Secretary of Labor v. Alcoa World Alumina, LLC

Read the official release (fmshrc.gov)

Plain-English summary

A Turner Industries contractor supervisor was seriously burned by heated caustic process liquor while a crew cleared a blocked pipe at Alcoa's Bayer Alumina Plant. Alcoa conceded three violations and their significant and substantial designations but disputed the high-negligence and unwarrantable-failure findings. Judge L. Zane Gill found that Alcoa employee Steven Alvarado was a rank-and-file miner, not an agent whose conduct could be imputed to Alcoa as management negligence. He reduced negligence to low for the hazardous-motion and protective-equipment violations and to moderate for the safe-access violation, and he deleted all three unwarrantable-failure designations. He also approved settlement of a fourth order, including its conversion to a section 104(a) citation, and ordered Alcoa to pay $7,561 in total penalties. The Commission later affirmed the rulings on the three litigated violations.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14105, 56.15006, and 56.11001
• Outcome: Three litigated violations were modified, a fourth order was settled, and total penalties of $7,561 were assessed.
• Subsequent review: The Commission affirmed the litigated rulings in cent-2015-128-commission.
• Key point: An employee's tagging authority and assignment to watch contractors did not make him an operator agent without actual supervisory authority or control over the work.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9900 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

ALCOA
WORLD ALUMINA, LLC,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. CENT 2015-0128

A.C.
No. 41-00320-366885

Docket
No. CENT 2015-0365

A.C.
No. 41-00320-377526

Docket
No. CENT 2015-0401

A.C.
No. 41-00320-378824

Mine:
Bayer Alumina Plant

AMENDED DECISION
AND ORDER

Appearances:               Lindsay
Wofford, Esq., U.S. Department of Labor, Office of the Solicitor, Dallas, Texas
and

Maria
C. Rich, CLR, U.S. Department of Labor, MSHA, Dallas, Texas for Petitioner

Christopher
Bacon, Esq., Vinson & Elkins L.L.P., Houston, Texas, for Respondent

Before:                                    Judge
L. Zane Gill

The
decision that issued January 10, 2017, is hereby amended pursuant to Commission
Rule 69(c), 29 C.F.R. 2700.69(c), to read as set forth below.          

This proceeding under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or
“Act”), involves a citation and two orders issued to Alcoa World Alumina, LLC
(“Alcoa”), which were litigated at a hearing on January 12 and 13, 2016, in
Victoria, Texas. [1]
The parties presented testamentary and documentary evidence and filed post
hearing and reply briefs.

The relevant citation and orders
(hereinafter “citations”) were issued as a result of MSHA’s investigation into an
accident that occurred at Alcoa’s Point Comfort, Texas plant, [2]
on September 3, 2014, that resulted in serious injury to a contract miner from
an on-site contract maintenance company, Turner Industries (“Turner”). Tr. 34,
112-13. The citations allege that Alcoa failed to protect miners from the
hazardous motion of a caustic liquid, that Alcoa did not require miners to wear
necessary personal protective equipment (“PPE”) while exposed to dangerous
chemicals, and that Alcoa allowed a miner to unsafely access a work area. Ex. S-18,
S-19, S-20.  The violations were all designated as significant and substantial
(“S&S”) , unwarrantable failures to comply with mandatory standards, and
allegedly the result of Alcoa’s high negligence. Id.

Alcoa does not contest the fact of
the violations or the S&S designations, rather, Alcoa disputes the
unwarrantable failure and high negligence levels assigned to the three
citations. Resp. Br. 2-3; Resp. Reply at 7. In
support of the unwarrantable failure and negligence designations, the Secretary
asserts that Steven Alvarado, an Alcoa employee who was present at the scene of
the accident, was an agent of Alcoa tasked with supervising the contractors,
and that he failed to take reasonable steps to prevent the accident and keep
the contract miners safe. Sec’y Br. 4. Alcoa contends that Alvarado did not
have the requisite authority to be considered a “supervisor,” and was merely a
rank and file miner present at the scene, and as such the negligence levels of
each citation should be reduced, and the unwarrantable failure designations deleted.
Resp. Br. 2. Alcoa also argues that even if Alvarado is found to be a
supervisor, the negligence and unwarrantable failure categorizations are in
error because Alvarado and Morales did not step into an area that would require
wearing PPE until the moment of the accident, that Alcoa verified the system
being maintained was free of harmful liquid, and that Alvarado reasonably
believed that a Turner employee cited for kneeling/sitting on a pipe while
working did not need fall protection and was safe. Resp. Br. 2.

Prior to the hearing the parties made
the following stipulations:

1. At all relevant times, Alcoa’s Bayer
   Alumina Plant was a “coal or other mine” as defined in Section 3(h) of the Mine
   Act, 30 U.S.C. § 802.

2. At all relevant times, Respondent was
   operator of the Bayer Alumina Plant, as defined in Section 3(d) of the Mine
   Act, 30 U.S.C. § 802. The products of Bayer Alumina Plant, MSHA ID No.
   41-00320, entered the stream of commerce and/or the operations or products
   thereof affected commerce within the meaning and scope of Section 4 of the Mine
   Act, 30 U.S.C. § 803.

3. The mine is subject to the jurisdiction of
   the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq .
   (“Mine Act”);

4. The Federal Mine Safety and Health Review
   Commission has jurisdiction over this matter.

5. The Administrative Law Judge has
   jurisdiction over this matter.

6. The subject citations were served by a duly
   authorized representative of the Secretary on the dates and places stated
   therein and may be admitted into evidence for the purpose of establishing their
   issuance, but no stipulation is made as to their relevance or the truth of the
   matters asserted therein.

7. The assessed penalties, if affirmed, will
   not impair the Respondent’s ability to remain in business.

8. The parties have settled Citation No.
   8856305 in Docket No. CENT 2015-401 and only Citation Nos. 8778037, 8778038 and
   8778039 remain at issue.

J. Prehearing Rep. 1-2.

For
the reasons that follow I conclude that Order Nos. 8778037, 8778039, and
Citation No. 8778038, were all violations of the respective cited standards,
properly designated as S&S, and that the gravity designations for each
violation were appropriate. I conclude, however, that Alcoa exhibited low and
moderate, rather than high negligence and that none of the violations were the
result of unwarrantable failure.

This decision will begin with an
overview of the relevant legal standards. Next, a factual background of the
mine and the accident that gave rise to the citations will be given, followed
by an analysis and the disposition of each alleged violation, and finally my
assessment of civil penalties and order.

I.            
Basic Legal Principles

Significant
and Substantial

All of the citations in dispute were
designated by the Secretary as significant and substantial (“S&S”). The
Mine Act describes an S&S violation as one “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). The Commission has
held that a violation is properly designated S&S “if, based on the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co ., 3 FMSHRC
822, 825 (Apr. 1981); Texasgulf, Inc. , 10 FMSHRC 498 (Apr. 1988); Youghiogheny &
Ohio Coal Co. , 9 FMSHRC 2007 (Dec. 1987). This evaluation is also made in
consideration of the length of time that the violative condition existed prior
to the citation and the time it would have existed if normal mining operations
had continued. Elk Run Coal Co. , 27 FMSHRC at 905; U.S. Steel Mining
Co., Inc. , 6 FMSHRC 1573, 1574 (July 1984). S&S enhanced enforcement is
applicable only to violations of mandatory health and safety standards. Cyprus
Emerald Res. Corp. v. FMSHRC , 195 F.3d 42, 45 (D.C. Cir. 1999).

In Mathies Coal
Co. , the Commission established the standard, commonly referred to as the Mathies
test, for determining whether a violation was S&S:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard – that is, a measure of danger to safety – contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

Mathies Coal Co. , 6 FMSHRC 1, 3-4
(Jan. 1984).

Generally, the Commission considered the
third step of the Mathies test to ask both whether there was a
reasonable likelihood that a hazard contributed to by the violation would occur
and whether there was a reasonable likelihood that the occurrence would
result in injury. See U.S. Steel Mining Co. , 6 FMSHRC 1834, 1836 (Aug. 1984).
As a result of this paradigm, the second step was often a given in S&S
analysis, with the third prong traditionally being the most contended and
discussed aspect the evaluation. [3]
The Commission recently revisited the S&S analysis to clarify the interplay
between the second and third prongs of the Mathies test. Newtown
Energy, Inc., 38 FMSHRC 2033, 2038 (Aug. 2016).

The Commission explained in Newtown that
the ultimate inquiry at the heart of the Mathies test has not changed
but now “the proper focus of the second step of the Mathies test is the
likelihood of the occurrence of the hazard the cited standard is designed to
prevent.” Newtown Energy, 38 FMSHRC at 3307, n. 8. The third step
focuses primarily on gravity, and the focus shifts from the violation to the
hazard (which is established in stage two), and whether the hazard would be
reasonably likely to result in injury. Knox Creek Coal Corp. v. Sec’y of
Labor , 811 F.3d 148, 162 (4th Cir. 2016). Essentially whether the hazard
was reasonably likely to occur is moved to the second step and the
consideration of whether an injury was reasonably likely in the event of that
occurrence remains in the third step. Id. The second step “likelihood”
analysis and third step “gravity” analysis are tied together by the “hazard” at
issue. Newtown Energy, 38 FMSHRC at 2038.

The Mathies test now requires
that the judge adequately define the particular hazard to which the violation
contributes in the second step of the test. The starting point of determining
the hazard is the cited C.F.R. section, as the Commission defines “hazard” in
terms of the prospective danger the cited safety standard is intended to
prevent. Id. After a hazard is clearly identified and defined the judge
must then determine whether the alleged violation sufficiently contributed to
that hazard. [4]
This requires a determination of whether, in light of the facts surrounding the
violation, there is a reasonable likelihood of the occurrence of the hazard the
standard addresses. Id.

If a Judge concludes that based on the
evidence the violation sufficiently contributes to the defined hazard, the
occurrence is assumed, and he must move on to the third step of Mathies .
Id. The third step then requires the judge to determine whether based on
the particular facts, the occurrence of the hazard would be reasonably likely
to result in an injury. Id. The Commission recognized that “reasonable
likelihood” is not an exact standard and the degree of risk of injury cannot be
quantified into precise percentage, but it is a matter of degree evaluation,
requiring a judge to apply experience and discretion to resolve fact intensive
questions. Id. at 2039. The fourth and final step in the analysis is to
determine whether a resulting injury would be reasonably likely to be
reasonably serious. Id.

Unwarrantable
Failure

The three citations
at issue were also designated as “unwarrantable failures” to comply with the
cited standards. A violation of a standard is the result of an operator’s unwarrantable
failure if it demonstrates “aggravated conduct constituting more than ordinary
negligence.” Emery Mining Corp ., 9 FMSHRC 1997, 2004 (Dec. 1987). A
violation is also an unwarrantable failure if it demonstrates the operator’s
“reckless disregard,” “intentional misconduct,” “indifference,” or the “serious
lack of reasonable care.” Id . ; Rochester & Pittsburgh Coal
Co. , 13 FMSHRC 189, 193-194 (Feb. 1991). A court must examine all relevant
facts and circumstances to determine whether an operator’s conduct is
aggravated or whether mitigation is present. IO Coal Co. , 31 FMSHRC
1346, 1351 (Dec. 2009). Specific factors to consider to determine whether a
violation constitutes an unwarrantable failure include: 1) the length of time
that the violation has existed, 2) the extent of the violative condition, 3)
whether the operator has been placed on notice that greater efforts were
necessary for compliance, 4) the operator’s efforts in abating the violative
condition, 5) whether the violation was obvious or posed a high degree of
danger and 6) the operator’s knowledge of the existence of the violation. Consolidation
Coal Co. , 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co. ,
16 FMSHRC 192, 195 (Feb. 1994). All the factors must be considered, although
the court may find some factors are not relevant or are more or less important
than the others under the circumstances. IO Coal , 31 FMSHRC at 1351.

In addition to
these six unwarrantable failure factors, other circumstances must be considered
in the analysis. The Commission has held that t he dangerousness of a violative
condition in itself may be so severe as to warrant an unwarrantable failure
finding. Manalapan Mining Co. , 35 FMSHRC 289, 294 (Feb. 2013). Additionally,
the conduct of mine management must be considered in an unwarrantable failure
analysis. When a supervisor, within the scope of his employment, violates a
standard, the supervisor’s misconduct is imputed on the operator and should be
“considered in conjunction with the traditional unwarrantable failure factors.”
Newtown Energy, Inc., 38 FMSHRC 2033, 2046 (Aug. 2016).

