Secretary of Labor v. Brand Energy & Infrastructure Services

Plain-English summary

A scaffold erected by Brand Energy inside a cement-plant calciner collapsed while another contractor, K&G, performed refractory removal. Judge Thomas P. McCarthy found that K&G had substantially and unreasonably overloaded the scaffold with debris. The Secretary did not prove that Brand's Cuplok design was defective or that the scaffold lacked the strength to withstand its required 200-pound-per-square-foot safety load. Nor could Brand be held strictly liable for K&G's overloading: Brand had turned the completed scaffold over to the mine operator, lacked contractual or actual authority over K&G's work, and its efforts to red-tag the scaffold and stop work were ignored. Because Brand neither controlled the misuse nor supplied a structurally deficient scaffold, the citation was vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.11027
• Outcome: Citation No. 8907617 was vacated, with no civil penalty assessed.
• Key point: An independent contractor is not strictly liable for another contractor's unsafe use of equipment when the violation falls outside its supervision or control and the equipment itself was substantially constructed.

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:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

BRAND
ENERGY & INFRASTRUCTURE SERVICES,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2016-0302

A.C.
No. 08-00051-415720

Mine:
Pennsuco Cement Plant

DECISION

Appearances:               Latasha
T. Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee
for Petitioner

Randy
R. Dow, Esq., Boyd & Jenerette, Coconut Creek, Florida for Respondent

Before:                        Judge
McCarthy

I.
STATEMENT OF THE CASE

This
case is before me upon a Petition for Assessment of a Civil Penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d) (the Mine Act or the Act). At issue is a single 104(a) Citation No.
8907617 charging Respondent, Brand Energy & Infrastructure Services (Respondent
or Brand), a scaffold erection contractor, with an alleged violation of 30 C.F.R. §
56.11027 after a scaffold collapsed while contractor K&G Industrial
Services, Inc. (K&G) was performing refractory removal inside a calciner at
mine operator Titan Florida, LLC’s (Titan) Pennsuco Cement Plant. [1]
Section 56.11027 provides as follows: 

Scaffolds and
working platforms shall be of substantial construction and provided with
handrails and maintained in good condition. Floor boards shall be laid properly
and the scaffolds and working platforms shall not be overloaded. Working
platforms shall be provided with toeboards when necessary.

30
C.F.R. § 56.11027. The Secretary alleges that the violation was
significant and substantial (S&S), reasonably likely to cause a fatal injury
to one miner, and the result of Respondent’s moderate negligence. P. Ex. 1. The
Secretary has proposed a civil penalty of $971.

A hearing was held in Miami, Florida on March
28-29, 2017. During the hearing, the parties offered lay and expert witness
testimony and expert reports, and other documentary evidence. [2]
Witnesses were sequestered. On June 12, 2017, the parties submitted
post-hearing briefs.

The Secretary presents two alternative
arguments to support a violation. First, the scaffold collapsed because it was
not substantially constructed. More specifically, the Secretary alleges that Brand’s
scaffold collapsed because (1) it was inappropriate for the scope of work
performed inside the calciner, and (2) its design contained defects, which
compromised structural integrity and caused collapse when it was allegedly loaded
at less than its safety-rated capacity. Sec’y’s Post-Hrg. Br. at 9-12. Alternatively,
even if the scaffold was substantially constructed and collapsed because it was
overloaded by K&G, the Secretay argues that Respondent had sufficient
supervision and control over the scaffold to prevent the overloading. Sec’y’s
Post-Hrg. Br. at 11. The Secretary further argues that Respondent should have
taken the scaffold out of service and prevented anyone from working on it, and
Respondent’s failure to do so violated section 56.11027. Sec’y’s Resp. to
Respt’s Bench Memo. at 1-5. Apart from arguments regarding substantial
construction and liability for overloading, the Secretary has made no
allegations concerning any other requirements of section 56.11027.

The Respondent argues that the
scaffold’s design and as-built specifications satisfy MSHA’s definition of “substantial
construction” within the meaning of 30 C.F.R. § 56.2. [3]  
In particular, Respondent challenges the testimony of the Secretary’s expert that
the scaffold had design defects and collapsed when loaded at an estimated
162-180 pounds per square foot (psf), i.e., less than 4 times its safety-rated
capacity . Respt’s
Post-Hrg. Br. at 15.
In
addition, despite acknowledging strict liability principles, Respondent denies
liability for the scaffold’s overloading and eventual collapse, which allegedly
occurred outside its supervision or control.  Resp’t’s Bench Memo. at 2-6 (citing
Secretary of Labor v. Nat’l Cement Co. , 573 F.3d 788 (D.C. Cir.
2009)).

For the reasons set forth herein, I find
that the Secretary failed to establish a violation of the cited standard.  Specifically,
the Secretary failed to establish that the scaffold was not substantially constructed
for the refractory removal work contemplated, or that it contained design defects
that compromised its structural integrity and caused collapse at an estimated
load of 162-180 psf.  Furthermore, I credit the testimony of Respondent’s
expert
witnesses that the scaffold was substantially constructed. I find that Brand’s scaffold
was constructed of such strength, material, and workmanship that it would
withstand all reasonable shock, wear, and usage, but it was unreasonably and substantially
overloaded by K&G during refractory removal, and collapsed because of such overloading.
 I further conclude that Respondent did not have sufficient supervision or
control over the scaffold’s use during the refractory work to permit liability for
the overloading under the Act. Accordingly, I vacate Citation No. 8906717.  

II. FINDINGS OF
FACT

A.
Stipulations of Fact and Law

The
parties have stipulated to the following: [4]

(1)        Titan
Florida, LLC (“Titan”) is the mine owner and operator for the Pennsuco Cement
Plant, Mine Id. 0800051, which is located in Medley, Florida (the “Mine”).

(2)
       Brand is subject to the Federal Mine Safety and Health Act of 1977.

(3)        Brand
has an effect upon interstate commerce within the meaning of the Federal Mine
Safety and Health Act of 1977.

(4)        Brand
is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission and the presiding Administrative Law Judge has the authority to hear
this case and issue a decision.

(5)        Brand
was a mine contractor with Contractor ID No. D405.

(6)        Brand
was contracted to conduct work at the Pennsuco Cement Plant operated by Titan.

(7)        Without
the Respondent stipulating to the truth of the matters asserted therein, a true
copy of the citations and orders at issue were served on the Respondent as
required by law.

(8)        Brand
is in the business of designing and erecting scaffolding in the United States
and other countries.

(9)        At
all materials times, Brand functioned as an independent contractor and was not
an owner, lessee, or other person who operated, controlled or otherwise
supervised a coal or other mine as contemplated within the meaning of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq.

(10)      Titan
decided to perform maintenance on its calciner by engaging a refractory
contractor to perform this work. In order to perform this refractory work,
Titan needed scaffolding in the calciner.

(11)      Titan
entered into a separate contract with K&G Industrial Services, Inc.
(“K&G”) to perform the refractory work inside of the calciner. Brand was
not a party to the K&G contract. Titan and Brand entered into a written
Purchase Order on May 9, 2016 (the “Calciner P.O.”) for the erection of a
scaffold inside the calciner.

(12)      On May
21, 2016, the calciner scaffold located at the Mine collapsed. There were no
injuries.

(13)      Prior
to entering into a contract with Brand, Titan and Brand exchanged multiple
emails and had discussions about the calciner design.

(14)      Titan
decided to procure the higher capacity scaffold that is reflected in the
as-built drawings, with a 25/25 lbs. per square foot rating (50 lbs. per square
foot total) inside the calciner.  Ryan January, P.E., was the principal
scaffold designer with Brand.

(15)      The
Calciner P.O. did not require Brand to perform any inspections, nor did it
require Brand to perform any refractory work. However, Brand’s inspections were
limited to an inspection once per shift per ANSI standards.

(16)      Following
the collapse of the calciner scaffold, Titan did not allow Brand to participate
in the recovery process. Titan hired a third party to develop a removal plan to
clear the scaffold of debris. Titan’s counsel also warned Brand to not
interfere with the process. On or about May 27, 2016, the Petitioner issued
Citation No. 8907620 concerning Brand’s lack of effort in submitting a removal
plan for the calciner and debris. However, this citation was terminated on June
2, 2016 since Titan hired another vendor to remove the scaffold and there was no
reason for Brand to enter the calciner going forward.

Jt.
Ex. 1.

B.
Citation and Investigation

On May 25, 2016, Citation No. 8907617 was
issued to Respondent Brand by MSHA inspector Jason Wakefield [5]
for a violation of 30 C.F.R. § 56.11027 [6]
based on the following:

On May 21st the
scaffolding that was being used inside the calciner to replace the refractory
failed and collapse. [sic] Two (2) contract miners were working on the 7th
floor of the scaffolding as it began to fail and were able to get to the 9th
floor and escape the calciner before the scaffold collapse. Photos taken
prior to the collapse show material build up that was estimated to weigh well
over what the scaffold was designed to hold. Should the scaffold fail while
miners are present it would likely result in fatal injuries.

P.
Ex. 1 (emphasis added). Wakefield issued the citation to Respondent for
overloading the working platforms and failing to ensure substantial
construction of the scaffold. Tr. 58. As noted, Wakefield designated the violation
as S&S and reasonably likely to result in fatal injury to one person as a
result of Respondent’s moderate negligence. P. Ex. 1. The proposed civil
penalty is $971.

