Dillingham Construction International
Dillingham Construction International (FMSHRC SE 88-59-M, SE 89-23-M): Citations affirmed, S&S findings partly modified
Apply this to your situation
This order from 1989 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Dillingham Construction International was cited during its Puerto Rico dam project for conditions involving unguarded equipment, missing handrails, a broken conveyor emergency-stop cord, and unsuitable footwear. The company argued that it was a construction contractor outside MSHA jurisdiction, but Judge George A. Koutras found that its limestone extraction and processing operations were subject to the Mine Act. He affirmed the citations and assessed $740 in penalties, while vacating or modifying some significant-and-substantial findings. The order required payment within 30 days, after which the proceedings would be dismissed.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 57.14001, 56.11002, 56.14001, 56.9007, and 56.15003.
- Outcome: The citations were affirmed with some S&S findings vacated or modified, and $740 in civil penalties was assessed.
- Key point: A construction project that extracts and processes limestone for use in a dam can fall within MSHA jurisdiction as a mine operation.
Full text (FMSHRC public release)
CASE:
SOL (MSHA) V. DILLINGHAM CONSTRUCTION INTERNATIONAL
DATE:
19890731
TEXT:
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 88-59-M
PETITIONER A.C. No. 54-00289-05503
v. Docket No. SE 89-23-M
A.C. No. 54-00289-05504
DILLINGHAM CONSTRUCTION
INTERNATIONAL, Cerrillos Dam Project
RESPONDENT
DECISIONS
Appearances: William G. Staton, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York, for
the Petitioner;
Anibal Irizarry, Esq., McConnell, Valdes, Kelley,
Sifre, Griggs & Ruiz-Suria, San Juan, Puerto Rico,
for the Respondent.
Before: Judge Koutras
Statement of the Proceedings
These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for
nine alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. The
respondent filed timely contests and answers, and hearings were
held in San Juan, Puerto Rico. The parties filed posthearing
briefs, and their respective arguments have been considered by me
in the course of my adjudication of the cases. I have also
considered the oral arguments made by the parties at the
hearings.
Issues
The respondent takes the position that it is a construction
contractor, who at the time of the MSHA inspections in question,
was engaged in the process of constructing a dam pursuant to an
agreement with the Government of Puerto Rico and the U.S. Corps
of Engineers. Respondent denies that it operates a "mine" within
the jurisdiction of the Act, and asserts that its work associated
with the dam project in question is within the enforcement
jurisdiction of the Commonwealth of Puerto Rico Occupational
Safety and Health Administration (hereinafter PR-OSHA).
The respondent maintains that any minerals taken and used in
the construction of the dam have been "excavated" rather than
"extracted," and that it does not engage in any "mining or
milling" activities which would bring its construction activities
within the jurisdiction of the Act, and within MSHA's mine
enforcement jurisdiction. In support of its position, the
respondent relies on an MSHA/OSHA Interagency Agreement, and
several MSHA policy directives issued with respect to this
agreement.
Assuming that the respondent is subject to the Act and to
MSHA's enforcement jurisdiction, the additional issues presented
are (1) whether the respondent violated the cited standards, and
if so, the appropriate civil penalties which should be assessed
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act; and (2) whether several of the
alleged violations were "significant and substantial" (S&S).
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq
2. Commission Rules, 29 C.F.R. § 2700.1, et seq.
3. Part 56, Title 30, Code of Federal Regulations.
Stipulations
The parties stipulated to the following:
1. The respondent's size consists of 102,559 manhours
worked per annum.
2. The respondent's history of prior violations
consists of 10 assessed civil penalty assessments made
by MSHA in 1987.
3. Payment of the proposed civil penalty assessments
for the violations in issue in these proceedings will
not adversely affect the respondent's ability to
continue in business.
Discussion
All of the contested section 104(a) citations in these
proceedings were issued by MSHA Inspector Roberto Torres Aponte,
after the completion of his inspection of the dam site in
question on August 31 and September 1, 1987. Although the
citations
are dated September 1, 1987, Inspector Torres confirmed that he
actually wrote them on September 2, 1987, the day following his
inspection, and that he served them on respondent's
representative Ike Tabor during a close-out conference held that
day. Mr. Torres further confirmed that during the course of his
inspection he discussed each of the cited conditions with Mr.
Tabor and informed him of the violations and the fact that he
would issue the citations. Mr. Torres further explained that his
normal procedure is to write up and serve any citations on the
mine operator at the conclusion of his inspection and during the
close-out conference. The citations issued by Mr. Torres are as
follows:
Docket No. SE 88-59-M
Non-"S&S" Citation No. 2858999, 30 C.F.R. § 57.14001. "The No.
3 feeder motor belts were not guarded, maintenance is done in the
area where the equipment is shutted (sic) off."
"S&S" Citation No. 2859000, 30 C.F.R. § 56.11002. "The
walkway around the No. 3 feeder was not provided with hand rails
around it exposing maintenance employees to fall from approx. 12
ft. to the lower level. Three employees were working in the
area."
"S&S" Citation No. 2859001, 30 C.F.R. § 56.14001. "The No. 5
conveyor belt counterweight pulley was not guarded. It is located
near the walkway where persons walk and are exposed to become
caught between the belt and pulley."
Non-"S&S" Citation No. 2859002, 30 C.F.R. § 56.11002. "The
No. 6 feeder platform was not provided with handrails. The area
is not used on a regular basis."
Non-"S&S" Citation No. 2859003, 30 C.F.R. § 57.14001. "The
No. 7 conveyor belt tail pulley was not guarded. Cleaning and
maintenance is done in the area when the equipment is shutted
(sic) off."
"S&S" Citation No. 2859004, 30 C.F.R. § 56.9007. "The No. 8
conveyor belt emergency stop cord was broken loose exposing the
persons who walk in the walkway to the hazard. The walkway is
used on a regular basis by employees."
Non-"S&S" Citation No. 2859005, 30 C.F.R. § 56.14001. "The
No. 9 conveyor belt tail pulley was not guarded. Cleaning and
maintenance is done in the area when the equipment is shutted
(sic) off."
Non-"S&S" Citation No. 2859006, 30 C.F.R. § 56.14001. "The
No. 10 conveyor belt counterweight pulley was not guarded.
Cleaning and maintenance is done in the area when the equipment
is shutted (sic) off."
Docket No. SE 89-23-M
"S&S" Citation No. 2859007, 30 C.F.R. § 56.15003. "Several
employees were not wearing safety shoes in the rock plant, being
exposed to have feet injuries or fractures."
Petitioner's Testimony and Evidence
Inspector Torres testified with respect to his training and
experience, and he confirmed that he has served as an inspector
for 11 years, and was previously employed at a cement plant for 8
years. He confirmed that in response to a September 22, 1986,
letter from the respondent's Project Manager Lars Johansson,
requesting a "CAV" or compliance assistance visit, he visited the
"extraction area" at the dam construction site on November 4,
1986. Mr. Torres explained that such visits are normally made
while an operator is making equipment adjustments, but before the
start of any full production. During the visit in question, Mr.
Torres inspected all of the equipment at the site, and discussed
with mine management several violative conditions concerning
equipment guarding, berms, safe access, walkways, safety shoes,
and handrails, and made recommendations concerning corrective
action.
Mr. Torres stated that the conditions he found during his
initial CAV inspection were "Non-civil penalty violations" for
which the respondent was given a reasonable time to correct
before an MSHA inspector returns to the site for a regular
inspection.
Mr. Torres stated that during his CAV inspection he found
that limestone was being extracted by the respondent by blasting.
The limestone was then trucked to the primary crusher and
screening plant where it was sized or separated into smaller rock
by means of two grizzles. The processed materials were then used
in the construction of the dam. Mr. Torres stated that the
primary crusher operation and extraction area were located
approximately 1,500 feet from the actual dam construction site,
and that the screening station was approximately 200 feet from
the primary crusher.
Mr. Torres stated that the respondent used explosives,
bulldozers, front-end loaders, haulage trucks, primary crusher
and screening conveyor belts, and two grizzles during the
limestone extraction and processing activity. He stated further
that a conveyor belt located at the primary crusher transferred
the excavated limestone and rock to the screening station where
four screens were used to separate small stones from the larger
ones, and that the resulting crushed rock was used in "layers" to
construct the dam. He also confirmed that some of the processed
materials were used to produce concrete or sand, and that all of
the materials were ultimately used for in the construction of the
dam.
In addition to the excavated rock and limestone which was
processed at the dam construction excavation area, Mr. Torres
stated that the respondent used raw materials which it purchased
from other area quarries for the construction of the dam. He
described this material as "white marble-like stone" which was
not excavated at the same site, and he confirmed that it was
"trucked in." He determined that these other materials were
brought to the site through visual observation of the material
which was stockpiled at the excavation area of the dam
construction site.
Mr. Torres characterized the work being performed at the
excavation area in question as a milling operation, and he
confirmed that according to an MSHA report which was filed by the
respondent, 32 of the respondents' employees were engaged in work
connected with this milling operation. He did not know the total
number of employees who were working at the site.
Mr. Torres identified the bulldozers used by the respondent
as Caterpillar "cats" or "dozers," and he confirmed that the
other equipment which he previously identified, including the
bulldozers, were all manufactured outside of Puerto Rico in "the
states."
Mr. Torres stated that subsequent to his initial CAV
inspection, he next visited the dam construction excavation area
on February 9 and 10, 1987, to conduct a regular inspection. The
first day he was alone, and the second day he was accompanied by
MSHA Inspector Augusto Perez. During these visits, Mr. Torres
confirmed that he observed the same milling activities, i.e.,
limestone extraction, crushing, and screening, and they were
similar to the activities taking place during his prior CAV
inspection.
Mr. Torres stated that during his inspection of February 9
and 10, 1987, he issued several citations to the respondent, and
after proposed civil penalty assessments were made by MSHA for
these violations, the respondent paid the assessments and the
citations were terminated.
Mr. Torres stated that his next visit to the dam excavation
area took place on June 29, 1987, when he went there for a
"compliance follow-up inspection" to ascertain whether the prior
violative conditions were corrected by the respondent. At this
time only the primary crusher was in operation, but a new
secondary crushing plant was being constructed by the respondent in
order to produce finer rock material to be used in the
construction of the dam.
Mr. Torres stated that he next visited the dam excavation
area on August 31, and September 1, 1987, when he conducted
another regular inspection. He inspected the primary crusher and
screening plant, and conducted noise sampling surveys on some of
the equipment. Since the secondary crushing plant was still under
construction, he did not inspect it. Mr. Torres confirmed that
Mr. Ike Tabor, the respondent's "excavation area" manager,
accompanied him during the inspection and that he discussed each
of the citations which he issued with Mr. Tabor.
Mr. Torres confirmed that subsequent to his inspections of
August 31, and September 1, 1987, he held a "closing conference,"
with Mr. Tabor, Mr. Johansson, MSHA Inspector Brian Smith, and
the respondent's project safety engineer Gerald R. Fulghum, and
that Mr. Fulghum advised him that the equipment guards which were
the subject of Citation Nos. 2858999, 2859003, 2859005, and
2859006, had been removed in order to be repaired, but that the
repair work had not been completed and the guards were not
replaced. Mr. Fulghum subsequently mailed in a "note" to his
office explaining the circumstances under which the guards had
been removed.
Citation No. 2858999
Mr. Torres stated that the cited feeder motor belts were
located at the third level of the primary screen station. The
motor is used for the vibrating screens, and employees need to be
there on a daily basis to clean any spillage from the floors.
Access to the cited location is by means of a ladder way. Mr.
Torres confirmed that he observed the condition at 8:30 a.m., on
September 1, 1987, and that the plant was not in operation at
that time, and the motor was shutdown. The plant was put in
operation between 11:00-11:30 a.m.
Mr. Torres stated that he made a gravity finding of
"unlikely" because the plant is shutdown and locked out when
clean-up or maintenance work is performed. Although he observed
no one at the cited location, Mr. Torres believed that at least
one individual would be in the area for inspection once the plant
was started up. In the event someone were to be caught in the
unguarded motor belts, they could lose a finger or an arm or
suffer disabling injuries.
Mr. Torres confirmed that he made a negligence finding of
"moderate" because he believed that a supervisor should have been
aware of the unguarded belts, and similar belts in the plant were
guarded. Mr. Torres did not believe the violation was
"significant and substantial" because the plant was shutdown when cleanup
or maintenance was performed. He also confirmed that the citation
was terminated at a later time by another inspector.
Citation No. 2859000
Mr. Torres stated that the cited feeder walkway was located
at the third level of the screening station tower, and that it
was elevated approximately 12 feet above the next lower level.
Mr. Torres stated that plant manager Ike Tabor, who accompanied
him during his inspection, informed him that the platform where
the walkway was located was constructed for the purpose of
maintaining the No. 3 feeder, but that handrails were not
installed.
