Summit Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

Summit operated the Richmond Hill gold mine. MSHA cited a backhoe walkway that was about four and a half feet above the ground and lacked handrails and midrails. Judge John J. Morris held that the platform was an elevated walkway covered by 30 C.F.R. § 56.11002, affirmed the citation and a $20 penalty, and found that the standard applied to mobile equipment. In a separate docket, he approved a settlement that changed the violation to non-significant-and-substantial and required a $54 payment.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.11002
• Outcome: The walkway citation and $20 penalty were affirmed, and a separate settlement with a $54 penalty was approved.
• Key point: An elevated service platform used by maintenance workers can be an elevated walkway requiring handrails under Part 56.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. SUMMIT CO.
DDATE:
19910923
TTEXT:

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              Federal Mine Safety and Health Review Commission
                     Office of Administrative Law Judges
                            The Federal Building
                       Room 280, 1244 Speer Boulevard
                              Denver, CO 80204

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 90-112-M
PETITIONER A.C. No. 39-01363-05502 X52
v.
Docket No. CENT 91-49-M
SUMMIT INCORPORATED, A.C. No. 39-01363-00503 X52
RESPONDENT
Richmond Hill Mine

                                  DECISION

Appearances: Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
John J. Delaney, Esq., DELANEY, BANKS, JOHNSON,
JOHNSON, COLBATH & HUFFMAN, Rapid City, South
Dakota,
for Respondent.

Before: Judge Morris

 The Secretary of Labor, on behalf of Mine Safety and Health

Administration (MSHA), charges Respondent Summit, Incorporated
("Summit"), with violating safety regulations promulgated under
the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq.
(the "Act").

 A hearing on the merits was held in Rapid City, South

Dakota, on May 29, 1991. The parties filed post-trial briefs.

                                 STIPULATION

    At the hearing the parties stipulated as follows:

 1. Summit is engaged in the mining of gold, lode, and

placer, in the United States, and its mining operations affect
interstate commerce.

 2. Summit is an operator at the Richmond Hill Mine, MSHA

I.D. No. 39-01363-X52.

 3. Summit is subject to the jurisdiction of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801, et seq.

 4. The Administrative Law Judge has jurisdiction in this

matter.

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5. The subject citation was properly served by a duly authorized
representative of the Secretary upon an agent of Respondent on
the date and place stated therein, and may be admitted into
evidence for the purpose of establishing their issuance, and not
for the truthfulness or relevance of any statements asserted
therein.

 6. The exhibits to be offered by Respondent and the

Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.

 7. The proposed penalty will not affect Respondent's ability

to continue in business.

 8. The operator demonstrated good faith in abating the

violation.

 9. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the two
years prior to the date of the citation.

 10. The operator is a medium-sized operator with 144,452

hours worked in 1990.

 In CENT 91-49-M Summit is charged with violating 30 C.F.R.

56.11002. (Footnote 1)

    Citation No. 3452409 reads as follows:

         The walkway along the right side of the Keohring
         back-hoe with a rock knocker attached on it was not
         equiped [sic] with handrails or midrails to eliminate a
         person from falling off walkway and being injured. The
         walkway was approximately 4 1/2 feet up off the ground.
         Person uses walkway for maintenance and repair, which
         is probably not often. The Koehring back-hoe was
         located at the ore stockpile at the crushing area.

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GUY CARSTEN, an MSHA inspector experienced in mining,
inspected the Richmond Hill Mine where Summit was performing
work. (Tr. 10-12). The inspection took place on March 8, 1990.
The inspector observed that the walkway on the right side of the
backhoe lacked a handrail and a midrail. The walkway was approx-
imately 18 inches wide and about 12 feet long. It was about 4.5
feet above the ground. (Tr. 13-14). (See Exs. R-1, R-2, and R-3
showing backhoe with rail installed.)

 Inspector Carsten considered the walkway to be a travelway

because a fire extinguisher was located about halfway to the cab.
In addition, maintenance and pre-inspection workers use the
walkway to check the engine (Tr. 14). Summit's representative Mr.
Ross told the inspector that workers travel the area
approximately twice a week. (Tr. 14).

 The cab was located on the front part of the backhoe. You

can step out of the cab onto the walkway and walk down the
walkway to the motor compartment. (Tr. 15).

 There were no handrails or midrails on the outside edge.

(Tr. 15). The inspector considers this condition to constitute a
violation of Section 56.11002 since the standard requires
handrails on the outside edge of an elevated walkway. (Tr. 17).
Inspector Carsten has cited other operators under Subpart J.

