<DOC>
[DOCID: f:lk200194.wais]
TILDEN MINING COMPANY L.C.
LAKE-2001-94-RM
January 3, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 3, 2002
TILDEN MINING COMPANY L.C., : CONTEST PROCEEDINGS
Contestant :
: Docket No. LAKE-2001-94-RM
v. : Citation No. 7841254; 1/31/2001
:
SECRETARY OF LABOR, : Docket No. LAKE 2001-95-RM
MINE SAFETY AND HEALTH : Citation No. 7841255; 1/31/2001
ADMINISTRATION, MSHA :
Respondent : Docket No. LAKE 2001-96-RM
: Citation No. 7841256; 1/31/2001
:
: Docket No. LAKE 2001-97-RM
: Citation No. 7841257; 1/31/2001
:
: Docket No. LAKE 2001-98-RM
: Citation No. 7841258; 1/31/2001
:
: Docket No. LAKE 2001-99-RM
: Citation No. 7842159; 1/31/2001
:
: Docket No. LAKE 2001-100-RM
: Citation No. 7842160; 1/31/2001
:
: Docket No. LAKE 2001-101-RM
: Citation No. 7842161; 1/31/2001
:
: Docket No. LAKE 2001-102-RM
: Citation No. 7842162; 1/31/2001
:
: Docket No. LAKE 2001-103-RM
: Citation No. 7841263; 1/31/2001
:
: Docket No. LAKE 2001-104-RM
: Citation No. 7841264; 1/31/2001
:
: Docket No. LAKE 2001-105-RM
: Citation No. 7841265; 1/31/2001
:
: Docket No. LAKE 2001-106-RM
: Citation No. 7841266; 1/31/2001
:
: Docket No. LAKE 2001-107-RM
: Citation No. 7841267; 1/31/2001
:
: Docket No. LAKE 2001-108-RM
: Citation No. 7841268; 1/31/2001
:
: Docket No. LAKE 2001-109-RM
: Citation No. 7841269; 1/31/2001
:
: Docket No. LAKE 2001-110-RM
: Citation No. 7841270; 1/31/2001
:
: Docket No. LAKE 2001-111-RM
: Citation No. 7841271; 1/31/2001
:
: Docket No. LAKE 2001-112-RM
: Citation No. 7841272; 1/31/2001
:
: Docket No. LAKE 2001-113-RM
: Citation No. 7841273; 1/31/2001
:
: Docket No. LAKE 2001-114-RM
: Citation No. 7841274; 1/31/2001
:
: Docket No. LAKE 2001-115-RM
: Citation No. 7841275; 1/31/2001
:
: Docket No. LAKE 2001-116-RM
: Citation No. 7841276; 1/31/2001
:
: Docket No. LAKE 2001-117-RM
: Citation No.7841277; 1/31/2001
:
: Docket No. LAKE 2001-118-RM
: Citation No. 7841278; 01/31/2001
:
: Docket No. LAKE 2001-119-RM
: Citation No. 7841279; 1/31/2001
:
: Docket No. LAKE 2001-120-RM
: Citation No. 7841280; 1/31/2001
:
: Docket No. LAKE 2001-121-RM
: Citation No. 7841281; 1/31/2001
:
: Docket No. LAKE 2001-122-RM
: Citation No. 7841282; 1/31/2001
:
: Tilden Mine
: Mine ID 20-00422
DECISION
Appearances: R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Contestant;
Christine Kassak Smith, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for the Secretary.
Before: Judge Weisberger
Statement of the Case
These consolidated cases are before me based on Notices
of Contest filed by Tilden Mining Company, L.C., (Tilden),
challenging the issuance by the Secretary of Labor of various
citations alleging violations of 30 C.F.R. � 14107(a). Pursuant
the notice, the cases were heard in Marquette Michigan on June 12
and 13, 2001. Subsequent to the hearing, the parties each filed
Proposed Findings of Fact and a Brief. The parties also filed
replies to their adversary's initial filings.
Findings of Fact and Discussion
I. Background
1. Tilden mines and processes ore bearing iron into iron
ore pellets.
2. These cases involve guarding conditions at the tail
pulley on 14 No. 22 conveyors, the head pulleys on four of the
No. 26 conveyors, the take-up and wrap-over pulleys on 13 of the
No. 26 conveyors, and the tail pulley on the 26-A conveyor, all
located in the balling area of the Pellet Plant at Tilden.
Balling attendant, maintenance workers, and lube technicians work
in this area.
3. Concentrate containing 65% iron, a fluxing agent, and
a binder is fed into balling drums by each of the No. 22
conveyors - Nos. 22-1 through 22-14. There is one such conveyor
for each balling drum. The drums form the concentrate into
"green balls" or "unfired" pellets for further processing.
4. These balls exit the drums and proceed through a
"scalper" or sizing mechanism onto one of the No. 26 conveyor
belts - Nos. 26-1 through 26-14. There is one such conveyor for
each balling drum.
