.
MELVIN BARLOW, d/b/a BARLOW ROCK
WEST 2000-585-M
March 13, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
March 13, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-585-M
Petitioner : A.C. No. 35-03309-05509
:
v. : Docket No. WEST 2000-586-M
: A.C. No. 35-03309-05510
MELVIN BARLOW, d/b/a BARLOW ROCK,:
Respondent : Barlow Pit
DECISION
Appearances: William W. Kates, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington, for
Petitioner;
Lenora Barlow, O'Brien, Oregon, for Respondent.
Before: Judge Manning
These cases are before me on petitions for assessment of
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Melvin
Barlow, an individual doing business as Barlow Rock ("Barlow
Rock"), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. �� 815 and 820 (the
"Mine Act"). A hearing was held in Grants Pass, Oregon.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Barlow Rock operates the Barlow Pit in Josephine County,
Oregon. On June 7, 2000, MSHA Inspector Randy Cardwell inspected
the Barlow Pit. MSHA had inspected the Barlow Pit many times,
but this was the first time that it had been inspected by
Inspector Cardwell. Barlow contested nine citations in these
cases.
Melvin Barlow, the owner of Barlow Rock, testified that he
has operated the Barlow Pit for about 41 years. (Tr. 98). The
pit has been inspected by MSHA since its inception and it
generally received no more that three or four citations per
inspection. He testified that he never contested any citations
issued during previous inspections. He further testified that
Barlow Rock received 37 citations resulting from Inspector
Cardwell's inspection. Id. He stated that some of the citations
issued by Inspector Cardwell were legitimate and he did not
contest them. (Tr. 102). He contested other citations issued by
this inspector, including the citations at issue here, because he
does not believe that they are legitimate, as set forth below.
A. Citation No. 7986908
Citation No. 7986908 alleges a violation of 30 C.F.R.
� 56.11002, as follows:
Handrails were not provided along the outer
edges of the elevated walkways that were
located on the sides of the orange universal
flat deck screen. The walkway was
approximately 20 inches wide, approximately
eight feet long, and approximately 89 inches
above the ground level. There was a portable
ladder leaning up against the end of the
walkway allowing access up to the walkway.
Employees access the walkway when adding air
to the air bags on the side of the screen and
when performing regular maintenance.
Inspector Cardwell determined that the violation was of a
significant and substantial nature ("S&S") and was the result of
Barlow's moderate negligence. Section 56.11002 provides, in
part, that "elevated walkways, elevated ramps, and stairways
shall be ... provided with handrails...." On July 12, 2000,
Inspector Cardwell returned to the pit to see if the cited
conditions had been abated. He issued Order No. 7986976 under
section 104(b) of the Mine Act alleging that Barlow had removed
the ladder up to the walkway, but had not provided handrails
along the outer edges of the walkway. The Secretary proposes a
penalty of $453 for this alleged violation.
There is no dispute that the cited area lacked handrails.
Mr. Barlow testified that the cited area has never had a handrail
and that MSHA has never required a handrail at that location in
the past. (Tr. 102). He testified that MSHA has inspected this
screen many times and handrails were never required. He stated
that employees do not climb up onto the cited boards to maintain
the air bags or to service the equipment. (Tr. 103). He stated
that employees perform these functions while standing on the
ladder. He further testified that the only function that these
boards serve is to provide "a flat surface to lean the ladder
against." (Tr. 104). The ladder is not present except when
someone needs to service the screen.
Inspector Cardwell did not observe anyone on the cited
boards. He stated that he issued the citation because of the
presence of the ladder. (Tr. 20). There is no testimony that
Inspector Cardwell was advised that the cited area was used as a
walkway. Inspector Cardwell did not testify that he observed
direct proof, such as footprints in the accumulated dirt, that
anyone had used the boards as a walkway. He believes that
employees went up on the boards because of the nature of the work
that had to be performed. (Tr. 20, 68, 92). He does not believe
that all of these tasks could be performed from a ladder.
