Fleniken's Sand and Gravel, Incorporated

Plain-English summary

Fleniken's Sand and Gravel received a citation after an inspector observed that a dredge operator was not wearing a life jacket while working on a sand and gravel dredge. Judge George A. Koutras found that the Secretary had not shown a credible factual basis that the operator was in danger of falling into the water, particularly because the deck was dry, guarded, and designed to reduce slipping and the operator's work areas were away from the perimeter. He also found that the inspector's interpretation would effectively require life jackets whenever an employee worked on the dredge deck, even though the cited standard required one only where there was a danger of falling into the water. The citation was vacated, the proposed $46 penalty was rejected, and the case was dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.15020
• Outcome: Citation No. 2866525 was vacated, the proposed $46 penalty was rejected, and the case was dismissed.
• Key point: A life-jacket requirement under 30 C.F.R. § 56.15020 must be supported by evidence of a danger of falling into the water.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. FLENIKEN'S SAND & GRAVEL
DDATE:
19881102
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 88-26-M
PETITIONER A.C. No. 16-01068-05504
v.
Fleniken Pit
FLENIKEN'S SAND AND GRAVEL,
INCORPORATED,
RESPONDENT

                               DECISION

Appearances: James A. Wirz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Lyman Fleniken, President, Fleniken's Sand and
Gravel, Clinton, Louisiana, for the Respondent.

Before: Judge Koutras

                        Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a). Petitioner seeks a civil penalty assessment in the amount
of $46 for an alleged violation of mandatory safety standard 30
C.F.R. 56.15020. The respondent filed a timely answer
contesting the alleged violation, and a hearing was convened in
Baton Rouge, Louisiana. The parties waived the filing of any
posthearing arguments, but I have considered their oral arguments
made on the hearing record in my adjudication of this matter.

                                Issues

 The issues presented in this case are (1) whether the

conditions or practices cited by the inspector constitute a
violation of the cited mandatory safety standard, (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found

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in section 110(i) of the Act, and (3) whether the violation was
"significant and substantial." Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

         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, 29 C.F.R.   2700.1 et seq.

                           Discussion

 Section 104(a) "S & S" Citation No. 2866525, issued by MSHA

Inspector Kenneth N. McCleary on September 9, 1987, cites a
violation of mandatory safety standard 30 C.F.R. 56.15020, and
the condition or practice is described as follows:

      While talking to the dredge operator and loader
      operator, a life jacket is not worn while performing
      duties on the dredge boat. The railing around the
      perimeter of the boat is approximately 36" high, the
      dredge operator at times works in a kneeling position,
      therefore could accidently fall into the water. The
      water is 25Ä30 ft. deep and approximately 75 ft. to
      shore. The dredge boat platform sets about 3 or 4 ft.
      above the water with no hand holds to help him get out
      of the water. The dredge operator works alone.

Petitioner's Testimony and Evidence

 MSHA Inspector Kenneth N. McCleary, Sr., testified as to his

experience and training, and he confirmed that he inspected the
respondent's dredge on September 9, 1987, and issued the citation
in question. The dredge was located 75 to 100 feet from the shore
of a 20Ä25 foot deep lake where it was pumping sand and gravel
through a pipeline into a separator located on shore. Mr.
McCleary stated that he motioned to the dredge operator from
shore, indicating that he wished to come aboard for an
inspection. The operator came down out of his control tower, put
on a life jacket, and got into a rowboat and came ashore to pick
him up. They went back to the dredge, and the operator took off
his life jacket and went back up into the control tower (Tr.
8Ä13).

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Mr. McCleary described the duties of the dredge operator, and
stated that they included the changing of engine oil, turning the
engine on and off, and keeping the deck clean. The life jacket
was kept on a hook at the base of the control tower, and the
dredge operator advised him that he did not wear his life jacket
at all times while performing duties on the dredge. Mr. McCleary
confirmed that his inspection took an hour, and during this time,
the operator was in the control tower and was not wearing the
life jacket (Tr. 14Ä15).

