Secretary of Labor v. Cemex Construction Materials, Atlantic, LLC

Read the official release (fmshrc.gov)

Plain-English summary

After a fatal elevator accident at another Cemex plant, MSHA cited the Knoxville Cement Plant for not assigning a competent person to examine each elevator every shift. Judge David F. Barbour found that an elevator can be a working place when employees use it to transport work equipment, but held that Cemex lacked fair notice because MSHA had never applied the working-place examination rule to the plant's elevators and the standard was open to interpretation. He therefore vacated the $1,530 examination citation. The judge separately affirmed a citation for keeping an elevator in service with defective in-use lights and a missing emergency telephone, but reduced negligence from high to moderate. Cemex was ordered to pay $208 instead of the proposed $308 for that violation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.18002(a) and 56.14100(c)
• Outcome: The elevator-examination citation was vacated, and the equipment-defect citation was reduced to moderate negligence with a $208 penalty.
• Key point: Even a reasonable safety interpretation cannot support a penalty when the operator lacked fair notice that MSHA would apply the standard in that way.

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

CEMEX
CONSTRUCTION MATERIALS, ATLANTIC, LLC,

Respondent.

CIVIL
PENALTY PROCEEDING:

Docket
No. SE 2014-328-M

A.C.
No. 40-00840-350438

Mine:
Knoxville Cement Plant Cemex Inc.

DECISION

Appearances:               Timothy
Turner, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado for Petitioner

Michael
T. Cimino, Esq.; Adam Schwendeman, Esq., Jackson Kelly, PLLC, Charleston, West
Virginia for Respondent

Before:                        Judge
David Barbour

In
this civil penalty case arising under sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815, 820, (the “Mine Act”), the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health
Administration (“MSHA”) petitions for the assessment of civil penalties of
$1,838 for alleged violations of 30 C.F.R. § 56.18002(a) and 30 C.F.R. § 56.14100(c).[1]
The purported violations were cited at the Knoxville Cement Plant (the
“Knoxville plant”), a facility owned and operated by Cemex Construction
Materials Atlantic, LLC. (“Cemex”).[2]
The citations were issued by MSHA Inspector David Smith on March 10, 2014. Inspector
Smith found that Cemex did not designate a competent person to examine the
plant’s elevators during each shift and therefore that the company violated
section 56.18002(a). He believed the alleged violation was reasonably likely to
result in a fatality and that the condition was a significant and substantial
contribution to a mine safety hazard (an “S&S” violation). He also found
the alleged violation was caused by the company’s moderate negligence. In
addition, while he was inspecting one of the elevators, Smith found the
“in-use” lights on two call site stations did not activate when the elevator
was moving. Further, the telephone in the elevator’s car was missing. Despite
these defects, the company kept the elevator in service and thereby, in the
inspector’s opinion, violated section 56.14100(c). Smith found that the
defective lights and missing telephone were not likely to cause injuries, but
nonetheless were due to the company’s high negligence.

After
the citations were issued, the alleged violations were assessed by the
Secretary. When the company contested the proposed assessments, the Secretary
filed a petition with the Commission seeking an order requiring the company to
pay. The company answered the petition challenging the validity of the
violations and arguing alternatively that even if it violated one or both of the
standards, the assessments proposed by the Secretary were excessive. Upon
receiving the answer, the Commission’s Chief Judge assigned the case to the
court, which ordered the parties to confer to determine if they could resolve
their differences. When counsels advised the court they could not agree on a
settlement, the court heard the case in Knoxville, Tennessee. At the hearing,
counsels presented documentary evidence and the testimony of several witnesses.
They subsequently filed helpful briefs.

THE
ISSUES

The
case presents several issues. One that is central to the alleged violation of
section 56.18002(a) is whether the elevators at the Knoxville plant are
“working places” and hence come within the standard. Section 56.18002(a)
requires the examination of each “working place” and 30 C.F.R. § 56.2 defines
“working place” as “any place in or about a mine where work is being
performed.” The Secretary contends the elevators are working places “because of
the simple fact that work takes place on them.” Tr. 16. Cemex finds the
Secretary’s interpretation to be unreasonable and as applied to deprive the
company of due process. Tr. 19. Cemex also argues that the Secretary’s finding
of “high negligence” with regard to the alleged violation of section 56.14100(c)
is inappropriate. Resp. Br. 31-33.

STIPULATIONS and
AGREEMENTS

The
parties stipulate as follows:

1.         The
[Knoxville plant] is under the jurisdiction of the Federal Mine Safety

and
Health Review Commission.

2.         At
the time the citations . . . were issued, products of the . . . mine

entered
commerce. The operations therefore affected commerce within

the
scope and meaning of Section 4 of the . . . Mine Act. Tr. 22.

In addition to the stipulations, the
Secretary agrees that Cemex’s applicable history of previous violations is
small. Tr. 24; see Exh. S-1.

THE SECRETARY’S
WITNESSES

and

THE BACKGROUND
OF THE MARCH 10, 2014, INSPECTION

For
three years before the hearing Inspector Smith worked at MSHA’s Knoxville,
Tennessee office. Tr. 25. During that period he conducted 40 to 50 inspections
per year at 20 to 30 mines. Tr. 26. Prior to March 10, 2014, Smith inspected
the Knoxville plant several times. Tr. 27. At the plant limestone and clay are
processed into cement. The cement is bagged and shipped by rail and truck to
Cemex’s customers. Tr. 27-28. Typically, MSHA personnel inspect the plant twice
a year. Tr. 27.

The March 10 inspection took place
against the backdrop of the fatal accident that occurred at another Cemex
facility. On February 21, 2014, a Cemex contract employee stepped into an open
elevator shaft at a cement plant located near Louisville, Kentucky (the
“Louisville plant”). The employee survived the fall but shortly thereafter
succumbed to his injuries. MSHA investigated the accident and on February 28,
2014, the agency issued a “Fatalgram” to all mine operators.[3]
It states:

On
February 21, 2014, a 34 year old contract laborer

with 6 months of experience was killed
at a cement

operation when attempting to access an
elevator in the

finish mill. When the victim opened the
elevator door on

the fourth floor landing, he stepped
into the elevator shaft

and fell approximately 51 feet to the
top of the elevator

car located on the ground floor.

Exh. S-6

The fatalgram lists six “best practices”
miners are advised to take when working around elevators:

•
 Immediately report any elevator problems to management.

•
 Ensure than any problems affecting the safety of an elevator

are reported promptly.

•
 Ensure the elevator door interlocks that prevent the door

from being opened unless the elevator car is present are

functional.

•
 Ensure that the elevator doors will not open unless an

elevator car is at the floor landing.

•
 Install audible signals that sound when the elevator car is at

landing prior to the doors opening.

•
Train all persons to be aware of their surroundings when

entering or exiting an elevator car.

Exh.
S-6.

THE INSPECTION
AND SMITH’S FINDINGS

Smith traveled to the plant on March 10
to conduct a “spot inspection,” one that focused on the plant’s elevators.[4]
The purpose of the inspection, which was triggered by the February 21 fatality,
was to ensure that the elevators were in safe operating condition. Tr. 28. Smith
was accompanied by Doniece Schlick, the Assistant District Manager of MSHA’s
Southeast District, Metal/Non-Metal Division. Tr. 29, 124. At the plant Smith
and Schlick were met by Alan Stephens, who at the time was the plant’s safety
manager. In addition, from time to time throughout the inspection the party was
joined by William McCalla, the pack house supervisor. Tr. 29-30.

