Secretary of Labor v. Ames Construction, Inc.

Plain-English summary

A truck driver delivered nine plastic pipes, each about 50 feet long and weighing about 3,000 pounds, to a tailings facility where Ames Construction supervised unloading. Two Ames crew members left to retrieve a forklift, while a third remained nearby without giving the driver the safety instructions required before load restraints were removed. The driver loosened the straps before the load was secured, and a pipe rolled from the trailer and caused his death. Judge Margaret A. Miller held that unloading had begun once the truck was positioned and the Ames crew was present, and that Ames was responsible for the unsafe conduct of the subcontracted delivery operation. She affirmed the violation as significant and substantial with low negligence and assessed the proposed $13,268 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9201
• Outcome: The unsafe-unloading citation was affirmed as S&S with a $13,268 penalty.
• Subsequent review: The Commission affirmed the decision in west-2009-693-m-commission.
• Key point: A contractor supervising unloading cannot avoid Mine Act responsibility when a delivery driver begins the process unsafely before the contractor's forklift and instructions are in place.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

March 23, 2010

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

AMES CONSTRUCTION, INC.,

Respondent

:

:

CIVIL PENALTY PROCEEDING

PROCEEDING

Docket No. WEST 2009-693-M

A.C. No. 42-01996-179938 U82

Mine: Copperton Concentrator

DECISION

Appearances:              Matthew Finnigan , Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;

Michael Homer, Noah Hoagland, Suitter Axland PLLC, Salt Lake City,
Utah, for Respondent.

Before:                        Judge Miller

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Ames
Construction, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The case involves one citation issued by
MSHA under section 104(a) of the Mine Act at the Kennecott Utah Copper mine, at the Tailings
Facility operated by Ames Construction. The parties presented testimony and documentary
evidence at the hearing held on January 12, 2010 in Salt Lake City, Utah.

The parties stipulated that, at all pertinent times, Ames Construction, Inc. was a mine
operator subject to the provisions of the Mine Act. Stip. 1-3.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Ames Construction, Inc. (“Ames”) is a contractor responsible for the construction of a
tailings dam, and the raising of the tailings dam, pipe and roadways at the Kennecott Tailings
Facility near Magna, Utah. Stip. 4; (Tr. 261-262). On October 29, 2008, Shane Julian, an
MSHA inspector and accident investigator, was called to the Kennecott Mine to investigate the
death of William Kay, an employee of Bob Orton Trucking (“Orton”), a subcontractor at the
facility. Subsequently, Julien issued a citation to both Ames and Orton for the identical
violation. (Tr. 33-40, 71-71). Orton acknowledged that it is a contractor of Ames and admitted
the fact of violation, but seeks to have the penalty reduced by means of a separate hearing.

a.     Citation No. 6328009

As a result of the investigation Julien issued Citation No. 6328009 to Ames alleging a
violation of 30 C.F.R. § 56.9201, which requires “[e]quipment and supplies shall be loaded,
transported, and unloaded in a manner which does not create a hazard to persons from falling or
shifting equipment or supplies.” The citation described the violation as follows:

A fatal accident occurred on October 29, 2008, when a delivery
truck driver was struck by a section of pipe. The victim had
operated a truck containing a supply of pipes which was loaded,
transported and unloaded in a manner which was hazardous to
persons from falling supplies. The pipes had been inadequately
secured and the driver had begun to unload nine sections of pipe
when one 50 foot section of pipe fell from the flat bed trailer and
struck him.

Julien determined that it was reasonably likely that the violation would result in a fatal
injury, that the violation was significant and substantial, that one employee was affected, and
that the negligence of Ames was low. A civil penalty in the amount of $13,268.00 has been
proposed for this violation.

