Secretary of Labor v. Conveyor Belt Services, Inc.

Plain-English summary

Conveyor Belt Services employees spliced a belt at U.S. Steel's Minntac Mine while standing or kneeling on the belt and a temporary ladder, toolbox, and plywood structure about 51 to 55 inches above the floor. Neither surface had handrails, and the employees used no fall protection during work lasting about 45 minutes to an hour. The Judge held that the belt bed and temporary structure were working platforms under section 56.11027 and that the company had fair notice that handrails were required. He found the violation S&S, highly negligent, and an unwarrantable failure because a supervisor had received a similar citation and warning, the practice was foreseeable, and a fall could cause a serious injury. The prior planning meeting and MSHA guidance referencing a six-foot OSHA rule did not mitigate negligence because the crew improvised a different work method and the guidance allowed site-specific judgment. The Judge assessed the statutory minimum $2,000 penalty for an S&S section 104(d)(1) violation.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.11027
• Outcome: The citation was affirmed as S&S, high negligence, and unwarrantable failure, with a $2,000 penalty.
• Key point: A conveyor belt and makeshift support become working platforms when employees use them as elevated surfaces to perform belt-splicing work.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH  

ADMINISTRATION
(MSHA),

Petitioner,

v.

CONVEYOR
BELT SERVICES, INC.,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2014-0255

A.C.
No. 21-00282-343682

Mine:
Minntac Mine

DECISION
AND ORDER

Appearances:
              Laura Ilardi Pearson, Esq., U.S. Department of Labor, Office of
the Solicitor, Denver, CO, for Petitioner;

Justin Winter,
Esq., Law Office of Adele Abrams, PC, Beltsville, MD, for Respondent.

Before:                        Judge
L. Zane Gill

This proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1994) (“Mine Act” or “Act”), involves one section 104(d)(1) citation, issued
by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to
Conveyor Belt Services, Inc. (“CBS”) at the U.S. Steel Company’s Minntac Mine
(“the Mine”). The parties presented testimony on December 9, 2014, in Duluth,
Minnesota.

The contested
issues at trial for Citation No. 8740887 (“the Citation”) included whether CBS
violated 30 C.F.R. § 56.11027, whether CBS had fair notice of the Secretary’s
interpretation of the standard, whether the violation warranted enhanced
enforcement, and whether the penalty was properly assessed.

For the reasons
set forth below, I find CBS violated 30 C.F.R. § 56.11027 and had fair notice that
the conveyor belt bed and temporary structure were working platforms under the
standard. I also find CBS’s violation was properly classified substantial and
significant (“S&S”), and an unwarrantable failure. Finally, I find the
violation involved high negligence and was reasonably likely to result in lost
workdays or restricted duty. I assess a penalty in the amount of $2,000.00.

Stipulations

The
joint stipulations were read into the record at the hearing: (Tr. 92:20-94:16)

1.      At all times
relevant to this proceeding Conveyor Belt Service, Inc., which is known as CBS,
Contractor ID# G10, was engaged in mining operations and subject to the jurisdiction
of Federal Mine Safety and Health Act of 1977.

2.      At the time the
citation that is that the subject of this case was issued, Conveyor Belt
Service was engaged in mining operations at the Minntac Mine. Mine. Mine ID#
21-00282.

3.     
MSHA
has jurisdiction over CBS’s operations at the Mine because CBS was an

operator as
defined in Section 3(b) of the Act, 30 U.S.C., Section 803, and the products of
the Mine entered the stream of commerce or the operations or products thereof
affected commerce within the meaning and scope of Section 4 of the Act. 30
U.S.C. Section 803.

4.     
The
Administrative Law Judge has subject matter and personal jurisdiction over
these

proceedings
pursuant to Section 105 of the Act.

5.      CBS’s operations
affect interstate commerce.

6.      On or about
December 11, 2013, MSHA inspected the Mine.

7.      MSHA Inspector
Thaddeus Sichmeller was acting in his official capacity as an

authorized
representative of the Secretary when he inspected the Mine and issued the
subject citation.

8.      CBS abated the
alleged violation in good faith.

9.      The proposed
penalties in this matter will not affect CBS's ability to remain in business.

10.
Stipulation as to the authenticity of exhibits. The certified copy of the MSHA
Assessed Violations History, Exhibit GX1, reflects the history of the Mine for
the 15 months prior to the date of the Citation and may be admitted into
evidence without objection by CBS.

11.
The parties stipulated to the authenticity but not the truthfulness or relevance
of the content of the following exhibits:

a)
Citation 8740887.

b) Citation
documentation related to 8740887.

c) Photographs
associated with citation 8740887.

d) Citation
8664341.

e) Complete
inspection report for event number 6631817.

f) Deposition
transcript of Thaddeus Sichmeller.

g) MSHA Program
Policy Letter P12-IV-01.