Respondent
was hired by Titan Florida to construct several scaffolds at the Pennsuco
Cement Plant in early 2016. Tr. 354. The scaffold at issue was constructed inside
of a calciner to provide access to its interior surfaces. Tr. 42, 358; see P.
Ex. 5q. Titan hired K&G under a separate contract to remove and replace the
refractory brick that lined the inside surface of the calciner, using Respondent’s
scaffold. Stip. 11; Tr. 42-43.

The calciner is a tall, metal cylinder
that is approximately 115 feet tall. It has an inside diameter of 26 feet,
which narrows at the waist. P. Ex. 4 at 4. There is a cone at the bottom where
the vessel narrows to less than 12 feet across and opens into a smaller
cyclinder that provides ground-level access. R. Ex. 25 at 3. The outside of the
calciner is surrounded by a metal frame with platforms at several elevations that
are connected by stairs and an elevator. P. Ex. 5q. Hatches provide access from
the outside platforms to the interior of the calciner. Tr. 66. The inside
surfaces of the calciner are lined with refractory material consisting of heat-insulating
brick coated with “monolith,” a concrete-like material. Tr. 277-78, 307; see
Tr. 544.

Respondent
finalized the scaffold specifications with Jose (“Joe”) Cardoso, a Titan supervisor,
without the involvement of K&G. R. Exs. 1-24; Tr. 360. Brand and Titan
initially discussed using a light-duty scaffold rated for a storage capacity of
15 psf and a live load of 12 workers. R. Exs. 1-13. Cardoso subsequently
indicated that a 15 psf storage load was insufficient. Tr. 368. Brand then
proposed, and Titan accepted, plans for a 50 psf, medium-duty scaffold rated
for a 25 psf storage load and a 25 psf live load, and which further provided that
debris material would not be stored on the working platforms, but would instead
be passed out of the calciner through a “chain line” of men working together. R.
Exs. 14-18; R. Ex. 15 at 2; Tr. 372. [7]
Respondent was aware that the scaffold would be used to remove and replace the
refractory brick that lined the inside of the calciner. Tr. 370. The final
Purchase Order (P.O.) between Titan and Respondent provided that Respondent
would erect and dismantle a scaffold with 50-psf capacity. R. Exs. 25, 28.

Brand’s
design plans utilized a Cuplok systems scaffold. [8]
The center of the calciner scaffold rested on metal beams running across the
bottom of the calciner’s cone. Tr. 213; P. Ex. 4 at 5. Six central legs, plus
another eight legs that rested on the inclined surface of the calciner cone,
extended the entire 95-foot height of the scaffold and through the narrowed
waist of the calciner. P. Ex. 4 at 4-5; R. Ex. 21 at 1. An additional 12
peripheral legs, closest to the walls of the calciner, also rested on inclined
surfaces, but did not extend continuously through the waist section. Id.
Butt joints were installed around the periphery of the scaffold at seven different
elevations to brace against horizontal movement. R. Ex. 25 at 2-3.

Brand installed flooring on the top nine
levels of the scaffold to provide access to the top section of the calciner.  The
bottom three working platforms were inside and just below the waist. R. Ex. 25
at 2; Tr. 111, 176. Central stairs connected the nine floors. An access hatch
in the wall of the calciner allowed passage from the scaffold’s lowest working
platform to the seventh floor of the outside structure. [9]
R. Ex. 25 at 2; Tr. 379, 406.

On
May 19, 2016 at 7:26 p.m., Brand’s project manager, Russel Carlson, [10]
sent a text message to Titan supervisor Cardoso, and asked Cardoso to warn K&G not to overload the scaffold
by storing too much refractory debris on it:

“Pleas [sic] have a meeting with KG
about not loading all decks full[.] I know in the past Safeway [sic] did only a
4’ deck around the perimeter and now we have full decks on every level so they
might want to stock them all full[.]”

Tr.
371-72; R. Ex. 30. Cardoso responded that, “They [K&G] have already been
told[.]” Id.

Brand
completed construction of the scaffolding on the evening of May 19, 2016. Tr. 294.
David Smith, Brand’s project superintendent, was responsible for the night-shift
examinations of the scaffold that were conducted between 6 and 7 p.m. [11]
Ramiro Godines, another Brand superintendent, was responsible for the day-shift
inspections of the scaffold that were conducted between 6 and 7 a.m. Tr. 295,

322. [12]

After
scaffold construction was completed, Smith immediately conducted a walkthrough
inspection of the nine working platforms with Cesar, Titan’s night-shift
supervisor, and an unidentified employee of K&G. Tr. 289-96. Smith
testified that both Titan and K&G were satisfied with the scaffold, although
neither had any relevant experience erecting scaffolds. Tr. 290-93. Smith put
up and signed an inspection tag, which indicated that the scaffold was safe for
use. Tr. 294-95.

“[E]arly
in the morning” on Friday, May 20, 2016, prior to Godine’s inspection, K&G employees
started working on the calciner scaffold. Tr. 338-39. Godines described the
condition of the scaffold Friday morning as “clean,” and signed the inspection tag.
Tr. 339-40.  Smith described the condition of the scaffold on Friday evening as
having “a little bit of debris” that created a “housekeeping issue,” but signed
the inspection tag. Tr. 293-94, 313.

On
Saturday, May 21, 2016, Godines conducted an inspection between 6 and 7 a.m. Tr. 330.
 Godines red-tagged the scaffold due to “a lot of material” on the scaffold
that created a “trip hazard.” Tr. 325-26. [13]
Godines described three piles of debris approximately four feet high on the
“north, west, and south side[s]” of the first (lowest) working platform. Tr. 337-38.
Godines credibly testified that fixed connection points on the vertical
scaffold posts allowed for reasonably accurate estimates regarding the height
of the debris. Tr. 331-32. Godines described conditions on the second floor working
platform as “almost the same” as on the first floor working platform because
there were three piles of debris about three and a half to four feet tall around
the perimeter. Tr. 337-38.

After
red-tagging the scaffold on the morning of May 21, 2016, Godines told the
K&G workers present that they “have to do housekeeping,” but he was
ignored. Tr. 327, 414.  Godines looked for, but could not locate the K&G
supervisor. Tr. 333. Godines proceeded to Titan’s control room, but could not locate
Cardoso or reach him by phone. Tr. 327-29. Godines then called his manager, Russel
Carlson, around 9 a.m. and informed Carlson that the scaffold did not pass
inspection due to “housekeeping” issues and that Carlson was needed to resolve
the situation. Tr. 413. Godines requested Carlson’s presence on site because he
“wasn’t getting anywhere” with K&G. Tr. 414.

Carlson
was located in West Palm Beach, Florida, about an hour-and-a-half drive to the Titan
Pennsucco plant in Miami.  Tr. 413-14. After receiving the call from Godines,
Carlson left for the Titan plant and arrived on site between 11:00 and 11:30
a.m. Tr. 413.  

When
Carlson arrived, he noticed very similar conditions to those described by
Godines on the first and second floor working platforms. In addition, Carlson observed
that the entire first floor “was covered at least close to a foot high, I'd
say. The stairs were covered. You couldn't really see the scaffold deck itself
at all anywhere.” Tr. 379-80. Carlson credibly testified that the remaining
working floors had “considerable piles and messes” but were not comparable in
scope to the first two floors. Tr. 416-17.

Carlson photographed the debris that he
observed on the first working floor of the scaffold. Tr. 379; R. Ex. 29. Carlson
told the K&G workers in the calciner that “they needed to get down there
and clean that stuff up now.” Tr. 381, 416. They responded, “go to hell,
gringo, go talk to my boss.” Tr. 381, 416.

Carlson was unable to locate Titan
supervisor Cardoso, or any other Titan representative in the plant’s administrative
suite of offices. Tr. 387. After failing to reach Cardoso by phone, Carlson texted
him at 12:30 p.m. and attached a picture of the pile of debris with the message:
“Joe they have to do a cleanup in the calciner[.] Some areas the block is piled
up 4’ high....a ton of weight[.]” R. Ex. 29. Carlson then located Derrick
Givens, K&G’s regional manager, and told him that an immediate cleanup was
required before any further work could be done. Tr. 383. Carlson testified
that Given’s response was “[w]ell, that's what the guys are in there for. We
just finished up everything else so they're cleaning up.” Tr. 383.

Despite Given’s assurances that the K&G
workers were cleaning up, Carlson observed that the workers were not proceeding
to the levels where the debris piles were located. Tr. 384. I credit Carlson’s unrebutted
testimony that the K&G workers were not working on or near the levels where
the debris was located, and therefore conclude that they were not engaged in
housekeeping activities to clear the scaffold of overloaded debris on the first
and second working platforms.

The
scaffold collapsed several hours later at approximately 3:30 p.m. on May 21,
2016. Tr. 41. The bottom two working floors, just below the waist of the
calciner, along with the attached stairs and all scaffolding below that point, collapsed
into the bottom of the calciner. Tr. 444-46. The top section of the
scaffold remained wedged in place, supported by the waist of the calciner. Tr. 51;
see R. Ex. 37 at 3, 8.

