<DOC>
[DOCID: f:ws99364.wais]
TXI PORT COSTA PLANT
November 2, 2000
WEST 99-364-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
November 2, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-364-M
Petitioner : A. C. No. 04-00599-05583
v. :
: Docket No. WEST 99-427-M
: A.C. No. 04-00599-05586
:
TXI PORT COSTA PLANT, : Docket No. WEST 2000-50-M
Respondent : A.C. No. 04-00599-05588
:
: TXI Port Costa Plant
DECISION
Appearances: Jason Vorderstrasse, Esq., Office of the Solicitor,
U. S. Department of Labor, Los Angeles, California
and Alan Raznick, Esq., Office of the Solicitor, U.S.
Department of Labor, San Francisco, California for
the Petitioner; Steven R. Blackburn, Esq., Epstein,
Becker & Green, San Francisco, California for the
Respondent
Before: Judge Weisberger
Statement of the Case
These cases are before me based upon Petitions for Assess-
ment of Civil Penalty filed by the Secretary of Labor ("Secretary")
seeking the imposition of civil penalties against TXI Port Costa
Plant ("TXI") for allegedly violating various mandatory safety
standards set forth in Title 30 of the Code of Federal Regu-
lations. Pursuant to notice, these cases were heard in Alameda,
California, on July 25 and 26, 2000. On September 29, 2000, TXI
filed proposed findings of fact and a brief. On October 2, 2000,
the Secretary filed a post hearing brief. On October 23, 2000
TXI filed a reply to the Secretary's post hearing brief. On
October 26, 2000, the Secretary filed a reply brief.
I. Docket No. WEST 99-364-M.
Introduction.
TXI's Port Costa Plant extracts shale from an adjoining
quarry, and processes it into kiln-hardened aggregate material
for use in concrete construction. The finished product, marble-
like pellets, approximately � inch in diameter, is moved by a
series of chutes and conveyors to one of six storage silos
grouped together in a single structure covered by a flat roof. A
variety of conveyors, screens, and related machinery are located
on the roof. The height of the silo structure is approximately
80 feet. Access to the roof of the structure is via a grated
metal stairway attached to the side of silo No. 2. The edges of
the roof are guarded by three horizontal parallel rails. The
upper rail is 40 inches above the ground. The other rails are
referred to as the midrail, and toe, respectively.
A miner working in the scalehouse at the foot of the silos
is required to go to the roof of the structure twice each 12 hour
shift, to check the contents of the silos through observation
hatches located on the top of the silos.
A. Citation No. 7972128.
1. Violation of 30 C.F.R. �56.11001.
On April 20, 1999, MSHA inspectors, John Pereza and Jerry
Hulsey climbed to the top of the silo structure with several TXI
representatives including Doug Evans, TXI's maintenance
supervisor. The inspectors observed an accumulation of aggregate
on the top of the No. 2 silo. There is some conflict in the
record regarding the depth of the accumulated aggregate, but the
weight of the evidence establishes that it was at least 6 inches
deep. There was no specific designated path for an employee to
travel on top of the silos to check their contents. Nor was
testimony adduced from any witness having personal knowledge of
the path normally taken by miners assigned to check the top of
the silos. However, the weight of the evidence clearly
establishes that the materials that had accumulated on top of
silo No. 2 were generally in an area where a miner regularly
travels to inspect the contents of the silos. Indeed, both
inspectors testified that they observed footprints in the area of
the accumulated material, and their testimony was not impeached
or contradicted in this regard. Further, Evans indicated that he
has observed a miner walking on top of the silo.
In essence, Pereza opined that the accumulated material
constituted a stumbling or tripping hazard, and issued a citation
alleging a violation of 30 C.F.R. Section 56.11001 which provides
that "[s]afe means of access shall be provided and maintained to
all working places".
I find that the weight of the evidence establishes that on
the day cited there was an accumulation of marble-size pieces of
aggregate to a depth of at least 6 inches on the top of silo No.
2, that a miner regularly traversed the top of silo No. 2 two
times in a 12 hour shift as part of his duties, and that the
accumulated aggregate constituted some degree of a stumbling or
tripping hazard. Accordingly, I find that it has been
established that TXI was not in compliance with Section 56.
11001, supra.
