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[DOCID: f:wv95112.wais]
NELSON BROTHERS INC.
April 12, 1996
WEVA 95-112
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 12, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEVA 95-112
Petitioner : A.C. No. 46-03335-03501 KI3
:
v. : Wylo Mine
:
NELSON BROTHERS INC., :
Respondent :
DECISION
Appearances: Tina C. Mullins, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner; Hilary K. Johnson, Esq., Boucher,
Hutton & Kelly, Abingdon, Virginia, for Respondent.
Before: Judge Fauver
This is a civil penalty proceeding under � 105(d) of the
Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 801 et seq.
Two citations were included in the petition. The operator
has withdrawn its contest of Citation No. 3973749 and has
agreed to pay the proposed penalty of $63.00. The case went
to hearing on Citation No. 3973746. Evidence was also heard
as to an imminent danger withdrawal order (No. 3973745,
dated October 5, 1994) although there is a dispute whether
Respondent waived its right to contest the order by failing to
file an application for review with the Commission within
30 days of its issuance.
Citation No. 3973746 was issued in conjunction with the
imminent danger order. I find that Respondent's efforts to
contest the citation in its meetings with MSHA officials was
also in conjunction with its efforts to contest the order.
There appears to have been some confusion based on MSHA's
statements to the operator about the time requirements for
contesting the citation and order. I conclude that for the
purpose of defending against a petition for civil penalties,
the operator should be permitted to contest the imminent danger
order in conjunction with its contest of the citation.
Accordingly, I conclude that the judge has jurisdiction to
decide the merits of both the citation and the order.
Having considered the hearing evidence and the record as
a whole, I find that a preponderance of the substantial,
reliable, and probative evidence establishes the Findings of
Fact and further findings in the Discussion below:
FINDINGS OF FACT
1. Respondent is an independent contractor that supplies
blasting agents and technical assistance to mining companies
and other businesses. MSHA's records of registered contractors
show that Respondent performed contract services at 11 coal
mines for 29,132 hours in 1994 and for 10,584 hours from January
1 through August 8, 1995. The 11 coal mines are subject to that Act.
2. Respondent has a number of tractor-trailer tanker trucks
that transport emulsion to the mines.
3. On October 5, 1994, MSHA Inspector Douglas M. Smith
inspected the Wylo Mine in West Virginia, operated by Arch Minerals
Company, which produces coal for sales in or substantially
affecting interstate commerce.
4. Inspector Smith observed one of Respondent's tanker
trucks unloading emulsion. The driver was standing on top
of the emulsion tank without wearing a safety belt and line.
There was an anchor line to which a safety belt could be
attached. There were no guard rails on top of the tank.
5. The emulsion tank was an oval-shaped cylinder made of
aluminum or stainless steel, approximately 9 feet high. On top
of the tank were several portholes centered along the length
of the tank. Sections of grated metal platform ran between the
portholes. The parties are in dispute as to the number of
portholes. This issue is addressed in the Discussion, below.
I find here that the truck in question had three or five
portholes. The grated metal sections were about 28 inches wide.
6. The grated metal sections did not cross over the
portholes, but ended at the edge of a rectangular area around
each porthole. The oval-shaped tank surface was bare around
each porthole within the rectangular area. The rectangular
area around each porthole was about 26 inches long. Each
hatch lid contained a number of latches and hinges higher than
the hatch surface. When the hatch was open, it swung out to rest
horizontally. Within each rectangular area, there was sufficient
ungrated tank surface for a person to step.
7. As part of his normal duties, the truck driver climbed a
ladder on the side of the tank. Once the driver was on the grated
surface, he opened one or more portholes to release pressure of
the emulsion so that it would discharge through the outlet hose.
The driver then climbed down from the tank and waited for the
emulsion to pump out. Once all the material that could be pumped
out was removed from the tank, the driver again climbed to the
top of the tank and opened all portholes to "squeegee" out
emulsion that remained on the inner lining of the tank. The
rubber squeegee was about one foot wide and attached to a pole
about 10 feet long. One driver might perform the squeegee
operation or two drivers might perform it. It would take about
10 to 15 minutes for two drivers, twice that for one driver.
