicky confirmed that Mr. Wilson informed him that he
had contacted a retrofit kit distributor and was informed
that a kit was available but that it would take 8 to 10
weeks for delivery (Tr. 56). He identified Exhibit R-2, as
an internal MSHA memorandum dated March 1, 1996, dealing
with handrail retrofit kits for Euclid haulage trucks, and
he stated as follows at
(Tr. 58-61):
Q. This internal memorandum was not distributed to the
industry; is that correct?
A. I really don't know.
Q. This was, in fact, a new policy, a new enforcement
effort by MSHA to focus on haul trucks and handrails;
isn't that correct?
A. I would say, yes, it was what the memo said.
Q. Now, there are two different series of trucks
indicated on this particular memorandum. Could you
tell me what it says with respect to the 200 series
Euclid haul truck?
A. All 200 series Euclid haul trucks which were
discontinued after the `74 model year did not have the
retrofit handrail kit available for them.
Q. Okay. Now, with respect to a 200 series haul
truck, if you found a 200 series haul truck on mine
property without handrails, what would you do in that
particular situation?
A. If I felt that walkway was high enough I would cite
them for unsafe access.
Q. Now, how would a company with a 200 series haul
truck know that they were supposed to have handrails on
their truck?
A. I don't know.
Q. Would it be based on a program information bulletin
that was sent out to the industry?
A. Quite possible, yes, sir.
Q. Doesn't that program information bulletin say that
if there are no retrofit kits available, focus on
increased training and proper placement of handholds?
A. Yes.
Q. So in that particular situation, they would not
have information that they were supposed to have
handrails on their trucks?
A. No.
Q. What would happen --- let me ask you this. In that
particular situation, suppose you had a 200 series haul
truck working alongside a 300 series haul truck. A 200
series haul truck and a 300 series haul truck are
essentially the same configuration; isn't that correct?
A. I don't know.
Q. One's an older truck and one's a newer truck?
A. Yeah.
Q. A similar fall hazard essentially that you
identified?
A. Yes.
Q. So under the program information bulletin, you
would cite the 300 series haul truck for not having a
handrail but not the 200 series haul truck?
A. No. If the heights were reasonable to cause a
serious injury I would cite them.
Q. But under the information given to the industry and
given to the particular operator, that operator might
be inclined to think that his 200 series haul truck
didn't need a retrofit kit under the policy under the
program information bulletin, but the 300 series would
need handrails?
A. I would say, yes, he would think that.
Mr. Chicky further explained that the memorandum states that
retrofit kits are available for the 300 series Euclid trucks
and that a parts list and diagram is attached. He confirmed
that he gave this to Mr. Wilson, and that Mr. Wilson told
him that he had called a distributor and was told that kits
were not available. Mr. Chicky agreed that if Mr. Wilson
was under the impression that no kit was available, he would
be in the same situation as a person with a 200 series haul
truck and would have to focus on increased training and use
of handholds and the other precautions stated in the
bulletin (Tr. 61-62). He confirmed that section 56.11001
does not mention retrofit kits, handrails, or mobile
equipment (Tr. 66-67). He further confirmed that the
October, 1995, MSHA bulletin makes no reference to the cited
standard (Tr. 70).
In response to further questions, Mr. Chicky confirmed that
the cited truck was equipped with handholds along the
operator's cab, but he still believed that a handrail was
necessary in the event someone were to slip on the travelway
grating. If a belt or lanyard were used by the operator, he
would not have cited a violation because this would provide
protection from falling (Tr. 87). He denied that he
informed Vulcan that it had to use a retrofit kit, and
confirmed that it could have constructed its own substantial
protective handrails. He was not aware of the
March 1, memorandum before he went to the mine to begin his
inspection (Tr. 88-91).
Mr. Chicky confirmed that he has inspected Euclid trucks
prior to his inspection and never cited any of them for lack
of fall protection (Tr. 93). Vulcan had not previously been
cited for lack of handrails on its Euclid trucks (Tr. 94).
Vulcan's Testimony and Evidence
Randy Logsdon, Vulcan's safety and health manager, midwest
division, testified that he receives and reads MSHA program
information bulletins, and if applicable to his operations,
he sends them to the plant managers. He confirmed that he
received MSHA's October 24, 1995, mobile equipment safe
access program bulletin, and stated that the recommendations
contained therein "are things that we do anyway". He
further explained at (Tr. 104-105):
A. Well, we would have regular training. We require
and enforce a process of accessing on ladders and in
the cabs, a three-point contact, which means that the
employee has to have either both hands and one foot or
two feet and one hand in contact with the ladder or
support at any given time. We do periodic safety
meetings to reinforce those rules. We inspect our
equipment to make sure that all of the safety equipment
that is manufactured with the equipment is in good
working order.
Mr. Logsdon stated that he sent the bulletin to each of the
plant superintendents. Based on the bulletin language, he did
not believe that handrails were mandatory. However, since the
company had a number of older haul trucks, he instructed the
plant superintendents, including Mr. Wilson, to make inquiries
with distributors they deal with to determine if handrail kits
were available, and if so, to make a determination as to whether
they needed to be installed
(Tr. 106-107).
Mr. Logsdon stated that Mr. Wilson called him in May, 1996,
and informed him that two of the plant Euclid trucks were cited
because the handrail retrofit kit was not available or installed
on the trucks. Mr. Wilson advised that he had made an inquiry
with the distributor shortly after receiving the bulletin and
learned that a kit was not available (Tr. 107). Mr. Wilson also
faxed him a copy of an internal MSHA memorandum dated March 1,
1996, regarding handrailings on Euclid haul trucks (Exhibit R-2).