Background

On
December 11, 2013, MSHA Inspector Thaddeuys Sichmeller[1] (“Inspector
Sichmeller”) issued the Citation to CBS, alleging a violation of 30 C.F.R. §
56.11027, pursuant to § 104(d)(1) of the Mine Act. The regulation requires that
“[s]caffolds and working platforms shall be of substantial construction and
provided with handrails and maintained in good condition.” 30 C.F.R. §
56.11027. Section 56.11027 is a mandatory safety standard. The citation
alleges:

Two employees
were observed conducting belt work on the 003-01 conveyor in the basement area
of Step 1 and 2 Fines Crusher. The two employees were working from a makeshift
work platform making a belt splice. The two employees were not protected from a
fall from the work area. The top of the work area to the concrete floor below
measured 51 inches on the south side and 55 inches on the north side due to the
sloped concrete floor. The company has had similar violations in the past. The company
has engaged in aggravated conduct by allowing the work to conduct in this area with
out [sic] the proper protection of from [sic] a fall from the work platform.
This violation is an unwarrantable failure to comply with a mandatory standard.

(Ex.
GX 1)

U.S.
Steel contracted with CBS, a company specializing in conveyor belt maintenance,
to perform work at the Mine.[2]
(Tr. 8:1-2; 9:2-4) On the date of the alleged violation, six CBS employees,
supervised by CBS foreman Kelly Theil[3]
(“Theil”), were performing conveyor belt maintenance on multiple levels of the Mine.
(Tr. 67:2-10) The two employees cited[4]
were replacing a fifty-four-inch wide conveyor belt in the “basement” area of
the Mine.[5]
(Tr. 72:22-73:4)

To
replace the conveyor belt, the employees had to splice the ends of the new belt
together. (Tr. 9:25-10:15) This process involved punching holes in the ends of
the belt, putting clips in the holes to attach the belt, and sealing the belt. Id.
Because the belt was one-inch thick and very stiff, attaching the ends required
flattening the belt. (Tr. 74:10-14; 75:19-25) To flatten the belt, the employees placed it on a
temporary structure fashioned from a stepladder, two steel toolboxes, and a
piece of plywood. (Tr. 76:10-15) This temporary structure rested on the
conveyor belt bed, which measured forty-one inches from the ground. (Tr. 76:21)
The temporary platform measured fifty-one inches from the ground on its south
side and fifty-five inches on its north side.[6]
(Tr. 23:19-23; see also Ex. G6)

Once
the employees laid the conveyor belt ends on the temporary structure, they stood
on the conveyor belt (which was placed on the conveyor belt bed) to attach the
middle portion of the belt. (Tr. 10:25-11:4) When Inspector Sichmeller observed
the alleged violation, one of the employees was standing on the conveyor belt
and the other was kneeling on the belt. (23:4-23:10) However, Inspector
Sichmeller’s testimony does not make clear whether the employees were on the
portion of the conveyor belt resting directly on the conveyor belt bed or the
portion resting on the temporary structure. (Tr. 23:3-17; 38:7; 39:13) Both the
conveyor belt bed and temporary structure lacked handrails, and the employees
were not wearing fall protection. (Tr. 24:13-16) Inspector Sichmeller testified
that a fall from the conveyor belt bed or temporary structure could cause
sprain-strains, broken bones or, even, fatalities. (Tr. 25:4-15; 27:2-9) The
employees were on the conveyor belt for an estimated forty-five minutes to an hour.
(Tr. 75:24-25; 81:17-19)

Theil
testified he was on an upper level of the Mine when Inspector Sichmeller saw
the employees on the conveyor belt. (Tr. 78:1-6) However, Inspector Sichmeller
testified that Theil was present in the “basement” area when he observed the
violative condition. (Tr. 35:11-14)

About
a year-and-a-half before issuing the Citation, Inspector Sichmeller issued Citation
No. 86604341 (“citation 341”) to CBS for a similar violation at another U.S.
Steel mine. (Tr. 29:8-30:6) Citation 341 alleged that Theil, who was
supervising the job, and two CBS employees, violated 30 C.F.R. § 56.15005[7] by standing
on an elevated conveyor belt and cable tray without fall protection. (Tr.
30:7-12) The conveyor belt involved in citation 341 was fifty-two inches high
and fifteen inches wide. (Ex. G9) The cable tray was about thirty-eight inches high.
(Tr. 32:18-24) When Inspector Sichmeller issued citation 341, he spoke to Theil
about fall hazards and the need for fall protection or hand railings when
working on elevated surfaces. (Tr. 33:4-11)

Inspector
Sichmeller classified the violation as S&S, high negligence and an
unwarrantable failure, in part, because he had previously cited CBS. (Tr.
8:18-22; 61:10-13) Additionally, he considered the presence of tools, mud, and water
on the belt when he issued the Citation an aggravating factor. (Tr. 60:3-10)

Prior
to beginning the job at Minntac Mine, Theil reviewed U.S. Steel’s safety
policies, which included an Occupational Health and Safety Administration
(“OSHA”) rule requiring fall protection at heights of six-feet or more. (Tr.
19:5-11; 20:1-6) In June, 2012, MSHA issued Program Plan Letter P12-IV-01 (“PPL”)
on fall protection. (Ex. R5) The PPL included OSHA’s six-foot rule for
inspectors to consider when issuing citations for violations of MSHA standards
56.15005 and 57.15005. (Tr. 20:7-20) Inspector Sichmeller testified that MSHA
inspectors view the PPL as a “guideline.” Id.