5. These belts deposit the balls onto either the Nos.
26-A, 26-B, 26-C or 26-D conveyor belts.
6. The Nos. 26-1 through 26-14 conveyor belts, and the
No. 26-A conveyor belt are at an intermediate level in the plant
below the level where the No. 22 conveyors and the balling drums
are located.
7. The washdown level of the Pellet Plant is located
below the intermediate level where the No. 26 conveyors are
located. There is a bin area on a level above the main balling
drum floor.
8. There are two areas of balling lines. One is called
"Tilden 1" and the other is called "Tilden 2". Tilden 1 contains
balling line Nos. 1 thru 7 and Tilden 2 contains balling line
Nos. 8 thru 14. These lines are located on opposite sides of the
same level of the plant. The area immediately between them is
open to the washdown floor.
9. These balling mill lines, with their associated
conveyors, were installed in the 1970s.
10. The guarding on the various pulleys that was in place
at the time of the inspections at issue had been inspected by
MSHA on numerous occasions. The guarding on the No. 22 tail
pulleys was raised to its current height in 1980 as a result of
an MSHA inspection and had been approved by MSHA inspectors at
the time. Based on the uncontradicted and unimpeached testimony
of Bradley Nelson, Tilden's plant repairman, I find that
approximately seven years ago these guards were reduced in height
to lighten them to make them easier to move.
11. The conveyors and the guarding at issue were
routinely inspected twice a year by MSHA inspectors, and no
citations for the No. 22 conveyor tail pulleys, the No. 26 head
pulleys, the No. 26 take-up and wrap-over pulleys, and the No.
26-A tail pulley had been issued since 1980.
12. During his September, 2000 inspection, MSHA inspector
Steve Field gave a verbal advisory to Douglas Brazeau, an agent
of Tilden, that guards along the No. 22 line of conveyor belts
were inadequate.
13. However, Field did not give specific advice as to
each numbered conveyor. However, he advised Brazeau to extend
the guards on any conveyor on the No. 22 line of conveyors that
was "... similar to... the No. 22 conveyor we looked at.". (Tr.
Vol. I, 29)
14. Brazeau asked Field how long Tilden had to get the
extension of the guard done, and Field told him, if they were not
extended they would be cited in a follow-up inspection.
15. Brazeau did not start to change these guards because
he had not completed the job of modifying other guards cited
before Field returned to further inspect the plant.
16. It take one or two days to make a set of guards for a
tail pulley.
17. In December, 2000, MSHA inspector Dan Hongisto
reminded Jim Paquette, another agent of Tilden, regarding Field's
earlier advisory, in September 2000, pertaining to improving some
guarding that he had found to be inadequate. Hongisto told
Paquette that he expected that Field would issue citations if
these conditions were not corrected. However, Hongisto did not
identify the specific conveyors at issue.
18. In late December, 2000, Paquette told Leonard Parker,
Tilden's manager of safety and environment about the conversation
he had with Hongisto regarding the latter's concerns about
guarding at the Tilden Mine.
19. Parker and Paquette then made a general inspection of
the Tilden pellet plant balling area, the area of the subject
citations, of the adequacy of the guards to prevent accidental or
inadvertent contact, and determined that the existing guards were
adequate.
20. In late January 2001, Field inspected the Pellet
Plant.
21. On February 2, 2001, Field issued the 29 citations
which are at issue in these proceedings and which involve alleged
violations of 30 C.F.R. Section 56.14107(a). He based his
determination on his belief that Section 56.14107(a) required
guarding that would prevent all contact with the moving parts of
the cited No. 22, and No. 26 conveyor belts in the general area
of the cited belts.
22. The areas that were cited along the No. 22 conveyor
line in January, 2000, were the same as those that had been
identified by Field in his September, 2000 advisory to Brazeau.
II. The validity of the Citations at Issue
At issue in these consolidated cases is the validity of 29
citations alleging violations by Tilden of 30 C.F.R. Section
56.14107(a) which provides that "[m]oving machine parts shall be
guarded to protect persons from contacting ... drive, head, tail,
and take-up pulleys ... and other similar moving parts that can
cause injury". (Emphasis added.) The cited violative conditions
relate to the tail pulleys on the No. 22 conveyors, the head
pulley on a No. 26 conveyor, the head, take-up and wrap-over
pulleys on the No. 26 conveyors, and the tail pulley on the left
side of the 26-A conveyor belt. In essence, the weight of the
evidence establishes, with regard to all cited conditions, that,
either due to the existence of guards in place, including mesh
guards, rails, and other structures, or the location of the
moving machine parts in relation to miners accessing the area,
contact with the moving machine parts was unlikely. Indeed, it
was stipulated to by the parties, prior to the hearing, that all
the citations allege that the likelihood of injury is
"unlikely". (Jt. Ex.. 1, par. 9).