Mr. Logsdon stated that he made an inquiry with company
purchasing agent Dave Bach, and asked him to inquire with a
large distributor in Chicago about the availability of kits, and
learned that the kit was designed for an R50, fifty-ton capacity
rear dump truck. The plant also has Mack trucks, and upon
inquiry he learned that no kits are available for that model (Tr.
110).
Mr. Logsdon believed that safe truck access is provided with
a number of handholds on the vehicle, and did not feel there was
a reasonable danger or risk of an operator falling off the
vehicle. He acknowledged that MSHA believed there was a problem,
but believes he dealt with it and tried to follow MSHA's policy.
If the bulletin had stated that "handrails must be or shall be
installed on mobile equipment" the company would have installed
them (Tr. 111).
Mr. Logsdon stated that a handrail retrofit kit was
ultimately obtained for the cited truck and it was installed
"with some difficulty". He was not present when it was installed
(Tr. 111-112). It was his understanding that a retrofit kit was
specifically required to abate the citation, and Mr. Wilson
informed him that the kit was mandatory and if a handrail was
fabricated by the company it would need to be approved by a
professional engineer (Tr. 112).
On cross-examination, Mr. Logsdon confirmed that he received
MSHA's October 24, 1995, bulletin before the citation was issued,
and knew that retrofit kits were available for some truck models
but had no knowledge that kits were available for the Euclid R-50
(Tr. 113-114). He stated that he was aware of section 56.11001,
and he confirmed that the Euclid truck operator's cab is a
working place and that the grating that the operator walks on is
"an access point much like a ladder is an access", and agreed
that it was a travelway within the regulatory definition of that
term (Tr. 116-117). He agreed that if a driver were to fall
from the travelway he could potentially and likely receive
serious injuries (Tr. 118-119).
Mr. Logsdon believed that the existing truck handholds
provide a safe means of access, and he has climbed on the truck
and used the handholds, and the fact that there was no handrail
to his rear did not bother him as long as he had good footing and
contact with the handholds. He would not feel as comfortable
using only handholds on the unguarded travelway if it were
covered with snow and ice, but he would remove the snow and ice
before accessing the cab. He further stated that the truck
operator is required to perform a pre-operational inspection of
the vehicle, including the travelway and handholds (Tr. 122-123).
Irvin Wilson, Francesville Plant Superintendent, for over
two years, and 26 years with Vulcan, described the operation of
the quarry, and confirmed that it has approximately 17 hourly
employees, and two haulage trucks that operator regularly. In
May 1996, there were Euclid 302 model R50, 50-ton rear dump
trucks operating at the mine. The trucks had no handrails, but
did have factory installed handholds along the edge and top of
the cab and above the door (Tr. 130).
Mr. Wilson confirmed that he read the MSHA bulletin after
receiving it from
Mr. Logsdon and explained as follows at (Tr. 130-132):
Q. Did you take any action as a result of reading that
bulletin?
A. To the best of my recollection, I called Randy and
I said, you know, is this something that we have to
rush right out and do, you know. And he said, well, we
have got --- you've got handholds on the trucks and as
long as we --- you know, as long as we enforce our
training and train our employees, you know, the proper
way to mount and dismount the equipment, you know, in
the presence of a handrail but there being a presence
of handholds then we're within the guidelines.
Q. Now, did you check --- did you take any action with
respect to finding a retrofit kit for this particular
truck?
A. I had talked to the distributor, Rudd Equipment
Company out of Indianapolis in reference to that, and
was told at that time there was no kits available.
Q. When did you call Rudd?
A. It was sometime after getting the bulletin from
Randy. I don't recall.
Q. You testified, I believe, that you read this when
you received it. Was it your understanding that you
were required to put handrails on there, ---
A. No.
Mr. Wilson stated that the Euclid trucks in question are
"mid 80's vintage" and were at the mine before February,
1995, when he arrived, and they were inspected by MSHA (Tr.
133). He identified a record of a January 23, 1996, safety
meeting which included a discussion about slip and fall
hazards when mounting and dismounting mobile equipment and
the "three-point contact method of climbing" (Tr. 134).
Mr. Wilson confirmed that he accompanied Inspector Chicky
during his inspection of May 7, 1996, and informed him that
he had checked on a handrail retrofit kit with a distributor
and was told there were none available. Mr. Chicky provided
him with a copy of the March 1, 1996, MSHA memorandum and
attachments (Exhibit R-2) which indicates that a kit was
available for the 300 series haul trucks, and Mr. Wilson
stated that he faxed a copy to Mr. Logsdon. Mr. Wilson
stated that his division headquarters confirmed on May 8,
1996, that such a kit was available through a distributor in
Chicago (Tr. 135-138).
Mr. Wilson stated that during the inspection closeout
conference he informed Mr. Chicky that a kit was being
ordered and asked if a kit could be fabricated by the
respondent. Mr. Chicky informed him that it could be
fabricated but it should be certified by a professional
engineer
(Tr. 138-139). Mr. Wilson confirmed that the MSHA program
information bulletin does not mention company kit
fabrications, or certifications by engineers. A kit was
ultimately obtained and was received at the end of May or
early June, 1996, and it was installed after experiencing
several difficulties in mounting it on the truck (Tr. 140-
142).
