.
WATKINS ENGINEERS AND CONSTRUCTORS
January 26, 2001
WEST 99-280-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
January 26, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-280-M
Petitioner : A.C. No. 05-00344-05502
: RGE
:
v. : Docket No. WEST 99-376-M
: A.C. No. 05-00344-05503
: RGE
WATKINS ENGINEERS AND :
CONSTRUCTORS, : Lyons Cement Plant
Respondent :
DECISION
Appearances: Edward Falkowski, Esq., and Lydia Tzagoloff,
Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for
Petitioner;
Carl B. Carruth, Esq., and Jason M. Bradley, Esq.,
McNair Law Firm, Columbia, South Carolina, 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 Watkins
Engineers and Constructors ("Watkins"), pursuant to sections 105
and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. �� 815 and 820 ("Act" or "Mine Act"). A hearing was held
in Denver, Colorado. The parties presented testimony and
documentary evidence and filed post-hearing and reply briefs.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
In January 1999, Watkins was constructing a bag house at the
Lyons Cement Plant (the "plant") owned by Southdown, Inc. The
plant is in Boulder County, Colorado. Jefferson B. Davis, an
employee of Watkins, was seriously injured when he fell 70 feet
onto a concrete pad while he was attempting to enter the bag
house from a Snorkel man-lift basket. Following an
investigation, MSHA issued a citation under section 104(a) of the
Act; and one citation and two orders under section 104(d)(1) of
the Act. The Secretary proposes a total penalty of $90,500 for
the alleged violations. Watkins duly contested each item and its
associated civil penalty. Watkins also contends that MSHA was
without jurisdiction to issue the citations and orders.
The plant produces portland cement and the bag house being
constructed by Watkins is an integral part of the plant. The
plant is near a quarry owned by Southdown. Limestone and shale
mined at the quarry are transported to a primary crusher which is
at the quarry site. Once it is crushed, the rock is carried on a
two-mile long conveyor belt to the plant where it is stockpiled.
Quartz is mined at a second quarry in the area. After it is
mined, the quartz is transported by truck to the same primary
crusher. The crushed quartz is also transported to stockpiles at
the plant via the conveyor belt. All of the material that is
transported to the stockpiles at the plant is used in the
production of Portland cement. (Tr. 39).
The stockpiled material is then taken into the plant where
it goes through various operational steps in the production of
cement. The material is crushed, ground up into a powder,
preheated to 1,900 degrees Fahrenheit, and heated to 2,500
degrees in a kiln where it undergoes a chemical reaction to form
chunks of crystalized cement known as "clinker." The clinker is
cooled and stored for later use. The clinker is then ground into
a fine powder in the finish mill. The fine powder is drawn by
vacuum into the bag house. The bag house contains large bags
that collect the fine powdered cement, which is then pumped to
finished cement storage silos for sale.
This description of the process is a simplification of a
more complex process. For example, other material, such as
gypsum, is added and coarse material is recirculated back through
the process at several steps. They key fact is that all of the
material that enters the plant is used in the finished product.
No waste material is created from cement production at the plant
other than carbon dioxide that is released from the limestone in
the kiln.
Prior to the construction of the bag house by Watkins,
mechanical devices were used to separate the fine cement powder
from coarser material. The bag house is a high-efficiency
separator that can handle more material and produce better
cement. (Tr. 31). The accident that gave rise to the citations
and orders at issue occurred during the construction of the bag
house. The plant has been operating for at least 26 years under
several owners. MSHA has continuously inspected the plant for
the Secretary of Labor since MSHA was created in 1978.
A. Jurisdiction
1. Summary of the Parties' Arguments
The Secretary contends that MSHA had jurisdiction to inspect
the construction of the bag house at the plant under the Act.
She argues that she has consistently interpreted the Act to
include cement plants under the jurisdiction of MSHA. The term
"coal or other mine" is defined in section 3(h)(1) to include the
milling of minerals. That section also provides that, in making
a determination of what constitutes mineral milling, the
Secretary shall give due consideration to the convenience
resulting from delegating to one Assistant Secretary all safety
and health authority employed at one physical establishment.
Thus, the Secretary contends that she was delegated the authority
to determine where mineral milling ends and where post-milling
operations that are not subject to MSHA jurisdiction begin.
In 1979, MSHA entered into an interagency agreement with the
Department of Labor's Occupational Safety and Health
Administration ("OSHA") to provide some guidance to the regulated
community on the jurisdiction of these two agencies ("Interagency
Agreement"). The Secretary relies on paragraph B(6)(a) of the
Interagency Agreement which states that MSHA jurisdiction
includes cement plants. She maintains that MSHA has been
inspecting cement plants throughout the country since the Act was
passed and that her interpretation is entitled to deference.
Watkins argues that MSHA does not have jurisdiction over
this matter because no mineral milling occurs at the plant. It
contends that mineral milling is the separation of valuable
minerals from waste constituents. For example, mineral milling
occurs when various processes, such as crushing, are used to
separate a metallic mineral from the host rock. If, on the other
hand, these same processes are used only to change the physical
nature of the material, without any separation of waste material,
mineral milling is not taking place. Watkins argues that at the
Lyons Cement Plant, the various processes are used to manufacture
cement. Watkins maintains that mineral milling does not take
place at the plant because there is no segregation of waste
material. It contends that OSHA has jurisdiction at the plant,
not MSHA.
Watkins argues that MSHA's exercise of jurisdiction over the
plant is an abuse of its discretion under the Act. To the extent
that there is no abuse of discretion, then it maintains that the
grant of power to the Secretary to construe the word "milling" is
an unconstitutional delegation of legislative power.
2. Discussion
For the reasons explained below, I find that MSHA has
jurisdiction to inspect the Lyons Cement Plant under the Mine
Act. The starting point for an analysis of Mine Act jurisdiction
is the definition of the term "coal or other mine," in section
3(h)(1). A coal or other mine is defined, in pertinent part, as
"(A) an area of land from which minerals are extracted ..., (B)
private ways and roads appurtenant to such area, and (C) lands,
... structures, facilities, equipment, machines, tools, or other
property ... on the surface or underground, used in, or to be
used in ... the work of extracting minerals from their natural
deposits, ... or used in ...the milling of such minerals...." 30
U.S.C. � 802(h)(1). The Senate Committee that drafted this
definition stated its intention that "what is considered to be a
mine and to be regulated under this Act be given the broadest
possible interpretation, and ... that doubts be resolved in favor
of inclusion of a facility within the coverage of the Act." S.
Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2nd Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977 at 602 (1978)("Legis. Hist."); see also
Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D. C. Cir.
1984). The final sentence of this definition states that in
"making a determination of what constitutes mineral milling ...,
the Secretary shall give due consideration to the convenience of
administration resulting from the delegation to one Assistant
Secretary of all the authority with respect to the health and
safety of miners employed at one physical establishment."