A. The Secretary's Position
It is the Secretary's position, as set forth in her Post-
Trial Brief, that regarding all the cited conditions, although
contact with moving parts may have been "unlikely", they were not
in compliance with Section 14107(a), supra, because the
conditions were such that a person could have made contact with
the moving machine parts. In support of its position, the
Secretary argues that, (1) its enforcement action is consistent
with the language of the standard and the protective purposes of
the Act; (2) that legislative history demonstrates congressional
intention to prevent, not merely to minimize violative
conditions; (3) that the Secretary's interpretation best promotes
the protection of Tilden's miners, as excluding the cited guards
would thwart the protective purposes of the Act; (4) that,
accordingly, the Secretary's interpretation deserves deference;
and (5) that the Mine Act provides for liability without
fault[1].
For the reasons that follow, I do not find much merit in the
Secretary's arguments and find that it has not been established
that the cited conditions were in violation of Section 14107(a)
supra.[2]
1. The Preamble to Section 56.14107(a),
supra, and MSHA's Program Policy Manual
In support of its position that, in essence, the Section
56.14107(a), supra, requirement for guarding is not limited to
situations of protection against inadvertent or accidental
contact, but encompasses conditions where contact can be made,
the Secretary strongly relies on the preamble to the Federal
Register ("preamble") which contains a discussion and summary of
the final promulgated version of Section 56.14107(a) (56 Fed.
Reg. 32509, Aug. 25, 1988). The preamble notes that some
commenters suggested that "... the standard also permit an
exception for situations where the exposed moving parts are
`located out of reach' " (id.). The next sentence of the
preamble states as follows: "[h]owever, this phrase would create
uncertainty as to the standard's application." In not accepting
the exception urged by the commenters, the preamble states as
follows: "[u]nder the final rule, the standard applies where the
moving machine parts can be contacted and cause injury." (Id.)
The preamble further notes that some commenters believed
"... that guards should provide protection against inadvertent,
careless, or accidental contact, but not against deliberate or
purposeful actions. ...[and that] guards which totally enclose
moving parts [are] counterproductive to other safety
considerations ... ." (Id.) After noting this opinion, the
preamble sets forth the following language:
[i]n reviewing the statistics in which persons working
in mines have lost hands, arms, legs, and their lives
to moving machine parts, MSHA notes that in most of
those instances the persons were performing deliberate
or purposeful work-related actions with the machinery.
The installation of a guard to enclose the moving
machine parts would have prevented most of those
injuries." (Id.) (Emphasis added.)
Thus, it would appear that it was recognized in the preamble
that guarding is required not to prevent all contact but would be
limited to preventing either deliberate work-related actions or
purposeful work-related actions. In the instant proceeding no
evidence has been adduced as to any scenario wherein contact
with moving parts could result from situations where a miner is
engaged in the performance of either deliberate or purposeful
work-related actions. While contact can physically be made with
the moving parts at issue, there is no evidence relating such
contact with the performance of either deliberate actions or
purposeful work-related actions.
I am cognizant of the second sentence of the preamble
regarding the objective of Section 56.14107(a) supra, as follows:
"The Standard clarifies that the objective is to prevent contact
with these [moving] machine parts." (Id.) However, it is clear
that the expressed objective was not to prevent all contact as
this word was omitted from this sentence. Further, the scope of
contact to be guarded against appears, as noted above, to be
based on statistics concerning injuries resulting from moving
machine parts, and thus appears to be limited to those contacts
resulting from either deliberate or purposeful work-related
actions.
In addition, the Secretary relies upon MSHA's Program Policy
Manual ("PPM") which contains the following language pertaining
to Section 56.14107(a), supra: "[a]ll moving parts identified
under this standard are to be guarded with adequately
constructed, installed and maintained guards to provide the
required protection" (Jt. Ex. 1, par. 26). However, it is most
instructive, that, regarding when Section 56.140107(a) supra,
should be cited at conveyor locations the PPM provides as
follows: "[t]his standard is to be cited when a guard at conveyor
locations does not extend a distance sufficient to prevent any
part of a person from accidentally getting behind the guard and
becoming caught, or in those instances when there is no guard at
the conveyor-drive, conveyor-head, conveyor-tail, or conveyor
take-up pulleys" (Emphasis added.) (Jt. Ex.1, par. 26). Thus the
PPM does not provide, as argued by the Secretary, that Section
14107(a), supra, is to be cited in all situations where persons
can contact moving parts that cause injury. Rather it indicates
that Section 14107(a), supra, is to be cited where an existing
guard is not sufficient to prevent accidental conduct, or where
there is not any guard present.
Thus, the preamble and the PPM relied on by the Secretary do
not unequivocally establish that Section 14107(a), supra, was
intended to require guarding to prevent all contact.
