Secretary of Labor v. Nordic Industries, Inc.

Plain-English summary

MSHA cited Nordic Industries for an unguarded platform opening, bent excavator footholds, and a badly damaged wheel-loader seatbelt. Judge Richard W. Manning upheld all three violations but reduced the platform citation's gravity and negligence to low because access was limited and the plant was locked out for maintenance. He treated the bent footholds as an equipment defect under section 56.14100(b) and reduced negligence to low because the experienced operator reasonably believed access remained safe. The Judge removed the S&S designation from the seatbelt citation because the loader's limited, low-speed use made injury from belt failure unlikely, while retaining moderate negligence. He assessed $100 for each citation, for a total penalty of $300.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11012, 56.14100(b), and 56.14130(i)
• Outcome: All three citations were modified, the seatbelt citation was changed to non-S&S, and total penalties were $300.
• Key point: Equipment defects may violate safety standards even when injury is unlikely, but actual use, speed, access, and operator knowledge control gravity and negligence.

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

October 1, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

NORDIC
INDUSTRIES, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2014-193-M

A.C.
No. 04-04149-338834

Parks
Bar Quarry

DECISION

Appearances:               Randy
Cardwell, Conference & Litigation Representative, U.S. Department of Labor,
Vacaville, California, and Isabella Finneman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California, for Petitioner;

Bradley
B. Johnson, Esq., Harrison, Temblador, Hungerford & Johnson, Sacramento,
California, 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 Nordic Industries, 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 parties presented testimony, documentary evidence, and closing
arguments at a hearing held in Sacramento, California. Three section 104(a) citations
were adjudicated at the hearing. Nordic Industries operates the Parks Bar
Quarry, a crushed stone operation, in Yuba County, California.

I. DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

A. Citation No. 8702904

On October 23, 2013, MSHA Inspector Roshan
L. Gulati issued Citation No. 8702904 under section 104(a) of the Mine Act,
alleging a violation of section 56.11012 of the Secretary’s safety standards. (Ex.
G-2). The citation alleges that there was a 2 foot wide opening on the screen
access platform in the Baxter Plant that was not adequately guarded to prevent
a person from falling through the opening. The citation states that a chain was
installed to prevent travel through the opening but the latch was broken so the
chain offered no protection. The citation further states that a maintenance
crew member enters the area once a week.  

Inspector Gulati determined that an
injury was unlikely to occur but that an injury could reasonably be expected to
result in lost work days or restricted duty. He determined that the operator’s
negligence was moderate and that one person would be affected. Section 56.11012
mandates, in part, that “[o]penings above, below, or near travelways through
which persons or materials may fall shall be protected by railings, barriers,
or covers.” 30 C.F.R. § 56.11012. The Secretary proposed a penalty of $100.00
for this citation.

Discussion and
Analysis

The
basic facts are not in dispute. Inspector Gulati testified that when he started
his inspection on October 23, 2013, none of the four plants at the quarry were
operating but an employee was loading customer trucks. (Tr. 12-13). He started
his inspection at the Baxter Plant. He walked up the stairway next to the
screen to the landing at the top. When he reached the top, he noticed that
there was a gap in the handrails around the landing. (Tr. 14-15). The gap was
about 2 feet wide. There was a chain attached at the top of the vertical post
for the handrail on one side of the opening but the latch hook was missing on
the vertical post on the other side. (Tr. 16). As a consequence, the chain
could not be fastened between the two vertical posts to provide a visible
warning of the hazard. It appeared to the inspector that a hook was present in
the past but that it had broken off. Id. He said the break did not
appear to be fresh because it was not shiny. Inspector Gulati testified that
this condition “could create a hazard for [a] person to fall through this
unprotected opening.” (Tr. 15; Ex. G-3 at 2).

Inspector Gulati testified that there
was no other way to access the shaker screen, which was locked out at the time
of his inspection. The drop-off from the landing to the chute for the screen
was about 3 feet. (Tr. 17). Although the chain could not be strung across the
cited opening, there were steel plates across the bottom of the opening. (Tr.
18; Ex. G-3 at 3). These plates were attached to the chute and extended up
above the middle rail of the adjacent handrails. They directly abutted the
landing. One plate was about 18 inches high and the other 24 inches high. (Tr.
19). Inspector Gulati testified that a miner will travel to the landing once a
week to check on the condition of the screen and the handrails. (Tr. 19-20). Miners
would also go to the landing to perform routine maintenance as needed.