On cross-examination, Mr. Wilson confirmed that he inquired
about the availability of a handrail kit for the Euclid
truck after receiving the MSHA memorandum and before the
citation was issued. He believed it was a good idea to
install the kit on the truck if it was available because "it
could possibly prevent a slip or a fall" (Tr. 145-147).
However, the distributor informed him that the kit was
unavailable and his understanding of that term "means there
are none available". He was told the kit was available but
out of stock and could be ordered, and it was his
understanding that "there's no availability of receiving
that" (Tr. 147).
Mr. Wilson stated that even though adequate handholds were
on the truck, he was concerned about a fall of eight and a
half feet by one of his drivers and that "there is a
potential for a slip even though there are adequate
handholds" (Tr. 147). He confirmed that the truck
operator's cab is his working place that is accessed by the
travelway. As a minimum, a driver enters and exits the cab
twice a day depending on the frequency of his breaks (Tr.
148). He agreed the travelway can be slippery in adverse
weather conditions (Tr. 150).
In response to further questions, Mr. Wilson confirmed that
in inquiring about the availability of a retrofit kit, he
was complying with the information in MSHA's program
bulletin (Tr. 151). He further confirmed that company
training programs specifically focus on operating in bad
weather, and he pointed out that the company installed a
small ledge on the truck for the operator to place his lunch
bucket so his hands can be free while climbing up the truck
ladder (Tr. 152).
David Bach, Vulcan's midwest division purchasing agent,
confirmed that he checked on the availability of a retrofit
kit for a Euclid 300 series haul truck with Euclid
distributor McAllister Equipment Company in Elsa, Illinois,
and he identified a copy of a letter dated May 8, 1996, that
he received in response to his inquiry, and it states in
relevant part as follows (Exhibit P-2; Tr. 55):
The R50 handrail kits are available from Euclid. The
kits are not in stock at this time. Current schedule
lead time is 8-10 weeks upon receipt of an order.
Mr. Bach stated that the respondent also uses Mack model 50
trucks in its operations and he was informed by the distributor
that the manufacturer discontinued this particular truck in the
late 1970's and that handrail retrofit kits are no longer
available, and he was told a piece of pipe or beams could be used
as a handrail (Tr. 157).
MSHA's Arguments
MSHA asserts that Vulcan violated section 56.11001, in that
it did not provide a safe means of access to the cited haulage
truck operator's compartment. In support of this conclusion,
MSHA states that the operator uses a walkway approximately 18.5
inches wide and 4 to 5 feet long, to reach the operator's
compartment and does so without any means of protection. MSHA
further states that there is no testimony that Vulcan provided
fall protection to the miner (citing transcript pages 20-26 and
147-148).
MSHA states that the length of the walkway was 8 feet, but
that the measured walkway distance from the access ladder to the
compartment door was four to five feet long, and that the
distance from the walkway to the ground below was 8 feet. MSHA
states that the inspector based the violation on the fact that no
handrail was provided on the walkway.
MSHA asserts that on the day of the inspection, the
inspector "observed that it had rained and the conditions were
slippery and muddy on the walkway (Tr. 20-26)", and that after
interviewing the operator of the truck and observing the working
conditions, the inspector determined that a fall from a height of
8 feet to the ground could result in an injury to the miner.
MSHA concludes that the inspector's significant and
substantial (S&S) finding is clearly supported and must be
upheld. In support of its conclusion, MSHA argues that it is
uncontroverted that Vulcan had knowledge that handrails were
required at the time of the inspection. MSHA asserts that the
testimony and evidence shows that a retrofit kit was available
for the truck, and that the inspector testified that MSHA "did
not require Vulcan to purchase any particular type of retrofit
kit" and "could have built their own handrails" (Exhibits R-1 and
2,
Tr. 30-31) .
MSHA maintains that a reasonably serious injury could likely
follow from an 8-foot fall from the walkway, and that it is clear
that the violation contributed to a measure of danger for the
individuals exposed to the hazard.
MSHA asserts that it is reasonable to conclude that an
injury to the truck operator could have occurred in that the
inspector testified that it was wet at the time of the
inspection, and that "it had rained during the day and there was
mud", and that the inspector observed that the conditions could
have resulted in slipping and falling form a height of eight feet
with no protection from falling to the ground. Under the
circumstances, MSHA concludes that the existing hazard could
result in a substantial possibility of an injury. MSHA cites the
inspector's determination that a leg, back, or head injury was
reasonably likely, depending on how the miner fell, and supports
the inspector's conclusion that it was reasonably likely that a
serious injury would occur if the hazard remained unabated.
Under the circumstances, MSHA requests that the S&S citation and
proposed penalty assessment of $220, be affirmed.
Vulcan's Arguments
Vulcan asserts that it complied with section 56.11001, and
provided a "safe means of access" to the operator's compartment
of the cited Euclid haul truck. Vulcan explains that access to
the operator's compartment is gained by climbing an eight foot
ladder attached to the front of the truck, and then stepping four
feet (approximately two steps) to the door of the operator's
compartment. Respondent points out that personnel negotiate this
route by using the properly located handholds which run
horizontally and vertically along the short route to the
compartment door, and that they also rely on their training
regarding procedures for safely accessing mobile equipment.
