Secretary of Labor, MSHA v. National Cement Company of Alabama, Inc.

Plain-English summary

Miners periodically crossed a wet, unsecured one-foot-wide board over a shallow pit to clean a cement chute. Judge David F. Barbour held that National Cement failed to provide safe access because the board was slippery, lacked rails, required climbing over a handrail, and was used with fall protection that might not always stop a miner before reaching the floor. He found the violation non-S&S because the two-to-four-foot fall and partially effective lanyards made a reasonably serious injury unlikely. The judge assessed a $450 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.11001
• Outcome: The safe-access citation was affirmed as non-S&S with moderate negligence, and $450 was assessed.
• Key point: Unsafe access can violate the standard even when fall protection reduces the likely injury below the threshold for an S&S designation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue, NW, Suite 520N

WASHINGTON, DC 20004

TELEPHONE:
202-434-9953 / FAX: 202-434-9949

January 8, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

NATIONAL CEMENT COMPANY OF ALABAMA, INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2013-91-M

A.C. No. 01-00027-305686

Mine: National Cement Co.

DECISION[1]

Appearances:

Robert
Hendrix, CLR, U. S. Department of Labor, Birmingham, Alabama on behalf of the
Secretary

Jay St.
Clair, Esq., Littler Mendelson, Birmingham, Alabama on behalf of National
Cement Company, Inc.

Before: Judge David F. Barbour       

This case
is before me on a petition for assessment of civil penalty filed by the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration (“MSHA”), against National Cement
Company of Alabama, Inc. (“National Cement” or “the Company”). The case is brought pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §§ 815, 820 (the “Mine Act”). The Secretary petitions for the imposition of a $540
penalty for one purported violation of 30 C.F.R. §
56.11001. The violation is alleged in Citation No. 8723305, issued pursuant to
section 104(a) of the Mine Act, 30 U.S.C. §814(a), at National Cement’s cement plant in St Clair County, Alabama. Tr. 6-10.

This
docket originally involved civil penalty assessments for five alleged
violations at the plant at issue. Four of the violations were settled prior to
the hearing. I approved these settlements in a Decision Approving Partial
Settlement, issued on November 7, 2013. However, the parties were unable to
settle the last remaining violation. The hearing on this single citation was
held on November 13, 2013, in Birmingham, Alabama. Tr. 6-9.           

Citation
No. 8723305 reads as follows:

Safe
access is not being maintained to the access door in the chute between the
cement coolers. Access was provided by laying an unsecured board that is
approximately 1 foot wide over a 2 to 4 foot drop off [to the pit floor]. Miners
travel to the access door approximately once every 3 months to clean out the
chute. This condition exposes [a] miner to a slip and fall hazard likely to
cause sprains, strains, bruises, and contusions.

Standard
[30 C.F.R. §] 56.11001 was cited 1 time in two years at [the] mine
([once] to the operator, [never] to a contractor).         

Ex. P-1.

The
parties do not dispute that the cited area consisted of two cement coolers, a
chute between the coolers, a pit beneath the coolers, and a board that
traversed the pit. Since the cement coolers cooled cement using water, the
cited area was often wet. Cement had spilled from the cement coolers onto the
board and the pit below. The pit was approximately 15 feet wide, and the chute
was positioned roughly over the center of the pit. Therefore, the distance
between an edge of the pit and the chute was approximately eight to ten feet.
Handrails surrounded the edges of the pit. Exs. P-1, P-6; Tr. 24-30, 34-35.

The board
was used as a temporary walkway to cross the top of the pit. The vertical
distance between the board and the pit floor ranged from two to four feet. In
this regard, cement had spilled onto some areas of the pit and hardened,
causing varying depths in the pit floor. The areas of the floor which contained
spilled cement were higher than other areas of the floor. The board was
unsecured and lacked any railings or handrails. A few times a year, miners
would walk eight to ten feet on the board to the chute, open the chute door,
and clean the chute of clogged material. Exs. P-1, P-6; Tr. 24-30, 34-35.

