Secretary of Labor v. Pennsy Supply, Inc.

Plain-English summary

MSHA issued Pennsy Supply five citations after a former employee alleged lead exposure while using a torch to remove bolts and washers from a sand screw. The citations alleged failures to report an occupational illness, maintain a safety data sheet, train miners, provide special protective equipment, and monitor exposure. Judge Priscilla M. Rae found no medical documentation establishing a lead-poisoning diagnosis and no credible evidence tying hazardous lead exposure to the work. She also held that washers were exempt manufactured articles under normal use, management did not know lead washers were present, and protective equipment was available. For the monitoring citation, the Judge found that a supervisor had stopped the torch work because of smoke, which satisfied the survey and control requirement under MSHA's stated interpretation. She vacated all five citations and dismissed the case.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 47.2(b), 47.51, 50.20(a), 56.5002, and 56.15006
• Outcome: All five citations were vacated, including the two citations modified to allege high negligence and unwarrantable failure.
• Key point: Lead-related duties could not be imposed on this record without a documented occupational diagnosis, proof of a hazardous exposure, or evidence that the operator knew enhanced controls were needed.

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:
202-434-9950 / FAX: 202-434-9949

April 16, 2019

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

PENNSY
SUPPLY, INC.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. YORK 2018-0004

A.C.
No. 07-00059-449176

Mine:
Bay Road Plant #7

DECISION AND
ORDER

Appearances:               M.
del Pilar Castillo, Esq., Office of the Solicitor, United States Department of
Labor, Philadelphia, Pennsylvania, for the Petitioner,

David
M. Toolan, Esq., CRH Americas, Inc., Atlanta, Georgia, for the Respondent.

Before:                        Judge
Rae

This case is before me upon a
petition for assessment of civil penalties filed by the Secretary of Labor
(“the Secretary”) pursuant to § 105(d) of the Federal Mine Safety and Health
Act of 1977, as amended (“the Mine Act” or the “Act”), 30 U.S.C. § 815(d).    At
issue are three section 104(a) and two section 104(d) citations issued to
Pennsy Supply, Inc. (“Pennsy”) as a result of an inspection conducted by an authorized
representative for the Department of Labor’s Mine Safety and Health
Administration (MSHA).

A hearing was held in Dover,
Delaware, at which time testimony was taken and documentary evidence submitted.   
The parties also filed post-hearing briefs.    I have reviewed all of the
evidence and have cited to the testimony, exhibits, and arguments I found
critical to my analysis and ruling herein without including a detailed summary
of the testimony given by each witness.   

After considering the evidence,
and observing the witnesses and assessing their credibility, for the reasons
set forth below, I vacate all five citations.

I.          STIPULATIONS

The
parties have entered into the following stipulations:

1.         The
Respondent was an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. §
803(d), at the mine at which the citations at issue in this proceeding were
issued.

2.         Operations
of Respondent at the mine at which the citations were issued are subject to the
jurisdiction of the Mine Act.

3.         This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission.

4.         The
individual whose name appears in Block 22 of the Citations was acting in her
official capacity and as an authorized representative of the Secretary of Labor
when the citations were issued.

5.         The
proposed penalty for the citations at issue in this proceeding will not affect
the Respondent's ability to continue in business.

6.         The
citations contained in Exhibit “A” attached to the Secretary’s Petition is an
authentic copy with all appropriate modifications or abatements, if any.

Joint
Ex. 1. [1]

II.        FACTUAL
BACKGROUND

Bay
Road Plant #7, operated by Pennsy, is a small construction sand and gravel
plant located near Dover, Delaware.    Tr. 14-15.    This case had its origins
in a complaint filed by a former Pennsy employee, Steven Horn, with the
Occupational Safety and Health Administration (OSHA).    Tr. 76.    Horn
started working for Pennsy sometime in 2016 (the record is unclear as to
exactly when) as a plant operator assigned to separate rock and sand into piles
of various grades.    Tr. 71-72.    Horn testified that in his complaint to
OSHA (which is not in the record), he alleged that he had been exposed to
dangerous levels of lead during a winter maintenance task performed at the
plant in mid-February 2017.    Tr. 77.    OSHA conducted a preliminary
investigation but determined it lacked jurisdiction over Pennsy.    OSHA
referred the complaint to MSHA, which assigned an inspector, Michele
Santos-Cranford, to investigate it.    Tr. 138.    Santos-Cranford, who had
been employed at MSHA for nine years and had mining experience dating to 1986,
interviewed Horn and, on July 11, 2017, inspected the plant premises.   

The
task which Horn alleged exposed him to lead poisoning was winter maintenance of
a sand screw.    See  Ex. R-1 (a photograph of a sand screw, though
not the one on which maintenance was being performed in February 2017).    This
involved the removal of shoes held onto the screw by bolts, nuts, and washers.   
Daniel Washburn, a former Pennsy employee who testified at the hearing, was the
lead man in charge of this winter maintenance.    Tr. 14.    Washburn testified
that he removed the shoes, which were secured by two bolts, by grinding through
one half of each bolt using a grinder with a cutting wheel.    Once the bolts
were cut in half, Washburn would strike the bolt with a hammer thereby removing
the bolt from the shoe.    Tr. 18, 21.    Washburn stated he had previously
performed this task two or three times a year.    Typically, he stated, this
task entailed removal of 20 to 30 shoes.    On this particular occasion,
however, all the shoes were being removed and ones in good condition were being
set aside for use on a new sand screw.    This meant that an unusually large
number of shoes had to be removed.    According to Washburn, “well over 100
[shoes] on each side” were removed; Horn stated that “400 to maybe 450 bolts”
were removed.    Tr. 18, 108.    Both Washburn and Horn removed the shoes
individually, then handed them to a third employee, Jeff Darling (who did not
testify at the hearing), who would sort them according to whether they could be
reused or should be disposed of.    Tr. 21.   

