FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
721 19th STREET,
SUITE 443
DENVER, CO 80202-2536
303-844-5267/FAX 303-844-5268
May
6, 2013
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SECRETARY OF LABOR, v. |
: : : : : : : : : |
CIVIL PENALTY PROCEEDING Docket No. CENT 2011-1229-M
Durham Mine & Mill
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DECISION
Appearances: Courtney
Przybylski, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Gary Sisk, Gary Sisk Drilling Co., Inc., Odessa, Missouri, for
Respondent.
Before: Judge Manning
This case is before me upon a petition for
assessment of civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration (“MSHA”), against Gary Sisk Drilling Co.,
Inc., (“Respondent”) pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine
Act”). The parties introduced testimony
and documentary evidence at a hearing held in Kansas City, Missouri, and performed
closing arguments.
Gary
Sisk Drilling is a drilling contractor that works at mines and other facilities
as an independent contractor. A total of
nine section 104(a) citations were adjudicated at the hearing. The Secretary proposed a total penalty of $3,029.00
for these citations.
I. BASIC
LEGAL PRINCIPLES
A. Significant
and Substantial
The
Secretary alleges that the violations discussed below were of a significant and
substantial (“S&S”) nature. An S&S violation is a violation “of such nature as
could significantly and substantially contribute to the cause and effect of a .
. . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). 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). In order to establish the S&S nature of a
violation, the Secretary 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 will be of a reasonably serious nature.” Mathies
Coal Co., 6 FMSHRC
It
is the third element of the S&S criteria that is most difficult to apply.
The element is established only if the Secretary proves “a reasonable
likelihood the hazard contributed to will result in an event in which there is
an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985). An S&S determination must be based upon the particular facts
surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988)
(quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)).
“The Secretary need not prove a reasonable likelihood that the violation itself
will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering,
Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)).
The
S&S nature of a violation and the gravity of a violation are not
synonymous. The Commission has pointed out that the “focus of the seriousness
of the violation is not necessarily on the reasonable likelihood of serious
injury, which is the focus of the S&S inquiry, but rather on the effect of
the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550
(Sept. 1996). The Commission has
emphasized that, in accordance with the language of section 104(d)(1), 30
U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and
effect of a hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC
at 1575.
B. Negligence
The
Secretary defines conduct that constitutes negligence under the Mine Act as
follows:
Negligence
is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm. Under the Mine Act, an operator is held to a high standard of care. A
mine operator is required to be on the alert for conditions and practices in
the mine that affect the safety or health of miners and to take steps necessary
to correct or prevent hazardous conditions or practices. The failure to
exercise a high standard of care constitutes negligence.
30 C.F.R. § 100.3(d).
II.
DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
A.
Citation No. 8660312
On May 12, 2011,
MSHA Inspector Christopher Willett issued Citation No. 8660312 under section
104(a) of the Mine Act, alleging a violation of section 57.14206(b) of the
Secretary’s safety standards. The
citation states, in part, “[t]he bucket of the Cat 973 track loader was not
[lowered] to the ground or blocked from movement while unattended.” (Ex. G-50).
Inspector Willett determined that an injury was reasonably likely to
occur and that such an injury could reasonably be expected to be fatal. Further, he determined that the violation was
S&S, the operator’s negligence was moderate, and that one person would be
affected. Section 57.14206(b) of the
Secretary’s regulations requires that “[w]hen
mobile equipment is unattended or not in use, dippers, buckets and scraper
blades shall be lowered to the ground. Other movable parts, such as booms,
shall be mechanically secured or positioned to prevent movement which would
create a hazard to persons.” 30 C.F.R. §
57.14206(b). The Secretary proposed a
penalty of $243.00 for this citation.
1. Summary
of the Evidence
Inspector
Christopher Willett testified that he issued Citation No. 8660312 as a
violation of section 57.14206(b) because the bucket of a 952 Cat loader was
unattended and neither lowered to the ground nor blocked from movement. (Tr. 22).
Inspector Willett
designated Citation No. 8660312 as S&S because it was reasonably likely
that the bucket could fall onto a miner.
(Tr. 26-27). A mechanical failure
or blown hose could cause the bucket to drop.
(Tr. 27). The inspector testified
that the bucket was reasonably likely to injure a miner because footprints and
the removal of the grill of the Cat showed him that people had worked
underneath the bucket. (Tr. 26). The bucket could cause fatal crushing
injuries. (Tr. 28). The bucket had been in a raised position for about
one hour. (Tr. 27).
The inspector determined
that the violation was the result of the operator’s moderate negligence. The cited condition was obvious and
respondent provided Inspector Willett with no mitigating factors. (Tr. 30-31).
The inspector believed that the operator should have known of the cited
condition. (Tr. 30).
The inspector
testified that a rod lock, if installed properly, would prevent the bucket
assembly from falling, but that it required “a U bolt or a clamp to keep it in
place[.]” (Tr. 34). Inspector Willett did not testify regarding
the specifics of the rod lock that was installed on the Cat. He also stated that placing something capable
of supporting the bucket beneath it, which must be able to support 1.5 times
the weight of the bucket according to SAE[1]
standards, would be acceptable. (Tr.
