Secretary of Labor (MSHA) v. Climax Molybdenum Company (ALJ decision, July 25, 1980)

Plain-English summary

MSHA cited Climax Molybdenum Company over missing handrails at its mill and crushers. Judge John J. Morris found that workers had to remove handrails to move a pipe and used safety lines when working on the elevated walkway, establishing an impossibility of compliance defense. He also found that the roof of a storage shed was outside the areas covered by the handrail standard. He vacated those two citations and their proposed penalties. Climax withdrew its contests of five other citations, which the judge affirmed with their proposed penalties. The release gives conflicting numbers for one affirmed citation in its conclusions and final order; the summary follows the final order.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.11-2 for the handrail citations; the release gives inconsistent standard numbers in its opening paragraph and first footnote.
• Outcome: Citations 331477 and 331860 and their proposed penalties vacated. Citations 329264, 329265, 329266, 329273, and 332562 and their proposed penalties affirmed.
• Key point: The judge accepted the impossibility of compliance defense for the walkway and held that the shed roof was outside the handrail standard's scope.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

333 W. COLFAX AVENUE
DENVER, COLORADO 80204

25 JUL 1980

SECRETARY OF LABOR, MINE SAFETY AND ) CIVIL PENALTY PROCEEDING HEALTH ADMINISTRATION (MSHA), ) Petitioner, ) DOCKET NO. WEST 79-192-M
v. ) MSHA CASE NO. 05-02337-05005
) DOCKET NO. WEST 79-305-M
CLIMAX MOLYBDENUM COMPANY, ) MSHA CASE NO. 05-02337-05009 Respondent. ) MINE: CLIMAX MILL AND CRUSHERS

DECISION

APPEARANCES:

Robert Bass, Esq., and Eliehue Brunson, Esq., Office of T. A. Housh, Regional Solicitor, United States Department of Labor, Kansas City, MO. for the Petitioner,

Richard W. Manning, Esq., Climax Molybdenum Company, Golden, Colorado for the Respondent.

Before: Judge John J. Morris

WEST 79-192-M

Citation 331477

Petitioner, the Secretary of Labor, on behalf of the Mine Safety and Health Administration (MSHA), charges respondent, Climax Molybdenum Company, failed to provide handrails for the protection of its employees. MSHA asserts Climax thereby violated 30 CFR 57.17-2, 1/ a regulation promulgated under the statutory authority of the Federal Mine Health and Safety Act of 1969 (amended 1977), 30 U.S.C. § 801 et seq.

1/ The cited standard reads as follows:
57.12-30 Mandatory. Crossovers, elevated walkways, elevated ramps, and stairways shall be of substantial construction, provided with handrails, and maintained in good condition. Where necessary, toeboards shall be provided.

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ISSUE

The issue is whether Climax violated the standards.

FINDINGS OF FACT

The evidence is uncontroverted. I find the following facts to be credible.

1. In the Climax Mill, there was an unguarded elevated walkway 30 feet
   in length (Tr 6 - 7, 16, R1).

2. The walkway, five feet above the concrete, was 12 to 14 inches wide
   (Tr 6 - 9).

3. A worker positioned himself on the planks in order to rotate the
   pipe every three years. According to maintenance records, the pipe had not been rotated in six years (Tr 24).

4. In order to move the 30 inch pipe, it is necessary to remove the
   handrails.

5. No worker would be on the walkway other than to change, rotate, or
   remove the pipe (Tr 25).

6. When the pipe is changed, rotated, or removed, workers tie off with
   safety lines (Tr 25).

DISCUSSION

Climax contends that the cited area is not a walkway as defined in 30 C.F.R. 57.11-2. The basis for the argument is that the 2 x 12 planks do not lead to anything other than a blank walk. In addition, a worker must cross over the 30 inch pipe to reach the area.

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I reject Climax's argument. MSHA defines tunnelway but not a walkway. Webster 2/ indicates one definition of a walkway is as follows:

A passageway in a place of employment (as a factory or restaurant) designed to be walked on by the employees in the performance of their duties.

Climax's employees use this area to gain access to the pipe. It accordingly constitutes a walkway.

The evidence, however, establishes that to perform their duties the handrails must be removed. The area is not otherwise used by workers. These facts establish impossibility of compliance with the regulation.

