Secretary of Labor v. Climax Molybdenum Company

Plain-English summary

Climax Molybdenum's mill in Colorado uses two large grinding mills whose rotating cylinders are moving machine parts. Some sections had eight-foot metal guarding, but elsewhere the only barrier was a waist-high handrail with warning signs and locked gates, set at least seven feet back from the cylinders. MSHA cited the company for failing to guard the moving parts. Climax argued it fit the guarding exception, which drops the requirement when moving parts are at least seven feet from any walking or working surface, and that no one goes inside the handrails unless the mills are locked and tagged out. Both sides moved for summary decision on stipulated facts. Judge Richard W. Manning granted the Secretary's motion, holding that the space inside the handrails is itself a working surface because miners enter it to perform maintenance, and that surface is within seven feet of the cylinders. He reasoned that the guarding standard exists to protect against momentary inattention and ordinary human carelessness, so a policy, a sign, and a locked gate do not replace a physical guard, and that a part counts as a moving machine part whether or not it happens to be turning at a given moment. He rejected the lack-of-notice defense because the standard's language is clear and MSHA has consistently refused to accept perimeter fencing in place of guards. The citation was affirmed as issued with the proposed $263 penalty.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14107(a) and the exception at § 56.14107(b)
• Outcome: The Secretary's motion for summary decision was granted, Climax's was denied, and Citation No. 8761777 was affirmed as issued with a $263 penalty.
• Key point: An area miners enter to service equipment is a working surface even if they always lock out first, so the seven-foot guarding exception does not apply and handrails, signs, and lockout policies cannot substitute for guards.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

Office of
Administrative Law Judges

721 19 th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

September 19, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CLIMAX
MOLYBDENUM COMPANY,

Respondent

CIVIL
PENALTY PROCEEDING

Docket No.
WEST 2015-0838-M

A.C. No. 05-02256-385302

Climax Mine

ORDER GRANTING THE SECRETARY’S MOTION FOR SUMMARY
DECISION &

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY
DECISION

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
Climax Molybdenum Company (“Climax”) 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 filed simultaneous cross-motions for summary decision and
responses. For the reasons set forth below, the Secretary’s Motion for Summary
Decision is GRANTED and Respondent’s Motion for Summary Decision is DENIED .

BACKGROUND

On May 7, 2015, MSHA Inspector John
C. Kalnins issued Citation No. 8761777 to Respondent under section 104(a) of
the Mine Act, 30 U.S.C. § 814(a), alleging a violation of section 56.14107(a)
of the Secretary’s safety standards. 30 C.F.R. § 56.14107(a). The citation
states as follows:

There were no
guards to prevent miners from coming in contact with the mills or the openings
in the floor around the mills. There were handrails with warning signs meant to
keep the miners out of the hazardous area. A miner coming in contact with
moving machine parts or falling thru the floor could receive fatal injuries.
This hazard was open and obvious but was not recognized as a hazard.

Inspector Kalnins determined that
it was unlikely an injury or illness would be sustained as a result of the
violation, but that any injury could reasonably be expected to be fatal. He
determined that the violation was not of a significant and substantial nature
(“S&S”), would

affect only one person, and was a result of Respondent’s
moderate negligence. The Secretary proposed a penalty of $263.00 for the
alleged violation.

STIPULATED FACTS

On July 5, 2016 the parties
submitted joint stipulations, as well as three photographs, i.e., Figure 1a,
Figure 1b, and Figure 2. The stipulations are as follows:

1. Respondent
   Climax Molybdenum Company (“Climax”) operates the Climax Mine in Colorado,
   which mines and mills molybdenum.

2. Climax’s
   mining operations affect interstate commerce.

3. Climax
   is subject to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
   seq . (the “Mine Act”) and jurisdiction of the Mine Safety and Health Administration
   (“MSHA”).

4. Climax
   is an “operator” as that word is defined in § 3(d) of the Mine Act, 30 U.S.C. §
   803(d), at the Climax Mine (Federal Mine I.D. No. 0502256) where the contested
   citations in these proceedings were issued.

5. The
   Administrative Law Judge has jurisdiction over these proceedings pursuant to § 105
   of the Act.

6. On
   the dates the citation in this docket was issued, the issuing MSHA inspector was
   acting as a duly authorized representative of the United States Secretary of Labor,
   assigned to MSHA, and was acting in his official capacity when conducting the
   inspection and issuing the MSHA citation.