37).
Ron Medina, an
engineer for MSHA’s technical support division who specializes in mobile
equipment, testified that the bucket on the Cat was not safely supported. (Tr.
55). He reviewed photographs of the
equipment, the manufacturer’s information for the equipment, and the pertinent
SAE standard, SAEJ38. (Tr. 49, 56).
Medina testified that the rod lock was not adequate to remove the hazard
of the bucket crushing someone because it was not secured with a pin or U-bolt. (Tr. 55).
Medina did not perform any
calculations upon the rod lock to see if it would sufficiently support the
arms. (Tr. 57). He also testified that while the arms may be
supported, the bucket was not in the proper position and could swing down and
potentially injure someone. (Tr. 59).
Gary Sisk, owner
of Sisk Drilling, testified that a rod lock prevented the bucket of the Cat
from falling. (Tr. 70). Sisk testified that he made the rod lock
himself and that it did not have a pin, but had worked for a long period of
time. (Tr. 76). He stated that if the bucket were to tilt
down, it would be between 5 and 6 feet from the ground. (Tr. 68).
Sisk testified that the footprints referenced by Willett were his own,
but when he made the prints, a Hitachi was in place underneath the bucket,
which fully supported the bucket. (Tr.
71). Sisk stated that he made the
decision to leave the bucket in the air while he went to get parts. (Tr. 77).
He left the bucket pointing up because he worried debris would fall from
the bucket if he did not. (Tr. 72).
2. Discussion
and Analysis
I
find that Citation No. 8660312 represented a violation by Respondent of section
57.14206(b). Both Sisk and Inspector Willett
agree that the equipment was left unattended with the bucket in the air, which
is a violation of the standard on its face.
Section 57.14206(b) specifically states that booms and other pieces of
equipment can be mechanically secured or strategically positioned, but that
buckets must be lowered to the ground. Nothing
in section 57.14206(b) excuses a raised bucket on an unattended piece of
equipment. Sisk admitted, furthermore,
that the bucket could fall to within 5 to 6 feet from the ground, even if the arms
were supported. A bucket falling that
close to the ground could easily injure a miner. Although Sisk testified that a vehicle prevented
the bucket from falling at one time, that vehicle was no longer present when
Inspector Willett issued the citation. Respondent’s
failure to lower the bucket of a track loader created the hazard of a miner
being crushed by the bucket and violated section 57.14206(b).
I find that
Citation No. 8660312 was not S&S, however, because an injury was not
reasonably likely to occur as a result of the condition cited. Although the presence of the rod lock did not
negate the hazard, it did make the hazard less likely because it supported the
arms of the equipment. A rod lock is
fastened to the cylinder of the arms of equipment to keep the arms from falling
down mechanically when the equipment is powered down. Although Medina testified that the rod lock
required a pin or U-lock, he did not supply proof or testimony that it was
reasonably likely to fail without one.
He also did not inspect or test the rod lock. It was still possible that the bucket could
fall, but the Secretary did not present evidence to show that the bucket was
reasonably likely to fall or that if the bucket fell it was reasonably likely
to strike a miner. Inspector Willett testified
that the footprints under the bucket showed an injury to a miner was reasonably
likely, but he did not explain why. The simple presence of footprints does not
warrant an S&S finding. The
conditions underlying the violation were not reasonably likely to cause an
injury and therefore the citation was not S&S.
I find that the violation was the
result of Respondent’s moderate negligence. A penalty of $100.00 is appropriate for this
violation.
B.
Citation No.
8660305
On July 12, 2011
Inspector Willett issued Citation No. 8660305 under section 104(a) of the Mine
Act, alleging a violation of section 57.14207 of the Secretary’s safety
standards. The citation states:
The GMC pick-up was parked unattended on a 2 to 3
percent grade without the parking break set [and] the wheels [were not] chocked
or turned into a bank. Miners were
working downhill from the parked truck.
This exposes a person to the hazard of being over traveled by a parked
vehicle.
(Ex. G-1). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that one person would be affected. Section 57.14207 of the Secretary’s
regulations requires that “[m]obile equipment
shall not be left unattended unless the controls are placed in the park
position and the parking brake, if provided, is set. When parked on a grade,
the wheels or tracks of mobile equipment shall be either chocked or turned into
a bank or rib.” 30 C.F.R. § 57.14207. The Secretary proposed a penalty of $243.00
for this citation.
1. Summary
of the Evidence
Inspector
Willett testified that he issued Citation No. 8660305 as a violation of section
57.14207 because a truck was parked on a grade without an activated parking
brake or chocked wheels. (Tr. 79). The inspector estimated the grade to be two
to three percent. (Tr. 87). He also testified that if the truck were
parked so that it did not move when placed in neutral then it would not be
cited, but he did not test the cited vehicle.
(Tr. 93).
Inspector
Willett designated the citation as S&S because it was reasonably likely to
cause a serious injury. The inspector
viewed men working downhill from the front of the truck and he worried that
these men could be “over-traveled” by the vehicle. (Tr. 87).
The inspector testified that it is common for fatalities to occur under
these circumstances due to crushing injuries, making section 57.14207 one of
MSHA’s “Rules to Live by” (Tr. 88-89;
Ex. G-6).
