Secretary of Labor v. Bussen Quarries, Inc.

Plain-English summary

A portable pump cart was positioned about four and a half feet from the edge of a 70-foot quarry highwall with its handles facing the drop. No warning line or barrier marked the rock-dust-blurred edge, and no tie-off point or fall protection was visible nearby. Judge Margaret A. Miller found it highly likely that a miner had entered the hazard zone to place the pump and would need to reenter it to move or operate the equipment. The fall hazard was reasonably likely to cause a fatal injury, making the violation significant and substantial. Because the lead blaster placed the pump in an obvious hazardous position despite recent training and company rules, the Judge found high negligence and assessed the proposed $6,300 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: Citation No. 8860004 was affirmed as S&S with high negligence, and a $6,300 penalty was assessed.
• Key point: A fall-protection violation may be proven through reasonable inferences from equipment placement and work practices even when the inspector does not witness the miner at the edge.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review
Commission

Office of Administrative Law Judges

721 19th St., Suite 443

Denver, CO 80202-2500

Office: (303) 844-5266/Fax: (303) 844-5262

December 17, 2015

SECRETARY OF LABOR,                               
:    CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH                      
:

ADMINISTRATION, (MSHA),                       
:    Docket No. CENT 2015-385

Petitioner,                         
:    A.C. No. 23-00027-379789

:

v.                                                  
:   

:   

BUSSEN QUARRIES, INC.,          
                        :

Respondent.                     
:    Mine: Jefferson Barracks

DECISION AND ORDER

Appearances:               Dan
Brechbuhl, United States Department of Labor, Office of the Solicitor, Denver,
Colorado, for Petitioner;

Ryan Seelke, Steelman, Gaunt &
Horsefield, Rolla, Missouri, for Respondent.

Before:                                    Judge Miller

This case is before me upon a petition for
assessment of a civil penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d) (“the Mine Act”). This docket involves one citation issued pursuant to
section 104(a) of the Mine Act on December 2, 2014, with a proposed penalty of
$6,300.00. The parties presented testimony and evidence regarding the citation
at a hearing held in St. Louis, Missouri, on November 4, 2015.

I. FINDINGS OF
FACT AND CONCLUSIONS OF LAW

The Jefferson Barracks mine is a limestone mine owned
and operated by Bussen Quarries, Inc., in St. Louis County, Missouri. The parties
have stipulated that Bussen was at all relevant times engaged in mining at
Jefferson Barracks and is therefore an “operator” as defined in section 3(d) of
the Mine Act, 30 U.S.C. § 803(d). Jt. Stips. ¶¶ 1, 3. The parties have also
stipulated to the jurisdiction of the Mine Safety and Health Administration (MSHA)
and the Commission. Jt. Stips. ¶¶ 2-5.

Citation No. 8860004 was issued by Inspector Gary
Swan on December 2, 2014, pursuant to section 104(a) of the Act for an alleged
violation of 30 C.F.R. § 56.15005. The citation alleges that there was a
portable pump on a wheeled cart being used on the highwall between the edge of
the highwall and the last row of drill holes, and that a miner using the pump
would have been exposed to a fall hazard. The inspector determined that the
condition was reasonably likely

to result in a fatal injury, was significant and
substantial, affected one person, and was the result of high negligence on the
part of the operator. The Secretary has proposed a civil penalty in the amount
of $6,300.00 for this alleged violation. For the reasons discussed below, I
find that the Secretary has proven the violation as cited.

MSHA’s Inspection

Gary Swan is a mine inspector who has
been with MSHA since 2008. Prior to becoming an inspector, he worked for 30
years in the mining industry, primarily in surface coal mines, holding a number
of positions, including supervisory positions. As part of his duties as an
inspector, he has conducted several inspections of the Jefferson Barracks mine.
Jefferson Barracks is a large limestone mine that uses explosives to blast
through the limestone and rock. Miners drill bore holes into the rock along a
highwall, pump water out of the holes as necessary, and then set a charge. The citation
at issue involves a portable cart used to pump water out of the drill holes.