Vulcan maintains that until MSHA changed its policy in late
1995, these handhold protections were never deemed to be
inadequate to meet the applicable safe access requirements, and
they are in fact consistent with the recommendations in MSHA's
October 24, 1995, Program Information Bulletin regarding safe
access to mobile equipment which instructs that in the absence of
a retrofit kit,"greater emphasis should be placed on training and
proper location of handholds." Vulcan concludes that in
establishing a new requirement for handrails on haul trucks,
where such a requirement has never before been construed, MSHA
has confused the concept of "safe means of access" with "safer
means of access."
Conceding that at the hearing it did not deny that the
installation of handrails provides an additional level of
protection for accessing mobile equipment, Vulcan maintains that
it was this very consideration that motivated the Company, even
though it was not deemed a mandatory requirement, to follow the
handrail retrofit kit recommendation in the Program Information
Bulletin and install handrails on all trucks which had available
retrofit kits. However, Vulcan maintains out that this
additional level of protection does not decrease the adequacy of
the protection provided by the handholds as a means of safely
accessing the operator's compartment.
Vulcan asserts that MSHA has apparently concluded that
because handrails provide an additional level of protection,
anything else, even the handhold protection which has been the
sole means of safe access protection on this and other Euclid 300
Series trucks of 1980's vintage, is no longer sufficient to meet
the safe access requirement of section 56.11001. Vulcan
maintains that this conclusion is inconsistent with the actual
facts regarding access to the operator's compartment, and with
the fact that its reliance on the properly located handholds and
effective training has resulted in no accidents or injuries
related to movement between the operator's compartment and the
top of the ladder.
Vulcan maintains that MSHA's argument regarding the
inadequacy of handholds is also undermined by the fact that it
has not raised any issue with respect to the relative safety of
the ladder leading up the front of the truck. To the extent any
fall hazard exists, Vulcan points out that the ladder clearly
presents an even greater fall potential - because unlike the
platform at the top the ladder, persons on the ladder absolutely
must hold onto the ladder at all times to keep from falling - yet
no requirement for railings or fall protection has been asserted.
Vulcan asserts that the utility and effectiveness of the
properly located handholds as a means for safely accessing the
operator's compartment is not negated by the fact that handrails
provide an additional level of protection. Vulcan suggests that
while an airbag in a haul truck operator's compartment would
provide more protection than just the seat belts required under
section 56.14131, that fact, however, does not suddenly render
the seat belts inadequate.
Vulcan maintains that in late 1995 or early 1996, MSHA
initiated a new enforcement policy requiring handrails for haul
trucks and that the inspector conceded that this was the case.
Vulcan states that the new policy is revealed in the March 1,
1996, MSHA internal memorandum from Field Office Supervisor Ralph
Christensen to MSHA District Manager Jim Salois, which states in
pertinent part:
During an inspection this week, we were required to
establish the determination for requirements of hand
railings and to apply them as directed recently by
Headquarters. (Exhibit R-2).
Vulcan asserts that the memorandum and handrail
"requirements" were never communicated to the respondent, and the
fact that this was a new interpretation is bolstered by the fact
that the subject haul truck and other similarly configured trucks
like it have been utilized in the mining industry for two decades
with handholds as the sole means of safe access. Yet, no
citations had been issued on this truck previously under section
56.11001, and the inspector, with 18 years of experience, had
never issued a citation under this standard for trucks.
Moreover, the inspector was unaware of any citation ever being
issued for the lack of handrails on trucks. However, at the time
of the inspection, the inspector was fully aware of the October
24, 1995 Program Information Bulletin recommending a "retrofit" -
the term he used in writing the citation.
With respect to the issue of retrofitting handrails on haul
trucks, Vulcan points out that the only information that it was
provided with prior to the issuance of the citation, was the
October 24, 1995 Program Information Bulletin which contains the
following brief comments on the last page of the bulletin:
Many older machines were manufactured with narrow
walkways and handholds for access to cabs and
maintenance areas. When practicable, these machines
should be upgraded to provide adequate fall protection.
For some models, retrofitted handrail kits are
available from the manufacturer and should be
installed. Where kits are not available, greater
emphasis should be placed on training and proper
location of handholds. (Exhibit R-1).
Vulan argues that the bulletin distributed six months before
the citation was issued does not adequately notify the mining
industry that handrails are mandatory requirements under 30
C.F.R. � 56.11001, and in fact does just the opposite. Vulcan
points out that the bulletin qualifies the recommendation for
upgraded fall protection by indicating that this "should" be
accomplished "when practicable," but provides no explanation of
the term "when practicable." To add to the confusion, Vulcan
points out that the final two sentences of the quoted bulletin go
on to say that handrails "should" be installed when retrofit kits
are available from the manufacturer but if they are not available
then reliance on increased training and proper location of
handholds is appropriate.
Vulcan concludes that the bulletin communication only
recommends an upgrade and in no way notifies the mining industry
that the handholds provided on haul trucks will no longer be
deemed an adequate means of safe access under section 56.11001,
and that this was in fact the interpretation of safety manager
Logdson and quarry superintendent Wilson upon reading the
bulletin handrails reference. Further, Vulcan asserts that the
inspector acknowledged that he did not know how an operator could
interpret a mandatory handrail requirement from reading the
bulletin and conceded that it instructs operators with trucks
that do not have retrofit kits available - like 200 Series Trucks
which are similarly configured with similar fall potential - that
handrails do not need to be installed. Vulcan concludes that
this is far from the across-the-board handrail requirement that
the inspector referred to in describing MSHA's enforcement
stance.