Inspector Gulati believes that the cited
condition violated section 56.11012 because the top chain, “which subs as a
handrail,” was not “functional at the time of [the] inspection.” (Tr. 21). He
determined that the landing at the top of the stairway was a “travelway”
because employees “did access this place during operation for workplace
examination and during maintenance.” (Tr. 22). The inspector considered the
violation to be obvious. (Tr. 23).

Richard Hamilton, the foreman at the
Parks Bar Quarry, testified that the landing at the top of the stairway next to
the shaker screen is a work platform that is used to “gain access to the
screen, the shaker deck, for maintenance and inspection.” (Tr. 76). He said
that there was no other reason for a miner to be on this platform. Miners do
not walk or travel on this platform to get from one place to another. (Tr.
78-79). The plant is always locked out and tagged out when performing these
functions and the chain would need to be unlatched from one side while
performing this work. (Tr. 76).  He had never noticed that the latch was broken
on one side and believed it occurred a few days prior to the inspection. (Tr.
77). The plant was locked out for several days preceding the day of Inspector Gulati’s
inspection so a pre-operational examination was not performed. (Tr. 78). Hamilton
believes that the steel plates on the side of the “rip rap chute” prevented a
miner from falling off the platform. (Tr. 78).

The principal issue raised by Nordic
Industries concerns the definition of “travelway” as used in the safety
standard.  Travelway is defined as “a passage, walk or way regularly used and
designated for persons to go from one place to another.” 30 C.F.R. § 56.2. Nordic
Industries contends that the platform at the top of the stairway was not a
travelway because it was not a walk or way regularly used and designated for persons
to go from one place to another. A miner would only travel to the platform to
perform work.

I find that the evidence establishes
that the cited area was a travelway, as that term is defined by the Secretary
at section 56.2 and that Nordic Industries violated the cited safety standard. It
is clear that the platform was not a pedestrian walkway through the plant, but
miners walked across the platform to get to the screen for maintenance. As Hamilton
testified, the platform was used to “gain access to the screen, the
shaker deck, for maintenance and inspection.” (Tr. 76) (emphasis added). Although
Hamilton testified that there would be no reason for a miner to be upon the
platform other than to perform maintenance, he admitted that there were no
barricades at the bottom of the stairs to prevent a miner from accessing the
platform. (Tr. 76, 86-87). Thus, a miner could walk up to the platform to
visually inspect the screen or to provide assistance during maintenance and the
chain would not be present to provide a warning or protection. I find that the
steel plates at the bottom of the opening did not supply the needed protection
and, indeed, could present a tripping hazard.

I find that the gravity was low. Hamilton
testified that company policy requires that the screen be locked and tagged out
before anyone walks up to the platform. (Tr. 76, 79). I credit this testimony. The
violation presented a stumbling hazard. As the inspector determined, the most
likely injury would be cuts, lacerations, or fractures. (Tr. 23). The
likelihood of an injury was low. The company’s negligence was low. The plant
had been shut down for several days at the time of the inspection and a
pre-operational examination had not been performed. The violation was not
obvious given the company’s safety policies.

I MODIFY Citation No. 8702904 to
reduce the gravity and negligence to low. A penalty of $100.00 is appropriate
for this violation.

B. Citation No. 8702905

On October 23, 2013, Inspector Gulati
issued Citation No. 8702905 under section 104(a) of the Mine Act, alleging a
violation of section 56.11001 of the Secretary’s safety standards. (Ex. G-5). The
citation alleges that safe access was not provided to the operator of a John
Deere excavator. Two of the four foot holds upon both sides of the excavator
were bent. The citation alleges that the condition created a fall hazard, which
could result in injuries.

Inspector Gulati determined that an
injury was unlikely to occur but that any injury could reasonably be expected
to result in lost work days or restricted duty. He determined that the operator’s
negligence was moderate and that one person would be affected. Section 56.11001
mandates that “[s]afe means of access shall be provided and maintained to all
working places.” 30 C.F.R. § 56.11001. Prior to the hearing, the Secretary
filed an unopposed motion to amend the penalty petition to allege, in the
alternative, a violation of section 56.14100(b).  That safety standard provides
that “[d]effects 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.” 30 C.F.R. § 56.14100(b). The Secretary proposed a penalty of $100.00
for this citation.