Mr. Torres confirmed that when he observed the condition at
8:10 a.m., the plant was down and the feeder was not in
operation. He observed three employees in the area performing
clean-up and maintenance work, and Mr. Tabor informed him that
they were employees of the respondent.
Mr. Torres confirmed that he made a gravity finding of
"reasonably likely" because someone could fall off the elevated
unguarded platform at any time, and if they did, they would
likely suffer fatal injuries. He believed the violation was
"significant and substantial" because of the high probability of
an accident which could result in a fatality.
Mr. Torres confirmed that he made a negligence finding of
"moderate" because similar platform areas were guarded with
handrails and this should have alerted a supervisor of the need
to provide the required handrails.
Citation No. 2859001
Mr. Torres stated that the cited No. 5 conveyor belt
counterweight pulley was not guarded when he observed it at 8:30
a.m. The belt was used to transport material and it was elevated
and located approximately 20 to 25 feet above ground. A walkway
was next to the unguarded pulley, and the unguarded area was
approximately 8 inches from the edge of the walkway. Employees
would regularly walk by the unguarded pulley because the walkway
provided an access way to the transfer point behind the pulley.
Mr. Torres confirmed that the plant was shutdown and the
belt was not in operation when he observed the condition.
However, once the plant is put into operation at approximately
11:00 a.m., employees would regularly be using the walkway
adjacent to the unguarded pulley. Given the fact that the pulley
was 36 inches long and 12 to 15 inches wide, experience has shown
that accidents have occurred when employees are caught in an
unguarded pulley of that size.
Mr. Torres stated that he made a gravity finding of "reasonably
likely" because of the likelihood of an accident and injury once
the equipment was put in operation, and at least one person who
regularly travels the walkway from one side of the pulley to the
other would be exposed to the hazard. Mr. Torres also confirmed
that he made a finding that the violation was "significant and
substantial" because someone could have been caught in the
pulley, and if this occurred, a fatality would occur.
Mr. Torres stated that the plant area was "practically new,"
and that Mr. Tabor informed him that a guard had previously been
provided for the pulley in question, but that it was removed for
some reason. Mr. Torres stated that he based his "moderate"
negligence finding on the fact that similar equipment parts in
the area were guarded, and a supervisor should have known that
the cited pulley in question needed to be guarded.
Citation No. 2859002
Mr. Torres stated that the No. 6 feeder platform located at
the second level of the secondary crusher plant was not provided
with handrails. The platform was approximately 10 feet above the
second level floor, and it was used to provide maintenance for
the shakers located on the platform. He stated that the shakers
were located in the middle of the platform area, and that any
employee performing maintenance on the shakers would be "far
away" from the edge of the perimeter of the unguarded platform.
Mr. Torres stated that employees would not normally be on
the platform on a regular basis, and although the platform was
located in a new plant area which had not been totally completed,
the cited area was located in a plant area which was in
production.
Mr. Torres confirmed that he made a gravity finding of
"unlikely" because of the low probability of an accident. He
explained that any maintenance work on the feeder would be
performed in the middle of the platform where the feeder was
located, and that the feeder was approximately 10 feet from the
edge of the platform. The only reason for anyone going to the
platform would be to perform maintenance work, and even if
someone were to fall from the platform, they would fall into the
"soft" material below and would not likely be injured.
Mr. Torres believed that the violation was not "significant
and substantial" because it was not probable that anyone
performing maintenance work on the platform would fall off, and
it was unlikely that an accident or injury would occur. He
confirmed that he made a negligence finding of "moderate" because
similar platform areas were provided with handrails.
Citation No. 2859003
Mr. Torres stated that the No. 7 conveyor belt tail pulley
located at the secondary crusher plant was not guarded. He
explained that the pulley was located approximately 1 foot from
the floor level and under the No. 6 feeder which discharged
material on the No. 7 belt conveyor. A guard had previously been
provided, but it had been removed and not replaced. The plant was
shutdown when he observed the condition, and he confirmed that
employees are not regularly in the area, except when the belt is
shutdown for maintenance work such as alignment or greasing.
Mr. Torres stated that he based his gravity finding of
"unlikely" on the fact that the plant equipment is shutdown when
maintenance or cleaning work is performed. However, if someone
were to be caught in the unguarded pulley, which was 36 inches
long and 10 to 12 inches in diameter, they would suffer fatal
injuries, and past experience with similar unguarded pulleys
attest to this fact. He believed that "sooner or later" someone
would have to go to the area while the equipment is running, and
they would be exposed to a hazard of being caught in the pulley.
One maintenance person would be exposed to the hazard.
Mr. Torres confirmed that the violation was not "significant
and substantial," and that he based his negligence finding of
"moderate" on the fact that a supervisor should have noticed the
unguarded pulley during the preshift examination.
Citation No. 2859004
Mr. Torres stated that the broken No. 8 conveyor belt stop
cord was located at the secondary plant. There were two conveyor
belts at the cited location, the No. 7 and No. 8, and the No. 8
belt was on the left side. The stop cord was approximately 100
feet long, and it was broken in the middle and lying on the
walkway which was adjacent and parallel to the belt. Both the
belt and walkway were inclined, and the walkway was regularly
used by employees to go from ground level to the crusher.
Mr. Torres stated that the belt was in operation when he
observed the broken stop cord, but that no employees were in the
area. However, he believed that prior to the start of the
operation, one person had walked by the cited area while going to
the cone crusher.
Mr. Torres stated that he based his gravity finding of
"reasonably likely" on the fact that the walkway was used
regularly when the plant was in operation and the broken stop
cord would not allow the conveyor belt to be shutdown in the
event of an emergency or breakdown. If this were to occur,
employees would be exposed to a hazard from the materials on the belt.
Mr. Torres believed the violation was "significant and
substantial" because of the likelihood of an accident resulting
from the inability to stop the conveyor because of the broken
cord. Employees would normally use the walkway to check on the
equipment.
Mr. Torres confirmed that he based his negligence finding of
"moderate" on the fact that the supervisor should have been aware
of the broken stop cord, and as he previously stated, someone
walked by the area prior to the start of the operation.
Citation No. 2859005
Inspector Torres stated that the cited unguarded No. 9
conveyor belt tail pulley was located at the secondary crusher
plant. The belt was under the cone crusher at ground level, and
Mr. Tabor advised him that a guard had been in place but that it
had been removed.
Mr. Torres confirmed that employees would be in the area for
clean-up and maintenance work, but that the belt would be
shutdown when this work was being done. He observed no employees
in the area, and never observed any maintenance or clean-up work
being performed.
Mr. Torres described the pulley as 24 inches long and 10 to
12 inches in diameter. He did not believe that the violation was
"significant and substantial" because the equipment was shutdown,
and he made a gravity finding of "unlikely" because maintenance
and clean-up work is performed only when the plant and equipment
is shutdown.
Mr. Torres confirmed that he made a negligence finding of
"moderate" because he believed that a supervisor should have been
aware of the fact that the belt pulley was not guarded. Mr.
Torres also indicated that past experience has shown that
fatalities have occurred when anyone is caught in such an
unguarded pulley.
Citation No. 2859006
Mr. Torres stated that the cited unguarded No. 10 conveyor
belt counterweight pulley was located at the secondary plant and
that the belt travelled from the feeder hopper to the washing and
screening station. There was a walkway next to the belt and
employees would use it while performing maintenance work.
Mr. Torres stated that the equipment was shutdown when he
observed the condition, and that it is shutdown when clean-up or
maintenance work is performed. Mr. Torres stated that he made a
gravity finding of "unlikely" because the equipment is shutdown
when work is being performed, and the walkway is not used on a
regular basis. He also indicated that if anyone were caught in
such an unguarded belt pulley, a fatality could occur. Mr. Torres
did not believe the violation was "significant and substantial,"
and he based his "moderate" negligence finding on the fact that
similar equipment was guarded.
Citation No. 2859007
Mr. Torres stated that he issued the citation after
observing that three employees at the primary rock plant
screening tower, and three employees at the secondary plant, were
not wearing hard-toed safety shoes. Mr. Torres stated that one
employee was wearing tennis shoes, but he did not inspect the
shoes, nor did he speak to any of the employees. He confirmed
that the employees were wearing hard hats, and that he observed
three employees cleaning up under the screening tower. Mr. Torres
also stated that Mr. Tabor informed him that the respondent
required its employees to wear safety shoes, but that they did
not wear them. Mr. Torres was of the opinion that the cited
standard required all plant employees to wear safety shoes and
that this is the policy interpretation of the standard which is
followed in his office.
Mr. Torres stated that he based his gravity finding of
"reasonably likely" on his belief that an employee could be
struck on the foot by falling rock or material while cleaning up,
or by a tool or other equipment while he was performing
maintenance work.
On cross-examination, and in response to further questions
concerning guarding Citation Nos. 2859001, 2859003, 2859005, and
2859006, Mr. Torres confirmed that at the time he observed the
conditions, the equipment was shutdown and not in operation, and
he observed no employees who were exposed to any hazards at that
particular time. Mr. Torres also confirmed that the plant is
shutdown for maintenance at 8:30 a.m., and that production begins
at approximately 11:00 a.m. Although the main plant generator was
deenergized at the time of his inspection, Mr. Torres did not
believe that all of the equipment motors were locked out.
With regard to guarding Citation No. 2858999, Mr. Torres
confirmed that he saw no employees in the area. He could not name
the employees who were not wearing safety shoes, or the employees
who he observed on the walkway of the No. 3 feeder, but he stated
that Mr. Tabor informed him that they were employees of the
respondent. Mr. Torres also stated that three of the employees
without safety shoes were cleaning up, and that the other three
were maintenance personnel.
Mr. Torres conceded that the cited standard does not contain
the words "safety shoes," and that he assumed that the phrase
"suitable protective footwear" means "safety shoes." He also
confirmed that his inspector's manual interpretation of the
standard provides that safety shoes means "hard toe shoes" (Tr.
96-97).
With regard to guarding Citation Nos. 2859001, 2859003,
2859005, and 2859006, Inspector Torres confirmed that the plant
was not in operation when he viewed the conditions, and he
observed no employees in the area of the unguarded equipment. He
also confirmed that he did not return to those areas after the
plant began operating at 11:00 a.m. (Tr. 106-107).
Mr. Torres confirmed that Plant Manager Tabor informed him
that the generator supplying power to the plant was shutdown so
that the equipment could not be energized. Mr. Torres also
confirmed that the equipment breakers were not locked out (Tr.
121).
With regard to Citation No. 2858999, Mr. Torres confirmed
that he observed no employee exposed to any hazard, and he
explained that the "persons affected" by the citation were those
employee cleaning or performing maintenance, and that "maybe" one
of them "could go to that area and injured there" (Tr. 122). Mr.
Torres conceded that except for Citation Nos. 2859000 and
2859007, he did not actually observe any employees exposed to any
hazards at the time of his inspection, and while he did not know
the identity of any of the employees, Mr. Tabor advised him that
they were employed by the respondent (Tr. 125-126). Mr. Torres
confirmed that all maintenance is performed when the equipment is
shut off (Tr. 127), but he believed that safety shoes were still
required because employees handle tools and work with heavy
machinery, and it could fall on their feet (Tr. 127). He
confirmed that Mr. Tabor advised him that the respondent's policy
required its employees to wear safety shoes, but that Mr. Tabor
did not specify the type of shoes, but did confirm that the shoes
the employees in question were wearing were not in compliance
with company policy (Tr. 154).
Mr. Torres confirmed that during his close-out conference of
September 2, Mr. Johansson and Mr. Tabor did not mention that the
equipment guards were being repaired, and would be replaced. Mr.
Torres stated that this information came from Mr. Fulghum after
the meeting by means of a note which he sent to his office (Tr.
158-161).
MSHA Supervisory Inspector Juan Perez, confirmed that he
supervises the MSHA office in Puerto Rico, including all mine
inspectors assigned to his office. He stated that he visited the
dam site in question as a follow-up to an inspection conducted by
Mr. Torres on February 5, 1988, to determine whether the cited
conditions were corrected. Mr. Perez further stated that the site
was not in operation because of an impending expansion, and
the abatement periods for the citations were extended to May 1,
1988, the date that he was informed the operation would again
start. Mr. Perez stated that he next returned to the site on
April 21, 1988, and found that most of the citations, except for
the safety shoes, were abated. He also confirmed that he had
visited the site in September, 1987 (Tr. 177-182).
Mr. Perez stated that during his visits to the site he
observed two crusher operations or "plants," one of which he
identified as the primary crusher, and one of which he identified
as the secondary crusher. In addition to the crushers, he
observed a screen, vibrator, and conveyor, and indicated that the
secondary plant could be fed by a front-end loader or a conveyor
which connected both operations. He also observed materials which
had been brought in from other quarries, and these materials were
stockpiled between the two plants. He identified the material as
a "fixer" which was washed, and ground to produce different
sizes, and stated that some of the material was used for the
concrete plant (Tr. 184).