CBS
also held a safety meeting with U.S. Steel before commencing work on the job. (Tr.
68:15-17) During this meeting, the companies discussed the safety equipment
needed for every segment of the job and determined that fall protection was not
required for work in the “basement” area. (Tr. 68:18-69:16; 70:22-25) However,
the companies did not discuss the possibility of the employees constructing a
temporary structure of the kind they ultimately made. (Tr. 85:24-86:7) Theil
testified the decision to make the temporary structure was “spur-of-the moment,”
and that he did not witness the employees erect the structure. (Tr. 85:15-86:7)
However, he testified he had seen platforms of this kind used to flatten belts
in the past. (Tr. 86:8-21)

When Inspector
Sichmeller issued the citation, the employees came to the ground. (Tr. 36:21-25)
Subsequently, the employees used handrails, surrounding the conveyor belt, to
complete the belt splice. (Tr. 81:7-11)

Brief
Summary of the Parties’ Arguments

Secretary
of Labor

The
Secretary argues the Citation was properly issued because CBS violated §
56.11027 by failing to equip a working platform with handrails. (Tr. 8:18-19) The
Secretary argues the temporary structure was a working platform.[8] (Sec. Br.
12) He defines a working platform as “a place from which miners may perform
work on areas they otherwise could not reach,” regardless of height. (Sec. Br.
12) The Secretary contends the violation warranted enhanced enforcement because
Inspector Sichmeller’s testimony supported findings of S&S and an
unwarrantable failure. Id. at 13-17. The Secretary argues the penalty
was properly assessed based on CBS’s high negligence and the likelihood that
the injury would result in lost workdays or restricted duty. (Ex. GX 2)

Conveyor
Belt Service, Inc.

CBS argues the Citation
should be vacated because the Secretary failed to prove the company violated §
56.11027. (Resp. Br. 2) CBS contends the Secretary erred in interpreting the regulation
to require handrails on working platforms of any height. Id. at. 7. Alternatively,
CBS argues the citation should be vacated because the company did not have fair
notice that the standard mandated the use of handrails on surfaces less than
six feet high. Id. at 2. CBS also challenges the Secretary’s finding
that the violation warranted enhanced enforcement. Id. CBS argues the
violation was not S&S because there were many factors that made a fall
unlikely to occur. Id. at 13. Additionally, CBS argues the violation was
not an unwarrantable failure because their actions did not meet the six
requirements of an unwarrantable failure. Id. at 16-17. Finally, CBS
argues the violation should be reclassified as low or no negligence because
Theil was not aware of the violation and there were mitigating factors. Id.
at 14-15.

Violation

Under
the Mine Act, mine operators are strictly liable for violations, provided the
conditions violating the regulation existed. Asarco v. Comm’n, 868 F.2d
1195, 1197 (10th Cir. 1989). If such conditions existed, the Secretary is not
required to demonstrate that the violation creates a safety hazard. Allied
Prods, Inc. v. Comm’n, 666 F.2d 890, 892 (5th Cir. 1982).

The
Conveyor Belt was a Work Platform Under § 56.11027

CBS argues the Secretary failed to prove
they violated § 56.11027 because the temporary structure was not a working
platform. (Tr. 9:21-24)[9]
The Secretary argues the standard mandates the use of handrails on all working
platforms, which he defines as places “from which miners may perform work on
areas they otherwise could not reach.” (Sec. Br. 12; Tr. 52:14-17) CBS believes
this interpretation is erroneous because it would lead to the absurd result of
requiring handrails on all elevated surfaces, even those that are only two or
three inches off the ground. (Resp. Br. 7)  Additionally, CBS argues this interpretation
contradicts MSHA’s PPL on the minimum height at which fall protection is
necessary. Id.

“The language of a regulation or statute
is the starting point for its interpretation.” Dyer v. United States, 832
F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980)).
The Commission has found, when the language of a regulation is clear, “the ordinary meaning of words must prevail
where that meaning does not thwart the purpose of the statute or lead to an
absurd result.” Emery Mining Corp., 9 FMSHRC 1997, 2001 (December 1987) (citing
In re Trans Alaska Pipeline Rate Case, 436 U.S. 631, 643 (1978)). “In
the absence of a statutory or regulatory definition of a term, or a technical
usage, we look at the ordinary meaning of the terms used in the regulation.” Bluestone
Coal Corp., 19 FMSHRC 1025, 1029 (June 1997). Whether a regulation is ambiguous
is determined by “referring to the language itself, the specific context in
which that language is used, and the broader context as a whole.” Robinson
v. Shell Oil Co., 519 U.S. 337, 341 (1997).

When a mandatory standard of the Mine
Act is ambiguous, “the courts and the Commission defer to the Secretary’s reasonable
interpretation of the regulation.” Twentymile Coal Co., 36 FMSHRC 2009,
2012 (Aug. 2014). An
interpretation is reasonable if it is “logically consistent with the language
of the regulation[s] and . . . serves a permissible regulatory function.” General
Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (quoting Rollins Envtl.
Serv., Inc., 937 F.2d 649, 652 (D.C. Cir. 1991)). Deference to an agency interpretation
can be due even if the interpretation is articulated in a legal brief. See
Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156, 2166 (2012).

