Millington Gravel Company

Plain-English summary

Millington Gravel operated a small sand and stone extraction and processing facility in Michigan. MSHA found a two-by-four-foot opening in an elevated walkway, creating a risk that a miner changing screens could fall 15 to 20 feet. Judge David F. Barbour found that the walkway was an unsafe means of access to a working place and affirmed the violation of 30 C.F.R. § 56.11001, but found minimal negligence because the area was rarely used and the hazard was obvious. He reduced the proposed penalty from $500 to $50.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.11001
• Outcome: The citation was affirmed and the civil penalty was reduced to $50.
• Key point: A rarely used walkway can still be an unsafe means of access when miners use it to reach a working place.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

                   September 30, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 98-253-M
Petitioner : A. C. No. 20-01579-05513
v. :
: Millington Pit & Mill
MILLINGTON GRAVEL COMPANY, :
Respondent :

                         DECISION

Appearances: Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois for
Petitioner;
Fred S. Ward, owner, pro se, Millington Gravel
Company, Millington, Michigan.

Before: Judge Barbour

 This civil penalty proceeding arises under section 105(d)

of the Federal Mine Safety and Health Act of 1977 (30 U.S.C.
§815(d)) Mine Act or Act). The Secretary of Labor (Secretary),
on behalf of her Mine Safety and Health Administration (MSHA),
seeks the assessment of a civil penalty against Millington
Gravel Company (Millington or the company) for an alleged
violation of 30 C.F.R. § 56.11001, a mandatory safety standard
for surface metal and nonnmetal mines requiring that "a safe
means of access shall be provided and maintained to all working
places." The Secretary alleges the violation occurred at the
company's Millington Pit and Mill, a gravel and stone extraction
and processing acility located in Tuscola County, Michigan.
The Secretary also alleges that the violation was due to
Millington's high negligence. She proposes the company be
assessed a civil penalty of $500.

 Millington  denies  that it  violated  the  standard and

alternatively argues that the proposed penalty is excessive.

 The case was heard in Saginaw, Michigan. At the conclusion

of the hearing the parties waived the submission of briefs
(Tr. 54).

                     THE CONTROVERSY

 The  dispute is the result of MSHA's inspection of a mine

facility that is used to screen sand and stone. The facility
is large and multileveled. The material is sorted according to
size. On its upper level (upper deck) are walkways around
its outer perimeter. Near the end of the north walkway the
inspector found a hole in the walkway floor. The parties are
at odds over whether the damaged walkway violated the cited
standard.

                       THE EVIDENCE

 Ronald J.  Baril,  Sr.  is a MSHA inspector who works in

the agency's Lansing, Michigan office. Baril has inspected
mines for the past 23 years. On June 3, 1998, he went to
the Millington Pit and Mill.

 Sand and stone is extracted at the mine. It is moved by

front end loader to a hopper. From the hopper, a series of
conveyor belts carry the material to processing equipment
where it is washed and sized. The processed material then is
stockpiled and sold (Tr. 13, 35).

 The  mine  was described by Baril as a "very small"

facility (Tr. 13). Barill believed that the no more than
two miners were employed there (Tr. 13).

 After arriving  at  the  mine, Baril went to the mine

office where he met Frederick Ward, Millington's owner. Baril
and Ward began a pre-inspection conference. As a part of the
conference Baril was required to check various records that
are maintained by the company. Baril found that the records
were in order (Tr. 11).

 Baril then joining  Robin  Dege, a  mine  employee  who

described himself as the plant superintendent. Baril and Dege
walked to the area of the mine where sand and stone are
processed (Tr. 13, 34-35). The men stopped at the screening
facility.

 At  the upper level of the facility, material is dropped

by conveyor belt onto the top screens where it is shaken and
where it starts the process of falling through other screens
with increasingly smaller grids. Baril and Dege first viewed
the screening facility from ground level. Then, they proceeded
up a ladder leading to the upper deck (Tr. 14). Once on the
top, Baril inspected the walkway around the perimeter of
the deck. The walkway was constructed of metal grating, and
it provided access to the top screens and to the facility's
upper mechanical parts.

 Baril noticed that the  walkway  was  completely  railed

along all of its sides and was well maintained on its west
side. However, when he traveled to the north side, he observed
that at the eastern end of the walkway, a section of the
floor had separated from the rest of the grating. The floor
was bent at a 45 degree angle toward the ground. The result
was an opening in the floor that measured two feed wide by
four feet long (Tr. 16, 18; see Exh. P-1).

