Secretary of Labor v. Southwest Rock Products, LLC

Plain-English summary

Southwest Rock Products runs Portable #1, a two-person sand and gravel mine in Pinal County, Arizona. An MSHA inspector arrived at 8:00 a.m. on July 7, 2015, before the plant started up, and at 8:50 a.m. cited the company under 30 C.F.R. § 56.20003(a), the housekeeping standard, for material built up on an elevated walkway beside the shaker screen. The plant never ran that day: the loader, essential to the two-person operation, was down for repairs and was still being serviced when the inspector left. The Secretary argued the standard requires workplaces be clean and orderly at all times, so the accumulation was a violation whenever it was found. Judge William B. Moran rejected that reading, finding the inspector's own testimony inconsistent, since he conceded he would not cite the same buildup mid-shift and would not have cited at all if someone had been cleaning when he arrived. Because the mine was not operating and could not operate, and because miners are chained out of the walkway while the conveyor runs, the judge held there was no violation and no safety value in a continuous cleanup rule. Citation No. 8828132 was vacated and the case dismissed. The judge added that had a violation been proven, the mitigating evidence would have supported a greatly reduced penalty.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.20003(a)
• Outcome: Citation No. 8828132 vacated and the proceeding dismissed; no penalty.
• Key point: The housekeeping standard does not impose a continuous, minute-by-minute cleaning duty, and an operator that has not yet begun the shift has not yet lost its chance to clean up an accumulation left from the night before.

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:
202-434-9933 / FAX: 202-434-9949

November 10, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner,

v.

SOUTHWEST ROCK PRODUCTS, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2016-0001

A.C. No. 02-02663-390322

Mine: Portable #1

AMENDED DECISION
AND ORDER [1]

Appearances:               Ms.
Hannah Harris-Yager, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for Petitioner

Mr.
John Palmer, Environmental Health and Safety Director, Southwest Rock Products,
San Tan Valley, Arizona for Respondent

Before:                        Judge Moran

This case is before the Court upon a petition
for assessment of a civil penalty under Section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d) (“the Act”).  At issue is
Citation No. 8828132 (“the citation”), which requires areas such as workplaces
and passageways to be kept clean and orderly.  Respondent challenges the
Secretary’s allegation that a violation occurred.  For the reasons which
follow, the Court finds that the cited standard was not violated, as the mine
had not started its operations at the time the citation was issued.

The citation alleges a violation of 30 C.F.R.
§56.20003(a), which states: “Workplaces, passageways, storerooms, and service
rooms shall be kept clean and orderly” at all mining operations.  30 C.F.R §
56.20003(a).

The citation states,

Housekeeping was not
kept in order in the work platform of the JCI shaker screen, C/N 5000, on the
northeast side under the rock return belt.  Material was observed built up to
the rubber springs.  Continued normal mining operations expose miners to lost
workdays/restricted duty slip, trip and fall hazards.  The work platform is
accessed twice daily for pre-shift workplace examination making the chances of
an accident occurring reasonably likely.

Ex. P-2.

A hearing was held on August 5, 2016 in Phoenix,
Arizona, at which MSHA Inspector Joseph Summers Jr. and mine owner Chris
Reinesch testified.

Factual Background

Respondent’s Portable #1 is located
in Pinal County, Arizona.  It is a very small sand and gravel mine, which operates
with 2 employees. [2] Tr. 93.  The mine is a
single bench, excavated by a front-end loader.  Tr. 23.  The cited area
bordered a JCI shaker screen, which sizes sand and gravel.  Tr. 23-24.  Inspector
Summers began inspecting the mine around 8:00 a.m. on July 7, 2015, accompanied
by the lone employee present at that time, Mr. Preston Walters.  Tr. 25.  Importantly,
the mine was not operational at the time of the inspection: Summers and Walters
were the only people present at the time of the issuance of the citation.  Tr.
40-41.

