Blue Circle Atlantic, Incorporated
Blue Circle Atlantic, Incorporated (FMSHRC CENT 88-76-M): Barricade violation affirmed
Apply this to your situation
This order from 1989 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
MSHA cited Blue Circle Atlantic after an unsecured propane cylinder and hand truck were left on a pitched roof above an unbarricaded roadway and conveyor walkway at its Tulsa plant. Judge George A. Koutras found that the materials created a safety hazard that was not immediately obvious to employees and that the company violated the barricade and warning-sign standard. He also affirmed the significant and substantial designation and found moderate negligence. The judge assessed a $150 civil penalty.
Decision snapshot
- Cited standard: 30 C.F.R. § 56.20011
- Outcome: The citation and its significant and substantial designation were affirmed, with a $150 civil penalty.
- Key point: Areas exposed to an unobvious falling-object hazard must be barricaded or marked, even when no roofing work is occurring at the precise time of inspection.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. BLUE CIRCLE
DDATE:
19890103
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 88-76-M
PETITIONER A.C. No. 34-00026-05515
v. Tulsa Plant
BLUE CIRCLE ATLANTIC,
INCORPORATED,
RESPONDENT
DECISION
Appearances: Mary Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Robert McCormac, Industrial Relations Manager,
Blue Circle Incorporated, Tulsa, Oklahoma, for
the Respondent.
Before: Judge Koutras
Statement of the Case
This proceeding concerns a proposal for assessment of civil
penalty filed 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). The petitioner seeks a civil penalty
assessment of $147, for an alleged violation of mandatory safety
standard 30 C.F.R. 56.20011, as stated in a section 104(a)
"S&S" Citation No. 3061188, served on the respondent by MSHA Mine
Inspector Jimmie L. Jones on November 20, 1987.
The respondent filed a timely notice of contest and answer
denying the violation and a hearing was held in Tulsa, Oklahoma.
The parties waived the filing of written posthearing arguments,
but I have considered their oral arguments made in the course of
the hearing in my adjudication of this matter.
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Issues
The issues presented are (1) whether the respondent violated
the cited standard, and if so, the appropriate civil penalty
which should be assessed taking into account the civil penalty
assessment criteria found in section 110(i) of the Act; and (2)
whether the alleged violation was "significant and substantial"
(S&S). 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, 30 U.S.C.
801 et seq
2. Commission Rules, 29 C.F.R. 2700.1, et seq.
3. Mandatory safety standard 30 C.F.R. 56.20011.
Stipulations
The parties stipulated to the following relevant matters
(Tr. 4-6):
1. The respondent is subject to the jurisdiction of the
Act, and the alleged violation took place in or
involves a mine that has products which enter or affect
commerce.
2. The subject mine is located near Tulsa, Rogers
County, Oklahoma, and had an annual production rate of
242,098 tons or hours worked. The size of the
respondent's operation is 1,568,568 production tons or
hours worked per annum.
3. The imposition of a civil penalty assessment for the
alleged violation will not adversely affect the
respondent's ability to continue in business.
4. The total number of inspection days for the 24-month
period preceding the issuance of the subject citation
is 42, and the total number of assessed violations for
this time period, including single penalty assessments,
is 13.
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5. The citation in question in this case was immediately abated
by the respondent.
Discussion
Section 104(a) "S&S" Citation No. 3061188, November 20,
1987, cites an alleged violation of mandatory safety standard 30
C.F.R. 56.20011, and the condition or practice is described as
follows:
There was no barricades or warning signs along the
perimeter and approaches into the mill building where
employees travel. A roofer contractor was working 75
feet above where rolls of roofing material, 5 gal.
pails, large propane gas cylinders and other materials
were being used and handled. The roof sloped about 3/12
and would easily allow dropped items to fall to ground
level.
Petitioner's Testimony and Evidence
MSHA Inspector Jimmy L. Jones testified as to his background
and experience, and he confirmed that he issued the contested
citation on November 20, 1987, at the respondent's cement plant
and limestone quarry site. He explained that he was at the site
conducting a special investigation of a discrimination complaint,
and that prior safety complaints had been made by mine personnel
against the roofing contractor who was performing work at the
mine. During the course of his interview with an employee foreman
of the respondent on November 20, the employee advised him that
he had observed the contactor's truck on the premises that day
and that the contractor was there to do some work. Mr. Jones and
respondent's industrial relations manager Robert McCormac then
went to the mill building and went up on the roof.
Mr. Jones stated that no one was working on the roof on
November 20, but that he observed some roofing material and
equipment left there by the roofing contractor who was re-roofing
the mill building roof. Mr. Jones stated that the roof was
approximately 50 to 75 feet high and several hundred feet long.