The term working platform is not defined
in the Mine Act or any MSHA regulations. Also, there is no technical definition
of the term as it relates to the facts surrounding the Citation.[10] However, MSHA
regulations define a working place as “any place in or about a mine where work
is being performed.” 30 C.F.R. § 56.2. Merriam Webster’s Online Dictionary
defines platform as “a flat surface that is
raised higher than the floor or ground and that people stand on when performing
or speaking” or, “a usually raised structure that has a flat surface where
people or machines do work.” Merriam Webster's
Online Dictionary, http://www.merriam-webster.com/dictionary (last accessed
Jun. 10, 2016). Taken together, the definitions
of working place and platform indicate that a working platform is a flat,
elevated surface where work is performed.

This plain meaning
comports with the purpose of the regulation—to “prevent a fall”—as to fall, one
must generally be on a surface above ground level. See Granite Rock
Co., 32 FMSHRC 1792, 1794 (Nov. 2010) (ALJ Weisberger). Therefore, I find the
standard unambiguous. Additionally, I find that the plain meaning of § 56.11027
does not thwart
the purpose of the statute or lead to an absurd result because it protects against falls that could potentially injure miners.
Judges have also interpreted working platform in a way consistent with the
term’s ordinary meaning. See Voss Sand Works, Inc., 34 FMSHRC
906, 913 (Apr. 2012) (ALJ Miller) (holding a boat was a working platform
because it was “an elevated, horizontal, flat surface”); Lakeview Rock Products, 19 FMSHRC 321, 359
(Feb. 1997) (ALJ Koutras) (holding that an overturned 55-gallon drum elevated
34.8 inches off the ground was a work platform). Therefore, I find the plain
meaning of the regulation should govern here.

As I find the
regulation unambiguous, there is no need to defer to the Secretary’s
interpretation of the standard.[11] I find the conveyor belt bed
and the temporary structure served as working platforms because they were elevated,
flat surfaces the employees stood on to perform a belt splice. Because the
conveyor belt bed and temporary structure were working platforms and lacked
handrails, I find CBS violated § 56.11027. Even if it were possible to claim some
ambiguity remains in the regulation, I find the deference accorded to
reasonable interpretations by the Secretary outweighs CBS’s argument that
handrails were not required on the conveyor belt bed and temporary structure.

The Operator Had
Fair Notice of § 56.11027

CBS
argues it did not have notice handrails were required on a surface less than
six feet above the ground. (Resp. Br. 12) This argument is based on MSHA’s
issuance of a PPL, which says inspectors may use the OSHA six-foot rule in
interpreting 30 C.F.R. §§ 56.15005 and 57.15005. (Resp. Br. 8; see also
Ex. 5R)

Under
the due process clause, an agency may not enforce a new interpretation of a
regulation without advance notice of the conduct prohibited or required by the
standard. Gates & Fox Co. v. Occupational Safety and Health Review
Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986). The notice requirement is
generally satisfied when a party receives actual notice of MSHA’s
interpretation of a regulation prior to enforcement of the standard against the
party. LaFarge North America, 35 FMSHRC 3497, 3500 (Dec. 2013). In the
absence of sufficient evidence of actual notice, the Commission applies the
“reasonably prudent person” test. See id. In Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982), the Commission
articulated the reasonably prudent person test as follows: “whether a reasonably
prudent person familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action within the
purview of the applicable regulation.”

However,
actual notice or notice via the “reasonably prudent person” test is not
required when a regulation is clear, as an unambiguous standard itself provides
fair notice to operators of its requirements. See Jim Walter
Resources, Inc., 28 FMSHRC 983, 988 n.6 (Dec. 2006) (citing Bluestone
Coal Corp., 19 FMSHRC 1025, 1031 (June 1997)). Because the meaning of
“working platform” under § 56.11027 is clear, I find CBS had fair notice the
conveyor belt bed and temporary structure were working platforms, and,
therefore, required handrails. Even if it could be argued the standard is
ambiguous, I find citation 341 provided CBS with actual notice or, at a
minimum, fair notice under the “reasonably prudent person” test that handrails
were required on the conveyor belt.

Enhanced
Enforcement

To invoke the
enhanced enforcement provisions for mandatory safety standards set out in § 140(d),
the Secretary must prove the violation satisfies the S&S and unwarrantable
failure standards. See Lodestar Energy, Inc., 25 FMSHRC 343, 345
(Jul. 2003).