When Swan arrived at the highwall,
there were four people in the area engaged in a variety of activities. David Becker
identified himself as the senior employee present. Becker was standing near a
row of drill holes approximately eight feet from the edge of the seventy-foot
highwall. Swan observed the pump stationed
approximately four and a half feet from the edge of the highwall with its
handles pointed towards the edge. No one was using the pump at the time, but it
had recently been unloaded from a truck for use throughout the shift. Swan understood
that the pump would be used to pump water out of the blasting holes and over
the side of the highwall. Swan approached Becker and told him that he wanted to
discuss the placement of the pump. Becker then reached for the pump, pulling it
closer to the line of drill holes and spinning it so that the handles no longer
faced the highwall. Photographs produced by the Secretary show the position of
the pump after it was moved and an estimation of its position before it was
moved. Ex. 1. Swan noticed that there were older footprints near the edge of
the highwall, but they were covered in rock dust and he could not tell how
recently they had been made. Rock dust also blurred the edge of the highwall. The
weather was overcast and thirty degrees. The conditions at the time including
the footprints and the highwall edge are depicted in the photographs introduced
by the Secretary. Ex. 1. Swan did not observe any fall protection in the area
or any equipment that could be used as an anchor to tie off. Becker informed
the inspector that the equipment was in a truck parked nearby, but indicated
that it was not needed. Swan observed that there was no line painted on the
rock to warn miners when they were approaching the edge, as is a common
practice at some mines. There were no signs or other warnings marking the area
near the edge. Instead, blasters relied on a measuring pole to place drilling
holes eight feet from the edge, then worked near those holes so as not to cross
within the six-foot limit. 

David Becker has worked for eleven
years at Bussen as a drilling and blasting laborer. His current position is as
lead blaster. One of his tasks is to remove the water from the drill holes
prior to blasting, which is done by attaching a hose to the back of the pump
and pumping water out, sometimes over the edge of the highwall. On December 2,
2014, Becker was preparing to load a shot, which required pumping water out of
some of the holes. Before he could do so, a powder truck arrived to be unloaded,
and Becker had to push the pump out of the way to clear a path to unload bags
of powder. Becker testified that at all times, including when he moved the pump
out of the way, his feet remained on the far side of the blast holes, at least
eight feet from the highwall edge. The mine has a policy that fall protection
is required within seven feet of the edge, and miners had received training on
the subject. Becker testified that at no point was he within seven feet of the
edge on the morning of the citation. He stated that he was the only one who
would have used the pump that day, and that he would not have used it in the
position four and a half feet from the edge and would not have crossed the
seven-foot line to retrieve it. I do not credit his testimony, however, particularly
his statement that no one would have gone within six feet of the highwall to
move the pump and that he would have been the only person to use the pump. There
were three other workers in the area and any of them could have had a need to
use or move the pump throughout the day.

A. The Violation

Section 56.15005 requires that “Safety
belts and lines shall be worn when persons work where there is a danger of
falling . . . .” 30 C.F.R. § 56.15005. The Commission has specifically
determined that in deciding whether the Secretary has proven a violation of
this standard, the relevant question is whether “an informed, reasonably
prudent person would recognize a danger of falling warranting the wearing of
safety belts and lines.” Great Western Electric Co., 5 FMSHRC 840, 842
(May 1983).

Section 56.15005 is one of thirteen
priority standards listed by MSHA in its “Rules to Live By” initiative
implemented to improve the prevention of fatalities in mining. Ex. 3. Violations
of the standard contributed to thirty-seven fatalities between 1990 and 1998,
more than any other standard. Ex. 5 at 2. MSHA has created a PowerPoint
presentation addressing the prevention of falls from highwalls, in which it indicates
that miners should use fall protection when working within six feet of a stable
crest or within six feet of unstable ground. Ex. 5 at 7. MSHA advises mine
operators to install visual warnings such as signs, tape, cones, boulders,
paint, or chalk to warn miners when they are approaching an edge. Ex. 5 at 8. MSHA
also suggests using berms, barriers, or handrails to prevent miners working on
the highwall from working too close to the edge. Id. 

In this case, the issue is whether
there was a “danger of falling” that triggered the fall protection requirements
of § 56.15005. Inspector Swan observed the pump cart approximately four and a
half feet from the edge of the highwall with its handles pointed towards the
edge. I agree with the Secretary that the position of the pump together with the
absence of any warnings near the edge created a danger of falling. The
photographs produced by the mine show drill dust in the area which blurs the
edge of the highwall. The bore holes had been drilled between eight and nine
feet from the highwall edge, which itself would make it easy for a miner to
come within six feet of the edge, given there was no demarcation line for
reference. The addition of the pump only four and a half feet from the edge
made the fall hazard even greater.

Additionally, Swan observed that
there were a number of people working in the area. Becker testified that he was
the only one who worked with the pump, and that while he had not yet decided
where to use the pump that day, he would not have used it in its current
position. He testified that he could have reached the pump to move it back to a
safe working position without going into the hazard zone. However, there were
three others in the area who had every opportunity to use or move the pump.  The
testimony of the miner witnesses indicated that the water pump was put in its
position so that it would be out of the way while they unloaded the powder
truck. It is difficult to know whether the pump would have been used in the
position observed by the inspector. But even if it were not, it would nonetheless
have to be moved to a location where it would be used. In either scenario, a
miner would enter the fall hazard zone. I agree with the inspector’s reasonable
inferences that these other miners could have used or moved the pump from its
location near the edge.  If the pump were used in the location where Swan
observed it, a miner would be using both hands to attach a hose, and the water
would be discharged from the other side, down the side of the highwall. To move
the pump, a miner would likely have used the handles as they were intended,
thereby placing himself within a few feet of the edge of the highwall. Clearly,
a reasonably prudent person would recognize the fall hazard that was created by
placing the pump with the handles facing the edge of the high wall.

