<DOC>
[DOCID: f:walkst.wais]
WALKER STONE COMPANY, INC.
January 31, 1997
CENT 94-97-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
January 31, 1997
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. CENT 94-97-M
:
WALKER STONE COMPANY, INC. :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners[1]
DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act"), involves an alleged significant and substantial
("S&S")[2] violation of 30 C.F.R. � 56.14105[3] by Walker Stone
Company, Inc. ("Walker"), for failure to protect a miner from
hazardous motion during testing of a rock crusher following its repair
or maintenance. Administrative Law Judge Roy Maurer concluded that the
operator did not violate the standard. 17 FMSHRC 600, 604-05
(April 1995) (ALJ). The Commission granted the Secretary of Labor's
petition for discretionary review challenging the judge's
determination. For the reasons that follow, we reverse and remand.
I.
Factual and Procedural Background
On June 25, 1993, the primary impact crusher at Walker's
open-pit limestone quarry in Dickinson County, Kansas, became
clogged with rock, causing its drive motor to stall. 17 FMSHRC at
600-02; Tr. 191. The primary impact crusher is located below a
hopper into which trucks dump loads of rock. Tr. 30-33. The crusher
is powered by a diesel motor, which turns a rotor inside the crusher.
Tr. 27. As the rotor turns, rock is tossed inside the crusher
housing until it breaks into pieces small enough to drop out of the
crusher onto a splash pan and conveyor belt, which transports the
rock for further processing. 17 FMSHRC at 602 n.1; Tr. 33-35, 38-
39, 219, 225-26. When rock becomes lodged inside the crusher, it
prevents the rotor from turning and stalls the drive motor, rendering
the crusher inoperable until the rock is removed. Tr. 45, 62-63,
231-32.
Rock frequently clogged the crusher and had clogged it
earlier that day. 17 FMSHRC at 602, 607. As usual when this
occurred, the crusher operator, Roy Brooner, changed the signal light
at the hopper from green to red to indicate to the truck drivers to
stop dumping their loads and to help him unclog the crusher. Id.
at 602. Truck drivers Danny Boisclair, Bill Scott, and Frank
Esterly arrived at the scene. Id. at 602-03. Boisclair and Scott
entered the interior of the crusher and, using a sledgehammer, broke up
large boulders that were resting on top of the rotor. Id. at 602.
Upon their exiting the crusher, the crusher operator attempted to jog
the rotor to see if it had been unclogged. Id. The rotor did not
turn, so Scott, after conferring with the crusher operator, went
underneath the rotor to see if rock was lodged in the area of the
splash pan. Id. at 602-03. Unbeknownst to the crusher
operator, Boisclair reentered the interior of the crusher. Id. at
603. Esterly followed Boisclair but remained just outside the
crusher. Id. While Scott cleared rock from under the rotor,
Boisclair used his hunting knife to remove rock that was lodged between
the top of the rotor and the crusher housing. Id. Esterly
observed Scott working below and asked him if he needed help. Id.
Scott responded that he thought he had removed the rock that was
clogging the rotor and that he was ready to leave. Id. Esterly told
Boisclair to hurry and get out of the crusher because Scott was done.
Id. Boisclair began to exit the crusher but, before he was out,
Scott told the crusher operator that the rotor was clear and the
crusher operator jogged the rotor. Id. The rotor turned and Boisclair
was pulled between the rotor and the crusher housing, causing
massive injuries to his upper and lower torso that resulted in his
death. Id.
The next day, Roger Nowell and Lloyd Caldwell, inspectors
from the Department of Labor's Mine Safety and Health Administration
("MSHA"), began an investigation of the accident. 17 FMSHRC at 603;
Gov't Ex. 1. Based on the results of the investigation, Inspector
Nowell issued Walker Citation No. 4337450, pursuant to section 104(a)
of the Mine Act, 30 U.S.C. � 814(a), alleging an S&S violation
of section 56.14105 for failure to protect Boisclair from hazardous
motion during testing of the rotor following removal of the
obstruction. 17 FMSHRC at 603-04; Gov't Ex. 2. In addition, Nowell
issued Walker Citation No. 4337451, pursuant to section 104(a),
alleging an S&S violation of 30 C.F.R. � 56.14200[4] for failure to
warn Boisclair before jogging the rotor. 17 FMSHRC at 603, 605;
Gov't Ex. 3. The Secretary subsequently proposed civil penalty
assessments of $9,000 for each of the alleged violations and Walker
challenged the proposed assessments.