Inspector
Willett determined that the violation was the result of Respondent’s moderate
negligence. The condition was obvious
and the operator should have known of it.
(Tr. 91). Sisk told the inspector
that he believed placing the vehicle in park was satisfactory, which the
inspector viewed as a mitigating circumstance.
(Tr. 90-91).
Sisk
testified that the vehicle was parked in a rut and did not move when he placed
it in neutral before parking it. (Tr.
95). The soft dirt made the vehicle less
likely to roll, according to Sisk. (Tr.
98). Sisk testified that a crane was four
feet in front of and downhill from the vehicle. The crane would not allow the
truck to roll into anyone if it rolled forward down the hill because the
workers were on top of the crane. (Tr.
95-96). Sisk admits that the vehicle was
parked on a slight grade, was not chocked, and did not have the parking break
set. (Tr. 96-97).
2. Discussion
and Analysis
I
find that Citation No. 8660305 was a violation of section 57.14207. Sisk admits that he left a vehicle without
activating its parking brake, chocking its wheels, or turning its wheels into a
bank or rib. Sisk’s claim that he tested
the vehicle to see if it would roll while in neutral is immaterial under
section 57.14207. I also credit
Inspector Willett’s testimony that the vehicle was not secured by being parked
in a rut. Regardless of a vehicle’s
ability to roll, section 57.14207 requires that unattended vehicles have
activated parking brakes. The cited
vehicle did not. The cited vehicle,
furthermore, was on a grade without the tires being chocked or turned into a
bank, which on its own violates the standard.
Citation No. 8660305 violates both portions of section 57.14207.
I
find that the citation was S&S. MSHA
classifies section 57.14207 as one of MSHA’s “Rules to Live by” because many
miners suffer injuries and even fatalities due to violations of that section. In this situation, furthermore, the vehicle
was on a grade with miners working in front of it. The fact that the miners were working on the
top of the crane is immaterial, as they must eventually descend. Although the truck was only 4 feet from the
crane, a miner could be crushed between the crane and the truck. If a vehicle were to crush a miner, a
fatality would be likely. I credit the
inspector’s testimony that no rut existed that was sufficient to detain the
truck. I find that a serious injury or
even fatality is reasonably likely as a result of the cited condition.
Citation
No. 8660305 was the result of Respondent’s moderate negligence. Respondent should have known of the violation
because it was obvious and section 57.14207 is a rule to live by. A penalty of $250.00 is appropriate for this
violation.
C.
Citation No.
8660306
On July 12, 2011,
Inspector Willett issued Citation No. 8660306 under section 104(a) of the Mine
Act, alleging a violation of section 57.14103(b) of the Secretary’s safety
standards. The citation states, in part:
The window in the door of the Crane was broken and
missing pieces of glass. The operator of
the crane access[es] through this door when the crane is operated. The door on the crane is a bi fold
style. This exposes the crane operator
to the hazard of being cut by the broken window while entering or exiting the
crane.
(Ex. G-17). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to result in lost workdays or restricted duty. Further, he determined that the violation was
S&S, the operator’s negligence was moderate, and that one person would be
affected. Section 57.14103(b) of the
Secretary’s safety standards requires that “[i]f damaged windows obscure visibility necessary for safe operation, or
create a hazard to the equipment operator, the windows shall be replaced or
removed.” 30 C.F.R. § 57.14103(b). The Secretary proposed a penalty of $100.00
for this citation.
1. Summary
of the Evidence
Inspector
Willett issued Citation No. 8660306 as a violation of 57.14103(b) because the
crane window was broken on a bi-fold door.
(Tr. 104). The shards of glass
looked sharp to the inspector. (Tr.
105).
Inspector Willett
issued the citation as S&S because it was reasonably likely that someone
could sustain an injury as a result of the cited condition. The walkway in the crane is adjacent to the
broken window and a miner usually pushes the center of the door below the
window to open the door. (Tr. 104). The door does, in fact, have a handle for the
purpose of opening it from the inside and the broken glass was not near the
miner while exiting the vehicle. (Tr.
111-13). The 1/4 inch shards of glass
could result in “minor cuts” that could lead to lost workdays or restricted
duty by preventing a person from performing normal activities. (Tr. 108).
It is possible the glass could cause cuts requiring stitches. Id.
Inspector
Willett determined that the violation was the result of the operator’s moderate
negligence. The inspector testified that
Sisk admitted to knowing that this hazard existed. (Tr. 106).
Inspector Willett believed it was a mitigating factor that Sisk did not
know that the cracked window was a hazard.
(Tr. 108).
Sisk
does not believe that the cited condition constituted a violation of the
standard. It was inconvenient for a
person operating the vehicle to contact the glass to open the door and the door
could easily be opened by using the handle or by pushing on other parts of the
door. (Tr. 119). The condition existed for several
years. (Tr. 120). Sisk testified that the door is almost always
open, making its window even less likely to be a hazard. (Tr. 123).
