Bilbrough Marble Division, Texas Architectural Aggregate

Plain-English summary

Bilbrough operated the Roper Quarry, a surface limestone and dolomite mine in Texas. During an inspection, the general manager briefly lifted a belt idler while explaining how it would be installed, and MSHA issued a citation and imminent-danger order alleging that he was not wearing hard-toed footwear. Judge Jacqueline R. Bulluck found that the manager's leather workboots were suitable for the circumstances, that he was not performing work that exposed his feet to a qualifying hazard, and that he maintained control of the idler. The Judge also found no imminent danger requiring withdrawal because the inspector stopped the conduct immediately. The citation and order were vacated, and the proceeding was dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.15003
• Outcome: Combined Citation and Order No. 7889528 was vacated, and the civil penalty proceeding was dismissed.
• Key point: Protective-footwear requirements depend on the actual task and hazard, and an imminent-danger order requires an impending danger that cannot be addressed without immediate withdrawal.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                             OFFICE OF ADMINISTRATIVE LAW JUDGES
                                      2 SKYLINE, Suite 1000
                                      5203 LEESBURG PIKE
                                 FALLS CHURCH, VIRGINIA 22041


                                      June 28, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-395-M
Petitioner : A.C. No. 41-01684-05507
v. :
: Roper Quarry
BILBROUGH MARBLE DIVISION, :
TEXAS ARCHITECTURAL :
AGGREGATE, :
Respondent :

                                       DECISION

Appearances: Tina D. Campos, Esq., Mary Schopmeyer Cobb, Esq., U.S. Department of Labor,
Office of the Solicitor, Dallas, Texas, for Petitioner;
David M. Williams, Esq., San Saba, Texas, for Respondent.

Before: Judge Bulluck

   This case is before me upon Petition for Assessment of Penalty filed by the Secretary of

Labor, through her Mine Safety and Health Administration (“MSHA”), against Bilbrough Marble
Division, Texas Architectural Aggregate (“Bilbrough”), pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 815(d). The petition seeks a civil
penalty of $500.00 for an alleged violation of section 56.15003, 30 U.S.C. § 56.15003.

    A hearing was held in San Antonio, Texas. During the course of the hearing, the parties

reached a settlement on all eight citations respecting Docket No. Cent 2000-336-M, which was
approved by Decision Approving Settlement issued April 27, 2000. The parties’ Proposed
Findings of Fact and Briefs are of record. For the reasons set forth below, the citation and order
shall be VACATED.

   I. Stipulations

   The parties stipulated to the following facts:

   1. Bilbrough Marble Division of Texas Architectural Aggregate (“Bilbrough”) Mine ID

No. 41-01684, is the lessee and operator of the Roper Quarry.
2. Bilbrough is engaged in mining, and its mining operations affect interstate commerce.

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   3. Bilbrough is subject to the jurisdiction of the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq.

   4. True copies of Citation Nos. 7889527, 7889528, 7889529, 7889530, 7889531,

7889532, 7889533, 7889534 and 7889535 were served on Bilbrough or its agent, as required by
the Act.

   5. The plastic gasoline can brought to the hearing by Respondent was fairly and

accurately represented by Government Exhibit P-13.

   6. The language on the back of the plastic gasoline can brought to the hearing by

Respondent read: “Nonmetallic petroleum product container, classified by UL, Inc., in
accordance with the standard specs for plastic container (Jerry cans) for petroleum products,
ANSI/ASTN @ 343J-00, approved mass gasoline container.”

  7. The idler brought to the hearing by Respondent was fairly and accurately represented

by Government Exhibit P-5.

