Austin Power, Incorporated
Austin Power, Incorporated (FMSHRC CENT 86-40, CENT 86-59-R, CENT 86-60-R, and CENT 86-61-R): Two fatal-accident citations affirmed and one walkway citation vacated
Apply this to your situation
This order from 1986 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Austin Power, Incorporated was an independent contractor constructing a cross-pit spreader at the Big Brown Strip surface coal mine. A boom failure threw three employees from a walkway, killing Steven Smith, and the ALJ found that Austin Power violated the rules requiring workers to be clear of moving equipment and tied off when exposed to a fall hazard. Judge George A. Koutras affirmed those two significant-and-substantial citations and assessed penalties of $2,000 and $2,500. He vacated the citation alleging that walkway grating was not secured because MSHA did not prove that Austin Power removed the clips or that the grating was unsecured before the accident.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 77.1607(g), 77.1710(g), 77.404(a), and 77.205(e)
- Outcome: Citations 2339411 and 2339412 were affirmed with $4,500 in penalties. Citation 2339413 was vacated.
- Key point: The ALJ affirmed serious safety violations tied to worker positioning and fall protection, but vacated the walkway citation for lack of credible proof that the contractor caused the alleged unsecured condition.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. AUSTIN POWER
DDATE:
19861110
TTEXT:
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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 86-40
PETITIONER A.C. No. 41-01192-03503
v. Big Brown Strip
AUSTIN POWER, INCORPORATED,
RESPONDENT
AUSTIN POWER, INCORPORATED, CONTEST PROCEEDINGS
CONTESTANT
Docket No. CENT 86-59-R
v. Citation No. 2339411; 8/20/85
SECRETARY OF LABOR, Docket No. CENT 86-60-R
MINE SAFETY AND HEALTH Citation No. 2339412; 8/20/85
ADMINISTRATION (MSHA),
RESPONDENT Docket No. CENT 86-61-R
Citation No. 2339413; 8/20/85
Big Brown Strip
DECISIONS
Appearances: Robert Fitz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner/Respondent;
Steven R. McCown, Esq., Jenkins & Gilchrist,
Dallas, Texas, for the Contestant/Respondent.
Before: Judge Koutras
Statement of the Proceedings
These proceedings concern proposals for assessment of civil
penalties filed by MSHA against Austin Power, Inc., pursuant to
section 110(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 820(a), seeking civil penalty assessments totalling
$10,000, for three alleged violations of mandatory safety
standards 77.1607(g), 77.1710(g), and 77.404(a) or 77.205(e).
Docket No. CENT 86Ä40 is the civil
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penalty proceeding, and Docket Nos. CENT 86Ä59ÄR, CENT 86Ä60ÄR,
and CENT 86Ä61ÄR, are the contests filed by Austin Power
challenging the legality of each of the section 104(a)
"significant and substantial" (S & S) citations.
Austin Power filed timely answers and contests, and the
cases were consolidated for a hearing which was held in Dallas,
Texas. The parties filed posthearing proposed findings and
conclusions, and the arguments presented therein have been
considered by me in the course of these decisions.
Issues
The issues presented in these proceedings are (1) whether
the cited mandatory safety standards are applicable to the
alleged fact of violations; (2) whether the alleged violations
were "significant and substantial;" and (3) the appropriate civil
penalties which should be imposed for the violations in question.
Additional issues raised by the parties are identified and
disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95Ä164, 30 U.S.C. 801 et seq.
2. Section 110(i) of the 1977 Act, 30 U.S.C. 820(i).
3. Commission Rules, 20 C.F.R. 2700.1 et seq.
Stipulations
The parties stipulated to the following (Tr. 8Ä10):
1. Austin Power, Inc. was incorporated under the laws
of the State of Texas on June 10, 1976.
2. Among other things, Austin Power, Inc. has been an
independent contractor, engaged in construction at the
Big Brown Strip, a surface coal mine owned and operated
by Texas Utilities Company in Freestone County, Texas.
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3. The Big Brown Strip is a "mine," within the meaning and
definition of Section 3(h) of the Federal Mine Safety and Health
Act of 1977, hereinafter referred to as the Act.
4. Austin Power, Inc. is an "operator" within the
meaning and definition of Section 3(d) of the Act.
5. On Monday, August 19, 1985, Jeff Arent, Kevin
Saulsburg, and Steve Smith were employed by Austin
Power, Inc. at the Big Brown Strip and were "miners"
within the meaning and definition of Section 3(g) of
the Act.
6. The products of the Big Brown Strip enter or affect
interstate commerce.
7. Citation Nos. 2339411, 2339412, and 2339413 and the
modifications thereof, were served upon Sydney Woodson,
respondent's superintendent, by authorized representatives
of petitioner on the dates and at the times and places
stated therein, and may be admitted into evidence for the
purpose of establishing that they were so issued, but not
for the purpose of establishing the violations alleged therein.
8. The miners employed by respondent worked a total of
41,012 hours in all mining activity in 1985.
9. Respondent demonstrated good faith in attempting to
achieve rapid compliance after being notified of the
alleged violations.
During the course of the hearing, Austin Power's counsel
stipulated that the proposed civil penalties assessed by MSHA for
the violations in question will not adversely affect Austin
Power's ability to continue in business (Tr. 188).
Discussion
This case concerns a fatal accident which occurred at the
Big Brown Strip Mine construction site on August 19, 1985. The
mine is a surface coal mine owned and operated by the Texas
Utilities Company. Austin Power is an independent contractor
subject to the Act who at the time of the accident
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was in the process of constructing and erecting a cross-pit
spreader at the site for Texas Utilities. The spreader was
manufactured by DeMag Company, a German concern, and Austin Power
was under contract with that firm for the construction and
erection of the spreader at the mine site.
At the time of the accident, three employees of Austin Power
were engaged in certain work on a 20Ämeter boom, an integral part
of the spreader. The employees were engaged in work connected
with the placement of certain counter weights on the boom and the
installation of a wire rope choker on the boom for the purpose of
facilitating the movement of the boom in a lateral direction by
means of a 518 link belt crane and cherry picker. While
performing their work from a walkway or catwalk located on one
side of the boom, the boom was subjected to a sudden and
unexpected "whiplash" action caused by the failure of an eyelet
located at the back end of the boom. The boom raised up and
propelled the three employees off the walkway where they were
standing in an upward direction into the air, and one employee,
Steven Smith, fell to the ground below and suffered fatal
injuries. The other two employees managed to come down on the
walkway structure which they grabbed as they came down, and they
subsequently walked off the boom to safety and were not injured.
MSHA Inspector Donald R. Summers conducted an accident
investigation on August 20, 1985, and prepared a report (exhibit
PÄ5). Based on the information received by Inspector Summers
during the course of his investigation, he issued a section
107(a) imminent danger order, and three section 104(a), S & S
citations. The imminent danger order is not in issue in these
proceedings, but the citations are. The narrative description of
the cited conditions or practices as stated in the citations
issued by Inspector Summers are as follows:
Citation No. 2339411, August 20, 1985, 30 C.F.R.
77.1607(g). "The Link Belt 518 operator was not notified by
signal or other means that all persons were not in the clear
before starting or moving equipment in that 3 employees were on
the 20Ämeter cross pit spreader boom which was being moved by the
link belt."
Inspector Summers subsequently modified the citation on
October 8, 1985, to include the following condition or practice:
"The linkbelt 518 operator was not certain that all persons were
in the clear before he put his machine into operation. Three (3)
employees were on the 20 meter cross
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pit spreader boom which was being moved by the linkbelt
operator."
Citation No. 2339412, August 20, 1985, 30 C.F.R.
77.1710(g).
Three (3) employees were on the 20 meter cross pit
spreader boom was (sic) wearing safety belts but the
lines was (sic) not tied off. Due to equipment failure
the boom flip (sic) upward. The three (3) employees
were thrown from the platform, one fell to his death.
The two remaining employees managed to grab hand rails
and climb (sic) to safety.
Citation No. 2339413, August 20, 1985, 30 C.F.R. 77.205(e)
or 77.404(a).
The elevated walkway along the left side of the 20
meter boom on the cross pit spreader was not maintained
in good condition in that the hold downs for the floor
plate had been removed. The boom flip (sic) upward due
to equipment failure, the floor plates came loose and
fell to the ground. One (1) of the three employees on
the walkway fell to his death.
MSHA's Testimony and Evidence
MSHA Inspector Donald R. Summers, testified as to his
background and experience, and he confirmed that he conducted an
investigation of the circumstances surrounding the fatal
accident. He identified copies of the citations he issued as a
result of the investigation, and also identified a copy of the
investigation report and certain photographs which he took during
the investigation (Tr. 15Ä38). He confirmed that he began the
investigation on the morning of August 20 (Tr. 17).
With regard to photographic exhibit PÄ16, of the cited
walkway and the clamps which Mr. Summers claimed were not
secured, he conceded that he did not know the condition of the
walkway prior to the accident, nor did he know whether the
walkway was secured prior to that incident (Tr. 33).
Mr. Summers stated that company representative Woodson
accompanied him on a "quick walk through look" of the accident
area and explained that the 518 linkbelt crane was connected to
the end of the 20 meter boom in order to move
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the boom from a westerly direction to an easterly direction to
facilitate the loading of certain counter-weights on the machine,
and that the machine could not move under its own power (Tr. 40,
44). Mr. Summers confirmed that Mr. Woodson identified the three
employees who were on the boom, but he could not state whether
Mr. Woodson explained what the three were doing on the boom.
Someone else advised him that one of the employees was on the
boom securing a choker on the end of the boom, and he pointed out
the choker in question in photographic exhibit PÄ7, in the
center, hooked on the right-hand lower corner of the beam on the
end of the boom. He was told that the accident victim had secured
this choker at the location shown in the photograph (Tr. 41Ä43).
Mr. Summers was of the opinion that none of the employees
should have been on the boom while it was being moved, but he saw
no reason why they could not be there prior to its being moved
(Tr. 49). He saw no reason why the choker in question could not
have been installed while the boom was stationary and not being
moved (Tr. 50).
Mr. Summers stated that his investigation revealed that the
accident victim was in the process of placing the choker over a
brace on the end of the 20Ämeter boom in order for a cherry
picker to receive the boom when it passed under another 70Ämeter
boom. The linkbelt crane could not pass under the 70Ämeter boom,
and another piece of equipment was to be used to connect onto the
boom in order to pull it in a westerly direction. Mr. Summers
stated further that it was his understanding that the victim was
standing on the left-hand walkway at the end of the boom as shown
in photographic exhibit PÄ7, and while he was inside the walkway
hand rail, he was leaning over the hand rail connecting the
choker. Mr. Summers stated that if the victim was leaning over
the hand rail, he should have been tied off by a safety lanyard
(Tr. 51Ä52). Although the investigation revealed that the victim
was wearing a safety belt, it was not secured (Tr. 52).
Mr. Summers stated that his investigation revealed that
while the boom walkway was secured within the hand rails,
sometime during the construction phase of the cross-pit spreader,
the left-hand walkway had been removed in order to allow access
to the electrical cable located in a tray under the walkway and
for painting purposes. The walkway had been removed and not
secured back in place (Tr. 52). All of the walkway had clamps
removed or either not secured back in place (Tr. 52).
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On cross-examination, Mr. Summers confirmed that he has
inspected the mine site at least once a month, and that aside from
the citations issued in the instant proceedings, he has issued only
two prior citations at the site in the past 3 years. He agreed
that the company makes a good faith effort to comply with the
law. He also confirmed that he had previously inspected the
cross-pit spreader and linkbelt crane and never issued any
citations for any violations on that equipment. He also observed
the crane operators operating the equipment, and had no problem
with the manner in which they did their work (Tr. 56Ä57).
Mr. Summers stated that he issued the citations to Austin
Power because it was in charge of the erection site for the
cross-pit spreader. He confirmed that the DeMag Company designed
the manufactured the spreader and the 20Ämeter boom, and he could
not state whether that company had supervisors on the site to
insure that Austin Power was erecting the spreader in compliance
with their specifications (Tr. 59).
Mr. Summers stated that the failure of an eyelet used to
connect a hydraulic device used to lower and raise the 20Ämeter
boom to the boom's structure was a contributing factor to the
accident (Tr. 61). The failure of the eyelet caused the boom
counter weight to take over and resulted in the sudden and
unexpected raising of the end of the boom. Mr. Summers confirmed
that he had previously observed the eyelet before the accident,
and saw nothing which caused him any concern. He also confirmed
that from his prior inspections of the equipment, including the
eyelet, no one could have foreseen that the eyelet would fail
(Tr. 63).
The 20Ämeter boom is one part of the entire cross-pit
spreader machine. The boom was described as a conveyor which
received dirt that was removed or stripped from the ground. The
70Ämeter boom also digs dirt from the ground, but from another
area of the open pit mine. The excavated materials from both
booms are received by the spreader and discharged in other
locations. Mr. Summers described the booms as movable conveyor
systems which receive the materials which are dug by the bucket
wheel escalator part of the spreader. Although the digging
apparatus and booms are separate pieces of equipment, they are
connected together electrically (Tr. 66). The two cranes in
question were simply used to reposition one portion of the
20Ämeter boom while the counter-weights were being loaded (Tr.
65).
Mr. Summers stated that the 20Ämeter boom has walkways or
catwalks on both sides of the boom conveyor. The walkways
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are equipped with a standard guard rail consisting of a top rail
approximately 42 inches off the walkway surface, and a midrail.
It also has a toeboard constructed of angle iron. Although the
boom is designed to move up and down and left and right, Mr.
Summers was of the opinion that employees should not be on the
walkway while the boom is in operation. He believed that a chain
should be across the access to the walkway, with a sign
indicating that no one should be on the boom while it is in
operation (Tr. 69). Mr. Summers confirmed that no one from Austin
Power, DeMag, or Texas Utilities ever informed him that employees
were not to be on the boom while it was in operation, and that
this is simply his opinion (Tr. 71).