The safety standard requires that elevated walkways must be
provided with handrails. The term "walkway" is not defined in
the Secretary's regulations. The term "travelway" is defined as
a "passage, walk or way regularly used and designated for persons
to go from one place to another." 30 C.F.R. � 56.2. I find that
the Secretary did not establish that the cited area was an
elevated walkway. The cited area was simply two boards that had
been placed across supports on the screen. (Ex. R-3). These
supports apparently are used to carry various hoses for the
screen. Id. The testimony of Mr. Barlow establishes that
employees do not stand or walk on the boards to perform
maintenance on the screen. Inspector Cardwell believes that
employees would have to stand or walk on these boards to perform
these tasks or, at the very least, that these boards are
available for such purpose. The inspector's belief is not enough
to establish a violation in this case. The fact that a ladder is
leaning against a horizontal surface does not establish that the
surface is a walkway. I find that the Secretary did not
establish a violation. See Tide Creek Rock, Inc., 18 FMSHRC 390,
410-412 (March 1996)(ALJ). Consequently, Citation No. 7986908 is
VACATED. If Barlow employees begin standing on these boards for
any purpose, Barlow must install handrails or provide fall
protection (� 56.15005).
B. Citation No. 7986909
Citation No. 7986909 alleges a violation of 30 C.F.R.
� 56.14107(a), as follows:
The V-belt drive on the drive motor of the
orange universal flat deck screen was not
guarded to prevent employee contact. The
pinch points were approximately two feet and
five feet above the elevated walkway that ran
along side the universal screen. There was
not a guard for the V-belt drive and this
condition allowed the moving machine parts to
be accessible to employee contact.
Inspector Cardwell determined that the violation was not S&S
and was the result of Barlow's moderate negligence. Section
56.14107(a) provides, in part, that "[m]oving machine parts shall
be guarded to protect persons from contacting ... drive, head,
tail, and takeup pulleys ... and similar moving parts that can
cause injury." On July 12, 2000, Inspector Cardwell returned to
the pit to see if the cited conditions had been abated. He
issued Order No. 7986977 under section 104(b) of the Mine Act
alleging that Barlow had not made any effort to guard the cited
V-belt drive. The Secretary proposes a penalty of $371 for this
alleged violation.
There is no dispute that the cited V-belt drive was not
guarded. Inspector Cardwell estimated that the two pinch points
were about two and five feet above the "elevated walkway"
discussed in the previous citation. As discussed above, I found
that the cited boards are not an elevated walkway. Section
56.14107(b) provides that "guards shall not be required where the
exposed moving parts are at least seven feet away from walking or
working surfaces." The cited pinch points are more that seven
feet above the ground. Nevertheless, I find that the Secretary
established a violation. Mr. Barlow testified that his employees
perform maintenance from the ladder. The drive motor is
regularly greased from the ladder. (Tr. 136-38). Employees
would be within seven feet from the pinch points when greasing
the motor. In such instances, the ladder would constitute a
working surface.
As is true at most facilities, ordinary maintenance
activities are performed at the Barlow Pit before the equipment
is turned on. Nevertheless, the Commission has interpreted this
guarding standard to take into consideration "ordinary human
carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097
(September 1984). The construction of safety standards involving
the behavior of employees "cannot ignore the vagaries of human
conduct." Id. It is conceivable that someone might attempt to
perform minor maintenance on the operating deck screen while
standing on the ladder without first shutting it down. In such
an instance, the employee's clothing could easily become
entangled in the pinch points and a serious injury could result.
Guards are designed to prevent just such an accident.
The Commission and the courts have uniformly held that mine
operators are strictly liable for violations of safety and health
standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir.
1989). "[W]hen a violation of a mandatory safety standard occurs
in a mine, the operator is automatically assessed a civil
penalty." Id. at 1197. In addition, the Secretary is not
required to prove that a violation creates a safety hazard,
unless the safety standard so provides.