   8. The mine history, Government Exhibit P-1, was authentic.


   II. Factual Background

    On March 2, 2000, MSHA Inspector Danny Ellis conducted a regular inspection of

Bilbrough’s Roper Quarry, a surface limestone/dolomite mine and crushing operation, located in
Marble Falls, Texas. At the time of the inspection, 8:30 a.m., he observed stockpiles of material,
a front-end loader loading a customer truck, a Euclid haul truck operating, and two employees in
the open break area (Tr. 12-14, 18-19, 87). Inspector Ellis observed the operator of the Euclid
haul truck wearing tennis shoes and another employee wearing cowboy boots and, with all
employees assembled in the break area, the inspector inquired whether they were wearing hard-
toed footwear and he physically checked their footwear by touch of his hand or foot (Tr. 16-19,
85, 87-89). Foreman Ollie Joe Conely, who had been working the excavator in the pit,
summoned general manager Joe Williams, Jr. to the mine, and by the time Williams arrived
within the half hour to accompany Inspector Ellis on his inspection, Ellis had prohibited the
workers’ entry to certain areas of the plant, unless they changed to steel-toed footwear (Tr. 14,
53, 59, 83-84, 97, 144, 150-52). As a consequence, Conely had instructed the workers to cease
operations (Tr. 91).

    Inspector Ellis ultimately cited Bilbrough for several violations (including a citation for

the four workers’ unsuitable protective footwear) which citations are not at issue herein, and
before the inspection actually got underway, the subject of suitable protective footwear became a
hotly contested issue between Ellis and Williams, especially since the workers had mistakenly
believed that Ellis had shut down the mine (Tr. 25, 75, 83-84, 97, 100, 103, 127-28). Williams

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was wearing a pair of Redwing Pecos leather workboots with leather reinforced toes (Tr. 32-33,
98-99), and pursuant to cellular phone conversations with Ellis’s supervisor, Ralph Rodriguez,
Williams was permitted to accompany Ellis on inspection in his leather workboots, except for
areas where, in Ellis’s opinion, his footwear would pose a hazard (Tr. 103-04, 144-46, 148-49).
As the inspection and footwear debate progressed, with Ellis pointing out to Williams areas in
the plant where falling objects could cause foot injuries, Ellis inquired about a belt idler that had
come into view. By then, Williams had become quite frustrated, and while explaining how the
welder (in steel-toed footwear) would be installing the belt idler on the tailing conveyor, that the
idler was light in weight and that installation would not pose a hazard to the feet, Williams lifted
the 25-35 pound belt idler waist high to demonstrate how the task would be performed (Tr. 31-
32, 105-110, 135-37). Inspector Ellis immediately directed Williams to put the belt idler down
and Williams complied (Tr. 32, 107, 109). Apparently, both Williams and Ellis were highly
agitated, and Williams telephoned Rodriguez again (Tr. 91-92, 107, 109, 135). As a
consequence of Williams having lifted the belt idler, Inspector Ellis issued combined 104(a)
Citation/107(a) Order No. 7889528, alleging a significant and substantial violation of 30 C.F.R.
§ 56.15003 and describing the hazardous condition as follows:

                   The supt. Joe Williams, Jr. was not wearing hard toed
           footwear and he picked up a 30 inch belt idler that weighed
           approximately 20 lbs. The belt idler was made out of angle iron
           with rollers attached to the angle iron. The belt idler could have
           fallen on his feet causing a lost time injury. This AR told Mr.
           Williams to not pick up the belt idler since he did not have on
           suitable protective footwear and he still picked up the belt idler

(Ex. P-4). Although the citation/order estimates the weight of the belt idler at 20 pounds, 25-35
pounds is a more accurate assessment (Tr. 31; Ex. P-5).

   III. Findings of Fact and Conclusions of Law
        A. 104(a) Citation No. 7889528

   30 C.F.R. § 56.15003 provides as follows:

                  All persons shall wear suitable protective footwear when in
           or around an area of a mine or plant where a hazard exists which
           could cause an injury to the feet.

The Commission and the courts have recognized the broad applicability of generally worded
standards, and have applied an objective test to challenges based on failure to provide adequate
notice of prohibited or required conduct, i.e., whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard. BHP Minerals International, Inc., 18
FMSHRC 1342, 1345 (August 1996) (citing Ideal Cement Co., 12 FMSHRC 2409, 2416

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(November 1990)); Freeman United Coal Mining Co. v. FMSHRC 108 F.3d 358, 362 (D.C. Cir.
1997). In interpreting a standard, the Commission has determined how a reasonable person
would act by considering such factors as accepted safety standards in the field, considerations
unique to the mining industry, and the circumstances at the operator’s mine. BHP Minerals
International at 1345 (citing U.S. Steel Corp., 5 FMSHRC 3, 5 (January 1983)).