Mr. Summers confirmed that the cross-pit spreader moves on
tracks, and that when it moves, the 20Ämeter boom also moves
because it is attached to the spreader. He did not know how many
employees would be on the spreader while it was in operation, and
he assumed that one employee would have to operate the spreader,
and two others would have to operate the bucket wheels at the end
of the 20 and 70 meter booms (Tr. 72). He described the cross-pit
spreader as a structure approximately a half a mile long and 500
to 600 feet high, and the super structure looks "much like a
large ship out in the middle of the mine," with catwalks and
walkways all over it (Tr. 74).
Mr. Summers stated that on the day of the accident, five
counter weights, approximately 24,000 pounds each, were being
loaded onto the boom, and the boom did not have any independent
power while this was being done because the power had not been
connected (Tr. 76Ä78).
Mr. Summers confirmed that the crane in question was used to
lift the boom in order to remove some cribbing from under it, as
well as moving it from left to right, or from east to west. The
only lifting action of the crane would be for the purpose of
removing the cribbing, and once this was done the linkbelt crane
was to be used to rotate the 20Ämeter boom back under the
70Ämeter boom. Since the linkbelt crane could not move the
20Ämeter boom completely under the 70Ämeter boom, a cherry picker
was to be used for this task, and he saw nothing wrong with this
entire procedure (Tr. 81).
Mr. Summers stated that Austin Power has a safety program,
and he confirmed that it has a mandatory policy requiring
employees to be tied off if they are in danger of falling. He
stated that during the time he has inspected the facility he has
never previously cited Austin Power for a
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violation of section 77.1710(g). He confirmed that he had been on
the same cited 20Ämeter boom walkway in the past while inspecting
the spreader and did not wear a safety belt (Tr. 103). With
regard to his application of section 77.1710(g), Mr. Summers
stated as follows (Tr. 104Ä106):
Q. Thank you. Now, let's take a hypothetical, that you
were inspecting the 20Ämeter boom and you were walking
out to the end of the boom, but you weren't performing
construction work. Is that right?
A. That is right, sir.
Q. And you didn't have to be tied off in that
situation, did you?
A. If I was walking out there, you couldn't tie off and
walk down the boom.
Q. Okay, let's say you were walking out there and you
were inspecting it and the eyelet failed.
A. Okay.
Q. And you weren't tied off. And the same thing might
have happened to you that has happened to Mr. Smith,
wouldn't it?
A. If the floor plate and all that hadn't been secured,
more than likely would have.
Q. And would you have been, then, in non-compliance
with 1710(g)?
A. No, sir.
JUDGE KOUTRAS: Why not?
THE WITNESS: I was travelling from one area to the
other. I wasn't performing any work that would be
requiring me to be outside the hand-rail.
JUDGE KOUTRAS: So that pre-supposes that this
particular individual at the time of the accident was
outside the hand-rail?
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THE WITNESS: Yes, sir.
MR. MCCOWN: So the point of your issuance of a
citation, which I assume that since these other
gentlemen, Mr. Cameron and other people--your
supervisors--aren't here, the whole point on the
citation is that a man was outside the hand-rail, and
therefore, that was the danger. Right?
THE WITNESS: And performing work at a elevated area.
MR. MCCOWN: So--
THE WITNESS: He should have been tied off.
MR. MCCOWN: So the other two employees that were up
there, if they were just standing around, they didn't
need to be tied off?
THE WITNESS: They wouldn't have to be tied off, sir.
MR. MCCOWN: But for the fact that they were able to
grab hold of the side of the catwalk, they would have
been killed just as much as Mr. Smith had, wouldn't
they?
THE WITNESS: Rather fortunate.
In response to further questions, Mr. Summers stated that
had it not been for the sudden jerking of the boom caused by the
eyelet failing the other two employees on the boom were not in
danger of falling. He conceded that he issued the citation
because of his concern that the three employees were on a piece
of moving equipment and his belief that they should not have been
there in the first place. Mr. Summers knew of no mandatory
standard that specifically prohibits work on a moving piece of
equipment. Assuming he saw three employees on a catwalk 36 feet
above ground on a moving piece of equipment, he would issue a
section 107(a) imminent danger order because of the danger of
falling even though they may be protected by a hand rail, because
the walkway would be unstable (Tr. 108Ä109).
Mr. Summers stated that no employees would be required to be
on the end of 20Ämeter boom while the counter weights are being
loaded, and that they would be positioned at the
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rear of the boom giving hand signals to the crane operator. He
conceded that he has never observed counter weights loaded, and
assumed that since they cannot be observed from the ground,
someone had to be there (Tr. 111). He suggested that no one
should be on the end of the boom while it is being moved, and
that there would be less of a danger if they were at the rear of
the boom because the movement would be slower (Tr. 112). He
conceded that at some point in time someone had to go the end of
the boom to disconnect the linkbelt crane and hook the cherry
picker to the boom in order to move it under the 70Ämeter boom,
and that the eyelet could have failed at that point in time
before the boom was moved (Tr. 113).
With regard to the walkway grating citation, Mr. Summers
stated that while it was his opinion that section 77.205(e)
applies to the condition that he cited, section 77.404(a) and
77.1606 were equally applicable (Tr. 114). He confirmed that he
did not issue the amended citation, and still believes that
section 77.205(e), is the better standard (Tr. 114). Mr. Summers
confirmed that he had nothing to do with the civil penalty
assessments in this case, and that he had no communication with
anyone in MSHA's office of assessments (Tr. 120). Mr. Summers
believed that the conditions he cited as violations were
contributing factors to the fatality which occurred in this case
(Tr. 123).
With regard to the walkway grating fasteners, Mr. Summers
stated that if they were properly connected to the grating, they
would have prevented the grate from moving in either lateral or
vertical directions. He stated that in photographic exhibits PÄ15
and PÄ16, the clamps are not extended all the way under the
walkway or under the piece of angle iron, but only halfway. He
pointed out that the right-hand walkway was properly secured with
the clamps and none of the grating was thrown off or disrupted
when the accident occurred. He assumed that the reason that all
of the grating on the left side of the boom was not thrown off
was the fact that the raising of the boom was less violent at
that location (Tr. 124). He confirmed that the 20Ämeter boom was
still under construction at the time of the accident, and that a
few adjustments were still to be made before it was placed into
operation (Tr. 124).
Mr. Summers confirmed that the location where the eyelet
failed was the same side as the walkway on which the accident
victim was standing. His investigation revealed that the grate
clips or fasteners were not broken off by the force of the eyelet
breaking, but were simply loose and unsecured. He had no way of
knowing whether the force of the boom moving
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because of the failure of the eyelet caused the fasteners to come
loose, and that he was informed by Mr. Woodson and Mr. Arent that
the floor grating had been removed and not secured back down (Tr.
126). Mr. Summers stated that there was a difference of opinion
as to whether the accident victim fell through the openings that
were left when the walkway grating flipped up, or whether he went
over the top of the hand railing (Tr. 127). Had the walkways been
fastened down, the victim could possibly have come down on the
walkway when he was catapulted into the air rather than down
between the opening (Tr. 127).
Mr. Summers stated that the information he received during
his investigation through the interviews with the survivors
indicated that the three employees on the 20Ämeter boom at the
time of the accident were instructed to go out on the boom to tie
the choker on in order to facilitate the moving of the boom under
the 70Ämeter boom. The breaking of the eyelet had a "whiplash
effect," and when the end of the boom flew up and settled back
down, six or eight of the walkway plates came out of the channel
and fell to the ground (Tr. 129).
Russell Crowell, testified that he is presently employed by
Erection and Rigging Inc., White Oak, Texas, and that at the time
of the accident in question he was employed by Austin Power at
the Big Brown Strip as an iron worker-rigger and crane operator.
He stated that he has 9 years of experience as a crane operator,
and confirmed that he was operating the 518 linkbelt crane on
August 15, 1985. He described what he was doing as follows (Tr.
132Ä134):
A. About 10:00 I was instructed to bring the rig up to
the 20Ämeter receiving boom, to tie onto it, and after
I tied onto it, we picked it up five, six inches,
enough to get the shoring out from underneath it;
tracked backwards with the rig, which swung the
20Ämeter boom from the westerly to the easterly
position; stayed in a dogged off position for around
five and a half hours, while they loaded counter
weights with another crane from the other side.
Q. What time, or can you give us an approximate time
that you finished, or that the shoring was removed from
the 20Ämeter boom so you were able to swing it around?
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A. That wasn't maybe 45 minutes. It wasn't very long.
* * * * * * * * *
A. After the fifth counter weight was loaded and into
position, I was instructed to slack off, which I
slacked the rig off. It was suspended by itself; they
checked for movement on the boom; there wasn't any. I
was instructed to pick back up enough just to get my
chokers taut. The rigging was taut and I walked the rib
back into position, just a reverse procedure to what we
had done that morning.
And just prior to getting, oh, 30Äfoot or so from
coming up to transferring the rigging from the 518 to
cherry picker, the pin failed and the load went up and
Steve came down.
Q. Who was giving you the instructions on what to do
that day?
A. There were several people involved, among one Alvin,
the German; Woody and Pat Patterson. At one time, Jim
White may have even relayed signals.
Q. Now, Woody is Sydney Woodson, the job
superintendent. Is that right?
A. Yes.
Q. And who is Jim White?
A. At that time was general foreman on the project.
Q. Now, I understand that you were attempting to swing
the 20Ämeter boom under the 70Ämeter boom so it could
be tied onto with a cherry picker. Is that correct?
A. Yes.
Q. Was anybody on the 20Ämeter boom when you were
attempting to swing it around so it could be tied onto
the cherry picker?
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A. Yes.
Q. Who was on it?
A. Jeff Arent, Kevin Saulsburg and Steven Smith.
Q. Do you know why they were on it?
A. They had work to do out there; they had to be out
there to transfer the rigging.
Mr. Crowell stated that he did not actually see the
accident, but saw the accident victim Steven Smith in the air. He
explained that his view was obstructed by the boom and that Mr.
Smith was on the back side of the boom. He confirmed that he was
not present when the three employees were told to go up on the
boom (Tr. 136).
On cross-examination, Mr. Crowell stated that in addition to
instructions by an employee of DeMag Company, he also received
instructions from Mr. Woodson with respect to the lifting of the
20Ämeter boom with the crane for the purpose of removing the
cribbing. The boom lifted just enough to remove the cribbing, and
he denied that his operation of the crane had anything to do with
the failure of the eyelet, or that the crane put any undue stress
on the boom (Tr. 140). He experienced no difficulty in moving the
20Ämeter boom laterally and indicated that it was "free-swinging"
(Tr. 141). With regard to the movement which was experienced, he
stated as follows (Tr. 141Ä142):
Q. Now you testified that there was a movement between
the loading of the third and the fourth counter weight.
At that time, when that happened, did you feel like
there was any problem with any part of the construction
process that was going on?
A. No, I didn't. I couldn't see what was going on the
back side, and at the time of these counter weights
being loaded, when they would lower them into the
framework, they would bump the counter weight framework
that they set in, and I was getting bumps and shocks
all day long. But that was when there was counter
weights being loaded. And at this time I could tell
from the position of the other rig that he wasn't
coming in with a
Page 16
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counter weight. He was swung out the other way.
Q. So, this particular movement that you felt was
unrelated to a loading of a counter weight. Is that
correct?
A. Yes, it was.
Q. And that is the one that you also feel, in your
opinion, Mr. Smith noticed, too?
A. Yes, he asked me if I had done anything, was I still
dogged off. And I said yes, I am dogged off, I
didn't--haven't touched anything.
Q. Did you report this movement that you felt between
the third and fourth counter weight to anyone?
A. No, not until the 20th, in retrospect. We got to
thinking about it.
Q. Do you know if Mr. Smith reported it to anyone?
A. No, he did not. He turned around and went right back
to loading the counter weights.
Mr. Crowell confirmed that he considered Mr. Smith to be a
good and safe worker, and that they worked together as riggers.
Mr. Crowell confirmed that when he began to swing the 20Ämeter
boom back into position just before the accident he knew that the
three employees in question were still on the walkways, but did
not consider them to be in any danger because the boom or load
was not freely-suspended, but was pinned to the main frame with
the eyelet which failed, as well as by big pins at the fulcrum
(Tr. 144). In his view, no part of his crane posed a danger to
the three employees who were on the boom. He believed that all
three individuals were clear and free from any danger from the
boom or the crane he was operating (Tr. 144).
Mr. Crowell stated that when the eyelet failed, and the load
went up, he had eye contact with Mr. Smith as he fell to the
ground below, and that he noticed Mr. Saulsburg's legs dangling
out from "underneath the off side" of the boom (Tr. 145).
Page 17
~1686
In response to further questions, Mr. Crowell confirmed that he
had in the past worked on the walkway at the end of the boom in
question adjusting chokers or tension on the belt, or doing a
number of other things. He confirmed that Mr. Smith was rigging a
choker at the end of the boom, and while he could not see the
side of the boom where Mr. Smith was working, he assumed he was
rigging one of two chokers shown in photographic exhibits PÄ10
and PÄ11, but was not certain as to which one he was working on
at the time of the accident (Tr. 147). He believed that the
choker located at the end of the boom was installed earlier in
the day while the boom was still in its original position on the
cribbing. Assuming that Mr. Smith installed that particular
choker, Mr. Crowell believed that he could have done it while on
his hands and knees by reaching through the walkway mid-rail. He
believed the other choker could have been installed by pulling up
a piece of the grating and wrapping it. He confirmed that he had
installed chokers in this fashion in the past, but that he used a
safety belt and was tied off. He confirmed that he always tied
off "when you stand a chance of falling." He explained that if a
piece of grating were removed, there is a chance of falling
because "that leaves an open hole, and you are bent over into it"
(Tr. 150). When asked why Mr. Smith was not tied off at the time
of the accident, Mr. Crowell responded "He felt there was no
danger, I am sure. The grating was--must have been in place, or
something. I know Steve just wouldn't jump right out there and
take a chance" (Tr. 150).
