Federal
Mine Safety and Health Review Commission
OFFICE OF ADMINISTRATIVE LAW
JUDGES
November 30, 2011
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION, (MSHA), Petitioner, v. ACTIVE MINERALS INTL, LLC, Respondent. |
: : : : : : : : : : : |
CIVIL PENALTY PROCEEDINGS Docket No. SE 2010-38-M A.C. No. 09-01192-00189515 Docket No. SE 2010-741-M A.C. No. 09-01192-000216418 Mine: Active Minerals Attapulgite |
| Appearances: | Benjamin A. Stark, Esq., U.S. Department of Labor, Atlanta, GA, and Melonie L. Paul, Esq., U.S. Department of Labor, Atlanta, GA on behalf of the Secretary Carla J. Gunnin, Esq., Constangy, Brooks & Smith, LLP, Atlanta, GA on behalf of ActiveMinerals International, LLC. |
| Before: | Judge Priscilla M. Rae |
These
The
I.
Statement of the Case
Stipulated
Facts:
The parties stipulated to the following:
1. The Administrative
Law Judge and the Federal Mine Safety and Health Review Commission have
jurisdiction to hear and decide these proceedings.
2. Active Minerals
International, LLC (“the Respondent”) is a mine operator subject to the
jurisdiction of the Federal Mine Safety and Health Administration.
3. Respondent is the
owner and operator of the Active Minerals Attapulgite Mine (“Mine”) located in
4. Operations at the
Mine are subject to the jurisdiction of the Act.
5. All MSHA Inspectors
involved in this case were acting in their official capacities as authorized
representatives of the Secretary of Labor.
6. The citations
contained in these
7. The citations
contained in these
8. The assessed
penalties, if affirmed, will not impair Respondent’s ability to remain in
business.
9. As of May 2, 2009,
Innovative Environmental Construction (“IEC”) was a contractor hired by
Respondent to perform hauling operations at the Mine.
10. Employees of IEC,
including Carroll Collins, hauled material within the Mine using a front-end
loader.
11. On the night of
May 2, 2009, Carroll Collins – an employee of IEC – was killed at the Mine when
he was run over by the front-end loader (the “loader”) he had been operating.
12. Immediately prior
to the accident in which Mr. Collins was killed (the “Accident”), the wheels of
the Loader were not chocked.
13. The Loader weighed
between 33,180 and 34,017 pounds.
14. At the time of the
Accident, the Loader was not being tested.
15. At the time of the
Accident, no one was being trained in the operation of the Loader.
16. At the time of the
Accident, maintenance work was not being performed on the Loader.
17. The Loader was
owned by Respondent.
18. There was no seat
for passengers to ride in the equipment operator’s station of the Loader.
19. The Loader was
designed for only one person to ride in it.
20. At the time of the
Accident, Plant Operator Keith Goss was the only one of the Respondent’s
employees present at the mine site.
21. On the night of
the Accident – but prior to the Accidents itself- Mr. Goss knew that Ms.
Hartline was on the Mine’s property.
22. On the night of
the Accident, before the Accident took place, Mr. Goss did not contact any
other employee of Respondent with respect to the Ms. Hartline’s presence at the
Mine.
23. Immediately prior
to the Accident, Mr. Goss called Mr. Collins to come and assist him with
equipment.
24. Mr. Goss was
responsible for the operation of the plant on the mine site used to process
material for the Mine (the “plant”) during his shift on the night of the
Accident.
25. The mine and the
plant could not continue to run without someone being present to operate them
and keep them running.
26. The front-end
loader in question was a Volvo L90D (serial # L90DV64843).
27. Respondent
submitted to MSHA Quarterly Mine Tonnage or Hours Worked Reports that reflected
253,450 controller hours worked for calendar year 2008. The same reports do not reflect any mine
hours worked for the Mine, because Respondent only began operating the Mine on
December 24, 2008. The mine reported 7,314
mine hours worked for calendar year 2009.
Secretary’s
Second Amended Prehearing Report at 6-7; Tr. 9-13
The
Accident:
Active operates its Attapulgite clay mining business in
Climax,
On the night of May 2, 2009, Attapulgite Fireman Bill Hitson
received an emergency call from the Active Attapulgite mine involving a miner
being run over by a front-end loader.