Two
days later, on Monday, May 23, 2016, in response to an anonymous hazard
complaint, MSHA inspector Wakefield arrived on site to conduct an accident
investigation. Tr. 70. Wakefield met with Titan’s safety inspector, Dave
Brader, and K&G’s supervisor Derrick Givens, and then inspected the
calciner and took photographs. Tr. 70, 88; P. Ex. 3 at 11-17. Wakefield
testified about a narrative that was relayed to Brader from the two unidentified
K&G workers who were present when the scaffold collapsed: “[T]hey stated to
[Brader] that they started to hear banging at the bottom of the scaffolding and
had ran up two levels to escape out a[n] inspection portal on the ninth level
of the vessel of the preheater tower.” Tr. 47. The K&G workers escaped
without injury. The workers told Brader, who told Wakefield, that they had entered
the calciner to “continue cleaning” after lunch. After approximately 15
minutes, they heard noises from the lower section of the scaffold and felt
“side to side” movement before they escaped out a calciner access hatch. Id.
Wakefield recorded the translated narrative from the two K&G workers to
Brader as bullet points in his notes. P. Ex. 4 at 5.

On Tuesday, May 24, 2016, Wakefield met
with Brand representatives and its engineer, Ryan January. Tr. 103. [14]
Wakefield then met separately with Titan and its engineer, John Pepper. Id.
At that second meeting, Pepper had a bucket of debris material brought in from
the accident. According to Wakefield, Pepper “did some weighing and
calculating” and determined that there was an estimated load of 180 psf based
on Brand’s pre-collapse photograph. Tr. 105-106. On May 25, 2016, Wakefield
issued the instant citation to Brand, and additional citations to Titan and
K&G. Tr. 60; P. Ex. 1. [15]

Shortly
after the collapse, Titan and K&G inspected all Brand-erected scaffolds at
the cement plant. Tr. 209. In an adjacent vessel, they found that “one of the
legs on the scaffolding was bending prior to having received any material
loading other than the weight of the scaffold itself.” Tr. 209-210. [16]
Titan ordered all remaining Brand scaffolds to be disassembled and removed from
the cement plant. Tr. 410. Titan excluded Brand from participating in the
abatement process. Stip. 16; Jt. Ex. 1.

C.        Expert Witness Testimony

Terrence Taylor provided expert witness
testimony and a report (P. Ex. 4) for the Secretary.  Douglas Bishop provided
expert witness testimony and a report (R. Ex. 33) for the Respondent.  David
Glabe also provided expert witness testimony and a report (R. Ex. 34) for the
Respondent on the suitability of the scaffold for refractory work.

1. Summary of
   Terrence Taylor’s Expert Report

Terrence
Taylor testified as an expert witness for the Secretary. Taylor is a civil
engineer in the Mine, Waste and Geotechnical Engineering division of MSHA’s
technical support group in Pittsburgh, Pennsylvania. Tr. 166-67. He earned a
Bachelor of Science degree in Civil Engineering at Penn State University and a
Masters from the University of Colorado, with a specialization in structural
engineering. Tr. 167. He is a licensed Professional Engineer and has worked with
MSHA as a civil engineer in the mining industry for 29 years. P. Ex. 4 at 4. Taylor
has completed 720 projects for MSHA, including “numerous forensic
investigations of structural failures and collapses.” Tr. 168; P. Ex. 4 at 4. Apart
from the instant investigation, Taylor has been involved in three
scaffold-related projects. Tr. 169. None of them involved a scaffold collapse
or a Cuplok scaffold. Tr. 226.

Taylor’s expert witness report evaluates
whether Brand’s scaffold was “substantially constructed” within the meaning of
section 56.11027. Section 56.11027 requires, in relevant part, that “scaffolds
and working platforms shall be of substantial construction and provided with
handrails and maintained in good condition.” 30 C.F.R. § 56.11027. As noted, MSHA’s
regulations define “substantial construction” as “construction of such
strength, material, and workmanship that the object will withstand all reasonable
shock, wear, and usage, to which it will be subjected.” 30 C.F.R. § 56.2 (emphasis
added).

Given the general nature of MSHA’s
regulations and its definition of substantial construction, Taylor also
evaluated the scaffold under the American National Standard for Construction
and Demolition Operations Scaffolding Safety Requirements, [17] and the Occupational
Health and Safety Administration’s (OSHA’s) regulations governing scaffolds,
published at 29 C.F.R. Subpart L-Scaffolds. P. Ex. 4 at 3. Although
not formally enforced by MSHA, both the ANSI Scaffolding Safety Requirements
and the OSHA scaffold regulations are generally-accepted industry standards
that serve as “guidance when considering whether scaffolding is substantially
designed and constructed.” See P. Ex. 4 at 3.

In particular, Taylor relied on ANSI
Standard A10.8, section 9.1, and OSHA section 1926.451(a)(1). ANSI’s Standard
A10.8, section 9.1, requires that “the erected scaffold assembly shall be
designed to support without failure its own weight and at least four times the
maximum intended load.” National Standard for Construction and Demolition
Operations Scaffolding Safety Requirements, ANSI A10.8, § 9.1 (2011); R. Ex. 32
at 47. Carlson testified that Respondent’s standard policy was to comply with
ANSI requirements by conducting daily shift inspections of its scaffolds. Tr.

377. OSHA’s section 1926.451(a)(1) contains more specific requirements for each
     component part: “[E]ach scaffold and scaffold component shall be capable
     of supporting, without failure, its own weight and at least 4 times the maximum
     intended load applied or transmitted to it.” 29 C.F.R. 1926.451(a)(1)
     (emphasis added). [18]
     Thus, OSHA section 1926.451(a)(1) is more stringent than ANSI Standard A10.8,
     section 9.1.  OSHA section 1926.451(a)(1) requires that each individual
     component of the scaffold satisy the four-times safety factor, whereas ANSI
     Standard A10.8, section 9.1 only requires that the scaffold as a whole satisfy
     the four-times safety factor.

The purchase order (P.O.) executed
between Titan and Respondent warranted compliance with applicable OSHA
standards, rules, and regulations. R. Ex. 28 at 3. In short, in order to
satisfy both ANSI and OSHA guidelines, Respondent’s 50-psf scaffold and each
component part should have been able to support at least 200 psf without
failure.

Taylor’s
expert witness report contained three general conclusions that supported his
expert opinion that Brand’s scaffold was not substantially constructed. First,
Taylor concluded that the medium-duty scaffold that Brand provided to Titan,
was only rated for 50 psf, which was not sufficient for the scope of work involved.
In particular, Taylor found that

[d]ue to the
need to scale, perform demolition of the existing brick lining, and reline the
Calciner [sic] vessel with replacement bricks, it should have been obvious to
Brand that the scaffolding would need to hold considerable materials in
addition to men and tools, as they did not have a convenient means to remove
the accumulated materials as the work progressed. Brand should have provided a
heavy duty tube scaffolding system.

P.
Ex. 4 at 7 (internal citation omitted). Second, based on the estimated weight
of debris on the scaffold at the time of its collapse, Taylor concluded that
Brand’s “failure to brace and tie against sway from the lateral, eccentric, and
unsymmetrical loadings, and/or lack of substantial support at the bearing
plates and butt locations caused a premature collapse of the scaffolding
system.” P. Ex. 4 at 8. Taylor based this conclusion on his opinion that the
scaffold collapsed under a load that was estimated to weigh somewhere between 162
and 180 psf, although the scaffold should have been able to support a load of
at least 200 psf, i.e., 4 times 50 psf. P. Ex. 4 at 4. Finally, Taylor determined
that Brand should have taken the scaffold out of service after Godines
red-tagged the scaffold during his morning inspection on May 21, 2016. P. Ex. 4
at 8. These three findings supported Taylor’s “professional opinion that the
scaffold in the Calciner [sic] vessel was not substantially designed and
constructed by Brand and that Brand did not take the scaffold out of service
when Brand discovered the scaffold was substantially overloaded.” P. Ex. 4
at 8.  

2. Summary of
   Douglas Bishop’s Expert Report

Respondent
tendered Douglas Bishop as an expert witness in structural failure analysis.  Tr. 492.
Bishop is a mechanical engineer employed by CED Technologies, Inc., located in
Jacksonville, Florida. Tr. 489; R. Ex. 35. Bishop currently performs forensic
failure investigations and specializes in forensic structural analysis and
machinery design. Tr. 490. Bishop earned a Bachelor of Science in aerospace engineering
from the University of Florida in 1990. He has extensive employment experience
in the aerospace industry. Tr. 490; R. Ex. 35.

Bishop’s
expert witness report addressed whether Brand’s scaffold was designed
appropriately. P. Ex. 33 at 2. Bishop specifically investigated whether
Respondent’s 50 psf, medium-duty scaffold complied with OSHA section
1926.451(a)(1)’s four-times safety factor requirement. R. Ex. 33 at 19. Bishop
calculated how much each individual scaffold component (e.g., a particular leg)
could hold before buckling and failing, using data from tests conducted by an
independent third party and provided to him by Respondent. Tr. 495. Bishop
described a “critical buckling failure” as “a sudden instability in a vertical
column caused by an excess load.” Tr. 510. Bishop referred to the results of his
calculations as the “allowable load,” i.e. exactly how many pounds per square
foot of weight would cause a particular leg of the scaffold to buckle and
collapse. Tr. 504.