Mr. Crowell believed that the failure of the eyelet was a
"freak design," and that he had never experienced this before. He
confirmed that he saw some of the grating fly off the walkway and
that it hit the ground just prior to Mr. Smith. He stated that
"it all happened at once, * * * it was raining grating and one
body" (Tr. 150). With regard to the grating in question, Mr.
Crowell stated as follows (Tr. 151Ä152):
THE WITNESS: It is secured grating. It is in there. The
only way that it could have come out would be the way
that it--to have had a pin failure and that thing have
such a whiplash attitude. The grating--for it to come
out of those channels--had to come straight up, turn on
edge and then go through the hole, because the catwalk
framework is made out of angle iron that is turned in
toward each other.
Page 18
~1687
The only movement of these--and especially these here
are fitted pieces of grating; they are mitered in. So you
don't have any clearance left or right in this angle iron
frame, and as long as all pieces of grating were in, you
have no forward and back movement. The only movement that
you could have would be straight up. And when the pin
failed, it catapulted everything. It threw the grating
straight up.
JUDGE KOUTRAS: Would you have any--as a rigger, would
you have any problem with walking on some grating that
wasn't pinned or secured the way it was supposed to be?
THE WITNESS: No, not in that type of design.
* * * * * * * * * *
JUDGE KOUTRAS: Let me ask you this. As a rigger, let's
assume--this is a hypothetical. Let's assume that a
couple of pieces of walkway are removed, and you had to
go up and walk on the supporting steel structure to do
some work, without any walkways under it. Would that
cause you any problem.
THE WITNESS: No.
JUDGE KOUTRAS: Why wouldn't it?
THE WITNESS: It is an acceptable risk. Whenever you
hire in in this business and putting a rigging belt on,
it is high risk. You better know what you are doing.
JUDGE KOUTRAS: Would you be tied off?
THE WITNESS: Not while I was moving, I wouldn't.
JUDGE KOUTRAS: While you were walking along that
structure, you wouldn't be tied off?
THE WITNESS: Not while I was moving.
Page 19
~1688
JUDGE KOUTRAS: When would you tie yourself off?
THE WITNESS: When I stopped and got to my work station.
Mr. Crowell stated that he was not familiar with the safety
standards cited as violations in this case. When asked to explain
his understanding of section 77.1607(g) requiring equipment
operators to be certain, by signal or other means, that all
persons are clear before starting or moving equipment, he replied
as follows (Tr. 154Ä157):
THE WITNESS: Yes, it is your responsibility not to jump
into a rig, crank it up and run over the mechanic that
is changing your oil.
JUDGE KOUTRAS: Very well put. Very well put. What kind
of instruction do you get with regard to that safety
standard?
THE WITNESS: I was flagged to propel the rig.
JUDGE KOUTRAS: Did it ever dawn on you on this day
that, with these three people being on that 20Ämeter
boom, that you may have been violating some safety
standard by moving that rig while these three fellows
were on there?
THE WITNESS: No, it was not a freely-suspended load.
Had it been a freely-suspended load, I may have had
some thoughts on the matter, but it is not like riding
a connector up on a ball, which happens frequently in
the construction business. It wasn't that type. It was
a main structural component. You know, in retrospect,
sure they shouldn't have been there, but then again--
JUDGE KOUTRAS: Why do you say they shouldn't have been
there?
THE WITNESS: Well, you know, the accident happened is
why. But they could have just as easily have been
there, had that pin not failed. It was an acceptable
risk to the rigger.
Page 20
~1689
JUDGE KOUTRAS: What do you mean by a freely-suspended load?
THE WITNESS: One where the crane is in total control of
it, that I am not pinned off, as I was with that. One
end was pinned off. I wasn't applying any lift. I was
applying lateral movement, left and right, just
swinging.
JUDGE KOUTRAS: Now, what are your instructions as a
crane operator to look out for that mechanic that you
just mentioned when you defined the standard for me
here? If you are lifting a free-load, so to speak, do
you stop, look, see if anybody is on it or clear of it
before you attempt to move it, or just what procedure
there do you do?
THE WITNESS: Yes, you use your years of experience and
common sense and judgment call on all lifts. I have
shut lifts down in the middle of a lift because I knew
it was going to be unsafe. And I am not afraid to. That
is part of my responsibility. Had I had any--had I known
my rig would have been in any bind or anything like
that, somebody would have definitely known about it.
JUDGE KOUTRAS: How about blind lifts? Have you ever had
occasion to lift lifts that were totally out of sight?
THE WITNESS: Yes.
JUDGE KOUTRAS: Well, what procedure did you use there
to ascertain whether or not there was anyone--
THE WITNESS: Well, you can either use walkie-talkies,
you can use headset with radio/telephone, or you can
telegraph signals by hand signals.
JUDGE KOUTRAS: But in this case, you knew three men
were up there, right?
THE WITNESS: Yes.
Page 21
~1690
JUDGE KOUTRAS: Because one had signalled to you, Mr. Smith
himself?
THE WITNESS: That--prior to the accident. That was two
hours before.
JUDGE KOUTRAS: Oh, I see.
THE WITNESS: It wasn't just before it happened, no.
This was two hours earlier, when we were loading
between three and four. And we put in four and five.
JUDGE KOUTRAS: Were they up there when you were doing
the slight lifting to get the shoring out?
THE WITNESS: No.
JUDGE KOUTRAS: You indicated in response to questions
by Mr. Fitz that when you were maneuvering that
20Ämeter boom, that these three men were out there, and
one of your responses was, well, they had to be there
because they had some work to do.
THE WITNESS: Uh-huh.
JUDGE KOUTRAS: So you were aware that they were out
there doing something?
THE WITNESS: Yes.
JUDGE KOUTRAS: And they were kind of out of your line
of sight?
THE WITNESS: They were in the blind on my side, yes. I
knew they were up there.
JUDGE KOUTRAS: And you say it is not unusual for there
to be this lateral movement with people on it doing
work?
THE WITNESS: No, not unusual.
Mr. Crowell stated that he did not know how close he would
bring the 20Ämeter boom to the cherry picker so as to transfer
the boom from the 518 crane to the cherry picker and that this
would have been a "supervisor's call shot." He
Page 22
~1691
indicated that he would have manuevered his crane as close as
possible, and that the choker would have been passed and
installed by hand from the boom to the cherry picker. He believed
that this could have been done by someone on the walkway while
inside the hand rail (Tr. 158).
Jeffrey D. Arent, testified that he no longer works for
Austin Power, but was so employed as a helper for approximately 6
months, including August 19, 1985, the day of the accident. He
confirmed that he, Mr. Smith, and Mr. Saulsburg had been working
on the boom all day installing counter weights. Mr. Smith
summoned him to go to the end of the boom to see if it was
stable, and they determined that it was and that it had no
movement. Mr. Arent confirmed that Mr. Smith placed a choker on
the end of the 20Ämeter boom. He identified photographic exhibits
PÄ7 and PÄ8 as the boom walkway location where they were located
at the time of the accident, and he stated that Mr. Smith was at
the end of the boom and that he (Arent) was at the other end
where there is a bend in the walkway as shown in exhibit PÄ8. Mr.
Arent stated that he observed Mr. Smith tie the choker onto the
end of the boom by bending over the hand rail "not very far out,"
and he observed that Mr. Smith "wrapped the choker around the
beam and put the eye through the other eye." He stated that Mr.
Smith "just had his head just barely out and his hands were out
there" (Tr. 163).
Mr. Arent stated that he could not recall whether the boom
was stationary or was being moved in a lateral direction while
Mr. Smith was installing the choker. When the eyelet failed, Mr.
Arent stated "all I remember is that I went up and hit my head"
and that he came down in that same spot where there was an extra
beam. Mr. Arent stated that he hit his head on the overhead
walkway roofing, and when asked whether he was aware that the
walkway grating was not fastened down before he went there with
Mr. Smith, he responded "we didn't pay no attention to it" (Tr.
164). He stated that Mr. Saulsburg was between him and Mr. Smith
on the walkway. When the eyelet failed, Mr. Saulsburg also went
up in the air and hit his head, but came down and caught himself.
He confirmed that he and Mr. Saulsburg were able to come off the
boom by walking down the sides. When the eyelet failed, he did
not see what happened to Mr. Smith and Mr. Saulsburg because "I
was worried about myself" (Tr. 166).
On cross-examination, Mr. Arent examined photograph exhibit
PÄ7, and stated that the choker at the end of the boom which is
circled in blue in the photograph was not the one that Mr. Smith
was installing at the time of the accident.
Page 23
~1692
He stated that Mr. Smith had installed that choker prior to the
accident, and that the one he was installing at the time of the
accident was the choker which is shown around the walkway
structure outby the end of the boom. Mr. Arent marked an "X"
where he believed Mr. Smith was located installing the choker
just before the accident. He then stated that the "X" mark is
where he observed Mr. Smith putting on the choker that he
testified to on direct examination, but then stated that he did
not know whether that was the choker "that we are talking about"
(Tr. 169). He stated further that he did not observe Mr. Smith
install the choker which is circled in exhibit PÄ7, and explained
as follows at (Tr. 167Ä168):
A. Well, I don't know. I think he put it up there
earlier. He was doing that before he did the other one
that was over at--it should have been out here where he
was putting it, though, because that is where he was
at, unless he dropped that choker when he--that he was
working on.
Q. So the choker that is circled on PÄ7--did you see him
put that choker on?
A. No.
Q. You did not? So the testimony that you gave before
about him standing and leaning over the rail or doing
anything, that doesn't apply to this particular choker
that is circled?
A. No.
Q. If anything, it applies to the one that is--
A. He was out over here.
Q. At the end of the catwalk?
A. Yes, he was out in this area.
Mr. Arent identified a smaller second choker, as shown in
photographic exhibit PÄ8, and confirmed that it appeared to be
wrapped around the angle iron on the catwalk. When asked whether
this was the choker that Mr. Smith was working on, Mr. Arent
replied "Could have been" (Tr. 170). He further explained as
follows (Tr. 170Ä171):
Page 24
~1693
Q. Could it have--if he was applying it at the end of the--where
you have him marked as an X at PÄ7, would the fact that it goes
around the back side, where you have marked on PÄ8--would that
prevent it from being pulled all the way to the end of the--
A. Yes.
Q. It would? So does that mean--would you agree then,
that probably is not the choker that he was putting on?
A. I don't--it don't seem like that would be the one,
because he was out on the end.
Q. And was Mr. Smith kneeling down?
A. Yes.
Q. Was he on all fours?
A. On his knees, not his hands.
Q. Okay. And when you saw him where you have marked on
PÄ7 with an X, was he reaching through the mid-rail,
between the mid-rail and the grating, or between the
mid-rail--just--and the top-rail?
A. Between the middle and the bottom.
Q. He was reaching between the mid-rail and the bottom,
where the grating would be, where the toeboard is?
A. Yes.
JUDGE KOUTRAS: Mr. Arent, I thought you said on direct
that he was reaching over the top, slightly not too far
over it. And now it is the middle and the bottom?
THE WITNESS: Yes.
JUDGE KOUTRAS: What was it?
THE WITNESS: The bottom.
Page 25
~1694
JUDGE KOUTRAS: What moved you to say the top, when asked on
direct?
THE WITNESS: I don't know. Just the way the question
was asked.
Mr. Arent stated that if Mr. Smith was standing on the
grating and reaching over the hand rail there would be a danger
of falling because he could lose his balance and go over the top
of the railing. If he was reaching over, he should have been tied
off, but if he was kneeling, he would be more balanced and did
not need to be tied off (Tr. 174). Mr. Arent stated further that
when he observed Mr. Smith on his knees reaching through the hand
rail, he believed his head was outside the mid-rail, but his
shoulder was not (Tr. 173).
Mr. Arent confirmed that he was wearing a safety belt at the
time of the accident, but that he was not tied off because he
moved around so much and was not tied off all of the time. He
would tie off if he had a wrench in his hand and was using it. He
also confirmed that he had his lanyard line with him and that it
is part of his regular safety equipment, and that Mr. Smith also
had his line with him (Tr. 175).
Mr. Arent stated that when he and Mr. Smith were on the
boom, Mr. Smith was his supervisor and he would do what Mr. Smith
told him. Mr. Arent did not know who Mr. Smith's supervisor was,
but he confirmed that general foreman Jim White told him (Arent)
where he was to work that morning (Tr. 177). Mr. Arent stated
that he was not familiar with the safety standards which are in
issue in this case, but confirmed that he knew he was supposed to
wear a safety belt and tie off and that he learned this at weekly
safety meetings conducted by Mr. White (Tr. 177).
Austin Power's Testimony and Evidence
Inspector Summers was recalled, identified several
photographs of the eyelet which failed, and the scene of the
accident, and described some of the damage to the eyelet (Tr.
183Ä184). He also testified as to certain statements and
conclusions which appear in MSHA's "narrative assessment"
concerning the supervising of the work being done on the boom at
the time of the accident, and he confirmed that the statements
were not obtained from him (Tr. 185Ä187).
Page 26
~1695
James C. "Pat" Patterson, testified that he is employed by
Austin Power, and was the rigging foreman at the time of the accident.
He stated that at the time of the accident he was not aware of
any movement of the 20Ämeter boom between the third and fourth
counter weight loading process, but learned about it the
following day. Immediately prior to the accident, he was on the
ground and approximately 35 to 40 feet from the end of the boom.