 Mr. McCleary stated that the metal dredge decks become slick

during the rainy season, and a person could possibly fall into
the water. If he did, it was doubtful that he could get back to
shore in time. Mr. McCleary described the dredge, and stated that
it was rectangular in size, resting on pontoons, with two diesel
engines on it for pumping sand and gravel. He drew a rough sketch
of the dredge, and indicated that one engine was located
approximately 2 to 3 feet from the dredge perimeter, and the
second engine was no more than 3 feet from the perimeter. He also
located the position of the engine start-stop switches on the
dredge, and indicated that they were located 3 to 4 feet from the
perimeter. There was a 36 inch high cable handrail installed
around the perimeter of the dredge deck, and the dredge was
situated approximately 3 to 4 feet out of the water, and there
were no hand holds on the sides (Tr. 15Ä2, exhibit GÄ1).

 Mr. McCleary confirmed that the operator performed no work

on the deck while he was conducting the inspection, but advised
him that his normal duties included the washing down of the deck
to remove any excess oil spill, and this would be done once or
twice a day on some occasions. Although he made no determination
as to whether or not the operator's duties included the changing
of engine oil, Mr. McCleary assumed that this would be done since
most operators assist maintenance crews in the changing of oil.
He did not determine whether the operator in fact changed the
oil. The operator would stop and start the engines at the
beginning and end of the shift.

 Mr. McCleary believed that a wet and slick deck presented a

strong possibility that the operator could slip on the deck while
washing it down. If he bumped his head or was possibly knocked
unconscious, he could fall into the water. He could also slip and
fall under the handrail and would have nothing to hold on to. If
the operator were in a kneeling position while wiping or cleaning
up oil spills, this would expose him even more to the possibility
of falling into the water. The hand rail would not prevent the
operator from falling overboard because he could slip under it
and could not reach it

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while slipping into the water. The operator would be positioned
between the engines and the dredge perimeter while washing down
the deck area around the engines. The barge had no hand holds on
its sides so that someone who fell into the water could grab and
possibly get back on to the deck. Mr. McCleary confirmed that
there are no MSHA standards requiring hand holds (Tr. 22Ä32).

 Mr. McCleary believed that due to the rainy season in

Louisiana, barge decks become wet and slick, and it was highly
likely that the dredge operator could fall off the barge and into
the water, and that his job duties would contribute to a greater
hazard exposure. In the event the operator struck his head on the
engine, deck, or handrail support poles, he could be knocked
unconscious, and without a life jacket on, he would probably
drown if he fell overboard. A life jacket would keep him afloat
if he were unconscious. Mr. McCleary confirmed that the dredge
operator worked alone, and since the engines produce quite a bit
of noise, he believed that any cries of help from the operator
would not be heard from the shore (Tr. 32Ä35). Based on all of
these considerations, Mr. McCleary believed that the violation
was "significant and substantial" (Tr. 36).

 Mr. McCleary confirmed that he made a finding of "low

negligence" because the respondent had not previously been cited
for a violation of section 56.15020, during seven prior
inspections conducted during the period October, 1985 through
September, 1987 (Tr. 36Ä37, exhibit GÄ2).

 On cross-examination, Mr. McCleary confirmed that the dredge

was clean on the day of his inspection, and he believed that the
deck was smooth "on the operator's side." He agreed that a
diagram and sketch made by Mr. Fleniken depicting the side view
of the dredge, with the positioning of the engines, operator's
cabin, pump, handrails, and ladder leading to the cabin was
accurate. Although Mr. McCleary stated that he could not recall
the positioning of the engines, he had no reason to question the
sketch, and Mr. Fleniken confirmed that all of his dredges are
constructed as shown (Tr. 46Ä48).

 Mr. McCleary confirmed that the dredge operator was in no

danger of falling into the water while in his control booth, and
would not be required to wear a life jacket while in the booth.
Once the operator left the booth and started down the ladder, he
would not be in danger of falling into the water because there
was a double handrail on the ladder way. He also confirmed that
he issued the citation on the basis of what the dredge operator
told him concerning his work duties,

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and that the cited standard does not per se require the wearing
of a life jacket at all times while work is being performed on
the dredge. The standard only requires a life jacket where there
is a danger of falling into the water (Tr. 59Ä60).

 In response to a question as to the absence of any danger of

falling while the operator was performing duties on the deck of
the dredge, Mr. McCleary responded that "the only time that there
would be a danger of falling would be performing duties around
the perimeter of the dredge" (Tr. 60). Mr. McCleary did not
observe the operator walking around the perimeter of the dredge
while he was there, nor did he observe him checking the engines.
Mr. McCleary believed that if the operator were walking around
the deck inspecting the engines, he would be required to wear a
life jacket (Tr. 61Ä62).

