<DOC>
[DOCID: f:w-93-401.wais]
LARAMIE COUNTY ROAD AND BRIDGE
June 5, 1995
Docket No. WEST 93-401-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
June 5, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 93-401-M
Petitioner : A.C. No. 48-01459-05511
:
v. : Laramie County Crusher
:
LARAMIE COUNTY ROAD AND BRIDGE, :
Respondent :
DECISION
Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Roberta A. Coates, Esq., Laramie County Attorney,
Cheyenne, Wyoming, for Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of a civil
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against Laramie County
Road and Bridge ("Laramie County"), pursuant to sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
�� 815 and 820. The petition alleges a single violation of the
Secretary's safety standards. For the reasons set forth below, I
affirm the citation and assess a civil penalty in the amount of
$250.00.
A hearing was held in this case before Administrative Law
Judge John J. Morris, in Cheyenne, Wyoming. The parties presented
testimony and documentary evidence, but waived post-hearing
briefs. This case was reassigned to me on April 24, 1995, for an
appropriate resolution.
I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Laramie County Crusher is operated by the government of
Laramie County, Wyoming. The crusher supplies gravel for use on
county roads. The citation that is the subject of this
proceeding was issued at the cone crusher (the "crusher") by MSHA
Inspector Arthur L. Ellis on March 24, 1993.
Inspector Ellis observed an employee of Laramie County standing
on the lip of the crusher. (Tr. 13). He believed that a falling
hazard was presented and issued a combination section 107(a)
imminent danger order and section 104(a) citation (the
"citation"). The citation states:
An employee was observed standing on a narrow lip of
cone crusher, exposing himself to the possibility of
falling approximately (12') 260 cm to the ground below.
The employee was not wearing a safety belt and line.
The employee was removing rocks from the cone crusher,
which was bound up with rocks and would not operate.
The inspector stated on the citation that the violation was
highly likely to cause a permanently disabling injury and was of
a significant and substantial nature. He determined that Laramie
County was moderately negligent. The citation was immediately
abated when the foreman removed the employee from the lip of the
crusher.[1]
The citation charges Laramie County with a violation of 30 C.F.R.
� 56.15005, which provides, in pertinent part, that "safety belts
and lines shall be worn when persons work where there is a danger
of falling... . The inspector believed that it was highly likely
that the employee would fall because he was using both hands to
lift rocks off the screen that covered the crusher and throw them
over the side of the crusher. (Tr. 19). He testified that "it
would be easy for him" to lose his balance while performing that
task and fall off the crusher. Id. Based on MSHA reports on
falling hazards, the inspector concluded that the employee could
have sustained serious back, neck, or head injuries. (Tr.
21-22). Inspector Ellis determined that the employee was not
using a safety belt and line, and issued the citation on that
basis.
The crusher is a portable trailer-mounted cone crusher that
is fed by a conveyor belt. (Tr. 12). The inspector measured the
distance between the lip of the crusher and the ground at 12
feet. (Tr. 13). The lip is near the top of the crusher. Id.
The configuration of the crusher and the position of the employee
when he was leaning over the crusher is depicted on Ex. 2, which
is a photograph taken by Inspector Ellis at the time he issued
the citation. (Tr. 14). Inspector Ellis testified that he also
observed the employee standing with both feet on the lip of the
crusher. (Tr. 18, 36).
Laramie County does not dispute that its employee was at the lip
of the crusher, leaning over the crusher, and throwing rocks out.
It maintains that the ground was only eight feet below this lip,
based on measurements taken by Donald R. Beard, Laramie County
Public Works Director, a few days after the citation was issued.
(Tr. 49). It also maintains that the cited safety standard is so
vague as to be unreasonable, arbitrary, and capricious and,
therefore, contends that the standard is unenforceable as applied
to the facts of this case. Laramie County contends that
Inspector Ellis overstated the hazard presented, the degree of
any injuries that might be sustained, and the negligence of the
operator. In addition, it argues that the use of a safety belt
and line would increase the danger of a serious injury because an
employee would be snapped into the side of the heavy metal
crusher if he fell. Without a safety belt, an employee could
jump clear of the metal equipment and avoid serious injury if he
lost his balance. Finally, Laramie County maintains that the
citation should not have been specially assessed under 30 C.F.R.
� 100.5.