Mr. Smith was kneeling on the catwalk putting a choker around the
framework under the grating. The choker was to be used to lead
the boom around with the cherry picker, and his feet were at the
place marked with an "X" on exhibit PÄ7. Mr. Smith was reaching
underneath the mid-rail, but Mr. Patterson did not see how much
of his body was through the rail. Based on his experience as a
rigging foreman, and 30 years of construction experience, Mr.
Patterson did not believe that Mr. Smith was in danger of falling
(Tr. 197).
Mr. Patterson stated that company policy required Mr. Smith
to have his safety belt on at all times he is off the ground, and
if he is outside the handrails, he is required to be tied off.
The safety belt also serves as a tool belt, and it has a lanyard
attached to it. Mr. Patterson did not believe that Mr. Smith was
required to be tied off at the location that he was in at the
time of the accident (Tr. 197).
Mr. Patterson stated that after Mr. Smith fell to the
ground, he saw that he had a head injury, and when he later
examined the boom, it was his opinion that Mr. Smith struck his
head on a "load cell" located above where his feet had been on
the catwalk. Mr. Patterson described the "load cell" as the round
white object shown by an arrow on exhibit PÄ7, and he stated that
he observed that the object was bent. That led him to believe
that Mr. Smith's head struck it as the boom raised up (Tr. 199).
On cross-examination, Mr. Patterson stated that he did not
see Mr. Smith pick up the grating to maneuver the choker under
it, and that he could swing the choker under the grating and
reach and catch it with his hand on the other side. The choker
consists of a wire rope, and he likened it to swinging a piece of
rope under the walkway grating. The choker was not in place at
the time, and Mr. Smith was preparing to get it in place to
attach it to the cherry picker (Tr. 200).
Mr. Patterson stated that he was not aware that the walkway
grating was not bolted or clamped down at the time of the
accident, but that "I know that it had been at one time." He
Page 27
~1696
was not made aware of the fact that the grating had ever been
removed after it was initially installed until discussions which
took place after the accident occurred. He stated that the
grating could have been removed for numerous reasons, and that a
painter, an electrician, or some other craftsman could have done
it. Although he could not specifically identify who may have
taken up the grating, he stated that it was not unusual to do so
(Tr. 201Ä202). He confirmed that normal procedures,
specifications, or verbal directions required that the grating be
clamped at each corner and fastened down (Tr. 202).
In response to a question as to whether he believe the
walkway grating was in good condition, regardless of whether it
was clipped down or not, Mr. Patterson responded that he
considered it to be safe to walk on (Tr. 203). Mr. Patterson
explained that while he was on the ground before the accident
occurred, he was primarily flagging the crane operator and also
supervising Mr. Smith's work on the end of the boom. He
identified the choking device as the one depicted in photographic
exhibits PÄ10, PÄ11, and PÄ14, and confirmed that it appeared to
be tied off around the steel member of the catwalk structure in
all three photographs. He stated that Mr. Smith had tied the
choker on and intended to loop it under the catwalk to the other
side and then catch it. He would have then placed the two eyes of
the choker onto the crane lifting hook in order to maneuver the
boom around. No lifting was required, and the crane would simply
lead the boom with a lateral movement.
Mr. Patterson stated that he did not specifically instruct
Mr. Smith or the other two men as to what they were to do, and
that Mr. Smith knew that the cherry picker would be used to guide
the boom around, and knew that a choker was required for this
task. The other two men simply followed Mr. Smith out to the end
of the boom because "they were naturally eager also." Mr.
Patterson stated that Mr. Smith was a journeyman and a good
worker, and that he (Patterson) felt "felt completely comfortable
as far as any safety aspect" (Tr. 205).
Mr. Patterson was of the opinion that the fact that the
grating was not tied down and Mr. Smith was not tied off would
not have prevented the fatal accident in question. He stated that
by striking his head on the overhead cell, Mr. Smith was not able
to grasp the hand rail as he came down after the boom raised, and
he pointed out that Mr. Arent caught himself, and Mr. Saulsburg
caught himself after falling through the area where the grating
was gone and pulled
Page 28
~1697
himself back up. He conceded that had the grating been secured,
it probably would not have popped out with the jerking of the
boom.
Although he believed that it was conjecture that the walkway
on the other side of the boom which did not pop out was subjected
to an equal amount of movement when the eyelet failed and the
boom raised up, he conceded that it was probably true (Tr. 207).
Mr. Patterson could not explain why the other walkway did not pop
out when subjected to the "whiplash" movement of the boom when
the eyelet failed, and when asked whether anyone speculated that
it did not pop out because it was secured, he responded
"probably, Yes sir" (Tr. 208).
In response to further questions regarding company policy
and the use of safety lines, Mr. Patterson stated as follows (Tr.
208Ä209):
JUDGE KOUTRAS: You say that the company policy is that
when any employee is required to be off ground-level
that he is to have a belt on?
THE WITNESS: At this jobsite, sir, that is project
policy by my boss.
JUDGE KOUTRAS: And then if his work has occasion to
take him outside of the area of a guard-rail, he is
required to be tied off?
THE WITNESS: Yes, sir.
JUDGE KOUTRAS: Is this policy written, or how is it
communicated to the employees?
THE WITNESS: Through regular gang box, tool box safety
meetings.
JUDGE KOUTRAS: But do you know whether or not it is a
written policy of any kind? Do you all have written
work rules there?
THE WITNESS: Yes, sir.
JUDGE KOUTRAS: Is it part of the written work rules?
Page 29
~1698
THE WITNESS: Yes, sir. We have written safety books and I don't
think it is worded as such in our safety rule book.
JUDGE KOUTRAS: Why isn't it?
THE WITNESS: I don't know. It could be. I couldn't
swear that it is or isn't. But at any time you are in
an unsafe area, we know that we are supposed to tie
off. That is in the book. But as far as wearing a belt
when you are off the ground on a catwalk with
hand-rails and toeplate, I don't know.
Sidney S. "Woody" Woodson confirmed that he is employed by
Austin Power as a project general superintendent, and was so
employed at the time of the accident. He was the superintendent
of the Big Brown Strip Mine, and approximately 30 employees were
employed at this job site. The mine is owned by Texas Utilities
and the cross-pit spreader was designed and manufactured by the
DeMag Company from Germany. DeMag had a representative on site
for the purpose of overseeing Austin Power's erection of the
spreader, and Austin Power had a contract with DeMag for this
purpose, and not with Texas Utilities. As general superintendent,
Mr. Woodson was responsible for compliance with all safety
regulations at the site, and he is certified for the safety
training courses given by MSHA (Tr. 210Ä213).
Mr. Woodson identified a copy of the company safety rule
book given to all new employees at the job site, and copies of
the minutes of 12 "tool box" safety meetings held with employees,
including Mr. Smith, during the period June 3, 1985 to August 19,
1985. Mr. Woodson stated that the meetings included a discussion
of the use of safety belts and lines, and that the meetings are
conducted by company supervisor Jim White. Mr. Woodson stated
further that he selects the topics for discussion at the
meetings, and that he usually discusses them with Mr. White (Tr.
213Ä221).
Mr. Woodson reviewed several photographic exhibits, and
described the location of certain electrical conduit and boxes
located outside the boom walkway. He also identified a recent
photograph he took depicting a chain and a sign across the boom
walkways installed after the accident. The sign states
"Authorized Personnel Only." Mr. Woodson confirmed that he
installed the chain, and Texas Utilities installed the sign, but
he could not explain who ordered them installed (Tr. 228Ä231).
Page 30
~1699
Mr. Woodson identified photographic exhibit RÄ8, as a photograph
of the catwalk on which Mr. Smith was working at the time of the
accident. He confirmed that he took the pictures several days
prior to the hearing, and when asked whether it depicts the
condition of the catwalk as it appeared at the time of the
accident, he responded as follows (Tr. 232Ä235):
Q. Is this the catwalk that Mr. Smith was working on at
the time of the accident?
A. Yes, it is.
Q. And was the--was there any difference in your
understanding as to the condition of the catwalk as you
found it in your picture last Friday and how it was
during the time that the accident happened?
A. The grating is laying inside that framework,
identically like it was.
Q. So does it--
A. At the time of the accident, with the exception of
maybe a few of these grating clips not being clipped
down. I can't honestly tell you how many of them was
and how many wasn't.
Q. So RÄ8 fairly and accurately depicts the way that
the grating was laying into the catwalk structure at
the time of the accident?
A. Yes, it does.
* * * * * * * *
Q. Now, let me direct your attention to Respondent's
Exhibit number 8, the photograph. Would you explain to
the Judge what Respondent's Exhibit 8 depicts to you,
insofar as the four sections of grating that are shown
in that catwalk, and how they are installed and
secured.
A. Well, of course, being four or however many pieces
it is down through there, from
Page 31
~1700
this elevation right here, this catwalk goes off, drops down
90Ädegrees, bends 90 and takes off again. There is an angle iron
frame which is approximately, now, four-inch angle by four-inch
angle iron. It is millimeter type, but it approximately that,
which makes the framework down this side and across the front and
up the other side, which this grating is laying down in there.
Q. So all of the four pieces which are depicted in
Respondent's Exhibit 8 at the--coming from the
photograph and looking into the distance, the last four
pieces are inside what is in effect a box of angle
iron?
A. Well, you could--you could say a box frame angle
iron.
Q. Was the angle iron higher than the grating itself?
A. It is some higher, yes.
Q. Was there any way that that grating, if it was all
in place, could move, either left or right or in any
way laterally?
A. Not under normal conditions. Just as long as it is
laying out there flat, no, it can't come out of there.
Something has got to disturb it.
Q. Would you consider, in your opinion and years of
experience that you have had in construction industry,
for that walkway to be in good condition?
A. Well, in my years of construction, we had let lots
of grating like this go unclipped down, because we felt
like that it was safe grating. It couldn't come out of
that type of framework, because you had to go back
there and do work later. Now, we had clipped this
grating down at one time because we had extra people
that didn't have nothing to do, and we put them and got
all the grating clipped down. It is a good policy to
get it all clipped down.
Page 32
~1701
Q. Did you consider it unsafe to work on that grating in that
particular condition, the day of the accident?
A. No, sir, I didn't.
And, at (Tr. 238):
Q. Mr. Woodson, with regard to the grating, in your
opinion was it necessary to have the clips in place for
the walkway, the grating, to be in good condition?
A. Not all 100Äpercent, I wouldn't say. As long as your
grating was laying in the box frame and laying all down
in there properly and fit down and not any of it pulled
up or anything, where it accumulated a tripping hazard
or some way you could kick some of it up in the air and
cause it to fall. No, not if it was all 100Äpercent
uniform laying in that grating.
Mr. Woodson stated that he was not aware of any movement of
the boom between the loading of the third and fourth counter
weights until after the accident occurred (Tr. 234).
On cross-examination, Mr. Woodson, testified as follows with
regard to the walkway clips (Tr. 238Ä239):
Q. Mr. Woodson, was it Austin Power's policy to have
the grating clipped down on the cross-pit spreader at
the Big Brown Strip?
A. To my knowledge, there is not anything in writing
that tells you that it is--needs to be clipped down. It
just says grating needs to be proper secured by means
of, and it goes--I think there is some stuff somewhere
that tells you, you know, that it needs to be tied down
by means of number 9 wire or grating clips. There is
some place we tie it down with number 9 wire, sometimes
we put it down with grating clips and sometimes we weld
it down.
Q. Did you know prior--did you know on August 19, 1985,
prior to the accident that
Page 33
~1702
afternoon, that the grating on what has been referred to as the
left side of the 20Äfoot boom was not clamped down?
A. No, sir. I can't honestly say 100Äpercent I didn't
know that.
Q. Do you know of any reason why the grating would not
have been clipped down on the left side of the 20Äfoot
boom, on August 19, 1985?
A. Well, it could have been the painters took the clips
up, it could have been anybody that took the clips up.
I had been in that area a couple of three days before
that and some of this grating was clipped down I know,
because I don't recall seeing any of the clips off in
that area when I went in there. Of course, I don't
think I went plumb to the end of the boom that--two or
three days prior to that.
Mr. Woodson confirmed that the walkway areas are required to
be inspected at least daily during the work shift, and he stated
that he tries to walk the area at least once a day unless he is
busy doing something else (Tr. 241). He confirmed that the
walkway grating was required to be secured in order to abate the
citation, and in response to additional questions, he stated as
follows (Tr. 242Ä243):
JUDGE KOUTRAS: * * * What I am trying to understand
is--these plates, these walkway plates are put in there
with items that secure it down. Isn't that true? There
is a reason for having it.
THE WITNESS: Yes, sir, that is true; but the reason for
having these on these particular points is because they
are moving booms up and down and sideways, and clods
and stuff is falling on it during operation that could
knock the grating out of there--that 99Äpercent of--or 99
chances out of 1, that there ain't nothing going to
fall on it and knock the grating out in that condition
as you are erecting.
JUDGE KOUTRAS: Once you get it erected and completely
constructed and built and ready to go, are you telling
me that you are still not required to have the tie down
plates on?
Page 34
~1703
THE WITNESS: No, I am not saying that. I am saying that during
erection--during erection.
JUDGE KOUTRAS: So my question is that once erected and
constructed, if inspector Summers walks in there and
find one of them not tied down, you are likely to get a
citation, aren't you?
THE WITNESS: Yes, sir, that is true.
JUDGE KOUTRAS: You are not maintaining it in good
condition, or in safe condition, or whatever.
THE WITNESS: Yes, sir, that is true.
Mr. Woodson agreed with MSHA's assertion that had the
walkways been secured, Mr. Smith may not have suffered fatal
injuries because when he was thrown in the air he may have been
able to land on them and not have continued his fall (Tr.
247Ä248).
With regard to the citation for moving equipment without
insuring that employees are in the clear, Mr. Woodson believed
the cited regulation applied to the 518 crane and not the boom of
the cross pit spreader, and that the regulation prohibited anyone
from being on a load that is being picked up off the ground by
the crane and lifted into the air (Tr. 249, 252).
