Williams Mechanical and Welding, Inc.

Plain-English summary

Williams Mechanical and Welding was performing maintenance and repair work inside a gypsum storage bin at Giant Cement's quarry and cement plant. Tyrone Gardner entered the bin without fastening his safety belt to a lifeline and was later pinned by gypsum and killed. Judge James A. Broderick found that the operator's practice of using one lifeline for two workers did not meet the standard, but found that the fatal accident did not result from the cited violation and treated that fact as mitigating the penalty. The citation was affirmed and a $900 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.16002
• Outcome: The citation was affirmed and a $900 civil penalty was assessed.
• Key point: Each person entering a bin containing loose material must be protected by a properly fastened lifeline, not merely connected through another worker's lanyard.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. WILLIAMS MECHANICAL AND WELDING
DDATE:
19890530
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 88-72-M
PETITIONER A.C. No. 38-00007-05505 M5K

         v.                            Giant Cement Company

WILLIAMS MECHANICAL AND
WELDING, INC.,
RESPONDENT

                                DECISION

Appearances: Ken S. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
the Secretary of Labor (Secretary); T.E. Peterson,
Esq., Charleston, South Carolina, for Williams
Mechanical & Welding, Inc. (Williams).

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks a civil penalty in this proceeding for

an alleged violation of the mandatory safety standard in 30
C.F.R. 56.16002(2)(c). Pursuant to notice, the case was heard
in Charleston, South Carolina, on April 18, 1989. Thel Hill
testified on behalf of the Secretary. John Infinger, Burt Ardis,
Ernest H. Williams and Franklin Neal testified on behalf of
Williams. At the conclusion of the hearing, counsel for both
parties orally argued their positions on the record, and each
waived his right to file a post hearing brief. Based on the
entire record and considering the contentions of the parties, I
make the following decision.

FINDINGS OF FACT

 Williams was a contractor doing maintenance and repair work

for Giant Cement Company. Giant operated a limestone quarry and
cement plant in Dorchester County, South Carolina. Williams
stipulated that it operated as an independent contractor at a
mine site. It had approximately 25 employees. The Secretary
introduced a record of Williams' history of prior violations
which shows a single violation of a mandatory safety standard. On
February 25, 1988, Williams was engaged in cleaning out a

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gypsum storage bin, removing the buildup of consolidated gypsum
from the bin using a jackhammer. It had been engaged in this work
for several weeks prior to February 25, 1988. The bin was
constructed of concrete, and measured 24 feet in diameter and 46
feet in height. It had a capacity of approximately 675 tons.

 On February 25, 1988, three men were working at the bin

cleaning task, two inside the bin, Freddie Mack and Tyrone
Gardner, and one on top of the bin, Franklin Neal, tending a
lifeline which was attached to one of the men in the bin, namely,
the one not operating the jackhammer. A lanyard, approximately
six feet long, was hooked to his safety belt and to the
jackhammer operator's belt. Gardner and Mack alternated using the
jackhammer: the one not using the hammer was secured to the
lifeline from the top of the bin; the one using the hammer was
attached by a lanyard to the first employee.

 At about 3:00 p.m., Gardner suggested that they start

cutting the gypsum from the bottom of the bin rather than from
the top. His foreman agreed and directed him to go up into the
bin from below and "get everything down and start from the
bottom." (Tr. 40) Gardner reentered the bin, took the jackhammer
from Mack and began cutting the gypsum. Gardner did not attach a
lifeline to his belt, nor did he attach the lanyard from Mack's
belt to his own. Mack had the lifeline attached to his belt. At
about 3:20 p.m., Gardner slipped and was pinned between a mass of
gypsum and the side of the bin. His body was crushed and he was
pronounced dead at approximately 4:00 p.m. when his body was
removed from the bin.

