**FEDERA****LMINESAFETYANDHEALTHREVIEWCOMMISSION**

OFFICEOFADMINISTRATIVELAWJUDGES

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SECRETARYOFLABOR                                   :                 CIVILPENALTY PROCEEDING

MINE SAFETY ANDHEALTH                      :     

ADMINISTRATION(MSHA),                         :                 Docket No. SE 2023-0121

Petitioner,                                     :                 A.C.No. 31-00368-571444

                                                      :

                                                      :

v.                                                   :     

                                                                  :

                                                                  :     

VULCAN CONSTRUCTION                              :                  Mine:Boone Quarry                                                       

  MATERIALS, LLC,                                           :

                    Respondent                                    :                  

**SUMMARY DECISION**

 

Before:                        JudgeBulluck

Thiscase isbefore me upon a Petition for Assessment of Civil Penalty filed by theSecretary of Labor (“Secretary”), on behalf of the MineSafety and Health Administration (“MSHA”), against VulcanConstruction Materials, LLC ("Vulcan"), pursuant tosection 105(d)of theFederal MineSafetyand Health Actof 1977("Mine Act"),30 U.S.C.

§815(d). TheSecretaryseeksacivilpenalty intheamount of$143.00foranallegedviolation of one of her mandatory safety standards requiring that water orneutralizing agents be made available where corrosive chemicals or otherharmful substances are stored, handled, or used.

 

The Secretary filed a Motion for Summary Decision andDetermination of Penalty (“Secretary’s Motion”), with attached Exhibits Athrough D. In response, Vulcan filed a Request to Deny Secretary’s Motion forSummary Decision and Determination of Penalty (“Vulcan’s Response”), withattached Exhibits R-1 through R-5. The issues for resolution in this case are whetherVulcan violated 30 C.F.R. § 56.15001 and, if so, the gravity and negligence ofthe violation, and the appropriate penalty.

 

Based on a thoroughreview of the documents filed by the parties, I find that there is no genuineissue of material fact. For the reasons set forth below, I conclude that theSecretary is entitled to summary decision as a matter of law, affirm theCitation, and assess a penalty of $143.00 against Vulcan.

 

**I.              ****LegalStandard**

Pursuant toCommission Rule67(b),"[a]motion forsummary decisionshall begranted only if theentire record, including the pleadings,depositions, answers to interrogatories, admissions and affidavits,shows: (1)that there is nogenuineissue astoany material fact;and(2)that themovingpartyisentitledtosummarydecisionasamatteroflaw."29C.F.R. §.2700.67. 

 

It iswellsettled thatsummary decision isanextraordinarymeasure and theCommission hasanalogizedit toRule 56of theFederal Rulesof CivilProcedure, which theSupreme Courthasconstrued toauthorize summary judgment only"upon proper showings of thelack of a genuine, triable issueof material fact."*Hanson Aggs. New York, Inc.,*29FMSHRC 4, 9 (Jan. 2007) (citations omitted). When considering a motionforsummary decision, the Commissionhas noted that"theSupremeCourt hasstated that 'welook at the record on summary judgmentinthelight most favorable to. . . the party opposingthe motion,'and that 'theinferencestobedrawnfrom theunderlying factscontained in[the]materials [supporting the motion] must be viewed in thelight most favorable totheparty opposing the motion."'*Id.*at9 (quoting *Poller v.ColumbiaBroad. Sys., Inc.,*368 U.S.464, 473 (1962); *United States v. Diebold,Inc.,*369 U.S. 654,655 (1962)). Moreover, Commission Judgesshould not grant motions forsummarydecision "unless theentirerecord shows a right tojudgmentwith such clarity as toleave no roomforcontroversy and establishes affirmativelythat the adverse party cannot prevail under any circumstances."*KenAmerican Res., Inc.,*38FMSHRC1943, 1947 (Aug. 2016) (quoting *Campbell v.Hewitt, Coleman*& *Assocs., Inc.,*21 F.3d 52,55(4th Cir. 1994));*see Scott v.Harris,*550U.S.372,380(2007)(holding that thereisnogenuineissue fortrial unlessa rational trierof factcould findfor the nonmoving party).