2. Significant and Substantial.
A "significant and substantial" 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 coal or other mine safety or health hazard."
30 U.S.C. � 814(d)(l). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
As set forth above, the record establishes a violation of a
mandatory safety standards and the fact that the violative
condition contributed to a stumbling or tripping hazard. The
critical issues for resolution are the third and fourth elements
of Mathies, i.e., the likelihood of a injury producing event, and
the likelihood of this event producing an injury of a reasonably
serious nature.
It appears to be TXI's position that the evidence does not
establish that there was any hazard of an employee falling off
the silo as a result of the accumulated aggregate. In essence,
TXI argues in this regard that a guardrail located along the
edge of the silo, consisting of three parallel horizontal bars,
the highest being 42 inches above the roof surface of the silo,
protected an employee from falling off the silo, and landing on
the ground 80 feet below. In this connection, the inspector tes-
tified that, at a point along the guardrail, the material had ac-
cumulated to a height of 20 inches which would have, in essence,
diminished the protection of the upper guardrail by effectively
reducing its height. In arguing that this testimony should not
be accepted, TXI refers to geometry calculations predicated upon
a 38 degree angle of repose of the accumulated material, as tes-
tified to by Evans, and the sine of this angle which results in a
conclusion that at a point 12 inches from the edge of the silo[1],
the height of the accumulated material could not have been more
than 3.6 inches. However, I take administrative notice of the fact
that the sine of an angle, which is part of a right triangle, is
the ratio between the side opposite the angle and the hypotenuse,
(Random House Websters Unabridged Dictionary ("Webster's") (2nd Ed.,
1999) at 1784.) in this case an unknown distance. In contrast, the
tangent of an angle in a right triangle, is the ratio between the
side opposite the angle and the side adjacent to the angle. (See
Webster's at 1941.) Hence, given an angle of 38 degrees, and a
horizontal distance of 12 inches from between the edge of the
silo, and applying the tangent of a 38 degree angle, the vertical
height of the accumulation would be at a maximum of approximately
a little more than nine inches. As a result, the relative height
of the bars of the guardrail, especially the upper rail, would be
reduced thus diminishing their ability to protect an employee
from falling off the roof of the silo. In addition, I note the
existence of the following conditions: the round shape of the
accumulated material; the location of a hose in the area, which
created a further stumbling and tripping hazard; the presence of
metal structural cross-members in the area; and the fact that the
area was traveled twice each 12 hour shift. I find that these
conditions, in combination, establish that an injury producing
event was reasonably likely to have occurred. Further, due to
the presence of metal structural cross-members, the reduction in
height of the protective guardrail, and the height of the subject
silo, I find that it was reasonably likely that an injury
resulting from the violation, would have been of a reasonably
serious nature. I thus find that, within the context of this
record, it has been established that the violation was
significant and substantial.
3. Unwarrantable Failure.
The citation at issue alleges the violation herein was as a
result of TXI's unwarrantable failure. Unwarrantable failure has
been defined by the Commission to constitute more than ordinary
negligence i.e., negligence that reaches the level of "aggregated
conduct". Emery Mining Corp., 9 FMSHRC 1997, 2003-2004 (Dec. 1987).
There is an absence of any direct evidence in the record as
to how long the accumulated aggregate had been in existence up
until the time it had been observed by the inspectors on April
20, 1999. The only evidence of record relating to the existence
of material in the cited area consist of notations found in the
OPERATOR'S CHECKLIST BEGINNING EACH SHIFT for April 16, 17 and
18, which, under the listing "Material Build-up", indicates "onto
Silo # 2". (Co. Ex. 7)
I note Evans' testimony that when he reviewed each of these
reports early in the morning after the shift in which they were
written, and noted that "walkways" were checked as "ok", and that
they "were being worked on", he concluded that the reports
indicated that whatever spillage had occurred was being
addressed, and no hazard existed. It appears to be TXI's
position in this regard that accordingly it can not be found that
its management was not effectively acting to address to problem
of material build-up. However, to the contrary, I find that at
best, Evans' testimony relates merely to the condition of
"walkways", and does not relate at all to the condition of
materials on the top of silo No. 2, which is the only area in
issue.