Mr. Woodson stated that after the counter weights were
installed he instructed the crane operator to slack off his
chokers, and since he had only one foot of clearance between the
boom, he had the three employees in question walk out on the boom
to see if the boom would "set down anyway." When it didn't he
instructed the employees to go to the other end of the boom, and
he described what happened next as follows (Tr. 250Ä253):
* * * Well, we started walking the thing around and
we got the thing nearly around there in place, these
three people that was out there on the boom, fixing to
hook this choker on that cherry picker come down the
other side to go out there. They was back here at the
back at one time. But they seen that the boom was
getting around here close,
Page 35
~1704
that some point you had to go out there and hook it on. Some
point you had to go out there. There was no choice.
So they went up this side, which is the right-hand
side, went around the back, come down the left-hand
side to put this other choker on, to hook on the cherry
picker. So they had been out there once before the load
started moving and they was instructed to go back. And
they went back.
JUDGE KOUTRAS: And then the load started moving again?
THE WITNESS: Then the load started to moving, which he
moved the load probably 80Äpercent of the distance that
he was going with it. And Mr. Smith had already been
told to put a choker on there, prior to us even start
moving the boom back into position. He was told to put
the choker on the front of the boom, here, but it ended
up around the catwalk there.
JUDGE KOUTRAS: Now, the gentlemen in the back there
that operated this particular crane that day saw
nothing wrong with people being out there when it was
moved. They had some work to do out there.
THE WITNESS: Well, I can't either, because there is
conditions you get in where you have no choice. You
have to be on it. Now, you don't want to put a man out
there where you can see a hazard, but I could not see a
hazard at the time that they went out there, because I
didn't know that something was going to go wrong. If I
had of, I sure wouldn't have sent them boys up on
there.
* * * * * * * * *
JUDGE KOUTRAS: And in this particular case, that
20Ämeter boom, in your eyes, wasn't being moved?
THE WITNESS: Yes, sir, only on one end. It was rigid
on--I mean, it was fixed on the other end.
Page 36
~1705
JUDGE KOUTRAS: And which end was it being moved on?
THE WITNESS: It was moved out on the live end of it.
JUDGE KOUTRAS: Where the three men were at. Is that
true?
THE WITNESS: Part of the time, yes, sir. They was out
there part of the time. But at the biggest move of the
period, they was not out there. They was out there
nearly right at the end of the move.
JUDGE KOUTRAS: Mr. Patterson is sitting there watching
these fellows going back and forth?
THE WITNESS: Well, Mr. Patterson seen them walk down
this catwalk on one side, yes, sir.
MSHA Arguments
Citation No. 2339411
MSHA argues that as the danger increases, the equipment
operator's duty to assure clearance of persons also increases,
and the operator must be certain that no one will be endangered
by starting or moving equipment. Texas Industries, Inc., v.
FMSHRC, 694 F.2d 770 (5th Cir.1982), 2 MSHC 1915 (1982). MSHA
submits that section 77.1607(g) requires that the equipment
operator must be certain that all persons both are clear of the
equipment and are not on the load before starting the equipment
and moving the load. MSHA notes that section 77.1607(k) prohibits
persons from working or passing under the buckets or booms of
loaders in operation. In the instant case, MSHA concludes that
the crane operator knew that three employees were on the far side
of the 20Ämeter boom when he began to swing it under the 70Ämeter
boom.
Citation No. 2399412
MSHA asserts that the facts in this particular case are
similar to the facts in BCNR Mining Corporation, 3 MSHC 2015
(1985), where a violation of section 77.1710(g) occurred when a
worker, without wearing a safety belt and line, placed his body
between the top rail and middle rail on the fourth floor, lost
his balance, and fell through the railings to his
Page 37
~1706
death. MSHA submits that a reasonable employer should know there
is a danger of falling when an employee is assigned a task which
requires him to lean over or between the guard rails on an
elevated walkway, Great Western Electric Company, 2 MSHC 2121
(1983); Southwestern Illinois Coal Corporation, 3 MSHC 1066
(1983).
Citation No. 2339413
MSHA submits that the cited elevated walkway was not
maintained in good condition since its expanded metal floor
plates were not fastened to its frame to prevent them from
becoming dislodged if the elevated walkway moved or jumped
because of some unexpected external force.
Austin Power's Arguments
Citation No. 2339411
Austin Power contends that mandatory safety standard 30
C.F.R. 77.1607(g), does not apply to the circumstances which
existed at the time of the accident. In support of this argument,
Austin Power states that the accident was caused by an unexpected
failure of an eyelet on the cross pit spreader which resulted in
a quick, unforeseeable movement of the 20Ämeter boom, and that at
the time of the accident, the crane operator was pulling the
20Ämeter boom because the electricity was not connected to allow
the boom to move on its own power. The crane operator was well
aware of the fact that the three employees were working on the
boom as he was swinging it around. When in operation, the boom is
designed to slowly move vertically and horizontally, and it is
designed to allow employees to work on the walkways. Austin Power
maintains that the inspector's contention that the three
employees should not have been on the boom during its operation
goes against the design and purpose of the machine.
Austin Power maintains that the crane operator was in fact
receiving signals throughout the day, and that the situation
presented is not one in which the crane operator backed over an
individual because he failed to receive signals that all
individuals were in the clear. Austin Power points out that the
crane itself posed no danger to the three employees on the
20Ämeter boom because the crane did not and could not come into
contact with the employees. Austin Power argues that MSHA's
position that the 20Ämeter boom was the load of the crane and as
such was an extension of the crane is refuted by the evidence and
any logical interpretation of section
Page 38
~1707
77.1607(g). The 20Ämeter boom was a separate piece of equipment
which was being "walked around" by the crane, and the crane
operator was putting no stress on the boom and his actions had
nothing to do with the eyelet failure. Austin Power concludes
that the three employees were not "riding the load" at the time
of the accident and were clear of the crane, and even if they
were, the inspector admitted that there is no prohibition against
working on moving equipment or on the boom of machinery.
In response to MSHA's contention that the three employees
should not have been working on the boom while it was moving,
Austin Power asserts that the equipment was designed to allow
employee access at all times, and that the inspector admitted
that the failure of the equipment was just as likely to have
occurred while the boom was stationary. Austin Power concludes
that the fact that the crane operator was moving the boom at the
time of the accident is totally irrelevant.
Austin Power argues that the only relevant factor is whether
the crane operator failed to receive notification that all
persons were in the clear before moving the crane. Austin Power
maintains that the evidence specifically shows that the operator
knew where the employees were standing and that they were in the
clear, the operator was given operating signals from various
individuals, and the operator did not put the employees in any
danger through the operation and movement of the LinkÄBelt crane.
Therefore, Austin Power concludes that MSHA has failed to
establish a violation of 30 C.F.R. 77.1607(g).
Citation No. 2339412
Citing Southwestern Illinois Coal Corporation, 3 MSHC 1066
(1983), Austin Power states that the phrase "shall be required to
wear" found in 30 C.F.R. 77.1710(g), has been interpreted to
require miners to wear safety belts under appropriate conditions,
but does not make operators guarantors that safety belts and
lines will be worn by its miners. Austin Power also cites Peabody
Coal Co., 1 MSHC 2076 (1979), in support of the proposition that
mine operators have a duty to establish a clear and
understandable safety system designed to assure that employees
wear safety belts and lines on appropriate occasions and to
enforce the established system with due diligence.
Austin Power argues that the fact that the three employees
in question did not secure their lanyards when they were working
on the 20Ämeter boom did not create a hazardous
Page 39
~1708
situation. Austin Power points out that while the citation stated
that all three employees were in violation of section 77.1710(g),
MSHA acknowledged at the hearing that the two employees who were
not applying the choker when the accident occurred did not need
to be tied off, and that the inspector in his deposition stated
that he based his citation upon his belief that the employees
were riding on moving equipment (20Ämeter boom) and therefore
needed to be tied off. However, the inspector acknowledged that
there is no standard which prohibits employees from working on a
piece of moving equipment.
Austin Power states that MSHA based its case upon the belief
that the deceased employee was leaning over a handrail on the
walkway of the 20Ämeter boom while connecting a choker. Austin
Power maintains that the evidence clearly established that the
deceased employee was not leaning over the rail and was in no
danger of falling due to his actions. In support of this
conclusion, Austin Power asserts that MSHA's own witness,
employee Jeffrey Arent, testified that Mr. Smith was not leaning
over the top rail but was kneeling on his knees reaching between
the middle and bottom rails while applying the choker, and that
he was in no danger of falling.
Austin Power states that the three employees were standing
on the 20Ämeter boom at the time of the accident; the boom was
equipped with a standard guard rail which included a top rail, a
mid-rail and a toeboard made of angle iron; and the boom was
covered by a metal housing. Austin Power points out that in the
Southwestern Illinois Coal Corporation case, a violation of
section 77.1710(g), was found because no guard rails or
protective devices surrounded the employees work area and a
danger of falling existed. However, in the instant case, the
employees in question were in a protected area and were in no
danger of falling. Under the circumstances, Austin Power
concludes that section 77.1710(g) is inapplicable to the facts in
this case.
Citing Great Western Electric Co., 2 MSHC 2121 (1983),
Austin Power points out that in reviewing an analogous standard
(30 C.F.R. 57.15005), the trial judge supplied a test to
interpret the phrase "danger of falling." In that case, the
Commission applied a "reasonably prudent person" test previously
applied in Alabama ByÄProducts Corp., 2 MSHC 1918 (1982), which
is as follows:
[W]e conclude that the alleged violation is
appropriately measured against the standard of whether
a reasonably prudent person familiar
Page 40
~1709
with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation. Id. at 2122.
Applying this test to the safety belt standard, the
Commission defined the test in terms of whether an informed,
reasonably prudent person would recognize a danger of falling
warranting the wearing of safety belts and lines. Austin Power
suggests that an informed, reasonably prudent person would not
have recognized a danger of falling on the protected walkway of
the 20Ämeter boom. Austin Power quotes the crane operator's
description of the situation: "They were in a catwalk grating
area that was covered with a shed. It would be like sitting in
this chair tied off." Austin Power also points to the admission
by the inspector that he does not wear a safety belt while
inspecting the 20Ämeter boom, and the fact that these inspections
took place in the same area where the same inspector now contends
that safety belts are required.
Austin Power argues that the evidence in this case clearly
establishes that Mr. Smith was not leaning over the rail while
applying the choker, but was crouched on his knees within the
handrail. However, Austin Power asserts that at most, Mr. Smith's
head was outside the rail, but not his shoulder, and that he was
as protected and balanced as the other two employees which MSHA
acknowledged did not need to be tied off. Austin Power concludes
that since all three employees were in situations in which there
was no danger of falling, they did not need to be tied off, and
the fact that a "freak accident" occurred does not change the
fact that the employees were in a protected area. In further
support of its conclusion, Austin Power cites the belief by
rigging foreman Patterson that Mr. Smith's injury was caused by a
blow to the head from a load cell gauge, and that being the case,
a tied-off safety belt would have provided no additional
protection from the unexpected equipment failure.
Austin Power argues that in the Southwestern Illinois Coal
Corp. case, a danger of falling existed, and the mine operator
was found to have violated section 77.1710(g), when it left the
decision to wear safety belts largely to the discretion of the
miners and failed to offer or cite any specific guidelines and
supervision on the presence of actual fall dangers. Austin Power
suggests that if no danger of falling is present, then the issue
of safety instructions and enforcement is irrelevant. On the
facts presented in the instant case,
Page 41
~1710
Austin Power argues that it has proved that it has a clear safety
system which insures that its employees are aware of the
necessity of safety belts under appropriate circumstances and
that it enforces the established system with due diligence.
Austin Power concludes that its testimony established that it has
a stated and enforced policy that employees are to wear safety
belts if they are off the ground and are to tie off with their
lanyard if they are outside of the guardrails or in danger of
falling.
Austin Power maintains that the determination as to when to
wear a safety belt and tie off is not left to the employee's
discretion but is specifically set out in its written safety
manual and in tool box safety meetings. In this case, Austin
Power points out that the minutes of the tool box safety meetings
in which safety belts and lines were discussed show that they
were signed by Mr. Smith, and that his coworker Crowell, who
worked with him on a regular basis, testified that Mr. Smith was
an extremely safe and good worker who wore a safety belt and tied
off when the situation called for it.
Austin Power asserts that Mr. Smith was killed due to a
highly unexpected equipment failure, and that a tied-off lanyard
may or may not have protected him under these circumstances.
Austin Power concludes that at the time of the accident, there
was absolutely no foreseeable danger of falling and that this is
the standard by which its actions and policies should be judged.
Citation No. 2339413
Citing Sunbeam Coal Corp., 1 MSHC 2314 (1980), and Peabody
Coal Co., 1 MSHC 2422 (1980), Austin Power argues that in order
to establish a violation of 30 C.F.R. 77.205(e) or 77.404(a),
MSHA must prove that elevated walkways and stairways are unsafe.
A lack of reliable and substantial evidence that an actual
equipment defect affecting safety and resulting in an accident
justified dismissal of a section 77.404(a) citation, B.S.K.
Mining Co., 1 MSHC 2447 (1980).
Austin Power asserts that MSHA failed to establish by a
preponderance of the evidence that clips were actually missing
from the walkway grates. Assuming the clips were in fact missing,
Austin Power maintains that MSHA has not established that the
walkway was in an unsafe condition. In support of its arguments,
Austin Power states that the evidence merely proved that grating
clips were lying on the ground following
Page 42
~1711
the accident, and that the witnesses, including the inspector,
admitted that they did not know whether the walkway on the
20Ämeter boom was clamped prior to the accident. Although rigger
foreman Patterson testified that he knew the grating had been
clamped at one time, MSHA based its case on an assumption that
the walkway was unsecured, and that this belief is based upon
speculation rather than fact because no one acknowledged seeing
the grating unsecured at any time.