Next, Bishop examined the scaffold’s as-built
specifications and drawings, which contained details such as the shape,
assembly configuration, and duty rating of the calciner scaffold, to identify
the components that were subject to the heaviest loads, i.e., “the critical
loading areas.” Tr. 496-498; 500-03; see, e.g. , P. Ex. 33 at Appdx. B at
3 (results of tributary load calculations for leg AA). Bishop calculated the
critical loading areas by identifying how the scaffold’s design allowed the
transfer of weight between different components, which he referred to as
calculating the tributary area for each scaffold leg. Tr. 497. The areas that Bishop
identified as “critical” were the scaffold elements that “ha[d] more load on
them.” Tr. 503. For example, Bishop identified two of the six longest vertical
legs near the center of the scaffold, which were labeled AA and BB in his
diagrams, as the legs which carried the most tributary weight and were subject
to the heaviest actual loads. P. Ex. 33 at Appdx. B at 9 (Fig. 45:
Upper Leg Calculation Nomenclature); see, e.g. , P. Ex. 33 at Appdx. B at
4 (Fig. 40: Brand Drawing #2015-381 Section A-A Column Live Loads and Storage
Loads).

Relying again on the scaffold’s as-built
specifications, Bishop then calculated how much tributary weight (in pounds per
square foot) each critical loading area component, i.e. each leg of the
scaffold, would support if the scaffold was uniformly loaded to a 50 psf
capacity. His calculations adjusted for the effects of both the 25 psf live
load rating and the 25 psf dead load rating. Tr. 500-01. Bishop concluded that legs
AA and BB (the two center legs with the greatest combined tributary load) would
be supporting an actual load of 2,000 psf if the scaffold were loaded at its
maximum capacity of 50 psf. R. Ex. 33 at Appdx. B at 8.

Bishop next compared the results of the
allowable load calculations. i.e., how many pounds per square foot would cause
leg AA to buckle and fail, with the tributary load data, i.e., how many pounds
per square foot leg AA would be supporting if the scaffold were loaded to the
maximum 50 psf capacity, to determine the actual safety factor, i.e. how many times
each component could support its own weight before it buckled and failed. Tr.

504. The lowest safety factor for any of the components that Bishop evaluated was
     4.3, which exceeded the four-times safety factor minimum required under both
     ANSI Standard A10.8, section 9.1 and OSHA section 1926.251(a)(1). Tr. 509.

Based on his analysis, Bishop concluded
that Respondent’s calciner scaffold satisfied both ANSI’s and OSHA’s four-times
safety factor requirements, and MSHA’s more general requirement that the scaffolds
be “substantially constructed.” Bishop found “no evidence to suggest that Brand
design, equipment, or erection of the equipment caused the structure to fail.” R.
Ex. 33 at 1.

3. Summary of
   David Henry Glabe’s Expert Report

Respondent
tendered and qualified David Glabe as an expert witness in scaffolds and
scaffold usage. Tr. 543. Glabe is a civil engineer and owner of Glabe
Consulting Services. Tr. 540. Glabe earned a Bachelor of Science degree in
civil engineering from Valparaiso University in 1973. He is a licensed
professional engineer in 11 states. R. Ex. 36 at 1; Tr. 542. Glabe has 44 years
of experience working with scaffolds. Glabe is also a scaffolding instructor
and has performed training for OSHA certified training centers in Ohio, Colorado,
and California, and for the federal OSHA Training Institute in Illinois. Tr.

540. He also serves as the Scaffold & Access Industry Association’s
     representative to the ANSI A10 committee, which is charged with revising the
     2011 ANSI standards. R. Ex. 36 at 1; Tr. 572. Glabe has provided forensic
     assistance in approximately 100 scaffold-related projects and has testified in
     approximately 50 cases. Tr. 541.

Glabe’s
expert witness report examined whether Respondent’s scaffold was appropriate
and suitable for the refractory work that was planned inside the calciner. R.
Ex. 34 at 2; Tr. 539.  Glabe testified that there is no regulatory or industry
requirement to design scaffolds for a particular minimum load based on the type
of work being performed. Tr. 545; R. Ex. 34 at 3. Glabe concluded that the
Cuplok scaffold system was an excellent choice for the work that was to be
performed.  R. Ex. 34 at 3, 6.

III. ANALYSIS,
DISPOSITION, AND CONCLUSIONS OF LAW

The
Secretary requests that I affirm Citation No. 8907617, as written, and assess
the proposed penalty of $971. Sec’y’s Post-Hr’g Brief at 16. Respondent denies
that the cited standard was violated because the the scaffold was not of substantial
construction. Respondent also argues that is not liable for K&G’s
overloading of the scaffold because Respondent lacked sufficient supervison or
control over such overloading. Respt’s Post-Hrg. Br. at 2-3, 14, 19-20; Tr.
29-31. Respondent does not dispute the Secretary’s gravity, S&S, and
negligence designations. Tr. 62.

Significantly, six of the seven
witnesses at the hearing testified that the scaffold collapsed due to
overloading, including all three expert witnesses. Tr. 95 (Wakefield), Tr. 170
(Taylor), 312-13 (Smith), Tr. 418 (Carlson), Tr. 475 (January), Tr. 510
(Bishop), and Tr. 582 (Glabe). [19]
This testimony was corroborated by Respondent’s Exhibit 29, which shows
substantial, asymmetrical overloading on the first floor working platform of
the scaffold, and by Carlson’s testimony that the second floor working platform
was similarly overloaded. Tr. 379; R. Ex. 29. Based on such substantial
evidence, I find that the scaffold collapsed as a result of being overloaded by
K&G refractory workers.

The Secretary must prove his allegations
by a preponderance of the evidence. RAG Cumberland Res. Corp. , 22 FMSHRC
1066, 1070 (Sept. 2000), aff’d , 272 F.3d 590 (D.C. Cir. 2001). This
requires the Secretary to show “that the existence of a fact is more probable
than its nonexistence.” Id . (internal citations omitted).  For the
reasons set forth below, I find that the Secretary has failed to establish by a
preponderance of the evidence that Respondent had supervision or control over
K&G’s overloading or use of the scaffold or that the scaffold was not substantially
constructed for K&G’s reasonable usage.

A. Supervision or Control

The
parties stipulated that Respondent was an “independent contractor” subject to
jurisdiction under the Mine Act.  Respondent, however, disputes that it had
sufficient supervision or control over the use or overloading of the scaffold
after its construction to qualify it as a production-operator subject to strict
liability for K&G’s overloading of the scaffold under Commission precedent.
Resp’t Bench Memo. at 6; Resp’t’s Post-Hrg. Br. at 20; see also 30 U.S.C. §
802(d). The Secretary argues that Respondent’s ownership, construction, and
maintenance of the scaffold and Respondent’s daily workplace inspections of the
scaffold establish that Respondent maintained sufficient supervision and
control over the scaffold and its use to subject Respondent to strict liability
under the Act. Sec’y’s
Resp. to Respt’s Bench Memo. at 4; Sec’y’s Post-Hrg. Br. at 14-15. For the
reasons discussed below, I find that Respondent did not have sufficient
supervision or control over the scaffold after its completion to subject it to
liability for K&G’s overloading under the Act.

The
parties stipulated that “[a]t all material times, [Respondent] functioned as an
independent contractor and was not an owner, lessee, or other person who
operated, controlled, or otherwise supervised a coal or other mine as
contemplated within the meaning of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq.” Jt. Ex. 1, ¶ 9. However, the Commission has
recognized that independent contractors may also qualify as
production-operators within the meaning of the Act when they exercise
supervision over a mining process or control over certain areas within the
mine. Ames Constr., Inc. , 33 FMSHRC 1607, 1611 n. 5 (July 2011) aff’d sub nom.
Ames Constr., Inc. v. FMSHRC , 676 F.3d 1109 (D.C. Cir. 2012) .

Both
the Secretary and Respondent rely on the Commission’s decision in Ames
Construction. In that case, the Administrative Law Judge found that Ames
Construction, an independent contractor charged with constructing tailings dams
at the Kennecott Tailing Facility, was liable for an accident that fatally
injured William Kay, a miner employed by another independent contractor, Bob
Orton Trucking, Inc. (Orton), during the process of unloading pipes from a
truck. Id . at 1609. [20]
Orton’s employee Kay had arrived at Kennecott to deliver a load of pipe used in
the tailings dam construction. Kay stopped at the mine office, and was escorted
to the delivery location by three Ames employees, Greg Davis, James Hilton, and
Juan Florez. Davis told Kay to “stay right there” and went with Hilton to go
get a forklift to unload the pipes. While waiting for the forklift, Kay removed
the top layer of straps on the pipes, causing a pipe to roll off the truck and
crush him. 32 FMSHRC 347, 348-50 (Mar. 2010) (ALJ). Although the Commission
recognized that the judge erred in finding that the Kay was Ames’ subcontractor,
rather than an independent contractor with no contractual relationship to Ames,
the Commission found that Ames had supervisory responsibility for unloading the
pipes and upheld the judge’s finding of a violation. Ames Constr., Inc. ,
33 FMSHRC at 1610 (July 2011).

The
Commission agreed with the judge’s finding that Ames exercised supervision over
the pipe-unloading process during which the accident occurred. The Commission emphasized
that the parties had stipulated that

Orton drivers
are instructed to follow the policies and procedures of the recipient [Ames]
regarding safety and the unloading process. Orton drivers are instructed to
follow the instructions of the supervisor of the unloading process.

