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Judge Rejects Quarry’s ‘Fair Notice’ Argument


Judge Margaret Miller upheld several small fines for first-time violations found at Tilcon New York Inc.’s Haverstraw Quarry and Mill in Rockland County, N.Y., but increased a proposed fine from $100 to $1,000 where an area of the quarry lacked berms, and rejected Tilcon’s “fair notice” argument.

The violations stem from a Dec. 28, 2015, inspection. In the case of the berm violation under §56.9300(d), the inspector said he found an elevated roadway with a 50-ft. drop-off for about 200 ft. leading to an active drilling area. The company said it was an infrequently used road, used only by service and maintenance vehicles. Under these conditions, the road does not have to have berms if there are locked gates to the entrance points of the road; warning signs that the road is unbermed; and delineators along the perimeter of the roadway indicating the edge and attitude. The road had none of these. While barrels were in place at the entrance to the roadway with labels noting the area was unbermed, and this was a standard practice for the quarry, the barrels did not meet the requirements of the standard.

Judge Miller said the violation “was much more serious than the inspector indicated,” and she believed the citation should have been marked as S&S. The judge said there was no question that persons traveled near the entrance to the road, and the cones in place would not have kept someone out of the area (it is not clear if it was cones or barrels in place, since both are mentioned in the decision). Drillers and blasters could have easily over-traveled the road and dropped down 50 ft. She said an injury was reasonably likely to occur, the gravity was great than the citation indicated, and she increased the fine from $100 to $1,000.

MSHA’s S&S finding and fine of $807 was upheld where three miners worked in an area where loose material, including large and small rocks, was observed on a highwall, and the area had not been scaled. While the inspector did not observe falling material, he said that there was a residual pile along the base of the highwall. The company said that the scaling required by MSHA actually loosened rock, and made the area more dangerous, but this was discounted by the judge. Tilcon also said that no one worked within 30 ft. of the highwall, but tire tracks were observed up to the base.

A $100 penalty was assessed for a violation of §56.14112(b) where a gate to for a perimeter fence around a large cone crusher was not locked, but secured with only a nut and bolt that came loose when the MSHA inspector touched the gate.

A small, unguarded opening on a scalping screen, that was not easily accessed, was a violation of §56.14112(b), and a $100 penalty assessed. The condition had existed for 7 to 8 years. The walkway was within 2 ft. of the unguarded spot, and a person tripping or falling could place their hand into the gap to catch themselves.

An alleged guarding violation under §56.14107(a) was vacated where there was no guard on the back side of a pulley drive in a remote area. To access the area, a person would have to walk across 500-ft. of catwalk, pass through a chain, go down one ladder and up another ladder, and go through a waist-high gate secured with a nut and bolt.

A $100 fine was assessed for an unguarded area measuring 2½ in. x 12 in., 4 to 5 ft. above a walking area next to the electrical motor on a crusher exposing the V-belt and pulley. Although the area is small, and someone would have to intentionally reach into the area, there was still a violation, although negligence was low.

An S&S violation of §56.11001 occurred where a bent step to a loader’s engine compartment had been reported several months earlier in a preshift examination, but never repaired because the maintenance department determined that the step was safe. The engine of the loader was considered a “working place.” The step was the means of accessing the area, and it was required to be maintained in safe condition. MSHA’s S&S finding and $1,203 fine was upheld.

TILCON NEW YORK INC., 10/6/2016, FMSHRC(J) No. YORK 2016-66; 23 MSHN D-2523