Secretary of Labor v. Taft Production Company

Plain-English summary

Taft Production mined and processed clay for products including cat litter. Judge Richard W. Manning upheld two housekeeping violations involving material in conveyor access areas, but reduced one negligence finding and removed the significant-and-substantial designation from the other. He affirmed a guarding citation because exposed moving shafts created a reasonable possibility of contact even though the equipment was not moving during the inspection. The judge vacated a seatbelt citation for a water truck because the cited rule applied only to equipment covered by the rollover-protection list, and the Secretary had not shown that the truck fit that list. He increased the penalties for the three upheld violations based mainly on the operator's size and ordered a total payment of $1,500.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.20003(a), 56.14107(a), and 56.14130(g)
• Outcome: Two citations were modified, one was affirmed, one was vacated, and total penalties of $1,500 were assessed.
• Key point: Safety rules must be applied to the equipment and hazard they actually cover, while guarding duties account for foreseeable contact and ordinary human error.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE:
303-844-3577 / FAX: 303-844-5267

June 3, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

TAFT
PRODUCTION COMPANY,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2013-908-M

A.C.
No. 04-02964-323504

Taft
Production Company & Mines

DECISION AND
ORDER

Appearances:               Daniel
Brechbuhl, Esq., Department of Labor, Denver, Colorado, for Petitioner;

Larry
R. Evans, Corporate Health & Safety Manager, Oil-Dri Corporation of
America, Ochlocknee, Georgia, for Respondent.

Before:                                    Judge
Manning

This
case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Taft Production Company, 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 parties introduced testimony and documentary evidence at a hearing
held in Los Angeles, California and filed post-hearing briefs. A total of four
section 104(a) citations were adjudicated at the hearing.[1]
Taft Production mines and produces clay for use in kitty litter and other
products.

I. DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

A. Citation No. 8697954

On April 23, 2013, MSHA Inspector Eric Wiedeman
issued Citation No. 8697954 under section 104(a) of the Mine Act, alleging a
violation of section 56.20003(a) of the Secretary’s safety standards. (Ex. G-3).
The citation states that there was a pile of material at the entrance to the
101 conveyor tunnel. The material was approximately 2 feet by 2 feet and ranged
from 6 inches deep to 1 1/2 feet deep. The material consisted of small granules
and dust. The citation alleges that miners are in the area to inspect and
clean. Inspector Wiedeman determined that an injury was unlikely to occur, but that
such an injury could reasonably be expected to result in lost workdays or
restricted duty. He determined that the operator’s negligence was moderate, and
that one person would be affected. Section 56.20003(a) of the Secretary’s safety
standards requires “workplaces, passageways, storerooms, and service rooms shall
be kept clean and orderly[.]” 30 C.F.R. § 56.20003(a). The Secretary proposed a
penalty of $100.00 for this citation.

For the reasons set forth below, I modify
Citation No. 8697954 to be the result of Respondent’s low negligence.

Discussion and
Analysis

I
find that Respondent violated section 56.20003(a) because it failed to
keep a passageway clean. Both Inspector Wiedeman and Nick Kingston, a miner representative
for Respondent, agreed that a pile of material existed at the 101 conveyor
tunnel. (Tr. 13, 73; Ex. R-1). Respondent argues that the cited area was not a
workplace or passageway because no miners would work there before the area was
cleaned.[2]
I find, however, that the area was intended for use by miners for walking. Miners
accessed the cited area to grease conveyor lines on a weekly basis. (Tr. 20,
79). Inspector Wiedeman testified that the cited area was the only route to
access the grease lines. (Tr. 14). I reject Respondent’s argument that weekly
use of the area is not frequent enough to constitute a passageway; the cited
area was not accessed while the condition existed but the area was a passageway.
Based upon the consistent testimony from both the inspector and Kingston, I
find that the area was a passageway or work area; miners accessed the area to
grease lines or passed through the area in order to access the lines. The area
was not clean. (Ex. R-1). A trip or fall leading to a sprain was unlikely, but possible.
Respondent violated section 56.20003(a).[3]