Discussion and
Analysis

Inspector
Gulati testified that the cited footholds on each side of the excavator were
bent inward or twisted upward. (Tr. 24-26; Ex. G-6, at 2-3). This condition
created a slipping, tripping, and falling hazard. (Tr. 26). Inspector Gulati
was testified that if a miner tried to use one of the damaged footholds, he
could slip because it would not provide 3 inches of toe clearance. (Tr. 59). The
inspector was especially concerned that the equipment operator could slip while
dismounting the equipment. (Tr. 55). The second foothold on each side was not
damaged, but they were a little over 33 inches above ground level. (Tr. 58). Foreman
Hamilton told the inspector that the footholds frequently become damaged during
normal operations. (Tr. 30).

Inspector
Gulati determined that the cited condition was unlikely to result in an injury
because there were handholds available. (Tr. 32). He determined that the
operator’s negligence was moderate because the condition was obvious. (Tr. 33).
He believed that the footholds were damaged “some time back.” (Tr. 54).

Hamilton
testified that the footholds had been in the same condition cited by the
inspector since 2007. (Tr. 80). He does not believe that the bent footholds
presented a safety hazard. Id. No miner had been injured while ascending
or descending the excavator. (Tr. 81). He is the principal operator of the
excavator and he had never been concerned for his safety while entering or
exiting the excavator’s cab. (Tr. 80; Ex. R-6).

Nordic Industries argues that the test to
be applied here is whether “a reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous condition, including
any facts peculiar to the mining industry, would recognize a hazard warranting
corrective action.” (Tr. 97-98). It argues that the evidence establishes that
the footholds could still be used and that anyone accessing the excavator would
be able to maintain three points of contact. Consequently, a reasonably prudent
person would not believe that the cited conditions created a hazard to miners.

The Commission has held that, under the
reasonably prudent person test, “the violative condition is appropriately
measured against the standard of whether a reasonably prudent person familiar
with the
factual circumstances surrounding the allegedly hazardous condition, including
any facts peculiar to the mining industry, would recognize a hazard warranting
corrective action within the purview of the applicable regulation.” Alabama
By-Products Corp.,
4 FMSHRC 2128, 2129 (Dec. 1982); see also Asarco, Inc., 14 FMSHRC
941, 948 (June 1992). The Commission stated in Ideal
Cement Co.,
“the appropriate test is not whether the operator had explicit prior notice of
a specific prohibition or requirement,” but whether a reasonably prudent
person, familiar with the protective purposes of the standard, would have
ascertained the specific prohibition of the standard and concluded that a
hazard existed in that “particular factual setting[].” 12 FMSHRC 2409, 2415-16
(Nov. 1990). Therefore, with respect to a broadly worded safety standard, if a
reasonable person with knowledge of the particular facts, including facts
peculiar to the mining industry, would recognize the existence of a defect
constituting a hazard requiring corrective action within the purview of the
applicable regulation, the operator has sufficient notice of the standard.

Both section 56.11001 and 56.14100(b)
are broadly worded safety standards. I find that a reasonably prudent person
would conclude that the bent footholds were a defect on the excavator that
affected safety. I also find that a reasonably prudent person would conclude
that Nordic Industries did not maintain a safe means of access to the cab of
the excavator, which was a working place. The risk of injury will be particularly
notable when a miner is descending from the cab of the excavator.

The Commission has held that
a violation of the MSHA’s 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 same principles apply
with respect to this citation. As a result of inattention, fatigue, and
environmental factors such as bad weather, a miner may slip and fall while
exiting the cab because he was unable to maintain a good foothold regardless of
maintaining three points of contact. The miner could easily sustain scrapes,
bruises, or more serious injuries. As Inspector Gulati recognized, such an
event was not reasonably likely. I find the Secretary established a violation
of both safety standards, but I base my decision upon a violation of section
56.14100(b). The gravity was only moderately serious.