He identified exhibits P-1 and P-2 as sketches that he made of
the roof area, and he described the materials which he found on
the roof as rolled roofing material, 5 gallon pails of mastic
material, a homemade hand-truck, a 20 pound propane bottle
cylinder, and a 60 pound propane bottle cylinder. Mr. Jones
confirmed that respondent's photographic exhibits J-1 and J-2,
are photographs of the mill
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building in question, and the roof after the re-roofing work was
completed.
Mr. Jones stated that a portion of the roof work had been
completed on November 20, but that the roof area where he
observed the materials and equipment in question had not been
finished. He stated that the 60 pound propane bottle and
hand-truck were not secured or tied down, and he was concerned
that the propane bottle could fall over and roll off the roof and
strike a passing vehicle or service or maintenance personnel
walking along the conveyor walkway below the roof. The roof
peaked at the center, and had a 3/12 pitch. He believed that
winds could have toppled the propane bottle and caused it to fall
over and roll off the roof to the ground below. If the bottle
struck a vehicle, it would cause serious damage, and if it struck
anyone it would result in injury. There was also a chance of the
propane bottle valve striking the ground, and if this occurred,
the bottle could become airborne and cause injuries or damages if
it struck personnel or vehicles (Tr. 8-24).
Mr. Jones believed that the hazard presented by the
unsecured propane bottle on the roof would not be obvious to
anyone travelling on foot in the area below the roof or a vehicle
using the roadway. He observed no barricades or warning signs
blocking off the walkway or roadway below the roof area in
question. However, in another roof area where the contractor had
worked on a flat-roof section removing old roofing material and
concrete, and had dumped these materials off the side of the
roof, the area below had been barricaded and tied off by
55-gallon drums and yellow marking tape.
Mr. Jones stated that he discussed the conditions which
prompted him to issue the citation with Mr. McCormac, and that he
voiced no objections with his findings.
Mr. Jones confirmed that he based his "S&S" finding on his
belief that it was reasonably likely that the hazard presented
would have resulted in injury because of the height of the roof,
the amount of work which had been performed on the roof, and the
fact that vehicles and personnel would be travelling in the area
below the roof location where the materials were located. Mr.
Jones also confirmed that he made a negligence finding of
"moderate," and that he did so because the contractor, rather
than the respondent, created the hazard, and that the respondent
may not have been in the area and did not recognize the hazard.
He also stated that he found no evidence that the respondent was
making regular
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reviews of the contractor's work while it was in progress (Tr.
24-27).
Mr. Jones confirmed that during his inspection of the roof
on November 20, he found that the ladder used by him and Mr.
McCormac to gain access to the roof had not been secured, and
that he issued citations to the contractor for not securing the
ladder and for not providing a safe means of access to the roof.
He also confirmed that he had cited the contractor for other
violative conditions in connection with the lack of safety lines
for its personnel while working on the roof, failure to secure
equipment while working on the roof, and the failure by
contractor employees to wear hard hats, safety shoes and safety
glasses. Mr. Jones conceded that "in hindsight," he probably
should have also cited the contractor for the violation in
question in this case (Tr. 27-32).
On cross-examination, Mr. Jones conceded that the prior
complaints concerning the contractor's work on the roof were not
reduced to writing or served on the respondent as required by
section 103(g)(1) of the Act. Mr. Jones explained that he was not
at the mine for the purpose of conducting a section 103
investigation or inspection, but that he was there conducting a
special investigation in connection with a discrimination
complaint against the respondent. He confirmed that the
discrimination complaint is still in litigation, and that it was
filed by an employee who alleged that some action had been taken
against him for complaining about alleged contractor violations
at the site.
Mr. Jones reiterated that no one was working on the roof
when he inspected it on November 20. He conceded that while it
was true that someone or something would have to put the
materials in motion before they could fall off the roof, he
believed that a wind could have toppled over the free standing 60
pound propane bottle and caused it to roll off the roof.
Mr. Jones confirmed that he was primarily concerned with the
60 pound propane bottle and the hand truck, and not the other
materials on the roof. He explained that it was not likely that
the rolls of roofing materials, pails, or smaller propane bottle
would fall off the roof because they were stored in such a manner
as to preclude this from happening (Tr. 33-53).
Mr. Jones stated that regardless of the type of inspection
or investigation being conducted by an inspector at any given
time, an inspector is authorized to issue citations for
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violations and to use an appropriate MSHA "incidental inspection"
code to identify the inspection. He reiterated that in the case
at hand, the information which prompted him to visit the roof
with Mr. McCormac came to his attention through his discussions
with the foreman in connection with his investigation of a prior
discrimination complaint (Tr. 54).
Mr. Jones confirmed that everyone he spoke with in
connection with his discrimination investigation was aware of the
fact that the contractor was on the roof from time-to-time
performing work. He confirmed that after his inspection which
resulted in the issuance of the citation in issue in this case,
he returned to the mine to complete his discrimination
investigation and to abate some prior citations, and he observed
the contractor performing work on the roof (Tr. 55).
