<DOC>
[DOCID: f:va9917cd.wais]
LOPKE QUARRIES, INC.
July 31, 2001
VA 99-17-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 31, 2001
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. VA 99-17-M
:
LOPKE QUARRIES, INC. :
BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty,
Commissioners
DECISION
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq.
(1994) ("Mine Act" or "Act"), the Commission granted cross
petitions for discretionary review filed by the Secretary of
Labor and Lopke Quarries, Inc. ("Lopke") challenging a decision
by Administrative Law Judge T. Todd Hodgdon. 22 FMSHRC 899
(July 2000) (ALJ). Lopke challenges the judge's conclusions
that it violated 30 C.F.R. � 56.11001, and that the violations
were significant and substantial ("S&S") and due to
unwarrantable failure. It also appeals the judge's penalty
assessment for its alleged violations of section 56.11001.
The Secretary challenges the judge's determination that Lopke
did not violate 30 C.F.R. �� 56.14100(b) and 56.14101(a)(2).
For the following reasons, we affirm the judge's decision.
I.
Factual and Procedural Background
Lopke operates portable rock crushing plants at various
locations throughout the eastern United States, including the
Low Moor Mine near Covington, Virginia, owned by Vulcan
Materials. 22 FMSHRC at 899. Lopke began operating at Low
Moor in November 1997 and increased the size of its plant in
April 1998. Id. The plant consists of machines that crush
rock, which is then transported by conveyor belts and
deposited in discrete piles depending on the size of rock.
Id. Front-end loaders move the rock from the piles
below the conveyor belts to the area where it is stored for
delivery. Id.
Joe Spitzer began working for Lopke in January 1998 as a
superintendent of its Low Moor plant. Id. During Spitzer's
tenure at Low Moor, the plant was not able to produce enough
crushed stone to meet Lopke's expectations. Id. at 899-900. In
early May 1998, Lopke sent superintendents Peter Lockwood and
Joe McCormack to assist Spitzer in meeting production
standards at the plant. Id. at 900.
On May 15, 1998, superintendent Lockwood was injured on
the site. Id. James E. Goodale, an inspector for the
Department of Labor's Mine Safety and Health Administration
("MSHA"), was sent to the mine to investigate the accident.
Id. After the investigation, Inspector Goodale returned to
the mine on May 20, 1998, to conduct a regular inspection.
Id. Based on this inspection, he issued 14 citations or
orders to Lopke. Id. The company contested nine of the
orders and citations at a hearing before Judge Hodgdon,
including the five orders and citations under review. Id.
II.
Lopke's Petition for Discretionary Review
(Citation No. 7713973 and Order Nos. 7713974 and 7713975)
The Low Moor Mine utilized three conveyor belts, the 57's
belt, the Fines Stacker belt, and the 8's belt. 22 FMSHRC at
900-01. The 57's belt was 45 feet long and elevated
approximately 4 to 15 feet above ground level. Id. The Fines
Stacker belt was 80 feet long and elevated approximately 4 to
18 feet above ground level. Gov't Ex. 5. The 8's belt was 50
feet long and elevated approximately 4 to 18 feet above ground
level. Gov't Ex. 6. During the May 20 inspection,
superintendent Spitzer told Inspector Goodale that, in order
to service the conveyor belts, he and other miners walked up
the belts without using fall protection equipment. 22 FMSHRC
at 901. He also told the inspector that the belts had to be
serviced at least once a week Tr. 121. The inspector issued
Citation No. 7713973 and Order Nos. 7713974 and 7713975
alleging violations of section 56.11001 as to each belt.
Section 56.11001 provides: "Safe means of access shall be
provided and maintained to all working places."
The judge concluded that Lopke violated section 56.11001
by failing to provide safe access to the three conveyor belts.
22 FMSHRC at 903. In making his determination, he credited
Spitzer's testimony that Spitzer and other miners walked up the
belts to service them without using fall protection equipment.
Id. at 902. The judge determined that the three violations
were S&S and due to the operator's unwarrantable failure. Id.
at 904-05. He assessed a $7,000 penalty for each violation,
in part because they involved a serious level of gravity and
were due to the operator's high negligence. Id. at 913.
Lopke argues that it did not violate section 56.11001
because it provided a safe means of access by making a safety
harness available to miners for use when servicing the belts.