Smith
stated that MSHA defines a “working place” as, “[Any] area where a miner would
perform work.” Tr. 34. He further stated that at one point during the
inspection, McCalla told him that the company did not designate a person to
perform examinations of those areas where miners worked near or on elevators.
Tr. 34-35. Smith also testified that a management official told him the plant’s
elevators were used daily by miners, although Smith did not recall seeing any
miners using the elevators on the day he conducted the inspection. Tr. 94-95. Smith
cited the company for failing to have a designated competent person examine the
elevators. Tr. 30; Exh. S-2. Smith believed that all of the elevators were
“working places” because they were “used to transport miners and materials from
floor to floor on a daily basis.”[5]
Tr. 35. In Smith’s view, failing to designate a competent person and failing to
examine the elevators violated section 56.18002(a).[6]
Tr. 34-35.

Smith also testified that one of the
elevators, the elevator at the preheater tower, moves up and down the tower’s
nine floors. Workers use the elevator to observe the flow of material being
processed (“to make sure the material [is] moving through the process . . .
fluidly” (Tr. 38)) and to correct the flow of the material if necessary. Id.
To do this task workers need access to all nine floors of the tower. Id.
Although access can be by stairway as well as by the elevator, Smith believed
that some materials and tools workers require for the job are too heavy to
carry up (and down) the stairs. Tr. 39.

Another of the plant’s elevators is
located in the area of the kiln. Smith testified that during the kiln’s
periodic shut down, workers use the elevator to transport insulating bricks
from one floor to another. The bricks are loaded on and off the elevator. Tr.

40. According to Smith, there is “someone on each floor to move material in and
    move material out, [and to] ride the elevator with . . . [the material] if need
    be.” Id. In Smith’s opinion, moving material in and out of the elevator
    is “work.” Id. Further, Smith stated that workers are at times required to
    repair or correct defects in the operation of some equipment on the upper floor
    of the kiln (the “burn floor”). Tr. 40-41.

According to Smith, only those parts of
elevators to which miners have access must be examined. Tr. 76. Thus, the
shafts of the elevators are exempt, but the interlocks (the safety latches) of
elevator doors are subject to examination in order to make sure the elevator
doors open as they should. Tr. 42, 76. The goal is to prevent the doors from
opening “when the car is not in place” and thus to preclude a fall accident. Id;
Tr. 91-92. Smith agreed, however, that before March 10, 2014, he never cited an
operator for failing to examine safety latches on an elevator door. Tr. 76. He
also agreed that when he checked the interlocks on March 10, they functioned
properly. Tr. 93-94.

Smith
found that Cemex’s failure to designate a competent person to examine the
plant’s elevators was reasonably likely to result in a serious injury. Tr. 43;
Exh. S-2. He knew about the Louisville accident, but he was not familiar with
the circumstances that led to the accident, nor did he know of any other
occasion where a violation of section 56.18002(a) caused such an accident. Tr.
92-93. Nonetheless, he emphasized that he was told by employees at the
Knoxville Plant that they used the elevators daily and on all three shifts. Tr.
43-44. Frequent use increased the likelihood of an accident. Further, the
likely result of an accident was a fatality. (“[I]ndustry history . . .
indicate[s] that [the] condition [if] left unabated would cause a fatal
accident or injury.” Tr. 43.) Smith feared that due to a malfunction of an
interlock an elevator’s door would open even though the car was not at the
landing and an employee would fall down the shaft.[7]
Tr. 91-93. The hazard existed despite the fact that when he checked the interlocks
on the working elevators, all of the interlocks functioned properly. Tr. 94.

Smith further found that the company was
moderately negligent in allowing the violation. Exh. S-2. He recognized that
the company and/or its contractor, Otis Elevator Co.(“Otis”), examined the
elevators on occasion and tagged them out if they felt such action was needed. The
company’s intermittent attention to the elevators somewhat mitigated its
negligence, but did not overcome the fact that there was no competent person
designated by Cemex to perform the required examinations and no policy to
ensure the examinations were performed. Tr. 46. Smith was asked if he was
familiar with an MSHA document titled, “Metal and Non-metal General Inspection
Procedures Handbook.” Exh. R 22. Smith stated he was and explained the handbook
governs the procedures under which he and other inspectors conduct inspections.
Tr. 71. The handbook instructs inspectors in part that, “Documentation such as
records of workplace examinations . . . shall be reviewed during the course of
the inspection so any questions concerning those records can be resolved at
that time.” Exh. R-22 at 46. Smith testified that he routinely reviews such
records. Tr. 73. Although he reviewed the records at the plant when he
conducted inspections in December 2013 and in January 2014, neither time did he
ask to see workplace examination records for the elevators. Tr. 74-75. Prior to
March 10 he never asked anyone at Cemex about the company’s elevator inspection
records. Tr. 75. His citation was a first for the company. Id.

The citation was terminated when Cemex
trained and then designated competent persons to perform the examinations. Tr.
46-47. As part of the training Cemex created an eight point list of things to
check inside and outside all elevator cars and specified “serious issues” that
would require the shift supervisor to discontinue use of an elevator and block
access to it. Tr. 47; Exh. S-10. The list helped assure MSHA that that the
company was checking for hazards as required. Tr. 47. The company also provided
MSHA with copies of its training records for each shift. The records listed the
persons on the shift who were trained to conduct the elevator work area
examinations. Tr. 48; Exh. S-10 at 2-4.

Smith also cited the company for a
violation of section 56.14100(c) for failing to correct two hazards relating to
the burn floor elevator. Smith found that the “in-use” lights for the elevator
(one at the first floor call station and one at the second floor call station)
did not activate when the elevator was in motion. Tr. 55, Exh. S-3. He also
found that the telephone inside the elevator car was missing.[8]
Id. Smith explained that an “in-use” light lets a worker know when an
elevator car is in motion and when the car stops. Id. Smith speculated
that if the light is not working, a worker may think the car is at his or her
floor ready for use when in fact it is elsewhere. When the worker tries to open
the elevator door to access the car, the interlock safety system, if it is
working properly, will prevent the door from opening, and tugging on the door
can cause the worker to sprain or strain his or her back resulting in lost
workdays or restricted duties. Tr. 55, 56, 58. However, the elevator door has a
window, and Smith agreed a worker can look through the window to determine if
the car is at the landing before he or she attempts to open the door. Tr. 58.

Removing the telephone from the car
created the danger that a worker or workers trapped in the car are unable to
call for help. Tr. 43, see also Tr. 44. Smith noted, however, that he
saw management employees and “a few miners” who carried radios underground and
many miners who carried cellular telephones. Both types of devices can be used
to communicate with those outside the car. Tr. 45-46, see also Tr. 57.

Smith considered the alleged violation
of section 56.18002(a) to be directly connected to the alleged violation of
section 56.14100(c). Smith stated, “Management did not have an examination
program in place concerning elevator defects.” Tr. 55-56. Smith implied that
had the company complied with section 56.18002(a) it would have observed and
corrected the burn floor elevator’s defects or would have taken the elevator
out of service. Tr. 56.

Smith found that the alleged violation
was caused by the company’s high negligence. Tr. 58-59; Exh. S-3. Cemex did not
require a workplace examination of the burn floor elevator, an examination that
most likely would have resulted in the defects being reported and corrected or
in the elevator being tagged out of service. Tr. 58-59. However, he agreed that
if the “in use” lights had been defective and the telephone had been missing on
February 26, the conditions would most likely have been fixed by the Otis
employee who examined the plant’s elevators on that date. Tr. 104. Moreover, he
acknowledged that on March 4 Leroy Lockett, an MSHA supervisor, inspected the
plant and that Lockett issued no citations concerning the elevators. Tr. 98-99.
If the defects existed on March 4 Lockett most likely would have found them and
had them corrected. Tr. 104-105. Therefore, Smith thought that the defects
probably came into being between March 4 and March 10. Tr. 105. Nonetheless,
Smith stated he and other MSHA personnel were told by both supervisors and rank
and file miners that the elevators were “used daily per shift” and thus that
management officials should have been aware of the defects. Tr. 113; see
also Tr. 102, 105. To correct the alleged conditions, Cemex called Otis who
sent employees to the plant to fix the defective lights and to reinstall the
telephone. Tr. 59.

