C & E Concrete, Inc.

Plain-English summary

MSHA cited C & E Concrete after an inspector saw two unguarded return rollers on an operating conveyor at its crushed-limestone mine. The company relied on the exception for moving parts at least seven feet away from walking or working surfaces. Judge Jeffrey Tureck treated that exception as an affirmative defense and found that employees stayed at least 30 feet from the rollers while the belt ran, shut the belt down for maintenance, and had no reason to walk beneath the rollers. He vacated the citation, denied the proposed $100 penalty, and dismissed the case.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14107
• Outcome: Citation No. 6567956 was vacated, the proposed penalty was denied, and the case was dismissed.
• Key point: The guarding exception turns on whether moving parts are at least seven feet away from walking or working surfaces, not only whether they are seven feet above them.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 Pennsylvania Avenue, N.W., Suite 520N
Washington, D.C. 20004
November 26, 2012

SECRETARY OF LABOR, MINE SAFETY : CIVIL PENALTY PROCEEDING
AND HEALTH ADMINISTRATION :
(MSHA), : Docket No. CENT 2011-138-M
Petitioner, : AC No. 29-01460-235405
:
v. : Mine: CR #1
: Mine ID: 2901460
C & E CONCRETE, INC., :
Respondent. :

                                        DECISION

Appearances:

Bryan Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for
Petitioner

Walter Lee Meech, President, C & E Concrete, Milan, New Mexico, for Respondent

Before: Judge Tureck

    This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary

of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”),
against C & E Concrete (“C & E”), pursuant to §§ 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (“the Act”). The Secretary proposes assessing a
penalty of $100 against C & E for one alleged violation at C & E’s mine CR #1, relating to
citation 6567956. The Secretary contends that this violation was significant and substantial (“S &
S”). C & E challenges the occurrence of the violation and the S & S designation.

    Initially, MSHA had cited C & E’s mine for nine violations. However, eight of the

citations were settled prior to trial, leaving only citation 6567956 to be litigated. A formal
hearing was held in Albuquerque, New Mexico on April 17, 2012. At the hearing, Government’s
Exhibits 1-10 and Respondent’s Exhibits 1-2, were admitted into evidence, and each party
provided testamentary evidence.1 At the conclusion of the hearing, each party opted to present
oral closing statements instead of filing post-hearing briefs.

   Citations to the record of this proceeding will be abbreviated as follows: GX.-
   1

Government’s Exhibit, RX.- Respondent’s Exhibit; Tr. – Hearing Transcript.

                        Findings of Fact and Conclusions of Law

    C & E’s mine CR #1 (“the mine”) is a crushed limestone mine that produces concrete. It

is located 35 miles from Milan, New Mexico, and has its own quarry. Tr. 21-22. On August 31,
2010, MSHA inspector James Coats inspected the Mine. Tr. 21. Coats has been an MSHA
inspector for nine years, during which time he has inspected sand gravel operations, underground
mines, and surface operations. Tr. 19-20. Prior to becoming an MSHA inspector, Coats had
twenty years of underground mining experience. Tr. 20. He has conducted hundreds of
inspections, and at least ninety percent of his inspections involved the inspection of conveyors.
When inspecting conveyors, he would look for exposed rollers, head pulleys, tail pulleys and
return rollers. Tr. 20-21.

    During the August 31 inspection of the mine, Coats was accompanied by Benny Lara, the

MSHA field officer at Albuquerque and Coats’ supervisor. Tr. 22. Lara supervises seven
inspectors in his field office. Tr. 40. Lara has been a supervisor for MSHA for thirteen years. Tr.

41. Prior to becoming an MSHA inspector, Lara had thirteen years of mining experience. Lara
    has conducted approximately seven hundred inspections in his career. Tr. 41. Lara occasionally
    accompanies inspectors on inspections for the purpose of evaluating them. During these
    inspections, Lara makes his own observations in addition to the inspector’s observations. Tr. 41.