I also note TXI's assertion that, in essence, its negligence
herein should be mitigated by the fact that it had taken steps to
prevent hazards associated with material build-up such as
directives in its safety rules to clear walkways, and statements
in its collective bargaining agreement requiring employees to
report safety hazards. Also, TXI refers to safety meetings
conducted in the months preceding April 20, 1999, wherein
employees were instructed that "walkways must be cleaned or
reported", and that these topics also had been discussed in prior
meetings in the preceding September and October. However, I
accord more weight to the fact that a build-up of materials in
the specific area in issue on April 16, 17 and 18, was noted in
pre-shift reports which were transmitted to management.
Additionally, I note that the accumulated materials were in an
area generally traversed by a miner two times each shift, from
April 16 to April 20, as part of normal operations.
The only reliable evidence of record relating to TXI's
efforts to clean the accumulated material[2] consists of
notations in the STORAGE AND HANDLING LOG for April 16, 4:00 p.m.
to 2:00 am, and April 18, 4:00 p.m., as follows: "[h]osed off
material from top of silo - 2 when I had the chance" (Emphasis
added.) (Co. Ex. 9, page 2, 5). Thus, although some effort may
have been made to clean the accumulated violative materials, it
is difficult to conclude, based upon this quantum of evidence
that the efforts constituted more than a token effort, rather
than an intensive effort to make the area once again safe for
access.
Also, I have considered TXI's arguments that, in essence,
inter alia, it should be found that there was no unwarrantable
failure because of its effective abatement efforts. Such an
argument is not relevant relating to the issue of whether the
order in question was properly issued under Section 104(d)(1) of
the Act. In this connection I note that Section 104(d)(1)
citations and orders are to be issued when the violation is "...
caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, ...". Hence,
what is relevant is TXI's conduct prior to the time of the
alleged violation and not subsequent to the violation. As such,
any evidence regarding abatement efforts are irrelevant regarding
the level of its negligence prior to the cited violation.
Therefore, for all the above reasons, I find, within the
context of the record as evaluated above, that the violation
herein resulted from TXI's negligence which was more than
ordinary, and reached the level of aggregated conduct. Hence, I
find that the violation was caused by TXI's unwarrantable
failure. (See Emery, supra,)
4. Penalty.
I find that the gravity of the violation to be relatively
serious essentially for the reason set forth above (I.) (A.) (2.)
supra. Also, I find the level of negligence relatively high
essentially for the reasons set forth above (I.) (A.) (3.) supra.
Considering the remaining factor set forth in section 110(i) of
the Act as stipulated by the parties, I find that a penalty of
$2,500 is appropriate.
B. Order No. 7972129.
Pereza also issued Order No. 7972129 which alleges a
violation of 30 C.F.R. Section 56.18002(a). Section 56.18002(a)
supra provides that "[a] competent person ...shall examine each
working place at least once each shift for conditions which may
adverse affect safety or health. The operator shall promptly
initiate appropriate action to correct such conditions."
(Emphasis added.) Hence, in order to prevail, the Secretary must
establish either that TXI did not examine each working place at
least once per shift, or that it did not promptly "initiate"
action to correct the conditions which may adversely affect
safety or health.
It appears to be the Secretary's position, as set forth in
the posthearing brief, that this order concerns itself not only
with regard to the material as it existed at the time of the
inspection "... but also with regard to spilled material and lack
of effective cleanup over the previous four months." In support
of this argument the Secretary refers to Pereza's testimony that
spillage on top on the silos "... had been listed everyday for
almost four months ... ." (Tr. 40). The basis for this
conclusion appears to be Pereza's testimony that "work place
examinations" reports for four months beginning January 1, 1999,
Pereza's testimony that stated indicated instances of material
build-up on top of the silos, not just silo No. 2, and that these
instances "far outnumbered" cleanup efforts. (Tr. 41). In
response to a leading question on direct examination he agreed
that these reports indicated the existence of a hazard. He was
asked whether the reports listed the word hazard, and he stated
that it was his opinion, i.e., that he had drawn a conclusion
that the reports indicated a hazard.
Clearly the Secretary has the burden of establishing all
elements required for a violation. The Secretary did not proffer
relevant pages of the reports which allegedly set forth notations
of spillages and inadequate cleanup. The Secretary did not proffer
any explanation for its failure to do so. The reports are the
best evidence as their contents regarding the existence of
spillages, their location, the number of instances of spillages
on top of silos, and clean-up efforts. As such, I find that
Pereza's testimony alone, to be of insufficient probative weight
to establish existence of spillages on silos "on many occasions",
and that these instances far outnumbered cleanup efforts.
