Secretary of Labor v. Con-Agg of Mo, LLC

Plain-English summary

Con-Agg of Mo operated Huntsville Quarry, where MSHA cited an allegedly inadequate boulder berm after a haul truck left the road and its driver died. Judge Priscilla M. Rae granted Con-Agg's motion for a directed verdict because the Secretary's two witnesses contradicted each other about whether the berm complied with 30 C.F.R. § 56.9300. MSHA's own guidance described berms as visual and contact warnings rather than barriers designed to stop runaway vehicles, and numerous inspectors had accepted the same berm for ten to twelve years. The judge found that the Secretary had not proved a violation and that Con-Agg lacked fair notice, so Citation No. 6566854 was vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9300
• Outcome: Citation No. 6566854 was vacated after the judge granted Con-Agg's motion for a directed verdict.
• Key point: An accident alone did not prove an inadequate berm where MSHA's witnesses conflicted, its guidance supported the berm's design, and years of inspections had found it acceptable.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9950 / FAX: 202-434-9949

November 23,
2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CON-AGG
OF MO, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. CENT 2014-444-M

A.C.
No. 23-02004-353548

Mine:
Huntsville Quarry

ORDER AFFIRMING
BENCH DECISION

ON RESPONDENT’S
MOTION FOR DIRECTED VERDICT

Appearances:               Leigh
Burleson, Esq., and Alan Kelly, Esq., Office of the Solicitor, U.S. Department
of Labor, Kansas City, Missouri, for the Petitioner

Adele
L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., Beltsville, Maryland, for
the Respondent

Before:                        Judge
Rae

This case is before me upon a petition
for assessment of a civil penalty filed by the Secretary of Labor (“the
Secretary”) pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, as amended, (“the Mine Act”), 30 U.S.C. § 815(d).

At issue is a single citation, Citation
Number 6566854, issued to mine operator Con-Agg of MO, LLC (“Con-Agg” or “the
operator”) under section 104(a) of the Mine Act following a fatal accident that
took place at the operator’s facility in September 2013. Docket CENT 2014-66
and two other citations contained in CENT 2014-444 were initially at issue in
this proceeding but were settled prior to hearing.

A hearing was held in St. Louis,
Missouri on October 14, 2015, at which time the Secretary offered testimony. At
the close of the Secretary’s presentation of his case, I granted Con-Agg’s
motion for directed verdict for the reasons discussed herein.

Undisputed Facts

Con-Agg
operates the Huntsville Quarry, a small to medium size stone quarry located in
Randolph County, Missouri. The quarry has multiple benches, or ledges, that
were being mined in addition to an abandoned underground mine from which the
operator was taking rock to make a pit. The rock from the old mine was
transported to the primary crusher via haul trucks which were loaded by
front-end loaders in the pit. Once the rock was brought to the crusher plant,
it was resized for various uses. The trucks used a haul road that leads from
the pit up a steep incline past the benches where it intersected with an upper
two-lane-wide haul road that led to the crusher. Tr. 21-22. Located along the
side of this 52-foot-wide road abutting the highwall are boulders measuring 10
feet long by 6 feet deep by 4.5 feet high and weighing sixteen tons set three
to four feet apart from one another which serve as the berm. Tr. 50, 55, 58,
74, 75, 133. The boulder berm has been in place as it was in September 2013 for
approximately twelve years without modification. Tr. 54, 136. As many as thirteen
inspectors from MSHA had inspected the berm and had found it adequate to meet
the mandatory standard cited herein. Tr. 88-89. Steven Thompson was among those
inspectors who had inspected this haul road at least ten to twelve times in the
past and never issued a citation for an inadequate berm. Tr. 91, 127.

On
September 16, 2013, haul truck driver David. A. Gully was traveling from the
pit up on the haul road to the upper portion of the road where he made a 90-degree
left-hand turn heading uphill towards the crusher. However, rather than
straightening out onto the right-hand side of the road as would be expected, he
continued to drive in an arc-like direction across the opposite side of the
road and went through the berm at a 20-degree angle dragging a boulder along
with his truck. While the haul truck continued down the slope towards the pit, eventually
toppling over, the unrestrained driver was thrown to his death from the truck. The
vehicle came to rest on top of the driver at the bottom of the pit eighty feet
below where it had left the upper haul road. Tr. 26 -27, 41, 125.