    Coats was also accompanied by Wayne Vigil, who was the supervisor at the mine, and
    

    John Lopez, the safety officer at the mine. Tr. 22-23. Coats inspected the entire conveyor belt
    system. Tr. 32. In the course of the inspection, Coats inspected the #32 conveyor belt of the mine
    which transported crushed limestone. Tr. 23-24. Coats testified that it is common for some of the
    crushed limestone being transported on a conveyor belt to fall off, and for the miners to clean up
    the fallen limestone. Tr. 24-25.

     While inspecting the #32 conveyor belt, Coats noticed that the #1 and #2 return rollers on
    

    this belt lacked guarding on the side. Tr. 25. In GX. 4, the top left photo is of the #1 return roller,
    and the top right photo is of the #2 return roller. Coats explained that while the #1 roller was
    completely exposed, the #2 return roller was partially covered by a skirt board. Tr. 32. Coats
    later testified that these two return rollers were also exposed from below. Tr. 37. Coats testified
    that C & E had guards on some of its other rollers. Tr. 32.

    Coats stated that the #1 return roller was approximately five feet above the ground, and
    

    the #2 return roller was six feet above the ground. Tr. 27-28. Coats noticed during his inspection
    that there were at least three miners in the vicinity of the #32 conveyor belt; these miners were
    cleaning up and repairing some guards. Tr. 28-29. However, he could not recall the distance
    between these miners and the conveyor belt. Tr. 35. The conveyor belt was in operation during
    his inspection. Tr. 29. Coats told Vigil that two return rollers were exposed, and Vigil responded
    that due to a deficiency in the hydraulics system, the conveyor belt was lower than normal. Tr.
    29-30.

    Coats testified that a miner could come into contact with these two exposed return rollers
    

    in a variety of ways. Tr. 30-31. A miner could come into contact with the rollers if he was
    walking beside the conveyor belt and stumbled, or if he was underneath the conveyor belt, or if

part of his shovel became stuck in the return roller. Tr. 30-31. A miner who came into contact
with one of these two exposed rollers could suffer permanently disabling injuries. Tr. 31. In
connection with Coats’s testimony, the Secretary also offered evidence of an employee at a
different mine who was fatally injured when his arm became entangled between a return roller
and the conveyor belt. GX. 10.2 Based on his observations of the exposed return rollers, Coats
issued Citation 6567956 for a violation of 30 C.F.R. § 56.14107(a), which states that “moving
machine parts shall be guarded to protect persons from contacting gears, sprockets, chains,
drives, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.” GX. 3, 6.

   Lara, the MSHA field supervisor who accompanied Coats on the August 31 inspection,

confirmed all of Coats’ observations and agreed with his issuance of Citation 6567956. Tr. 46-

47. Lara also indicated that the two return rollers were high enough for miners to walk
    underneath them, but low enough that miners walking underneath may come into contact with
    them. Tr. 53. Lara stated that if these two rollers were only two and a half feet above the ground,
    MSHA inspectors would normally not issue a citation since it would be very unlikely that a
    miner would be underneath the rollers. Tr. 53.

    C & E does not dispute that the two return rollers were exposed. However, C & E claims
    

    that even though these two rollers were exposed, no violation of 30 C.F.R. § 56.14107(a)
    occurred. Under 30 C.F.R. § 56.14107(b), which provides an exception to 30 C.F.R.
    § 56.14107(a), “guards shall not be required where the exposed moving parts are at least seven
    feet away from walking or working surfaces.” (Emphasis added). C & E contends that when the
    conveyor belt is in operation, the exposed moving rollers are more than seven feet away from
    any walking or working surface.

    Gustavo Delgado has been an employee of C & E for three years. Tr. 57. In 2010, he
    

    worked as a laborer for C & E, in which capacity he shoveled material and monitored the guards.
    Tr. 57. He testified that his work area was at least thirty feet away from the #32 conveyor belt.
    Tr. 58. He stated that in 2010, none of C & E’s employees ever went into the area of the #32
    conveyor belt while it was in operation, and that all employees would stay at least thirty feet
    away from this conveyor belt. Tr. 59. He stated that while the rollers on this conveyor belt would
    occasionally require maintenance, the employees would ensure that the conveyor belt was shut
    off and locked out before working on the rollers. Tr. 59.