On
September 15, 2012, Timothy S. Schmidt, an MSHA inspector who was conducting an
inspection of the mine, issued Citation No. 8723305. Ex. P-1; Tr. 23. The
citation alleges a violation of 30 C.F.R. § 56.11001 which requires that “safe means of access shall be provided and maintained to
all working places.” The Secretary asserts that
miners climbed over the handrails surrounding the pit and walked across the
unsecured board to access the chute door once every three months. Given that
the board was narrow, unsecured, and wet (due to cement which had fallen on the
board), the Secretary argues that using the board to access the chute
constituted unsafe access to a working place, the chute door. Tr. 24-30. Specifically,
the Secretary argues that the miner assigned to clean the chute could fall off
the board onto the floor below, and this hazard, falling onto the pit floor,
was reasonably likely to result in reasonably serious injuries such as a
strain, sprain, bruises or contusions. Ex. P-1; Tr. 30-31, 36-37. The Secretary
therefore asserts that the operator violated the safe access standard, and that
the violation was “significant and substantial.” Ex. P-1; Tr. 38-39.

The
Secretary does not dispute that miners were provided and used fall protection
when walking on the board across the pit. The Secretary concedes that the fall
protection consisted of a harness and a backbiter lanyard, i.e. a
lanyard that expands to provide shock absorption when the person using it slips
and falls from an elevated position. According to the Secretary, typically such
lanyards expand between three to six feet. However, since the pit was so
shallow, the Secretary argues that the lanyard would be ineffective to prevent
miners from hitting the pit floor. In other
words, since the drop-off from the board to the pit floor varied from two to
four feet, and since the lanyard expanded from three to six feet, the Secretary
argues that it was reasonably likely that the lanyard would expand to the pit
floor. Tr. 30-31, 56-58, 62-63.       

The
Secretary also argues that even if the lanyard prevented a falling miner from
hitting the floor, the miner would still be likely to suffer serious injury. In
this regard, the Secretary argues that the miner could sprain his ankle while
slipping and falling from the board, or suffer blood clotting as he was
suspended in mid-air. Tr. 30-31, 61-63.           

The
Respondent asserts that it did not violate the safe access standard since
miners used fall protection that was fully effective, i.e. the miners’ lanyards arrested their fall from the board, and prevented
them from hitting the pit floor. In this regard, the Respondent points out that
the Secretary’s claim that miners who fell
from the board would hit the pit floor despite using fall protection, was based
on Inspector Schmidt’s understanding of typical
lanyards. However, as Inspector Schmidt testified, he was not aware of how the
lanyard at issue was configured or anchored since he did not test the
effectiveness of the lanyard. Inspector Schmidt also testified that he was not
aware of the expansion length of the particular backbiter lanyard used by
Respondent. Tr. 56-60.

The
Respondent questions whether, even if miners hit the pit floor, the violation
would be significant and substantial. In this regard, the Respondent questions
whether it was reasonably likely that unsafe access would result in an injury
given that there is no evidence any miner has ever fallen from the board, and
given that miners need not use the board to access the chute; miners can also
access the chute door through the ground floor of the mill room. Tr. 60, 67.
The Respondent argues that even if miners hit the pit floor, their fall would
be partially cushioned by the lanyards, and the resulting injuries would not be
reasonably serious. Tr. 56-62.

Before
calling his first witness, the Secretary read the following stipulations into
the record:

1. The
   lanyard was provided by the Respondent[.]

2. [T]he
   distance between the board at issue and the floor below was less than six feet.

Tr.
16-17.

The
parties then presented their respective cases, and at the close of the
testimony, I entered the following bench decision:

The
Secretary originally petitioned for an assessment of civil penalties for five
alleged violations, four of which were settled. And I previously approved . . .
the partial settlements, in a . . . Decision Approving Partial Settlement,
which was issued by me on November 7[], 2013. The remaining issues are whether
National Cement violated 30 C.F.R. [§] 56.11001 as alleged in
Citation [No.] 8723305[,] issued on September [] 15[], 2012.

[Tr. 85.]

If so, was
the violation [“significant and substantial”, i.e. was the hazard contributed to by the
violation reasonably likely to result in reasonably serious injury?] If so, was
the violation . . . caused by the operator’s moderate negligence as found
by [MSHA] Inspector [Timothy S.] Schmidt? 

[Tr. 85.]

First, was there a violation? I
have no trouble finding [that] the Secretary proved a violation. Section
56.11001 requires two things. First, the operator must afford safe access to
worksites, and two, [the operator] must make sure safe access is utilized.
These principles are set forth in Lopke Quarries, 23 FMSHRC 705, [] 708
[(July 2001)] . . . . Here, Inspector Schmidt’s
testimony was compelling. I accept as a fact that to clean the clogged chute,
miners accessed the work area via a foot-wide board. I do not dispute, as
[Jeff] Golden[,] [National Cement’s safety manager] testified,
that [miners] could have accessed [the chute] from the ground floor of the mill
room, but because their job would be more easily performed from the board, I
find this is the way they usually accessed the site.

