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[DOCID: f:p98-14m.wais]
GLOBAL STONE PENROC, INC.
March 4, 1998
PENN 98-14-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 4, 1998
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 98-14-M
Petitioner : A. C. No. 36-00184-05525
v. :
:
GLOBAL STONE PENROC, INC., :
Respondent : Penroc
ORDER DENYING MOTION FOR SUMMARY DECISION
On February 17, 1998, Global Stone Penroc Inc., (Global)
filed a motion for summary decision pursuant to Commission Rule
67, 29 C.F.R. Section 2700.67. Under Commission Rule 67(b), a
motion for summary decision shall be granted only if the entire
record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits shows: (1) that
there is no genuine issue as to any material fact; and (2) that
the moving party is entitled to summary decision as a matter of
law. Global's motion addresses each of the six citations
contested in the instant case.
Citations No. 4434034 and 4434035
In examining the respective documentation of the parties, it
is obvious from the conflicting statements that there remain
genuine issues as to material facts, i.e., whether the cited
pumps were, as a factual matter, grounded or provided with
equivalent protection within the meaning of the cited standard,
30 C.F.R. Section 56.12025. Accordingly, the motion for summary
decision with respect to the instant citations must be denied.
Citations No. 4434002 and 4434004
Global argues that these citations should also be vacated as
duplicative of the preceding citations. Global notes that both
Citations No. 4434002 and 4434035 concern the grounding of a
single piece of equipment, i.e., Global's 75 horsepower
consolidated pit sump pump and that Citations No. 4434004 and
4434034 concern the grounding of another single piece of
equipment i.e., Global's 200 horsepower consolidated pit sump
pump.
The standard at 30 C.F.R. Section 56.12025 charged in
Citations No. 4434035 and 4434034 provides in relevant part that
"all metal enclosing or encasing electrical circuits shall be
grounded or provided with equivalent protection . . ." The
standard at 30 C.F.R. Section 56.12030 charged in Citations No.
4434002 and 4434004 provides that "when a potentially dangerous
condition is found it shall be corrected before equipment or
wiring is energized." The Secretary argues that Global violated
the cited standards in two ways, i.e., that it violated the
standard at 30 C.F.R. Section 56.12025 by omission, in failing
to ensure that the pumps were grounded and that it violated 30
C.F.R. Section 56.12030 by commission, in allowing the pumps
to be energized with a potentially hazardous condition, the
ground fault hazard.
The facts of this case are not unlike those in Southern Ohio
Coal Co., 4 FMSHRC 1459 (August 1982) wherein the Commission held
that violations which arise out of a single series of events may
under certain circumstances constitute separate and distinct
violations. In that case, the operator was cited for failure to
remove temporary roof supports by remote methods and by then
allowing miners to work under the unsupported roof. The operator
argued that the violations should merge because the required
duties were the same, i.e., that miners should not work under
unsupported roof. In affirming the citations, the Commission
held, however, that the standards were violated in two ways, by
omission in failing to use remote methods, and by commission, by
allowing the miners to work under unsupported roof. The
Commission's reasoning in the Southern Ohio is applicable hereto
and controlling. The cases cited by Global in its brief are
distinguishable. Under the circumstances Global is not entitled
to a summary decision as a matter of law with respect to the
citations at issue.
Citation No. 4076955
Global notes that the above citation alleges that a "safe
means of access was not provided to the engine compartment
walkway" on a caterpillar front end loader Model 992-C, in
violation of 30 C.F.R. Section 56.11001, thereby exposing
employees to a falling hazard of approximately 3 � feet. The
cited standard provides that "safe means of access shall be
provided and maintained to all working places." While
acknowledging that one of the manufacturer-installed steps to the
engine compartment was missing and another may have been damaged
at the time the citation was issued, Global nevertheless claims
that it provided a step ladder as a safe means of access. The
Secretary notes however and provides a supporting affidavit to
demonstrate, that conflicting evidence exists concerning the
circumstances under which miners might climb or otherwise access
the engine compartment without the stairs or step ladder. In
addition, there appears to be a factual dispute as to whether
miners had in fact accessed the engine using unsafe means such as
crawling or climbing.
Genuine issues clearly remain as to material facts and
accordingly, Global is not entitled to a summary decision as
matter of law.
Order No. 4076957
Global notes that the above order alleges that "21 bent
steps were observed on the stairway" leading to the scalper
screen, a "regularly traveled walkway." Global also notes that
MSHA alleged that the "bent" steps exposed employees to a
"significant and substantial" falling hazard and that this
constituted an "unwarrantable failure." In connection with its
motion herein, Global submitted photocopies of photographs which
it maintains shows that no steps were missing and that "bends" in
individual steps did not pose a safety hazard. Global also
quotes one of its employees purportedly stating that he "felt
perfectly safe" using the steps.
In her response, the Secretary notes that the photographs
are not verified and do not represent the hazard as it existed
when cited. She further notes that the photographs do not
accurately represent the condition of the steps at issue. She
further notes that the condition was recorded by the company in
its own examination book as constituting a hazard and was
reported over a three-month period without any apparent remedial
action. Finally, the Secretary notes that Inspector Amati
observed the cited stairs and noted that twenty-one of the steps
were significantly damaged and created a fall hazard.
Under the circumstances, there are clearly genuine issues as
to material fact concerning Order No. 4076957, and Global's
motion for summary decision must accordingly be DENIED.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution:
John M. Strawn, Esq., Office of the Solicitor, U.S. Dept. of
Labor, Gateway Bldg., Room 14480, 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Adele L. Abrams, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W.,
Washington D.C. 20037
(Certified Mail)
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