Further, regarding spillages on the top of silo No. 2 on
April 16, 17 and 18, TXI's records indicate that a examinations
had been performed in the areas in question and build up of
materials were noted (Co. Ex. 7). Thus, in order to establish a
violation herein, the Secretary must establish that TXI was not
in compliance with the second sentence of Section 56.18002(a)
supra, which requires that "[t]he operator shall promptly
initiate appropriate action to correct such conditions."
(Emphasis added.)
It appears to be the Secretary's position that, in essence,
this sentence was violated as the unsafe conditions were not
corrected, and that there is "no indication in Respondent's
records of any time being taken to clean off the material on top
of silos." I do not find much merit in the Secretary's position.
The clear wording of the second sentence of Section 56.18002(a),
supra, does not require the Secretary to establish either the
adverse condition was not corrected, or that time had been taken
to clean material from the top of the silos. Rather, it must be
established that TXI did not initiate cleanup action to correct
the spillage of material. In this connection, the only evidence
of record relating to TXI's actions or lack of action, regarding
spillages that had occurred on April 16, 17 and 18, consists of
statements in entries in the Storage and Handling Log for April
16, and 18, as follows: "[h]osed off material from top of silo-2
when I had the chance" (Emphasis added). (Co. Ex. 7) These
statements in TXI's reports indicate that it had initiated action
to correct the adverse unsafe accumulation of material.
Accordingly, for the above reasons, I conclude that the Secretary
has failed to establish a violation of Section 56.18002(a) supra.
I. Docket No. WEST 99-427-M.
A. Order No. 7972161.
1. Violation of 30 C.F.R. � 56.12040
On June 19, 1999, Pereza conducted another inspection of the
site at issue. He examined a 480v. breaker box that was
approximately 82 inches high, 70 inches, wide and 12 inches deep.
Two metal doors enclosed the interior of the box, and had to be
opened to gain access to the interior. The lower right-hand
corner of the box also contained a transformer, 18 to 20 inches
wide and approximately 20 inches high. The surface area of the
exposed wires on the right side of the box was approximately one
to two square feet. The breaker box also contained energized
wire connections, and an energized heat-sink on the left side of
the box.
A circuit breaker for a 480v. Steadman crusher was also
located in the upper right hand corner of the box. In normal
operations, the breaker is thrown several times a week to shut
off electirc power to the cursher to allow the cursher to be
repaired or maintained.
The breaker box was designed to be used with a handle,
located on the outside of the box, which allowed the circuit
breaker to be thrown without opening the box. This handle had
not been in place for approximately 10 years. Hence, in normal
operations, it was the practice of TXI employees to throw the
circuit for the crusher by opening the right-hand door of the
breaker box and using a "short section" of a 2 x 4 piece of
lumber to throw the breaker.
Pereza issued an order alleging a violation of 30 C.F.R.
Section 56.12040 which provides as follows: "[o]perating controls
shall be installed so that they can be operated without danger of
contact with energized conductors."
In essence, it is TXI's position that the breaker box is not
an "operating control", and hence, it was improperly cited. TXI
relies on the fact that the panel of buttons and switches used to
operate the crusher, were located not in the box, but were
elsewhere on the site. Thus, TXI argues that accordingly the
breaker box is not the operating control for the crusher. TXI
does not cite any authority, regulatory history, or commonly
accepted definition, that supports its conclusion that a breaker
used to de-energize a piece of equipment is not an "operating
control". It appears to be TXI's position that the breaker box
should not be considered an operating control as it is accessed
only infrequently to de-energize the crusher to perform repairs
or maintenance work. No authorities are cited which would
mandate such a narrow construction to be accorded to the term
"operating controls".
In normal operations the breaker at issue is thrown at least
once a week to cut off power to the crusher in order to perform
repair or maintenance work. It follows that, upon completion of
the repair or maintenance work, the breaker would, of necessity,
be reset allowing electricity to resume to flow to the crusher
which would directly enable the crusher to operate. Indeed, the
crusher could not operate if the breaker would not be reset to
supply electricity. Since throwing the breaker stops the
operation of the crusher, and resetting it allows the crusher to
operate, it certainly controls its operation and, accordingly, is
within the perview of the term "operating controls" (see,
Webster's at 1357).
