FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION
721 19th STREET, SUITE 443
DENVER, CO 80202-2500
March 11, 2013
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SECRETARY OF LABOR, |
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CIVIL PENALTY PROCEEDING Docket No. KENT 2012-549 A.C. No. 15-18734-278743 D671 Docket No. KENT 2012-674 A.C. No. 15-18734-281221 D671 Mine: Mine #1 |
DECISION
Appearances: Ryan Pardue, Office of the Solicitor, U.S. Dept. of Labor, Denver, CO, for Petitioner;
Jamie Fannon, J and H Enterprises, LLC, pro se for Respondent.
Before: Judge Miller
These cases are before me on petitions for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against J and H Enterprises, LLC (“J and H”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”).
These dockets contain a total of six 104(a) citations. The total originally proposed penalty for these citations was $85,431.00. Respondent has agreed to accept Citation Nos. 8348703 and 8348723 as issued and pay the originally proposed penalties. (Tr. 24-26). Four citations remain for decision, all of which involve the alleged failure of J and H to keep haul trucks in a safe operating condition. The parties presented testimony and documentary evidence at a hearing held on February 13, 2013 in Lexington, Kentucky.
At hearing the evidence demonstrated that J and H Enterprises, LLC works as a contractor at Powell Mountain #1 Mine, as well as at other mines. J and H owns a number of trucks used to haul coal from the mine site to the wash plant. (Tr. 7). I find that J and H is a mine as defined by the Act, and the Commission has jurisdiction in this matter. The Powell Mountain #1 Mine is an underground coal mine located in Harlan County, Kentucky and the J and H office is within two miles of the mine. (Tr. 100). J and H currently has 15 trucks that it operates at three separate mines, however, at the time of the inspections, it had 22 trucks operating at various mines, all hauling coal. (Tr. 106).
I. FINDINGS
OF FACT AND CONCLUSIONS OF LAW
At hearing, J and H agreed that two of the six violations were valid as issued and, on the record, I indicated that those citations were affirmed as written with the penalties as originally proposed by the Secretary. The remaining four citations were issued pursuant to Section 77.404(a) of the Secretary’s regulations, which requires that “[m]obile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from service immediately.” 30 C.F.R. § 77.404(a).
Inspector Otis Carroll has been a mine inspector for two and one-half years and has approximately fifteen years of mining experience. (Tr. 23). Carroll conducted inspections at the Powell Mountain, Darby #1 mine in December 2011 and January 2012. During each of the inspections, Carroll flagged down the haul trucks operated by J and H to conduct an inspection. In each instance, as described below, he found a problem with the braking system along with other defects in the equipment. For reasons set forth below, I find that, based on Carroll’s testimony, the Secretary has established each of the remaining alleged violations of the mandatory standard.
Carroll also designated the four citations that remain at issue as significant and substantial. A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has explained that:
[i]n order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).
With regard to the S&S designation, the four citations that remain at issue have a number of factors in common. Each violation is related to a defect in the braking system on large tandem haul trucks that routinely carry 40 tons of coal. The trucks travel from the pit, where they are loaded, to the dump, a distance of nine miles on winding, gravel roads with a very steep grade. (Tr. 99). The haul roads have traffic daily and, while in the pit area, the trucks pull up to the loader and may encounter foot traffic. (Tr. 64). The haul trucks travel at speeds of at least 30 to 35 miles per hour. (Tr. 97). Carroll explained that the loss of any braking ability will reduce not only the steering control, but also the ability to stop the truck. (Tr. 39-40). The inability to adequately steer or stop the truck will result in the truck hitting a person, hitting another truck, or hitting the bank and flipping over. (Tr. 39). In each case, the incident is likely to lead to a fatal injury.
Carroll issued a number of the violations as having occurred as a result of high negligence. The Secretary’s regulations state that an operator is highly negligent when it “knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” 30. C.F.R. §100.3(d) Table X.