The phrase "the milling of such minerals" and the word
"mineral milling" are not further defined in the Act, but the
word "milling" is defined in the Interagency Agreement. (44 Fed.
Reg. 22827 (April 17, 1979), amended by 48 Fed. Reg. 7521
(February 22, 1983)). This agreement provides, in Appendix A:
Milling is the art of treating the crude
crust of the earth to produce therefrom the
primary consumer derivatives. The essential
operation in all such processes is separation
of one or more valuable desired constituents
of the crude from the undesired contaminants
with which it is associated.
This definition is supported by Dr. Baki Yarar, professor of
mining engineering at the Colorado School of Mines. He stated
that the separation of unwanted parts of the extracted crude from
the wanted parts is a critical component in the definition of
mineral milling. (Tr. 329-31). To be considered mineral
milling, there must be a separation of the "worthless" from the
"valuable." Id. If any of the milling-type processes are used
for other purposes, mineral milling is not taking place. Thus,
if materials from the earth are being crushed, but there is no
separation of the valuable from the worthless, it is not mineral
milling. For that reason, Dr. Yarar believes that the Lyons
Cement Plant is a cement manufacturing facility. Minerals are
not being milled at the plant.
For purposes of this decision, I accept the definition of
"mineral milling" in the Interagency Agreement and the testimony
of Dr. Yarar on this subject. My finding in this regard does not
end the matter, however, because section 3(h)(1) of the Act
specifically grants the Department the Labor the authority to
determine "what constitutes mineral milling." Although section
3(h)(1) does not grant the Secretary unfettered discretion, it
does allow the Secretary to take into consideration "the
convenience of administration" when drawing the line between MSHA
and OSHA jurisdiction. Congress recognized that this line is
somewhat fuzzy and it did not require the Secretary to follow
precise engineering principles when drawing this line. Congress
authorized the Secretary to take a practical approach and that
"doubts be resolved in favor of inclusion of a facility within
the coverage of the Act." (Legis. Hist. at 602). The line drawn
by the Secretary is a legal boundary, not a scientific or
technical boundary.
Paragraph B(2) of the Interagency Agreement provides that
the Act gives MSHA jurisdiction over lands, structures,
facilities, and equipment used in or to be used in mineral
milling, including the construction of such facilities.
Paragraph B(3) states that Appendix A to the Interagency
Agreement provides more detailed descriptions of the kinds of
operations included in milling. This paragraph further states
that there will remain areas of uncertainty especially in
operations near the termination of the milling cycle and the
beginning of the manufacturing cycle. In Paragraph B(4), the
Interagency Agreement provides that the "scope of the term
milling may be expanded to apply to mineral product manufacturing
processes where these processes are related, technologically or
geographically, to milling." This paragraph also provides that
the term milling "may be narrowed to exclude from the scope of
the term processes listed in Appendix A where such processes are
unrelated, technologically or geographically, to mineral
milling."
Paragraph B(5) states that the following factors will be
taken into consideration when determining whether MSHA or OSHA
has jurisdiction: "the processes conducted at the facility, the
relation of all processes at the facility to each other, the
number of individuals employed in each process, and the expertise
and enforcement capability of each agency with respect to the
safety and health hazards associated with the processes conducted
at the facility." Then, in a pivotal provision of the
Interagency Agreement, Paragraph B(6) provides, in part, as
follows:
Pursuant to the authority in section 3(h)(1)
to determine what constitutes mineral milling
considering the convenience of
administration, the following jurisdictional
determinations are made:
(a) MSHA jurisdiction includes salt
processing facilities on mine property;
electrolytic plants where the plants are an
integral part of mining operations; stone
cutting and stone sawing operations on mine
property where such operations do not occur
in a stone polishing or finishing plant; and
alumina and cement plants.
(b) OSHA jurisdiction includes the
following, whether or not located on mine
property: brick, clay pipe and refractory
plants, ... concrete batch, asphalt batch,
and hot mix plants.... OSHA jurisdiction
also includes salt and cement distribution
terminals not located on mine property....
(emphasis added). Thus, the Secretary made these "jurisdictional
determinations" after considering all of the relevant factors
thereby eliminating the need to resolve jurisdictional issues at
these facilities on a case-by-case basis. All cement plants are
to be inspected by MSHA, while cement distribution terminals that
are not on mine property and all concrete batch plants are to be
inspected by OSHA. I conclude that, as a consequence, further
analysis of the processes used within the facilities listed in
Paragraph B(6) is both unnecessary and unwarranted.
Appendix A of the Interagency Agreement contains "a list
with general definitions of milling processes for which MSHA has
authority to regulate..." under the heading "Milling - MSHA
Authority." It is noteworthy that this list is specifically made
"subject to Paragraph B6 of the Agreement." I interpret that
language to mean that the determinations made in Paragraph B(6)
take precedence over the provisions of Appendix A.
It is also instructive to note that most facilities are made
subject to MSHA jurisdiction under Paragraph B(6)(a) only under
certain circumstances. Electrolytic plants, for example, are
subject to MSHA jurisdiction only if they are an integral part of
mining operations. There are no qualifications for cement
plants, however. All cement plants are subject to MSHA
jurisdiction no matter what processes are used at the facility or
where they are located. Thus, the fact that the Lyons Cement
Plant uses all of the materials in its stockpiles of mined rock
in the final product does not defeat MSHA jurisdiction. MSHA
jurisdiction at cement plants does not depend upon whether the
processes within the plant separate valuable parts of the earth's
crust from the worthless parts. Under paragraph B(6)(a) of the
Interagency Agreement, the Secretary defined mineral milling to
include all activities at cement plants.
It is significant that Dr. Yarar testified that, at some
cement plants, waste products must be separated from the valuable
limestone to remove contaminants from the final product. (Tr.
336-37). He stated that mineral milling is taking place at these
plants. On this basis, Watkins argues that if MSHA exercised
jurisdiction over such a cement plant it would "arguably be a
proper use of the Secretary's discretion because the plant might
... be viewed as either engaging in a milling process or a
manufacturing process." (Watkins Br. 25). This may be one of
the distinctions that the Secretary was attempting to avoid when
she determined that all cement plants shall be inspected by MSHA.
Under Watkins' theory, some cement plants must be inspected by
OSHA while others could or should be inspected by MSHA, depending
on the purity of the limestone entering the plant. The safety
and health hazards at these cement plants would not be any
different. I conclude that the fact that some cement plants do
engage in "mineral milling," as that term is used by Dr. Yarar,
supports the Secretary's position in this case. Although some
cement plants do not, in an engineering sense, engage in mineral
milling, the Secretary determined that she will exercise her
jurisdiction through MSHA rather than OSHA at all cement plants
as an administrative convenience. By making this determination
in the Interagency Agreement, the Secretary avoids having to
analyze each cement plant on a case-by-case basis to determine
whether "mineral milling" is occurring at that particular plant
at the time of the inspection.