An
investigation ensued following the tragic events of September 16. When tested,
the brakes on the truck were determined to be fully functional, as was all
other equipment on it. Tr. 72; Ex. S-8. The results of the study also revealed
that the truck was operating at full speed of eleven to fifteen miles per hour
with the gas pedal depressed at the time it went through the berm. The operator
did not engage the brake at any time. Tr. 93, 95-96. Further, upon testing it
was found that not only would applying the brake have prevented the accident
but had the driver released the gas pedal he would have safely coasted to a
stop before impacting the berm. Tr. 72; Ex. S-8.

In
the aftermath of the accident, MSHA Inspector Robert D. Seelke issued a
citation to Con-Agg for a violation of mandatory standard 30 C.F.R. § 56.9300. As
Inspector Seelke stated, he found the berm was inadequate specifically because
the boulders were spaced too far apart and the gaps were greater than necessary
for roadway drainage or other permitted purposes. Tr. 51.

Of
significance here is that MSHA specifically approves of the use of boulders as
berm material. Their inspection handbook states that boulders are to be placed
at a distance from the edge of the highwall to offer adequate resistance. The
handbook also goes on to say that berms are not designed to give an equipment
operator a “false sense of security.” They are designed to “give the driver a
visual indication of the location of the roadway edge; provide a sensation of
contact to the driver if they accidentally contact the berm; [and] provide
restraint to the vehicle to give the operator the opportunity to regain control
and keep the vehicle from leaving the roadway.” Ex. S-6, Chapter 8, Tr. 67-69. A
berm is not intended to be a barrier that prevents a vehicle from traveling
past or through it. Tr. 67. The National Mine Health and Safety Academy
training materials dated September 20, 2013 provide that boulder berms are
adequate if they are of mid-axle height and the boulders are spaced
sufficiently close so that a vehicle cannot run between them but they may be
set sufficiently apart to allow for drainage or for other purposes. Tr. 78; Ex.
R-9. The training document goes on to say that a berm “is by no means meant to
stop a runaway vehicle. It is only there to be used like a curb on a street. It’s
just to let you know when you’re on the edge of the road, not to prevent you
from going over the edge.” Tr. 83-84; Ex. S-9. Inspectors Seelke and Thompson
testified that they are in agreement with the training literature and the
boulders were sufficient to meet all of the requirements set forth herein as
stated in both of these training sources. Tr. 73, 84, 111, 133, 135, 136, 139.

Seelke
further testified, however, that because an accident occurred, he determined
that the operator was liable for an inadequate berm. This is the point at which
the testimony for the two government witnesses diverged significantly leading
to my granting of a directed verdict made by the Respondent.

Robert
Seelke’s Testimony

Despite
being of the opinion that the berm met all of the requirements as stated above,
Seelke was of the opinion that the boulders were too far apart. He could not
state, however, how a different placement of the boulders would have offered
greater resistance. He admitted that MSHA has no information on what distance
between boulders is acceptable and merely speculated that the boulder in
question did not offer sufficient resistance. Tr. 61. Neither he nor anyone
else measured the distance at which the boulders were placed from the edge of
the highwall and he had no idea how much resistence was offered. Tr. 74. He
further acknowledged that he has no experience constructing boulder berms and
has no educational expertise in the area. Tr. 62. He was aware that the
smallest vehicle to operate at the mine was sufficiently wide that it could not
pass between the boulders and he never inquired of anyone at the mine whether
the distance at which the boulders were placed from one another was necessary
for drainage of rain or clearing of snow and ice from the haul road. Tr. 63-66,
80-82.

Seelke
readily confirmed that as many as thirteen inspectors over the course of ten to
twelve years had inspected this berm and found it adequate. He further
expressed his confidence in each of these inspectors and felt they had not been
negligent in their opinions concerning this berm. Tr. 88-89, 91. He stated that
thirteen inspectors could have thirteen different opinions but somehow an
operator would know what distance gap would be acceptable by perhaps calling an
inspector and asking. Tr. 89. When the question was put to him, “Is there any
particular thing that we could look to ... we as operators could look to, as to
why your opinion is right and the other 12 or 13 inspectors were wrong,” his
response was, “Probably nothing. No.” Tr. 89-90.

