Leo Journagan Construction Company, Inc. and James M. Ray

Plain-English summary

MSHA inspected Leo Journagan Construction’s portable crusher in Missouri after employees entered the crusher to clear jammed rocks while power remained available. Judge Arthur J. Amchan found that the operator violated the lockout standard, but the violation was not significant and substantial because the employee was generally tied off, the controls were off during the work, and another worker watched the crusher. The judge vacated the proposed individual penalty against superintendent James M. Ray and assessed the company a $500 penalty. He also found that MSHA did not prove miners were exposed to entrapment from rocks in the hopper, so Citation No. 4329463 and the related penalties were vacated.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.12016 and 30 C.F.R. § 56.16002(a)
• Outcome: Citation No. 4329462 was affirmed as non-S&S with a $500 company penalty, Ray’s individual penalty was vacated, and Citation No. 4329463 and related penalties were vacated.
• Key point: Lockout was required before mechanical work on the energized crusher, but the record did not establish a reasonably likely injury or hopper-entrapment hazard on the facts proved.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041

                         June 7, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-265-M
Petitioner : A.C. No. 23-02068-05509
v. :
: Journagan Portable #12 MO
LEO JOURNAGAN CONSTRUCTION :
COMPANY, INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 96-53-M
Petitioner : A.C. No. 23-02068-05510-A
v. :
: Journagan Portable #12 MO
JAMES M. RAY, Employed by :
LEO JOURNAGAN CONSTRUCTION :
COMPANY, INC., :
Respondent :

                            DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner;
Bradley S. Hiles, Esq., Peper, Martin, Jensen,

Before: Judge Amchan

                       Findings of Fact

       Respondents= failure to deenergize the crusher

 On March 28, 1995, MSHA representative Michael W. Marler

conducted an inspection of Leo Journagan Construction Company=s
portable crusher No. 12 in southwestern Missouri. While Marler
was at the site, rocks became stuck in the crusher. Marler and

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Page 2

Journagan=s superintendent, James AMike@ Ray, drove to the top
of a hill, just above the crusher (Tr. 247-48)1. When the
inspector approached the crusher, he observed Journagan employee
Steve Catron trying to unjam the rocks so that the crusher could
operate again (Tr. 31-32).

 Catron was straddling the crusher with his feet resting on

metal plates located two inches above the jaws of the crusher.
He was wearing a safety belt with a lifeline that was tied to a
catwalk railing above him. Catron was using a five to six foot
long metal bar to dislodge the rocks in the crusher (Tr. 32-33,
162-66, 187-88, 234, 294). The crusher was approximately
six feet four inches in depth (Tr. 294). The jammed rocks
extended up two feet from the bottom of the crusher (Tr. 296).

 Although the crusher was not on, the electrical power to the

crusher was not shut off and locked out. Earlier, when Catron
and the crusher operator, Keith Garoutte, began to unjam the
crusher they turned off the crusher controls and locked out the
power at the generator trailer. However, to determine whether
the crusher would work, Garoutte restored power to crusher
(Tr. 182-83).

 After the power was restored, Catron tried to move the rocks

and then moved back from the crusher jaws. Garoutte watched him
from a vantage point uphill at the doorway of the shed containing
the crusher controls (Tr. 162-66, Exh. R-5). When Catron moved
back from the jaws of the crusher, he would detach his safety
belt from the catwalk railing and step up on the grizzly,2 which

 1
   I credit Mr. Ray=s testimony that he went to the crusher

with the inspector, over Inspector Marler=s testimony that Ray
was at the crusher when he arrived (Tr. 96). I conclude that Ray
would have a better recollection of his activities on the day in
question.
2
The grizzly is a flat metal plate with openings to

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was located on the opposite side of the crusher jaws from the
catwalk. He would then reattach his safety belt to a point above

separate smaller rock from larger rock (Tr. 187, Exh. R-5).
The grizzly was about 1-2 feet above the metal plate on which
Mr. Catron was standing (Tr. 295).

Page 4

and behind him. Catron then signaled or told Garoutte to start
the crusher (Tr. 192-195, 203, 225, 233-34). Garoutte entered
the control shed and turned on the crusher.

 Inspector Marler issued Respondent Citation/Order

No. 4329462 alleging that the failure to lock out the power to
the crusher posed an imminent danger under section 107(a) of the
Act, and a Asignificant and substantial@ (S&S) violation of
section 104(a) of the Act and 30 C.F.R. '56.12016. This
regulation states:

 Electrically powered equipment shall be deenergized
 before mechanical work is done on such equipment.
 Power switches shall be locked out or other measures
 taken which shall prevent the equipment from being
 energized without the knowledge of the individuals
 working on it ... .

 A $4,000 civil penalty was proposed by MSHA against

Journagan and a $1,500 penalty against Mike Ray, pursuant to
section 110(c) of the Act.

 Although Ray may not have seen Catron straddling the crusher

until Inspector Marler saw Catron, Journagan had tried before to
dislodge rocks from the crusher with the machine energized
(Tr. 169). Catron had dislodged rocks under these conditions
even before Ray became his supervisor (Tr. 170). This was
apparently a standard practice of Leo Journagan Construction
Company. Ray had seen Catron try to dislodge rocks from the
crusher with the machine energized 8 months earlier--in the
presence of another MSHA inspector (Tr. 266-68).

 Superintendent Ray disagreed with Marler that the failure to

deenergize the crusher posed a hazard to Catron or that it vio -
lated the standard, because Catron was tied off with a safety
belt (Tr. 97-99). However, he immediately went to the generator
trailer and deenergized the crusher.

  Miners working beneath rocks in the crusher=s hopper

 After Mr. Ray shut off the power to the crusher, he and

Inspector Marler climbed up onto the catwalk just below the
crusher. When they reached the catwalk they observed miners

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Catron and Garoutte inside the crusher removing rocks from the
machine. Above the miners, the crusher=s hopper was 3/4 full
with slightly more than a truckload of rock sitting at an angle
of 35 degrees to the horizontal (Tr. 207-08, 281).3 The rocks,
which extended to within a foot of the miners, ranged in size
from dust-like particles to stones two inches in diameter
(Tr. 55-56, 195).

 There was no physical barrier between the rocks and the

crusher. Inspector Marler advised Ray that he considered this
situation to pose an imminent danger to Catron and Garoutte due
to the likelihood that the rocks would slide into the crusher on
top of them (Tr. 63-66). Ray argued that the rock pile in the
hopper was stable. However, he immediately complied with the
order and welded a piece of steel to the end of the grizzly in
order to prevent rocks from sliding into the crusher.

 Later Marler committed the imminent danger order to writing

as Citation/Order No. 4329463. It alleged a violation of
30 C.F.R. ' 56.16002(a). That standard provides:

 Bins, hoppers, silos, tanks, and surge piles, where
 loose unconsolidated materials are stored, handled
 or transferred shall be-

      (1) Equipped with mechanical devices or other
      effective means of handling materials so that
      during normal operations persons are not
      required to enter or work where they are
      exposed to entrapment by the caving or

 3
  I have credited Mr. Ray=s estimation of the slope over that

of Mr. Catron=s 25-26 degrees (Tr. 212). Although Catron was in
a better position to observe the slope of the rocks, Mr. Ray
appears to have superior ability by virtue of his education and
training to estimate the angle at which the rocks lay. Mr.
Marler did not measure the slope (Tr. 108).
The quantity of rock in the feeder was estimated by Keith
Garoutte to be approximately 25-30 tons (Tr. 340).

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sliding of materials ...

                 897

Page 7

 The citation was characterized as AS&S@ and a $4,500

penalty was proposed against Leo Journagan Construction Company.
Additionally, a $1,500 penalty was proposed against Mr. Ray
pursuant to section 110(c) of the Act.

 Although Ray did not order Catron and Garoutte into the

crusher he knew they would climb down into the machine (Tr. 287).
It was not uncommon for Journagan employees to remove rocks from
a crusher with rocks overhead and it was not the company practice
to install a barrier between the miners and the rocks in the
hopper (Tr. 345).

   Respondent Journagan violated the Act in failing to
    deenergize the crusher before allowing an employee
                    to work above it.

 Respondents= first argument is that section 56.12016 is

inapplicable to this case because its employees were not per-
forming Amechanical work@ within the meaning of the standard
(Tr. 269). It further contends that the standard only applies
to situations in which miners are exposed to a hazard of
electrocution or electrical shock.

 I conclude that the term Amechanical work@ must be construed

broadly in a manner consistent with the purposes of the statute.
Therefore, I find that it includes any work that enables
electri - cally -powered equipment to operate in the manner in
which it is intended to operate.

 Loosening jammed rocks so that the crusher jaw will move is

Amechanical work.@ To conclude otherwise would suggest that,
even if Mr. Catron had not been protected by a safety belt and
even if the controls to the crusher been left unprotected, no
violation of the regulation would have occurred.

 Respondent, relying on the decision in Phelps Dodge

Corporation v. FMSHRC, 681 F. 2d 1189 (9th Cir. 1982), argues
that section 56.12016 cannot be cited in situations where the
only hazard is danger of being injured by moving machinery. This
decision was followed by a Commission judge in Arkhola Sand &
Gravel, Inc., 17 FMSHRC 593 (ALJ April 1995).

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Page 8

 The Ninth Circuit found that ' 56.12016 (then numbered

'55.12-16) did not address hazards arising from the accidental
movement of machinery because it appears in a subpart entitled
AElectricity@ and because the other regulations in that subpart
address only the hazard of electrical shock. I decline to follow
Phelps Dodge, a decision to which the Commission has never
acceded4.

 The dissenting opinion of Circuit Judge Boochever, 681

F.2d at 1193, is far more compelling. He found that the plain
language of the standard was clear and unambiguous and saw no
reason to qualify its application on account of the title of the
subpart in which the regulation was placed. I also agree with
the dissent that the Commission should defer to an agency inter-
pretation of the standard which appears to better effectuate the
purposes of the Act, than one limiting its reach to situations
in which there is a danger of electrical shock.

 The fact that miner Catron was tied off at almost all times

when he was above the energized crusher is not relevant to the
issue of whether the standard was violated. Section 56.12016
requires that electrically powered equipment be deenergized
before mechanical work is done--regardless of what other pre-
cautions are taken, to protect employees working on the
equipment or to prevent reenergizing of the machinery, Ozark -
Mahoning Company, 12 FMSHRC 376, 379 (March 1990). Thus, I
find that
Leo Journagan violated the cited regulation.

     The violation was not significant and substantial

     The Commission test for a     "S&S"   violation, as   set

 4
   In Ozark-Mahoning Company, 12 FMSHRC 376 (March 1990),

the Commission affirmed a citation issued under '56.12016 in a
situation in which miners were exposed to the danger of moving
machinery, rather than electrical shock. In that case, it does
not appear that the operator argued that the standard applies
only to electrical hazards or made the Commission aware of the
Court of Appeals decision in Phelps Dodge.

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forth in Mathies Coal Co., supra, is as follows:

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 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.

 I conclude that there was not a reasonable likelihood that

the hazard contributed to by Journagan=s violation would result
in injury. Miner Catron was tied off to a catwalk railing above
him while trying to pry the jammed rocks loose. Moreover, the
crusher controls were turned off while he was working. Operator
Keith Garoutte was standing at the doorway of the control shed
watching Catron. This makes it unlikely that anyone else would
activate the crusher while Catron was standing over it.

  While tied off, Catron could only fall 1-2 to 2 feet

(Tr. 81-82, 190, 254). If Catron fell this distance he could
not have gotten caught between the jaws of the crusher, one of
which moves and one of which is stationary (Tr. 84). His feet
could possibly have brushed the movable jaw (Tr. 190, 254).

 Even if the miner=s feet touched the moveable jaw, it is

unlikely that he would be hurt--even if the jaw moved. The jaw
moves much further at the bottom of the crusher than at the top.
At the top of the crusher the jaw moves only about an inch
(Tr. 254-55). The jaw also takes a few seconds to move once it
is activated (Tr. 264).

 Catron did unhook his safety belt when he stepped up to the

grizzly and it is possible that he could have fallen while
switching positions. It is also possible that the crusher could
have been activated at such a moment due to misunderstandings
with Garoutte or due to an electrical fault. However, I conclude
that such possibilities do not make injury reasonably likely.

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   Superintendent Ray is not subject to civil   penalty
             under section 110(c) of the Act

 Section 110(c) of the Mine Act provides that, whenever a

corporate operator violates a mandatory safety or health
standard, any agent of the operator who Aknowingly authorized,
ordered, or carried out such violation@ shall be subject to civil
penalty. The Commission has held that a violation under section
110(c) involves aggravated conduct, not ordinary negligence,
Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August 1994).

 While Mr. Ray clearly had reason to know that his employees

would be working on the crusher without it being deenergized, I
conclude that his conduct was not aggravated. The procedure
employed by miners on the day of the inspection and implicitly
condoned by superintendent Ray was Journagan=s normal procedure
(Tr. 169-170). It was not a practice initiated by Ray (Tr. 170).

 More importantly, I find that Ray had a reasonable good

faith belief that miners were adequately protected by wearing a
safety belt that was tied off above them. Mr. Catron was tied
off for all but a very brief period, during which it was very
unlikely he would fall and that the jaw of the crusher would
move. I therefore vacate the penalty proposed under section
110(c) with regards to Citation No. 4329462.

  A $500 Civil Penalty is Assessed against Leo Journagan
    Construction Company for its violation of '56.12016

  Section 110(i) requires consideration of the following

six criteria in assessing a civil penalty under the Act:

 Size of the operator: Leo Journagan is a relatively small

mine operator. Other things being equal, this would support a
smaller penalty than for a large operator.

  Effect on the operator=s ability to stay in business: The

parties stipulated that the proposed penalties would not compro-
mise Journagan=s ability to continue in business (Tr. 11).

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  Good Faith demonstrated in rapidly abating the citation:

The civil penalty should account for the fact that
superintendent Ray immediately deenergized the crusher when
informed of the violation by inspector Marler.

  Previous History of Violations: The Secretary introduced,

as it does in every civil penalty case, a computer printout
purporting to show the number of penalties assessed against
Respondent and those paid (Exh. P-1). This document indicates
that between March 28, 1993 and March 27, 1995, Journagan paid
$4,124.00 in civil penalties for 23 violations. One of these
penalties was assessed for a citation which alleged a violation
of section 56.12016 for failure to lock out a conveyor belt
(Tr. 171-72, 302).

 Exhibit P-1 is of no value to me in assessing a civil

penalty. I do not know whether Respondent has more violations
than one would reasonably expect for an operator its size, less
violations or about the same number. There has been no
suggestion made as to how the information in this summary is
relevant to assessing a penalty in the instant case.

 However, I conclude the prior violation for failure to lock

out the conveyor is relevant. A somewhat higher penalty should
be assessed on account of this citation.

  Negligence: Respondent was negligent in allowing miners

to work over the crusher when it was not deenergized and locked
out. However, its negligence was Amoderate@ given the effective
pre-cautions it did take to prevent injury. Furthermore,
Respondent was apparently under the impression from a prior MSHA
inspection that its= procedure complied with the Act (Tr. 201-02,
266-68).

  Gravity: Given the fact that Mr. Catron was tied off,

except when moving from the crusher to the grizzly, injury was
very unlikely to occur. However, it was possible and, if it
occurred, an injury was likely to be very serious, or fatal.
First, there was a chance that Mr. Catron could fall or enter the
crusher and that Mr. Garoutte could activate it due to
miscommunication. The facts of my recent decision in Stillwater
Mining Company,
18 FMSHRC 34, 35-36 (ALJ 1996) present just such a situation.
In Stillwater, a miner misunderstood the instructions of his
partner and closed a chute gate on him, fracturing his pelvis.

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Page 13

 Another case indicating the seriousness of the hazard

presented by the instant violation is Price Construction, Inc.,
7 FMSHRC 661 (ALJ Melick 1985). There, the failure to lock-out
the power to the rollers of a crushing machine, and miscommuni-
cation between miners resulted in the traumatic amputation of
the legs of an experienced miner.

 The Secretary has also alleged that the violation created a

danger that Mr. Catron would be injured by the bar he was using
to pry the rocks in the crusher. Inspector Marler contends that
if the crusher started, the bar could snap or that Catron could
have fallen on the bar and been impaled. I am not persuaded that
such a hazard existed.

  Assessment: Having considering the penalty criteria in

section 110(i), I assess a $500 civil penalty for this violation.

     The Secretary has not established a   violation
                 of section 56.16002(a)

 In order to establish a violation of ' 56.16002(a) the

Secretary must establish that miners Catron and Garoutte were
Aexposed to entrapment by the caving or sliding of materials
... .@ I conclude that the Secretary has failed to do so.
The fact that the miners were working downhill from a hopper
filled with 25-30 tons of rock does not establish that the
material might cave-in or slide on top of them.

 Materials tend to move until they obtain a slope at which

they will stop moving, sometimes referred to as the Aangle of
repose.@ The Secretary has not established that the rocks in
the hopper had not reached the angle of repose. In fact,
Respondent=s evidence tends to prove that the rocks would not
slide.

 Inspector Marler did not measure the angle at which the

rocks lay in the hopper (Tr. 108). I have credited Mr. Ray=s
testimony that the rocks were at an angle of about 35 degrees
from the horizontal, which is generally regarded a relatively

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Page 14

flat slope . I also credit Ray=s testimony that prior to the
time that the miners entered the crusher, the action of the
feeder to the hopper had flattened the angle to one at which the
rocks would not move further (Tr. 273-281).

 I further note that 35 degrees is one degree steeper than

the slope required by OSHA to protect workers in excavations dug
in the least stable type of soil, 29 C.F.R. Section
1926.652(b)(1), and Table B-1. This indicates that a slope of 35
degrees would generally not expose employees to entrapment by
caving or sliding.

 The rocks in the hopper extended to within a foot or two of

the crusher (Tr. 61, 195, 220). When removing rocks from the
crusher, Catron and Garoutte threw the smaller stones on the pile
in the hopper and stacked the larger rocks (Tr. 340-41). How-
ever, I find the record insufficient to establish that whatever
alterations this made in the slope of the rocks created a hazard
to the miners.

 It was not Respondent=s general practice to install a

barrier between rocks in a hopper and miners working to unjam a
crusher (Tr. 345). It is unclear from this record what the
general industry practice is with regard to barricading rocks
in a hopper which has already flattened the slope of the rocks.

 If the record established that industry practice was to

barricade the rocks in the hopper in a situation like the instant
one, I would be likely to find that Respondent violated section
56.16002(a). Such evidence would indicate that a reasonably
prudent mine operator would recognize a danger from sliding or
caving materials, see Ideal Cement Co., 12 FMSHRC 2409 (November
1990). However, on the instant record, I am unable to draw
such an inference and conclude that a violation of this standard
has not been established.

Although photographic exhibits P-2 and P-3 indicate that the
rocks in the hopper were at a fairly steep angle, it has not been
established that these photos accurately depict the slope of the
rocks (Tr. 108, 229-231, 283).

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Page 15

                          ORDER

 Citation No. 4329462 is AFFIRMED as a non-S&S violation

of the Act. A $500 civil penalty is assessed against Leo
Journagan Construction Company for this violation.

 The penalty proposed for James Michael Ray under section

110(c) of the Act on account of Citation No. 4329462 is
VACATED.

 Citation No. 4329463 and the penalties proposed therefor

against Leo Journagan Construction Company and against James
Michael Ray are VACATED.

 Leo Journagan Construction Company shall pay the assessed

$500 civil penalty within thirty days of this decision.

                            Arthur J. Amchan
                            Administrative Law     Judge

Distribution:

Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)

Bradley S. Hiles, Esq., Peper, Martin, Jensen, Maichel
and Hetlage, 720 Olive St., 24th Floor, St. Louis,
MO 63101 (Certified Mail)

/lh

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