At 8:50 that morning,
Summers wrote one citation concerning accumulated material on an elevated
walkway bordering the three-level JCI shaker screen.  The walkway is about 10
feet high; it is used to perform inspections and maintenance on the pulleys and
belts that feed into the shaker screen, and to work on the shaker screen itself
when necessary.  Tr. 51-53.  The parties do not dispute the inspector’s finding
that there was a pile of material built up on the elevated walkway, “almost to
the top of the rubber screens that this shaker screen sits on.”  Tr. 25.  Although
the parties disputed when the cited accumulation began building up prior to the
inspection, they agreed that the material had remained on the walkway
throughout the 13 hours that had elapsed between the end of the evening shift
when the mine closed for the day and the morning of the inspection the
following day.  Tr. 78-79.

Nor is it disputed that the
operator had not yet conducted a preshift examination prior to Summers’
inspection.  The loader, an essential part of the two person operation, was
down for repairs.  It was only later in the day that the mine’s Health and
Safety Director, Mr. John Palmer, arrived along with the lead man and a
Caterpillar representative.  Tr. 35.  The loader was still being serviced when
Summers left the mine that afternoon.  Tr. 60-61.  Thus, from the time of the
inspector’s arrival to the time he left, the mine had never been operational.  At
the time of the inspection, the operator knew it was possible that the plant
would be unable to run at all that day. [3]

Based on the evidence presented,
upon applying the burden of proof the Secretary must meet, the Court concludes
that no violation of the standard was established.  The Court will first
discuss the facts and case law highlighted by the Secretary at hearing and in
his Post-Hearing Brief, and then turn to the Respondent’s contentions.

The Parties’ Contentions

The Secretary’s Contentions

According to Summers’
observations, the dimensions of the cited accumulation were roughly: 12 inches
high, covering the width of the walkway, and extending roughly 30 inches along
the walkway, with tapered sides and the highest point in the middle. [4]
Tr. 73-74.  He testified that, because the toe board on the walkway is only
about four inches high, some of the accumulated material appears to have
spilled over the edge of the walkway.  Tr. 114.  This adds to the difficulty in
estimating when the accumulation began.

The hazard that Summers identified
in the citation was that a miner might trip and fall on the built up material
he observed on the metal walkway.  Tr. 39-40.  However, he acknowledged that, due
to the presence of a hand rail, there was little risk of someone falling off
the walkway to the ground below.  Tr. 53.

Summers concluded that material had
been accumulating on the walkway over the course of multiple shifts, based on
his observations of the quantity of the material as well as its color and
texture. [5]   Tr. 31-33.  He noted
that no pre-shift inspection had taken place before he arrived, and that the
operator had taken no steps to remedy the accumulation. [6]
Tr. 50-51.  It was noteworthy that Summers testified that if he conducts an
inspection in the middle of an afternoon shift, he does not cite material that
has built up because “that’s normal spillage during the course of the
operation.”  Tr. 55-56.  This strikes the Court as inconsistent, as it is not
the condition which prompts the issuance of a citation, but rather the timing
of its discovery.  Under the inspector’s approach, the walkway accumulation
could continue uncited for hours on end so long as the walkway had been cleaned
up at the start of the shift. 

Based on this evidence, the Secretary argues
that the citation must be upheld.  Under his interpretation, the standard,
“imposes a continuing obligation on the operator to ensure that workplaces, passageways,
[and other areas] are clean and orderly” at all times.  Sec’y’s Post-Hearing
Br. 10.  He concludes, “Southwest Rock violated standard 56.20003(a) because it
failed to keep the elevated walkway in a clean and orderly condition at all
times.”  Id .  However, the inspector himself did not espouse such a
theory.  The testimony establishes that such a construction would be
impractical, causing the mine to repeatedly shut down its operation.  Beyond
that, during operation, the mine had access to the area blocked off by a chain.