Mr. Perez stated that shortly after Mr. Torres' inspection
of September 1, 1987, he had a conference with Mr. Fulghum on
September 8, at his MSHA office. He stated that Mr. Fulghum
questioned the issuance of the citations when the plant was not
in operation, and also questioned MSHA's jurisdiction to inspect
the dam project (Tr. 185). Referring to his conference report,
Mr. Perez stated that Mr. Fulghum agreed with all of the
citations except for those pertaining to the lack of guards, and
that he stated that the guards were in the machine shop for
repairs (Tr. 187).
Mr. Perez stated that he later met with respondent's counsel
Irizarry, Mr. Fulghum, and the director of the local OSHA office,
Filiberto Cruz, on February 8, 1988. The question of enforcement
jurisdiction was discussed at this meeting, and Mr. Perez stated
that he placed a phone call to his supervisor, Mr. Claude
Narramore, MSHA District Manager in Birmingham, Alabama, and that
Mr. Narramore spoke with Mr. Irizarry and informed him that he
agreed with Mr. Perez' position that MSHA did in fact have
enforcement jurisdiction at the respondent's dam construction
site. Mr. Perez stated that he suggested that the respondent put
its jurisdictional position in writing in order to submit it to
Mr. Narramore, but that this was not done (Tr. 188-194).
Mr. Perez alluded to a call that he received from the Corps
of Engineers when the dam project was started inquiring whether
or not MSHA had jurisdiction. Mr. Perez stated that he gave an
opinion that if the project entailed construction only, MSHA
would not have jurisdiction, but if involved milling, it would
have jurisdiction (Tr. 194).
Mr. Perez stated that he provided Mr. Irizarry and Mr. Cruz with
copies of MSHA Policy Memorandum No. 87-2N-MSHA-OSHA Interagency
Agreement, and that he also discussed the memorandum with Mr.
Narramore. He confirmed that he advised Mr. Narramore that the
respondent was crushing material and buying it from other plants,
and that both he and Mr. Narramore agreed that MSHA had
jurisdiction in the matter (Tr. 196). Mr. Perez explained Mr.
Narramore's position as follows at (Tr. 197):
Q. Now, did he explain to you, you know according to
this memo what would fall under MSHA's jurisdiction and
what would not fall under MSHA's jurisdiction?
A. Yes.
Q. And do you recall what he told you about that?
A. Well, in general, we were discussing and he
presented an example, like a tunnel, when they building
a tunnel, they take the material and they dispose of
that material, you know; we don't have any jurisdiction
on that. A dam is similar too, if they take the
material, the material they have to remove and they
dispose of that material, we don't have jurisdiction on
that.
Q. OK, now did he explain situations like that where
MSHA would have jurisdiction?
A. Yes, he said anything that falls on VH1, milling,
it's our jurisdiction.
Mr. Perez confirmed that after the aforesaid meeting, he
received nothing further from the respondent regarding the
jurisdictional question, and it was not further discussed in his
office. He confirmed that his office initially exercised its
enforcement jurisdiction after the respondent filed for a mine
legal identity number on February 9, 1986, and that he assigned
the number to the respondent. The "courtesy inspection" conducted
by Mr. Torres followed after the request was received from the
respondent (Tr. 202).
Mr. Perez confirmed that his inspectors do not inspect "key
cuts," and that the inspectors only inspect the crushing and
milling areas. He explained further as follows (Tr. 204):
A. That is our jurisdiction. I think that in the CAV
Roberto went to the extraction area, but the extraction
area was in a different place and it was not . . . ,
extracted from the key cut, that was our information,
that it was off side to the area. That was the key and
then we have jurisdiction but due to the definition of
key cut, we're supposed to inspect only the primary
crusher and down to the final product.
Mr. Perez stated further that on the morning of the hearing
in this case he contacted the local OSHA office in Ponce, and
spoke with the director, a Mr. Artmayer, who informed him that
his office does not inspect the dam project, but that it has
visited the site in response to complaints. Mr. Perez stated that
Mr. Artmayer informed him that his office does not inspect the
respondent's crushers. Mr. Perez produced a copy of his notes
with respect to his conversation with Mr. Artmayer, and
respondent's counsel Irizzary produced copies of OSHA citations
served on the respondent by the Ponce OSHA office (Tr. 207-208).
On cross-examination, Mr. Perez confirmed that MSHA's
contact with the dam project resulted from a telephone call in
1985 from the Corps of Engineers inquiring as to MSHA's
jurisdiction. Mr. Perez stated that he informed the Corps that
MSHA only had jurisdiction over milling, and that after the
project began, he determined that MSHA had jurisdiction and
suggested that the respondent file for a mine ID number (Tr.
214).
Mr. Perez stated that while on an inspection at the
respondent's new Number 2 plant, he observed materials brought
from other areas being processed at the plant. He confirmed that
this "process" involved "washing, classifying and they were
grinding too" (Tr. 215). Mr. Perez stated that the respondent was
a responsible employer in terms of safety, and has reasonably
complied with the safety regulations and maintained a safe place
for employees (Tr. 221).
Respondent's Testimony and Evidence
Gerald R. Fulghum, respondent's Project Safety Engineer,
Cerrillos Dam Project, Ponce, Puerto Rico, testified with respect
to his education and mining experience, and he confirmed that the
respondent was engaged to construct the Cerrillos Dam Project in
accordance with the specifications and requirements of the U.S.
Army Corps of Engineers. He confirmed that he holds a degree in
mining engineering, and stated that the project is a seven
million cubic yard dam with a coffer dam and spillway excavation,
and he explained the scope of the project by reference to several
documents, including the dam contract specifications. He
confirmed that the dam in question is part of the Portugues and
Bucana Flood Control Plan authorized pursuant to section 201 of
the Flood Control Act of 1970, Public Law 91611 (Tr. 229-235).
Mr. Fulghum stated that in the process of constructing the
dam in question, the respondent is engaged in the excavation of
limestone, rather than extraction, and that the two terms
specifically differ in their respective definitions. He explained that
"extraction" is a mining term, and includes "extracting a
particular constituent in preference over other," or "a mining
process in which you're separating one material from another,
from a host." "Extraction," on the other hand, takes place "when
the limestone, the principal purpose of the excavation is to
procure limestone" (Tr. 235-236).
Mr. Fulghum confirmed that the situs of the dam was
determined by the location of the Cerrillos River and the
topographical features of the location, which included several
varieties of limestone which is used in bulk to form the dam. He
stated that all of the limestone materials which are found at the
dam site are totally excavated, and there is no stripping of
overburden, and no selection process takes place. He further
confirmed that the excavated material goes through the plant in
its entirety to be used as dam embankment material, and that the
respondent is not interested in any mineralization, and that the
overriding criteria in the construction of dams is the particle
size stability of the material (Tr. 237-239).
Mr. Fulghum stated that the only stripping which takes place
is done to remove loose dirt and vegetable matter which causes
problems in the final product stability as it is used for the dam
construction. Referring to the dam spillway design
specifications, Mr. Fulghum made reference to "the blasting of
material excavated from the spillway to insure breakage of
fractured rock into stable particle sizes." He also stated that
the limestone rock can also be ripped with a D-9 ripper, and that
any materials used must meet the particle stability criteria for
an earth filled dam. He also stated that "a grizzly will be used
to process all rockfill and separate it into oversize rock,
3-inch to 20-inch rock and minus 3-inch rock sizes" (Tr. 240).
Mr. Fulghum stated that the respondent must follow the Corps
of Engineers instructions and criteria for the construction of
the dam, and he confirmed that previously excavated materials has
been stockpiled "to be run through our plant." Although the
spillway is the major source for the materials used to construct
the dam, other associated excavations are used to satisfy the
bulk and particle stability sizes for the dam (Tr. 242).
Mr. Fulghum further explained the dam construction criteria,
including the "stripping of intensely weathered rock from the
surface," and the blasting, excavation, and grizzling of other
rock materials (Tr. 242). He stated that materials excavated from
the spillway are processed through both of the plant facilities,
and while it changes form, "we make no selection process" (Tr.
243).
Mr. Fulghum further explained the criteria for processing
coarse filter fill, which he described as "crushed firm and/or
sound limestone," and he explained that the processed limestone
must meet the sieve analysis requirements established by the
Corps of Engineers contract specifications (Tr. 245). Mr. Fulghum
confirmed that all of the firm limestone rock excavated from the
spillway must be processed to maintain its particle stability at
the sizes in which a core filter or a fine filter is manufactured
(Tr. 246).
Mr. Fulghum stated that due to diminishing sources of
on-site limestone, the respondent found it necessary to bring in
additional materials from off-site. Aggregates such as sand,
quarter-inch, half-inch, three-quarter-inch, and 3-inch
aggregates is brought to the site, and used to produce concrete
for use in the construction of the dam (Tr. 247).
Mr. Fulghum characterized the respondent's plant as "a fill
processing plant" and denied that it was a "rock plant," although
"in all appearances, shapes and forms it looks like a rock plant"
(Tr. 247). He further explained as follows at (Tr. 248, 250):
The Corps of Engineers, finding that they're running
out of limestone rapidly and that two diamond drill
studies were not sufficient, says "We would like you to
go out to the local quarries and we want you to process
their product," and we went to local quarries and said,
"We would like to buy your three inch minus," which is
a common request of a quarry. "We want . . . ," and I .
. . , more than 50,000 yards, I can't remember the
specific amount. This material is brought on-site and
further processed by our filter plant which is also
called the terciary plant to make filter.
Once again, everything that goes in that plant, even
though it came from outside sources, when it goes into
that plant, there is no separation. What goes in the
end, comes out the back in one way or another.
Mr. Fulghum stated that the dam site consists of a spillway,
a rock plant, and the main dam embankment (Tr. 251). He contended
that the respondent is engaged in excavating and processing
limestone material which is incidental to the construction of the
dam, rather than the dam being incidental to the excavation and
processing activity (Tr. 252).
Mr. Fulghum confirmed that MSHA's position is that "because
our plant looks like a rock plant it is" (Tr. 254). He agreed
that the respondent is excavating the materials to construct the
dam, but before using the materials as part of the dam
construction, the materials are processed to meet the Corps of
Engineers specifications, and he stated further as follows at
(Tr. 255-258):
JUDGE KOUTRAS: The application seems to be here, at
least from MSHA's point of view, is that you're
excavating this material to build the dam, but before
you take it from pit to dam, you do something with it.
WITNESS: Yes, sir.
JUDGE KOUTRAS: And you do what you do to it, is you do
what the Corps of Engineers tells you to do with it.
You . . . , you subject it to some kind of a process to
get these specifications, don't you?
WITNESS: Yes, sir, but Your Honor, in the act itself
and in the . . . , the memorandums of understanding,
just because we're processing rock doesn't make us a
miner, doesn't make us a miller. There are exceptions
to that, Gypsum. Gypsum is milled at a plant in which
Gypsum board is fabricated. Is that a mill? No, they've
already found that that's not a mill, Your Honor.
We process material. Because we process material from
the earth does not necessarily mean that we're milling.
You could . . . , you could make that argument but I
think we have to rely on the definitions as we have
them before us.
* * * * * * *
JUDGE KOUTRAS: But then when you look over here at
milling it's clearly said that MSHA has authority if
following, there is a list of general definitions of
milling, to which MSHA has authority to regulate, and
it says "crushing, sizing," among other things.
WITNESS: Your Honor, we would agree that in order to
mill something you must do one of those processes.
JUDGE KOUTRAS: Don't you crush and size?
WITNESS: You crush, size, wash, float, center,
benification, solvent extraction, retorting, those are
all milling processes, Your Honor. But there's one
essential element to milling, milling by technical and
legal definition, Your Honor.
JUDGE KOUTRAS: It's what?
WITNESS: You must be separating something valuable from
something that's not valuable, and we do not do that.
JUDGE KOUTRAS: But . . . ,
WITNESS: Isn't that what it says, Your Honor? Isn't it
essential . . .
JUDGE KOUTRAS: What do you mean of value? You know,
when you do . . . , when you get a specification that
says that the rock for rockfill shall be rock well
graded from 100 percent passing a 20-inch-square screen
to not more than 5 percent passing a 3-inch screen,
aren't you . . . , isn't that the value that you . . .
, isn't that what you're getting out of it? You're just
not up there ripping stuff out of the earth and piling
it against the dam, you're doing something to that
under these specifics . . . .
WITNESS: We're screening and sizing, Your Honor.
JUDGE KOUTRAS: That's what I'm saying. Does this . . .
WITNESS: But screening and sizing is a . . . , is a
milling operation.
JUDGE KOUTRAS: Then if it's a milling operation,
according to this, it's subject to MSHA's jurisdiction?
WITNESS: No, but that . . . , just because this milling
does . . . , just because there's sizing it does not
make it a milling operation. Just because you're
grinding it doesn't make it a milling operation. Those
are elements that are required to be a mill. But, if I
could refer and the best definition, I totally concur
with the definition in the inter-agency agreement,
which I don't have the Federal Register copy, but
"milling is the art of treating the crude crust of the
earth to produce therefrom a primary consumer
derivative. The essential operation in all such
processes is a separation of one or more valuable
considered constituents of the crude from the undesired
contaminants from which it is associated."
