Secretary of Labor v. Buzzi Unicem USA

Plain-English summary

Buzzi Unicem operated a small limestone quarry where employees walked across docked barges before sunrise while wearing cap lights. MSHA cited the company under 30 C.F.R. § 56.17001 after a miner said he could not see past the second barge and the inspector identified a possible trip-and-fall hazard. Judge Priscilla M. Rae found that the inspector never observed the original lighting conditions before sunrise, measured no illumination levels, and misunderstood important details about the dock, lighting, work practices, and prior injury. The evidence also showed that barge tenders worked in pairs, maintained radio contact, wore self-righting life vests, and used cap lights that illuminated hazards at their feet. Because the Secretary did not prove that the existing illumination was insufficient for safe work, the Judge vacated the citation, dismissed the case, and imposed no $100 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.17001
• Outcome: Citation No. 8835889 was vacated, the proceeding was dismissed, and the proposed $100 penalty was not imposed.
• Key point: A lighting violation requires reliable evidence of the actual visibility and illumination in the work area, not an inspector's concerns based on daylight observations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9956 / FAX: 202-434-9949

January 8, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

BUZZI
UNICEM USA,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2015-306-M

A.C.
No. 40-00039-380677

Mine:
Bennett’s Lake Quarry

DECISION AND
ORDER

Appearances:               Willow
E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner

Timothy
A. King, Buzzi Unicem USA, Chattanooga, Tennessee, for the Respondent

Before:                        Judge
Rae

I.         
STATEMENT OF THE CASE

This case is before me upon a petition
for assessment of a civil penalty filed by the Secretary of Labor (“the
Secretary”) pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, as amended, (“the Mine Act”), 30 U.S.C. § 815(d). At issue is a
single citation, Citation Number 8835889, issued to mine operator Buzzi Unicem
USA (“Buzzi” or “the Respondent”) under section 104(a) of the Mine Act.

At the request of the parties a
telephonic hearing was held on November 5, 2015, at which time testimony was
taken and documentary evidence was submitted. The parties also filed written
closing comments. I have reviewed all of the evidence at length and have cited
to the testimony, exhibits and arguments I found critical to my analysis and
ruling herein without including a detailed summary. Based upon the entire
record, I vacate Citation Number 8835889 for the reasons set forth below.

II.       FACTUAL
BACKGROUND

The parties have stipulated to the
following facts:

1.     
Buzzi
is an “operator” as defined in section 3(d) of the Mine Act, 30 U.S.C. §
802(d).

2.     
The
Bennett’s Lake Quarry Mine, Mine Identification Number 40-00039, is a “mine” as
that term is defined by section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

3.     
Buzzi’s
operations at the Mine are subject to the jurisdiction of the Mine Act.

4.     
The
hearing of the above-referenced docket is subject to the jurisdiction of the
Federal Mine Safety and Health Review Commission (“the Commission”) and its
designated Administrative Law Judges pursuant to sections 105 and 113 of the
Mine Act, 30 U.S.C. §§ 815 and 823.

5.     
Inspector
Edward White was acting in his official capacity as an authorized
representative of the Secretary when he issued the citation.

6.     
The
total proposed penalty for this docket will not affect Buzzi’s ability to
remain in business.

7.     
The
proposed assessment (Form 1000-179) accurately sets forth:

a.       Buzzi’s size, in
hours worked;

b.      The size, in hours
worked, of the mine at which the citation was issued;

c.       The total number
of assessed violations for the 15 months preceding the month of the referenced
citation; and

d.      The total number
of inspection days for the 15 months preceding the month of Citation Number
8835889.

Tr.
5.[1]

Bennett’s Lake Quarry is a small
limestone pit located in Jasper, Tennessee. GX 5. The quarry operates for one
shift each day beginning early in the morning. Tr. 29-30. The material
extracted at the pit is processed onsite and the finished product is loaded
onto barges on a lake to the south of the facility to be hauled away by tugboat.
Tr. 31.

