FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

CITATION NO. 8404221

On September 17, 2010 at 9:35 a.m., Inspector Edward F. Taylor (“Taylor”) issued Respondent Citation No. 8404221 for an alleged violation of 30 C.F.R. §77.404(a). [1] That standard states, “Mobile 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.” In this citation, Taylor observed the following condition or practice:

When checked the black Mack service truck serial no. R6885T being used in the pit was not being maintained in a safe operative manner. The following conditions were observed when checked.

1. Excessive movement was present in the pitman joint.

2. Excessive movement was present in the off side tie rod joint.

3. The windshield wiper were (sic) not being maintained in operative condition.

This equipment is used in climate (sic) weather and on and off the road. In the event one of theses (sic) joint were to fail the operator could lose control with possible serious injuries occurring to his self (sic) or other. Along with vision being limited in climate (sic) weather. The operator has removed the equipment from service until repaired.

(Government Exhibit 1).[2]

Taylor found that the violation was reasonably likely to lead to an injury and that such injury could reasonably be expected to result in lost workdays or restricted duty. Id. He determined the violation to be S&S and affecting one person. Id. Taylor found Respondent exhibited moderate negligence. Id.

Summary of Testimony

Taylor issued Citation No. 8404221 during a general inspection. [3] (Tr. 21). The inspection started around 7:00 a.m. (Tr. 22). Respondent’s employee, a mechanic, accompanied Taylor. (Tr. 22).

Taylor issued this Citation because there was excessive movement in the pitman joint and in a tie rod joint on the black Mack service truck. [4] (Tr. 24). The pitman joint ties the steering system together. (Tr. 25). Taylor checked for movement by letting the mechanic move the steering wheel and watching the joint for movement greater than 1/8 of an inch. (Tr. 25). This is the standard method. (Tr. 25-26). This truck showed approximately 2 inches of movement in the tie rod and 1.5 inches in the pitman joint. (Tr. 25). Taylor testified that if the joints failed, the hazards would include the loss of steering resulting in a vehicle overturn or meeting oncoming traffic. (Tr. 27). The truck has public and private tags, and drives on steep grades, both on and off road. (Tr. 27, 72). In addition to the issues with the tie rod and pitman joint, Taylor observed that the windshield wipers were not operative. (Tr. 24, 26). The mechanic also observed all of these conditions. (Tr. 29-30). Taylor testified that these conditions could and should have been noticed by the examiner. (Tr. 26).

Taylor noted that the truck was not locked out or tagged out. (Tr. 30-31). The truck was accessible by miners, on the job site, and 500-600 yards from the pit. (Tr. 31). MSHA’s policy requires equipment to be rendered inoperative to be classified as locked out or tagged out. (Tr. 31). This could be done by removing a tire or the battery terminals. (Tr. 31). Here, neither the tire nor the battery was removed and there was no tag on the vehicle. (Tr. 32). Taylor testified that the area where the truck was parked was not “marked off.” (Tr. 64).

Taylor testified that his notes (GX-10, p. 13) indicated that the condition existed at least a few days. (Tr. 26-27). He believed it existed for that amount of time because such excessive movement would take a while to occur. (Tr. 27). Taylor believed this citation was reasonably likely to result in an injury and also that it was S&S because excessive movement could have caused the joint to fall off, resulting in a loss of steering control. (Tr. 28). He testified that there was a reasonable likelihood that an injury of a reasonably serious nature would occur. (Tr. 28). Taylor believed those injuries would most likely be “Lost-Workday” injuries. (Tr. 28). The injuries could be fatal, but this was less likely because Taylor did not believe the joints would fall off. (Tr. 28). Because of the terrain and location where the cited truck was found, Taylor believed only one person, the operator, would be affected by this condition. (Tr. 29). Taylor marked this citation for “Moderate” negligence to be fair because the equipment was recently purchased and Respondent may not have been aware of the condition. (Tr. 28-29). The condition was abated by replacing the joints and having a fuse installed in the wipers. (Tr. 32).

