Secretary of Labor (MSHA) v. The Hanna Mining Company (Commission decision, September 22, 1981)

Plain-English summary

The Hanna Mining Company challenged five MSHA citations upheld by an administrative law judge. The Commission affirmed a citation for an inadequate dump berm and two citations for unsafe access routes, including a route beneath a belt and an aisle made hazardous by spilled taconite pellets. The spill left the aisle usable but exposed workers to tripping or slipping hazards. The Commission also held that the rule on floor openings covers a worker falling into an opening, even if the worker cannot fall completely through it. It affirmed a fifth citation for ice left on a regularly used stairway. It affirmed all five violation findings; this decision does not state a separate penalty amount.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 55.9-54, 55.11-1, 55.11-12, and 55.11-16.
• Outcome: Five ALJ violation findings affirmed; no separate penalty amount stated in this decision.
• Key point: A safe alternative route did not excuse an unsafe route miners could reasonably use to reach a workplace.

Full text (FMSHRC public release)

CCASE:
MSHA V. THE HANNA MINING
DDATE:
19810922
TTEXT:
FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION WASHINGTON, D.C. September 22, 1981 SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA) Docket Nos. LAKE 79-103-M
v. LAKE 79-137-M
LAKE 79-139-M
THE HANNA MINING COMPANY