The citation at issue in this proceeding
was written by MSHA Inspector Edward White[2]
during a regular inspection of the quarry and charges the Respondent with
failing to maintain sufficient illumination in the area where the barges are
docked. GX 3. Inspector White arrived at the quarry to perform the inspection around
7:30 AM on March 16, 2015. Tr. 28. He observed the barges tied together in a
tight bunch on the lake. Tr. 30, 40. A satellite image produced at hearing shows
the barges’ typical docking configuration: two barges are docked parallel to
the shore with other barges tied to them broadsides to form a stack several
barges deep. Tr. 32-34. At some point during the inspection, a miner told White
that it was impossible to see beyond the second barge before sunrise, yet
employees are required to walk the barges to check the cables at approximately
6:30 AM each morning when it is still dark outside. Tr. 41-43; GX 2. Employees
wear cap lights when working on the barges, and at the time of the inspection there
was a tower light at the dock that provided illumination to the east and west,
but there was no diffuse light source pointing south toward the lake and
barges. Tr. 43-45, 62-64, 79. Based on the miner’s statement that he could not
see past the second barge and his own concerns about a trip and fall hazard due
to insufficient illumination, White issued Citation Number 8835889. Tr. 42-43,

49. The citation was terminated later that day with notation that the company
    had rented a portable light system for the barge storage area until permanent
    lighting could be installed. GX 3.

White returned to the mine before
sunrise the next day and observed the rented lights in operation. However,
because he did not turn the lights off, he was unable to observe or measure the
level of illumination without them. Tr. 64, 74.

The Secretary seeks a penalty of $100.00
for the alleged violation. GX 6. The Respondent disputes that a violation
occurred.

III.    FINDINGS
OF FACT AND ANALYSIS

The mandatory
safety standard alleged to have been violated is 30 C.F.R. § 56.17001, which states:
“Illumination sufficient to provide safe working conditions shall be provided
in and on all surface structures, paths, walkways, stairways, switch panels,
loading and dumping sites, and work areas.” The Commission has stated that the
issue of what constitutes “illumination sufficient to provide safe working
conditions” requires the judge to make a factual determination based on the
working conditions in the cited area and the nature of the illumination
provided. Capitol Aggregates, Inc., 3 FMSHRC 1388, 1388 (June 1981), aff’d,
671 F.2d 1377 (5th Cir. 1982) (unpublished table decision).

In this case,
the working conditions in the cited area require employees to maneuver across the
dock and the decks of floating barges to pull cables, reposition the barges,
and check moorings, sometimes before sunrise. Tr. 32, 38-41, 72. The decks run
around the edges of the barges. The interior of each vessel comprises a hold
with 6-foot walls along its length and 3-foot walls on each end. Tr. 77; GX 4;
RX 2. Employees are not required to load the barges by hand, as this is
accomplished using a conveyor belt system. Tr. 31. Timothy King, the safety and
health manager for the quarry, testified that employees working on the barges wear
self-righting life vests that inflate automatically upon contact with the
water. Tr. 68. He also stated that barge tenders always work in pairs, with a
barge loader present inside the control room on the dock, and remain in radio
contact with each other. Tr. 68-69, 77.

As for the nature
of the illumination in the cited area, employees wore cap lights at night, and diffuse
lighting for the barge docking area was supplied by a tower light fixture at
the control room with lights pointing to the east and west. Inspector Smith did
not visit the area before sunrise until after additional lights had been added,
so he was unable to measure or describe the scope or quantity of illumination
provided by the tower light. Tr. 64-66, 73-74. He noted that the fixture was
wired for a south-facing light that had never been installed. Tr. 63. However,
King testified that the company had in fact installed a south-facing light in
the past, but the barge tenders at the time had removed it because it “caused a
blinding effect when they were on the barges.” Tr. 67.

The Secretary
argues that the illumination described above was insufficient to provide safe
working conditions in that it would not have allowed the operator to locate
miners and effectuate a swift rescue in the event of an emergency. Sec’y’s
Post-Hr’g Br. 7. Inspector White’s primary concern was that a miner could trip
and fall into the lake unnoticed in the dark. White took photographs showing
equipment on the deck of the barge, which presented a tripping hazard, and
testified that a prior trip-and-fall injury had occurred at the facility’s
barge docking area in December 2014. GX 4; Tr. 46-47.

Although the
evidence offered by White shows why insufficient lighting at the barge docking
area could be hazardous, the Secretary has failed to present enough reliable,
objective evidence to establish that the lighting was actually insufficient. The
Secretary relies solely on the evidence from Inspector White, but White’s
testimony bears indicia of unreliability which diminish the weight of his opinions
regarding the nature and sufficiency of the lighting in the cited area.