The next issue is whether the Secretary abused her
discretion when she determined that all cement plants engage in
mineral milling thereby making them subject to MSHA jurisdiction.
Watkins argues that the Secretary abuses her discretion when she
interprets the Act to allow MSHA to inspect the cement plant in
this case because her interpretation contravenes the plain
language of the Act and the definitions contained within the
Interagency Agreement. Watkins contends that the Secretary has
arbitrarily construed the processes at the plant to be mineral
milling despite her own definitions and those applied by the mine
engineering community. It further states that "[t]o the extent
that the [Interagency Agreement] specifically places cement
manufacturing under MSHA's jurisdiction, pursuant to the
Secretary's ability to define mineral milling, such a
determination is unexplained and is therefore inadequate, in
addition to being irrational, and not entitled to deference."
(Watkins Br. 25). It argues that MSHA cannot impermissibly
"bootstrap" itself into an area in which it has no jurisdiction.
I find that the Secretary did not abuse her discretion when
she determined that cement plants are to be inspected by MSHA
rather than OSHA. The line between the two agencies can be
logically drawn in a number of places. In the cement industry,
she chose to draw it between cement plants and concrete batch
plants. She also chose to include all cement plants under MSHA's
jurisdiction not just those that have a milling circuit that
separates the constituent parts from waste materials. There has
been no showing that the general processes, much less the safety
and health hazards, would be any different in cement plants that
must separate waste material in the milling circuit as compared
to those that do not. The same operations and hazards would be
present in each instance, except that materials would be
segregated at some point along the line in the former. Having a
different Assistant Secretary conduct safety and health
inspections at cement plants that include a circuit that
separates waste material from the product stream is illogical.
It is true that there is no information as to how the
Secretary came to this determination, other than the fact that
cement plants are generally located near limestone quarries. I
do not know if most cement plants must separate out waste
material or whether the Lyons Cement Plant is more typical. The
Secretary did not introduce any evidence on this issue but this
is not a crucial question. Congress granted the Secretary broad
power to decide what constitutes mineral milling. There is no
indication that Congress wanted the Secretary to adhere to a
technical engineering definition. Congress stated that "what is
considered to be regulated under this Act be given the broadest
possible interpretation, and ... that doubts be resolved in favor
of inclusion of a facility within the coverage of the Act."
(Legis. Hist. 602). This language and the final sentence in
section 3(h)(1) "gives the Secretary discretion, within reason,
to determine what constitutes mineral milling, and thus indicates
that [her] determination is to be reviewed with deference both by
the Commission and the courts." Donovan v. Carolina Stalite Co.,
734 F.2d 1547, 1552 (D.C. Cir. 1984). "In this highly technical
area deference to the Secretary's expertise is especially
appropriate." Id. at n. 9.
A recent court of appeals decision closely parallels the
present case. In In re: Kaiser Aluminum and Chemical Co., 214
F.3d 586 (5th Cir. 2000), petition for cert. filed, 69 USLW 3366
(Nov. 13, 2000)(No. 00-770), Kaiser challenged MSHA jurisdiction
at its alumina plant. The employer argued that the alumina
production process used at its plant was not mineral milling. As
in the present case, the employer relied upon engineering
concepts and Appendix A to the Interagency Agreement in making
its arguments. Kaiser argued that, unlike other alumina plants,
its facility did not crush or grind the bauxite. Thus, it
attempted to distinguish its plant from other alumina plants
based on definitions and examples set forth in Appendix A. The
court concluded that "the [Interagency] Agreement could not be
more clear that `[p]ursuant to the authority in section 3(h)(1)
to determine what constitutes mineral milling ... MSHA
jurisdiction includes ... alumina and cement plants.' " Id. at
592 (footnote omitted). The court concluded that "MSHA's
statutory interpretation of milling" was reasonable under the
concepts developed in Chevron v. NRDC, 467 U.S. 837, 843 (1984).
Id. at 591. The same logic applies to the facts in this case.
It is also important to note that the Secretary's
interpretation has been consistently applied for a lengthy period
of time. The Interagency Agreement was first published in the
Federal Register in April 1979. MSHA has inspected cement plants
throughout the country since that time. Indeed, the Lyons Cement
Plant has been inspected by MSHA without challenge since MSHA was
created.
Finally, I conclude that Congress's grant of authority to
the Secretary to construe the word "milling" is not an
unconstitutional delegation of legislative power. Congress may
not delegate its legislative powers to the executive branch.
Congress must lay forth an intelligible principle that will guide
and direct the executive branch in its delegated tasks. (Watkins
Br. 27). Watkins argues that the final sentence in section
3(h)(1) merely delegates to the Secretary the "authority to give
jurisdiction to an entire plant to MSHA, even if only part of
that plant is engaged in mineral milling." Id. at 30. Watkins
makes the following argument:
[The Secretary] interprets the phrase
"convenience of administration" to allow MSHA
to exercise jurisdiction over the Lyons Plant
even though ... the uncontested testimony
proves that nowhere in the plant is there any
sort of mineral milling process as defined
both by the Secretary and by the mining and
metallurgical industries. Other than being
patently contrary to the plain language of
the Mine Act and Congress's intent in passing
the Mine Act, ... such an interpretation
would force the Mine Act to be read in a
manner that is unconstitutional.
Id. at 31. Watkins argues that under the Secretary's
interpretation, the phrase "convenience of administration" offers
no objective guidance or limitation on the Secretary's power to
define milling. Instead, it is "a positive grant of power to the
Secretary to extend MSHA's jurisdiction without limit." Id. I
disagree with Watkins' reasoning.
Cement plants are closely associated with the quarries from
which limestone is obtained. For the reasons discussed above,
the Secretary's interpretation of the language in section 3(h)(1)
to allow her to include all cement plants under MSHA jurisdiction
is not unreasonable. The language of that section specifically
delegates to the Secretary the power to define mineral milling so
as to give one Assistant Secretary "the authority with respect to
the health and safety of miners employed at one physical
establishment." But, as the D.C. Circuit stated, that language
"gives the Secretary guidance concerning one criterion to be
employed in exercising [her] discretion." Donovan at 552
(emphasis added). The Secretary may consider other factors in
exercising her discretion to determine what constitutes mineral
milling. Her interpretation of her authority under section
3(h)(1) with respect to cement plants is not so far afield as to
approach an unconstitutional delegation of legislative powers to
the executive branch.