Hitson testified that when he arrived at the mine approximately five
minutes after the call, he found the front-end loader had its bucket in the
raised position partially full of material, in reverse gear with the engine
running, the backup alarm sounding and parking brake fully engaged. Collins was in the position in which he died
lying on the ground between the front and back wheels on the operator’s side of
the loader. Hitson lowered the bucket of
the loader to the ground, put it in neutral and turned off the ignition to
render it safe for arriving
Julian Crowder of the Decatur County Sheriff’s Office was
assigned to the case as a crime scene investigator. His experience at the time
included a four year criminal justice degree, specialized training in crime
scene investigations and 17 years of overall law enforcement experience. (Tr.
35-36.)When contacted by his supervisor, he was informed that Collins had been
killed at the mine and his girlfriend had been on the scene when the accident
occurred but had subsequently left. (Tr.
37.)Upon arriving at the scene, Crowder put up crime scene tape to protect the
area and began taking photographs assisted by Mr. Gale Bowyer, and interviewing
persons on the scene. (Tr. 37-39.)He observed the position of the loader being
about two-thirds of the way down the ramp with the bucket on the ground, the
tires in a straight line with tire tracks on the ramp consistent in pattern
with the loader tires. (Tr. 43-45, S-18 and 19.)Crowder spoke with Hitson who
provided him with the information that he had secured the front-end loader. He
also spoke with Collins’ two brothers and Tina Hartline, Collins’ girlfriend,
when they were called back to the scene.
(Tr. 38-39.)
According to Crowder’s Criminal Investigation Report, when he
interviewed Hartline at 12:45 am on May 3, she told him that Goss had called
Collins to come and help him with a motor that was malfunctioning. Collins pulled the loader up almost to the
hopper and started to exit the loader.
As he did so, his leg hit hers and he stumbled out onto the platform
just outside the door and then he stepped on the rear tire to turn around so he
could climb down the ladder but she bumped something on the dash and the loader
began to roll backwards. She began to
hit buttons and levers and sat in the operator’s seat and stepped on the left
foot peddle, believing it was the brake.
She then looked back and saw that the tractor was on top of Collins so
she released the parking brake until the loader rolled past the victim and then
she re-engaged the brake. She was afraid
she would be in trouble for being on the property and for leaving the scene.
(Tr. 49-50; S-24 at 4-5.) During a second interview with Hartline on May 7,
2009, Hartline told Crowder that she came to the mine to discuss a family
matter. She brought a pillow with her
and sat in the cab with Collins. When
Goss called Collins for help, the loader was parked either by the hopper or
down the ramp; she couldn’t be sure. Hartline backed up against the dashboard
and when Collins tripped, she stumbled backwards and her elbow may have hit the
gear selector or her hands hit the parking brake button. (Tr. 57-58; S-24 at
6-7.) When she hit something in the
cab, Collins stumbled out onto the platform and then stepped on the rear tire
to turn around when he fell back towards the rear of the loader. She did not
see him hit the ground because she was trying to stop the loader. She first used the foot pedal and then hit
the brake button. Crowder observed upon
inspecting the cab, that if Hartline had been standing with her back to the
windshield, the gear selector would have been to her left and the parking brake
to her right. It was Crowder’s opinion
that Collins had properly stopped the vehicle, used the parking brake and that
Hartline had accidentally hit the brake and released it. The parking brake is
easily activated by pushing it. There is
also a foot pedal in the cab that operates a service brake. (Tr. 100.) Hartline knew that Goss was aware of her
being there because “he had seen them earlier in the day.” (S-24 at 7.)
Crowder confirmed in his testimony that Hartline said she hit
a lot of levers and buttons in the cab of the loader and also worked a foot
pedal. During her second interview she
said that her elbow hit the gear selector and her hands hit the parking brake
button on the dashboard. (Tr. 57.) She stated that the loader had been stopped
when Collins got up to exit the loader. (Tr. 60.) When asked about inconsistencies in
Hartline’s statement about Collins being seen walking down the ramp when she
engaged the brake, Crowder could not recall having been told that. (Tr. 60-61.)