Id . at 1612. In
addition, mine operator Kennecott also imposed on Ames a Safety, Health, and
Environmental Action Plan (SHEAP) that granted Ames’ supervisors, foremen, and
safety supervisors the authority to stop work “that would place employees,
equipment, or property in immediate dangers, and to ensure that all unsafe
conditions are corrected.” Ames also controlled access to the tailings work
site, and was required to meet the Orton truck drivers and their deliveries at
the entrance to the mine property and escort them to the work site. 32 FMSHRC
at 347, 349-50 (Mar. 2010) (ALJ). The Commission found that these facts
supported the conclusion that Ames had supervisory authority over the unloading
process. 33 FMSHRC at 1612-13. That supervisory authority rendered Ames subject
to liability without fault under the Mine Act. Id . at 1614. [21]

The
United States Court of Appeals for the District of Columbia Circuit affirmed. Ames Constr.,
Inc. v. FMSHRC ,
676 F.3d 1109 (D.C. Cir. 2012) .  In doing so, the court stated: 

We assume that
Ames is correct in its argument that no-fault liability under § 110(a)
would be unreasonably expansive if it made all independent contractors—including
those who were “operators” solely by virtue of “performing services” at a
mine—liable for all safety violations, even violations completely
outside the scope of a given independent contractor's work. But the argument
doesn't get Ames anywhere, given the Secretary's resting on the proposition,
adopted by the Commission, that Ames is liable simply for “an unsafe condition
that occurred in connection with an activity for which it had supervisory
responsibility.”

676
F.3d at 1109 (internal citations omitted).  The court found that four
uncontested propositions easily supported the conclusion that Ames supervised the
unloading process: (1) Kay was escorted to the delivery drop-off location by Ames’
crew per agreement with MSHA; (2) Kay was left with an Ames employee (Florez)
and told to “wait right here” while the other Ames crew members retrieved a
forklift; (3) truck drivers like Kay typically loosen the straps on the truck
but “the remainder of the process is left to the contractor who is in charge of
the site”; and (4) Ames had the authority to stop work that created a danger to
employees or property and to ensure unsafe conditions were corrected.   Id .
(quoting Ames, 32 FMSHRC at 349).  

In
this case, the Secretary argues that just as Ames was responsible for
supervising the unloading process at issue in Ame s, “[Respondent] was
responsible for supervising the scaffold.” Specifically, the Secretary asserts that
Respondent owned the scaffold, was responsible for daily shift inspections, and
had stop-work authority over use of the scaffold. Sec’y’s Resp. to Respt’s
Bench Memo at 4.

Although
Brand’s retention of ownership of the scaffold may be indicative of supervision
or control, ownership alone is neither necessary nor sufficient to establish
strict liability under the Mine Act. As the D.C. Circuit has found, “strict
liability means liability without fault. It does not mean liability for things
that occur outside one’s control or supervision.” Secretary of Labor v.
Nat’l Cement Co. , 573 F.3d at 795.

Brand’s
April 19, 2016 proposal only references the construction and dismantling of the
scaffold, not its maintenance or use. The proposal defines the scope of work as
follows:

[Respondent]
will erect and dismantle systems scaffold at the above project. [Respondent]
will build systems scaffold inside the Calincer [sic], approximately 28’
Diameter [sic] by 95’ high with 15 working elevations and a stair for access. [Respondent]
will also build a systems scaffold approximately 6’ by 6’ by 30’ high from the
Kiln [sic] rider to access the lower part of the Calciner [sic] cone.

R.
Ex. 21 at 1. Brand’s proposal also stipulates that

Brand shall
provide services as outlined in the attached proposal. In the performance of
these services, Brand shall supervise the work of its own employees and agents,
only. Brand shall not supervise, direct, or control the work of others or have
a right to controls the means, methods, techniques, or sequences of
engineering, design, or construction by others.

Id .
at 4.

Carlson,
Respondent’s project manager, confirmed the scope of work outlined in Brand’s
project proposal: once construction is finished and the initial inspections are
complete, Respondent “hand[s] it over [to] the client.” Tr. 412. Smith,
Respondent’s project superintendent, confirmed that he conducted an inspection
with representatives of both Titan and K&G immediately prior to the
completion of the scaffold’s construction and before surrendering possession to
Titan. [22]
Tr. 290. Carlson testified that although Respondent continues to conduct
inspections of the scaffold’s components to ensure that “if anyone pulls
anything out, we [] replace it,” the client is renting the scaffold and
“basically owns it.” Id . [23]
I find Carlson’s testimony to be consistent with the plain language of the
proposal:

[Titan] is
responsible for all loss or damage to all materials and equipment in its
possession or control. The materials and equipment shall be deemed to be in the
possession of [Titan] for all purposes of this Agreement from the time it is
received by [Titan] until the time that the materials or equipment has been
returned to Brand’s yard.

Id . Although Carlson
generally admitted that Brand was responsible for replacing missing parts on
the as-built scaffold, nothing in the record indicates that Respondent was
responsible for any additional maintenance activities, such as housekeeping or
debris removal. Thus, while Respondent retained ownership of the scaffold, the
record indicates that Titan took possession of the scaffold after its
construction and contracted with K&G so that K&G would use the scaffold
in its refractory work. The plain language of Brand’s proposal itself and the
fact that Brand retained ownership of the scaffold do not support the
Secretary’s argument that Respondent also supervised or controlled the use of
the scaffold during K&G’s refractory removal.

The
Secretary also argues that Respondent “had control over taking the scaffold out
of service, and had control over halting any use of the scaffold by Titan,
which would prevent K&G from working while on the scaffold.” Sec’y’s
Post-Hrg. Br. at 15. The record does not support the Secretary’s arguments. Unlike
the SHEAP at issue in Ames , the Secretary fails to point to any document
or testimony establishing that Brand had stop-work authority over the use or
overloading of the scaffold by K&G.  In fact, the record shows the
opposite. Although Brand had no stop-work authority, two of Respondent’s
supervisory personnel nevertheless attempted, without success, to stop work on
the red-tagged scaffold because of safety hazards evident during Godine’s
inspection. Godines red-tagged the scaffold on the morning of the collapse
after he noted “a lot of material” and “too much debris” on the first two working
platforms and on the scaffold’s stairs. Tr. 326-28; 414. As noted, a red-tagged
scaffold indicates that the scaffold has failed inspection and is not safe for
use. Tr. 412-13; Tr. 572-73. Despite the fact that Godines red-tagged the
scaffold during his inspection, K&G employees worked on the scaffold after
it had been red-tagged. Carlson, Respondent’s project manager, told K&G’s
employees to stop working on the scaffold until the debris was cleaned up. He was
ignored. Tr. 381, 416. The K&G employees told Carlson, “Go to hell gringo,
go talk to my boss.” Id .

Brand
and K&G had no contractual relationship, and Brand was not a party to the
contract entered into by Titan and K&G for the performance of refractory
work inside the calincer. Jt. Ex. 1; Tr. 400. Although Carlson testified that
past projects have been structured so that the contractors using the scaffold
report to Brand, Titan chose to structure this situation differently and Titan
never indicated to Brand that it had supervisory authority over K&G’s use
of the scaffold. Tr. 400. Carlson testified that Titan never gave
him any indication that he had the ability to oversee K&G’s employees or to
“tell them what to do.” Tr. 378. Furthermore, Titan never conducted any
pre-shutdown meetings with both Brand and K&G to discuss the use of the
scaffold after its construction, or the relative scope of each contractor’s
authority, despite Brand’s requests that Titan do so. Tr. 260-61.

In
sum, on this record, I find that Respondent Brand did not have authority to
stop K&G’s work on the scaffold, as demonstrated by Godines’ and Carlson’s
failed attempts to actually do so. By contrast, in Ames , the Kennecott
SHEAP granted Ames the explicit authority to supervise the unloading process
and stop unsafe work. 32 FMSHRC at 347, 349-50 (Mar. 2010) (ALJ). No such stop-work
authority existed here. The lack of stop-work authority over K&G strongly
supports my finding that Respondent Brand did not have supervisory authority or
control over the scaffold’s use or overloading by K&G during the refractory
removal process.  

The
Secretary also argues that Respondent’s inspection responsibilities indicate
that Respondent had supervision and control over the scaffold. I reject this
argument because the violation resulted from K&G’s overloading of the
scaffold, which was completely outside the scope of Brand’s work. See, e.g. ,
Secretary of Labor v. Nat’l Cement Co. , 573 F.3d at 795 (strict
liability does not mean liability for things that occur outside one’s control
or supervision); cf. , Ames Constr., Inc. v. FMSHRC , 676 F.3d at 1109
(assuming without deciding that no-fault liability would be unreasonably
expansive if it made all independent contractors performing services at a mine
liable for all safety violations, even those completely outside the scope of a
given independent contractor's work). Furthermore, while inspection
responsibilities may support an inference that an operator or contractor
exercises supervision over a process or control of an area of the mine
inspected, this argument would only support strict liability in my view if the
violation resulted from the failure to inspect or an inadequate inspection.