Negligence

The Secretary designated the three citations
to be the result of “high” negligence on the part of the operator. The Mine Act
creates a strict liability enforcement model 3 , and as result negligence is not an essential part of
the calculus to determine an operator’s fault. When an MSHA inspector observes
conditions that create mine hazards or otherwise fall short of the Act’s
requirements, a citation is required; irrespective of fault. 4 Negligence,
however, is central to the assessment of civil penalties [5] and to the evaluation of the
enhanced enforcement elements of S&S, unwarrantable failure, and flagrant
violation. [6]

Negligence is
considered in light of the action that would have been taken under the same
circumstances by a “reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purposes of the regulation.” Brody
Mining LLC , 37 FMSHRC 1687, 1702 (Aug. 2015). An operator is negligent if it
should have known that its actions (or failure to act) would cause a violation.
Id. Considerations regarding negligence include “the
foreseeability of the miner’s conduct, the risks involved, and the operator’s
supervising, training, and disciplining of its employees to prevent violations
of the standard in issue.” A. H. Smith Stone Co. , 5 FMSHRC 13, 15 (Jan.
1983).

The operator may be charged with varying
degrees or levels of negligence, which becomes an important consideration
during the penalty assessment. The Commission has described that ordinary
negligence may be characterized by “inadvertent,” “thoughtless,” or “inattentive”
conduct. Emery Mining Corp. , 9 FMSHRC 1997, 2001, 2004 (Dec. 1987). A
finding of high negligence, however, “suggests an aggravated lack of care that
is more than ordinary negligence.” Topper Coal Co., Inc. , 20 FMSHRC 344,
350 (1998); Eastern Associated Coal Corp., 13 FMSHRC 178, 187 (Feb.
1991). In particular, the Commission has held that an operator's intentional
violation constitutes high negligence for penalty purposes. Consolidation
Coal Co., 14 FMSHRC 956, 969-70 (June 1992).  Also, a ctual knowledge
of violative conditions and the failure to act in light of that knowledge amount
to high negligence. Deshetty, employed by Island Creek Coal Co. , 16
FMSHRC 1046, 1053 (May 1994).  Moreover, mine management is held to a higher
standard of care, because they are tasked with the safety of their miners and
must also set an example for miners under their direction. Midwest Materials
Co. , 19 FMSHRC 30, 35 (Jan. 1997); Wilmot Mining Co. , 9 FMSHRC 684,
688 (Apr. 1987). [7]

MSHA’s definition of negligence and
corresponding degrees in part 100 are not binding on Commission judges, but are
helpful in evaluating culpability. Brody Mining LLC, 37 FMSHRC at
1701-03 (holding that Commission judges are not bound to apply MSHA’s negligence
definitions in 30 C.F.R. Part 100.).   Negligence
is defined in Part 100 as “conduct, either by commission or omission, which
falls below a standard of care established under the Mine Act to protect miners
against the risks of harm.” 30 C.F.R. § 100.3(d). [8] MSHA’s Part 100 also takes
into account mitigation, stating that “MSHA considers mitigating circumstances
which may include, but are not limited to, actions taken by the operator to
prevent or correct hazardous conditions or practices.” 30 C.F.R. § 100.3(d) .
  Accordingly, reckless negligence is present if “[t]he operator displayed
conduct which exhibits the absence of the slightest degree of care.” Id .
High negligence is when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.
Moderate negligence is properly attributed to the operator if “[t]he
operator knew or should have known of the violative condition or practice, but
there are mitigating circumstances.” Id.   Low negligence is appropriate
when “[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” Id. No
negligence is appropriate if “[t]he operator exercised diligence and could not
have known of the violative condition or practice.” Id.

Mitigation becomes
an important consideration when analyzing the level of negligence attributable
to the operator. Essentially, mitigation is something the operator does
affirmatively, with knowledge of the potential hazard being mitigated, that
tends to reduce the likelihood of an injury to a miner. This includes actions
taken by the operator to prevent or correct hazardous conditions. While
mitigation is an important consideration, a n ALJ is not constrained to an
evaluation of “mitigating” circumstances, but is charged to consider the
“totality of the circumstances holistically.” Brody Mining LLC, 37
FMSHRC at 1702; Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264
(D.C. Cir. 2016).

Agency

As noted in the negligence and
unwarrantable failure summaries above, the Commission has recognized that the
negligence of an operator's “agent” is imputable to the operator for both penalty
assessment and unwarrantable failure purposes. Whayne Supply Co. , 19
FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburgh Coal Co. , 13
FMSHRC 189, 194-97 (Feb. 1991) (“ R&P ”); Southern Ohio Coal Co. ,
4 FMSHRC 1459, 1463-64 (Aug. 1982). In contrast, the negligence of a
rank-and-file miner is not imputable to the operator for the purposes of
penalty assessment or unwarrantable failure determinations. Whayne , 19
FMSHRC 447 at 451, 453; Fort Scott Fertilizer-Cullor, Inc. , 17 FMSHRC
1112, 1116 (July 1995).

The question of whether a miner is an
agent is often contested, and demands an intensive factual analysis. The Mine
Act gives a starting point for the inquiry. Section 3(e) of the Mine Act
defines an “agent” as “any person charged with responsibility for the operation
of all or part of a … mine or the supervision of the miners in a … mine.” 30
U.S.C. § 802(e). Next, the miner’s function, responsibilities, authority, and
representations to MSHA must be taken into account. Ambrosia Coal &
Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996)(“We consider factors such as
the ability of the employee to direct the workforce, whether the employee holds
himself out as a person with supervisory responsibilities and is so regarded by
other miners, and whether the actions of the employee in directing the
workforce have an impact on health and safety at the mine.”).

The Commission looks at the particular
miner’s function, rather than solely his job title to determine whether a miner
had supervisory or managerial duties. REB Enters., 20 FMSHRC 203, 211
(Mar. 1998). It is important to examine the responsibilities of the miner at the
time of the alleged negligent conduct, and whether they were those that would
normally be delegated to management, or were crucial to the mine’s operation.   Nelson
Quarries, Inc ., 31 FMSHRC 318, 328–31, (Mar. 2009); Martin Marietta
Aggregates , 22 FMSHRC 633, 637-38 (May 2000); U.S. Coal, Inc ., 17
FMSHRC 1684, 1688 (Oct. 1995). Ambrosia Coal & Constr. Co., 18
FMSHRC 1552, 1560 (Sept. 1996); U.S. Coal, Inc ., 17 FMSHRC 1684, 1688
(Oct. 1995). For example, the Commission has concluded that in carrying out
required examination duties for an operator, an examiner may be appropriately
viewed as being charged with responsibility for the operation of part of a
mine. R&P , 13 FMSHRC at 194; see also Pocahontas Fuel Co. v.
Andrus , 590 F.2d 95 (4th Cir. 1979) (holding that preshift examiner's
knowledge was imputable to the operator for unwarrantable failure purposes
under principles of respondeat superior ); Ambrosia , 18 FMSHRC at
1561 (finding relevant to the agency determination that an employee made
required daily examinations and entered findings in an examination book).  

In the same vein, a miner’s authority is
also important in an agency analysis. There are no hard and fast rules as to
what authority a miner must have to be considered an agent of the operator. The
authority to hire, fire, or discipline other employees in and of itself is not
a prerequisite to a finding of agency, especially in light of other
circumstances that indicate an agency relationship, because such authority often
rests at a higher level due to the impact of these decisions. Nelson
Quarries, Inc. , 31 FMSHRC 331-32. Cf. e.g., REB Enters., 20 FMSHRC
at 211-12 (holding that highwall leadman was not an agent because he did not
have authority to hire and fire employees, did not assign equipment to
employees, and was not given any instructions regarding discipline of
employees).

Apparent authority, or how a miner is
treated my co-workers, must also be taken into consideration. A miner is more
likely to be considered an agent of the operator if other employees treated
them as a supervisor. Nelson Quarries, Inc. , 31 FMSHRC 318, 328–31 (2009).
See also All American Asphalt , 21 FMSHRC 119, 130 (Feb. 1999)
(holding that leadmen who acted in a supervisory capacity and were in a
position to affect safety were agents of the operator to whom employees would
logically voice their complaints).  Representations made to MSHA regarding
authority are also relevant in an analysis of agency. Ambrosia , 18
FMSHRC at 1561 n.12 (finding relevant, based on analogy to common law agency
principles, that employee held himself out as the employee in charge at the
mine and signed MSHA documents as mine foreman); Nelson Quarries, Inc. ,
31 FMSHRC 318, 331–32. On the other hand, t he authority of a rank and file miner to
tell other miners what to do on the job, does not on its own, make a miner an
agent of the operator. The intrinsic nature of on the job training by fellow
miners requires that more experienced miners give guidance to new miners on how
to safely perform a job and to imply agency in such a situation would create an
“every man for himself” atmosphere, detrimental to health and safety. Martin
Marietta Aggregates , 22 FMSHRC 633, 640 (May 2000).  Likewise, the Commission has held
that the authority of a miner to tell miners to stop working on dangerous
machinery and to remove it from service does not create an agency relationship.
U.S. Coal, 17 FMSHRC at 1688. Also, a miner’s independence is not dispositive
in an agency determination.   See e.g., Whayne, 19 FMSHRC at
451-52 (finding that an experienced miner who needs little supervision and
assists less experienced miners is not necessarily a supervisor) .

Gravity

In order to properly assess a civil penalty,
a determination regarding gravity must be made. The gravity penalty criterion
under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is often viewed in
terms of the seriousness of the violation.” Consolidation Coal Co. , 18
FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co. , 5 FMSHRC
287, 294-95 (March 1983), aff'd , 736 F.2d 1147 (7th Cir. 1984); Youghiogheny
& Ohio Coal Co. , 9 FMSHRC 673, 681 (Apr. 1987)). The seriousness of a
violation can be examined by looking at the importance of the standard which
was violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the
safety and health of miners. See Harlan Cumberland Coal Co. , 12
FMSHRC 134, 140 (Jan. 1990)(ALJ). The gravity analysis focuses on factors such
as the likelihood of an injury, the severity of an injury, and the number of
miners potentially injured. The Commission has recognized that the likelihood
of injury is to be assessed assuming continued normal mining operations without
abatement of the violation. U.S. Steel Mining Co. , 7 FMSHRC 1125, 1130
(Aug. 1985).

Burden of Proof

The Secretary bears the burden of proving all elements of a citation by
a preponderance of the credible evidence. In re: Contests of Respirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub
nom. SOL v. Keystone Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); Garden Creek
Pocahontas Co.,
11 FMSHRC 2148, 2152 (Nov. 1989); Jim Walter
Resources, Inc. , 30 FMSHRC 872, 878 (Aug. 2008) (ALJ) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and
negligence, by a preponderance of the evidence.”). See also, Jim Walter Resources,
Inc. ,
36 FMSHRC 1972, 1976-1977 (Aug. 2014) (holding that to prove his imputed
negligence is proper, the Secretary must describe the specific action an
operator did not take to meet the requisite standard of care). In general, this
preponderance standard “means proof that something is more likely so than not
so.” In re: Contest of Respirable Dust Sample Citations, 17
FMSHRC 1819, 1838 (Nov. 1995) .

Penalty

The principles governing the authority of
Commission judges to assess civil penalties de novo for violations of
the Mine Act are well established. Section 110(i) of the Mine Act delegates to
the Commission and its judges the “authority to assess all civil penalties
provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator
notifies the Secretary that it intends to challenge a penalty, the Secretary
petitions the Commission to assess said penalty. 29 C.F.R. § 2700.28.

Under Section 110(i) of the Mine Act, the
Commission is to consider the following when assessing a civil penalty: (1) the
operator’s history of previous violations; (2) the appropriateness of such
penalty to the size of the business of the operator charged; (3) whether the
operator was negligent; (4) the effect on the operator's ability to continue in
business; (5) the gravity of the violation; and (6) the demonstrated good faith
in abatement of the violative condition. 30 U.S.C § 820(i). Thus, the
Commission alone is responsible for assessing final penalties.  See
Sellersburg Stone Co. v. FMSHRC , 736 F.2d at 1151-52 (“[N]either the ALJ
nor the Commission is bound by the Secretary's proposed penalties … we find no
basis upon which to conclude that [MSHA's Part 100 penalty regulations] also
govern the Commission.”). See also American Coal Co. , 35 FMSHRC 1774,
1819 (July 2013)(ALJ)(explaining that based upon the statutory language, the
Commission alone is tasked with assessing final penalties).