Hansford Hatmaker (“Hatmaker”) testified for Respondent.[5] He explained that Respondent maintained a designated area where it placed all tagged out equipment. (Tr. 77). He noted that it is not necessary to disable the equipment. (Tr. 77). Taking a tire off would cause a repair of an air horn to take three days. (Tr. 77). Tagging out allows equipment to be fixed and returned to service with less work. (Tr. 77). The Mack truck here was tagged out and placed in the correct area. (Tr. 77-78). With respect to service areas, Hatmaker testified that the main shop was 12 miles away but there was a working area on the premises, only 1.5-2 miles away. (Tr. 78).

Discussion & Analysis

According to well-settled Commission precedent, 30 C.F.R. §77.404(a) imposes two duties upon an operator: (1) to maintain machinery and equipment in safe operating condition, and (2) to remove unsafe equipment from service. Peabody Coal Company, 1 FMSHRC 1494, 1495 (Oct. 1979); see also U.S. Steel Mining Company, LLC, 27 FMSHRC 435, 438 (May 2005). “Derogation of either duty violates the regulation.” Peabody Coal Company, 1 FMSHRC at 1495. With respect to the first duty, equipment is maintained in an unsafe operating condition “when a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting corrective action.” Ambrosia Coal & Construction Company, 18 FMSHRC 1552, 1557 (Sept. 1996). With respect to the second duty, the Commission has held that equipment is still in use if it “is located in a normal work area, fully capable of being operated.” Ideal Basic Industries, Cement Division, 3 FMSHRC 843, 845 (April 1981) see also Mountain Parkway Stone, Inc., 12 FMSHRC 960, 963 (May 1990) (equipment was in use when it was “parked in the mine in turn-key condition and had not been removed from service.”) The Commission found that allowing equipment to stay “parked in a primary working area could allow operators easily to use unsafe equipment yet escape citation merely by shutting it down when an inspector arrives.” Ideal Basic Industries, 3 FMSHRC at 845.

With regards to Citation No. 8404221, Taylor testified credibly that the condition of the Mack truck was a hazard warranting corrective action. Taylor testified that the truck showed approximately 2 inches of movement in the tie rod and 1.5 inches of movement in the pitman joint. (Tr. 25). He observed that this condition could cause loss of steering resulting in a vehicle overturning or colliding with oncoming traffic. (Tr. 27). In addition, Taylor testified that the windshield wipers were not operative. (Tr. 24, 26). Clearly, loss of control, a head-on collision, and lack of visibility in a vehicle are hazardous conditions. Respondent presented no evidence to refute Taylor’s testimony. Respondent provided no exhibits and the testimony it offered dealt exclusively with the issue of removal from service. Therefore, the undersigned finds the truck was not maintained in safe operating condition. Under Peabody Coal Company, Respondent failed the first duty imposed by §77.404(a) and therefore violated the standard.

However, even if the Secretary were also required to prove Respondent failed the second duty, the evidence shows the truck was not removed from service. Taylor noted that the truck was neither locked out nor tagged out. (Tr. 30-31). The truck was sitting in an area only 500-600 yards from the pit and in turn-key condition. (Tr. 30-31). Hatmaker testified for Respondent that the truck was placed in a designated area for tagged out equipment. (Tr. 77). However, Taylor testified that this area was not marked. (Tr. 64). A miner, seeing the truck parked in turn-key condition just a few hundred yards from the active pit would have no way of knowing that this truck was not available for use.[6] Therefore, the undersigned holds that the truck was not removed from service, and therefore Respondent violated the second duty of §77.404(a).