I find that the violation
was the result of Respondent’s low negligence. I credit the testimony of Hamilton
that at least one of the footholds was damaged since 2007, soon after Nordic
Industries purchased the excavator. (Tr. 80). Hamilton normally operates the
excavator and he credibly testified that he never had any difficulty accessing the
cab or exiting the cab and that he never slipped while doing so. Id. Hamilton
genuinely believed that the excavator was safe to operate in the cited
condition and his belief was not unreasonable under these circumstances. (See
e.g. Ex. R-6)

I MODIFY Citation No. 8702905 to
reduce the negligence to low. A penalty of $100.00 is appropriate for this
violation.

C. Citation No. 8702906

On October 23, 2013, Inspector Gulati
issued Citation No. 8702906 under section 104(a) of the Mine Act, alleging a violation
of section 56.14130(i) of the Secretary’s safety standards. (Ex. G-7). The
citation alleges that the lap portion of the seatbelt on a Caterpillar wheel
loader was not maintained in functional condition and replaced when necessary
to assure proper performance. Specifically, the citation alleges that the 2 ¾
inch strap on the left side of the driver was badly frayed over a length of
about 4 inches and also contained cuts, holes or nicks. It states that more
than 50% of the webbing across its width was damaged and worn out.

Inspector Gulati determined that an
injury was reasonably likely to occur and that an injury could reasonably be
expected to be fatal. He determined that the operator’s negligence was moderate
and that one person would be affected. Section 56.14130(i) states, in part,
that seat belts on wheel loaders “shall be maintained in functional condition
and replaced when necessary to assure proper performance.”  30 C.F.R. § 56.14130(i).
The Secretary proposed a penalty of $263.00 for this citation.

Discussion and
Analysis

Inspector
Gulati testified that when he examined the left side of the lap belt he saw
that it was “very, very badly nicked.” (Tr. 34, 36-39; Ex. G-8 at 3-5). He saw
“holes,” “longitudinal cuts,” and a “vertical tear across the bridge of that
strap.” (Tr. 34). He characterized the belt as “very badly worn out.” (Tr.
34). Inspector Gulati determined that the conditions he observed violated
section 56.14130(i) because the seatbelt “was not replaced in spite of the fact
that it was severely frayed, nicked, had holes, [and] had cuts, both
longitudinally and across the width of the belt.” (Tr. 42).[1]

Inspector
Gulati was advised by Hamilton that the loader had not been subjected to a
pre-operational examination because the loader arrived at the mine site about a
week earlier and was never used. (Tr. 39). Hamilton also told the inspector
that it was “available for use to top off the customer trucks.” Id. The
loader was not tagged out. (Tr. 41). Because the vehicle had not been used at
the mine, Inspector Gulati gave Nordic Industries an opportunity to perform a
pre-operational examination upon the loader before he inspected it. Inspector
Gulati did not start his inspection of the loader until he was told that the
pre-operational exam was completed. (Tr. 40-41).

The
inspector was concerned that if Nordic Industries continued to use the loader
with the damaged seatbelt, the belt would fail during a serious accident. (Tr.
42). He cited a document entitled the “Operator Restraint System for Off-Road
Work Machines” produced by SAE International, which recommends that seat belts
be immediately replaced if the belt strap is “nicked or frayed.” (Tr. 45; Ex.
G-9 at 4).

Inspector
Gulati determined that the violation was S&S because, with all the holes,
nicks, and cuts, the strength of the strap was compromised. The “minimal width
of the strap” would not hold a miner in the event of an accident. (Tr. 46). An
injury would likely be fatal. Id. He determined that Respondent’s
negligence was moderate because he gave the operator the opportunity to
discover the violation during the pre-operational examination. (Tr. 47).

Hamilton
testified that Nordic Industries replaces seatbelts when they become damaged or
inoperable. (Tr. 83). He said that he felt rushed and intimidated during the
pre-operational examination that day because the inspector stood a few feet
away. (Tr. 84). Hamilton believes that before the loader was operated for the
first time, the equipment operator would have performed a more thorough
pre-operational examination and discovered the problems with the seatbelt. Hamilton
testified that he would have shut down the loader until a new seatbelt arrived.
Furthermore, he testified that the defective seatbelt did not present a hazard
because that loader is only used to top off loaded trucks and its speed would not
exceed five miles per hour. (Tr. 85). If there was an accident at that speed,
the seatbelt would fully restrain the loader operator. (Tr. 86).

