Secretary of Labor v. Dulin Construction, Inc.

Plain-English summary

A three-foot-deep pile of crushed gravel blocked the base of the only ladder to a conveyor head pulley and work platform at Dulin Construction's small gravel pit. The company said the pile also served as a berm protecting the ladder and conveyor from a wheel loader. Judge David F. Barbour held that miners still faced a slipping and falling hazard and that a claimed reduction in overall safety cannot be used as a defense unless the Secretary first grants a modification of the standard. He allowed the Secretary to amend the citation from the housekeeping standard, 30 C.F.R. § 56.20003(a), to the safe-access standard, 30 C.F.R. § 56.11001. Because the ladder was used only about monthly and the company's safety rationale mitigated its negligence, the judge retained unlikely injury and moderate negligence and assessed the proposed $100 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11001 and 56.20003(a)
• Outcome: The citation was amended to the safe-access standard and affirmed with unlikely injury, moderate negligence, and a $100 penalty.
• Key point: Material placed as a protective berm cannot block the only safe route to a work platform, and diminution of safety is not a defense without an approved modification petition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

DULIN
CONSTRUCTION INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2014-655-M

A.C.
No. 45-01429-349489

Mine:
Pit #1

DECISION AND
ORDER

Appearances:               Donald
S. Horn, CLR, U.S. Department of Labor, Mine Safety and Health Administration, Vacaville,
CA for Petitioner[1]

Mark
Dulin, Dulin Construction Inc., Centralia, WA for Respondent

Before:                        Judge
Barbour

This case is before the court upon a petition for assessment
of civil penalty under Section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). In his
petition, the Secretary of Labor (“Secretary”) asks the court to fine Dulin
Construction, Inc. (“Dulin”) $100 for
allegedly violating mandatory safety standard 30 C.F.R. § 56.11011.[2] The
violation allegedly occurred when Dulin allowed aggregate to accumulate around
and under a ladder used by one of its employees to access a work platform to
service the head pulley of a conveyor belt. Section 56.11001 requires safe
access to be maintained to working places and the Secretary charges that the
accumulated aggregate made access to the cited area unsafe.[3]

After the petition was filed, the court ordered the parties
to engage in discussions to determine if they could settle the matter. Although
they could not reach a settlement, they agreed to forego a trial and to ask the
court to decide the case based on stipulations and exhibits. Accordingly, pursuant
to Commission Rule 67, 30 C.F.R. §
2700.67, the CLR filed jointly agreed upon stipulations and a motion seeking
summary decision on the one citation at issue.

THE STIPULATIONS

The court accepts the following stipulated facts to be
undisputed:

1.     
The
Administrative Law Judge and the Federal Mine Safety and Health Review
Commission have jurisdiction over
this proceeding.

2.      Pit #1 is a
surface mine that extracts construction sand and gravel,
and is subject to the
Federal Mine Safety and Health Act of 1977.

3.     
At all
times relevant to these
proceedings, Dulin Construction Inc. operated the Pit #1 Mine.

4.      Joshua Mark Mathisen was acting in his official
capacity as an authorized representative of the Secretary of Labor when he issued citation
number 8610507,   and . . . the citation was properly
served upon an agent of the respondent.

5.     
The violation was promptly abated.

6.      Payment of the proposed penalty
will not affect the Respondent’s ability to continue
in business.

7.      [T]he
Respondent’s mine size is small, and . . . the employment hours documented
in Exhibit A of the
Petition for Assessment are correct.

8.     
[The]
Respondent’s history of violations
as documented in Exhibit A of the Petition for Assessment is correct.

9.      [T]he photographs submitted as Exhibits P1, P2 and
P3 are authentic and are factual representations of the conditions
observed by the inspector.

10.  [T]he document submitted as Exhibit P4 [(a copy of Dulin’s answer)] is authentic and was submitted by the Respondent to FMSHRC in response to the
Secretary’s Petition for Assessment.

11.  [T]he area
described in [the c]itation and depicted in the photographs marked
Exhibit P1, P2 and P3 is a workplace.

12.  [T]he material build-up described in Citation
No. 8610507 blocked
the base of the
ladder.

13.  [T]he material was measured by the inspector to be three feet deep at the base of
the ladder.

14.  [T]he material was sloping away from the base of the ladder for a distance
of approximately five feet as measured
by the inspector.

15. 
[T]he
ladder is the only means
of access to the finish belt
head roller and work platform. (Exhibit P1) [(Photograph of the
aggregate, ladder, and work platform.)]

16. 
Respondent was aware of the material build-up described in [the c]itation. (Exhibit P4)

17. 
Respondent was aware that a person
(greaser man) would walk over this build-up
of material. (Exhibit P4)

18. 
While the
Secretary believes the cited standard, 30 C.F.R. § 56.20003(a), is appropriate, the Secretary moves
to amend the citation to reflect, instead,
a violation of 30 C.F.R. § 56.11001 as even more
appropriate.

Motion
to Amend Citation and Order for Summary Judgment 2-3

THE
REGULATION

30 C.F.R. § 56.11001:
Safe Access

Safe means of access shall be provided and
maintained to all working places.

SUMMARY
DECISION

Commission
Rule 67(b) provides that a “motion for summary decision shall
be granted only if the entire record, including the pleading, depositions,
answers to interrogatories, admissions, and affidavits shows: (1) That there is
no genuine issue as to any material fact; and (2) that the moving party is
entitled to summary decision as
a matter of law.” 29 C.F.R. § 2700.64(b). Here, the burden is on the Secretary, as the moving
party, to establish his right to summary decision, and I conclude that the Secretary has met his
burden.