Respondent’s violation cited in Citation No. 8404221 was allegedly significant and substantial (“S&S”). In order to establish S&S, the Secretary must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard 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). As already shown, Respondent violated §77.404(a). As discussed, that violation contributed to the hazards of loss of control and lack of visibility in the vehicle. The Commission has recently clarified the third element of Mathies, stating the test “is whether there is a reasonable likelihood that the hazard contributed to by the violation…will cause injury.” Musser Engineering Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); see also Cumberland Coal Resources LP, 33 FMSHRC 2357, 2365-2369 (Oct. 2011). The Commission emphasized that the Secretary need not “prove a reasonable likelihood that the violation itself will cause injury…” Id. There is no question a truck driver could experience injury if his truck lost control and overturned or was involved in, for example, a head-on collision. Finally, it is reasonably likely that the injuries resulting from such an accident would be reasonably serious, perhaps even fatal. As a result, this violation was S&S.

The undersigned finds that the evidence established that this violation was, at least, reasonably likely to result in a lost workday injury for one person. (Tr. 28). Also, the undersigned finds that Respondent exhibited moderate negligence. While Respondent knew, or should have known, of the violative practice, there were mitigating circumstances. See 30 C.F.R. § 100.3(d). Those mitigating factors included the fact that equipment was new, and Respondent may not have closely inspected the equipment or been aware of its condition. (Tr. 28-29).

In light of the above findings, I AFFIRM Citation No. 8404221 as written by Taylor and find that the proposed penalty of $100.00 is appropriate for this violation.

CITATION NO. 8404222

At 9:50 a.m. on the same day, Taylor issued Respondent Citation No. 840422, for an alleged violation of 30 C.F.R. §77.1605(b). That standard states, in pertinent part, “(b) Mobile equipment shall be equipped with adequate brakes...” In this citation, Taylor observed the following condition or practice:

The black Mack service truck serial no. R6885T being used in the pit and on the roads was not being maintained with adequate brakes. When checked an excessive air leak was present in the front rear tandem on the operators side. All of the other five wheel brakes was (sic) working with the low air indicator also working.

(GX-2).

Taylor found that this violation was unlikely to result in injury and that such injury could reasonably be expected to result in no lost workdays. Id. He anticipated the condition would affect one person. Id. Taylor found Respondent exhibited moderate negligence. Id.

Summary of the Testimony

Taylor referred to Citation No. 8404222 (GX-2) for his testimony. (Tr. 32). He issued this citation because there was an excessive air leak in the canister on the front rear tandem of the truck, and braking systems in tandem trucks are solely maintained by air pressure. (Tr. 33). The air must be maintained to ensure the brakes work. (Tr. 33). Here, when the brake pedal was applied, air exited from the adjusting rod on top of the canister. (Tr. 33). This created an unsafe condition that could prevent one braking system from being applied. (Tr. 35). The mechanic observed the condition. (Tr. 34). The truck was not locked out or tagged out. (Tr. 36-37).

On cross examination, Taylor conceded that a truck will not move if the air leak prevents the maxi brake from getting 60 pounds of pressure. (Tr. 65, 72). It does not “kick off” until there is 120 pounds of pressure. (Tr. 65). However, he testified that the small leak here would not have prevented the truck from running. (Tr. 73). With one small leak, it can be possible to build up pressure to the release point and allow the brake to disengage. (Tr. 72-73). It would take excessive air leakage to prevent the pressure from building up to the release point. (Tr. 73).

Taylor noted the gravity of Citation No. 8404222 was “Unlikely,” “Not S&S,” and “No Lost Workdays” because the truck had six independent braking systems and five were working. (Tr. 35-36). Also, there was a low indicator light to give warnings to the operator. (Tr. 35-36). Taylor testified that the hazard could be fatal, but that was unlikely. (Tr. 34-35). Only the operator would be affected. (Tr. 36). He also testified that this violation showed “Moderate” negligence because a hazard could occur when the vehicle was on an incline even if the other five systems were working. (Tr. 36). The condition was abated with the replacement of the canister and the elimination of the leak. (Tr. 37).