DECISION
This civil penalty case is brought under the 1977 Mine Act, 30 U.S.C. $801 et. seq. (Supp. III 1979). On review the Hanna Mining Company contests the administrative law judge's findings of violation with respect to five citations issued by an inspector of the Mine Safety and Health Administration (MSHA). For the reasons stated below, we affirm the judge's decision. CITATION 290181 This citation alleges a violation of 30 CFR $55.9-54, which states: Berms, bumper blocks, safety hooks, or similar means shall be provided to prevent overtravel and overturning at dumping locations. The citation was issued after the inspector observed a large haulage truck preparing to dump waste material. The truck had a 100 ton capacity, a 1,000 horsepower engine, and its tires were about 9 feet in diameter. The cab of the truck was about 5-1/2 to 6 feet high and the driver was seated about 20 feet from the back of the truck. The truck's back wheels were 1-1/2 to 3 feet from the dump ledge and resting against a 2 to 3 foot high berm. The ledge was 75 to 80 feet high and the berm was constructed of loose, unconsolidated material. The judge affirmed the citation finding that the berm "was not sufficient to prevent overtravel or overturning," and that "[t]he evidence [did] not establish that other means were provided to prevent overtravel or overturning." Hanna argues that the finding of a violation was based "solely" on a "secret" berm height requirement. This argument is based upon the inspector's testimony that, as a "rule of thumb", in order for a berm to properly perform its warning and restraining functions it should be equal in height to the rear axle of the largest truck on the jobsite. Hanna argues that reliance on this requirement not found in the standard's language is inappropriate. Hanna submits the evidence establishes that a berm was provided at the dumpsite and, therefore, that it was in compliance with the standard. We find substantial evidence of record supporting the judge's finding of a violation. We find that the record as a whole reveals that the 2 to 3 foot high berm present at Hanna's dumpsite was inadequate "to
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prevent overtravel and overturning." Thus, the facts of this case establish noncompliance with the standard's plain language. Resort to the inspector's asserted "mid-axle" guideline is unnecessary to establish a violation. Cf. Clinchfield Coal Co., NORT 78-417-P (1979)(administrative law judge)(1 MSHC 2027), aff'd, No. 79-1306, 4th Cir., April 18, 1980 (1 MSHC 2337)(finding of illumination violation not based on agency guidelines). The judge's finding that 30 CFR $55.9-54 was violated is therefore affirmed. 1/ CITATION 294629 This citation alleges a violation of mandatory standard 30 CFR
$55.11-1, which states:
Safe means of access shall be provided and maintained to all working places. The inspector issued the citation based on his observation of an area where workers could travel underneath an overhead belt. The judge found that this area was an unsafe means of access to a working place, and, therefore, that a violation existed. The judge also found that there was another means of access to the same working place and that this means of access was safe. Hanna contends that the standard's mandate was met given the judge's finding of one safe means of access to the working place. We disagree. We agree with the Secretary and the judge that the standard requires that each "means of access" to a working place be safe. This does not mean necessarily that an operator must assure that every conceivable route to a working place, no matter how circuitous or improbable, be safe. For example, an operator could show that a cited area is not a "means of access" within the meaning of the standard, by proving that there is no reasonable possibility that a miner would use the route as a means of reaching or leaving a workplace. In the present case, Hanna failed to make such a showing and there is substantial evidence to support the judge's finding that the cited area was an unsafe means of access to a working place. Therefore, we affirm the violation. 2/
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1/ The judge also found that the evidence failed to establish that "other means" were provided to prevent overtravel or overturning. Hanna argues that a dumpman was present at the site and that this constituted a "similar means" of compliance as provided for by the standard. Hanna assumes, and we agree, that the judge implicitly found that no dumpman was present at the time of the alleged violation. We conclude that substantial evidence of record supports a finding that no dumpman was present. Therefore, we need not decide whether such a person, if present, would constitute a "similar means" to prevent overtravel and overturning within the meaning of the standard. 2/ We note that at the hearing the area where the cited and alternative routes were located was depicted through blackboard drawings which were not preserved. The use of such evanescent exhibits unnecessarily complicates meaningful review and may seriously disadvantage parties who later seek to rely upon them.
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CITATION 294667
This citation also alleges a violation of 30 CFR $55.11-1 for failure to provide a safe means of access. The inspector issued this citation based on his observation of a large ore spill in an aisle. The spill consisted of a pile of egg-size or larger taconite pellets located in an aisle bounded on one side by the outside wall of the building and on the other side by a row of machines. The accumulation was approximately chest high and extended out 15 to 18 feet from the apex of the pile. The spill was caused by a mechanical defect in a conveyor belt located above the aisle. The immediate area around the accumulation was not barricaded, nor was notice of the hazard posted to keep persons from entering the area. The judge found that the area was a means of access to a working place. He held that as a result of the spill, and the fact that material was still falling at the time of inspection, the means of access was unsafe and violative of 30 CFR $55.11-1. Hanna contends that alternative safe means of access were provided and that the pile itself presented a barricade blocking travel in the aisle so that the aisle was no longer a "means of access." Again, we disagree. As we previously stated, 30 CFR $55.11-1 requires an operator to make each means of access to a working place safe. Therefore, if the aisle was a "means of access" Hanna's duty was to make the aisle safe regardless of the presence of additional safe routes. As with the previous citation, Hanna did not show that there was no reasonable possibility that a miner would use the aisle as a means of access. Indeed, substantial