The only way the breaker could be thrown and reset required
a miner to open the exterior doors of the box. According to
Pereza, the miner would thereby be exposed to an approximately 1
� square foot area of energized 480v. conductors, thus subjecting
the miner to an injury by virtue of inadvertent contact with
these energized conductors. This testimony by Pereza has not
been impeached or contradicted, and I therefore accept it. I
find that the manner in which the box was installed, with a
missing lever on the outside of the box,required the interior
breaker to be operated in a situation were there was danger of
contact with energized conductors. I thus find that it has been
established the TXI did violate Section 56.12040 supra.
2. Significant and Substantial.
According to Pereza, in normal operations, as a result of
the violative condition, i.e. the lack of the lever outside the
breaker box, once a week a miner is required to push or pull a
tension lever on the breaker at issue. Pereza testified that, in
performing these operations, the miner could lose his balance and
slip, and be exposed to a significant area of energized 480v.
1200 amp components, which could result in possible fatal
electric shock from contact with the energized components. Since
these facts as testified to be Pereza were not impeached or
contradicted, I accept them. Within this context I find that it
has been established that the violation was significant and
substantial, (see Mathies supra.)
3. Unwarrantable Failure.
In its brief TXI argues that, in essence, the violation was
not unwarrantable since its managers were not aware that the
conditions constituted a violation of Section 56.12040, supra, as
it had not been cited for this condition in the past. However,
no testimony was adduced from any of TXI's managers to the affect
that, a reasonably prudent person familiar with the industry
would have understood that the breaker box at issue was not to be
considered an operating control, or that its managers did not
consider the box to be an operating control, or that it relied on
MSHA's not having previously cited the box in the past as
indicating that the box was in compliance with Section 56.12040,
supra, as it was not an operating control. In the absence of
such proof, I do not accept TXI's arguments in this regard.
Also, it appears to be the position of TXI, that its
negligence should be mitigated by the fact that, as testified to
by Evans, there have been no injuries reported arising from the
condition at issue subsequent to TXI's assuming ownership of the
site in 1996. TXI further asserts that MSHA has repeatedly
inspected this area, and until the issuance of the order at
issue, had not previously cited the absence of an outside handle
on the breaker box. On the other hand, the hazards involved in
opening the box door and throwing the breaker switch with a piece
of wood, had existed for 10 years. Management was aware that
miners were throwing the breaker in this fashion and had,
according to Pereza's uncontradicted testimony, so instructed its
employees. Within this framework I find that it has been
established that the violation herein was as a result of TXI's
unwarrantable failure. (See, Emery supra)
4. Penalty
Inasmuch as the violation could have resulted in a fatality,
the level of gravity was relatively high. Further, for the
reasons set forth above, the level of negligence was more than
ordinary and reached the level of aggravate conduct. Considering
the further factors set forth in Section 110(i) of the Act I find
that a penalty of $2,500.00 is appropriate.
B. Order No. 7972162.
1. Violation of C.F.R. � 56.12040, supra
On June 10, 1999, Pereza also inspected the Westinghouse
Motor Control Center ("MCC"), which houses circuit breakers for
motors and other equipment at the plant. The circuit breakers
are contained inside cabinet doors that were designed to be used
with a rod that did not require the door to be opened in order to
throw the circuit breaker. Three cabinet doors, each enclosing a
separate breaker, did not have any rods. Accordingly, these
doors would have to be opened in order to throw the circuit
breaker inside. A written statement on the outside of each door
stated that the door had to be opened to activate the breaker.
Hence, once a week, a miner would have to reach inside the
cabinet to throw the circuit breaker in order to repair or
maintain certain electrical equipment. Various energized wires
and a circuit breaker were located inside each cabinet. There
were four square inches of surface area of exposed energized
480v. conductors inside each cabinet. Pereza considered the
breaker boxes to be "operating controls", and issued an order
alleging a violation of Section 56.12040 supra.