8. To move from one porthole to another to open or close
portholes or to squeegee through the portholes, the driver would
step over portholes a number of times. This required him to
either step on the oval-shaped tank surface to step over a
porthole or to take a larger step of about two and half feet
to clear the rectangular area around the porthole. In either
case, the portholes and the latches attached to the hatch
lids presented tripping hazards.
9. While squeegeeing, the driver would position himself at
different angles to the porthole and might be bending, stooping,
squatting or kneeling to reach the material inside.
10. The metal platform sections were grated to provide an
anti-skid surface.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Before discussing the controlling issues, this part will
discuss the number of portholes.
The inspector testified that the truck he observed had three
portholes. The driver testified that there were five portholes.
Other witnesses were similarly in conflict as to the number.
Respondent's Exhibits 1 through 5, which are attached to its
Answer and incorporated in the evidentiary record, are photographs
of at least two tanker trucks. The Secretary's witnesses
indicate that photographs R-4 and R-5 most accurately represent
the truck in question, while Respondent's witnesses indicate
that the truck is shown in R-1, R-2 and R-3. I do not find it
necessary to resolve this conflict. I find, instead, that both
trucks represent the kind of configuration of grated walking
platforms and portholes that was involved in the imminent
danger order and the related citation on October 5, 1994, and
that it is not critical to determine whether there were
three or five portholes on that date. I find that Respondent
operates emulsion tanker trucks that have either three or five
portholes on top of the tank. The tank dimensions in the
Findings of Fact apply whether a truck has three portholes
or five portholes.
Turning now to the key issues, the Secretary charges a
violation of 30 C.F.R. � 77.1710(g), which provides in
pertinent part:
Each employee working in a surface coal mine or in the
surface work areas of an underground coal mine shall be
required to wear protective clothing and devices as
indicated below:
* * *
(g) Safety belts and lines where there is a danger of
falling . . . .
The basic issue is whether the truck driver's activities
on top of Respondent's tanker truck presented a "danger of
falling" within the meaning of � 77.7710(g).
The phrase "danger of falling" reasonably means a risk of
falling from a height sufficient to cause a reasonably serious
injury. It does not mean that it is probable that one will fall.
The driver's activities involved a number of risks of
falling, including the following:
1. On a windy day, a sudden strong wind could cause the
driver to lose his footing and fall from the truck.
2. Ice or snow could cause the driver to slip and fall.
3. When the driver steps over a porthole, he could have a
misstep and fall or could trip on the latches or on the edge
of the porthole and fall.
4. When maneuvering the 10-foot squeegee pole, the driver
could lose his balance and fall.
5. If the driver steps on the oval surface of smooth metal
around a porthole he could slip and fall.
Respondent contends that its drivers do not work on tank
tops during inclement weather. However, no records or other
data were presented to support this position. There are
many variations between weather forecasts and actual weather
developments during the day as well as sudden changes in the
wind. A policy that eliminates safety belts and lines on
the basis that weather and wind risks will be accurately
predicted and avoided fails to meet the safety protection
intended by � 77.1710(g). The controlling question is whether
walking, stooping, squatting, standing, squeegeeing, and
stepping over tripping hazards on top of a tanker truck involve
"dangers of falling" within the meaning of the safety
standard. I find that they do.
Respondent also contends that the safety line installed at
Wylo Mine presents a greater hazard than the hazard of
working without a line. This position is contrary to the
evidence. The driver testified that he would prefer to work
on top of the tank without a safety belt and line because
the hook "catches" at times and might cause him to lose his
balance. This may suggest that Respondent check the sliding
mechanism on the safety line, but it does justify the notion
that adapting to a safety belt and line is a hazard greater
than the hazard of a 9-foot fall from a truck top.