Prior to the first of Carroll’s two inspections, J and H had been issued one citation for a violation of Section 77.404(a) at this mine and eleven such citations at others mines during the fifteen months preceding the violations discussed herein. (Tr. 16); Sec’y Exs. 14, 15 and 16. The mine also received a number of citations for violations of Section 77.1605[1] prior to the date of these citations. The penalties in this case are significantly higher than those of earlier citations, due in part to the prior history and the negligence attributed to the citations at issue in this case.
J and H was represented by one of its two owners, Jamie Fannon. Fannon explained that he has a shop where the trucks are located, maintained and repaired in Harlan County, Kentucky. He defends each citation in general by stating that the gravity is not as serious as alleged since he has installed additional safety devices, specifically to aid in braking, on each of his trucks. (Tr. 115-116). He further alleges that he is a small operator and his only mining activity is the operation of haul trucks on this property as well as others. Given that it is his only activity, the only citations he receives are for truck defects and, therefore, the history will naturally show a number of violations of the same standard. (Tr. 113). Fannon explained that paying such high penalties will cause him undue hardship. His trucks have worked 34,000 hours without a lost time injury. (Tr. 114). J and H has had no workers compensation claims, no fatalities and no accident with an injury. (Tr. 114).
Fallon testified that his trucks are newer, in good shape and kept in good condition. (Tr. 115). The trucks are returned to the shop at night and he hires as many mechanics as he needs to repair and maintain the trucks. (Tr. 83). If a defect is found with a truck, it is repaired immediately. He further stated that most of the conditions found by Carroll were defects that could have developed in a short time while the truck was being driven, and would have developed without the knowledge of the driver. (Tr. 82). Fannon stated that the citation he received for more than $42,000, Citation No. 8348705, is more than he can afford. (Tr. 116). J and H routinely has a gross income of $3.3 million, but the net income and amount he earns with his brother, who is his partner, is $90,000. (Tr. 118-119). Given the nature of the coal industry, he has reduced the number of employees from 44 to 23 since 2010, and sold 7 of the haul trucks in June, thereby leaving J and H with 15 trucks. (Tr. 120-121).
Fannon explained that maintenance and repair of the haul trucks is completed daily. (Tr. 83). The drivers notify the mechanics if they find any mechanical defects and, based upon that information, a list is prepared and the mechanics work from the list. According to Fannon, the mechanics immediately repair any defect that they are told about during the work shift. In addition, the drivers conduct a preshift examination at the beginning of the shift. After J and H received the citations in December, Fannon instituted a program whereby the drivers and mechanics have regular meetings. (Tr. 88). He is making a greater effort since December to improve the truck maintenance and he continues to remind his drivers how important it is to maintain the trucks and fill out the reports as instructed.
i. Citation No. 8348703
Citation No. 8348703 was issued on December 13, 2011 as non-S&S, with moderate negligence. At hearing, Respondent admitted this violation and agreed to pay the originally proposed penalty. (Tr. 24-26). A penalty of $334.00 is assessed.
ii. Citation No. 8348704
Citation No. 8348704 was issued on December 13, 2011. Carroll determined that a fatal injury was reasonably likely to occur, that the violation was S&S, that one person was affected, and that the violation was the result of J and H’s high negligence. The Secretary has proposed a penalty of $18,271.00.
Carroll explained that, upon arriving at the mine, he began to flag over the haul trucks to the side of the road near the pit. (Tr. 30). The trucks were in the process of hauling coal from the pit to the dump, but were empty at the time they were inspected. The trucks are each 40 ton, some of them tandem trucks. This particular citation was issued for the 40 ton white Mack truck and a defect with its air brakes, the primary brakes on the vehicle. Carroll explained that, as he pulled the truck over, he could hear an air leak and saw the pressure gauge dropping. (Tr. 29-32). In addition, after lifting the hood, he observed a leak in the power steering fluid. (Tr. 29).