Pereza opined that the boxes were operating controls. In
contrast, no one testified on behalf of TXI regarding any
definition of "operating controls" and whether breakers were
within the scope of that definition as commonly understood in the
industry. Nor did it present any evidence on this point. Since
circuit breakers are thrown to cut off power to equipment to
repair or maintain them, and then are reset, which supplies
electricity to this equipment, I conclude, for the reasons
discussed above ((II.) (B.) (A.), supra,) that they are within
the scope of "operating controls".
Further, due to the presence of energized 480v. wires inside
the box, which has to be opened to throw or reset a breaker due
to the violative condition herein, I find that miners performing
this task would be exposed to the possibility of electric shock
due to inadvertent contact with the energized conductors inside
the box. Accordingly, I find that due to the lack of a rod on
the outside of the cabinet doors at issue, the circuit breakers
inside these boxes could only have been operated by exposing
miners to danger of contact with energized conductors located
inside the box. Accordingly I find that TXI did violate Section
56.12040 supra.
2. Unwarrantable Failure.
Because it was obvious that the boxes at issue no longer
had handles on the outside, and that for many years instructions
on the outside of the boxes informed employees to open the door
in order to throw the breakers, I conclude that it has been
established that the violation resulted from TXI's unwarrantable
failure (see, Emery supra)[3].
3. Penalty
I find that the gravity of this violation was relatively
high as it could have resulted in a serious injury resulting from
electric shock. Also, I find, as set forth above, that the
negligence was relatively high. Taking into account the further
factors set forth in Section 110(i) of the Act as stipulated to
parties, I find that the proposed penalty of $2,000.00 is
appropriate.
III. Docket No. WEST 2000-50.
During the course of the hearing on July 26, 2000, regarding
the citations at issue in Docket No. WEST 2000-50, the parties
reached a settlement, and made a joint motion to approve the
settlement, and the motion was granted at the hearing.
The parties proposed to have the total penalty initially
sought by the Secretary for the violations alleged in these
citations to be reduced from $397.00 to $228.00. I reviewed the
record regarding these citations and the evidence presented at
the hearing, and I found the proposed settlement to be
appropriate under the terms of the Act, and I granted the motion.
ORDER
It is ORDERED that, within 30 days of this decision, TXI
shall pay a total civil penalty of $7,228.00. It is further
ORDERED that Order No. 7972129 be Dismissed.
Avram Weisberger
Administrative Law Judge
Distribution: (Certified Mail)
Jason Vorderstrasse, Esq., Office of the Solicitor, U. S.
Department of Labor, 350 South Figueroa Street, Suite 370, Los
Angeles, CA 90071-1202
Alan M. Raznick, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street Suite 1110, San Francisco, CA 94105
Steven R. Blackburn, Esq., Epstein, Becker & Green, P.C., Two
Embarcadero Center, Suite 1650, San Francisco, CA 94111
/sct
**FOOTNOTES**
[1]: The slope of the material would be the hypotenuse of a
right triangle, the horizontal distance of 12 inches from the
edge of the silo would be the side of the triangle adjacent to
the angle of repose, and the vertical distance, to be determined,
between the ground and the height of the material would be the
side opposite that angle.
[2]: I note Evans' testimony that at the time of the inspection
the leadman stated that "`I had just finished cleaning that thing
off Thursday night,' or Thursday." (Tr. 113). TXI did not call the
leadman to testify, nor did it indicate that he was not available. Nor
is there any other evidence of record specifically cooborating this
hearsay statement of the leadman. Accordingly, I accorded no weight to
Evan's hearsay testimony in this regard.
[3]: The order at issue was issued under Section 104(d)(2) of the
Act, which requires the existence of a violation that resulted from the
operator's unwarrantable failure, but not necessarily a significant and
substantial violation. Thus, I reject as irrelevant TXI's argument
that the order at issue should be vacated because Section 104(d)(1)
sets forth that an order can properly be designated as an unwarrantable
failure only if the inspector has also concluded that the violation was
significant and substantial, whereas the order at bar does not allege
the violation at issue to be significant and substantial. However,
such an argument does not pertain to the order at issue which was
issued under Section 104(d)(2) of the Act. Section 104(d)(2) pertains
to a withdrawal order that was issued pursuant to Section 104(d)(1)
which does not contain any requirement that the order be predicated
upon a violation that is significant and substantial.