Austin Power asserts that the testimony established that the
side of the eyelet which broke was on the left side of the
20Ämeter boom, the side on which the employers were standing, and
that the inspector admitted that he did not know the amount of
force involved in the eyelet failure, nor did he know whether the
force was evenly distributed on the left and right sides.
Further, MSHA offered no evidence to discount the possibility
that the failure of the eyelet distributed greater force to the
left side of the boom, causing the clips on the left to be
knocked loose. It is entirely possible given the facts and
circumstances that the force of the accident went down the left
side of the boom. The clips are not substantial pieces of
equipment and are not designed to withstand the type of force
which they were subjected to in this accident.
Alternatively, Austin Power maintains that MSHA has failed
to prove that a walkway without clips is unsafe. A finding that
the walkway was unsafe is required in order to establish a
violation of section 77.205(e) or section 404(a), Sunbeam Coal
Corporation and Peabody Coal Co., supra.
Austin Power argues that the standards in issue do not
state, and no case has held, that walkways must be clipped; they
merely refer to maintaining walkways and machinery in a good,
safe condition. In the case at hand, Austin Power points out that
there appears to be a dispute between MSHA and the inspector as
to the proper standard to apply. Although MSHA amended the
citation to allege a violation of section 77.404(a), the
inspector believed that section 77.205(e) is the more accurate
standard. Austin Power suggests that this confusion and
disagreement underscores the inapplicability of the citation to
the conduct at hand. As an example, Austin Power states that most
cases referring to section 77.404(a) relate to bulldozers and
heavy equipment, Peabody Coal Co., 3 MSHC 1404 (1984).
Austin Power asserts that the design of the walkway secured
the grating from lateral movement due to the angle iron device
which was cut to hold the grates in a tightly
Page 43
~1712
secured position, and that the walkway was of a substantial steel
construction, as opposed to cases such as The Hoke Co., 1 MSHC
2455 (1980), in which the walkway was found to violate section
77.205(a) because the guardrail was merely a rope. Further,
Austin Power maintains that the testimony established that the
only way for the gratings to come out of the channels was from
the unforeseeable whiplash effect which occurred from the eyelet
failure, and that its employees testified to their belief that
the walkway was maintained in a good condition and that no safety
concerns existed with walking on unclipped grating given the
design characteristics. Additionally, the 20Ämeter boom was still
under construction at the time of the accident, and a highly
unlikely effect from a "freak" accident should not be the measure
of whether a walkway is maintained in a good condition. Austin
Power concludes that the walkway on the 20Ämeter boom, with or
without clips, was maintained in a good, safe condition, thereby
meeting the requirements of sections 77.205(e) and 77.404(a).
Austin Power maintains that even if the grates had been
clipped down, the evidence suggests that the fatality may still
have occurred. First, if clips were affixed to the grates, the
clips quite possibly would have come loose upon such a severe
impact. Second, MSHA admits that no one knows whether Mr. Smith
was flipped over the guardrail or fell through an area where the
floor grates were missing. In response to MSHA's assertion that
"it is reasonble to assume that he was flipped up and came back
down, as did the other two employees," Austin Power points out
that no one saw Mr. Smith fall through the handrail. The
inspector stated that one witness told him that Mr. Smith went
over the top rail. Additionally, Mr. Smith was closer to the end
of the boom than the other employees and could easily have been
catapulted over the edge. Third, foreman Patterson testified to
his belief that Mr. Smith suffered his injury when his head hit
the load cell gauge on the 20Ämeter boom; the gauge was bent upon
review after the accident. Under this scenario, Austin Power
concludes that secured grating may not have prevented the
fatality, and that MSHA has failed to prove that a hazard existed
due to the condition of the walkway.
Proposed Civil Penalty Assessments
With regard to MSHA's proposed civil penalty assessments for
the alleged violations in question, Austin Power argues that the
accident which resulted in the death of Mr. Smith was an
unforeseeable failure of an eyelet on the cross pit spreader, and
that this totally unexpected failure was so unusual that it goes
beyond what is anticipated even by
Page 44
~1713
MSHA's system of liability without fault. Austin Power maintains
that it and its employees did not and could not recognize a
hazard when trained individuals were working on a
well-maintained, guarded walkway outside of the zone of danger
from the 518 LinkÄBelt crane, and that the standards cited are
not applicable to the facts and circumstances which existed at
the time of the accident. Austin Power concludes that the
accident was due to a situation beyond Austin Power's control,
and that the facts presented should not have led to the three
citations and the accompanying penalties.
Austin Power states that whether it knew or should have
known of any unsafe conditions is relevant in determining the
appropriate penalty. Peabody Coal Co., 1 MSHC 2215 (1979). It
believes that it is apparent that Austin Power had absolutely no
notice that the equipment was defective, and that the alleged
violations did not contribute to the accident, nor would further
actions by Austin Power employees have prevented the accident.
Austin Power believes that its lack of negligence is relevant
criteria in the assessment of penalties. Peabody Coal Co., 1 MSHC
2422 (1980).
Austin Power takes issue with MSHA's Narrative Findings for
a Special Assessment which led to the proposed civil penalty
assessments for each of the alleged violations. Austin Power
points to the inspector's acknowledgement that he had nothing to
do with the narrative findings made by MSHA's Office of
Assessments, and that he was not given an opportunity to review
those findings prior to the proposed penalty assessments.
Austin Power maintains that the narrative findings do not
correlate with the evidence presented at trial in terms of the
citations and proposed penalties. Although the narrative findings
state that the three citations contributed to the severity of the
fatal accident, Austin Power maintains that the evidence has
shown to the contrary. In addition, the narrative findings state
that the violations resulted from "operator negligence," which
has not been established. The findings state that management knew
that employees were not in the clear while the 20Ämeter boom was
being moved. Austin Power asserts that the evidence shows that
the employees were actually in the clear and the crane operator
and supervisors were aware of this fact.
In addition, the findings state that the operator was
negligent in allowing the employees to work on the boom without
tying off. Austin Power asserts that the evidence shows no
negligence on its part, as the employees were working in
Page 45
~1714
an area with standard guardrails which presented no danger of
falling. The findings further state that the operator was
negligent because it knew or should have known that the walkway
floor plates were not secure. Austin Power points out that there
was no definitive testimony that the walkway was unclipped. In
addition, the evidence established that the walkway with or
without clips was of substantial construction and maintained in a
good, safe condition. Austin Power concludes that the sole cause
of the accident was the defective machinery; any theory to the
contrary is unsupported by the evidence.
Finally, Austin Power states that the record is replete with
evidence of its extensive safety program and commendable safety
history. Additionally, MSHA stipulated to Austin Power's good
faith effort toward compliance in relation to the accident and
imminent danger order, and the inspector testified to the
cooperation he received from Austin Power and the good working
relationship he maintains with them. Austin Power points to the
fact that it has received only two prior citations at the Big
Brown strip mine, neither of which related to a violation of a
standard in issue in this case. Austin Power also cites its
safety training for employees on a regular basis, including
weekly toolbox safety meetings, and concludes that its safety
history, good faith effort toward compliance, and cooperation are
relevant to the assessment of penalties. It concludes that the
proposed penalties are grossly excessive and not supported by the
totality of the evidence.
Findings and Conclusions
Fact of Violation--Citation No. 2339411
Austin Power is charged with a violation of mandatory safety
standard 30 C.F.R. 77.1607(g), because the crane operator was
not signalled, notified, or certain that the three employees on
the 20Ämeter boom were in the clear before using the crane to
move the 20Ämeter boom in a lateral direction. Section 77.1607(g)
provides as follows: "Equipment operators shall be certain, by
signal or other means, that all persons are clear before starting
or moving equipment."
Although Inspector Summers stated that there was no
regulatory standard specifically prohibiting employees working on
moving equipment, he also stated that if he ever observed
employees on a walkway 36 feet above the ground while a piece of
equipment was moving, he would issue a section 107(a) imminent
danger order, even though the employees were protected
Page 46
~1715
by a handrail, because there would be a danger of falling from
the unstable walkway while the equipment was moving. Further, the
fact that the boom design was such as to permit free access to
employees while performing work on or from the walkway cannot
serve as a defense for failure by the employees to adhere to any
applicable mandatory safety standards while at their work
stations. By analogy, simply because a conveyor belt drive
mechanism is designed to permit free access to an employee while
servicing the belt does not absolve an operator from insuring
that the drive mechanism is guarded pursuant to the applicable
guarding standards.
Superintendent Woodson believed that section 77.1607(g)
applied to the crane but not to the boom, and his interpretation
of the standard is that it prohibited anyone from being on a load
that is lifted off the ground by a crane and into the air. The
crane operator was of the same opinion, and stated that at the
time of the accident, the boom was being moved laterally left and
right, and he was attempting to position it close to the cherry
picker.
The crane operator testified that the boom was lifted by the
crane some 5 to 6 inches to facilitate the removal of shoring,
and that after "tracking it" in a westerly direction, the boom
remained "dogged off" for approximately 5 hours while the
counter-weights were being lowered in place by another crane.
After the loading of the fifth counter-weight, he slacked the
crane off and then picked it up again to get his chokers taut.
In referring to the boom, foreman Patterson stated that "I
try to keep people off of anything like that, you know, as much
as possible" (Tr. 249). Mr. Patterson also indicated that when
the boom was lowered after the counter-weights were installed, he
instructed the three employees to walk down the walkway on the
opposite side of the boom where the accident occurred to check
the clearance, and then ordered them back to the end of the boom.
The boom was then "walked around" with the crane, and while it
was moving, the three men proceeded down the walkway where the
accident occurred following their previous instructions to hook
the choker to the cherry picker. Mr. Patterson indicated that the
three employees "had no choice" but to be there to install the
choker.
Austin Power suggests that the crane operator was constantly
monitoring the movement of the employees while on the moving
20Ämeter boom and that he was receiving signals throughout the
day. While it is true that the crane operator was receiving
instructions, and some hand signals were given
Page 47
~1716
during the course of the day, the crane operator testified that
the last signal he received from Mr. Smith was some 2Ähours
before the accident occurred (Tr. 156). Further, although the
crane operator confirmed that he knew the three employees were on
the moving boom while he was attempting to swing it around to the
cherry picker, he confirmed that his view was obstructed by the
boom, and that the employees were on the back side of the boom
and out of his line of sight while he was moving the boom with
the crane. The crane operator also admitted that he was
unfamiliar with any of the safety standards cited in these
proceedings, and while conceding in retrospect that the three
employees should not have been on the moving boom, he believed
that their presence there was an "acceptable risk."
Austin Power's arguments that section 77.1607(g), does not
apply to the facts of this case are rejected. I conclude that the
standard must be construed to insure the safety of the men while
on the moving boom which was being lifted and maneuvered about
during the course of the work shift in question. Based on the
evidence presented in this case, it seems clear to me that the
operator of the crane had the boom under load and under his
control while it was being lifted, lowered, and maneuvered about
laterally during the performance of the work. Under the
circumstances, I conclude and find that the crane operator had a
duty under the standard to be certain that the men were clear of
the boom which was attached to the crane before he moved it,
particularly in this case where the men were out of his line of
sight. I also conclude and find that foreman Patterson had a duty
to instruct the men to leave the end of the boom before the crane
operator proceeded to move it. Mr. Patterson admitted that the
men "had been out there once before the load started moving and
they were instructed to go back (Tr. 250). Under the
circumstances, I believe that Mr. Patterson recognized the hazard
presented while the men were on the moving boom, and while it is
true that someone had to be there to install the choker, I
believe that Mr. Patterson should have instructed the men to
remain clear of the boom until it stopped its movement, and then
allowed them to walk out to install the choker.
In view of the foregoing, I conclude that MSHA has
established a violation by a preponderance of the credible
evidence adduced in support of its case, and the citation IS
AFFIRMED.
Fact of Violation--Citation No. 2339412
Austin Power is charged with a violation of mandatory safety
standard 30 C.F.R. 77.1710(g), because three
Page 48
~1717
employees who were working on the elevated 20Ämeter boom walkway
some 36 feet off the ground were not tied off with safety lines.
Although the evidence establishes that the three employees had
safety belts and lines with them, none of them were tied off or
secured. Section 77.1710(g), provides as follows:
77.1710 Protective clothing; requirements.
Each employee working in a surface coal mine or in the
surface work areas of an underground coal mine shall be
required to wear protective clothing and devices as
indicated below:
* * * * * * * *
(g) Safety belts and lines where there is danger of
falling; a second person shall tend the lifeline when
bins, tanks, or other dangerous areas are entered.
During the course of the hearing, the inspector and MSHA's
counsel conceded that the two employees who were not engaged in
installing the choker at the time of the accident were not
required to be tied off pursuant to sections 77.1710(g).
Accordingly, I will confine my findings and conclusions to the
circumstances surrounding the positioning of the accident victim
on the walkway and whether or not he was in any danger of falling
requiring him to be tied off.
Two precedential cases involving the interpretation and
application of an identical safety belt standard as that
presented in this case (30 C.F.R. 57.15Ä5), are relevant in
these proceedings. In KerrÄMcGee Corp., 3 FMSHRC 2496, 2497
(November 1981), the Commission held that the purpose of the
standard is the prevention of dangerous falls. In Secretary of
Labor v. Great Western Electric Company, 5 FMSHRC 840 (May 1983),
the Commission followed a previously enunciated "reasonably
prudent person" test applied in Alabama ByÄProducts Corp., 4
FMSHRC 2128 (December 1982), and U.S. Steel Corporation, 5 FMSHRC
3 (January 1983). In the Great Western Electric Company case, at
5 FMSHRC 841Ä842, citing Alabama ByÄProducts Corp., at 4 FMSHRC
2129, the Commission stated as follows:
[W]e conclude that the alleged violation is
appropriately measured against the standard of whether
a reasonably prudent person familiar
Page 49
~1718
with the factual circumstances surrounding the allegedly
hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action
within the purview of the applicable regulation.