Respondent's Testimony and Evidence

 Respondent's president, Lyman Fleniken, disputed the

location of one of the engines drawn on the sketch by Inspector
McCleary, and he indicated that it was positioned parallel to the
perimeter of the dredge, rather than perpendicular as shown on
the sketch. Mr. Fleniken also stated that the rear engine was
located 6 feet from the edge. He drew a sketch of the dredge,
with the equipment in place (exhibit RÄ1, Tr. 42Ä44). Inspector
McCleary confirmed that he made no notes or diagrams at the time
of his inspection (Tr. 42Ä43).

 Mr. Fleniken stated that the deck of the dredge is

constructed of "diamond plate," and that "it's like perforation
up and down the platform that you use so that you do not have a
skid. The skid factor is greatly reduced" (Tr. 50). Inspector
McCleary confirmed that he could not recall the "diamond
plating," and indicated that the deck on the operator's control
side was a smooth surface. He described this location as the area
near the ladder leading to the control booth. Mr. McCleary also
stated that the rest of the deck around the dredge perimeter was
"probably rigid is the best I can remember" (Tr. 52).

 Mr. Fleniken stated that the operator's cabin is enclosed

with a door, and is equipped with a double guard rail. He
confirmed that the dredge operator had been instructed to wear a
life jacket when he comes down the ladder to the lower deck to
adjust the tail and head rope, but he is not requested to wear
the jacket while he is involved in duties on the deck itself (Tr.
51). He also indicated that depending on the amount of diesel
fuel in the back engine compartment, the dredge would sit deeper
in the water. Conceding that someone

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could slip under the guardrail, Mr. Fleniken believed that if
someone fell into the water, he would only have to reach up 2
feet, rather than 4 feet, to grab the edge of the dredge (Tr.
50).

 Mr. Fleniken stated that the dredge was built in components,

and that the main decking area containing the engines and pump is
12 feet wide. Pontoons are located on both sides of the decking
area, and they are 6 feet wide and 38 feet long. The guard rail
is positioned all the way around the outside of the dredge. Given
the width of the pontoons, a person would be 6 feet from the edge
of the water while at one engine location, and 4 feet from the
edge at the other engine location (Tr. 53).

 Mr. Fleniken stated that he has been inspected four times

during the past 2 years and that no other inspector has indicated
that he needs an additional guard rail, or that a life jacket was
required to be worn if one steps outside the guard rail. He was
told that the operator did not have to wear a life jacket while
inside the enclosed cabin house (Tr. 51). Mr. Fleniken stated
that prior to Mr. McCleary's inspection, no other inspector
requested him to install a mid-rail in addition to the existing
guardrail, and although Mr. McCleary did not require him to
install a mid-rail, he told him to either install a mid-rail or
require the dredge operator to wear a life jacket the entire time
he is on the lower deck. Mr. McCleary confirmed that this was
true, and that the citation was abated by requiring the operator
to wear a life jacket while performing duties around the deck of
the barge (Tr. 56). Mr. Fleniken confirmed that he has now
instructed the operator and maintenance personnel to wear a life
jacket while on the lower deck hosing it down, changing oil, or
performing maintenance and repair work (Tr. 55).

 Inspector McCleary confirmed that in the event the

respondent opted to install a mid-rail to the existing hand-rail
around the perimeter of the dredge, there would be no requirement
for the wearing of a life jacket. He also stated that "there are
no standards regulating mid-rails, but we have accepted those in
the past" (Tr. 57). Mr. Fleniken believed that the installation
of a mid-rail would be a foot and one-half above the dredge
decking, and it would be just as likely that someone could slip
under that rail (Tr. 58).

 Mr. Fleniken pointed out that contrary to Mr. McCleary's

sketch, the oil plugs for changing the engine oil are located on
the inside of the engines as shown on exhibit RÄ2, rather than
the outside between the dredge perimeter and engines.

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Mr. McCleary confirmed that he did not see where the oil plugs
were located (Tr. 53Ä54). Mr. Fleniken also confirmed that the
entire dredge deck is diamond plated, even up to the cabin house,
and that is the way he constructed the dredge (Tr. 54).