2. Deference
In essence, it is the Secretary's argument that the Metal
Non-Metal Division of MSHA interprets Section 56.14107(a) supra,
as encompassing guarding against any contact not just merely
accidental contact, and that this interpretation must be deferred
to. In this connection, the Secretary cites case law that
established that an adjudicatory body should give great deference
to an agency's interpretation of a regulation promulgated by the
agency, and that this interpretation must be accepted as long as
it is not plainly erroneous or inconsistent with the language or
purpose of the regulation (see, Martin v. OSHRC, 499 US 144, 148-
149 (1991), and other Court of Appeals and Commission cases cited
on pages 31 and 32 of the Secretary's Brief). However, the
Secretary has not set forth with any precision or particularity,
the specific citation and embodiment of its authoritative
interpretation of the scope of Section 56.14107(a) supra. In
this connection, the Secretary cites the PPM and Preamble to
Section 56.14107(a) supra, and argues, that "policy issuances,
and the regulation's background," support her interpretation.
It does not appear that these two documents are unequivocally
supportive of the Secretary's interpretation (I(A)(1), infra).
Nor is it asserted by the Secretary that the PPM and/or Preamble
specially embody her interpretation and constitute her
authoritative interpretation. Hence, the Secretary has not
convincingly set forth the authoritative source of its
interpretation, i.e., precisely where it is set forth, and what
specific language does it contain. Further, the PPM and the
preamble are not unambiguously consistent with each other, and
consistent with the Secretary's argument set forth in its brief.
(See, I(A)(1), infra.)
I take cognizance of the deference cases set forth on pages
31 and 32 of the Secretary's Brief. However, it is significant
to note that the more recent cases, do not set forth a general
rule that the adjudicatory body is mandated to defer to the
Secretary's interpretation of the regulation, as long as that
interpretation is reasonable and consistent with the Act. Instead
these cases discuss various factors that must be considered in
evaluating the weight to be accorded the Secretary's
interpretation. In United States v. Mead 533 U.S. 218, 150
L. Ed. 2nd 292 [No. 99-1434], (June 18, 2001), the Court
analyzed the degree of deference to be accorded an agency's
construction of its statutory scheme under the doctrines
enunciated in Chevron, U.S.A. Inc. v. Natural Resources
Defense Council 467 U.S. 837 (1984). The Court, in
Mead, 150 L. Ed. 2nd, supra, at 304, referring to Skidmore v.
Swift & Co. 323 U.S. 134 (1944), stated as follows: "The fair
measure of deference to an agency administering its own statute
as been understood to vary with circumstances, and Courts have
looked to the degree of the agency's care, its consistency,
formality, and relative expertness, and to the persuasiveness of
the agency's position ... ." (Emphasis added.)
I note that Mead, supra, involved the issue of the degree of
deference to be accorded an agency's interpretation of a statute,
whereas the case at bar involves the degree of deference to be
accorded an agency's interpretation of its own regulation.
However, it would appear that the rationale in Mead, supra,
setting forth that the degree of deference varies with the
circumstances of the case, would seem to apply to equal force to
the case at bar. Indeed, in Akzo Nobel Salt v. FMSHRC 212 F. 3rd
1301 (D.C. Cir. 2000), the Court of Appeals noted, in a split
decision, that the Commission's interpretation of 30 C.F.R. �
57.11050 was the same as that espoused by the Secretary before
the Court of Appeals. The Court of Appeals in Akzo, supra, stated
that generally it defers to an agency's interpretation of its own
regulations, unless that interpretation is erroneous or
inconsistent with the regulation. However, the Court of Appeals,
in vacating the Commission's decision and remanding the matter to
obtain from the Secretary her authoritative interpretation,
qualified the general applicability of deference to the
Secretary's interpretation as follows: "... we recognize that
Courts defer to agency interpretations of ambiguous regulations
first put forward in the course of litigation, but only where
they`reflect the agency's fair and considered judgement on the
matter in question' Auer v. Robbins 519 U.S. 452, 462, 117 S. Ct.
905, 137 L. Ed. 2nd 79 (1997), Church of Scientology of
California v. IRS, 792 F. 2nd 153, 165 (D.C. Cir. 1986)
(Silberman, J., concurring);" (Akzo, supra, at 1304).
Significantly, the Court in Akzo, supra, went on to reason
as follows:
In assessing the likely of such `considered judgement'
we have noted, for example, whether the agency had
previously `adopted a different interpretation of the
regulation or contradicted its position on appeal,'
National Wildlife Federation v. Browner, 127 F. 3rd
1126, 1129 (D.C. Cir. 1997), as, of course, the
Secretary has here. Compare Association of Bituminous
Contractors, Inc. v. Apfel, 156 F. 3rd 1246, 1252 (D.C.
Cir. 1998), deferring to an agency's litigation position
where it appeared simply to articulate an explanation of
long standing agency practice. (Id.)
(See also, Nolichuckey Sand Co., Inc., 22 FMSHRC 1057, at 1062,
(2000), citing Auer, supra, and Akzo, supra).