In making this argument, Watkins relies on Industrial Union
Dep't v. American Petroleum Inst., 448 U.S. 607 (1980), in which
the Supreme Court vacated OSHA's health standard that lowered the
exposure limit for benzene. I find that this reliance is
misplaced. Under the OSHA statute, a safety or health standard
must be "reasonably necessary or appropriate to provide safe or
healthful employment and places of employment." 29 U.S.C. �
652(8). The Supreme Court interpreted this requirement to mean
that the Secretary, when promulgating a health standard, must
determine that the standard is "reasonably necessary and
appropriate to remedy a significant risk of material health
impairment." Id. at 639. It is clear that Congress wanted the
Secretary to establish a scientific basis for exposure limits
before promulgating health standards under the OSHA statute. It
is equally clear that Congress directed the Secretary to take a
practical approach when dividing jurisdiction between OSHA and
MSHA. There is no indication that Congress intended that the
Secretary be constrained by engineering definitions when
determining what constitutes mineral milling. I find that the
Secretary established that MSHA had jurisdiction over the work
that Watkins was performing at the Lyons Cement Plant.
Based on the foregoing, I find that MSHA had jurisdiction to
inspect the Lyons Cement Plant, including Watkins' bag house
construction project. All of the other arguments made by Watkins
concerning jurisdiction in its brief and reply brief are
rejected.
B. Citations and Orders
1. Citation No. 7923622
Citation No. 7923622 alleges a violation of 30 C.F.R.
� 56.11012, as follows:
Contract employees were exposed to a fall
hazard at the bag house level, on both ends
of the dust collector. The openings were
approximately five feet wide and 70 feet from
the ground level. The openings were located
approximately five feet from the access doors
for the east and west bag houses. The
openings were also being used by contract
employees as a means of accessing the bag
house level from a man lift.
MSHA Inspector Richard Laufenberg determined that the
violation was of a significant and substantial nature ("S&S") and
was a result of Watkins' high negligence. The citation was
issued under section 104(d)(1) of the Act. Section 56.11012
provides, in part, that "[o]penings above, below, or near
travelways through which persons or materials may fall shall be
protected by railings, barriers, or covers." The Secretary
proposes a penalty of $2,000 for this alleged violation.
There is no dispute that the cited openings were not
protected by railings, barriers, or covers. The issue is whether
such protection was required by the standard in this instance.
Watkins was constructing a bag house for the plant, which was a
separate building within the plant. The building was comprised
of two large compartments, which were to contain the collecting
bags called "socks." There were openings at each end of this
building that were about 70 feet above the ground. The openings
were four- to five-feet wide and were used to gain access to the
large compartments during construction of the bag house via a
man-lift. There were no barriers at these openings. The two
openings were connected by what Watkins refers to as a
"breezeway" that ran between the two compartments. To enter the
compartments, Watkins' employees stepped onto the man-lift at
ground level, were lifted to the opening at the north end of the
building, exited the man-lift into the breezeway through the
opening, traveled a few feet down the breezeway, and entered the
compartments via doors along the sides of the breezeway. The
floor of this breezeway was the top of a heating duct. This
configuration existed only during construction of the bag house.
When completed, metal stairs were attached to the outside of the
bag house to provide access to the opening, which was equipped
with doors. Flooring was also installed in the breezeway.[1]
The Secretary contends that this breezeway was a travelway
that was included within the protections of the standard.
Watkins argues that the Secretary failed to establish a
violation. First, it argues that the breezeway was still under
construction and was not used on a regular basis. In addition,
it states that its employees were not walking "on a `travelway,'
but were instead walking on top of a heating duct." (W. Br. 36).
Further, Watkins contends that the evidence establishes that
workers were required to be tied off at all times while working
in the bag house.
Watkins maintains that there was no danger of falling
through the opening because it had work procedures in place to
protect its employees. The long side of the man-lift basket was
required to be placed flat against the wall of the bag house.
The employee would then lift the center bar on the basket, crawl
under the top bar, and enter the breezeway. The basket more than
covered the opening on the bag house. In addition, the employee
was required to be tied off at all times. It contends that there
was no danger of falling if the proper procedures were used
because whenever anyone was in the breezeway the basket of the
man-lift acted as a barrier. The fact that the employee was tied
off at all times provided additional protection.
As discussed in more detail below, these procedures were not
all being used when Jefferson Blaine Davis fell from the opening.
The short end of the man-lift basket was positioned adjacent to
the opening, leaving a gap to one side. In this instance, Mr.
Davis disconnected his safety line from the support structure on
the basket before he climbed over the top rail into the
breezeway. He lost his footing and fell about 70 feet to the
ground.
The issue is whether this opening was required to be
protected by railings or barriers. I find that the breezeway was
a travelway as that term is used in the safety standard. During
the several days that the "socks" were installed in the two
compartments of the bag house, workers had to travel through the
breezeway to get to their place of work. The fact that the area
was under construction or that the floor of the breezeway was the
top of a heating duct is irrelevant. I also reject Watkins'
argument that the breezeway was not a travelway because workers
were traveling through the area for only a few days. I find that
while Watkins' employees were installing the socks, the breezeway
was a travelway. The Secretary defines "travelway" 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. The
breezeway fits within this definition. The cited opening was
immediately adjacent to this travelway.
The next issue is whether "persons or materials" could
reasonably be expected to fall through the opening. 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). I believe, however, that this safety
standard requires the Secretary to establish that the cited
condition created a safety hazard.
I find that a safety hazard was created by the cited
condition. First, even if the proper procedures for entering and
exiting the bag house were followed, there is a chance that a
person or materials could fall. For example, if a worker were
trying to get down from the area, he might get too close to the
edge of the breezeway before the lift basket was in place. Even
if he were hooked up to a safety line, he could be injured by the
short fall. More importantly, a worker could make errors of
judgment when entering and exiting the breezeway. This safety
standard is, in large measure, designed to protect against such
errors of judgment. As the Commission stated, "[e]ven a skilled
employee may suffer a lapse of attentiveness, either from fatigue
or environmental distractions...." Great Western Electric Co., 5
FMSHRC 840, 842 (May 1983).
The condition was abated by attaching angle iron to the
edges of the opening to provide a partial barrier and then
attaching chains across the remaining opening. (Ex. P-6).
Although no method of abatement would be foolproof, this barrier
provided significant protection against falls. The fact that the
chains would have to be removed when workers were entering and
exiting the breezeway is not a defense.
Inspector Laufenberg determined that the violation was very
serious and 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).
Inspector Laufenberg based his S&S determination on the fact
that, unless the long side of the basket of the lift were
present, there was nothing to prevent a worker from falling from
the opening. He believed that the metal braces across the top of
the air duct presented a tripping hazard to employees walking
between the doors to the bag house compartments and the cited
breezeway openings. (Tr. 195). It had been snowing and raining
during January 1999 and light snow had accumulated in the
breezeway. (Tr. 195; Ex. P-6). He was also concerned about the
number of times employees entered and exited the area, as well as
the sheer 70-foot drop to the concrete below.
I find that the Secretary established that this violation
was S&S. A discrete safety hazard was contributed to by the
violation. There was also a reasonable likelihood that the
hazard contributed to would result in an injury. The cited
openings were the only means of access to the bag house
compartments. Watkins' employees were installing the socks in
the bag house compartments. The testimony establishes that
workers were entering and exiting the bag house via the man-lift
about eight times a day. They would enter the bag house at the
beginning of the day, exit during breaks, and exit for lunch.