L. Br. at 5-7. It contends that the judge erred in crediting
Spitzer's testimony and that substantial evidence does not
support the judge's determination that it violated section
56.11001. Id. at 9-16. Lopke asserts that the judge failed
in his S&S analysis to consider whether there was "a
reasonable likelihood that the hazard contributed to will
result in an injury." Id. at 22. The operator argues that the
judge erred in his unwarrantability analysis by focusing
solely on Spitzer's involvement as a supervisor in the
violations, and by failing to consider that safe means of
access were available to miners. Id. at 16-20. The operator
further asserts that the judge erred in his penalty
assessments because he assigned too much weight to the gravity
and negligence criteria. Id. at 23.
The Secretary responds that the judge correctly determined
that Lopke violated section 56.1101 because it failed to ensure
that a means of access to the belts was made safe. Sec'y Resp.
Br. at 7-11, 13-16. She asserts that Lopke's argument - that the
standard only requires operators to provide a means of safe
access but does not require them to ensure that a safe means of
access is used - is not before the Commission because it was not
raised below. Id. at 13. The Secretary argues that the judge
considered all the relevant factors in his S&S analysis and that
his unwarrantable determination is supported by record evidence.
Id. at 24, 31 & n.14. She further argues that the judge
considered the relevant criteria in his penalty assessment, and
that his findings are supported by the record. Id. at 34-35.
A. Violation of Section 56.11001
While Lopke and the Secretary focus their arguments on the
meaning of the term "provided" in section 56.11001, they pay
little attention to the standard's requirement that safe means
of access must also be "maintained."[1] We conclude that Lopke
violated the standard because it failed to maintain safe access
to the belts.
Where the language of a regulatory provision is clear, the
terms of that provision must be enforced as they are written
unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to absurd
results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir.
1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);
Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). The
term "maintained" is not defined in the regulation. However, it
is defined in Webster's Third New International Dictionary 1362
(1993) as to "uphold," "keep up," "continue," or "preserve from
failure or decline."[2] Based on this plain meaning of
"maintained" in section 56.11001, we conclude that the standard
requires an operator to uphold, keep up, continue, or preserve
the safe means of access it has provided to a working place.
The inclusion of the word "maintain" in the standard thus
incorporates an on-going responsibility on the part of the
operator to ensure that a means of safe access is utilized,
as opposed to a purely passive approach in which an operator
initially provides safe access and then has absolutely no
further obligation.[3]
We turn next to the issue of whether substantial
evidence[4] supports the judge's determination that Lopke
violated the standard for Citation No. 7713973 and Order Nos.
7713974 and 7713975. We reject Lopke's argument that the judge
erred in crediting Spitzer's testimony that he and other miners
serviced the belts by walking up them without fall protection
equipment.[5] The operator argues that the judge failed to
consider evidence that Spitzer overestimated how frequently the
belts were serviced. L. Br. at 10-13. Lopke argues that
Spitzer's testimony that the belts had to be walked up at least
once a week is undermined because the 57's belt had a grease
line installed which allowed it to be greased from the ground.
L. Br. at 12. The judge noted that the 57's belt had a grease
line installed, but determined that the belt gearbox and
electric motor could not be serviced from the ground.
22 FMSHRC at 903 n.3. Spitzer also testified that, because
grease lines often break, management required the 57's belt to
be serviced by walking up it. Tr. 208-09. Jason Lewandrowski,
the plant operator, testified that no one walked up the 57's
belt to grease it, but on cross examination admitted that he
had testified in his deposition that the 57's belt had to be
walked up to grease it. Tr. 270, 284. In sum, we conclude
that ample record evidence supports the judge's decision to
credit Spitzer.
Nor are we persuaded by Lopke's assertion that the judge
erred in crediting Spitzer's testimony because he failed to
consider evidence that Spitzer was biased against the operator.