Significant
and Substantial

The
Secretary designated the citation S&S. (Ex. G2). S&S determinations are
made based on the specific facts of the case. See Cumberland Coal
Res., LP, 33 FMSHRC 2357, 2369 (Oct. 2011); National Gypsum
Co.,
3 FMSHRC 822, 825 (Apr. 1981). A finding of S&S requires that the Secretary
prove:

(1) underlying
violation of a mandatory safety standard; (2) a discrete safety standard—that
is, a measure of danger to safety—contributed to by the violation; (3)
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 (Jan. 1984). The violation
satisfies the first element of the test because § 56.11027 is a mandatory
safety standard. (Ex. GX 2)

“The second
element of Mathies requires the Secretary to demonstrate that the
violation contributed to a safety hazard.” Oak Grove Res., LLC, 37 FMSHRC
2687, 2696 (Dec. 2015). The Commission has said to be a “hazard,” a violation
must contribute to a specific danger. See Mathies, 6 FMSHRC at
3-4. A violation is not S&S if it is non-dangerous. See U.S.
Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984) (citing Gypsum,
3 FMSHRC at 827. However, even if a hazard is unlikely to occur, a violation
can be deemed S&S. See Musser Eng’g, Inc., 32 FMSHRC 1257,
1280 (Oct. 2010). Whether a violation is S&S is determined in the context
of continued mining operations and “cannot ignore the dynamics of the mining
environment or process.” U.S. Steel, 6 FMSHRC at 1574. I find the Secretary demonstrated the violation
contributed to a safety hazard, satisfying the second element of the test,
because the lack of handrails contributed to the risk of falling off the
conveyor belt from either side. (Tr. 20:25-21:3)

The Commission
has held element three does not require the Secretary to show it is more
probable than not that an injury will result from violation. See U.S.
Steel Mining Co., 18 FMSHRC 862, 865 (June 1986). The hazard, rather than
the specific violation, must be “reasonably likely to result in an injury” for the
violation to be deemed S&S. Peabody Midwest Mining, LLC v. FMSHRC,
762 F.3d 611, 616 (7th Cir. 2014). An inspector’s judgment is an important
factor in determining whether there is “a reasonable likelihood that the hazard
contributed to will result in an injury.” Harlan Cumberland Coal Co., 20
FMSHRC 1275, 1278-79 (1998) (holding an inspector’s belief that hanging
drawrock posed a reasonable likelihood of injury to miners was persuasive). In Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995), the Seventh Circuit
held no evidence beyond the testimony of an experienced mine inspector is
necessary to support a finding of S&S.

Inspector
Sichmeller testified an injury was reasonably likely because the employees were
exposed to a fall hazard without fall protection, and there were tools and mud
on the belt. (Tr. 26:12-22) Earlier that year, Inspector Sichmeller witnessed a
fatal fall from a work platform of less than six feet. (Tr. 25:12-26:9) Theil
testified the employees only would have been on the conveyor belt for about
forty-five minutes and that CBS employees have used temporary structures to
complete belt splices in the past. (Tr. 75:19-75:25) Additionally, Theil
testified fall protection was not necessary because the employees were standing
on a flat, wide area. (79:19-80:2) However, Inspector Sichmeller estimated the
employees were on the conveyor belt for closer to an hour. (Tr. 36:2-9) Also,
Theil’s testimony that he has seen similar structures used in the past
indicates he was aware the employees might stand on the belt because it would
be difficult to reach an elevated temporary structure from the ground. Although
the employees were only on the belt for forty-five minutes to an hour, and the
conveyor belt was wide and flat, the tools and water on the belt made an injury
reasonably likely. I credit Inspector
Sichmeller’s judgement that the violation was reasonably likely to result in an
injury.

The
remaining factor in the S&S designation, the fourth element of the Mathies
test, is concerned with the likely gravity of an accident. To be of a
“reasonably serious nature” an injury does not need to “result in
hospitalization, surgery, or a long period of recuperation.” S&S
Dredging Co., 35 FMSHRC 1979, 1981-82 (July 2013). Injuries such as “muscle
strains, sprained ligaments, and fractured bones are injuries of a reasonably
serious nature,” and have been deemed “reasonably serious.” Id. Additionally,
the Secretary is not required to show a similar type of injury has actually
occurred. See Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005) I
find the violation meets the fourth element
of the test because a fall from the conveyor belt bed or temporary structure is
reasonably likely to result in sprain strains, broken bones and fatalities.
(Tr. 25:10-15) As stated earlier, Inspector
Sichmeller observed an injury of this kind when a miner died as a result of a
fall from a similar height. (Tr. 25:12-26:9) All of these injuries are
considered reasonably serious under the test. Since all the Mathies
elements are proven, I find the violation was S&S.

Unwarrantable
Failure

The
Secretary argues the violation satisfies the unwarrantable failure criteria because
aggravating factors were present. (Sec. Br. 17) CBS argues the facts with which
the Secretary supports a finding of unwarrantable failure are not aggravating
factors. (Resp. Br. 16)

An
unwarrantable failure is characterized by conduct such as “reckless disregard,”
“intentional misconduct,” indifference,” or a “serious lack of reasonable
care.” Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (1991). The
Commission has defined an unwarrantable failure as “aggravated conduct
constituting more than ordinary negligence.” Emery, 9 FMSHRC at 2001.

Whether conduct
is ‘aggravated’ in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any
aggravating factors exist, such as the length of time that the violation has
existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts are necessary for compliance, the
operator's efforts in abating the violative condition, whether the violation is
obvious or poses a high degree of danger, and the operator's knowledge of the
existence of the violation.

Lopke Quarries,
Inc.,
23 FMSHRC 705, 711 (2011). “While each factor does not need to be present in
order to find unwarrantable failure, all six factors must be considered.” Alden
Resources, LLC, 37 FMSHRC 753, 767 (April 2015) (ALJ Andrews).