Citing the Commission's "reasonably prudent person" notice
test enunciated in Lanham Coal Co., Inc., 13 FMSHRC 1341, 1343
(September 1991), Vulcan concludes that based on the absence of
any MSHA enforcement history with respect to requiring handrails
under section 56.11001 on haul trucks, the accepted practice of
relying on the properly located handholds, and the misleading
statements in the information bulletin, a reasonably prudent
person could not construe from the language of section 56.11001 a
mandatory requirement for handrails on haul trucks.
Vulcan maintains that MSHA's new handrail requirement was a
substantive rule requiring APA notice and comment rulemaking
before implementation. Conceding that courts accord considerable
deference in reviewing agency interpretations, Vulcan concludes
that the new handrail rule should be accorded no deference
because it is inconsistent with past agency enforcement and
policy, citing Morton International, Inc. v. Secretary of Labor,
18 FMSHRC 533, 539-540 (April 24, 1996) rejecting a new MSHA
interpretation of methane regulation in absence of either proper
rulemaking, a policy letter or bulletin setting forth the new
interpretation, or a clear and consistent regulatory history.
Assuming that the lack of handrails constituted a violation,
Vulcan nonetheless concludes that it cannot be deemed to be
significant and substantial (S&S). Citing several
Commission decisions, Vulcan asserts the case law criterion
for making an S&S finding must be based on the particular
facts surrounding the violation.
Vulcan argues that MSHA's belief that the failure to install
a handrail retrofit on the cited truck contributed to its
eight foot fall hazard "theory" posed by persons moving from
the top of the ladder along the four feet of grating to the
operator's compartment specifically ignores the
effectiveness of the properly located handholds that run the
length of the route to the compartment and provide a means
for avoiding and preventing exposure to any fall. Vulcan
further believes that MSHA's hazard theory ignores the fact
that this means of safe access has been utilized safely and
effectively by miners for many years, and MSHA was unable to
present any mine specific evidence of an accident or injury
history related to accessing haul trucks. Vulcan contends
that such a history simply does not exist.
Vulcan further argues that MSHA's information bulletin also
demonstrates the absence of a discrete hazard in that it
provides that haul trucks which do not have manufacturer's
retrofit kits available can rely instead on increased
training and proper location of handholds. Consequently,
trucks like the Euclid 200 Series and the Mack, which have
virtually identical configurations and access requirements
are in compliance if operators do exactly what Vulcan did in
this case. If those identical fall potentials are not
evaluated as even constituting a violation - much less a
hazard - then such evaluation cannot change simply because
Vulcan's truck was built by a manufacturer who put a
retrofit kit together.
Vulcan maintains that there was no reasonable likelihood of
an injury resulting from any contributory hazard in that the
handholds have been used safely and effectively due in large
part to the fact that Vulcan emphasizes safe access
techniques in its training of personnel, and any hazard
which could be associated with moving between the ladder and
the operator's compartment has been dealt with by focusing
on the proper use of handholds, recognizing slip and fall
hazards, and maintaining clean surfaces for accessing the
cab. Additionally, to assist in the proper use of the
handholds and the ladder, a mid-level platform is provided
on the truck so that lunch pails or materials can be set
down so hands are free to grip the ladder and handholds.
Vulcan further points out that there has not been an injury
or accident related to a fall while accessing any haul truck
at the mine, or within the respondent's Midwest Division,
and that it has followed all five of MSHA's suggested
precautions for avoiding slip and fall accidents as set out
in its information bulletin. Vulcan maintains that all of
these precautions were initiated years before the release of
the bulletin and there is no reasonable likelihood that the
use of protections other than handholds would cause injury.
Under all of these circumstances, Vulcan concludes that
there is no basis for the allegation that the alleged
violation is significant and substantial.
Finally, Vulcan asserts that it was not negligent in this
case and acted diligently in maintaining safety and
compliance. In support of this conclusion, it relies on the
following:
1). In providing fall protection on its haul trucks,
Vulcan relied on the properly located handholds which
were provided by the manufacturer.
2). The handholds have been used safely and
effectively on the cited haul truck and other haul
trucks throughout the 1980's and 1990's, and there have
never been any truck access injuries or accidents at
the subject Quarry or in Vulcan's Midwest Division.
3). Throughout the 1980's and 1990's, MSHA has
inspected the subject truck, and all other haul trucks,
none of which have had handrails, and has never issued
a safe access citation.
4). MSHA's October 24, 1995 Program Information
Bulletin was reviewed in good faith by Safety Manager
Logsdon and Quarry Superintendent Wilson and
interpreted as confirming that the handholds were
proper means of safe access and in compliance with MSHA
requirements.
5). Nonetheless, all operations - including the Quarry
- on Mr. Logsdon's recommendation, made a good faith
effort to obtain handrails for their trucks pursuant to
MSHA's recommendation.
6). Superintendent Wilson contacted Rudd Equipment
and, when told that a retrofit kit was not available
for the Euclid 300 series, proceeded to follow the next
recommendation set out in MSHA's Bulletin - increased
safe access training. Mr. Wilson conducted a training
session on safe access to mobile equipment on January
23, 1996.
Vulcan concludes that its management personnel made a
thoroughly good faith effort to address MSHA's concerns even
though they were under the specific impression that they were in
full compliance with applicable mandatory safety requirements,
and MSHA's reference to handrails in the bulletin was simply a
recommendation. Given the absence of any enforcement history
regarding handrails, the absence of any Company injury or
accident experience involving access to haul trucks, and the
confusing and actually misleading information disseminated to the
mining industry via MSHA's information bulletin, Vulcan maintains
that its personnel acted in an appropriate manner in dealing with
the situation.