In
this case, the record indicates that K&G, not Brand, conducted the daily
safety-related inspections required by MSHA. In this regard, Wakefield
testified that Keith Diffenderfer, K&G supervisor, told him that the
“workplace exams were being done by K&G, and [K&G] depend[ed] on [Brand]
to do the technical inspection.” Tr. 50; see also P. Ex. 3 at 6. This
testimony is consistent with the parties’ stipulation that “the Calciner P.O.
did not require Respondent to perform any inspections . . . . [Respondent’s]
inspections were limited to an inspection once per shift per ANSI standards.” Jt.
Ex. 1. In addition, the engineering plans for the as-built 50 psf scaffold
indicate that “[u]nless otherwise contracted for, [the] installation, initial
inspection after the installation, and subsequent inspections and maintenance
of the equipment is the responsibility of the customer.” R. Ex. 25. The
Secretary has not alleged that Respondent failed to fulfill its contractual
inspection responsibilities related to ANSI and OSHA requirements. In fact, Respondent
did inspect the scaffold and red-tagged the scaffold before the accident. Respondent,
however, had no supervisory responsibility or control over the scaffold’s
misuse through K&G’s overloading, as illustrated by the terms of the
proposal stating that “Brand shall not supervise, direct, or control the work
of others or have a right to control the means, methods, techniques, or
sequences of engineering, design, or construction by others,” and by the fact that
Titan “possessed” the scaffold after the post-construction handover. R. Ex. 21
at 4. I find that Respondent’s actual and unsuccessful attempts to stop work on
the scaffold after it was red-tagged by Respondent show that Respondent could
not exercise supervision or control over the use or overloading of the scaffold
by K&G, although Respondent made repeated requests to Titan and K&G to exercise
their supervision or control.   

I
further note that in Ames , Ames argued that its employee Florez did not
have the power or authority to stop Orton’s employee Kay from beginning to
loosen the straps securing the pipes on the delivery truck. Ames , 33
FMSHRC at 1613. The Commission rejected that argument based on contrary
evidence in the record, but did briefly note that “whether Kay would have
refused to obey instructions from Ames’ agents is beside the point, because no
attempt was made to prevent him from beginning the unloading process, or from
encountering any other hazards.” Id . Here, by contrast, Respondent’s
agents did attempt to prevent K&G’s employees from creating a hazard
by asking Titan to instruct K&G not to overload the scaffold by storing too
much refractory brick on it. R. Ex. 30. Titan responded that K&G had been
instructed not to overload the scaffold. Id . In addition, after Brand
red-tagged the scaffold on the morning of the accident and Brand foreman Godines
and project manager Carlson each told the K&G workers to immediately clean
up the overloaded piles of brick on the first and second level working
platforms, they were rebuffed by K&G workers in no uncertain terms. Tr.
327, 381, 414, 416. When Carlson eventually contacted K&G’s regional
manager Givens and told him that an immediate cleanup was required before any
further work could be done, Givens replied that K&G had “just finished up
everything else so they're cleaning up.” Tr. 383. Despite Given’s assurances
that the K&G workers were cleaning up, I have credited Carlson’s testimony
that the K&G workers were not proceeding to the levels where the debris
piles were located and were not engaged in housekeeping activities to clear the
overloaded debris on the working platforms.  The scaffold collapsed several
hours later. Tr. 41. The bottom two working platforms, which were overloaded by
K&G, along with the attached stairs and all scaffolding below, collapsed
into the bottom of the calciner. Tr. 444-46. These distinguishable and
significant facts undermine the Secretary’s argument that Brand, like Ames,
exercised supervision or control over use of the scaffolding after its
construction.

Based
on the foregoing discussion, I find that Respondent did not have sufficient supervision
or control over the scaffold’s use during K&G’s refractory work to subject
Respondent to liability under the Act. The record indicates that Respondent’s
agents repeatedly attempted to exercise supervision or control over K&G’s
use of the scaffold, but were unable to do so. I therefore find that Respondent
is not liable for the overloading and collapse of the scaffold after it
surrendered supervision and control over post-contruction use of the scaffold
to Titan and K&G.

B. Substantial Construction

Having determined that Respondent did
not have sufficient supervision or control over the scaffold’s use after its
construction to render Respondent liable for the overloading, I now turn to
whether Respondent’s scaffold was substantially constructed. In relevant part,
section 56.11027 states that “scaffolds and working platforms shall be of
substantial construction.” 30 C.F.R. § 56.11027. The Secretary’s
regulations define substantial construction as “construction of such strength,
material, and workmanship that the object will withstand all reasonable
shock, wear, and usage, to which it will be subjected.” 30 C.F.R.
§ 56.2 (emphasis added).  

The Secretary argues that the scaffold
was not substantially constructed because (1) it was not appropriate for the
type of work for which it was employed, and (2) the scaffold’s design contained
defects that compromised its structural integrity and caused it to collapse at
an estimated load of 162-180 psf, less than the required safety factor capacity
of 200 psf. P. Ex. 4 at 7, 9-10; Sec’y’s Post-Hrg. Br. at 11. Respondent
disputes both of these assertions. Respt’s Post-Hrg. Br. at 14-19.  

1.
Appropriateness of Scaffold for Refractory Removal and Replacement

The
Secretary argues that Respondent’s medium-duty, 50-psf-capacity scaffold was
not sufficient for the type of refractory work conducted inside the calincer. P.
Ex. 4 at 7.  In other words, the 50-psf scaffold was not sufficient to
withstand the reasonable shock, wear, and usage associated with the refractory
work conducted inside the calincer. The work inside the calincer involved
removing the refractory brick that was lining the inside of the calciner and replacing
it with new brick. Tr. 42-43; see also Jt. Ex. 1, Stip. 11.

Inspector Wakefield testified that for
“the scaffolding that was being used and the type of work that was being done,
it was too much for that particular scaffolding which ultimately resulted in
its collapse.” Tr. 97. The Secretary’s expert Taylor was also concerned that a
scaffold rated for only a 50-psf load would be insufficient to support the weight
of the workers, tools, old refractory debris, and new refractory brick that would
be placed on the scaffold as the work progressed. Tr. 201-04. Taylor concluded
that:

Work at the
calciner involved the removal of build-up, refractory brick, and mortar
material. Brand only provided a medium duty scaffold, rated to 50 psf. Due to
the need to scale, perform demolition of the existing brick lining, and reline
the Calciner [sic] vessel with replacement bricks, it should have been obvious
to Brand that the scaffolding would need to hold considerable materials in
addition to men and tools, as they did not have a convenient means to remove
the accumulated materials as the work progressed. Brand should have provided a
heavy duty tube scaffolding system. Heavy duty scaffolding has a larger
diameter tubing and is therefore rated for heavier loading equal to 75 psf.

P.
Ex. 4 at 7 (internal citation omitted).

By contrast, David Glabe, Respondent’s
expert witness on the appropriateness of the scaffold’s design capacity,
testified that a scaffold can be designed for any loading capacity so long as
the workers using the scaffold understand its loading limitations:
“any . . . craft can choose [its] own method for managing
materials. . . . in this specific situation, the employees
easily could have [used] a Light Duty [sic] scaffold, or even less, just by
limiting the amount of load that is placed on the platform.” R. Ex. 34 at 3; see
also Tr. 545. Glabe rejected Taylor’s assertion that Brand should have
known that a higher capacity scaffold was needed and rebutted Taylor’s argument
that Brand should have known that significant amounts of debris would be stored
on the working platform. Glabe emphasized that Respondent and Titan had
communicated regarding debris removal several times prior to the execution of
the purchase order. R. Ex. 34; Tr. 562.; see also R. Ex. 15 at
2; Tr. 298 (superintendent Smith’s testimony regarding communications with
Titan about debris removal), 363-65 (project manager Carlson’s testimony
regarding communications with Titan about debris removal). Taylor admitted on
cross examination that he had not reviewed the communications between
Respondent and Titan regarding how materials would be removed from the
calciner. Tr. 263. Accordingly, Taylor did not account for the chain method of
debris removal that had been agreed upon. In addition, Respondent’s employees,
on at least two occasions, explicitly requested that Titan caution K&G against
allowing debris to accumulate on the scaffold. P. Ex. 7 at 1; R. Exs. 9, 11,
13, 17, 19, 29, and 30.  Glabe concluded that “the Brand Cuplok system scaffold
was an excellent choice for this project.” R Ex. 34 at 6. I credit Glabe’s
significant experience in the scaffolding industry, and concur that the Brand
Cuplok system, medium-duty, 50-psf-capacity scaffold was appropriate to
withstand reasonable shock, wear and usage during the refractory work that
Titan and Brand contemplated K&G would perform inside the calciner.