The judge considered evidence that Spitzer was unhappy with his
job, that the company was pressing him to increase production,
and that Spitzer viewed Lockwood as his replacement. 22 FMSHRC
at 902. He determined that the frustrations faced by Spitzer
were common to mine superintendents. Id. The judge noted that
only a month after Spitzer left his job with Lopke, the operator
offered him a position as superintendent at another mine which he
accepted. Id. The judge found it "hard to believe" that Spitzer
would accept another position with Lopke if he felt animus toward
the company or that the company would offer him another position
if it believed he "had intentionally admitted to violations that
did not occur." Id. The judge concluded that, based on
"Spitzer's demeanor and manner while testifying[,] . . . it did
not appear that he was dissembling, bore a grudge against Lopke,
or was testifying untruthfully." Id. at 903. The judge
determined that Spitzer was a credible witness and gave "great
weight to his testimony." Id.
Based on the foregoing, we find that the judge thoroughly
analyzed the bias claim and set forth ample reasons for
rejecting it and crediting Spitzer. The Commission does not
lightly overturn a judge's credibility determinations, which
are entitled to great weight. In re: Contests of Respirable
Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov.
1995), aff'd on other grounds sub nom Sec'y of Labor v.
Keystone Coal Mining Corp. 151 F.3d 1096 (D.C. Cir. 1998).
We find no compelling reason to overturn the judge's decision
to credit Spitzer.
Regarding Lopke's argument that it complied with section
56.11001 because it made the safety harness available to miners,
we hold that the standard requires something more than simply
making a safe means of access "available." At a minimum, the
standard's requirement that operators "maintain" safe access to
working places mandates that management officials utilize that
access, and require other miners to do so. It is clear from
Spitzer's credited testimony, however, that Lopke failed to
take any measures to ensure that miners actually used the
safety harness. Even its own superintendent, the person in
charge of safety at the plant, accessed the belts without
using the safety harness. He also allowed other miners to
access the belts without using the safety harness.
Consequently, we conclude that substantial evidence supports
in result the judge's determination that Lopke violated section
56.11001. Accordingly, we affirm the judge's determination
upholding Citation No. 7713973 and Order Nos. 7713974 and
7713975.
B. S&S
The S&S terminology is taken from section 104(d) of the Mine
Act, 30 U.S.C. � 814(d), and refers to more serious violations.
A violation is S&S if, based on the particular facts surrounding
the violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat'l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1
(Jan. 1984), the Commission further explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the
Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard - that
is, a measure of danger to safety -
contributed to by the violation; (3) a
reasonable likelihood that the hazard
contributed to will result in an injury; and
(4) a reasonable likelihood that the injury
in question will be
of a reasonably serious nature.
Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.
v. Sec'y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood
of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985).
We agree with Lopke that the judge failed in his S&S analysis
to apply the third Mathies factor concerning whether there was a
reasonable likelihood that the hazard contributed to will result
in an injury. Nevertheless, we affirm the judge's S&S
determination because the record compels the conclusion that
there existed a reasonable likelihood of an injury. The judge
credited Spitzer's testimony that miners regularly walked up the
belts without fall protection equipment. 22 FMSHRC at 901-02;
Tr. 195-97, 199-200. It is undisputed that, when the inspector
issued the citation and orders, the belts were not equipped with
handrails or safety cables and that neither a man-lift nor a
ladder was being used to access the heads of the belts. 22
FMSHRC at 901. It is also uncontroverted that the belts rose to
a height of 15 to 18 feet above the ground and that the surface
of the belts could become slippery because of dust and rain. Tr.
57, 60. Moreover, the operator did not refute the inspector's
testimony that the belts swayed when a miner walked up them and
material on the belts could cause a miner to fall. Tr. 60.
Inspector Goodale also testified that the practice of walking up
the belts without fall protection would be likely to result in a
fatality. Tr. 56-57. Finally, the judge in his civil penalty
assessment also determined that "[w]alking up the conveyor belts
without handrails or safety belts was highly risky." 22 FMSHRC
at 913.
Lopke did not contest the judge's determinations on the other
Mathies factors. Accordingly, we find that no remand is
necessary and we affirm in result the judge's determination that
the operator's violations of section 56.11001 were S&S.
C. Unwarrantable Failure
The unwarrantable failure terminology is taken from section
104(d) of the Act, 30 U.S.C. � 814(d), and refers to more
serious conduct by an operator in connection with a violation.
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
("R&P"); see also Buck Creek, 52 F.3d at 136 (approving
Commission's unwarrantable failure test).