Hatmaker testified for Respondent. He explained that unless there was 60 pounds of pressure, the brakes will not release. (Tr. 78). If the air leak was bad enough, the truck could not move. (Tr. 79). This is because of the emergency or maxi-brake. (Tr. 78). Further, the truck was in a tagged out area where they were going to work on it for the other issues. (Tr. 79).

Discussion & Analysis

The Secretary’s evidence established there was an air leak in the black Mack truck’s braking system. (Tr. 33). This condition could have prevented the braking system from being applied, especially on an incline. (Tr. 35-36). Obviously, brakes are only “adequate” when they can be applied. A condition that could prevent the effective use of the brakes on this truck would violate 30 C.F.R. §77.1605(b). Respondent argued that unless the brake was able to reach 60 pounds of pressure, the truck would not be able to move. (Tr. 78). This is apparently a fail safe measure to prevent the truck from starting when the brake pressure is low. Taylor agreed with that assessment. (Tr. 65, 72). In essence, the parties agreed that the brakes can be adequate when the proper amount of pressure is present or still be effective to prevent movement if they contain 60 pounds of pressure or less. At a pressure level greater 60 pounds but less than the proper level, the truck may be able to start but lack the ability to provide adequate braking. Taylor credibly testified that that the small leak found here would not have prevented the truck from starting. (Tr. 72-73). Essentially, he established that the cited brake had a hazardous middle amount of air pressure. Respondent presented no evidence to counter Taylor’s credible explanation regarding the size of the leak. Respondent did not even assert that the pressure here was less than 60 pounds or at the proper level. Therefore, the undersigned finds that the truck was not provided with adequate brakes in violation of 30 C.F.R. §77.1605(b).

The undersigned finds that it was possible, but unlikely, that this condition could result in a runaway truck that could cause a no lost workday injury to one person (Tr. 35-36). Also, the undersigned finds that Respondent exhibited moderate negligence. (Tr. 36). While Respondent knew, or should have known, of the violative practice, there were mitigating factors including the fact that five of the six brakes were in good working condition and the truck was equipped with a low pressure indicator light. (Tr. 35-36).

In light of the above findings, I AFFIRM Citation No. 8404222 as written by Taylor and find that the proposed penalty of $100.00 is appropriate for this violation.

CITATION NO. 8404223

One hour later on the 17^th at 10:50 a.m., Taylor issued Respondent Citation No. 8404223, also for an alleged violation of 30 C.F.R. §77.404(a). In this citation, Taylor observed the following condition or practice:

When checked the operators side Bucket safety latch for the Komatsu HM 400 rock truck company no 203 being used in the pit was not being in a safe usable condition. When checked the safety bracket has been hit closing the holes preventing the safety pin from entering. Theses (sic) pins are used to hold up the extremely heavy bucket when work is needed and preformed (sic) in this area. The off side safety latch was in working order.

(GX-3).

Summary of the Testimony

Taylor issued Citation No. 4044223 (GX-3) because the safety pin on the bucket of the Komatsu 400 truck had been dislocated such that the safety latch would not couple.[7] (Tr. 37). In this condition, the bucket would not be maintained solidly and would not be safe for a person underneath. (Tr. 37). The safety latch and pin allow the bucket to be kept in a raised position so a mechanic can work underneath. (Tr. 38-39). The safety latch, or bracket, consists of two mechanisms that line up so a pin can be run through them to prevent the bucket from lowering. (Tr. 39). There are two safety latches on a bucket because of the weight. (Tr. 41).

Taylor referred to his notes (GX-8, p. 8) to describe the condition. (Tr. 39). The first paragraph of page 8 stated “When I checked, the entrance holes had been mashed together with a torch taken to them to allow the bed to raise.” (Tr. 39-40). This meant that the two brackets on the outer side had been pinched together and the torch had been used to relocate the bracket in an operable position. (Tr. 40). This is not the proper way to fix the safety latch, but it allowed it to be raised and lowered. (Tr. 40-41). Taylor pointed out this condition to the mechanic but he did not know why they had torched the pieces rather than replacing the safety pin. (Tr. 42-43).

