B.          Factual Background and Testimony

 

Omya California’s mine is located in Lucerne Valley, California, where their primary operations are the mining of calcium carbonate. Tr. 13. On August 17, 2011, MSHA Inspector Eric Wiedeman arrived at the mine to conduct an inspection. Wiedeman works out of the San Bernardino, California field office and has been an MSHA inspector for over four years. Tr. 11. Prior to joining MSHA, Wiedeman had worked at a sand and gravel mine for nine years, and had six months of training at the MSHA Mine Academy in West Virginia. Tr. 12. He conducts inspections at approximately 20 – 40 mines annually, and had inspected the Omya California mine on at least one occasion prior to August 17, 2011. Tr. 12-13.

 

During the August 17, 2011 inspection, Wiedeman was accompanied by company representatives Stewart Minter and Jay Grisby. Tr. 18, 30. While walking through the mine, Wiedeman noticed a Caterpillar 992 front-end loader parked on the downhill side of a pile. Tr. 15-16. Wiedeman observed the vehicle parked on a grade and noted that its wheels were not chocked or turned into a bank, as required by 30 C.F.R. 56.14207. Tr. 16-17; Exhibits 4a, 4b. Wiedeman asked Mr. Minter to estimate the grade on the pile, and Minter felt that it was approximately 5%. Wiedeman testified that he had estimated the grade to be approximately 5% as well. Tr. 18. Consequently, Wiedeman issued Citation No. 8607661, which states:

 

The Caterpillar 992 Front End Loader (company number 3308) was parked on a grade and was not chocked. The loader was parked on an approximate 5% grade. The loader was parked in an area where the haul trucks make there [sic] turn to back up to the secondary dump hopper. Miners exposed to the crushing hazard could receive serious injuries. When parked on a grade mobile equipment shall be chocked or turned into a bank. Standard 56.14207 was cited 2 times in two years at mine 0400167 (2 to the operator, 0 to a contractor).

 

Exhibit 1. Inspector Wiedeman designated this citation as reasonably likely to cause injury because he observed several haul trucks in the area, which meant that truck drivers could potentially be in the path of an un-chocked vehicle if it started to roll downhill. Tr. 19-20. In particular, Wiedeman thought it was likely that drivers would dismount their vehicles in the area, exposing themselves to the hazard from the un-chocked truck. He testified that he marked the violation as fatal because, if a 992 loader should run into someone, it would cause fatal crushing injuries. Id. Wiedeman also noted that there have been several similar crushing fatalities in the past, enough that 30 C.F.R. § 56.14207 was listed as one of MSHA’s “Rules to Live By,” a list of the top 13 violations that collectively account for 44 percent of the metal/nonmetal fatalities. Tr. 20. The inclusion of this standard on MSHA’s “Rules to Live By” was also a factor in Wiedeman’ s designation of this violation as moderate negligence, as he testified that operators have been put on notice of the “Rules to Live By.” Tr. 20-21. After Inspector Wiedeman issued the citation, the operator located chocks at the mine site and chocked the vehicle, abating the violation. Tr. 26.

 

At the hearing, Respondent presented the testimony of Mr. Manuel Hernandez, who has been an employee of Omya California for approximately 15 years and has a total of 36 years of mining experience. Tr. 41-42. At the mine, one of his primary responsibilities is mobile maintenance, which includes the purchase and upkeep of mobile equipment. Id. His testimony focused on the reliability of the 992 loader’s parking brake as a “fail-safe” system, and his lack of personal knowledge of any instances in which a similar loader’s parking brake had failed under similar circumstances. Tr. 43-44. Hernandez also testified that during a post-citation discussion with Inspector Wiedeman, he proceeded to turn on the 992 front-end loader in question and release its park brake, and yet the machine did not roll. Rather, it was only after he also cleared the bucket off the ground that the machine started to roll. Tr. 45-46.

 

During his testimony, Hernandez also commented on an MSHA Fatal Accident report that the Secretary submitted into evidence, in which the driver of a tractor and trailer parked his vehicle on a slight grade (5 – 7.5%) without chocking the vehicle or setting the park brake. Tr. 47-49; Exhibit 7. In that scenario, the vehicle began to roll downhill, and the driver was killed when he ran behind the vehicle and was run over. Id. Hernandez noted that the Caterpillar 992 loader was different than the tractor trailer in the fatality described, because the loader’s emergency brake system was spring applied and hydraulically released, while the semi-tractor and trailer involved in the fatality had an air supplied and spring released brake system. He testified that this meant that the brakes on the 992 loader were more fail-safe because they did not depend on air pressure for optimal brake function. Tr. 47-48.