7. The
   MSHA citation at issue in these proceedings was properly served upon Climax as
   required by the Mine Act.

8. The
   citation at issue in these proceedings may be admitted into evidence by stipulation
   for the purpose of establishing its issuance.

9. The
   photographs taken by the issuing inspector, John C. Kalnins, are a fair and accurate
   representation of the condition of the mills and surrounding area as observed
   by Mr. Kalnins on the date of the inspection at which the contested citation
   was issued.

10. Figures 1a and 1b, attached
    to these stipulations, is an aerial photograph of the two mills.

11. The mills are situated
    within an enclosed facility which, as shown in Figures 1a and 1b, contains a
    network of platforms, travelways, and stairways. These two photographs were
    taken on July 5, 2016 and depict the mills in the condition they existed after
    the abatement of this citation. They are included primarily to provide context
    to the general area.

12. The handrails depicted in
    the photographs are approximately waist-high.

13. Climax demonstrated good
    faith in abating the violation.

14. As part of the milling
    process, Climax employs two mills – one semi-autogenous grinder (SAG) mill, and
    one ball mill. The primary function of the mills is to grind the ore, and the
    key feature of each is the large cylinder (or drum) into which ore is fed – the
    cylinder rotates, churning the ore, while heavy metal balls inside the cylinder
    facilitate the grinding process.

15. It is the rotating cylinders
    of each of the two mills that constitute the “moving machine parts” that are
    relevant to this contest proceeding.

16. At the time of the
    inspection at which the contested citation was issued, there existed at certain
    places along the handrail system metal guarding approximately eight feet in
    height from the floor. The yellow guarding shown in Figure 2 is representative
    of this.

17. The locations at which the
    yellow guarding existed at the time of inspection were within seven feet of the
    exposed moving parts of the mills. At all other locations, the handrails were
    situated at least seven feet away from the exposed moving parts of the mills.

18. Gates are situated at
    various points in the handrail system to provide access to the mills. It is the
    policy of Climax that these gates are kept locked when the mills are operating
    and that no miner (or any other person) is to work or walk on the inside (the
    mill side) of the handrails except for maintenance when the mills are locked
    and tagged out.

SUMMARY OF
PARTIES’ ARGUMENTS

The Secretary argues that
Respondent violated section 56.14107(a) when it failed to guard the rotating
cylinders of the two mills. Sec’y Mot. 4. While portions of the mills were
guarded, other areas were not. The unguarded areas were surrounded by handrails
with locked entry gates. Perimeter or area guarding, such as fences or locked
gates, does not meet the requirements of the cited standard. Id . at 5
(citing Walker Stone Co. Inc. , 16 FMSHRC 337 (Feb. 1994) (ALJ) and Oil-Dri
Production Co. , 32 FMSHRC 1761 (Nov. 2010) (ALJ)). Id . The fact that
the operator had a policy prohibiting miners from walking or working in the
areas inside the handrails unless the mills were locked and tagged out is
irrelevant to the question of whether there was a violation. Id . 5-6. Here,
there is no dispute that “miners entered the gated area of the mills for
maintenance of the moving machine parts; thus a violation exists under strict
liability.” Id . 7. While section 56.14107(b) contains an exception to
the guarding requirement when walking or working surfaces are at least seven
feet away from the moving machine parts, that exception does not apply to the
situation at hand because the areas inside the handrails and gates were accessed
to conduct maintenance. Id . Finally, the Secretary argues that a miner
coming in contact with these moving machine parts could suffer a fatal injury
and that the violation was the result of moderate negligence given its open and
obvious nature. Id . 8.

Climax argues that Citation No.
8761777 should be vacated because the cited areas fit within the guarding exception
set forth in section 56.14107(b). The exception permits moving machine parts to
remain unguarded when those parts are at least seven feet from walking and
working surfaces. Here, guards were not needed because the only walking or
working surfaces where guards had not been installed were at least seven feet
from the moving machine parts on the mills. Climax Mot. 1-2. The operator
“clearly delineated the walking and working surfaces more than seven feet from
the mills with contiguous waist-high handrail barriers and signage, and
therefore did not need additional guarding[.]” Id . 6. Miners do not walk
or work in the areas inside the handrails unless the mills are locked and
tagged out. Id . 6, 10-11. Finally, Climax asserts that, even if the
court were to accept the Secretary’s position, given MSHA’s lack of prior
enforcement and the clear language of the guarding exception standard, the
citation should be vacated based on lack of notice of the Secretary’s
interpretation. Id . 6-7.