Finally, while Becker denies ever
entering the fall hazard zone, it is difficult to imagine that he did not go
within six feet of the highwall when he placed the pump in the position initially
observed by the inspector. While his account is to the contrary, it seems most
likely that Becker pushed the pump by its handles rather than carrying it or
pushing or pulling it from the side opposite the handles. Bussen argues that,
given Becker’s assertions, there is no evidence that a miner entered the fall
hazard zone. Resp. Br. at 2-6. However, there is no requirement that an
inspector witness a violation at the moment it is being committed: the
Commission has held that a violation may be proven through “reasonable
inferences drawn from indirect evidence.” Mid-Continent Resources, 6
FMSHRC 1132, 1138 (1984). Here, the inspector indicated that someone must have
placed the pump in the position he observed. There were no lines or demarcations
on the ground to identify the fall hazard area and warn miners when they were
too close to the edge. Considering the mining practices as observed by the
inspector, it was highly likely that a miner had entered the fall hazard zone
without being tied off to place the pump near the edge and out of the way while
unloading the truck. It is also reasonable to believe that a miner would have re-entered
the fall hazard zone without protection to either move or use the pump.  

Bussen also argues that even if a
miner did enter the fall hazard zone, there is no evidence that he was not
wearing fall protection. Resp. Br. at 5. The mine witnesses explained that
there was fall protection located in the highwall area, stored in the truck. The
witnesses also indicated that the company had a policy requiring miners to use
fall protection when working within seven feet of the highwall. However, the
miners also suggested that there was no need for protection at the time of the
inspection. Perhaps if the miners were to actually use the pump for some period
of time, they would use fall protection. However, it is easy to see why the
inspector, who saw no fall protection in the area and no tie-off location, concluded
that fall protection would not have been used for a simple task like moving the
pump. Although fall protection was available in the truck, there is nothing
that leads me to believe that a miner would have travelled to the truck, donned
the fall protection, and secured an area to tie off in order to perform the
simple task of moving the pump. Finally, I find that in moving the pump to the
location the inspector identified, Becker was near the edge and did not use
fall protection. Accordingly, I find that the Secretary has established a
violation.

B. Gravity and S&S

The Secretary asserts that Bussen’s
violation created the reasonably likely risk of fatal injury and that it was
significant and substantial (“S&S”). A “significant and substantial” violation
is described in section 104(d)(1) of the Mine Act as a violation “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)(l).
A violation is properly designated S&S “if based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981).

In Mathies Coal Co., the
Commission established the standard 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.

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

The difficulty with finding a
violation S&S normally comes with the third element of the Mathies formula,
in which the Secretary must establish that there is a reasonable likelihood
that the hazard will result in an injury. The Commission has explained that the
third element of the 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., 6 FMSHRC 1834,
1836 (Aug. 1984). The Commission discussed the third element of the Mathies
test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257
(Oct. 2010) (affirming an S&S violation for using an inaccurate mine map). The
Commission clarified that the “Secretary need not prove a reasonable likelihood
that the violation itself will cause injury,” but rather that the hazard created
would cause an injury. Id. at 1280-81. The Commission reaffirmed its
position in Cumberland River Coal, 33 FMSHRC 2357, 2365 (Oct.
2011).

Applying the Mathies test to
the case at hand, I find that the Secretary has established the first element
by demonstrating the violation of a mandatory safety standard. The violation
also contributed to a hazard in that it presented the danger of a miner tripping
and falling from the seventy-foot highwall while either using the pump or
moving it to or from another location, without the benefit of fall protection.