 

**II.           ****FactualBackground**

On December 29, 2022,Inspector Steaven Caudill conducted a regular E01 inspection of Vulcan’s BooneQuarry. Sec’y Mot., Ex. A. During the inspection, Caudill observed that theeyewash station in the maintenance shop was inoperable because the cold outsidetemperatures had frozen its water supply, and no additional water source orneutralizing agent was present at the eyewash station. Sec’y Mot., Ex. A. AVulcan manager, James Bear, informed Caudill that there were bottles of water storedin the office shop adjacent to the maintenance shop, and asked if those bottleswere sufficient for eye rinsing. Sec’y Mot., Ex. A. Thereafter, Caudill issueda 104(a) citation alleging a violation of section 56.15001. Sec’y Mot., Ex. C.

 

**III.         ****Secretary’sStatement of Undisputed Facts**

** **

The Secretary contends that the following facts are not in dispute:

** **

                 1.        Respondent Vulcan Materials(“Vulcan”) is engaged in mining at Boone Quarry (the “Mine”). The Mineidentification number is 31-00368. The mine is located in Watauga County,Boone, NC. 

                 2.        Respondent is subject to thejurisdiction of the Commission. 

                 3.        True copies of the citation atissue in this proceeding were served on Vulcan, as required by the Mine Act.

                 4.        On December 28, 2022, MSHAInspector Steaven Caudill conducted a regular E01 safety and health inspection.

                 5.        During the inspection, CaseyMcMaham, Supervisor for Respondent, turned on the faucet to the eyewashstation. Despite turning the station on, no water flowed from the faucet head. Thewater system supplying water to the maintenance shop eyewash station was frozendue to cold temperatures. The lack of water supply to the shop eyewash stationmade the station inoperable. 

                 6.        When Inspector Caudill indicatedthat the eyewash station was not operable, Respondent’s representative, ManagerJames Bear, asked if bottled water was sufficient for eye rinsing. He thendirected the Inspector’s attention to bottles of water, wrapped in plastic,located in the office shop area approximately 50 to 75 feet from the eyewashstation. 

                 7.        The Inspector found that the shopemployees came into contact with hazardous chemicals such as oil for diesel andfluid pumps, battery acid in charging batteries (which are stored, used, andcharged on an “as needed” basis), and aerosol chemicals for cleaning equipment.These chemicals require flushing the eyes with water or neutralizing agent for15 minutes, if contacted. Rinsing with water or neutralizing agent is necessaryto prevent burns and/or blindness. 

                 8.        On December 28, 2022, the watersupply to Respondent’s eyewash station was frozen. 

                 9.        Respondent’s maintenance shopemployees were present and working on December 28, 2022, to do housekeeping dueto the cold temperatures outside. 

              10.        Based on the inspection, InspectorCaudill issued Citation No. 8313773 to Respondent, pursuant to § 104(a) of theMine Act, alleging a violation of 30 C.F.R. § 56.15001. 

              11.        Inspector Caudill assessed thegravity of the violation as “unlikely” to result in injury with a not“significant and substantial” designation. Inspector Caudill found thenegligence level as “low.” 

              12.        To terminate the violation, theoperator placed two large bottles of eyewash at the station until the watersupply system could be repaired. 

              13.        MSHA assessed the statutoryminimum penalty of $143.00 for a § 56.15001 violation. 

 

Sec’yMot. at 2-4. 

 

Vulcan expressly asserts that it does notdispute Facts 1 through 5 and 7 through 12. Vulcan Resp. at 2-3. Regarding Fact6, Vulcan’s comments not only indicate that there is no genuine dispute, butadd that, in addition to bottles of water, there were also bottles of eyewashlocated in vehicles elsewhere throughout the plant and storage areas. VulcanResp. at 2. Also, Vulcan challenges that the refrigerated water in the officeshop was 75 feet away because the maintenance shop is only 50 by 60 feet. VulcanResp. at 2. This rough estimate, however, is consistent with the Secretary’scontention that the water bottles were approximately 50 to 75 feet away fromthe eyewash station. Therefore, I find that there is no genuine issue as to anymaterial fact.

