Kimble Company, d/b/a Kimble Sanitary Landfill
Landfill struck-by citation vacated
Apply this to your situation
This order from 2019 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Kimble operated a sanitary landfill where a front-loader struck and killed an employee who was on foot. OSHA alleged that employees were permitted to walk through vehicle-operating areas and cited the general duty clause. The judge rejected Kimble's arguments that the Mine Act or construction standards displaced OSHA's authority over the cited condition. The citation was nevertheless vacated because the Secretary did not prove that the proposed spotter and exclusion-zone measures were feasible and would materially reduce the hazard. The judge also found no constructive knowledge and concluded that Kimble established unpreventable employee misconduct.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1)
- Outcome: General duty clause citation vacated; no penalty assessed.
- Key point: A recognized serious hazard is not enough for a general duty clause violation without proof that the proposed abatement is feasible and materially effective.
Full text (OSHRC public release)
Kimble Co. 17-0639
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington,
DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v.
OSHRC DOCKET No. 17-0639
KIMBLE COMPANY, d/b/a/ Kimble Sanitary Landfill,
Respondent.
A PPEARANCES :
For the Complainant:
Adam Lubow ,
Esq.
Office of the Solicitor
U.S. Department of Labor
Cleveland ,
Ohio
For the Respondent:
Tod T. Morrow, E sq .
Morrow & Meyer LLC
Canton,
Ohio
BEFORE : William S. Coleman
Administrative Law Judge
DECISION A N D ORDER
The Respondent, Kimble Company (Kimble), operates a sanitary landfill in Dover, Ohio. On November 10, 2016,
a
wheeled front-loader operating on the landfill struck and killed a
Kimble employee
who was on foot .
Kimble ’s
timely report
of
the fatality
to the
Occupational Safety and Health Administration (OSHA) , and OSHA’s subsequent
investigation and inspection , resulted in
OSHA
issu ing
to Kimble
a one-item
serious
citation
al leg ing that on the day of the fatality Kimble
had violated
section 5(a)(1) of the
Occupational Safety and Health Act of 1970 .
29 U.S.C. §§ 651-678 ( OSH
Act) .
Section 5(a)(1) , which
is commonly known as the
“general duty clause , ”
requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. §
654(a)(1).
The citation alleges that
on the day of the fatality
Kimble violated section 5(a)(1)
in the following manner:
[E] mployee(s) at the Kimble Company were permitted to walk through areas where earth moving equipment, compactors, tippers, dump trucks, and semi-tractors with end-dump trailers were operating. These conditions exposed employees to the hazardous zones caused by maneuvering/dumping operations of such equipment and vehicles. Employees were thereby exposed to struck-by/crushed-by hazards from nearby equipment operation.
The citation then
set forth the
means
that the Secretary alleged would
abate the
described
hazard , as follows :
Among other methods,
one
feasible and acceptable abatement method to c orrect
this is to
-
Appoint a dedicated spotter/observer to monitor, direct, and coordinate all movement at the face of the landfill
-
Develop and implement procedures to ensure empl o yees are not in the danger zone where vehicles are maneuvering/dumpin g
-
Ensure equipment operators are adequately trained on new procedures to safely operate in this environment.
Kimble
timely
contested the citation
and thereby
invoked the jurisdiction of
the Occupational Safety and Health Review Commission (Comm ission) pursuant to section 10(c)
of the
OSH
Act. 29 U.S.C. §
659(c).
The Commission docketed the matter on April 13, 2017, and the Secretary thereafter filed his formal complaint pur suant
to Comm i ssion Rule 34(a), 29 C.F.R. § 2200.34(a), wherein the
S ec retary re-alleged the
allegations
set forth in the
c itat i on. The
Commission’s Ch ief Judge assigned the matter to
the undersigned for hearing and decision. The hearing was conducted in
Cleveland, Ohio ,
on April 19, 2018. Post-hearing briefing was completed on August 2, 2018.
Th e dispositive issues for decision are as follows :
· Did Kimble
establish
that
the
Mine Safety and Health Act (Mine Act) ,
30 U.S.C. §§ 801–962 ,
preempt s
application of the
OSH Act to
the
cited
landfill
operations
pursuant to
section 4(b) of the OSH Act?
D ecision : N o. Kimble did not
establish that the OSH Act was preempted.
· Did the operations at Kimble’s landfill on the day of the fatality constitute “construction
work , ”
so that certain construction
industry
standards
( codified at 29 C.F.R. Part 1926 )
supplant ed
the
application
of section 5(a)(1) to the cited hazard ?
D ecision :
No .
T he
landfill
operations did not constitute “construction
work .”
· Did the Secretary prove
by a preponderance of the evidence that Kimble’s means of addressing struck-by hazards
at
th e
landfill
were
inadequate
or that there w ere additional or
more effective feasible means by which Kimble could
have eliminated or materially reduced the hazard ?
D ecision :
No .
T he Secretary did not meet his burden
of proving th is element
of a
section 5(a)(1)
violation .
Because the
Secretary
did not
meet his burden
of
pro of , the
sole
citation item
must be
vacated.
FINDINGS OF FACT
Except where the
following findings
indicate
that
the evidence was insufficient to
establish
a
certain
fact, the following facts were established by at least a
preponderance of the evidence :
OSH
A ct Coverage
and
Mine Act
Preemption
- Kimble
maintains
a
work place
at
3596 State Route 39 NW, in Dover, Ohio, where it
owns and operates
both
a
sanitary
landfill
and
a
mine .
Th e
landfill
at this business address
is the only
landfill
that Kimble operates, but Kimble operates multiple mines at other locations. ( Ex. C- 7, p. 1;
T.
131).
Kimble is engaged in a business that affects interstate commerce. (Answer, ¶¶ II & III).
- Kimble operates
the
landfill
pursuant to permitting
under federal , state and local
environmental
and public health
laws and regulations. (T. 111- 1 13,
118 ;
Ex.
C-7, p. 5 ).
3.
Kimble
has about 250 employees. Kimble designates
its
employees as working in various “divisions” of the company , and
Kimble regarded the “mining” and the “landfill” operations to constitute different divisions within the company. (Ex. R-4, p. 8 ; T. 181 ).
A bout
22
workers
are assigned to
Kimble’s
landfill
operation .
(T. 109-110).
Kimble employs
about
100
other workers in
non-landfill operations
at th e
same business address as the landfill . Kimble employs about 1 25
more
workers
at four other locations . ( Ex. C-7, p. 1;
T. 109-110).
- The mine that
Kimble owns and operates a t the same
business
address
as the landfill
has been assigned
“metal/non-metal mine
n umber 33-00089 ”
by the federal Mine Safety and Health Administration
(MSHA) . (T.
10,
105-106 , 131 ; Stipulation ¶ 2 ; Ex. R-2 ).
The evidentiary record regarding the activities at mine number 33-0089 is very thin. The
materials
mined at mine number 33-00089 include “construction aggregates, clays and shales . ” (T. 105-06, 109, 131-32). T he parties
have
stipulated that
m ine
number 33-00089
occupies
a
“ portion ”
of the
tract of land on which the landfill is
co- located , but there is no evidence as to precisely what “portion” of the tract that is .
(T. 10; Stip. ¶ 2). T here
is
similarly
no evidence as to precisely what
the footprint of the
“ mine
site”
is relative to the footprint of
the
“ landfill site . ”
The whole of the evidence fails to establish by a preponderance that there is any overlap in the footprints of the mine and the landfill .
(T. 10, 105-106, 192; Stipulation ¶ 2).
- The workplace fatality
on November 10, 2016
that
precipitat ed OSHA’s investigation
occurred
at the
landfill
and involved
employees ,
equipment
and vehicles
that were
engaged
solely
in landfill operations
and not engaged in any
mining operations .
(T.
10-11 ,
54,
105-106 ).
-
Kimble timely
reported the
workplace fatality
to OSHA . Kimble did not report the fatality to the MSHA . (T. 10, 54 ;
Stip. at ¶¶
3, 4, 5 ; Ex. C-8, p. 6) . -
Kimble maintains record s
of
workplace injuries and illnesses that arise out of its landfill operations on OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and on OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). F or injuries or illnesses related to its operation of mine number 33-00089 ,
Kimble maintains separate injury and illness records
that are
required by MSHA. (Ex. C-10; T. 55-56, 221-22). -
Kimble had
most recently
trained the
employee who was killed on November 10, 201 6
(the decedent)
on
its “OSHA Personal Protective Equipment Policy”
about
six months
earlier
(T. 198-200; Exs. R-5 & R-6) and
had
provided other training to
the decedent
and
other employees who worked at the landfill
on matters covered by OSHA standards .
( See, e .g. ,
T. 176, 178;
Ex s.
