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Guarding Violations Not ‘Flagrant’ Violations Under Mine Act


By Ellen Smith

A limestone operator’s guarding violations did not constitute a “reckless disregard” or flagrant violations of mine safety standards, and MSHA’s total proposed fines of $547,100 for six violations of §56.14107(a), and one violation of §56.14112(b), were reduced to a total of $44,000 by Review Commission Judge David Simonton.

Winn Materials, located in Montogomery County, Tenn., did not dispute that there were violations found during the November 2011 inspection conducted after MSHA received a hazard complaint, but the company did dispute the S&S, unwarrantable failure, and flagrant findings.

In part, ALJ Simonton credited the fact that the company knew some guard repairs were needed, had ordered the necessary parts to make the repairs, and had even hired an extra person to work on repairing the guards. The inspector had not observed anyone working on any operable or moving conveyors at the time of the inspection, nor had the company been previously cited for such violations.

Also taken into consideration was the fact that in some of the cited areas, MSHA had inspected the areas on previous occasions and not issued citations or orders for the same conditions found by the current inspector. All of this led the ALJ to conclude that none of the violations met the requirements for a “flagrant violation” under 110(b)(2), and the company did not act with “reckless disregard” of the guarding standards.

Proposed Fine
MSHA’s proposed fine of $129,400 was reduced to $10,000 for a violation of §56.14107(a) for citation number 8637419 where the inspector found a missing guard at a fluted tail pulley of the “10s” belt located on “the wet side secondary plant.” The operation’s manager told the inspector that he knew of the missing guard, and that materials to repair it had been ordered. The belt was not running at the time of the inspection, but it had not been locked out either.

The inspector listed the violation as S&S since the area surrounding the 10's tail pulley was muddy and sloppy, increasing the possibility of a worker tripping and falling into the exposed tail pulley. However, the maintenance foreman similarly described this area as wet and soft, and he stated that this condition made it very difficult for workers to approach the tail pulley on foot, even if they tried to. It was noted by the company that there was no reason to walk through the secondary plant.

The judge said the violation was not S&S and credited the operation’s manager that greasing and maintenance was conducted between shifts when the main electrical disconnect to the plant would be locked and tagged out.

In the same plant area a 104(d) order and MSHA’s $129,000 proposed fine in citation No. 8637420 was reduced to a 104(a) non-S&S citation and penalty lowered to $10,000 where there was no guarding at the “wet side” of a return conveyor, and the unguarded area was about 2½ ft. above ground level. The belt was not running, but was “operable.” MSHA said the unguarded area was very visible and should have been identified during a proper workplace exam. Judge Simonton said an injury was not reasonably likely.

Order No. 8637421
Order No. 8637421 for a violation of §56.14112(b) was reduced to a 104(a) citation and MSHA’s proposed penalty of $42,600 was reduced to $2,500 where the inspector found an insufficiently guarded tail pulley on the return wash plant conveyor belt. The sides and top were properly guarded, but the back of the guard was missing at the return point. Judge Simonton said photos showed the area substantially guarded and the defect could have been easily missed. The violation was not S&S since only a deliberate attempt to access the tail pulley with the conveyor belt moving could result in an injury, and the belt was not running at the time of the order. Negligence was reduced from “reckless disregard” to “high.”

Order No. 8637422
Order No. 8637422 was also reduced to a 104(a), non-S&S citation, and the penalty reduced from a proposed $129,000 to $10,000, where a guard at the blend conveyor belt tail was insufficient. There was only partial guarding on one side of this tail pulley, and the tail pulley was exposed on the top, bottom, and near side. The operations manager confirmed that the guard was missing at the time of the inspection, but maintained that workers did not walk in the area of this tail pulley, and all cleaning during operations were performed by a skid-steer or water truck.

Management officials also credibly testified that they did not know that this particular guard was missing prior to the inspection, and Judge Simonton found that management did not have actual knowledge that this particular guard was missing. Simonton said he the company took general proactive measures, such as conducting safety meetings that focused on the dangers of moving parts, increasing lighting, and attempting to install more resilient guards. While the measures were not sufficient specific mitigating circumstances to reduce the negligence level to moderate for this citation, they do demonstrate that the company took measurable efforts in preventing entanglement injuries, and so the negligence designation was modified from "reckless disregard" to "high."

Order No. 8637423
Order No. 8637423 was reduced to a 104(a) citation and MSHA’s proposed penalty reduced from $42,600 to $1,000, non-S&S, where side guards failed to cover approximately 2 to 3 in. of the bottom of a tail pulley. The operations manager credibly testified that this guard had been in place in this manner during previous inspections by the same MSHA inspector, and other MSHA inspectors, as recently as August 2011. The current MSHA inspector confirmed that he had previously inspected the area without issuing a guarding violation, but maintained he would have issued a citation if he had observed this condition. Judge Simonton said it was reasonable for the company to conclude on the basis of previous inspections that the guard was sufficient, and negligence was modified from "reckless disregard" to "low."

Order No. 8637424
Order No. 8637424 for a guarding violation of a tail pulley was reduced to a 104(a) citation and the fine reduced from a proposed $31,100 to $500 where, again, MSHA had previously inspected the area. The ALJ was somewhat critical of the photo, since the inspector took a close-up shot, and there was no estimate as to the size of the opening itself. Judge Simonton said, “In fact, the inspection photo and both parties testimony indicate that the tail pulley was substantially, if not completely guarded, and the opening was of limited size and exposure.”

Order No. 8637425
The last guarding violation, Order No. 8637425 was reduced from $42,600 to $10,000 where part of a guard for a tail pulley was damaged and hanging from the conveyor structure. The manager was not aware that the guarding was damaged at this area prior to the inspection and stated additional guarding was normally present at this location. The photo showed the partial guarding did provide some degree of protection from incidental contact, and should have been identified in the pre-shift examination. Negligence was modified from "reckless disregard" to "high" since the only workers who entered this area during operation were skid-steer operators enclosed in protective cabs and the company had begun efforts to completely rebuild all guards in the secondary plant.

WINN MATERIALS LLC, 5/23/2014, FMSHRC(J) No. SE 2013-50-M; 21 MSHN D-1745