In response to further questions, Mr. Jones stated that the
propane bottle in question "was nearly in a straight-line
relationship to that conveyor" and that "My judgment was it was
only reasonably likely that it could fall and it could strike
either that roadway or that conveyor" (Tr. 94). In response to a
question as to whether or not barricades need to be in place
regardless of whether anyone is actually doing any work on the
roof, Mr. Jones responded as follows (Tr. 94-95):
MR. JONES: No. The only reason that they needed the
barricaded warning sign was because of this unsecured
bottle and stuff up there when no one's working up
there. If they would secure that material, then they
could take their barricades down.
But all the time that people are working up there on
that sloped roof along the perimeter, they're down on
the ground. They have no idea what position these
people are in. They need to have that roadway and that
conveyor blockaded because you never know where the
material would come from because they're working along
the length of that building.
William J. Brock, testified that he is employed by the
respondent as a repairman and welder, and also serves as the
vice-president of the local union and representative of the
miners working at the mine. Upon review of inspector Jones'
sketch, exhibit P-1, he confirmed that prior to the inspection of
November 20, he observed the roofing contractor working on the
roof in question, and also observed the equipment and materials
described by Mr. Jones. Mr. Brock also observed the
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contractor performing work on the roof after the citation was
issued.
Mr. Brock stated that he observed no barricades or warning
signs in place on the roadway or the conveyor walkway in the area
beneath the roof location where the cited materials and equipment
were observed by Mr. Jones on November 20. Mr. Brock confirmed
that employees and trucks would have occasion to be on the
roadway and walkway in the unprotected area under the roof. He
stated that a dust truck travelled the roadway every 30 minutes,
and that contractor vehicles also used the roadway. In addition,
respondent's loaders would also be in the roadway area working
and moving material, and that mine employees would be on foot in
the area of the tripper belt in the morning at the beginning of
the shift, and at the end of the shift. An oiler and rock crusher
operator would also be on the conveyor walkway at least once a
day.
Mr. Brock stated that prior to the inspection by Mr. Jones
on November 20, he had questioned the respondent about the lack
of barricades at another location at the west end of the mill
building where the contractor was hauling materials and equipment
up to the roof. After receiving no response, Mr. Brock stated
that he took it upon himself to rope the area off (Tr. 61-67).
Mr. Brock stated that the walkway located on the elevated
conveyor belt is partially covered with a roof, and that
individuals using that walkway would not normally be walking on
the roadway below the conveyor. However, people would be on the
roadway on foot occasionally (Tr. 68). With regard to the lack of
any barriers on the east side of the building, Mr. Brock
confirmed that he had no particular knowledge that work was being
performed on the roof at that location, and that it was possible
that any work on the roof was taking place on the west side of
the roof apex. He confirmed that he was not on the roof at that
time (Tr. 69). He also confirmed that while he was at work on the
day of Mr. Jones' inspection when the citation was issued, he did
not visit the cited roof area with Mr. McCormac or Mr. Jones to
view the conditions (Tr. 75).
Respondent's Testimony and Evidence
Bobby McFarland, respondent's utility supervisor, testified
that his duties included the supervision of the plant labor
department which is responsible for cleaning the plant and
insuring that work areas are barricaded as required. In those
instances where it is necessary to perform cleaning on
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elevated areas, and materials are thrown off the roof, the bottom
wall and ground areas are barricaded. He confirmed that he was
aware of the fact that Patterson Roofing Company was doing some
roof work at the plant "last fall" (Tr. 76-77). His crew was
assigned to keep the ground barricaded and roped off while
Patterson Roofing was doing any work that presented a hazard, and
that this was done "when they was there working." With regard to
the day the citation was issued, Mr. McFarland confirmed that the
roofing contractor was not at the plant site and that the area
around the building in question was not roped off that day
because no one told him that the contractor would be there (Tr.
78).
On cross-examination, Mr. McFarland confirmed that he was at
work on the day the citation was issued, and although he went to
the ground area of the crane storage building, he did not
accompany Mr. Jones and Mr. McCormac on the roof during their
inspection. Prior to this time, he was aware of the fact that the
contractor had worked on the east side of the building (Tr. 79).
He confirmed that when the contractor was working on the north
side of the building, he barricaded the area, but not the entire
perimeter of the east side (Tr. 79). The area which was
barricaded was at the location where materials where being
removed and thrown off the roof. He identified the area which had
previously been roped off and barricaded by reference to a sketch
and photograph (exhibit P-1 and J-1; Tr. 80-82). The barricades
were up "probably the day before" the citation when work was
taking place, but they did not remain up for the entire time the
workers were on the roof working because they were taken down so
that truck traffic could pass through the area. Mr. McFarland
believed that the barricades were "probably taken down to the
edge of the road" (Tr. 83).