Two or more employees were working in the bag house during this
period. Except during those brief periods that the basket for
the lift was present, there was no protection whatsoever. The
presence of snow and the braces on top of the air duct increased
the tripping and slipping hazard.
I also find that it was reasonably likely that an injury
would be of a reasonably serious nature. The fact that employees
were required to wear safety lines when entering and exiting the
opening lessened the risk of a fatal injury, but the risk of a
serious injury remained. If a worker were to fall out of the
opening while wearing a safety line, he could sustain serious
injuries.
Inspector Laufenberg also determined that the violation was
caused by Watkins' unwarrantable failure to comply with the
safety standard. He believed that Watkins exhibited high
negligence because the violation was obvious; the condition
existed for a period of time; the opening was 70 feet above the
ground; and employees had to enter and exit the breezeway
frequently each day. (Tr. 196).
Unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987). Unwarrantable failure is
characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of
reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal
Co., 13 FMSHRC 189, 193-94 (February 1991). The Commission
stated that "a number of factors are relevant in determining
whether a violation is the result of an operator's unwarrantable
failure, such as the extensiveness of the violation, the length
of time that the violative condition has existed, the operator's
efforts to eliminate the violative condition, and whether an
operator has been placed on notice that greater efforts are
necessary for compliance." Mullins and Sons Coal Co., Inc., 16
FMSHRC 192, 195 (February 1994)(citation omitted).
I find that Watkins' failure to protect the openings at the
bag house with railings or barriers constituted an unwarrantable
failure to comply with the safety standard. I agree with the
inspector that the violation was obvious. Employees walked along
the breezeway to get to their place of work in the bag house and,
in doing so, they traveled close to and through this opening.
Anyone working at or around the bag house could see the openings,
including Watkins' management. The condition had existed for a
number of days. Prior to using the man-lift, employees were
entering the breezeway via a ladder on the south side of the bag
house. This practice was halted by Watkins management because of
the hazards presented by snow and wind. Throughout this period,
workers traveled in proximity to the two openings. The height of
the openings above the ground and the fact that employees had to
travel through the area more than a few times a day also
demonstrate Watkins' high negligence.
For the reasons set forth above, this citation is AFFIRMED.
Taking into consideration the penalty criteria in section 110(i)
of the Act, I assess a penalty of $2,000 for this violation.
2. Order No. 7923623
Order No. 7923623 alleges a violation of 30 C.F.R. �
56.14205. After briefs were filed, the Secretary moved to vacate
this order because she "concluded that the evidence is
insufficient to support a violation of the standard." Watkins
does not oppose the motion. For good cause shown, the motion is
granted and this order is VACATED.
3. Order No. 7923625
Order No. 7923625 alleges a violation of 30 C.F.R.
� 56.11001, as follows:
A non-fatal, serious accident occurred at the
mine site on 01/21/99 at approximately 3:30
pm when a contract laborer fell while
climbing out of a man lift basket he had been
riding in. The laborer fell approximately 70
feet, landing on a concrete pad. He unhooked
his lanyard, used the railings of the basket
to climb out, slipped, lost his grip and
fell. The contract operator's failure to
ensure that a safe means of access was
provided and being used by their employees is
an unwarrantable failure to comply with a
mandatory standard.
MSHA Inspector Laufenberg determined that the violation was
S&S and was a result of Watkins' high negligence. The order was
issued under section 104(d)(1) of the Act. Section 56.11001
provides that "[s]afe means of access shall be provided and
maintained to all working places." The Secretary proposes a
penalty of $50,000 for this alleged violation.
Ordinarily, employees would enter and exit the breezeway
via a staircase from the ground. At the time of the accident,
this staircase had been partially constructed but it had not been
installed on the south side of the building. (Tr. 244). Until
about three days before the accident, Watkins' employees entered
and exited the breezeway via a ladder at the south end of the bag
house. The opening to the breezeway at the south end was also
very high off the ground. Because of the snowy conditions and
wind, Watkins' management determined that using a ladder to
access the bag house breezeway presented safety hazards.
Insulation panels were being installed on the outside of the bag
house building at this time by a subcontractor, Mountain States
Engineering ("Mountain States"). Mountain States had leased the
Snorkel man-lift in question for use in installing the insulation
panels. Watson made arrangement with Mountain States to use
this man-lift to transport Watkins' employees to the opening in
the bag house building.
During the accident investigation, Inspector Laufenberg
testified that Walter J. Brannan, foreman for Mountain States,
advised him that Anthony Perez, a sheet-metal worker for Mountain
States, was the individual who operated the man-lift for Mountain
States. (Tr. 185;
Ex. P-8, p. 23-24). Laufenberg also testified that Brannon told
him that it was his understanding that Perez would operate the
lift whenever a Watkins employee needed to be taken up to the
breezeway. Id. Perez was advised to place the long end of the
man-lift basket against the building whenever anyone was
transported to or from the breezeway. Id.
Mr. Perez told Inspector Laufenberg that he was instructed
by Mr. Brannon to take only one Watkins employee up at a time
and to always place the long end of the man-lift basket against
the bag house. (Ex. P-8, p. 24). Perez also told Laufenberg
that he was instructed to make sure that the Watkins employee was
tied off in the basket and that the employee exited the basket by
lifting the middle railing rather than climbing over the railing.
Id. Perez told Laufenberg that he always followed this
procedure.
During his investigation, Inspector Laufenberg also
interviewed Jeffery Bochette, the general foreman for Watkins.
Bochette told him that he never discussed with Watkins' employees
the proper procedure for getting to and from the breezeway via
the man-lift. (Tr. 185; Ex. P-8,
p. 26). He also told the inspector that he was not aware that
Jeremy Boyette, an hourly employee for Watkins, was operating the
lift to get employees in and out of the bag house. (Ex. P-8, p.
25).
Mr. Boyette told Laufenberg that he operated the man-lift
about 10 to 15 times. (Ex. P-8, p. 14-15). He also told
Inspector Laufenberg that he never saw anyone place the long end
of the lift basket against the bag house when transporting
employees to the breezeway. Id. Boyette had operated man-lifts
at other job sites, but he was not given any specific
instructions on how to transport employees up to the breezeway.
(Ex. P-8, p. 4-5).
The basket on the man-lift is about 7.5 feet long and 2 feet
2 inches wide. The basket is equipped with a 5- to 6-inch kick
plate, a middle rail and a top rail. (Tr. 162-63; Ex. P-5, p.
5). The top rail is about 3.5 feet above the floor of the
basket. (Ex. P-8, p. 3). The controls for the lift are at the
back of the basket adjacent to where the basket is connected to
the boom. The rails along the front of the basket, opposite the
controls, are supported by four posts, one at each corner and two
in the middle. Thus, the front railing is divided into thirds.