To begin with, White
was unfamiliar with the layout of the barge docking area and the work performed
there. For example, he cited the tower light for lacking a north-facing light
and did not realize until the hearing that the barges were actually located in
the opposite direction and the empty light socket was pointing southward. Tr. 62-64.
He did not recall that the south-facing light had previously been removed by
barge tenders because it created glare, even though this had been brought to
his attention during the inspection, according to King. Tr. 67-68. White misidentified
which building was the control room on the satellite map shown at hearing,
which is significant because the tower light was located at the control room. Tr.
35-36, 43-44, 57. He incorrectly guessed the height of the lips around the
barge holds, which were so tall that King suggested they effectively block the
view from the shore no matter what time of day it is or what lighting is
provided. Tr. 53-54, 77. White also did not know what type of life jackets the
barge tenders wore and was unaware that they maintained radio contact with the
other employees and worked in teams of two so that a buddy system was in place
in the event of an accident. Tr. 51, 68-69, 77.

In addition, some
of the concerns that spurred White to issue the citation seem to have been
unfounded. At hearing, he initially emphasized that he believed management
should have taken action because employees had been complaining about the
lighting for three weeks. Tr. 52, 54-56. But he later admitted that his notes
showed “the three barge tenders had not spoken to management yet actually, but
had been speaking amongst themselves.” Tr. 67. Also, although White indicated
that his concerns about the lighting were motivated in part by a prior
trip-and-fall injury in which an employee had stumbled over rigging on a barge
deck, the company’s internal accident report shows that inadequate illumination
played no role in that injury. The injured employee stumbled over unseen
rigging because he was walking backwards and had failed to check his work area
for tripping hazards beforehand. He was disciplined for his failure to examine
his work space. RX 3; Tr. 69-72.

Most
significantly, Inspector White did not actually observe the illumination in the
cited area himself except during daylight hours. When he arrived at the quarry
the morning the citation was issued, the sun had already risen. Tr. 28; RX 6. He
had the opportunity to see what light was available when he returned to the
quarry before sunrise the next morning. However, although he observed the
temporary lights the Respondent had installed to abate the violation, he viewed
the docking area only from a distance and did not turn the new lights off to determine
how effective the original tower lights were. Tr. 64, 74, 76. At no time did he
measure the illumination levels in the cited area or make any firsthand
observations about visibility conditions in that area at night. Tr. 64-65,
73-75. He relied solely on the statement of one barge hand who said he could
not see beyond the second barge. Judges have uniformly declined to find
insufficient illumination in cases such as this one where the inspection
occurred during daylight hours and the Secretary has presented no firsthand
evidence regarding illumination levels or the nature of the illumination
provided. See Lehigh Southwest Cement Co., 33 FMSHRC 340, 341-43 (Feb.
2011) (ALJ); Jim Walter Res., Inc., 31 FMSHRC 1208, 1211-13 (Oct. 2009) (ALJ);
W.S. Frey Co., 16 FMSHRC 975, 1008-09 (Apr. 1994) (ALJ), aff’d,
57 F.3d 1068 (10th Cir.) (unpublished table opinion); USX Corp., Minn. Ore
Operations, 15 FMSHRC 2333, 2341-44 (Nov. 1993) (ALJ).

In W.S. Frey
Company, a case involving a fatal fall that occurred in a coal shed at
night, the inspector alleged the lighting at the coal shed was insufficient in
that miners working there was not visible to others. 16 FMSRHC at 1009. The
judge vacated the citation, explaining that the pertinent inquiry under §
56.17001 was what a miner working in the location of the cited fall hazard at
night would be able to see and that the evidence was deficient on this point. Id.
Similarly, in the instant case, the focus is on what the miners working on
the barges could see because they would be the employees exposed to the trip
and fall hazard identified in the citation. Not only has the Secretary failed
to produce sufficient evidence as to the effectiveness of the tower light, but it
is also undisputed that miners working in the barge docking area wore bright cap
lights, which would be sufficient to illuminate trip and fall hazards at their
feet on the barge decks where they were working. Tr. 43-45, 75, 79.

For all
the foregoing reasons, I find that the Secretary has failed to establish a
violation of § 56.17001.

ORDER

Citation Number 8835889 is hereby VACATED
and this proceeding is DISMISSED.

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Willow
E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

Timothy
A. King, Safety & Health Manager, Buzzi Unicem USA, 1201 Suck Creek Road,
Chattanooga, TN 37405

[1] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered GX 1 to GX 9 and the Respondent’s exhibits
are numbered R-1 to R-8.

[2] White is a
metal/non-metal mine inspector who works out of MSHA’s satellite office in
Tallahassee, Florida. He was hired by MSHA in June 2013 and trained at the Mine
Academy in Beckley, West Virginia to become an inspector. Previously, he worked
as a greaser, dredge operator, plant operator, and foreman at a sand and gravel
mine for approximately sixteen years. Tr. 7, 12, 15-16, 20-21.