Mr. McFarland explained that the barricades consisting of
ropes placed around empty barrels, were put up when the roofing
contractor was hoisting building materials to the top of the roof
by means of a crane and a pulley rope. When asked whether or not
the barricades remained in place after the materials were on the
roof, Mr. McFarland responded as follows (Tr. 85-88):
JUDGE KOUTRAS: After the materials are up on the roof
and the guys start to work, what happens to the
barricades?
THE WITNESS: Okay, the one on the east side there gets
pulled back to the road where the traffic can go
through, and on the north and
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south side up in front, why, they get taken
down for that night. If they start to work the
next morning, we put them up; if they don't
work, we don't put them up.
JUDGE KOUTRAS: But if they are up there working, are
the barricades still up?
THE WITNESS: They're supposed to stay up, yes sir.
* * * * * * *
JUDGE KOUTRAS: Why is that?
THE WITNESS: If you -- to keep stuff from falling,
people walking under them.
JUDGE KOUTRAS: Then if for some reason the contractor
decides not to work on any particular day and there is
nobody up there, then the barricades are taken away; is
that what you are saying?
THE WITNESS: Yes. They'll be pushed up against the
building.
JUDGE KOUTRAS: Then when the contractor comes out
again, they're pulled out and put up again; is that
what you are telling me?
THE WITNESS: Yes, that's what . . .
JUDGE KOUTRAS: Now, on November 20th when the inspector
issued this citation, were you at work?
THE WITNESS: Yes.
JUDGE KOUTRAS: Were the barricades up or against the
building that day?
THE WITNESS: They was probably against the building
that day because he didn't work.
JUDGE KOUTRAS: You say "probably." Do you know for a
fact that they were against the building? Did you go up
there?
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THE WITNESS: No, I didn't go on top.
JUDGE KOUTRAS: Not on the roof, did you go to that
area? Did you have any reason to be there?
THE WITNESS: Yes, I have a reason to go every day there
around the building.
JUDGE KOUTRAS: Do you remember seeing any barricades
there?
THE WITNESS: No.
JUDGE KOUTRAS: They were up in the roadway?
THE WITNESS: They was in the area, but they probably
wasn't on that day because they wasn't working. I have
a crew that puts them up when they work.
And, at (Tr. 92-93):
JUDGE KOUTRAS: So if they are up there doing work then
the roadway is not blocked?
THE WITNESS: No, it's not on the back side.
JUDGE KOUTRAS: Not on the back side?
THE WITNESS: Right.
MS. WITHEROW: Is the walkway blocked off?
THE WITNESS: The walkways are covered, both of them --
all three of them are covered.
MS. WITHEROW: We have heard testimony from two
witnesses that there are parts of that walkway that are
not covered.
THE WITNESS: The tripper belt is covered and your
clinker belt where it used to be there's a walkway that
we walk through, it's also covered.
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But from going to the mill building, top of the
mill building out to the footer building, it's
not.
* * * * * * *
Q. So this walkway that Mr. Jones testified about, it
was not -- it was open?
A. Well, it's got covers on your belt but it don't have
a cover over your -- it's not a covered walkway.
Q. Fine. Were there any barricades or warning signs on
that?
A. On this one (pointing)?
Q. On that walkway?
A. No.
Q. At any time?
A. No, not that I know of.
John Bayliss, respondent's maintenance manager, confirmed
that he was familiar with the contractor performing work on the
roof of the crane storage building prior to and after the time
the citation was issued, and that he was aware of the
contractor's "comings and goings." Mr. Bayliss stated that the
contractor was not performing any work on the roof on the day
that the citation was issued. He confirmed that all roofing
contractors are given safety instructions, and they are
instructed to wear hard hats, glasses, and hard-toes shoes, and
that in the event they needed assistance or barricades they were
to come to him. When asked whether or not barricades were
installed when contractors were performing work at the plant, Mr.
Bayliss stated as follows (Tr. 98):
A. Whenever they told us that they were in a problem,
we installed barricades. When they were going to tear
the junk -- they started off tearing the top off the
roof, and then they lifted up the new supplies, and
then they stuck these new supplies back on the roof.
That was a job.
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When they came to lift up the supplies, there were two different,
separate times when they were lifting supplies up. One, they used
a huge mobile crane, and the next time they used the rope down
the side of the building.
Each time when they were using these things, we put
barricades up. Bob works for me, and he put barricades
up.
Mr. Bayliss stated that the roofing contractor in question
usually had two or three workers working at one location on the
roof, and in the event they were working and handling materials
at the north end of the building, it would not be logical to rope
off the south end. In his judgment, the only work area that
needed to be roped off would be the area directly below where the
roof work was being performed (Tr. 99).