R-8
& R- 9
[ contain ing
documentation
that Kimble
provided
training
on,
inter alia ,
machine guarding, hazard communication, housekeeping, confined spaces, electrical hazards ] ) .
Kimble also trained
the deceden t
and other employees who worked at the landfill
on
MSHA
subjects , but
in
Kimble’s view
much of th is
training
was
pertinent to
OSHA
s ubjects
as well . (T. 121 , 173 , 175-179, 191-192 ; Ex s . R-8
& R-9 ).
Landfill Operation s
as
“ Construction
Work ”
- Before the
landfill
open ed
for operations,
the area
where
solid
waste would be deposited
was
excavat ed ,
then a clay and polyethylene liner system
was
installed, and then a piping system for the drainage of leachate was installed.
(T. 110-111). Upon
the landfill
bec oming
operation al, solid waste
began to
be
deposited
in active “cell s , ”
where
the waste would be
compacted along with soil that
i s added to
it . Over time,
multiple cells
would be
established
outward and upward on top of each other
“ in successive layers . ”
(T.
76,
111).
- A s
layers of cells
are established
over time , it
i s
necessary
from time to time
to
install methane gas extraction wells
and associated piping
to
move
the
gases
that are
generated
within
the
closed
cells
to a n on-site
processing plant. (T. 111). There
i s no evidence that any component of a gas extraction system was in the process of being installed or
built
on the day of the fatality .
T here is
likewise no evidence that any of the vehicles or equipment on the landfill that day were involved in
the installation or
building
of any gas extraction system .
- On the day of the
fatal ity ,
the only operation
at the landfill
in which
moving
vehicles and
equipment w ere
involved was
the ongoing
landfill
operation of
waste
movement and compacti on . (T. 60, 171) .
T he se
operations were not
an integral and necessary part of
any
construction work .
To the extent that th ese operations were
in the nature of construction activities , th ose
activities
were
ancillary to th e
operation
of the landfill
and
did
not constitute construction work.
Struck-by Hazard at
Landfill
- The fatal accident occurred on
the
landfill. For the purposes of this decision,
different areas of the landfill are defined as follows :
a. Landfill . The “landfill” is the entire footprint of the landfill.
b. Working face.
T he “working face” is
the
part of an
active
cell
in the landfill
in which waste
and
cover soil
is
in the process of being
deposited
and compacted by
bulldozers and
other
heavy equipment called compactors . (T. 113 , 115-116 , 148 ) .
c. “ Front ”
of
the
working face. The front of the working face is the margin of the working face that abuts the
“ tipping area ” (defined next). The linear distance of the “front” of the working face
at any given
time
vari es , but it
can
be up to
200 feet
long . (T. 116, 169).
( The record does not indicate what the length of the working face was on the day of the fatality ) .
d. “ Tipp ing ”
or
“tipper”
area . T he
“tipping” or “tipper” area
abuts
the
“front
of the
working face ” (defined immediately above) . (T.
119 ,
169 ). In the tipping area ,
large self-powered hydraulic platforms called “tippers” are
orient ed
so that
one
end
of each tipper
abut s
the
front
of the working face. (T. 114).
“ E nd-dump ”
trailers
loaded with solid waste
are
move d onto
the tippers , and once in place, the tipper’s
hydraulic mechanism
elevates one end of the tipper to
create an
incline
that
slop es
toward the working face. The incline causes
the
solid
waste
inside the trailer to slide out the end of the trailer and
onto the working face
by force of gravity . (T. 39-40, 80-81, 114-115).
The end-dump trailers appear to be the
same
size
as
the
trailers
hauled by
semi-trucks
that are
common
on the
nation’s
highways. (T. 186-187;
see
photos in Exs. C-1 & R-13). Because the footprint of the working face changes over time, the
tippers
must be
repositioned
about every
seven days . (T. 170). The
location of the tipping area
thus
changes when such repositioning occurs .
e. Approach area. The
“ approach area ”
is
where
dump trucks ,
tractor - trailers , and other vehicles
approach the tipping area
to
deliver waste to the landfill . The approach
area
ends
where the tipping area begins. ( T. 113-115,
134-135).
f. Sides of
the
working face. The
margins
of the working face of the landfill that
are
not
abutted by the tipper area
constitute
the
“side s ” of the working face . Vehicles and
equipment involved in
delivering,
moving and
compacti ng
waste
do not operate in the vicinity of the sides of the working face . (T. 149-150 , 163 ).
g. Fence line. Environmental
and health
regulations require that Kimble
maintain
a fence whose purpose is to
prevent litter
from blowing off the grounds of the landfill. (T. 32-33 , 118 ) .
Kimble use s
plastic fencing material
for its fence line,
because that
kind of
fencing material is more easily
reposition ed
as
weather
conditions and the configuration of the working face require . The location of the fence
at any given time ,
and
the fence’s
relative
distance from the front of the working face ,
varies
depending on wind conditions
and other factors , but
the fence
can be set up as
near
as
twenty feet from where bulldozers and other heavy equipment are operating on the landfill. (T. 118-120).
-
The locations of the “working face,”
the
“tipp ing
area,”
the
“approach area,”
the “front” and
“side s”
of the working face , and
the
“fence line”
are
impermanent . They
chang e
over time
as successive layers of cells are completed in the course of
ongoing
regular operations of the landfill. (T.
11 7 -11 9 , 149 ). -
Kimble recognize d
that the movement of the vehicles and equipment
on the landfill
expose s
employees who
would be
on foot in such areas to struck-by hazards
that could cause serious injury or death . (T. 147-149). -
Kimble prohibited workers from being on foot in the working face of the landfill. (T. 155, 120, 123, 113).
-
Kimble permitted landfill employees to be on foot in the tipping area and in the approach area of the landfill
at times
when vehicle s
and equipment were operating in those areas, but
only when
an employee’s presence in those areas was
necessary for the employee to perform
necessary
duties. (T. 147-149). -
Kimble ha s
a
safety program
to
protect workers on foot from struck-by hazards ,
which includes the following
specific measures:
a. Kimble ’s
vehicles
and equipment
are equipped
with backup alarms . (T. 166).
b. Kimble
post s
sign s and notices that
warn of the presence of moving vehicles and equipment .
(T. 98).
c. Kimble requires
all landfill employees to wear high - visibility vests
in addition to other personal protective equipment . (T. 77-79, 98, 179-182).
d. Kimble’s work rules and practices require that w hen a worker
must
be on foot
in an area
where vehicles and equipment
a re operating
in order to perform
essential
duties ,
the
worker
must
maintain awareness
and exercise caution
with a view toward staying clear of
the
operating vehicles and equipment
by
( 1 )
proceed ing
carefully and alertly
when on foot
and to mind what the vehicles and equipment are doing ,
and
(2)
making and maintaining
eye contact with the equipment operator s
and
obtain ing
the operator’s
acknowledgment before approaching equipment .
( T. 34,
77- 79, 96-98,
123, 126,
146 -47,
181-182).
-
Kimble succeeded in indoctrinating its employees on its safety rules and practices through initial training for new employees, and through continuing training and emphasis thereafter. (T. 182-83). New employees at the landfill receive a 4-hour training orientation that includes OSHA subjects such as lockout/tagout, confined space, hazard communication, hazardous waste operations, personal protective equipment, and awareness of surroundings. (T. 176) . New employees at the landfill also complete two 24-hour MSHA training programs —one
of the programs
pertains to
“metal/non-metal” mines and the other
program
pertains to coal mines. (T. 177-179). This MSHA training includes much training that is
pertinent to
OSHA standards. (T. 121). After this initial new-employee training, landfill employees attend weekly and monthly safety talks on topics relevant to the working conditions in the landfill. (T. 179-181; Exs. R-2, R-6, R-8, R-9). Kimble communicates its rules and safe practices for working around moving equipment in its initial and annual training sessions , and the subject is covered in some of the
monthly and weekly safety meetings
as well . (T. 146-148, 181-182).
Supervisors at the landfill emphasize
certain “cardinal”
safety rules and practices with frequent reminders. For example, nearly every day
the foreman for the landfill operations
reminded landfill workers to “stay away from the working face , ”
in order
to “make sure that they have awareness of what’s going on and talk to the operators . ” (T. 126, 155-56). -
Kimble’s
landfill workers
were familiar with these rules and practices, and the y
knew what
they had to do
( and
what they had to refrain from
doing )
to
comply with these rules and practices. Kimble successfully imbued in its workforce an ethic of safety and compliance with
its
work rules and practices. (T. 181-83).
Both the decedent and the operator of the loader received and understood the training and guidance Kimble provided on keeping safe from struck-by hazards. (T. 197-205; Exs. R-2, R-5, R-6, R-7, R-8, R-9).
-
Kimble exercised reasonable diligence in
discover ing
incidents of
noncompliance with
its safety rules and practices. (T.