Whether conduct is "aggravated" in the context of
unwarrantable failure is determined by looking at all the
facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation
has existed, the extent of the violative condition, whether
the operator has been placed on notice that greater efforts
are necessary for compliance, the operator's efforts in
abating the violative condition, whether the violation is
obvious or poses a high degree of danger, and the operator's
knowledge of the existence of the violation. See Consolidation
Coal Co., 22 FMSHRC 340, 353 (Mar. 2000), appeal docketed, No.
01-1228 (4th Cir. Feb. 21, 2001) ("Consol"); Cyprus Emerald
Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other
grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co.,
19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co.,
16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232,
1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709
(June 1988). All of the relevant facts and circumstances of
each case must be examined to determine if an actor's conduct
is aggravated, or whether mitigating circumstances exist.
Consol, 22 FMSHRC at 353. Because supervisors are held to a
high standard of care, another important factor supporting
an unwarrantable failure determination is the involvement of
a supervisor in the violation. REB Enters., Inc., 20 FMSHRC
203, 225 (Mar. 1998).
Regarding the duration of the violations, the judge
considered in his unwarrantability analysis that the
violations lasted several weeks. 22 FMSHRC at 905.
Concerning the operator's knowledge of the violations, he
noted that management knew that miners were walking up the
belts without fall protection and that such actions were
unsafe. Id. He also considered that Spitzer, Lopke's
superintendent in charge of the operation, was directly
involved in the violations.[6] Id.
In terms of abatement, the judge noted that, although
management knew miners were using an unsafe means of access
to service the belts, it did nothing to stop them. Id. He
observed that Spitzer had suggested to higher management that
handrails were needed on the belts (as handrails would have
been an alternative means of complying with the safe access
requirement). Id. The judge also considered that Vulcan, the
company that hired Lopke to run the operation at the Low Moor
Mine, had informed Lopke's management that handrails should
be installed on the belts, but Lopke failed to act on that
advice. Id. It is undisputed that Lopke did not install
handrails on the belts until after the citations were issued.
Id. at 901-02. Moreover, Lopke correctly points out that
the judge did not consider whether the harness did, in fact,
provide a safe means of access.[7] In his analysis of
whether the operator violated section 56.11001, the judge
merely determined that it was "questionable" whether using
the safety harness was a safe means of access to the belts.[8]
Id. at 903 n.2. Consequently, even if it had been properly
utilized, it is unclear whether this would have constituted
compliance with the standard. In any event, the existence
of the safety harness would not have been a mitigating factor
here because the credited evidence establishes that generally
miners did not use the harness and, hence, this means of
access was not maintained. Tr. 50-51, 56, 195-98.[9]
Given the record evidence establishing the existence of
aggravating factors, we conclude that substantial evidence
supports the judge's finding that Lopke's conduct was
unwarrantable and, accordingly, affirm his finding.
D. Civil Penalties
Commission judges are accorded broad discretion in assessing
civil penalties under the Mine Act. Westmoreland Coal Co., 8
FMSHRC 491, 492 (Apr. 1986). Such discretion is not unbounded,
however, and must reflect proper consideration of the penalty
criteria set forth in section 110(i) and the deterrent purpose
of the Act.[10] Id. (citing Sellersburg Stone Co., 5 FMSHRC
287, 290-94 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)).
The judge must make "[f]indings of fact on each of the statutory
criteria [that] not only provide the operator with the required
notice as to the basis upon which it is being assessed a
particular penalty, but also provide the Commission and the
courts . . . with the necessary foundation upon which to base a
determination as to whether the penalties assessed by the judge
are appropriate, excessive, or insufficient." Sellersburg, 5
FMSHRC at 292-93. Assessments "lacking record support, infected
by plain error, or otherwise constituting an abuse of discretion
are not immune from reversal." U.S. Steel Corp., 6 FMSHRC 1423,
1432 (June 1984).
The judge considered the six section 110(i) penalty criteria
in his penalty assessment. 22 FMSHRC at 913. He determined that
the proposed penalties would not adversely affect Lopke's
ability to stay in business, that its operation at the Low Moor
site was a small one, and that it was a small- to medium-sized
company. Id. He found that Lopke's history of violations was
relatively good and that it demonstrated good faith in rapidly
abating the violations after citation. Id. He also determined
that the violations involved high negligence because walking
up the belts without fall protection equipment was "highly
risky" and that the gravity of the violations was serious. Id.