I.         The Accident

The facts of the accident that killed William Kay are undisputed. On October 29, 2008,
Kay arrived at the mine around 7:30 a.m. Kay was employed as a truck driver for Orton. See
Stip. 5; (Tr. 192). Kay was 81 years old, had been a truck driver for more than 30 years, and
had a hazard card, dated September 27, 2007, from Kennecott indicating that he had received
training from Ames. (Tr. 88); Ex. G-11. The training did not include unloading of the truck or
the use of a forklift to safely unload a truck. (Tr. 104, 118).

On October 29, 2008, Kay’s flatbed truck was loaded with plastic pipe to be used at the
tailings operation at the mine. WL Plastics Corporation loaded the pipes, which included nine
separate pipes, each about 50 feet long and weighing approximately 3,000 pounds. (Tr. 65); See
Ex. G-31 (photo). The pipes were strapped to the flatbed truck and separated by wood dunnage
(i.e. general purpose landscape timber) to help secure the load. (Tr.129). Chocks, wedge-shaped
devices which are designed to prevent rolling, were not used, although, according to witnesses,
chocks should have been added onto the dunnage to help prevent rolling. (Tr. 131-132). The
mine received many deliveries of pipe each month, as pipe is an integral part of the process of
building and maintaining the tailings ponds. (Tr. 150-151, 226).

When Kay arrived at the mine on the day of the accident, he stopped at the office and was
then escorted to the delivery drop-off location by a pipe crew consisting of Greg Davis, James
Hilton and Juan Florez. (Tr. 151). Kay’s flatbed truck followed the pickup with the pipe crew
for approximately eight miles to the unloading area. (Tr.154). Florez got out of the pickup to
stay with Kay while Davis and Hilton went to retrieve a forklift to unload the truck. (Tr. 160);
Stip. 12, 13. Davis told Kay to “stay right here” until he returned with the forklift, but gave Kay
no further instruction. (Tr.194-195). Normally the Orton drivers do not unload the truck on
their own, but do participate in the unloading process by loosening the straps that secure the load
with a long tool that they carry in the truck, while the remainder of the process is left to the
contractor who is in charge of the site. (Tr. 90).

While waiting in the unloading area with Kay, Florez crossed the road for a few minutes,
then returned to the passenger side of the flatbed truck. He observed Kay out of the truck, near
his toolbox. Florez assumed that Kay was getting tools and preparing to unload the truck, but
couldn’t remember if he saw Kay with the bar used to loosen the straps. (Tr. 62-64, 84, 169).
Florez was at the passenger side of the truck, looking down the road, when he heard a loud
crack, followed by a thump. He found Kay lying on the ground next to the truck. (Tr. 174-175).
Kay had removed the straps for the top layer of pipes, causing a pipe to roll off the truck onto
Kay, crushing him. Photographs of the scene of the accident provide a view of the truck driven
by Kay, the forklift used to stabilize the load when it was removed, and the pipe that had been a
part of the load delivered by Kay. Ex. G-29, 31, 33.

While it is Ames’ responsibility to unload the pipes from the truck, it is generally the driver
of the truck who loosens the straps prior to unloading. (Tr. 232). The driver normally has the
tool, much like a long bar, to loosen the straps in the toolbox of the truck. (Tr.168-169).
Inspector Julien testified that when Florez, or any person at the mine, saw what he thought might
be some action on the part of Kay to loosen the straps without a safe support, he should have
stopped the unloading and instructed Kay to wait. Florez agrees that it was his job to keep Kay
safe. (Tr. 167). The Ames pipe crew normally speaks to the truck driver about the unloading
procedure and conducts a safety meeting prior to the actual unloading of pipe. However,
because two pipe crew members left in search of a forklift, safety procedures and instructions
were not given prior to the time Kay began unloading. (Tr. 156, 162-165).