128-29, 144,
150 , 183-84 ) . -
Kimble
is reasonably diligent in
enforc ing
its
safety
rules
and practices by utilizing progressive discipline that
include s
verbal warnings and on - the - spot corrections, notifying next level supervisors
in the event of
repeated
violations, issuance of written reprimands ,
and
imposing
probation and
suspensions.
(T.
150-51, 154, 184- 85, 198, Ex. R-4).
-
The decedent had worked at the Kimble landfill for 17 years ,
and
in that
time
Kimble had not imposed any w ritten discipline
on him . (T. 185). Kimble
reasonably
regarded the decedent to have been an exemplary and safety-minded employee. (T. 185 ,
189-90). -
The decedent ’ s
pri ncipal j ob
at the landfill
was
to
collect
litter
that had
accumulated
along the
fence line
and to put that
litter in plastic bags
for eventual
deposit in the working face .
T he decedent
had other duties
in addition to this principal duty
(T. 157, 165) ,
but
he was not performing any of th o se other duties on the afternoon that he was killed. (T.
33,
160).
- There
are
different
ways
by which
the bags of
litter that a worker such as the decedent and others
would
have
gathered along the
fence line
may
be
transported and
deposited in the working face.
a. The worker who had collected and bagged the litter could p ile the bags
near the fence line and
then
summon
the front-loader to
come
to th at
pile. Upon arriving at the pile, the
operator of the
front-loader would
set
the
brake and the worker
who was on foot
would put the bag ged trash
in the loader’s bucket , all the while maintaining communication with the operator of the loader . After
all the bags had been put in the bucket, the loader would transport the bagged trash to the working face. This authorized procedure entails the front-loader traveling to the location of the piled bags near the fence line
for the purpose of collecting the bagged trash; the procedure does
not
entail
a worker
travers ing
the landfill to wherever the loader might happen to be at any given time in order to put bagged trash in the loader’s bucket. (T. 153-54).
b. At the end a shift, a
worker who had collected
and
bagged
the
litter could take the bags to a
loca tion on the
side
of the working face and toss the bags into the working face
from that location.
Depositing the bags onto the working face from a location
along
the side of the working face does not expose a worker to struck-by hazards from moving equipment, because the equipment does not operate in the vicinity of the side of the working face. (T. 120-121, 147, 149-150, 163, 167). The worker could transport the bags to the side of the working face
at the end of the worker’s shift
either by
load ing
the bags of waste
onto
a
small
truck and
then
driv ing
the truck
to
a location on
the side of
the
working face , or simply by c arry ing
the
bagged
litter
by hand
and
walk ing it to
the side of the
working face
to deposit the bag ged
litter in the working face . (T.
158-159 ).
c. The worker who had collected the bagged litter could
p lace the
bags
about
20
to
30 feet away from the fence line to where
other equipment
could
access them and
sweep the m
o nto the working face. (T. 119-120).
-
On the day of the fatality, the fence line was set up about 150 yards from the front of the working face. (T. 158-160). The decedent’s supervisor last observed the decedent
collecting litter in the vicinity of the fence line
about an hour before he was killed . The supervisor left the landfill to go to a dental appointment soon after that observation, and he was not
on the grounds
when the decedent was killed. (T. 161). -
A Kimble employee was operating
a
front -end
loader (also “front loader”
and “loader” )
in the
tipp ing
area and the
approach area near the tipper s
shortly before 4:00 p.m. on November 10, 2016 ,
when
he
back ed
it up in the approach area and
struck and killed the decedent.
(T. 186). The
loader struck the decedent at a point that was
less than 100 feet from the tipp ers ,
al though the record
contains
no measurement of the precise distance. 1 (Ex s . R-13; Ex. C-6, p. 6;
Ex. C-7, pp. 2-3
& 6; T. 211-214).
-
The loader that struck the decedent is accurately depicted in the photograph
in
Exhibit C-1
at the page numbered “24 of 28 . ” Typically, only one loader operates at the landfill at any given time, and it operates
principally near the tippers . The loader’s primary function is to
mov e previously dumped
waste to a position where a bulldozer and
the
compactors can more easily spread it uniformly over the working face and compact it into place. (T. 116). -
The loader was equipped with a
fully functioning
audible back-up alarm , and its
rear-view
mirrors were in place .
(T. 166 ; C-7, p p . 4 -5 ).
Just before the loader struck the decedent, its
operator
check ed the loader’s rear
mirrors
as was his practice .
(Ex. C-7, p.
3).
The
operator
never saw the decedent . He did not become
aware that the loader
had struck the decedent until moments after
the fact ,
after
another worker
discovered the body and
frantically alerted him. (Ex. C-3, p. 5).
-
No one witnessed the loader strike the decedent. It is unknown why the decedent had decided to be where he was when he was struck, or what he was doing or was intending to do in that location. (Ex. C-7, p. 2). It was uncharacteristic for the decedent to be in the area where he was struck (T. 162) , and it was not necessary for him to be in that location
in order to perfor m
essential assigned
duties. (T. 160). -
T he last person to see the decedent alive was
another
worker
(Glen Butler),
who
is employed by a subsidiary company of Kimble. (T. 140). Butler
had
driven a
semitruck and end-dump
trailer
onto the landfill ,
and
he
had
back ed
the
trailer
up
to
a tipper
in
prepar ation for it to be
moved
onto the tipper . Butler
was not in a position to
see
the loader strike the decedent because he was
on foot
tending to the trailer,
and the trailer was
situated
between him and the spot where
the decedent was struck . After returning to the
other
side of the
trailer ,
Butler saw the decedent’s lifeless body in the approach area and frantically alerted the loader ’s operator . -
Butler
told police that
a few
minutes
before
he
discover ed
the decedent’s body ,
he
had been in
the
cab of his semi-truck
( which was facing
away from the tipper s )
and
had noticed the
decedent
about
20 yards
further
back
from his
location
in the cab
(i.e., further away from the
tippers ) . Butler
told police
that he observed the decedent
“picking up some stuff off the ground” and that “there was a
front end
loader sitting there” and that the decedent “was putting the stuff in the bucket” of the loader .
(Ex. C-3, p. 6 ; Ex. C-6, pp. 2-3 ). The evidence is insufficient to establish precisely what
Butler observed the
decedent
doing
at this time. 2 However, if the decedent was placing bagged trash in the loader’s bucket at this time, that activity would have been contrary to the
authorized
procedure s
described in ¶ 24,
supra .
- The decedent did not assure that the loader’s operator was aware of his presence. The decedent did not make eye contact
or otherwise communicate with the operator of the loader regarding his intended actions
at any time
before or during the time that the
decedent
p ositioned
himself in the part of the approach area where he was exposed to being struck by the loader. (Ex. C-3).
The
operator
expressed his
shock and dismay that the decedent had not done so,
telling investigating police that
“anyone who is on foot and near heavy machines … is supposed to get the driver’s attention and stay clear of the machines.” (Ex. C-3, p. 5). In the minutes before the
loader struck him, the decedent was in violation of Kimble’s rule and practice that required employees on foot to make
and maintain
eye contact with
operator s of equipment and vehicles posing a struck-by hazard.
-
When the loader struck the decedent,
the decedent
was
not
required to be
where he was
in order to
perform
essential
job duties . (T. 160). At the time the loader struck him, the decedent was violating
Kimble’s work rule and practice not to be on foot around such equipment if it was not necessary in
order to
perform one’s
essential
duties. (Ex. C-7, p. 4 ; T.
160, 162 ). -
At the time the loader struck him, the
decedent was not wearing the high-visibility vest
that Kimble required
that he wear . This was very
unusual —the
decedent was
known for always wearing
his vest .
(T.
162,
1 89- 91 ). The record does not disclose where the decedent had
put
his vest ,
but because
he was struck near the end of his workday , some
surmised that
he
might have
removed his
vest preliminary to
leaving work . (T.
103 ).
At the time the loader struck him, the decedent was violating Kimble’s rule and practice that landfill workers wear
a
high visibility vest
while on the landfill .
- Up to the time of the fatality here, there had not been a struck-by incident at Kimble’s landfill for the
approximately
sixty years that Kimble has operated a landfill. (T. 109, 126-127).
DISCUSSION
The Commission obtained jurisdiction of this matter under section 10(c) of the
OSH Act
upon Kimble’s timely contest of the citation and proposed penalty. 29 U.S.C.
§
659(c). Kimble has employees and
is
engaged in a business affecting interstate commerce ,
and
it
thus meets the
OSH
Act’s
definition of “employer . ” 29 U.S.C. §
652(5).
OSH Act
Preemption by Mine Act
Section 4(b)(1) of the OSH
Act provides in part:
“ N othing in this Act shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory
authority to prescribe or enforce standards or regulations affecting occupational safety or health.”