The Secretary, in his response to
Respondent’s motion, argues that the use of signage to indicate “danger,” the
existence of a lock out tag out policy, and any evidence that persons never
worked or walked by the mills unless the mills were locked out and tagged out
are immaterial to the determination of whether a violation existed. Sec’y
Response. 1-3. Further, the Secretary argues that the lack of enforcement of
the standard in the past is an issue addressed through the negligence analysis
and a reasonably prudent person would have understood that the mills required
guarding based upon the plain language of the cited standard. Id . 3.

Climax, in its response to the
Secretary’s motion, reiterates many of the same points made in its motion for
summary decision, and stresses that when machine parts are not moving it does
not matter whether an adjacent space is a walking or working surface since no
guarding is required. Climax Response 1-2. Further, persons only perform
maintenance when the mills are locked out and tagged out and there is no
evidence that that this policy is not followed. Id . 2. Furthermore, the
Secretary’s interpretation of subsection (b) of the standard is unreasonable
since, “under his logic, no amount of distance between a walking or working
surface and moving parts would suffice because there would always be the
possibility that a miner could find a way to access the moving parts and
perform maintenance without first locking and tagging out the machinery.” Id .
2

DISCUSSION AND
ANALYSIS

Commission Procedural Rule 67 sets forth the grounds for granting summary
decision, as follows:

A motion for summary decision shall be granted only if the
entire record, including the pleadings, 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. §
2700.67(b).

The Commission has long recognized that “summary decision is an
extraordinary procedure.” Energy West Mining Co., 16 FMSHRC 1414, 1419
(July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470,
2471(Nov.1981)). The Commission has analogized Commission Procedural Rule 67 to
Federal Rule of Civil Procedure 56. Hanson Aggregates New York, Inc. , 29
FMSHRC 4, 9 (Jan. 2007); See also Energy West , 16 FMSHRC at 1419 (citing
Celotex Corp v. Catrett , 477 U.S. 317, 327 (1986)). When the Commission
reviews a summary decision under Rule 67, it looks “‘at the record on summary
judgment in the light most favorable to . . . the party opposing the motion,’
and that ‘the inferences to be drawn from the underlying facts contained in
[the] materials [supporting the motion] must be viewed in the light most
favorable to the party opposing the motion.’” Hanson Aggregates New York
Inc. , 29 FMSHRC at 9 (quoting Poller v. Columbia Broadcasting Sys., Inc. ,
368 U.S. 464, 473 (1962); United States v. Diebold, Inc. , 369 U.S. 654,
655 (1962)).

The citation was issued under section 56.14107(a) which requires mine
operators to guard moving machine parts in order to protect against persons
coming in contact with those parts. 30 C.F.R. § 56.14107(a). Subsection (b) of
the standard provides an exception to the guarding requirement when the moving
machine parts are at least seven feet away from walking or working surfaces. 30
C.F.R. § 56.14107(b). In order for the Secretary to sustain a violation in this
case the undisputed material facts must establish a violation under subpart (a)
of the cited standard. As the Secretary correctly points out, this involves a
three step analysis. Sec’y Mot. 4. First, the court must determine whether
moving machine parts were present. Second, if moving machine parts were
present, then the court must then look to see whether those parts were guarded.
Third, if the moving machine parts were unguarded, the court must determine
whether those parts were at least seven feet away from walking or working surfaces.

With regard to the first step of the analysis, the parties have
stipulated that “two rotating cylinders of each of the two mills” are “moving
machine parts” as contemplated by the cited standard. Jt. Stip. 15. Consequently,
I must next determine whether the moving machine parts were guarded. The
Secretary states in a footnote that the areas of the rotating cylinders that “were
guarded by yellow metal guarding” are not at issue. Sec’y Mot. 4 n. 1. Rather,
he only takes issue with the areas where handrails and locked gates were
present in lieu of guards. Sec’y Mot. 4. Accordingly, I have restricted my
analysis to these areas where handrails, and not the 8 foot tall yellow metal
guarding, were present.

I find that moving machine parts on the two mills were not guarded. Climax,
in its motion, concedes that that the moving machine parts were not guarded. It
does not argue that the handrails were guards.
[1]
Rather, it argues that guarding was not required in these areas because the
walking and working surfaces were not within seven feet of the moving machine
parts. Climax Mot. 7-9. Aside from the handrails, no other guarding is alleged
to have been present. Accordingly, I find that moving machine parts of the two
mills were not guarded in areas where only handrails, and not the 8 foot tall
yellow metal guarding, were present.