 In a CAV inspection, the operator (not Summit) was required

to change the original structure of the machine. (Tr. 18).

 The inspector did not consider this to be an S&S violation

because the walkway was seldom used. (Tr. 19).

 MSHA inspectors are required to write a citation if they

observe a violation. The hazard involved any worker who might
fall off a walkway and be injured. (Tr. 20).

 The operator abated the citation by placing handrails, as

well as midrails, on the walkway.

 The South Dakota Cement Plant and Pete Lien & Company have

similar equipment (backhoes) equipped with handrails and
guardrails. (Tr. 24).

 The inspector did not have an MSHA policy memorandum stating

the side of a backhoe constitutes a travelway. (Tr. 29, 30).

 In the inspector's opinion, a walkway is regularly used if

it is used once weekly or monthly. (Tr. 31). If it is used once a
year, that would be sufficient to make the passageway "regularly
used." (Tr. 31).

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Whoever starts the backhoe should pre-inspect it. The person
doing such inspections must walk down the passageway. If no
person ever uses the walkway, then it is not a travelway. (Tr.
32, 33).

 The handrails, as presently located, prevent the engine

compartment doors from opening fully. The doors could either be
put on a slide or be hinged on each side. (Tr. 37).

 The inspector did not know if this equipment had been

previously cited. (Tr. 41).

 CHUCK ROUNDS, testifying for Summit, advised MSHA in a

letter that the walkway was used a couple of times a week. (Tr.
43). A worker boosts himself to a standing position on the
platform by using a grab rail on the back corner of the machine.
(Tr. 44). The mechanics usually visually check components of the
machine. (Tr. 45).

 The operator of the machine does not do any maintenance work

on it. The operator does his walk-around inspection on the ground
before he climbs on the machine. (Tr. 46).

 Before this citation was received, no one suggested that

handrails were required. (Tr. 47, 48). MSHA inspections occur
twice a year. (Tr. 48).

 The company is challenging the citation because extending

the rails would modify the swing radius of the backhoe. Also,
handrails can be knocked off while the equipment is being
operated.

 Supervisory employees, both mechanical and production, would

see this equipment on a daily basis. The platform, located 54
inches off the ground, is wide enough to accommodate a worker
traveling between the cab and the engine. (Tr. 52).

 GUY CARSTEN, recalled, testified that Summit was the first

operator cited "in recent history." (Tr. 55).

 JOHN ROSS, safety director for Summit, indicated the company

had never been previously cited for this condition.

 The machines have platforms along the side and are inspected

by MSHA twice a year. (Tr. 56). The company was never previously
cited for this condition.

 The backhoe operator has no duties that require him to

travel to the rear of the machine. (Tr. 57). The maintenance

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people check the oil, fuel, and do such repairs as are necessary;
maintenance is done from the counterweight; and the side door is
used to remove interior parts. (Tr. 58). The operator does his
walk-around from the ground. (Tr. 59).

 Mr. Ross agreed that he told the inspector that the

maintenance people travel that area. If a pump goes out, it would
have to be replaced. (Tr. 60).

 MARTY DELP, equipment manager for Summit, worked for

CATERPILLAR dealers for 23 years. He is familiar with backhoes of
similar size and nature as the one involved here.

 In the industry, backhoes of this size have a platform along

the side. They have no guardrails. In his 23 years, Mr. Delp was
never aware of being cited for such a travelway lacking a
guardrail. (Tr. 62, 63).

 Mr. Delp's department is responsible for maintenance which

includes daily maintenance and repairs. The equipment operators
have no maintenance responsibilities for this equipment. On very
rare occasions, a backhoe operator will start the machinery.

 The backhoes are operated two to three times per week. (Tr.

63, 64). A maintenance person would cross the track onto the
platform, come back to the counterweight, open the rear doors,
and check the engine oil and the radiator. (Tr. 64). He would
then climb down, go up to the cab, and start the machine. (Tr.
65). He would go in through the side door when there was a
radiator or a heating problem. A visual inspection is made
through the door to check for radiator leaks. (Tr. 65).

 The platform on the side of the backhoe, to the witness's

knowledge, was not used as a walkway by the maintenance workers.
(Tr. 66).

 If the radiator must be removed, it would be necessary to

unbolt the handrail, which is held by three bolts. The handrail
has restricted access to the back of the counterweight and to the
grab rail. (Tr. 67).