29 U.S.C. § 653(b)(1).
Kimble contends that
the
Mine Safety and Health Act (Mine Act) ,
30 U.S.C. §§ 801–962 ,
which is administered by the
Mine Safety and Health Administration (MSHA)
within the
Department of Labor, preempts
OSHA ’s regulation of the cited
struck-by
hazard
at the landfill
by operation of section 4(b)(1) of the OSH Act .
The Commission evaluates an employer's argument that OSHA's authority is preempted under section 4(b)(1) by considering: (1) whether the other federal agency has the statutory authority to regulate the cited working conditions; and (2) if the agency has that authority, whether the agency has exercised it over the cited conditions by issuing regulations having the force and effect of law. JTM Indus., Inc. , 19 BNA OSHC 1697, 1699 (No. 98-0030, 2001).
A
section 4(b)(1) claim of preemption is an affirmative defense , for which the
burden of proof
rests with
the employer.
Idaho Travertine Corp. , 3 BNA OSHC 1535, 1536 (No. 1134, 1975);
Tidewater Pac .
Inc. , 17 BNA OSHC 1920, 1923 (No. 93-2529, 1997),
rev ’d in part on other grounds , 160 F.3d 1239 (9th Cir. 1998).
T he
issue of whether
the Secretar y
erred in
determin ing
that certain activity at a worksite on which a mine is located i s
regulated by OSHA and not by MSHA
involves
a complex question of law and fact . Marshall v. Northwest Orient Airlines, Inc. , 574 F.2d 119, 122 (2d Cir.
1978)
(observing that “ a determination of
[section
4(b)(1) ]
preemption requires an inquiry into complex issues of law and fact” ). For Kimble to
meet its burden of proof on this complex question, it was incumbent on Kimble to develop an
evidentiary record
sufficient to
support the conclusion that the
Secretary ’s determination
that the
Mine Act did not apply
was
un reasonable . See
Sec ’ y of Labor v. Cranesville Aggregate Co s. , Inc. , 878 F.3d 25 (2d Cir. 2017)
(applying
Chevron
framework
to Secretary’s determination that the OSH Act
and not the Mine Act
applied to
hazards
alleged to be
present
at a
workplace
that was co-located on
the same
grounds on which there was a min e ,
and
upon close scrutiny of a fully developed evidentiary record on that issue,
concluding at
Chevron
“step two”
that the
Secretary ’s determination was
reasonabl e ) .
The
s pare
evidentiary record
respecting the
nature and extent of the operation of
Kimble’s
mine
number
33-00089 is
addressed
in
¶ 4
of the Findings of Fact ,
supra . Kimble ’s
argument in its post-hearing
brief in support of
pree mption by the Mine Act
is
as thin as the evidentiary record is spare. The
entirety of
that argument is
as follows:
Kimble submits that it complied with all pertinent requirements under the Act, including the general duty clause and specific construction safety standards.
It also complied with all applicable MSHA standards.
Indeed, Kimble’s safety program was geared toward MSHA compliance, because the landfill was located within the confines of a mine.
Indeed, there is no
dispute that Kimble’s landfill operations are occasionally subject to inspections by MSHA officials. (Tr. 191-192).
Kimble submits that under the facts of this case, OSHA’s jurisdiction was preempted.
See
29 U.S.C. § 635(b)(1)
[sic] .
As noted above MSHA enforces safety rules pertaining to work around heavy earth moving equipment.
Kimble should not be subject to the whims of OSHA’s general duty clause when it has complied with applicable MSHA standards that more closely address the hazards in the landfill.
There is no evidentiary support for Kimble’s assertion that
“MSHA enforces safety rules pertaining to work around heavy earth moving equipment ” around the landfill. And t he
only evidence
that Kimble cites in support of its
argument that
the landfill “was located within the confines of the mine”
and that the landfill was “occasionally subject to inspections by MSHA officials”
is
the following direct examination testimony of Kimble’s
safety director
(T. 192):
Q : Okay.
Does MSHA inspect the landfill area?
A : They occasionally drive through but it's
not nearly an inspection as you would expect, if they were on a mine site.
Q :
Okay.
More thorough on the mine site?
A :
That's correct.
Q :
Why does MSHA have jurisdiction of the
landfill?
A : The landfill is on an IM 9 permit, so they have jurisdiction over that, as well.
Th is testimony
is not corroborated
or
augmented
by any other documentary or testimonial evidence . That testimony, standing alone, is
insufficient to
support a finding
or conclusion that
the
Secretary
unreasonably
determin ed
that
the OSH Act
(and not the Mine Act)
applied
to struck-by hazards
at the landfill . Kimble’s preemption argument is rejected .
Preemption by
Construction
Industry Standards
Kimble
contends
that
certain
OSHA construction
industry
standards , codified
at 29 C.F.R.
Part
1926 ,
apply to
struck-by
hazard s
at the landfill ,
so that
those standards preempt
application of the general duty clause to the cited hazard .
See
Con Agra, Inc. ,
11 BNA OSHC 1126, 1145 (No.
81 -2606 ,
1983) (noting “ that specific, promulgated standards will preempt the general duty clause, but only with respect to hazards, conditions or practices expressly covered by the specific standards ”) .
The
construction industry
standards prescribed in
P art 1926 apply to “every employment and place of employment of every employee engaged in construction work.” 29 C.F.R.
§ 1910.12(a). The
term
“construction work” as used in section 1910.12(a) “ means work for construction, alteration, and/or repair, including painting and decorating. ”
29 C.F.R. § 1910.12(b).
“Part 1926 applies … to employers who are actually engaged in construction work or who are engaged in operations that are an integral and necessary part of construction work.” Snyder Well Serv., Inc. , 10 BNA OSHC 1371, 1373 (No. 77-1334, 1982). “ Activities that could be regarded as construction work should not be so regarded when they are performed solely as part of a nonconstruction operation. ” BJ- Hughes , 10
BNA OSHC
1545 ,
1547 (No. 76-2615, 1982) ;
see also Royal Logging Co. , 7
BNA OSHC
1744 ,
1750
( No. 15169 , 1979)
( concluding that even though
a
logging operation involved some roadbuilding,
that
roadbuilding
was “ ancillary to and in aid of
[the logging company’s]
primary nonconstruction function to cut and deliver logs ”),
aff’d
645 F.2d 822 ( 9th Cir. 1981) .
Similarly, the
mere use of equipment that is often used in construction
work
does not
transform
non - construction
work
to
“ construction
work . ”
BJ - Hughes,
10 BNA OSHC at
1547
(rejecting Secretary’s argument that
Part 1926
applied because the equipment involved was typically used in construction) .
Kimble
contends
that Part 1926 applies
to all operations
at the landfill, including the movement and compaction of waste and soil as was occurring on the day of the fatality,
because
those activities are in furtherance of
the
constructi on
of a
landfill.
There is no evidence to support the conclusion that any thing in the nature of
“ construction
work,” such as
the
installation of methane
gas extraction
systems
(T. 110-112) ,
was occurring at the landfill
on the day
of the fatal ity . Similarly, there is no evidence that
the
vehicles and
heavy equipment that w ere
operating on
the
landfill at the time of fatal ity
w ere
engaged
in
any activity other than the movement
and compaction
of waste
and soil .
Kimble argu es
that the solid waste itself
(as well as the soil
used to cover the waste in the
active
cell at the
end
of
daily
operations ) was in the nature of
“building material”
out of which the cells of the landfill are
“ constructed , ”
and thus the depositing and compaction of that material in the cells involved the
construction
of th ose
cells. (Resp’t Br .
23- 24).
This argument is rejected. To the extent that the creation of the completed cells of the landfill could be deemed to be “construction” of those cells, any such construction is ancillary to Kimble’s primary non-construction function of operating a landfill,
so that this activity
does not itself constitute “construction work” to which Part 1926
would
appl y . Royal Logging Co.
at 1750.
The Commission ’s decision in
Woolston , 15 BNA OSHC 11 1 4 (No. 88-1877, 1991 ),
does not dictate a contrary conclusion. In
Woolston , OSHA cited an
employer
for
violations
of
Part 1926
for conditions
involving a trench excavation that
had been
dug
in the course of
constructi ng
a methane gas venting system
at
a
landfill. See
also
EMCON/OWT, Inc. ,
No. 04-1406,
2006
WL 168534 (O.S.H.R.C.A.L.J. Jan. 17, 2006)
(involving citation
alleging violations of Part 1926’s excavations standard
issued to a contractor that was installing a gas collection system at a landfill ). 3 In contrast to both
Woolston
and
EMCON/OWT ,
the heavy equipment
operating
on the
Kimble
landfill
on the day of the fatal ity
w as
not
engaged in
the
construction
of
a
methane gas
venting
or collection
system ,
or the
construction of anything else . Rather,
at the time of the fatal ity,
the
vehicles and
equipment
that were
operating
on the landfill
w ere
simply
engaged in the
process of depositing
and compacting
solid waste in an
active
cell . That activity is simply the
operati on
of a landfill , as the president of Kimble indicated
frequently in the course of
his testimony. ( E.g. , T. 109, 122-23, 113, 135). Kimble
was not
engaged in any “construction work” as defined in section 1910.12(b).