 

In addition, Hernandez testified about the dimensions and relative sizes of the typical vehicles in the area near the 992 loader, and noted that in a previous accident involving one such loader that backed into a Terex 3311D haul truck, any damage resulting from the collision affected the portion of the vehicle below the cab, not the area in which a driver might be seated. Respondent also presented evidence that the braking system on the Caterpillar 992 loader was functional at the time of the citation, and thus, opined that the totality of the circumstances was such that the probability of injury to drivers was low. Tr. 32-33, 53-55.

 

IV. APPLICABLE LAW AND ANALYSIS OF EVIDENCE

 

A.   Undisputed Violation of 30 C.F.R. Section 56.14207

 

Citation No. 8568030 was issued for a violation of 30 C.F.R. § 56.14207, which states:

 

Mobile 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.

 

Respondent stipulated that “[t]he Caterpillar 992 front end loader #3308 was not chocked while parked on a 5% grade on 17 August 2011, a violation of safety standard 30 CFR, Part 56.14207.” See Stipulations, Sec’y Prehearing Report at 2-3; Resp. Brief at 1. Thus, the fact of the violation has been established, and the only matters in dispute are whether the gravity, significant and substantial, and moderate negligence designations for Citation No. 8568030 are appropriate.

 

B.     Significant and Substantial Designation

The inspector issued this citation as a “significant and substantial” (S&S) violation, which 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 S&S “if based upon the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In determining whether a violation is S&S, the Commission has identified four elements that 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).

            As noted above, the parties have stipulated that the Caterpillar 992 front-end loader at the Omya mine was parked on a 5% grade without its wheels chocked or turned into a bank, in violation of 30 C.F.R. § 56.14207. Thus, the first Mathies factor has been established. With regard to the second Mathies factor I find this violation does contribute to a discrete safety hazard, that is, the danger that the un-chocked vehicle will roll and injure those in its path. The Secretary presented evidence of at least once specific incident in which an un-chocked vehicle began to roll; in addition to more general evidence that these types of standards were developed to ensure that mobile equipment did not roll when parked on a grade. Tr. 20-23, Exhibits 5, 7. The Respondent disputed the relevance of the specific accident evidence presented by the Secretary in exhibit 7 noting that the braking system on the cited Caterpillar 992 front-end loader was different than the loader involved in the accident described in Exhibit 7, and that the fatal accident in that example was caused by the loader operator’s attempts to run after the loader to get it under control. Tr. 23-25. While I understand Respondent’s objections, I note that the chocking standard at issue in this case, 30 C.F.R. § 56.14207, applies to all mobile equipment parked on a grade regardless of the specific braking system utilized. The fact that the mobile equipment operator in the example presented at hearing attempted to run after the vehicle merely demonstrates one possible way such an incident can be and was fatal and does not change my finding that the cited violation in the case before me contributed to a discrete safety hazard, thus meeting the second Mathies factor.

The third Mathies criterion, in which the Secretary must establish that there is a reasonable likelihood that the hazard will result in an injury, has been clarified further by the Commission:

[T]he third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d) (1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). The question of whether a particular violation is S&S is a circumstantial inquiry that must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). In the present instance, the hazard contributed to is the truck rolling downhill and running into a miner or another vehicle. I must then analyze the likelihood that this event would lead to an injury.

At trial, there was undisputed testimony that the area in which the loader was parked was frequented by haul trucks, and that Inspector Wiedeman observed several vehicles drive through the area during his inspection. Resp. Brief at 1; Tr. 30-32. Wiedeman testified that this influenced his S&S designation, as he saw that this was an often-frequented area of the mine and logically assumed that there would be foot traffic associated with drivers dismounting their vehicles in the area. Tr. 19.

 

Respondent argues that, in order for this violation to cause a serious injury, there would have to be other mechanical failures under a specific set of factual circumstances, in addition to the absence of chocks on the wheels of the loader. Resp. Brief at 2. In so arguing, Respondent focuses on the fact that the parking brake was engaged at the time the citation was written and that no specific instances of parking brake failure on this particular type of loader were mentioned at trial. In addition, Respondent notes that the bucket on the loader was in a lowered position, which may hinder rolling motion. Tr. 43-46.

 

However, these arguments are not persuasive, as the third Mathies factor may be met without a finding that there is a reasonable likelihood that the violation itself will cause injury. See Cumberland County Coal, 33 FMSHRC 2357, 2366 (Oct. 2011) (discussing Musser Engineering, 32 FMSHRC 1257). Rather, the Secretary must show a reasonable likelihood that the hazard contributed to by the violation will cause injury. In the present instance, the hazard contributed to by the violation is the truck rolling down the 5% grade in an area of the mine frequently traveled by other trucks and mobile equipment. Despite the presence of a functional parking brake and lowered bucket, the violation of the requirement that vehicles in this condition be chocked contributes to the hazard as defined.