The haul trucks use an air braking system as the primary means of bringing the 40 ton truck to a stop. (Tr. 33-34). In addition to the air brakes, the haul trucks are equipped with an engine brake, which is designed to slow the trucks on the steep grades with the assistance of the air brakes. (Tr. 36). The trucks are loaded with 40 tons of coal when traveling in at least one direction. (Tr. 37). If leaks occur in any part of the braking system, the air begins to bleed off and can result in a problem stopping and steering the truck. (Tr. 34). The trucks travel back and forth to the pit during the shift on several miles of winding, gravel road with traffic in both directions. (Tr. 34-35). The road has a 19% grade and winter driving conditions are unpredictable. (Tr. 34-35, 48-49). In Carroll’s estimation, the leak in the brakes that resulted in the loss of air pressure would create a hazardous condition for the driver. A braking system defect of this nature would mean that the driver would be slow to stop, or unable to stop, and consequently result in hitting another truck, hitting a pedestrian, running into the loader or other equipment, or hitting the embankment and turning the truck over. (Tr. 38, 39).
The brakes must have adequate air to operate in the manner in which they are designed. When the brakes do not have adequate air pressure, they do not function properly or as a driver would expect them to. Carroll is aware of fatal injuries caused by brakes losing their air pressure and specifically recalls one accident in which the brakes locked up as a result of loss of air pressure and the resulting accident killed the driver. (Tr. 40-41). Carroll felt that the condition of the brakes as he observed them was reasonably likely to result in an accident, which in turn would result in an injury that is likely to be serious. (Tr. 41-42). Although Carroll is not familiar with the maintenance program at the mine, he believes it is not effective and that defects are left undiscovered.
Carroll explained that this vehicle had a second defect; the power steering fluid was leaking. The driver of the truck told Carroll that they were putting in a gallon of steering fluid each week. (Tr. 43). Carroll understood that to mean that the driver was aware of the leak. Given the size of the leak, it is likely that the driver could lose the use of the power steering, making the large truck difficult to maneuver. (Tr. 43). These two factors, the air leak and the power steering leak, when considered together, make it even more likely that a serious accident would occur. (Tr. 44)
I have already found that a violation of the standard existed. I further find that the defects cited, the brake air pressure and the leaking steering fluid, will lead to an accident, which in turn will result in a serious or even fatal injury. Accordingly, I agree that the violation is significant and substantial.
Carroll determined that this violation was the result of high negligence based upon the facts that he learned from the driver. Carroll did not see the condition listed on the pre-operation inspection and did not know how long the condition had existed. (Tr. 46). Carroll did learn that the operator had been putting excessive brake fluid in the truck each week. (Tr. 45). Those actions indicated to Carroll that the mine knew there was a leak and failed to repair it in a timely fashion. The fact that the mine was putting fluid into the steering unit can be some indication that it knew there must be a defect which needs repair, but I do not find it persuasive in this case. Instead, I find that the violation was the result of moderate negligence. Given the lower negligence, I assess a penalty of $9,000.00 for this violation.
iii. Citation
8348705
Citation No. 8348705 was also issued on December 13, 2011. Carroll determined that a fatal injury was highly likely to occur, that the violation was S&S, that two persons were affected, and that the violation was the result of J and H’s high negligence. The Secretary has proposed a penalty of $42,944.00.
This violation involves an inoperable parking brake on the red Mack tandem coal truck. Carroll pulled over this haul truck as he did the others and asked to see the pre-operation book. (Tr. 58-59). Carroll observed that the notes indicated that there was a problem with the parking brake. (Tr. 59). He asked the driver to move the truck to the pit area where it could be tested on a grade of approximately 6% to 7%, just enough to test the parking brake. (Tr. 62). The grade in the pit was not as steep as the haul road, but was sufficient to determine if the parking brake would hold the truck. The driver told Carroll that the parking brake worked to hold the truck in the pit until he started to load the truck. (Tr. 59-60). Carroll asked the driver to set the park brake, remain in the truck ready to apply the air brake, and then asked the loader to begin to load coal. (Tr. 60). With the second dip of coal, the truck started to roll backwards, indicating that the parking brake would not hold the haul truck in place. (Tr. 60). In addition to the problem with the parking brake, Carroll observed that the backup alarm on this vehicle did not work when the truck was placed in reverse and backed up to be loaded. (Tr. 60-61, 64).