Kimble’s argument that
certain standards in Part 1926 preempt application of the
general duty clause
is rejected .
Citation 1, Item 1: General Duty Clause
The
Fatality Occurred in the
Landfill’s
Approach Area
As
describ ed in ¶ 2 6
of the Findings of Fact, the fatality occurred
i n the “approach area” of the landfill. That finding of fact is
at odds with
testimony that
the Secretary present ed in
his
case-in-chief,
which was that
the decedent was on the “working face” when he was struck and killed. (T. 33-37,
57,
96-97). That
testimony
was flawed ,
and
it
misidentifie d
the
actual
area of the landfill
in which
the fatality occurred.
The Secretary’s sole witness—the industrial hygienist (IH) who conducted the investigation that preceded the issuance of the citation— seems to have
mistakenly understood the
landfill’s
“working face” to include any
area
where heavy equipment was operating. ( See, e.g. , T. 33-37, 96-97). Defined in such a way, the “working face” would include the “approach area,” as that area is defined
in ¶ 1 2
of the Findings of Fact . This was a profound misunderstanding, and it
appears
to have resulted in the IH misinterpreting what the Kimble employees were attempting to communicate to her
during her investigatory
interview s of
them. When the IH interviewed Kimble employees and they used the term “working face,” they were using that term as it is defined in ¶ 1 2
of the Findings of Fact,
and they were not intending to communicate to the IH that
the
“approach area” is a part of the
landfill’s
“working face.” (T. 113, 115-116, 148).
Th is
conclusion regarding the IH’s misunderstanding becomes apparent upon scrutinizing her testimony. Kimble employees told the IH that Kimble had a rule prohibiting employees being on foot in the “working face,” ( e .g., T. 34, 64) and at the hearing Kimble’s witnesses confirmed that Kimble does indeed have such a rule. (E.g., T. 155). As the president of Kimble
convincingly
testified, “ there's no good reason to walk
into the working face where the bulldozers and compactors are running back and forth ” moving and compacting waste and soil on the surface of an active cell. (T. 120, 123, 113). So, while the IH was accurate in testifying that Kimble had a rule against walking through the “working face” (T. 34, 58), she was
inaccurate
in testifying that the decedent was violating that rule at the time he was struck and killed. (T. 35). Consistent with her misunderstanding, she further erroneously testified that one way the fatality could have been
avoided would have been for Kimble to have enforced (or in other words, to have prevented the decedent from violating)
its
rule prohibiting employees from being on foot in the working face. (T. 59). But, contrary to the IH’s deep misunderstanding, the clear and convincing evidence is that Kimble did
not
have a rule prohibiting employees from being on foot in the approach area ,
where the decedent was struck and killed.
(T. 153, 158, 186; Ex. R-13).
Proof of Section 5(a)(1) Violation
To establish a violation of the general duty clause, the Secretary must prove that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to eliminate or
materially reduce the hazard.
Peacock Eng ’ g, Inc. , 26 BNA OSHC 1588, 1589 (No. 11-2780, 2017).
In addition, “ the Secretary must also show the employer knew or, with the exercise of reasonable diligence could have known of the hazardous condition. ”
PSP Monotech Indus. , 22
BNA OSHC
1303 ,
1305
( No.
06-1201 , 2008) .
Kimble concedes the presence of
the first three enumerated elements
(Resp’t Br. 15 ;
see also
Resp’t Reply Br. 4) , and
¶ 1 4
of
th e
Findings of Fact establish es
those elements of the Secretary’s burden of proof .
Kimble challenges
the sufficiency of the evidence on the fourth enumerated element , and thus
the dispositive issue is whether the Secretary carried his burden to prove
that a
feasible and effective means existed to eliminate or materially reduce the hazard. 4
In order to establish this
fourth enumerated
element
of a section 5(a)(1) violation , the Secretary “ must specify the proposed abatement measures and demonstrate both that the measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard.”
Beverly
Enters. , 19 BNA OSHC
1161,
1190
(No. 91-3144, 2000)
(consolidated) .
In a case such as this, where
an
employer
has
undertaken measures to address a hazard ,
the
Secretary must establish that the employer’s measures were inadequate.
U.S. Postal Serv . , 21 BNA OSHC 1767 , 1773-1774
(No. 04-0316, 2006 );
SeaWorld of Fla., LLC v. Perez , 748 F.3d 1202, 1215 (D . C .
Cir. 2014)
( noting that in a matter involving an alleged violation of section 5(a)(1),
“ [w] hen an employer has existing safety procedures, the burden is on the Secretary to show that those procedures are inadequate”) .
Commission precedent suggests two similar ways that the Secretary may establish that an employer’s existing safety procedures were inadequate—by demonstrating either
(1)
“ that
there was a more effective feasible means by which
[the employer]
could have freed its workplace of the hazard , ”
Ala .
Power Co. , 13 BNA OSHC 1240 , 1243-1244
(No. 84-357, 1987),
citing
Cerro Metal Prods.
Div., Marmon Grp., Inc. , 12 BNA OSHC 1821, 1822 (No. 78-5159, 1986) , or
(2) that
there were
“specific
additional
measures” required to abate the hazard .
Pelron Corp. , 12 BNA OSHC
1833,
1836
(No. 82 - 388, 1986)
(emphasis added) . In order to
prove the former, the Secretary must show that
“ conscientious experts, familiar with the industry would prescribe those means and methods to eliminate or materially reduce the recognized hazard .” Arcadian Corp. , 20
BNA OSHC
2001 , 2011
( No. 93-0628 , 2004) ,
quoting
Pepperidge Farm, Inc. , 17 BNA OSHC 1993, 2032 (No. 89-0265, 1997 ). In order to prove the latter , the Secretary
must show
that
“ knowledgeable persons familiar with the industry would regard additional measures as necessary and appropriate in the particular circumstances existing at the employer ’ s worksite . ”
Inland Steel Co. , 12 BNA OSHC 1968, 19 70- 71
(No. 79-3286, 1986) ,
citing
Cerro Metal Products
Div., Marmon Grp., Inc. , 12 BNA OSHC
at
1822–23 ;
see also
Pelron Corp. ,
12 BNA OSHC at 1835
(noting that the Secretary must “prove additional measures that would have materially reduced the risk of harm that conscientious safety experts familiar with the industry would take into account in prescribing a safety program ” ) .
Even if the Secretary fails to establish that
specified
alternative or additional measures
would be
feasible and effective in materially reducing
an identified
hazard, the
Secretary may
nevertheless
establish that an employer’s
existing
safety pro gram
w as
inadequate
to protect its employees from exposure to
the
hazard
under section 5(a)(1)
by showing that the employer failed to
have done
any of the following :
(1)
established work
rules designed to prevent exposure,
(2)
properly communicated those rules to its employees,
(3)
taken steps to discover noncompliance with the rules, and
(4)
effectively enforced its rules in the event of noncompliance.
Ala .
Power Co. , 13 BNA OSHC
at 1244,
citing
Inland Steel Co. , 12 BNA OSHC
at
1976.
Alternative or Additional Effective Feasible Means
to Eliminate or Reduce the Struck-by Hazard
In describing “one feasible and acceptable abatement method to correct” the struck-by hazard
at the landfill , the
citation
set forth three
enumerated
measures
( quoted
verbatim
at the outset of this decision ) , which may be summarized as: (1) use
a dedicated spotter; (2) prohibit
foot traffic in areas where vehicles
and equipment are in operation ; and (3) train equipment operators on
“ new procedures
to safely operate in this environment . ” 5
(1)
Dedicated Spotter
The
Secretary failed to present sufficient evidence to establish that “ knowledgeable persons familiar with the industry would regard ”
having a
dedicated spotter
to control movement on the landfill
to be
“ necessary and appropriate in the particular circumstances existing at the employer's worksite .”
Inland Steel Co. , 12 BNA OSHC
at
197 0-71 .
The Secretary’s sole witness was the industrial hygienist (IH) who conducted the ins pection and
investigation that preceded
the
issuance of the citation.
The IH’s
inspection of Kimble’s workplace
was the first time
that
she had inspected a
landfill, and she had
no prior special knowledge or experience with landfill s or landfill
operations. (T. 22). Her credentials and experience do not accord her with the status of
either a
“ knowledgeable person
familiar with the industry” or
a
“conscientious safety expert
familiar with the i n dustry .”
Inland Steel Co. , 12 BNA OSHC at 1970-71;
Arcadian Corp. ,
20
BNA OSHC at 2011.