The middle third of the middle rail slides up to the top rail.
Apparently, both Mountain States and Watkins agreed, prior to the
use of the lift to transport employees to the breezeway, that the
proper way to enter and exit the basket at the breezeway is to
lift the middle rail and crouch under the top rail. In order to
enter and exit the basket in that manner, the long end of the
basket must be positioned against the bag house building.
On January 21, 1999, Mr. Davis was assigned to work inside
the bag house compartments. Mr. Davis testified that he had been
working in the bag house installing the socks in the days prior
to the accident. He said that he entered the breezeway eight to
ten times a day during that period. (Tr. 100). Davis said that a
Hispanic gentleman with the insulation contractor operated the
lift most of the time and that Jeremy Boyette operated it other
times. (Tr. 101-02). Davis testified that at the time of the
accident, Boyette was operating the lift and that there was a
third person on the lift as well. In addition, he testified that
there were about four panels of insulation on the lift. (Tr.
110). During his investigation, Inspector Laufenberg measured
these insulation panels. Each panel was about 22 inches wide, 48
inches high, and 4 inches thick, and weighed between 19 and 20
pounds. (Tr. 163; Ex. P-8, p. 5).[2]
Davis testified that every time he was taken up to the
breezeway in the lift, the lift basket was positioned so that the
short end was up against the opening to the breezeway. (Tr.
103). The operator of the lift would attempt to place the floor
of the lift basket even with the bottom of the breezeway. To
exit the basket, he climbed over the top rail on the short end of
the basket and stepped into the breezeway. (Tr. 106). The
middle rail does not lift on the short ends of the basket. He
also stated that he was always protected by his safety belt and
line when he followed this procedure. He did not unhook his
lanyard from the railing of the basket until he was in the
breezeway. The opening to the breezeway was about five feet wide
and the short end of the basket was about two feet two inches
wide. Consequently, the opening for the breezeway was almost
three feet wider than the end of the basket.
Davis testified that at the time of the accident the basket
was on the right (west) side of the opening so that the three
foot "gap" was on the left (east) side of the basket. (Tr. 112-
13). Davis testified that when Boyette took him up to the
breezeway at the time of the accident, there were four insulation
panels on the end of the basket that he had to climb out of.
Davis further testified that he did not attempt to move the
insulation panels, but used his arms to pull himself up on top of
the insulation panels using the top rails for support. He sat on
top of the panels with his feet facing the building. He then
began pushing himself across the top of the insulation panels
towards the building. At this point, he was above the height of
the top rail on the basket. (Ex. P-5, p. 5). When he reached the
top rail of the end of the basket next to the building, he
placed one foot on the middle rail. (Tr. 112) He testified
that he had to unhook his safety line from the railing of the
basket at this point because that was "as far as I can go."
(Tr. 112). He implied that the safety line was not long enough
for him to enter the breezeway while it was still connected to
the railing of the basket. (Tr. 112, 139). He did not attempt to
retie the lanyard to the rail that he was sitting on. He testified
that he did not do so because he was going to tie off on the
"structure," meaning the bag house building. (Tr. 139).
There were several metal components on the bag house at the
entrance of the breezeway that can be used. (Ex. P-6, p. 1).
As Davis was sitting on the top rail with one foot on the
middle rail, he placed the other foot on the entrance to the
breezeway. Davis testified that his forward foot slipped, he
fell backwards, hit the left corner of the basket, and fell
through the three-foot gap between the left corner of the basket
and the left side of the opening to the breezeway. (Tr. 112).
He fell approximately 70 feet to a concrete pad below.
Inspector Laufenberg testified that he issued this order
because he believed that Watkins had not provided a safe means of
access for its employees to enter the bag house compartments.
(Tr. 186). He stated that he issued the order because the short
end of the man-lift basket was being positioned against the
opening to the breezeway and Watkins' employees were climbing
over the top rail of the basket to enter the breezeway. (Tr.
186-87). He believed that this means of access was unsafe, even
if employees were tied off at all times. A safety belt and line
do not provide fall protection, they just keep a worker from
falling all the way to the ground. Id. An employee falling from
the breezeway while tied off would still be likely to sustain
injuries as a result of the fall. (Tr. 187-88).
Inspector Laufenberg also testified that it was highly
likely that someone would be seriously injured as a result of
this condition. (Tr. 189). Finally, he testified that he
determined that Watkins was highly negligent for allowing its
employees to enter and exit the short end of the basket over the
top rail and that the violation was caused by its unwarrantable
failure to comply with the safety standard. (Tr. 189-90, 217-
18).
Watkins maintains that it did not violate the safety
standard because it established a safe means of access. Whenever
an employee needed to go up to the bag house compartments, he was
to get into the lift basket with Mr. Perez, who would operate the
lift. Mr. Perez would position the basket so that the long side
was against the building. The Watkins employee would remain tied
off at all times. At the top, the employee would raise the
center bar of the middle handrail of the basket and crawl under
the top handrail. Once the employee was out of the basket, Mr.
Perez would unhook the employee's lanyard and the employee would
attach it to a structure within the building. Because the lift
basket would remain in place until the employee entered the door
to one of the bag house compartments, there was no danger of
anyone falling. The opening to the breezeway would remain
completely protected at all times. Watkins argues that the
Secretary presented no evidence that this means of entering and
exiting the breezeway was unsafe.
In addition, Watkins contends that Mr. Davis's testimony as
to the events of the day of the accident should not be credited.
It notes that he has a civil action pending against Watkins in
California over this accident. It also notes that Davis is a
convicted felon. Watkins raises several factual discrepancies in
Mr. Davis's testimony. For example, Davis testified that it
would have not been possible to move the insulation panels to the
other side of the basket. Boyette, the basket operator, told
Inspector Laufenberg that he was starting to move the panels
when, without warning, Davis climbed on top of them. In
addition, Mr. Bartholomew testified that the safety line on the
safety belt that the company provided Davis is six feet long.
Watkins maintains that Davis's testimony that he was restrained
by his safety line and was forced to unhook it to exit the basket
is contrary to the facts.
Another factual inconsistency relates to the statement of an
eyewitness to the accident. Donald Busbee, a Watkins hourly
employee, saw the accident from the ground. He told Inspector
Laufenberg that Davis was standing, not sitting, on the top rail
of the basket when he fell. Busbee told Laufenberg that Davis's
hands were holding a flange above the breezeway opening at the
time of the accident. (Ex. P-8, p. 8 & 17). There was also
conflicting evidence as to the number of people in the basket.
Finally, Watkins objects to the Secretary's attempt to establish
that the base of the lift was located in a position where it
would have been impossible to place the long end of the basket
against the bag house building at the breezeway. It contends it
would have been easy for Mr. Boyette to move the base of the lift
in any event.
Watkins argues that the Secretary bases her case, not on any
failure by Watkins to provide a safe means of access, but because
an alleged unsafe method was used at the time of the accident.