Crowder did say that Hartline told him she was aware she was not
supposed to be on the property because someone had told her not to be there at
some point prior to the night of this accident.
(Tr. 61.) Crowder was not able to
make a determination how far the loader had rolled back when it finally came to
rest but it would be a fair estimate that it rolled the distance measured from
the back of the rear tire to the area between the back and front tires, where
Collins’ body was found. (Tr. 64-65.)
Jeffrey Phillips is a supervisory mine inspector for MSHA who
had conducted approximately 30 inspections, two involving fatalities, in this
position at the time he was called out to participate in this
investigation. (Tr. 69-70.) He was a regular inspector for five years
prior to his current appointment and had eight years of experience as a
maintenance supervisor for a surface limestone quarry preceding his appointment
as an MSHA inspector. (Tr. 72.) He is experienced in the operation of a
loader and testified that in his opinion, knowing how to operate one particular
front-end loader does not necessarily qualify someone to operate a different
make or model. (Tr. 76.)
Phillips was told upon arrival at the scene that Alex Glover,
Operations Manager, and MSHA Inspector Fendly chocked the wheels of the
loader. (Tr. 81.) Other than securing the wheels with a chock,
the loader was in the same position as it had been immediately after the
accident. It was located three-fourths
of the way down the ramp and the wheels were straight with the bucket on the
ground. (Tr. 97.) There was a lunch box
and a pillow inside the cab. (Tr.
82-83.) Phillips established that to
the side of the ramp is the white building that houses the plant control room
and the lab from which Goss would be analyzing clay samples and operating the
plant. (Tr. 86-87.) From the window of the lab, one could see the
bottom three-fourths of the ramp. (Tr. 88, S- 31.)
Phillips was the second person to interview Hartline who told
him that she was on the property because she had had some type of altercation
with a family member and wanted to speak to Collins about it. He told her to bring a pillow. She rode with him for a little while when
Goss had called Collins to assist him with a problem at the lab. Collins had gotten out of the loader to help
Goss previously when Goss radioed Collins for assistance. (Tr. 104.)
The second time Goss radioed Collins Goss saw Hartline inside the
loader. (Tr. 105.) When Collins received
the previous call, Hartline said he was parked outside of where the truck bed
was on the ramp. (Tr. 105.) When the second call came, he kept the bucket
in the air and backed up to that area on the ramp just beyond the truck bed.
(Tr. 106-107.) She stated that she
stood up and turned around with her back to the dashboard when Collins
tripped. As he was stumbling out, the
park brake was released and the loader started moving. She didn’t know where
Collins was at that moment so she jumped over into the operator’s seat and
thought she pressed the brake pedal but didn’t feel the loader stop. She remembered seeing Collins using the
parking brake, so she pressed the park brake button and stopped the loader. She
looked down and saw the rear tire on top of him so she reached over and
released the parking brake until it rolled off of him and then reset it. She
then climbed out of the loader and ran for help. (Tr. 107-108.)
When questioned whether Crowder had told him that Hartline
said she had seen Collins walking down the ramp before he was run over,
Phillips stated that he had no recollection of that. (Tr. 174.) Furthermore, Phillips stated that when he
spoke to Crowder, Crowder was in the county courthouse testifying in another
matter and did not have his notes of the interview with him. Crowder was
speaking only from memory. (Tr. 174-175;
S-22 at 9-10 of 51.)
In Phillips’ opinion, Hartline could have easily disengaged
the parking brake when she had her back to the dashboard. Having tested the switch himself, he found
the switch to be very sensitive.
Hartline had stated that she had ridden with Collins in his equipment
before but Phillips did not clarify whether she had ridden in this loader at
this mine with him in the past. (Tr.
109.) Phillips also confirmed through
his own investigation that the loader was located at the end of the truck bed
near the end of the ramp when Collins fell out of it. (Tr. 170.)
Goss was represented to Phillips as the “lead man in charge”
on the night of May 2nd. (Tr. 110.) During his first interview, Goss said that he
did not know that Hartline was on the property.