The Secretary cites Nally and Hamilton
Enterprises in support of this ongoing responsibility.  Nally and
Hamilton Ent. Inc. , 33 FMSHRC 1759 (2011).   In Nally , an
operator was cited for a violation involving a back-up alarm that had allegedly
stopped functioning during a short interval after a pre-shift examination.  Id .
at 1760.   The Commission overturned the ALJ’s reasoning that there was
only a violation after the operator had had a reasonable amount of time to
discover and address a defective alarm, and held that the operator had an
ongoing responsibility to ensure that warning devices on trucks are functional
at all times.   Id. at 1763.  In other words, the respondent could not
escape liability by arguing a lack of knowledge or negligence.  As discussed
below, there are salient differences between the facts of these two cases, but the
Court’s holding here does not in any way suggest that the standard cited
contains a negligence or knowledge requirement.

A second precedent the Secretary cites is Wake
Stone Corporation .  Wake Stone Corp. , 36 FMSHRC 825 (2014).  There,
the operator prevented a MSHA inspector from operating a vehicle for the
purposes of inspection, and insisted on first conducting a pre-operational
examination.  The Commission held that operators cannot avoid liability by
insisting on a Section 56.14100 pre-operational examination when they learn of
an impending MSHA inspection.   Id . at 829.  In the words of the
Commission, the “strict liability nature of the Act does not allow for this
sort of gamesmanship.”  Id .  That case does not translate to the facts
here, as the mine was not in operation, and in fact could not operate at
the time the citation was issued.

The Court does not view either Nally or Wake
Stone to be instructive.  The mines were operating in those instances.  By
contrast, here not only was SW Rock not operating, the 2 man operation, with
only 1 person present and with an essential piece of equipment broken, was
incapable of conducting mining.

Respondent’s Contentions

The Respondent challenged the
Secretary’s contention that the accumulated material had been present more than
one shift prior to the inspection.  Through Reinesch’s testimony, it contended that
the accumulated material appeared dry and hardened only because it had remained
on the walkway for approximately 13 hours between the end of the evening shift
and the inspection the following day.  Tr. 78-79.  Reinesch pointed out, “in
the middle of July… it’s over 100 degrees out.  It don’t take long for this
material to make it look like it’s old” in the desert climate.  Tr. 99.  He
added that the vibration of the screen helps to separate the moisture from the
rock and sand, so it becomes solid faster.  Id .

Reinesch testified that, although
he was not present on the day of the inspection and had no personal knowledge
of the particular accumulation that gave rise to the citation, he has seen
similar accumulations of material build up around conveyor belts and other
equipment at the mine.  Tr. 98-99.  He stated that similar-looking material
accumulates every shift at his mine, because “it’s very fine material.  It
wants to stick to the belt, and it will come around the head pulley and drop on
the catwalk.”  Tr. 102.  Some of this fine material being fed onto the shaker
screen becomes stuck to the conveyor belt in part because the operator has to
spray it with water to control dust.  Tr. 98.

The essence of Respondent’s defense
was stated by Reinesch:

We had not started up, and if – if
the inspector would have shown up and the plant was running and that [the
accumulation] was there and he had done a pre-trip and he could determine that it
was from a prior shift, it would have been a violation… but this operator did
not have an opportunity to clean it up because – just because there’s that
[accumulation] doesn’t mean that’s the first task of the – order of the day…
That might be the very last thing that [the operator] conducts [sic] before he
starts up.  And that’s – my position is – is that we weren’t in violation
because he never had an opportunity [to clean] before he started up.”

Tr. 96.

Because some amount of accumulation
near the feeder belt is inevitable, Reinesch testified that his company takes
specific precautions to prevent a slip and fall injury: the area is restricted
when the plant is in operation, and there is a chain and a sign across the
entry to the elevated walkway.  Tr. 103-04.  He stated,

If the plant is in
operation, if the switch is on, this is a restricted area.  Our policies and
all our training [7] and everything dictates
that you are not to enter this.  The only time is when it’s locked out.

Tr. 103.