DONIECE
SCHLICK’S OBSERVATIONS

Doniece Schlick has been employed by
MSHA for 24 years, and she has served as an MSHA assistant district manager for
four years. As an assistant district manager she has been involved in
enforcement of the Act and metal non-metal safety regulations promulgated
pursuant to the Act. Tr. 124. Prior to becoming an assistant district manager
she worked as an inspector at the agency’s Macon, Georgia office where she had
experience inspecting cement plants. Tr. 125. Ms. Schlick holds a B.S. degree
in mining engineering from the University of Alabama. Tr. 126. As an assistant
district manager one of her duties is to observe how MSHA’s inspectors conduct
inspections and how operators relate to inspectors. Pursuant to this duty she
accompanied Smith to the Knoxville plant on March 10. Tr. 126-27.

Schlick was clear that the Louisville
accident heightened MSHA’s emphasis on the need to inspect elevators. She was
asked by her counsel why MSHA “was . . . so intent on inspecting [the plant’s]
elevators?” Tr. 127. She responded: “After a fatality, it is our duty to make
sure that not just at Cemex, but [that] all cement plants in the southeast are
following the best practices

to
. . . keep another accident from happening like that in the industry.” Id.
Her counsel then asked, “So a fatality can change the way that MSHA does its
job?,” and she responded, “Well, I would expect that a fatality . . . or . . .
serious accident would be a wake-up call for us to look at things differently.”
Tr. 128.

Schlick testified regarding her
understanding of the accident at the Louisville plant:

A
. . . worker was looking for a bucket . . . and someone

told
him they were on the fourth floor. He rode the

elevator
up to the fourth floor. He got the bucket. He

[tried to go]
back on the elevator. When he opened . . .

the doors to the
elevator and stepped on the elevator,

the
vehicle was not at that floor. It was [at] a lower floor.

Tr. 129; see also Tr. 130.

Schlick understood that prior to the
accident the victim was “manually moving” rocks. Tr. 130. In her opinion when
he stopped and started looking for a bucket, he was still “in the process of
doing his work and trying to perform it better.” Id. He was, she stated,
“looking for additional tools to help to perform that task.” Id. She
believed the victim was working because “[h]e was going from one floor to
another to obtain tools to perform the task that he was doing better, safer,
more efficiently.” Tr. 131. She added the Louisville plant is similar to the
Knoxville plant. Id.

When asked what she regarded as an
effective workplace examination of an elevator, Schlick stated that at “a
minimum” the elevator’s safety features should be checked. Such features
include the inside light, the inside communication system, and the “in-use”
lights. Tr. 132. In addition, the elevator’s doors should be checked.[9]
Tr. 132-133. In Schlick’s opinion, a workplace examination should follow the
best practices concerning elevators, practices that are set forth in the
February 28, 2014, fatalgram. Tr. 134; Exh. S-6.

Although Schlick visited the Louisville
plant several times during MSHA’s 19 day investigation of the accident, she did
not lead the investigation team, and the investigation was ongoing when Smith
and Schlick were at the Knoxville plant. Tr. 134-135. Schlick agreed that she
and Smith were not the first MSHA personnel to inspect the Knoxville plant’s
elevators following the accident. Lockett inspected the plant and the elevators
on March 4, six days before she and Smith arrived. Tr. 138.

Schlick stated that before the accident,
“some inspectors were asking for workplace examination [records] of elevators ”
(Tr. 139), but she confirmed that before March 10 Cemex never received a
citation for failing to designate a competent person to examine the elevators
at its Knoxville plant. Tr. 139, 140. Schlick also stated that she was aware
that a few days after the accident, Cemex asked Otis to come to the Knoxville
plant and check all of the doors on all of the elevators. Tr. 140-141. She
stated that she and Smith looked at the Otis service records. She recalled
Lockett telling her that he too looked at the Otis records and that he checked
all of the elevators’ doors. Despite the fact that Otis’s personnel inspected
the elevators on occasion, Schlick believed a daily shift inspection conducted
by a person designated by the operator was important because, “[m]ining is a
dynamic and rugged environment that requires more inspections of elevators”
than those provided by a contractor like Otis.[10]
Tr. 143.

THE
COMPANY’S WITNESSES

ALAN
STEPHENS AND CEMEX’S PRACTICES REGARDING ELEVATORS

Alan Stephens is the maintenance manager
at the plant. Tr. 150. Prior to assuming the position of maintenance manager,
he worked as the safety manager. Tr. 151. Stephens began his career with Cemex
at the Louisville plant before transferring to the Knoxville plant. Id. At
the time of the hearing, Stephens had worked in the cement industry for 34
years. Id. On March 10 Stephens traveled with the inspection party. Tr.
152.

Stephens explained the procedures Cemex
has in place for detecting and correcting elevator defects. Stephens stated
that pursuant to a contract with Otis, it is primarily Otis’s personnel who
inspect and test the elevators and perform needed repairs and maintenance. Tr.

155. Stephens stated that Otis’s employees come each month to inspect the
     plant’s elevators [[11]],
     and they come when Cemex requests they fix a particular problem.[12]
     Tr. 154-155, 190. Stephens maintained he has seen Otis’s personnel at the
     plant, “many times.” Tr. 158. Moreover, as the safety manager at the plant he
     reviews all copies of Otis’s maintenance records. Tr. 160. Prior to March 10
     the last time Otis personnel were at the plant was February 26 when they
     inspected the plant’s elevators at Cemex’s request. Tr. 161-162. Stephens
     remembered that after the February 21 accident the employees at the Knoxville
     plant were asked to check all of the doors on the elevators, which they did. Among
     other things they made sure that the doors remained closed when the cars were
     not at a landing. Tr. 163.

Stephens testified that he traveled with
Lockett on March 4 and that Lockett did not find anything wrong with the
elevators. Further, Stephens recalled that Lockett reviewed Otis’s maintenance
records and did not ask if Cemex designated a person to examine the elevators
on each shift pursuant to section 56.18002(a). Tr. 164-165. Indeed, although he
always traveled with MSHA’s inspectors, before March 10 Stephens never was
asked about Cemex’s examinations of the plant’s elevators. Tr. 165–166. Further,
before March 10 Stephens never saw MSHA’s inspectors check the elevators’ doors
to see if they would open when the cars were not at the landings. Tr. 166.

On March 10 Stephens did not see anyone
working in the area of the kiln elevator. Tr. 167- 168, Exh. R-13 at 1, 2. In
fact, on March 10 no work of any kind was performed on or around the kiln elevator.
Tr. 174. The kiln elevator was used so infrequently Stephens did not know when
it was used last. Tr. 168. Stephens was surprised by the March 10 citation. He
stated he did not know MSHA would apply section 56.18002(a) to the plant’s
elevators. Tr. 175.

Stephens
identified a photograph of the landing door of the mill room elevator. Resp.
Exh. 13 at 3-5; Tr. 168-169. The door has a small window, as do all of the
landing doors. Tr. 169. The company has never been cited because a window is
too high and prevents a short person from looking to see if the car is at the
landing. Id.

Stephens could not recall if Lockett
checked the burn floor elevator on March 4. Tr. 176. In any event, Stephens
stated that six days later, on March 10, he was unaware the ”in-use” lights for
the burn floor elevator were not working and that the telephone in the car was
missing. Tr. 173.

Stephens was adamant that he did not
consider an elevator is not a “working place.” He testified, “We do not perform
work in elevators[,]” (Tr. 177), and he was certain that no work was done on
any of the elevators on March 10. Tr. 193.