Upon learning otherwise, Phillips re-interviewed him at which time Goss
admitted he saw her the second time he called Collins on the radio. She was sitting in the cab with Collins. Goss radioed him and told him Hartline
should not be on the property. He did
not see her again until she came running for help. (Tr. 111-113; S-22 pg. 46 of 51.)
Goss testified on behalf of the operator, contrary to his
statement to investigators, that when he first saw Hartline, she was in the
loader and Collins was standing beside Goss near the lab. He stated that he told Collins at that moment
that she did not need to be on the property and Collins responded by saying he
would tell her to leave. He also told
Collins that if a supervisor saw her, Collins could lose his job. Goss then
went into the control room and did not see Hartline again until she came
running for help. (Tr. 354.) He could not recall if the bucket was raised or
where the loader was in relationship to the ramp when Collins left it to come
to his assistance. (Tr. 359.) Goss’ statement to Phillips that Collins was
in the loader with Hartline when he saw her is more credible as it was told to
Phillips shortly after the events occurred and he was “coming clean” at the
time in admitting what he knew about Hartline’s presence on the property.
As a result of the fatal accident and the ensuing
investigation, Active was cited by the MSHA investigators who issued the
citations and orders addressed herein.
The
Secretary’s Theory
The Secretary advances the theory that on the night of the
accident, Goss was having difficulty with the v-belt conveyor motor which
tripped the electrical breaker shutting down the plant on two prior
occasions. He radioed Collins to come
and listen to the motor while Goss went into the control room to try to
diagnose the problem. (Tr. 17-18.)At
some inexact point in the evening, according to Goss, while Collins was
assisting him with the motor, he looked over to the ramp area and saw Hartline
in the cab of the loader. Goss told
Collins that she didn’t need to be there and if his supervisors saw her, he
(Collins) could lose his job. Collins
said he would tell her to leave. (Tr.
354.) Goss did nothing more to have Hartline removed from the property. (Tr.
18.) Goss radioed Collins a third time
and Collins parked the loader near the top of the ramp without chocking or
turning the wheels into the bank or lowering the bucket. When Collins tried to exit the loader, he
tripped over Hartline who bumped into the parking break. Collins stumbled out the door of the loader
and stepped onto the rear tire just as Hartline disengaged the brake causing
Collins to be taken under the tire with its rotation and crushed to death. (Tr.
18-19.) After securing the parking
break, Hartline ran to Goss to call 911.
The Secretary has assessed four of the violations as an
unwarrantable failure by Active based upon the theory that Goss, as the plant
operator and the only Active employee on duty on the night shift, was an agent
for Active. She argues Goss’s negligence
in allowing Hartline to ride in the loader and not forcefully escorting her off
the property and not correcting Collins’ unsafe operation of the loader by not
lowering the bucket or chocking or turning the wheels when parking on an
elevated ramp rises to a level higher than ordinary negligence. (Tr. 19-20.)
The
Respondent’s Theory
Active asserts that it was not employing unsafe practices at
the time of this accident. Collins was
the employee of an independent contractor.
It is not possible to determine what caused the accident as Hartline is
the only remaining eye witness and she did not testify at the hearing. Following the accident, she gave two
statements to investigators which tend to contradict each other. In one, she says Collins fell out of the
loader and she was unaware of his location until she looked out and saw the
rear wheel on top of him. In another, she allegedly said that she saw Collins
walking down the ramp when the loader started to roll backwards and it ran him
over. Whatever occurred on May 2nd to cause the death of Collins,
they argue, cannot be attributed to Active in any way. Collins was properly trained on parking
procedures as well as general operating procedures on the loader and was
observed by Active management following those procedures. There was no reason for them to believe
Collins would not operate the loader in a safe manner, nor did they fail to
properly task train him.
Hartline had been told by management to stay off the property
in the past and was therefore an unwelcome visitor on the night of May 2nd. As such, she is not a miner whom the standard
regarding transporting a miner in the loader without a seat pertains; therefore
the standard does not apply in this instance.