I
find that the violation was the result of Respondent’s low negligence. The
inspector testified that the condition existed for two days. (Tr. 15). Miners
accessed the area to grease lines, but not while the conveyor operated and only
on a weekly basis. (Tr. 79-80). The condition posed little danger and it is
likely that no miners knew about the condition. (Tr. 20). Citation No. 8697954 was
the result of Respondent’s low negligence. I MODIFY Citation No. 8697954
to reduce the negligence. A penalty of $400.00 is appropriate for this
violation.

B. Citation No. 8697955

On April 23, 2013, Inspector Wiedeman
issued Citation No. 8697955 under section 104(a) of the Mine Act, alleging a
violation of section 56.20003(a) of the Secretary’s safety standards. (Ex. G-5).
The citation states that there was a pile of material upon the section 4 pad
that covered a 5 foot by 5 foot area. The depth of the pile varied between 4
inches and 3 feet and there were footprints in the pile. The citation states
that miners entered the area to grease the bearings of the chain conveyor. Inspector
Wiedeman determined that an injury was reasonably likely to occur and that such
an injury could reasonably be expected to result in lost workdays or restricted
duty. Further, he determined that the violation was significant and substantial
(“S&S”), the operator’s negligence was moderate, and that one person would be
affected. The Secretary proposed a penalty of $176.00 for this citation.

For the reasons set forth below, I modify
Citation No. 8697955 to be non-S&S.

Discussion and
Analysis

I
find that the condition cited in Citation No. 8697955 is a violation of section
56.20003(a) for the same reasons I found that Citation No. 8697954, above, violated
the safety standard. Respondent does not contest that it violated section 56.20003(a)
with respect to this citation, but argues that the cited conditions were not
S&S.

I
find that the Secretary did not fulfill his burden to prove that Citation No. 8697955
was reasonably likely to contribute to an injury and Citation No. 8697955 is
therefore not S&S.[4]
The Secretary argues that a serious injury was reasonably likely to occur because
miners were exposed to the conditions, evidenced by footprints in the
accumulations. (Tr. 39; Ex. G-6). Miners walked through the cited area on a
daily basis to grease conveyor bearings. (Tr. 40, 91). I find, however, that
the cited condition was unlikely to cause an injury. Kingston testified that
the accumulated material was dust and the photographs corroborate his
testimony. (Tr. 91; Ex. G-6). Walking through a small amount of dust is
unlikely to trip a miner. The area where the largest and deepest accumulations
occurred was directly under the conveyor, which was too low to the ground to
walk under. (Ex. R-4). The Secretary presented no evidence asserting that the
dust was slippery. As a consequence, the dust would be unlikely to obstruct the
path of and trip a pedestrian miner. Although the Secretary showed that the
condition existed and miners accessed the area, he did not show that the cited
condition was likely to cause injury. Access to a condition does not establish
that the condition is likely to injure a miner. The Secretary did not establish
that it was reasonably likely that the hazard contributed to by the violation would
result in an injury. The citation is therefore not S&S.

I
find that the violation was the result of Respondent’s moderate negligence. I
credit Kingston’s testimony that Respondent noticed the condition a few hours
before the inspection and planned to remove it; a miner should not have walked
through the cited area before it was cleaned.  Citation No. 8697954 was the
result of Respondent’s moderate negligence. I hereby MODIFY Citation No.
8697955 to be non-S&S; a penalty of $500.00 is appropriate for this
violation.