The Commission has
repeatedly held that substantial deviations from the Secretary's proposed
assessments must be adequately explained using the section 110(i) criteria. E.g.,
Sellersburg Stone Co. , 5 FMSHRC 287, 293 (Mar. 1983), aff’d 736 F.2d
1147 (7th Cir. 1984);  Hubb Corp. , 22 FMSHRC 606, 612 (May
2000);  Cantera Green , 22 FMSHRC 616, 620-21 (May 2000). A judge
need not make exhaustive findings but must provide an adequate explanation of
how the findings contributed to his or her penalty assessments. Cantera
Green , 22 FMSHRC at 622.

Although all of the
statutory penalty criteria must be considered, they need not be assigned equal
weight. Thunder Basin Coal Co. , 19 FMSHRC 1495, 1503 (Sept. 1997). Generally
speaking, the magnitude of the gravity of a violation and the degree of
operator negligence are important factors, especially for more serious
violations for which substantial penalties may be imposed.  Musser Eng’g ,
32 FMSHRC 1257, 1289 (Oct. 2010)(holding that the judge was justified in
relying on utmost gravity and gross negligence in imposing a penalty
substantially higher than that proposed by the Secretary); Spartan Mining
Co. , 30 FMSHRC 699, 725 (Aug. 2008) (finding it appropriate for judge to
raise a penalty significantly based upon findings of extreme gravity and
unwarrantable failure);  Lopke Quarries, Inc. , 23 FMSHRC 705, 713
(July 2001) (holding that the judge did not abuse discretion by weighing the
factors of negligence and gravity more heavily than the other four statutory
criteria). For example, violations involving “extreme gravity” and/or “gross
negligence,” or, as stated in the former section of 105(a), “an extraordinarily
high degree of negligence or gravity, or other unique aggravating
circumstances,” may dictate higher penalty assessments. See Criteria and
Procedures for Proposed Assessment of Civil Penalties, 72 Fed. Reg. 13,592-01,
13,621(Mar. 22, 2007)(codified at 30 C.F.R. pt. 100).

In addition,
Commission judges are obligated to explain any substantial divergence between a
penalty imposed and that proposed by the Secretary. As explained in  Sellersburg
Stone :

When it is determined that penalties are appropriate which substantially
diverge from those originally proposed, it behooves that Commission and its
judges to provide a sufficient explanation of the bases underlying the
penalties assessed by the Commission. If a sufficient explanation for the
divergence is not provided, the credibility of the administrative scheme
providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness.

Sellersburg Stone , 5 FMSHRC at 293.

Special Assessment

Through notice and comment rule making, the
Secretary promulgated regulations specifying the “Criteria and Procedures for
Proposed Assessment of Civil Penalties.” 30 C.F.R. Pt. 100. Those regulations
provide two options for determining the amount of a civil penalty to be
assessed by the Secretary: regular assessment and special assessment. 30
C.F.R. §§ 100.3, 100.5(a), (b). Penalties for the vast majority of
violations are determined through the “regular assessment” process whereby
penalty points are assigned pursuant to criteria and tables that reflect the
factors specified in sections 105(b) and 110(i) of the Act. 30 C.F.R.
§100.3.

The regulations
also allow MSHA to bypass the regular assessment process if it determines that
conditions warrant a special assessment. 30 C.F.R. §100.5(a), (b).
The regulations do not further explain what conditions may warrant a special assessment. [9] Nor do they identify how the
amount of a special assessment will be determined, other than to state that
“the proposed penalty will be based on the six criteria set forth in 100.3(a). All
findings shall be in narrative form.”  Id . The narrative findings
for special assessments are typically brief and conclusory. The Secretary’s
proposed special assessment is not binding on the Commission; the Commission
imposes civil penalties de novo .

II.            
Factual Background

The Mine and the
Alumina Refining Process

Alcoa’s Bayer Alumina Plant in Point
Comfort, Texas processes alumina, which is used to produce aluminum metal. Tr.
38-44; Ex. S-1. Alcoa extracts alumina from bauxite in a four step process
referred to as the Bayer Refining Process. Tr. 15, 52, 55, 210; Ex. S-1. The
accident giving rise to the citations at issue occurred during the second step,
the clarification process. Ex. S-1; Tr. 41, 46.

During the clarification process liquid
bauxite, which is referred to as “liquor” [10]
due to its reddish-brown color, is pumped from the digestion process area, to
the clarification department, where it is passed through presses that remove
impurities to refine or clarify it for the next step in the process. Tr. 45-46.
The liquor is then moved via pipes to the precipitation department for the
third step, and then to calcination for the fourth and final step. Tr. 42-46. The
final product is alumina, a white powder composed of half aluminum and half
oxygen. Ex. S-1.

The refining or clarifying process takes
place in the clarification department. Tr. 47; Ex. S-3. The clarification
department contains a press building, with three stories. Tr. 46.

The bottom or first floor is the mud floor and contains drains to catch
material or liquor that spills during clarification. Tr. 18, 26, 47. It also
contains pump headers and pipes which push the liquor vertically up through the
second floor valves and pipes, and then up to the presses on the top floor. Tr.
47-48, 73-74, 224. [11]
The pipes that feed the presses are called risers, and are referred to by the
press to which they connect. Tr. 50.

System Maintenance and the Flange Break
Procedure

As the liquor cools and hardens when travelling through
the piping system, scale, a rock-like substance, builds up along the walls within
the risers. Tr. 56-57, 62, 66, 70, 403. This scale, often called “pancake,” can
be removed either by hydro blasting, jackhammering, or a caustic solution wash.
Tr. 62, 64, 70. [12]
Cleaning by these methods is scheduled periodically to remove buildup. Tr. 403.
In order to remove scale with caustic solution (“caustic”), pipes are removed
from the production process, liquor is drained from the risers and a caustic is
introduced into the risers through ancillary lines. Tr. 51, 54, 320. One riser
at a time is removed from the pumping process and drained before caustic is
introduced through the ancillary lines. Tr. 54, 55, 320, 492.

The ancillary
lines serve two risers and connect the pairs with a “T” pipe, which allows the
caustic to flow into both risers. Tr. 51, 54, 215, 320. To isolate one pipe for
cleaning and keep the other in production, a round flat metal plate, or blind,
is placed between the joint of the T pipe to prevent flow of caustic between
the risers. Tr. 68, 69.  Another metal plate with a hole in the center, a dutchman,
is placed on the other side of the T pipe to allow flow into that riser. Tr.
55, 68, 69.

In order to remove the caustic
from one pipe, or take it “off caustic,” and begin using caustic on another
(putting that pipe “on caustic”), the blind must be relocated and swapped with
the dutchman, in a process called a blind swap. Tr. 403. The blind swap
requires that the pipes be empty, and that the T pipe connecting the risers be
removed by unbolting the flanges, referred to as a flange break. Tr. 118, 141,
356, 427, 441.

The
flange break portion of the blind swap presents a danger because miners are
opening the piping system, which might contain residual caustic liquid which
can spray or leak out of the pipe. Ex. S-12.  Miners are at risk of contact
with a hazardous material if the riser is charged, containing liquid that can
escape. Tr. 30-31.  For this reason, Alcoa created a Standard Work Instruction
(“SWI”) which outlines safety measures necessary for the task. Ex. S-12 .  

Alcoa’s
flange break SWI requires miners to perform a lockout/tagout procedure on the
piping system to isolate the flow of any liquid. Ex. S-12. Miners must then
verify that the system is isolated by draining the pipes and then flushing them
with water (conducting a “flush verification”), which should run clear. Tr. 32,
61, 505, 506; Ex. S-12. [13]
 During the flange break miners are required to wear standard personal
protective equipment (“PPE”) to avoid chemical or thermal burns, including a hardhat,
goggles, long sleeve shirt, and hearing protection. Ex. S-12. Additional PPE,
including a chemical suit, face shield, and rubber boots is required if
verification is not performed before the flange break, or if a miner cannot
place himself in a position above the flange being broken. Ex. S-12.  Miners
are also instructed to attempt to work from above the flange being unbolted,
and to avoid putting body parts underneath the flange, in the area known as the
“line of fire”. Ex. S-12. The area where the flange break is being performed
should be barricaded and barricading should be maintained if working above
ground level to protect anyone who walks under the flange break from dripping
liquid. Ex. S-12.

The
Flange Break on September 3, 2014

On September 3,
2014, Turner contractors were tasked with performing a blind swap of risers 25
and 27, a pair of risers that shared a T pipe. Tr. 318, 403, 406. Riser 27 was
to come off caustic and be put back into the clarification process (“on
liquor”), requiring the blind swap. Tr. 403-04.  At the time the task was
assigned, a dutchman was in place allowing flow into Riser 27, but the caustic
wash was removed. Tr. 403-04.

On the morning of
September 3, before the blind swap was to start, Jeff McCaskill, an area
supervisor for Alcoa, had a safety meeting with Turner employees, including
their supervisor Rusty Morales, to discuss the hazards presented by the task. Tr.
167, 405-06.  Morales then held a meeting with his team and went through a Job
Safety Analysis (“JSA”) for the blind swap, and reviewed the safety measures
the miners should take. Tr. 168-70; Ex. S-14, S-15.

Before
the blind swap, Alcoa was to isolate the system, drain the 25 riser, verify the
piping was empty, and perform the lockout /tagout, as Turner contractors were
not authorized to lock out the system. Tr. 130. Alcoa has lockout/tagout
procedures in place for flange breaks, along with an SWI that outlines the
procedures necessary when a flush verification is not performed. Ex. S-12; Tr.

453. The Flange Break SWI states that verification must be performed before
     starting the task of unbolting “any flange associated with piping, vessels,
     tanks, pumps and valves.” Ex. S-12.  The instruction explains that the
     individual performing the flange break “must personally observe the flushing of
     water across the flange being unbolted.” Id. The General Instructions in
     the SWI advise that proper lockout / tagout and verifications procedures should
     be followed before starting work, and that an individual must verify that a
     system has been flushed with water by witnessing the flushing and draining. Ex.
     S-12. If verification cannot be performed addition PPE must be worn and a
     “Flange Break Permit” must be completed and authorized by a designated individual
     before the task begins. Ex. S-12.

At
around 8:00 a.m. Alcoa began the process of stopping the flow to Riser 25. Tr.

410. This required closing and tagging out Mud Floor Valve 30 between the pump
     and riser 25, to prevent flow to the riser, and to ensure that Valve 28 leading
     to riser 27 was closed. Tr. 417. [14]
     When McCaskill believed the valve was closed, he hung a green tag on the valve
     to indicate the closure. Tr. 410-11. Liquor was then drained from the line and
     a white work permit was placed on the press floor control room to indicate that
     the lockout / tagout was complete, the system was isolated, and that work could
     commence. Tr. 413-14, 421-22.  Alvarado testified that the 25 riser was not
     flush verified, despite the SWI requirement, because there was a blind between
     the 27 and 25 risers, and the riser was “on caustic.” Tr. 453-54.  Alvarado
     admitted that a flush verification could have been performed regardless of the
     blind. Tr. 454-55.  

Morales
and McCaskill then “walked out the job,” so McCaskill could show Morales that
the tag-out process was done and to verify that the drain hose had no flow. Tr.
119, 174, 421. [15]
McCaskill informed Morales that he would be leaving the facility, and then left
for the day around lunchtime. Tr. 158, 422.  At around 1:00 p.m., Turner
employees Morales, Dominic Cano, and Leo Gaytan arrived at the Press Building
to begin the blind swap. Tr. 14, 360, 361. Morales and Alvarado went over the
isolation points once more. Tr. 133, 144, 176, 426.

Turner
employees Gaytan and Cano removed the T pipe connecting Risers 25 and 27 and
the blind that was on Riser 25. Tr. 356. At this time they discovered a chunk
of hardened scale, referred to as “pancake,” on the opening of the pipe behind
the blind blocking the opening to Riser 25, which needed to be removed so
caustic could be forced into the line. Tr. 356, 428. [16]  Gaytan testified that he saw liquor
coming out of the drain hose at around 1:00 p.m., before he started breaking
the flange. Tr. 360-61. Gaytan informed Morales, who then told Gaytan that the
job was ready to go and that there was only a little liquid leaking. Tr.
360-61, 395. Gaytan said that Alvarado was nearby, about three or four feet
away, when he told Morales about the liquid. Tr. 360-61, 396-97. Gaytan also
stated that liquid was coming out of the hose while he was working. Tr. 378,
380-83.