 Mr. Fleniken confirmed that the dredge operator's job

description includes duties such as keeping the decks clean, and
occasionally helping out in changing oil and performing
maintenance. He also confirmed that a life jacket was available
for the operator, and that he wore it while going back and forth
from the dredge to shore in a paddle boat (Tr. 77Ä78).

 Mr. Fleniken confirmed that he personally constructed the

dredge approximately 3 or 4 years ago. His employees are not
instructed to wear any particular type of shoes while working on
the dredge, but that most of them wear "work boots." No employee
has ever informed him that they had ever slipped on the dredge,
nor have they ever expressed a concern for their safety. A water
hose is used to wash down the deck, and it can reach all areas of
the deck, including the engines. He conceded that the metal deck
of the dredge is slicker when it is wet, and that one has to be
careful when it is wet. However, he knows of no one slipping or
injuring themselves on the deck, and no oil spills have ever
occurred on the deck. Any oil spilled during changes is soaked up
by a powder solution, and then hosed down. No one has ever
slipped and fallen into the water from the dredge. Although
people have slipped into the water from a boat while connecting
the pipeline together, life jackets were always worn in these
instances (Tr. 85).

                    Findings and Conclusions

Fact of Violation

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 56.15020, which requires the wearing
of life jackets or belts where there is a danger of falling into
water. In order to establish a violation, the petitioner has the
burden of proof to establish by a preponderance of the credible
and probative evidence that the cited employee was not wearing a
life jacket while performing certain work duties which may have
placed him in danger of falling into the water. In this case, the
inspector issued the violation on the basis of several
assumptions and conclusions which he made through observations of
the barge and its equipment, general weather conditions, and a
brief conversation with the dredge operator, during which the
operator informed

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him that he did not wear a life jacket at all times while
performing work on the dredge which was located approximately 100
feet from shore on a 20Ä25 foot deep lake where the dredge was
pumping sand and gravel to shore through a pipeline.

 The evidence establishes that the dredge was equipped with a

life jacket which was hung on a hook at the base of a stairway
leading to the dredge operator's control booth. The operator put
the life jacket on when he went ashore with a boat to bring the
inspector to the dredge so that he could inspect it, but took it
off and hung it back at the stairway location after the inspector
came aboard. After a brief conversation with the inspector, the
operator returned to his control booth without the life jacket
and remained there until the inspector completed his inspection.
The dredge operator was not called to testify in this case, and
the petitioner relies on the testimony of the inspector in
support of the alleged violation. The respondent relies on the
testimony of its owner and mine operator who designed and
constructed the dredge, and who was thoroughly familiar with its
operation.

 The inspector confirmed that he made no notes or sketches at

the time of his inspection. Although he confirmed that he could
not recall the positioning of the engines on the dredge, during
the hearing he presented a sketch showing the two engines
parallel to the handrail which was installed along the perimeter
of the deck, and he indicated that that the engine oil changing
plugs were located on the outside of the engines 4 feet from the
handrail. If this were true, it would place anyone kneeling and
changing oil in the area between the engines and the handrail,
thus exposing him to a possible hazard if he were to slip or fall
under the handrail and into the water.

 Mr. Fleniken, who designed and constructed the dredge,

testified that one of the engines was perpendicular to the
handrail, that the oil change plugs were located to the inside of
the dredge engines, and that the dredge rested on pontoons
(exhibit RÄ2). The inspector confirmed that he had no reason to
question Mr. Fleniken's testimony, which I find to be more
credible and probative than the inspector's. Mr. Fleniken's
testimony also refutes the inspector's belief that anyone
changing the oil would be in danger of falling into the water if
he were to slip or fall while performing this work. In light of
the inspector's belief that the only time anyone would be in
danger of falling would be while working around the perimeter of
the dredge, I find no basis for concluding

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that anyone changing or cleaning up oil around the engines would
be in danger of falling into the water.