While the Commission has not addressed this defense, it is the writer's view that it is an affirmative defense. Respondent must show that compliance is functionally impossible. Further; alternative effective protection must be used to protect the workers. Here the Climax workers tied off when using the walkway. The facts establish the defense of impossibility of performance. OSHA Review Commission cases on this defense are Everhart Steel Construction Company, OSHA Docket No. 3217 (April, 1975); Hughes Brothers, Inc., No. 12523 (July 1978); Julius Nasso Concrete Corporation, et. al. No. 16012 (December 1977).

Climax has established impossibility of compliance and I therefore conclude that Citation 331477 should be vacated.

SETTLEMENTS

During the hearing, Climax moved to withdraw its notice of contest as to the four remaining citations in this case. Petitioner does not object and pursuant to Commission Rule 2700.11 the motions should be granted.

2/ Webster's Third New International Dictionary, unabridged, 1976.

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WEST 79-305-M

Citation 331860

MSHA in this penalty proceedings charges Climax failed to provide handrails for a storage area thereby violating 30 C.F.R. 57.11-2. 3/

The evidence is uncontroverted and I find the following facts to be credible.

7. A flat roof shed was located inside a larger building (Tr 31-44).

8. The 10 foot high shed was 7 feet deep at the top; it had no
   handrails (Tr 31, 32, 42, G1).

9. It was 7 feet beneath the roof of the larger building at the front
   of the shed angling to zero feet at the back (Tr 41-43, G1, R2, R4).

10. At the time of the inspection there were empty -cardboard boxes a
    foot from the edge of the roof of the shed (Tr 36, 38, 40).

DISCUSSION

To establish a prima facie violation of a standard, petitioner must establish two things. First, that the described factual situation falls within the terms of the standard. Second, that there were one or more employees who were exposed to the hazard or who had access to the hazardous condition. MSHA's proof of the first category fails. The top of the shed is not one of the areas described in the standard. It is not a crossover, an elevated walkway, an elevated ramp, nor a stairway.

It follows that Citation No. 331860 should be vacated.

3/ Note 1.

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SETTLEMENT

During the hearing, Climax moved to withdraw its notice of contest as to Citation 332562. Petitioner does not object. Pursuant to Commission Rule 2700.11, the motion should be granted. 4/

CONCLUSIONS OF LAW

CASE WEST 79-192-M

1. Respondent established the defense of impossibility of compliance
   with 30 C.F.R. 57.11-2 (Facts 1 - 6).

2. Citation No. 371477 and the proposed penalty therefor should be
   vacated.

3. On respondent's motions to withdraw the following citations and
   their respective proposed penalties should be affirmed:

   Citation Numbers 329264, 329265, 329268, 329273

CASE WEST 79-305-M

4. Respondent did not violate 30 C.F.R. 57.11-2 and Citation 331860
   should be vacated together with proposed penalty.

5. On respondent's motion, Citation No. 332562 and the proposed penalty
   should be affirmed.

Based on the foregoing findings of fact and conclusions of law, I enter the following:

ORDER

CASE WEST 79-192-M

Citation No. 331477 and all proposed penalties therefor are vacated.

4/ The motion to vacate appears on pages 42 - 43 in the case involving the parties. The caption is noted as Docket WEST 79-303-M, WEST 79-304-M, WEST 79-306-M.

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Based on the foregoing findings of fact and conclusions of law, I enter' the following:

ORDER

CASE WEST 79-192-M

Citation No. 331477 and all proposed penalties therefor are vacated.

citations No. 329264, 329265, 329266, and 329273 and the proposed penalties therefor are affirmed.

CASE WEST 79-305-M

Citation No. 331860 and the proposed penalty therefor are vacated.

Citation No. 332562 and the proposed penalty therefor are affirmed.

John J. Morris
Administrative Law Judge

Distribution:

Robert Bass, Esq., Eliehue Brunson, Esq., Office of the Solicitor, United States Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294

Michael Hackett, Esq., Richard W. Manning, Esq., Climax Molybdenum Company, 13949 West Colfax Avenue, Golden, Colorado 80401

John R. Tadlock, Esq., Oil, Chemical, and Atomic Workers International Union; 1636 Champa Street, Denver, Colorado 80461

Mr. David A. Jones, Jr., Oil, Chemical, and Atomic Workers International Union, P. O. Box 949, Leadville, Colorado 80461

Mr. Edwin Matheson, International Brotherhood of Electrical Workers, Local No. 1823, P. O. Box 102, Minturn, Colorado 81645

1889