Cano initially
kneeled onto the pipe, about four feet from the ground and began jack hammering
for twenty minutes until Gaytan took over. Tr. 273-74, 357. Gaytan jackhammered
from a stand he had pulled over to the area. Tr. 104, 198, 316. The jackhammer
broke through the scale and Alvarado, who was standing nearby noticed liquor
coming out of a hole in the pancake, and began shouting for the miners to stop
jackhammering. Tr. 431-32. Morales, who had been standing 8 to 10 feet away, walked
up at this time and was struck in the back by the liquor spewing heavily from
the riser. Tr. 431-32.  Morales was not wearing the proper PPE for exposure to
liquor when he was struck. Tr. 75, 432.

Alvarado
pulled Morales into the chemical safety shower about ten feet away, where Morales
rinsed himself under the solution for several minutes. Tr. 161-62, 433. Emergency
medical personnel arrived thereafter.  Morales suffered third degree burns from
his elbow to shoulder, requiring skins grafts. Tr. 163. Morales’s tongue, ear
and face were also burned. Tr. 162.

MSHA
Inspector Brett Barrick was assigned to conduct an investigation of the
accident. Tr. 81-82. [17]
 After investigating and questioning various Turner and Alcoa employees, he
issued the disputed citation and orders.

III.            
Analysis

The
parties agree that the three cited standards were violated, that the violations
are properly categorized as S&S, and that the gravity designations are
appropriate.  However, Alcoa challenges the negligence levels and unwarrantable
failure charges of each citation.

The
Secretary supports his negligence and unwarrantable failure classifications in
large part by arguing that during the violative conduct, Alvarado was Alcoa’s
agent, particularly, an acting supervisor, tasked with ensuring the safety of
the Turner contractors in McCaskill’s absence. Sec’y Br. 9, Tr. 404, 406, 410,

423. Conversely, Alcoa contends that Alvarado was simply a bystander and a mere
     rank and file miner who was present during the flange break because he needed
     to perform a task after the Turner employees were finished. Resp. Br. 8, Tr.
     301-05.  Before the citations are discussed, it is necessary to define
     Alvarado’s role at the time of the incident, as it ultimately shapes the disposition
     of the violations. [18]

Agency Analysis

The
dispute regarding both negligence and unwarrantable failure hinges largely on
whether, at the time of the violations, Alvarado was charged with supervising
other miners, and as such was Alcoa’s agent. [19]
This will be determined by examining Alvarado’s title, function,
responsibility, authority, and representations to MSHA regarding the flange
break procedure on September 3, 2014.

Alcoa argues
that Alvarado had not been designated as a supervisor on September 3, 2014, and
as such, Alvarado was not responsible for the activities of Turner contractors.
Resp. Br. 7. The Secretary asserts that Alcoa’s failure to formally designate
Alvarado as a supervisor is not determinative of Alvarado’s role on the day of
the violation. Sec’y Br. 20. On at least ten previous occasions, Alcoa management
designated Alvarado as a Temporary Acting Supervisor (“TAS”) for a shift. Tr.
449-51. This designation is given to an hourly employee before a full shift,
when a regular supervisor is not available, and requires paperwork be filled
out. Tr. 449. Alvarado receives a pay increase when he serves as TAS. Tr. 451. Alvarado
had never been designated as a TAS for a partial shift before, and on September
3, 2014, he was the only Alcoa employee on the crew who had acted as a TAS. Tr.
449, 451. Barrick testified that he had no evidence that Alvarado was acting as
a TAS on the day of the accident. Tr. 305-06. By all accounts, Alvarado was not
named a supervisor after McCaskill left for the day.

The
Commission looks to the miner’s function to determine agency status, regardless
of formal title or lack thereof. Nelson Quarries, Inc. , 31 FMSHRC 318,
328 (Mar. 2009); Martin Marietta , 22 FMSHRC 633, 637-38 (May 2000). The
Commission examines whether the miner’s function involved responsibilities
normally delegated to management. REB Enters. , 20 FMSHRC 203, 211 (Mar.
1998). The Secretary alleges that Alvarado’s function was to supervise Turner
contractors during the blind swap, in McCaskill’s absence. Sec’y Br. 19. [20] Alvarado told Barrick during the
investigation, that he was asked to “keep an eye” on the Turner contractors.
Tr. 309. Barrick conceded that it would not be unusual for an operator to ask
its hourly employees to keep an eye on contractors. Tr. 337-40. Further,
Barrick testified that all miners have the obligation to stop others from doing
something unsafe, even without reaching the threshold of being a supervisor or
an agent. Tr. 311. Alvarado testified that he was present during the flange
break because he had to do a task once the blind swap was complete. Alcoa
maintains that there would have been no need to designate Alvarado as a
supervisor. Resp. Br. 8. Maly testified that Alcoa did not normally directly supervise
contractors, contractors generally supervise their own work crews. Tr. 486-87.  Maly
also testified that Alvarado reported to Robert Clark in McCaskill’s absence,
and that in addition to Robert Clark, two other supervisors were present in the
clarification department during the blind swap. Tr. 485-87.

Next,
Alvarado’s responsibilities will be analyzed, including whether Alvarado
exercised managerial responsibilities at the time of his alleged negligent
conduct. Martin Marietta Aggregates Inc. , 22 FMSHRC 633, 638 (May 2000).
The Secretary notes that Alvarado had “tagging authority” over the blind swap
and flange break, and that this authority militates towards Alvarado being a
supervisor. S. Br. 20, Tr. 401, 443. [21]
Turner contractors did not have the authority to conduct a lockout/tagout on
Alcoa equipment. Tr. 130. Alvarado had Level 2 tagout authority, which allowed
him to lock out certain equipment and hang work permits. Tr. 402. The Secretary
failed to show how this authority differed from that of other rank and file
miners, or that only supervisory personnel had tagout authority.  

In the
absence of actual authority, the Commission also looks to apparent authority,
or how a miner was treated by those with whom he worked, to determine whether a
miner was an agent of the operator for negligence and unwarrantable failure
purposes. Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1561 (Sept.
1996). The Secretary alleges that Turner contractors reasonably believed
Alvarado was an Alcoa supervisor for purposes of the flange break and blind
swap. Sec’y Br. 19-21.

Morales
testified that during the job walkout McCaskill informed him (Morales) that
Alvarado would oversee the remainder of the job that day. Tr. 158.

Q. [Lindsay Wofford] And how did you get that
understanding that his [Alvarado’s]—his role was to supervise the work being
conducted?

A. [Rusty Morales] Jeff McCaskill told me that he
would be over the job that we would be doing and that he would be there.

Tr. 158.

Morales
also testified that he knew Alvarado “was in charge of the press building.” Tr.

160. Alcoa notes that Morales was likely being untruthful in his testimony
     regarding Alvarado being in charge of the job. Resp. Br. 9. Alcoa points out
     that Morales has filed a lawsuit against Alcoa and Alvarado for the injuries he
     sustained. Resp. Br. 9; Tr. 164. Barrick testified that he did not think
     Morales was credible. Tr. 294. Barrick was unable to interview Morales during
     his investigation, but witnessed his testimony at a deposition and then at
     trial. Tr. 294. Barrick said that Morales’s statements were contrary to those
     of three other witnesses- two Turner miners and Alvarado. Tr. 294. Morales’s
     testimony that he believed Alvarado to be in charge is not credible, based on
     Barrick’s observation on the inconsistencies among witnesses and Morales’s
     possible motivation to place blame on Alvarado for his injuries. Barrick
     testified that the documentation that Turner gave him after the incident seemed
     suspect and inconsistent. Tr. 298-99. In the past when Barrick dealt with
     Turner, he “found them at times to not be very credible.” Tr. 298.  

Leo Gaytan,
one of the Turner contractors present during the incident, testified that he
believed Alvarado was in charge because Alvarado was tagging the job with
Morales. Tr. 355. Gaytan testified that a supervisor from Alcoa generally
watched the flange break. Tr. 363. Gaytan also noted that Alvarado told him to
clean the scale and reassemble the system. Tr. 384-85. It is important to note
that this is the only thing Alvarado said to Gaytan, and Gaytan already knew he
was going to be jackhammering the scale. Tr. 384-85. Gaytan admittedly knew
what his tasks would be before Alvarado’s alleged statements. This testimony
does not weigh in favor of Alvarado being classified a supervisor.

Finally,
neither Alcoa nor Alvarado ever made any representations to MSHA that Alvarado
was a supervisor during the flange break. Tr. 302, 305. During the
investigation Alvarado told Barrick that on the day of the incident he was “on
tools,” and that he was “[w]atching Turner to assist.” Tr. 248. Barrick
testified that Kelly Grones, Alcoa’s health and safety manager, gave him the
investigation report Alcoa compiled after the incident. Tr. 82, 296. Barrick
believed it was very candid, although he disagreed with Alcoa’s belief that the
maintenance was done properly. Tr. 296-97.

Alvarado’s
tagging authority and assignment to “keep an eye” on Turner contractors are not
sufficient to find that he was a supervisor or an agent of Alcoa on September
3, 2014.  The unwarrantable failure and negligence classifications of the
individual citations will be discussed, with Alvarado’s role in each being that
of a rank and file miner.

A.     
Citation No. 8778037, Blocking
Against Hazardous Motion (Lock Out/ Tag Out)

On
September 16, 2014, Barrick issued Citation No. 8778037 to Alcoa’s Bayer
Alumina Plant for an alleged violation of 30 C.F.R. § 56.14105, a mandatory
standard requiring that machinery or equipment must be powered off and blocked
against hazardous motion before repairs on machinery are conducted. [22]

The
Citation alleges:

An accident occurred on September 3, 2014, when a
contractor’s supervisor working on the 25 press riser was struck in the back
and upper arm by approximately 220 degree caustic liquor. Two contract
employees had removed a 4 inch tee off of the riser and observed scale buildup.
They then began chipping at the hydrated scale buildup in the 4 inch opening
with a 30 lb. jackhammer. When the bit was removed from the hydrated scale hot
liquor sprayed out of a hole. The contractor’s supervisor was standing near the
miner that was scaling the opening. It has been determined that the No. 30 Mud
Floor Valve which is a part of the mechanical means of blocking the liquor[’s]
movement was not seated completely and allowed liquor to re-enter the riser
from below the drain filling the riser back up after it had been drained. The
one inch drain line failed to show any drainage at the time indicating that it
had scaled up. Failure to stop all motion of hot liquor in this equipment
resulted in the contractor’s supervisor receiving second and third degree burns
to his back resulting in lost work days. Alcoa’s management engaged in
aggravated conduct constituting more than ordinary negligence in that they did
not verify that the system was completely blocked against movement of liquor. This
is an unwarrantable failure to comply with a mandatory standard.

Ex. S-18.

The
citation was designated as reasonably likely to be permanently disabling, with
one person affected, S&S, and the result of Alcoa’s high negligence. Id.

The
Secretary alleges that Alcoa violated 30 C.F.R. § 56.14105 because the flange
break was “maintenance” as anticipated by the standard, the liquor was not completely
removed or blocked from moving through the piping, and it subsequently sprayed
out, injuring a miner. Sec’y Br. 22-23. Alcoa does not contest the fact of the
violation.

1. S&S

Although
Alcoa does not dispute the S&S designation, the S&S nature of the
citation will be discussed briefly. The first prong of Mathies is satisfied
because Alcoa failed to properly drain the pipes, thus the liquor was not
blocked from moving through the pipes during maintenance, in violation of
Section 56.14105.

Next,
the second step of Mathies requires me to determine whether the hazard the
cited standard was designed to prevent was reasonably likely to occur. Newtown
Energy, Inc. , 38 FMSHRC 2033, 2038 (Aug. 2016). Section 56.14105 requires
that equipment be blocked against hazardous motion. 30 C.F.R. § 56.14105. As
applied to this violation, the pipes should have been drained or blocked to
prevent the corrosive and heated liquor from moving through the pipes and
potentially escaping while maintenance (i.e. the flange break) was performed. Tr.

203. The failure to drain the lines resulted in the liquor escaping and burning
     a miner. The second step of Mathies is satisfied. Tr. 203.