Findings and Conclusions
Fact of Violation
Vulcan is charged with a violation of mandatory safety
standard 30 C.F.R. � 56.11001, for failing to provide an
outside retrofitted handrail along the elevated walkway of
the cited series 300 Euclid haulage truck. Unlike mandatory
safety standard section 56.15005, which requires the wearing
of safety belts and lines when persons work where there is a
danger of falling, or section 56.11002, which requires
handrails on elevated walkways, section 56.11001, provides
as follows:
� 56.11001 Safe access.
Safe means of access shall be provided and maintained
to all working places.
A "working place" is defined by 30 C.F.R. � 56.2, as "any
place in or about a mine where work is being performed".
On the facts of this case, I conclude and find that the
operator's compartment of the cited truck is "a working place"
within the definition of that term in section 56.2. It is
obvious to me that in accessing his operator's compartment, and
operating the truck from that location, the driver is in a
working place. Further, although the inspector characterized the
grated steel path of travel by the driver in reaching the
compartment as a "walkway" , it is nonetheless also a "travelway"
as that term is defined in section 56.2 ("a passage, walk or way
regularly used and designated for persons to go from one place to
another"). The evidence in this case reflects that on any given
day, a truck driver walks to the ladder and climbs on and off
his truck 2 or 3 times daily. I conclude and find that this
constitutes a regular use of the walkway or travelway by the
driver to access his operator's compartment working place.
In Summit Incorporated, 13 FMSHRC 1511 (September 1991),
former Commission Judge John Morris affirmed a violation of
section 56.11002, because of the failure of the mine operator to
install handrails along the walkway of a backhoe. The walkway
was elevated approximately 4 � feet off the ground, and the
operator's cab was located on the front part of the backhoe, and
one could step out of the cab unto the walkway and walk down the
walkway to the motor compartment. The perceived hazard "involved
any worker who might fall off a walkway and be injured" 13 FMSHRC
1513. These facts appear to be similar to the instant case,
except for the fact that the inspector here cited the rather
general "safe means of access" section 56.11001, rather than the
specific elevated walkway handrail requirement found in section
56.11002, or the "danger of falling" safety belt and line
requirement of section 56.15005.
In Evansville Materials, Inc., 12 FMSHRC 12 (January 1990),
I affirmed a violation of section 56.11001, because the operator
failed to provide a safe means of access to a dredge anchored in
the middle of a river. Employees reached the dredge by means of
a motorized
12 foot "john boat". The inspector issued the citation after
finding that the employees entering or exiting the boat to and
from the dredge had to step up three feet "with nothing available
for a handhold". The inspector testified that in the absence of
any handholds, or other means of getting out of the boat, a
person could fall in to the water or strike their head on the
boat. Although the inspector's suggestion that a ladder be
installed as a means of accessing the dredge from the boat was
not adopted because it was impractical, the violation was abated
after the operator welded handholds to the dredge deck.
In Mechanicsville Concrete, 16 FMSHRC 1444, 1458 (July
1994), former Commission Judge Arthur Amchan affirmed an "S&S"
violation of 56.11001, after finding that a front-end loader that
had a build-up of oil grease on the ladders and platform leading
to the driver's cab exposed the driver to a danger of slipping
and falling 6 to 8 feet. The judge concluded that a safe means
of access was not provided for the driver, but I find nothing to
suggest that protective handrails or other devices were required,
and I assume that the violation was abated by cleaning up the
cited oil and grease build-up.
MSHA's Safe Access to Mobile Equipment Program Information
Bulletin
MSHA Program Information Bulletin No. P95-22, October 24,
1995, Safe Access to Mobile Equipment, was issued "to inform the
mining community about the high number of serious mining
accidents associated with slips and falls from mobile equipment".
The bulletin does not mention any mandatory safety standard, and
in particular, makes no mention of section 56.11001. It states
in relevant part as follows (Exhibit R-1):
Modern equipment is designed to minimize slip and fall
hazards; but large machinery, new or old, can require
access at heights with a fall potential that can cause
serious injury. These concerns should be addressed by
the mine operator, mobile equipment operator, and
maintenance personnel. MSHA has compiled the following
mobile equipment precautions to reduce the number of
slip and fall accident in mining:
Equipment should be inspected for icy, wet,
or oily areas at the start of each shift and
whenever conditions dictate. Before climbing
on, off, or around mobile equipment, footwear
should be free of mud or other substances
that could cause slipping.
Persons climbing on or off mobile equipment
should face the machine. Both hands should
be free for gripping the ladder, handrail, or
handhold. When necessary, a cord, rope, or
other line should be used to lift and lower
lunch pails, thermos bottles, or tools.
Walkways should be no less than their
original manufactured widths, constructed
with slip-resistant surfaces, and securely
attached. Unobstructed access should be
provided to all areas of the machine where a
person might travel.
Handholds or handrails should be within easy
reach at critical locations.
Mobile equipment operators and maintenance
personnel should be trained to recognize slip
and fall hazards to reduce the risk of
accidents.
Many older machines were manufactured with narrow
walkways and handholds for access to cabs, and
maintenance areas. When practicable, these machines
should be upgraded to provide adequate fall protection.