2. Discussion
and Analysis
I find that Citation
No. 8660306 was a violation of section 57.14103(b). Although Sisk testified that the bi-fold door
is opened by pushing upon other parts of the door, it can also be opened by
pushing upon the glass. Although the
operator instructs employees to use the handle to open the door, “[e]ven a skilled employee may suffer a lapse of
attentiveness, either from fatigue or environmental distractions.” Great
Western Electric Co., 5 FMSHRC 840, 842 (May 1983). The broken glass posed the hazard of cutting
a miner. The 1/4 inch exposed shards of
glass referenced by Inspector Willett as well as captured in the photograph of
the window could clearly cut a miner.
(Ex. G-19 at 1). The experience
and knowledge of workers is not a legal defense to any violation and does not
change the fact that glass can cut them if they contact it.
I find that Citation No. 8660306 was not S&S. The broken glass did not obstruct the view of
the operator. Although it was possible
that the broken glass could cause injury, a miner was not reasonably likely to
sustain a serious injury as a result of the hazard. Although the broken glass was located on the
door, I agree with Sisk’s testimony that it was unlikely that miners would
contact the cracked area as the photograph shows that the door handle is some
distance from the cracked window on the other half of the bi-fold door. Id.
at 2. If a miner were to receive a cut
from the cracked window, furthermore, I find that the thin cracks and small
shards would not cause a lost time injury.
Id. at 1. A minor
cut would be the most likely injury that would only need first-aid treatment.
I find that the violation
was the result of Respondent’s moderate negligence. The cited violation was obvious and the
operator should have known of its existence.
A penalty of $100.00 is appropriate for this violation.
D.
Citation No.
8660307
On July 12, 2011
Inspector Willett issued Citation No. 8660307 under section 104(a) of the Mine
Act, alleging a violation of section 57.14132(b)(1) of the Secretary’s safety
standards. The citation states:
The Sterling Boom truck with a restricted view to
the rear was not supplied with a back-up alarm.
This truck is used in areas where other miners are working. This exposes a person to the hazard of being
over traveled without warning.
(Ex. G-21). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that one person would be affected. Section 57.14132(b)(1) of the Secretary’s
regulations requires that “[w]hen the operator
has an obstructed view to the rear, self-propelled mobile equipment shall have
. . . an automatic reverse-activated signal alarm . . . a wheel mounted bell
alarm…a discriminating backup alarm . . . or an observer[.]” 30 C.F.R. § 57.14132(b)(1). The Secretary proposed a penalty of $243.00
for this citation.
1. Summary
of the Evidence
Inspector
Willett testified that he issued Citation No. 8660307 as a violation of section
57.14132(b)(1) because a sterling boom truck had a restricted rear view and
lacked a back-up alarm. (Tr. 128). The boom restricted the operator’s view, as
did a welder and his torch cage that were positioned on the deck of the vehicle. (Tr. 130; Ex. G-22). The inspector did not see a spotter being
used and Sisk told him that a spotter was not used. (Tr. 131).
Inspector
Willett designated the citation as S&S.
The inspector testified that the cited condition was reasonably likely
to cause an injury because the truck was used in the presence of
employees. (Tr. 132-33). Inspector Willett expected fatal crushing
injuries to occur as a result of the cited hazard. (Tr. 133).
Inspector Willett admitted that the tires of the vehicle were chocked when
he issued the citation. (Tr. 135).
Citation
No. 8660307 resulted from the operator’s moderate negligence according to the
inspector. The operator should have
known that a back-up alarm was missing, but did not believe that the alarm was
required. (Tr. 133).
Sisk
testified that Respondent owned the cited vehicle for three years and always
used spotters to operate the vehicle, even in its own shop. (Tr. 138).
When the citation was issued, the vehicle was not moving. Although it moves from one site to another,
it is typically stationary and occupies only one location at each work site. (Tr. 140-41).
2. Discussion
and Analysis
I find that Respondent did not
violate section 57.14132(b)(1) because the Secretary did not fulfill his burden
to prove that Respondent backed up the cited piece of equipment without using a
back-up alarm or a spotter, i.e., an
observer. To fulfill his burden, the
Secretary must show that the operator backed up the cited equipment without either
a back-up alarm or a spotter. See River Cement Co., 10 FMSHRC 1027, 1029-30 (Aug.
1988) (ALJ). The inspector
did not see the equipment back up at any time and the equipment was not moved
the day of the inspection. (Tr.
136). Although Inspector Willett asserts
that Sisk told him that no spotter was used, Sisk insists that Respondent
always used spotters. (Tr. 131, 138; Ex.
G-22). Sisk claims that any comments he
made concerning no spotter being used were specific to the day the citation was
issued, when the equipment had chocked wheels and never moved. (Tr. 136, 141-42). I am giving Sisk the benefit of doubt because
(1) there was no affirmative proof that the truck was ever operated in reverse
without a spotter being present; and (2) Sisk credibly testified that the truck
is stationary once it arrives at a new job location. Sisk terminated the citation by installing a
back-up alarm on the truck. It would
behoove Sisk to maintain the alarm in operating condition because if the
company operates the truck in reverse without an operable back-up alarm and a
spotter is not present, its violation of the safety standard could well be
considered to be an unwarrantable failure to comply with the safety standard.
Citation No. 8660307 is hereby VACATED.
