Associated Electric Cooperative, Incorporated

Plain-English summary

Associated Electric Cooperative operated a surface coal mine connected to the Thomas Hill Energy Center. The judge found that employees had no safe means of access from an embankment to a dredge, where they had to travel down a steep, slick, and sometimes snow-covered slope, and that the mine's maintenance shop contained materials that created stumbling and slipping hazards. Both citations were affirmed. The access violation was found significant and substantial and resulted from unwarrantable failure, while the shop-clutter violation was not significant and substantial. The total civil penalty was $650.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.205(a) and 77.205(b)
• Outcome: Both citations were affirmed, with a $500 penalty for unsafe access and a $150 penalty for shop clutter. Total penalty: $650.
• Key point: A mine must provide safe access to working places and keep travel ways clear, even when the unsafe condition develops during ordinary operations.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ASSOCIATED ELECTRIC COOPERATIVE
DDATE:
19890426
TTEXT:

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~731
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 88-89
PETITIONER A. C. No. 23-00465-03529

         v.                            Associated Electric
                                         Cooperative Inc. - Mining

ASSOCIATED ELECTRIC Division
COOPERATIVE, INCORPORATED,
RESPONDENT

                                DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado, for
the Secretary;
Gene Andereck, Esq., Stockard, Andereck, Hauck,
Sharp & Evans, Springfield, Missouri, for the
Respondent.

Before: Judge Weisberger

Statement of the Case

 On June 30, 1988, the Secretary (Petitioner) filed a

Proposal for Penalty seeking the imposition of civil penalties
for alleged violations of 30 C.F.R. 77.205(a) and 30 C.F.R.
77.205(b). An Answer was filed by the Operator (Respondent) on
August 12, 1988. Pursuant to notice, the case was heard in
Springfield, Missouri, on January 24 - 25, 1989. At the hearing,
Larry Greg Maloney, Jackie Williams, Gary Ronchetto, Gary
McQuitty, and Randy McQuay testified for Petitioner. Richard
McClelland, Lennoth Greenwood, and Delbert Gipson testified for
Respondent.

    The Parties each filed a Post Hearing Brief on April 10,

1989.

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Stipulations:

 1. Associated Electric Cooperative, Inc., is engaged in

mining and selling of coal in the United States, and its mining
operations affect interstate commerce.

 2. Associated Electric Cooperative, Inc., is the owner and

operator of Associated Electric Cooperative, Inc., Mine, MSHA
I.D. No. 23-00465.

 3. Associated Electric Cooperative, Inc., is subject to the

jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 801 et seq. ("the Act").

 4. The Administrative Law Judge has jurisdiction in this

matter.

 5. The subject citation was properly served by a duly

authorized representative of the Secretary upon an agent of
Associated Electric Cooperative, Inc., on the date and place
stated herein, and may be admitted into evidence for the purpose
of establishing its issuance, and not for the truthfulness or
relevance of any statements asserted therein.

 6. Associated Electric Cooperative, Inc., is a large mine

operator with 1,707,757 tons of production in 1987.

 Citation No. 3035355

Citation

       Citation No. 3035355 provides as follows:

       The three crews to the Bee-veer slurry dredge were
       required to travel up & down the approximately 25 ft
       high-face to the slurry pit. The slope of the face was
       approximately .5 to 1 consisting of unconsolidated
       materials and uneven footing. A minimum of six
       personnel daily are required to climb the face. The
       catwalk had been removed since at least 2/4/88 and only
       about 3 hours of refabrication and welding had been
       performed during that duration.

Regulations

 30 C.F.R.   77.205(a) provides as follows: "Safe means of

access shall be provided and maintained to all working places."

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Findings of Fact and Discussion

                               I.

 Respondent, an electrical generating cooperative, in

connection with its Thomas Hill Energy Center operates a surface
coal mine. As part of this operation, two employees on each of
Respondent's three shifts are stationed on a dredge located in a
slurry pond. The dredge, which is moved by cables, cuts coal from
below the surface of the pond, and pumps a mixture of coal and
water to a processing plant. The employees working on the dredge
reach it by way of a rowboat from the shore. In general, these
employees reach the rowboat, left at the edge of the pond by the
previous shift, by traveling by vehicle to the embankment, and
then walking down to the edge of the pond.