Ames has a Job Safety Analysis (“JSA”) in place for the training and guidance of
employees who are unloading pipe. The JSA does not address either what should be done while
waiting for a forklift to arrive, or the role of the driver while waiting. (Tr. 163, 198-199).
Florez, who was relatively new to Ames, testified that his experience extended to observing two
flatbeds unloaded on the previous day. (Tr. 159-160). Florez and the other two men on the pipe
crew that day were familiar with the JSA. (Tr. 140 ). The JSA requires a forklift to be stationed
in a position to secure the load prior to loosening the straps or taking any other action. Ex. G-12.

ii.     The Violation

Ames was cited for failing to safely transport and unload the pipes that were on the
flatbed truck operated by Kay. The purpose of the regulation found at 30 C.F.R § 56.9201 is to
assure that accidents, such as the one addressed here, do not occur. The standard requires that
“equipment and supplies shall be . . . transported, and unloaded in a manner which does not
create a hazard.” The violation is straightforward; Kay was transporting the pipes for the use of
Ames, on property that was under the control of Ames, and the pipes were to be unloaded by
Ames employees with the limited assistance of the driver of the truck. (Tr. 56-58). Kay and the
three Ames employees traveled to the unloading zone. Two of the pipe crew members left to
retrieve the forklift. Kay began to loosen the straps on the load. (Tr. 210-212). As soon as he
began to loosen the straps he was clearly “unloading” the “supplies”, and according to the
standard, he was required to do so in such a way so as to not create a hazard. Inspector Julien
opined that the unloading process had begun at the time of the accident. (Tr. 91).

Ames essentially raises two arguments: (1) that its employees were not actively
unloading the truck at the time of the accident and therefore it did not violate the cited standard,
and (2) that Ames is not responsible for the actions of Orton’s employee who had started to
unload the delivery. Ames argues that escorting the truck to the “set down” location is purely
for the purpose of making certain that contractors do not wander around the mine and suffer any
injury or find themselves lost on the maze of roadways and, therefore, Ames has nothing to do
with the actual transport of the materials.

Ames further argues that since its personnel had gone to find a forklift and had not yet
had the opportunity to discuss the unloading process with Kay, the unloading had not begun for
the Ames’ pipe team and therefore the standard cited does not apply to Ames. However, it is
undisputed that Kay retrieved his bar and had loosened the strap, an integral first step in the
unloading process. Florez, the Ames employee was present when Kay began to unload but did
nothing to ascertain that Kay was aware of the JSA or the safest manner in which to unload.

There is no argument that, at the very least, a violation of 30 C.F.R. § 56.9201, occurred
when Kay unstrapped the load of pipes without a forklift to hold them in place and therefore did
not unload “in a manner which does not create a hazard to persons from falling or shifting
equipment”. Without the forklift, or some other means securing the pipes, at least one pipe
rolled off the truck and onto Kay. Orton has admitted to a violation of this standard. The next
issue then is, did Ames violate this standard; was it a part of the unloading process when Kay
began to loosen to the straps.

Ames first had contact with Kay when he checked in with the mine at the mine gate. The
mine then arranged to have a pipe crew escort Kay to the loading site where the crew would then
unload the pipe hauled by Kay. (Tr. 54-56). Instead of meeting with Kay and discussing the
unloading process, two Ames employees left Florez with Kay and went to retrieve a forklift.
Florez, who was with Kay the entire time and observed Kay retrieve the tools necessary to begin
the unloading process, said little if anything to Kay. The Secretary argues that because Ames
escorted Kay, communicated with him to a limited degree, and left an employee with Kay at the
unloading site, the mine was involved in the unloading process and therefore was required to
submit to the requirements of the regulation cited. Ames argues that the escort is a mere
formality accorded all persons who enter the mine, and that the unloading process would not
begin until the forklift was retrieved, brought to the unloading location, and a safety meeting was
held.

