Nelson Brothers Inc.

Plain-English summary

Nelson Brothers supplied blasting agents and technical assistance to mines and used tanker trucks to transport emulsion. A driver was working on top of a tanker about nine feet above the ground without guard rails or a safety belt and line while opening portholes and removing material. Judge William Fauver held that 30 C.F.R. § 77.1710(g) required fall protection because the work created a danger of falling, and he found the violation significant and substantial. He also upheld the imminent-danger withdrawal order and affirmed the related citations. The respondent was ordered to pay $210, including $63 for a settled citation.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.1710(g); 30 U.S.C. § 802(j)
• Outcome: The imminent-danger order and two citations were affirmed. Civil penalties totaling $210 were ordered.
• Key point: A nine-foot fall hazard while working on a tanker required a safety belt and line or guard rails, even without a prior history of falls.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041

                        April 12, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. WEVA 95-112
Petitioner : A.C. No. 46-03335-03501 KI3
v. :
: Wylo Mine
NELSON BROTHERS INC., :
Respondent :

                           DECISION

Appearances: Tina C. Mullins, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
Petitioner;
Hilary K. Johnson, Esq., Boucher, Hutton & Kelly,
Abingdon, Virginia, for Respondent.

Before: Judge Fauver

 This is a civil penalty proceeding under ' 105(d) of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. ' 801
et seq.

 Two citations were included in the petition. The operator

has withdrawn its contest of Citation No. 3973749 and has agreed
to pay the proposed penalty of $63.00. The case went to hearing
on Citation No. 3973746. Evidence was also heard as to an
imminent danger withdrawal order (No. 3973745, dated October 5,
1994) although there is a dispute whether Respondent waived its
right to contest the order by failing to file an application for
review with the Commission within 30 days of its issuance.

 Citation No. 3973746 was issued in conjunction with the

imminent danger order. I find that Respondent=s efforts to
contest the citation in its meetings with MSHA officials was also
in conjunction with its efforts to contest the order. There
appears to have been some confusion based on MSHA=s statements to
the operator about the time requirements for contesting the
citation and order. I conclude that for the purpose of defending
against a petition for civil penalties, the operator should be
permitted to contest the imminent danger order in conjunction
with its contest of the citation. Accordingly, I conclude that
the judge has jurisdiction to decide the merits of both the
citation and the order.

Page 2

 Having considered the hearing evidence and the record as a

whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the Findings of Fact and
further findings in the Discussion below:

                    FINDINGS OF FACT

 1. Respondent is an independent contractor that supplies

blasting agents and technical assistance to mining companies and
other businesses. MSHA=s records of registered contractors show
that Respondent performed contract services at 11 coal mines for
29,132 hours in 1994 and for 10,584 hours from January 1 through
August 8, 1995. The 11 coal mines are subject to that Act.

 2. Respondent has a number of tractor-trailer tanker trucks

that transport emulsion to the mines.

 3. On October 5, 1994, MSHA Inspector Douglas M. Smith

inspected the Wylo Mine in West Virginia, operated by Arch
Minerals Company, which produces coal for sales in or
substantially affecting interstate commerce.

 4. Inspector Smith observed one of Respondent=s tanker

trucks unloading emulsion. The driver was standing on top of the
emulsion tank without wearing a safety belt and line. There was
an anchor line to which a safety belt could be attached. There
were no guard rails on top of the tank.

 5. The emulsion tank was an oval-shaped cylinder made of

aluminum or stainless steel, approximately 9 feet high. On top
of the tank were several portholes centered along the length of
the tank. Sections of grated metal platform ran between the
portholes. The parties are in dispute as to the number of
portholes. This issue is addressed in the Discussion, below. I
find here that the truck in question had three or five portholes.
The grated metal sections were about 28 inches wide.

 6. The grated metal sections did not cross over the

portholes, but ended at the edge of a rectangular area around
each porthole. The oval-shaped tank surface was bare around each
porthole within the rectangular area. The rectangular area
around each porthole was about 26 inches long. Each hatch lid
contained a number of latches and hinges higher than the hatch
surface. When the hatch was open, it swung out to rest
horizontally. Within each rectangular area, there was sufficient
ungrated tank surface for a person to step.