Nordic
Industries argues that the Secretary did not establish a violation of the
safety standard. More critically, it contends that the Secretary did not
establish that the violation was S&S. The loader was delivered to the mine
about a week before the inspection, was not used, and was not given a thorough
pre-operational checkup. (Tr. 99). The operator would have replaced the
seatbelt before it was put into service.

I
find that the Secretary established a violation of the safety standard. The
cited equipment was a wheel loader and the seatbelt was not replaced to assure
proper performance. I credit the inspector’s description of the damage as documented
by his photographs. Nordic Industries cited three cases to support its position
that the citation should be vacated: Ammon Enterprises, 30 FMSHRC 799,
813-14 (July 2008) (ALJ); Ron Coleman Mining, Inc., 21 FMSHRC 935,
935-36 (Aug. 1999) (ALJ); Buffalo Crushed Stone, 16 FMSHRC 2154, 2161
(Oct 1994) (ALJ). Those cases are inapposite. In one case the inspector
testified that the seatbelt would still function properly if the vehicle were
involved in a rollover accident, in another the inspector said that the
seatbelt would still function despite the damage to the belt, and in one case
the citation was issued because the seatbelt was dirty and oil stained.

I
find that the Secretary did not establish that the violation was S&S.[2]
The violation created a discrete safety hazard. The issue is whether there was a reasonable likelihood that the hazard contributed
to by the violation would cause injury. A seatbelt protects the equipment
operator from injury in the event of an accident and helps keep him in his seat
when traveling over rough terrain. I credit the testimony of Hamilton that
at the time of the August 2014 hearing, the loader was only used on an
occasional basis to top off large double bottom dump trucks that had been loaded
using larger loaders. (Tr. 84-85). That was its intended use. As a consequence,
assuming continued mining operations, the loader will travel in a flat area
away from other traffic and it will not exceed a speed of five miles per hour. The
hazard presented by the violation was that the loader operator would be injured
in the event of an accident due to the condition of the seatbelt. I find that
under the facts in this case it was unlikely that the seatbelt would fail to
protect the equipment operator in an accident and, as a consequence, the
violation did not contribute to the risk of an injury.[3]
I find that the gravity of the violation was serious and that, while unlikely,
a fatal injury was possible.

I
find that Respondent’s negligence was moderate. Nordic Industries was given the
opportunity to perform a pre-operational check of the loader and its employees
failed to inspect the seat belt. My negligence finding considers that the
loader had not been used at the mine prior to this MSHA inspection.

I MODIFY Citation No. 8702906 to delete
the S&S determination. A penalty of $100.00 is appropriate for this
violation.

II. APPROPRIATE
CIVIL PENALTIES

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-12). Respondent was issued
three citations in the 24 months prior to October 23, 2013, and only one of
these citations was designated as S&S. Respondent is a small operator. The violations
were abated in good faith. The penalties assessed in this decision will not
have an adverse effect upon the ability of Respondent to continue in business. The
gravity and negligence findings are set forth above.

III.
ORDER

I
MODIFY the citations for the reasons set forth above. Nordic Industries,
Inc., is
ORDERED TO PAY the Secretary of Labor the sum of $300.00 within 30 days
of the date of this decision.[4]

/s/
Richard W. Manning

Richard W.
Manning 

Administrative
Law Judge

Distribution:

Randy L.
Cardwell, Conference & Litigation Representative, Mine Safety & Health
Administration, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687
(Certified Mail)

Isabella M.
Finneman, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th
Street, Suite 3-700, San Francisco, CA 94103-6704 (Certified Mail)

Bradley B.
Johnson, Esq., Harrison, Temblador, Hungerford & Johnson, 980 9th
Street, Suite 1400, Sacramento, CA 95814 (Certified Mail)

RWM

[1]
I credit
Inspector Gulati’s description of the damage to the belt and his photographs
depicting the damage. (Tr. 34-39; Ex. G-8 at 3-5). Respondent’s photo was taken
after the belt was removed from the vehicle. (Ex. R-7).

[2]
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
Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).

[3]
These
facts are similar to East Coast Limestone, Inc., 19 FMSHRC 761, 765-66
(April 1997) (ALJ). In that case, the seatbelt was severely damaged, but the
cited loader traveled at speeds that did not exceed 10 miles per hour because
it was only used to pick up material and dump it into the crusher. The judge
modified the citation to delete the S&S designation.

[4] 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.