WESLEY
WADDINGTON AND OTIS’S PRESENCE AT THE PLANT

Wesley (“Wes”) Waddington is an elevator
mechanic who is employed by Otis. He has installed and repaired elevators for
27 years. Prior to working for Otis, he worked for Westinghouse for three
years. He has 30 years of experience in the elevator business. Tr. 199-200. Waddington
testified that in February and early March 2014 he made inspection and
maintenance visits to the Knoxville plant. Tr. 200-201. He visited the plant in
February and March at Cemex’s request because, “[T]here was some concern . . .
[because Cemex] had . . . a fatality at another plant and [Cemex] wanted us to
come to make sure everything was up to par with their elevators.” Tr. 203. He
added, “And we did perform maintenance as well as other tasks that were due at
the time on those elevators.” Id. His duties at the plant included
inspecting the elevators and providing maintenance services. He testified that
during his visits to the plant he examined all of the components of the
elevators’ doors. One aspect of his work is to make certain the doors do not
open when an elevator’s car is not at a landing. Id. For a door to open
under such circumstances the door’s interlock mechanism has to malfunction. Tr.

205. To check the mechanism Otis personnel must climb on top of the elevators’
     car. In Waddington’s opinion, tugging on a door from the landing, a safety
     check advocated by MSHA, is unsafe, because if the door opens and the car is
     not at the landing, the person tugging on the door can fall down the shaft. Tr.
     206; see also Tr. 216. In addition, too much tugging can bend and
     break the interlock mechanism. Tr. 206-207, 218. In general, Waddington believed
     workers should not pull on an elevator’s doors unless “they see the elevator
     through the door’s window.” Tr. 207.

Waddington added that if he saw a burned
out light or a similar problem on any of the elevators he would fix what was
wrong or he would advise Cemex that the problem needed to be fixed. Tr. 209. If
he found that a telephone inside a car was missing, he “would . . . tag . . .
out [the elevator] and notify [Cemex] not to use . . . [the elevator] until it
had two way communication.” Tr. 210. During his February and March visits to
the plant he did not see a missing telephone, and although there were burned
out “in-use” lights, he fixed them. Tr. 210-211. In Waddington’s opinion,
burned out “in-use” lights should not be replaced by the company; rather, they
should be replaced by Otis’s technicians because they pose a hazard of
electrocution to those who are unfamiliar with the electrical system of an
elevator. Id.

THE CITATIONS

Citation No. 8733024, states:

The
mine operator failed to designate a competent person to

examine
the elevators for hazards each shift at this operation.

Defects
affecting the safe operation of the elevator car and

hoistway
doors, at each floor, exposed miners to fatal injury when

using
the elevator and/or working near the hoistway

doors
on a daily basis.

Exh. S-2.

Citation No. 8733025 states:

The IN USE
light[s] provided for the [b]urn [f]loor [e]levator were

not burning when
the elevator was in motion. The defective

lights were
located on the 1st and 2nd floor call stations.

‘The lights,
when working, let the miner know when the

car is in motion
and [the lights] go out when the car stops.

Should a miner
attempt to open the door when the car

is not at their
floor, provided the hoistway door safety

interlock is
working properly, the door would not open

and strain and
sprain type injuries would occur. Also[,]

the supplied
communication phone had been removed and not

replaced inside
the car. The phone is to be maintained to allow

miners to make
contact with the operator in the event the car

becomes
inoperable entrapping the miner[s] inside. Management

did not have an
examination program in place concerning elevator

defects.

Exh. S-3.

CITATION
NO.        DATE             30 C.F.R. §

8733024                      3/10/14            56.18002(a)

THE
VIOLATION

There are five elevators at the plant,
the pack house elevator, the mill room elevator, the preheater tower elevator,
the burn-room/kiln elevator, and the TBA-tower elevator. The testimony reveals
that Cemex did indeed “[fail] to designate a competent person to examine the
elevators [at its plant] for hazards each shift.” Exh. S-2. Smith credibly
testified that he was told as much by a Cemex supervisor, and Smith’s testimony
was not rebutted.[13]
Tr. 34. Cemex goes to some length to argue that “although the miners at the
Knoxville . . . [p]lant did not intend to complete an official working place
examination of the elevators . . . their actions nevertheless met the
requirements of the standard. The miners . . . were deemed competent and trained
by the operator to observe the elevator car for defects or issues involving
lights, communication systems, and the general condition of the elevator prior
to and during use in order to make sure it was safe to ride.” Resp. Br. 27. The
company’s argument fails to address one of the central contentions of the
Secretary, that the company failed to designate a competent person to conduct
the working place examinations. The standard contemplates the operator’s
designation of a specific person and the designated person’s accountability for
the required examination. As Smith was told, Cemex did not designate a person
to examine its elevators and whatever its employees did with regard to the
elevators did not overcome Cemex’s failure to meet the “designation” requirement
of section 56.18002. However, this only establishes a violation if at least one
of the elevators at the plant comes within the standard.

Section 56.18002(a) applies if an area
is a “working place.” As noted previously, when used in Part 56, a “working
place” is defined as “any place in or about a mine where work is being
performed.” The definition is expansive (“any place in or about a mine”). It
also is written using the present progressive tense, which means that work has
started but has not yet finished. If read strictly, the definition means that a
“working place” does not come into existence until work is actually performed
at the cited place. Cemex points out that where a regulation is clear and
unambiguous, effect must be given to its plain language. Resp. Br. 6 (citing Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-43 (1984; United States Lines, Inc. v. Baldridge, 667 F.2d 42, 45
(D.C. Cir. 1982); Cyprus Emerald Resources Corp. v. FMSHRC,195 F.3d 42,
45 (D.C. Cir. 1982)). Thus, in the company’s view “a ‘working’ place
encompasses only those distinct areas of a mine where miners are engaged in
actual work.” Resp. Br. 7. Within the context of section 56.18002(a) giving
effect to the “plain meaning” of the regulation means that a competent person
is required to examine an area once work is underway. This is a permissible
reading of the standard and an examination conducted while miners are working
undoubtedly complies with section 56.18002(a). However, it is not the only
permissible reading of the standard. If it were, it would leave an unacceptable
“safety gap” in that workers could be exposed to potential hazards because
although they were assigned to work in an area, the work had not yet started
and the examination had not yet been conducted thus exposing the workers to
potential hazards before the examination was conducted.

The Secretary also recognizes this
“safety gap.” In what is essentially an appeal for second step Chevron
deference, the Secretary asks the court to find the standard applicable “if
there is a reasonable expectation of work taking place” or, “if there is a
reasonable expectation of a miner engaging in an activity where he exerts
himself to perform some task, duty, function, or assignment as part of a
greater phase or larger task.” Sec. Br. 16-17. The court agrees with the
Secretary to this extent because the court finds extension of the standard to
areas where there is “a reasonable expectation of work” (Sec. Br. 16) to
further the purpose of the standard whose goal is not only to protect those who
are engaged in present work, but also to offer protection to those who soon
will be engaged in work in order to prevent them from encountering working
place hazards in the first place. Therefore, as the court understands the
standard, it applies to places where work is being performed during a shift,
where work is assigned to be performed during a shift, or where work can
reasonably be expected to be performed during a shift. Under this reading of
the standard an operator may time its examination of a working place in one of
three ways. It may have a designated competent person examine an area where
work is being performed during a shift while the work is being performed; or,
it may have a designated competent person examine an area where work is
assigned to be performed during a shift but where the work has not yet started;
or, it may have a designated competent person examine an area where it is
reasonable to expect work will be performed during the shift. To prove a
violation the Secretary must show that a designated competent person did not
conduct any such examinations either on the shift during which the inspection
was conducted or did not perform any such examinations during a specifically identified
prior shift.

Turning to the wording of the citation,
the court notes it charges Cemex with failing to examine “the elevators.” Exh.
S-2. This broad brush wording implies a duty on Cemex’s part to examine all of
its elevators simply because they are elevators. However, the standard must be
applied individually, not to the elevators as a unit. Section 56.18002(a) is
directed at the examination of “each working place” not at a generic type of
working place, i.e., “the elevators.”