It contends that every possible means of access need not be made
safe, only those that are reasonably possible. Hanna Mining Co.,
3 FMSHRC 2045, 2046-47 (September 1981). The Secretary failed to
show that Mr. Davis's means of entering the bag house was
reasonably foreseeable by Watkins. Mr. Bartholomew testified
that he had never seen anyone access the bag house by positioning
the short end of the basket against the building (Tr. 246, 286-
87). It also argues that Mr. Davis knew the correct way to use
the man-lift to access the bag house building and that he knew he
was required to be tied off at all times. In addition, even if
it was foreseeable that an employee might climb over the top
rail, there is no persuasive evidence that he would be injured if
he were using his safety line.
I find that the Secretary established a violation. The
evidence establishes that Watkins' employees regularly entered
the breezeway by climbing over the top rail at the short end of
the basket. The testimony of Mr. Davis and the statements of
several Watkins' employees support this finding. Both Mr.
Boyette and Mr. Busbee told Inspector Laufenberg that they had
never seen anyone place the long side of the lift basket against
the building. Busbee said that he rode in the lift about 10
times and Boyette said he operated the lift 10 to 15 times.
Two individuals stated that the long end of the basket was
placed against the building on a regular basis. Mr. Perez told
Inspector Laufenberg that every time he took a Watkins employee
up to the breezeway, he followed the proper procedure. (Ex. P-8,
p. 24-25). He also said that he took Mr. Bartholomew up several
times on the days preceding the accident by placing the long end
of the basket against the bag house building. He told Laufenberg
that he did not take Bartholomew up on the day of the accident.
He also stated that he was not present when anyone else operated
the man-lift. Id.
Mr. Bartholomew testified that he had never observed anyone
enter or exit the breezeway via the short end of the basket of
the lift. (Tr. 246, 288). He stated that if he had seen anyone
doing that, he would have counseled them about the proper
procedure. Bartholomew also testified that he was rarely at the
north end of the bag house building, but he did observe the
basket being positioned correctly several times. (Tr. 238-39,
247, 287-88). He also stated that Mr. Perez took him up to the
breezeway prior to the accident on that same day. (Tr. 274, 285-
86). When Mr. Bartholomew heard about the accident, he left his
office trailer at the south end of the bag house building and
walked to the north end. (Tr. 245). He observed that the short
end of the man-lift basket was adjacent to the building. (Tr.
290).
The Secretary established that Watkins' employees were
regularly transported to the breezeway in the manner described by
Mr. Davis. The short end of the basket was placed against the
building at the breezeway and employees climbed over the top rail
into the breezeway. The hearsay evidence presented through
Inspector Laufenberg shows that Boyette used this procedure on a
regular basis and that he had not been trained or advised to
follow any other procedure. Hearsay evidence is admissible in
Commission proceedings as long as it is relevant. 29 C.F.R.
� 2700.63. The testimony and notes of Inspector Laufenberg with
respect to this issue corroborate the testimony of Mr. Davis. I
credit Inspector Laufenberg's testimony.
Mr. Bartholomew was not in a position to know how Watkins'
employees were getting out of the basket at the breezeway. His
office trailer was at the opposite (south) end of the bag house
building and he rarely was at the north end. Thus, his testimony
does not rebut the testimony of Mr. Davis and Inspector
Laufenberg that employees were required, on a frequent basis, to
exit the basket by climbing over the top rail at the short end.
Although there was a safe means of access to the breezeway, as
set forth by Mr. Bartholomew, it is clear that the cited, unsafe
method was used on a regular basis.
The Commission's decision in Hanna Mining Co. does not
support Watkins' position in this case. In that case, the
Commission reasoned:
We agree with the Secretary and the judge
that the standard requires that each "means
of access" to a working place be safe. This
does not mean necessarily that an operator
must assure that every conceivable route to
the working place, no matter how circuitous
or improbable, be safe. For example, an
operator could show that a cited area is not
a "means of access" within the meaning of the
standard, by proving that there is no
reasonable possibility that a miner would use
the route as a means of reaching or leaving a
workplace.
3 FMSHRC at 2046. In the present case, the evidence shows that
Boyette, a Watkins employee, was regularly taking employees to
the breezeway via the unsafe route. Boyette's conduct was
neither unforeseeable nor improbable. Mr. Bochette, Watkins'
general foreman, told Inspector Laufenberg that he had not been
in the bag house since the ladder was taken away and that he
never saw anyone operate the man-lift. (Ex. P-8, p. 25).
Bochette and Mr. Brannan of Mountain States established a safe
procedure to be used when using the man-lift, but Bochette told
Laufenberg that he never discussed these procedures with Watkins'
employees. Id. at 23 & 26. Bochette apparently assumed that
only Mr. Perez would be operating the lift because he told
Laufenberg that he did not even know that Boyette was operating
the lift. The standard requires employers to provide and
maintain a safe means of access to all working places. This
responsibility is not met by establishing a safe procedure and
then failing to advise the affected employees of the procedure
and failing to take any steps to see that the safe procedure is
being implemented.
One of Mr. Davis's legs was amputated as a result of this
accident and he has a civil suit against Watkins pending in
California, his home state. (Tr. 121-22, 129). Mr. Davis
admitted that, when he was younger, he was convicted of stealing
"a car and stuff like that." (Tr. 122). His testimony about the
issues before me is consistent with the statements that other
employees gave to Inspector Laufenberg. Most of the
inconsistencies referred to by Watkins are not relevant in this
proceeding and I make no attempt to resolve them. Such
inconsistencies include whether Davis was standing or sitting
when he fell, the number of people in the basket at the time of
the accident, and whether there were physical impediments to
placing the long side of the basket against the building.
I also find that the violation was serious and S&S. It was
very hazardous for Mr. Davis and other Watkins employees to climb
over the top rail of the short end of the basket to enter the
breezeway. An employee could slip and fall as Mr. Davis did and,
because there was a three-foot opening that was not covered by
the basket, it was reasonably likely that he would be seriously
injured. (Tr. 187-89). The fact that employees used safety
lines when entering the breezeway does not alter this finding. A
serious injury was reasonably likely to employees using safety
lines.
Finally, I find that the violation was the result of
Watkins' unwarrantable failure to comply with the safety
standard. Management did very little to make sure that employees
were accessing the breezeway in a safe manner. Management knew
that to provide safe access, the long end of the basket had to be
positioned against the building at the breezeway. Yet, this fact
was not communicated to the employees. The safe procedure was
frequently not followed. Thus, there was no follow-through by
management to make sure that safe access was being provided. I
do not believe that Watkins exhibited "reckless disregard"or
"indifference" with respect to the requirement of safety standard
or that the violation was the result of its "intentional
misconduct." Rather, the violation was the result of its
"serious lack of reasonable care." Watkins removed the ladder
from the south end of the bag house building because management
believed that it did not provide safe access, but it failed to
take steps to make sure that the man-lift, as used by its
employees, provided safe access.