Referring to topographical photographs of the dam
facilities, Mr. Fulghum identified the location of the "rock
plant" used for the processing of dam embankment material, and
the "terciary plant" used to produce dam filer material, and he
confirmed that these are the two plants described by Inspector
Torres during his testimony (Tr. 260-261). He confirmed that the
excavated materials which are "run through our processing
facility" end up in the dam, and that the processed rock is
further processed when it is crushed further by passing through a 45-ton
vibratory roller in order to insure stable particle size (Tr.
262).
In response to his interpretation as to what constitutes
milling and mining under the Act, and the definition of the term
"mill" as found in 30 C.F.R. § 56.2, Mr. Fulghum responded as
follows at (Tr. 264-266):
JUDGE KOUTRAS: Well, let me ask you this, if you look
at Section 56.2 of the regulations, you know, in Title
30, the definition of a mill here, that's all on page
305, Mr. Irizarry, I see you've got the green book,
it's 56.2.
WITNESS: Uhum?
JUDGE KOUTRAS: 56.2, definitions, I'll give you a
minute to find "milling."
WITNESS: I think I need this. Thank you. Definitions,
yes Your Honor?
JUDGE KOUTRAS: Yes, look up a mill.
WITNESS: Includes any ore mill . . .
JUDGE KOUTRAS: Yes, let me highlight this for you,
"Mill includes any crushing, grinding or screening
plant used in connection with excavation." Let's skip
all the other words. "Mill includes any crushing,
grinding or screening plant used in connection with an
excavation."
WITNESS: OK, Your Honor.
JUDGE KOUTRAS: Is that . . . , does that fit anything
that you're doing?
WITNESS: That would fit anybody subject to this Act,
yes, Your Honor.
JUDGE KOUTRAS: Would it fit what you're doing at the .
. . , leave the question of being subject. You have a
screening plant, don't you?
WITNESS: Yes, Your Honor.
JUDGE KOUTRAS: You have a crushing plant, don't you?
WITNESS: Yes, Your Honor.
JUDGE KOUTRAS: And you . . . , you have an excavation going on,
don't you?
WITNESS: Yes, Your Honor.
JUDGE KOUTRAS: Does that fit the definition of mill?
WITNESS: As I'm reading . . . .
JUDGE KOUTRAS: In and of itself?
WITNESS: As I'm reading it from here, yes Your Honor.
But this is not a complete definition, no. For miller.
JUDGE KOUTRAS: But it's a definition, it's in 56.2?
WITNESS: It is a definition, that's contained in 56.2,
yes Your Honor.
JUDGE KOUTRAS: OK.
WITNESS: I don't believe it's applicable.
JUDGE KOUTRAS: OK.
WITNESS: But we do . . . , we do have the same
characteristic similarities which we don't deny.
Mr. Fulghum took the position that the respondent does not
extract minerals, but is simply excavating rock (Tr. 267). In his
opinion, the respondent's dam construction site is not a mine,
and the respondent has never developed a mine and has no
intentions of doing so (Tr. 268).
Mr. Fulghum characterized the respondent as a "worldwide
recognized constructor of dams," and he alluded to an analogous
dam construction project at the respondent's Warm Springs Dam
project which is located within the enforcement jurisdiction of
MSHA's Alameda, California Field Office. He also alluded to
several other dam projects where the respondent excavated similar
materials used in dam construction, and stated that when
inquiries were made of MSHA with respect to its jurisdiction over
these activities, no responses were forthcoming (Tr. 269).
Mr. Fulghum stated that the CAL-OSHA Office has issued
citations at the aforementioned dam projects, but that MSHA has
never inspected those sites or recognized those operations as
mines or milling operations (Tr. 270). Mr. Fulghum was of the
opinion that the language contained in the April 17, 1989,
MSHA-OSHA Agreement excludes the respondent's Cerrillos Dam
Construction activities from coverage under the Mine Act (Tr.
271). He believes that the definition of milling, and MSHA's
authority with respect to milling operations, as discussed in the
memorandum, are general definitions, but conceded that "sizing
and crushing" does define a milling process which is subject to
MSHA's jurisdiction (Tr. 275).
Mr. Fulghum confirmed that the dam spillway is part of the
dam, and that a "spillway" is a "water diversion" within the
meaning of the October 23, 1986, MSHA Memorandum clarifying "key
cuts and dam construction" (Tr. 276). He stated that a "key cut"
of a dam is an excavation that's necessarily a component of the
dam (Tr. 276).
Mr. Fulghum confirmed that the respondent's dam construction
operations have been inspected by the local Puerto Rico OSHA
Office, which has issued citations. Copies of some of these
citations were received for the record, and Mr. Fulghum reviewed
and explained them (Tr. 283-289; exhibits R-2 and R-3).
Mr. Fulghum testified with respect to the guarding citations
issued pursuant to mandatory standard section 56.14001, Citation
Nos. 2558999 through 2559007, September 1, 1987, and he confirmed
that they were discussed with Inspector Torres during his
inspection closing conference. Mr. Fulghum took the position that
it was necessary to remove the equipment guards in order to do
maintenance work on the equipment. He explained that the
respondent's operation at the dam project was a 7-day a week,
24-hour a day operation, and that production ceases at given
times in order to perform maintenance. He took the position that
the cited standard only applies when there are moving machine
parts which may be contacted and subsequently lead to an injury
(Tr. 292-293).
Mr. Fulghum stated that the equipment guards require
fabrication and repairs at the shop facility, and once the plant
was locked out and shutdown for regular scheduled maintenance,
the guards were "removed and improved upon." He stated that he
explained this to Inspector Torres and that he responded "if it's
not there, regardless, it's a citation" (Tr. 294).
Mr. Fulghum was of the opinion that the cited guards could
be removed, and that pursuant to section 56.14006, guards are
required to be in place while the equipment is running, unless
they are removed to test the equipment. He also pointed out that
in order to stay in compliance with section 56.14007, which
requires that guards be substantially constructed and maintained,
the most common and expeditious manner of doing this is to remove
them during the shutdown procedure (Tr. 294-295). Mr. Fulghum
further pointed out that the respondent complied with section
56.14029, and that at the time Mr. Torres observed that the
guards were missing from the equipment, the power was off and no
moving machine parts existed since the equipment was not in fact
moving (Tr. 296).
Mr. Fulghum confirmed that the respondent had an established
equipment lock-out and tag-out procedure in effect at the time
the citations were issued, and that pursuant to the contractual
stipulations with the Corps of Engineers, it has submitted Job
Hazard Analysis reports for the rock, terciary, and test plants
(Tr. 296-298).
Mr. Fulghum confirmed that there is a scheduled time period
for equipment maintenance, and that at the time of the inspection
by Mr. Torres, the plant was not in operation and was down for
maintenance. He confirmed that the production shift began at
11:30 a.m., and that when Mr. Torres was there at 8:00 to 8:30
a.m., everything was shutdown, and it had been shutdown since
4:00 a.m. (Tr. 299-300).
Mr. Fulghum stated that the missing guards were in the shop
for repairs at the time Mr. Torres inspected the plant, and that
the shift superintendent informed him that they were replaced at
11:30 a.m. He was also informed that they were removed that same
morning and reinstalled, and that Mr. Tabor explained this to
Inspector Torres during the closing conference (Tr. 300-302). Mr.
Fulghum stated that if Mr. Torres had returned at 11:00 a.m.,
when the plant was in production, he would have seen that the
guards were replaced (Tr. 305).
With regard to the walkway Citation No. 2859000, Mr. Fulghum
stated that Mr. Tabor informed him during the closing conference
that the three individuals exposed to the hazard were employees
of MES Services, and not rock plant or terciary plant employees.
Mr. Fulghum confirmed that he was not present when the citation
was issued and that the cited walkway or platform was part of the
Number 3 feeder which is part of the respondent's plant (Tr.
306). Mr. Fulghum did not deny that persons were on the walkway
or platform, nor did he deny that it was unguarded (Tr. 308).
With regard to Citation No. 2859002, concerning the lack of
handrail's on the No. 6 feeder platform, Mr. Fulghum did not deny
that it lacked handrails, and he pointed out that the area was
not used on a regular basis. He also pointed out that a gate
which had been provided at the cited location was removed because
the material would not pass through the plant as quickly as
required and that he removed the gate and separated it, and could
not find it (Tr. 311).
With regard to the broken conveyor emergency stop cord
Citation No. 2859004, Mr. Fulghum conceded that the cord was
broken, but he pointed out that the plant was locked down and
that in the course of routine maintenance someone would have
found the condition and repaired the cord before production was
started. Mr. Fulghum stated that Mr. Tabor informed him that he
knew about the broken cord and that it was repaired before
production began (Tr. 312).
With regard to the safety shoes Citation No. 2859007, Mr.
Fulghum stated that the respondent provides steel protective
footwear to its employees at no cost, and that adequate supplies
of "dock stoppers" which slip over the feet to protect them in
the toe and metatarsal areas are also available for the
employees. Mr. Fulghum believed that the cited standard does not
require steel toe caps, and that leather boots are "suitable
footwear" within the meaning of the standard (Tr. 318).
Mr. Fulghum conceded that some employees do not always wear
steel toed boots because they work in the field and are not
always assigned to the plant, but he reiterated that employees
are supplied with "dock stoppers" and that the respondent
subsidizes the purchase of steel toed shoes for its employees
(Tr. 319).
Mr. Fulghum stated that the respondent has a strict and
aggressive safety and loss control program, and that it complies
with all MSHA, OSHA, MSCE, NFPA, and Corp of Engineers Safety
requirements (Tr. 324-325). He also confirmed that the respondent
complies with the annual training and retraining requirements of
the law (Tr. 327).
On cross-examination, Mr. Fulghum stated that one of the
criteria used for the selection of the location of the dam in
question was the availability of the limestone materials that
were present in that location (Tr. 331, 335). He confirmed that
there are several excavation areas at the dam site, and that all
of the excavated materials that are suitable and meet the dam
construction criteria are used in the construction of the dam
(Tr. 340). Some of the excavated materials which may not be
suitable for the construction of the dam are used in other areas,
such as access roads, and large boulders and oversized materials
are stockpiled as riprap (Tr. 343).
Mr. Fulghum described the materials used for the
construction of the dam as "highly altered fibroplastic metal,
semimetal, marine metisetal," commonly referred to as limestone,
siltstone, fractured limestone, and hard and soft dirt and rock.
He confirmed that all of these materials, with the exception of
clay core and riprap, is processed in either the primary or
secondary rock plant. As a general rule, all of the material is
processed through the primary plant, and he described the nature
of the process as follows (Tr. 348-350):
Q. What determines whether something is sent to the
primary plant as opposed to the secondary plant?
A. Everything goes through the primary plant, with the
exception of the material I've mentioned earlier, that
we brought in from outside. Everything has to go
through the rock plant.
Q. OK. And does it all start at the primary plant or is
some of it only processed at the secondary plant?
A. I believe they all go through the primary plant.
There may be exceptions, but as a general rule they all
go through the primary plant.
Q. And in the primary plant, what is the nature of the
process?
A. The material is . . . , is taken from the designated
spillway excavation, it's brought down in triple seven,
hauled in trucks, down hydraulic drove, they reverse
into a dump station which contains a radio gate and
grizzler. There is a feed apron, with grizzlies and
oversized material that's too large to handle is
crushed at the general crusher. This material then goes
to a screening court where it's segregated according to
size, in different sizes.
The product of the screening decks are basically drove
through and some oversized returns to a cone crusher,
back up to the screening deck to get the right
proportion of the sizes together to make a dam. It then
leaves that area and it goes along the product belts.
Two of the products really have nothing done, the rock
product, the 20-inch product, it comes . . . , as soon
as it comes off the grizzly and goes through the first
selection, it's sent out into a dump pile as a rock
zone. The second is a product called transition and
that's just everything else in between. But it is
screened and it is crushed. But not to the
specifications of a normal aggregate.
Q. Not to what?
A. The specifications of a normal aggregate.
Q. OK.
A. In fact, you couldn't sell this aggregate to anybody
as an aggregate or in its current form.
Q. And after these materials come out of the primary
plant, is there any further processing or are they
eventually used . . . .
A. No, sir, those are in place materials.
Q. So they . . . , they come out . . . .
A. Well, they do have another process which affects the
size, it's anticipatory in the design engineer's mind
that one of the criteria is not only the particular
size, but they have to have a pack, in other words, we
take big rollers to make sure that they meet maximum
density and there is an anticipated further crushing
action by these large rollers that roll back that is
also taken in the design criteria. So that would be the
last of the process, it's when it's rolled in place on
the embankment. But other than that, as far as going
through the plant, those two products, transition and
rock, come right off the plant. And the stockpiles,
these stockpiles you see around the photographs are
that rock.