In the case at bar, if it is the Secretary's implicit
argument that either its litigation position and/or the opinion
of the inspector who issued the citation being contested,
constitute the Secretary's interpretation that must be deferred
to, this argument fails as it has not been established that
these interpretations reflect MSHA's "considered judgment". The
Court of Appeals in Akzo supra, in its analysis of an agency's
considered judgement focused on whether the agency had previously
adopted a different interpretation or whether it was articulating
an explanation "... of long standing agency practice ... .".
(Akzo, supra, at 1304.) In contrast, in the case at bar, the
Secretary's litigation position and the interpretation of the
issuing inspector, is not in harmony with MSHA's long standing
agency practice. I note that the conditions cited have been in
existence for several years and had not been cited in past
inspections. Although an agency may change its policy (see,
Thomas Jefferson University v. Shalala, 512 U.S. 504, 515-18
(1994), the Secretary herein has not articulated any rationale
for her having changed her enforcement policy regarding citation
of the conditions at issue. Such a change appears to be as a
result of the thought processes of one individual, i.e., the
issuing inspector, and that the Secretary's litigation position
is a "post hoc rationalization", to which the Court of Appeals i
n Akzo, supra, indicated that it would not defer to. (Akzo,
supra, at 1304-1305 citing Martin, supra, at 156. )
Therefore, although the Secretary's interpretative position
has been considered, I find that it has not been established to
be either a considered judgement of the agency, or unequivocally
set forth in any authoritative interpretation. Thus, its position
need not be deferred to.
B. The Commission's Decision in Thompson Brothers
Coal Co., 6 FMSHRC, 2094 (1984)
Further, in evaluating the Secretary's position regarding
the scope of Section 56.14107(a) supra, and its applicability to
the conditions at issue, I am guided by the Commission's decision
in Thompson Brothers Coal, Inc. 6 FMSHRC 2094 (1984), which
involved the Commission's review of a decision by a Commission
Judge (4 FMSHRC 1763 (September 1982)), who had found that the
lack of guarding at certain fan-blades and air-compressor belts
and pulleys located in front of a truck's engine, violated 30
C.F.R. Section 77.400(a) which, in essence, requires the guarding
of moving machine parts "... which may be contacted by persons,
and which may cause injury to persons ... .".[3] The Judge's
conclusion was based upon the testimony of the inspector who
issued the citations at issue, that a miner checking or repairing
the engine while the truck was stationary and the engine was
idle, could contact unguarded cooling fan and air compressor
belts, and sustain an injury. 4 FMSHRC at 1763. In affirming
the Judge, the Commission concluded that the guarding standard at
issue (Section 77.400(a), supra.) "... contemplates guarding of
machine parts subject to the standard where there is a reasonable
possibility of contact and injury." (6 FMSHRC supra at 2096.)
The Commission, in reaching its conclusion, reasoned that use of
the word may in the key phrases in the standard at issue, i.e.,
"may be contacted" and "may cause injury", (Emphasis added.) "...
introduces considerations of the likelihood of the contact and
injury, and requires us to give meaning to the nature of the
possibility intended." (6 FMSHRC supra at 2097.) Significantly,
the Commission went on to find as follows: "[W]e find that the
most logical construction of the standard is that it imports the
concepts of reasonable possibility of contact and injury,
including contact stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness." (Emphasis
added.) (Id.) The Commission further set forth that the
application of this test, "cannot ignore vagaries of human
conduct", and "... requires taking into consideration all
relevant exposure and injury variables, e.g., accessibility of
the machine parts, work areas, ingress and egress, work duty,
and as noted, the vagaries of human conduct." (Emphasis added.)
(Id.) In Thompson, supra, in concluding that the evidence
established a reasonable possibility of contact and injury, and
hence a violation under the cited guarding standard, the
Commission noted following facts: (1) that on occasion mechanics
could be called on the examine or work on the engines while the
engines were idling; (2) that a miner checking or working on the
engine while the engine was running could come in contact with
any of the cited machine products; (3) that the operator's
witnesses all agreed that contact was possible even though they
regarded it as unlikely, and that "[a]t a minimum, contact could
result from such causes as a sudden movement, stumbling, or
momentary distraction or inattention". (Id). The Commission
then summarized the facts presented which led to its conclusion
as follows: "[G]iven the physical accessibility of the engine
compartment, the fact that mechanics check and work on running
engines, and that contact with the cited machine parts could
occur, we conclude that a reasonable possibility of contact
existed." (Id. at 2097.)
In the case at bar, all of the parts cited, were in area
where, at times, miners were present. However, there is no
evidence of any work duties of any miners that would require them
to be in a situation where there was a reasonable possibility of
contact with exposed moving parts. Specifically, there is no
evidence in the record, in contrast to Thompson, supra, that
miners are required to check and work on running equipment in
areas of close proximity to the exposed parts.