Horn
testified he had told Washburn about his prior welding and burning experience,
and that Washburn told him, “Steve, if you can help us, we are going to be
burning these bolts off….”    Tr. 79.    Horn stated he had never done this
particular task at Pennsy.    Tr. 88.    Rather than grinding the bolts as
Washburn had done in the past and was doing then, Horn opted to use an
alternative approach to the task:    burning the back end of the bolt, where
there was a nut and washer that held the shoe in place, with an acetylene
torch.    As the metal started to melt from the flame, he would cut close to
the back of the bolt so it could fall away from the shoe, thereby releasing the
shoe from the sand screw.    Tr. 85-86.    Horn testified he switched to using
a torch because it was “the most feasible and quickest way” to remove his the
bolts securing the shoes to the sand screw.    Tr. 108.    Washburn testified
that his supervisor, Jay Clendaniel, stated Horn’s torch method took too long,
and Clendaniel suggested Horn use the grinder as Washburn was doing.    Tr. 42.   
Clendaniel was not called to testify at the hearing.   

Both
Horn and Washburn testified that shortly after they began their work on the
sand screw, Horn voiced concerns about what he believed to be lead washers
behind the bolts they were removing.    Tr. 29, 87.    Washburn stated he
observed Horn’s burning with the torch produced “a real white smoke” that had a
foul odor.    Tr. 28.    Horn stated the smoke was “normal for that type of
work.”    Tr. 87.    He stated the washers burned and melted into a gray
liquid, which splashed onto the floor and produced “a little bit of black
smoke,” though he did not mention any odor.    Tr. 87.    Horn subsequently
told Washburn that there were lead washers in between the nuts and bolts, and
asked whether they should be concerned.    Tr. 88.    Washburn testified that
Horn also asked whether they needed additional personal protective equipment
(“PPE”).    Tr. 30.    Washburn testified he called Clendaniel to relay Horn’s
concerns, and to suggest that additional breathing protection was necessary.   
According to Washburn, Clendaniel said no additional PPE was required because
the work was being done outside in breezy conditions.    Tr. 30.    Washburn
claimed he called Clendaniel again later that day, and that Clendaniel
suggested they wear paper respiratory masks.    Tr. 31.    Though both men
apparently attempted to use paper masks, Washburn testified that “they kept
steaming up our safety glasses,” and they stopped using them.    Tr. 32.   

Horn
contradicted Washburn’s claim that he contacted Clendaniel at all.    Horn
testified that Washburn told him, “We do this all the time, and nobody ever got
sick from it.”    Tr. 77.    Thereafter, according to Horn, the men “just
continued with the job until completion.”    Tr. 88-89.    Horn also testified
that he worked with Washburn every hour during the winter maintenance work but
never saw Washburn call Clendaniel.    Tr. 109, 124-25.    Jeff Dawson, the
mine’s General Manager and Clendaniel’s immediate supervisor, testified that
“[a]fter the [MSHA] investigation started ... I asked if [Clendaniel] has been
notified by anyone about any hazards associated with lead on this job.    He
said he had not been notified by anyone.”    Tr. 266.    On this issue, upon
observing his demeanor, I found Dawson’s testimony particularly credible.   

Notably,
Washburn did not testify that he relayed to Clendaniel Horn’s specific concerns
about the presence of lead despite his testimony that “I know from past
experience, there was lead, definitely lead washers in that.”    Tr. 24.    He
stated he knew this because he had helped install the shoes in the past, and
had been responsible for ordering replacement washers.    Tr. 25, 48.    He claimed
that, when new replacement washers were installed, “everyone over the years”
would ask why lead washers were being used.    Tr. 26.    However, despite this
testimony, Washburn admitted he never raised the issue in regular safety
training, did not report any concerns to a confidential mine safety hotline,
and never discussed the use of lead washers with mine management.    Tr. 41.   
On this point, Washburn further contradicted himself, testifying that, before
this particular task in winter 2017, no one had ever before voiced any concerns
about lead washers:    “Until this came about, we didn’t realize there was an
issue, because over the years no one ever said anything [about] it.”    Tr. 60.   

Inspector
Santos-Cranford’s inspection notes indicate that Clendaniel informed her that
he did not know that lead washers were being used in the sand screw, and that
he told Horn to stop using the torch because it was generating too much smoke.   
Ex. S-14 at MSHA047 and MSHA049.    She also noted that Dawson told her he did
not know lead washers were being used in the sand screw, and that he looked in
the sand screw manual to see whether lead washers were listed as a component
and found no such indication.    Ex. S-14 at MSHA045.

Horn
and Washburn disagreed on whether Clendaniel visited site where they were
performing the winter maintenance.    Washburn first testified that Clendaniel
never came by the task site.    Tr. 31.    But he then testified that
Clendaniel suggested Horn switch from using the torch, which he believed was
taking too long, to the grinder.    Tr. 42.    Horn, on the other hand,
testified that Clendaniel “always came by because he was following progress in
two yards,” and would have observed him using the torch.    “Once he seen we
were working, everyone was moving forward, he would go to the other yard and
check progress over there.”    Tr. 89. Horn also testified, however, that the
reason Clendaniel came through was because MSHA was onsite but that they stayed
stayed away because work was being done. He then stated that he had “no idea”
MSHA was onsite and only heard about it later. Tr. 120.

