Judge Thomas McCarthy vacated an S&S citation issued against Cemex’s Demopolis plant under §56.18002(a) for allegedly failing to designate a competent person to inspect elevators for each shift. The decision is similar to a July 2016, decision by Judge Barbour. Judge McCarthy found that the Secretary did not give “fair notice” to the operator that elevators fell within the definition of a “working place.”
The facts are similar to the July case. MSHA inspected the Demopolis plant after an elevator fatality at a different Cemex plant in Louisville, Ky., in which a miner had fallen down an elevator shaft when the doors opened, but the car was not on the floor. The miner fell more than 50 ft. to his death. After the fatality, MSHA went to various cement plants with elevators to conduct inspections, and to make sure that operators were inspecting the conveyances.
In this case, the elevators at the Demopolis plant were maintained by ThyssenKrupp Elevator Corp. (TKE) pursuant to a service agreement. The arrangement was also in line with Alabama state law that prohibits anyone but a licensed elevator mechanic from performing maintenance work on an elevator. Cemex employees would perform some maintenance, such as changing a burned out light, but regular quarterly inspections and maintenance were conducted by TKE.
MSHA asked to see records of examination records for the elevators, showing that the elevators had been examined for each shift pursuant to §56.18002, however, the company did not examine the elevators, but relied on TKE.
The agency argued that the elevator was a “working place,” for purposes of §56.2, because the miners used the elevators to perform “work,” and therefore the elevators must be examined by a designated competent person, and records must be kept of the examinations.
The Secretary’s witnesses admitted that MSHA changed its interpretation of a “working place” to include elevators after the Louisville plant fatal accident. Judge McCarthy found the new interpretation to be in conflict with MSHA’s past enforcement standard. The Secretary was advancing a new interpretation, which has never been discussed or explained in a Program Policy Letter, or rulemaking notice, the Judge McCarthy said.
“An elevator serves as a “way for persons to go from one place to another, rather than a place where actual work of mineral extraction or milling takes place. An elevator is more properly described as a travelway than a working place under §56.2,” Judge McCarthy wrote.
The Secretary could have cited the operator under §56.14100, which requires miners to inspect self-propelled mobile equipment, or could have even cited under §56.11001, which requires a safe means of access to all working places if the elevators were not being maintained in safe working condition. The Secretary could also have cited under the hoisting equipment standard §56.19120, Judge McCarthy said. However, “the Secretary’s new interpretation under §56.18002 to include elevators is inconsistent with the structure of the regulations and not necessary to promote safety.”
The company did not receive fair notice of the Secretary’s interpretation, and Judge McCarthy called the Secretary’s position “an ambush.” The judge also stated that the Secretary “sandbagged the company.”
The Secretary should have alerted the mining community through the ARs or through specific published guidance, but instead the Secretary “dispatched inspectors to issue citations.”
The Secretary also tried to argue that the fatality at the Louisville plant placed Cemex on notice of his new interpretation of the standard.
While the fatality “should have alerted Cemex that it would be a good idea to make greater efforts to ensure that its elevators were safe for miners to use” there was no reason for the company to incorporate the elevators into workplace exams under §56.18002.
The judge again stressed that there were other avenues that MSHA can take to ensure that elevator hazards are addressed – such as citing under 56.14100 – but in this case the lack of notice violated the operator’s right to due process.
CEMEX SOUTHEAST LLC, 11/28/2016, FMSHRC(J) No. SE 2014-299-M; 23 MSHN D-2537