 The inspector agreed that the dredge operator would not be

in any danger of falling into the water while in his control
booth, and would not be required to wear a life jacket while in
the booth. The inspector also agreed that no life jacket would be
required to be worn when the operator left his booth and started
down the access ladder to the dredge deck because there was a
double handrail at that location to prevent him from falling
overboard. The inspector was concerned about the absence of
double, or mid-rails, around the perimeter of the dredge to
prevent anyone from slipping under the rail into the water, and
the absence of hand-holds on the side of the dredge, which the
inspector believed could be grabbed by anyone falling overboard.
However, the inspector conceded that MSHA has no standards that
require mid-rails or hand-holds to be installed on a dredge. In
my view, if MSHA believes that such safety devices are necessary
to prevent persons from falling off a dredge operating over
water, it should promulgate standards covering this hazard.
Requiring a miner operator to comply with a safety jacket
standard as a matter of expediency or convenience in order to
address what an inspector may perceive to be hazards associated
with the lack of hand-holds or mid-rails can only lead to
confusing and contradictory enforcement judgments by different
inspectors, and gives little guidance or notice to a mine
operator as to what may be required for compliance.

 In the instant case, the inspector admitted that he required

the respondent to either install a mid-rail around the entire
perimeter of the dredge, or to require his employees to wear life
jackets during the entire time they are on the deck of the dredge
performing any work. The citation was abated after the respondent
instructed his employees to wear life jackets at all times while
working on the deck, notwithstanding the fact that the standard
only requires the wearing of a life jacket where there is a
danger of falling into the water. Followed to its logical
conclusion, and on the facts of this case, it seems obvious to me
that the inspector's interpretation of section 56.15020, is that
life jackets are to be worn at all times while an employee is
working on a dredge deck, regardless of any objective finding as
to whether or not the employee is in danger of falling into the
water.

 I find the inspector's position in this case to be rather

contradictory. He conceded that he did not observe the dredge
operator walking around the perimeter of the dredge, and did not
observe him go near the engines to inspect them, service

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them, or change the oil. Yet, he concluded that the operator
would be required to wear a life jacket if he were inspecting the
engines or changing oil or cleaning up any oil spills, even
though he believed that the only time there would be a danger of
falling into the water would be when someone would be working
around the perimeter of the dredge. In this case, the engines
were located on the deck some 6 feet from the perimeter guarded
by a handrail, with pontoons on both sides, and with the oil
change plugs to the inside of the deck away from the perimeter of
the deck.

 With regard to the inspector's concern about someone

slipping on a wet deck during the "rainy season," and possibly
striking their head and falling into the water, this could occur
at anytime. However, in this case, there is no evidence that the
deck was wet or slick at the time of the inspection, and in fact
the inspector confirmed that it was dry and clean. Further, Mr.
Fleniken's testimony, which I find credible, reflects that the
surface of the entire deck was constructed of "diamond plate," or
perforated materials, so as to the reduce the likelihood of any
skidding. Mr. Fleniken also indicated that any oil spills are
controlled by means of a soaking powder, and that the deck is
washed down by means of a water hose which can reach any surface
area of the deck. The inspector could not recall the perforated
decking material, and believed that part of the decking around
the operator's compartment was smooth, and that the rest was
"rigid." Since the inspector took no notes when he inspected the
dredge, and was unsure as to the construction of the decking, I
give more credence to Mr. Fleniken's testimony since he designed
and built the dredge himself and he impressed me as a credible
and straightforward witness.

 After careful review and consideration of all of the

testimony and evidence adduced in this case, I cannot conclude
that the petitioner has established that the prevailing
conditions at the time of the inspection presented a hazard to
the operator falling overboard into the water without a life
jacket. On the facts of this case, it seems clear to me that the
inspector's conclusion that the operator was in danger of falling
overboard was based on the inspector's unsupported speculations
and assumptions that anyone performing any kind of work on the
deck of the dredge would ipso facto be placed in jeopardy of
falling overboard. Given the language of the standard, I cannot
come to this conclusion. In order to establish a violation, I
believe it is incumbent on the petitioner to establish a
reasonable credible and probative factual basis to support a
conclusion that there was a danger of someone falling into the
water. I find no credible evidentiary basis

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for such a conclusion in this case. Under the circumstances, I
conclude and find that the petitioner has failed to establish a
violation, and that the citation should be vacated.

                             ORDER

 In view of the foregoing findings and conclusions, Citation

No. 2866525, September 9, 1987, citing an alleged violation of 30
C.F.R. 56.15020, IS VACATED, and the petitioner's proposed
civil penalty assessment is REJECTED. This case IS DISMISSED.

                             George A. Ko%21utras
                             Administrative Law Judge