Carroll testified that the inoperable parking brake had been recorded in the pre-op book for a couple of weeks. (Tr. 61-62). The two buckets that had been loaded during the testing were minimal when compared to the capacity of the loaded truck. (Tr. 63). There is foot traffic in the area, which may include the loader operator or others walking though the pit. (Tr. 64). While no any other haul trucks are in the pit while one is being loaded, Carroll determined that the condition was highly likely to result in an accident based upon the condition of the parking brake, along with a non-functioning back up alarm. (Tr. 64-65). It is reasonable that miners would walk behind the truck and, with an inoperable parking brake, the truck would roll back. (Tr. 65). Given the lack of a backup alarm, there would be no warning to any person on foot or in a vehicle that the truck was prepared to back up. Carroll explained that a driver, or someone else who is hit, will be injured and likely killed. (Tr. 66). Carroll determined that the negligence was high because the inoperable parking brake had been recorded in the book for several weeks prior to the inspection and no repair was undertaken. (Tr. 67).
Fannon agreed that the backup alarm was a problem, but testified that the defective parking brake would hold if going forward, as opposed to going backward, and, therefore, it was not a serious violation. (Tr. 68-69). The mine had worked on this truck for several days and found a problem caused by accumulated mud, which was repaired. (Tr. 69). Fannon agreed that that allowing the brake to exist in an inoperable condition for two weeks was not acceptable. (Tr. 69).
This violation is slightly different than the remaining three since it involves a parking brake that was defective as opposed to the primary air brake system. However, it is, like the other brake violations, a significant and substantial violation. The lack of a parking brake while the truck is backed into the pit and being loaded will cause the truck to roll unexpectedly, and it is likely to hit the loader as the truck is being loaded or someone on foot in the area. In addition, the backup alarm was inoperable, so there would be no alarm in the event the truck moved back, thereby adding to the likelihood of an accident. An accident would lead to a fatal injury.
In this instance I agree that the high negligence designation is appropriate given that the condition had been listed in the book for several weeks and had not been repaired. However, given the size of this operator and his ability to continue in business, I assess a reduced penalty of $15,000.00.
iv. Citation
8348722
Citation No. 8348722 was issued on January 10, 2012. Carroll determined that a fatal injury was reasonably likely to occur, that the violation was S&S, that one person was affected, and that the violation was the result of J and H’s moderate negligence. The Secretary has proposed a penalty of $5,503.00. In this instance the haul truck had an air leak in the braking system. Carroll observed the air gauge dropping at a significant rate and he could clearly hear the leak before the hood of the truck was raised. (Tr. 75-78).
I have found that the Secretary has demonstrated a violation as alleged and, based upon the factors listed above that are common to this citation, including the traffic on the haul roads, the steep grades, the gravel roads that the trucks travel, and the fact that the trucks travel speeds of up to 35 miles per hour, I find that the violation, i.e., the lack of adequate brakes, will result in an accident, which in turn will result in a fatal injury. The violation, including the S&S nature, is affirmed as issued. I assess the penalty proposed by the Secretary of $5,503.00.
v. Citation 8348723
Citation No. 8348723 was issued on January 10, 2012 as non-S&S, with moderate negligence. At hearing, Respondent admitted this violation and agreed to pay the originally proposed penalty. (Tr. 89-90). A penalty of $108.00 is assessed.
vi. Citation 8348725
Citation No. 8348725 was issued on January 10, 2012. Carroll determined that a fatal injury was reasonably likely to occur, that the violation was S&S, that one person was affected, and that the violation was the result of J and H’s high negligence. The Secretary has proposed a penalty of $18,271.00. In this instance, Carroll observed the pressure on the air brakes dropping after pulling over the haul truck for inspection.