 Dege told Baril the walkway had been damaged by a rock,

and that the hole had existed for "over a year" (Tr. 16, 17).
Baril asked Dege if miners often traveled in the damaged
area of the walkway, and Dege said that they did not (Tr. 17).
As Baril recalled, Dege maintained that the only miners who
went to the area were those who "had to go up there to change
screens" (Id.). Baril also questioned Dege as to the distance
between the walkway and the ground below. According to Baril,
Dege estimated that it was "about 20 feet" (Tr. 18). Finally,
Baril noted that there were no barricades across the walkway
to block access to the damaged area (Tr. 20).

 As  a  result  of what he saw and what he learned from

Dege, Baril cited Millington for a violation of section
56.11001. He believed the condition of the walkway floor
indicated that there was no safe access to an area where
miners occasionally had to work changing the screens (Tr.
19). However, because miners were on the upper deck on "very
rare occasions", he also believed it was unlikely that there
would be an accident due to the condition of the walkway
(Tr. 24).

 Baril further found that Millington was highly negligent

in allowing the violation to exist. He based the finding on
the fact that Dege told him the walkway floor had been damaged
for at least a year (Tr. 23). Despite the finding, Baril
believed the company honestly did not realize the condition of
the walkway was a violation of the regulation. Rather, in view
of the infrequent visits of miners to the walkway, the company
simply did not feel that it was important to repair the damage
(Tr. 24).

 Baril gave the company two days to correct the condition.

Millington's response was more rapid. It corrected the
situation the same day by railing-off the damaged area
(Tr. 25, see Gov. Exh. P-1).

 Dege also was called as a witness by the Secretary. Dege

was asked how often the upper deck screens were changed. He
testified that they were replaced every two years, depending
on how much the mine was operated (Tr. 36). Later, he appeared
to quality this testimony when he maintained they were changed
every year and a half to two years (Tr. 39).[1] In addition,
he testified that although another miner worked at the mine,
he, Dege, was the person who usually went to the upper deck
(Id.).

 Dege agreed that there was a hole in the walkway. He

further agreed that Baril accurately described its location
and its size, and that access to the damaged area of the
walkway was not barred (Tr.37, 41). He stated that the
distance from the walkway to the ground was between 15 and
20 feet (Tr. 37). Dege was asked why the walkway was not
repaired, and he replied, "Neglect I guess. We didn't go
up there that often . . . [s]o I didn't figure it was that
important to fix it" (Tr. 37).

FOOTNOTES

 [1]:Although Ward, who also testified, asserted the

upper deck screens changed "maybe once or twice" in 30 years
(Tr. 44), I regard his testimony as hyperbole. Dege was the
person to whom Ward assigned the on-site management of the
operation, Dege had acted in that roll for 13 years, and Dege
knew how the mine functioned (Tr. 35).

                       THE CITATION

 Citation No.   Date      30 C.F.R. §    Proposed Penalty

   4106469     6/3/98       56.11001           $500

 The citation states:

           The  roller  screen deck along the north
           walkway at the  N.E. end of this deck, a
           4 foot length of 2 feet wide metal floor
           was  found  bent down  on  a  45  degree
           angle.

           Although this  section  is  beyond where
           servicing   may   be  performed  on   an
           infrequent basis, an employee could trip
           & fall 20 feet to the ground below.  The
           company  stated  that   this   condition
           existed for about one year (Gov. Exh. P-
           2).

                      THE VIOLATION

 To prove a violation of section 56.11001, the  Secretary

must establish the area involved was a "means of access" to a
"working place" and that the means of access was not "safe".
To demonstrate the cited area was a "means of access", the
Secretary show that there was a reasonable possibility a
miner would use the area involved as a way to reach or to
leave a working place (see Homestake Mining Co., 4 FMSRHC
146, 151 (February 1982); The Hanna Mining Co., 3 FMSHRC
2045, 2046 (September 1981)). To show the means of access
was not "safe", the Secretary must prove that a reasonably
prudent person familiar with industry standards, and the
factual circumstances surrounding the allegedly unsafe
condition, would have recognized a hazard warranting
correction (See, e.g., Alabama By-Products Corporation, 4
FMSHRC 2128, 2129 (applying the "reasonably prudent person
test" to a standard requiring machinery and equipment to be
maintained in "safe operating condition" (30 C.F.R.
§75.1725(a)). Finally, the Secretary's proof also must meet
the regulatory definition of "working place"; in other
words, it must lead to the conclusion that the damaged part
of the walkway was "a place in or about a mine where work is
being performed" (30 C.F.R. §56.2).

