A case involving multiple allegations of unwarrantable failure against a North Carolina granite extraction and crushing facility and its foreman resulted in a mixed bag when the litigation came before Administrative Law Judge David Barbour in October 2009. This matter also confirms the principle that what you say during an inspection may provide the rope that the Mine Safety and Health Administration uses to hang you.

Johnson Paving Co., faced $13,200 in proposed penalties for five citations and orders that were contested. Its foreman was the subject of two proposed actions under Section 110(c) of the Mine Act, with proposed personal penalties of $1,000 arising from two of the company's Section 104(d) actions. The company had two branches: one was a paving operation regulated by the Occupational Safety and Health Administration, and the other was an MSHA-regulated pit.

The foreman ran the quarry; the company owner explained that he “turn[ed him] loose with the quarry.” This established his status as an agent of management for purposes of Section 110(c) liability. The other loose talk that helped MSHA carry some of its allegations was the foreman's statement, during the inspection, that he was “not surprised” by the cited conditions and “just didn't have the people to do the repairs.” Neither of these are concessions that operators should make to an MSHA enforcement officer.

The first unwarrantable failure allegation arose under the equipment “defects affecting safety” standard, 56.14100(b), related to a trackhoe that had an inoperable inside door latch, missing stairs and broken mirrors. The trackhoe operator told the MSHA inspector, Bonnie Armstrong, that he had told the foreman about the defects and it appeared from statements made during the inspection that the defects had existed from April 2006 until the inspection occurred in August 2006. The door latch was significant and substantial (S&S), Armstrong said, because it could impede the ability of the equipment operator to exit in an emergency, and he could be burned and permanently disabled if the equipment were on fire. To open the door, the operator had to open the window and use the outside door latch.

THE MISSING STEPS required the equipment operator to climb up three feet onto or off the tracks. This could, MSHA contended, result in a sprained ankle or broken leg. The mirrors that were missing were used to see the side and back of the equipment, and other equipment or pedestrians could be hit and killed as a result, MSHA testified. For his part, the foreman testified that he knew about the steps and mirrors but not about the door latch. Armstrong stated that the foreman admitted knowledge of all three defects. MSHA Special Investigator Terry Lingenfelter also testified to the foreman's admissions during his interviews related to the Section 110(c) case, claiming that the foreman said he did not fix the conditions because there was no mechanic to do the work.

Judge Barbour found that each cited condition affected safety and agreed that these were serious hazards. He credited the foreman's testimony regarding the door but also noted there was no dispute that he knew about the other two conditions for months before the inspection. He applied the S&S criteria and agreed that significant hazards were present based on the particular facts in the context of continued normal mining operations.

The judge also affirmed the unwarrantable-failure findings against the company because the foreman knew of the conditions yet took no corrective action to eliminate the hazards through repair, nor did he take the trackhoe out of service. His negligence was attributable to the company. For the same reasons, he affirmed the Section 110(c) personal penalty against the foreman, using the legal inquiry of whether the corporate agent knew or had reason to know of the violative condition.

To uphold a Section 110(c) action, MSHA must prove that the individual knowingly violated the law and this involves an individual who is in a position to protect employee safety and health, fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.

“THIS IS AGGRAVATED conduct, more than ordinary negligence,” Barbour said. The bottom line, he said, was that the foreman “essentially chose to continue mining operations in the face of serious hazards.”

The second Section 104(d) unwarrantable-failure order alleged an S&S, high-negligence violation of 56.14103(b), arising from cracks in the windshield of the welding truck. Armstrong claimed that the damage posed a visibility hazard as well as a cutting hazard to the operator when cleaning the windshield. There were conflicting photographs presented at trial — the operator's showed the cracks more on the passenger side of the windshield, while MSHA's pictures made it appear that the cracks were on the driver's side. The foreman testified that when he operated the truck he could see without problem. The inspector admitted that she had not gotten into the truck to check for impeded visibility. MSHA also had proposed a Section 110(c) penalty against the foreman for this order.

Here, the judge found there was conflict whether the cracks and hole obscured the ability to see through the windshield and that the inspector simply speculated that cuts could occur from the broken glass, even though windshields are typically made of safety glass that will not cut because it cracks instead of shattering. The judge vacated this alleged violation.

There was another Section 104(d) citation alleging that the quarry pump shaft was not guarded and that persons would stand within a foot of the moving part to turn the pump on or off. The pump was not operating at the time of the inspection and, according to the foreman, had been installed the day before as a replacement pump. He had removed the guard while testing it but had not put the guard back in place “because he had to correct a parking brake on the haul truck” and decided that was more important.

The judge found this was both an S&S hazard and was an unwarrantable failure. He did not address the fact that the pump was not observed running that day. Rather, he said that although one sets priorities in correcting violations, it did not excuse the foreman's failure to meet the standard of care required. Exposing miners to “the hazard of possible dismemberment or worse by deliberately leaving the shaft unguarded” constituted a serious lack of reasonable care on the foreman's part. MSHA had not proposed a Section 110(c) action related to this violation.

The next order involved the haul truck parking brake. The company did not put on any evidence concerning the parking brake's failure to hold on a small grade. However, the judge still vacated it, noting that MSHA failed to put on testimony through Armstrong as to what was the truck's typical load and, absent this fact, MSHA could not sustain its burden of proving that the truck could not hold its typical load on the maximum grade traveled, as set forth in 56.14101(a)(2).

The final citation alleged that the manual horn on the welding truck was not functioning. At the time, the truck was parked because the battery was dead, and the foreman said that if the battery worked, so would the horn. He also testified that he kept an air horn in the equipment, so that if the horn stopped working during a shift there would still be a way to signal audibly. The inspector, who wrote this as another unwarrantable failure, S&S violation, claimed that he told her that he had used the truck the day before, and the horn did not work. She added that he explained it wasn't fixed because “he had to do everything himself.”

THE JUDGE HELD that while MSHA proved a violation occurred, it was non-S&S because of the presence of the air horn in the vehicle. However, he affirmed the unwarrantable failure characterization of negligence based on the foreman's acknowledgement of prior knowledge of the defect. Again, he deemed this a “serious lack of reasonable care.”

Although the outcome was harsh in terms of the number of Section 104(d) citations and orders upheld, the judge did find that MSHA had proposed excessive penalties and reduced the single Section 110(c) against the foreman to $250, and the three unwarrantable-failure penalties against the company to a total of $3,200.

However, it is noteworthy that this case arose before MSHA codified the mandatory minimum penalties for Section 104(d) citations ($2,000 for 104(d)(1) violations; $4,000 for 104(d)(2) violations) in April 2007, as mandated by the MINER Act of 2006. Had these citations and orders been issued after April 2007, the minimum corporate penalty would have been $8,000 in this case.

AUTHOR INFORMATION

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. Adele can be reached at safetylawyer@aol.com