The
third Mathies criterion focuses on gravity. Generally a judge is to
assume the hazard has been realized and then consider whether it is reasonably
likely to result in injury. Once again, an injury occurred in this case, as
Morales was burned by the spewing liquor during the flange break process.  The
fourth step of Mathies looks to whether there is a reasonable likelihood
that the injury in question would be of a reasonably serious nature.  Morales
sustained severe burns on his back, arm, and face from contact with the liquor.
Tr. 162. These burns required hospitalization and skin grafts, and have kept
Morales out of work. Tr. 115-16, 162. Based on these facts, the resulting
injury was serious in nature. The citation was properly designated S&S.

2. Negligence

The Secretary
argues that the high negligence level for Citation No. 8778037 is appropriate
because Alcoa failed to follow its own lockout/tagout procedures and work
instructions by omitting a flush verification and not isolating the pump system
before performing a flange break, in an effort to save time. Sec’y Br. 25. According
to the Secretary, flush verification was critical in this case because the
drain lines were not properly maintained and thus clogged with scale. Sec’y Br.
26-27; Tr. 79-81. Alcoa counters that a classification of “no negligence” is
appropriate for the citation because the accident was unforeseeable, the
operator was diligent in ensuring that the 30 valve that allegedly caused the
leak was completely sealed, and the omission of flush verification is
irrelevant because it would have been futile. Resp. Br. 32-33.

The Secretary
alleges that the flush verification was omitted only because Alcoa was in a
rush to get the system back on line. Sec’y Br. 28. Flush verification can take
quite a bit of time: 45 minutes to fill the system with water, and another 45
to allow it to drain. Tr. 496.  The job was a top priority, but McCaskill was
leaving early that day. Tr. 106, 361, 422.  Moreover, the Secretary alleges
that the accident was caused by Alcoa’s improper maintenance of the drain line.
Alcoa designed three-inch by two-inch (“3x2”) drain lines to be installed on
risers. Tr. 79-80. These large diameter drains are angled in such a way as to
allow discharge to flow away from the miner and are less susceptible to
plugging, clogging, and scaling than a 1-inch drain line opening. Tr. 80. At
the time of the accident Alcoa was using 1-inch ball valves hooked to a hose to
drain the lines rather than maintain the 3x2 drain lines. Tr. 80-81. The 1-inch
valve can clog and prevent liquor from draining.  This means that when liquor
stops draining from the system, it may be due to a clog, not an empty system. Flush
verification then becomes more important. Sec’y Br. 27.

Alcoa
maintains that there were no aggravating factors to support a negligence finding.
Resp. Br. 24. Alcoa contends that the Alcoa never communicated that the job was
to be rushed; rather Morales told his crew that the job needed to be completed
promptly. Tr. 379-80. [23]
Gaytan said that the job was a priority because Alcoa wanted the system back in
service, but did not testify that anyone from Alcoa specifically told him to
rush the job. Tr. 364.

Q.
[Maria Rich] Could you describe this job in terms of priority?

A.
[Leo Gaytan] Yes, ma’am.

Q.
Okay. Could you describe it for me? What priority was this job?

A.
Because they want the unit back in service, that’s the priority.

Q.
Is it important to get these pipes back in production?

A.
Yes, ma’am.

Tr.
364.

Later,
Gaytan testified that Morales told him to jackhammer despite seeing liquor
leaking because the job needed to be done. Tr. 379-80.

Q.
       [Christopher Bacon] Okay. And you told Mr. Morales "there's liquor
coming out of that?”

A.
       [Gaytan] We told Mr. Morales and Mr. Alvarado knew about it.

Q.
       You said Mr. Alvarado knew but you didn't tell Mr. Alvarado; he was
standing off to the side?

A.        He
was on the side.

Q.        Yeah.
And you were jackhammering?

A.        I
told Mr. Morales that and Mr. Morales

Q.        He
said, "It doesn't matter, keep doing it"?

A.
       He said, "The job needs to be done," he said, "They want
it done, Alcoa wants it done."

Q.
       Okay. So Mr. Morales said, "Just keep the job -- just do the job even
though that's coming out"?

A.        Mr.
Morales and Mr. Alvarado was rushing it.

Q.       
Mr. Alvarado was rushing you?

A.        Yeah,
it needs to be done.

Q.
       Okay. But Mr. Alvarado didn't tell you? He -- he didn't say anything?

A.        Not
that I know of.

Q.
       Okay. So how -- why do you say -- if you don't know he say anything,
then what makes you say that –

A.       
Because Mr. Morales -- is what he told me, "the job needs to be
done."

Q.
       Okay. So the person who told you that the job needed to be done, the
person who communicated that there was a rush was Mr. Morales?

A.        I don't
know about that one.

Q.
       Okay. But the person who was talking -- you-- you spoke to  Mr. Morales
about the liquor; you saw the liquor; am I right?

A.        Yes,
sir.

Tr. 379-80.

In sum, Gaytan did
not testify that Alvarado knew there was a leak in the line; he only stated that
Alvarado was nearby.  

In
response to the Secretary’s allegations that Alcoa did not verify isolation, Alcoa
argues that it did verify that the system was completely blocked against the
hazardous movement of liquor because it closed the 30 valve and verified that
the system was completely drained. Resp. Br. 22; Tr. 420-21. Alcoa contends
that flush verification was not necessary because the flush verification process
is meant to ensure that caustic does not remain in the pipe after a caustic
wash, and in this case liquor was in the pipe. Resp. Br. 23; Tr. 454-55, 474. Alcoa
also posits that flush verification is generally used for horizontal piping,
which is more likely to contain residue after a caustic wash, and the piping at
issue was vertical. Tr. 454-55, 474.

Alcoa claims that
the cause of the incident was likely the failure of valve 30 during
jackhammering, and as such performing a flush verification would not have
indicated a problem. Resp. Br. 23. Dwayne Maly, the training superintendent at Alcoa,
testified that the spraying liquor was caused by the 30 valve. Tr. 477-79. [24]

Barrick
testified that he could not be sure of what caused the leak, but testified, “I
truly believe in my heart of hearts flush verification may not have solved
this…” Tr. 505. When Barrick began his investigation, Grones gave Barrick an
email that the plant manager, Ben Kahrs, had sent out to many people at Alcoa the
day after the incident, stating that “flush verification was not done
correctly.” Tr. 296; Ex. S-11. Barrick agreed that one of the reasons he issued
the lockout/tagout citation was this e-mail. Tr. 301. Maly stated that he did
not agree with Kahrs’ email, because he did not believe flush verification
would have made a difference. Tr. 499, 500. This assertion, coupled with
Barrick’s admission regarding flush verification, indicated that it is
objectively reasonable to believe flush verification was not necessary, and may
not have prevented the liquor leak.

Low negligence is
the appropriate designation for the citation. There was negligence on the part
of Alcoa, because the lines were not adequately maintained. The testimony
indicates that Alcoa could have used the specially designed 3x2 lines, which
may have prevented the scaling, and that the 1-inch drain lines were more
likely to give a false indication of a de-energized system.  Moreover, flush
verification could have been performed as an additional step, even if it was
not deemed necessary.

Likewise,
there were no aggravating factors to support a high negligence finding. The
flush verification would likely not have prevented this issue, and Alcoa’s
decision not to perform one does not rise to the level of high negligence. Alcoa
bypassed the flush verification because it reasonably believed that flush
verification was not necessary. There is no indication that Alcoa was rushed
and omitted flush verification to save time. Morales and Gaytan indicated that
the job was a priority, but did not credibly testify that they were told by
Alcoa to rush the maintenance.

3. Unwarrantable Failure

The
Secretary alleges that the unwarrantable failure designation is proper for
Citation No. 8778037 because the facts demonstrate aggravated conduct on the
part of Alcoa. Sec’y Br. 29-30. Alcoa disputes the designation and asserts that
the Secretary did not establish aggravated conduct on the part of any Alcoa
employee. Resp. Br. 2.

a)      
Length of Time          

The Secretary
alleges that the violative condition existed for an hour because Gaytan
testified that he saw liquor coming from the hose before the blind swap
started. Sec’y Br. 29; Tr. 361, 388, 390. [25]
In response, Alcoa notes that work ceased as soon as Alvarado saw liquor
seeping through the pancake, and that the valve believed to have become
unseated, causing the leak, only became unseated after jackhammering began,
lessening the amount of time the condition existed. Resp. Br. 24.

Gaytan
did not credibly testify that Alvarado, an Alcoa employee, knew that a
persistent leak existed during the jackhammering. Gaytan testified that
Alvarado was three or four feet away when Gaytan told Morales about the leak,
but did not offer testimony that Alvarado heard the statement or acknowledged
it in any way. Tr. 396.  Moreover, Alvarado testified that he called on the
Turner contractors to stop work the moment that he witnessed liquor seeping
from system, which was almost the same time that Morales was struck by the
liquor. Tr. 431. The length of time that the condition existed was brief, and
as such does not weigh in favor of an unwarrantable failure finding.

b)      
 Extent of Violative Condition

The
Secretary believes the violation’s extensiveness is supported by Alcoa’s
failure to follow its own flush verification guidelines. Sec’y Br. 30. Alcoa
notes that it verified the system twice, so the extent of the condition does
not justify an unwarrantable failure finding. Resp. Br. 24.

The
extensiveness of the condition does not support unwarrantable failure, as this
leak existed in one area of the facility, for one task, and exposed the only
the miners working in the area at the time.

c)      
Notice

The
Secretary alleges that Alcoa had notice that greater efforts were needed to
comply with Section 56.14105, because MSHA cited Alcoa for an injury sustained
during a flange break a year prior to this incident. Tr. 343; Ex. S-23. Alcoa
alleges that there was insufficient evidence that the prior citation was
similar in nature to the citation at hand. Resp. Br. 25. Alcoa notes that the
prior citation involved a high pressure screen, unlike the machinery at issue
here, and that it was located in the clarification department. Tr. 343-44.

Without
additional testimony regarding the previous violations, it is difficult to
determine whether the prior citations were sufficient to put Alcoa on notice of
the violative condition. On balance, the evidence that the prior citation
involved a different piece of machinery is stronger. There is insufficient
evidence to find that Alcoa was on notice for unwarrantable failure purposes.

d)      
Failure to Abate

The
Secretary states that the disregard of the flush verification step before the
flange break, and permitting it to be ignored, demonstrated Alcoa’s failure to
abate the violative condition. Sec’y Br. 30.  Alcoa counters that it did all it
could to reasonably abate the violation because Alvarado called the Turner
contractors to stop working immediately upon seeing liquor seeping through the
pancake. Resp. Br. 25; Tr. 360.

The
Secretary does not meet his burden of showing that Alcoa’s decision to omit
flush verification amounted to a failure to abate. Additionally, by all
accounts, the work ceased when Alvarado witnessed liquor seeping through the
pancake. This does element does not support a finding of unwarrantable failure.

e)      
Obviousness and High Degree of
Danger

Alcoa
admits that the conditions leading to the accident posed a high degree of
danger, but argues that the condition was not obvious because there was no way
to tell that the 30 valve would fail after having been verified to be closed
twice. Resp. Br. 25. Alcoa disputes the obviousness of the condition by noting
that Barrick testified, “if I walked up on it, would I say it was obvious that
something bad’s going to happen here? No, it’s not – it’s not going to be
obvious in that manner.” Tr. 251. According to Alcoa, any problem with scale
breaking loose would be undetectable until jackhammering started. Tr. 479.  

The
corrosiveness of the liquor and possibility of a leak did present a high degree
of danger, albeit not an obvious one.

f)       
Operator’s Knowledge

Similarly,
the Secretary contends that Alcoa had knowledge that liquor was flowing from
the line because Gaytan mentioned it, and Alvarado was nearby when he did so.
Tr. 361, 390, 396-97. McCaskill also had difficulty seating the 30 valve before
he left for the day and Peña had been injured at one point already. Tr. 412, 414.

Alcoa
did not have sufficient knowledge of the violative condition to warrant a
finding of unwarrantable failure. The failure to flush verify alone was does
not rise to the level of reckless disregard, intentional misconduct,
indifference, or a serious lack of reasonable care. Brody Mining , 37
FMSHRC 1687, 1691 (Aug. 2015). The leak did not exist for a significant amount
of time; by all accounts the flow of liquid from the pipe was sudden. Tr. 182, 431.
It was not established that Alvarado knew that the system was not properly
verified. Gaytan vacillated when asked about observing the pipe leak, so it is
difficult to say with certainty whether Alcoa had knowledge of the leaking
pipe.  

