Bussen Quarries, Inc. v. Acosta

• Decision Date: 16 July 2018
• Docket Number: No. 17-2281,17-2281
• Citation: 895 F.3d 1039
• Parties: BUSSEN QUARRIES, INC., Petitioner v. Alexander ACOSTA, Secretary of Labor; Federal Mine Safety and Health Review Commission; Mine Safety and Health Administration, MSHA, Respondents
• Court: U.S. Court of Appeals — Eighth Circuit

895 F.3d 1039

BUSSEN QUARRIES, INC., Petitioner

v.Alexander ACOSTA, Secretary of Labor; Federal Mine Safety and Health Review Commission; Mine Safety and Health Administration, MSHA, Respondents

No. 17-2281

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2018

Filed: July 16, 2018

Ryan Dale Seelke, Mine Safety Compliance Consulting, Rolla, MO, for Petitioner.

Elizabeth Johnston, W. Christian Schumann, Emily C. Toler, Office of the Solicitor, Division of Mine Safety and Health, Arlington, VA, John Thomas Sullivan, Federal Mine Safety & Health Review Commission, Office of General Counsel, Washington, DC, Michael Davis, Mine Safety and Health Administration, District Manager, Dallas, TX, for Respondents.

Before BENTON, MELLOY, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

The Secretary of Labor’s ("Secretary") Mine Safety and Health Administration ("MSHA") issued a citation to Bussen Quarries, Inc. ("Bussen"). The Secretary claimed Bussen violated federal regulation 30 C.F.R. § 56.15005, which requires the use of certain fall-protection equipment at surface metal and nonmetal mines when working where there is a danger of falling. Our review focuses on whether there is enough evidence to support the citation.

I. Background

Bussen owns and operates the Jefferson Barracks mine, a limestone quarry located in St. Louis County, Missouri. As part of its mining process, Bussen uses explosives to blast through the limestone and rock. The miners bore long holes into the rock along a highwall,¹ load explosives into the holes, and detonate the explosives. Due to natural conditions, there are times when the drilled holes contain excessive water, which interferes with the detonation. Miners will therefore check the water level and, if necessary, pump the water out. A hose is attached to one end of the pump, which suctions the water through the hose and discharges it out a spout on the other end of the pump. To make the pump mobile, Bussen attaches the pump to a two-wheeled dolly, which is referred to as the pump cart.

On the morning of December 2, 2014, MSHA mine inspector Gary Swan ("Inspector Swan") arrived at the Jefferson Barracks mine to conduct an inspection. Inspector Swan observed a crew of four miners, including lead blaster David Becker, working on the surface of the State Ledge highwall. Inspector Swan also saw the pump cart, which he alleged was approximately four and one-half feet from the edge of the highwall with its handles pointed toward the highwall edge. The drop-off from the edge of the highwall is roughly seventy feet.

Inspector Swan approached the group and began talking to Becker. Inspector Swan expressed concern about the pump and its proximity to the highwall edge. Becker, who was standing roughly seven feet away from the highwall edge, grabbed the pump cart, swung it around, and pulled it toward him so that it was in line with the drill holes. Inspector Swan asked Becker about fall protection equipment and Becker explained that it was in a nearby pickup truck, but was not needed.

After the inspection was completed, Inspector Swan explained to Bussen safety manager Dana Bussen that he was going to issue Bussen a citation because the pump was "way too close to the highwall." He then wrote a citation² alleging a violation of 30 C.F.R. § 56.15005, which is titled "Safety belts and lines," and relevantly provides that "[s]afety belts and lines shall be worn when persons work where there is danger of falling."

The citation alleged:

There was a portable pump on a two wheel cart being used on the highwall above the state rock ledge to pump out drill holes for loading. The pump was located between the edge of the highwall and the last row of drill holes, approximately 4 feet from the edge. The back of the two wheel cart was facing the highwall edge. This could put a person using the cart approximately 2 to 3 feet from the edge of the highwall with their back to the edge. This practice exposes miners to a fall hazard.

The Secretary proposed a civil penalty in the amount of $6,300.00. This penalty was a special assessment issued pursuant to 30 C.F.R. § 100.5, which allows MSHA "to waive the regular assessment ... if it determines that conditions warrant a special assessment." MSHA explained the special assessment was justified here "because the cited standard is a ‘Rules to Live by’ standard" and "greater deterrence than the regular assessment penalty" was needed. In its Narrative Findings for a Special Assessment, MSHA alleged that "a miner failed to use fall protection when he was working two to three feet from the edge of a highwall, where there was a danger of falling" and that he "had been working from the rear of a cart that was facing the highwall edge."