Carroll observed the air brake pressure drop 40 pounds in 4 minutes; an amount he considers significant. (Tr. 90-91). There was obviously an air leak which affected the ability of the brakes to function. Like the earlier violations, Carroll found the loss of brake pressure to be a serious violation. In addition to the brake pressure, Carroll found that the rim on the outside tire was slipping, and that the tire was in danger of coming off. (Tr. 91). The marks on the rim indicated to Carroll that the rims had been slipping for some time and led him to mark this citation as “high” negligence. (Tr. 93). He opined that only the “spiders” were holding this outside tire in place and, once that tire slips off, there is nothing to hold the inside tire in place. (Tr. 91-94).
I have found a violation of the mandatory standard and credit Carroll’s testimony that the loss of brake air pressure is likely to lead to an accident given the road conditions and the grades. The accident in turn will lead to a serious or even fatal injury. In addition to the brake problem, the slipping rim adds to the seriousness of the violation and the likelihood of a serious injury. Hence, I find the violation to be S&S. I do not agree however, that the negligence has been shown to be high. There is no mention in the pre-operation book of either the brake condition or the slipping rim. (Tr. 96, 103). While Carroll believes the rim was a problem for some time given the marks he observed, Fannon disagrees. Fannon has four mechanics who work on the haul trucks and he sends them to the scales daily to do a walk around of each truck. He explained that this slipping wheel could not have been in place for very long. (Tr. 105-106). Given the conflicting testimony, I find that the citation is more appropriately designated as moderate negligence. Accordingly, I assess a penalty of $9,000.00
II. PENALTY
The principles governing the authority
of Commission Administrative Law Judges to assess civil penalties de novo for
violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to
the Commission and its judges “authority to assess all civil penalties provided
in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing
penalties to the Secretary. 30 U.S.C. §§
815(a) and 820(a). Thus, when an
operator notifies the Secretary that it intends to challenge a penalty, the
Secretary petitions the Commission to assess the penalty. 29 C.F.R.§ 2700.28. The Act requires that, “in assessing civil
monetary penalties, the Commission [ALJ] shall consider” six statutory penalty
criteria:
[1]
the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the operator’s ability to continue in
business, [5] the gravity of the violation, and [6] the demonstrated good faith
of the person charged in attempting to achieve rapid compliance after
notification of a violation.
30
U.S.C. § 820(i).
I have addressed the penalty for each
citation above and I have relied upon the history of previous violations as
shown in the Secretary’s exhibits. The
history shows that there have been other violations of this standard by the
operator, but given that the only mining activity is hauling coal, it is not
unusual to see the violation of the same standard each time the trucks are
inspected. This is a small operator,
with 15 trucks hauling coal, and a total net income of $90,000 per year. The total assessed penalty of over $80,000.00
would make it difficult for this small operator to continue in business. The gravity and negligence associated with
each violation are discussed above, and I have modified some of the negligence
designations from high to moderate, resulting in a lower penalty than proposed
by the Secretary. The operator has
demonstrated good faith in abating the violation after it was cited. I therefore assess the following penalties:
|
Citation No. |
Assessed Penalty |
|
8348703 |
$334.00 |
|
8348704 |
$9,000.00 |
|
8348705 |
$15,000.00 |
|
8348722 |
$5,503.00 |
|
8348723 |
$108.00 |
|
8348725 |
$9,000.00 |
|
TOTAL |
$38,945.00 |
III.
ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. 820(i), I assess the penalties listed above for a total penalty of $38,945.00 for the citations and orders decided after hearing and those at hearing that Respondent agreed to accept as issued. J and H Enterprises, LLC is hereby ORDERED to pay the Secretary of Labor the sum of $38,945.00 within 30 days of the date of this decision.
/s/
Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution:
Ryan Pardue, U.S. Dept. of Labor, Office of the Solicitor, MSHA Backlog Project, 1999 Broadway, Suite 800, Denver, CO 80202-5708
Jamie Fannon, J and H Enterprises, LLC, Route 2, Box 583, Pennington Gap, VA 24277-4277