Edward Kraemer & Sons, Incorporated

Plain-English summary

Edward Kraemer & Sons operated White Rock Quarry in Ohio. MSHA cited the company after finding that an exposed, rapidly rotating crusher flywheel near the operator's ladder was not guarded. Judge Avram Weisberger found that a worker could contact the flywheel and be injured, but that a significant and substantial violation and a serious injury were not established. He modified the citation to remove the significant-and-substantial designation and assessed a $20 civil penalty. The judge found low gravity and low negligence after considering the conditions, operating history, and statutory penalty factors.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14001
• Outcome: Citation No. 3060361 was modified to a non-significant-and-substantial violation, with a $20 civil penalty due within 30 days.
• Key point: A rotating machine part may violate the guarding standard when a person may contact it and be injured, even when the evidence does not establish that serious injury is reasonably likely.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. EDWARD KRAEMER & SONS
DDATE:
19890522
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 88-129-M
PETITIONER A. C. No. 33-00091-05504

         v.                            White Rock Quarry

EDWARD KRAEMER & SONS,
INCORPORATED,
RESPONDENT

                                DECISION

Appearances: Maureen M. Cafferkey, Esq., Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio, for the
Secretary;
Willis P. Jones, Jr., Esq., Jones and Bahret,
Toledo, Ohio, for the Respondent.

Before: Judge Weisberger

Statement of the Case

 This case is before me based on a Proposal for Penalty filed

by the Secretary (Petitioner) on August 18, 1988, for an alleged
violation of 30 C.F.R. 56.14001. The Operator (Respondent)
filed its Answer on September 16, 1988.

 On January 11, 1989, Petitioner filed Interrogatories and

Request for Production of Documents. On January 19, 1989,
Respondent filed a Motion for Protection Order arguing, in
essence, that discovery shall not be allowed inasmuch as it was
initiated beyond 20 days after the filing of the Proposal for
Penalty filed on August 18, 1988 (See, 29 C.F.R. 2700.55).
Respondent's Motion was denied by Order dated January 30, 1989.

 Pursuant to notice, this case was heard in Toledo, Ohio, on

February 23, 1989. Robert G. Casey and Arthur J. Hoffman
testified for Petitioner. Edward S. Kraemer and M. Honora Kraemer
testified for Respondent.

 Petitioner filed a Post-Trial Brief on April 27, 1989. On

May 15, 1989, Respondent filed a Post-Trial Brief and Proposed
Findings of Fact and Conclusions of Law. On May 19, 1989,
Respondent filed a Reply to Petitioner's Post-Trial Brief.

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Stipulations

 The Parties agreed on the following stipulations:

 1. The Federal Mine Safety and Health Review Commission has

jurisdiction over this proceeding.

 2. Edward Kraemer & Sons owns White Rock Quarry in Clay

Center, Ohio.

 3. Edward Kraemer & Sons, Incorporation is an operator as

defined by Section 3(d) of the Act.

 4. White Rock Quarry is a mine as defined by Section 3(h) of

the Act.

 5. Edward Kraemer & Sons are subject to the jurisdiction of

this Court and the 1977 Mine Act.

 6. The size of proposed penalty, if assessed, will not

affect the Operator's ability to continue in business.

Citation

 Citation No. 3060361, issued on March 29, 1988, alleges as

follows:

         In the quarry, at the running crusher, the front face
         of the approximately three and one half foot diameter
         fast spinning flywheel is unguarded. Although this
         flywheel is approximately eight feet off the ground,
         the steel access ladder to the crusher operator's
         control deck passes within eight inches of said
         flywheel. A person mounting or dismounting the crusher
         could contact this flywheel and be injured.

Regulation

 30 C.F.R.   56.14001 provides as follows: ". . . flywheels;

. . . and similar exposed moving machine parts which may be
contacted by persons, and which many cause injury to persons,
shall be guarded."

Findings of Fact and Discussion

                                  I.