For some models, retrofitted handrail kits are
available from the manufacturer and should be
installed. Where kits are not available, greater
emphasis should be placed on training and proper
locations of handholds. (Emphasis Added).
MSHA's post-hearing brief has no discussion concerning the
bulletin. However, in the course of the hearing, MSHA's counsel
took the position that Vulcan was required to have "a retrofit
kit or something equivalent, some kind of handrail to prevent the
employee from falling" (Tr. 13), and stated as follows at (Tr.
175-176):
* * * the position of the secretary is as follows is
that the regulation --- you interpret the regulation,
safe access, it's clear from the interpretation of that
regulation that a handrail was necessary in this
instance. Everybody recognized that there was a hazard
of someone falling from that platform. And as far as
all these interpretive bulletins, no one's testified
saying that it was required to buy a retrofit kit. You
know, there's nothing in those documents, and that's
what we're going to be saying, Judge, in our brief.
JUDGE KOUTRAS: It says here, though, that for some
models retrofitted handrail kits are available and
should be installed.
ATTORNEY ALVAREZ: Right. Available, Judge. And
someone could have called MSHA and said, do we have to
buy it? No.
JUDGE KOUTRAS: And should be installed.
ATTORNEY ALVAREZ: Should be installed doesn't mean
shall be installed, doesn't mean shall buy it. There's
a difference between the shall and the should.
The concluding paragraph of the bulletin states that "older"
machines equipped with handholds for access to cabs be upgraded
"when practicable" to provide "adequate fall protection", with no
further explanations other than the statements that available
retrofitted handrail kits should be installed, and if not
available, "greater emphasis should be placed on training and
proper locations of hanholds". In short, the bulletin, on the
one hand, seemingly suggests that retrofitted handrail kits, if
available, will provide fall protection, but on the other hand,
if such kits are not available, equivalent protection may be
provided by greater emphasis on training and proper locations of
handholds. Inspector Chicky agreed that a mine operator or Mr.
Wilson reading the bulletin would conclude that this was the case
(Tr. 61-62).
MSHA's assertion that "it is uncontroverted" that Vulcan had
knowledge that handrails were required at the time of the
inspection is without merit. Safety director Logsdon and
quarry superintendent Wilson testified credibly that based on the
language of the bulletin, they had no reason to believe that the
installation of handrails as a means of compliance with
section 56.11001, was mandatory. Their lack of knowledge in this
regard is supported by Inspector Chickey's testimony, which is as
follows at (Tr. 51):
Q. Under this particular program information bulletin,
how would someone know that handrails are required
under that section of part 56?
A. I don't know. I don't know how they would know,
but as an inspector handrails to prevent falls are what
we recommend in numerous places besides haulage trucks.
Given the fact that the cited truck was equipped with
handholds that had obviously been acceptable prior to the
issuance of the citation in this case, and coupled with the fact
that Vulcan had implemented several precautionary training and
preventive measures to address a potential hazard that it has
readily acknowledged, I cannot conclude that any reasonably
prudent person with that knowledge and reading the MSHA bulletin
would recognize or reasonably believe that handholds were no
longer acceptable as a means of complying with section 56.11002,
and that retrofitted handrails were required.
I find nothing in the bulletin that imposes any mandatory or
regulatory obligation on Vulcan to install a retrofitted handrail
on the cited truck in question. Further, I cannot conclude that
the bulletin is a statement of MSHA's policy interpretation or
application of any particular mandatory safety standard. I
conclude that the bulletin was published pursuant to MSHA's
general authority under the Act to disseminate information
concerning a myriad of mine safety and health matters. After
careful scrutiny of the bulletin, I conclude and find that its
purpose is precisely what is stated on the face of the document,
namely, to inform the general mining community about accidents
associated with slips and falls from mobile equipment. The
bulletin further communicates an MSHA compilation of mobile
equipment precautions to reduce such incidents. I further
conclude and find that the bulletin is informational and does not
constitute a substantive "new handrail rule" that requires APA
notice and comment rulemaking. Under the circumstances, Vulcan's
arguments to the contrary ARE REJECTED. Any suggestion by MSHA
that the bulletin imposed an obligation on Vulcan to install
retrofitted handrails as a means of complying with section
56.11001, is likewise REJECTED.
The Alleged Violation
The inspector cited the violation out of concern that a
potential slip and fall hazard of
8 feet existed from the elevated access travelway to the ground
below. He believed such a hazard would exist when the vehicle
operator walks to and from his operator's compartment under wet
or muddy working conditions (Tr. 25). Contrary to MSHA's
assertion in its brief that "on the day of the inspection the
inspector observed that it had rained and the conditions were
slippery and muddy on the walkway", the inspector testified that
at the time of his inspection "I don't believe it was wet or
muddy. It was early in the morning , I don't believe the rain
had started yet. It was probably some dampness due to moisture
from the night" (Tr. 34). He confirmed that the rain started
later in the day (Tr. 35).
The inspector stated that "we look at elevated areas and
generally we suggest handrails or some means of prevention" (Tr.
26). He confirmed that although he has cited violations of
section 56.11001, in "various other situations, elevated areas",
he had never previously cited any trucks for lack of handrails
(Tr. 40, 45).
I take note of the fact that on the face of the citation the
inspector specifically cited the absence of a retrofitted
handrail as the basis for the alleged violation of section
56.11001, and the citation was abated after the handrail was
installed. Notwithstanding his denials to the contrary, there
is a strong inference that the inspector believed the bulletin
mandated the installation of a retrofitted handrail as a means of
complying with section 56.11001.