The Commission also stated as follows in the Great Western
Electric Company case, at 5 FMSHRC 842 and 843:
Great Western argues that the skill of a miner is a
relevant factor in determining whether there is a
danger of falling because the miner's skill defines the
scope of the hazard presented. We find that such a
subjective approach ignores the inherent vagaries of
human behavior. Even a skilled employee may suffer a
lapse of attentiveness, either from fatigue or
environmental distractions, which could result in a
fall. The specific purpose of 30 C.F.R. 57.15Ä5 is
the prevention of dangerous falls. KerrÄMcGee Corp., 3
FMSHRC 2496, 2497 (November 1981). By adopting an
objective interpretation of the standard and requiring
a positive means of protection whenever a danger of
falling exists, even a skilled miner is protected from
injury. We believe that this approach reflects the
proper interpretation and application of this safety
standard.
* * * * * * * * *
We conclude that, under the reasonable person test
appropriately applied to the standard, substantial
evidence supports the judge's finding of a danger of
falling and a violation. The miner was standing on a
ladder, his physical center of gravity was shifted to
one side and both of his hands were preoccupied with
installing a large light fixture. A slight shift in
balance or lapse of attention might have resulted in a
fall. In that event, the miner would not have been
protected. His position twelve feet above the ground
presented a substantial height from which to fall.
Although crane operator Crowell believed that the choker
located at the end of the boom was installed by Mr. Smith
Page 50
~1719
earlier in the day while the boom was resting on the cribbing, he
was not sure which one Mr. Smith was installing when the accident
occurred. Assuming Mr. Smith installed the choker at the end, Mr.
Crowell believed he could have done it while on his knees
reaching through the walkway mid-railing. Assuming Mr. Smith
installed the other choker, Mr. Crowell indicated that it could
be installed by lifting out the walkway grating and wrapping the
choker around the walkway framing. However, if it were done in
this fashion, Mr. Crowell believed that there was a chance of
falling through the walkway opening left by the removal of the
grating, and the person would be bent over into the opening. He
confirmed that he had installed chokers in this manner in the
past, but used a safety belt which was tied off.
Austin Power cited Mr. Crowell's testimony indicating that
the employees on the walkway were protected by a "shed," and that
they "would be like sitting in this chair tied off." While it is
true tht the walkway had an overhead roof, the fact remains that
the employes were not in a "shed" as that term is familiar to me,
but were on a walkway 36 feet off the ground protected by a
hand-rail which had openings between the railings. With regard to
Mr. Crowell's characterization of the positioning of the
employees as somewhat akin to sitting in a chair, he also
indicated that they would be tied off. He suggested that if one
were tied to the hypothetical chair and the leg broke, the fall
would not be great because "I would still be tied to it." In the
case at hand, the evidence establishes that while the employees
were wearing safety belts, none of them were tied off to prevent
them from falling off the walkway. As a matter of fact, Mr.
Crowell conceded that while he would not tie himself off while
simply walking along the boom walkway in question, he would do so
once he stopped and reached his work station.
With regard to Austin Power's comments regarding the
inspector's admission that he never wore a safety belt while
inspecting the boom, the inspector believed that such a belt was
only required while one was in danger of falling while performing
a particular job task placing himself outside the protective
handrails and not while merely walking down the walkway. Under
the circumstances, the inspector's admission is not particularly
relevant. The issue here is whether the accident victim Smith
placed himself in a precarious position, and whether he was in
danger of falling while performing work without being tied off or
secured with a safety line. Since MSHA has conceded that the
other two employees on the walkway were not required to be tied
off, my findings and
Page 51
~1720
conclusions here will be limited to the facts and circumstances
regarding Mr. Smith.
Foreman Patterson testified that immediately prior to the
accident he observed Mr. Smith kneeling on the walkway installing
a choker around the walkway framing and under the grating. Mr.
Patterson stated that he did not observe Mr. Smith actually lift
the walkway grating, but saw him reaching under the mid-railing.
He could not state how much of his body was actually through the
railing, and he confirmed that company policy requires an
employee to be tied off if he is outside the handrails. In these
circumstances, and based on his 30 years of experience, Mr.
Patterson did not believe that Mr. Smith was in any danger of
falling, nor did he believe that he was required to be tied off.
Mr. Arent, one of the employees on the boom with Mr. Smith
at the time of the accident, testified for MSHA on
direct-examination that he observed Mr. Smith bending over the
top of the handrail, with his hands beyond the railing and his
head "just barely out," as he was installing the choker on to the
end of the boom. On cross-examination, he changed his testimony
and indicated that Mr. Smith was on his knees reaching between
the middle and bottom handrail while tying another choker around
the framing of the walkway inby the end of the boom. Mr. Arent
believed that Mr. Smith's head was outside the handrail, but that
his head and shoulders were not (Tr. 173). Mr. Arent was of the
opinion that Mr. Smith would have been in danger of falling and
needed to be tied off if he were leaning over the rail, but if he
were on his knees reaching between the handrails he would be
better balanced and would not need to be tied off because he
would not be in any danger of falling.
A review of Mr. Arent's testimony reflects a degree of
uncertainty as to precisely where Mr. Smith was positioned
immediately prior to the accident, and his direct testimony that
Mr. Smith was at the end of the boom leaning over the railing
while installing a choker, is contradicted by his statement on
cross-examination by Austin Power that Mr. Smith was at another
location on his knees while installing a second choker. Austin
Power's counsel attributed Mr. Arent's contradictory testimony to
the fact that he was a subpoenaed MSHA witness, that he had never
testified in cases of this kind, and that he was nervious. When
asked to explain his contradictions, Mr. Arent responded "I don't
know. Just the way the question was asked" (Tr. 171). I have
reviewed the trial transcript and find that Mr. Arent's initial
response
Page 52
~1721
was in answer to a straightforward question asking him to
describe what he observed (Tr. 163).
Mr. Arent is a young man who impressed me as a credible
witness, and I find nothing in his demeanor to suggest that he
lied as to where Mr. Smith was positioned at the time of the
accident. Since he no longer works for Austin Power, and only
worked there for 6 months, he had nothing to gain by lying. Mr.
Arent was extremely nervous during his testimony, and considering
the fact that the accident occurred a year or so earlier, I find
his uncertainty and confusion understandable. Further, Mr.
Patterson's testimony that he observed Mr. Smith on his knees
near the choker which was tied to the walkway frame outby the end
of the boom corroborates and lends credence to Mr. Arent's belief
that Mr. Smith was not at the end of the boom, but at the
location further inby where the second choker was tied to the
walkway framing. Under the circumstances, I conclude and find
that the evidence adduced in this case establishes that at the
time of the accident, Mr. Smith was not at the end of the boom
leaning over the railing, but was on his knees inby the end of
the boom at the location where the choker had been tied to the
walkway frame as described by Mr. Arent and Mr. Patterson.
Mr. Patterson testified that Mr. Smith was on his knees
installing the choker around the walkway framing and under the
grating, but he did not see Mr. Smith actually pick up the
grating. Mr. Patterson also observed Mr. Smith reaching under the
mid-railing, but could not state whether his body was actually
through the railing. Mr. Arent testified that he observed Mr.
Smith on his knees and believed that his head was through the
railing, but that his shoulders were not. He also confirmed that
Mr. Smith had his safety line with him but was not tied off.
Crane operator Crowell testified that he often installed chokers
in the manner attributed to Mr. Smith, and he indicated that one
method of installing the choker would be to lift out the walkway
grating. However, if this were done, Mr. Crowell confirmed there
would be a danger of falling through the walkway opening and he
would be tied off.
In describing the method for installing the kind of choker
that Mr. Smith was installing while not tied off on the walkway,
Mr. Patterson likened it to the swinging of a piece of rope under
the walkway. He stated that Mr. Smith had tied the choker on and
intended to loop it under the walkway to the other side and then
catch it. He admitted that he was supervising Mr. Smith's work on
the boom from ground level, and while he did not give Mr. Smith
step-by-step
Page 53
~1722
instructions as to how to go about the task of rigging the choker
to the cherry picker, he conceded that Mr. Smith knew that the
choker was required to facilitate the movement of the boom.
After careful examination of the photographic exhibits and
the testimony in this case, I conclude that Mr. Smith's position
on the walkway while in the process of installing the choker in
question placed him in danger of falling. While on his knees, Mr.
Smith's hands were obviously occupied in attempting to swing or
loop the choker cable under the walkway to the other side. Mr.
Patterson indicated that Mr. Smith intended to catch the cable on
the other side. Mr. Smith would have had to act swiftly to swing
the cable over the edge of the walkway and then move quickly to
the other side to catch it. The testimony establishes that Mr.
Smith was reaching under the middle railing of the walkway and
that his head was beyond the railing. Mr. Smith was some 36 feet
off the ground while performing the choker task, and I believe
one can reasonably conclude that in the course of the work being
performed as testified to by Mr. Arent and Mr. Patterson, Mr.
Smith's body was partially outside of the railing. Since Mr.
Smith was on his knees reaching under the middle railing, I find
that the railing afforded him little protection and that he could
have lost his balance while attempting to swing the choker under
the walkway and fallen to the ground.
Under the circumstances here presented, I believe it should
have been clear to a reasonably prudent person that a danger of
falling existed and that Mr. Smith should have been tied off.
This is particularly true here, where the evidence establishes
that Mr. Smith was under the direct observation and supervision
of rigging foreman Patterson. I conclude that a reasonable and
prudent person in Mr. Patterson's position would have instructed
Mr. Smith to tie off while performing the work of installing the
choker in question.
Employees Arent and Crowell expressed ignorance of the MSHA
safety standards cited in these proceedings. Mr. Arent stated
that he knew he had to wear a safety belt and tie off and he
learned this from weekly safety meetings conducted by Mr. White.
Although Mr. Crowell indicated that he would tie off while at his
work station, he further indicted that if he were up on a steel
structure walking around without any walkway under him he would
not tie off while moving about on the structure (Tr. 152). When
asked why, he responded that "it is an acceptable risk." When
asked his opinion as to why Mr. Smith was not tied off, Mr.
Crowell responded that he was
Page 54
~1723
sure that Mr. Smith did not believe he was in any danger (Tr.
150).
Foreman Patterson testified that company policy dictates
that all employees who are required to perform work off ground
level must have their safety belts on. However, he was not
certain as to whether the policy requires the wearing of such
belts while on a catwalk with handrails and toeboards. With
regard to any policy requiring an employee to be tied off when
his work takes him outside the guardrail, Mr. Patterson stated
that this policy is communicated to employees through regular
tool box safety meetings. However, he did not know whether this
tie-off policy is in writing as part of the company safety rules,
but that the policy requires anyone in an "unsafe area" to be
tied off.
Superintendent Woodson confirmed that he is responsible for
safety compliance at Austin Power's job site, and he identified
copies of the tool box safety meetings conducted by company
supervisor Jim White, and a copy of Austin Power's safety rules.
However, Mr. Woodson confirmed that he does not personally
conduct the meetings, and Mr. White did not testify. Although Mr.
Woodson generally alluded to the fact that the use of safety
belts and lines are discussed at the safety meetings, he offered
nothing specific as to what detailed discussions may have taken
place, particularly with respect to the circumstances under which
employees are instructed to be tied off when working off the
ground. A review of the records of the safety tool box meetings
conducted by Mr. White simply reflects that safety lines,
lanyards, and lifelines were included as topics of discussion.
With regard to the company safety rules (exhibit RÄ6),
references to the use of safety belts and lines are found at the
following places indicated:
III A. 3 (pg. 2)--PERSONAL SAFETY EQUIPMENT--
Wear safety belt and tie
off in elevated areas not
protected by guard rails.
VII B. 1 (pg. 14)--SAFETY BELTS are required
to be worn and tied off when
working on: (g) Generally any
elevated work area that is
without protection to
prevent you from falling.
Page 55
~1724
VII D. 2 (pg. 16)--SCAFFOLDING--Personnel
must wear safety belts,
properly tied off, on any
scaffold platform not
equipped with standard
handrails or not
completely decked.
X E. 1 (pg. 28)--STABILITY CONTROLÄPERSONNEL,
MATERIALS, and EQUIPMENT.
You must insure that your
person, your material and
your equipment are safe from
unexpected movement--falling,
slipping, rolling, tipping, blowing
or any other uncontrolled motion.
1. Use Safety belts as required.
I find nothing in the company written safety rules that
specifically requires employees to be tied off when they are
working outside of handrails on an elevated walkway. As a matter
of fact, the rules which require the wearing of safety belts and
lines are only applicable in cases where an employee is working
in an area not protected by handrails, and while Rule X E. 1
requires an employee to insure that he is safe from falling, it
only requires that he use a safety belt as required. No mention
is made of being tied off or secured by a lanyard. Further, while
Rule E 7 requires the securing of tools, equipment and wrenches
against falling when working at heights, the securing of the
individual person against falling is not included. When viewed as
a whole, I conclude and find that an employee working on an
elevated walkway protected by handrails 36 feet off the ground
can reasonably conclude that under the company safety rules as
published he is not required to be tied off while performing work
on the walkway. Since the rules provide no specific requirements
that he tie off when his work requires him to lean over the
railing or reach through the railing, the decision to tie off in
those situations appears to be left to the discretion of the
employee.
In view of the foregoing, and on the facts of this case, I
find an absence of any specific guidelines or supervision on the
part of Austin Power with respect to the subject of actual fall
dangers confronting an employee while performing work outside of
the confines of the protective railing of the walkway in
question. Under the circumstances, I conclude that Austin Power
may not avail itself of the defenses noted
Page 56
~1725
in North American Coal Corp., 3 IBMA 93, 107, 1 MSHC 1130, 1134
(1974), and Southwestern Illinois Coal Corporation, 5 FMSHRC 1672
(1983), and its defense in this regard IS REJECTED.