Q. OK and what is the end product used for?
A. The end product is used for embankment material on
the dam.
Mr. Fulghum described the process which takes place at the
secondary crusher or rock plant as follows (Tr. 350-352):
Q. In terms of the secondary crusher or rock plant,
what process is performed there?
A. That takes material either out of the transition
stockpile and as I said in the past, well, it would be
the same process. We had to reset our entire plant.
Well, let's . . . , let me take it one step at a time.
Let us assume that it comes from the excavations that
are required on the project, that material will be
taken out of the transition stockpile. It would go into
a feed hopper with the primary feed. Then it goes
through a screen deck, a wet screen deck. And this is
filtered, it has to be free of all dirt.
It goes through the screen deck and the product comes
out and it goes through I believe two giratory crushers
there. We also have a large hydrocone there. These
break it down into particle sizes and the proportions
of the particles we need to make in the filter blanket.
They then go up into a replane, to a second screen deck
which, most of this . . . , this is not the original
plant, but as the plant is being modified in its
current state, to match the material, we now have the
screen deck with the second screen plane that goes out.
Currently and I doubt if it's completed today, we also have the
third process in which to break it down into size and where we're
going to use a hammerlock, an impact, an impact crusher is what
you call it. That product is either refined or coarse. The coarse
goes to the coarse filter, the fine goes to the fine filter.
Q. And in terms of the product that is processed in the
secondary plant, what is that used for?
A. That is the product, sir, that is the filter.
Q. For the filter?
A. Yes, sir.
Q. What is a filter?
A. In order for a dam to maintain a stability, it has
to have someway for the water to relieve itself without
becoming a massive herd as I mentioned earlier in the
morning. * * * We put the clay down and the filter lays
against the clay in order that we don't get a massive
saturation in which the rock fill dam cannot drain as
quick as the water level comes down and that's the
function of the filer, sir.
Mr. Fulghum confirmed that the respondent purchased
limestone aggregate from outside sources, and that it was
processed through the filer plant. He also confirmed that
aggregate, sand, and cement was purchased and used to batch or
make concrete in the batch plant (Tr. 353-355). The only outside
purchased material processed in the primary or secondary plant
was the 3-inch minus product used in a pilot test program
processed for the Corps of Engineers (Tr. 356).
Mr. Fulghum confirmed that the prior OSHA inspection's
resulted from employee complaints and two fatalities which
occurred at the dam embankment, and he had no knowledge as to
whether or not OSHA inspected the project as part of any general
inspection (Tr. 358-360).
Mr. Fulghum confirmed that all of the equipment used in the
rock plant facilities originated from sources outside of Puerto
Rico, and that it was brought in from the Warm Springs Dam
located near San Luis, California (Tr. 361).
Mr. Fulghum stated that he was not present at the project on
August 31, 1987, during the first inspection conducted by Mr.
Torres (Tr. 362). He was present late in the evening of September
1, 1987, but had no direct knowledge of any statements
that Mr. Tabor may have made to Mr. Torres with respect to his
inspection (Tr. 363). He also confirmed that he had no personal
knowledge concerning the missing guards cited on August 31 or
September 1, and that records concerning guards removed for
maintenance are not made because "we do it every day." He assumed
that the plant or lead foreman would have knowledge of those
matters (Tr. 370).
Mr. Fulghum confirmed that he had no personal knowledge that
the guards which were removed and not in place on September 1,
were replaced before the plant went into production at 11:00
a.m., or 11:30 a.m., and that his knowledge of this was based on
what he was told by Mr. Tabor and Mr. Johansson (Tr. 374-375).
However, Mr. Fulghum stated that he saw the guards in place later
in the evening at approximately 5:00 p.m. when the plant was in
operation (Tr. 376).
Mr. Fulghum stated that the employees cited for not wearing
suitable protective footwear were engaged in shovelling and
cleaning up under the plant screen tower, and that the only type
of "sneaker" that an employee may wear is one that has steel
shank inserts (Tr. 376, 380).
Mr. Fulghum stated that the rock plants are mobile, and he
described their locations at this project site by reference to
certain photographs (Tr. 394-396).
Inspector Torres was recalled as the court's witness, and he
denied that Mr. Tabor ever informed him on August 31 or September
1, 1987, that the cited guards had been removed from the
equipment to be repaired. He also stated that with respect to two
of the guarding citations, Mr. Tabor informed him that the guards
had been on the equipment but were removed, but that he did not
offer any reason for their removal (Tr. 399-400).
Mr. Torres confirmed that even if Mr. Tabor had informed him
that the equipment was locked out and the guards removed for
maintenance, he would still have issued the citations because
there would have been insufficient time to replace all of the
cited guards before the plant went into production (Tr. 400-401).
With regard to the safety shoe citation, Mr. Torres
confirmed that he simply observed one employee wearing ordinary
tennis shoes and did not speak to him or examine the shoes. Mr.
Torres confirmed that the employee was cleaning material from
under the screening station and he was concerned that 4 or 5 inch
rock materials would fall from the upper levels of the plant, and
if he were a maintenance employee, a heavy tool could fall on his
foot. Mr. Torres also confirmed that the cleaning took place
while the equipment was shutdown (Tr. 401-403).
Mr. Torres confirmed that according to his interpretation of the
safety shoe standard, all employees working in the plant need to
wear safety shoes, and that according to his inspector's manual,
safety shoes are considered to be hard-toe shoes.
Mr. Torres stated that if anyone had informed him that the
guards had been replaced prior to leaving the plant site at 2:00
p.m., on September 1, he would have gone back and checked them
and terminated the citations. He stated further that the
replacement of the guards was only mentioned during the close-out
conference (Tr. 407). He also confirmed that Mr. Fulghum never
informed him that the guards had been removed for maintenance or
repairs, but that Mr. Tabor informed him that this was the case
at the end of the close-out conference (Tr. 412-413).
An MSHA Mine Identification Form filed by the respondent's
project manager Lars Johansson on February 19, 1986, contains the
following information (Exhibit ALJ-2):
1. The assigned MSHA Mine ID for the respondent's
Cerrillos Dam Project is shown as 54-00289, and the
facility is identified as a "Rock Quarry-Surface."
2. The mine location address is shown as Dillingham
Construction, Inc., P.O. Box 7430, Ponce, Puerto Rico
00732.
3. The respondent's corporate name is shown as
Dillingham Construction International, Inc., a State of
Nevada Corporation.
4. The corporation identified in item #3 above is
identified as a subsidiary of Dillingham Construction
Corporation, 7100 Johnson Drive, Pleasaton, California
94565, the parent corporation.
A copy of an MSHA computerized "Mine Inspection and
Violation History" for the period January, 1986 through October,
1987, reflects the following information:
1. The Cerrillos Dam Project is identified as a "Sand &
Grav" operation employing 36 individuals.
2. Two "regular" MSHA inspections were conducted at the
facility during the periods August 31 to September 2,
1987, and February 9, 1987 to February 10, 1987.
One MSHA compliance (CFI) inspection was conducted on
June 29, 1987.
One MSHA "Compliance Assistance visit" (CAV)
inspection was conducted during the period November 3
to November 4, 1986.
3. During the period November 3, 1986, through
September 1, 1987, the respondent was issued a total of
52 citations for alleged violations of various
mandatory safety and health standards found in Part 56,
Title 30, Code of Federal Regulations.
Twenty-eight (28) of the total violations noted were
issued during a CAV inspection conducted on November 3
and 4, 1986.
Fifteen (15) of the total violations noted were issued
during a regular inspection conducted on February 9 and
10, 1987.
Nine (9) of the total violations noted were issued
during a regular inspection conducted on September 1,
1987, and they are the contested citations in issue in
the instant proceedings.
Findings and Conclusions
The Jurisdictional Question
Section 4 of the 1977 Mine Act, 30 U.S.C. 803, provides
that "Each coal or other mine, the products of which enter
commerce, or the operations or products of which affect commerce
. . . shall be subject to the provisions of this Act."
Section 3(h)(1) of the Act, 30 U.S.C. 802(h)(1)(c),
defines "coal or other mine" in pertinent part as "an area of
land from which minerals are extracted . . . and lands,
excavations, . . . facilities, equipment, machines, . . . used
in, or to be used in, the milling of such minerals . . . . "
The definition of "coal or other mine" is further clarified
by the Legislative History of the Act. The Senate Report No.
95-181 (May 16, 1977) provides that:
Finally, the structures on the surface to be used in or
resulting from the preparation of the extracted
minerals are included in the definition of "mine." . .
. [B]ut it is the Committee's intention that what is
considered to be a mine and to be regulated under the
Act be given the broadest possibly (sic)
interpretation, and it is the intent of this Committee
that doubts be resolved in favor of inclusion of a
facility within the coverage of the Act.
S. Rep, No. 181, 95th Cong., 1st Sess. 602, reprinted in [1977]
U.S. CODE CONG. 7 ADMIN. NEWS 3401, 3414.
MSHA's Part 56 mandatory safety and health standards for
surface metal or nonmetal mines, define the term "Mill" as
including, inter alia, "any crushing, grinding, or screening
plant used at, and in connection with, an excavation or mine."
The term "mill" is defined by the Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968, in pertinent part as follows at page 706:
[T]he whole mineral treatment plant in which crushing,
wet grinding, and further treatment of the ore is
conducted.
In mineral processing, one machine, or a group, used in
comminution. This older limitation of the term has
today been broadened to cover the whole mineral
treatment plant in which crushing, wet grinding, and
further treatment of the ore is conducted. By common
usage, any establishment for reducing ores by other
means than smelting. More strictly, a place or a
machine in which ore or rock is crushed.
The term "milling" is defined in part at page 707 as "The
grinding or crushing of ore. The term may include the operation
of removing valueless or harmful constituents and preparation for
market."
The thrust of the respondent's jurisdictional argument, as
expressed through the testimony of its Project Safety Engineer,
Gerald Fulghum, is that it "excavates" limestone and siltstone
materials and does not engage in an "extraction" of these
materials, or in any activities associated with the extraction of
such materials. The respondent further relies on Mr. Fulghum's
assertion that the term "milling" involves the separation of a
valuable ore from undesirable contaminants, and that since the
respondent performs no such separation, it cannot be considered
to be engaged in a milling operation. In support of his
arguments, Mr. Fulghum relies on an MSHA/OSHA Interagency
Agreement, published in the Federal Register on April 17, 1979,
44 Fed. Reg. 22827-22830 (Exhibit ALJ-1), and in particular, the
definitions of "Mining and Milling" found in Appendix A to the
agreement, at page 22828, which defines these terms as follows:
Mining has been defined as the science, technique, and
business of mineral discovery and exploitation. It
entails such work as directed to the severence of
minerals from the natural deposits by methods of
underground excavations, opencast work, quarrying,
hydraulicking and alluvial dredging. Minerals so
excavated usually require upgrading processes to effect
a separation of the valuable minerals from the gangue
constituents of the material mined. This latter
process is usually termed "milling" and is made up of
numerous procedures which are accomplished with and
through many types of equipment and techniques.
Milling is the art of treating the crude crust of the
earth to produce therefrom the primary consumer
derivatives. The essential operation in all such
processes is separation of one or more valuable desired
constituents of the crude from the undesired
contaminants with which it is associated.
The respondent further argues that its principal business is
that of dam construction, and that it is not engaged in the
normal business of mining as a means of selling any of its
excavated materials on the open market. Respondent maintains that
the processing of any excavated limestone is incidental to its
dam construction activities, and it suggests that if jurisdiction
attaches under the Act, the enforcement of its activities should
lie with OSHA, and not with MSHA. In support of this argument,
the respondent relies on MSHA Policy Memorandum No. 88-2M, dated
October 23, 1986, which "clarified" the MSHA/OSHA Agreement, and
it states in pertinent part as follows (Exhibit ALJ-1):
Recently, several inquiries regarding questions of
jurisdiction indicate the apparent need to further
clarify the Interagency Agreement between the Mine
Safety and Health Administration (MSHA) and
Occupational Safety and Health Administration (OSHA).
Especially of concern are those areas in which a
mineral is extracted for purposes other than its
intrinsic value as a commodity. The operations listed
below delineate some of these types of facilities but
are not limited to the following:
(a) key cuts in dam construction (not on mining
property or used in mining);
* * * * * * *
The question of jurisdiction in these and similar types
of operations is contingent on the purpose and intent
for which the facility is being developed. The mineral
extracted incidental to the primary purpose of the
activity may be processed and disposed of however the
operator may choose. At these types of operations, MSHA
would not have jurisdiction since they would not be
functioning solely for the purpose of producing a
mineral.