With respect to Goss’ involvement in the events that evening,
Active argues that Goss was an hourly wage miner who was not an agent of the
company and therefore any negligence on his part cannot be imputed to
Active. He did not have the authority or
the duty to take any further action than he did to remove Hartline from the mine
property. He was not tasked with
ensuring Collins was operating the loader in a safe manner and he was not
directing Collins’ work that night. Moreover, he could not have expected
Hartline to remain in the loader after Collins said he would send her home and
he could not have foreseen Collins tripping over her upon exiting the loader.
He further could not have anticipated that Hartline would start pulling levers
and pushing buttons in the loader causing it to run over Mr. Collins. Goss lied to investigators during the
initial stages of the investigation when he denied that he saw Hartline in the
loader. He later admitted his omissions
and was disciplined by management for making a false statement as evidence of
Active’s view on safety.
Additional
Evidence
As part of the autopsy performed on Collins, the medical
examiner sent a blood sample to the lab for analysis. It came back with a
finding the Collins had a Blood Alcohol Content (BAC) of .032 at the time of
death. (S-24 at 7 and attached lab report.) The accident occurred at approximately 9:40
pm. (S-7 at 1.) The night shift began at 6pm. (S-22 pg 3 of 51.) The autopsy report
indicates that Collins weighed 232 lbs. I take judicial notice of the
niversity of Oklahoma Police Department BAC Calculator
(www.ou.edu/oupd/bac.htm), the Wisconsin Department of Transportation BAC
calculator (www.dot.wisconsin.gov) as well as the BAC Calculator from Wikipedia
(www.wikipedia.org) which state that a BAC of .032, based upon the metabolic
breakdown of alcohol in a male weighing 230 lbs., can be achieved by the
following consumption: 6 alcoholic
drinks in 4 hrs., 4 alcoholic drinks in 2 hrs., or 3 alcoholic drinks in 1
hr. The body metabolizes (decreases the
BAC) by approximately .015 (which is equal to about one drink) per hour. A BAC of .08 is legally drunk. Put another
way, either Mr. Collins was intoxicated when he reported to work at 6pm and his
BAC dropped to .032 nearly four hours later, or he was drinking on the job.
This information was in the investigator’s possession during
the investigation. (S-24 at 7). However, it was not addressed during the
interviews of the witnesses. It raises
questions whether intoxication was the direct or indirect cause of the accident
and whether anyone knew about it at the time of the accident. It was also not raised by either party during
the hearing.
I find, regardless of the question of the involvement of
alcohol, it was Hartline’s actions which directly lead to the death of Collins.
II.
Findings of Fact and
Conclusions of Law
Significant
and Substantial (S&S)
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). A violation is properly designated
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 Div., Nat’l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well recognized, in order to
establish the S&S nature of a violation, the Secretary must prove: (1) the
underlying violation; (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 3-4 (Jan. 1984); accord Buck Creek Coal Co.,
Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v,
Sec’y of Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies
criteria).
It is the third element of the
S&S criteria that is the source of most controversies regarding S&S
findings. 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 on the particular facts
surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S.
Steel, 7 FMSHRC at 1130.
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).
Agent
of the Operator/Unwarrantable Failure
In Lopke Quarries, Inc., 23
FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to
determining whether a violation was the result of an unwarrantable failure:
The unwarrantable failure
terminology is taken from section 104(d) of the Act, 30 U.S.C.§ 814(d), and refers to more serious
conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997
(Dec. 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is
characterized by such conduct as
"reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care."
Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb.
1991) (“R&P”). See also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)
(approving Commission's unwarrantable failure test).
Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB., 20 FMSHRC 203, 225 (Mar. 1998).
The Secretary has cited Active with
unwarrantable failure to comply with mandatory safety standards in four of the
violations discussed below. The basis for this assessment is that Goss was
acting as an agent of Active thereby imputing the conduct of Goss to the operator.