As noted during the hearing, I find the bulletin to be
rather confusing and contradictory. The listed "precautions"
acknowledge the presence of handholds on mobile equipment, and
caution that "both hands should be free for gripping the ladder,
handrail, or handhold", and that "Handholds or handrails should
be within easy reach at critical locations. Further, the
information provided can reasonably be interpreted to permit the
use of handholds at proper locations and increased emphasis on
training as a means of compliance when handrail retrofit kits are
unavailable. In this case, I conclude and find that Vulcan's
credible evidence establishes that handrail retrofit kits were
not available for the cited truck in question when the violation
was cited.
The critical issue in this case is whether or not a safe
means of access was provided for the cited truck in question. In
this regard, I find nothing in section 56.11001, that mandates
handrails as the only means of providing safe access to the
operator's compartment of the cited truck in question. If MSHA
believes that handrails are mandatory for all haulage truck
elevated walkway areas "across-the -board", it is free to
initiate proper notice and comment rulemaking.
It may also consider citing section 56.11002, which requires
handrails on elevated walkways, or section 56.15005, which
requires the use of safety belts and lines where there is a
danger of falling.
Neither party in this case produced any of the truck drivers
to provide first hand testimony concerning access to the
operator's compartment. Safety director Logsdon testified
credibly that he has climbed on and off the truck in question and
always used the handholds as a means of access. The absence of a
handrail to his rear did not bother him, and as long as he had
good footing and contact with the handhold, he believed the
handhold would prevent a stumble or a fall (Tr. 121-122).
Although Mr. Logsdon indicated that he would not feel comfortable
using only the handholds if the travelway were covered with ice
and snow, he confirmed that he would remove the snow or ice
before accessing the operator's cab (Tr. 121-123).
Vulcan's safety director Logsdon testified credibly that
Vulcan conducts regular safety training and meetings covering all
of the precautions noted in MSHA's bulletin. Quarry
superintendent Wilson confirmed that safety meetings concerning
slip and fall hazards when mounting and dismounting mobile
equipment and methods of climbing are conducted at the mine. He
also confirmed that Vulcan installed a small ledge on the truck
so that the operator can
place his lunch bucket on it and have his hands free while
climbing up the access ladder, and that drivers are required to
conduct pre-operational inspections of the truck (Tr. 123, 134,
152).
Inspector Chickey acknowledged that handholds were in fact
located within easy reach along the access way to the truck
operator's compartment as shown in photographic exhibit
R-4-1, and that the handholds were proper (Tr. 48, 51). The
inspector confirmed that handholds were located directly above
the grated travelway along the top of the windshield of the
operator's compartment and along the top of the compartment
doorway next to the travelway (Tr. 48-50).
The inspector described the walkway as an "open grated
walkway which is one of the better ones to have" (Tr. 35), and
there is no evidence that the walkway was obstructed or otherwise
not in conformance with MSHA's bulletin suggestions.
Although the travelway was 8 feet long, there is no evidence
that the truck operator traveled that distance to access his
compartment, or that his duties required him to walk along
the entire travelway. Indeed, the inspector confirmed that
no one would walk beyond the compartment door, and he
described the potential fall hazard zone as the area between
the top of the truck ladder to the entrance of the
operator's compartment, a distance of 4 to 5 feet (Tr. 25,
50). Further, the photograph exhibit reflects that the
handrail installed to abate the citation does not extend
beyond the doorway to the operator's compartment.
I conclude and find that the location of the alleged absence
of a safe means of access was the 4 to 5 foot distance that
the truck operator would walk to reach his operating
compartment after climbing the ladder to board the truck. I
further conclude and find that a driver would only need to
take two or three steps from the ladder to reach the
compartment.
The inspector confirmed that handholds were located within
easy reach along the access to the cited truck compartment.
A handhold was located directly above the platform at the
top of the ladder, along the top of the windshield, and
along the top of the compartment door next to the platform
(Tr. 48-50). Thus, I conclude and find that at each step of
the way, from the top of the truck ladder to the door of the
driver's compartment, a driver taking two or three steps to
travel the 4 or 5 feet to the compartment door would have
handholds readily and easily within reach for his use.
Under the circumstances, and notwithstanding the absence of
a handrail, I conclude and find that the handholds provided
a safe means of access for the truck operator to reach the
operating compartment, and that this means of access was in
compliance with section 56.11001. Accordingly, I conclude
that MSHA has not shown that Vulcan failed to provide a safe
means
of access in this case, and the contested citation IS
VACATED.
ORDER
Based on the foregoing findings and conclusions, IT IS
ORDERED AS FOLLOWS:
1). Vulcan's contest of the alleged violation cited in
section 104(a) "S&S" Citation No. 4105681, May 7, 1996,
30 C.F.R. � 56.11001, IS GRANTED.
2). Section 104(a) "S&S" Citation No. 4105681, May 7,
1996, citing an alleged violation of mandatory safety
standard 30 C.F.R. � 56.11001, IS VACATED, and MSHA's
proposed civil penalty assessment of $220, IS DENIED
and DISMISSED.
George A. Koutras
Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of
the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St.,
8th Floor, Chicago, IL 60604
(Certified Mail)
William K. Doran, Esq., Smith,
Heenan & Althen, 1110 Vermont
Avenue, N.W., Washington, D.C.
20005 (Certified Mail)
/mh