Lopke's assertion that the judge erred in his penalty
assessments by assigning undue weight to the negligence and
gravity criteria is inconsistent with Commission precedent.
Judges have discretion to assign different weight to the
various factors, according to the circumstances of the case.
Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).
The judge did not abuse his discretion by weighing Lopke's
high negligence and the high gravity of its violations more
heavily than he weighed the other penalty criteria.
Accordingly, we affirm the judge's penalty assessments.
III.
Secretary's Petition for Discretionary Review
A. Order No. 7713976
During the May 20 inspection, Inspector Goodale examined a
safety device connected to the driver's seat and seatbelt on
a New Holland loader. 22 FMSHRC at 906. The safety device was
intended to prevent the driver from being struck by the
loader's bucket when he exited the driver's cage. Id. It was
supposed to lock up the hydraulics of the loader so that its
lift arms could not be raised or lowered or the loader moved
when the driver stood up. Id. It was located out of sight
under the driver's seat. Id.
The inspector discovered that the safety device was not
functional because its wires were broken. Id. He testified
that such a safety device was not required by MSHA's
regulations and that there were signs posted on the arms of
the driver's cage warning the driver not to get out of the
cage without turning the loader off. Id. at 907.
Nevertheless, because the safety device was defective, the
inspector issued Order No. 7713976 to Lopke for violating
section 56.14100(b), which provides: "Defects on any
equipment, machinery, and tools that affect safety shall be
corrected in a timely manner . . . ."
The judge determined that the defect affected safety but
that no one at the mine was aware that the loader had such a
device or that it was defective. 22 FMSHRC at 906-07. He
concluded that, to determine whether the operator failed to
correct the defect in a timely manner, it is necessary to
ascertain when the operator first knew about the defect. Id.
at 907. Because the operator had no knowledge of the defect,
the judge determined that there was no evidence to show that
the operator failed to correct it in a timely manner. Id.
Thus, the judge concluded that the Secretary failed to
establish that Lopke violated the standard and he vacated
the order. Id.
The Secretary argues that section 56.14100(b) is not limited
to situations where an operator knows about a defect. Sec'y PDR
at 6-7.[11] She maintains that the judge's conclusion that the
standard requires the operator to know about the defect
discourages operators from being knowledgeable about their
equipment. Id. at 7. The Secretary asserts that the judge also
erred in concluding that the operator did not know about the
existence of the safety device. Id. at 8. Lopke responds that,
because there is no evidence of how long the defect existed, it
cannot be determined whether Lopke failed to correct the defect
in a timely manner as required by the standard. L. Resp. Br. at
5-6. Lopke argues that it could not have failed to repair the
safety device in a timely manner because it did not know the
defect existed. Id. at 7.
Whether the operator failed to correct the defect in a
timely manner depends entirely on when the defect occurred
and when the operator knew or should have known of its
existence.[12] The safety device on the loader may have been
defective for only moments before it was discovered by the
inspector, or it may have been defective for a considerably
longer period. Because there is no evidence in the record
indicating when the device became defective, we agree with
the judge that the Secretary failed to establish that the
defect was not corrected in a timely manner. Accordingly,
we affirm his determination that Lopke did notviolate
section 56.14100(b).
B. Order No. 7713979
During the same inspection, Inspector Goodale tested the
parking brake on a Dresser 555b front-end loader. 22 FMSHRC at
908. He tested it by instructing the driver to let the loader
coast down an incline of approximately 12 to 14 percent from a
stop. Id. When the loader was traveling at approximately three
to five miles an hour, he told the driver to apply the parking
brake but to not use the foot brake. Id. The inspector
determined that the loader continued to travel down the
incline at a slower rate after the parking brake was applied.
Id. He then asked the driver to stop the loader by applying
the foot brake, which the driver did. Id. The inspector
repeated the test a second time with the same results. Id.
Spitzer testified that he knew about a parking brake problem
on the loader for about a week or a week and a half before
the inspection. Tr. 99-100, 218.
The inspector issued Order No. 7713979 to the operator for
violating section 56.14101(a)(2), which provides: "If equipped
on self-propelled mobile equipment, parking brakes shall be
capable of holding the equipment with its typical load on the
maximum grade it travels." He determined that the violation
was not S&S because the foot brake worked, but that it was due
to unwarrantable failure because management, through
superintendent Spitzer, knew about the defective brake but
failed to correct it. Gov't Ex. 9; Tr. 98-100.