C. Citation No. 8697956

On April 23, 2013, MSHA Inspector Eric
Wiedeman issued Citation No. 8697956 under section 104(a) of the Mine Act,
alleging a violation of section 56.14107(a) of the Secretary’s safety
standards. (Ex. G-7). The citation states that the shafts of the squaring plate
shuttle on the 104 pelletizer were not guarded. The guard was removed and was near
the cited shafts. (Tr. 51-52; Ex. G-8). The shafts move approximately 3 inches
and were located 2-3 inches above the deck. The citation states that miners
enter the area to inspect and clean. Inspector Wiedeman determined that an injury
was unlikely to occur, but that such an injury could reasonably be expected to
result in lost workdays or restricted duty. He determined that the operator’s
negligence was moderate and that one person would be affected. Section 56.14107(a)
of the Secretary’s safety standards requires “[m]oving machine parts shall be
guarded to protect persons from contacting gears, sprockets, chains, drive,
head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and
similar moving parts that can cause injury.” 30 C.F.R. § 56.14107(a). The
Secretary proposed a penalty of $100.00 for this citation.

For the reasons set forth below, I affirm
Citation No. 8697956.

Discussion and
Analysis

I find that the conditions
cited in Citation
No. 8697956 violated section 56.14107(a). The Commission has held that a violation of the guarding
standard requires a “reasonable possibility of contact and injury” that
includes “contact stemming from inadvertent stumbling or falling, momentary
inattention, or ordinary human carelessness.” Thompson
Brothers Coal Co., Inc., 6 FMSHRC 2094, 2097 (Sept. 1984). To
determine whether a reasonable possibility exists, the Commission stated that
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” must be considered. Id. The parties agree that the
cited squaring plate shaft was unguarded. Although the equipment was not under
repair and operated the previous night, Respondent’s policy requires miners to
lock out the cited equipment before entering the area. (Tr. 95). Policy,
however, cannot account for “the vagaries of human conduct” that may lead a
miner to enter the area without locking out the equipment. It would be
reasonably possible for a miner to contact the cylinders in the unguarded area,
doing so with a foot since the area was 2-3 inches above the deck. (Tr. 52). The
focus of the analysis in this guarding standard is the reasonable possibility
of contact, not whether the machine was operating and the parts were physically
moving at the time of the inspection.[5]
The cited condition presented a reasonable possibility of injuring a miner and
Respondent therefore violated section 56.14107(a).

Although
the violation was not S&S the gravity was serious. Respondent knew or
should have known of the condition cited in Citation No. 8697956. The condition
was obvious and the result of Respondent’s moderate negligence. I AFFIRM
Citation No. 8697956 and find that penalty of $600.00 is appropriate for this
violation.

D. Citation No. 8697960

On May 1, 2013, Inspector Wiedeman
issued Citation No. 8697960 under section 104(a) of the Mine Act, alleging a
violation of section 56.14130(g) of the Secretary’s safety standards. (Ex. G-9).
A miner noticed upon inspection that the seat belt of Respondent’s #3 Mack
water truck was broken but he operated the vehicle without using the seat belt.
Id. Inspector Wiedeman determined that an injury was reasonably likely
to occur and that such an injury could reasonably be expected to be fatal. Further,
he determined that the violation was S&S, the operator’s negligence was low,
and that one person would be affected. Section 56.14130(g) requires that “[s]eat
belts shall be worn by the equipment operator except that when operating
graders from a standing position, the grader operator shall wear safety lines
and a harness in place of a seat belt.” 30 C.F.R. § 56.14130(g). The Secretary
proposed a penalty of $263.00 for this citation.

For the reasons set forth below, I vacate
Citation No. 8697960.

Discussion and
Analysis

I find that Respondent did not violate
section 56.14130(g) because section 56.14130(g) does not apply to the cited
piece of equipment. The Secretary does not require all self-propelled vehicles
to be equipped with Rollover Protection Systems (ROPS) and seatbelts. Only the
vehicles listed in section 56.14130(a) must have ROPS and seatbelts. All
vehicles that require seatbelts also require ROPS. The only exception is
haulage trucks, which are required to have seatbelts but not ROPS under a
different safety standard at section 56.14131(a). When
the
Secretary promulgated section 56.14131 he chose to only require seatbelts upon haulage
trucks rather than on all vehicles used at surface mines that are not protected
by ROPS. “Safety Standards for Loading, Hauling, and Dumping and
Machinery and Equipment at Metal and Nonmetal Mines,” 53 Fed. Reg. 32496. 32512
(August 25, 1988).