E.
Citation No
8660308
On July 12, 2011,
Inspector Willett issued Citation No. 8660308 under section 104(a) of the Mine
Act, alleging a violation of section 57.14132(b)(1) of the Secretary’s safety
standards. The citation states:
A travel alarm was not provided for the Hitachi EX
400 excavator which has a restricted view to the rear. This excavator is used in areas where other
miners are working. This exposes a
person to the hazard of being over traveled without warning.
(Ex. G-29). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that one person would be affected. The Secretary proposed a penalty of $243.00
for this citation.
1. Summary
of the Evidence
Inspector Willett
testified that he issued Citation No 8660308 as a violation of section
57.14132(b)(1) because a Hitachi x400 excavator had a restricted rear view and
lacked a travel alarm. (Tr. 144). The cab of the equipment was not visible from
the back. (Tr. 150; Ex. G-31). The inspector testified that according the
Sisk, a spotter was not used for the cited excavator. (Tr. 149).
Inspector Willett
designated the citation as S&S. The excavator
was operated in a “small” area and the inspector said that Sisk stated that other
equipment and up to five people at a time worked in the area. (Tr. 150-151). An injury as a result of the cited condition
would be fatal. (Tr. 151).
The citation resulted
from the operator’s moderate negligence, testified Inspector Willett. The operator should have known about the
condition, according to Inspector Willett.
(Tr. 150). The condition was
obvious. (Tr. 151).
Sisk testified
that the machine made enough noise while operating to alert surrounding workers
that it was moving. (Tr. 156). All of the workers were trained to work
safely. Id. The piece of equipment had a “swing area” of
80 feet that included 40 feet to each side.
(Tr. 156). The mine and work area
were sometimes invaded by “outsiders” including MSHA inspectors and delivery
men, who were at a higher risk of injury than Sisk’s employees, according to
Sisk. (Tr. 160). When Sisk bought this machine 15 years
earlier, it did not have a travel alarm.
(Tr. 157). Although Sisk
testified that he had been inspected by MSHA before, he had never received
citations; these inspections occurred too far in the past for Sisk to remember
the dates. (Tr. 158).
2. Discussion
and Analysis
I find that
Respondent violated section 57.14132(b)(1).
Inspector Willett testified that Sisk informed him that no spotter was
used and Sisk did not contradict this testimony. Sisk admitted that the alarm was broken and
stated that the excavator did not need a travel alarm because the equipment was
loud enough to warn of its movements.
I find that
Citation No 8660308 was S&S. The
citation violated section 57.14132(b)(1), leading to the hazard of a miner
being crushed by a piece of equipment and the reasonable likelihood of
sustaining serious or fatal injuries.
Inspector Willett testified that an injury was reasonably likely as a
result of the cited condition because the equipment worked in a small area with
miners present. Sisk testified that the
equipment had a “swing area” of 80 feet.
It is reasonably likely that a machine with a large movement radius and
limited visibility could cause a serious injury. Sisk, furthermore, testified that he was
confident that no hazard existed because of the experience of his workers, but
he did acknowledge that “outsiders,” who are safety risks, enter the work zone. The travel alarm is not used to keep the
operator of the machine safe; its purpose is to warn others of the equipment’s
movements because the operator has an obstructed view. No operator, regardless of experience, can
avoid an unseen pedestrian. I find that
the violation was reasonably likely to cause a serious injury.
I also find that
the violation was the result of Respondent’s moderate negligence. The violation was obvious and existed for 15
years, which is an extended period of time. Respondent should have known about the
inoperable travel alarm on the cited piece of equipment. I find that a penalty of $300.00 is
appropriate for this very serious violation.
F.
Citation No.
8660309
On July 12, 2011
Inspector Willett issued Citation No. 8660309 under section 104(a) of the Mine
Act, alleging a violation of section 57.14132(a) of the Secretary’s safety
standards. The citation states, in part:
[Neither] the manual horn nor the back-up alarm
supplied by the manufacture[r] were maintained in functional condition on the
Cat 973 track loader. This loader is
used in areas where other miners are working.
This exposes a person to the hazard of being over traveled without
warning.
(Ex. G-32). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was high,
and that one person would be affected.
Section 57.14132(a) of the Secretary’s regulations requires that “[m]anually-operated horns or other audible warning
devices provided on self-propelled mobile equipment as a safety device shall be
maintained in a functional condition.”
30 C.F.R. § 57.14132(a). The
Secretary proposed a penalty of $807.00 for this citation.
1. Summary
of the Evidence
Inspector Willett testified that
he issued Citation No. 8660309 as a violation of section 57.14132(a) because a
Cat 973 track loader had no manual horn or back-up alarm. (Tr. 163).
Inspector
Willett designated the citation as S&S.
The inspector believed that this hazard was reasonably likely to result
in an injury. (Tr. 166). The vehicle could “overtravel” a person as it
changed directions often, had no audible alarms, and worked in a small area that
had up to five people in it. Id.
The area in question was 6 acres and only two men were working at the
time of the inspection. (Tr. 170). This hazard could cause a fatality. (Tr. 168).