The [Mine Act] imposes no general requirement
that a violation of MSHA regulations be found
to create a safety hazard in order for a
valid citation to issue. If conditions
existed which violated the regulations,
citations [are] proper.
Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir.
1982)(footnote omitted). The negligence of the operator and the
degree of the hazard created by the violation are taken into
consideration in assessing a civil penalty under section 110(i).
30 U.S.C. � 820(i). Thus, a violation is found and a penalty is
assessed even if the chance of an injury is not very great.
I find that the Secretary established a violation and I
affirm the citation. I agree with Inspector Cardwell that an
accident was unlikely and that the violation was not S&S. If an
accident did occur, a severe injury could result. I find that
Barlow's negligence was low because this condition had existed
for years through many MSHA inspections and had never been cited.
Barlow did not rapidly abate the condition and a section 104(b)
order was issued. Consequently, I find a lack of good faith
abatement and I increase the penalty from what I would have
otherwise assessed. I assess a penalty of $110 for this
violation.
C. Citation No. 7986915
Citation No. 7986915 alleges a violation of 30 C.F.R.
� 56.14107(a). Barlow withdrew its contest of this citation.
(Tr. 8-9). This citation was abated within the time set for
abatement. Consequently, this citation and the Secretary's
proposed penalty of $55 are affirmed.
D. Citation No. 7986917
Citation No. 7986917 alleges a violation of 30 C.F.R.
� 56.11002, as follows:
The elevated walkway on the left side of the
Cedar Rapids washing screen was missing one
of the floor boards. The outer floor board
was in place and it was approximately 9
inches wide and 14 feet long. The distance
from the missing floorboard to the material
inside the chute where a person would fall
was approximately 58 inches. Employees
access the walkway when performing
maintenance to the Cedar Rapids washing
screen.
Inspector Cardwell determined that the violation was S&S and
that it was the result of Barlow's moderate negligence. Section
56.11002 provides, in part, that "elevated walkways, elevated
ramps, and stairways shall be of substantial construction
provided with handrails, and maintained in good condition." On
July 12, 2000, Inspector Cardwell returned to the pit to see if
the cited conditions had been abated. He issued Order No.
7986978 under section 104(b) of the Mine Act alleging that Barlow
had not made any effort to install an additional floor board on
the washing screen. The Secretary proposed a penalty of $453 for
this citation.
Inspector Cardwell issued this citation because the elevated
walkway was not "maintained in good condition." He based this
conclusion, in part, on the fact that when he asked Mr. Barlow if
he knew that there was a board missing from the walkway on the
washing screen, Mr. Barlow replied "no." Evidence at the hearing
revealed, however, that there had never been a board in the cited
location. (Tr. 108). The single floor board that was present is
about 9 inches wide and about 14 feet long. (Tr. 32). The
distance between the floor board and the washing screen was about
13 inches. (Tr. 34). A handrail was provided on the other side
of the single board. (Ex. P-1). Inspector Cardwell was concerned
that the 13-inch gap could cause an employee to trip or fall
thereby causing an injury.
The gap was present because every time the washing screen is
used, an employee must walk on the walkway and climb down through
the 13-inch gap to clean the bottom deck of the screens and to
install a baffle. (Tr. 106-07, 111). On cross-examination, Mr.
Barlow admitted that employees must also use the walkway to
grease the screens and to change the screens. (Tr. 141-43). He
stated that the gap is not necessary when performing those
tasks.
I find that Barlow violates the safety standard when
employees use the walkway for purposes other than gaining access
to the bottom deck through the 13-inch gap. The walkway was not
being maintained in "good condition" under those circumstances
because of this gap. Consequently, I find that the Secretary
established a violation. I find, however, that the secretary did
not establish that the violation was serious or S&S. An S&S
violation is described in section 104(d)(1) of the Mine Act as a
violation "of such nature as could significantly and
substantially contribute to the cause and effect of a ... mine
safety or health hazard." A violation is properly designated S&S
"if based upon the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out a four-part test for analyzing S&S issues.