Subsection (g) of section 56.14130 is
only applicable if subsection (a)[6]
requires the installation of seatbelts upon the cited equipment. Ford Construction Co., 14 FMSHRC 1975, 1977 (Dec.
1992). The Commission did not require that a piece of equipment be explicitly
listed in subsection (a).[7]
Instead, the Commission found that the pertinent consideration of whether section
56.14130 applies is the characteristics of the
equipment, including “the size of the cited equipment, its
function and its ability to articulate[.]” Id at 1978.

Based upon Kingston’s
description of the equipment and the photograph of the equipment submitted by
the Secretary, I find that section 56.14130(a) does not apply to the
cited piece of equipment.
A water truck is not a “wheel tractor,” as that term is used in section
56.14130(a)(3), because it does not fit within the definition of a tractor. A
“tractor” is a “self-propelled vehicle . . . intended for moving itself and other
vehicles.” Am. Geological Institute, Dictionary of Mining, Mineral, and
Related Terms 582 (2d ed. 1997) (emphasis added). The Secretary did not
present any evidence that the cab of the water truck was in a tractor that
pulled a wheeled water tank. Likewise, the Secretary also did not establish
that the water truck was the “tractor portion of semi-mounted . . . water wagon[,]”
as that term is used in section 56.14130(a)(4). A water wagon is generally larger
than a water truck and cannot operate upon public highways. (Tr. 99). There is
also no evidence that any portion of the water truck was “semi-mounted,” that the
truck had the ability to articulate, or that it included a tractor.

It is clear that section 56.14130(a) primarily
addresses large, industrial, tractors that articulate and not trucks like the
water truck cited here. I reject the Secretary’s argument that the water truck
fits within section 56.14130(a) because it had a “semi-tractor style cab
consistent with the types of equipment listed” in that subsection. (Sec’y Br. at
18 n. 8) (emphasis added). Subsection (a) was not broadly written to include
all vehicles with large truck cabs. It is significant that the Secretary did
not present evidence that the water truck was equipped with ROPS or that it was
cited by the inspector for not being equipped with ROPS. If a seatbelt was
required in the water truck, then ROPS was required as well. I find that the
cited water truck does not fit any of the equipment listed in section
56.14130(a), which is a prerequisite for the application of section 56.14130(g).

The Secretary also argues that section
56.14100(b) applies to the cited condition. That safety standard provides that
“[d]efects on any equipment, machinery, and tools that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard to persons.” The
Secretary did not allege a violation of that safety standard and Respondent was
not given the opportunity to defend against such an allegation. Consequently, I
have not considered this argument. Failure to wear a seatbelt creates a hazard.
The Secretary’s safety standard and its regulatory history, however, compel me
to VACATE Citation No. 8697960 because section 56.14130(g) does not
apply to the cited equipment.[8]

II. APPROPRIATE
CIVIL PENALTY

Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. I have considered the Assessed Violation History
Report, which was submitted by the Secretary. (Ex. G-13). Respondent was issued
12 citations in the 15 months prior to April 23, 2013. Most were designed as
non-S&S when issued. Respondent was a medium-sized mine operator which
employed about 73 people in 2013. The violations
were abated in good faith. The penalties assessed in this decision will not
have an adverse effect upon the ability of Taft Production Company to continue
in business. The gravity and negligence findings are set forth above. I find
that the penalties proposed by the Secretary were too low taking into
consideration the size of the operator, the gravity of the violations, and
Respondent’s negligence. I increased the penalties based primarily on the size
of Respondent.