These policies are in place
specifically because there is “continual” accumulation from spilled material
while the mine is in operation.  Tr. 110.  This spillage is due to the
placement of the conveyor belt.  Tr. 103.  Reinesch testified that the company
could not possibly remain competitive in the industry if they had to shut down
operations for 30 minutes several times per shift to clean up small
accumulations as soon as they occurred.  Tr. 110-11.  “I can’t shut it down
every 30 minutes and shovel it off.  And this was – this – we were not given
the opportunity to shovel this [walkway] off prior to starting.”  Tr. 103-04.

The Court adopts Reinesch’s testimony that,
while the condition was present when the previous shift ended the night before
the inspection, such accumulations below the conveyor occur continually due to
the configuration of the mine. [8]

The Respondent opted to file a single brief in
response to the Secretary’s Post-Hearing Brief.  Beyond highlighting some of
the testimony from the hearing, Respondent also differentiated some of the non-precedential
ALJ opinions that the Secretary cited for the proposition that similar
accumulations have been found to violate Section 56.20003(a).  Respondent’s
Post-Hearing Br. 2.  Similar to the Court’s analysis above, the Respondent also
noted that the facts of Wake Stone are not analogous to the facts of
this case:

Southwest Rock
Products’ personnel never once asked to do a workplace exam prior to the
inspector inspecting the plant.  We are fully aware that, being able to conduct
a workplace exam before an inspector inspects would jeopardize miner safety, as
well as compromise MSHA’s goal of protecting the miner… [Furthermore, it] is
obvious that we are not dealing with safety defects on mobile equipment.

Id . at 3 (emphasis in original).

The Respondent then noted that, in the absence
of MSHA policy guidance and inspector assistance, it has developed internal
policies and procedures “to mitigate hazards to our miners, vendors and contractors
before and during operations to comply with this standard.”  Id. 

Finally, Respondent argued that
adopting the Secretary’s interpretation of the standard would lead to an undue
burden on the operator and which would produce absurd results.  Id . at 2. 
An interpretation requiring the Respondent to continuously monitor and clean
workplaces and passageways would necessitate that it “operat[e] for
approximately 1 hour, spen[d] approximately 1 hour to shut down the plant, lock
it out, clean off all workplaces and travel ways and start the plant back up.  This
would effectively cut production time in half, making Southwest Rock Products
uncompetitive in the industry.”  Id .   This elaborates upon
Reinesch’s testimony, recounted above.  See Tr. 110-11.  The Court would
add that, as miners do not use the walkway when the conveyor is running, a
continuous clean up requirement would serve no safety value.

Discussion

The Secretary correctly points out that the
regulatory standard contains no limiting language but, as noted here, the
parties do not contest whether Respondent knew or should have known of the
accumulation.  No one has suggested that the standard includes a knowledge or
negligence requirement; it does not.  Nor, as the Commission held in Wake Stone ,
would it be acceptable for a respondent to attempt to evade that citation
through insisting on examining equipment and work-spaces ahead of an inspector. 
36 FMSHRC at 829.

Whenever an operator contests a
violation, the Secretary must prove, by a preponderance of the evidence, that a
violation occurred.  RAG Cumberland Res. Corp ., 22 FMSHRC 1066, 1070
(2000).  The Secretary did not satisfy this burden as to two allegations: (1)
that the accumulation had been present for more than one shift and, (2) that
but for the inspection Respondent would have begun production before cleaning
up the accumulated material.  As Inspector Summers himself testified, he would
not have written a citation for an accumulation at an inactive mining site were
it not for his assessment on these two factors.  Tr. 55-56.

Nor does the Court subscribe to
Summers’ estimate that the accumulation had been present for multiple shifts.  Initially,
when asked how long it had been on the walkway, Summers estimated, “more than
one shift [because] in my mining experience, to have that much material
[accumulate] in a six-hour period is uncommon for the mining industry.”  Tr. 33. 
Summers later increased his estimate, concluding that the condition had existed
for “at least two shifts.”  Tr. 37.  Against these estimations, Summers was
told, “the plant ha[d] not run since 8:00 the previous evening, and no
workplace examination ha[d] been conducted; and [he] was told, had the plant
been in operation, the work platform would have been cleaned pre-shift.”  Tr.
40-41.  The inspector agreed that Walters made that latter remark on pre-shift
cleaning, “at the time of the issuance of the citation at 08:50 [a.m.]” Tr.