In
sum, the high degree of danger of leaking liquor, alone, does not support an
unwarrantable failure finding. There is insufficient evidence to show that
Alcoa was on notice, had knowledge that the system was not properly isolated,
that the condition was obvious, or that Alcoa did not attempt to abate the violative
condition.

4. Gravity

Alcoa
does not dispute the gravity of the violation. The condition was dangerous, as
Alcoa concedes, and the fact of the accident and extent of injuries are
undisputed. One person, Morales, was injured severely, justifying the gravity
designations.

B.     
Order No. 8778038, The
PPE Violation

On
September 16, 2014, Barrick issued Order No. 8778038 to Alcoa’s Bayer Alumina
Plant for an alleged violation of 30 C.F.R. § 56.15006, a standard that
requires that special protective equipment and clothing be worn by miners
whenever a hazardous condition is encountered. [26]  
The order alleges:

An accident occurred on September 3, 2014 when the
contractor’s area supervisor failed to use special protective equipment
provided by the contractor to protect him from known chemical and thermal
hazards in the area in which he was working. The supervisor was providing
oversight for two contract miners on the No. 25 riser drain located on the mud
floor of the press building. The two miners were de-scaling the riser with a 30
lb. jack hammer at a 4 inch flange opening. Personal protective equipment (PPE)
had been established by the contractor in their job safety analysis review and
is described in the mine operator’s safe work instruction procedure[s] which
was provided to the contractor prior to the work being done. The PPE required
to be worn for the work is a chemical suit, face shield, chemical gloves, and
rubber boots. The contractor[’s] supervisor was working in the area wearing a
hard hat, monogoggles, hearing protection and leather work boots. During the
maintenance on the line the miners knocked an approximately 1.25 inch hole into
the hydrated scale buildup. The approximately 220 degree liquor contained in
the line shot out of the hole striking the supervisor in the back and upper
right arm about 8 feet away resulting in second and third degree burns to the
areas affected. Alcoa’s management engaged in aggravated conduct constituting
more than ordinary negligence in that a competent person/agent was present
during the work and observed the supervisor not wearing the proper equipment. The
competent person/agent failed to wear the required PPE as well and was in the
immediate area of the release. Failure to use PPE that has been prescribed
through job analysis and historical injury information in the mine increases
the potential for miners being severely burned. This violation is an
unwarrantable failure to comply with a mandatory standard.

Ex. S-19.

The
Order was designated as reasonably likely to be permanently disabling, a
significant and substantial (“S&S”) violation, with one person affected as
a result of “high” negligence. Id. The Order was later modified to a
104(d)(1) Order. Tr. 8.  

Section 56.15006 requires that special
protective equipment and clothing shall be provided, maintained and used if
chemical or other hazards that could cause injury are encountered. 30 C.F.R. §
56.15006. The Secretary does not alleged that PPE was not provided or
maintained, but rather that on the date of the accident it was not being used
by a Turner employee and an Alcoa employee. Ex. S-19; Tr. 256. Barrick
testified that he issued the PPE citation because Alcoa permitted Morales to
enter the “line of fire,” or area where a caustic spray could occur, without
adequate protective equipment. Tr. 256. Morales admitted that he was not
wearing the PPE required for a flange break, as outlined in Alcoa’s SWI. Tr.

135. [27]
     The Secretary further alleges that Alcoa did not establish a barricade to
     protect miners from possible caustic spray, as required by Alcoa’s own SWI. Sec’y
     Br. 32-33; Ex. S-12.

136. S&S

The
S&S nature of the citation is not in dispute, but will be addressed
briefly. The fact of the violation was established, satisfying the first prong
of the Mathies test. Alcoa does not dispute the fact of the violation. Morales
admits that he was not wearing the PPE required for a flange break at the time
of his injury. Tr. 135.

The
hazard contributed to by the violation (i.e. the failure of miners to wear
required PPE and establish a barricade) was a miner being struck by the
corrosive 220 degree Fahrenheit liquor. Tr. 34, 112-13; Ex. S-20. Section
56.15006 seeks to protect miners from being injured by various aspects of a
process or system, in this case contact with heated, corrosive liquor. It is
likely that a miner in the line of fire without protective equipment would be
injured if he came into contact with a dangerous substance. The third Mathies
criterion is satisfied because the liquor, and the failure to wear
protective clothing to protect his skin, caused Morales to be injured. Tr. 116,

162. These injuries were serious as they required a miner to undergo extensive hospitalization,
     skin graft procedures, and time out of work, satisfying the fourth prong of the
     Mathies test. Tr. 116, 162.  

163. Negligence

Alcoa
argues that the PPE citation should be modified from “high” negligence to “low”
negligence, because it could not have predicted Morales would walk into the
line of fire or would forego donning the PPE. Resp. Br. 32. The Secretary contends
that there are no mitigating factors to justify reducing the level of
negligence, and that Alvarado had the authority to require PPE, establish a
barricade, and prevent Morales from entering the line of fire, but failed to do
so. Sec’y Br. 33.

The Secretary alleges that Alvarado
ordered the Turner miners to remove the pancake in Riser 25 and observed the
subsequent jackhammering, but did not verbally stop Morales from entering the
line of fire without PPE. Sec’y Br. 33; Tr. 356, 362-63, 432. Barrick testified
that Alvarado was in close proximity to the jackhammering, although Barrick did
not know exactly where. Tr. 269.  Alvarado conceded that if he saw any unsafe
behavior or conditions, he would be able to call it out and stop work. Tr. 452.
 There is no proof that Alvarado saw and condoned Morales’s lack of PPE.  Morales
should have worn the extra PPE as a safe measure, since he had the potential to
walk into the line of fire (and ultimately did).  

The Secretary notes that Alvarado did
not establish a barricade, although that step is outlined in the flange break
SWI. Sec’y Br. 33; Ex. S-12. Alvarado testified that a barricade should have
been put up, but he did not put one up because he did not start the work, and he
thought Turner contractors should have done it. Tr. 453.

Alcoa argues that the negligence
should be modified to low because Morales signed off on the job safety sheet
that required PPE, but did not wear it, so he was ultimately responsible. Resp.
Br. 32. Moreover, the violation occurred in a short period of time, and Alcoa
had no way of knowing that Morales would walk into the line of fire without
PPE. Resp. Br. 32.

Alcoa’s culpability should be modified to “low”
negligence, as Morales was supervisor and contract miner, who knew he should
have worn PPE, but did not. There is insufficient evidence to indicate that Alvarado
was aware of the failure. Additionally, the standard for setting up a barricade
for a flange break was not cited, and seems to be the result of a
misunderstanding of the need for a barricade, and which individuals were tasked
with setting it up.

3. Unwarrantable Failure

The Secretary
alleges that the facts surrounding the PPE violation support a finding of
aggravated conduct sufficient to justify an unwarrantable failure finding. According
to the Secretary, the violative condition existed for a significant period of
time, Alcoa was aware of the condition, did not mitigate the hazard, knew
greater efforts were needed to comply with the PPE standard, and that the
condition posed a high degree of danger. Sec’y Br. 32. Alcoa notes that
Morales’s decision to walk into the line of fire without proper PPE cannot be
imputed on the operator because Morales was a supervisor who knew of the risk,
was responsible for his safety, and that of his crew, but chose to forego donning
additional PPE, and that Alcoa could not have stopped him. Resp. Br. 18. These
arguments are discussed further below.

a)      
Length of Time

The
Secretary contends that although Morales’s injury occurred quickly, the failure
to wear PPE was present from the time the T pipe was removed at 1:00 p.m.,
until the time the ambulance was called at 1:53 p.m. Sec’y Br. 34; Ex. S-10. Alcoa
notes that Morales was only in the line of fire for a short period of time
before being struck by leaking liquor. Resp. Br. 18; Tr. 260, 359.  Alvarado
testified that he was not aware that Morales was in the line of fire, until the
moment Morales was injured, and Alvarado yelled for the workers to stop. Resp.
Br. 19, Tr. 432.  The short length of time weighs against an unwarrantable
failure finding.

b)      
Extent of Violative Condition         

Alcoa
notes that only Morales was in the line of fire without adequate protection. Resp.
Br. 20; Tr. 344-45. Alcoa argues that this indicates the violative condition
was not extensive, and only Morales was in danger, not the other Turner
contractors who were all wearing the appropriate PPE. Resp. Br. 19.  The extent
of violative condition factor does not support an unwarrantable failure
finding.

c)      
Notice

The Secretary
contends that an injury occurred during a previous flange break, resulting in a
citation being issued to Alcoa, putting Alcoa on notice that greater efforts
were needed to comply with the PPE standard. Sec’y Br. 35.  Alcoa states that
it was not on notice of the condition, regardless of the prior PPE citation,
because only Morales was in the line of fire without adequate protection. Resp.
Br. 20; Tr. 344-45.  

Based on the facts
at hand, Alcoa was not on notice of the condition. The previous citation was
issued more than a year before, based on another process, and involved a
different piece of mine equipment.

d)      
Failure to Abate

According
to Alcoa, it put forth an effort to abate the condition by providing PPE to the

Turner contractors. Resp. Br.

32. This factor bears little weight in the present unwarrantable failure
    analysis.

e)      
Obviousness and High Degree of
Danger

Alcoa does not
dispute that the violation presented a high degree of danger, but once again
notes that the risk was not obvious, because they could not have anticipated
Morales’s actions. Resp. Br. 20-21.  Morales indicated on the job safety form
that he was wearing PPE, and by all accounts Alvarado was not closely watching
the contractors. While the condition was dangerous, it was not obvious.

f)       
Operator’s Knowledge

Alcoa also denies
that it had knowledge of the violative condition. Alcoa notes that there was no
agent present to whom to impute knowledge. Resp. Br. 21.  Alcoa maintains that
Alvarado was not an agent of the operator, and even if he were, he did not see
and could not anticipate Morales walking into the line of fire without adequate
protection. Resp. Br. 21-22.  The operator did not have sufficient knowledge of
the condition to rise to the level of unwarrantable failure.

In sum, the
dangerousness of the condition alone, does not justify the unwarrantable
failure designation.

4. Gravity

The
gravity designations are not in dispute. One miner was seriously injured because
he was not wearing the proper PPE. This resulted in the miner being
hospitalized, missing work, and requiring surgical procedures.

C.     
Order No. 8778039, The
Safe Access Violation

On
September 16, 2014, Barrick issued Order No. 8778039 to the Alcoa’s Bayer
Alumina Plant because a miner was performing maintenance on a riser
drain line while kneeling on a pipe, rather than executing the task from a
safer location, in violation of the safe access standard, 30 C.F.R. §56.11001,
which requires that the operator provide and maintain a safe means of access to
all working places. [28]

The
order alleges:

An accident occurred on September 3, 2014 when the
contractor’s supervisor was burned by spraying liquor on this job. Safe access
was not provided to a 4 inch caustic line on the No. 25 press riser drain on
the mud floor of the press building. Miners had been instructed to remove the 4
inch tee from the riser and remove the hydrated scale out the 4 inch opening
flange with a 30 lb. [j]ack hammer affixed with a 12 inch bit. A miner gained
access to the scaled up line by climbing on top of the No. 27 side of the
manifold by setting on top of a 12 inch line. The line is approximately 4 feet
from the concrete floor, and is located directly in the line of fire of the 4
inch opening. An Alcoa competent person/agent was present during the de-scaling
operation and at no time instructed the miner or the contractor[’s] supervisor
to get the miner down from the pipe and provide him with a safe means of
accessing the work outside of the line of fire. This condition exposes the
miner to falling from the pipe to the concrete floor as well as a sudden
release of hot liquor from the scaled up line resulting in serious injuries. Alcoa’s
management engaged in aggravated conduct constituting more than ordinary
negligence in that the competent person/agent observed the practice and failed
to act. This violation is an unwarrantable failure to comply with a mandatory
standard.

Ex. S-20.

The
order was designated as reasonably likely to be permanently disabling to one
miner, S&S, and the result of high negligence. Id. The order was
modified from a 104(d)(2) Order to a 104(d)(1) order. Tr. 8.

The
Commission has held that the term “maintain” in Section 56.11001 imputes an
ongoing responsibility on the operator to uphold, continue, preserve, or keep
up a safe means of access to a working place, and to ensure that the means are
utilized, rather than passively supplying the safe access. Lopke Quarries
Inc. , 23 FMSHRC 705, 708 (July 2001).   At a minimum, the
standard requires that operators maintain the safe working place and require
other miners to do so as well, the operator must take measures to ensure safe
access is utilized. Lopke Quarries Inc. ,
23 FMSHRC 705, 709 (July 2001).  