Evaluation of the criteria is made assuming "continued normal
mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574
(July 1984). The question of whether a particular violation is
S&S must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988).
The Secretary must establish: (1) the underlying violation
of the safety standard; (2) a discrete safety hazard, a measure
of danger to safety, contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature. The Secretary
is not required to show that it is more probable than not that an
injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).
I find that the Secretary did not establish a reasonable
likelihood that the hazard contributed to by the violation will
result in an injury of a reasonably serious nature. First, the
walkway is frequently used to access the bottom deck. In those
instances, the gap must be present. Second, a handrail was
present and the gap was immediately adjacent to the frame of the
washing screen. If someone were to stumble as a result of the
gap, a serious injury is not likely. In addition, the existing
plank is wide enough to provide solid footing for an employee
greasing the screens. I also find that Barlow's negligence was
low. The washing screen had been operating in this manner for
years and no citations had been issued despite the fact that the
washing screen had been inspected by MSHA on many occasions. I
increase the penalty from what I would have otherwise assessed
because Barlow failed to abate the citation within the time set
by Inspector Cardwell. I assess a penalty of $110 for this
violation.
E. Citation No. 7986923
Citation No. 7986923 alleges a violation of 30 C.F.R.
� 56.14132(a), as follows:
The automatic reverse activated signal alarm
on the 550 International Hough front-end
loader ... was not maintained in a functional
condition. The front-end loader is used in
various area around the rock crushing plant
around employees and equipment.
Inspector Cardwell determined that the violation was S&S and
that it was the result of Barlow's moderate negligence. Section
56.14132(a) provides, in part, that "audible warning devices
provided on self-propelled mobile equipment as a safety feature
shall be maintained in functional condition." The Secretary
proposes a penalty of $196 for this alleged violation.
Inspector Cardwell testified that "whenever the loader was
put into reverse, the backup alarm did not sound." (Tr. 36). He
stated that he observed the loader moving in reverse. Id. Mr.
Barlow testified that the backup alarm worked, but only after the
loader actually starts backing up. (Tr. 111-13). He testified
that he was basing this information on statements made by his
mechanic Mike Neville. Mr. Barlow did not personally observe the
loader while traveling in reverse at the time of Inspector
Cardwell's inspection and he was not present when the mechanic
tested the alarm. When Inspector Cardwell returned to the pit on
July 12, he abated the citation. Mr. Barlow testified that his
mechanic did not do anything to repair the alarm. (Tr. 113).
This testimony was based on statements made to him by the
mechanic.
I credit the testimony of Inspector Cardwell that the backup
alarm was not working on the day of his inspection. He observed
the loader moving in reverse without the alarm working.
Mr. Barlow did not have any direct knowledge of the critical
events. His testimony was based entirely on information provided
by others. It is possible that the alarm works on an intermittent
basis. Consequently, I affirm this citation.
I find that the violation was reasonably serious and was
S&S. Many employees throughout the country have lost their lives
or have been seriously injured when struck by self-propelled
mobile equipment moving in reverse without backup alarms. I also
find that Barlow's negligence was moderate. I assess a penalty
of $140 for this violation.
F. Citation No. 7986924
Citation No. 7986924 alleges a violation of 30 C.F.R.
� 56.4201(a)(2), as follows:
The yearly inspection had not been conducted
on the red 19 lb fire extinguisher that was
located in the cab of the International Hough
front-end loader. The last maintenance
inspection was conducted in 1997....
Inspector Cardwell determined that the violation was not S&S
and that it was the result of Barlow's high negligence. Section
56.4201(a)(2) provides, in part, that "at least once every twelve
months, maintenance checks shall be made of mechanical parts, the
amount and condition of extinguishing agent and expellant, and
the condition of the hose, nozzle, and vessel to determine that
the fire extinguishers will operate effectively." On July 12,
2000, Inspector Cardwell returned to the pit to see if the cited
conditions had been abated. He issued Order No. 7986975 under
section 104(b) of the Mine Act alleging that Barlow had not made
any effort to inspect the cited fire extinguisher. The Secretary
proposes a penalty of $396 for this alleged violation.