It is possible to use wood blocks when repairing the safety latch, but Taylor did not see any. (Tr. 41, 44, 74). If Respondent used blocks, they would have been close to the end pin on the back of the bucket. (Tr. 41). Blocks would function in the same way as the safety latch. (Tr. 41). However, even if blocks had been used, he still would have issued the citation, because the equipment was not being maintained safely. (Tr. 41-42). Taylor conceded that eight-by-eight blocks would be sufficient because they catch both sides rather than one. (Tr. 66). It is possible that at the time of the citation he discussed blocks with Hatmaker, but he did not recall. (Tr. 74).

Taylor also testified that at the time of the citation, the equipment was on the side of the road and available for use. (Tr. 42). It was not tagged out or locked out. (Tr. 42).

The safety hazard associated with this condition is that the remaining pin on the bucket could give way causing injury. (Tr. 43). Taylor marked the event as “Unlikely” and “No Lost Workdays” because one pin may have held the bucket up and Respondent may have been using wood. (Tr. 43). Only a mechanic under the bucket would be affected. (Tr. 44). Taylor believed Respondent exhibited “Moderate” negligence because one latch was functional and Respondent may have been using blocks. (Tr. 44). The condition was abated when a new latch was installed. (Tr. 44).

Hatmaker testified for Respondent. He asserted he had 50 years of experience in mining working in the pit area and that he was knowledgeable with respect to trucks and equipment. (Tr. 79). He believed the eight-by-eight block was safer than the pins because it catches both sides of the bed, rather than just one. (Tr. 79-80).

Discussion & Analysis

Citation No. 8404223 was issued for a violation of 30 C.F.R. §77.404(a), the same standard discussed above with respect to Citation No. 8404221. The case law cited in that discussion is directly applicable here. Taylor testified credibly that the condition of the Komatsu HM 400 rock truck was a hazard warranting corrective action. His testimony established that a safety latch assembly on the bucket of the machine was broken. (Tr. 37). He testified that rather than replacing the missing safety pin, Respondent had improperly “mashed” the holes in the bracket together with a torch. (Tr. 39-40, 43). His testimony also established that this condition would present a hazard to a person working under the bucket. (Tr. 37). Hatmaker testified that an eight-by-eight wooden block was used to support the bucket. (Tr. 79). However, Hatmaker presented no evidence beyond testimony to establish that the blocks were present. The undersigned credits Taylor’s testimony that no such blocks were present. More importantly, Taylor testified that even if wooden blocks were used a citation would have been warranted. (Tr. 41-42). Therefore, regardless of whether there were blocks, the undersigned holds that the truck was not maintained in a safe condition. Respondent failed the first duty imposed by §77.404(a) and therefore is in violation of the standard. Furthermore, the evidence established that the truck was not removed from service. (Tr. 42). Thus, Respondent also violated the second duty of §77.404(a).

The undersigned finds that it was possible, but unlikely, the bucket could fall causing an injury to one person. (Tr. 43). Also, the undersigned finds that Respondent exhibited moderate negligence. While Respondent knew, or should have known, of the violative practice, there were mitigating factors including the fact that Respondent may have been using blocks and been unaware that doing so was a violation. (Tr. 44).

In light of the above findings, I AFFIRM Citation No. 8404223 as written by Taylor and find that the proposed penalty of $100.00 is appropriate for this violation.

CITATION NO. 8404224

Next on the morning of September 17, 2010, Taylor issued Respondent Citation No. 8404224, for an alleged violation of 30 C.F.R. §77.404(a). In this citation, Taylor observed the following condition or practice:

The Caterpillar 330 C1 excavator being observed used in the open pit was not being maintained with working window shield wipers. When checked the wipers failed to perform.