 On February 10, 1988, Larry Greg Maloney, pursuant to a

request made under section 103(g) of the Federal Mine Safety and
Health Act of 1977 (the Act), inspected the above Bee-Veer Slurry
Impoundment, and noted several sets of foot prints going up and
down the bank to and from the embankment to the pond, in an area
which he estimated as being at an incline of .5 to 1. He
testified, in essence, that in the area where the foot prints
were observed the embankment was approximately 25 feet above the
level of the pond. He testified that in the area where he saw the
foot prints, there was some packed snow, and described the ground
material as containing loose unconsolidated granular coal. He
indicated, in essence, that due to the condition of the area in
which he observed the foot prints, and its slope, he did not
consider it a safe access to the pond. He indicated that there
was no other access to the pond. According to the uncontradicted
testimony of Maloney, there was no catwalk or walkway in any area
from the pond to the top of the embankment.

 Lennoth Greenwood, Respondent's second shift supervisor at

the Bee-Veer Slurry Impoundment, indicated that on February 10,
1988, the employees working on the dredge went from the
embankment to the pond by way of a ravine, which he indicated was
to the left of the access area denoted by Maloney, and then
walked along the edge of the water to the rowboat. He opined that
this means of access was safe. He indicated that on February 9 -
10, 1988, he observed the workers from the first shift returning
from the dredge coming up the bank in the same general area as
the ravine. On cross-examination, he indicated that the ravine
was approximately 20 feet above the pond, at a slope of about a
30 to 45 degree angle, and that there was snow in the ravine on
February 10, 1988.

 Gary Ronchetto, a welder working for Respondent, who is a

member of the UMWA's Safety Committee, testified on
cross-examination, in essence, that on February 10, it was
possible to

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~734
go from the embankment to the pond at different places, but on
redirect examination indicated that he did not see any areas he
considered safe as an access down to the pond. Ronchetto
described the material between the embankment and the pond as a
slurry made out of coal and earth and said on February 10, the
bank was "slick across it" (Tr. 187).

 Gary McQuitty, who was Respondent's dredge helper in January

and February 1988, had the responsibility of working on the
dredge on the first shift. He indicated that on February 10,
1988, he went from the top of the bank to the pond along a clay
road which was "more stable than the slimy fill" (Tr. 271), and
which he denoted was located at a point to the right of the areas
denoted by Maloney. He indicated that during the day, if it
warmed up, the frozen material on the road would thaw and become
"pretty slick" (Tr. 277). He said that the top of the clay road
was 20 to 25 feet above the pond and was at slope of .5 to 1. He
said that in February 1988, he described the footing going down
to the pond, as "extremely treacherous," that the angle of
descent was "steep," and he would slip and slide to the edge of
the water (Tr. 279). He said that there was no other way to get
down the embankment to the pond.

 I find that on February 10, 1988, access to the pond, from

the embankment, was only by way of the area taken by McQuitty. I
observed McQuitty's demeanor and found his testimony credible.
Also, inasmuch as McQuitty's sole responsibility was working on
the dredge, I place more weight on his testimony with regard to
the route taken rather than the testimony of Greenwood, who had
other responsibilities in addition (at times) to being on the
dredge, and could not recall if he drove men out to the
embankment on February 9. He also could not recall if McQuitty
worked on his shift on February 9 - 10, 1988. I adopt the
testimony of Maloney that, in essence, there was only one access
to the pond on February 10 as, in essence, it was corroborated by
Ronchetto. I adopt Maloney's testimony with regard to the hazards
occasioned by the steep angle of the access areas, inasmuch as it
was corroborated by Ronchetto. Also, I found persuasive, the
testimony of McQuitty, who went daily from the embankment top to
the pond and back, that the access was "extremely treacherous"
(Tr. 279), and in February 1988, he would slip and slide going
from the top to the pond. Also, although Greenwood indicated that
access to the pond by way of the ravine was safe, he nonetheless
characterized the slope as being between 35 to 45 degrees, and
indicated that on February 10, 1988, there was snow in the
ravine. For these reasons, I conclude that on February 10, 1988,
there was no safe access provided from the embankment top to the

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edge of the pond, where a row boat could be utilized to go to the
dredge, the working site of two men per shift. As such, I find
that Respondent herein has violated section 77.205(a),
supra.(FOOTNOTE 1)

                              II.