1. The No. 22 Tail Pulleys (Citation Nos.
7841254 through 7841267, Docket Nos. LAKE 2001-94 through LAKE
2001-107)
Essentially, the record is clear that a miner could contact
the tail pulleys at the twenty-two conveyor in spite of existing
guarding and railing. However, in order to contact any moving
parts, a miner would have had to approach the guard at
approximately chest level and reach over and down in order to
deliberately contact the moving parts. The top of the tail
pulley itself was 10 inches below the top of the guard (not
including the rail) and the pinch point where the belt went
around the pulley was 24 inches below the top of the guard (not
including the rail) and 13 inches horizontally away from the
guard. Although persons have access to the floor grating, which
is somewhat adjacent to the tail pulleys, there is no evidence
in the record relating such awkward contact to any purposeful or
deliberate work-related activity. The belts and pulleys are not
in operation when maintenance is performed on the pulleys. Also,
regular lubrication of the pulleys is performed by way of grease-
lines that extend beyond the guards so that the guards fully
protect a person performing this operation from contact with the
pulleys.
On the other hand, Bradley G. Nelson, one of Tilden's plant
repairmen who performs maintenance, testified that the belts are
adjusted when the belt is in operation, by applying a wrench to
bolts located on the tail pulleys. However, on cross-
examination, he indicated that this maintenance is performed
while the guards are still in place, inasmuch as the bolts
protrude through holes in the guards and extend beyond the
guards. Thus, protection is still provided to prevent contact
with the pulleys.
Field opined that, despite the awkwardness of making contact
with the pulley which could be physically accessed only by a
miner reaching down 24 inches in a vertical distance then
reaching out 13 inches in a horizontal distance, there could be
inadvertent or accidental contact or contact through
inattentiveness. Upon continuing cross-examination, he agreed
that accidental conduct would have to be by somebody "walking by
very close to the guard".(Tr. Vol II, 136), and that the normal
walkway is on the right side of the conveyor. When asked whether
miners would walk "right up against the conveyor" (id.), he said
they could. However, significantly, he added in response to
additional questioning, as follows: "I don't know that anybody
would." (Tr. Vol I, 137). Thus, I find Field's testimony to be
of insufficient probative value to establish that there was a
reasonable possibility of accidental or inadvertent contact.
I note the testimony of Field that, regarding the No. 22-13
conveyor belt, that one "could stumble against the guard and fall
into the pulley." (Tr. Vol I, 31) [4] Aside from this
conclusionary, statement he did not explain the basis for his
opinion. In the absence of any explanation for his opinion, it
is difficult to understand how a person stumbling would have any
part of his body go over an existing guard that was 50 inches
high, extend a further 13 inches in a horizontal distance, and
then extend downward approximately 10 inches to contact the top
of the tail pulley.
In this vein, I note, the testimony of Leonard R. Parker,
Tilden's manager of safety and environment, who worked on the
installation of the conveyors at issue, that there would not be
any potential for a person walking to the right of the conveyor,
or behind the conveyor, and stumbling, to contact the conveyor
tail pulley. I accord more probative value to Parker's opinion,
rather than Field's opinion, as the former provided a clear basis
for his opinion as follows: "I guess, put in simple terms, it's
simple physics, a body in motion tends to stay in motion. If you
are going parallel to the guard, you would fall forward going
down and forward parallel to the guard, not into the guard."
(Tr. Vol II, 39).
Taking into account all the above, I conclude that as a
consequence of a lack of entire guarding of the tail pulleys at
issue, injury from contact was unlikely, contact was unlikely,
and that it has not been established that there was a reasonable
possibility of contact with any of the moving parts of the No. 22
tail pulleys. Accordingly, I find that it has not been
established that conditions at these areas violated Section
14107(a) supra. Hence, the Notice of Contest filed regarding
Citation No. 7841266 is sustained. Since the parties agreed that
the disposition of this citation should apply to the following
citations: 7841254 through 7841267, the Notices of Contest filed
regarding these citations are sustained.
2. Head pulleys on the No. 26 Conveyors
(Citation Nos. 7841268 thru 7841271, Docket Nos. 2001-108 thru
111)
Essentially, it is the Secretary's position that the head
pulley, which is the subject of Citation No. 7841268,[5] was not
sufficiently guarded because a person could contact the pulley or
its pinch-point. This assertion is based upon (1) Field's
testimony by that balling area attendants, lube technicians, and
maintenance personnel could contact that head pulley, and (2)
Nelson's testimony that he could contact the pulley.
Specifically, he indicated that as he is 68 inches tall, he could
reach upward approximately eight feet. However, the Secretary
did not adduce any evidence relating any contact to any
purposeful, deliberate or work-related activities. Further, even
Field conceded that it was unlikely that a person could contact
the pulley. Indeed, as explained by Tilden's witnesses, Parker,
and James Paquette, whose testimony in these regards has not been
contradicted, impeached, or rebutted, in order to contact the
moving head pulley, a person would have to overcome the trip-
cord, a conveyor belt, a pulley or an idler. I also find
persuasive Paquette's testimony that due to the height of the
pulley, being approximately 80 inches above the ground, it is
doubtful that a person could contact the pulley if one were to
fall down in the area.