Horn
testified he was offered a position with a car battery manufacturer on Friday,
March 31, 2017 at 3:00 PM.    He immediately told Washburn that he was leaving
Pennsy “as of this moment.”    Tr. 72.    As part of his pre-employment
screening for the new employer, Horn’s blood lead level was tested.    Horn was
scheduled to complete paperwork at the new employer on Monday, April 3, 2017,
and begin work the following Thursday.    Tr. 73.    However, on the way to
sign the paperwork, the new employer called him and told him that he had a high
blood lead level, and that on account of that, it had to revoke its employment
offer. Battery manufacturing involves exposure to lead. Tr. 74.    Horn called
Pennsy’s human resources department soon thereafter and spoke with a
representative named Jeff Brown.    He asked, “based on leaving my job on
Friday at three in the afternoon, that it [is] now one o’clock Monday, what
were the opportunities, possibilities of getting my job back[?]”    Tr. 74.    Horn
stated that Brown responded, “no, we have decided to move forward.    That is
not going to happen.”     Tr. 74.     Horn then asked about whether he could
receive worker’s compensation based on the results of his lead test, claiming
“I was employed by [Pennsy] with the initial contact of lead.”    Brown asked
in response how the company could know he was not exposed to lead “outside of
being employed with Pennsy.”    Horn answered by ending the call, stating “this
conversation is over.”    Tr. 76.

Horn
testified he consulted with his doctor and obtained a second lead test.    The
results were the same.    At the hearing, Horn gave one example of what he
believed to be memory impairment caused by his heightened lead level in his
blood.    He recalled that he was driving with his wife down a rural road near
his home and became confused.    He asked his wife, “if we go this way, is it
going to take us to the main road.”    Horn said she replied, “my God, Steve,
you have been down this road 100 times, you know that.”    Tr. 75.    Horn
testified he had not received any treatment for the high level of lead in his
system.    Instead, he stated he had his blood lead level checked once a month
and that the levels had decreased over time.    Tr. 76.

At
some point thereafter, Horn filed a complaint with OSHA, which in turn was
referred to MSHA.    As previously noted, Santos-Cranford inspected the Bay
Road Plant #7 on July 11, 2017.    As a result of this inspection,
Santos-Cranford issued five section 104(a) citations to Pennsy charging
violations arising from Horn’s alleged exposure to and poisoning by lead.    Pennsy
contested the alleged violations and argues that they should all be dismissed.   
Pennsy also argues that MSHA lacked any basis for modifying two of the
citations to allege that Pennsy was highly negligent, and that the two
violations resulted from the company’s unwarrantable failure to comply with a
mandatory safety standard. [2]    

The two modified citations, Nos. 8802227
and 8802228, were originally issued pursuant to section 104(a) of the Act, and
the degree of negligence for each was designated as moderate.    On May 21,
2018, the Secretary filed a Motion to Amend the Petition for Assessment of
Penalty requesting that both of these citations be amended to section 104(d)
citations with high negligence, which would add unwarrantable failure
designations to both citations.    In support of the motion, the Secretary
alleged that “newly-discovered evidence warrants the amendment of the
citations."    Mot. to Amend at 3 (May 21, 2018).    The Secretary further
explained that:    “During discovery, the Secretary has learned that the
operator had a heightened awareness that its employees were grinding and
burning lead.    Instead of implementing the required protections required
under the Mine Act, the operator trivialized employees' concerns.”    Id .   
I granted the motion in an order dated May 31, 2018.    At the hearing,
although Pennsy’s counsel repeatedly attempted to elicit from Santos-Cranford
testimony providing the bases for the Secretary’s unwarrantable failure
allegations, the Secretary’s counsel repeatedly objected, stating, “I am the
one that wrote the amendment. What Mrs. Santos-Cranford thinks about negligence
is not really relevant.”    Tr. 234.    When counsel for the operator asked the
inspector how long Clendaniel had been aware of the alleged safety condition,
again counsel for the Secretary objected again stating, “ [s]he doesn’t know.”   
 The evidence supporting the unwarrantable failure allegations were based upon
Washburn’s testimony, which was already on the record and which the Secretary
argued satisfied his burden as to unwarrantable failure.    Tr. 236-238.    In
the post-hearing brief, the Secretary argued that the violations in question
where unwarrantable failures because the Respondent showed “a plain
indifference to worker safety” and did not offer mitigating circumstances. [3]
Sec. Br. 22-23.

III.
      CREDIBILITY FINDINGS

Reviewing
the record of these proceedings compels me to address and make findings on the
credibility of several of the witnesses, particularly Horn and Washburn.    I
have already noted several instances in the record where Horn and Washburn
contradict each other.    Neither could agree on the number of shoes removed or
the number of days it took to perform the winter maintenance.    Neither could
agree on whether Clendaniel visited the job site.    Neither could agree on the
color or smell of the alleged lead fumes.    Neither could agree on whether
Washburn called Clendaniel to voice Horn’s concerns about lead.    And, if he
did in fact call Clendaniel, Washburn did not actually testify that he told
Clendaniel that Horn had an issue with the “lead.”    Instead, he testified he
reported Horn had a problem with generic dust and fumes.   

In
addition, Washburn testified that, on the one hand, “everyone over the years”
would ask why lead washers were being used, yet on the other hand, testified
later that, “[u]ntil this came about, we didn’t realize there was an issue,
because over the years no one ever said anything [about] it.”    Tr. 26, 60.   
In contrast to this contradictory testimony, Santos-Cranford’s noted indicate
that neither Dawson, who I found quite credible, nor Clendaniel knew lead
washers were being used in the sand screw.   

As
to Washburn’s claims of having contacted Clendaniel twice by phone in one day
about fumes and the need for addition PPE while he and Horn were performing
winter maintenance on the sand screw, I have already stated that I credit
Dawson’s testimony that no such contacts occurred.    I find, however, that,
contrary to Washburn’s testimony, Clendaniel visited the work site and instructed
Horn to stop using a torch to remove the bolts, and to instead use a grinder.   

