By Ellen Smith
A judge slightly increased MSHA’s proposed penalty from $873 to $900 for an S&S violation of MSHA’s “safe access” standard, §56.11001, where a front-end loader had an 18-in. opening in the handrail on the deck, and the driver had to access the deck to clean the loader’s windshield.
ALJ Margaret Miller did not, however, uphold MSHA’s second citation issued for failing to wear fall protection while climbing on the loader. The operator, Grace Pacific Corp., was also cited for a violation where there was a leak in the brake system on a water truck at the company’s Makakilo Quarry in Honolulu County, Hawaii.
In the case of accessing the deck on the loader, Grace Pacific argued that nothing had been modified since the date of the manufacture of the loader, which had been previously inspected. While this is correct, the ALJ noted the loader’s cab that is 12 ft. above the ground, and there was still a risk of a fall.
The MSHA inspector said in his notes that the loader operator explained in order to clean the three front windows, he walked along the elevated walkway and climbed out onto the boom at least a couple of times each week.
While the company provides a squeegee with a long handle, it was often missing and, consequently, the driver had to climb out along the boom in order to adequately reach the windshield.
During the hearing, the loader operator denied making this statement, and instead testified that he often uses the squeegee to reach the windows, uses his wipers, or relies on assistance from the water truck, which can shoot the windshield with a water cannon.
The ALJ credited the statement of the inspector, and noted that even if the loader operator did use the squeegee, he still had to reach or lean through the 18-in. opening to reach the windshield, which was a fall hazard.
The violation was upheld as S&S. The inspector explained he believed it was S&S based on a previous accident where an equipment operator fell 8 ft. cleaning windows on heavy equipment, and the injured miner missed over a year of work.
ALJ Miller agreed with MSHA and believed it was only a matter of time before a slip/fall accident might occur on the equipment, and believed there was a hazard.
The MSHA inspector’s citation for an alleged violation of the fall protection standard, §56.15005 was vacated, with ALJ Miller explaining that it was “duplicative.”
Both of the citations were based on the same circumstance – failing to provide a safe way to clean the windshield. Since both citations could be abated by providing an adequate rail so that the loader operator would not fall from the deck of the loader as he cleaned the windshield, the Secretary did not show that the second citation was based on a separate omission or that the termination activity would result in addressing a separate deficiency.
A penalty of $176 was upheld by Miller for a violation of §56.14101(a)(1) where the inspector found a leak in the air brakes on a water truck. The truck was parked at the time, but was not tagged out, and could be used at any time.
The inspector found a “knock-out” plug missing on one of the brakes. He tested the brakes and heard the air leaking over the running truck engine. He testified that he found the brakes leaking at a rate of 28 psi per minute, and the acceptable level was 2 psi per minute.
He did not have the operator test the brakes on a grade, because of concerns that the water truck operated on 5 percent to 10 percent grades in the quarry, and there was other equipment on the same roads. In the inspector’s opinion it would not have been prudent to have placed the driver in harm’s way to test the brakes.
The operator’s head of maintenance did not believe there was a problem. He said that he does DOT inspections, and keeps all of the equipment maintained to DOT standards. He explained that if the brakes were to fail, they would shut down and lock. The operator also argued that a pre-shift check did not find a problem with the brakes.
In upholding this citation, Miller said, MSHA is required to issue a citation before the entire braking system fails, and the agency’s reason for inspections is “preventive and seeks to cure equipment defects before serious accidents occur.”
Given that the psi was lower than acceptable, she found the brakes were not maintained in a functional condition, and assessed a penalty of $176.
Grace Pacific also tried to convince the ALJ that because it was not aware of the violations, it should not have received the citations. It said it did not realize the brakes were defective, and that is has a lock-out/tag-out procedure in place. Using the same reasoning, it said it was not aware that an additional handrail was necessary on the front end loader.
Miller said the arguments were not a defense to the violations, but they did relate to the negligence findings, which she took into consideration in reaching her findings.
GRACE PACIFIC CORP., 12/27/13, civil penalty proceeding, Docket Nos. WEST 2012-1447-M, 2013-4, 2013-163 & 2013-639; 21 MSHN D-108