As for the third element, the
Commission has clarified that “The operative time frame for determining if a
reasonable likelihood of injury exists includes both the time that a violative
condition existed prior to the citation and the time that it would have existed
if normal mining operations had continued.” Elk Run Coal Co., 27 FMSHRC
899, 905 (Dec. 2005) (quoting Rushton Mining Co., 11 FMSHRC 1432, 1435
(Aug. 1989)). Here, the miners believed that their activities did not require
fall protection. Thus, it is likely that they would have continued to work
without it for the remainder of the shift. There were no markings on the ground
or other warnings present, so the miners were likely to approach the edge throughout
the shift. Given the position of the pump, they were likely to come within
three or four feet of the edge when operating the pump or attempting to move
it. The presence of rock dust, the freezing temperature, and the number of
people working in the area all exacerbated the tripping hazard. Additionally,
the position of the pump with its handles facing towards the highwall created
the possibility that it would fall over in that direction, which would require
that a miner retrieve it, bringing him even closer to the highwall. Based on
these factors, I find that there was a discrete hazard created by the violation
and that the hazard was reasonably likely to result in an injury. The injury
would almost certainly be fatal due to the seventy-foot drop off the highwall. The
third and fourth elements of the Mathies test are therefore also
established. Accordingly, I conclude that the violation was S&S.

C. Negligence

Inspector Swan indicated that the negligence in
this instance was high. Bussen argues that its negligence was less than high
because all of the employees on the highwall were hourly employees and all had
been trained in the use of fall protection.

Negligence is “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).
“A mine operator is required to be on the alert for conditions and practices in
the mine that affect the safety and health of miners and to take steps
necessary to correct or prevent hazardous conditions or practices.” Id. High
negligence exists when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.

The fall protection standard is one
of MSHA’s “Rules to Live By.” Ex. 3. MSHA’s Rules to Live By initiative
identifies twenty-four standards that are frequently cited in fatal accident
investigations. MSHA provides reference materials for operators to learn about
these standards and how to stop common yet preventable fatalities. Since
operators have been put on notice and given resources about ways to prevent
these specific types of accidents, violating one of these standards is
indicative of a significant lack of care.

Here, Becker was an hourly
employee, but he indicated that he was in charge of the blasting operation and described
himself as the lead blaster. It seems clear that Becker was aware that the pump
was too close to the edge. When Inspector Swan was asked at hearing whether he
had required Becker to use fall protection when he moved the pump in Swan’s
presence, Swan said, “It was just too fast. I mean, yeah, I didn’t ask him and
he didn’t say anything. He just turned around and grabbed it . . . .” Tr. at

42. Becker was aware that the pump was too close to the edge and quickly moved
    it before the inspector could do anything further.

Bussen has a policy requiring
miners to stay an extra foot back from the highwall, seven feet instead of the
six feet required by MSHA. It also has a policy of disciplining miners who do
not follow the safety policies when working in the highwall area. The mine had
held a safety meeting in March, a few months prior to the citation, regarding
its policies for the use of fall protection. However, these policies and
training did not keep Becker from placing the pump in such a location that it
created a hazard to the other miners. The placement of the pump close to the
edge was obvious. Becker identified himself as the person in charge, yet he is
the one who placed the pump in the location that was cited. Further, the mine
failed to provide warning devices to indicate the edge of the wall such as a
painted line or warning sign. The miners testified that they stayed seven feet
back from the edge, but I am skeptical given the location of the holes, the
location of the pump, and the fact that there were no warnings to remind
workers to stay back. Hence, I find the negligence to be high.

II. PENALTY

The principles
governing the authority of Commission administrative law 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 “authority to
assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty
of proposing penalties is delegated 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 the
penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil monetary
penalties, the ALJ must consider six statutory penalty criteria: the operator’s
history of violations, its size, whether the operator was negligent, the effect
on the operator’s ability to continue in business, the gravity of the
violation, and whether the violation was abated in good faith. 30 U.S.C. §
820(i). In keeping with this statutory requirement, the Commission has held
that judges must make findings of fact on the statutory penalty criteria. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152
(7th Cir. 1984). Once these findings have been made, a judge’s penalty
assessment for a particular violation is an exercise of discretion “bounded by
proper consideration of the statutory criteria and the deterrent purposes
underlying the Act’s penalty scheme.” Id. at 294; see also Cantera
Green, 22 FMSHRC 616, 620 (May 2000).

The
history of assessed violations was admitted into evidence and shows that the
mine had not been cited for a fall protection violation in the fifteen months
preceding this violation. Ex. 8. Bussen is a large operator. The penalty as
proposed will not affect its ability to continue in business, and the operator
demonstrated good faith in abating the citation. The gravity and negligence are
discussed above. I find that a penalty of $6,300.00 is appropriate.

III. ORDER

Based on the criteria in section
110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a penalty of $6,300.00 for
Citation No. 8860004. Bussen Quarries is ORDERED to pay the Secretary of
Labor the sum of $6,300.00 within 30 days of the date of this decision.

/s/ Margaret
A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution: (U.S. First Class Mail)

Daniel T. Brechbuhl, U.S. Department of Labor, Cesar E.
Chavez Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Ryan D. Seelke, Steelman, Gaunt & Horsefield, 901 Pine
Street, Suite 110, Rolla, MO 65401