Mr. Bayliss described the propane tank used by the
contractor as "a small tank" weighing approximately 20 pounds
(Tr. 100). He stated that prior to the issuance of the citation,
the contractor had not worked at the plant for a week because the
temperature was less than 40 degrees and that "we had been in
limbo for a week here, waiting for the guy to come back and get
his job done" (Tr. 101). Mr. Bayliss was of the opinion that
there was no likelihood that the materials on the roof would have
fallen off and that it was unlikely that an accident would have
happened because the east side of the building is not a place
where anybody would walk and that there are "very few people on
foot. This is not a traveled area at any time as far as people
walking" (Tr. 101).
On cross-examination, Mr. Bayliss confirmed that although he
was at work on the day of Mr. Jones' inspection, he did not
accompany him to the top of the roof, nor did he go to the roof
on that day. Mr. Bayliss stated that he knew what was on the roof
because "what's on the roof that day was on the roof the day
before, and it was on the roof ever since we'd been on the roof
so I knew exactly what was on the roof" (Tr. 101). Mr. Bayliss
confirmed that he was on the roof at least once a week in order
to insure that the work for which the contractor was being paid
was done.
Mr. Bayliss confirmed that in addition to the 20 pound
propane tank, another 60 pound propane tank was on the roof on
the day of the inspection, and he agreed with the inspector's
testimony concerning the presence of other materials such as
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pails, roofing materials, and a hand truck on the roof (Tr. 106).
With regard to the inspector's assessment of the hazard presented
at the time of the inspection, Mr. Bayliss stated as follows (Tr.
106-107):
JUDGE KOUTRAS: Now you also heard the inspector testify
that if a wind came along and toppled over this
sixty-pound propane tank that it could possibly roll
off the roof, and if it did and fell to the ground
below and struck a truck, it would cause certain
damages; if it struck a person, it would cause certain
things; and if it landed on its valve and it was full,
it would likely or at least it was a possibility of it
becoming airborne or whatever.
Do you differ with the inspector on that? If this
propane tank toppled, would it likely roll off the
roof?
THE WITNESS: I believe it might.
JUDGE KOUTRAS: Was the pitch of the roof such that it
would roll off?
THE WITNESS: Well, you can see the roof. Any pitch on
anything, if you roll a -- of course, I didn't see
exactly where this sixty-pound tank was actually
located on this day.
JUDGE KOUTRAS: Where could it be located up there? Did
they have any -- he said that the roofing material was
in cardboard boxes and it was either perpendicular or
positioned in such a way that that wouldn't roll off,
that he wasn't concerned about the pails but he was
concerned about this one propane tank and the hand
truck.
THE WITNESS: Yes.
JUDGE KOUTRAS: Particularly with the propane tank. His
testimony is that if the wind toppled the propane tank,
it was in such a position that it would readily roll
off the roof.
THE WITNESS: I believe him.
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Mr. Bayliss stated that the propane tanks in question were not
"tied off," that the contractor never tied them off, and that "if
the inspector says it was up there when he saw it, I believe him"
(Tr. 108). Mr. Bayliss agreed that the unsecured materials on the
roof were left there by the contractor who intended to come back
"the next day" or when "we got to some warmer weather" (Tr. 109).
He confirmed that the materials were left on the roof for "a
couple of weeks" and that "this job took like three months to
complete" (Tr. 110).
Mr. Bayliss stated that the inspector was justified in
issuing the citation and that his only difference with the
inspector lies in "the likelihood of somebody getting hurt." Mr.
Bayliss agreed with the inspector's view that an unsecured
propane cylinder on a pitched roof could roll off, but disagreed
with the inspector's belief that it was reasonably likely that it
would fall off and hit someone (Tr. 112).
Petitioner's Arguments
Petitioner takes the position that the testimony in this
case, including the testimony of the respondent's witness
Bayliss, supports the inspector's finding that a violation of the
cited standard occurred and that the propane tank located on the
roof posed a hazard in that it could have toppled over and rolled
off the roof. Given the inspector's testimony that the walkway
was at no time barricaded, the testimony of Mr. Brock that trucks
were on the roadway every 20 to 30 minutes driving along the
unbarricaded roadway below the roof, and Mr. McFarland's
admission that the roadway was not barricaded on the day of the
inspection, petitioner concludes that it has established the fact
of violation, and the fact that a hazardous condition was present
at the time of the inspection and the issuance of the citation
(Tr. 118-119).
Respondent's Arguments
The respondent asserted that the citation should be vacated
because the inspector failed to follow the requirements of
section 103(g)(1) of the Act which requires that any complaints
concerning alleged violations of any mandatory safety standard be
first reduced to writing and a copy furnished to the mine
operator. Respondent argued that no written complaint was
forthcoming at the hearing, that MSHA failed to produce any
witness who may have complained to the inspector about the cited
condition, and that the inspector would not have gone to the roof
area but for this complaint. Respondent took the position that
"everything from that point on is hearsay" (Tr. 119).