Both
Horn and Washburn alleged that medical tests established that they had suffered
from lead poisoning, allegations upon which the Secretary based much of the
case against Pennsy.    Yet the record is utterly devoid of any credible
evidence, either documentary or testimonial, from a credible medical source
that supports any claim of lead poisoning, much less establishes by a
preponderance that such poisoning occurred or may have been caused by lead
exposure at the Pennsy work site.    I find unconvincing Horn’s single example
of apparent memory loss, especially in the absence of any credible medical
opinion linking such a symptom to lead poisoning.    I also find it curious, at
least, why if Horn was poisoned by lead he would call to get his job back
immediately after being turned down by the battery company.    If Horn did, in
fact, suffer from lead poisoning, it beggars comprehension why the Secretary
failed to place in the record more than anecdotal evidence of such a serious
diagnosis.    The Secretary’s failure to do so leads me to draw a negative
inference as to this essential evidentiary lacuna.

As
to the Secretary’s case in general, the evidence presented at the hearing was
all too often vague and cursory, and not supported by any expertise.    The
most glaring example of this is that, although samples were taken at the Pennsy
plant and tested for lead, and although the test results (some of which were
positive) were placed in the record (Ex. S-16), the Secretary presented no
evidence interpreting those results.    There is no indication as to whether
the positive test results were high, medium, or low in the context of
occupational exposure to lead in some form.    Nor was there any testimony
linking the presence of the lead found to possible exposure to it in the
workplace.    Lead washers were found but even the Secretary’s primary witness,
Santos-Cranford, admitted that “there would be no way for me to prove one way
or the other whether these washers [i.e., those collected during sampling] had
anything to do with exposure or not.”    Tr. 171.    Although Santos-Cranford
testified that this was “[t]he reason why there was no citation issued for
exposure,” Tr. 171, as I review the citations she did issue, the underlying
assumption buttressing them is that Horn was exposed to and poisoned by lead in
the workplace.   

The
Secretary’s allegations rest upon there being lead in the workplace at Pennsy,
which is accused of failing to have an MSDS for lead or to train its
employees as to the hazards associated with lead or to provide adequate
protection to its employees against lead exposure or to have in place a
system to monitor workplace exposure to lead – and all of these
allegations are based on an employee allegedly suffering from lead poisoning .   
Exposure to lead is at the very core of the Secretary’s case, yet when asked
how she relied on the sampling results when issuing the citations at issue,
Santos-Cranford was not able to respond in any meaningful way.    Tr. 170.   

As
a result, I am left with a record lacking any specific evidence that when
Pennsy employees worked on sand screw, they could have been exposed to
impermissible lead levels, and in what form that lead might have entered the
working environment such as dust or fumes.   

In
this regard, Santos-Cranford’s statement that “lead content is lead content” is
stunningly inapposite.    Tr. 162.    To establish the need for heightened
safety precautions, the Secretary would have to first provide a background
level for lead in the environment.    Lead is ubiquitous, and “can be found in
all parts of our environment – the air, the soil, the water, and even inside
our homes.”    Learn about Lead , www.epa.gov/lead/learn-about-lead.    Then
the Secretary would have to show that, at Pennsy, workers were exposed to lead
in the work they performed at levels exceeding (or far exceeding) background
exposure.    I infer from the lack of any positive test results from common
areas at the Pennsy plant that the background lead level there was likely
negligible.    I also infer that workers were not carrying lead dust particles
on their work clothes, hands or persons from work areas to common areas,
therefore negating any claims that miners were exposed to lead dust.

I
am struck by the lack of effort the Secretary made to prove this case.    There
are so many questions left unanswered.    I cannot assume that something
happened at Pennsy that should not have, and that it might have made persons
sick.    My role is not to give credence to assumptions.    Instead, I must
look at the evidence and determine if it proves by a preponderance the matters
asserted by the Secretary.   

Overall,
I find that the testimony of both Horn and Washburn was confusing, often
disingenuous and self-serving, and, ultimately, lacking in credibility.    The
Secretary’s case I find plagued with inadequately supported assumptions.    My
findings below on each of the violations reflect this.   

IV.       LEGAL
PRINCIPLES

A mine operator is strictly liable for
Mine Act violations that occur at its mine.    Spartan Mining Co ., 30
FMSHRC 699, 706 (Aug. 2008).    The Secretary bears the burden of proving any
alleged violation by a preponderance of the credible evidence.    In re:
Contests of Respirable Dust Alteration Citations , 17 FMSHRC 1819, 1838
(Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp.,
153 F.3d 1096 (D.C. Cir. 1998).

V.
       FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.   
 Citation No. 8802224

Citation
No. 8802224 was issued by Santos-Cranford on August 1, 2017 after she consulted
with Horn and inspected the Bay Road Plant #7.     Santos-Cranford relied on
Horn’s statements and documents in issuing this citation.    Tr. 175.    The
narrative section of Citation No. 8802224 states that Respondent failed to
complete and submit a MSHA #7000-1 form in violation of 30 C.F.R. § 50.20(a) [4]
after a former employee (i.e., Horn) reported to the company that he had been
diagnosed with lead poisoning. The citation alleges moderate negligence. The
Secretary proposed a penalty of $116.00.    Ex. S-2; Ex. A.

The
Secretary argues that Horn reported his alleged diagnosis of lead poisoning to
Pennsy’s human resources department on April 3, 2017, and that Pennsy then
failed to report that alleged diagnosis within the 10-day reporting window
designated in section 50.20(a).    The Secretary states that Pennsy did not
report the alleged lead poisoning until August 1, 2017, well outside the
reporting window.    Sec. Br. 24.

Pennsy
argues it did not violate the standard because it never received any evidence
that Horn was diagnosed with an occupational illness, aside from Horn’s
statements to that effect.    Pennsy claims Horn refused to cooperate with its
investigation of his alleged illness.    Resp. Br. 8-9.