The
Secretary argues the violation was long because any exposure to a fall hazard
is “too long.” (Sec. Br. 17) Although it is uncertain how long the employees
were on the conveyor belt, the court must take even imperfect evidence in the
record into account when evaluating whether a violation was an unwarrantable
failure. Coal River Mining, LLC, 32 FMSHRC 82, 93 (Feb. 2010). Even if violation
occurs for a relatively short period, it can be deemed of long duration for
unwarrantable failure purposes if there is a high degree of danger. See Engineering
& Constructors, 24 FMSHRC 669, 679-80 (Jul. 2002) (finding a four to
five foot gap in a hand rail, 70 feet above the ground, was a violation of long
duration even though it only existed for two days); Midwest Material Company,
19 FMSHRC 30, 34-36 (Jan. 1997) (holding a violation was an unwarrantable
failure, even though it only occurred for a few minutes, because it posed a
high degree of danger, involved a foreman, and may have continued, but for
occurrence of accident). Although the violation here only lasted for forty-five
minutes to an hour, it posed a high degree of danger and a fall, resulting in a
serious injury, was possible within the short period of time the employees were
on the conveyor belt.

The
Secretary also argues any exposure to a fall hazard is “too extensive.” The
extent of a violation “has traditionally been determined by examining the
extent of the affected area as it existed at the time the citation was issued.”
Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 3079 (Dec. 2014). “In
some situations . . . extensiveness depends on the number of persons affected
by the violation.” Id. at 3079-80. CBS’s violation only affected a small
area of one conveyor belt and two employees; therefore, I find the violation
was not extensive.

The
Secretary argues CBS was on notice that handrails were necessary on the
conveyor belt for compliance with § 56.11027. (Sec. Br. 15-16) “The Commission
has stated that repeated similar violations are relevant to an unwarrantable
failure determination to the extent that they serve to put an operator on
notice that greater efforts are necessary for compliance with a standard.” Brody
Mining, LLC, 37 FMSHRC 1687, 1698 (Aug. 2015). As discussed earlier, CBS
was cited for a similar violation a year-and-a-half earlier. Although a single
citation does not rise to the level of “repeated” violations, the same foreman
supervised both jobs and was expressly put on notice that fall protection was
necessary when performing work on elevated conveyor belts. (Tr. 31:16-25) For
this reason, I find CBS was on notice that greater efforts were necessary for
compliance with the standard.

The
Secretary argues the violation was obvious. (Sec. Br. 17) A condition is
obvious when it could be observed by a supervisor or inspector. See E.
Associated Coal Corp., 32 FMSHRC 1189, 1200 (Oct. 2010). The violation at
issue meets this definition because Inspector Sichmeller saw the employees
standing on the conveyor belt as soon as he walked into the “basement” area.

Finally,
CBS claims Inspector Theil did not know the employees planned to stand on the
belt to complete the splice. (Resp. Br. 14) They argue the employees’ violation
cannot be imputed to the company because the employees acted unilaterally in
standing on the belt. Id. However, there is contradictory testimony
regarding Theil’s location when the employees were on the conveyor belt,
meaning it is possible Theil witnessed the employees use the belt as a work
platform. Theil testified he had seen employees use a temporary structure, like
the one built by the employees, to flatten out conveyor belts in the past. (Tr.
76:2-4) This testimony, along with Theil’s admission that, before receiving citation
341, CBS had done similar conveyor belt changes fifty times without fall
protection, indicates Theil should have known the employees might stand on the
belt to complete the splice. (Tr. 72:4-7) Therefore, I find Theil knew, or had
reason to know, of the violation.

Because
CBS’s actions meet the majority of requirements for an unwarrantable failure, I
find the violation was an unwarrantable failure. Additionally, as the violation
was S&S and an unwarrantable failure, I find enhanced enforcement was
warranted.

Penalty

The Secretary proposed
a $2,000 penalty for CBS’s violation.[12]
(Ex. G2) CBS argues this penalty is too high because the violation was low or
no negligence. (Resp. Br. 14-15)

The Mine Act
sets forth the following criteria for the Commission to weigh in assessing
civil penalties:

(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 in abatement of the
violative condition.

30 U.S.C. § 820(i). The Secretary uses
the same criteria in determining proposed penalties. See Sellersburg
Stone Co., 736 F.2d 1147, 1151 (7th Cir, 1984). While Commission judges may
weigh some of the six penalty assessment criteria more heavily than others,
they must address each of the criterion in his or her decision. See Musser
Eng’g, Inc., 32 FMSHRC 1257, 1289 (Oct. 2010); Sellersburg Stone Co.,
5 FMSHRC 287, 293 (Mar. 1983).