The respondent further relies on an MSHA Program Policy Manual
provision published on July 1, 1988, Release I-1, Volume I,
Section 4, page 3, concerning the MSHA/OSHA Agreement, which
states in pertinent part as follows:
MSHA and OSHA have entered into an agreement to
delineate certain areas of inspection responsibility,
to provide a procedure for determining general
jurisdictional questions, and to provide for
coordination between the two agencies in areas of
mutual interest. MSHA has jurisdiction over operations
whose purpose is to extract or to produce a mineral.
MSHA does not have jurisdiction where a mineral is
extracted incidental to the primary purpose of the
activity. Under this circumstance, a mineral may be
processed and disposed of, and MSHA will not have
jurisdiction since the company is not functioning for
the purpose of producing a mineral. Operations not
functioning for the purpose of producing a mineral
include, but are not limited to, the following:
1. Key cuts in dam construction (not on mining
property or used in mining);
* * * * * * *
The question of jurisdiction in these and similar types
of operations is contingent on the purpose and intent
for which the facility is being developed.
Finally, the respondent asserts that its dam project in
Ponce, Puerto Rico, is within the jurisdiction of the local
Puerto Rico Occupational Safety and Health Administration which
has exercised its mandate for the health and safety oversight of
the respondent's employees under rules and regulations
promulgated by the OSHA Act of 1970, and that neither MSHA or the
Commission has jurisdiction in these matters.
In Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d
589 (3d Cir. 1979), cert. denied, No. 79-614 (January 7, 1980),
the State of Pennsylvania dredged a river and deposited the
material into a nearby basin. The operator purchased this
material, and through the use of a front-end loader and conveyor
belts transported the material to its plant where, through a
sink-and-float process, a low-grade fuel was separated from the
sand and gravel. The court held that the operator was engaged in
the preparation of minerals within the jurisdiction of the Mine
Act, and that the work of preparing minerals is included with the
Act whether or not extraction is also being performed by the
operator. The court stated as follows at 602 F.2d 592:
Although it may seem incongruous to apply the
label "mine" to the kind of plant operated by Stoudt's
Ferry, the statute makes clear that the concept that
was to be conveyed by the word is much more encompass-
ing than the usual meaning attributed to it--the word
means what the statute says it means.
Donovan v. Carolina Stalite Company, 734 F.2d 1547 (Ct. App.
D.C. Cir.), decided May 15, 1984, concerned a slate gravel
processing facility operated by Stalite adjacent to a stone
quarry independently owned and operated by another company.
Approximately 30 percent of the stone quarried at this operation
was delivered to Stalite by a conveyor system, and Stalite
"bloated" the slate in a rotary kiln with intense heat, and
produced a light-weight material called "stalite" which was
crushed and sized and sold to be used in making concrete masonry
blocks. Addressing the question as to whether Stalite was engaged
in mineral milling and preparation, subjecting it to MSHA
jurisdiction, or whether its operation was "primarily
manufacturing in nature," subjecting it to OSHA jurisdiction, a
Commission Judge found that Stalite was engaged in milling
subject to MSHA's jurisdiction. In view of the fact that mineral
milling and preparation are not specifically covered in the Act,
the judge relied on three of the specific examples found in
Appendix A to the interagency agreement - heat expansion,
crushing, and sizing--in concluding that Stalite was engaged in
milling subject to MSHA's jurisdiction.
On appeal of the judge's decision, the Commission took a
narrow view of the term "milling" to include only facilities that
engage in the "extraction, milling, and preparation of minerals,"
and concluded that Stalite did not engage in mining "in its
classic sense." Relying on the fact that Stalite did not do the
actual extraction of the slate and that its only contact with the
mineral occurred after it had been extracted and crushed at the
quarry, the Commission considered Stalite's treatment of the
mineral to be "a manufacturing process" that results in a
product, rather than a "milling" process under the Act, and
reversed the judge's decision. The Commission gave no weight to
the judge's reliance on the interagency agreement, and ruled that
the question of MSHA's regulatory authority is to be determined
by the scope of the Mine Act's coverage, and not by the
agreement.
The court reversed the Commission, and relying on the
statutory definition of a mine and the legislative history of the
Act reflecting an intent by Congress that the Act be broadly
construed, it held that Stalite was subject to the Act. Although
agreeing that the interagency agreement "suffers from a degree of
internal inconsistency," the court found the examples of milling
processes detailed in the agreement to be of particular
relevance, 734, F.2d 1552-1553. The court also took note of the
agreement by other circuit courts with its interpretation of the
Act, and the "sweeping definition" of the definition of a mine
found in section 3(h) of the Act. Marshall v. Stoudt's Ferry
Preparation Co., supra; Cyprus Industrial Minerals Co. v. FMSHRC,
664 F.2d 1116 (9th Cir. 1981); Harman Mining Corp. v. FMSHRC, 671
F.2d 794 (4th Cir. 1981).
Erie Blacktop, Inc., 3 FMSHRC 135 (January 1981), concerned
an operator who was engaged in a road paving and blacktopping
operation which was not subject to MSHA's enforcement
jurisdiction. However, the operator simultaneously utilized
front-end loaders, a secondary crusher, and other equipment while
engaged in a limestone mining operation which mined, crushed, and
processed limestone, some of which was sold to and used by the
Corps of Engineers for certain lake erosion projects, as well as
for road and paving projects. I found that the respondent's
limestone operation constituted a mining operation subject to the
Act, as well as to MSHA's enforcement jurisdiction and the
mandatory safety and health standards found in Part 56 of Title
30, Code of Federal Regulations.
San Juan Cement Company, Inc., 2 FMSHRC 2602 (September
1980), concerned an open pit limestone quarry which extracted
limestone for use in the production of cement. The limestone was
crushed to produce a finely ground power used in the finished
product, and the judge held that this was a crushed stone
operation subject to the requirements of Part 56 of Title 30,
Code of Federal Regulations.
Nevada Mineral Processing, Docket No. WEST 88-273-M, decided
by Judge Lasher on May 24, 1989, concerned a small gold and
silver milling operation which did not extract the minerals, but
did process and assay them using conveyors, a crusher, and a
pulverizer. Judge Lasher concluded that the facilities and
equipment were used in the work or milling or preparing the
minerals, and that the operation clearly fell within the
definition of a mine found in section 3(h)(1) of the Act, and was
subject to the standards found in 30 C.F.R., Part 56.
In National Cement Company, Inc., 3 FMSHRC 1951 (August
1981), I rejected an operator's contentions that it was not
operating a "mine" within the meaning of the Act, or conducting a
"milling operation" within MSHA's jurisdiction. The plant in
question was located 7 miles from a quarry where limestone was
mined and transported by trucks to the plant for screening and
crushing. Another quarry located closer to the plant supplied
limestone by means of conveyor belts. I found that the plant
constituted a mining operation within the statutory definition
found in section 3(h)(1) of the Act, and I stated as follows at 3
FMSHRC:
It seems clear to me that the statutory definition
of a mine establishes that it was Congress' intent that
MSHA regulate any milling activity which is an integral
part of a mine, since mines fall within the specialized
jurisdiction of MSHA and since mine employees typically
operate such facilities. On the facts of this case, it
also seems amply clear to me that the respondent's
cement plant, even if it can be classified as a milling
operation, is still an integral part of its limestone
mining operation. Without the raw mineral material
(limestone) respondent could not produce cement.
Therefore, it seems further clear to me that respon-
dent's operations, whether they be characterized as a
crushed stone operation or a milling operation, are
both subject to the Act as well as to MSHA's enforce-
ment jurisdiction, and my conclusions in this regard
are based on the statutory aforementioned definition of
the term "mine" as well as the MSHA-OSHA memorandum of
understanding.
The facts in the instant proceedings establish that MSHA has
exercised its enforcement jurisdiction and authority over the
respondent's rock plants since November, 1986, when it first
visited the site at the respondent's invitation to conduct a CAV
consultation visit which resulted in the issuance of non-penalty
notices of violations. Regular inspections followed which
resulted in the issuance of several non-compliance violations.
All of these inspection activities have been limited to the
respondent's rock plants, and did not include the actual dam
construction work.
The local Puerto Rico OSHA (PROSHA) has also conducted
inspections at the worksite, but apparently only pursuant to
specific complaints. After the issuance of the contested
citations in these proceedings, respondent's safety engineer
Fulghum asserted that MSHA lacked jurisdiction over the rock
plants, and a subsequent meeting between MSHA and local PROSHA
representatives did not result in any agreement to consolidate
jurisdiction with one agency. I take note of the fact that
although the interagency agreement in question provides that
where questions of jurisdiction cannot be resolved at the local
level, they shall be submitted to the National Offices of the
agencies and, if still unresolved, to the Secretary of Labor, the
respondent has not sought such advise or rulings from these
National Offices, and raised the jurisdictional issue after the
inspection which resulted in the contested citations.
With regard to the interagency agreement, the respondent has
obviously seized on the definition of "milling" and has focused
on that definition to support its argument that it is not engaged
in a mining activity. However, respondent has conveniently
overlooked the fact that its limestone rock crushing and
processing activities fall precisely within the examples cited in
the agreement of identical mineral and mining operations which
MSHA has authority to regulate. The court in the Carolina Stalite
Company case, supra, found these examples to be of particular
relevance in finding that Stalite's activities were subject to
the Act and MSHA's regulatory authority.
The respondent's narrow view that milling is limited to the
separation of valuable ore from undesirable contaminants for its
intrinsic value for sale or use in the general market place is
rejected. I believe the term milling, as used in the Mine Act,
has a broader definition which is in keeping with the intent of
Congress that the Act be broadly construed with respect to any
regulatory enforcement, and that any jurisdictional doubts be
resolved in favor of including a facility within the coverage of
the Act. While it may be true that any typical milling operation
may involve some separation of the valuable ore from the
contaminants, I find no such requirement in the Act or MSHA's
regulatory standards, and I agree with the petitioner's argument
that the interagency agreement cannot supercede the language
found in the Act.
The respondent's reliance on the language found in the MSHA
policy manual of July 1, 1988, which states that MSHA has
jurisdiction only over operations whose purpose is to extract or
to produce a mineral, and does not have jurisdiction where a
mineral is extracted incidental to the primary purpose of the
activity is rejected. In the first place, such policy memorandums
are not binding on the Commission and may not supercede the plain
jurisdictional language found in the Act, and the controlling
case precedents. Brock v. Cathedral Bluffs Shale Oil Co., BNA 4
MSHC 1033 (D.C. Cir. 1986). Further, as correctly pointed out by
the petitioner, the limestone material extracted by the
respondent is extracted for its intrinsic value as a commodity,
and then processed and used in the construction of the dam (Tr.
279, brief, at pg. 9). Further, as noted earlier, the dam was
located at the site in question because of the availability of
the limestone, and when the on-site deposits were being depleted,
the respondent had to look to other sources to continue with the
project. In short, the availability, extraction, processing, and
use of the limestone is a critical part of the dam construction
activity.
The credible testimony and evidence reflects that the
location of the dam site was selected because of the projected
availability of calciferous rock, mostly limestone and siltstone,
which is desirable for producing coarse and fine filter material
for the dam embankment. The limestone is blasted and/or excavated
by a D-9 ripper from the dam spillway area and it is processed at
the primary and/or secondary rock plants where it is crushed,
screened, sized, and stockpiled for use in the dam
construction. The processing includes the sizing of the rock
materials to meet the rock size and stability criteria
established by the Corps of Engineers. While it is true that the
respondent does not extract any particular mineral from the
excavated rock, the excavated material which is processed at
these rock plants is used in some phase of the construction
project. Limestone materials purchased from nearby quarries are
bought on-site and are processed at the respondent's filter or
terciary plant, and they are also used for the project, including
the production of cement for use in the dam construction.
Inspector Torres confirmed that he has observed the
extraction and processing of limestone at the site, and that this
included the use of explosives, bulldozers, front-end loaders,
haulage trucks, grizzles, screens, and primary and secondary
crushers and conveyor belts. Inspector Perez confirmed that he
has observed materials being processed at the plant, and that it
included "washing, classifying, and grinding."
The respondent agrees that the term "Mill," as defined in 30
C.F.R. 56.2, includes the excavation of minerals, including
limestone, and any crushing, grinding, or screening plant used in
connection with such excavation, and concedes that its activities
have these same similarities and characteristics, and fall within
the definition of "Mill" as stated in section 56.2. The
respondent acknowledged that it engaged in excavation work, and
operates a screening and crushing plant that fall within this
definition (Tr. 265-266). It also conceded that the sizing and
crushing of limestone defines a milling process which is subject
to MSHA's jurisdiction (Tr. 275).
In view of the foregoing findings and conclusions, and after
careful consideration of all the arguments and evidence adduced
in these proceedings, I agree with the petitioner's position in
this case, and I conclude and find that the respondent's rock
processing plants constitute a "mine" within the meaning of
section 3(h)(1) of the Act, and that its facilities, equipment,
and machines in these plants are used for mineral milling within
the meaning of the Act and MSHA's definition of "mill" found in
30 C.F.R. § 56.2. I further conclude and find that MSHA has
inspection and enforcement jurisdiction and authority over these
rock processing activities. The respondent's arguments to the
contrary ARE REJECTED.