 

The Commission has already held that an operator’s arguments regarding the possibility of additional safety measures preventing the hazard at issue do not prevent an S&S finding. See Buck Creek, 52 F.3d 133 at FN 1 (noting that with respect to an identified hazard of a mine fire, the operator’s “testimony regarding the likelihood of fire has no bearing on the separate quest of whether such fire would be likely to result in a serious injury.”). More generally, arguments that “redundant, mandatory safety protections provide a defense to a finding of S & S would lead to the anomalous result that every protection would have to be nonfunctional before a S&S finding could be made. Such an approach directly contravenes the safety goals of the Act.” Cumberland Coal, 33 FMSHRC at 2369. In this context, the parking brake on the 992 Caterpillar loader is an independently necessary safety measure that does not alter the requirements of 30 C.F.R. §56.14207, or diminish the contribution of a violation of that standard to the identified hazard.

 

            Finally, to satisfy the fourth Mathies element, the Secretary must show that there is a reasonable likelihood that the injury in question will be of a reasonably serious nature. Inspector Wiedeman testified that this violation could lead to fatal crushing injuries. Tr. 18-19. In drawing this conclusion, he relied on the history of 30 C.F.R. §56.14207 violations that have resulted in crushing fatalities. As noted above, this particular standard has been listed in MSHA’s “Rules to Live By,” and one specific fatality involving a failure to comply with this standard was discussed at the hearing. See Exhibits 5, 7. The Secretary also presented evidence that from 2000 – 2008, 21 fatalities resulted from accidents in which individuals were struck by moving machinery or equipment that were not blocked against motion in metal and nonmetal mines, with 30 C.F.R. § 56.14207 being one of the most often violated standards in those accidents. Enforcement Summary: Blocking Against Motion Fatalities in Metal and Nonmetal Mines, Exhibit S-10. The evidence shows that when heavy machinery of the kind involved in this violation begins to roll and strikes a person, the injury will be serious, and probably fatal. Thus, in light of all the evidence and the four Mathies factors, I uphold the significant and substantial designation on this citation.

 

C.                                Negligence

 

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.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety and health of miners and to take steps necessary to correct or prevent hazardous conditions or practices.” Id. Low negligence exists when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. High negligence exists when [t]he operator knew or should have known of the violation, condition or practice and there are no mitigating circumstances. Id. See also Brody Mining, LLC, 2011 WL 2745785 (2011) (ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct which exhibits the absence of the slightest degree of care.” Id. MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices. Id.

 

In this instance, the inspector determined the negligence level to be moderate. As discussed above, 30 C.F.R. 56.14207 is listed on MSHA’s “Rules to Live By,” which is a list of the top 13 violations that collectively account for 44 percent of the metal/nonmetal fatalities. Tr. 20. The “Rules to Live By” are made publicly available and it is expected that mine operators know of them and plan accordingly to avoid fatalities. Thus, the operator should have known of the violative condition or practice. However, Inspector Wiedeman found that some mitigating circumstances existed, in that the violation itself was an unforeseen act of one miner that management would not have any control over. I agree with the inspector as to the mitigating circumstances, and uphold the moderate negligence designation.

 

 

 

IV. PENALTY

Commission Administrative Law Judges (ALJs) have the authority to assess penalties under the Mine Act de novo, as stated in Section 110(i) of the Mine Act, which 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 requires Commission ALJs to consider the following six penalty criteria when assessing penalties:

[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). In keeping with this statutory requirement, the Commission has held that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an exercise of discretion, which is “bounded by proper consideration of the statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id at 294; Cantera Green 22 FMSHRC 616, 620 (May 2000).

The Secretary has submitted the operator’s history of violations, and, as noted in the citation itself, this mine has been cited twice in two years for a violation of this particular standard. As discussed above, I find that the operator displayed moderate negligence, and upheld the reasonably likely and fatal designations of the citation. I accept the parties’ stipulations that the proposed penalties will not affect Respondent’s ability to remain in business, and that Respondent demonstrated good faith in abating the violation. Accordingly, I find that the Secretary’s proposed penalty of $946.00 is appropriate.

 

 

 

V. ORDER

 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. 820(i), I assess the penalty listed above for a total penalty of $946.00 for the citation decided after hearing. Omya California, Inc., is hereby ORDERED to pay to the Secretary of Labor the sum of $946.00 within 30 days from the date of this decision.

 

 

 

 

 

                                                                                    /s/ David P. Simonton

                                                                                    David P. Simonton

                                                                                    Administrative Law Judge

 

 

 

 

Distribution: (via certified mail)

 

Nadia Hafeez, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202

 

Luis Pacheco, Safety & Health Manager, Omya California Inc., 7225 Crystal Creek Road,

Lucerne Valley, CA 92356