Inspector
Willett determined that the violation was the result of the operator’s high
negligence because Sisk should have known about the condition and the condition
was obvious. (Tr. 167). The inspector designated the negligence as high
instead of moderate because the operator noticed neither the absence of a
back-up alarm nor the horn. (Tr. 169). The back-up alarm should sound automatically whenever
the equipment backs up and the horn should be sounded manually any time the
equipment moves. (Tr. 167).
Sisk
admitted that the alarms on this vehicle did not work, but testified that the
machine was operated far away from anything it might hit and spotters would be
used when it moved outside of its area of operation. (Tr. 173).
Sisk also stated that Respondent’s equipment moved in the vicinity of
other pieces of equipment. (Tr.
176). Sisk admitted that he should have
known about this violation. (Tr.
175). Inspector Willett did not see any
of the equipment being operated and there were two employees present at that
time. Id.
2. Discussion
and Analysis
I
find that Respondent violated section 57.14132(a). Both Sisk and Inspector Willett agree that the
horn and back-up alarm were not functional, which is a violation of the standard
on its face. Although the Inspector did
not see the equipment operating without its alarms or a spotter, Sisk admitted
that the vehicle operated without a spotter or either type of alarm, stating
that the use of a spotter and the alarms was not necessary based upon the
location that the equipment operated.
I
also find that the citation was S&S.
The cited piece of equipment violated section 57.14132(a) and was
reasonably likely to lead to the serious injury of a miner. Sisk testified that this equipment operated
near other equipment when necessary, but had no signals to warn nearby
equipment or pedestrians of its movements or proximity. Even if the operator had experience and
operated the equipment safely, that operator would have no way to warn of his
presence in the event of another’s inattention.
I credit Inspector Willett’s testimony that the cited piece of equipment
was reasonably likely to contribute to a crash that would cause an injury
because it moved often and had no alarms.
A collision involving this piece of equipment was likely to cause
serious injuries including a fatality.
Sisk
admitted that he should have known about this violation and provided no
mitigating factors. The violation was
both obvious and dangerous. I find that
Citation No. 8660309 was the result of Respondent’s high negligence. I find that a penalty of $900.00 is
appropriate for this violation. The
absence of both a back-up alarm and a horn made this violation very serious.
G.
Citation No.
8660310
On July 12, 2011,
Inspector Willett issued Citation No. 8660310 under section 104(a) of the Mine
Act, alleging a violation of section 57.14130(a)(1) of the Secretary’s safety
standards. The citation states, in part:
A Seatbelt was not supplied in the Cat 973 Track loader. This loader is a 1983 model. This loader is operated on rough uneven
surfaces. This exposes a person to the
hazard of being ejected from the loader in event of an accident.
(Ex. G-37). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was
moderate, and that one person would be affected. Section 57.14130(a)(1) of the Secretary’s regulations
requires that “seat belts shall be installed on – (1) Crawler tractors
and crawler loaders[.]” 30 C.F.R. § 57.14130(a)(1). The Secretary proposed a penalty of $243.00
for this citation.
1. Summary
of the Evidence
Inspector
Willett issued Citation No. 8660310 as a violation of section 57.14130(a)(1)
because a 973 track loader, which was a crawler loader built in 1983, did not
have a seat belt. (Tr. 179, 182, 184).
Inspector
Willett designated Citation No. 8660310 as S&S. The inspector believed the absence of the
seat belt made an injury likely because the miner operating the loader could be
ejected from the equipment on rough terrain.
(Tr. 183). An ejected miner could
sustain fatal injuries if crushed by the loader or other equipment. (Tr. 183).
Inspector Willett
determined that the citation was the result of Respondent’s moderate
negligence. The operator should have
known of the condition and the condition was obvious. (Tr. 184).
Sisk testified
that when Respondent acquired the equipment, it lacked a seatbelt and any
vestiges of a seatbelt. (Tr. 193). Respondent installed mounts and attached a
seatbelt to abate this citation. (Tr.
194). Respondent also had another loader
at this time and that piece of equipment had a seatbelt, according to Sisk. (Tr. 193).
2. Discussion
and Analysis
I
find that Citation No. 8660310 was a violation of section 57.14130(a)(1). The cited piece of equipment is a “crawler
loader” or “track loader” that is covered under section 57.14130(a)(1). It did not have a seat belt according to both
Inspector Willett and Sisk, which is a violation of section 57.14130(a)(1).
I
also find that the violation was S&S.
Respondent violated section 57.14130(a)(1), presenting the hazard of a
miner being ejected and crushed during an accident. I find that it is reasonably likely that the
cited piece of equipment missing a seatbelt would contribute to a serious
injury. Hitting a bump, turning too
sharply, capsizing the equipment, colliding with another piece of equipment or
anything of significant size, or a variety of other situations were likely to
lead to a crushing injury without a seatbelt, especially on rough terrain. In addition, even if the miner was not
ejected from the vehicle, he could be seriously injured by being thrown around
inside the cab in the event of an accident.
A loader that does not have a seatbelt is reasonably likely to lead to a
serious injury, including a possible fatal injury.
