J.S. Redpath Corporation

Plain-English summary

J.S. Redpath Corporation was a mining subcontractor whose employees were doing underground development work at a mine in Arizona. MSHA alleged that employees violated the eye-protection standard by drilling and beginning rock bolting without safety glasses. Judge John J. Morris credited a witness who said the miners removed their glasses after drilling because of foggy conditions, and found that the cited condition did not violate the standard because it concerned protection before a hazard existed. The citation and all penalties were vacated.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.15004
• Outcome: Citation No. 2639288 and all penalties were vacated.
• Key point: The eye-protection standard required protection where an eye hazard existed, not before the hazard existed.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. J.S. REDPATH
DDATE:
19880713
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-6-M
PETITIONER A.C. No. 05-00571-05501 R83

         v.                                London Mine

J.S. REDPATH CORPORATION,
RESPONDENT

                                DECISION

Appearances: James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for Petitioner;
Patrick J. Dougherty, Senior Mining Engineer, J.S. Redpath
Corporation, Mesa, Arizona, for Respondent.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration (MSHA), charges respondent, J.S. Redpath
Corporation, with violating a safety regulation promulgated under
the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq.,
(the Act).

 After notice to the parties a hearing on the merits was held

in Phoenix, Arizona on May 17, 1988.

 The parties waived their right to file post-trial briefs and

submitted the case on oral argument.

                              Jurisdiction

 J.S. Redpath Corporation is a subcontractor providing a

service for a mine owner. In turn, the mine owner produces a
mineral product (Tr 24–26).

    The foregoing facts establish jurisdiction.

                          Summary of the Case

 Citation 2639288 charges respondent with violating 30 C.F.R.

57.15004, which provides as follows

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57.15004 Eye Protection

      All persons shall wear safety glasses, goggles, or face
      shields or other suitable protective devices when in or
      around an area of a mine or plant where a hazard exists
      which could cause injury to unprotected eyes.

 The alleged violative condition, as modified, was described

as follows:

      (2) Employees was not wearing safety glasses prior to
      commencing rock bolting underground. A eye injury could
      exist without protecting the employee's eyes with
      suitable protective devices.
                                (Exhibit P3)

                    Summary of the Evidence

 On June 23, 1987 federal mine inspector Ronald Simpson

inspected a mine facility operated by Cobb Resources Corporation
(Tr. 6–8). Employees of J.S. Redpath were doing development work
in driving drifts and raises (Tr. 8). When the inspector came on
the working area the man had just stopped drilling. The inspector
was the last one to reach the end of the drift. Upon checking, he
asked if they were using eye protection. They replied it was
foggy and hard to see. At least one of the miners had safety
glasses but he wasn't wearing them (Tr. 10, 11, 18 and 21). The
driller didn't have any glasses on his person. The inspector left
the area when the helper gave him his glasses (Tr. 11).

 Failure to provide eye protection can cause permanent eye

damage including loss of sight (Tr. 12, 14). The inspector
presented evidence for eye injuries incurred on a nationwide
basis since 1981 (Tr. 15–17, Ex. P1).

 The workers did not acknowledge that they had drilled

without glasses. The miner actually doing the drilling stated he
had taken the glasses off because of the foggy conditions (Tr.
22, 23). The foggy conditions could have been definitely helped
with use of the ventilation bag (Tr. 23).

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When he talked to the driller, the driller's helper pulled a pair
of glasses out of his pocket and gave them to the driller.

 Harold Roy Walker, a retired superintendent, testified for

Redpath. He indicated that as the inspection party approached
miners Sullivan and Herrera, the men took their glasses off.
Sullivan put his glasses inside his hard hat. Herrera put his in
his pocket (Tr. 27, 28). The inspector came in, quizzed the men
about the glasses, and the two miners exchanged their glasses
(Tr. 28). The inspector did not observe the two miners in the act
of drilling (Tr. 29–30).

 Mr. Walker, who has a hearing impairment, observed Herrera

and Sullivan switch glasses (Tr. 36–39).

 Patrick John Dougherty, a senior mining engineer for

Redpath, testified that the company stresses a nonadversarial
relationship with regulatory agencies. Arguments with inspectors
are avoided (Tr. 45).

 Witness Dougherty was not present on the day of the

inspection (Tr. 47).

                     Discussion and Evaluation

 A credibility issue is presented here as to whether the

miners were wearing safety glasses. On this issue I credit the
testimony of Redpath's witness Walker. He was the first to arrive
at the point where the drilling was taking place. The inspector
agrees he arrived after the drilling had stopped. The foggy
conditions in the draft merely confirmed why the miners removed
their glasses when they finished drilling.

 In addition, the violative practice described by the

inspector in his citation does not constitute a violation of
57.15004. The violative condition is that the employees were not
wearing safety glasses prior to commencing rock bolting. The
regulation requires eye protection where a hazard exists, not
prior thereto.

                               ORDER

 Based on the foregoing findings of fact and conclusions of

law I hereby enter the following order:

   Citation No. 2639288 and all penalties therefor are vacated.


                                John J. Morris
                                Administrative Law Judge