There is no dispute that the fire extinguisher in the cab of
the loader had not been inspected within the previous twelve
months. The dial on the fire extinguisher indicated that it was
charged. (Tr. 41). Mr. Barlow testified that there were two
fire extinguishers in the loader. (Tr. 114-18). One was in the
cab as observed by the inspector and one was mounted on the
outside of the loader. (Ex. R-6 & R-7). Mr. Barlow testified
that the mounted extinguisher had been inspected within the
previous 12 months. (Ex. 114-18). He stated that the
extinguisher in the cab was placed in the cab along with an axe
for a specific job that he did for a neighbor. He believes that
because the extinguisher mounted outside the loader complied with
the safety standard, the citation should be vacated.
I find that the Secretary established a violation. All fire
extinguishers at the pit must comply with this safety standard,
even where there are two extinguishers in a vehicle. There is no
indication that the cited extinguisher would not have functioned
properly. I find that the violation was not serious. I also
find that Barlow's negligence was low. I credit Mr. Barlow's
testimony that the fire extinguisher was in the cab for work he
performed off mine property. The citation was abated by removing
the cited fire extinguisher following the issuance of a section
104(b) order. I increase the penalty from what I would have
otherwise assessed because Barlow failed to abate the citation
within the time set by Inspector Cardwell. I assess a penalty of
$110 for this violation.
G. Citation No. 7986929
Citation No. 7986929 alleges a violation of 30 C.F.R.
� 56.14132(b)(1). At the hearing, the Secretary moved to vacate
this citation. (Tr. 4-5). The motion is granted and the
citation is vacated.
H. Citation No. 7986931
Citation No. 7986931 alleges a violation of 30 C.F.R.
� 56.14131(c), as follows:
The seat belt in the yellow Kenworth haul
truck ... did not meet the requirements of
SAE J386, "Operator Restraint Systems for
Off-Road Work Machines." The seat belt in
the haul truck had a GM stamp on the seat
belt buckle. The haul truck was not in use
at the time of the inspection but it was
available for use.
Inspector Cardwell determined that the violation was not S&S
and that it was the result of Barlow's low negligence. Section
56.14131(c) provides, in part, that "[s]eat belts required under
this section shall meet the requirements of SAE J386 ... which is
incorporated by reference...." The Secretary proposes a penalty
of $55 for this alleged violation.
The truck at issue was manufactured in 1966 and Barlow
bought it in 1981. (Tr. 123). It was equipped with a seatbelt
designed for over-the-highway trucks. The MSHA safety standards
require special off-road seatbelts. There is no dispute that the
cited truck was not so equipped. Barlow maintains that this
truck was out of service. Mr. Barlow testified that it had been
used for a project for the city of Cave Junction and that when it
was returned, the spring was broken and it had two flat tires.
(Tr. 121). He stated that it could be operated and it had been
moved from one place to another at the pit on one occasion but
that it was out of service.
I find that the Secretary established a violation. The
truck had not been tagged out and was available for use. Mr.
Barlow's son, who worked at the pit, may not have known that the
truck should not be used. (Tr. 45, 150). Although it is highly
unlikely that anyone would have used this truck to haul heavy
loads, it might have been used for other purposes. I find that
the violation was not S&S, was not serious, and that Barlow's
negligence was low. I assess a penalty of $20 for this
violation.
I. Citation No. 7986934
Citation No. 7986934 alleges a violation of 30 C.F.R.
� 56.12032, as follows:
The cover plate was not in place on the
110/120 volt pressure control switch for the
green Speed Aire air compressor. The
pressure control switch was approximately
3 3/4 inches wide and approximately 37
inches above the ground level. The bare
electrical conductors were exposed where they
were screwed onto the pressure control
switch. Employees access the area on a
regular basis when working in and around the
shop area.