 The company has other backhoes without guards. They have not

been cited for such equipment. (Tr. 68, 69).

 Exhibits R-4, R-5, R-6, and R-7 show similar equipment,

which also lack handrails. (Tr. 71).

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DARRYL GALT has been the Operations Manager for Butler
Machinery Company in Rapid City since March 1989. Butler machin-
ery is the authorized dealer for hydraulic excavators,2 includ-
ing CATERPILLAR. (Tr. 78).

 In contacting major mining companies, the CATERPILLAR

company, other manufacturers, and competitors, it was established
that any backhoes manufactured in the 50,000-pound class and
above come equipped with platforms on the service access areas.
(Tr. 80-82). Such suppliers are expected to build equipment
complying with applicable safety regulations. There are no
guardrails on any of Summit's other equipment nor have they been
cited by MSHA. (Tr. 84, 85).

 All of the CATERPILLAR equipment is manufactured in

accordance with the SAE 185 Safety Standards. (Tr. 85). The
backhoe falls under Subpart M which makes it a mobile machine
and, as a result, guardrails are not required. (Tr. 85). The SAE
standards are developed by the Society of Automotive Engineers.
(Tr. 85). The existing SAE standards do not have any requirements
for guardrails. The SAE regulations come up for modification
every five years. (Tr. 86).

 The witness identified two exhibits (R-8, R-9), showing two

pieces of equipment with access platforms but without guardrails.
(Tr. 87).

 Mr. Galt described a handrail or handgrab as something taken

a hold of to help lift yourself onto a machine. On the other
hand, a guardrail is to prevent an individual from falling over
an open side. (Tr. 89, 90).

 The rotating structure of these backhoes continually moves

in a 360 swing. If the machine is made longer or wider, its
capability to operate in confined spaces is limited. (Tr. 91,
92).
DISCUSSION

 The initial issue presented here is whether the facts

establish a violation of Section 56.11002.

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The mandatory regulation requires, in its relevant part,
that "elevated walkways" shall "be provided with handrails."

 This regulation is contained in Part 56 of 30 C.F.R. which

regulates surface metal and non-metal mines.

 While the term "travelway" is defined in Sections 56.2 and

56.3000, there is no definition of what constitutes a "walkway."
It is accordingly proper to construe "walkway" in its ordinary
meaning. Webster defines a walkway as "a passage for
walking."(Footnote 3 The definition of a "walkway" appears
less broad than that of "travelway."

 In the factual scenario presented here, maintenance workers

use the walkway to check the motor as well as the radiator.
According to Witness Ross, people "travel that area approximately
twice a week." (Tr. 14). The walkway is a means of traveling to
the motor compartment of each of the backhoes. Further, whoever
pre-inspects the equipment would have to travel on the walkway to
check the fire extinguisher located near the compartment door.
(Tr. 32).

 Section 56.11002 is not detailed but rather is the type made

"simple and brief in order to be broadly adaptable to myriad
circumstances." See, Kerr McGee Corp., 3 FMSHRC 2496, 2497
(November 1981); Alabama By-Products Corp., 5 FMSHRC 2128, 2130
(December 1982). Nevertheless, such a broad standard must afford
reasonable notice of what is required or proscribed. U.S. Steel
Corp., 5 FMSHRC 3, 4 (January 1983). The safety standard must
"give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-109
(1972); see also, Phelps Dodge v. FMSHRC, 682 F.2d 1189, 1192
(9th Cir. 1982).

 When faced with a challenge that a safety standard failed to

provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the
reasonably prudent person test. The Commission recently
summarized this test as "whether a reasonably prudent person
familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition or
requirement of

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the standard would have recognized the specific prohibition or
requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409,
2416 (November 1990). "In order to afford adequate notice and
pass constitutional muster, a mandatory safety standard cannot be
"so incomplete, vague, indefinite or uncertain that [persons] of
common intelligence must necessarily guess at its meaning and
differ as to its application."' Id., quoting Alabama By-Products
Corp., 4 FMSHRC at 2129.

 In the instant case there is no evidence of the weight of

this backhoe but industry standards require guardrails if the
weight of the equipment exceeds 50,000 pounds. This would
indicate that a reasonably prudent person would have recognized
that handrails were required on its backhoes by Section 56.1102.

 The initial issue presented here is whether the facts

establish a violation of Section 56.11002.