The judge determined that, instead of testing whether the
loader's parking brake would "hold" the stationary loader on
an incline as required under section 56.14101(a)(2), the
inspector inappropriately tested whether the brake would "stop"
the already moving loader on an incline. 22 FMSHRC at 908.
He vacated the order against Lopke because the Secretary failed
to establish that the parking brake would not hold the loader
on an incline. Id. at 909.
The Secretary argues that the plain language of the standard
does not require testing to show a violation. Sec'y PDR at 9.
She asserts that, even if the inspector did not test the
parking brake properly, management's admission that the parking
brake was defective was sufficient to support a finding that
Lopke violated the standard. Id. at 9-12. Lopke responds that
the judge properly determined that it did not violate section
56.14101(a)(2) because the Secretary failed to establish that
the parking brake could not hold the loader on an incline.
L. Resp. Br. at 15. Lopke asserts that, even if management
knew beforehand that the parking brake needed "adjustment,"
this does not prove that it could not hold the loader on an
incline. Id. at 16.
We reject the Secretary's argument that, regardless of the
way the inspector tested the parking brake,[13] Lopke violated
the standard because management knew beforehand that the
parking brake was malfunctioning. The Secretary points out
that superintendent Spitzer testified that he knew the parking
brake was a problem a week to a week and a half before the
inspection. In reference to the parking brake, Spitzer
testified that "[s]ometimes it would work, sometimes it
wouldn't. . . . Sometimes it would hold partially, sometimes
it wouldn't. I don't believe it ever completely let loose and
wouldn't hold at all." Tr. 218-19. The Secretary also cites
to superintendent Lockwood's testimony to support her argument.
He testified that two days before the inspection the parking
brake required adjustments and that it was adjusted and cleaned
before the inspection. Tr. 320-21. When asked if it worked
after the adjustment "for some period of time," Lockwood
testified that "[s]ometimes it did, sometimes it didn't."
Tr. 321.
The testimony of Spitzer and Lockwood is simply unclear on
the degree to which the parking brake was not functioning.
For example, it is not clear from Lockwood's answer whether
the parking brake worked but needed further minor adjustments
or whether it sometimes did not work at all. It is also not
clear from his testimony whether the subsequent problems with
the parking brake after it was adjusted occurred before or
after the inspection because Lockwood also testified that
Lopke had problems with the parking brake after the inspection.
Tr. 322. Certainly, neither Spitzer nor Lockwood testified
that the parking brake would have failed to hold the loader
"with its typical load on the maximum grade it travel[ed]."
See 30 C.F.R. � 56.14101(a)(2). Accordingly, we conclude
that substantial evidence supports the judge's finding that
the Secretary did not prove the violation, and we affirm his
decision to vacate the order.
**FOOTNOTES**
[1]: We disagree with the Secretary's assertion that
Lopke's argument - that the standard only requires an operator to
make a safe means of access available but does not require it to
ensure it is used - is not before the Commission because it was
not raised below. In its post-hearing brief, Lopke argued that
it did not violate the standard because it made a safe means of
access available to miners servicing the belts. L. Post-Hr'g Br.
at 10-11. Thus, the judge had an opportunity to pass on the
issue. Cf. Beech Fork Processing, Inc., 14 FMSHRC 1316, 1321
(Aug. 1992) (declining to consider "theory upon which the judge
was not afforded an opportunity to pass.").
[2]: In the absence of an express regulatory definition or
an indication that the drafters intended a technical usage, the
Commission has relied on the ordinary meaning of the word
construed. Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996),
aff'd, 111 F.3d 963 (D.C. Cir. 1997) (mem).
[3]: This conclusion is consistent with our analysis in a
recent decision, Central Sand and Gravel Co., 23 FMSHRC 250 (Mar.