As part of
her
investigation , the IH
obtained
a publication titled “Handbook of Landfill Safety” that
had been
prepared
by
a trade
association
named
“ Solid Waste Association of North America ”
(SWANA) ,
of which
Kimble is a member . (T. 49, 53; Ex. C-6 , pp. 1-3 ) .
The record does not indicate whether the IH
reviewed
the entire handbook, but only a
six-page
excerpt
of the handbook
that is
titled “Traffic and Spotter Safety”
was
offered and
received in evidence . The
focus of the
excerpt
pertains to
the
u se
of a “spotter” to
direct
the
vehic les that are
driven by the
custo mers
of a landfill
who
might
be
unfamiliar with the layout and operations
of
the
landfill
they are patronizing . (Ex. C-6 , pp. 1-3 ) . Nothing in th e
excerpt
suggests that
the
use of a spotter
in
th at type of
landfill environment
is
universally
necessary .
The type of vehicular traffic
that the
excerpt
of the handbook
contemplates
is
significantly
different from the
vehicular
traffic present on Kimble’s landfill. All
of
the equipment and most of the
vehicles operat ing
at
the Kimble landfill are operated by Kimble employees . The
few vehicles
that are not operated by Kimble employees are operated by professional drivers who
regularly
deliver waste to the landfill and
who
are familiar with
the layout and the operation of
Kimble’s landfill. (T. 132-35). Nothing in th e
excerpt
indicates that use of a dedicated spotter in the vehicular environment present at the Kimble landfill is
universally
recommended or even
necessarily
appropriate. And w hile t here is evidence that
Kimble had used a
spotter
at th is
landfill
decades earlier , that utilization
had
occurred when the vehicular traffic at the landfill more closely resembled the
non-professional ly driven
traffic
that is
contemplated by th e
excerpt . (T. 123-126, 132-135).
The Secretary also
introduced into
evidence
four
training module s ,
apparently endorsed by SWANA ,
which bear the following
title s :
“The Basics of Spotter Safety , ”
“The Basics of Landfill Safety,” “Equipment Safety — Loader,” and “Spotter Safety — Communicating with Drivers.” (Ex. C-6, pp. 4-74 ; T. 49 ).
No thing in these
training materials suggests that spotters , who typically would be on foot in the vicinity of moving vehicles and heavy equipment,
ought to
be
utilized universally at
all
landfill s . Of the
training
materials
that pertain directly to
s afety considerations in the use of s potters , those materials
focus on
the
protecti on of
the
spotter s
themselves
from struck-by hazards. The types of precautions
that
th e
training m aterial s
recommend
for
protect i on
from struck-by hazards
include measures that Kimble ha s
implemented
at its landfil l.
For example, captions in
“ The
Basics of Spotter Safety” module include the following:
“Stay Alert, Stay Alive,”
“Communication,” “Be Visible,” “Eye Contact,” Hand Signals,” “Body Language,” and “Personal Protective Equipment.” (Ex. C-6, pp. 9-12).
If
these training materials
tend
to s how
anything, it is
that Kimble’s measures
to protect
workers on foot
against struck-by hazards
were
consistent with
safety practices
with in the
landfill
industry.
Cf.
Beard-Poulan, A Div. of Emerson Elec. Co. ,
7 BNA OSHC 1225, 1229 (No.
12600, 1979) (noting that compliance with section 5(a)(1) “may require methods of protection of a higher standard than industry practice”).
In contrast
to the Secretary’s evidence , Kimble’s president, who has decades of experience in the landfill industry, testified
without contradiction
that the
industry
had
trended “away from the idea of having a spotter , ”
which was due in part to the industry’s reaction to some fatal stuck-by incidents
involving spotters
at other landfills . (T. 126).
Kimble’s c oncern for spotter safety ,
and
the
diminished
non-professionally driven vehicular
traffic at
its
landfill ,
had caused
Kimble
to
cease using a spotter
many years
before the fatal ity
here . (T.
109,
126, 134-136) . The testimony
of Kimble’s president
was the only evidence presented from
a
person knowledgeable
with
the
landfill
industry
that bore on the question of whether employing a dedicated spotter at Kimble’s landfill was
“ necessary and appropriate in the particular circumstances existing at ”
Kimble’s
landfill. Inland Steel Co. , 12 BNA OSHC at 1970-71.
The evidence was insufficient to establish that use of a dedicated spotter at the landfill was necessary and appropriate
in the particular circumstances existing at the
landfill to
eliminate or materially reduce
the struck-by hazard s there .
(2) Prohibit Foot Traffic
The Secretary has similarly failed to present sufficient evidence that
conscientious experts
familiar with the industry would pr o scribe foot traffic in the vicinity of operating vehicles and equipment as a
means
or
method to eliminate or materially reduce the
struck-by hazard at the landfill. Inland Steel Co. ,
12 BNA OSHC at 1970-71 ;
Arcadian Corp . ,
20
BNA OSHC at 2011.
While the IH testified that Kimble could have “established a zone system to indicate that on certain days, heavy machinery could only move in one area while pedestrians could only walk in a different area” (T. 59), other
evidence presented during the Secretary’s case - in - chief
corroborat ed Kimble’s position that it is impossible to operate
Kimble’s
landfill without
allowing
employees to
be on foot
to perform certain essential job functions
in the vicinity of
operating equipment
in the tipper area and
in
the approach area .
The
IH confirmed in her testimony
that prohibiting
Kimble
employees from being on foot
in the “tipper area” and the “approach area”
would not be possible
in the operation of this
landfill , and that such areas could not
reasonably
be regarded as “no-go zones”
for employees on foot. (T.
82- 83) .
The Secretary has
not proven that a work rule prohibiting foot traffic in the vicinity of operating equipment and vehicles in the tipper area and the approach area
of the landfill
was feasible or
would be prescribed by conscientious experts familiar with the industry to reduce or eliminate the struck-by hazard at Kimble’s landfill.
(3) Training on New Procedures
The third enumerated measure
for abatement identified in the citation (training equipment operators on “new procedures”)
does not
describe what those
“new procedures”
would be , and no evidence
was
presented regarding
precisely what that training would entail . Consequently, for purposes of this decision, the content of the additional training contemplated by this
proposed
abatement
measure is presumed to relate to any new procedures that would
have
result ed
from implementation of enumerated items (1) and (2). Proceeding upon that presumption, the disposition of the first two enumerated measures is necessarily dispositive of the third enumerated measure.
(4)
Shut d own
S ensors
In addition to the three enumerated abatement measures set forth in the citation, the Secretary presented evidence and argued in his post-hearing briefs that
an other alternative or additional feasible means to abate the hazard would be to install “shut-down sensors on its equipment . ”
(T.
59; Sec’y Br. 14). This
mea sure
was
not
specified in the citation and
it
was
not
tried by consent of the parties, so
it
is
not
properly considered. See Ala .
Power Co. , 13
BNA OSHC at 1246 (refusing to consider a means of abatement argued by the Secretary because it “ was
not raised in the pleadings nor was it tried by the consent of the parties ” )
citing
McWilliams Forge Co. , 11 BNA OSHC 2128 (No. 80-5868, 1984).
Even if this measure was considered on its merits, the evidence presented would be found insufficient to establish
that it was
either feasible or
would
materially reduc e
the hazard. The testimony of the IH was the only evidence presented on this measure , the
entirety of
which was
as follows: “[T]he employer could have …
install [ed]
shut-down sensors on
equipment, which would shut down the equipment if someone got too close .” (T. 59). This
brief and
conclusory testimony is far from sufficient to establish that installation of “shut-down sensors” was feasible, or that such installation would have materially reduced the hazard in the context of the particular circumstances existing at Kimble’s landfill.
Adequacy of Kimble’s Measures
As described earlier, the Secretary may establish that an employer’s existing safety pro gram
w as
inadequate
to protect its employees from exposure to
a
hazard
under section 5(a)(1) by showing that the employer failed to have done any of the following: (1)
established work
rules designed to prevent exposure,
(2)
properly communicated those rules to its employees,
(3)
taken steps to discover noncompliance with the rules, and
(4)
effectively enforced its rules in the event of noncompliance.
Ala .
Power Co. , 13 BNA OSHC
at 1244,
citing
Inland Steel Co. , 12 BNA OSHC
at
1976.
The Findings of Fact at
¶¶
1 5 -2 1
underlie the determination that
Kimbl e ’s safety program was not shown to be deficient in any
of
these respects .
The Secretary argues that Kimble did not exercise reasonable diligence in taking steps to discover violations of its work rules. In support of that argument, the Secretary
refer s several times
in his post-hearing briefs
to the
IH’s
cross-examination
testimony
that
an
unidentified
Kimble
employee
had told her that
“on a light day”
at the landfill the employee
would
observe
the decedent
walking bags of litter to the face of the landfill four to five times. (Sec’y Br. 4 , 12, 16; Sec’y Reply Br. 5).