The
Secretary argues that Section 56.11001, a mandatory safety standard, requires
an operator to provide and maintain safe access to working places. Sec’y
Br. 36 (emphasis added). A Turner contractor, Cano, was kneeling on a pipe four
feet above the ground while jackhammering a pancake on the 25 riser, rather
than using a work stand to reach the area to reach the work area. Tr. 273-74,

279. This exposed the miner to the line of fire, the area directly in front of
     the flange opening. Tr. 274. Barrick issued the citation because Alvarado was
     nearby but did not stop Cano from unsafely accessing the area. Tr. 275. Alcoa
     does not dispute the violation or the S&S designation, but contends that
     the violation was not an unwarrantable failure, and should be modified from
     “high” to “moderate” negligence. Resp. Br. 26, 32.

280. S&S

Alcoa
admits to the violation alleged in Order No. 8778039. Thus, the first step of Mathies
is satisfied.

The
second Mathies element is also met, because the hazards Section 56.11001
seeks to prevent were likely to occur. Alcoa was cited for violating the safe
access standard because a Turner miner had climbed on a pipe to access a
working area, exposing himself to both fall and burn hazards. Sec’y Br. 36-37; Tr.
273-74, 279. The area was four feet above a concrete floor, and the miner could
have fallen while either climbing up, or while operating a 30 pound jackhammer.
Sec’y Br. 37; Tr. 279. The Secretary also alleges that the miner could have
been burned because he put himself in the line of fire in front of a Riser
opening while using a pipe, rather than a work stand. Sec’y Br. 37; Tr. 273. A
burn injury is reasonably likely, as Morales’s injuries on September 3, 2014
indicate.

A
fall or burn would be reasonably likely to injure a miner. Being in the line of
fire could put a miner at risk of being burned by liquor. This is reasonably
likely to occur, particularly in light of the leak on September 3, 2014, and
the injuries Morales sustained. This meets the likelihood test of the third Mathies
step.  The injuries from a burn would be reasonably serious, as liquor
burns required Morales to be hospitalized, be out of work for a significant
period of time, and undergo skin grafts. A four foot fall onto concrete is
likely to cause serious injuries as well, including head injuries and/or broken
limbs. The fourth prong of Mathies is satisfied.

2. Negligence

The
Secretary defends the high negligence classification assigned to Order No.
8778039 because Alvarado knew Cano was working on top of a pipe, rather than
from a stand, but Alvarado did not stop him. Sec’y Br. 37; Tr. 429.

Alcoa states that although Alvarado knew
Cano was working while kneeling on a pipe, he did not know that Cano was in the
line of fire, and that from his vantage point the situation was not unsafe. Resp.
Br. 33. Alcoa further contends that Alvarado believed that fall protection
would not be required because MSHA’s guidance indicates that fall protection be
used at six feet and above, and Cano was only four feet from the ground. Id.
Stands were readily available to Turner employees, and Gaytan, the Turner
contractor who took over the job for Cano, used a work stand to perform the
task. Id. ; Tr. 104. Alcoa argues that Cano or his supervisor, Morales
were in the best position to set up a stand. Resp. Br. 33.

I find that Alcoa demonstrated moderate,
rather than high, negligence.  There are several factors that mitigate Alcoa’s
negligence. The Secretary did not offer evidence that Alvarado was aware that
Cano was in the line of fire. While Alvarado admitted to seeing Cano work from
a pipe, he believed that the distance from the ground did not pose a hazard. This
is reasonable in light of MSHA’s guidance regarding fall protection. Cano
worked from the pipe for a short period of time. Stands were available to
Turner employees. Alcoa, however, could have and should have been more
proactive in requiring that contract employees use safe means to access work
sites.

3. Unwarrantable Failure

The
Secretary alleges that Alcoa’s conduct in regards to Order No. 8778039 was aggravated,
justifying the unwarrantable failure designation. Sec’y Br. 38.

a)      
Length of Time

The
condition lasted for 20 minutes, as that is the amount of time that Alvarado
knew that Cano was working while kneeling on a pipe, instead of a work stand. Barrick
testified that the duration of the violation didn’t concern him, and that the
potential for injury only occurred for a short period of time. Tr. 282. I find,
however, that this is a significant period of time, and weighs in favor of an
unwarrantable failure finding.

b)      
Extent of Violative Condition

Only one miner was exposed to the violative
condition, as only Cano was kneeling from a pipe to work. Gaytan, who took over
the task for him, used a work stand. Cano was the only individual in the line
of fire, and the only one exposed to a fall hazard. The violation was not
particularly extensive, as one miner in one location was exposed to the hazards
alleged.

c)      
Operator’s Notice that Greater
Efforts Were Necessary for Compliance

The
Secretary also notes that Alcoa had been cited eight times in a 15 month period
before the accident for violations of 30 C.F.R. § 56.11001. Sec’y Br. 38; Ex.
S-24. Alcoa counters that that the only citation the Secretary testified about
was issued for build up along a walkway, a different condition that cited. Resp.
Br. 28. The Secretary failed to show how the past citations for violations of
Section 56.11001 put Alcoa on notice regarding Order No. 8778039.  While Alcoa
had been cited previously for the same standard, the safe access standard covers
a multitude of situations.  As applied to the unwarrantable failure analysis, Alcoa
did not have sufficient notice that greater compliance efforts were necessary.

d)     
Efforts in Abating the Violative Condition

Alcoa also notes that it took efforts to
abate the condition, because it provided platforms to contractors to use while
jackhammering, and that only one contractor worked from the pipe. Resp. Br. 28;
Tr. 98, 104.  Alcoa’s routine of providing work stands to contractors is an
effort to abate the violative condition. This element will not weigh into the
unwarrantable failure analysis

e)      
Obviousness and High Degree of
Danger

Alcoa
denies that the violation was extensive, although Alcoa admits it was dangerous,
because only one miner was exposed by the violation. Resp. Br. 29, 37. The
violative condition was obvious to Alvarado, but he testified that he thought
the kneeling was acceptable and was unaware that Cano was in the line of fire. The
degree of danger posed by allowing a miner to work while standing or kneeling
on a pipe is high. This militates toward an unwarrantable failure finding.

f)       
Operator’s Knowledge

Alcoa
concedes that Alvarado was present but contends that he could not have seen
that Cano was in the line of fire. Resp. Br. 29. Alvarado also believed that
Cano did not need any special equipment because he was not six feet above the ground.
Resp. Br. 29. Finally, Alcoa notes that it could not anticipate that Cano would
work from a pipe instead of using the work stands provided to the contractors. Turner
was the responsible party, namely Morales, who was supervising the task. Alvarado’s
knowledge that Cano worked from the pipe rather than a stand is not imputable
to Alcoa.  

Alvarado knew Cano worked from a pipe, but
was merely a rank and file miner, who should have said something, but did not
believe the condition to be unsafe. The violation posed a high degree of danger
and lasted for 20 minutes, but those factors alone do not justify an
unwarrantable failure finding.

4. Gravity

I find the gravity designations for Order No.
8778039 are appropriate. It is reasonably likely that one miner could have been
seriously injured if he fell from a pipe while jackhammering. The stands would have
provided more support and allowed a miner to avoid exposing himself to the line
of fire. A fall onto the concrete floor below, or a burn from being in the line
of fire while maintaining a pipe, would likely have resulted in
hospitalization, time out of work, and could have been disabling.  Exposure to
the same line of fire resulted in Morales being severely injured, which
demonstrates the hazard is likely, and that any resulting injury would be
serious.

III. Civil Penalty

The parties
stipulated that the Secretary’s proposed penalties, if affirmed, would not
affect Alcoa’s ability to remain in business. Alcoa is large operator, and the
Point Comfort Facility is a large plant. The Secretary did not present evidence
that Alcoa failed to abate the violations in good faith. The gravity of all three
violations was serious as I discussed above. I found that they are all
reasonably likely to result in permanent injury to one miner.

Citation No.
8778037

The Secretary
proposed a civil penalty of $8,209 for Citation No. 8778037. I assess a penalty
of $1,112 for the violation because Alcoa’s negligence was low and the
violation was not an unwarrantable failure.

Order No. 8778038

The Secretary proposed a $9,122 penalty for
Order No. 8778038.

I assess a
$1,112.00 civil penalty for the violation. The negligence was low, rather than
high, as the Secretary alleges. I also find that the unwarrantable failure
categorization was inappropriate.

Order No. 8778039

The Secretary specially assessed a $52,500
civil penalty for Order No. 8778039. Tr. 284. Barrick testified that he did not
calculate the penalty, but suggested that it be specially assessed. Tr. 284. Barrick
testified that he supported the special assessment because he believed two
supervisors witnessed the violation, and he wanted to “get Alcoa’s attention.”
Tr. 284. The Secretary argues that special assessment is justified because
Alvarado was complicit in watching Cano work, and that Alcoa had eight safe
access violations in the 15 months preceding the accident. Sec’y Br. 39. The
Secretary asserts that the size of the specially assessed penalty will “serve
notice to Alcoa that its efforts to protect miners are lacking.” Sec’y Br. 39.

I decline to accept
the Secretary’s specially assessed penalty, as I find that the negligence was
moderate, not high, that the violation was not the result of unwarrantable
failure, and that Alvarado was not an Agent of Alcoa. Moreover, the Secretary
provided scant support for its assessment. Only one previous safe access
violation was mentioned at hearing and entered into evidence, and it involved
accumulations rather than the use of work stands. The Secretary argues that the
size of the penalty will put Alcoa on notice. Sec’y Br. 39.

I find that Alcoa
does have a history of previous violations of Section 56.11001. S. Ex. 24. Additionally,
Alcoa demonstrated moderate negligence.  For these reasons, I assess a civil
penalty of $4,000.00

Order No. 8856305

At the hearing, the parties indicated that
they agreed to settle Order No. 8856305. Tr. 8. On January 13, 2017, the parties
submitted a Joint Motion to Amend Decision and Order outlining the terms of
their settlement agreement, which I construe as a Motion to Approve Settlement.
J. Mot. to Amend Dec and Order .

The parties request
that the Order be modified from a 104(d)(2) Order to a 104(a) Citation, and to
delete the unwarrantable failure classification. Id. The parties also
agreed to reduction in penalty from $4,000.00 to $1,337.00. Id. I
conclude that the proffered settlement is appropriate under the criteria set
forth in Section 110(i) of the Act.

IV.
ORDER

It
is ORDERED that Order No. 8856305 be MODIFIED to change the
classification from a 104(d)(2) Order to a 104(a) citation and to delete the
unwarrantable failure designation.

It
is ORDERED that Citation No. 8778037 be MODIFIED to reduce the
level of negligence from “high” to “low.”

It is ORDERED that Order No.
8778038 be MODIFIED to reduce the level of negligence from “high” to
“low” and to change the classification from a 104(d)(2)Order to a
104(d)(1)Order.

It is ORDERED that Order No. 8778039
be MODIFIED to reduce the level of negligence from “high” to “moderate.”

It is ORDERED that Citation No. 8778037
and Order Nos. 8778038 and 8778039 be MODIFIED to delete the
unwarrantable failure designations.

WHEREFORE,
it is further ORDERED that Alcoa pay a penalty of $7,561.00 within
thirty (30) days of the date of this order. [29]

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Lindsay
Wofford, Esq., U.S. Department of Labor, Office of the Solicitor, 525 Griffin
Street, Suite 501, Dallas, TX 75202

Ms.
Maria C. Rich, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room
462, Dallas, TX 75242

Christopher
Bacon, Esq., Vinson & Elkins L.L.P., 1001 Fannin Street, Suite 2500,
Houston, TX 77002

[1]
Citation
No. 8778037 and Order No. 8856305 were assigned to Docket No. CENT 2015-0401. Order
No. 8778039 was assigned to Docket No. CENT 2015-0365. Order No. 8778038 was
assigned to Docket No. CENT 2015-0128. The parties requested that Order No.
8778038 be modified from a 104(d)(2) to a 104(d)(1) order. Tr. 8. The parties
settled Order No. 8856305 in Docket No. CENT 2015-0401 prior to hearing. Tr. 8;
J. Prehearing Rep. 2.