III.
ORDER

For
the reasons set forth above, I MODIFY Citation Nos. 8697954 and 8697955,
I AFFIRM Citation No. 8697956, and I VACATE Citation No. 8697960. Taft Production
Company is ORDERED TO PAY the Secretary of Labor the sum of $1,500.00
within 30 days of the date of this decision.[9]

/s/
Richard W. Manning   

Richard W.
Manning 

Administrative
Law Judge

Distribution:

Daniel
Brechbuhl, Esq., Office of the
Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202
(Certified Mail)

Larry
Evans, Oil-Dri Corporation of America, P.O. Box 380, Ochlocknee, GA 31773-0390
(Certified Mail)

[1] This proceeding
was originally designated for simplified proceedings under 29 C.F.R. §
2700.102(a). By order dated November 26, 2013, I removed the case from
simplified proceedings and it was tried under the Commission’s conventional
rules.

[2] Respondent
cites Alan Lee Good to show that an area accessed only for maintenance
is not a passageway. 23 FMSHRC 995, 1000 (Sept. 2001). Respondent, however, misconstrues
the holding in that case. The Commission found that the cited area was not
accessed or used to walk upon during maintenance, not that miners walking in
the area for maintenance did not make an area a passageway.

[3]
My
interpretation of workplaces and passageways under section 56.20003(a) is
consistent with the decision of Judge James Gilbert on this same issue. Taft
Production Co., 23 FMSHRC 522, 526 (Feb. 2014).

[4] An S&S violation is a violation “of such nature as
could significantly and substantially contribute to the cause and effect of a .
. . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). In order to
establish the S&S nature of a violation, the Secretary 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 will be of a reasonably
serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord
Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria). The Commission has held that “[t]he
test under the third element is whether there is a reasonable likelihood that
the hazard contributed to by the violation…will cause injury.” Musser Eng’g,
Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).

[5] I reject
Respondent’s argument that Citation No. 8697956
should be vacated because the unguarded moving parts were not actively moving
at the time of inspection. Respondent mischaracterized a decision to support
its argument, citing Brubaker Mann to argue that if the inspector did
not see the equipment in use, it did not violate section 56.14107(a). 8 FMSHRC
1487, 1493 (Sept. 1986) (ALJ). Brubaker Mann, however, does not
reference whether a piece of equipment was actively moving, but whether that
equipment was in service. The Commission has addressed guarding standards. See
Thompson
Brothers Coal,
6 FMSHRC at 2097. I find that under Section 56.14107(a), moving
parts are machine parts that move as part of their functions; the standard is
not limited to parts that actively move during an inspection.

Respondent,
furthermore, references MSHA’s program policy manual (“PPM”) to argue that the
standard only applies when no guard exists at conveyor pulleys. (R. Br. at 8-9).
Respondent misconstrues the PPM and its argument ignores the plain language of
section 56.14107(a) that requires any moving
parts, including shafts, to be guarded. I also reject Respondent’s arguments
that rely upon other standards as they do not apply to the current case.

[6] Section 56.14130(a)
states:

Roll-over
protective structures (ROPS) and seat belts shall be installed on—

(1) Crawler
tractors and crawler loaders;

(2) Graders;

(3) Wheel loaders and wheel
tractors;

(4) The tractor portion of
semi-mounted scrapers, dumpers, water wagons, bottom-dump wagons, rear-dump
wagons, and towed fifth wheel attachments;

(5) Skid-steer loaders; and

(6) Agricultural tractors.

30
C.F.R. § 56.14130(a).

[7] Respondent
argues that section 56.14130(g) does not apply to water trucks because water
trucks are not specifically listed in section 56.14130(a). The Commission
expressly rejected this argument. Ford
Construction Co., 14 FMSHRC at 1977.

[8]
The
Secretary should consider amending its safety standards for metal and nonmetal
mines to require the use of seatbelts in all vehicles used upon the surface at
such mines.

[9] Payment should
be sent to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.