Further, an elevator is composed of many
parts. According to the Secretary some of the parts, i.e., the elevator’s
“internal workings,” -- are not subject to examination by Cemex. See
Sec. Br. 14 n.5. Under the Secretary’s interpretation of the standard, “MSHA
expects the contractor servicing the elevator to conduct necessary workplace
exams of the . . . internal mechanics of the elevator . . . [and] the operator
to conduct workplace exams on only those areas accessible by miners – the
elevator car and the elevator landing.” Id. Indeed, while the citation
seems to limit the charge of a violation to Cemex’s failure to have a competent
person examine its “elevator car and the hoistway doors, at each floor” for
“defects affecting the safe operation” of the elevators (Exh. S-2), the
Secretary makes clear on brief that the alleged violation also includes the
failure of a designated competent person to examine areas of the landings
adjacent to the doors, presumably because work projects requiring the opening
and the shutting of the doors and passage into and out of the cars must
necessarily also involve the landings providing access to and egress from the
cars. Id.

To sum up its interpretation of the
standard, it is the court’s opinion that to establish a violation of section
56.18002(a) in this particular case, the Secretary must show that on the shift
when the inspection took place or on a specifically identified prior shift, a
designated competent person did not conduct an examination of areas of a
specific elevator where a work-related task involving the elevator’s car or
landing doors was being performed, was assigned to be performed but not yet
started, or where such a task reasonably could be expected to be performed.[14]

THE INDIVIDUAL
ELEVATORS

With regard to the pack house elevator,
the testimony reveals that at the time of Smith’s inspection, the elevator was
shut down, locked and tagged out. Tr. 36, 46. No evidence was presented as to
how long the elevator was out of service and when it would be returned to
service. Cemex cannot have violated the regulation by failing to have a
competent person examine the car, doors and landings of an elevator Cemex
already had taken out of service. This leaves the question of whether the
Secretary proved that on a prior shift the car, doors and landings of the pack
house elevator had been used as a working place and Cemex failed to designate a
competent person to examine those parts of the elevator during the shift when
it was so used. The Secretary did not establish what type of work was done in
connection with the pack house elevator and did not point to a shift in the
past when the company used the pack house elevator as a workplace but failed to
examine its parts as required. In fact, the Secretary’s allegations regarding
the pack house elevator are vague to a fault. They seem to consist of the
assertion that “at some time or another” in the past a violation must have
taken place. See e.g., Tr. 46. This is too slender a reed to support a
violation, and the court concludes that as far as the pack house elevator is
concerned, the Secretary did not prove the company violated section
56.18002(a).

With regard to the mill room elevator,
Smith testified that it is a “personnel elevator which transports . . . miners
from floor to floor.” Tr. 37. Smith stated that he found no deficiencies when
he inspected the mill room elevator. Tr. 93-94. Smith estimated that in general
five or six miners work in the mill on any given shift. Tr. 112. Stephens
testified that some elevators are used daily at the plant (Tr. 176), but that
on March 10 he saw no one working near the mill room elevator. Tr. 169. Stephens
disagreed with Smith’s testimony that the mill elevator is used only to
transport personnel. He stated that it is also used to convey materials and equipment
(Tr. 183) (“[h]ot hand tools . . . tool bucket, stuff like that” Id.). The
court accepts Stephen’s testimony. Tr. 182-183. Stephens was more familiar than
Smith with operations at the plant and he was a credible witness. Use of the
elevator to convey materials and equipment means that when it was so used the
items had to be gathered on the landing, the doors had to be opened and the
various items had to be loaded into the car and then unloaded. Loading and
unloading the materials and equipment made the car, doors and landings for the
mill room elevator a working place (i.e., “a place . . . where work is being
performed.” 30 C.F.R. § 56.2). Therefore, the car, doors and landings were
subject to examination by a competent person designated by Cemex on the shift
when the inspection took place if work involving the car, doors and landings
was being performed, was assigned to be performed or reasonably could have been
expected to be performed or if such work took place during a prior identifiable
shift.

As the court noted, there is no evidence
any of the five elevators were in use during the shift when Smith and Schlick were
at the mine on March 10.[15]
Nor is there sufficient evidence for the court to conclude it was reasonable
for Cemex to expect the mill room elevator would be used to convey materials
and equipment or to transport workers carrying work-related materials or
equipment before the March 10 shift ended. Further, the evidence of prior use
offered by the Secretary is too vague to support finding a violation. At most,
the evidence leads to the conclusion that the mill room elevator may have been
used to convey work-related materials, equipment, or employees transporting
such equipment in the indeterminate past. The Secretary does not offer evidence
as to when and on what shift this occurred, and the court concludes that as far
as the mill room elevator is concerned, the Secretary did not prove the company
violated section 56.18002(a).

With regard to the preheater tower
elevator, Smith described it as a “personnel floor to floor” elevator. Tr. 37. The
preheater tower has nine floors. Smith estimated that four or five employees
work on or near the preheater tower. Tr. 113. According to Smith, workers use
the preheater tower elevator to go from floor to floor to provide maintenance
and to observe the processing of material. Tr. 38. At the top floor of the
tower, workers sometimes use a tape measure to check the depth of material that
is being processed. They also use compressed air or water to help the material
move through the processing system. Tr. 38-39. Although workers could use
stairs to reach the landings, Smith thought the weight of materials and tools
the miners often carry made use of the stairs unlikely. Tr. 39. The court
agrees and finds it highly unlikely miners would walk up the stairs rather than
use the elevator. The court further finds that loading equipment onto and off
the elevator car to facilitate the processing of plant material makes the
landings, doors, and car of the preheater tower elevator working places within
the meaning of section 56.18002(a).[16] 

The court finds it significant that the
purpose of the work conducted at the preheater tower is to maintain the smooth
processing of material at the plant. While there is no evidence the preheater
tower elevator was in use while Smith was at the mine (Tr. 95, 169), the court
infers from the fact the task to be accomplished is production-related and from
the fact production was and had been ongoing (the plant was not shut down),
that it is reasonable to conclude the preheater tower elevator was used on the
most recent production shift to move workers and their equipment to the top of
the tower to monitor and expedite the processing of material. The loading and
unloading of the necessary equipment and materials by the employees made the
elevator’s car, doors and landings working places and, in the court’s view,
brought the preheater tower elevator within the standard on the production
shift most recent and prior to the March 10 inspection when it was so used. For
these reasons the court concludes the evidence supports finding a violation of
section 56.18002(a) regarding the preheater tower elevator.

With regard to the burn room/kiln
elevator, Smith testified that it is used to transport both personnel and
materials from floor to floor. Tr. 37. Smith remembered seeing plant personnel
walking around the burn floor, but he could not recall what they were doing and
no one was working in the area of the elevator’s first and second floor
landings on March 10. Tr. 167-168. In fact, Stephens testified he did not know
the last time the elevator was in operation. He stated that based on the
company’s records the elevator had not been operated two months before March 10
and two months after March 10. Tr. 168. He described the elevator as “hardly
ever use[d].” Id.

The court finds that record confirms the
burn room/kiln elevator was not in use during the shift when Smith conducted
the inspection and there is no evidence it was going to be so used if the shift
continued after the inspection ended. In the court’s view, Stephens’ unrebutted
testimony that he could not recall when the burn room/kiln elevator was last
used, that its use was infrequent, and the lack of any testimony as to when it
was last used in the performance of work-related activities means that as far
as the burn room elevator is concerned, the Secretary failed to prove the
company violated section 56.18002(a).

There is very little evidence regarding
the TBA tower elevator. Smith described it as a “personnel elevator.” Tr. 37. There
is no evidence of the elevator’s other use or uses, if any. As the court
stated, using an elevator solely to transport workers does not, in and of
itself, make the elevator a “working place” and bring the elevator’s car,
doors, and landings within the strictures of section 56.18002(a). The court
therefore finds the Secretary did not prove a violation regarding the TBA tower
elevator.