Following an evidentiary hearing, the judge concluded that
section 56.14105 is inapplicable to the facts of this case. 17 FMSHRC
at 605. He based his determination on his finding that, under the
plain meaning of the standard, the phrase "repairs or maintenance of
machinery or equipment" is not intended to encompass the work of
removing rocks which are clogging a crusher. Id. at 604. The judge
explained that the standard "was written to apply to repair or
maintenance evolutions, as those terms are commonly used and not
relatively minor annoyances that arise during the on-line production
usage of the machinery or equipment, that do not involve any
adjustments, maintenance or repairs to the equipment itself." Id. at
605. The judge determined that no repairs or maintenance were being
performed because miners were not doing mechanical, maintenance, or
repair work or making a structural modification to the crusher. Id.
at 604. He found that "[t]he only thing [the miners] were actually
working on were the rocks, breaking them up with a sledgehammer, and/or
otherwise dislodging them from the crusher." Id. Accordingly, he
vacated the citation. Id. at 605, 607. The judge, however, concluded
that Walker had committed an S&S violation of section 56.14200 and
assessed a civil penalty of $7,500. Id. at 605-07.
II.
Disposition
The Secretary argues that the judge erred in failing to
accord deference to his interpretation of the terms
"repairs or maintenance" to include the process of removing rock that
had stalled the crusher. S. Br. at 4-10. He asserts that his
interpretation is consistent with the language and safety-promoting
purpose of the standard. Id. Walker responds that the judge
properly rejected the Secretary's overly broad interpretation of the
standard because its language is clear and unambiguous, and breaking
up rock does not constitute repairs or maintenance of the crusher
itself. W. Br. at 3-16. Walker further contends that, if the
Commission accords deference to the Secretary's interpretation, it was
not provided notice that unclogging the crusher is an activity that the
standard addresses. Id. at 12-16.
The Commission has recognized that where the language of a
regulatory provision is clear, the terms of that provision must be
enforced as they are written unless the regulator clearly intended the
words to have a different meaning. See, e.g., Utah Power & Light Co.,
11 FMSHRC 1926, 1930 (October 1989) (citing Chevron U.S.A., Inc. v.
Natural Resources Defense Counsel, Inc., 467 U.S. 837, 842-43 (1984)).
If, however, the standard is ambiguous, the Commission has
examined whether the Secretary's interpretation is reasonable. See,
e.g., Rochester & Pittsburgh Coal Corp., 12 FMSHRC 189, 193 (February
1990); Missouri Rock, Inc., 11 FMSHRC 136, 139 (February 1989);
see also Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir.
1994). As the D.C. Circuit Court of Appeals has stated, deference is
accorded "only when the plain meaning of the rule itself is
doubtful or ambiguous." Pfizer Inc. v. Heckler, 735 F.2d 1502,
1509 (D.C. Cir. 1984) (emphasis in original); see also Udall v.
Tallman, 380 U.S. 1, 16 (1964); Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1945).
We conclude that the language of section 56.14105 clearly
and unambiguously reaches the facts presented in this case, i.e., the
breakup and removal of rocks clogging the crusher. The term
"repair" means "to restore by replacing a part or putting
together what is torn or broken: fix, mend . . . to restore to a
sound or healthy state: renew, revivify . . . ." Webster's Third
New International Dictionary, Unabridged 1923 (1986). The term
"maintenance" has been defined as "the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency: care,
upkeep . . . " and "[p]roper care, repair, and keeping in good order."
Id. at 1362; A Dictionary of Mining, Mineral, and Related Terms
675 (1968). That the miners were trying to dislodge rock rather than
working on the motor or other parts of the crusher does not remove the
activity from the definition of repair or maintenance within the
meaning of section 56.14105. The broad language of section 56.14105
does not limit the types of "repairs or maintenance of
machinery or equipment" that are included within its scope. In this
case, it is undisputed that the obstructing rock caused the
crusher's drive motor to stall, rendering the crusher defective or
inoperable until the rock was removed. The purpose of
Boisclair's work was to unclog the malfunctioning crusher and restore
it to functioning condition. 17 FMSHRC at 602-03. The removal of
rock was necessary to "restore [the crusher] to a sound state" or "keep
[it] in a state of repair or efficiency." Whatever the
definitional distinctions between repair and maintenance, the effect
of removing the rock was to eliminate the malfunctioning
condition and enable the crusher to resume operation. In our view, the
removal of rock to restore the crusher to working condition is
clearly covered by the broad phrase "repairs or maintenance of
machinery or equipment," and, therefore, the standard adequately
expresses the Secretary's intention to reach the activity to which he
applied it.
We find unpersuasive Walker's reliance on Southern Ohio Coal
Co., 14 FMSHRC 978 (June 1992), to support the judge's determination
that the activity of removing rock from the crusher is not repair or
maintenance. W. Br. at 6-7. In that case, the Commission concluded
that the activity of extending a conveyor belt was not "maintenance"
within the plain meaning of 30 C.F.R. � 75.1725(c).[5] 14 FMSHRC
at 982-83. The Commission reasoned:
[T]he belt move was not designed to prevent
the belt from lapsing from its existing
condition or to keep the belt in good repair
but, rather, to increase its usefulness . . .