41.  Although Summers did not believe this assertion, the Court finds the claim
to be more credible since Walters made it at the time the citation was issued,
rather than long afterwards.  Tr. 43.  Regardless, these contentions are
overridden by the fact that the plant was not operating, nor capable of being
operated, at the time of the citation’s issuance.

Summers found it damning that the
condition had not been abated while the plant was idle, noting that Walters
“wasn’t cleaning up.  He wasn’t doing anything.  He wasn’t making any effort to
correct the conditions that had existed, and he had plenty of opportunity to.” 
Tr. 51.  Yet Summers also agreed on direct examination that “the operator isn’t
required to do pre-operational workplace examinations.”  Tr. 48.  The Court
notes that this is accurate — and because the mine was not operating at the
time the citation was written, it is irrelevant to discuss duties that arise
during a shift.  In response to a hypothetical posed by the Court, Summers
stated his belief that if the operator “performed the housekeeping sometime during
that shift [when the accumulation occurred,] there wouldn’t be a violation.”  Tr.
55 (emphasis added).  At hearing, the Court inquired whether the inspector may
have “jumped the gun” in issuing the citation.  Tr. 54.  Given the undisputed facts,
that descriptive phrase remains apt.

The Secretary asked, “Inspector, is
it your testimony that an operator has an obligation to clean up a spill during
the shift in which the spill occurs?”  Tr. 59 (emphasis added).  Contradicting
his own testimony, Summers responded, “Yes, they do.”  Id . [9]
 In the Court’s view, an inspector attempting to declare when an accumulation
in a restricted area of the mine must be cleaned, during an idle time between
shifts, amounts to an attempt to assume the role of the mine’s manager. [10]
Certainly, the standard does not instruct that if a spill occurs near the end
of a shift, it must be cleaned up before the day ends rather than before
operations resume the following morning.  Nor is it an MSHA inspector’s role to
make these determinations on granular “policies and procedures to protect
[mine] employees and function as a sand and gravel operation.”  Tr. 69.  Upon
further questioning, the inspector testified that he would not have issued a
citation if a worker had been in the process of cleaning the accumulated
material when he arrived.  Tr. 60.  In the Court’s view, the inspector realized
during this exchange that his statement demonstrated that he was attempting to
dictate when the cleanup had to occur; he then reversed course and confirmed
that the mine was never in operation while he was present that day.  Tr.
60-61.

The Court asked the inspector how
he would have replied to the mine’s safety director had he contended during the
inspection that there was no violation, “as long as they clean [the spill] up
before they resume operations.”  Tr. 62.  Summers replied, “If Congress had
intended for this particular regulation to be enforced in that way, it would
have been stated so in the regulation.  The regulation says they shall
maintain.”  Id . Setting aside the inaccuracies in that statement (e.g.,
that the regulatory standard is not promulgated directly by Congress and does
not contain the word “maintain”), the Court disagrees with the view that the Act
requires constant and continual cleaning.  MSHA has never publicly interpreted
the housekeeping standard to contain this requirement either. [11]

Unlike the sporadic mechanical
malfunctions at issue in the cases cited by the Secretary, gradual accumulation
of wet sand and fine rock is a constant and inevitable challenge for Respondent
during production.  If operators like Southwest Rock were in violation of
standard 56.20003(a) for every instance that an accumulation were allowed to
stand, they would be forced to either be subject to repetitive penalties or to constantly,
yet unnecessarily, in terms of safety, pause and restart operations in order to
clean up accumulations.  Such untenable conclusions allow the Court to apply
reasonable interpretations in the context of the particular facts.  Allan
Lee Good , 23 FMSHRC 995, 997 (2001).

Recognizing the Secretary’s illogical claims, at
the conclusion of the hearing, the Court observed that the inspector may have
issued the citation prematurely, and therefore requested that the Secretary
consider vacating it.  Tr. 120.  Subsequently, the Secretary advised that it
decided not to vacate the citation.

