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[DOCID: f:yk951.wais]
NEW JERSEY PULVERIZING COMPANY
April 28, 1995
YORK 95-1-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 28, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 95-1-M
Petitioner : A.C. No. 28-00539-05519
:
v. : Mine: Pinewald
:
NEW JERSEY PULVERIZING COMPANY, :
Respondent :
DECISION
Appearances: James A. Magenheimer, Esq., Office of the
Solicitor, U.S. Department of Labor, New York,
New York for Petitioner; Martin E. Tanzer,
President, New Jersey Pulverizing Company,
Syosset, New York on behalf of Respondent.
Before: Judge Melick
This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
� 801 et seq., the "Act" charging the New Jersey Pulverizing
Company (NJ Pulverizing) with one violation of the mandatory
standard at 30 C.F.R. � 56.11001 and seeking a "special
assessment" civil penalty of $8,000 for that violation. The
Secretary alleges that the violation was serious, contributed
to the cause of a fatal fall-of-person accident and
resulted from the operator's high degree of negligence. The
general issue is whether NJ Pulverizing violated the mandatory
standard as charged and, if so, what is the appropriate civil
penalty to be assessed considering the criteria under Section
110(i) of the Act.
The citation at bar, No. 4087298, issued February 9, 1994,
alleges a "significant and substantial" violation and charges
as follows:
A fatal accident occurred at this operation on January 11,
1994, in that a laborer fell 8 feet from a flatbed trailer and
died January 12, 1994. The victim had finished loading the
trailer with pallets of bagged material and was in the process
of covering the pallets with a plastic tarp cover when he
apparently slipped or tripped and fell approximately 8 feet
to the asphalt. There was no safe means provided to protect
the victim from falling from the trailer when he was installing
the cover on the pallets. Along with the termination of this
citation the company shall institute an effective safety program
that will provide and ensure safe access for the employees.
The cited standard, under Subpart J of the Secretary's
regulations captioned "Travelways", provides that "[s]afe
means of access shall be provided and maintained to all
working places."
The alleged practices giving rise to the instant citation
were described as the purported acts of the deceased,
Robert Rand, in climbing onto a flatbed trailer by utilizing
either a forklift or the rear bumper as a means of access
and by climbing onto pallets of sand bags loaded on the
trailer (Tr. 63).[1] For the following reasons, however, I find
that the Secretary has failed to sustain his burden of
proving that the deceased actually engaged in such
activities at the time alleged or that, even if he had
engaged in such activities, that such activities were a
causative factor in his death.
According to the undisputed testimony of the Secretary's
witness and the deceased's former co-worker,
William Stackhouse, III, he had last seen Mr. Rand before
his fatal injuries around noon or 12:30 p.m. on January 11,
1994, as Rand was loading a pallet of sand bags with a
forklift onto a flatbed trailer at the Bayville, New Jersey
plant. Five to ten minutes later, as Stackhouse was taking
a pallet outside the plant, he saw Rand's body lying on the
ground two to three feet from a different and empty flatbed
trailer. This empty trailer was located 15 feet from the
trailer which Stackhouse had earlier seen Rand loading with
a forklift. As confirmed by Stackhouse, Rand's body was,
therefore, actually located 13 feet from the trailer he had
been loading with the forklift. Stackhouse also observed
that the loaded trailer had been partially covered with a
tarpaulin.
Stackhouse testified that it was his own personal practice
-- a practice he had never seen Rand follow -- in placing
tarpaulins over loaded trailers to first gain access to the
flatbed deck by stepping two feet onto the forklift which he
would park adjacent to the trailer and then by stepping
another two feet onto the deck of the flatbed itself.
Alternatively he would use the rear bumper of the flatbed as
a two-foot step onto the flatbed deck. Stackhouse further
testified that once on the deck of the flatbed he either
stepped or crawled onto the bags of sand product piled on
top of the pallets some three to four feet above the flatbed
deck in order to pull the tarpaulin over the material.
Stackhouse testified that he personally never used a ladder
or a raised platform to perform such tasks.
A special investigator for the Mine Safety and Health
Administration (MSHA), Larry Brendle, testified that he
began his investigation of this incident on January 13,
1994, two days after it had occurred. The scene had by then
been completely altered with both trailers removed and
apparently neither the location of the trailers at the time
of the cited incident nor the position of the deceased's
body had been marked. According to Brendle, no autopsy was
performed on the deceased and his body was cremated. The
Certificate of Death notes the cause of death as "massive
subdural hematoma" caused when "patient fell and hit his
head".[2] Brendle understood these injuries were located
on the back of the head below the hairline. Brendle
acknowledged that he only surmised that Rand had fallen from
the top of the bags. When it was noted that the deceased's
body had been discovered on the ground 13 feet from the
loaded trailer from which Brendle had assumed the victim had
fallen, he conceded that, indeed, "we will never know how it
happened." Brendle further acknowledged that the injuries
to the recessed portion below the hairline on the back of
the deceased's head would not be consistent with a falling
injury.