The safety standard at section 56.15005 is, by necessity,
broadly worded so that it can be applied to a wide range of
circumstances. The Commission has held that a safety standard
cannot be "so incomplete, vague, indefinite or uncertain that
[persons] of common intelligence must necessarily guess at its
meaning and differ as to its application." Alabama By-Products
Corp., 4 FMSHRC 2128, 2129 (December 1982)(citation omitted).
The Commission has determined that adequate notice of the
requirements of a broadly worded standard is provided if a
reasonably prudent person familiar with the mining industry and
the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard. Ideal
Cement Co., 12 FMSHRC 2409, 2416 (November 1990); Lanham Coal
Co., 13 FMSHRC 1341, 1343 (September 1991).
In Great Western Electric Company, 5 FMSHRC 840 (May 1983), the
Commission affirmed a violation of this safety standard where an
employee was installing a light fixture while standing on a
ladder about 18 feet above the ground. In its decision, the
Commission stated that the reasonably prudent person test for
this standard is "whether an informed, reasonably prudent person
would recognize a danger of falling warranting the wearing of
safety belts and lines." 5 FMSHRC at 842.
In Lanham Coal Co. , a dump truck driver was injured when he
fell ten feet from the top of his truck while trying to place a tarp
over the load. Following an investigation, MSHA cited the mine
operator under section 77.1710, which is similar to section
56.15005, because the truck driver was not using a safety belt
and line. (13 FMSHRC at 1342). The mine operator argued that it
did not consider the cited safety standard to be applicable to
the tarping of trucks and was not given any notice that it would
be applied in such a manner. The Commission held that a safety
standard must "give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may
act accordingly." 13 FMSHRC at 1343 [quoting Grayned v. City of
Rockford, 408 U.S. 104, 109 (1972)]. Because the administrative
law judge affirmed the citation without considering this issue,
the Commission remanded the proceeding to the judge for
application of these principles.
The record establishes that the employee in the present case
was standing and leaning over the top of the crusher approximately
eight to twelve feet above the ground. He was reaching in the
crusher to pick up rocks and was throwing the rocks on the ground
behind him. Thus, he was not stationary but was moving about as
he worked. The employee was not wearing a safety belt or line,
nor was he tied off in any manner. Safety belts and lines were
not available at the job site. Inspector Ellis was concerned
that the employee could fall and sustain a serious injury if he
should lose his balance while throwing rocks or moving around. I
credit his testimony in this regard.
Based on the evidence, I find that a reasonably prudent person
would have recognized that the employee was in danger of falling
and that use of a safety line was warranted. The position of
the employee on the lip of the crusher while he cleared loose
rock supports a reasonable conclusion that he was in a precarious
location which exposed him to a falling hazard. Such falls are
usually unexpected and may occur at any time while an employee is
preoccupied with his work. "Even a skilled employee may suffer a
lapse of attentiveness, either from fatigue or environmental
distractions, which could result in a fall." Great Western
Electric, 5 FMSHRC at 842. A safety line or other means of
protection helps prevent injury in the event of a fall.
I also find that a reasonably prudent person would have
recognized that the safety standard applied in this instance. On
remand in Lanham Coal Co., the administrative law judge vacated
the citation because the undisputed evidence established that
MSHA had never applied the safety line standard to the tarping of
dump trucks. (13 FMSHRC 1710, 1712 (October 1991)). The safety
standard is frequently applied to employees working on crushers
and other similar equipment, however. See, for example, Adams
Stone Corp., 15 FMSHRC 1080 (June 1993)(ALJ). One of the
purposes of the safety standard is the prevention of dangerous
falls from mining equipment.
Laramie County's argument that a safety belt and line could
increase the likelihood of a serious injury is not well founded.
The argument is based on the use of a six-foot safety line to
protect against a eight-foot fall. Inspector Ellis testified
that other mine operators use safety lines in similar situations,
so there is no reason why Laramie County cannot devise a safety
line that protects miners without creating other hazards or
interfering with their work.
Based on the above, I conclude that the Secretary established
a violation of 30 C.F.R. � 56.15005.[2] I also conclude that the
violation was S&S. I find that the evidence establishes that
there was a reasonable likelihood that the hazard contributed to
would result in an injury of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). As Inspector
Ellis stated at the hearing, miners have been seriously injured
and killed as a result of falling from heights of eight to twelve
feet.