 Taking into account the steepness of the slope of the access

to the pond, as well as its slick and snow-covered condition as
discussed above, I., infra, along with McQuitty's testimony that
the footing was extremely treacherous, and in going up and down
the slope he would slip and slide, I conclude that the violation
herein contributed to the hazard of slipping and falling into the
water which had been estimated by McQuitty to be 15 to 20 feet
deep. Access from the embankment top to the impoundment below, is
utilized daily by two miners on each of the three daily shifts
going from the embankment to the pond and then returning.
According to McQuitty, in the month of January 1988, Verlin Niece
lost his footing going down the bank to the pond to work on the
dredge, and slid into the water up to his knees and had to be
pulled out.(FOOTNOTE 2) Taking these factors into account, I conclude
that

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~736
due to the violation herein, the hazard of an employee slipping
and falling while ascending or descending the access to the
impoundment, was reasonably likely to occur. McQuitty testified
that the impoundment water was extremely cold, and was 15 to 20
feet deep. He also indicated that normally employees working on
the dredge leave their life jackets in the rowboat, and usually
wear heavy boots and coats. Accordingly, he opined that it would
be difficult for one to stay afloat after falling into the
impoundment. None of McQuitty's statements have been rebutted or
contradicted. Accordingly, I find that, due to the hazard created
herein, as consequence of the violation, there was a reasonable
likelihood of the occurrence of a reasonably serious injury.
Accordingly, I conclude that the violation herein was significant
and substantial.(FOOTNOTE 3) (Mathies coal Co., 6 FMSHRC 1, (January
1984)).

                              III.

 According to Greenwood, prior to the issuance of the instant

citation, he was not confronted with the specific "issue" (Tr.
345) of the difficulty of access up and down the embankment.
However, McQuitty, who worked on the dredge on the first shift,
indicated that on "numerous different occasions" he told
management there were problems with the access (Tr. 282).
Furthermore, Ronchetto indicated that, in his capacity as member
of the safety committee, sometime between Christmas 1987, and
January 1988, he received complaints from the dredge crew that
the walkway was out, and pursuant to these complaints, told Bill
King, the day shift supervisor, that the dredge crew did not have
a safe access. According to Ronchetto, and corroborated by
McQuitty, later that day Ronchetto called Sam Laws,
superintendent to the preparation plant and slurry impoundment,
and advised him that the men needed a safe access. Ronchetto
indicated that Laws told him he would try to take care of it.
Ronchetto said that he then confronted David Moehle who said that
he would look into it. According to Ronchetto, on January 7,
1988, he looked up at the walkway along with Moehle, and
described it as having a steep angle, and not having any cleats.
He said that at the steep angle there was no adequate footing.
Ronchetto testified that he then told Moehle that the walkway
needed cleats, and Moehle said that he understood and would try
to take care of it. In essence, Rochetto's testimony was
corroborated by Randy McQuay, another safety committee member,
who also was present.

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According to McQuitty, between January and February 1988, the
walkway was taken in and out continuously, and one end was so
steep that ice would accumulate on it. According to McQuitty and
Greenwood, the walkway had been removed approximately 4 days
prior to the issuance of the citation. Some welding work was then
performed on the walkway. But according to Maloney who observed
it at the Preparation Plant on the date of the citation, only a
quarter of its distance had steps and he indicated it did not
have any cleats. This testimony does not appear to have been
contradicted by Greenwood, who indicated that prior to the
citation, the walkway did not have all its cleats. On February 9,
1988, at a safety committee meeting, according to Ronchetto and
corroborated by McQuay, Moehle was again informed that there was
no safe access, and he responded that he would look into it, and
that they were still working in it.

 Based on the above, I conclude that at least as early as

January 7, 1988, management was made aware of the employees'
complaints with regard to safe access. Indeed, Ronchetto's
testimony was uncontradicted that on January 7, Moehle observed
the condition, and indicated that he understood it and would try
and to do something about it. Although efforts may have been made
to ensure safe access by way of a walkway, the evidence indicates
that when the walkway was installed it still did not provide safe
access. Further, although efforts may have been made to improve
the walkway, by welding material on it, I find that as of the
date of the citation, February 10, Respondent had failed to
install sufficient cleats to ensure safe access by way of the
walkway. Thus, taking all of the above into account, I find that
Respondent's conduct herein was more than ordinary negligence,
and constituted aggravated conduct. As such, I conclude that the
violation herein resulted from Respondent's unwarrantable
failure. (See, Emery Mining Corp., 9 FMSHRC 1197 (December
1987)).

                               IV

 Based on the factors discussed above, II., infra, I conclude

that the gravity of the violation herein was relatively high. For
the reason set forth above, (III., infra), I conclude that
Respondent herein acted with a high degree of negligence. Taking
these conclusions into account, as well as the remaining
statutory factors stipulated to by the Parties, as well as the
history of Respondent's violations, as contained in Government
Exhibit P-1, I conclude that a penalty herein of $500 is
appropriate.