 The crusher in question has been used at Respondent's White

Rock Quarry since January 1, 1988. The flywheel of the crusher,
as depicted in Petitioner Exhibit 1, has a diameter of
approximately 3 feet. The flywheel does not have any belts or
chains. The exposed face of the flywheel is essentially smooth,
but contains four nuts in its center. The flywheel operates at

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approximately 1800 to 2100 revolutions per minute, and is located
approximately 8 feet off the ground. Those persons who operate
the crusher must climb a vertical steel ladder from the ground to
enter the platform where the crusher is operated from. In
entering the work platform from the ladder, two handrails must be
grasped to hoist one's self onto the platform. These handrails
are located at the top of the ladder and 8 1/4 inches laterally
from the flywheel,(FOOTNOTE 1) and approximately 10 inches in front of
the flywheel. The flywheel has two separate guards along the
upper portion of the outside circumference of the flywheel,
covering approximately 180 degrees of the circumference.
(Petitioner's Exhibit 1 and 2, and Respondent's Exhibit 3.)

 Robert G. Casey, an MSHA Special Investigator Specialist,

who was a supervisor of inspectors on March 29, 1988, accompanied
an inspector on an inspection of the White Rock Quarry on that
date. Casey indicated that he observed the crusher in operation,
and the flywheel was "spinning very fast" (Tr. 34). He said that
he observed an employee climbing the ladder to the work place,
and noticed how close the latter's hand was to the flywheel when
he grabbed the handrails. Casey concluded that the guards in
place were inadequate to prevent the hazard, which he described
as being immediately obvious, of a worker missing a guard rail,
hitting the flywheel, and injuring his hand, or on a windy day
having his clothing caught in the flywheel or its hub causing the
worker to be entangled in the machinery.

 Arthur J. Hoffman, who has been operating a crusher for

Respondent since June 1986, indicated that in the winter he wears
a jacket under coveralls. He said that in the spring when he
wears a jacket he has never climbed to the top of the crusher
with the jacket unzipped. He said that in the summer he wears
short sleeve shirts. He indicated that it would be possible to
miss a rail in climbing the steps of the ladder, but not by 6
inches, and that he has never come in contact with the flywheel
while going up or down to the work site. He also indicated that
although it would be possible to slip off the ladder, his hand
would not come in contact with the flywheel since in climbing the
ladder, his body presses backward, and thus in slipping he would
not fall forward. He also indicated that if his jacket would be
open while reaching for the handrail, and he would fall, the
jacket would not get caught in the flywheel, as the revolutions
of the flywheel create a wind which blows the jacket behind him.

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Edward S. Kraemer, who has a Bachelor of Science Degree in Civil
Engineering, and has been "associated" with crushers for over 20
years (Tr. 171), indicated that because the flywheel spins in a
clock-wise direction, any exposed pinch point would be too far
away to be contacted by one falling from the ladder. He also
indicated that the center of gravity of one climbing the vertical
ladder would be on the outside. He explained that accordingly, if
one would fall or slip from the ladder, one would fall backward.
Thus, any contact with the flywheel would consequently cause one
to fall backwards and not be drawn into the flywheel.

  The two guards on the flywheel on the date in question, as

depicted in Petitioner's Exhibits 1 and 2 and Respondent's
Exhibit 3, would appear to guard against the hazard of a hand
getting caught between the edge of the flywheel and the body of
the crusher. A visual inspection of these photographs fails to
indicate that these guards would prevent one from coming in
contact with the surface of the face of the rotating flywheel.
The testimony of Hoffman and Kraemer tends to establish that
inadvertently coming in contact with the flywheel would not be
likely. However, their testimony is not so persuasive as to
establish that coming in contact with the flywheel is impossible.
As such, it fails to contradict the opinion of Casey that it is
possible for a worker to lose his balance, fail to grab the
hand-rail, and come into contact with the flywheel. I thus
conclude that the flywheel, "may be contacted" by a person using
the vertical ladder in question. It is likely, as explained by
Kraemer, that due to the position of one's center of gravity, as
consequence of ascending and descending the vertical ladder, a
hand coming into contact with the flywheel would be thrown away
from it. This does not preclude the possibility, as indicated by
Casey, that due to the high speed of the flywheel, a hand coming
into contact with the flywheel might suffer debridement of the
skin.