For the reasons set forth above this order is AFFIRMED.
Taking into consideration the penalty criteria in section 110(i)
of the Act, I assess a penalty of $40,000 for this violation.
4. Citation No. 7923626
Citation No. 7923626 alleges a violation of 30 C.F.R.
� 56.15005, as follows:
A non-fatal, serious accident occurred at the
mine site on 01/21/99 at approximately 3:30
pm when a contract laborer fell while
climbing out of the basket of a man lift he
had been riding in. The laborer fell
approximately 70 feet, landing on a concrete
pad. Safety belts and lines shall be worn
when persons work where there is a danger of
falling. The laborer was wearing a safety
harness and line at the time of the accident.
The line was not tied off during the transfer
from the man lift to the work site landing.
MSHA Inspector Laufenberg determined that the violation was
S&S and was a result of Watkins' moderate negligence. The
citation was issued under section 104(a) of the Act. Section
56.15005 provides, in part, that "[s]afety belts and lines shall
be worn when persons work where there is a danger of falling...."
The Secretary proposes a penalty of $35,000 for this alleged
violation.
There is no dispute that Mr. Davis was wearing a safety belt
and line when he fell from the man-lift. It is also undisputed
that he unhooked his safety line before he attempted to get out
of the basket. It is clear under Commission precedent that this
safety standard is violated if the employee is wearing a safety
belt and line but the line is not properly attached. See Mar-
Land Contractor, Inc., 14 FMSHRC 754, 756-58 (May 1992). As
stated above, employers subject to the Act are strictly liable
for violations of safety standards. Accordingly, a violation was
established.
I also find that the violation was S&S. Climbing out of the
short end of the man-lift basket 70 feet above the ground without
a secured safety line created a reasonable likelihood that the
hazard contributed to by the violation would result in an injury
of a reasonably serious nature. The three-foot gap resulting
from the fact that the breezeway was wider than the basket
created a serious falling hazard.
I find, however, that Watkins was not negligent with respect
to this violation. The hazard was created because Mr. Davis, on
his own initiative, disconnected his safety line before he
attempted to get off the basket. Mr. Davis testified that he had
no choice but to disconnect his line because he became stuck on
the top bar at the end of the basket. (Tr. 110). He stated that
his safety line "kept him from going any further." (Tr. 111-12).
Mr. Bartholomew testified that the safety lines in use at the
plant were about six feet long. I credit Mr. Bartholomew's
testimony in this regard. Mr. Davis stated that he tied off on
an upright support near the middle of the basket. (Tr. 127).
The basket was about 7.5 feet long, so he would have been less
than four feet from the position of his tie-off as he was sitting
on top of the insulation. Moreover, Mr. Davis gave no reason for
not retying his safety line to a railing or upright closer to the
end of the basket before he attempted to climb up on the panels.
(Tr. 139). He could have done so. (Tr. 241-42). I credit the
testimony of Mr. Bartholomew over that of Mr. Davis on these
issues.
More importantly, I find that Mr. Davis's method of
dismounting from the basket was idiosyncratic and unforeseeable
to his employer. As stated above, Davis climbed up on top of the
insulation panels, placing himself above the plain of the upper
rails of the basket, unhooked his safety line, and attempted to
step into the opening of the breezeway. Mr. Boyette, the man-
lift operator, told Inspector Laufenberg that he was in the
process of moving the insulation panels when Davis climbed up on
top of them. (Tr. 214; Ex. P-8, p. 15). Mr. Davis claimed that
there was no room in the basket to move the panels. Even if I
credit this testimony, he could have insisted that they be moved
before he entered the basket, or he could have asked that the
basket be taken back down to move them. Davis was well aware of
Watkins' safety rule requiring that each employee be tied off
whenever anyone was six feet or more off the ground. (Tr. 138).
I credit the testimony of Mr. Bartholomew concerning Watkins'
training program on that rule. Watkins regularly trained
employees to follow this rule at all times. Davis was reminded
of this rule when he started working in Colorado and he also knew
of this requirement from his previous experience and training
with Watkins on other projects in California. (Tr. 235-37).
I reject the Secretary's arguments on this issue. She
contends that the evidence establishes that Watkins was lax on
the enforcement of this standard, relying upon the fact that it
was cited for violating this standard on two previous occasions.
(Ex. P-1). She also relies upon the fact that Davis did not
attend the safety meeting that was held on January 4, 1999, at
which the 100% tie-off rule was discussed. Davis apparently
missed the safety meeting because it was his first day on the job
at the plant. These facts do not establish that the company was
lax in enforcing its tie off rule, at least on this job.
I find that Watkins could not have anticipated that an
employee would climb up on the insulation panels, unhook his
safety line, and then step or jump into the breezeway without any
fall protection. I credit the testimony of Bartholomew that, up
until the time of the accident, Davis had a good record of tying
off and following job rules. (Tr. 238). Davis testified that in
all previous trips up to the breezeway in the basket he had
remained tied off the entire time. (Tr. 109-10). Based on the
foregoing and the fact that Davis's conduct was quite
idiosyncratic and unforeseeable, I find that Watkins was not
negligent with respect to this violation. Consequently, I vacate
Inspector Laufenberg's moderate negligence determination. For
the reasons set forth above, this citation is AFFIRMED, as
modified. Taking into consideration the penalty criteria in
section 110(i) of the Act, I assess a penalty of $500 for this
violation.
II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Act sets out six criteria to be
considered in assessing appropriate penalties. Watkins performs
construction work nationwide and it was issued 32 MSHA citations
during the two years prior to this accident. (Ex. P-1). Watkins
has about 2,800 employees nationwide and, in 1998, its employees
worked about 6.8 million hours. (Tr. 4-5). Watkins demonstrated
good faith in abating the citations and orders. Id. The
penalties assessed in this decision will not have an adverse
effect on Watkins' 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.
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/ Order No. 30 C.F.R. � Penalty
7923622 56.11012 $2,000.00
7923623 56.14205 Vacated
7923625 56.11001 40,000.00
7923626 56.15005 500.00
Accordingly, the citations and orders at issue in these
cases are VACATED, AFFIRMED, or MODIFIED as set forth above, and
Watkins Engineers and Constructors is ORDERED TO PAY the
Secretary of Labor the sum of $42,500.00 within 40 days of the
date of this decision. Upon payment of the penalty, these
proceedings are DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Carl B. Carruth, Esq., NcNair Law Firm, P.O. Box 11390, Columbia,
SC 29211 (Certified Mail)
RWM
**FOOTNOTES**
[1]: The witnesses at the hearing used different terms for
the breezeway. For consistency, I use the term "breezeway"
throughout this decision .
[2]: The photographs at Exhibits P-5 and P-6 generally
depict the configuration of the breezeway, the man-lift basket,
and the insulation panels.