[Tr. 85-86.]                 

I further find [that] the board
was not safe for the following reasons. First, it was only a foot wide. Second,
when [Inspector] Schmidt saw [the board,] it was partially covered with debris
. . . [Third], the board itself was wet and could be slippery. I accept
[Inspector] Schmidt’s un-refuted testimony in this
regard. [Fourth], the board was reached by climbing over a handrail, an act
that in itself posed [a] hazard[,] as [Inspector] Schmidt testified. And
[fifth], because the board extended over a two-foot to four-foot deep pit, the
floor of which was . . . in some areas covered with accumulations of lumpy
cement . . . . Inspector Schmidt [testified to all of the above] and all of it
I accept.

[Exs. P-5, P-6; Tr. 86-87.]

Use of an effective lanyard might
have provided miners with safe access, but I need not reach the issue of
whether, in fact, [an effective lanyard did provide safe access] because I
accept the essentially unrefuted testimony of the inspector [that the lanyard
provided to the miners was not fully effective]. [T]he lanyard used at the mine
by miners walking on and working from the board would not[,] in all
instances[,] [prevent] a miner who lost his balance from falling to the floor
of the pit . . . . Because the record confirms that in all instances the
lanyards [which were] used were not effective to prevent an injury-causing
accident, I find [that] safe access was neither provided nor maintained by
National Cement. And for these reasons[,] I conclude that there was a
violation.

[Tr. 87-88.]

[The next issue is] [n]egligence.
The [I]nspector found [that] the Company was moderately negligent, and I agree.
The degree of danger posed by the violation was moderate, and the Company
failed to meet its commensurate duty of care when it allowed the board to be
used without fully effective fall protection. The Company tried to provide
effective protection [but] [t]he protection just wasn’t effective enough.

[Tr. 88.]

[The next issue is] S & S and
gravity. Here lies the crux of the case . . . . The Commission has explained
that in order to . . . establish that a violation of a mandatory safety
standard is S & S, the Secretary must prove [that four criteria have been
met]. First, [the Secretary must prove] the underlying violation. Second, [the
Secretary must prove] a [discrete] safety hazard[,] . . . a measure of danger
to safety contributed to by the violation. Third, [the Secretary must prove] a
reasonable likelihood [that] the hazard will result in an injury . . . And
[fourth], [the Secretary must prove] a reasonable likelihood [that] the injury
will be of a reasonably serious nature. [These criteria were] first enunciated
in Mathies Coal Company, 6 FMSHRC 1, [3-4 (Jan. 1984).] And a host of
progeny cases have reiterated and amplified the principles [underlying the four
criteria].

[Tr. 88-89.]

Here[,] the Secretary proved the
underlying violation and the discrete safety hazard, that is, the danger of
falling and not being stopped short of hitting the concrete below. In this
regard, I accept Inspector Schmidt’s testimony that the board was
wet and could be slippery. So I find that [the hazard at issue was] likely [to
result in injury]. [Therefore, I find that the third Mathies criterion
was satisfied.]

[Tr. 89-90.]

[However,] [a]lthough it is a
close question, and although reasonabl[e] min[ds] certainly can differ [on the
following issue], I find [that] the Secretary did not prove a reasonable
likelihood that the fall would result in an injury of a reasonably serious
nature . . . .

[Tr. 90.]

[First,] when [miners accessed the
cited area], the record supports finding miners wore lanyards. Mr. Schmidt was
told and did not dispute this [fact] . . . . The lanyards were not fully
effective in that they would not, in all instances, perhaps even in most
instances, prevent a miner from hitting the pit floor. But I find [that] they
provided some protection and that in some instances[,] they would prevent or
lessen the impact [of] an expected injury.[2]

[Tr. 90-91].