 There can be no question that the cited walkway area was

unsafe. The opening was large enough to allow a miner to
fall through. If a miner fell, there was nothing to prevent
him or her from dropping straight to the ground below. Dege
testified the drop would have been between 15 and 20 feet.
(Tr. 37). At either distance, the result could have been a
serious injury.

 The critical question is  whether  the Secretary

established that there was a reasonable possibility a miner
would use the area involved as a way to reach or to leave
a working place --that is as a way to reach or to leave a
place where work is or would be performed. I conclude that
she did. As Dege's testimony established, although the
screens were changed infrequently, at intervals of between
18 to 24 months, Dege had to go "up there" to do the work
(Tr. 37, 39).[2] Dege's testimony is consistent with
Baril's version of what Dege told him -- that "the only
timepeople would have to go up there is to change the screen"
(Tr. 17). The fact that the cited portion of the walkway
was used rarely does not detract from the fact that
on those occasions when the screens were changed, it
served as a means to reach or to leave a working place.[3]

                  GRAVITY AND NEGLIGENCE

 The gravity of a violation is determined by focusing on

the effect of the hazard if it occured (Cf. Consolidation Coal
Co., 18 FMSHRC 1541, 1550 (September 1996)). Here, there
was primarily one miner (Dege) who was in danger of
inadvertently falling through the hole in the walkway when
he used the walkway while changing the screens. Should he
have lost his balance or have slipped and fallen through the
hole, Dege easily could have been seriously injured.
Accordingly, I find the violation was serious.

                        NEGLIGENCE

 I  also find  that  the violation was result of minimal

negligence on Millington's part. The chance that Dege, or
that anyone else, would have fallen through the hole was
remote at best. Dege was aware of the hole and of its
location, which means that on those very few occasions when
he would have been in the damaged area, he would have been
forewarned about the hazard. In addition, the damaged area
visually was obvious, which would have served as an
additional reminder of the hazard.

 It  is  true that for at least a year the company knew

about the violation and did nothing to correct it (Tr. 37).
Its failure, as Dege recognized, showed a lack of care (Tr.
37). However, given the very remote chance the hazard would
have resulted in an actual accident, conclude the company's
lack of care was minimal.

               OTHER CIVIL PENALTY CRITERIA

 The  company  is  very small (Tr. 13), and it has a

moderate history of previous violations (Tr 31; Gov. Exh.
P-3 (indicating 9 citations issued between June 3 1996 and
June 3, 1998)). In addition, the company abated the
violation in half the time given by the inspector.

 Finally, I note that although Ward stated payment of the

proposed penalty would put the company out of business, he
offered no proof in this regard, and I find that the size of
penalty assessed will have not affect adversely the
company's continuing operation.

                    PENALTY ASSESSMENT

 I conclude that despite the serious nature of the

violation, the company's minimal negligence, its small
size, its moderate previous history, and its expedited
abatement of the violation warrant the assessment of a
civil penalty of $50.

                          ORDER

 Within 30 days of the date of this decision, Millington

will pay the Secretary $50 for its violation of section
56.11001 as set forth in Citation No. 4106469, and upon
payment of the assessed penalty this proceeding is DISMISSED.

                          David F. Barbour
                          Administrative Law Judge

Distribution:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)

Fred S. Ward, Millington Gravel Company, 4566 Birch Run Road,
Millington, MI 48746 (Certified Mail)

FOOTNOTES

 [2] The totality of Dege's testimony made clear that the

rate at which the screens were changed depended on the length
of time the screening facility operated. Operations at the
mine varied with the seasons and the weather, I therefore
find that his testimony the changes occurred at rates of between
a year and a half to two years to be more credible than his
testimony that the screens were changed every two years (See
Tr. 36).

 [3] While the citation itself states that the damaged

area was "beyond where servicing may be performed on an
infrequent basis", the word "servicing" refers to routine
maintenance of the facility's mechanisms - something that
did not require use of the damaged area - rather then
to the changing of the facility's screens.