Citation No. 3035356

 On February 11, 1988, Citation No. 3035356 was issued which

provides as follows:

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Air hoses and drop cords were lying on the floor in five
locations. Machine parts, tools, hoses expanded metal and other
miscellaneous materials were on the floor between six of the bay
doors creating stumbling hazards.

Regulation

         30 C.F.R.   77.205(b), provides as follows:

         Travel ways and platforms or other means of access to
         areas where persons are required to travel or work,
         shall be kept clear of all extraneous material and
         other stumbling or slipping hazards.

Findings of Fact and Discussion

                                  I.

 Respondent operates a maintenance shop which was built in

approximately March 1983. The interior of the shop contains one
wash bay and six work bays. Each bay has a door on each side to
accommodate large pieces of equipment including 160 ton trucks
that are worked on in the bays. A tire repairman, one shop
laborer, one welder, and 13 mechanics work in the shop. According
to Maloney, (as depicted on Government Exhibit P-3), when he
inspected the premises, on February 11, 1988, he observed air
hoses, drop cords, machine parts, tools, and expanded metal, at
various locations on the floor. He also testified that an exit
door was completely blocked by hoses. In essence, he said that in
the middle of the shop where support beams were located there
were tools, hoses, and drop cords, which created a safety hazard,
and which he had to step over. He said that, in general, there
were hoses in the area where personnel were not located.

 Delbert Gipson, Respondent's truck and tractor day shift

supervisor, testified that, in general, the material observed by
Maloney are items utilized by the workers at the shop. Thus, he
said that the air hoses are used to operate the air wrenches and
blow out dirt, and the extension cords are used for the lights.
He said that generally, engines that have to be repaired are left
in a broken condition while awaiting parts. He was asked whether
the material on the floor created any stumbling hazard and he
indicated that there were probably parts mechanics laid on the
floor around where they work, and that these are items that
mechanics "live with every day" (Tr. 364). He indicated
essentially that the material was not out of the ordinary and
that "most of the material" was being used (Tr. 364). In a
similar fashion Maloney agreed on cross-examination, that air
hoses and chains are used in making repairs and that in small
quantities expanded metal is also used in the shop.

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It appears to be Respondent's position, based upon the testimony
of Gipson, that no violation should be found herein inasmuch as
the materials in question are either utilized by Respondent's
mechanics or left in place pending receipt of the replacement
parts, and that having material on the floor is part of
Respondent's normal operation. I do not find merit to
Respondent's argument. I note that section 77.205(b), supra,
requires travel ways and platforms or other means of access to
areas where persons are required to work "shall be kept clear, of
. . . other stumbling or slipping hazards." Based on Maloney's
testimony I find that the materials in question, located on the
shop floor, were in areas where employees at the shop would have
to walk to go to various work bays, and to go to the bathroom
from the bays. I find Maloney's testimony credible that the
materials on the floor constituted stumbling or slipping hazards,
as his testimony was essentially corroborated by Jackie Williams,
Respondent's mechanic who worked in the shop. In this connection,
it was essentially Williams' uncontradicted testimony that there
were bolts, nuts, and wheel bearings lying around and that he
could hardly get around as he had to step over these materials.
Indeed, he indicated that a motor that had its parts taken out,
had been sitting on the floor for about a month before it was
taken out by him and another employee to abate the above
citation. Also, the testimony of Maloney was corroborated by
Ronchetto, who also observed the conditions on February 11, and
indicated he was not able to go from one place to another without
going around materials and crawling over them. Also Gipson
admitted on cross-examination that there were "probably" some air
hoses and trouble lights "strung out" at an exit (Tr. 368, 369).
Although he indicated that, in his opinion, on February 11, the
accumulation of material was not too bad to walk around,
nonetheless he indicated that it "probably" did need to be
cleaned up (Tr. 376). Thus, I find Respondent herein violated
section 77.205(b), supra.(FOOTNOTE 4)

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II.
According to Maloney, the stumbling hazard created by the
accumulation of materials could result in an injury. It was his
opinion that an injury occasioned by a fall to the concrete
surface could range from a bruise to a broken member. Williams
indicated that he had to step over the material and he could have
stepped on a ball bearing. Ronchetto indicated a stumbling,
tripping, and falling hazard and opined that in falling one could
hit one's head against a beam, part, or heavy equipment.