2. Whether Design Defects Caused the
   Scaffold to Collapse Under a Load Weighing an Estimated 162-180 psf

As noted above, both ANSI Section 9.1
and OSHA section 1926.451(a)(1) require a minimum safety rating of four,
meaning that Brand’s 50-psf-rated scaffold should have been able to support a minimum
load of 200 psf. ANSI A10.8, § 9.1; R Ex. 32 at 47;
29 C.F.R. 1926.451(a)(1). The Secretary argues that the scaffold
collapsed under an actual of load of 162-180 psf due to “design and
construction deficiencies.” Sec’y’s Post-Hrg. Br. at 11. The Secretary further
argues that these alleged facts support a reasonable inference that the
scaffold was not constructed to be of “such strength, material, and workmanship
[as to] withstand all reasonable shock, wear, and usage, to which it will be
subjected.” Id .; Tr. 204.  I first address the Secretary’s argument that
the scaffold collapsed at an estimated load of 162-180 psf, and then the Secretary’s
arguments regarding design and construction defects.

a.
Estimated Load at the Time of Collapse

The Secretary’s expert witness Taylor opined
that the scaffold “failed when subjected to loads in the range of 162 to 180
pounds per square foot.” Taylor concluded that “[t]he scaffolding was designed
for 50 psf and therefore should have been able to support up to 200 psf. However,
the scaffolding failed when subjected to a smaller load of 162-180 psf.” P. Ex.
4 at 7-9; see also Tr. 204.

Respondent argues that Taylor’s
“assumption that the scaffold failed at 162-180 psf was based on unreliable
information and verifiably incorrect data.” Respt’s Post-Hrg. Br. at 15. Respondent
points out that Taylor’s 162-psf figure was based on double-hearsay statements from
investigatory witnesses recorded in Wakefield’s notes. Id. at 15. Respondent
also emphasizes that the 180-psf figure was based on Taylor’s assumption that
the debris was uniformly distributed, while the photographic and testimonial
evidence establishes that the debris was not evenly distributed over the
working platforms. Respt’s Post-Hrg. Br. at 10, 15; see also Tr. 239-41;
P. Ex. 3 at 6.

I
agree with Respondent’s arguments regarding the unreliability of Taylor’s
estimate. Taylor drew the upper limit of his estimated actual load range (180
psf) from inspector Wakefield’s notes memorializing his post-accident
investigation. P. Ex. 4 at 4; see also P. Ex. 3 at 7-8. Wakefield
identified the source of this information as Titan’s engineer Pepper and
Respondent’s engineer January. Tr. 236, 226. According to Wakefield, when
Wakefield met with Titan and Pepper, Pepper used a five-gallon mop bucket of
debris from inside the calciner and a photo of debris on one level of the
scaffold pre-collapse to do “some weighing and sampling” based on the “the
density and the type of brick and some information off the internet” to
estimate that the load on the scaffold at the time of its collapse was 180 psf.
Tr. 104-108. The Secretary never called Pepper as a witness, and Taylor
never tested Pepper’s methodology to ascertain its reliability. I find on this
record that Taylor’s expert testimony based on Pepper’s purported single-bucket
analysis was grounded on insufficient facts and data and did not apply generally
accepted scientific principles or methods to arrive at a reliable estimate of
the load at the time of collapse. Rather, Taylor unjustifiably
extrapolated from Pepper’s untested and dubious methods, guesswork, and
speculation to reach an unfounded conclusion.   Cf. , General Elec. Co.
v. Joiner , 522 U.S. 136, 146 (1997) (noting that a trial court “may
conclude that there is simply too great an analytical gap between the data and
the opinion proffered”) (internal citations omitted).

In
addition, January, the original declarant, refuted Wakefield’s hearsay testimony.
January testified that he “never once gave an exact number of what the scaffold
failed at, at what pounds per square foot.” Tr. 425-26. January also testified
that his lack of access to the accident site prevented him from being able to
make such an estimate. Id . I credit January’s direct rebuttal over
Wakefield’s testimony and find that Taylor’s 180-psf calculation, based on
Wakefield’s notes, to be unreliable. In addition, the record evidence
overwhelmingly establishes that the refractory brick and debris was not
uniformly distributed over the scaffold’s working platforms. P. Ex. 3 at 6. Because
Taylor based his 162-psf calculation on an erroneous assumption that the load
was evenly distributed, I decline to credit the 162-psf figure as well. Taylor did
not adequately
account for the alternative explanation (supported by the expert testimony of January, Glabe,
and Bishop) that
the scaffold collapsed because the asymmetrical overloading caused one of the
lower legs to buckle and fail. Tr. 446-47, 498, 510, 568; see also P.
Ex. 3 at 6; R. Ex. 29.  I decline to credit Taylor’s opinion, based on double
hearsay and unreliable methodology, that Brand’s scaffold collapsed at an
estimated load of 162-180 psf, and was therefore not substantially constructed.

b.
Design and Construction Deficiencies

The
Secretary argues that Brand’s scaffold was not substantially constructed
because design and construction defects caused the scaffold to collapse at an
estimated load of 162-180 psf, less than the required 4.0 safety rating of 200
psf. Sec’y’s Post-Hrg. Br. at 11. In support of that argument, the Secretary
offered Taylor’s opinion countering Bishop’s calculation that 4.3 was the
lowest safety factor of any scaffold component. As noted, Bishop’s investigation
did not uncover any deficiencies in the scaffold’s design, and Bishop concluded
that the scaffold was substantially constructed because it was rated to carry
the 200-psf minimum required by ANSI section 9.1 and OSHA section 1926.451(a). R.
Ex. 33 at 19; Tr. 509-10. Taylor reviewed Bishop’s report and concluded the
following:

[Bishop’s] report
found adequate factors of safety in excess of four on each of the individual
scaffold components . . . for a 50 psf loading, but failed
to evaluate the overall effect of the lateral, eccentric, and unsymmetrical
loading unique to the configuration of the Calciner [sic] vessel. Therefore,
failure to brace and tie against sway from the lateral, eccentric, and
unsymmetrical loadings, and/or lack of substantial support at the bearing
plates and butt locations caused a premature collapse of the scaffolding
system.

P.
Ex. 4 at 7-8. Taylor’s expert report and testimony generally concluded, in
laymen’s terms, that Brand’s scaffold was insufficiently braced and
insufficiently anchored to the inside of the calincer to support its minimum
load capacity of 200 psf. P. Ex. 4 at 5-6. Taylor generally argued that
Bishop’s investigation failed to recognize deficient bracing and anchoring and therefore
failed to account for how such deficiencies affected the transmission of loads
through the structure. Tr. 108, 198, 200.

Taylor
admitted on cross examination that his opinion regarding additional bracing
relied on comparisons between Cuplok systems scaffolding and a competing brand
of systems scaffolding called Safway. Taylor also admitted that he was
unfamiliar with Brand’s Cuplok scaffolding prior to these proceedings. Tr. 226,
272-274. Respondent argues that Taylor’s opinions failed to consider the unique
qualities of the Cuplok system. Respt’s Post-Hrg. Br. at 16-17. Glabe and
January, who are both familiar with Safway, each agreed that the
three-dimensional, geometric design of the Cuplock scaffold and the rigidity of
the Cuplok connections added stability to the as-built scaffold, and that
Cuplock scaffolds required less bracing than the Safway systems scaffolding
relied on by Taylor. Tr. 437 (January), 548-49, 554-55, 570 (Glabe).  I find
Respondent’s arguments persuasive and credit Glabe’s and January’s opinions
that additional bracing was not required for Brand’s Cuplok systems scaffolding.

Taylor
also expressed concern about the locations where Brand’s scaffold was anchored
to the inside of the calciner.  Taylor was concerned that the design contained
too few anchor points to support the intended load, and that the integrity of
the butts, plates, and ties used to anchor the scaffold were compromised by the
irregular surface of the existing refractory liner.

P.
Ex. 4 at 6; Tr. 108, 175, 177-79, 185-89. Bishop testified that his calculations
specifically accounted for how the scaffold structure transmitted loads to the
anchoring butts, plates, and ties. Tr. 518. Bishop also accounted for the effect
of the uneven surface underneath the anchoring points. Tr. 517.  In addition, Glabe
testified that system scaffolds are “pretty stable structure[s]” designed to
“shift loads around.” Tr. 571. Both January and Glabe agreed that the anchor
points supporting the upper portion of the scaffold above the calciner waist
were adequate, as evidenced by the fact that the upper portion of the scaffold
survived the collapse. Tr. 439-41, 446-47, 568, 571. [24]
Having examined all the record evidence, I credit January’s, Bishop’s, and
Glabe’s concurring opinions that the scaffold was securely anchored inside the
calciner and was capable of supporting the minimum required load of 200 psf.

3.
Conclusion Regarding Substantial Construction

Having reviewed the record evidence and considered
the expert witness testimony and reports, I find that the Secretary has not
established, by a preponderance of the evidence, that the scaffold collapsed at
an estimated load of 162-180 psf. I likewise find unpersuasive the Secretary’s
argument that design and construction defects compromised the scaffold’s
structural integrity.  I therefore conclude that the Secretary has failed to
show that the scaffold was not substantially constructed as required under
section 56.11027.

V. CONCLUSION

In summary, I have
found that Respondent Brand did not have sufficient supervision or control over
the scaffold’s use during the refractory removal and replacement process to
permit liability for K&G’s overloading of the scaffold under the Act. I
conclude that the Secretary has not met his burden of proof to establish that
the scaffold was not substantially constructed. Having so determined, I need
not address the alleged violation’s gravity, negligence, or proposed civil
penalties.

VI. ORDER

For the reasons set forth above,
Citation No. 8907617 is VACATED.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Randy
R. Dow, Boyd & Jenerette, P.A. 4443 Lyons Road, Suite 209, Coconut Creek,
FL 33073

Michael
J. Childers, Boyd & Jenerette, P.A. 201 North Hogan St., Suite 400
Jacksonville, FL 32202

LaTasha
T. Thomas, U.S. Department of Labor, Office of the Solicitor, 618 Church
Street, Suite 230, Nashville, TN 37219

/ccc

[1] Order No.
8907620, issued under section 104(b) of the Act, is no longer contested by
Respondent. Tr. 13. 