In view of the foregoing findings and conclusions, I
conclude and find that section 77.1710(g) is applicable in this
case and that MSHA has established a violation. The citation IS
AFFIRMED.
Fact of Violation--Citation No. 2339413
In this instance, Austin Power is charged with a violation
of mandatory standards 30 C.F.R. 77.205(e) or 77.404(a), for
allegedly removing the 20Ämeter boom walkway floor plates or
grating clips or "hold-downs," thus rendering the walkways in
less than good condition. The cited standards provides as
follows:
77.404(a) Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be
removed from service immediately. (Emphasis added.)
77.205(e) Crossovers, elevated walkways, elevated
ramps, and stairways shall be of substantial
construction, provided with handrails, and maintained
in good condition. Where necessary toeboards shall be
provided. (Emphasis added.)
Superintendent Woodson suggested that during the
construction of the spreader in question, the boom walkway grates
need not be fastened or secured, but that once construction is
completed, they do. In my view, the evidence here has established
that the grating clips are necessary to preclude the walkway from
popping up or moving out of its track. Mr. Woodson indicated that
the grates are normally clipped, wired down, or welded in place
to insure against any movement. Under the circumstances, I
conclude that any failure to clip or secure the walkway grating
may indicate that the walkway is not being maintained in good
condition as required by section 77.205(e), notwithstanding the
fact that the grates are positioned in a track and held in place
laterally by angle iron. By the same token, failure to maintain
the walkway grates in a clipped or tied down position could also
result in the walkway being maintained in less than a safe
operating condition as required by section 77.404(a).
Page 57
~1726
Austin Power's suggestion that the walkway is not "a piece of
equipment" within the meaning of section 77.404(a), is not well
taken. The 20Ämeter boom is an integral part of the spreader, and
both the spreader and boom fall within the category of "mobile
and stationary machinery and equipment." The boom walkways are an
integral part of the boom, and they also fall within this broad
category as encompassed by the standard.
Austin Power maintains that the walkway grates were
inherently safe simply by resting in place within the steel
walkway framing protected from movement by angle irons which are
an integral part of the framework, and that the lack of hold-down
clips did not render the walkways unsafe or in less than good
condition. In support of this conclusion, Austin Power cites the
collective testimony of all of its witnesses who were of the
opinion that even if the walkway grates were not clipped or
secured in place, they were nonetheless safe.
Austin Power maintains that MSHA has advanced no credible
evidence to support the charge that the clips had been removed,
and argues that it was just as likely that the clips were
dislodged along with the grates after being subjected to the
violent whiplash force of the boom when it suddenly raised up and
propelled the men into the air after the eyelet cable failed.
Before reaching any conclusions as to whether or not the
lack of grating clips rendered the walkways unsafe or in less
than good condition, a determination must first be made as to
whether or not MSHA has advanced any probative or credible
evidence to support the charge that Austin Power removed the
grating clips, and that they were in fact removed and not in
place at the time of the accident.
In support of its allegation that the clips were removed by
Austin Power, MSHA relies on the testimony of Inspector Summers
and the investigation report which he authored. However, the
report is not evidence. The inspector's testimony regarding the
alleged removal of the walkways and clips, and the alleged
failure to resecure them, is based on his recitation of the
results of his investigation as found under the "Discussion and
Evaluation" portion of his report. Mr. Summers confirmed that he
took no written statements from any of the individuals he
interviewed during his accident investigation, and simply took
notes (Tr. 137Ä138).
In his deposition of April 25, 1986, Inspector Summers
stated that prior to the accident, it was his understanding
Page 58
~1727
that "the walkway grating and the rest of the material that forms
the catwalk, angle iron and everything, were in place" (Dep. Tr.
68). He also confirmed that during his investigation after the
accident he found walkway clips on the ground. When asked how he
knew that the grates which fell were not clipped prior to the
accident, he responded "from looking at the other grating along
the left-hand walkway" (Dep. Tr. 75). Referring to deposition
exhibit SÄ7, he then explained that the "other grating" which was
not clipped down was the grating located from "the end of the
picture back to the pivot point of the machine." He stated that
this grating was not totally secured by clips, and while it did
not fall to the ground when the accident occurred "some kind of
moved out of place" (Dep. Tr. 76).
Referring to his notes, deposition exhibit SÄ2, Mr. Summers
identified the 14 sections of walkway grating after the accident
and away from the scene of the accident which either had clips,
no clips, or clips which were not secured (Dep. Tr. 105Ä107).
Since the walkway grating on the right side of the boom was
clipped and not thrown to the ground, Inspector Summers simply
concluded that the walkway grates on the left side of the boom
which fell to the ground were not secured by clips (Dep. Tr. 77).
Mr. Summers testified that during his investigation, Mr.
Woodson, Mr. Arent, and the third person on the boom, Kevin
Saulsburg, told him that the walkway grates at the location where
the accident occurred had been removed and not resecured (Tr.
126Ä127). I have reviewed Mr. Summer's deposition and find no
mention of any of these individuals. I have also reviewed the
notes incorporated as part of the deposition, and find no mention
of any of these individuals. Nor do I find any references as to
who may have told Mr. Summers that the walkways and clips had
been removed and not resecured, or that they were removed for
painting. The only specific reference in the deposition on this
question is a statement by Mr. Summers that he was told that the
electrical people had removed the walkway or the clips in order
to have access to certain electrial equipment under the walkway
(Dep. Tr. 76).
Mr. Summers apparently made no effort to identify or contact
the individuals who may have done any electrical work or
painting, and MSHA's counsel apparently made no effort to call
any of these individuals to testify. I find it rather amazing
that the best evidence available during the investigation or
hearing with respect to the removal of the walkway
Page 59
~1728
grating and the failure to resecure it was not even pursued or
developed.
Inspector Summers confirmed that representatives of the
designer and manufacturer of the cross pit spreader were
available at the site during his investigation, but that he did
not interview or discuss the matter with them (Dep. Tr. 47). I
assume that these representatives were available for depositions
or subpoenas, and their testimony would be relevant to the issues
concerning the effectiveness of the grating clips, whether they
in fact secured the walkway to the steel framework of the boom or
simply tied one piece of walkway grating to the other, and
whether or not the force of the accident would have propelled the
grating out of its channel, regardless of any clipping. However,
none of these representatives were contacted by Mr. Summers
during his investigation, and none were called to testify at the
hearing.
Neither Mr. Arent or Mr. Woodson testified that they told
Inspector Summers that the walkway grates were taken up by
electricians or painters and not resecured. Mr. Arent testified
that while on the walkway, he paid no attention to the grates and
he could not state whether they were tied down or not (Tr. 164,
178). Mr. Patterson alluded to past instances in which the
walkway grates may have taken up by electricians or painters, but
in the case at hand, he stated that he was not aware that any
electricians had any work to do in the accident area, and was not
aware that the grates had been taken up (Tr. 201Ä202). Although
he conceded that the grates "probably" would not have popped out
if they were secured, and that someone "speculated" that the
plates on the other walkway did not pop up because they were
secured, he described the breaking of the eyelet cable as a
"gigantic whiplash effect, or like a fishing pole" (Tr. 207Ä208).
Mr. Woodson admitted that during the course of construction,
the grates are not always clipped down because ready access is
required to complete the construction and the grates are
inherently safe while snuggled into the iron framework channels.
He also stated that all of the grating in question was clipped
down "at one time" by putting extra people on this work and he
indicated that "it is good policy to get it all clipped down"
(Tr. 235). Mr. Woodson also stated that he was on the walkway 2
or 3 days before the accident and could not recall seeing any of
the clips removed. However, he did not walk to the end of the
boom at that time (Tr. 239). He indicated that when the grating
is lying within its framework "it is just like one of those
manholes in the street that you drive across every day" (Tr.
248).
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~1729
Austin Power's counsel maintained that the grating clips are not
designed to withstand major forces such as occurred in this case
when the eyelet cable broke. He stated that the clips are not
substantial pieces of equipment, and that they "are just to keep
the things from moving one way or the other" (Tr. 246Ä247). He
also indicated that no one knows what was clipped and what was
not.
Inspector Summers characterized the sudden raising of the
boom after the eyelet failed as a "sling shot" which tossed the
three men and the walkway plates into the air (Dep. notes,
exhibit SÄ2). He confirmed that he had no idea as to whether the
force exerted by the boom was evenly distributed on both sides,
and no such determination was apparently made during the
investigation of the accident (Tr. 125). When asked why the
remaining grating on the left walkway further back from the
accident location did not fall to the ground (even though some
were clipped down and others were not), he stated that this back
area was subjected to a less violent action of the boom when the
eyelet failed, and that is why they did not fall out (Tr. 124).
This lends credence to Austin Power's argument that the violent
action of the boom at the end of the walkway where the accident
occurred may have caused the clips to be knocked loose.
After careful review and consideration of all of the
testimony and evidence with respect to this citation, I conclude
and find that MSHA has failed to produce any credible probative
evidence to support the charge that Austin Power removed the
walkway clips in question or that the walkways where the accident
occurred were not secured by clips immediately before that
accident. Under the circumstances the citation IS VACATED.
History of Prior Violations
Exhibit PÄ4, is a computer print-out listing Austin Power's
civil penalty assessment record for the period August 19, 1983
through August 18, 1985. That record reflects that Austin Power
paid civil penalty assessments in the amount of $450 for two
citations, none of which are for violations of any of the
standards cited in these proceedings. I conclude that Austin
Power has a good safety compliance record, and I have taken this
into account in assessing the civil penalties for the citations
which have been affirmed.
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Size of Business and Effect of Civil Penalty on Austin Power's
Ability to Continue in Business
Superintendent Woodson stated that 30 employees were
employed at the mine site in question (Tr. 210), and the parties
stipulated that 41,012 man-hours were devoted to Austin Power's
mining activities in 1985. Although Austin Power's counsel
indicated that 700 employees work for the company, he explained
that Austin Power's principal business is the construction of
power plants, which is not normally considered "mining
activities" under the Act (Tr. 13). Under the circumstances, for
purposes of these proceedings, I conclude that Austin Power is a
small mine operator, and this is reflected in the civil penalties
assessed for the violation in question. Austin Power stipulated
that the penalties proposed by MSHA will not adversely affect its
ability to continue in business (Tr. 188). I conclude that the
penalties assessed by me for the citations which have been
affirmed will likewise not adversely affect Austin Power's
ability to continue in business.
Good Faith Compliance
The parties stipulated that Austin Power demonstrated good
faith in achieving rapid compliance after notification of the
violations in question. I adopt this as my finding and conclusion
on this issue, and it is reflected in the civil penalty
assessments which I have made.
Negligence
I conclude that the violations which have been affirmed
resulted from Austin Power's failure to take reasonable care to
insure compliance with mandatory safety standard section
77.1607(g) and 77.1710(g), and that this failure on its part
constitutes ordinary negligence. With regard to the safety line
violation, since Mr. Patterson was supervising Mr. Smith's work
on the boom and had him in view while in a position which placed
him in danger of falling, Mr. Patterson had a duty to either
order Mr. Smith away from his work location or instruct him to
tie off.
With regard to the crane operator's failure to insure that
the employees were clear of the boom, since the crane operator
did not have the employees in view but knew they were on a moving
boom performing work, he had a duty to insure that they were
clear of the area before attempting to maneuver the boom with his
crane. Had Mr. Smith been ordered away from the end of the boom
or instructed to tie off his
Page 62
~1731
safety line, he may not have fallen 36 feet and been killed when
the eyelet failed.
I am not unmindful of the fact that the accident victim
Smith had a safety lanyard with him, but failed to tie off. I am
also cognizant of the fact that the accident which resulted in
the death of Mr. Smith resulted from an unpredicted and
unexpected failure of the eyelet. I have considered all of these
factors in mitigating the civil penalties that I have assessed
for the violations which have been affirmed.
Gravity
I conclude and find that the failure by Austin Power to
insure that Mr. Smith and the other employees were clear of the
boom while it was being moved, and to insure that Mr. Smith was
tied off before proceeding with his work tasks constitute serious
violations of the cited safety standards.
Significant and Substantial Violations
Inspector Summers found that the violations of sections
77.1607(g) and 77.1710(g) were significant and substantial
violations. I agree with these findings, and conclude that the
violations were significant and substantial. I believe the
violations were contributing factors to the fatal injuries
suffered by Mr. Smith. Even if the unexpected accident had not
occurred, I would still find that the failure to insure that the
employees were clear of the boom while it was being moved and the
failure of Mr. Smith to tie off while in danger of falling
presented a hazard and a reasonable likelihood of serious
injuries.
Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section 110(i) of the
Act, I conclude that the following civil penalty assessments are
appropriate and reasonable in these proceedings:
Citation No. Date 30 C.F.R. Section Assessment
2339411 8/20/85 77.1607(g) $ 2,000
2339412 8/20/85 77.1710(g) $ 2,500
Page 63
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ORDER
Austin Power IS ORDERED to pay civil penalties in the
amounts shown above, and payment is to be made to MSHA within
thirty (30) days of the date of this decision. Upon receipt of
payment, the civil penalty proceeding is dismissed.
Citation No. 2339413, August 20, 1985, for an alleged
violation of 30 C.F.R. 77.205(e) or 77.404(a), IS VACATED, and
MSHA's proposed civil penalty assessment IS DISMISSED. Austin
Power's Contest of this citation, Docket No. CENT 86Ä61ÄR, IS
GRANTED.
Austin Power's Contests of Citation Nos. 2339411 and
2339412, Docket Nos. CENT 86Ä59ÄR and CENT 86Ä60ÄR, ARE DENIED
and DISMISSED.
George A. Koutras
Administrative Law Judge
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