After
confirming that the driver was out of control, had not taken his foot of the
accelerator, was driving in third or fourth gear at a top speed of eleven miles
per hour and could have easily stopped his vehicle by either taking his foot
off the gas or applying the brake, Seelke stated that he believed the operator
was conscious at the time and that the gap in the boulders was the direct cause
of the accident. Tr. 113. He found the driver’s failure to maintain control of
the truck and his not wearing a seat belt were merely contributing factors. Tr.

113. Although he was of the opinion Gully was conscious, he could not account
     for how a driver would travel across a roadway at full throttle and not react
     when impacting a 16-ton boulder. Tr. 70. When asked if he had received
     information during the course of his accident investigation that Gully had
     health issues, Seelke was less than forthcoming. He stated “there was some
     third-hand information, yes.” When pressed as to the nature of that information
     he responded, “That he – the weekend prior, he was having – he did not want to
     wear his seat belt because he felt uncomfortable, it was restraining him, in
     his personal vehicle.” When pressed even further he finally said, “That –
     that’s – was the – was the part that – that – let’s see. I – there may have
     been something about maybe some chest – chest pains, but that was – I – I don’t
     recall anything else.” Tr. 71.

When
asked if he made the decision to issue this citation in light of the
investigative findings, Seelke was equally evasive claiming it was “MSHA’s idea
as an agency.” Tr. 92.1

Steven
Thompson’s Testimony

Thompson’s
testimony completely contradicts Seelke’s. He disagreed that the boulders were
insufficient in height, size or placement to be considered adequate. He felt
they were still adequate, in fact, and that no violation was committed. Tr.
133-36, 141. He freely admitted that persons he interviewed at the mine told
him that the driver had been complaining of chest pains and indigestion-like
symptoms prior to the accident. Tr. 133. It was his opinion that Gully was not conscious
when he hit the boulder considering the manner in which the truck veered off
the road without slowing or braking and that the driver had suffered some sort
of physical event which rendered him unconscious thereby causing the accident. Anyone
who was conscious could have avoided the accident easily. Tr. 133-35, 143. He
emphatically stated that insufficient berms did not cause the accident. Tr.
142-43. Thompson also added that MSHA does not have any data to suggest what
size boulder would withstand being pushed off a highwall when hit by a 50-ton
truck. Tr. 139. These boulders were set far enough away from the edge that the
truck had to have pushed it nine feet before going over the wall. Tr. 133. There
is no set footage on gap measurements provided by MSHA and the only
requirements are that the boulders be of mid-axle height and set sufficiently
close together to prevent a vehicle from driving between them as this was.

I
find it incomprehensible that the Secretary would present a case in which his
only two witnesses contradict and impeach one another yet would represent to
the court that there is a preponderance of evidence upon which to find the
operator subject to liability. Not only does one’s testimony nullify the
other’s, but any reasonable interpretation of the facts leads to the conclusion
that the operator must prevail on its motion. First, the scenario offered by
Thompson of the driver having suffered some medical event leaving him unable to
respond is the most reasonable interpretation of the objective facts. Secondly,
the operator could not have had fair notice of a violation where the only
proponent of the violation admitted that he and all of his esteemed colleagues
found the boulder berm sufficient for ten to twelve years until this aberrant
occurrence. The Secretary, in closing remarks, stated that drivers have heart
attacks while operating equipment which is foreseeable to the operator. I find
this a most interesting interpretation of fair notice but not worthy of discussion.

Thompson’s
and the operator’s belief that the berm was sufficient is also supported by
MSHA’s own literature concerning the use of boulders as a berm stating that the
purpose of the berm is not to serve as a physical barrier capable of stopping a
vehicle.

Respondent’s
motion for directed verdict was GRANTED at trial and I herein memorialize
that ruling. Citation Number 6566854 is hereby VACATED.

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Leigh
Burleson, Esq., U.S. Department of Labor, Office of the Solicitor, Two Pershing
Square Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108

Adele
L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place,
Suite D, Beltsville, MD 20705

1 There was a
representation made by the Secretary through my law clerk that a civil suit is
pending in this matter. I would sincerely hope that a direction to issue a
citation was not given by to the inspector to assist in that civil matter where
the facts clearly do not support imposing such liability upon the operator.