That cross-examination testimony was as follows:
Q :
….
You would agree that it ’ s not typical
for
[the decedent]
to carry bags of garbage into the working face of the landfill?
A :
I would not agree with that statement.
Q :
You would agree that there were non-management folks that you spoke to that told you that
it was not typical for
[the decedent]
to be walking bags of garbage into the face of the landfill?
A :
I received statements both that it was
relatively
uncommon
and I also received statements that it was very common and happened multiple times per day.
Q :
Okay. And very common is your characterization of that; correct?
A :
The characterization I received that I recall from the interview was four to five times on a light day.
Q :
Okay. And was that with someone who had knowledge or a basis for making that statement?
A : They had visually observed it themselves,
according to their statement.
(T. 91-92).
Counsel for Kimble did not move to strike
this cross-examination testimony
on the ground that Kimble had not been provided copies of unredacted written statements of the
unidentified
employees
that the IH described . Such a contemporaneous objection, if it had been made at trial, would have been meritorious and properly sustained
under the rationale of
Massman-Johnson (Luling) , 8 BNA OSHC 1369, 1376 (No. 76-1483, 1980 )
(prescribing
a
procedure
that
requir es
the Secretary to provide to the respondent , following the completion of a witness’s direct examination,
a copy of
that
witness’s
prior
written statement that
the Secretary had
previously
withheld from the respondent pursuant to the informer’s privilege) . 6 Notwithstanding the absence of an objection
at trial, Kimble appropriately makes multiple arguments in its post-hearing briefs that th e
cross-examination
testimony
quoted above
is not probative. (Resp’t Br. 12
n.4 , 21; Resp’t Reply Br. 7-8).
Cf. Monroe Drywall Constr., Inc.,
24 BNA OSHC 1111, 1113 (No. 12-0379, 2012) (finding that Commission judge erred in failing to accord unobjected to hearsay testimony its “natural probative weight”).
T he Secretary argues
that
the
IH’s
cross-examination
testimony
quoted above
shows
that
Kimble did not effectively take steps to discover violations of its work rule that employees not be on foot in the working face , because th at
testimony establishes
that the
decedent
typically
violated th e
rule multiple times
every day . The Secretary’s argument is rejected for
a variety of
reasons. First, as discussed above
in connection with
the IH’s
apparent
misunderstanding of the term “working face,” the
factual
predicate of the argument is flawed—while Kimble had a rule prohibiting workers from being on foot in the working face,
Kimble
did not have a rule that prohibited workers from being on foot in the approach area or tipping area. The IH’s understanding of what
any
unidentified employee told her is quite possibl y
affected
by her mis understanding of the term “working face.”
Second, one unidentified employee
told the IH
that it was “relatively uncommon” for the decedent to be on the “working face,”
but
some
other
unidentified employee
(the
employee
wh o se statement
the
IH apparently credited )
purportedly
indicated to her that it was “very common and happened multiple time per day.”
(T. 92).
Such
a
s ignificant
divergence in the content of the
two statements
is reason alone to
question
the reliability of
one or the other or both
statements ,
absent
some
indicia of reliability
for crediting one statement over the other .
Along these
same
lines , assuming without deciding that the
record
establishe s
all
the foundational requirements
for
th e
statement
of the
unidentified employee
whose statement the IH appeared to credit
to
be deemed non-hearsay
evidence
under
Fed. R. Evid. 801(d)(2)(D)
as a statement of a party-opponent , 7
the
record fails
established that the
statement
is
sufficiently reliable to support a finding of fact. 8
The evaluation of the reliability of an employee’s statement that is admissible under Rule 801(d)(2)(D) was addressed in
Regina Constr. Co. , 15 BNA OSHC 1044, 1048 (No. 87-1309, 1991):
Although
[statements of an opposing party]
under Rule 801(d)(2)(D) are not inherently reliable, there are several factors that make them likely to be trustworthy, including: (1) the declarant does not have time to realize his own self-interest or feel pressure from
the employer against whom the statement is made; (2) the statement involves a matter of the declarant's work about which it can be assumed the declarant is well-informed and not likely to speak carelessly; (3) the employer against whom the statement is made is expected to have access to evidence which explains or rebuts the matter asserted.
None of the
three enumerated factors described in
Regina Construction
weigh s
in favor of finding the
statement of the
unidentified employee
whose statement the IH credited
to be
inherently
reliable or
trustworthy. T he re is s cant in formation
bearing on the first two enumerated factors, and because the
identity of the
declarant is unknown to Kimble, Kimble has no apparent means by which to explain or to rebut
what the
IH
testified that
the employee
had said to her .
The statement of th at
unidentified Kimble employee regarding the frequency with which th e
employee observed the decedent walking bags of trash to the working face
is
insufficiently reliable and probative
to
support a finding of fact by a preponderance of the evidence.
Elsewhere during her direct examination,
the IH stated her view that Kimble
knew of the hazardous condition ,
and
that Kimble
had
not effectively communicated its work rules to the decedent:
Q : Did management know of the hazard?
A : Yes.
Q How?
A : [The decedent’s supervisor] stated
he had observed [the decedent]
walking through the working face of the
area, working face of the landfill, and that he had verbally reminded
[the decedent]
on multiple occasions, each morning, in fact, to avoid walking through that area.
Q : Was th e
rule
[not to walk in the working face]
effectively communicated?
A : No, not effectively.
Q : Was it communicated?
A : It was communicated.
Q : In what manner?
A : [The decedent’s supervisor]
stated that he had verbally
reminded
[the decedent]
each morning to avoid walking through the working face of the area but it was not effective communication, because
[the decedent]
had repeatedly violated this rule.
(T. 63-64).
Later in her testimony, the IH
clarified that she did not understand the
decedent’s
supervisor to have
told her that
he
had
orally
admonished or
reprimand ed
the decedent each morning
for having
been violating the rule against being on foot
in the working face ,
or that the supervisor
had indicated to her that he
believed the decedent
routinely
violat ed
that rule .
(T. 73, 94-95) .
A nd in his own testimony ,
the
decedent’s
supervisor
convincingly
confirmed that
these
oral
warnings were simply
daily
safety reminders
that
it was his practice to
communicate
to
employees.
(T. 156). The IH’s
testimony that
the decedent “had repeatedly violated this rule” appears to be based upon the
previously described
statement of
the
unidentified Kimble employee that
the decedent
typically
walked bags of trash to the working face
“ four
to
five times
on a light day.”
(T. 92). As discussed previously, th at
purported
statement is given no weight ,
so
the IH’s testimony
bootstrap ping
th at statement
is similarly given no weight .
The Secretary a rgues that
Kimble’s
work rules and practices to prevent struck-by incidents are inadequate
to prevent exposure to the hazard ,
asserting
that
a work rule that
“amorphously tell [ s ]
pedestrians to avoid
where heavy machinery operated”
is not an effective work rule
(Sec’y Br. 15) ,
and that Kimble’s “vague description of assigned work area and general allowance of some pedestrian presence on the working face did not fully address the hazards.”
(Sec’y Reply Br. 1-2). These critiques of Kimble’s work rules
do not
demonstrate
that
they were
inadequate. In
Alabama Power , the Commission observed:
[G]eneral admonitions to employees to avoid a hazard or to act in a safe manner do not afford adequate guidance. On the other hand, a
safety rule is not inadequate merely because it requires employees to exercise a certain degree of judgment and discretion. In
determining whether a work rule is sufficiently specific to protect
employees, the nature of the hazard and the overall circumstances of the
work operation must be considered. In certain
situations
a specific and
detailed safety rule may be necessary, whereas in other situations such
detail may be impractical, and it may be necessary to rely on employee
judgment.
13 BNA OSHC
at 1244
(citations omitted) . Here, the
loc i
of the
salient
areas of
Kimble’s
landfill
are
in near constant flux. Similar to the hazard that was addressed in
Alabama Power
(involving dump
trucks delivering coal to
coal pile
at a
power plant ) , Kimble’s rules and practices were “sufficiently specific considering the fluid and dynamic nature of the work environment.”
Id.
Kimble’s
rule
that workers
stay clear of areas where equipment was operating unless
an employee’s
presence in such
an
area w as
necessary to perform assigned duties, and
the rule
that workers
mak e
and maintain eye contact with
equipment
operator s
if an employee
had to be
present in
an
area where equipment was operating, were sufficiently
specific and detailed to directly address the
struck-by hazards
at the landfill .
The importance of complying with these rules was regularly emphasized, and
Kimble’s
employees understood
them .
(Findings of Fact ¶¶ 1 8 -1 9 ).