The
safety benefits of seat belts are well known by people with no experience or
knowledge of mine safety. Respondent,
furthermore, could easily have compared the cited loader to the loader that had
a belt and realized that a belt increased safety and was required. I find that Respondent’s negligence was high
in this instance because the violative condition was obvious, existed for an
extended period of time, posed a risk of fatality to miners, and Respondent should
have known that this condition was a serious violation of MSHA’s safety
standards. A penalty of $900.00 is
appropriate for this violation.
H.
Citation No.
8660311
On July 12, 2011
Inspector Willett issued Citation No. 8660311 under section 104(a) of the Mine
Act, alleging a violation of section 57.14130(i) of the Secretary’s safety
standards. The citation states, in part:
The seat belt supplied in the 973 Cat track loader
was not replaced when necessary to insure proper performance. The supplied seat belt had a 3/8 inch long
cut in the belt and also had holes burn through the belt in 2 places. This exposes a person to the hazard of the
seat belt failing in event of an accident.
(Ex. G-47). Inspector Willett determined that an injury
was unlikely to occur, but that such an injury could reasonably be expected to
be fatal. Further, he determined that
the operator’s negligence was moderate and that one person would be
affected. Section 57.14130(i) of the
Secretary’s regulations requires that “[s]eat belts shall be maintained in functional condition,
and replaced when necessary to assure proper performance.” 30 C.F.R. § 57.14130(i). The Secretary proposed a penalty of $100.00
for this citation.
1. Summary
of the Evidence
Inspector
Willett issued Citation No. 8660311 as a violation of section 57.14130(i)
because a different 973 track loader had a seat belt with a 3/8 inch cut on its
edge and two holes burned through it.
(Tr. 195-96; Ex G-49). Although
the seatbelt was functional, the inspector testified that he issued the
citation because the belt needed to be replaced and the damage had compromised
the strength of the belt. (Tr.
198). Under normal mining conditions,
the inspector believed that the conditions would worsen, leading to the ejection
of a miner from the equipment. (Tr.
199). A fatal injury could occur as a
result of the conditions underlying the violation. (Tr. 200).
The inspector testified that seatbelts should be replaced whenever they
are damaged because such damage compromises the strength of seatbelts. (Tr. 201).
Inspector
Willett determined that the violation was the result of the operator’s moderate
negligence because the operator should have known of the cited condition. (Tr. 200).
Sisk testified that the seatbelt adequately performed its function and
was therefore safe. (Tr. 206).
2. Discussion
and Analysis
I
find that Citation No. 8660311 set forth a violation of section
57.14130(i). Section 57.14130(i) only
requires that a seatbelt be replaced to ensure proper performance. The parties dispute what constitutes proper
performance, but neither gives a definition and a seatbelt test was presumably
unfeasible. I find that cuts and holes
in a seatbelt can compromise its integrity.
The area where the belt was cut as well as the area around the holes
showed signs of unraveling. (Ex. G-49). The
cited seat belt should have been replaced in order to assure proper performance
and the failure to do so constituted a violation of section 57.14130(i). The violation was not serious, however.
Respondent’s negligence was moderate with
respect to this violation because it should have known of the cited condition. A penalty of $80.00 is appropriate for this
violation.
I.
Citation No.
8660313
On July 12, 2011
Inspector Willett issued Citation No. 8660313 under section 104(a) of the Mine
Act, alleging a violation of section 57.14100(a) of the Secretary’s safety
standards. The citation states:
A proper pre-shift examination of mobile equipment
has not been done due to the number of defects found on the mobile equipment
during this inspection. Citations were
issued for 3 Back-up / travel alarms, 2 seat belt violations, a broken window
and a manual horn not maintained functional.
These 7 violations were issued on five pieces of mobile equipment. These defects should have been recognized and
repaired in a timely manner. Not
completing a proper pre-shift examination of mobile equipment and eliminating
the hazards can result in injuries to miners operating or working around the
equipment.
(Ex. G-58). Inspector Willett determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to be fatal. Further, he
determined that the violation was S&S, the operator’s negligence was high,
and that one person would be affected.
Section 57.14100(a) of the Secretary’s regulations requires that “[s]elf-propelled mobile equipment to be used during a
shift shall be inspected by the equipment operator before being placed in
operation on that shift.” 30 C.F.R. § 57.14100(a). The Secretary proposed a penalty of $807.00
for this citation.
1. Summary
of the Evidence
Inspector
Willett testified that he issued Citation No. 8660313 because Respondent was
not conducting proper pre-shift examinations on its mobile equipment. (Tr. 209).
The inspector issued seven citations on five pieces of equipment; the
cited conditions were obvious and addressed back-up alarms, travel alarms, seat
belts, and broken windows. Id.
Respondent never included a seatbelt on one loader or a travel alarm on
the excavator. (Tr. 210). The number of violations along with the
inspector’s belief that some of the violations existed for an extended period
of time made the inspector believe that the cited condition of inadequate pre-shift
examinations had existed for “[q]uite some time.” (Tr. 210).
Also, the operator could not supply the inspector with any records of pre-shift
examinations that noted these defects.
(Tr. 212).
Inspector
Willett determined that the violation was S&S because an injury was
reasonably likely to occur as a result of the neglected examinations. (Tr. 213).