Interstate Commerce Issue
Section 4 of the Act provides as follows:
Each coal or other mine, the products of which enter
commerce, or the operations or products of which affect
commerce, and each operator of such mine and
every miner in such mine shall be subject to the
provisions of this Act.
"Commerce" is defined in section 3(b) of the Act as follows:
Trade, traffic, commerce, transportation or
communication among the several states, or between a
place in a state and any place outside thereof, or
within the District of Columbia, or a possession of the
United States, or between points within the same state
but through a point outside thereof.
The use of the phrase "which affects commerce" in Section 4
of the Act, indicates the intent of Congress to exercise the full
reach of its constitutional authority under the commerce clause.
See: Brennan v. OSHA, 492 F.2d 1027 (2nd Cir. 1974); U.S. v. Dye
Construction Co., 510 F.2d (10th Cir. 1975); Polish National
Alliance v. NLRB 332 U.S. 643 (1977); Godwin v. OSHRC, F.2d 1013
(9th Cir. 1976).
Perez v. United States, 402 U.S. 146 (1971), held that
Congress may make a finding as to what activity affects
interstate commerce, and by doing so it obviates the necessity
for demonstrating jurisdiction under the commerce clause in
individual cases. Thus, it is not necessary to prove that any
particular intrastate activity affects commerce if the activity
is included in a class of activities which Congress intended to
regulate because that class affects commerce.
Mining is among those classes of activities which are
covered by the Commerce Clause of the United States Constitution
and thus is among those classes which are subject to the broadest
reaches of Federal regulation because the activities affect
interstate commerce. Marshall v. Kraynak, 457 F. Supp. 907, (W.D.
Pa. 1978), aff'd, 604 F.2d 231 (3d Cir. 1979), cert. denied, 444
U.S. 1014 (1980). Further, the legislative history of the Act,
and court decisions, encourage a liberal reading of the
definition of a mine found in the Act in order to achieve the
Act's purpose of protecting the safety of miners. Westmoreland
Coal Company v. Federal Mine Safety and Health Review Commission,
606 F.2d 417 (4th Cir. 1979). See also: Godwin v. Occupational
Safety and Health Review commission, 540 F.2d 1012 (9th Cir.
1976), where the court held that unsafe working conditions of one
operation, even if in initial and preparatory stages, influences
all other operations similarly situated, and consequently affect
interstate commerce.
The courts have consistently held that mining activities
which may be conducted intrastate affect commerce sufficiently to
subject the mines to Federal control. See: Marshall v. Kilgore,
478 F. Supp. 4 (E.D. Tenn. 1979); Secretary of the Interior v.
Shingara, 418 F. Supp. 693 (M.D. Pa. 1976); Marshall v. Bosack,
463 F. Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission
judges have held that intrastate mining activities are covered by
the Act because they affect interstate commerce. See: Secretary
of Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December
1980); Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC
1424 (August 1983); Secretary of Labor v. Haviland Brothers Coal
Company, 3 FMSHRC 1574 (June 1981); Secretary of Labor v. Mellott
Trucking Company, 10 FMSHRC 409 (March 1988).
A state highway department operating an intrastate open pit
limestone mine, the product of which is crushed, broken and used
to maintain county roads was held to be subject to the Act. Ogle
County Highway Department, 1 FMSHRC 205 (January 1981).
A crushed stone mine operation that had an MSHA "Mine ID"
number and was inspected by MSHA was held to be subject to the
Act because the sales of rock products, as well as the use of
equipment manufactured out of state, affected commerce within the
meaning of the Act's jurisdictional language. Tide Creek Rock
Products, 4 FMSHRC 2241 (December 1982). See also: Southway
Construction Co., 6 FMSHRC 174 (January 1984).
A gravel mine operator conducting activities solely within a
state was held to be subject to the Act because its local mining
activity had an impact on interstate market. Rockite Gravel Co.,
2 FMSHRC 2543 (December 1980), Commission Review Denied January
13, 1981; Scoria Products Branch, Ultro, Inc., 6 FMSHRC 788
(March 1984); Southway Construction Co., supra.
N.Y.S. Department of Transportation, 2 FMSHRC 1749 (July
1980); Island County Highway Department, 2 FMSHRC 3227 (November
1980); and County of Ouray, Colorado, 9 FMSHRC 1205 (July 1987),
all held that products affect commerce where they have an
intrinsic value as a commodity which would have to be purchased
elsewhere if not produced by the operator.
In the instant case, Inspector torres confirmed that most of
the respondent's equipment, such as the Caterpillar haulage
trucks, and bulldozers, crushers, etc., were shipped to Puerto
Rico from the states (Tr. 165-166). Mr. Fulghum confirmed this
and stated that all of the equipment used at the rock plant
facilities in question originated from sources outside of Puerto
Rico and was brought in from another dam site located in
California (Tr. 361). He also confirmed that the respondent's
parent company, Dillingham Construction International, is a
Nevada Corporation, that the Cerrillos Dam Project is one
conducted by Dillingham Construction, a Delaware Corporation, and
that Dillingham North America, which has constructed dams in
California, is a California corporation (Tr. 219-220). Use of
equipment that has moved in interstate commerce affects commerce.
See United States v. Dye Construction Co., 510 F.2d 78 (10th Cir.
1975). In addition, although it may be true that the limestone
excavated and processed by the respondent at the dam site was
used intrastate, given the broad interpretation and coverage of
the Act as intended by Congress, and as construed by the courts,
it may reasonably be inferred that such use of the mined product
would necessarily impact upon interstate commerce. See Fry v.
United States, 421 U.S. 542, 547 (1975).
I conclude and find that the respondent's limestone rock
processing activities and plants, including the facilities,
equipment, and machines used in the processing of the limestone
for use in the construction of the dam, which I have concluded
constitutes a mining operation covered by the Act, affect
commerce within the meaning of the Act, and that the respondent
is within its reach.
Federal Pre-Emption
The respondent's assertion that since the enforcement of its
dam construction activities has been delegated to the local
Puerto Rico OSHA department, MSHA's regulation of these
activities at the site is improper, is rejected. The same
argument has been raised in cases in which Commission judges have
consistently held that state and federal OSHA statutes do not
preempt the 1977 Mine Act. See: Brubaker-Mann, Inc., 2 FMSHRC 227
(January 1980); Valley Rock and Sand Corporation, 4 FMSHRC 113
(January 1982); Black River Sand and Gravel, Inc., 4 FMSHRC 743
(April 1982); San Juan Cement Company, Inc., 2 FMSHRC 2602
(September 1980); Sierra Aggregate Co., 9 FMSHRC 426 (March
1987). I agree with these holdings, and take note of the fact
that section 506 of the 1977 Mine Act permits concurrent state
and federal regulation, and that under the federal supremacy
doctrine, a state statute is void to the extent that it conflicts
with a valid federal statute. Dixie Lee Ray v. Atlantic Richfield
Company, 435 U.S. 151, 55 L.Ed.2d 179 (1978); Bradley v. Belva
Coal Company, 4 FMSHRC 982, 986, (June 1982).
Fact of Violations
The respondent is charged with five violations of the
equipment guarding requirements of 30 C.F.R. § 56.14001, which
provides as follows:
Gears, sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan
inlets; and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury
to persons, shall be guarded.
In Secretary of Labor v. Thompson Brothers Coal Company,
Inc., 6 FMSHRC 2094, (September 24, 1984), a case involving the
guarding requirements of section 77.400(a), a surface mining
standard containing language identical to section 56.14001, Judge
Broderick rejected an operator's contention that it was virtually
impossible for a person not suicidally inclined to contact the
unguarded moving parts in question. In affirming the violation,
Judge Broderick accepted the testimony of the inspector that the
unguarded parts were accessible and might be contacted by persons
examining or working on the equipment. In affirming Judge
Broderick's decision, the Commission interpreted the application
of the guarding standard as follows at 6 FMSHRC 2097:
The standard requires the guarding of machine parts
only when they "may be contacted" and "may cause
injury." Use of the word "may" in these key phrases
introduces considerations of the likelihood of the
contact and injury, and requires us to give meaning to
the nature of the possibility intended. We find that
the most logical construction of the standard is that
it imports the concepts of reasonable possibility of
contact and injury, including contact stemming from
inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness. In related
contexts, we have emphasized that the constructions of
mandatory safety standards involving miners' behavior
cannot ignore the vagaries of human conduct. See, e.g.,
Great Western Electric, 5 FMSHRC 840, 842 (May 1983);
Lone Star Industries, Inc., 3 FMSHRC 2526, 2531
(November 1981). Applying this test requires taking
into consideration all relevant exposure and injury
variables, e.g., accessibility of the machine parts,
work areas, ingress and egress, work duties, and as
noted the vagaries of human conduct. Under this
approach, citations for inadequate guarding will be
resolved on a case-by-basis.
The reliable and probative unrebutted testimony of the
inspector establishes that guards were not provided or in place
on the cited equipment in question. With respect to four of the
citations, the inspector confirmed that maintenance is only
performed when the equipment is shutdown, and this obviously
served as the basis for his non-S&S findings as to those
citations. In my view, the fact that the equipment was not in
operation at the time of the inspection, or the fact that it is
shutdown when serviced, may serve to mitigate the gravity or
seriousness of the violation, but may not serve as an absolute
defense to the requirement of the standard that the equipment
components detailed therein be guarded. The intent of the
standard is that exposed moving machine parts which may be
contacted by persons in the normal course of mining activity and
in the normal course of their work duties in or around such
equipment be guarded to prevent contact, either inadvertently, or
from inattention or carelessness. As stated in the Thompson
Brothers case, any determination as to whether or not a
reasonable possibility of contact with unguarded machine parts will occur
must be considered in the context of the criteria stated in that
decision, including the fact that once normal plant production
operations begin, miners may be exposed to hazards resulting from
unguarded equipment.
With regard to the lack of guarding on the feeder motor
belts, the inspector stated that employees would be in the area
on a daily basis to clean spillage, and that at least one person
would be present for inspection once the plant started up. He
believed that anyone caught in the unguarded motor belts could
lose a finger or an arm, or suffer disabling injuries. Access was
provided to the plant third level primary screening station where
the unguarded equipment was located by means of a ladderway.
With regard to the unguarded conveyor belt counterweight
pulley, although it was located 20 to 25 feet above ground level,
the inspector confirmed that it was located next to a walkway and
that the unguarded area was approximately 8 inches from the
walkway. He stated that the walkway provided an access way to the
transfer point behind the pulley, and that employees would
regularly walk by the unguarded pulley. Given the size of the
pulley, and his past experience that accidents have occurred by
employees being caught by an unguarded pulley of this size, he
believed that anyone caught in the unguarded pulley in question
would suffer fatal injuries.
With respect to the unguarded belt tail pulley at the
secondary crusher plant, the inspector confirmed that it was
located approximately 1 foot from the floor level, and while a
guard had previously been provided, it had been removed and not
replaced. This pulley was about the same size as the previously
cited counterweight pulley, and the inspector believed that at
least one maintenance man would be exposed to the hazard of being
caught in the unguarded pulley.
With regard to the unguarded belt tail pulley located in the
secondary crusher plant at ground level under the cone crusher,
the inspector stated that he was advised that a guard had been
provided, but had been removed. He confirmed that employees would
in the area for clean-up and maintenance work, and would be
exposed to a hazard.
The respondent's testimony and evidence does not rebut the
inspector's findings that at the time of his inspection and
observation of the equipment, guards were not provided or in
place on the cited equipment in question. The respondent's
defense is that no employees were exposed to any hazard because
the plant was not in operation at the time of the inspection and
that the equipment was shutdown and locked out for maintenance.
Mr. Fulghum, the only witness presented by the respondent, was
not with the inspector at the time of his inspection and
observations, and he maintained that section 56.14001, only
applies when the equipment is in operation and there are moving
parts which may be contacted and result in injuries. Mr. Fulghum
asserted that he was informed by the shift superintendent Ike
Tabor, that the guards had been removed on the morning of the
inspection and were in the shop for repairs, and had been
replaced by the time the plant had started up later that same
day. Mr. Fulghum further asserted that Mr. Tabor explained this
to the inspector at the time of the close-out conference on the
day following the inspection.
Inspector Torres testified that when he left the site no one
said anything to him about the guards being replaced before the
plant started operation, and if they had, he would have gone back
to terminate the citations (Tr. 407). He also confirmed that no
one called him back to terminate the citations, and that during
the close-out conference, Mr. Fulghum arrived late at the end of
the conference, and said nothing to him about the guards being
removed for repair (Tr. 409-410). Mr. Torres stated that Mr.
Fulghum advised him that he would take the matter up with his
supervisor, and that after Mr. Fulghum met privately with Mr.
Tabor at the end of the conference, Mr. Tabor informed him for
the first time that the guards had been removed and were in the
shop for repairs. Mr. Torres believed that it would have been
impossible to reinstall all of the missing guards prior to the
time production resumed on the day of his inspection (Tr. 401).