The final element of my analysis,
i.e., whether the moving parts of the mills were more than seven feet from
walking and working surfaces, is the key issue raised in this case. The parties
are in agreement that the “handrails were situated at least seven feet away
from the moving machine parts of the mills.” Jt. Stip. 17. The handrails, at
the very least, delineated the walking or working surface on the outside of the
handrails from the areas between the handrails and the moving machine parts. However,
the Secretary alleges that the areas between the handrails and the moving
machine parts of the mills are also walking or working surfaces. I agree. The
parties have stipulated that miners “work or walk on the inside (the mill side)
of the handrails” in order to conduct maintenance. Jt. Stip. 18. While the term
“walking or working surface” as used in the standard is not defined, conducting
maintenance in the areas constitutes working in the areas. [2]
Therefore, I find that the areas inside the handrails were working surfaces and
that those surfaces were within seven feet of the moving machine parts. [3]

Climax raises two arguments that
are essentially one and the same. First, it argues that, because the mill parts
would not be moving at the particular time when miners were inside the rails,
there were no “moving machine parts” to guard.  Climax Response 3. Second, it
argues that the areas inside the handrails are not “walking or working
surfaces” because no one would ever be in the areas unless the mills were
locked out. [4]
Id . Climax asserts that it is the operator’s policy to keep the gates in
the handrails locked when the mills are operating and MSHA has no evidence that
anyone ever worked in the areas while the mills were in operation and the
machine parts were moving. Climax Mot. 6, 10-11. I find these arguments
unpersuasive.

Once it has been determined that
machinery or equipment includes moving machine parts, those parts must be
guarded. The standard applies whether or not those parts are moving at any
particular time. The parties agree that the two rotating cylinders are moving machine
parts. As a result I find that the cylinders must be guarded at all times. The
only time when the parts are not required to be guarded is when repairs are
taking place and steps have been taken by the operator to power off the
equipment and block it against motion. [5]
30 C.F.R. § 56.14105. Once the repairs have been completed, the guards must be
replaced. Here, no guards were present and the moving parts were exposed. Further,
just as the standard applies whether or not parts are moving at a particular
time, the question of whether an area is a walking or working surface is not
dependent on whether persons enter the area when the equipment is operating or
it is locked out. Rather, the issue is simply whether persons work or walk on
the surface. Here, as discussed above, the areas inside the handrails and gates
were working surfaces where persons performed maintenance.

In Nelson Quarries, Inc. , 36
FMSHRC 3143, 3146 (Feb. 2014) (ALJ) this court stated:

The Commission has held that a violation of a 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
Company, 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 Commission’s concern in Thompson Brothers is
directly applicable to the present matter. Even though Climax had a policy
prohibiting persons from entering the gates when the mill was in operation, the
standard is meant to account for the kind of momentary inattention or ordinary
human carelessness that would be associated with a miner entering the area when
the mills are in operation, or when the mill parts are not moving but the mills
are not locked or tagged out. “Even a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental distractions" and enter
the area without first shutting down the mills. Great Western Electric Co .,
5 FMSHRC 840, 842 (May 1983). The parties stipulated that miners tasked with
maintenance would be in the area. Jt. Stip. 18. While the handrails, gates, signage,
policies and procedures would dissuade a miner from entering the areas on the
inside of the handrails, only guards on the moving machine parts will provide a
physical barrier between the individual working in the areas and the cylinders
of the two mills. [6]
The areas inside the handrails are working surfaces even if every miner, past
and future, locks out and tags out the mills before entering the areas. Accordingly,
I find that, based on the undisputed material facts, a violation is
established. [7]

Climax states that “[u]nder the Secretary’s logic a mine operator could
erect a perimeter fence around moving machine parts at a radius of 10, or 100,
or even 1000 or more feet, and yet that would still violate subsection (a)
because there would always be a chance that a miner might enter within the
fence line and perform work on the moving machine parts without first locking
and tagging out the machinery.” Climax Response 10. It argues that this
interpretation is unreasonable since all moving parts require occasional maintenance.
I disagree with Climax’s assertion and find that the Secretary’s interpretation
is reasonable given the language and purpose of the cited standard, as well as
the Commission’s holding in Thompson Brothers . If work is going to be
conducted within seven feet of unguarded parts that can move, guarding must be
present. The Secretary’s concern regarding the use of a fence or handrails is generally
not that someone will reach over the fence or handrails and contact the moving
machine parts, but rather that someone will go inside the fence or handrails in
order to carry out assigned work without first locking out the machinery and he
will come in contact with the moving machine parts. The purpose of the standard
is to prevent just such an occurrence because, as stated in Thompson
Brothers , “ordinary human carelessness” and “the vagaries of human conduct”
cannot always be accounted for.