After Bussen contested the proposed assessment, the Secretary filed a Petition for the Assessment of Civil Penalty with the Federal Mine Safety and Health Review Commission (the "Commission") and the case was assigned to an Administrative Law Judge ("ALJ"). The parties submitted prehearing statements. In describing the citation, the Secretary explained that "Inspector Gary Swan issued the violation after he learned that a miner operated, without using safety belts or lines, a portable pump on a two wheel cart to pump out drill holes for loading and the miner did so within about four feet from the edge of the highwall creating a danger of falling."

The case proceeded to a hearing, where five witnesses testified, including Becker and Inspector Swan. Becker explained that he had placed the pump cart in a certain spot earlier in the day and, when a powder truck showed up that he needed to unload, he took the pump cart "and spun it out of my way to clear a path for us to start unloading bags of powder." Becker claimed he knew he was at least seven feet away from the edge when he moved the pump cart because that was Bussen’s policy and because his feet were near the drilled holes, which were approximately eight feet from the edge. Becker claimed no miners used the pump that day.

Inspector Swan testified that when he first observed the pump, there were "four people in the area [of the pump] at the time." He testified that with the positioning of the handles toward the highwall, "it could, if they needed to pry it back to move it, to move the wheels, it would put someone, you know, between the pump and the highwall." Inspector Swan acknowledged that he did not see any of the miners using the pump. He also admitted that he did not observe anyone working between the edge of the high wall and the back of the pump. He testified, however, that when Becker retrieved the cart during their confrontation, "that would have put him across that – what I call a safe distance from the high wall."

The Secretary submitted into evidence an MSHA PowerPoint presentation titled "Fall Prevention on Highwalls," which referenced the "Fall Hazard Zone." The presentation described the fall hazard zone as six feet or less from a stable crest or six feet or less from unstable ground or footing. Bussen submitted into evidence its policy requiring its employees to stay at least seven feet away from a drop-off or unstable backbreak unless they are properly tied off.

After the hearing, the ALJ found the Secretary proved that Bussen violated 30 C.F.R. § 56.15005, and ordered Bussen to pay a penalty of $6,300.00. The ALJ reasoned that "the position of the pump together with the absence of any warnings near the edge created a danger of falling." Acknowledging it was "difficult to know whether the pump would have been used in the position observed by the inspector," the ALJ "agree[d] with the inspector’s reasonable inferences that these other miners could have used or moved the pump from its location near the edge." Either way, the ALJ explained, the "miner would enter the fall hazard zone."

Further, the ALJ discounted Becker’s testimony that he never entered the fall hazard zone—which she suggested was within six feet of the edge—stating it was "difficult to imagine" he did not cross into the zone "when he placed the pump in the position initially observed by the inspector," and "most likely" did so by pushing the cart by its handles. The ALJ also concluded that Becker did not use fall protection when moving the pump to its position and expressed doubt that other miners would use fall protection "in order to perform the simple task of moving the pump."

The Commission, which at that time consisted of four Commissioners, exercised its discretion to consider Bussen’s petition for discretionary review, see 30 U.S.C. § 823(d)(2). The Commissioners were evenly divided, however, on whether to affirm or reverse the ALJ’s decision in its entirety and, therefore, wrote two separate sections of the opinion stating their respective conclusions on the ultimate issue.

The two Commissioners who wrote in favor of affirming the ALJ’s decision concluded that substantial evidence supported a finding of violation because they agreed with the ALJ’s conclusion "that David Becker’s positioning of the pump cart during the unloading of the powder truck placed him less than four and one-half feet from the highwall’s edge without fall protection." The Commissioners explained that the ALJ’s conclusion was based on an inference that "the handles pointing towards the highwall edge indicate that [Becker] was between the pump cart and the highwall edge," and the inference was reasonable because it was based on "a commonsense view of how the cart in question had been placed in the position where Inspector Swan observed it."

The two Commissioners who wrote in favor of vacating the citation concluded that the ALJ’s inference that Becker placed himself in danger of falling was "not supported by substantial evidence" and therefore was "not reasonable." The Commissioners explained that Becker’s "sworn testimony, his demonstration of his action, the evidence at the scene, and plain common sense contradict the [ALJ’s] inference."...