Under the circumstances, I find that the Secretary has not
sustained his burden of proving his theory set forth in his
Accident Investigation Report (Government Exhibit C-1) and
in the citation that the deceased had fallen from the top of
one of the pallets on the loaded trailer thereby causing
fatal head injuries. [3] While evidence that a tarpaulin
had partially covered the pallets on the loaded trailer,
suggests that someone may have climbed onto the trailer or
climbed on top of the pallets, there is insufficient
evidence that the deceased had done this or that it was
performed in the manner the Secretary has suggested.
Indeed, based on the undisputed evidence presented through
the testimony of the Secretary's own witness, William
Stackhouse, that the body was found 13 feet from the loaded
trailer and the description of the deceased's injuries by
Special Investigator Brendle, it is quite possible that the
deceased's head injuries were not even sustained as the
result of a fall. Accordingly, while it is recognized that
the Secretary may establish a violation by inference and
circumstantial evidence, any such inference must be
inherently reasonable and there must be a rational
connection between the evidentiary facts and the ultimate
fact to be inferred. Secretary v. Garden Creek Pocahontas
11 FMSHRC 2148 (1989). In this case the gaps between the
existing facts and conclusions to be inferred are too large.
The citation must, accordingly, be vacated.
Even assuming, arguendo, that the Secretary had met his
burden of proving that the deceased had, in fact, fallen
while gaining access to the pallets of sand on the loaded
trailer, the Secretary has nevertheless failed to
demonstrate that the cited standard could be
constitutionally applied to the circumstances.
In order to pass constitutional muster, a broad standard
such as 30 C.F.R. � 56.11001 must be interpreted in light of
a "reasonably prudent person" test so that the adequacy of
the means of access at issue must be measured against the
standard of whether a reasonably prudent person familiar
with this industry and the protective purposes of the
standard would have recognized the specific prohibition or
requirement of the standard now alleged by the Secretary.
Secretary v. Alabama By-Products Corporation 4 FMSHRC 2128
(1982); Secretary v. Dolese Brothers Company 16 FMSHRC 689
(1994).
In this regard the only Secretarial witness to testify on
this issue, Special Investigator Brendle, acknowledged that
he was not familiar with the industry practices in
connection with safety measures taken when spreading
tarpaulins on trailer beds. In fact, he knew of no
operators in this industry who ever used a tarpaulin to
cover its bags of sand or mixed cement-sand product. In his
experience, they relied only on plastic blister wrap for
protection.
On the other hand, NJ Pulverizing President Martin
Tanzer[4] testified that after conferring with colleagues in
the industry he found that the majority loaded their trucks
in the same way he did. Some used a platform at the rear of
the truck but the sides would still be exposed. It is
significant, moreover, that even the Secretary did not
require the use of any type of portable platform or
stepladder to abate this alleged violation and has not since
this incident cited this operator for failure to use such a
platform or stepladder even though it has not done so.
Indeed, according to Tanzer, MSHA never told him before or
after this incident that "we're doing anything wrong".
The citation was abated on May 9, 1994, in the following
manner:
The company has instituted an intensive training program.
Two persons are required when loading and men are required
to wear helmets while working on the trailers. This
citation is terminated as the inspector indicates the
company is complying with the District requirement for
compliance.
Within the above framework, I find that the Secretary, in
any event, has failed to demonstrate how the cited standard
could be constitutionally applied to the alleged facts. For
this additional reason, the citation must be vacated.
ORDER
Citation No. 4087298 is hereby vacated and this civil
penalty proceeding dismissed.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution:
James A. Magenheimer, Esq., Office of the Solicitor, U.S.
Dept. of Labor, 201 Varick Street, Room 707, New York, NY
10014 (Certified Mail)
Martin E. Tanzer, President, New Jersey Pulverizing Company,
4 Rita Street, Syosset, NY 11751-5918 (Certified Mail)
\jf
**FOOTNOTES**
[1]: According to the Secretary, Rand should have been using
a stepladder or portable platform to gain access to the trailer
bed and to the top of the sand bags (Tr. 118-119).
[2]: A subdural hematoma is a massive blood clot beneath the
dura mater (the outermost membrane of the brain and spinal cord)
that causes neurologic symptoms by pressure on the brain.
Dorland's Medical Dictionary, 21st edition, W.B. Saunders
Company.
[3]: I also note that both Stackhouse and Brendle further
agree that the drawing purportedly depicting the incident on page
two of the Accident Investigation Report was not accurate.
[4]: Tanzer is a well-qualified expert in the industry. He
has been in the business since 1958 and he has been active in
trade groups, having been President of the National Industrial
Sand Association and the International Packaged Concrete
Manufacturer's Association and on the Board of Directors of the
National Aggregates Association.