For reasons set forth above the court
finds that the Secretary established that Cemex violated section 56.18002(a),
but only with regard to the preheater tower elevator.

S&S
AND GRAVITY

An S&S violation is a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.” 30 U.S.C. §814(d). A
violation is properly designated S&S “if, based upon the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature. Cement Div., Nat’l Gypsum Co. 3 FMSHRC 822, 825 (Apr. 1981). To
establish the S&S nature of a violation, the Secretary must prove: “(1) the
underlying violation of a mandatory safety standard; (2) a discrete safety
hazard – that is a measure of danger to safety – contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury will be of
a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 2-4 (Jan.
1984); accord Buck Creek Coal Co., 52 F.3d 133, 135 (7th Cir.
1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th Cir. 1988)
(approving the Mathies criteria).

The S&S nature and the gravity of a
violation are not synonymous. “[T]he focus of the seriousness of the violation
is not necessarily on the reasonable likelihood of serious injury, which is the
focus of the S&S inquiry, but rather on the effect of the hazard if it
occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).

The court concludes the Secretary
established that the violation was of an S&S nature. The first Mathies
element has been established in that the court finds that Cemex violated the
standard when it failed to designate a competent person to examine the
preheater tower elevator. To prove the second element, the Secretary needs only
to identify a discrete safety hazard associated with the S&S violation. Highland
Mining Co., 34 FMSHRC 3434, n.5 (Dec. 2012). The possibility that a
defective locking mechanism on the preheater tower elevator’s doors would not
be detected and corrected because a section 56.18002 examination was not
conducted presented the associated hazard that an unsuspecting worker,
mistakenly thinking the elevator car is at the landing, would open the
elevator’s door and would slip or fall into the empty shaft. This happened at
the Louisville plant and by applying the standard to the elevator in question,
the Secretary hoped to prevent the hazard’s recurrence. With regard to the
third element of the Mathies formula, the Secretary established that the
hazard contributed to by the violation was reasonably likely to result in an
injury. The issue must be viewed in the context of continuing operations at the
plant. Use of the preheater tower elevator was related to production, which on
March 10 had been and was ongoing, and which means the elevator had been and
would continue to be regularly used. When regular use is coupled with the fact
the locks on an elevator’s door can malfunction and the door can be opened
without the car being present (see Tr. 51), the court finds that as
mining continued, it was reasonably likely a malfunctioning elevator door would
not be detected and a worker, mistakenly thinking the car was at the landing,
would open the door and fall into the shaft. Any resulting injury was
reasonably likely to be at least of a reasonably serious nature.

There is no doubt that the violation was
serious. The “effect of the hazard” assuming it occurred was at least a serious
injury. Consolidation Coal Co., 18 FMSHRC at 1550.

NEGLIGENCE

Smith found that Cemex was moderately
negligent. The court disagrees and concludes the company was not negligent. The
Secretary’s definitions of negligence (30 C.F.R. §100.3(d)) are not binding on
the Commission. See Brody Mining, LLC., 37 FMSHRC 1687, 1701-02 (Aug.
2015). The Commission has stated, “In determining whether an operator met its
duty of care, we consider what actions would have been taken under the
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation.” Brody
Mining at 1702 (quoting Jim Walter Resources, 36 FMSHRC at 1975). The
Commission also has stated that the court should “consider the totality of the
circumstances holistically” (37 FMSHRC at 1702) and that in doing so it should
take account of “the actions that a reasonably prudent operator would or would
not have taken under the circumstances presented.” Id. at 1703. As set
forth more fully in its discussion of due process, the court finds that while
application of the standard to one of the elevators at the plant is a
permissible way to read section 56.18002(a), given the broad wording of the
standard and the Secretary’s consistent failure to apply the standard at the
plant, Cemex reasonably could have read the standard as inapplicable to its
elevators, and the company cannot be held to have failed to meet a standard of
care it was reasonable to conclude did not exist.

DUE PROCESS

Cemex would have the court vacate the
citation on due process grounds. It contends the Secretary violated its
Constitutional rights by failing to provide it with fair notice of his
interpretation of the standard. Id. 17.

The
Commission has held:

Where an agency
imposes a fine based on its

interpretation
[of a standard], a separate inquiry

may arise
concerning whether the respondent has

received “fair
notice” of the interpretation it was

fined for
violating. Energy West Mining Co., 17

FMSHRC 1313,
1317-18 (Aug. 1995). . . . The

Commission has
not required that the operator

receive actual
notice of the Secretary’s interpretation.

Instead, the
Commission uses an objective test,

i.e., “whether a
reasonably prudent person familiar

with the mining
industry and the protective

purposes of the
standard would have recognized

the specific
prohibition or requirement of the

standard.” Ideal
Cement Co.,12 FMSHRC 2409, 2416

(Nov.1990).

Island Creek Coal Co., 20 FMSHRC 14,
24 (Jan. 1998).

But this does not end the matter because
an agency’s interpretation may be reasonable and nevertheless fail to provide
the notice required in some circumstances to support the imposition of a
penalty. General Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C.
Cir. 1995).

There
is no doubt that the Secretary’s application of the standard to the plant’s
elevators was a “first” at the plant. Tr. 139; see also Tr. 140. Before
March 10 the company relied on its contractor, Otis, to examine all of its
elevators and to correct reported elevator defects on an “as needed” basis. Tr.
96, 141. Stephens testified that when a defect was reported by an employee, the
company “would call Otis, and they would come and repair it.” Tr. 153. He
added, “We relied on Otis[.]” Tr. 154, See also Tr. 179. In December
2013 and again in January 2014, Smith reviewed workplace examination records at
the plant. Tr. 74. Although at the time a designated person was not conducting
workplace examinations of the elevators, Smith did not cite the company for a
violation of section 56. 18002(a) and did not ask the company about its policy
and practice with regard to elevator workplace examinations. Tr. 74-76, 166. Moreover,
on March 4, 2014, Lockett, who was conducting a spot inspection at the plant
that included the elevators, did not issue any elevator related citations Tr.
98-99, 164. Nor did Lockett ask Stephens if Cemex had designated an individual
to examine the elevators. Tr. 165. Smith’s and Lockett’s lack of action in
December 2013, January 2014 and early March 2014 reflects either the agency’s
lack of concern with elevator inspection at the plant, its uncertainty as to
whether the standard applied, its conviction the standard did not apply to any
of the elevators, or its determination that the company’s reliance on Otis
provided its employees with adequate protection.[17]
Not until sometime after the February 21, 2014, accident and Lockett’s March 4
inspection did MSHA decided to apply section 56.18002(a) to elevators at metal/non-metal
facilities. Once the decision was made, it was announced to Cemex not through a
program policy letter or through the February 28, 2014, “fatalgram” (Gov’t Exh.
S-6), but through the agency’s issuance of the subject citation. Gov’t Exh.
S-2. No prior notice was given to Cemex that MSHA would apply the standard to
the plant’s elevators. Indeed, if anything, Lockett’s “citationless” inspection
on March 4 reasonably could have been interpreted by Cemex to signal that the
then status quo complied with the Act. By issuing the citation without prior
notice on March 10, the agency effectively “sandbagged” the company. This does
not mean, however, that Cemex necessarily was deprived of fair notice. Another
analytical step is required.