    Although section 56.15003 is not specific as to the type of footwear necessary for

adequate protection in and around the various areas and activities of a mine, a reasonably prudent
person working in the mining industry is put on notice that, where the feet are exposed to the
hazards of being struck by falling or stationary objects of a nature that can be expected to cause
broken bones or other serious injuries, hard-toed protective footwear must be worn. MSHA’s
Program Policy Manual is worded in general terms, as well, indicating that “substantial hard-toed
footwear” is considered the minimum protection acceptable for most mining applications, and
that there may be instances where special purpose foot protection is need or, conversely, where
heavy leather shoes or boots will provide adequate safety for the feet. MSHA Program Policy
Manual, Volume IV, Part 56/57, Subpart N (07/01/88). It follows, then, that what constitutes
suitable protective footwear is determined on a case-by case basis and requires a situational
analysis of the tasks the miner is performing and could be performing during the course of his
shift (Tr. 50-52, 62-63, 133-34).

     Reviewing the circumstances at the mine giving rise to the citation at issue herein,

Inspector Ellis observed a front-end loader and haul truck being operated upon his arrival, and
despite his determination that four workers were not wearing suitable protective footwear
necessary for protection against hazards, he determined that none of the men were currently
working in areas where hard-toed footwear was needed, and prohibited them from entering those
areas (Tr. 17, 21-23, 59, 68, 76, 144-46; Ex. P-2). I credit Williams’ testimony that when he
arrived on-site in leather workboots, Ellis prohibited him from accompanying him on the
inspection (Tr. 97). Ellis testified that he considered Williams to be wearing soft-toed boots (Tr.
77). Indeed, the inspection did not proceed until Rodriguez overrode Ellis and authorized
Williams to accompany Ellis in his leather workboots (Tr. 97-100, 103-04, 144-46). Considering
that the miners were under the impression that the mine had been shut down, and Ellis and
Williams had locked horns as to the suitability of the miners’ footwear, it is apparent that the
inspection proceeded in an emotionally charged environment (Tr. 75, 97, 104, 134-35). I credit
Ollie Joe Conely’s testimony that he overheard heated discussion between Ellis and Williams at
the time of the alleged violation (Tr. 91), and discredit Ellis’s testimony that he was not agitated
(Tr. 56-57, 65). Because I am convinced that discussion of the belt idler arose while tempers
flared, I credit Williams’ testimony that his action, motivated by extreme frustration, was
spontaneous and not premeditated (Tr. 105-107). In so finding, I discredit Inspector Ellis’s
testimony that beforehand, he specifically directed Williams not to pick up the belt idler (Tr. 31-
32, 36, 65-69, 108). A more likely scenario, viewing the evidence in its entirety, is that Ellis told
Williams not to pick up the belt idler as it was being lifted.

   Although Inspector Ellis testified that he issued the citation because Williams was

engaging in activity that required hard-toed footwear (Tr. 33), it is clear that MSHA determined

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Williams’ footwear suitable for accompanying Ellis on inspection, consistent with its own policy
that leather boots provide adequate safety under some circumstances. Ellis testified that the
location of the belt idler posed no hazard of falling objects (Tr. 155-56). It is also evident that
Williams was not performing any work when he lifted the belt idler, but illustrating a point
during the course of the inspection, and at all times maintained control of the object. In
explaining how he happened to “snatch up” the belt idler, Williams testified credibly that he had
been picking up 100 pound bags since he was 12 ½ years old, which he considered “not much
weight” (Tr. 106-08). Moreover, Ellis testified that he had no indication that Williams would
drop the belt idler (64-65). Ellis even conceded, as pointed out by Williams, that the top-heavy
configuration of the belt idler substantially reduced the possibility of it dropping straight down
onto the feet (Tr. 124-25, 146-47). Consequently, having found that Williams’ leather workboots
were suitable protective footwear for accompanying the inspector, and having found that
Williams was not in an area or performing a task that would subject him to hazards that would
cause foot injury, I conclude that the standard was not violated. Accordingly, Citation No.
7889528 is vacated.