DISCUSSION

To prove a violation of section 56.11001, the Secretary
must establish that the area involved was a “means of access” to a “working
place” and that the means of access was not “safe”. The parties have stipulated
to the fact that the cited area was a working place. Stip. 11. The parties have
also stipulated that the material build up described in the citation blocked
the base of a ladder that provided access to a belt head roller and work
platform
and that a greaser man would walk over the material when accessing the area.[4]
Stip. 12, 15, 17. The only question remaining is whether the cited conditions
made it unsafe for the greaser to access the work platform.

The stipulations establish that the material was three feet deep at the
base of the ladder and sloped approximately five feet away from that base.
Stip. 13, 14. The Secretary’s photographs depict a sizable build-up of large,
uneven pieces of gravel, sloping upwards toward a ladder. See Ex. P1, P2.
There is no question that a miner navigating this area in order to access the ladder
and work platform would risk injury from slipping and falling. These conditions
render the area unsafe. The photographs and undisputed facts clearly establish
a violation.

The company’s primary defense is that “the gravel pile
arrangement is part of a worthy safety system[,]” because it acts as a “safety
berm” for the ladder and for the legs of a 25 foot high overhead conveyer in
that very same area. Ex. P4. The gravel protects the ladder and conveyer from a
wheel loader that accesses the area daily in order to gather product. Id.
It thereby prevents the loader from knocking over the conveyer and causing a
“catastrophic event.” Id. In short, the company argues that the cited
conditions prevent an even greater safety hazard.

Section 101(c) of the Mine Act allows the Secretary to modify
the application of any mandatory safety standard to a mine if such application
will result in a diminution of safety to the miners. 30 U.S.C. § 811(c). Dulin
is effectively alleging that application of the mandatory safety standard at
issue in this matter will result in a diminution of safety. However, a section
101(c) modification is solely within the jurisdiction of the Secretary, instead
of the Commission. The Commission has held “that diminution of safety may not
be raised as a defense to violation in an enforcement proceeding unless the
Secretary has first entered a finding of such diminution in a modification
proceeding. “ Clinchfield Coal Co., 11 FMSHRC 2120, 2130 (Nov. 1989)
(citing Sewell Coal Co., 5 FMSHRC 2026, 2029 (Dec. 1983)). Modification
cases are heard by Department of Labor Administrative Law Judges. If Dulin wishes
to resolve this diminution of safety issue, the company must first raise it in
a modification proceeding before the Department of Labor.

The court
also agrees with the Secretary’s gravity and negligence determinations. The
citation stated that “the finish belt head pulley was accessed approximately
once per month for greasing.” While any injury that occurred from a slip or
fall could reasonably be expected to result in lost workdays or restricted
duty, the ladder was not accessed frequently enough to make an injury likely.
Therefore, the court finds the gravity of the violation to be of
minor seriousness. The court further finds that Mr Dulin’s awareness that a
miner would have to walk over the build-up of material establishes the
company’s negligence (Stip. 17), but his good faith belief that “the gravel
pile arrangement [was] part of a worthy safety system” mitigates the company’s
negligence to “moderate” as originally designated in the citation. Ex. P4.

CIVIL
PENALTY ASSESSMENT

The court has found a violation and it
must assess a civil penalty taking into account the statutory civil penalty
criteria. 30 U.S.C. § 820(i). The court has further found that the
violation was only slightly serious, that an accident was unlikely, and that
the violation was due to moderate negligence. The parties have stipulated that
the mine is small, that the violation was promptly abated, that payment of the
proposed penalty will not affect the company’s ability to continue in business,
and that
the
company’s history of violations as documented in Exhibit A of the Petition for
Assessment is correct. Stip. 5, 6, 7, 8. The court finds that the exhibit
reflects a small history.[5]

The Secretary has proposed a penalty of
$100, and given these findings and the civil penalty criteria, the court finds
that a penalty of $100 is appropriate.

ORDER

Within 30 days of the date of this
decision, Dulin is ORDERED to pay to the Secretary a civil penalty of
$100.00, and upon payment of the penalty this case is DISMISSED.[6]

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:

Donald
S. Horn, CLR, U.S. Department of Labor, Mine Safety and Health Administration, 991

Nut
Tree Road, 2nd Floor, Vacaville, CA 95687

Mark
Dulin, Dulin Construction, Inc., P.O. Box 38, Centralia, WA 98531

[1]
As
a preliminary matter, the
Conference and Litigation Representative (“CLR”) is accepted to represent the
Secretary of Labor in accordance with the notice of limited appearance he has
filed with the penalty petition. Cyprus Emerald Res. Corp., 16 FMSHRC
2359 (Nov. 1994).

[2]
Dulin is a
small contractor that as part of its business crushes aggregate (gravel) to
size at a gravel pit it operates in Lewis, Washington, and $100 is the lowest
penalty the Secretary can propose. 30 C.F.R. § 100.3.

[3]
Dulin was
originally cited for an alleged violation of 30 C.F.R. § 56.20003(a), a mandatory standard requiring among
other things, that “workplaces [and] passageways . . . be kept clean and
orderly[.]” The Secretary moved the court to modify both the citation and the
petition to allege a violation of section 56.11001, Dulin did not object to the
motion, and it is GRANTED.

[4] The original
citation describes this material as “1 ¼ inch minus crushed aggregate.” The
company describes it as crushed gravel. Ex. P4. Both terms are correct.

[5] Exhibit A of the Petition states
that 13 violations have become final orders for the company in the preceding 15
months.

[6]
Payment
may be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF
LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390.