 

**IV.         ****Findingsof Fact and Conclusions of Law**

Inspector Caudill issued104(a) Citation No. 8313773, alleging a violation of 30 C.F.R. §.56.15001 that was “unlikely” to cause an injurythat could reasonably be expected to be “permanently disabling,” and was due toVulcan’s “low” negligence. The “Condition or Practice” is described as follows:

No water supply or neutralizing agentwas being provided at the maintenance shop eyewash station where corrosivechemicals and other harmful substances are stored and used. The water systemsuppling [sic] water to the eyewash station was froze off due to coldtemperatures last week. The shop employees use hazardous chemicals daily whichrequires flushing the eyes for 15 minutes, if contacted (according to theMSDS). Batteries are stored, used, and charged in the shop on an “asneeded" bases [sic]. Water or a neutralizing agent is necessary to rinsethe eyes to prevent burns and/or blindness.

Sec’y Mot., Ex. C. Caudillterminated the Citation the same day after Vulcan brought in two large bottlesof eyewash from a Conex storage container outside the maintenance shop, and placedthem at the eyewash station. Sec’y Mot., Ex. C.

 

**A.   ****Fact of Violation**

The Secretary contends thatshe is entitled to summary decision because the eyewash station was inoperable,and no other water or neutralizing agent was present and ready for use as firstaid, in the event of chemical accidents. Sec’y Mot. at 7. On the other hand,Vulcan takes the position that bottles of water and eyewash solution located nearthe maintenance shop were available, within the meaning of section 56.15001. VulcanResp. at 2. 30 C.F.R. § 56.15001 prescribes that:

Adequate first-aid materials,including stretchers and blankets, shall be provided at places convenient toall working areas. Water or neutralizing agents shall be available wherecorrosive chemicals or other harmful substances are stored, handled, or used.

30 C.F.R § 56.15001.

The meaning of the term“available,” as used in section 56.15001, has been interpreted by Commission Judges.*See Taft Prod. Co.*, 35 FMSHRC 965 (Apr. 2013) (ALJ); *see**also**Fred Chismar*, 22 FMSHRC 81 (Jan. 2000) (ALJ). In *Taft,*I foundthat the operator violated section 56.15001 because no water or neutralizingagent was easily accessible under emergency conditions in which eye flushing iscritical. 35 FMSHRC at 969. Access to the eyewash station in that case wasobstructed by metal rods and a water cooler, and the nearest alternative watersource was in a bathroom outside the maintenance shop. *Id.*at 970. I foundthat the eyewash station was not “available,” within the term’s ordinary meaningof “present and ready for use” and that, consistent with the protectivepurposes of the Mine Act, a miner should have immediate and unobstructed accessto flushing liquids. *Id*. In the throes of an emergency, I reasoned, aminer should not have to scrounge around, visually impaired and in pain, tofind readily available first aid. *Id.*

In *Chismar*, theoperator claimed that water was available to treat a miner’s chemical burn,where a water reclamation tank was 75 to 200 yards away from the site of theincident. 22 FMSHRC at 91. However, the Judge rejected the operator’s argumentbecause the water tank was not in the immediate proximity of where the injuredminer was working and the operator had not designated the tank as a first-aidsource, leaving the injured miner unaware of where to find first aid. *Id.*at 92.

Vulcandoes not contest that the eyewash station was inoperable, but argues thatalternative sources of water or neutralizing agent were sufficiently availablein other locations. Vulcan Resp. at 3. Vulcan provided photographs, one showingan opened case of bottled drinking water, wrapped in plastic, in the officeshop’s refrigerator, and another showing three filled 5-gallon water cooler jugs,situated next to the refrigerator. Vulcan Resp., Exs. R-1 and 

R-2. Vulcan claims thatthese sources double as available first aid for chemical injuries. Vulcan Resp.at 2. Additionally, a third photograph depicts small bottles of eyewashsolution stored on vehicles that, during the inspection, were parked outsidethe maintenance shop. Vulcan Resp., Ex. R-3. 