[Second], the distance a miner
could fall from two to four feet was not conducive to producing a reasonably
likely injury of a reasonably serious nature.[3]
[While] I agree [that] falls from under four feet can result in [fatalities] .
. . . such circumstances are highly unusual. Here there was no contention [] by
the [Secretary] that the expected falls of two to four feet, some of which
could have been “cushioned” by fall protection[,] were reasonably likely to be fatal .
. . . Inspector Schmidt [stated that] if an injury occurred, it was likely to
lead to sprains, strains, bruises[,] cuts, or scrapes. I find that . . .
bruises, cuts and scrapes . . . the inspector actually used the word
contusions, but I translate that to cuts and scrapes, are not injuries of a
reasonably serious nature in the context of this violation. And . . . while
[strains or sprains] might be [reasonably serious injuries], [such injuries are
not reasonably likely] to result from a fall [of] two to four feet.

[Tr. 91-92.]

Accordingly, I find that the
violation is not S & S. [In making this finding] I recognize the experience
and expertise of the inspector . . . . [His opinion is] entitled to great
weight. But as I said, reasonable minds can differ and I conclude that under
all the circumstances present here, an S & S finding is not warranted. Had
the pit been uniformly deeper, had no lanyards been provided, or had the
provided lanyards been totally ineffective . . . I might have found otherwise.
But those are not the facts . . . before me . . . .

[Tr. 92.]

I find [that] the violation was
[not] serious . . . . [H]ere, as I’ve indicated, the evidence
established that . . . the worst that was likely to happen would be a [bruise,
cut or scrape that would result in no lost workdays to one person].

[Tr. 93.]

Having found a violation, I must
assess a penalty. The penalty criteria mandate[] that I consider the operator’s history of prior violation[s]. [The evidence] shows that
the Company had 105 total violations at the plant in the two years prior to the
violation at issue. Included in these violations were four violations of
Section 56.11001. This is a significant history. I also must consider the
appropriateness of the penalty to the size of the Company’s business. And here the parties agree that the operator is
of a medium size. I have found that National Cement was moderately negligent
and [that] the violation was [not] serious. The parties agree that any penalty
assessed will not affect National Cement’s ability to continue with
business, and that the Company demonstrated its good faith in abating the
violation.

[Ex. P-8; Tr. 93-94].

Based on all the penalty criteria,
I find that a penalty of $450 is warranted. I note that this penalty is
consistent with other non-S & S penalties assessed and paid by the Company
in the two years prior to the violation in question.

[Ex. P-8; Tr. 94.][4]

ORDER

Within 30
days of the date of this decision, National Cement Company of Alabama, Inc., IS
ORDERED to pay a penalty of $450 for the violation of 30 C.F.R. § 56.11001 set forth in Citation No. 8723305. Upon payment
of the penalty, this proceeding IS DISMISSED.

/s/ David
F. Barbour

David F.
Barbour

Administrative
Law Judge

Distribution:

Robert Hendrix, CLR, U. S.
Department of Labor, Mine Safety & Health Administration, 135 Gemini Circle
Suite, 212, Birmingham, Alabama 35209-5842

Jay St. Clair, Esq., Littler Mendelson,
420 20th Street North, Suite 2300, Birmingham, Alabama 35203

/DM

[1]
At the close of the hearing, I issued a bench decision in this matter. As I
stated during the hearing, a bench decision is not final and is subject to
change until a written decision is issued. Tr. 81. In this formal written
decision, I retain my determination that the violation was not “significant and substantial” since any injuries that
occurred would not be reasonably serious. However, as opposed to the bench
decision, I conclude that there was a reasonable likelihood that the hazard
would result in some form of injury. I also now conclude regarding the issue of
gravity that the violation was not serious. These changes have been
incorporated into the reproduction of the bench decision.

[2]
While it is unclear whether the lanyards, in most instances, would prevent
miners from hitting the pit floor, I find that the lanyards, at a minimum,
would lessen the impact of the fall. In this regard, Inspector Schmidt
testified that backbiter lanyards typically expand three to six feet in order
to provide shock absorption and lessen the impact of the fall. Inspector
Schmidt failed to show that the lanyards at issue were configured such that
miners would hit the pit floor before the lanyards began to expand. Tr. 30,
56-57. Therefore, I find that if miners slipped and fell from the board, the
lanyards at issue would generally expand during the fall, and lessen the impact
of the fall.

[3]
In this regard, I find that since the pit was so shallow, even if the miner hit
the floor, he would not suffer reasonably serious injuries.

[4]
Editorial changes correcting syntax, grammar, spelling and typographical errors
have been made in reproducing the bench decision.