   B. 107(a) Order No. 7889528

    Section 3(j) of the Mine Act defines “imminent danger” as the existence of any condition

or practice in a coal or other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j). Section
107(a) of the Mine Act provides, in pertinent part, for imminent danger orders, as follows:

           If, upon any inspection or investigation of a coal or other mine which is
   subject to this [Act], an authorized representative of the Secretary finds that an
   imminent danger exists, such representative shall determine the extent of the area
   of such mine throughout which the danger exists, and issue an order requiring the
   operator of such mine to cause all persons, except those referred to in section
   [104(a)], to be withdrawn from, and to be prohibited from entering, such area until
   an authorized representative of the Secretary determines that such imminent
   danger and the conditions or practices which caused such imminent danger no
   longer exist.

Considering that an inspector must act quickly in the face of a perceived dangerous condition, the
Commission and the courts have held that an inspector’s findings and decision to issue an
imminent danger order should be supported unless there is an abuse of discretion or authority.
Island Creek Coal Co., 15 FMSHRC 339, 345 (March 1993); Utah Power & Light Co., 13
FMSHRC 1617, 1627 (October 1991); Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159,
2164 (November 1989); Old Ben Coal Corp. v. Interior Bd. of Mine Operations Appeals, 523
F.2d 25, 31 (1975).

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    There are several cases in which the Commission has held that there must be some

degree of imminence to support an imminent danger order and has defined “imminent” as “ready
to take place[;] near at hand[;] impending...[;] hanging threateningly over one’s head[;]
amazingly near.” Island Creek Coal Co. at 345; Utah Power & Light Co. at 1621. In Utah
Power & Light Co., the Commission stated that “where an injury is likely to occur at any
moment, and an abatement period, even of a brief duration, would expose miners to risk of death
or serious injury, the immediate withdrawal of miners is required.” 13 FMSHRC at 1622. In
Rochester & Pittsburgh Coal Co., the Commission recognized that “an imminent danger exists
when the condition or practice observed could reasonably be expected to cause death or serious
physical harm to a miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated.” 11 FMSHRC 2163 (quoting Eastern Associated
Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974));
Island Creek Coal Co. at 345. Finally, the Commission has held that an inspector, albeit acting
in good faith, abuses his discretion, in the sense of making a decision that is not in accordance
with the law, if he issues a 107(a) order without determining that the condition or practice
presents an impending hazard requiring the immediate withdrawal of miners. Island Creek Coal
Co. at 345; Utah Power & Light Co. at 1622-23.

    Inspector Ellis testified that he issued an oral imminent danger order the minute Williams

picked up the 25-35 pound belt idler, because if he were to drop it on his feet, it was more than
likely that he would have sustained broken bones (Tr. 32-33). Ellis further testified that his order
indicated that “Williams did something at that time that could immediately result in a serious
injury to him or to someone else” and that the effect of the order was “for him to cease and desist
what he was doing” (Tr. 61; see 143-44, 146-47).

     The instant imminent danger order was issued under circumstances where there was no

likelihood of injury and no degree of imminence necessitating Williams’ withdrawal. Williams’
testimony that he was in control of the belt idler and Ellis’s acknowledgment that Williams was
in no danger of dropping it established that no dangerous situation existed. Moreover,
considering the order in light of a perceived dangerous condition leads to the same conclusion,
i.e., that Williams’ withdrawal was not required to avert the danger. Indeed, Inspector Ellis was
able to put a stop to Williams’ actions by directing him to put the belt idler down, thereby ending
the perceived danger immediately. I am convinced that Inspector Ellis’s judgement was affected
by the antagonistic atmosphere attendant the inspection, and because he failed to make a
determination that the perceived hazard was impending, it is my finding that he abused his
discretion in issuing an imminent danger order. Accordingly, Order No. 7889528 is vacated.

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                               ORDER

   Combined 104(a)Citation/107(a) Order No. 7889528 is hereby VACATED, and this civil

penalty proceeding is DISMISSED.

                                      Jacqueline R. Bulluck
                                      Administrative Law Judge

Distribution:

Tina D. Campos, Esq., Mary Schopmeyer Cobb, Esq., U.S. Department of Labor, Office of the
Solicitor, 525 South Griffin Street, Suite 501, Dallas, TX 75202

David M. Williams, Esq., Texas Architectural Aggregate, Bilbrough Marble Division, P.O. Box
242, San Saba, TX 76877

/nt

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