Respondent is really arguing with the language of the safety standard. Under
the interpretation urged by Climax, an operator would not be required to
provide guards for moving machine parts at a surface operation if it installs a
locked perimeter fence at least seven feet from the machinery and instruct
employees to always lock out and tag out the machinery before entering the
area. That is not what the language of the safety standard provides and it is
not how this safety standard has been enforced by the Secretary or interpreted
by the Commission.

I also find that Climax had notice
of the Secretary’s enforcement position. Climax asserts that the Secretary did
not provide “any notice that it would treat walking or working surfaces seven
or more feet from moving machine parts . . . as somehow not falling within the
scope of” the guarding exception set forth in section 56.14107(b). Climax Mot.

13. However, Climax’s argument misses the point. As with its argument regarding
    the fact of violation, much of Climax’s notice argument is premised on its
    belief that the areas inside the handrails were not a walking or working
    surface. However, for reasons discussed above, the areas inside the handrails were
    clearly walking or working surfaces because miners entered the areas to perform
    maintenance.

The Secretary has consistently
interpreted section 56.14107 to require the actual guarding of moving machine
parts and has not allowed the use of perimeter fencing or other barriers to be
substituted for guarding. For example, two administrative law judge decisions
from the 1990s demonstrate that the Secretary has consistently disallowed using
fences with locked gates as a substitute for guarding moving machine parts. Moline
Consumers Company , 15 FMSHRC 1954 (Sept. 1993) (ALJ); Wake Stone
Company, Inc. , 16 FMSHRC 337, 356-57 (Feb. 1994) (ALJ).

Climax’s failure to identify the
areas inside the handrails as walking of working surfaces where miners would be
in close proximity to moving machine parts does not absolve it of the fact of
violation, nor does it lend itself to a finding that it lacked notice. “[I]f
the language of a regulation provides clear and unambiguous notice of its coverage
and requirements, no further notice is necessary.” DQ Fire & Explosion
Consultants, Inc. , 36 FMSHRC 3083, 3088 (Dec. 2014) ( citing
Bluestone Coal. Co., 19 FMSHRC 1025, 1029 (June 1997) and Nolichuckey
Sand Co., 22 FMSHRC 1057, 1061 (Sept. 2000)). The cited regulation is clear
that moving machine parts need to be guarded to protect persons from coming in
contact with those parts. The exception set forth in subpart (b) is equally
clear that it applies only when moving machine parts are at least seven feet
from the walking or working surfaces. Here, the working surfaces inside the handrails
were not at least seven feet away from the moving machine parts and the parts
were not guarded to protect against miners in the areas coming in contact with
the moving parts. Accordingly, I find Climax was on notice that guards were
required.

APPROPRIATE CIVIL
PENALTY

Section 110(i) of the Mine Act sets
forth six criteria to be considered in determining an appropriate civil
penalty. 30 U.S.C. § 820(i). The Secretary, in his motion, asserted that the
violation could result in a fatal injury and that Respondent was moderately
negligent. At no point in its motion or response to the Secretary’s motion did
Climax dispute the Secretary’s findings regarding gravity or negligence. Consequently,
I find that the Secretary’s gravity and negligence designations are affirmed. See
29 C.F.R. § 2700.67(d). The violation affected one person and was a result of
Climax’s moderate negligence. The violation was not S&S. The parties have
stipulated that Climax abated the violation in good faith. Jt. Stip. 13. Climax
had a history of about 50 violations in the 15 months preceding the issuance of
the subject citation, about 16 of which were significant and substantial. [8]
Climax is a large operator, owned by Freeport McMoRan Inc., with over 750,000
operator hours worked at the mine in both 2014 and 2015. [9]
I find that the originally proposed penalty of $263.00 is appropriate for this
violation.