(GX-4).

Summary of Testimony

Taylor issued Citation No. 8404224 (GX-4) because a 330 Cl-excavator’s windshield wipers did not function. (Tr. 45, 67). Respondent’s mechanic agreed that the wipers were not working. (Tr. 46). If this equipment was used in inclement weather and on a steep incline the lack of working wipers could result in a hazard: the truck overturning. (Tr. 45-46). The excavator was not locked out or tagged out and was available for use; although not in use at the time, an operator was nearby moving equipment around. (Tr. 47).

Taylor noted the gravity Citation No. 8404224 was “Unlikely,” “Not S&S,” and “No Lost Workdays” because the weather that day was clear. (Tr. 46). He believed only the operator would be affected. (Tr. 46-47). Taylor marked this citation as “Low” negligence because the fuse had blown and that could have happened at any time. (Tr. 47). The citation was terminated when a new fuse was installed by the mechanic. (Tr. 47, 67-68).

Hatmaker again testified for the Respondent. He noted that the condition was corrected by replacing a fuse in the windshield wiper. (Tr. 80). He opined that it is difficult to keep the various moving pieces working, but that Respondent tries to comply. (Tr. 80). Hatmaker believes that the goal of inspection is to be helpful and fix problems, not just about money. (Tr. 80).

Discussion & Analysis

Citation No. 8404224 was issued for a violation 30 C.F.R. §77.404(a), the same standard discussed above with respect to Citation No. 8404221. The case law cited in that discussion is again directly applicable here. Taylor testified credibly that the 330 Cl-excavator’s windshield wipers did not function and, as a result, were a hazard warranting corrective action. (Tr. 45, 67). Specifically, if used in inclement weather the faulty windshield wipers could cause the driver to lose visibility in the cab and the truck could overturn. (Tr. 45-46). Respondent did not present evidence that in any way refuted Taylor’s testimony. Instead, Hatmaker simply testified that the condition was quickly abated. (Tr. 79). As that argument is immaterial with respect to the violation occurred, the undersigned finds that Respondent failed the first duty imposed by §77.404(a). Furthermore, the evidence established that the truck was not removed from service. (Tr. 47). Therefore, Respondent violated the second duty imposed by §77.404(a).

The undersigned finds that it is possible, but unlikely, this violation could cause a no lost workday injury to one person as a result of lost visibility. (Tr. 46-47). Similarly, the undersigned finds Respondent exhibited low negligence. While Respondent knew, or should have known, of the violative practice, there were considerable mitigating factors including the fact that the defective wiper was caused by a blown fuse and could have occurred at any time. (Tr. 47).

In light of the above findings, I AFFIRM Citation No. 8404224 as written by Taylor and find that the proposed penalty of $100.00 is appropriate for this violation.

CITATION NO. 8404225

At 7:50 p.m. on September 17^th, Taylor issued Respondent Citation No. 8404225 for an alleged violation of 30 C.F.R. §62.130(a). That standard states:

The mine operator must assure that no miner is exposed during any work shift to noise that exceeds the permissible exposure level. If during any work shift a miner's noise exposure exceeds the permissible exposure level, the mine operator must use all feasible engineering and administrative controls to reduce the miner's noise exposure to the permissible exposure level, and enroll the miner in a hearing conservation program that complies with §62.150 of this part. When a mine operator uses administrative controls to reduce a miner's exposure, the mine operator must post the procedures for such controls on the mine bulletin board and provide a copy to the affected miner.

In this citation, Taylor observed the following condition or practice:

Based upon the results of an MSHA full shift survey taken on 9/17/2010, the permissible exposure level of 132 percent has been exceed on the caterpillar D9H dozer serial no. 90B5838, operator, (368) in the 001-0 working pit. The results obtained from a personal noise dosimeter showed a PEL dose of 152 percent. This miner is enrolled in a hearing conservation plan and was wearing hearing protection (ear plugs). Management will implement all feasible administrative and engineering control to reduce the noise exposure and protect the health of the miner.