. [N]o work was performed . . . to keep
the belt in the same condition that it was in
the day before, . . . no "deteriorating
condition" was being "upgrad[ed]," and . . .
the belt would run without adding additional
length to it. . . . [T]he belt move did
not preserve the ability of the existing belt
to convey material. The belt was not in need
of upkeep. Instead, the belt move was an
improvement of the belt system . . . .
Id. at 983 (citations omitted). Here, in contrast, the operation
of the crusher had ceased due to a malfunction; removal of rock
was necessary to restore the crusher to the same condition that
it was in before it became clogged; the malfunctioning condition
was being eliminated; the crusher would not operate without
removal of rock; and removal of rock was necessary to restore the
ability of the crusher to process material. Thus, we conclude
that the activity of extending a conveyor belt is readily
distinguishable from that of removing rock that is clogging a
crusher.
Based on the foregoing, we conclude that the judge erred in
determining that section 56.14105 is inapplicable to the facts of
this case. Accordingly, we reverse the judge's determination.[6]
Having determined that Boisclair's and Scott's efforts to
dislodge rock constitute repair or maintenance, we next consider
whether the operator violated the standard by failing to protect
Boisclair from hazardous motion during testing of the rotor. The
record indicates that activation of the crusher was necessary to
test it. Tr. 165, 188. Moreover, Walker does not dispute that
the crusher operator failed to accurately account for all
employees present before he jogged the rotor and, therefore, that
Boisclair was unprotected from hazardous movement of the crusher
machinery.[7] Thus, we conclude that the record as a whole
supports no other conclusion than that the Secretary established
a violation of section 56.14105. In addition, we conclude that
the violation was S&S. Clearly, it was a significant
contributing cause to the fatal accident.[8] Because the record
as a whole allows only one conclusion, we need not remand the
issues of violation and S&S to the judge. See American Mine
Services, Inc., 15 FMSHRC 1830, 1834 (September 1993) (citing
Donovan v. Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir.
1984) (remand would serve no purpose because evidence could
justify only one conclusion)).
In sum, we conclude that the judge erred in determining that
section 56.14105 is inapplicable to the facts of this case. We
further conclude that the Secretary proved that Walker violated
the standard and that the violation was S&S. Accordingly, we
remand the matter to the judge for assessment of an appropriate
civil penalty.
**FOOTNOTES**
[1]: Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. � 823(c), this panel of three
Commissioners has been designated to exercise the powers of the
Commission.
[2]: The S&S terminology is taken from section 104(d)(1) of
the Mine Act, 30 U.S.C.
� 814(d)(1), which distinguishes as more serious in nature any
violation that "could significantly and substantially contribute
to the cause and effect of a . . . mine safety or health hazard .
. . ."
[3]: Section 56.14105 states:
Repairs or maintenance of machinery or
equipment shall be performed only after the
power is off, and the machinery or equipment
blocked against hazardous motion. Machinery
or equipment motion or activation is
permitted to the extent that adjustments or
testing cannot be performed without motion or
activation, provided that persons are
effectively protected from hazardous motion.
[4]: Section 56.14200 states:
Before starting crushers or moving self-
propelled mobile equipment, equipment
operators shall sound a warning that is
audible above the surrounding noise level or
use other effective means to warn all persons
who could be exposed to a hazard from the
equipment.
[5]: Section 75.1725(c) is an underground coal standard
similar to section 56.14105.
[6]: In light of our conclusion that the standard is clear,
we do not reach the question of whether the Secretary's
interpretation is reasonable and entitled to deference.
[7]: Instead, Walker contends that it had policies
that prohibited employees from working in the crusher alone
and from working above other employees. 17 FMSHRC at 606.
Walker argues that Boisclair violated its policies when
he reentered the crusher to perform work above Scott. Tr.
202-03, 213-15; W. Post-Hearing Br. at 4-5. Although Walker's
purported reliance on its policies is a factor that may be
considered in determining the level of negligence for
purposes of assessing the penalty, it has no bearing on whether
the operator violated the standard. As the Commission has
frequently observed, the Mine Act imposes liability without
regard to fault. E.g., Fort Scott Fertilizer - Cullor, Inc.,
17 FMSHRC 1112, 1115 (July 1995).
[8]: We note that, in affirming the violation of section
56.14200, which arose from the same facts as the violation at
issue, the judge concluded that such violation was S&S.
III.
Conclusion
For the foregoing reasons, we reverse the judge's
determination that section 56.14105 is inapplicable, find an S&S
violation, and remand for penalty assessment.
Mary Lu Jordan, Chairman
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner