Secretary of Labor v. Petro Chemical Insulation, Inc.

Plain-English summary

Petro Chemical Insulation used a mobile manlift at a coal-processing construction site with a fire extinguisher whose gauge showed that it needed recharging and a travel alarm that could not be heard over the work environment. Judge David P. Simonton found that the gauge reliably showed the extinguisher was not maintained in usable condition, although another extinguisher was nearby and the condition was corrected within minutes. He also held that the boomlift was mobile equipment covered by the warning-device standard and that a spotter could not substitute for a functional audible alarm. The faulty alarm created a reasonably likely struck-by hazard for workers near the ten-ton lift, making that violation significant and substantial. Both citations were affirmed with moderate negligence, and penalties of $100 and $334 totaled $434.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1110, 77.410(c)
• Outcome: Both citations were affirmed, the alarm violation remained S&S, and penalties totaling $434 were assessed.
• Key point: Mobile equipment needs a warning alarm audible in its actual work environment, even when a spotter is used and the equipment has good visibility in some configurations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St. Suite 443

Denver, CO 80202-2500

TELEPHONE:
303-844-5266 / FAX: 303-844-5268

December 29, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),

Petitioner,

v.

PETRO CHEMICAL INSULATION INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2014-606

A.C. No. 15-00365-348946

Mine: Estill Co.

DECISION

Appearances:   Malia Lawson
Holzberger, Office of the Solicitor, U.S. Department of Labor

211
7th Avenue North, Suite 420 Nashville, TN 37219 

Thomas Strong, Venable LLP

750 East Pratt Street Suite
900

Baltimore, MD 21202

Before:                         Judge Simonton

I.
INTRODUCTION

This case is
before me on a civil penalty petition filed by the Secretary of Labor, acting
through the Mine Safety and Health Administration (MSHA), against Petro
Chemical Insulation Inc. (Respondent), pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820. This docket contains two 104(a)
citations issued by MSHA Inspector Jamie Daniels on March 11, 2014 at the
Respondent’s Estill Co. mine.

At hearing,
Inspector Daniels testified for the Secretary. Petro Chemicals supervisor Mauro
Fernandez testified for the Respondent. Both parties filed post-hearing briefs.
For the reasons that follow, Citation Nos. 8392133 and 8392134 are AFFIRMED
as originally written and assessed for a total civil monetary penalty of $434.00.     

II. FINDINGS OF FACT AND
CONCLUSIONS OF LAW

A. Citation
No. 8392133

MSHA Inspector Daniels issued
Citation No. 8392133 for an alleged violation of 30 CFR §77.1109(c)(1) on March
11, 2014. Daniels alleged within the citation that:

The fire
extinguisher being provided for the Genie S-60 Man lift (C/N 24-ML-02)
operating at this mine site has a indicator dial showing re-charge.

Sec’y Ex. 1,
1.

Daniels designated
Citation No. 8392133 as a moderate negligence violation that was unlikely to
contribute to the occurrence of an injury resulting in lost workdays or
restricted duty. Id. Daniels determined that the failure to recharge or
replace the fire extinguisher properly was not significant and substantial. Id.
The Respondent abated the citation by installing a fully charged fire
extinguisher approximately ten minutes after the citation was issued. Tr. 27. The
Secretary has proposed a regularly assessed penalty of $100.00 for Citation No.
8392133. Sec’y Petition, Ex. A. Prior to hearing, the
Secretary filed a motion to amend the cited standard to 30 CFR § 77.1110. Sec’y
Mot. to Amend, 1; Tr. 37.

1.     
Testimony

a.      
The Secretary

Inspector Daniels
testified that he had worked in the mining industry as a general laborer and
then a section foreman in underground coal mines from 1994 to 2007. Tr. 7. Daniels
stated that he had also received a bachelor’s degree in industrial technology
and a minor in mining technology. Tr. 6-7. Daniels testified that he started
with MSHA in 2007 and has completed the standard inspector training courses,
including classes regarding surface facilities and equipment. Tr. 9-10. Daniels
stated that he has performed preoperational checks on underground mobile
equipment as a miner and has inspected manlifts as an MSHA inspector on several
occasions. Tr. 8, 20.

Daniels stated that
he traveled to the Estill County mine on March 11, 2014 to perform a regular E
01 inspection. Tr. 14. Daniels described the Estill Co. mine as a surface coal
mine that excavated previously abandoned refuge coal and processed the refuge
coal for commercial markets. Tr. 15. Daniels explained that the mine site had
several processing facilities, including a train load out area where processed
coal was fed into train cars. Tr. 16.

Daniels stated that
Bowie Refined Coal was the primary operator of the plant and that Petro Chemicals
was one of a number of contractors working at the train load out facility. Tr.
15-16. Daniels explained that he checked in with the plant superintendent who
declined to accompany him on the inspection. Tr. 19. Daniels stated that when
he began inspecting the train load out facility there were at least six or
eight employees working in the area performing rewiring and sheet metal
installation. Tr. 17-18.

Daniels testified
that he approached a Genie manlift at around 10:30 AM and performed a standard
equipment inspection. Tr. 20-21. Daniels stated that in the course of
inspecting the lift, he checked the fire extinguisher mounted at the base of
the machine. Tr. 25-26. Daniels testified that he noticed that the dial for the
provided fire extinguisher read “recharge.” Tr. 25. Daniels stated that when
the dial reads recharge the fire extinguisher has been discharged or lost
pressure and the operator cannot be sure the fire extinguisher will work for
any length of time. Id. Daniels explained that he did not test the fire
extinguisher as MSHA regulations do not permit an inspector to perform a
destructive test on a mine operator’s equipment. Tr. 25-26.

Daniels testified
that he pointed out the uncharged fire extinguisher to Petro Chemicals foreman
Mauro Fernandez and issued Citation No. 8392133. Tr. 26-27. Daniels stated that
the Respondent replaced the uncharged fire extinguisher with a fully charged
fire extinguisher ten minutes later. Tr. 27.

b.     
The Respondent

Petro Chemicals
supervisor Mauro Fernandez testified that at the time of the inspection there
was an additional fire extinguisher located approximately twenty to twenty five
feet away from the Genie manlift. Tr. 70.

2.      The
Violation

The originally cited
standard, 30 CFR §77.1109(c)(1), requires all mobile equipment to be equipped
with at least one portable fire extinguisher. 30 CFR §77.1109(c)(1). 30 CFR § 77.1110
also mandates that, “firefighting equipment shall be continuously maintained in
a usable and operative condition.” 30 CFR § 77.1110. The cited Genie manlift
clearly qualifies as mobile equipment and was operating prior to the
inspection. Tr. 20, 28. Although there was a fire-extinguisher mounted on the
manlift, the pressure gauge indicated the fire extinguisher needed to be
recharged. Tr. 25.

The Respondent argues
that the Secretary failed to conclusively prove that the fire extinguisher was
non-operative as Inspector Daniels did not attempt to discharge it after noting
the pressure gauge indicated ‘recharge.” Tr. 25-26; Resp. Br., 2. However, the
Respondent did not present any rebuttal evidence indicating that the fire
extinguisher was in fact operational. Furthermore, Inspector Daniels credibly
testified that MSHA inspection policies prohibited him from ordering a possibly
destructive test. Tr. 25-26. As the Respondent has conceded that the gauge
indicated a recharge was necessary, the court concludes that the pressure gauge
reliably indicated that the fire extinguisher was improperly charged. Resp.
Br., 2; See Garden Creek Pocahontas Co., 11 FMSHRC 2153, 2154
(Nov. 1989); Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984)(Secretary may establish
the occurrence of a violation when the there is a rational connection between
the evidentiary facts presented and the ultimate fact inferred). Thus, the
court finds that the Respondent violated 30 CFR § 77.1110 in failing to keep
the cited fire extinguisher fully charged.

The Commission has stated
that gravity determinations for violations of emergency equipment standards
must be made while assuming the occurrence of an emergency. Spartan Mining
Co., 35 FMSHRC 3505, 3508-09 (Dec. 2013). However, Inspector Daniels
testified that there were no flammable accumulations on the manlift and that
the Respondent was able to replace the cited fire extinguisher within a matter
of minutes. Tr. 27. Thus, the court finds that even in the event of a fire on
the manlift, the violation was unlikely to contribute to the occurrence of an
injury and was not significant and substantial.

As the pressure gauge
indicated “recharge,” the Respondent should have identified that the fire
extinguisher needed to be recharged during a pre-operational inspection. Tr. 39.
However, the Respondent appears to have maintained other working fire
extinguishers in the immediate area. Tr. 27, 70. Based upon these mitigating
factors, the court finds that the negligence level for Citation No. 8392133 is moderate.
Tr. 70.

3.      Penalty

It is well established that
Commission administrative law judges have the authority to assess civil
penalties de novo for violations of the Mine Act. Sellersburg Stone Company,
5 FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil
monetary penalties, the Commission ALJ shall consider the six statutory penalty
criteria:

(1) the operator's history of previous
violations, (2) the appropriateness of such penalty to the size of the business
of the operator charged, (3) whether the operator was negligent, (4) the effect
on the operator's ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. 820(I).  

These criteria are generally incorporated by the Secretary
within a standardized penalty calculation that results in a pre-determined
penalty amount based on assigned penalty points. 30 CFR 100.3: Table 1- Table
XIV. The Secretary has proposed a regularly assed penalty of $100.00 for
Citation No. 8481807 based upon the 30 CFR 100.3 penalty tables. Sec’y Petition,
Ex. A.

The Respondent is a large operator with a relatively low
rate of total violations per inspection day and no indications of previous fire
protection violations. Sec’y Pet., Ex. A. I have found that the Respondent
acted with moderate negligence. The Respondent has stipulated that the proposed
penalty will not affect its ability to continue in business. Resp. Pre-Hearing
Report, 1. I have found that the violation was unlikely to result in an injury
and any injury that occurred would result in lost workday/or restricted duty. The
parties have stipulated that the Respondent promptly replaced the cited fire extinguisher
with a fully charged fire extinguisher. Sec’y Prehearing Report, 2; Resp.
Pre-Hearing Report, 2.

After
considering this evidence in light of all six statutory factors I uphold the
Secretary's proposed penalty and assess a penalty of $100.00 for Citation No.
8392133.

B. Citation
No. 8392134

MSHA Inspector Daniels
issued Citation No. 8392134 for an alleged violation of 30 CFR §77.410(a)(1) on
March 11, 2014. Daniels alleged within the citation that:

The audible alarm
provided for the Genie S-60 Man Lift (C/N 24-ML-02) operating at this mine site
is inoperable. This Man Lift operates in close proximity with miners on foot
and in loud surrounding noises. Anyone hit by a moving Man Lift would receive
crushing injuries.

Sec’y Ex. 1,
1.

Daniels designated
Citation No. 8392134 as a moderate negligence violation that was likely to
contribute to the occurrence of an injury resulting in lost workdays or
restricted duty. Id. Daniels determined that the failure to maintain an
audible alarm for the Genie S-60 manlift was significant and substantial. Id.
The Respondent abated the citation by installing a new audible alarm. Id.
The Secretary has proposed a regularly assessed penalty of $334.00 for Citation
No. 8392134. Sec’y Petition, Ex. A. Prior to hearing
the Secretary filed a motion to cite 30 CFR § 77.410(c) in the alternative. Sec’y
Mot. to Amend, 1.

1.     
Testimony

a.      
The Secretary

Inspector Daniels
testified that as part of his routine inspection of the S-60 manlift, he asked
the operator to move the lift in reverse. Tr. 28. Daniels stated that when the
operator put the lift in reverse, the alarm did not sound at all. Tr. 29. Daniels
explained that for this lift, he considered forward motion to be towards the
lift’s work platform and reverse to be away from the work platform. Id. Daniels
testified that he observed a welder and either a mechanic or electrician working
in the area at the time he issued the citation. Tr 21-22. He believed there would
be ten to twelve people working in the area over the course of a shift installing
metal sheeting. Tr. 33. Daniels stated that the lift did not make a lot of
noise when it moved and that the lack of a backup alarm in the busy
construction area made a serious crushing injury reasonably likely. Tr. 36, 41.

On
cross-examination, Daniels testified that in his experience and training, the
manlift could only be moved with the boom lowered. Tr. 44. However, Daniels
confirmed that he had never operated that particular model lift. Tr. 44-45. Daniels
also stated that he was not positive that the lift had been operated in reverse
on the day of the inspection. Tr. 45. During redirect examination, Daniels
clarified the operator would typically operate the manlift in reverse during a
normal shift to reposition the work platform. Tr. 52-53. Daniels stated that he
only asked the operator to move the lift in reverse while conducting his
inspection. Tr. 58-59. Daniels testified that when he returned to the site two
days after issuing the citation, the Respondent had replaced the alarm and the
alarm sounded a clearly audible beep when operated in reverse. Tr. 53-54.

b.     
The Respondent

Petro Chemicals
Supervisor Mauro Fernandez testified for the Respondent regarding the operation
of the Genie S-60 manlift. He stated that operators were instructed to
partially raise the operator basket before moving the lift and that the
operator basket had good visibility in both directions but that he always
looked behind him before moving the lift in reverse. Tr. 65-66. Fernandez
stated that the lift had a movement alarm that sounded in both forward and
reverse. Tr. 67-68, 75, 77.

Fernandez testified
that the alarm made some noise before Inspector Daniels issued Citation No.
8392134 but that it was very low and could not be heard over the noise of even
the lift’s engine. Tr. 67, 76. Fernandez stated that after the alarm was
replaced it was much louder. Tr. 67. Fernandez testified that the Respondent
had designated an employee to act as a spotter in order to position equipment
and direct traffic on the day of the inspection. Tr. 68. Fernandez stated that
there were two Petro Chemical’s employees in the area in addition to several
other contractors at the time of the citation. Tr. 69-70.

2.      The
Violation

30 CFR §77.410(a) mandates:

Mobile equipment
such as front-end loaders, forklifts, tractors, graders, and trucks, except
pickup trucks with an unobstructed rear view, shall be equipped with a warning
device that—

(1) Gives an audible alarm when the equipment is put in reverse;

30 CFR §77.410(a)(1).

The Respondent
argues that since the standard does not list boomlifts as a type of mobile
equipment, 30 CFR § 77.410(a)(1) does not apply to the Genie S-60 boomlift. Resp.
Br., 4. The Respondent is incorrect. The cited standard applies to all mobile
equipment not otherwise exempted and the examples given within the standard
following “such as” are not a definitive list. 30 CFR §77.410(a)(1). The
Respondent claims that the MSHA’s Program Policy Manual (PPM) indicates that
backup alarms are not required for equipment with unobstructed rear views. Resp.
Br., 4. However, MSHA’s PPM only exempts personal vehicle type equipment such
as “automobiles, jeeps, pickup trucks, and similar vehicles” including “service
vehicles” with unobstructed rear views from the standard. Sec’y Reply Br.,2; V
MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 77 Subpart E.

The Genie S-60
manlift moves under its own power. Tr. 29, 78. The Genie S-60 manlift is not an
automobile, jeep, pickup truck, or similar service vehicle. Tr. 66. Thus, the
Genie S-60 manlift is mobile equipment covered by the standard.

30 CFR §
77.410(c) further requires operators to maintain warning devices in a
functional condition. 30 CFR § 77.410(c). The Commission has held that the
cited regulation[1]
requires operators to continuously maintain backup alarms for all available
mobile equipment regardless of how the equipment is used throughout a
particular shift. Wake Stone Corp., 36 FMSHRC 825, 827-28 (April 2014). A
fellow ALJ has recently found that in order to be considered functional, a
back-up alarm must be loud enough to be heard above the surrounding work
environment. Buckley Powder Co., 37 FMSHRC 2115, 2117-18 (Sept. 2015)(ALJ
Miller). Additionally, none of the provisions of 30 CFR § 77.410 allow
operators to substitute employee spotters in place of audible back-up alarms. 30
CFR § 77.410. As such, while I found Fernandez’s testimony regarding the use of
a traffic spotter credible, that practice is irrelevant to evaluating the
alleged violation. Tr. 68.

Inspector
Daniels testified he could not hear the back-up alarm at all while Supervisor Fernandez
stated that the alarm did make some noise but that it was “very, very low” and
he had to stand right next to the machine to hear it. Tr. 29, 67. Although
Daniels only tested the alarm in one direction, Fernandez confirmed that the
alarm was a uni-directional alarm and that it was very hard to hear during the
operator’s own re-test. Tr. 58, 74-76. Fernandez also testified that the view
from the man basket was better than from a pick-up truck and that he always looked
behind him before moving in reverse. Tr. 66. However, as noted above, the
standard only exempts “pickup trucks with an unobstructed rear view”
from the back-up alarm requirement. 30 CFR §77.410(a)(emphasis added).

Furthermore,
the court notes that the Genie S-60 manlift basket had a continuous 360 degree
range of horizontal motion in combination with over 90 degrees of vertical
motion. Genie S-60 Service Manual, 2-1.[2]
Although the Genie S-60 was equipped with a drive enable device that would prevent
travel in certain positions, that function could be overridden with a simple
toggle switch. Genie S-60 Service Manual , 4-16. Thus, it is reasonably likely
that the Genie S-60 boomlift would be operated with significant blind spots
beneath and behind the man-basket during ordinary continued mining operations.  

The Respondent
objected to Inspector Daniels’s characterization of “reverse” and “forward” for
the Genie S-60 manlift and his manner of testing the back-up alarm. Tr. 44-45,
58-59; Resp. Br. 8. The court finds the Respondent’s objections unavailing on
multiple grounds. The Respondent’s own witness, Supervisor Fernandez, stated
that the Genie S-60 boomlift had a movement alarm that was supposed to sound in
both “forwards” and “reverse”. Tr. 67-68, 75, 77.

Similarly, the Genie
S-60 service manual also states that the “travel” alarm should sound whenever
the “drive controller is moved off center in either direction.” Genie S-60
Service Manual , 4-47. As both Inspector Daniels and Supervisor Fernandez credibly
testified that the alarm could not be heard when the boomlift was put in drive,
it is apparent that the “travel” alarm was not functioning properly. Tr. 29,
67, 76. Furthermore, as outlined above, the multiple configurations and drive
directions of the Genie S-60 boomlift would result in shifting blindspots and relative
directions of “forwards” and “reverse.” For these reasons, having demonstrated
that the travel/back-up alarm did not function properly when tested by
Inspector Daniels, the Secretary has properly shown that the Respondent
violated 30 CFR § 77.410(c).

a.       Gravity

A violation is Significant & Substantial (S&S),
"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 (Apr. 1981).

In order to uphold a citation as S&S, the Commission
has held that 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. Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

An S&S designation must be based upon the
particular facts surrounding the violation and must be made in the context of
continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500
(Apr. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July
1984).

In this case, the Respondent violated a
mandatory safety standard, 30 CFR 77.410(c), by failing to repair the faulty
back up alarm on a mobile manlift. The violation exposed workers to the hazard
of a ten ton lift operating in reverse without an audible alarm that would
alert workers of the approaching vehicle. Tr. 23. The manlift was operating in
an active construction area with at least two workers on the ground in the
immediate vicinity. Tr. 21-22, 69. Although Supervisor Fernandez credibly
testified that the Respondent designated traffic spotters, the Commission has
held that employee diligence does not mitigate the seriousness of an
established hazard. Tr. 68; Eagle Nest, Inc., 14 FMSHRC 1119, 1123

Accordingly, I find that there was a reasonable likelihood
that the safety hazard created by the faulty back up alarm would result in a
struck-by injury to workers at the train load-out facility. Given the heavy
weight of the manlift, I find that the violation created the risk of at least a
lost time injury to one worker. For all these reasons, I affirm the designation
of Citation No. 8392134 as a Significant and
Substantial violation.

b.      Negligence

The operator should have
identified that the back-up alarm was not functioning properly during a diligent
pre-operational inspection. Tr. 39. However, as Supervisor Fernandez credibly
testified that the alarm did make some minimal noise, it appears that the alarm
may have been damaged shortly before the MSHA’s inspection or not flagged
during routine pre-operational checks. Additionally, Fernandez credibly
testified that the Respondent attempted to prevent equipment collisions within
the work-site by employing a traffic spotter. Tr. 68. For these mitigating
factors, I find that the operator acted with moderate negligence for Citation
No. 8392134.

3.      Penalty

The Respondent is a large operator with a relatively low
rate of total violations per inspection day and no repeat violations of 30 CFR
77.410(c) in the 15 months prior to the citation at issue. I have found that
the Respondent acted with moderate negligence. The Respondent has stipulated
that the proposed penalty will not affect its ability to continue in business. I
have found that the violation was reasonably likely to result in at least a
lost-time injury. The parties both testified that the Respondent promptly
installed a new back-up alarm that gave off a much louder alarm. Tr. 32, 67. Accordingly,
I find that the originally assessed penalty of $334.00 is an appropriate civil
penalty.

III. ORDER

The Respondent, Petro
Chemical Insulation Inc., is ORDERED to pay the Secretary of Labor the total
sum of $434.00 within 30 days of this order.[3]

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (First Class U.S. Mail)

Malia Lawson Holzberger,
Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue
North, Suite 420 Nashville, TN 37219 

Thomas Strong, Venable LLP, 750
East Pratt Street Suite 900, Baltimore, MD 21202

[1]
Wake Stone Corp analyzed a citation issued under the Secretary’s Surface
Metal/Non-Metal standards, specifically, 30 CFR §56.14132, which contains a
nearly identical command to equip and maintain functional back-up alarms on
mobile equipment.

[2]
Prior to issuing this decision, the court notified the parties of his intent to
take judicial notice of the publically available service manual for the Genie
S-60 manlift. Union Oil, 11 FMSHRC 289, 300 n.8 (March 1989)(Stating
that judicial notice can be taken of the existence or truth of a fact or other
extra record information that is not the subject of testimony but is commonly
known, or can safely be assumed to be true).

[3]
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390