(GX-5).

Summary of Testimony

Taylor issued Citation No. 8404225 (GX-5) because a full noise survey revealed one piece of machinery exceeded the permissible exposure level (“PEL”) dose. (Tr. 48, 52). The limit is 132% and this piece of equipment exceeded 152%. (Tr. 48, 52). The equipment is tested by installing a dosimeter on an employee or in his compartment within 36 inches of his area. [8] (Tr. 52). The microphone here was placed on the operator’s lapel. [9] (Tr. 52, 53, 70). The equipment is supposed to stay with the miner at all times. (Tr. 53). The miner may move the dosimeter; the test is still accurate. (Tr. 53-54). Taylor did not know whether the operator was using the truck during the entire survey. (Tr. 57). He was not required to monitor the equipment for the entire duration of the survey. (Tr. 57). He was only required to check the device twice a shift to be sure it was operating properly. (Tr. 57). He did so and both times the equipment was being operated and the dosimeter was working. (Tr. 57-58, 74-75). At no time was the equipment locked down and tagged out, it was operating. (Tr. 57).

The hazard associated with this violation would be inner eardrum damage; however, Taylor considered 152% to be a low percentage. (Tr. 56). Further, the operator of the equipment was provided with ear plugs and/or ear protection and as a result, Taylor cited this violation as “Unlikely” and “Not S&S.” (Tr. 56). This citation was marked “No Lost Workdays” because the operator had the opportunity to wear ear plugs and he was not enrolled in a hearing protection plan. (Tr. 56). The only person affected was the operator. (Tr. 56-57). Taylor found Respondent exhibited “Moderate” negligence because of the low PEL and the fact that the operator was wearing ear plugs. (Tr. 57). The citation was abated when a later noise survey was found compliant. (Tr. 58).

Hatmaker testified for the Respondent. The maximum decibel level is 85. (Tr. 81). A gun blast is about 125 decimal points while regular traffic is around 85. (Tr. 81). Respondent checked the noise level every day. (Tr. 81). Hatmaker had never seen a piece of equipment get up to 132%. (Tr. 81-82). He believed that the meter was mis-calibrated or was misread because the dosimeter was set on the console. (Tr. 82). This was not the inspectors fault, but he should have checked to see if something was wrong. (Tr. 82). Hatmaker placed a microphone on the employee after the citation and did not have any problems with the noise level. (Tr. 82).

Discussion & Analysis

The evidence found credible reveals that Respondent’s equipment exceeded the permissible noise limit. (Tr. 48, 52). Taylor tested Respondent’s equipment and found that the caterpillar dozer had a PEL dose of 152% when the limit is 132%. (Tr. 48, 52). Hatmaker testified that he believed that the dosimeter was mis-calibrated or read incorrectly because it sat on the console. (Tr. 82). However, he presented no evidence to support this theory. He just asserted that the survey was incorrect for some reason. Taylor credibly testified that the dosimeters were properly calibrated and that he checked them twice during the survey, as is required, to ensure they were working properly. (Tr. Tr. 49-51, 57-58, 74-75). Hatmaker also testified that he re-tested the employee after Taylor’s survey and found that the equipment did not exceed permissible limits. (Tr. 82). Leaving aside the fact that Hatmaker did not testify as to whether his equipment was properly calibrated, it is entirely possible that his follow-up test showed a lower PEL dose. However, that does not change the results of MSHA’s official noise survey; the equipment was found to exceed the PEL dose on the full-shift test. Therefore, the undersigned finds that the caterpillar dozer exceeded the permissible PEL dose and, as a result, Respondent violated 30 C.F.R. §62.130(a).