Commission
judges may set civil penalties, provided the penalty serves as an effective
deterrent against future violations. See Cantera Greene, 22
FMSHRC 616, 620 (May 2000). Commission judges are not bound to the Secretary’s
proposed penalty assessments. See Sellersburg, 736 F.2d at 1151. However,
if the Commission’s assigned penalty differs substantially from the penalty
proposed by the Secretary, the Commission must provide an explanation
justifying the change. Sellersburg, 5 FMSHRC at 293. It is appropriate
for a judge to raise the penalty significantly based on his or her findings of
extreme gravity and unwarrantable failure. Spartan Mining, 2008 W.L.
4287784, at *23 (FMSHRC Aug. 28, 2008). Judges are free to give greater weight
to the negligence and gravity of a violation when assessing penalties. See
Lopke, 23 FMSHRC at 713.

Negligence

Inspector
Sichmeller cited the violation as high negligence because he issued CBS and
Theil a citation for a similar violation a year-and-a-half earlier. (Tr.
34:21-35:4) Inspector Sichmeller argues this prior citation indicates the
operator knew of the fall protection requirement. Id. CBS argues the
violation should be reclassified as low or no negligence because Theil did not
know, or have reason to know, of the violation and there were mitigating
circumstances. (Resp. Br. 15)

The Mine Act is
a strict liability statute, so negligence plays no role in citation issuance.
30 U.S.C. § 814(1). Inspectors must issue citations for violations of mandatory
safety standards, regardless of operator negligence. Musser, 32 FMSHRC
at 1272. However, negligence is considered in assessing civil penalties. Asarco,
Inc., 8 FMSHRC 1632, 1636 (Nov. 1986), aff’d, 868 F.2d 1195 (10th
Cir. 1989). In determining negligence for penalty purposes, “the conduct of a
rank-and-file miner is not imputable to the operator.” Whayne Supply, 19
FMSHRC 447, 451 (Mar. 1997) (quoting Fort Scott Fertilizer, 17 FMSHRC
1112, 1116 (July 1995). However, factors used to determine negligence
include the “foreseeability of the miner’s conduct, the risks involved and the
operator’s supervising, training, and disciplining of its employees to prevent
violations of the standard in issue.” A.H. Smith Stone Co., 5 FMSHRC 13,
15 (Jan. 1983).

Negligence is
“conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm.” 30 C.F.R. § 100.3(d). A violation is not negligent “when the operator
exercised diligence and could not have known of the violative condition or
practice.” Id. A violation is low negligence “when an operator knew or
should have known of a Mine Act violation, but there are considerable
mitigating circumstances.” Id. A violation is moderately negligent when
“an operator knew or should have known of a Mine Act violation, but there
are mitigating circumstances.” Id. Finally, a violation is high
negligence “when an operator knew or should have known of Mine Act violation,
and there are no mitigating circumstances.” Id.

Mitigating
factors are also weighed in this analysis. A mitigating factor is something an
operator does affirmatively, with knowledge of the potential hazard being
mitigated, that tends to reduce the likelihood of an injury to a miner. This
includes actions taken by the operator to prevent or correct hazardous
conditions.

As
discussed in terms of the unwarrantable failure analysis, CBS argues Theil did
not know, or have reason to know, of the violation. I find this argument
unpersuasive. CBS also argues the citation should be reclassified as low or no
negligence because there were mitigating circumstances. (Resp. Br.15) Firstly,
CBS argues MSHA’s issuance of the PPL, which indicated inspectors may use the
OSHA six-foot rule as guidance, was a mitigating factor. Id. However, the PPL addressed citations issued under § 56.15005,
not § 56.11027. (Ex. R5-001) More importantly, the PPL “leaves room for
site specific evaluation.” Boart Longyear
Co., 35 FMSHRC 3680, 3687 (Dec.
2013) (ALJ Barbour). Inspector Sichmeller testified the PPL was a “guideline
for inspectors to use,” but that they were not bound to follow the OSHA six-foot
rule. (Tr. 44:12-45:19) Thus, Inspector Sichmeller was not bound to the
interpretation put forth by MSHA in the PPL, and it was not a mitigating factor.

Secondly, CBS
argues its meeting with U.S. Steel prior to the start of the job was a
mitigating factor. (Tr. 12:9-13) However, the employees deviated from the plan
discussed at the meeting when they used the conveyor belt as a working
platform. (Tr. 85:1-86:7) Theil testified building the temporary structure and
standing on the conveyor belt was a “spur-of-the-moment decision,” and that the
employees had to “improvise.” Id. There is also no proof CBS told U.S.
Steel that work on the basement conveyor belt would be performed from any
surface other than the floor. For these reasons, I find the meeting was not a
mitigating factor. Additionally, I believe allowing employees to change work
plans without supervisor approval is a dangerous business practice.

I find CBS knew,
or should have known, handrails were required when the employees were on the
conveyor belt bed and temporary structure. Since there were no mitigating
circumstances, I find the violation was properly cited as high negligence.

Gravity

Inspector
Sichmeller testified a fall from the conveyor belt could reasonably be expected
to result in lost workdays or restricted duty. (Tr. 25:6-9) In assessing civil
penalties, the Commission also considers the “gravity of the violation.” 30
C.F.R. § 820(i). Gravity is usually viewed in terms of “the seriousness of the
violation.” Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996)
(citing Sellersburg, 5 FMSHRC at 294-95). Specifically, the standard
refers to “the effect of the hazard if it occurs.” 18 FMSHRC at 1550. The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured.