Section
50.20(a) requires operators to submit an MSHA #7000-1 form reporting each
accident, occupational injury, and occupational illness occurring at the mine.   
30 C.F.R. § 50.20(a).     An occupational illness is defined as “an
illness or disease which may have resulted from work at a mine or for which an
award of compensation is made.”    30 C.F.R. § 50.2(e).    Notably, section
50.20(a) provides: “If an occupational illness is diagnosed as
being one of those listed in section 50.20-6(b)(7),
the operator must report it under this part.”    30 C.F.R. § 50.20(a)
(emphasis added).    Poisoning by lead is listed in section 50.20-6(b)(7)(iv).   

As
highlighted above, the plain language of section 50.20(a) requires in the case
of an occupational illness an actual diagnosis of such an illness.    However,
here, Pennsy never had any bona fide diagnosis of lead poisoning, and thus, as
is further explained below, was under no obligation to provide MSHA a report of
any such alleged poisoning.

On
March 31, 2017 at 3:00 PM, Horn received an offer of employment at another
company.    He immediately quit his job at Pennsy.    Tr. 72.    However, his
new employer revoked the offer of employment after Horn reported that the level
of lead in his blood was higher than they would accept for a new employee.    When
Horn called Pennsy’s human resources department to ask for his job back, a
request that Pennsy denied, Horn asked about eligibility for worker’s
compensation on account of lead poisoning.    But the Pennsy representative to
whom Horn spoke asked how the company could be sure he was exposed to lead at
its plant.    This led Horn to abruptly terminate the conversation.    Tr. 74,

76.    He thereafter refused to give Pennsy any other information on his lead
test results, never signed a medical release form for Pennsy to retrieve those
results, and had not received any medical treatment for the heightened lead
level in his blood.    Tr. 76, 116, 179.    Similarly, although Washburn
testified he also tested positive for lead, he never provided any test results
to Pennsy, either orally or in any printouts of laboratory tests, nor did he
ever sign a medical release form which Pennsy provided him.    Tr. 61-62.   

At
the hearing, the Secretary did not produce any medical records that could have
established that Horn and Washburn had been diagnosed with lead poisoning. Nor
did the Secretary provide any such documentation to Pennsy. To the contrary,
Santos-Cranford testified that she did not provide the company any
documentation because “[i]t’s not our job.”    Tr. 179.

I
find this particularly curious insofar as, had Horn or Washburn provided
medical documentation of a diagnosis of lead poisoning, section 50.20(a) has a
low threshold triggering the necessity of reporting an occupational illness,
i.e., only that a diagnosed illness may have resulted from work at a
mine.   

The
failure to produce the alleged blood tests by Horn or Washburn or the Secretary
after being asked to do so left Pennsy with no confirmation of a diagnosed
mining-related illness which would give rise to the reporting requirement of
section 50.20(a).     I note in particular that Pennsy made all reasonable
efforts to obtain and confirm the allegations Horn made, but was never provided
the information necessary to make any report.    Moreover, the record before me
is devoid of any evidence that Pennsy ever had any such information.    I thus
conclude that, under these circumstances, the standard simply did not apply.

Moreover,
even if I were to accept as true the unsubstantiated and anecdotal evidence
that Horn or Washburn had lead poisoning, I find what evidence that is in the
record inconsistent with OSHA guidance on the toxicity of lead.    29 C.F.R.
§ 1910.1025, App. A, Substance Data Sheet for Occupational Exposure to
Lead.    I take judicial notice of this OSHA guidance.    Union Oil Co. ,
11 FMSHRC 289, 300 n.8 (Mar. 1989) (official notice may be taken of the
existence of extra record information that is not the subject of testimony but
is commonly known, or can safely be assumed, to be true).    Although this OSHA
guidance states that a short term dose of lead can cause acute encephalopathy
of the brain, which develops quickly to seizures, coma, and death from
cardiorespiratory arrest, “[s]hort term occupational exposures of this
magnitude are highly unusual.”    It is chronic, long-term exposure that
results in lead levels in highly toxic ranges.    Short term exposure would
have to be extremely heavy and concentrated to obtain acutely toxic results.   
Here, though, Horn was outside in the breeze, had protective clothing on, did
the work for a just few days, and was told to stop using a torch to remove the
bolts.    Tr. 23, 28-30, 43, 78, 80.    There is no evidence that either Horn
or Washburn suffered any serious symptoms consistent with lead
poisoning, acute or otherwise. Nor did the Secretary introduce any evidence of
how many of the washers that Horn torched were actually lead.    Especially in
light of the OSHA guidance on lead, I find that the record in no way supports
the Secretary’s argument that Horn suffered from an occupational illness Pennsy
was obligated to report to MSHA.   

For
these reasons, I find that the Secretary failed to prove that Pennsy had any
duty to report Horn’s alleged occupational illness pursuant to section
55.20(a), 30 C.F.R. § 55.20(a).    Given that I have found no violation, I need
not address any other issues related to Citation No. 8802224, including
gravity, negligence, and the proposed penalty assessment.

B.   
Citation No. 8802225

Citation
No. 8802225 was issued by Inspector Santos-Cranford on July 31, 2017 following
an inspection of the Bay Road Plant #7.    This inspection arose out of the
same circumstances as the preceding citation.    Tr. 137, 182.    The citation
alleges that Pennsy had no Material Safety Data Sheet (“MSDS”) for lead washers
available at the mine as allegedly required by 30 C.F.R. § 47.51 . [5]  
  The citation alleges moderate negligence.    The Secretary proposed a penalty
of $116.00.    Ex. S-4; Ex. A.

Before
conducting her inspection, Santos-Cranford consulted with an MSHA toxicologist
(who was not called to testify at the hearing) regarding measuring the alleged
existence of lead at the mine.    Tr. 141-42.    During her inspection of the
mine on July 11, 2017, Santos-Cranford collected several wipe and bulk samples
after she explained her methodology to Washburn, supervisor Jay Clendaniel, and
General Manager Jeff Dawson.    Tr. 141.    Santos-Cranford used two sample
collection methods:    wipe sampling of various surfaces in common areas at the
mine (such as the kitchen) and work areas, and the collection of bulk samples
(e.g., bolts, nuts, washers, etc.).    Tr. 150, 153.   