 7. As part of his normal duties, the truck driver climbed a

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ladder on the side of the tank. Once the driver was on the
grated surface, he opened one or more portholes to release
pressure of the emulsion so that it would discharge through the
outlet hose. The driver then climbed down from the tank and
waited for the emulsion to pump out. Once all the material that
could be pumped out was removed from the tank, the driver again
climbed to the top of the tank and opened all portholes to
Asqueegee@ out emulsion that remained on the inner lining of the
tank. The rubber squeegee was about one foot wide and attached
to a pole about 10 feet long. One driver might perform the
squeegee operation or two drivers might perform it. It would
take about 10 to 15 minutes for two drivers, twice that for one
driver.

 8. To move from one porthole to another to open or close

portholes or to squeegee through the portholes, the driver would
step over portholes a number of times. This required him to
either step on the oval-shaped tank surface to step over a
porthole or to take a larger step of about two and half feet to
clear the rectangular area around the porthole. In either case,
the portholes and the latches attached to the hatch lids
presented tripping hazards.

 9. While squeegeeing, the driver would position himself at

different angles to the porthole and might be bending, stooping,
squatting or kneeling to reach the material inside.

 10. The metal platform sections were grated to provide an

anti-skid surface.

      DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

 Before discussing the controlling issues, this part will

discuss the number of portholes.

 The inspector testified that the truck he observed had three

portholes. The driver testified that there were five portholes.
Other witnesses were similarly in conflict as to the number.

 Respondent=s Exhibits 1 through 5, which are attached to its

Answer and incorporated in the evidentiary record, are
photographs of at least two tanker trucks. The Secretary=s
witnesses indicate that photographs R-4 and R-5 most accurately
represent the truck in question, while Respondent=s witnesses
indicate that the truck is shown in R-1, R-2 and R-3. I do not
find it necessary to resolve this conflict. I find, instead,

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that both trucks represent the kind of configuration of grated
walking platforms and portholes that was involved in the imminent
danger order and the related citation on October 5, 1994, and
that it is not critical to determine whether there were three or
five portholes on that date. I find that Respondent operates
emulsion tanker trucks that have either three or five portholes
on top of the tank. The tank dimensions in the Findings of Fact
apply whether a truck has three portholes or five portholes.

 Turning now to the key issues, the Secretary charges a

violation of 30 C.F.R. ' 77.1710(g), which provides in pertinent
part:

 Each employee working in a surface coal mine or in the
 surface work areas of an underground coal mine shall be
 required to wear protective clothing and devices as
 indicated below:

 * * *

 (g) Safety belts and lines where there is a danger of
 falling . . . .

 The basic issue is whether the truck driver=s activities on

top of Respondent=s tanker truck presented a Adanger of falling@
within the meaning of ' 77.7710(g).

 The phrase Adanger of falling@ reasonably means a risk of

falling from a height sufficient to cause a reasonably serious
injury. It does not mean that it is probable that one will fall.

 The driver=s activities involved a number of risks of

falling, including the following:

 1. On a windy day, a sudden strong wind could cause the
 driver to lose his footing and fall from the truck.

 2. Ice or snow could cause the driver to slip and fall.

 3. When the driver steps over a porthole, he could have a
 misstep and fall or could trip on the latches or on the edge
 of the porthole and fall.

 4. When maneuvering the 10-foot squeegee pole, the driver
 could lose his balance and fall.

 5. If the driver steps on the oval surface of smooth metal

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 around a porthole he could slip and fall.

 Respondent contends that its drivers do not work on tank

tops during inclement weather. However, no records or other data
were presented to support this position. There are many
variations between weather forecasts and actual weather
developments during the day as well as sudden changes in the
wind. A policy that eliminates safety belts and lines on the
basis that weather and wind risks will be accurately predicted
and avoided fails to meet the safety protection intended by
' 77.1710(g). The controlling question is whether walking,
stooping, squatting, standing, squeegeeing, and stepping over
tripping hazards on top of a tanker truck involve Adangers of
falling@ within the meaning of the safety standard. I find that
they do.

 Respondent also contends that the safety line installed at

Wylo Mine presents a greater hazard than the hazard of working
without a line. This position is contrary to the evidence. The
driver testified that he would prefer to work on top of the tank
without a safety belt and line because the hook Acatches@ at
times and might cause him to lose his balance. This may suggest
that Respondent check the sliding mechanism on the safety line,
but it does justify the notion that adapting to a safety belt and
line is a hazard greater than the hazard of a 9-foot fall from a
truck top.