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The respondent's second argument is that MSHA inspectors are
issuing citations to contractors who are supposedly working at
the plant, when in fact they are not present at the plant
actually performing any work at the time of the inspection.
Respondent's representative McCormac stated that "If we are going
to have a citation written about contractors working, if the
inspector does not see the work being done, then he can't write
anything on them" (Tr. 113). Mr. McCormac asserted that the
written condition described by Inspector Jones on the face of the
citation states that the contractor "was working seventy-five
feet above the ground" when in fact the contractor was performing
no work on the day of the inspection (Tr. 115). Mr. McCormac
concludes that the inspector's belief that the contractor was
working on the day in question is based on speculation which is
unsupported by any "concrete proof" (Tr. 120).
Finally, the respondent argues that with respect to the
propane cylinder in question, since there was no one working on
the roof, and since there was no evidence advanced with respect
to any wind or adverse weather conditions which may have caused
the cylinder to topple over and roll off the roof, there was no
hazard. Absent any agent or event that would cause the cylinder
to topple over from its upright position, respondent concludes
that it was unlikely that an accident would occur. Mr. McCormac
stated that in the absence of vacating the citation, it should at
most be modified to a "non-S&S" citation, and he agreed that if
the citation was initially classified as such "we would not be
here today" (Tr. 120, 122).
Findings and Conclusions
Section 103(g)(1) Issue
Section 104(a) of the Act provides in relevant part that
"if, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a coal or
other mine subject to the Act has violated this Act, or any
mandatory health or safety standard, . . . , he shall, with
reasonable promptness, issue a citation to the operator . . . . "
Inspector Jones confirmed that he visited the plant site on
November 20, 1987, in his capacity as an inspector and special
investigator for the purpose of conducting an investigation
concerning a previously filed discrimination complaint. He
explained that in the course of these duties it is not
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unusual for him to receive information or complaints from
employees with regard to alleged violative conditions which may
be unrelated to his discrimination investigation. Unless the
complaints concern an imminently dangerous condition, his normal
procedure is to refer safety complaints to the inspectors who
normally inspect the mine. However, since he was aware of the
fact that MSHA had received prior employee safety complaints
concerning the roofing contractor, and had conducted hazard
inspections in response to those complaints, and since he was
informed by a foreman that the contractor was working on the roof
while he was there on November 20, 1987, Mr. Jones decided to
inspect the roof area in question (Tr. 8-9).
Inspector Jones explained that the prior visits to the plant
by other MSHA inspectors in response to written complaints
concerning the contractor in question were in connection with
complaints that contractor personnel were not wearing hard hats,
hard-toed shoes, and glasses. The "negative findings" by the
inspectors with respect to those complaints were based on the
fact that the contractor was not working when the inspectors were
on the site, and since the inspectors had no opportunity to
observe the contractor's employees without the personal equipment
in question they had no basis for supporting any citations (Tr.
36-38).
Inspector Jones confirmed that no one complained to him
about any alleged violative conditions on the roof, and that he
went there with Mr. McCormac after a foreman advised him that the
contractor was on the mine site. The fact that Mr. Jones may have
interrupted his discrimination investigation to visit the roof
area is irrelevant. Mr. Jones was accompanied by a representative
of the respondent and the citation which he subsequently issued
was based on his personal observations of the conditions which
prompted him to issue it. I find nothing onerous or procedurally
defective in the action taken by Mr. Jones. As an authorized
representative of the Secretary, Mr. Jones had a duty and
obligation to issue the citation if in his judgment the
conditions which he observed constituted a violation of the cited
mandatory safety standard in question. The respondent's assertion
that Mr. Jones' actions were "hearsay" because the petitioner
failed to produce any written complaint or any witness who may
have complained about the materials on the roof are not well
taken. Mr. Jones' personal observations and testimony about the
conditions which prompted him to act are not hearsay, and I
accept as credible his explanation as to why he went to the roof.
Under the circumstances, the respondent's arguments
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that the citation is somehow defective and that Mr. Jones actions
were procedurally improper ARE REJECTED.
The Inspector's Narrative Description of the Cited Conditions
The respondent is charged with a violation of mandatory
safety section 30 C.F.R. 56.20011, because of its alleged
failure to install barricades or warning signs along the
perimeter and approaches to the building where roofing materials
were located on the pitched roof. The inspector was concerned
that some of the materials on the roof, and in particular a hand
truck and a large propane bottle or cylinder weighing
approximately 60 pounds, and which was upright and unsecured,
could have toppled over and rolled down the roof to the ground
below striking passing vehicles or employees traveling along a
roadway and conveyor walkway. Section 56.20011, provides as
follows:
Barricades and warning signs.