evidence of record belies Hanna's claim that the pile presented a natural barricade to travel. The pile was chest high at its apex and became progressively lower. Even if the center of the pile had a limited barricading effect due to its size, the undisputed testimony was that the spill gradually extended out some 15 to 18 feet, thus posing a tripping or slipping hazard. Also, the judge's finding of violation was based in part on the fact that pellets were still falling from the elevated walkway above. Thus, we affirm the judge's conclusion that the spill in the aisle rendered the aisle an unsafe means of access. CITATION 294696 This citation involves an alleged violation of mandatory standard 30 CFR $55.11-12, which states: Openings above, below or near travelways through which men or materials may fall shall be protected by railings, barriers, or covers. Were it is impractical to install such protective devices, adequate warning signals shall be installed. The inspector observed three floor openings along the length of an elevated walkway. One floor opening was bordered by a toeboard. The other two were not. At the hearing all parties agreed that the openings in the floor were small enough that a worker could not fall completely through them to the floor below. However, the inspector testified that the hazard he foresaw was that a worker's foot or lower leg could fall into the openings. In the inspector's view, as a result of the unprotected floor openings an accident could result causing broken bones, sprains,
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lacerations and bruises. Further, the inspector testified that the toeboard surrounding the one opening actually presented a stumbling hazard since it was not used in conjunction with a railing. The judge found that a person or materials could fall "into or through such an opening" and that the toeboard as constructed did not provide "sufficient protection" as contemplated by the standard. Hanna contends that the judge erred in interpreting 30 CFR $55.11-12 as being violated when men or materials may fall "into" as well as "through" an opening. Hanna further argues that the record does not support a finding that men or materials could fall "through" the openings in question. We reject Hanna's arguments and affirm the judge's conclusions. In the context of the cited standard we interpret the word "through" as encompassing falling into, as well as completely through, a floor opening. This construction is in accord with the well-established rule that remedial legislation and its implementing regulations are to be liberally construed as long as such an interpretation is reasonable and promotes miner safety. E.g., Freeman Coal Mining Co. v. IBMOA, 504 F.2d 741, 744 (7th Cir. 1974). Accord, Cleveland Cliffs Iron Co., Inc., 3 FMSHRC 291, 293-94 (1981). 30 CFR $55.11-12 is concerned with the hazard presented to miners by the presence of unprotected openings on travelways. In this regard, a worker is exposed to the risk of injury whether he falls completely through or only into unprotected openings. Furthermore, the reasonableness of this interpretation is well-founded in common usage. See Webster Third New International Dictionary, 2384 (1971); and 86 C.J.S. "Through" at 813. Accordingly, the judge's finding of a violation of 30 CFR $55.11-12 is affirmed. CITATION 294654 This citation alleges a violation of 30 CFR $55.11-16, which states: Regularly used walkways and travelways shall be sanded, salted, or cleared of snow and ice as soon as practicable. The inspector issued the citation based on his observation of a thin accumulation of ice on the bottom step of a metal open-grated stairway. The stairway led to the bottom area of the screen house and the inspector testified that maintenance people, electricians, mechanics, and others would be in that area. At the time of the inspection, however, there was no activity in the area, and the inspector could not determine how frequently the stairway was used, or how long the ice had been on the step. The inspector testified that the source of the ice was a leaking water pipe which sprayed down on the step. Ice formed because of extreme winter temperatures and the fact that there was a crack in the outside wall of the building adjacent to the stairway. The judge upheld the violation finding that there was an accumulation of ice on the bottom stairway and that the stairway was a regularly used travelway. He acknowledged that it was not clear how long the condition had existed, but inferred that the accumulation had been there for some time in view of the source of the ice and the fact the inspector discovered the condition three hours after the work shift began. Therefore, he concluded that the ice was not removed "as soon as practicable" as required by the standard.
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Hanna argues that the judge erred in finding that the stairway was a regularly used travelway, that the ice was caused by water leaking from a pipe, and that the ice had not been removed as soon as practicable. We reject each of Hanna's arguments. We affirm the judge's finding that the stairway was a regularly used travelway. The inspector's uncontradicted testimony was that in performing their duties maintenance and other workers would be in the bottom area of the screen house. We believe that it is reasonable to infer that the stairway would be used by these employees in their regular travel. We note that Hanna, the party in the best position to offer evidence respecting the use, or lack thereof, of the stairway did not do so. We reject Hanna's assertion that the judge erred in accepting the inspector's testimony concerning the source of the water. The judge's finding that the source was a drip or spray from a pipe above the stairway is supported by substantial evidence of record, namely the testimony of the inspector as well as Hanna's safety director. In any event, it is the presence of the ice that is important rather than its source. Finally, Hanna's argument that the judge erred in finding that the ice was not removed as soon as practicable is also rejected. We agree with the judge that in view of the conditions at Hanna's workplace, i.e., the leaking pipe and the cracked exterior wall, and the fact that the inspector discovered the ice on the stairway three hours after the working shift had begun, the ice was not removed as soon as practicable. Therefore, the judge's finding of a violation is affirmed. In sum, the decision of the administrative law judge is affirmed.
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Distribution
Richard A. Williams, Jr., Esq.
Hvass, Weisman & King
715 Cargill Building
Minneapolis, Minnesota 55402
Mr. Harry Tuggle
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K St., N.W.
Washington, D.C. 20006