[2]
MSHA issued several identical citations to Turner Industries, which were
settled without a hearing. Tr. 13; Resp. Br. 1. Citations were also issued to
Alcoa, because Steven Alvarado, an Alcoa employee, was present at the time
accident. Tr.13.

[3]
In U.S. Steel Mining, the Commission provided additional guidance
regarding the third step: [T]he third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S.
Steel Mining Co., Inc. , 7 FMSHRC 1125, 1129 (Aug. 1985) (citing U.S.
Steel Mining Co., Inc. , 6 FMSHRC 1834, 1836 (Aug. 1984)). The Secretary,
however, “need not prove a reasonable likelihood that the violation itself will
cause injury.” Cumberland Coal Res. , 33 FMSHRC 2357, 2365 (Oct. 2011)
(citing Musser Engineering, Inc. ; PBS Coals, Inc. , 32 FMSHRC
1257, 1281 (Oct. 2010)). Further, the Commission has found that “the absence of
an injury-producing event when a cited practice has occurred does not preclude
a determination of S&S.” Id . (citing Elk Run Coal Co. ,
27 FMSHRC 899, 906 (Dec. 2005)).

[4]
The “revised” Mathies test now requires two tasks, or sub steps, within
the second step.

3 “ If, upon inspection or investigation, the Secretary
or his authorized representative believes that an operator of a coal or
other mine subject to this chapter has violated this chapter, or any
mandatory health or safety standard, rule, order, or regulation promulgated
pursuant to this chapter, he shall, with reasonable promptness, issue a
citation to the operator .” 30 U.S.C.A. § 814(a) (emphasis added). This
court has held that “[t]he Mine Act is a strict liability statute, and an
operator is liable for a violation of a mandatory safety standard regardless of
its level of fault.” Brody Mining, LLC , 33 FMSHRC 1329, 1335 (May 2011)
(ALJ) (citing Spartan Mining Co. , 30 FMSHRC 699, 706 (Aug. 2008); Asarco,
Inc ., 8 FMSHRC 1632, 1634-36 (Nov. 1986), aff'd , 868 F.2d 1195 (10th
Cir. 1989)). See also, A.G. Smith Stone Co. ¸5
FMSHRC 13, 15 (Jan. 1983) (holding that each mandatory standard has an
accompanying duty of care to avoid violations of the standard, and an
operator’s failure to meet that duty can lead to a finding of negligence if a
violation occurs).

[5]
Section 110(i) of the Mine Act requires that in assessing penalties, one
criterion that must be taken in account is “whether the operator was
negligent.” 30 U.S.C. § 820(i). Asarco,
Inc ., 8 FMSHRC 1632, 1636 (Nov.
1986), aff'd , 868 F.2d 1195 (10th Cir. 1989)(“the operator's fault or
lack thereof, rather than being a determinant of liability, is a factor to be
considered in assessing a civil penalty.”).

[6]
Although the same or similar factual circumstances may be included in the
Commission's consideration of an operator's misconduct with regard to an
unwarrantable failure finding and the Commission's evaluation of an operator's
negligence for purposes of assessing a civil penalty, the concepts are distinct
and subject to separate analysis. See Black Diamond Coal Mining Co., 7
FMSHRC 1117, 1122 (Aug. 1985).

[7]
There is
an exception to this principle that applies in limited circumstances. The
Commission has held that w here an operator takes reasonable steps to prevent
accidents and the “erring supervisor unforeseeably exposes only himself to
risk,” a finding of no negligence will be upheld, but if an operator was
blameworthy in respect to hiring, training, safety procedures or the accident
itself, there may be a negligence finding. NACCO Mining Co. , 3 FMSHRC 848,
850-51 (Apr. 1981). Notably, the Commission has never applied the Nacco
exception to preclude a finding of unwarrantable failure or to mitigate the
civil penalty assessment for an unwarrantable failure violation.

[8]
“A mine operator is required […] to take steps necessary to correct or prevent
hazardous conditions or practices.” 30 C.F.R. § 100.3(d).

[9]
In 2007, the Secretary substantially amended
the penalty regulations, significantly increasing penalties for most
violations, eliminating the single penalty assessment, and deleting language
from section 105(a) that specified eight categories of violations that would be
reviewed to determine whether a special assessment is appropriate including,
violations involving an extraordinarily high degree of negligence or gravity,
or other unique aggravating circumstances. Criteria and Procedure for Proposed
Assessment of Civil Penalties, 72 Fed. Reg. 13,592 at 13,621 (Mar. 22, 2007).

[10]
In the first step of the Bayer Refining Process, called digestion, raw bauxite
is pulverized and mixed with sodium hydroxide in large pressure tanks, creating
a caustic solution. Ex. S-1; Tr. 56. The alumina in the bauxite is dissolved
and forms sodium aluminate, which is referred to as “liquor.” Tr. 40, 56, 61.
The name is derived from the reddish brown color of the liquid. Tr. 60-61.

The Material Safety Data
Sheet (“MSDS”) for sodium aluminate, or liquor, refers to the solution as
“Bayer Liquor,” “Caustic Liquor,” “Alumina Refining Process Liquor,” or
“Alumina Refining Process Liquor.” Ex. S-5 at 1. The MSDS for liquor describes
it as caustic and corrosive. Ex. S-5 at 1. Additionally, the thermal
temperature of liquor during the alumina refining process is about 220 degrees
Fahrenheit. The MSDS warns that direct contact with liquor can cause “severe
irritation, corrosive burns and permanent injury to eyes, skin and
gastrointestinal tract,” and that liquor mists can seriously irritate or damage
the respiratory tract. Id. The MSDS states that PPE should be worn when
handling liquor, and safety goggles, a face shield, gloves, and protective
clothing should be worn when exposed to liquor. Id. at 3 .

[11]
Presses are long tube-shaped devices with a series of screens that capture and
filter solid materials like sand and mud from the slurry.  Tr. 45-46; Ex. S-1.

[12]
The caustic solution (“Caustic”) is sodium hydroxide, or NaSO4, a corrosive
base material that Alcoa uses to break down built up scale in pipes. Tr. 51,

54. When a caustic solution is sent through the pipes, the system is “on caustic.”

[13]
Alcoa’s Tagout/Lockout Verification Program defines verification as “the
inquiry, observation and testing methods” used to ensure energy sources are
isolated and secured in a safe position and that any “equipment, process or
system is in a zero or controlled energy state” necessary for the task being
performed. Ex. S-25.  Flush verification is defined by Alcoa’s SWI as “the
witnessing of water being flushed through piping, vessels, tanks, pumps and
valves.” Ex. S-12. An observer is looking for the water to run clear, absent of
color or material. Tr. 505-06. Additionally, the temperature of the pipe after
flush verification may indicate whether liquor is drained, as a properly
drained pipe will cool upon the introduction of water. Tr. 233-34.

The SWI states that if
verification cannot be performed additional PPE must be worn and a “Flange
Break Permit” must be completed and authorized by a superintendent or his
designee before the flange break begins. Ex. S-12.

[14]  
Alcoa employees closed the mud floor valve with a sledgehammer. Tr. 412. During
this process Alvarado broke the siphon on the line to facilitate draining. Tr.
416-17. Rudy Peña, an Alcoa employee, then began to “rod out” or drill a line
into the ball valve between riser 25 and valve 30 to remove scale build up. Tr.
414, 415. When Peña attempted to attach a hose to the ball valve to drain the
line, liquor from the pipe sprayed him. Tr. 414. Peña received first aid to
treat the skin that was exposed to liquor. Tr. 413.

[15]
Alcoa did not flush verify the isolation of Riser 25, as mandated by the SWI.
Tr. 453-54. The policy generally requires that the individuals performing the
flange break observe the flushing of water across to the flange to be unbolted.
Ex. S-12.

[16]
The pancakes are hard, like concrete, and are typically removed by
jackhammering. Tr. 64, 70, 428.

[17]
Brett Barrick was an MSHA Inspector at the time the citations were issued, but
is now a Conference Litigation Representative (“CLR”). Tr. 23. Barrick was an inspector
for four years, and conducted about 30 inspections of alumina facilities,
including Alcoa plants. Tr. 24, 26. Barrick worked for companies that performed
contract work for Alcoa for 19 years before becoming an MSHA Inspector,
including 17 years working as the Safety and Health Manager for Rexco, a
contract company imbedded at Alcoa. Tr. 27-29.  While at Rexco, Barrick
supervised flange breaks. Tr. 29-30.

[18]
The Secretary also alleges that Alcoa was highly negligent because it violated
its own safety policies in favor of saving time by not requiring PPE for the
flange break, not establishing a barricade, failing to flush verifying the
piping, by failing to properly maintain the pipe system, and not requiring
contractors to safe use safe means of access while working. Sec’y Br. 24-28,
34-36. Since the Secretary’s negligence and unwarrantable failure arguments are
specific to each citation, they will be addressed separately. Alvarado’s role
will be discussed first, as the dispute regarding his level of responsibility
is common to all three violations.

[19]
The Mine Act defines an agent as any person
charged with the operation of all or part of a mine, or the supervision of the
miners. 30 U.S.C. § 802 (e).

[20]
The Secretary states that Alvarado admitted he
was responsible for overseeing another Turner crew working on the top floor of
the Press Building. Tr. 462-63. The Secretary’s argument is misplaced, as
Alvarado admits that he was assigned to “lock out” a job for Turner
contractors, not that he was assigned to direct them or supervise them. Tr.
462-63.

[21]
Alcoa has a lockout/tagout policy that dictates what needs to be done to
isolate a system before maintenance is performed. Tr. 31. With tagging, after a
system is mechanically closed and isolated, a “tag” is hung on a valve or
section of piping as a visual aid to show it has been properly isolated and to
indicate that individuals are working on the system. Tr. 86, 210. An individual
with tagging authority has the authority to isolate a system, to identify which
components in the system need to be closed off. Tr. 31. Alcoa has various
levels of “tagging authority” to indicate what each employee is permitted to do
in the tagging process. Tr. 401-02. These levels are achieved through training
and certification. Tr. 401. For example, a Level 2 tagout authority would allow
someone to lock out equipment for general mechanical work. Tr. 401. A Level 3
authority would allow an individual to have the same duties as Level 2, in
addition to being allowed to perform a confined space lockout. Tr. 401.

[22]
The standards states:

Repairs or maintenance of
machinery or equipment shall be performed only after the power is off, and the
machinery or equipment blocked against hazardous motion. Machinery or equipment
motion or activation is permitted to the extent that adjustments or testing
cannot be performed without motion or activation, provided that persons are
effectively protected from hazardous motion.

30 C.F.R. § 56.14105

[24]
Dwayne Maly has been the training superintendent at Alcoa for about six years.
Tr. 471. His responsibilities include recording and directing employee MSHA
training and reviewing SWI’s. Tr. 471. Before this he spent 22 years in various
roles at Alcoa, including serving as the superintendent in the clarification,
digestion and precipitation areas and as a process engineer in digestion. Tr.

471. Maly assisted in drafting Alcoa’s flange break SWI. Tr. 472. Maly has a
     bachelor’s degree in Chemical Engineering from Texas A&M University. Tr.
     472.

[25]
Gaytan testified that he saw the hose draining, and reported to Morales that he
saw the hose was still draining. Tr. 388-90. Barrick testified that Gaytan told
him [Barrick] during the investigation that Gaytan saw fluid leaking from the
drain line. Tr. 332. At another point during Gaytan’s testimony he states that
he never looked at the hose, but then states he saw the hose draining before he
began working. Tr. 388. Maly stated that Gaytan has a “safety conscious”
attitude, and it seems unlikely he would see a leak without speaking up about
it. Tr. 483-85.

[26]
30 C.F.R. § 56.15006 reads:

Special protective equipment and
special protective clothing shall be provided, maintained in a sanitary and
reliable condition and used whenever hazards of process or environment,
chemical hazards, radiological hazards, or mechanical irritants are encountered
in a manner capable of causing injury or impairment.

[27]
Alcoa’s Standard Work Instruction for a flange break outlined the PPE required
to complete the task. In addition to the hardhat, google, long sleeve shirt,
and hearing protection, the SWI requires the wearing of a chemical suit, face
shield, chemical gloves and rubber boots. Ex. S-12. The SWI also instructs that
the area of the flange break be barricaded. Ex. S-12.

[28]
30 C.F.R. § 56.11001: “Safe means of access shall be provided and maintained to
all working places.”

[29]
Payment
should be sent to: Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.