Mr. Tabor was not called to testify in this case, and I find
Mr. Fulghum's testimony as to what Mr. Tabor purportedly told him
with respect to the removal and replacement of the guards in
question to be less than credible. I find Mr. Torres to be a
credible witness and I believe his version of the events in
question.
Mr. Fulghum also defended the violations on the ground that
section 56.14006, permits the removal of equipment guards when
the equipment is being tested, and that in order to comply with
section 56.14007, which requires that guards be of substantial
construction and properly maintained, the most common way of
doing this is to remove them during the shutdown procedure. These
defenses are rejected. I find no credible evidence that the
equipment in question was being tested at the time of the
inspection, nor do I find any credible evidence that the guards
were removed for maintenance or repair. With respect to Mr.
Fulghum's argument that the respondent was in compliance with
section 56.14029, because the equipment was shutdown when
maintenance was performed, while this may true, I find it
irrelevant. The respondent is not charged with violations of any
of these other standards. It is charged with failing to provide
guards on the cited equipment as required by section 56.14001.
I conclude and find that the credible testimony of the inspector
establishes that the cited unguarded equipment constituted
violations within the meaning and intent of section 56.14001, and
that it supports each of the violations. Accordingly, the
citations ARE AFFIRMED.
Citation No. 285900 - 30 C.F.R. § 56.11002
The respondent is charged with a violation of section
56.11002, which provides as follows:
Crossovers, elevated walkways, elevated ramps, and
stairways shall be of substantial construction provided
with handrails, and maintained in good condition. Where
necessary, toeboards shall be provided.
The inspector's unrebutted credible testimony establishes
that the feeder walkway or platform located at the third level of
the screening plant which was elevated approximately 12 feet from
the next lower level was not provided with handrails. The
elevated walkway was constructed and maintained to provide access
to the number three feeder which was in the process of being
modified. I conclude and find that the intent of the cited
standard is to provide handrails at such locations in order to
provide employees performing work with some means of protection
against potential falls.
Respondent's witness Fulghum confirmed that the cited
platform or walkway was part of the respondent's plant, and he
did not deny the absence of handrails. Mr. Fulghum took the
position that the three employees observed by the inspector on
the elevated platform cleaning up and performing maintenance work
were not employees of the respondent, but were employed by a
contractor. Mr. Fulghum had no personal knowledge of this, and
simply stated that Mr. Tabor told him during the closing
conference that the employees worked for a contractor. Mr. Tabor
did not testify in this case, and the inspector testified that
Mr. Tabor confirmed to him that the employees worked for the
respondent.
The respondent's defense is rejected. I accept the
inspector's testimony as credible, and find that the three
employees who were working on the platform in the respondent's
plant and which was used to access the feeder owned by the
respondent were exposed to a hazard of falling, and that the
respondent is properly accountable for the violation. I conclude
and find that the failure by the respondent to provide the
required handrails constitutes a violation of section 56.11002,
and the citation IS AFFIRMED.
Citation No. 2859002 - 30 C.F.R. § 56.11002
The respondent is also charged with a second violation of
section 56.11002, for failure to provide handrails on the No. 6
feeder platform located at the second level of the secondary
crusher plant. The inspector's credible testimony establishes
that the platform was located approximately 10 feet above the
second level floor and that it was used to provide maintenance
for the shakers located on the platform. The inspector's
unrebutted testimony also establishes that no handrails were
provided, and Mr. Fulghum did not deny the absence of the
handrails. Under the circumstances, I conclude and find that a
violation has been established, and the citation IS AFFIRMED.
Citation No. 2859004 - 30 C.F.R. § 56.9007
The respondent is charged with a violation of section
56.9007, which provides that "Unguarded conveyors with walkways
shall be equipped with emergency stop devices or cords along
their full length." The inspector's unrebutted testimony
establishes that the cited No. 8 belt conveyor located in the
secondary plant had an adjacent walkway which was parallel to the
belt, and that the belt and walkway were inclined. The inspector
confirmed that the walkway was regularly used by employees as a
means of access from ground level to the crusher, and that the
emergency stop cord, which was approximately 100 feet long, was
broken in the middle and lying on the walkway.
Mr. Fulghum conceded that the stop cord in question was
broken, and his defense is that the plant was shutdown and locked
out, and that in the course of routine maintenance, someone would
have found the broken cord and repaired it before production
began. He confirmed that Mr. Tabor informed him that he was aware
of the broken cord, and that it was repaired before production
began. This defense is rejected. I conclude and find that a
violation has been established, and the citation IS AFFIRMED.
Citation No. 2859007 - 30 C.F.R. § 56.15003
The respondent is charged with a violation of section
56.15003, which states that "All persons shall wear suitable
protective footwear when in or around an area of a mine or plant
where a hazard exists which may cause an injury to the feet." The
inspector's belief that the standard requires employees to wear
"steel-toed safety shoes" is incorrect. The standard only
requires the wearing of "suitable protective footwear" without
further elaboration. What may be suitable in one instance may not
be suitable in another, and each situation must be addressed on a
case-by-case basis.
In this case, Mr. Fulghum's credible testimony establishes
that the respondent supplies steel protective footwear for its
employees, and he believed that leather boots are "suitable
footwear" within the meaning of the standard. While this may be
true, the credible testimony of the inspector reflects that one
of the individuals who he observed cleaning up under the plant
screening station was wearing ordinary tennis shoes of the
"basketball variety." The inspector believed that this employee
was exposed to a hazard of being struck on the foot by large
rocks falling from the belt or from some of the upper levels of
the plant. With regard to the other individuals, the inspector
could offer no credible testimony or evidence as to the kinds of
shoes they were wearing, and he did not speak to any of these
individuals, nor did he inspect their footwear. Under the
circumstances, I conclude and find that the one individual who
was wearing tennis shoes did not comply with the cited standard
in that ordinary tennis shoes are not "suitable" within the
meaning and intent of the standard, and to this extent, a
violation has been established. With respect to the other
individuals, I conclude and find that there is insufficient
evidence to establish any violation on their part. Under the
circumstances, with respect to the employee who was wearing
tennis shoes, the citation is limited to that one individual, and
it IS AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the Mathies
formula "requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an event
in which there is an injury." U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(1), it is the contribution of
a violation to the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining Company, Inc., 6
FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Company, Inc.,
6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Citation No. 285900, 30 C.F.R. § 56.11002
Based on the credible testimony of the inspector, I conclude
and find that the violation concerning the lack of handrails on
the walkway around the No. 3 feeder located on the third level of
the screening station tower was significant and substantial.
Three employees were observed performing clean-up and maintenance
work on the walkway which was elevated some 12 feet above the
next lower level. In the event of a fall, I conclude and find
that the employees would likely suffer injuries of a reasonable
serious nature. Under the circumstances, the inspector's S&S
finding IS AFFIRMED.
Citation No. 2859001, 30 C.F.R. § 56.14001
With regard to the violation concerning the unguarded No. 5
conveyor belt counterweight pulley, I agree with the inspector's
S&S finding. The evidence establishes that the guard usually
provided for this large pulley had been removed and that the
unguarded pulley area was approximately 8 inches from the edge of
the adjacent walkway which was regularly used by employees as an
access way to the transfer point behind the pulley. I conclude
and find that in the event of a stumble or other inadvertent
contact with the exposed and unguarded pulley while the belt was
in operation, one would likely sustain injuries of a reasonably
serious nature. Accordingly, the inspector's S&S finding IS
AFFIRMED.
Citation No. 2859004, 30 C.F.R. § 56.9007
With regard to the violation concerning the broken conveyor
belt emergency stop-cord, the inspector confirmed that the belt,
which was used to convey stone materials from the ground level up
the inclined belt to the stone crusher, was running at the time
of his inspection. Although the inspector observed no one on the
walkway adjacent to the belt at the time of his inspection, he
confirmed that the walkway was used on a regular basis by
employees who would walk along the walkway from ground level up
to the cone crushers at the top level, and in the event someone
were to fall into the moving conveyor, the inspector believed
that he would likely suffer injuries and the belt could not be
stopped because the emergency stop cord was broken. However,
there is no evidence or testimony from the inspector from which
one can conclude that it was reasonably likely that someone
walking along the walkway adjacent to the belt would fall into or
onto the moving conveyor belt. There is no evidence that
employees ride the belt, nor is there any evidence with respect
to whether the belt was elevated above the walkway, or whether it
was recessed below the walkway in such a manner as to allow
someone to readily fall into it. In short, I find no credible
evidentiary support for the inspector's belief that someone
simply walking along the walkway would likely fall into or onto
the belt, or be exposed to any hazard from the materials on the
belt. Under the circumstances, I cannot conclude that the
evidence advanced by the petitioner in this instance supports the
inspector's S&S finding. Accordingly, his finding IS VACATED, and
the citation is modified to a non-S&S citation.
Citation No. 2859007, 30 C.F.R. § 56.15003
With regard to the violation concerning the employee who was
wearing tennis shoes, the inspector conceded that he was wearing
a hard hat, that the equipment was shutdown while the individual
was cleaning up around it, and that cleaning and maintenance work
is only performed when the equipment is shutdown. Although the
inspector believed that someone could sustain a foot injury by
rock falling off the conveyor belt (Tr. 95), I have difficulty
comprehending how this would occur if the conveyors are shutdown
while clean-up is being performed. Further, although the
inspector also believed that an injury could occur if a heavy
tool or equipment fell on someone's foot, there is no evidence
that the employee wearing tennis shoes used any such tools or
handled any heavy equipment which would likely fall and strike
him on the feet. As for the inspector's belief that the employee
could have been struck from a rock falling from an unspecified
location above where he was working, I find his testimony to be
speculative at best, and lacking in credible and probative value.
Under the circumstances, I cannot conclude that the evidence advanced
by the petitioner supports the inspector's S&S finding.
Accordingly, IT IS VACATED, and the citation is modified to a
non-S&S citation.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The evidence establishes that approximately 32 to 36
employees out of a total employment compliment of 332 employees
working in the dam project in question were engaged in the
respondent's limestone processing operations (Tr. 148, 156).
While there is no direct evidence as to the amount of limestone
materials actually processed by the respondent, the information
which appears in MSHA's proposed civil penalty assessments
pleadings with respect to the respondent's size reflects an
annual production tonnage or manhours worked as 102,559, and the
parties stipulated that this was the case. I conclude and find
that the respondent is a small operator. I also conclude and find
that the civil penalty assessments for the violations which have
been affirmed will not adversely affect the respondent's ability
to continue in business.
History of Prior Violations
The parties stipulated that the respondent's history of
prior assessed violations consists of ten (10) civil penalty
assessments made by MSHA in 1987. I cannot conclude that the
respondent's history of prior violations is such as to warrant
any additional increases in the civil penalty assessments which I
have made for the violations in question in these proceedings.
Good Faith Compliance
The record establishes that on February 5, 1988, MSHA
extended all of the abatement times until May 1, 1988, because
the respondent's plant facilities were non-operational due to an
expansion. All of the citations which are the subject of Docket
No. SE 88-59-M, were terminated on April 21, 1988, and the
citation in issue in Docket No. SE 89-23-M, was terminated on
September 7, 1988. All of the terminations were based on the fact
that the respondent corrected the cited conditions, and Inspector
Perez confirmed that all of the citations were terminated on
schedule (Tr. 181). Further, the parties agreed that all of the
citations were timely abated in good faith by the respondent.
Under the circumstances, I conclude and find that the respondent
timely abated all of the violations in good faith.
Negligence
The inspector's moderate negligence findings as to each of
the violations ARE AFFIRMED, and I conclude and find that all of
the violations resulted from the failure by the respondent to
exercise reasonable care.
Gravity
On the basis of the inspector's testimony and findings with
respect to each of the violations, including my findings and
modifications with respect to the inspector's S&S findings, I
conclude and find that Citation Nos. 2859000 and 2859001 are
serious, and that the remaining citations are non-serious.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section 110(i) of the
Act, I conclude and find that the following civil penalty
assessments for the violations which have been affirmed are
reasonable and appropriate in the circumstances of these
proceedings:
Docket No. SE 88-59-M
Citation No. Date 30 C.F.R. Section Assessment
2858999 09/01/87 56.14001 $ 20
2859000 09/01/87 56.11002 $350
2859001 09/01/87 56.14001 $250
2859002 09/01/87 56.11002 $ 20
2859003 09/01/87 56.14001 $ 20
2859004 09/01/87 56.9007 $ 20
2859005 09/01/87 56.14001 $ 20
2859006 09/01/87 56.14001 $ 20
Docket No. SE 89-23-M
Citation No. Date 30 C.F.R. Section Assessment
2859007 09/01/87 56.15003 $ 20
ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date of
these decisions, and upon receipt of payment by the petitioner,
these proceedings are dismissed.
George A. Koutras
Administrative Law Judge
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