As in
Alabama Power , there
i s no evidence that
the landfill workers , including the decedent,
had difficulty in applying these rules in the fluid environment of the landfill. Id.
at 1244 (noting that there was “no evidence to show that employees could not evaluate the proper clearance distance for any particular dumping operation”).
While
it is indeed
the goal of the
OSH
Ac t
to prevent the first accident,
Kimble’s record of having no struck-by incidents in the previous sixty years of operating
the
landfill
bear s some relevance to the
assessment
of the
effectiveness and adequacy of Kimble’s safety program
over time .
Cf.
Ala .
Power
at 1246 (noting that the employer “had experienced no injuries during at least a 24-year period prior to the fatality,” and that the “Secretary presented no evidence fr o m which
we can conclude that [the employer] should have more effectively protected its employees from the hazard”).
Commission precedent states that in a matter involving an alleged violation of section 5(a)(1) in which the failure of an employee to follow a work rule has led to the employee’s death, the record must indicate that “ demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.”
Cerro Metal Prod. Div. , Marmon Grp., Inc. , 12
BNA OSHC
1821 , 1822
( No. 17-5159 , 1986) ,
quoting
Nat ’ l Realty & Constr .
Co. v. OSHRC , 489 F.2d 1257, 1267 (D.C.
Cir.
1973).
On this record, t he decedent’s violation of multiple work rules and practices
that he and other workers had a long record of following
is
simply
inexplicable. There is no evidence that conscientious experts, familiar with the landfill industry, would take that misconduct into account in prescribing a safety program.
See
Nat ’ l Realty & Constr. Co. , 489 F.2d
at
1266
(“ Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program ”) .
The decedent’s
death
was
tragic and
horribl e ,
but
th e Secretary has not proven that the
tragedy occurred at a workplace where the employer had failed to meet requirements of section
5(a)(1) of the OSH Act.
Employer Knowledge &
Unpreventable Employee Misconduct
The
factor s
for
determin ing
whether
an employer’s existing safety program
is
inadequate
to protect its employees from exposure to
a
hazard
under section 5(a)(1)
( as described in
Alabama Power
at 1244 ,
quoted above) are
essentially identical to the
factor s for determining both (1) whether an employer had constructive knowledge of a section 5(a)(1) violative condition,
PSP Monotech Indus. , 22 BNA OSHC 1303 , 1306
(No. 06-1201, 2008) (describing
factors to be considered in determining whether
an
employer
had
constructive knowledge of alleged section
5(a)(1) hazardous condition), and (2) whether a section 5(a)(1) violative condition was
the result of
unpreventable employee misconduct. Burford’s Tree, Inc. , 22 BNA OSHC 1948,
1951-52
(No. 07 - 1899, 2010)
(ruling that the
Secretary’s
proof that the employer had constructive knowledge of a condition that violated section 5(a)(1) had effectively disproved the defense of unpreventable employee misconduct) ,
aff’d , 413 F. App’x 222 (11th Cir. 2011) (unpublished) .
The Secretary does not argue, and the evidence does not establish, that Kimble had actual knowledge of the hazardous condition.
(Sec’y Br. 12).
As
discussed above ,
the Secretary failed to prove
that Kimble’s safety program
for
address ing
the hazard cited in the citation was
in adequate
under the test described in
Alabama Power
at 1244 . Th at failure of proof is
similarly dispositive as to whether the Secretary proved that Kimble had constructive knowledge of the
hazardous
condition .
Moreover, the affirmative findings set forth
Findings of Fact
¶¶ 1 7 -2 1
establish all
of
the elements of the affirmative defense of unpreventable employee misconduct. S.J. Louis Constr. , 25 BNA OSHC 1892, 1900 n.24 (No. 12-1045, 2016)
( evaluating employer’s safety program for adequacy involves same
factors for evaluating constructive knowledge
and
the defense of
unpreventable employee misconduct) .
ORDER
The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52(a).
If any finding is in actuality a conclusion of law or any legal conclusion stated is in actuality a finding of fact, it shall be deemed so, any label to the contrary notwithstanding.
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that
Item 1 of Citation 1, alleging a violation of section 5(a)(1) of the OSH Act ,
29 U.S.C.
§
654(a)(1) ,
is VACATED.
/s/
WILLIAM S. COLEMAN
Administrative Law
Judge
Date:
April 8, 2019
"
1
The whole of the photographic and testimonial evidence permits the reasonable inference that the strike happened less than 100 feet from the tippers. There is reliable evidence that the decedent’s body was about the same distance from the tippers as was the cab of a tractor-trailer that had been backed up to one of the tippers in preparation for the trailer to be backed onto the tipper.
(Ex. C-7, pp. 2-3 ; Ex. R-13; T. 212-214; Ex. C-7, p. 6 ).
2
The Secretary did not present testimony of either Butler or the operator of the loader. The evidentiary record of what both Butler and the loader’s operator reported to the police as having seen and remembered is set forth in their written statements that are part of the police report received in evidence at Exhibit C-3. Those statements and that police report are spare and undeveloped, and they beg many questions that apparently were never put to either Butler or the operator of the loader.
The operator’s seat for the loader faces toward the loader’s bucket ( S ee
photo at Ex. 1, p. 24 of 28). The record provides no indication why the loader’s operator apparently failed to see what Butler saw—the decedent putting “some stuff” in the loader’s bucket.
3
Although the Secretary alleged violations of Part 1926 in both
Woolston
and
EMCON/OWT, Inc. , the employers in those cases appeared not to contest the application of Part 1926 to the cited activities, and thus the issue of whether Part 1926 applied appears not to have been adjudicated in either of those cases. The two cases demonstrate only that in the past the Secretary has determined that certain activities that had taken place at a landfill constituted construction work.
4
Kimble also (1) disputes that the Secretary proved that it had knowledge of the hazardous condition, and (2) asserts the affirmative defense of unpreventable employee misconduct. (Resp’t Br. 24-28). As indicated in the final subsection of the Discussion, resolution of the sufficiency of the evidence on the fourth enumerated element of a violation of section 5(a)(1) in favor of Kimble resolves these two issues in Kimble’s favor as well.
5
The text of the citation is somewhat ambiguous as to whether the Secretary was proposing each of the three enumerated measures as a stand-alone means to abate the hazard, or whether the Secretary intended the three enumerated means to be viewed collectively as a single feasible means to abate the hazard. The ambiguity was not addressed at the hearing, but the Secretary expressly adopted the latter interpretation in his post-hearing
Reply Brief. (Sec’y Reply Br. 2) .
6
The Secretary did not offer in evidence any of the written statements of Kimble employees that the IH had secured in the course of her investigation .
Prior to the hearing, the Secretary had disclosed to Kimble’s counsel
redacted versions of some employee statements . Those redacted statements were contained in a proposed hearing exhibit that was provided to Kimble prior to the hearing, and which was pre-marked as Secretary’s
Exhibit C-5 . However, none of those
redacted statements were
specifically referenced in any testimony, and none were offered or received in evidence at the hearing.
In the parties’ joint pre-hearing statement dated March 13, 2018, the Secretary indicated that at the hearing he might offer in evidence “[u] nredacted statements of
[Kimble’s]
non-management employees, to be provided on completion of an employee’s direct testimony . ”
The initial disclosure of such unredacted statements would
be in accordance with the procedure that the Commission prescribed in
Massman-Johnson (Luling) , 8 BNA OSHC 1369, 1376 (No. 76-1483, 1980 ). But the Secretary did not present the testimony of any of those employees, so the Secretary did not provide Kimble with unredacted versions of the redacted statements that had been assembled in pre-marked Exhibit C-5 .
7
See
Med. Ctr. at Elizabeth Place, LLC v. Atrium Health Sys. , 817 F.3d 934, 944 (6th Cir. 2016)
(noting that an “ anonymous statement may be admissible under Rule 801(d)(2) in certain circumstances that demonstrate sufficient indicia of reliability as to the authenticity of the statement ”)
citing
Davis v. Mobil Oil Expl. & Prod. Se., Inc. , 864 F.2d 1171, 1174 (5th Cir.1989) .
8
Colorable arguments have been made in matters decided by other Commission judges that the content of statements of employees whose identities the Secretary has chosen not to reveal pursuant to the informer’s privilege should not be received in evidence under Rule 801(d)(2)(D). See Armstrong Steel Erectors, Inc. ,
No.
97-0250 ,
1997 WL 765160
at 4 n.6
( O.S.H.R.C.A.L.J.
Dec. 22,
1997)
(declining to address similar objection because the Secretary was not relying on the objected to testimony);
Meer Corp. ,
No.
95-0341 ,
1997 WL 235621
at 7
(O.S.H.R.C.A.L.J. May 5, 1997)
(“ Because it is a recurring subject of debate in OSHA hearings, a few words should be said concerning unidentified employee informants as a source of admissions against the employer ”). The Commission itself, however, appears not to have had occasion to address the issue.
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