When an agency uses a citation as the
initial means for announcing a particular interpretation, the court must “ask
whether the regulated party received . . . notice of the agency’s
interpretation in the most obvious way of all; by reading the [regulation].” General
Electric, 53 F.3d at 365. The court has concluded that it is permissible to
read section 56.18002(a) to require a designated person to examine a particular
elevator car, doors and landings on each shift when an operator’s employees
will be conducting work-related activities (e.g. the transportation of
work-related equipment or materials) on, in, or through an elevator’s car, door
or landing on or during a shift when such work is or will be conducted or when
such work reasonably can be expected to be conducted. The court also concludes
that the Secretary’s total lack of prior enforcement, the broad wording of the
definition of “working place” and the fact that elevators are not specifically
mentioned in the regulations for surface and underground metal and non-metal
mines[[18]]
means that Cemex reasonably could have read section 56.18002(a) as not applying
to its elevators. Therefore, even though the court finds Cemex violated section
56.18002(a) with regard to one of its elevators and that the violation was
S&S, the court’s findings are a nullity, because in the court’s view, Cemex
was not provided with constitutionally adequate notice of the Secretary’s
interpretation of section 56.18002(a), and the citation must be vacated.[19]

CITATION
NO.                    DATE             30 C.F.R.
§

8733025                                  3/10/14            56.14100(c)

THE
VIOLATION

Section 14100(c) requires that when
defects make continued operation of self-propelled mobile equipment hazardous
to persons, defective equipment shall be “taken out of service and placed in a
designated area posted for that purpose, or a tag or other effective method of
marking the defective items shall be used to prohibit further use until the
defects are corrected.” The Secretary charges that the “in-use” lights on the
first and second floor call stations of the burn floor elevator did not
activate when the elevator car was in motion or go out when the car stopped. As
a result a worker might think the car was at the first or second floor when it
was not. The worker might try to open the door of the elevator and because the
interlock prevented the door from opening, might strain his or her back. Exh.
S-3, Tr. 55-56. In addition, the telephone inside the elevator car was missing.
Workers could not communicate over the phone with rescuers if workers became
trapped in the elevator. Exh. S-3, Tr. 55-56.

Based on Smith’s undisputed testimony,
the court finds both conditions existed as alleged in the citation. Tr. 54-55. The
court agrees with Smith that each condition posed a hazard to persons. The fact
that the “in-use” lights were not working means a worker might think the car
was at either the first floor or second floor call station when it was not,
might try to open the locked door, and in the process might injure himself or
herself. Further, as Smith implied, lack of working “in-use” lights created the
possibility, if coupled with a failure of the interlock mechanism, for another Louisville-type
accident. Tr. 56. In addition, the lack of a telephone in the elevator car
clearly deprived workers of a way to call for help should they become trapped
in the car. Tr. 57. The court agrees with Smith that the cited defects made
operation of the elevator hazardous to persons riding in it or working on the
landings near it. Smith testified, and Cemex does not dispute, that the
elevator was not taken out of service and the court finds, in the words of the
standard, that the elevator was not marked “to prohibit further use until the
defects [were] corrected.” For these reasons, the court concludes that Cemex
violated section 56.14100(c) as charged.

GRAVITY and
NEGLIGENCE

The court concurs with Smith’s finding
that the violation was not serious and that it was unlikely to result in an
injury producing more than lost workdays or restricted duty. First, as Smith
noted, the doors of the elevator were provided with windows. Tr. 58. Thus, a
worker could see if the elevator car was at the landing before he or she tried
to open the door. Moreover, Smith checked the interlocks during the course of
his inspection and found they functioned properly. Id. The court
concludes that it was therefore unlikely the non-functioning “in-use” lights
would lead to any injury. The court also concludes, given the presence in the
mine of other communication devices, namely portable radios and cellular phones
(Tr. 57), it was highly unlikely that an injury would result from the fact the
car’s telephone was missing.

While the court agrees with the
inspector regarding the gravity of the violation, it takes issue with the
inspector’s finding of high negligence. Exh. S-3; Tr. 58-59. The finding is
based upon the fact that Cemex had not conducted a workplace examination of the
elevator. “A workplace exam being performed daily on the elevator would have
addressed the defects when observed.” Tr. 59. Rather than high negligence, the
court concludes the company’s negligence was moderate. While the cited
conditions were visually obvious and should have been detected and corrected,
as the court has found, it was reasonable for the company to conclude section
56.18002(a) did not apply to its elevators and thus not to designate a competent
person to examine their car, doors and landings on a shift when they were or
would be used for work-related activities. Further, while section 56.14100(a)
requires that when self-propelled mobile equipment is used during a shift, the
equipment be examined before it is placed in operation, there is no evidence
the cited elevator was used during the shift on which the inspection took place
or on a prior identifiable shift. Nor is there certainty as to how long the
cited conditions existed. The most likely implication is that they occurred
sometime between Lockwood’s and Smith’s inspections, a not inordinately long
period. Tr. 105, The court therefore finds that Cemex’s negligence was
moderate.

OTHER PENALTY
CRITERIA

The burden of establishing that any penalty
assessed will affect the company’s ability to continue in business is born by
Cemex. The company did not offer evidence or make an argument on the issue, and
the court finds that the penalties it assesses will not affect Cemex’s ability
to continue in business. The parties stipulated that Cemex has a small history
of previous violations. Tr. 24; see Exh. S-1. The parties did not
stipulate or present evidence as to the size of the operator, but the court
notes that when proposing penalties, the Secretary based the proposals in part
on the fact that the plant is of a medium size, but that Cemex’s controlling
entity is large. Petition for Assessment of Civil Penalty, Exh. A. The court
therefore finds that Cemex is large in size. Finally, when proposing penalties
the Secretary gave the company a 10 percent reduction because of its abatement
efforts. The court therefore finds that Cemex exhibited good faith in seeking
to rapidly abate the violations.

CITATION
NO.  
DATE        30 C.F.R. §   PROPOSED PENALTY   ASSESSMENT

8733024              
3/10/14    56.18002(a)    $1,530                                 $0

The court has found that the Secretary’s
application of the standard deprived Cemex of fair notice. The citation must be
vacated. A penalty cannot be assessed.

CITATION
NO. 
 DATE    30 C.F.R. §         PROPOSED PENALTY     ASSESSMENT

8733025             
 3/10/14        56.14100(c)      $308                            $208

The court has found that the violation
was not serious and was due to Cemex’s moderate negligence. The Secretary proposes
a penalty of $308. Given the court’s gravity and negligence findings and the
civil penalty criteria discussed above, the court finds that a penalty of $208
is appropriate. The court departs from the Secretary’s proposed penalty because
it finds the negligence of the company to be less than the Secretary alleges.

ORDER

Citation No. 8733024 IS VACATED. Citation
No. 8733025 IS MODIFIED by reducing the Secretary’s negligence finding
from “high” to “moderate.” Within 30 days of the date of this decision, Cemex SHALL
PAY a civil penalty of $208.[20]
Upon payment of the penalty this proceeding IS DISMISSED.

/s/ David F.
Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:
(Certified Mail)

Timothy Turner, Esq., U.S. Department of Labor, Office of the
Solicitor, 1244 Speer Blvd., Suite 216, Denver, Colorado  80204-3516

Michael
T. Cimino, Esq.; Adam J. Schwendeman, Esq., Jackson Kelly, PLLC, 1600 Laidley
Tower, P.O. Box 553, Charleston, WV  25322

/db

[1] Sections 56.18002(a) and
56.14100(c) are mandatory safety standards applicable to the nation’s surface
metal/non-metal mines. Section 56.18002(a) states that, “A competent person
designated by the operator shall examine each working place at least once each
shift for conditions which may adversely affect safety or health” and that the
operator “shall promptly initiate appropriate action to correct [any] such
conditions.” Section 56.14100(c) requires that when defects on self-propelled
mobile equipment “make continued operation [of the equipment] hazardous to
persons, the defective items . . . shall be taken out of service . . . or a tag
or other effective method of marking the defective items shall be used to
prohibit further use until the defects are corrected.”

[2] In addition to the Knoxville
plant the company owns several other facilities where cement is produced.

[3] A “fatalgram” is an official
publication of the agency that describes a fatal accident and suggests “best
practices” to avoid similar accidents. It is sent to mine operators, in this
case the operators of all metal/non-metal mines.

