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Company Successfully Argues That It Lacked Fair Notice of a Travelway Violation By Ellen Smith A safety manager for Aggregate Industries WRC was able to convince a Review Commission ALJ to vacate a citation issued under §56.11012, where the company was able to prove that it lacked adequate or fair notice of the violation. MSHA cited the company in March 2011, for not having a fall prevention barrier on an opening at the top of a ladder of an Atlas Copco Drill. MSHA inspector David Grosek found the drill had an elevated platform that did not have a barrier across the ladder access, and the inspector found two open‐ ings on this platform that a person walking by could fall through. The first opening for the ladder access was 2 ft. wide. The second opening, on the other side of the drill, was 10 in. wide. The platform was 4 ft. above the ground. The MSHA inspector testified that he believed previous in‐ spectors had failed to cite an obvious hazard, and that a rea‐ sonably prudent person familiar with the mining industry would have known that this area should have been protected. Grosek testified he was concerned that during inclement weather, the walkway could be slippery and a person could fall from the 4‐ft. platform. While it was noted in the decision that the drill had gone through at least 30 MSHA inspections by several different inspectors, and no citation was ever is‐ sued for the two openings, the Secretary argued that while MSHA inspectors miss things, it does not excuse the mine from recognizing hazards and complying with standards. The company's quarry supervisor, Robert Gentry, testified that the company had been using the drill since 1985. While the drill operator would walk past the opening once per shift, Gentry did not believe that someone would fall through the opening. While there was no "fall protection barrier" at the top of the ladder, Gentry believed that having a chain at the top of the ladder creates a hazard by forcing the miner to un‐ hook the chain while on the ladder, exposing the miner to the risk of losing his grip and falling. The company said a chain would also prevent the operator from leaving the drill cab area quickly in the event of an emer‐ gency. The company also noted there were similar conditions on other pieces of equipment, and the company was not cited in those instances. ALJ Manning agreed with MSHA that there was a violation where there was the 2‐ft. opening, but not the 10‐in. opening. www.rockproducts.com The platform on the drill extending from the cab and along the side of the drill was a "travelway" and the drill operator walked along it at least once a day to check the fluid level in the radiator. However, the second opening that was 10 in. wide was used to maintain the air compressor, and rarely accessed. The ALJ did not consider this area to be a "travelway" used by miners "to go from one place to another," and said it was highly un‐ likely that anyone could fall through that opening even if he tripped or stumbled, so this second opening did not violate the standard. On the issue of adequate notice, ALJ Manning agreed with the company that it lacked fair or adequate notice of the standard, ruling that the two openings did not create an obvious hazard considering the fact the drill had been inspected on at least 30 occasions and the company was never cited. In addition, he agreed that MSHA had not cited a similar condition on at least one front‐end loader at the quarry. "Given these facts, the applicability of the safety standard to the cited openings was very ambiguous especially consider‐ ing the history of enforcement at the quarry," Manning said. "There is nothing in the record that indicates Aggregate In‐ dustries knew or should have known that the unchained openings might be considered a violation of this safety stan‐ dard. A reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have reached the same conclusion as Aggregate Industries." While the citation was vacated in this instance, Manning said the company he was only holding that Aggregate Industries was not provided with the notice that is legally required to as‐ sess a civil penalty for violating the safety standard, but that the company has now been provided such notice and it is re‐ quired to comply with the requirements of section §56.11012 at the top of the ladder. E 30 CFR § 56.11012 Protection for openings around travelways. Openings above, below, or near travelways through which persons or materials may fall shall be pro- tected by railings, barriers, or covers. Where it is im- practical to install such protective devices, adequate warning signals shall be installed. ROCKproducts • AUGUST 2012 49