    Delgado also testified that C & E used a specialized skid steer to rake out the material
    

    from underneath the conveyor belts, including material that fell through holes in the conveyor
    belts. Tr. 62, 65. According to Delgado, this skid steer precludes the need for employees to
    shovel underneath the conveyor belts. Tr. 65. Delgado also stated that material never spills off
    the belt at the section of the two return rollers. Tr. 60. However, he later conceded that at other
    sections of the belt, material may fall through holes in the conveyor belt. Tr. 64. To clean up
    such material, employees may sometimes shovel underneath the conveyor belt instead of using

    2
    Gov’t. Ex. 10 contains reports of two fatalities. The Secretary represented that only the
    Cherry Valley Pit fatality is relevant.

the skid steer. Tr. 64. However, prior to shoveling underneath the conveyor belt, employees
always check that the conveyor belt has been shut off. Tr. 64.

     John Lopez has been an employee of C & E for seven years. Tr. 68. For the last six years,

he has been C & E’s safety officer, in which capacity he accompanies MSHA inspectors on
inspections. Tr. 69. He stated that C & E’s employees who walk by the #32 conveyor belt are
forty to fifty feet away from it. Tr. 71. He stated that the two exposed return rollers on the #32
conveyor belt do not need to be maintained while the conveyor belt is in operation. Tr. 72. He
testified that he conducts safety meetings each week where employees are instructed to shut off
the conveyor belts before trying to maintain or repair the belts. Tr. 72. He also testified that he
has personally never seen anyone use the area underneath the two exposed rollers as a walkway.
Tr. 73. He believes that none of the employees would have any reason to walk underneath these
two rollers since just ten to fifteen feet away, they could walk right underneath the conveyor belt
with plenty of space between them and the belt. Tr. 73-74.

Discussion

   This penalty proceeding presents two issues. The first issue is whether a safety standard,

30 C.F.R. § 56.14107, was violated. If the evidence indicates that there was a violation, the
second issue is whether the violation was significant and substantial.

    Under 30 C.F.R. § 56.14107(b), “[g]uards shall not be required where the exposed

moving parts are at least seven feet away from walking or working surfaces.” (Emphasis added).
C & E claims that the two exposed rollers on the #32 conveyor belt fall within this exception
since they are more than seven feet away horizontally from any walking or working surface
(even though both rollers are less than seven feet above the ground). I will assume that the
respondent, C & E, bears the burden of proof regarding whether the two rollers fall within the
exception.3

    At 53 Fed. Reg. 32509 (Aug. 25, 1988), in MSHA’s comments to the final rule Safety

Standards for Loading, Hauling and Dumping and Machinery and Equipment at Metal and Non-
Metal Mines, it is stated that “guarding by location is recognized as an alternative to a physical
guard in instances where the exposed moving parts are elevated at least seven feet above walking
or working surfaces.” (Emphasis added). But this comment, if meant to limit the application of
§56.14107(b) to vertical guarding by location, is inconsistent with the plain language of the
regulation, which states that “guards shall not be required where the exposed moving parts are at
least seven feet away from walking or working surfaces.” (Emphasis added). The comment does
not indicate how MSHA arrived at this restrictive interpretation of §56.14107(b) considering that
section uses the word “away,” not “elevated” or “above,” in creating its exception to the
requirements of § 56.14107(a).

   3
     The law is unclear regarding who bears the burden of proof on the §56.14107(b)

exception. I will treat the § 56.14107(b) exception an affirmative defense. Accordingly, the
Respondent bears the burden of proof.

    Section 56.14107(b) is not ambiguous, and is not open to the interpretation suggested by

the comment. Had MSHA intended to limit that section as the comment suggests, surely the
regulation would have used the word “above,” not the word “away” which is far, far broader.
Accordingly, based on the plain language of §56.14107(b), if the two exposed rollers at issue
were at least seven feet from anywhere miners walk or work, C & E will have satisfied the
exception to §56.14107(a)’s requirement of providing guards for moving machine parts, and will
not have violated the Act.