Also, vertical and horizontal access to the head pulley was
limited somewhat due to the presence of two vertical steel
structures that left an opening between them of only eight to
10 inches measured on a horizontal plane. Moreover, since the
pulley at issue is above another conveyor belt, and extends more
than one foot beyond it, the emergency stop-cord on the lower
belt would be between a miner and the head pulley at issue.
Hence, the possibility of contact would be further limited.
For these reasons I find that although the head pulleys
were unguarded, it has not been established that there was
reasonable possibility of contact with these moving parts (see,
Thompson, supra). Thus, I find that it has not been established
that the conditions at the cited head pulleys violated Section
10407(a) supra, and the Notices of Contest regarding Citation
Nos. 7841268 through 7841271 are sustained.
3. Take-Up and Wrap-Over Pulleys on the No. 26
Conveyor Belt (Citation Nos. 7841269 thru 7841281, Docket Nos.
LAKE 2001-109 thru LAKE 2001-121)
Essentially, it is the Secretary's position that contact
could be made with the take-up and wrap-over pulleys of the No.
26 conveyor line, and thus the citations issued for these
violations should be affirmed.
Thirteen citations[6] involve the adequacy of guarding at
sets of two wrap-over pulleys and one take-up pulley, which, in
combination, act the keep tension on the conveyor belt located
above these pulleys. The take-up and wrap-over pulley units were
protected by railings or expanded metal guards on three sides.
The bottom area of the take-up wrap-over pulley units located
above a grating where a person might stand, are separated from
the floor grating area by a double-rail (Citation Nos. 7841269,
7841271, 7841272, 7841275, 7841279, 7841280, and 7841281). In
another cited unit there was a single-rail between the deck area
and the take-up wrap-over pulley unit. (Citation No. 7841274.)
A triple-rail was between the deck area and the take-up wrap-over
pulley unit cited in Citation No. 7841277. Regarding the last
four units cited (Citation Nos. 7841270, 7841276, 7841273,
7841278), a metal screen was between the deck area and the take-
up wrap-over pulley unit.
a. The Wrap-over Pulleys
The grating or deck area was separated from the take-up
wrap-over pulley unit by a steel I-beam 19 inches high. The
front wrap-over pulley of each unit was 80 inches above the deck
grating, and recessed back from the edge of a rail or screen by
approximately one foot. The second wrap-over pulley was located
behind the front wrap-over pulley and the take-up pulley. There
was a limited amount of traffic in the area under the conveyor
belt where the take-up wrap-over pulleys were located. However
there is insufficient evidence in the record to establish a
relation between purposeful or work-related activities in the
area and contact with these pulleys. The areas were accessed by
miners to perform lubrication. However, this operation was
performed by way of extended grease-lines which permitted
lubrication from the walkway parallel to the belt. Although
there was a possibility of contact with the wrap-over pulleys,
the evidence fails to establish that such contact would have been
reasonably possible. (See Thompson, supra) Due to the height of
the wrap-over pulley, being approximately 80 inches above the
floor grating where a person would stand, even allowing for the
vagaries of human conduct, the record does not establish any
basis for a conclusion that these pulleys could have been
contacted by a person stumbling or being careless or inattentive.
The only way for a person standing next the mesh guard to contact
the wrap-over pulley, would have been to reach around or under
the railing or over the top of the railing one foot to make
contact. There is nothing in the record relating the possibility
of this type of contact to any purposeful or work-related
activity.
b. The Take-up Pulleys
Each take-up pulley, located between two wrap-over pulleys,
was only 36 inches above the level of the grating. However, for
the most part, the tail pulleys were covered by a conveyor belt,
and recessed two feet behind either railings or expanded metal
screen guards. Further, contact with the take-up pulleys from
below, i.e., from the deck were a person might stand, was limited
due to the presence of either rails, or a metal screen. Moreover,
the fact that the take-up pulleys were recessed two feet
horizontally behind either railings or metal screen guards, would
further limit the possibility of contact. Also, as set forth
above, (III(C)(1)), there is no evidence relating the possibility
of contact with the take-up pulleys through either purposeful or
work-related activities. For all the above reasons I conclude
that the record has failed to establish that there was any
reasonable possibility of contact with either the wrap-over or
the take-up pulleys that were cited.
4. The No. 26-A Conveyor Tail Pulley (Citation
No. 7841282, Docket No. LAKE 2001-122)
The No. 26-A tail pulley that was cited was equipped with a
guard that extended eight inches beyond the edge of the pulley.