I agree with Ames that it was not responsible for the loading or transportation of the load.
The part of the mandatory standard that is violated, therefore, is the portion regarding the
unloading of the delivery. I agree with the MSHA inspector and find that once the mine escorted
Kay to the loading site and left an employee with him while they retrieved the forklift, the
unloading process had begun and Ames was responsible for doing it correctly, i.e. not allowing
the restraints to be removed from the load until the forklift was in place and the load secured so
that it could be safely unloaded. The unloading process includes parking the truck in the correct
location so that the mine employees, along with the driver, can begin the physical removal of the
pipe from the truck. Once the truck is in position and a member of the pipe crew is present for
the sole purpose of unloading, it can be said that unloading has begun.

The Ames pipe crew and Kay together were to unload the truck and the process began
with Kay loosening the straps while a member of the pipe crew was present. Kay had to undo a
number of straps along the entire length of the truck from the cab to the end in order for the pipe
to fall. During that period of time, Kay should have been observed and his progress halted by
Florez. See (Tr. 114-115). I find that Kay was a part of the pipe crew as much as the three
Ames’ employees, and when he started to unload, the entire crew was in the unloading process
whether they were ready to do so or not. Hence, when Kay began unloading in an unsafe
manner, the unloading had begun and Ames violated the mandatory standard.

Next, Ames argues that it is not responsible for the actions of Kay as he began to unload
the delivery. Section 104(a) of the Act, 30 U.S.C. § 814(a), requires that MSHA inspectors issue
a citation whenever he or she believes an “operator” has violated the Act or any mandatory
safety standard promulgated pursuant to the Act. Section 3(d) of the Act defines “operator” as
including “any independent contractor performing services or construction at [a] mine.” (30
U.S.C. § 802(d). The case turns upon the question of whether Ames was responsible for the
actions of its contractor, Bob Orton Trucking. For the reasons that follow, I find Ames is
responsible for the actions of Orton.

It is well established by Commission precedent that “in instances of multiple operators,”
the Secretary has “wide enforcement discretion” and “may, in general, proceed against either an
owner/operator, his contractor, or both.” W-P Coal Co. 16 FMSHRC 1407, 1411 (July 1994).
Thus, MSHA may properly hold an operator strictly liable for all violations of the Mine Act that
occurred on the mine site “whether committed by one of its employees or an employee of one of
its contractors.” Mingo Logan Coal Co., 19 FMSHRC 246, 249 (Feb. 1997). In Mingo Logan,
the Commission, quoting its own earlier precedent, stated that “the Act’s scheme of liability
[that] provides that an operator, although faultless itself, may be held liable for violative acts of
its employees, agents and contractors.” Id. (quoting Bulk Transportation Services, Inc. 13
FMSHRC 1354, 1359-60 (Sep. 1991)). Both Ames and Orton, the employer of Kay,
acknowledge that they are operators within the meaning of the Act. Orton was also cited for the
violation and has stipulated to the facts of the violation. Orton’s remaining argument is the
amount of penalty to be assessed.

The Commission’s holding in Mingo Logan, supra, related to the citing of an operator
for violations committed by its contractor. There, the Commission rejected the operator’s
assertion “that the citation against it fails to promote the safety purposes of the Act.” 19
FMSHRC at 251. The Commission reasoned that this assertion was inconsistent with the
rationale of the Ninth Circuit in Cyprus Indus. Minerals Co. v. FMSHRC, 664 F 2d. 1116, 1119-1120 (9th Cir. 1981). The Commission quoted the following language from Cyprus, “[i]f the
Secretary could not cite the owner, the owner could evade responsibility for safety and health
requirements by using independent contractors for most of the work.” 19 FMSHRC at 251.
Applying this language, the Commission reasoned that holding a production-operator liable for
violations of their independent contractors “provides operators with an incentive to use
independent contractors with strong health and safety records.” Id. I find that the same rationale
applies with equal force to holding a contractor liable for the violation of its subcontractor, i.e.,
that there is an incentive to use a subcontractor with strong health and safety records.