 Accordingly, I conclude that inadvertent contact with the

flywheel by one using the vertical ladder "may cause injury to
persons." Thus, I conclude that it has been established that,
because the exposed face of the flywheel has not been guarded,
Respondent herein violated 30 C.F.R. 56.14001.(FOOTNOTE 2)

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II.

 According to Casey the violation herein was significant and

substantial, because an injury was reasonably likely to occur due
to the fact that the hands of the crusher operator using the
ladder come within 6 inches of the flywheel. He noted essentially
the high probability of the occurrence of such an accident, as
Respondent runs 2 work shifts per day, 5 days per week, and each
crusher operator makes 4 round trips per shift on the ladder.
However, taking into account the following: (1) the handrail is
over 8 inches removed from the flywheel in a lateral direction,
and 10 inches in front of the flywheel; (2) Respondent has been
using crusher since 1974, all similar to the one in question with
a flywheel only particularly guarded, without any incidences of
one coming in contact with the flywheel; (3) the testimony of the
crusher operator, Hoffman, that he has never come in contact with
the flywheel, and (4) considering the effect of the center of
gravity upon one falling and losing ones' balance, as testified
to by Hoffman and Kraemer; I conclude that it has not been
established that the hazard of coming into contact with the
flywheel would be reasonably likely to occur (cf. Mathies Coal
Co., 6 FMSHRC 1, (Jan. 1984)).

 According to Casey, coming in contact with the flywheel

would cause debridement of the skin, and "the wheel actually
throwing him off balance, and possibly flipping him and doing
more severe damage, breaking bones or . . . (Tr. 128). I find
this evidence not sufficient to support a conclusion that a
debridement is a serious condition or that a severe injury such
as a broken bone was reasonably likely to occur. Consequently, I
conclude that any serious injury has not been established to be
reasonably likely to occur. Therefore, I conclude that it has not
been established that the violation herein is significant and
substantial (See, cf. Mathies Coal Co., supra).

                              III.

 Although it is possible that one using the ladder might slip

and injure one's hand against the rotating unguarded surface of
the flywheel, it has not been established that such an occurrence
was likely to occur. Nor has it been established that any serious
injury was reasonably likely to occur. Accordingly, I conclude
that the gravity of the violation herein was low. It is clear
that, as testified to by Casey, it was obvious that the surface
of the flywheel was not completely guarded. However, in light of
the fact, as testified to by Edward S. Kraemer and not
contradicted, Respondent has never been cited for an unguarded
flywheel in spite of having crushers since 1974 with similar not
completely guarded flywheels, and considering the fact that no
one in the past has been injured by coming in contact with such a
flywheel, I conclude that Respondent's negligence herein was low.
I also have taken

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into account the remaining statutory factors set forth in section
110(i) of the Act as stipulated to by the Parties, as well as the
history of violations set out in Petitioner's Ex. 4. Taking all
these into account I conclude that a penalty herein of $20 is
proper for the violation found herein.

                             ORDER

 It is ORDERED that Citation No. 3060361 be amended to

reflect the fact that the violation therein is not significant
and substantial. It is further ORDERED that Respondent, within 30
days of this Decision, shall pay $20 as a civil penalty for the
violation found herein.

                             Avram Weisberger
                             Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. I have accepted the testimony of M. Honora Kraemer,
Respondent's Safety and Loss Prevention Officer, with regard to
the lateral distance of the flywheel from the handrail as she
actually measured that distance. In contrast, there is no
evidence that the testimony of Robert G. Casey, MSHA Inspector,
Arthur J. Hoffman, the crusher operator, or Edward S. Kraemer,
with regard to the distance between the flywheel and the handrail
was based upon any measurement.

~FOOTNOTE_TWO
2. In light of this conclusion, and for the reasons set
forth in I, infra, I denied Respondent's Motion for a Directed
Verdict which was made at the conclusion of the Petitioner's case
and renewed again after both Parties had rested.