No
evidence of lead contamination in common areas was introduced at the hearing.   
Santos-Cranford obtained bulk samples from a drain near where the winter
maintenance task had been performed.    Tr. 145.    These bulk samples were not
proven to have come from the sand screw on which work was actually performed,
and were intact, not ground, cut, or melted.    Tr. 156-57.     Some of these
samples, specifically some washers and wipes taken from a sand screw, tested positive
for the presence of lead.    Tr. 162-63; Ex. S-16 at MSHA 071; Ex. S-17.    As
I have already noted, Santos-Cranford, admitted that “there would be no way for
me to prove one way or the other whether these washers [i.e., those collected
during sampling] had anything to do with exposure or not.”    Tr. 171.   

Subsequently,
Santos-Cranford requested an MSDS for the washers found onsite.    Tr. 187.    Santos-Cranford
testified that an MSDS identifies hazards associated with a specific material
and remedies associated with those hazards.    Tr. 183.    However, when asked
to retrieve an MSDS for the washers, Dawson and Clendaniel were unable to do
so.    Tr. 187.    When Santos-Cranford returned to the mine on August 1, 2017,
a book containing MSDS documents, including one for lead washers, had been
placed in the scale house for employee use.    Tr. 189.    The MSDS for lead
washers originated from a Canadian supplier which had not manufactured or
supplied the lead washers to Pennsy.    Ex. S-5 at MSHA 006; Tr. 48, 232.

As
a result of finding lead washers on the premises and the identification of
traces of lead on the sand screw, as well as the inability of mine employees to
provide an MSDS for lead washers on July 11, 2017, Santos-Cranford issued Citation
No. 8802225.

I
find that, as a matter of law, the Secretary has not established a violation of
the cited standard.    The requirement in section 47.51 regarding the
availability of MSDSs at mines extends to hazardous chemicals mine
operators produce or use.    Elsewhere in Part 47, the term “article” is
defined as:    “A manufactured item, other than a fluid
or particle, that — (1) Is formed to a specific shape or design during
manufacture, and (2) Has end-use functions dependent on its shape or design.”   
30 C.F.R. §
47.11.    Under section 47.91, an “article” is generally exempt from the MSDS requirement.    30 C.F.R. § 47.91.    I conclude that a
washer is by definition an “article” under section 47.11, and thus exempt from
the MSDS requirement, because it is neither fluid nor particle, is formed
during manufacture into the specific shape of a flat disc, and its end-use
function is being “placed beneath a nut or at an axle bearing or a joint to
relieve friction, prevent leakage, or distribute pressure.”    The American
Heritage Dictionary of the English Language 1941 (4th ed. 2009).   

Notably,
under section 47.91, an “article” may not be exempt if, under “normal
conditions of use,” it releases more than insignificant amounts of a hazardous
chemical and poses a physical or health risk to exposed miners.    30 C.F.R. §
47.91.    The “normal conditions of use” here was removal of washer to release
shoes from a sand screw.    Tr. 88-89.    This was done through the grinding of
the adjacent bolt and striking the bolt with a hammer, which Washburn testified
was the routine practice of removal during winter maintenance, and which
produced only sparks from the metal, not fumes or dust.    Tr. 17-18, 21, 26,
48-49.    Burning the washers as Horn did using an acetylene torch was not
common practice at the operation; rather, it was an anomaly.    Horn took it
upon himself to use a torch directly on the washers – and was directed to cease
doing so because it was generating too much smoke.    Ex. S-14 at MSHA047 and
MSHA049.    Clearly, Horn’s work on the washers was not a “normal condition of
use.”    Tr. 88.    Nor did the Secretary prove that Horn’s anomalous approach
to removing the washers released any specific hazardous chemical that caused
lead poisoning.    It is insufficient proof to suggest that correlation between
Horn’s unsupported allegations of lead poisoning and his anomalous use of a
torch on the washers establishes either the existence of lead exposure or that
any such exposure caused lead poisoning.    Moreover, the Secretary offered no
proof that Washburn’s method of removal caused the release of any specific
hazardous chemical, or that Washburn’s method of removal (i.e., grinding the
bolt) posed any physical or health risk to exposed miners.    Tr. 43, 86-87,
89, 203.

The
Secretary has thus failed to establish that, as a matter of law, section 47.51
applies to lead washers.    Nor did the Secretary prove that the lead washers
were subject to the MSDS requirement under section 47.91 on account of the
“normal conditions of use” to which the washers were subjected.    I therefore
vacate Citation No. 8802225.    Given that I have found no violation, I need
not address any other issues related to Citation No. 8802225, including
gravity, negligence, and the proposed penalty assessment.

C.   
Citation No. 8802226

Santos-Cranford
issued Citation No. 8802226 on August 1, 2019 following her inspection of the
Bay Road Plant #7.    This citation arose out of the same circumstances as the
preceding citations. Tr. 194-95.    The narrative section of Citation No.
8802226 states that Pennsy failed to train miners on the specific hazards
associated with cutting and grinding connecting bolts and nuts separated by
lead washers, in violation of 30 C.F.R. § 47.2(b). [6]    
The citation alleges moderate negligence, and is designated at significant and
substantial (S&S). [7]    
The Secretary proposed a penalty of $330.00.    Ex. S-6; Ex. A.

During
her July 11, 2017 inspection of the mine, Santos-Cranford asked two miners
whether they had been trained on the specific hazards of cutting and grinding
bolts and nuts separated by lead washers.    Tr. 195, 197.    When asked,
Washburn, a member of his crew, and a third unidentified employee stated they
had not received any such training.    When asked at another time and place,
Horn answered likewise.    Tr. 197-98.   