He believed that a fatal or serious injury could occur as a result of
the failure of Respondent to conduct adequate examination of the equipment. (Tr. 214).
The operator could have easily identified all of the conditions Willett
cited on July 12, 2011 if it had performed proper pre-shift examinations. (Tr. 211).
Inspector
Willett determined that the violation was the result of Respondent’s high
negligence. There were no mitigating
factors and the inspector believed that numerous violations resulted from the
cited condition. (Tr. 214).
Sisk
testified that he instructs Respondent’s employees to ensure that machines are
mechanically sound before operation.
(Tr. 220). Sisk instructs
equipment operators to check equipment fluids and brakes before operation. (Tr. 222).
Sisk does not instruct employees to check alarms or other safety devices
before using equipment and no records are kept concerning the checks made by Respondent’s
employees. (Tr. 223).
2. Discussion
and Analysis
I
find that Respondent violated section 57.14100(a) by failing to conduct adequate
pre-shift examinations upon self-propelled mobile equipment. Sisk testified that he and his employees do
not check alarms or other safety devices on equipment and that they do not keep
records of safety hazards or of the repairs of those safety hazards. Sisk testified that all he required employees
to do before operating machinery was to make sure it was “mechanically sound”
by checking fluids and brakes. (Tr.
220). An adequate examination of mobile
equipment would identify and record safety hazards relating to seat belts or
alarms. Pre-operational safety checks of
mobile equipment are crucial to the safe operation of a mine.
I
also find that the violation was S&S because conducting inadequate pre-shift
examinations was reasonably likely to contribute to a serious injury. Based upon the crushing hazards associated
with the violations concerning seat belts and alarms, Respondent’s inadequate
inspections led to the hazard of miners being crushed or otherwise injured by
mobile equipment. The likelihood that the
violation could cause a serious injury, however, goes beyond the sum of the
dangers presented by the underlying conditions discovered by the inspector; continued
inadequate examinations of mobile equipment could lead to additional hazardous conditions
in the future.
I
find that the violation was the direct result of Respondent’s high negligence. I credit Inspector Willett’s testimony that
Respondent presented no mitigating factors.
When conducting pre-shift examinations, Respondent’s employees ignored
safety features such as alarms and seat belts because Sisk did not believe that
they were particularly important. He
referred to them as “ifs” because if something could happen, you get a
citation. (Tr. 220-21). Although the equipment can be operated
without these safety features, the equipment is more dangerous, which is why
these features are required. During a pre-shift
examination, an equipment operator must examine his equipment to ensure that it
can be operated in a safe manner and, if safety features are not functioning or
are missing, he must ensure that corrective action is taken. If a mine operator does not instruct his
employees to thoroughly examine equipment to ensure that safety features are
functioning, the operator is communicating to the employees that these safety
devices are of little importance and need not function. This constitutes a high degree of negligence
on the part of the mine operator. The
underlying violations were obvious, posed the risk of causing serious injuries
or fatalities, and Respondent should have known that its examinations were
inadequate.
A penalty of $1,000.00
is appropriate for this violation because of the high gravity of the violation
and the high negligence of Respondent. Requiring
adequate pre-operational checks of mobile equipment is one of the most
important steps a mine operator must take to provide a safe working environment.
III. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets forth the criteria
to be considered in determining an appropriate civil penalty. Respondent has no history of previous
violations. (Ex. G-61). At all pertinent times, Respondent was a very
small independent contractor. The violations were abated in good
faith. There was no proof that the
penalties assessed in this decision will have an adverse effect on Respondent’s
ability to continue in business. The
gravity and negligence findings are set forth above. I would have assessed higher penalties for
some of the violations but for Respondent’s small size and lack of previous
history of violations.
IV. ORDER
Based on the criteria in section 110(i) of the
Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:
Citation No. 30 C.F.R. § Penalty
8660312 57.14206(b) $100.00
8660305 57.14207 250.00
8660306 57.14103(b) 100.00
8660307 57.14132(b)(1) Vacated
8660308 57.14132(b)(1) 300.00
8660309 57.14132(a) 900.00
8660310 57.14130(a)(1) 900.00
8660311 57.14130(i) 80.00
8660313 57.14000(a) 1,000.00
TOTAL PENALTY $3,630.00
For the reasons set forth
above, the citations are AFFIRMED, MODIFIED, or VACATED as set forth above. Gary
Sisk Drilling Company, Inc., is ORDERED
TO PAY the Secretary of Labor the sum of $3,630.00 within 40 days of the
date of this decision.1
/s/
Richard W. Manning
Richard
W. Manning
Administrative
Law Judge
Distribution:
Courtney Przybylski,
Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
800, Denver, CO 80202 (Certified Mail; przybylski.courtne@dol.gov)
Gary
Sisk, Gary Sisk Drilling Co., Inc., 4800 N. Outer Road, Odessa, MO 64076
(Certified Mail;
RWM
[1] SAE International
is a global organization of engineers and related technical experts that
produces standards relating to a variety of equipment. Section 57 does incorporate sections of SAE
publications, although section 57.14206 does not.
1 Payment
should be sent to the Mine Safety and Health Administration, U.S. Department of
Labor, Payment Office,