ORDER

For the reasons set forth above,
Citation No. 8761777 is AFFIRMED as issued. Climax Molybdenum Company is
ORDERED TO PAY the Secretary of Labor the sum of $263.00 within 30 days
of the date of this decision. [10]

/s/ Richard W.
Manning

Richard W.
Manning

Administrative
Law Judge

Distribution:

Emily L. B. Hays, Office of the Solicitor, U.S. Department
of Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80204

Daniel W. Wolff, Crowell & Moring LLP, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2595

[1] Climax, in a footnote, states that it believes the
handrails “could qualify as sufficient guards in their own right, even in the
absence” of the guarding exception in section 56.14107(b). However, it then
goes on to say that the issue is not one it asks the Commission to address. Climax
Mot. 10 n. 2. Nevertheless, I note that a handrail is generally not a guard. The
term “guard” is not defined in the Secretary’s regulations. “In the absence of
a statutory or regulatory definition of a term, the Commission applies the
ordinary meaning of that term.” Simola, emp. by United Taconite, LLC , 34
FMSHRC 539, 544 (Mar. 2012). The dictionary defines a “guard” as “a protective
or safety device; . . . a device for protecting a machine part or the operator
of a machine.” Webster's New Collegiate Dictionary 505 (1979). While the
handrails and gates delineated the working areas outside the handrails from the
areas inside the handrails, they did not protect the machine parts from being
contacted by a person. Moreover, when the term “guard” is viewed in the context
of surrounding standards, such as section 56.14112(a)(1) which requires that
guards “[w]ithstand the vibration, shock, and wear to which they will be
subjected during normal operation[,]” it is clear that the Secretary
contemplated that guards would typically be attached to the subject equipment. The
handrails at issue certainly do not fit within this concept of what constitutes
a guard.

[2] Climax cites a number of cases for the proposition
that areas must be “regularly accessed or susceptible to regular access by
employees,” in order for the areas to be considered a walking or working
surfaces and for the guarding requirement to be triggered. Climax Response 5-8.
Climax misses the point that the area inside the handrails was in fact a
working surface. As a result, miners would be in the area and in close
proximity to unguarded machine parts. Unlike many of the cases cited by Climax
in its response, there is no dispute that maintenance was performed on the
machinery that was inside the handrails. The record does not disclose the
frequency of such maintenance, but that factor would be considered when
analyzing the gravity of the violation.

[3]
As an aside, I note that the guarding exception set forth in in subpart (b) is
designed to address situations where contact with the moving machine parts is physically
impossible or very difficult. Here, while persons were not permitted to go
inside the handrails when the mills were in operation, someone could easily do
so and come in contact with moving parts. Other than a handrail, there was no
impediment to entering the areas. Because no guarding was present in these
areas, a person inside the handrails would have had nothing between him and the
mill cylinders at issue. Many of the administrative law judge decisions cited by
Climax involve moving machine parts that were physically difficult to gain
access to.

[4]
Climax states that “MSHA has . . . conceded that, at walking and working
surfaces within seven feet of the mills, Climax was in compliance with the
standard[,]” Climax Mot. 7. I disagree. The stipulations cited for this
proposition, i.e., Jt. Stips. 16 and 17, state only that guarding was present
in some areas within seven feet of the moving machine parts, while handrails at
least seven feet away from the moving machine parts were present in other
areas. Those stipulations do not address whether there were unguarded moving
machine parts within seven feet of walking or working surfaces on the inside of
the handrails.

[5] 30 C.F.R. § 56.14112(b) does provide an exception
allowing guards to be removed while the equipment is operating when testing or
adjustment cannot be performed without removal of the guard.

[6] The Secretary, in promulgating the cited standard, stated
in the preamble that “[g]uards provide a physical barrier, which offers the
most effective protection from hazards associated with moving machine parts. MSHA
recognizes that guards provide only one of several safety measures for
preventing injuries which can result from contact with moving machine parts.
Proper work procedures, safety training, and attentiveness to hazards all play
a role in reducing those injuries.” Standard for Loading, Hauling, and Dumping
and Machinery and Equipment at Metal and Nonmental Mines, 53 Fed. Reg.
32496-01, 32509 (Aug. 25, 1988). Here, while Climax’s policies and procedures
prohibiting miners from entering the area did provide a degree of safety, they
did not satisfy the standard’s requirement.

[7] While the citation, as issued, involved allegations
of unguarded openings in the floor around the mill, the Secretary did not raise
the issue in his motion, nor have the parties addressed the issue in the joint
stipulations. Accordingly, I have not addressed the issue.

[8]
The parties did not submit a history of violations. The court obtained the
history data from MSHA’s Mine Data Retrieval System, available at http://www.msha.gov/drs/drshome.htm.

[9] The parties did not submit a stipulation regarding
the size of the operator. The court obtained the size data from MSHA’s Mine
Data Retrieval System, available at the same website.

[10] 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