Section
47.2(b) requires operators to instruct miners about the physical and health
hazards of chemicals the operator produces or uses, and the protective
measures a miner can take against such hazards.     Section 47.11 defines a
chemical as any element, chemical compound, or mixture of these.    A lead
washer is not an element, a chemical compound, or a mixture of these.    Instead,
as I have already found in connection with Citation No. 8802225, lead washers
are “articles” as defined in section 47.11, and are thus by definition exempt
from section 47.2(b).    Under section 47.91, an article may not be exempt if,
under normal conditions of use, it releases more than insignificant amounts of
a hazardous chemical and poses a physical or health risk to exposed miners.    30
C.F.R. § 47.91.    Again, as I have already found, the Secretary failed to
prove that the lead washers, in their normal conditions of use, failed to meet
this criteria for exemption from the standard.    Additionally, as I have
previously noted, there is no evidence that management knew that any of the
replacement washers were made of lead.    I thus conclude that Pennsy was not
required under section 47.2(b) to train its miners on hazards associated with
lead washers.   

For
these reasons, I vacate Citation No. 8802226.    Further analysis of other
issues related to Citation No. 8802226, including gravity, S&S, negligence,
and the proposed penalty assessment, is unnecessary.

D.   
Citation No. 8802227

Santos-Cranford
issued Citation No. 8802227 on August 1, 2019 following her inspection of the
Bay Road Plant #7.    This citation arose out of the same circumstances as the
preceding citations.    Tr. 202.    The narrative section of Citation No.
8802227 states that Pennsy failed to provide special personal protective
equipment (“PPE”) to protect against hazards associated with lead washers, in
violation of 30 C.F.R. § 56.15006. [8]    
The citation, as modified, alleges that the violation was S&S, highly
negligent, and an unwarrantable failure.    Ex. S-8; Ex. A.

The
key elements in the cited standard, section 56.15006, as applied here, are that
an operator must provide special PPE when miners encounter “chemical hazards … capable
of causing injury or impairment.”    30 C.F.R. § 56.15006.     To prove a
violation of this standard, the Secretary needed to present credible evidence
demonstrating a hazard was present, i.e., working in such a way that created a
hazard associated with exposure to lead, that the hazard could (or did) cause injury
or impairment, and that PPE was not provided.   

The
record clearly establishes that special PPE was readily available to miners at
Pennsy.    Dawson, whose testimony I found credible, stated that appropriate
PPE was always provided for miners, and that respiratory protection was
provided if it was required for a specific job.    Clendaniel had the
responsibility for submitting requests for specific PPE to Dawson.    When
asked whether he would have approved such a request for respiratory protection,
Dawson testified any such request “[w]ould have been approved immediately.”    However,
Dawson also testified that no such request was made with regard to the task at
issue here.    Tr. 249-50.    As to the need for any specific protection
against exposure to lead, as I have previously noted, there is no evidence that
Dawson or Clendaniel knew that any of the washers on which Horn and Washburn
were working were made of lead.    To the contrary, Santos-Cranford’s
inspection notes indicate that neither of them had any idea that any lead was
present at the work site.    Ex. S-14.    In a telling admission,
Santos-Cranford conceded that a requirement for enhanced PPE does not exist
where there is no awareness of exposure.    When asked “[y]ou still have to be
aware there is exposure for [enhanced PPE requirements] to kick in,” she
replied:    “Right.”    Tr. 244.       

Furthermore,
the Secretary has not proven that any chemical hazard existed.    There is
evidence that some lead was present at the Pennsy plant, but no credible
testimony or documentary evidence was adduced at the hearing that established
that any specific chemical hazards were either present or could have been
present where Horn and Washburn were working.   

Rather
the Secretary assumed that Horn’s unsubstantiated claim of lead
poisoning was sufficient to prove that lead fumes were released from washers
that may or may not have been lead during the winter maintenance task as not
all of the washers were the lead replacement parts.    The evidence of an
“injury or impairment” is as insubstantial as that pertaining to the chemical
hazard that supposedly led to an actual injury.    As I have already noted
above, Horn’s allegations of lead poisoning were utterly lacking in
corroboration by medical testimony or documentation.    The ease with which
such documentation could have been procured, and which may even have been in
the Secretary’s possession, has already led me to the negative inference that
Horn’s allegations were less than credible.   

For
these reasons, I find that the Secretary failed to prove that Pennsy violated
section 56.15006 as alleged.    Therefore, I vacate Citation No. 8802227.    Further
analysis of other issues related to Citation No. 880222, including gravity, S&S, negligence,
unwarrantable failure, and proposed penalty assessment, is unnecessary.

E.   
Citation No. 8802228

Citation
No. 8802228 was issued by Santos-Cranford on August 1, 2019, and arose out of
the same circumstances as the preceding citations.    Tr. 208.    The narrative
section of Citation No. 8802228 states that Pennsy failed to provide a system
of exposure monitoring when three miners were allegedly exposed to lead fumes
and dust, in violation of 30 C.F.R. § 56.5002. [9]    
The citation alleges high negligence, S&S, and unwarrantable failure.    Ex.
S-8; Ex. A.

