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ALJ Affirms $70,000 Penalty, Personal Charges Against Mine Supervisor

By Ellen Smith

A $70,000 penalty against a mining company, and a $7,000 personal fine against a supervisor has been upheld, where a miner fell through a walkway hole, dropping 28 ft. to his death when the workers were in the final stages of replacing a tail pulley belt at Freeport-McMoran’s Morenci Mine in Greelee, Ariz.

Federal Mine Safety and Health Review Commission Judge William Moran also upheld unwarrantable failure findings of §56.11012, which requires in part, that “openings above, below, or near travelways through which persons or materials may fall shall be protected by railings, barriers, or covers.”

The Accident
The accident occurred Sept. 1, 2008. Killed was Raymond Saldana. There were two other workers at the site, and supervisor Ronald Jurado, who was in charge of the belt replacement project. The supervisor had a tailgate meeting in the morning, and all workers were aware that two sections of grating were missing on the travelway so they could raise and lower tools and equipment.

The company had placed yellow caution tape from one side of the walkway to the other, but not around the opening. The company claimed the yellow caution tape with a tag affixed to it, constituted “barriers” as required by the standard. It also argued that the regulation does not require a railing, barrier or cover when it is not practical to provide those protective devices.

The ALJ rejected the arguments, finding no case to support the proposition that yellow tape could satisfy the protective purpose of the standard. It was clear that the company did not place any cover on the large hole after it was made nor any railing or guard. The company did not place the tape with the intent of using it as a barrier, but rather to inform persons there might be a hazard once they passed the tape.

The standard allows an exception when it is impractical to install protective devices, and allows “adequate warning signals,” but there was no evidence presented to show that it was impractical to either have a barrier or to replace the missing sections of grating. The company also tried to argue that the area was not considered a “travelway” at the time of the accident so the area was exempt from the standard, but there is no exemption for work activity, Moran said. “The court agrees with the Secretary’s analysis; the plain language of the standard applied to the 4- x 5-ft. opening which was both below and near travelways. Railings, covers and barriers provide protection under the standard’s plain wording. Tape clearly cannot apply such protection against persons or materials falling through openings,” the ALJ said.

In Defense
In defending the unwarrantable failure charge, the company said its conduct was not aggravated and that the tape and tags mitigated any negligence. Instead, only inattention or ordinary negligence existed.

The ALJ instead found a serious lack of reasonable care by the supervisor in charge of the project. Replacement of the grating would have taken only 30 seconds, the ALJ noted, and eliminated the hazard.

In affirming the Sec. 110(c) charge against the supervisor, Judge Moran said the hazard was open and obvious and he was the belt project supervisor who decided to leave the hole open.

“He knew ... of the violative condition and failed to act,” the ALJ said. “A yellow ribbon may provide notice when tied around the 'old oak tree' but mere notice is not sufficient to satisfy this safety standard.”

FREEPORT-MCMORAN MORENCI, INC. & RONALD Y. JURADO, 10/14/11, civil penalty proceeding, Docket Nos. WEST 2009-442 and 1329