The pulley was located 64 inches above the floor grating, and
approximately 12 inches from the edge of the floor grating. To
contact the pulley, a person would have to lean forward or
against the moving conveyor belt, reach around the existing guard
and then reach toward the back of the pulley. Further, wheels on
the conveyor belt would prevent a miner from positioning his body
against the conveyor belt to reach the pulley. The record does
not establish that such an awkward contact would have had any
relation to the performance of purposeful or work-related
activities. Indeed, extended grease-lines are provided. Also,
the issuing inspector set forth in the citation at issue that
foot traffic in the area was "slight". (Gx. 18.) It is also
significant to note that the inspector, in the citation,
indicated that contact was "unlikely". (Id.)
Taking into account all the above, I conclude that it has
not been established that the conditions at the tail pulley of
the No. 26-A conveyor belt were such that there was a reasonable
possibility of contact with the tail pulley. Accordingly, I find
that it has not been established that the cited conditions
violated Section 56.14107(a), supra.
CONCLUSION
Based on all the above reasons, I conclude that the
Secretary has failed to establish that any of the citations
issued in these proceedings constituted violations of Section
56.14107(a) supra,[7]
ORDER
It is Ordered that the Notices of Contest regarding the
following Citations are sustained: Citation Nos. 7841254,
7841255, 7841256, 7841257, 7821258, 7841259, 7841260, 7841261,
7841262, 7841263, 7841264, 7841265, 7841266, 7841267, 7841268,
7841269, 7841270, 7841271, 7841272, 7841273, 7841274, 7841275,
7841276, 7841277, 7841278, 7841279, 7841280, 7841281, and
7841282. It is also Ordered that the following Docket Nos. are
Dismissed: Docket No. LAKE 2001-94 thru and including Docket No.
LAKE 2001-122.
Avram Weisberger
Administrative Law Judge
Distribution: Certified Mail
Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301
Grant Street, 20th Fl. Pittsburgh, Pennsylvania
Christine Kassak Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 S. Dearborn Street, 8th Floor, Chicago,
Illinois
/sc
**FOOTNOTES**
[1]: The Secretary also argues that because estoppel does
not operate in enforcement proceedings, this doctrine can
not be applied to defeat the validity of the citations
at issue. Inasmuch as I did not take estoppel into account
in reaching a decision in these cases, it is not necessary
to further discuss this argument.
[2]: In light of this conclusion it is not necessary to
make a decision regarding the Secretary's argument that the
inspector appropriately deemed Tilden's negligence to be high
regarding the cited conditions at the No. 22 belts.
[3]: The Secretary, in a reply brief, argues that
Thompson, supra, should not be relied upon in determining the
scope of Section 56.14107(a), supra, since Thompson was
decided under Section 77.400, supra, which introduces the
element of probability of contact in its use of language
requiring the guarding of moving parts "which may be
contacted by persons", whereas Section 56.14017(a) supra
does not have such language limiting its protection to parts
which may be contacted but instead requires guarding to protect
persons from contacting moving parts. Although the Secretary
is correct in its comparison of the literal wording of
Section 77.400, supra, and Section 56.14107(a), supra, I
note that significantly, the preamble, relied on by the
Secretary in its interpretation of the scope of Section
56.14107(a) supra, states that "... the Standard [Section
56.14107(a), supra,] applies where the moving machine parts
can be contacted and cause injury." (Emphasis added.) The
common meaning of can is "to have the possibility' (Random
House Unabridged Dictionary, 2nd Edition (1998) at 302).
Similarly, in common usage, the word may is "used to
express possibility" (Random House, supra,at 1189).
Significantly, Random House, supra, notes that can and may
"... are frequently but not always interchangeable in senses
indicating possibility ... .". (Random House, supra at 302).
I thus find that although Thompson may not be
conclusively relied upon as binding Commission precedent
regarding its interpretation of the scope of Section 56.14107(a)
supra, the guidelines it sets down for determining the
applicability of a guarding standard apply with equal
force as an analytical framework in evaluating the
applicability of Section 14107(a), supra, to the conditions
at issue.
[4]: However, Field conceded that the presence of a rail
in the area would prevent somebody strumbling due to coming to
contact with the tail pulley.
[5]: Citation Nos. 7841270, and 7841271 also involve
such a head pulley. The parties agreed that the decision
regarding Citation No. 7841268 should also apply to Citation
Nos. 7841269, 7841270 and 7841271.
[6]: Citation Nos. 7841269 through 7841281.
[7]: The parties stipulated that if it is found that
there is no violation with respect to Citation No. 7841266,
then Citation No. 7841254 thru 7841267 should be dismissed.
Similarly, the parties stipulated, in essence, that should
a finding be made of no violation regarding Citation Nos.
7841268, 7841270, and 7841272, a similar finding should be
made regarding the following Citation Nos.: 7841269,
7841270, 7841271, 7841273 7841275, 7841276, 7841278,
7841279, 7841280, and 7841281.