I find unavailingVulcan’s contentions that alternative sources of water and eyewash solutionwere available. The word “available” is defined as “present and ready for use.”*The American Heritage Dictionary*(5th ed. 2022). With the eyewashstation inoperable, there was no other first-aid eye-flushing source inside themaintenance shop. A miner, whose eyes were exposed to harmful chemicals, after accessingthe nonfunctional eyewash station, would have to grope around locations outsidethe maintenance shop for flushing liquid, possibly in a state of panic, delayingrelief from pain and likely increasing the probability of burn injuries.  

Even more untenable isthe contention that a miner, seeking relief from chemical exposure, shouldreasonably be required to locate and uncap refrigerated bottled water or liftand invert a 5-gallon water cooler jug from another room, as well as locateeyewash agent stored among other materials on vehicles parked outside themaintenance shop. This is precisely why the eyewash station is situated in themaintenance shop to meet the requirements of the standard and, in anonfunctional state, it provides no safety protection related to chemicalaccidents. 

Accordingly, withno alternative source of water or neutralizing agent readily available tominers working in the maintenance shop, I find that Vulcan violated section56.15001. 

 

**B.   ****Gravity and Negligence**

** **

The Secretaryassessed the gravity of the violation as “unlikely” and “permanently disabling.”Sec’y Mot., Ex. C. Caudill determined that an injury was unlikely to occurbecause Vulcan’s policy requires miners to wear eye protection at all timeswhile on-site, and that the injury would be permanently disabling because ofthe potential for chemical exposure to cause blindness or permanent eye damage,if not immediately addressed. Sec’y Mot., Ex. A. Given the undisputed facts, I sustainthe Secretary’s gravity designations. 

 

The Secretary alsoassessed the negligence of the violation as “low.” Sec’y Mot., Ex. C. 

I find noindication that Vulcan was aware that the water line was frozen, because theonly running water in the maintenance shop was at the eyewash station and, fortunately,it is not needed on a frequent basis. See Sec’y Mot., Ex. A. Therefore, Isustain the Secretary’s negligence designation. 

 

**V.            ****Penalty**

While theSecretary has proposed a civil penalty of$143.00, the Judge must independently determine theappropriateassessment byproperconsideration ofthesixpenalty criteria set forth insection 110(i)ofthe Act, 30 U.S.C.§ 820(i).*See SellersburgCo.,*5 FMSHRC 287, 291-92 (Mar. 1983), *aff'd*136**F.2d 1147 (7th Cir. 1984).

Applyingthe penalty criteria, I find that Vulcan is a large operator, with no priorviolations of section 56.15001, and an overall violation history that is amitigating factor in assessing an appropriate penalty. I also find that theproposed penalty will not affect Vulcan’s ability to continue in business, and thatVulcan demonstrated good faith in achieving rapid compliance after notificationof the violation. See Sec’y Mot. at 9-10. The remaining criteria involveconsideration of the gravity and negligence of the violation. I have found thatthe violation was unlikely to result in permanently disabling injuries, and thatVulcan’s negligence in committing it was low. Accordingly, I find that apenalty of $143.00, as proposed by the Secretary, is appropriate.

**VI.         ****Order**

**ACCORDINGLY**,****theSecretary'sMotion forSummary Decision and Determination of Penalty is**GRANTED**,****and it is**ORDERED**that Vulcan ConstructionMaterials, LLC **PAY**a civil penalty of$143.00 within 30days of thedate of this Decision.[1]

 

 

 

 

/s/Jacqueline R. Bulluck

                                                                                   JacquelineR. Bulluck

                                                                                   AdministrativeLaw Judge

 

 

Distribution:

 

Chaunda Brock, Esq., Office of the Solicitor, U.S.Department of Labor, 61 Forsyth Street, S.W. Room 7T10 Atlanta, GA 30303 

brock.chaunda.l@dol.gov

 

Brian M. Moore, Safety and Health Manager, 11020 DavidTaylor Drive, Suite 400, Charlotte, NC 28023

moorebr@vmcmail.com

 

/db

 

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[1]Payment should bemade electronically at Pay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,send payment (check or money order) to: U.S. Department of Treasury, MineSafety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390.Please include Docket and A.C. Numbers.