 The regular activities by maintenance workers using the

platform establish the platform of the service access area is a
walkway. Compare Homestake Mining Company, 4 FMSHRC 146 (1982);
Hanna Mining Co., 3 FMSHRC 2045 (1981).

 Since the platform was about 4.5 feet off the ground, it was

elevated. Compare: United Cement Company, 2 FMSHRC 133 (1980)
(Cook, J) (Platform 30 inches above ground without handrails;
held to be a violation of 30 C.F.R. 56.11).

 It is uncontroverted that the platform lacked guards.

 Summit argues the section cited does not apply to backhoes.

Specifically, the operator argues that read in its entirety the
Subpart is clearly designed for general application to protect
workers as they move from place to place. Further, Summit
contends the platform is not a travelway.

 I conclude the cited section encompasses elevated walkways

found on mobile equipment as well as in other locations. Subpart
J of Part 56, entitled "Travelways" is a general section relating
to travelways found in surface metal and/or non-metal mines.
There is no language in Subpart J removing mobile equipment from
the application of Section 56.1102. It is true that Subpart M is
entitled "Machinery and Equipment." However, there is no language
in Subpart M stating that mobile equipment is not covered by
Subpart J as well.

 A broad interpretation of Section 56.11002 to include

elevated walkways on mobile equipment is warranted and consistent
with the intent of Part 56. See Ideal Cement Company, supra.

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This section should not be interpreted narrowly so as to derogate
from the safety of miners by removing all mobile equipment from
the Subpart J requirements. If an elevated walkway found at a
crusher is considered unsafe without handrails, then the elevated
walkway found on a piece of mobile equipment is likewise unsafe.

 Clearly MSHA knows how to remove equipment from the coverage

of a regulation. For example, see Section 56.11025, provides as
follows:

      Fixed ladders, except on mobile equipment, shall be
      offset and have substantial railed landings at least
      every . . . .

 It is apparent, as stated by the inspector, that Summit is

the only operator cited for this condition "in recent history."
However, since the facts establish a violation of the regulation,
the citation should be affirmed.

 Respondent also asserts, for various reasons, that the

plat-form on the backhoe as a "travelway."

 As previously noted, Section 56.11002 addresses "elevated

walkways." "Travelways," which are otherwise defined, are not
involved in this case.

 In CENT 91-49-M, the citation should be affirmed.

 In CENT 90-112-M, the parties submitted a written settlement

motion to settle one citation for $54, the amount of the penalty
originally assessed. Petitioner further modified the citation to
indicate the violation was non-S&S.

 In support of their settlement motion, the parties have

further submitted information relating to the statutory criteria
for assessing civil penalties as contained in 30 U.S.C. 820(i).

 I have reviewed the proposed settlement and I find it is

reasonable and in the public interest. It should be approved.

                             CIVIL PENALTY

 It is necessary to assess a civil penalty for the violation

of Citation no. 3452409.

 The statutory criteria to assess civil penalties are

contained in Section 110(i) of the Act, 30 U.S.C. 820(i).

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The operator's previous history is very favorable since it
was cited for only one violation in the two years prior to March 7,
1990. It had no violations before March 8, 1988.

 The operator is medium-sized and the proposed penalty will

not affect the company's ability to continue in business.
(Stipulation).

 The operator was negligent since the lack of guardrails was

an open and obvious condition. The gravity was low since the
platform was only 4.5 feet off the ground. The operator abated
the violation and is entitled to statutory good faith.

 I believe that the proposed penalty of $20 is appropriate.

Accordingly, I enter the following:

                                    ORDER

    In CENT 91-49-M:

 1. Citation No. 3452409 and the proposed penalty of $20 are

AFFIRMED.

    In CENT 90-112-M:

    2. The settlement agreement is APPROVED.

 3. Citation No. 3452408 and the proposed penalty are

AFFIRMED.

 4. Respondent, if it has not already done so, is ORDERED TO

PAY $54 to the Secretary of Labor within 40 days of the date of
this decision for the settlement in CENT 90-112-M.

                                      John J. Morris
                                      Administrative Law Judge

Footnots start here:-

 1. The cited regulation provides as follows:
        56.11002 Handrails and toeboards.
      Crossovers, elevated walkways, elevated ramps, and

stairways shall be of substantial construction provided with
handrails, and maintained in good condition. Where necessary,
toeboards shall be provided.

 2. A hydraulic excavator is the same as a backhoe such as

involved here. (Tr. 79).

    3. Webster, New Collegiate Dictionary, 1979, at 1307.