The undersigned finds that it is possible, but unlikely, that this condition could result in inner ear drum damage causing a no lost workdays injury to one person. (Tr. 56-57). The likelihood was lessened because the employee was wearing earplugs. (Tr. 56). Also, the undersigned finds that Respondent exhibited moderate negligence. While Respondent should have known of the violative practice, there were mitigating factors including the fact that the operator was wearing earplugs and the equipment only marginally exceeded the permissible limits. (Tr. 57).

In light of the above findings, I AFFIRM Citation No. 8404225 as written by Taylor and find that the proposed penalty of $100.00 is appropriate for this violation.

ORDER

Respondent is ORDERED to pay civil penalties in the total amount of $500.00 within 30 days of the date of this decision.[10]

/s/ Kenneth R. Andrews

Kenneth R. Andrews

Administrative Law Judge

Distribution:

Hansford Hatmaker, Triple H Coal, LLC, 100 Memorial Drive, Jacksboro, TN 37757

Kanisha R. LaRoche, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forysth Street, SW, Room 7T10, Atlanta, GA 30303

[1] Taylor testified at the hearing. His testimony included a brief outline of his work experience: At the time of the inspection at issue, Taylor had worked for MSHA for around 12 years. (Transcript 17-18) (Hereinafter the transcript will be cited as “Tr.” followed by the page number). He had over 38 years of experience as a supervisor on underground and surface equipment. (Tr. 18-19). He was a service specialist for three years and a dust and noise specialist for two. (Tr. 19). His duties included inspecting service and underground mining equipment. (Tr. 19). Taylor has completed around 500 inspections on equipment. (Tr. 30).

[2] Hereinafter citations to the Government’s Exhibits will be cited as “GX.”

[3] A general inspection involves examination of all the equipment, the property, the records, and all items required under the code of federal regulations to be obtained. (Tr. 21-22).

[4] The black Mack service truck was used for maintenance and hauling diesel and lubricants to equipment at the job site. (Tr. 24, 64, 71). It was taken back and forth from the shop. (Tr. 71). The shop was 12-14 miles from this location, off of mine property. (Tr. 71-72).

[5] Hatmaker’s testimony included a brief outline of his work experience: He is a certified inspector. (Tr. 76). He attended the same school as Taylor and received state and federal certification. (Tr. 76). He taught safety classes for seven years. (Tr. 76). These classes discuss safe working areas and accident prevention. (Tr. 76-77).

[6] Commission cases have differed on whether “tagging out” equipment is sufficient to remove it from service. See e.g. Eastern Associated Coal Corp., 1 FMSHRC 1473, 1474 (Oct. 1979) (“We hold that tagging the jitney was not sufficient to withdraw the jitney from service because the danger tag did not prevent the use of the defective piece of equipment.”) and Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001) (holding that a standard applied “as long as the cited equipment is not tagged out of operation and parked for repairs.”). However, the undersigned finds that the truck here was not tagged. Further, it might be true that the area where the truck was sitting was used by Respondent for repair work. However, there was no marker to indicate this was a repair area and that equipment there was unavailable for use. Therefore, the area was not “tagged” either.

[7] Occasionally in the testimony the “bucket” of the Komatsu 400 truck is referred to as a “bed.” At the hearing, Hatmaker stated, “We are calling this a bucket. It is actually just a bed for a 400 Komatsu that raises up and dumps and so forth.” (Tr. 66). The parties use the terms interchangeably and “bucket” and “bed” should be understood to mean the same thing.

[8] MSHA calibrated the dosimeters to the dBA standards before they were installed. (Tr. 49). To calibrate the equipment, a noise meter microphone was placed in a calibrator and it set to the standard. (Tr. 50). Calibration occurs before and after each use and a factory calibration occurs once a year. (Tr. 51). The calibration showed they were working properly. (Tr. 50-51).

[9] Hatmaker was not present when Taylor put the microphone on the operator’s lapel. (Tr. 56).

[10] Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390