.
LATTIMORE MATERIALS CO., L.P.
Docket No. CENT 2002-171-M
September 11, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 11, 2002
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. CENT 2002-171-M
Petitioner : A.C. No. 41-04063-05504
v. :
:
LATTIMORE MATERIALS CO., L.P., :
Respondent : CLEBURNE PLANT #65
DECISION
Appearances: Thao Pham, Esq., Office of the Solicitor, U.S. Department
of Labor, Dallas, Texas, on behalf of the Petitioner;
Trenton Horner, Safety Manager, Lattimore Materials, McKinney,
Texas, on behalf of the Respondent.
Before: Judge Schroeder
Introduction
This case is before me on a Petition by the Secretary alleging a violation
of a mine safety regulation. The Petition alleged a single violation for which
the Secretary proposed a Civil Penalty of $207.00. After notice, a hearing was
scheduled on August 27, 2002, in McKinney, Texas. Respondent was offered the
opportunity for a continuance of that hearing if witnesses essential to
presentation of Respondent's case were unavailable on that date. Respondent
declined the continuance. The hearing was held as scheduled and evidence in the
form of both testimony and documents was received. Both parties were afforded
the opportunity for closing arguments.
Background
This case involves a very basic mine safety regulation, 30 C.F.R.
� 56.11001, that requires "safe access" be provided to all work sites. The
Secretary alleged Lattimore Materials failed to provide "safe access" for it's
employees to reach a site from which certain roller bearings needed to be
lubricated on a frequent basis. It is my task to evaluate whether the record
demonstrates that regulation was violated and, if so, what should be the
appropriate sanction.
Analysis
Lattimore Materials Company operates a sand and gravel processing plant
near Cleburne, Texas. The plant has operated in this location since at least
1998. The plant uses a sorting system in which material is dumped into a
shaker/sorter and then in various sizes onto conveyor belts to stockpiles. The
conveyor belts meet the shaker/sorter in pulleys which require lubrication on
approximately weekly intervals. The pulleys are located more than 10 feet in
the air within a tower structure constructed of steel beams. Resp. Exh. 1. At
the time of the alleged violation, lubrication of the pulley bearings was done
by a Lattimore employee who climbed into the tower structure with a grease gun.
The employee wore a safety harness with a lanyard to tie-off on the tower while
he used the grease gun. He walked on the steel beams of the structure to get
the the various work sites. The beams had holes at numerous points to clip the
lanyard to while working or moving. While using the grease gun it was necessary
to use both hands on the gun and rely exclusively on the lanyard to reduce the
fall hazard.
The allegations by the Secretary are based on an inspection by Mr. Fred
Gatewood, a special agent employed by the Mine Safety and Health Administration,
conducted on April 24, 2001. Tr. 11. Mr. Gatewood is a trained and experienced
mine inspector familiar with the kind of equipment used at the Cleburne Plant.
Soon after his arrival at the Cleburne Plant he identified what he believed to
be a fall hazard in the pulley lubrication activity. He questioned the Plant
Manager concerning the hazard. He was told the hazard had been identified
several weeks before by management and a means of eliminating the danger had
been ordered. The proposed solution was to install rubber hose on the pulley
bearings so that lubrication could be performed from the ground. The hoses had
been ordered. In Mr. Gatewood's opinion the hoses would eliminate the hazard.
He was not able to identify any other method of pulley bearing lubrication in
use at the Cleburne Plant that would eliminate the hazard. He did not believe a
portable ladder to reach the lubrication sites was feasible or in use because of
the accumulation of loose stone and mud on the concrete pad below the tower. He
testified that he gave the Plant Manager ample opportunity to explain how the
lubrication was done safely and he failed to provide an explanation.
Without rebuttal the testimony by Mr. Gatewood establishes a violation of
30 C.F.R. � 56.11001. Lattimore Materials argued that at least for the several
weeks prior to the inspection by Mr. Gatewood, lubrication had been performed
using an extension ladder to provide a solid platform for a worker to use the
grease gun. No witness was offered to support this argument and the only
photographs including a ladder were taken long after Mr. Gatewood's visit.
Resp. Exh. 4. The record is insufficient to rebut the testimony by Mr.
Gatewood.
Having found a violation of the regulation, I am required to evaluate the
appropriate sanction. The Cleburne Plant is a small operation, often operated
with one or two employees. The violation had been identified by management
before Mr. Gatewood's visit and remedies developed, albeit without a sense of
urgency. Existing safety steps (harness and lanyard) offered some degree of
protection, albeit less than fully desirable. No actual injury was suffered at
the plant for lack of sufficient safety measures. I conclude that the violation
warrants a Civil Penalty of $100.00.
Order
For the reasons given above, I find Respondent violated 30 C.F.R.
� 56.11001 and a Civil Penalty of $100.00 is the appropriate sanction.
Respondent is directed to pay a Civil Penalty of $100.00 within 40 days of the
date of this Order.
Irwin Schroeder
Administrative Law Judge
Distribution
Thao Pham, Esq., Office of the Regional Solicitor, U.S. Department of Labor, 525
Griffin Street, Suite 501, Dallas, TX 75202 (Certified Mail)
Trenton Horner, Safety Manager, Lattimore Materials Company, 1700 Redbud Blvd,
Suite 200, McKinney, TX 75069 (Certified Mail)