Conclusion

If Respondent had begun operating
the mine during or before the inspection at issue, without first remedying the
accumulation at issue, arguably there might have been a violation and this
citation could have been upheld.  However, there was no violation in this case
because, at the time of the inspection, the mine was not in operation and only
one person besides the inspector himself was present.  The mine could not begin
operations until the loader was fixed.  In fact, when the inspector departed
the mine was still not operating.  It is not for the inspector to dictate the
order of the safety items that a mine must address, a proposition which the
inspector conceded several times during his testimony.  Therefore, under these
facts, the citation must be vacated.

ORDER

For the reasons stated above, the
Court finds the Secretary did not establish a violation of 30 C.F.R. § 56.20003(a). 
Accordingly, Citation No. 8828132 is VACATED [12]
and this matter is hereby DISMISSED .

/s/ William B. Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Ms. Emily Hays, U.S. Dept. of Labor, 1999 Broadway, Suite
800, Denver, CO 80202, [email protected]

Mr. John Palmer, 85 West Combs Road, Suite 101, #444, San
Tan Valley, AZ 85140, [email protected]

[1] This Amended Decision and
Order is issued to correct a clerical error in the original decision, namely an
incorrectly typed AC number.

[2] The inspector testified
that at the time the citation was issued, the mine employed 5 people. Tr.
23-24. Although the inspector spoke of 5 employees, testimony established that
the mine is even smaller — the respondent clarified that only 2 people run the
plant per shift.  Tr. 93.

[3] As Palmer asked, “[T]he
loader was — was not functional, so there was a possibility that the plant
wouldn’t have ran the whole day?” Tr. 96-97. Reinesch replied, “Yeah. Until we
knew the loader was going to be up, but he didn’t know when it would run.” Id .

[4] Inspector Summers has
over 10 years of experience as an MSHA inspector, and approximately 40 total
years of experience in the mining industry.  Tr. 22-23. The mine’s owner, Mr.
Reinesch, has worked in the construction aggregate industry for 43 years, and
founded Southwest Rock Products 15 years ago.  Tr. 91.

[5] As discussed, infra at
6, during the hearing Summers offered inconsistent (and increasing) estimations
of how long the accumulation had existed.

[6] As Inspector Summers
testified, “[Mr. Walters] was the only one there… The loader is down.  The lead
man was off the property.  And he wasn’t cleaning up.  He wasn’t doing
anything.  He wasn’t making any effort to correct the conditions that had
existed, and he had plenty of opportunity to.”  Tr. 50-51.

[7] Respondent also presented
evidence that the management instructs its employees on how to conduct a
workplace examination.  Tr. 106, referencing Ex. R-1.

[8] This view is supported by
the inspector’s testimony on cross examination. Respondent queried, “Would you
say that 13 hours, wet material in July in Glendale, Arizona, would have enough
time to dry and crusted over?” Tr. 78.  Summers admitted, “During July, yes,
it’s possible for a surface crust, yes.” Tr. 79.  The Court notes that this
undercuts the inspector’s previous assessment on this point, although the
central issue still remains that the mine was not operational at the time of
inspection.

[9] Summer also stated, “Yes,
sir” on cross examination in response to the question, “Before they shut off
business that night, they should have cleaned it?” Tr. 59.

[10] See Tr. 56; when
questioned further on this perspective Summers retreated from this stance and responded,
“I can’t direct the workforce.”  Tr. 65, see also Tr. 69.

[11] As of October 2016, MSHA
has not published any policy guidance pertaining to the housekeeping standard.
At hearing, Summers testified that he did not rely on any policy documents in
determining whether a violation had occurred.  Tr. 70.

[12] In the alternative, had
the Secretary successfully established a violation of Section 56.2003(a), the
Court would, in light of the significant mitigating factors presented by the
Respondent at hearing as to negligence and gravity, impose a greatly reduced
civil penalty.