The Court in Cyprus also anticipated the situation herein, where the owner/lessee
contracts extraction and safety functions to another entity and then argues that the owner/lessee
is not liable for ensuing violations. In Cyprus case, the Court stated:

The Secretary presents sound policy reasons for holding owners
liable for violations committed by independent contractors. For
one thing the owner is generally in continuous control of the
conditions at the entire mine. The owner is more likely to
know the federal safety and health requirements. If the Secretary
could not cite the owner, the owner could evade responsibility for
safety and health requirements by using independent contractors
for most of the work. The Secretary should be able to cite either
the independent contractor or the owner depending on the
circumstances. Cyprus Industrial Minerals Co. v. FMSHRC, 664
F.2d 1116, 119 (9th Cir. 1981)

The Commission has further explained the rationale for holding owner/lessee operators
liable under the Act in Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359 (1991),
wherein the Commission wrote:

Thus, an owner is held liable for the acts of its contractor not
merely because the owner has continuous control of the entire
mine but, rather, because the Act's scheme of liability provides that
an operator, although faultless itself, may be held liable for
the violative acts of its employees, agents and contractors.

Therefore, I find that Ames is responsible for the actions of its subcontractor, Orton, and
violated the standard as cited. I find further that the Secretary, who has the burden of proving all
elements of an alleged violation by a preponderance of the evidence, has met that burden. In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995),
aff'd, Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO
Mining Co., 15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC
2148, 2152 (Nov. 1989).

iii.       Significant and Substantial Violation

A significant and substantial violation is described in section 104(d)(1) of the 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.” A violation is properly designated S&S
“if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

The Commission has explained that:

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.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal,
Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,

103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria).

As noted above, I find that there is a violation of the mandatory safety standard as alleged
by the Secretary. I find, further, that the violation contributed to the hazard of the pipes falling
off the bed of the truck and striking persons involved in the unloading. Third, the hazard
contributed to will result in an injury as a result of enormous pipes rolling off the truck. Finally,
given the length and weight of the pipes, the injury would certainly be serious and potentially
fatal, as was the case here.

The Commission and courts have observed that an experienced MSHA inspector’s
opinion that a violation is significant and substantial is entitled to substantial weight. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek coal Inc. v.
MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995). Inspector Julien qualifies, without question, as an
experienced MSHA inspector. He described the violation as significant and substantial and
explained that improperly removing the straps that secure a load of pipes is reasonably likely to
lead to an event that causes serious injury. He further explained that there is a reasonable
likelihood of fatal injury if “a 3,000-pound pipe [falls] from any height.” (Tr. 74).

The question of whether a particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). I find that the facts of this
violation clearly lead to a finding that it was a significant and substantial violation.

II. PENALTY

The principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well established. Section 110(I)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(I). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess
the penalty. 29 C.F.R. § 2700.28. The Act requires, that “in assessing civil monetary penalties,
the Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.

30 U.S.C. § 820(I).

In keeping with this statutory requirement, the Commission has held that “findings of
fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once findings on the
statutory criteria have been made, a judge’s penalty assessment for a particular violation is an
exercise of discretion, which is bounded by proper consideration of the statutory criteria and the
deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).

I accept the stipulation of the parties that the penalties proposed are appropriate to this
operator’s size and ability to continue in business and that the violations were abated in good
faith. The history is normal for this size operator. I accept the Secretary’s finding of low
negligence. Further, I find that the Secretary has established the gravity as described in the
citation.

III. ORDER

Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I agree with
that the penalty as proposed by the Secretary is appropriate and assess a penalty of $13,268.00
for the violation. Ames Construction Company is hereby ORDERED to pay the Secretary of
Labor the sum of $13,268.00 within 30 days of the date of this decision.

Margaret A. Miller

Administrative Law Judge

Distribution:

Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway

Suite 1600, Denver, CO 80202

Michael W. Homer, Suitter Axland, PLLC, 8 East Broadway, Suite 200

Salt Lake City, UT 84111

/atc