Section
56.5002 is broadly worded and requires operators to conduct “surveys,” a term
that is not defined, “as frequently as necessary” when work generates dust,
gas, mist, or fumes, and “to determine the adequacy of control measures.”    30
C.F.R. § 56.5002.    Generally, an agency’s interpretation of its own
regulation is controlling unless “‘plainly erroneous or inconsistent with the
regulation.’”    Plateau Mining Corp. v. FMSHRC , 519 F.3d 1176, 1192–93
(10th Cir. 2008) (finding that Secretary’s interpretation of his own
regulation is entitled to deference), quoting Auer v. Robbins , 519 U.S.
452, 451 (1997).    At the hearing, counsel for the Secretary asked
Santos-Cranford, who was acting in her official capacity and as an authorized
representative of the Secretary of Labor when the citations were issued, what
type of “surveys” or “control measures” would have satisfied the requirement of
section 56.5002.    Santos-Cranford stated:

[Section 56.]5002 ... would
mean on a regular day when just the sand plant is running they could control
their dust, let's say, by looking to make sure all their sprayers were running.   
That is a survey in itself, just by looking out to make sure everything is
running fine, or by making sure that the water truck is running on a dusty day.   
So that control is in place.    ...    This is a little bit more technical, now
you are talking about something that is a fumes [sic] or dust.    ...    So in
itself that is telling you something was wrong, something needs to stop.    We
need to step back and take a look in itself would be a survey.   

You
had people who said that they were concerned, just stopping and looking at the
situation in itself would have been enough.

Tr.

211.    When asked whether any sampling would be required to satisfy the
standard in this situation, Santos-Cranford answered, “[s]ampling is not required,
only surveying.”    Tr. 212.   

Under
this interpretation of the standard by the authorized representative of the
Secretary, all that was required for Pennsy to comply with section 56.5002 when
Horn’s use of an acetylene torch produced excessive smoke was to stop work,
look at the situation, and determine the adequacy of control measures.    The
Secretary’s own evidence demonstrates that Clendaniel did just that when
he told Horn to stop using the torch because it was generating too much smoke.   
Ex. S-14 at MSHA049.    Horn thereafter discontinued using the torch
altogether, and work progressed to remove the shoes exclusively with grinders.   
This approach eliminated the smoke problem.    As Washburn testified, when the
grinders were used, there “wasn't a lot of dust.    There was a little bit, but
it was more sparks coming from the grinding of the nuts, sparks from it.”    Tr.

28.    Moreover, grinding the bolts, as Washburn was doing, avoided all contact
with any washers, lead or otherwise, because the grinders were only coming into
contact with the front end of the bolt, not any washers.    Tr. 18, 21.    Clendaniel’s
order to stop using the torch eliminated any alleged hazard along with any
excessive smoke, and thus, Pennsy satisfied the requirements of the cited
standard as defined by the Secretary.

Far
from proving a violation of section 56.5002, the Secretary essentially
established that Pennsy complied with that section.    I thus find no violation
occurred and therefore, vacate Citation No. 8802228.    Further analysis of
other issues related to Citation No. 8802228, including
gravity, S&S, negligence, unwarrantable failure, and the proposed penalty,
is unnecessary.

ORDER

Consistent
with this Decision, IT IS ORDERED that Citation Nos. 8802224, 8802225,
8802226, 8802227, and 8802228 are VACATED.    Accordingly, these
proceedings are DISMISSED.

/s/ Priscilla M.
Rae

Priscilla M. Rae

Administrative Law Judge

Distribution:

M.
del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor,
Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA
19106

David
M. Toolan, Esq., Oldcastle Law Group, 900 Ashwood Parkway, Suite 700, Atlanta,
GA 30338

[1] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing.    The
Secretary’s exhibits are numbered Ex. S-1 through S-18, Respondent’s Ex. R-1
through R-7.   

[2]
The
unwarrantable failure terminology is taken from section 104(d) of the Mine Act,
30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation.

[3] The Commission
has stated that factors
such as the length of time the violation has existed, the extent of the
violative condition, whether the operator was placed on notice that greater
efforts are necessary for compliance, the operator’s efforts in abating the
condition, whether the violation is obvious or poses a high degree of danger,
and the operator’s knowledge of the existence of the violation are all to be
considered in determining whether conduct is aggravated in the context of
unwarrantable failure .   
See
Consolidation Coal Co., 19 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald
Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195
F.3d 42 (D.C. Cir. 1999).

[4] Section
50.20(a) states in relevant part: “Each operator shall maintain at
the mine office a supply of MSHA Mine Accident, Injury, and
Illness Report Form 7000-1.    … Each operator shall report
each accident, occupational injury, or occupational
illness at the mine. The principal officer in charge of health and
safety at the mine or the supervisor of
the mine area in which
an accident or occupational injury occurs, or
an occupational illness may have originated, shall complete or review
the form in accordance with the instructions and criteria in §§ 50.20-1
through 50.20-7. If an occupational illness is diagnosed as being one
of those listed in § 50.20-6(b)(7), the operator must report it
under this part. The operator shall mail completed forms to MSHA
within ten working days after an accident or occupational
injury occurs or an occupational illness is diagnosed. …”    30
C.F.R. § 50.20(a).

[5] Section 47.51
states in relevant part: “ Operators
must have an MSDS for each hazardous chemical which they produce or use.”    30
C.F.R. § 47.51.

[6] Section 47.2
states in relevant part: “(a) This part applies to
any operator producing or using a hazardous chemical to which
a miner can be exposed under normal conditions of use or in a
foreseeable emergency. … (b) Operators … must instruct
each miner with information about the physical and health hazards of
chemicals in the miner's work area, the protective measures
a miner can take against these hazards, and the contents of the mine's
HazCom program.”    30 C.F.R. § 47.2.

[7] The S&S
terminology is taken from section 104(d)(1) of the Act, which distinguishes as
more serious any violation that is “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine or
safety hazard.”    30 U.S.C. § 814(d)(1). 

[8] Section
56.15006 states: “Special protective equipment and special protective clothing
shall be provided, maintained in a sanitary and reliable condition and used
whenever hazards of process or environment, chemical hazards, radiological
hazards, or mechanical irritants are encountered in a manner capable of causing
injury or impairment.”    30 C.F.R. § 56.15006.

[9] Section 56.5002
states: “Dust, gas, mist, and fume surveys shall be conducted as
frequently as necessary to determine the adequacy of control measures.”    30
C.F.R. § 56.5002.