Inspector Cardwell determined that the violation was S&S and
that it was the result of Barlow's high negligence. Section
56.12032 provides, in part, that "[i]nspection and cover plates
on electrical equipment and junction boxes shall be kept in place
at all times except during testing or repairs." The Secretary
proposes a penalty of $224 for this alleged violation.
The cited air compressor was by the door in the shop. (Tr.
48). The compressor was not operating. There is no dispute that
the pressure relief valve did not have a cover plate on it. The
pressure relief valve is at the front of the compressor about 37
inches above the ground. (Tr. 49; Ex. R-9). Inspector Cardwell
testified that because there were bare conductors under the cover
and the area was accessible, it was important to keep the cover
on. (Tr. 50). He stated that the compressor is used on a
regular basis and the employees would need to use the switch at
that location on a regular basis. Id.
Mr. Barlow testified that the power for the compressor was
turned off at the time of this inspection. (Tr. 126). Both the
control box for the compressor and the control box for the shop
were in the off position. Accordingly, he believes that the
citation should not have been issued.
I find that the Secretary established a violation. It is
not clear why the cover was not present. The standard requires
such covers to be in place at all times, except when it is
necessary to remove the plate for testing or repairs. Nothing in
the record indicates that Barlow was testing or repairing the
compressor. The fact that the power was off does not preclude my
finding of a violation. The electrical control boxes were not
locked out, so they could have been switched on at any time. The
cover plate must remain in place at all times, except when
necessary for testing or repairs. I find, however, that the
violation was neither serious nor S&S. The power was off and the
control boxes were immediately adjacent to the compressor. It
was not likely that anyone would turn on the power while another
employee was working at the compressor. I find that Barlow's
negligence was moderate to low rather than high. There is no
proof that bare wires were energized while the cover plate was
off. I assess a penalty of $50.
II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. I find
that five citations were issued at the plant during the 30 months
prior to this inspection. (Ex. J-1). Barlow is a small operator
that worked about 4,930 man-hours in the previous calendar year
and employed five people. (Ex. J-1; Tr. 129). Except as noted
above, the violations were abated in good faith. The penalties
assessed in this decision will not have an adverse effect on
Barlow's ability to continue in business. My findings with
regard to gravity and negligence are set forth above. Based on
the penalty criteria, I find that the penalties set forth below
are appropriate. The reduction in the penalties is based
primarily on the small size of the operator and, where noted
above, the gravity and negligence criteria.
III. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C. � 820(i), I assess the following civil penalties:
Citation No. 30 C.F.R. � Penalty
WEST 2000-585-M
7986908 56.11002 Vacated
7986909 56.14107(a) $110.00
7986915 56.14107(a) 55.00
7986917 56.11002 110.00
7986923 56.14132(a) 140.00
7986924 56.4201(a)(2) 110.00
7986929 56.14132(b)(1) Vacated
WEST 2000-586-M
7986931 56.14131(c) 20.00
7986934 56.12032 50.00
Total Penalty $595.00
Accordingly, the citations and section 104(b) orders
contested in these cases are AFFIRMED, MODIFIED, or VACATED as
set forth above and Melvin Barlow, doing business as Barlow Rock,
is ORDERED TO PAY the Secretary of Labor the sum of $605.00
within 40 days of the date of this decision, unless the parties
agree upon an alternate payment schedule. The parties are hereby
authorized to agree upon a delayed payment schedule. Upon
payment of the penalty, these proceedings are DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
William W. Kates, Esq., Office of the Solicitor, U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)
Ms. Lenora Barlow, P.O. Box 156, O'Brien, OR 97534-0156
(Certified Mail)
Mr. Melvin Barlow, P.O. Box 326, Cave Junction, OR 97523-0326
(Certified Mail)
RWM