2001), in which the regulation at issue required that "[o]verhead
high-potential powerlines shall be installed as specified by the
National Electric Code" ("NEC"). 30 C.F.R. � 56.12045. The
operator had argued that the word "installed" limited its
obligation to comply with the NEC to the act of initially setting
up power lines for use. 23 FMSHRC at 253. We refused to adopt
this interpretation, holding instead that it was logical to
interpret the standard to require that clearances from overhead
powerlines be adhered to beyond the time of initial installation,
and noted that the National Electric Safety Code ("NESC")
requires that applicable clearances be "`maintained.'" Id. at
254. We emphasized that the term "installed" (like the word
"maintained" in the regulation at issue here) "does not designate
a limited, initial period of time during which the NEC applies.
Rather, it is short hand for the constant vigilance that the NESC
makes clear is appropriate . . . ." Id. at 255.
[4]: When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the Mine
Act to apply the substantial evidence test. 30 U.S.C.
� 823(d)(2)(A)(ii)(I). "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[5]: As the judge noted, none of the witnesses, apart from
Spitzer, were at the mine before early May 1998, so no one but
Spitzer could testify directly about what happened at the mine
prior to that time. 22 FMSHRC at 902.
[6]: We reject Lopke's argument that the judge erred by
failing to consider that Spitzer's behavior was "aberrational."
L. Br. at 17. Several miners, not just Spitzer, walked up the
belts without fall protection equipment. 22 FMSHRC at 905; Tr.
195-202, 205. Even if Spitzer had been the only miner to walk up
the belts without fall protection equipment, as Lopke's
superintendent, his actions would still constitute an aggravating
factor. REB Enters., 20 FMSHRC at 225.
[7]: Although Lopke also asserts (L. Br. at 5) that it
provided a second safe means of access to the belts because the
belts could be lowered to the ground for servicing, there is no
evidence that the belts were ever lowered to service them.
[8]: Lopke's superintendent Lockwood testified that the
harness provided miners servicing the belts with safe access, but
Inspector Goodale testified that it was unlikely that the harness
provided a safe means of access. Tr. 67-69, 312.
[9]: Commissioner Beatty also believes that the judge erred
by failing to consider the obviousness or danger posed by the
violations. The record indicates that the belts were tall
structures (up to 18 feet high) located outside and in clear view
of the main area of the operation. See photographs at L. Ex. R-5
& R-6. A miner walking up to the top of the belts without fall
protection would have been clearly and readily visible to those
working nearby at the operation. This evidence compels the
conclusion that the violations were obvious. With respect to the
danger factor, the inspector testified that the danger posed by
walking up the belts without fall protection was "falling off and
striking ground level and dying." Tr. 53. Spitzer testified
that the danger posed by the violations was "falling off and
somebody getting hurt or killed." Tr. 209. The operator did not
offer any testimony that servicing the belts without fall
protection was safe. Given the testimony of the inspector and
Spitzer, the height and conditions in which the miners had to
walk to service the tops of the belts, as well as the judge's S&S
finding, Commissioner Beatty believes that the evidence compels
the conclusion that the violations posed a considerable danger to
the miners.
[10]: Section 110(i) sets forth six criteria to be considered
in the assessment of penalties under the Act:
[1] the operator's history of previous
violations, [2] the appropriateness of such
penalty to the size of the business of the
operator charged, [3] whether the operator was
negligent, [4] the effect on the operator's
ability to continue in business, [5] the gravity
of the violation, and [6] the demonstrated good
faith of the person charged in attempting to
achieve rapid compliance after notification of a
violation.
30 U.S.C. � 820(i).
[11]: The Secretary designated her petition for discretionary
review as her opening brief.
[12]: Lest an operator be tempted to remain ignorant of
defective conditions, we note that Lopke was also cited for
failing to inspect the loader before putting it into operation.
22 FMSHRC at 907.
[13]: On review, the Secretary does not claim that the
inspector's test showed that the parking brake violated the
standard.
IV.
Conclusion
For the foregoing reasons, with respect to Citation No.
7713973 and Order Nos. 7713974 and 7713975, we affirm the judge's
decision that Lopke violated section 56.11001 and that the
violations were S&S and unwarrantable. We also affirm the
judge's penalty assessments for these violations. In addition,
we affirm the judge's decision vacating Order Nos. 7713976 and
7713979 on the ground that the Secretary did not prove that Lopke
violated sections 56.14100(b) or 56.14101(a)(2), respectively.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
Theodore F. Verheggen, Commissioner
Robert H. Beatty, Jr., Commissioner
Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 20th Floor
Pittsburgh, PA 15219-1410
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041