Areas where health or safety hazards exist that are not
immediately obvious to employees shall be barricaded,
or warning signs shall be posted at all approaches.
Warning signs shall be readily visible, legible, and
display the nature of the hazard and any protective
action required.
The evidence in this case establishes that work was in fact
performed by the roofing contractor prior to the day of the
inspection by Mr. Jones, and that it continued for some time
after the issuance of the citation. The evidence also establishes
that the roofing materials found by Mr. Jones on the roof were
being used by the contractor who interrupted the completion of
the roofing job because of outside temperature conditions. The
respondent's suggestion that the citation is somehow defective
because of the misleading wording of the cited conditions by the
inspector on the face of the citation is not well taken. While it
is true that the citation issued by Mr. Jones which states that
"a roofer contractor was working 75 feet above" the perimeter and
approaches to the building gives the impression that work was
taking place when Mr. Jones was on the roof observing the
conditions, I find nothing in the cited standard that conditions
a violation on the fact that work may or may not be ongoing.
The gravamen of the requirement for barricades or warning
signs lies in the existence of safety hazards not immediately
obvious to employees. The critical issue is the existence of
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the hazard, and the fact that no roofing work was taking place at
the precise time of the inspection is irrelevant to any
determination as to whether or not the affected area in question
was barricaded or posted with warning signs. However, the fact
that no work was taking place may or may not be relevant in any
determination as to the degree of the hazard, and the likelihood
of an accident occurring. Accordingly, the respondent's assertion
that the "speculative" words used by the inspector conveying the
impression that work was actually taking place when he viewed the
conditions supports a dismissal of the citation IS REJECTED.
Fact of Violation
The unrebutted evidence in this case clearly establishes the
existence of unsecured materials on the roof of the mill
building. The roof was approximately 75 feet off the ground, and
it was "pitched" or "peaked" as depicted by the photographic
exhibits of record, and the building was several hundred feet
long. The evidence also establishes that the materials which were
of concern to the inspector consisted of an unsecured 60-pound
propane tank or bottle, and a small unsecured hand truck, both of
which remained on the roof for a relatively long period of time
during which the roofing contractor performed no work on the roof
because of adverse outside temperature conditions.
Inspector Jones testified that given the pitch of the roof,
and the fact that the unsecured propane bottle was located "in a
straight-line relationship" to an elevated conveyor located below
the roof, he was concerned that if the bottle were to fall over
and roll off the roof, it could strike the conveyor walkway, a
portion of which was uncovered, as well as mine personnel walking
along the base of the building, and vehicles passing by on a
ground level roadway adjacent to and below the roof of the
building. Respondent's maintenance manager John Bayliss agreed
with the inspector's belief that in the event the unsecured
propane bottle were to topple over, it could readily roll off the
pitched roof to the ground below. He also agreed that the
inspector was justified in issuing the citation. Given these
undisputed facts, I conclude and find that the unsecured propane
bottle and hand truck in question posed a potential safety
hazard.
Although the evidence establishes that no one was working on
the roof at the time of the inspection and issuance of the
citation, respondent's welder and repairman William Brock
testified that a dust truck travelled the roadway every 30
minutes, and that respondent's employees would occasionally
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be on foot on the roadway. He also testified that respondent's
employees would have occasion to walk the partially unprotected
conveyor walkway during the course of their daily work shift, and
that contractor vehicles would also use the roadway. Inspector
Jones testified that service and maintenance personnel would have
occasion to travel the conveyor walkway while servicing the
conveyor systems. This testimony is unrebutted, and I conclude
and find that these employees and vehicles would be exposed to
the potential hazard in question.
Although Mr. Bayliss testified that he knew that the
materials cited by Inspector Jones were on the roof, there is no
credible evidence that any other employees were aware of the fact
that these materials were there. Inspector Jones testified that
employees working below the roof of the building or travelling
along the conveyor belt or roadway would not be able to see the
materials unless they were out for some distance away from the
building, and that they would not be able to see anything rolling
or falling off the roof and would have no warning if this were to
occur. Given the dimensions of the building in question, the
location of the materials at the apex of the roof which was
approximately 75 feet off the ground, and the location of the
roadway and conveyor belt at the base of the building, I conclude
and find that employees on foot or in vehicles at those locations
would not likely be aware of the unsecured materials on the roof
and that the existing hazard presented by the unsecured propane
bottle and hand truck would not be immediately obvious to them.
The undisputed evidence establishes that the roadway and
conveyor areas at the base of the building and below the roof
area where the unsecured propane bottle and hand truck were
located were not barricaded or otherwise posted with warning
signs during the time that these materials were left on the roof
by the roofing contractor. Although the respondent's evidence
reflects that barricades were normally erected while work was
being performed on the roof or roofing materials were being
hoisted to the roof, it seems clear to me that they were not in
place during the existence of the hazard.