[4] There are five elevators in the
cement plant. Tr. 35. Four were in service when Smith arrived at the plant. One,
a freight elevator used to move finished product, had been taken out of service
because of a problem with the way the elevator’s doors opened. Tr. 36. To
correct the defect, Cemex ordered new parts through its elevator contractor,
Otis Elevator Company (“Otis”). Id., Tr. 37. Smith stated that the
company found the defects because it examined the elevator and its doors after
it received the February 28 fatalgram with its listing of the “best practices”
to prevent the recurrence of a Louisville plant-like accident. Exh. S-6; Tr.
36-37.

[5] MSHA’s Program Policy Manual
(the “PPM”) states as follows:

The
phrase “working place” is defined in . . . [section]

56[.2]
as ‘any place in or about a mine where work

is
being performed.’ As used in the standard, the

phrase
applies to those locations at a mine site where

persons
work during a shift in the mining or milling

processes.

Resp. Exh. 17 at 1; Tr. 64.

Smith agreed that there is no
mention in the PPM that qualifying as a “working place” is related to the
frequency with which a miner visits an area or that a “working place” is a
location where a miner is exposed to a hazard. Tr. 64-65.

[6]
Smith stated that as he
understands the standard, an elevator has to be examined if it will be used on
a shift. Tr. 86.-87. According to Smith,

once
the miner places himself or herself onto the elevator

car
to perform their duties, whether to transport from one floor

to
the other floor or that they’re bringing tools or their expertise

as
a person to a different level to perform their duties, they are

working
[and the elevator has to be examined].

Tr. 88.

[7]
However, Smith also agreed
that all of the elevators’ landing doors have windows, and if a person is going
to use the elevator and wants to see if the car is at the landing, he or she
can simply look through the window. Tr. 107.

[8]
The telephone is similar to
a home wall telephone. Tr. 101

[9]
According to Schlick, a majority
of elevator doors are operated manually. Tr. 133. Schlick testified that
it is important during the examination to try to open the doors when the cars
are not at the landings to make sure the doors’ interlocks work properly. Tr.
144-145. Schlick did not dispute that all of the landing doors at the plant
have windows and that workers are supposed to look through the windows to
determine if the car is present, but Schlick observed that the victim at the
Louisville plant was not tall enough to see through the window. Tr. 142.

[10] Schlick testified that there are
competent people that make workplace examinations at the plant on every shift. “They
do the stairs. They do the walkways. They do the tow boards. So we are only
asking that they also look at the general safety features of an elevator.” Tr.
147.

[11] In practice, the purported
monthly inspections of the elevators may not be as regular as Stephens implied.
Stephens agreed the service report for the plant’s kiln elevator shows Otis
examined the elevator in October 2013 but not in November or December 2013. Tr.
188; Exh. S-4.

[12] According to Stephens, employees
who travel in the elevators report any defect to “someone in supervision. And
then we call Otis, and they come and repair it.” Tr. 153. He was asked if
employees “observe the areas [of the elevators] for hazards” when they use the
elevators, and Stephens replied, “If we were to get on an elevator and there
was something wrong just as you got on, yes. I mean . . . we would check and
make sure the elevator was safe to ride.” Id. However, he agreed that no
one from Cemex is performing workplace examinations and having the results of
the examinations recorded. Id. Asked why, he stated that it “was not
anything we’d ever been asked to do. We didn’t consider [an elevator to be] a
workplace.” Id.

[13] See also the following
exchange between counsel for the Secretary and the inspector:

Q. 
 So how did you discover that the operator was not

conducting
workplace exams on the elevator?

A.     
With
discussion of the management stating that they did not.

Tr.

41. (Although counsel used the singular, “elevator,” it is clear in the context
    of the questioning that he meant to use the plural (“elevators”).

[14] While the court believes this is
a permissible reading of the standard, it is a circuitous way to reach the
undoubtedly salutary goal of requiring the examination of elevators. Rather
than “squeeze” the requirement for elevator examination out of section
56.18002(a), the court believes the Secretary is well advised to promulgate a
standard specifically directed at the mandatory examination of all elevators,
much as he has done with regard to surface coal mines and surface areas of
underground coal mines. See 30 C.F.R. §77.1430. Cemex argues at some
length that notice and comment rulemaking is in fact required (Resp. Br.
22-26), but the court disagrees. While rulemaking may well be preferable, the
fact is that section 56.18002(a) as presently written may be read to apply to
the plant’s individual elevators in certain circumstances.

[15] The court recognizes Smith
credibly testified he was told there were elevators at the plant that were used
daily and that Stephens’ testimony corroborated that of Smith. Tr. 41, 95. But
even if the Secretary had offered testimony of actual use this alone would not
bring an elevator within the standard. The pertinent question is how and why an
elevator is used. Tr. 35, 43, 95. If it is used only to transport plant
personnel, the court believes the elevator does not come within the standard. The
court fully agrees with Cemex that use of an elevator solely to move personnel
from one level to another to get them to a working place does not in and of
itself mandate an elevator’s examination. See Resp. Br. 16. (To hold
otherwise would make modes of transportation to, into and out of the plant also
subject to examination under the standard.)

[16] The court rejects Cemex’s
argument that the transportation of miners does not make the mill room elevator
a working place. Resp. Br. 16. More than just transporting employees from one
place to another is involved. The employees themselves are transporting
work-related equipment from the landing, through the door and into the car of
the elevator and reversing the process at another landing and this work is part
of the process of production at the plant. In the court’s view, when the
preheater tower elevator is so used, the work of the employees makes the car,
doors, and landings a working place subject to the standard.

[17] Given the documented history of
Secretarial non-enforcement at the plant, the Secretary’s assertion that “MSHA
simply expected the elevator car and the surrounding landing area to fall under
the exam umbrella” rings hollow. Sec. Br. 22. A far more likely scenario is
that MSHA never gave a thought to the inspection of elevators under any
standard until after the February 21, 2014, accident and then decided that
section 56.18002(a) could be stretched to fit the need. As Schlick put it, “[A]
fatality . . . would be a wake-up call for us to look at things differently.”
Tr. 128.

[18] In contrast, see the detailed
regulation of hoists, equipment that like elevators, is raised and lowered by
cables. 30 C.F.R. § 56.19045 - § 56.19083; 30 C.F.R. § 57.19.000 – 57.19135.

[19] The Secretary’s arguments to the
contrary are not persuasive. The Secretary states that Cemex’s contract with
Otis put the company on notice that areas not listed in the contract are
Cemex’s responsibility subject to inspection by the company. Sec. Br. 23. However,
a more reasonable conclusion is that the long standing nature of the contract,
which went into effect in 1977, and the lack of any indication from MSHA that
Cemex’s practice of relying on Otis violated any regulatory provision, led the
company logically to conclude its practice did not run afoul of the Act and
Part 56. The Secretary also argues the accident at the Louisville plant should
have alerted the company to “[bring] the elevator cars and landing areas under
the workplace exam umbrella.” Id. However, rather than alert the company
to the fact it was in violation of a regulation because of its adherence to a
contractually based practice, a practice for which it never had been cited, a
more logical conclusion for the company to draw was to request its contractor
ensure the interlock mechanisms on the plant’s elevators doors were properly
functioning. This is exactly what Cemex did. Finally, the Secretary states that
the “clear mandate” of the standard should have alerted Cemex to its duty to
comply. Id. But, as noted above, the standard is open to interpretation
to say the least. The Secretary failed to apply it prior to the accident and
reversed its course after the accident. If the standard provided a clear
mandate it is logical to assume the Secretary’s actions would have been
consistent.

[20] Payment shall be sent to the
Mine Safety and Health Administration, U.S. Department of Labor, Payment
Office, P.O. Box 790390, St. Louis, MO  63179-0390