[2] In this
decision, “Tr. #” refers to the hearing transcript. “Jt. Ex. 1” refers to the
joint exhibit, “P. Ex. #” refers to the Petitioner’s exhibits, and “R. Ex.

” refers to the Respondent’s exhibits. Jt. Ex. 1, P. Exs. 1-7, and R. Exs. 1-38,

were received into evidence at hearing.  

[3] MSHA’s regulations
define “substantial construction” as “construction of such strength, material,
and workmanship that the object will withstand all reasonable shock,
wear, and usage, to which it will be subjected.” 30 C.F.R. § 56.2 (emphasis
added).

[4] At hearing,
stipulations a through l from Section 2 of Respondent’s Pre-Hearing Statement, and
stipulations a, d, e, and k from Section 3 of that document were adopted by the
parties. Tr. 15-16; see Jt. Ex. 1. Those stipulations are enumerated as
stipulations 1-12 and 13-16, respectively.

[5] Jason Wakefield
has worked with MSHA for four years as an inspector. Tr. 37-38. Previously, he
worked for nine years in an underground salt mine. Id. Prior to the
instant accident, Wakefield had inspected scaffolding “a few dozen times.” None
of those inspections occurred inside a calciner or involved a scaffold
collapse. Tr. 67-69.

[6] As noted above,
section 56.11027 provides:

Scaffolds and
working platforms shall be of substantial construction and provided with
handrails and maintained in good condition. Floor boards shall be laid properly
and the scaffolds and working platforms shall not be overloaded. Working
platforms shall be provided with toeboards when necessary.

30 C.F.R. §
56.11027.

[7] Scaffolds rated
for 25 psf loads are considered “light duty,” and are appropriate for workers
and minimal storage of materials. Scaffolds rated for 50 psf load are
considered “medium duty” and are appropriate for workers and some storage of
materials. Scaffolds rated for at least 75 psf are “heavy duty,” and are
appropriate for workers plus considerable storage of material. R. Ex. 34 at 3; see
also Tr. 204.

[8] A systems
scaffold is a set of reusable, modular, pre-fabricated components with fixed
connection locations. Vertical posts are connected by horizontal “runner” and
“bearer” beams and diagonal bracing. Bearer beams support the steel-plank
flooring. See 29 C.F.R. § 1926.450(b) (OSHA regulatory
definitions of scaffolds and scaffold components). Cuplok is
Respondent’s proprietary brand of systems scaffold, and is primarily distinguished
from other systems scaffolds by its unique connection devices. Tr. 435; R. Ex.
34 at 5, Fig. 1. One of Respondent’s expert witnesses, David Glabe, described the
Cuplok conncetion devices in his expert witness report, as follows:

[T]he
connection device on the leg consists of cups permanently welded to the leg at
intervals of 0.5 meters. . . . Cup covers are installed on the leg
above the cups; the covers are allowed to slide up and down the leg so
horizontal and diagonal members can be easily installed and secured. The horizontal
and diagonal members have blades that fit into the cup and are secured by
closing the cover.

R.
Ex. 34 at 4-5; see also R. Ex. 34 at 5, Fig. 1 (Cuplok Connection).

[9] During
testimony from Respondent’s project manager, Russel Carlson, this access hatch was
alternatively referred to as located on the sixth or seventh floor of the
outside structure.   See, e.g. , Tr. 406.

[10] Carlson has
worked for Brand as project manager for nine years. Tr. 352. Almost all of his
work as project manager involved erecting or dismantling scaffolds. Tr. 353.  For
seven years before that, Carlson worked as general foreman, foreman,
journeyman, carpenter, or laborer at Brand. Tr. 352.

[11] Smith has
worked for Brand with industrial scaffolding for nine years.  At the time of
the hearing, he was a project superintendent. Tr. 286-87. Smith testified that
he has constructed “probably hundreds” of scaffolds in confined spaces like a
calciner. Tr. 308.

[12] At the time of
the hearing, Godines had worked for Brand for two years as a superintendent. Godines
has 24 years of experience erecting industrial scaffolds. Tr. 318.

[13] A red-tagged
scaffold indicates that the scaffold has failed inspection and is not safe for
use. Tr. 412-13; Tr. 572-73.

[14] Ryan January
has worked for Brand for three years as a scaffolding engineer.  Ryan estimates
that his team designs 500-700 scaffolds each year. Tr. 423. Previously, Ryan worked
six years as a design engineer for scaffolding at Brand. Id. January is
a licensed engineer in 36 states. Tr. 424. He earned a Bachelor of Science
in civil structural engineering from the University of Missouri. Id.

[15]
Citation
No. 8907615 was issued to Titan. The Commission’s records show that Citation
No. 8907615 was contested and assigned to Docket No. SE 2016-0293. The Chief
Judge assigned it to the undersigned on October 13, 2016. Order of Assignment,
Docket No. SE 2016-0293 (Oct. 13, 2016) (ALJ). Titan later withdrew its
contest and agreed to pay the full penalty proposed by the Secretary. Decision
Approving Settlement & Order to Pay, Docket No. SE 2016-0293 (Oct. 31,
2016) (ALJ).

Citation No. 8907616 was issued to
K&G. MSHA’s records indicate that Citation No. 8907616 was not contested
and was paid in full. Citations, Orders, and Safeguards for Contractor ID No.
v589, MSHA Mine Data Retrieval System, available at https://arlweb.msha.gov/drs/ASP/CntctrAction.asp (last accessed Apr.
13, 2018).

[16] The component
that was bending was alternatively described as “one of the legs,” a “swivel
jack,” a “screw jack,” or a “scaffold post.” Tr. 210, 212, 215, 223; Tr. 410.

[17] American
National Standard for Construction and Demolition Operations Scaffolding Safety
Requirements contain industry-consensus guidance developed by the American Society
of Safety Engineers and accredited by the American National Standards Institute
(ANSI), a private, not-for-profit organization that “oversees the creation,
promulgation, and use of thousands of norms and guidelines that directly impact
businesses in nearly every sector . . . .” ANSI, https://www.ansi.org/about_ansi/overview/overview?menuid=1 (last accessed
Apr. 13, 2018).

[18] Although
section 1926.451(a)(1) provides exceptions to its requirements in certain
instances, the parties have raised no arguments regarding such exceptions and I
find that such exceptions are not applicable to the facts of this case. Moreover,
the four-times safety factor represents a minimum safety rating: the enumerated
exceptions to section 1926.451(a)(1) require safety factors greater than four. See
29 C.F.R. § 1926.451(a)(1)—(5); (g).

[19] The sole
exception was Godines. When asked on cross-examination whether he red-tagged
the scaffold because it was overloaded, Godines responded that “he didn’t want
to say that” because he “didn’t know.” He stated that he red-tagged the scaffold
because the large piles of debris on the working platforms created tripping
hazards. Tr. 340.

[20] Ames was cited
under 30 C.F.R. § 56.9201, which requires that “equipment and supplies shall
be . . . transported, and unloaded in a manner which does not
create a hazard.”

[21]
In Ames ,
the Secretary argued two bases for Ames’ liability as an independent
contractor: Ames supervised the unloading process, and Ames had control over
the pipe unloading area. Ames , 33 FMSHRC at 1610. The Commission based
its legal holding on a factual determination that Ames exercised supervision
over the particular process of unloading pipes that occurred at the mine. 33 FMSHRC
at 1614. Although the Commission majority acknowledged “that a contractor may
also be liable under the Mine Act for violations which occur within an area of
the mine which the contractor controls,” the Commission noted that it “need not
reach that issue in this case, because Ames is liable on the basis of its
supervision of the unloading process.” Id . at 1611, n.5. The Secretary’s
theory of the instant case, as presented at hearing, failed to make clear whether
the Secretary was pursuing liability on the basis of Brand’s alleged
supervision over a process (the refractory work), or Brand’s alleged control over
an area of the mine (the interior of Titan’s calincer where the scaffold was
constructed).  I conclude, however, that Godines’ and Carlson’s failed attempts
to stop K&G’s refractory work on the scaffold support the reasonable
inference that Respondent did not control the interior area of the calincer or supervise
the process of removing and replacing the refractory brick. See
discussion infra Section III.A.

[22]
T he May 9,
2016 purchase order agreement executed by Respondent and Titan imposes a $5,000
fee for Titan’s “28 day equipment rental” of the scaffold. R. Ex. 28 at 1; see
also Jt. Ex. 1.

[23]
Wakefield
testified that Titan’s safety director David Brader told him that it was
Brand’s job to erect, maintain, and tear down the scaffold. Tr. 48
(emphasis added). As Wakefield admitted that it was a Titan agent that made the
statement, rather than Brand personnel, I decline to credit Wakefield’s
testimony suggesting that Brand agreed to maintain the scaffold after it was
erected and turned over to Titan, particularly in light of the contrary
language in Brand’s proposal.

[24] As noted, January,
Glabe, and Bishop agreed that the failure occurred when the overloading caused
one of the lower legs to buckle and fail. Tr. 446-47, 498, 510, 568.