Inspector
Sichmeller’s gravity designation was based on his belief that a fall from 55-inches
could result in a sprain-strain, broken bones, and, even, a fatality. (Tr.
25:10-15) Inspector Sichmeller found such injuries were likely to result from a
fall based on his experience as an MSHA inspector and accident investigator.
(Tr. 25:17-26:6) The citation alleges two people would be affected, which is
reasonable given that two employees were working on the “basement” conveyor
belt. (Ex. GX 2) Based on these assertions, I find an injury was reasonably
likely and would have been serious, possibly resulting in lost work days or
restricted duty.

Other
Considerations

In addition to
negligence and gravity, the Commission must consider the operator’s history of
previous violations, the appropriateness of the penalty to the size of the business
of the operator charged, the effect on the operator’s ability to continue in
business, and the demonstrated good faith abatement of the violative condition
when assessing penalties. 30 U.S.C. § 820(i). The parties agreed to the
stipulations that the penalty will not affect CBS’s ability to stay in business
and that CBS abated the violation in good faith. (Tr. 93:22-35)

As
discussed earlier, Inspector Sichmeller cited CBS and Theil for a violating another
fall protection standard a year-and-a-half before the incident at the Minntac
Mine. (Ex. G9) This shows CBS had a previous history of violations. Finally,
while there is no information about CBS’s size in the record, there is no
evidence to support a finding that the penalty was inappropriate in proportion
to the size of the business.

I find CBS was highly negligent in
failing to require the use of handrails on the conveyor belt. Additionally, I
find this violation was reasonably likely to result in lost work days and
restricted duty. I do not believe there are any additional considerations
supporting a lessened penalty. Moreover, because I find the violation was S&S
and an unwarrantable failure, $2,000 is the lowest possible penalty for the
citation. 30 U.S.C. 820(a)(3)(A); Hidden Splendor Res., Inc., 36 FMSHRC
at 3103. For the foregoing reasons, I find the penalty was properly assessed at
$2,000.  

WHEREFORE, it is ORDERED
that Conveyor Belt Services, Inc. pay a penalty of $2,000.00 within
thirty (30) days of the filing of this decision.

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge    

Distribution:

Laura
Ilardi Pearson, Esq., Trial Attorney, U.S. Department of Labor, Office of the
Solicitor, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Justin
Winter, Law Office of Adele Abrams, PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705

[1] Inspector
Sichmeller has worked for MSHA since February 24, 2003. (Tr. 13:19-20) Prior to
starting at MSHA, he worked at a molybdenum mine in Idaho for about
eight-and-a-half years. (Tr. 14:4-24) As a miner, Sichmeller repaired between
ten and fifteen conveyor belts. (Tr. 16:4-10) As an MSHA inspector, Sichmeller
is responsible for conducting sixty to eighty mine inspections a year. (Tr.
16:22-17:1) Sichmeller also acts as an MSHA accident investigator. (16:11-17)

[2] The Mine is a multi-level, surface iron-ore mine. (Tr.
22:1-6; 17:24-18:2)

[3] Theil works for
CBS as a “belt technician.” (Tr. 65:23-25) At the time of litigation, Theil had
worked for CBS for 29 years. (Tr. 66:7-9)

[4] The employees
had two and eight years of experience working on conveyor belts, respectively. (Tr.
73:7-9) The employee with two years of experience had changed about ten belts
at the time the Citation was issued, while the employee with eight years of
experience had changed over 100 belts. (Tr. 73:10-18)

[5] The “basement”
is the second lowest level of the Minntac Mine. (Tr. 22:11-16) The lowest level
of the Mine is called the “subbasement.” Id.

[6] The height
difference was due to the sloped design of the floor in the “basement” area.
(Tr. 23:18-23)

[7] The standard reads: “[s]afety
belts and lines shall be worn when persons work where there is danger of
falling; a second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.” 30 C.F.R. § 56.15005.

[8] The Secretary argues
the temporary structure was a working platform, but he does not contend the
conveyor belt bed was also a working platform. (Sec. Br. 12) However, the
conveyor belt bed is a working platform under the Secretary’s definition of the
term.

[9] CBS argues the
temporary structure was not a working platform but, like the Secretary, makes
no mention of the conveyor belt bed. (Tr. 9:21-24) Presumably, CBS intended to argue
neither surface was a working platform, since they argue fall protection was wholly
unnecessary in the “basement” area. (Tr. 72:8-15)

[10] The American
Geological Institute defines a work platform as “a board or small platform
placed at a suitable height in the drill tripod or derrick so that a worker
standing on it can handle the drill rod stands.” Am. Geological Institute, Dictionary
of Mining, Mineral, and Related Terms 631 (2d ed. 1997) (“DMMRT”).
However, neither drill tripods nor derricks were involved in the issuance of
the Citation.

[11] At this point, I
will not address the validity of the Secretary’s interpretation of § 56.11027
or the exact elevation at which a working place becomes a working platform.

[12] The proposed penalty is the
minimum amount for 104(d)(1) citation, which the Commission may not lessen if
the violation is deemed S&S and an unwarrantable failure. 30 U.S.C.
820(a)(3)(A); Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3103 (Dec.
2014).