Given the existence of a safety hazard which was not
immediately obvious to employees, and the fact that no barricades
were erected, or warning signs posted in the areas exposed to the
hazard during the time the unsecured propane bottle and hand
truck remained on the roof, I conclude and find that the
respondent violated the requirements of mandatory safety standard
30 C.F.R. 56.20011. Accordingly, the citation IS AFFIRMED.
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Significant and Substantial Violation
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
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The question of whether any particular violation is significant
and substantial must be based on the particular facts surrounding
the violation, including the nature of the mine involved,
Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 (April
1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987).
Inspector Jones confirmed that the rolled roofing materials,
5-gallon pails, and small 20-pound propane bottles which he found
on the roof were adequately stored and secured and did not pose a
hazard. His principal concern was the unsecured free-standing
60-pound propane bottle which was located on the sloped portion
of the roof. Although Mr. Jones alluded to his concern for the
unsecured hand-truck, I find no credible evidence to support a
conclusion that it was reasonably likely that this truck would
fall or roll off the roof and strike and injure someone.
With regard to the unsecured propane bottle, respondent's
own witness John Bayliss confirmed that it remained on the roof
for "a couple of weeks" when no work was in progress on the roof.
Mr. Bayliss also agreed with the inspector's conclusion that
given the position of the bottle on the pitched roof, if it were
to topple over it would readily roll off the roof. Mr. Bayliss
also confirmed that the contractor in question never tied off or
secured any of its propane tanks, and Inspector Jones confirmed
he cited the contractor for not securing the bottle and for
several additional unsafe work practices in connection with the
work being performed on the roof.
The respondent argues that in the absence of any work in
progress on the roof at the time of the inspection, and the lack
of any agent or event to cause the bottle to be placed in motion
and roll off the roof, the violation is not significant or
substantial. I disagree. In my view, the free-standing and
unsecured 60-pound cylindrically shaped propane bottle located on
the pitched portion of the roof which was approximately 75 feet
above an unbarricaded area where employees and traffic would be
present on a daily basis created an inherent and discrete
potential safety hazard regardless of the presence of any
independent agent or event to place the bottle in motion. The
unsecured bottle was on the pitched portion of the roof for a
relatively long period of time, and it was not readily observable
from the ground level roadway or conveyor areas which should have
been barricaded or otherwise posted with warning signs. If the
bottle were to topple over, it would readily roll off the roof
and possibly strike an
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employee walking along the base of the building or a vehicle
passing along the roadway. If this were to occur, I believe that
one may reasonably conclude that serious or fatal injuries would
result. Under all of these circumstances, I agree with the
inspector's significant and substantial finding, and IT IS
AFFIRMED.
History of Prior Violations
The parties stipulated that the respondent had 13 assessed
violations for the 24-month period preceding the issuance of the
citation in this case. I find that the respondent's history of
compliance is not such as to warrant any additional increase in
the civil penalty assessment which has been made for the
violation in question.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
Based on the stipulations by the parties, I conclude and
find that the respondent is a medium-size mine operator, and that
the payment of the civil penalty assessment in this case will not
adversely affect its ability to continue in business.
Gravity
On the basis of my findings and conclusions affirming the
inspector's "significant and substantial" finding, I conclude
that the violation was serious. The unsecured propane bottle in
question presented a hazard to mine employees and vehicles using
the roadway at the base of the building some 75 feet below the
roof where the bottle was located.
Negligence
Inspector Jones made a finding of "moderate negligence," and
he confirmed that he did so on the basis of mitigating
circumstances. He explained that the contractor created the
hazard, and the record shows that he cited the contractor for not
securing the bottle. Insofar as the respondent is concerned,
although Mr. Jones believed that it had an obligation to check on
the contractor to determine whether it was creating any hazards
to miners, he considered the fact that the respondent did not
recognize any hazard (Tr. 29-31). I conclude and find that the
violation resulted from the respondent's failure to exercise
reasonable care, and the inspector's negligence finding is
affirmed.
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Good Faith Abatement
The parties stipulated that the respondent demonstrated good
faith in immediately abating the violation. I adopt this
stipulation as my finding on this issue.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section 110(i) of the
Act, I conclude and find that a civil penalty assessment in the
amount of $150 is reasonable and appropriate for the violation
which has been affirmed in this case.
ORDER
The respondent IS ORDERED to pay a civil penalty in the
amount of $150 for a violation of mandatory safety standard 30
C.F.R. 56.20011, and payment is to be made to MSHA within
thirty (30) days of the date of this decision and order. Upon
receipt of payment, this proceeding is dismissed.
George A. Koutras
Administrative Law Judge
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