 Gardner had just turned twenty years of age, and had been

employed by Williams for about two months. He had been working in
the bin for about 30 days. Mack no longer works for Williams, and
Williams was unable to subpoena him to testify at the hearing.
Neal testified that he heard a noise when Gardner slipped and
heard him say he was trapped. However, he could not see Gardner
from the top of the bin.

REGULATION

         30 C.F.R.   56.16002 provides in part:

         (a) Bins, hoppers, silos, tanks, and surge piles, where
         loose unconsolidated materials are stored, handled or
         transferred shall be --

                                * * *

         (c) Where persons are required to enter any facility
         listed in this standard for maintenance or inspection
         purposes,

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ladders, platforms, or staging shall be provided . . .
Persons entering the facility shall wear a safety belt or
harness equipped with a lifeline suitably fastened. A
second person, similarly equipped, shall be stationed near
where the lifeline is fastened and shall constantly adjust
it or keep it tight as needed, with minimum slack.

ISSUES

 1. Whether the evidence shows a violation of the cited

standard?

    2. If so, what is the appropriate penalty?

CONCLUSIONS OF LAW

    I. JURISDICTION

 Williams operated as an independent contractor at a mine

site. As such it was a mine operator under the Mine Safety Act. I
have jurisdiction over the parties and subject matter of this
proceeding.

   II. VIOLATION

 Williams does not contest the fact that one of its

employees, Tyrone Gardner, was working inside a bin or silo or
tank where loose unconsolidated materials were handled, and that
his safety belt was not fastened to a lifeline. This clearly
constitutes a violation of 30 C.F.R. 56.16002. Williams
contends that Gardner after entering the bin began using the
jackhammer against a direct order, but the evidence supporting
this contention is ambiguous. I conclude that Gardner was not
told not to use the jackhammer after he entered the bin from the
bottom.

 The practice normally followed by Williams under which one

of the two people in the bin was tied to a lifeline, and a
lanyard was attached from that employee's belt to the belt of the
other employee who operated a jackhammer does not meet the
requirments of the standard. The lanyard cannot be considered a
lifeline: as the Investigator testified, it permits too much
slack, and would permit the person on the end of the lanyard to
fall an additional 6 feet (the length of the lanyard). However,
the normal practice was not being followed at the time of the
accident, contrary to the investigation report. At the time of
the accident, the deceased employee entered the bin to perform
work and was not protected by a lifeline or a lanyard. This
constitutes a violation of the mandatory standard.

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GRAVITY

 The violation which I find to have occurred is a serious

one. The failure to use a lifeline could result in a serious
injury. The gravity is somewhat lessened by the fact that the
employee was working near the bottom of the bin (5 to 7 feet from
the bottom) and much of the gypsum had been removed. The fatal
accident, moreoever, tragic though it was, did not result from
the violation. Had Gardner been atached to the lifeline tended by
Neal, this would not have prevented the accident, since Neal was
unable to see Gardner when the accident occurred and could not
have prevented it. Nor is it clear that the accident resulted
from a slip or fall. These facts mitigate the gravity of the
violation.

NEGLIGENCE

 As I concluded above, Williams' practice of having a single

lifeline for two employees working in the bin did not comply with
the standard. This practice had been followed for approximately
30 days. Williams should have been aware of the violative nature
of the practice. However, there is no evidence that Williams was
aware that Gardner was operating the jackhammer in the bin
without being attached either to the lifeline or the lanyard. I
conclude, however, that Williams should have been aware of the
fact the Gardner was using the jackhammer, and was not attached
to the lifeline. Williams is guilty of ordinary negligence.

PENALTY

 Considering the criteria in section 110(i) of the Act, I

conclude that an appropriate penalty for the violation is $900.

                             ORDER

 Based on the above findings of fact and conclusions of law,

citation 2859169 issued February 27, 1988, is AFFIRMED.
Respondent is ORDERED to pay within 30 days of the date of this
order $900 as a civil penalty for the violation found herein.

                             James A. Broderick
                             Administrative Law Judge