 Finally, Respondent contends that its record of having no

fall from a tank top in its five years experience is proof that
there is no Adanger of falling.@ This position is not
persuasive. Falls from trucks do occur and cause death or
serious injuries. The fact that Respondent=s drivers have been
fortunate thus far does not mean that working near the edge of a
9-foot drop from a tank top does not involve a danger of falling.

 I find that ' 77.1710(g) applies to Respondent=s tanker

truck and requires that the driver wear a safety belt and line
when on top of the tank unless there are guard rails. Respondent
was therefore in violation of ' 77.1710(g).

 The violation was due to moderate negligence. Respondent

did not make a reasonable effort to require the driver to wear a
safety belt and line at the Wylo Mine.

 The ' 104(a) citation alleges a Asignificant and

substantial@ violation, which the Commission defines as one
presenting a Areasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious

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nature.@ National Gypsum Co., 3 FMSHRC 822, 825(1981); Mathies
Coal Company, 6 FMSHRC 1, 3-4 (1984). I find that the facts
sustain a finding that working on top of the tanker truck without
a safety belt and line or guard rails was reasonably likely to
result in serious injury.

 I now turn to the imminent danger order. AImminent danger@

is defined by the Act as Athe existence of any condition or
practice . . . which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be
abated.@ 30 U.S.C. ' 802(j).

 The inspector observed a driver standing on top of an

emulsion tanker truck without guard rails or a safety belt and
line, about 9 feet above the ground. The driver indicated that
his normal activities involved climbing a ladder on the side of
the tank, opening portholes, climbing down and waiting for the
emulsion to drain, climbing up again and squeegeeing the remains
through the portholes, closing the portholes and climbing down
the ladder.

 The Commission has held that an inspector must be given

considerable discretion because he or she must act quickly to
eliminate conditions that create an imminent danger. Wyoming
Fuel Co., 14 FMSHRC 1282, 1291 (1992). The focus on review is
whether the inspector made a reasonable investigation of the
facts under the circumstances and whether the facts known to him
or reasonably available to him support the issuance of an
imminent danger order. Id. at 1292. The findings of the
inspector should be upheld unless the evidence shows an abuse of
discretion. Id.; Old Ben Coal Corp. v. Interior Board of Mine
Operations Appeals, 523 F. 2d 25, 31 (7th Cir. 1975).

 I find that the facts support the inspector=s finding of

imminent danger based upon the facts known to him or reasonably
available to him. Observing a driver near the edge of a 9-foot
drop on top of a tanker truck, without guard rails or a safety
belt and line, and determining the miner=s activities as found
above, the inspector exercised reasonable discretion in issuing
an imminent danger order.

                      CIVIL PENALTY

 After the citation and order were issued, Respondent

promptly complied with the safety standard at the Wylo Mine.
However, it made no effort to comply at other coal mines. Its
overall approach to the safety standard appears to be that it
will not comply with MSHA=s interpretation at any other mine

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unless the mine operator insists that Respondent provide a safety
belt and line and require its drivers to use them or unless
Respondent is caught by MSHA at another mine.

 Considering all of the criteria for civil penalties in

' 110(i) of the Act, I find that the penalty of $147.00 proposed
by the Secretary for the violation of ' 77.1710(g) is reasonable.

                     CONCLUSION OF LAW

  1. The judge has jurisdiction.

 2. Respondent=s contract work at mines producing coal for

sales in or substantially affecting interstate is subject to the
requirements of the Act. The Act applies to Respondent=s trucks
on mine property whether or not the Department of Transportation
or any other agency also has jurisdiction over the condition or
operation of Respondent=s trucks.

                           ORDER

  WHEREFORE IT IS ORDERED that:

 1. Order No. 3973745 and Citation Nos. 3973746 and 3973749

are AFFIRMED.

 2. Within 30 days from the date of this Decision, Respondent

shall pay civil penalties of $210.00 ($63.00 of which is the
settlement of Citation No. 3973749).

                           William Fauver
                           Administrative Law Judge

Distribution:

Tina C. Mullins, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

Hilary K. Johnson, Esq., Boucher, Hutton & Kelly, 188 E. Main
St., Abingdon, VA 24210 (Certified Mail)

/lt

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