 Taking into account the number of employees at the shop, the

cluttered nature of the material on the floor, and the need to
crawl over it, as established by Petitioner's witnesses, I find
that the violation herein contributed to a discrete safety hazard
of stumbling or falling. I also find, based on the these factors
and taking into account the presence of tools, equipment, and
beams there existed a reasonable likelihood that the hazard of
stumbling or falling would result in an injury. Maloney indicated
that the injury could range from a bruise to a broken member.
Ronchetto indicated that a person falling could hit one's head
against a beam or heavy equipment. It is clear a serious injury
could result, however, inasmuch as there is no evidence before me
relating to any specific distance between any of the materials
constituting a hazard, and any sharp or hard object, I must
conclude that it has not been established that there is any
reasonable likelihood that the injury resulting from the hazard
of slipping or falling would be of a reasonably serious nature.
Accordingly, I must conclude that it has not been established
that the violation herein is significant and substantial (See,
Mathis Coal Co., supra).

                              III.

 According to the uncontradicted testimony of Williams, the

same conditions observed on February 11, were in existence the
day before, and had existed for approximately 3 weeks prior to
the citation. Although Gipson indicated that in his opinion the
material was not too bad to walk around, he did indicate it
probably did need cleaning up on February 11. Also, it was
Ronchetto's uncontradicted testimony that at a February 9, 1988,
meeting at which time Moehle was present, he (Ronchetto) told
Moehle that there was an accumulation of parts and hoses, and
that Moehle indicated that he would try and take care of it. The
extent of the accumulation of the material is indicated by the
testimony of Williams that, in abating the citation, he and six
or seven other employees worked the entire shift to clean up but
did not finish. Based on the above, I conclude that the
accumulation of material was considerable and existed for a
significant

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period prior to February 11, 1988, and that at least as of
February 9, 1988, Respondent's management was aware of this
condition. As such, I find that Respondent acted with a
moderately high degree of negligence in not having the material
cited by Maloney cleaned up prior to February 11. Also, as
discussed above, I conclude that the violation herein was
moderately serious as it could have resulted in a person
stumbling and injuring himself. In assessing a penalty, I have
also taken into consideration the various factors of 110(i) of
the Act, and the history of violations as indicated in
Government's Exhibit P-1. Taking all these factors into account,
I conclude that a penalty herein of $150 is appropriate.

                             ORDER

 Respondent shall, within 30 days of this Decision, pay the

sum of $650 as a civil penalty for the violations found herein.

                          Avram Weisberger
                          Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. In essence, it is the Respondent's position that its
Board of Directors, as indicated in a safety manual provided to
all employees, (R-6), that it is dedicated to operate in accord
with accepted safety rules and procedures, and that its
employees, in the safety manual, are specifically told not to
work "near or under dangerous highwalls or banks," and that
they're not permitted to walk in any area at or near a surge or
storage pile while a reclaiming operation may expose them to a
hazard. (R-6, 37, 41). As such, Respondent argues that any
employee faced with the hazard of traveling from the embankment
top to the pond, to reach a work site on the dredge, had the
option of refusing to work and being exposed to a hazard pursuant
to company policy. I do not find merit to Respondent's argument.
It is the Respondent's responsibility to adhere to all relevant
regulations. Inasmuch as the evidence establishes that Respondent
failed to provide a safe means of access from the embankment top
to the working area on the dredge, it must be concluded that
Respondent herein violated section 77.205(a).

~FOOTNOTE_TWO
2. I have adopted this testimony as there is nothing in the
record to contradict it. I have taken into account the
acknowledgment by Lennoth Greenwood, Respondent's second shift
foreman, that prior to February 9, 1988, he did not know of any
employee having fallen down the embankment. I find that the lack
of knowledge on Greenwood's part does not by itself rebut
McQuitty's testimony.

~FOOTNOTE_THREE
3. In reaching this conclusion, I have taken into account
Respondent's evidence on this point which essentially consists of
the testimony of Greenwood that the access was "safe." However,
in evaluating the condition of the access, and the gravity of the
violation herein, I place more weight on the testimony of Maloney
and McQuitty as analyzed above, I. and II., infra.

~FOOTNOTE_FOUR
4. I note that section 77.205(b), supra, by a plain reading
of its language, does not explicitly allow for the accumulation
of materials constituting a stumbling or slipping hazard if the
materials accumulate in the ordinary course of the operation, or
are used in the operation. To read such an exclusion into section
77.205(b), would be unduly restrictive and would render
meaningless the protective intent behind this regulation. I also
have considered Respondent's arguments set forth in its Post
Hearing Brief. I do not find merit to these arguments, for the
reasons set forth in footnote 1, infra.