Finally, Respondent contends that its record of having no
fall from a tank top in its five years experience is proof
that there is no "danger of falling." This position is not
persuasive. Falls from trucks do occur and cause death or
serious injuries. The fact that Respondent's drivers have
been fortunate thus far does not mean that working near the
edge of a 9-foot drop from a tank top does not involve a
danger of falling.
I find that � 77.1710(g) applies to Respondent's tanker
truck and requires that the driver wear a safety belt and
line when on top of the tank unless there are guard rails.
Respondent was therefore in violation of � 77.1710(g).
The violation was due to moderate negligence. Respondent
did not make a reasonable effort to require the driver to
wear a safety belt and line at the Wylo Mine.
The � 104(a) citation alleges a "significant and
substantial" violation, which the Commission defines as one
presenting 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(1981); Mathies Coal Company, 6 FMSHRC 1, 3-4
(1984). I find that the facts sustain a finding that
working on top of the tanker truck without a safety belt and
line or guard rails was reasonably likely to result in
serious injury.
I now turn to the imminent danger order. "Imminent danger"
is defined by the Act as "the existence of any condition or
practice . . . which could reasonably be expected to cause
death or serious physical harm before such condition or
practice can be abated." 30 U.S.C. � 802(j).
The inspector observed a driver standing on top of an
emulsion tanker truck without guard rails or a safety belt
and line, about 9 feet above the ground. The driver
indicated that his normal activities involved climbing a
ladder on the side of the tank, opening portholes, climbing
down and waiting for the emulsion to drain, climbing up
again and squeegeeing the remains through the portholes,
closing the portholes and climbing down the ladder.
The Commission has held that an inspector must be given
considerable discretion because he or she must act quickly
to eliminate conditions that create an imminent danger.
Wyoming Fuel Co., 14 FMSHRC 1282, 1291 (1992). The focus on
review is whether the inspector made a reasonable
investigation of the facts under the circumstances and
whether the facts known to him or reasonably available to
him support the issuance of an imminent danger order. Id.
at 1292. The findings of the inspector should be upheld
unless the evidence shows an abuse of discretion. Id.; Old
Ben Coal Corp. v. Interior Board of Mine Operations Appeals,
523 F. 2d 25, 31 (7th Cir. 1975).
I find that the facts support the inspector's finding of
imminent danger based upon the facts known to him or
reasonably available to him. Observing a driver near the
edge of a 9-foot drop on top of a tanker truck, without
guard rails or a safety belt and line, and determining the
miner's activities as found above, the inspector exercised
reasonable discretion in issuing an imminent danger order.
CIVIL PENALTY
After the citation and order were issued, Respondent
promptly complied with the safety standard at the Wylo Mine.
However, it made no effort to comply at other coal mines.
Its overall approach to the safety standard appears to be
that it will not comply with MSHA's interpretation at any
other mine unless the mine operator insists that Respondent
provide a safety belt and line and require its drivers to
use them or unless Respondent is caught by MSHA at another
mine.
Considering all of the criteria for civil penalties in
� 110(i) of the Act, I find that the penalty of $147.00
proposed by the Secretary for the violation of � 77.1710(g)
is reasonable.
CONCLUSION OF LAW
1. The judge has jurisdiction.
2. Respondent's contract work at mines producing coal for
sales in or substantially affecting interstate is subject to
the requirements of the Act. The Act applies to
Respondent's trucks on mine property whether or not the
Department of Transportation or any other agency also has
jurisdiction over the condition or operation of Respondent's
trucks.
ORDER
WHEREFORE IT IS ORDERED that:
1. Order No. 3973745 and Citation Nos. 3973746 and 3973749
are AFFIRMED.
2. Within 30 days from the date of this Decision, Respondent
shall pay civil penalties of $210.00 ($63.00 of which is the
settlement of Citation No. 3973749).
William Fauver
Administrative Law Judge
Distribution:
Tina C. Mullins, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
Hilary K. Johnson, Esq., Boucher, Hutton & Kelly, 188 E. Main
St., Abingdon, VA 24210 (Certified Mail)
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