    In this regard, first Delgado, an employee of C & E who monitored the condition of the

guards, testified that his work area was at least thirty feet away from the #32 conveyor belt, and
that he had personally never seen any of C & E’s employees come within thirty feet of this
conveyor belt while it was in operation. Tr. 58- 59. Lopez, C & E’s safety officer, stated that all
employees who walk by the # 32 conveyor belt are at least forty to fifty feet away from it. Tr. 71.
Delgado and Lopez’s testimony indicates that the two exposed rollers were at least thirty feet
from any walking or working surface. Tr. 71.

     The Secretary alleges that during the inspection a truck was parked within thirty feet of

the conveyor belt. The evidence the Secretary offered to prove her contention was a photograph
in GX. 4 which shows that a truck was in the vicinity of the two rollers; however, the photograph
fails to provide any definitive evidence of the distance between the truck and the rollers.
Moreover, the Secretary has not contended that the photograph shows the truck to be as close as
seven feet from the belt. It would have been a simple matter for the MSHA inspectors to measure
the distance between the truck and the conveyor belt during the inspection, but they did not do it.
While Lopez indicated that the truck probably belonged to C & E, he could not state either from
the photograph or his own memory of the inspection just how far the truck was from the
conveyor belt. Tr. 85-87. There is simply no probative evidence that the truck was within thirty
feet of the conveyor belt, let alone seven feet.

   Therefore, I find that no employees came closer to the exposed rollers than thirty feet

while the conveyor belt was in motion.

    Second, there was un-contradicted evidence, which I credit, that employees were warned

to turn off the #32 conveyor belt before maintaining the rollers, and that they heeded such
warnings. Delgado testified that while the rollers would occasionally require maintenance,
employees would ensure that the conveyor belt was shut off by the operator before working on
the rollers. Tr. 59. Lopez testified that the two rollers do not need to be maintained or repaired
while the conveyor belt is in operation. Tr. 72. He also testified that he conducts safety meetings
each week where employees are instructed to shut off the conveyor belts before trying to
maintain or repair the belts. Tr. 72.

     Third, C & E generally uses a specialized skid steer machine to remove any accumulated

material from underneath the # 32 conveyor belt. Tr. 62, 65. Delgado conceded that material may
fall through holes in the conveyor belt, and to clean up such material, employees may sometimes
shovel underneath the conveyor belt instead of using the skid steer. Tr. 64. However, he testified
that material never spills off at the section with the exposed rollers. Tr. 60. Moreover, he testified

that prior to shoveling underneath any section of any conveyor belt, employees always check that
the belt has been locked out. Tr. 64.

     Fourth, if, miners would decide to walk beneath the conveyor belt to get to the other side

while the belt was in motion, they would not have any reason to use the space underneath the
two exposed rollers as a walkway. Lopez testified that the conveyor belt was much higher only
ten to fifteen feet away from the two rollers, and miners could easily cross to the other side of the
conveyor belt without fear of coming into contact with it at that spot. Tr. 73-74. There was no
reason for anyone to cross to the other side of the belt underneath the two exposed rollers. It
should be noted, however, that no evidence was presented that miners actually walked under the
conveyor belt at any point while it was in motion.

    C & E has therefore proven that its two exposed return rollers on the #32 conveyor belt

fall within the § 56.14107(b) exception, since no miners came within seven feet of the moving
conveyor belt, and I conclude C & E has not violated §56.14107.4

   Since I have vacated the sole citation in this docket, it must be dismissed in its entirety.

                                         ORDER

    IT IS ORDERED that Citation 6567956 be vacated, the proposed penalty is DENIED,

and this case is DISMISSED.

                                          /s/ Jeffrey Tureck
                                          Jeffrey Tureck
                                          Administrative Law Judge

Distribution: (certified mail)

Bryan Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, Colorado, 80202

Walter Lee Meech, President, C & E Concrete, P.O. Box 2547, Milan, New Mexico. 87021

/DM

   4
       Since no violation occurred, S&S is no longer an issue.