II. CIVIL PENALTY ASSESSMENT
Section 110(i) of the Mine Act, 30 U.S.C. � 820(i), sets out
six criteria to be considered in determining the appropriate civil
penalty. Based on the criteria in section 110(i) of the Mine
Act, 30 U.S.C. � 820(i), I assess a penalty of $250.00 for the
violation. As stated above, Laramie County maintains that the
citation should not have been specially assessed under 30 C.F.R.
� 100.5. Because the penalty I have assessed in this proceeding
is based on the evidence developed at the hearing, the
Secretary's penalty regulations at 30 C.F.R. � Part 100 are not
relevant. Sellersburg Stone Co., 5 FMSHRC 287 (March 1983),
aff'd, 736 F.2d 1147, 1151-1152 (7th Cir. 1984). I have not
considered those regulations in assessing a penalty in this case.
I find that Laramie County was issued four citations in the 24
months preceding the inspection in this case. (Ex. 1). I also
find that Laramie County is a very small operator with about
5,000 man-hours worked in 1992. (Tr. 6). I find that the civil
penalty assessed in this decision would not affect Laramie
County's ability to continue in business. The conditions cited
by the inspector were all timely abated. I find that Laramie
County made good faith efforts to comply with MSHA's safety
standards.
I also find that Laramie County's negligence was low to
moderate with respect to the violation. The Mine Act is a strict
liability statute. Asarco, Inc. v. FMSHRC, 868 F.2d 1195 (10th
Cir. 1989). A citation issued by MSHA for a violation of a
safety standard must be affirmed if the facts show that the
standard was violated, even if the mine operator was not
negligent. The degree of the mine operator's negligence,
however, is an important factor in determining the civil
penalty.
Laramie County received a combination citation/imminent danger
order on April 17, 1990, from a different MSHA inspector when he
observed an employee on the crusher removing rock in a similar
manner while the crusher was operating. (Ex. A). The inspector
charged Laramie County with a violation of 30 C.F.R. � 56.14105,
because the equipment was operating while the task was preformed.
Mr. Beard testified that during abatement discussions between
Laramie County's foreman and the inspector, Laramie County was
led to believe that if it installed a screen across the top of
the crusher and deenergized the crusher whenever rock was
removed by hand, it would be complying with MSHA's requirements.
(Tr. 44, 56-57). Mr. Beard stated that the MSHA inspector did
not mention the need for safety belts and lines. Id.
The Secretary contends that because a different safety standard
was cited, a discussion of safety lines by the inspector was not
necessary. He also points to the "Action to Terminate" section
of the previous citation where it states that Laramie County's
foreman agreed that "no one would try to [remove rock from the
crusher] until the power was off or until safe access was
provided and there is a secure covering [for the crusher] ... ."
(Ex. A). He maintains that Laramie County should have known that
"safe access" referred to the use of safety lines. As stated
above, Mr. Beard stated that Laramie County did not interpret the
citation or the discussions to require the use of safety lines.
(Tr. 57). I credit his testimony in this regard. I find that,
even if Laramie County incorrectly interpreted the prior
inspector's actions, it believed, in good faith, that it was
complying with MSHA's requirements as a result of these
discussions. Accordingly, I find that Laramie County was not as
negligent as MSHA determined.
III. ORDER
Accordingly, Citation No. 4124092 is AFFIRMED, and Laramie
County Road & Bridge is ORDERED TO PAY the Secretary of Labor the
sum of $250.00 within 40 days of the date of this decision.
Richard W. Manning
Administrative Law Judge
FOOTNOTES
[1] The issue of whether the cited condition presented an
imminent danger was not contested by Laramie County or litigated
in this proceeding. Accordingly, I make no findings in that
regard.
[2] In its answer to the petition for assessment of penalty,
Laramie County argued that because the product from the crusher
is used exclusively on the roads of Laramie County, Wyoming, the
crusher does not affect interstate commerce. Accordingly, it
maintained that MSHA does not have jurisdiction over the crusher
under 30 U.S.C. � 803. It did not raise this issue at the
hearing. The Commission and the courts have consistently held
that Congress intended to exercise its authority to the maximum
extent feasible when it enacted the Mine Act. See, for example,
Jerry Ike Harless Towing, Inc., 16 FMSHRC 683, 686 (April 1994);
United States v. Lake, 985 F.2d 265, 267-69 (6th Cir. 1993).
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 1600, Denver, CO
80202-5716 (Certified Mail)
Roberta A. Coates, Esq., Laramie County Attorney, 1825 Carey
Avenue, Cheyenne, WY 82001 (Certified Mail)
RWM