In order for the operator to be held
responsible for an unwarrantable failure, it must be proven that they were
aware of the violative conduct either directly or through their agent. In Emery
the Commission explored the meaning of the term unwarrantable failure and the
legislative history bearing upon it to determine what conduct exemplifies
greater than ordinary negligence. It
that discussion, the opinion made clear that the operator had to demonstrate
aggravated conduct in relation to the particular violation of the Act
cited. Emery, 9 FMSHRC at
2004. In San Juan, 29 FMSHRC 125
(March 1997) the Commission remanded where the ALJ found the operator ignored
the violative accumulations based upon the fact that it was not mentioned in
the pre-shift examination report or orally reported to the shift boss. The
Commission instructed the judge to make specific findings on whether the
operator had knowledge of the accumulations for unwarrantable failure
purposes. In Coal River Mining,
32 FMSHRC 82 (Feb. 2010), the Commission remanded for a specific determination
of the extent of the operator’s knowledge that batteries were being charged on
the ground in an unsafe location taking into consideration evidence that
supervisory personnel were aware that the battery charging station had been set
up in that location.
Section 3(e) of the Act defines
“agent” as “[a]ny person charged with responsibility for the operation of all
or a part of a coal or other mine or the supervisor of the miners in a coal or
other mine.” 30 U.S.C. § 802(e). In considering whether an employee is an
operator’s agent, the Commission has relied, not upon the job title or the
qualifications of the miner, but upon his function, and whether it is crucial
to the mine’s operation and involves a level of responsibility normally
delegated to management personnel. Martin
Marietta Aggregates, 22 FMSHRC 633, 637-38 (May 2000); REB Enterprises,
Inc., 20 FMSHRC at 211; Ambrosia Coal & Constr. Co., 18 FMSHRC
1552, 1560 (Sept. 1996); U.S. Coal Inc., 17 FMSHRC 1684, 1688 (Oct.
1995).
The Commission has relied upon
precedent developed under the National Labor Relations Act, 29 U.S.C. § 141, et
seq., to the effect that the authority to assign tasks and make schedules is
not sufficient to afford an individual supervisory status. Martin Marietta, 22 FMSHRC at
638. In Ambrosia it was held that
a “person in charge” was an agent because he performed functions that were
crucial to the mine’s operation and exercised responsibility normally delegated
to management personnel. Those functions
were: accompanying MSHA inspectors and attending close-out conferences as the
operator’s representative, conducting daily examinations and recording findings
as a certified mine examiner, and issuing work orders to abate citations. There was also evidence that the agent held
himself out as the employee in charge, signed documents as mine foreman and was
viewed by other miners as a person with authority.
In Whayne Supply Co., 19
FMSHRC 447, 451 (Mar. 1997), the Commission held that a “highly experienced repairperson
who needed little supervision and helped less experienced employees [was not] a
supervisor, much less a manger [because there was] no evidence that [he]
exercised any of the traditional indicia of supervisory responsibility such as
the power to hire, discipline, transfer, or evaluate employees [or that he]
‘controlled’ the mine or a portion thereof.”
Similarly, in Martin Marietta, it was held that an employee who
had the authority to tell other miners how he wanted a job done and to stop
them if he did not like what they were doing was not an agent or
supervisor. His control was tightly
circumscribed and he could not hire or fire, evaluate or discipline miners and
could not take any action to abate citations, or change a miner’s job or the
equipment on a job, was paid at an hourly rate, and did not hold himself out as
a supervisor or person in charge.
An employee’s functions, and status
as agent, are considered as of the time of his allegedly negligent
conduct. Martin Marietta at 638;
REB at 194; Whayne Supply at 452; U.S. Coal at 1688. Consequently, even a rank-and-file miner can
be found to be an agent while performing critical, management-related functions
such as required safety examinations. R&P
(rank-and-file miner who was a certified mine examiner was agent of operator
when assigned to perform such inspections); compare Mettiki Coal Corp.,
13 FMSHRC 760 (May 1991) (certified electrician acts as an agent when
performing monthly electrical inspections), with U.S. Coal, 17 FMSHRC at
1688 (certified electrician does not act as an agent when performing routine
repairs). However, it must be pointed
out that the Commission has held that the scope of the agency is limited. In R&P, the miner was certified by
MSHA to conduct weekly ventilation examinations. He was found to be an agent for imputation of
unwarrantable failure purposes when he failed to make the examinations and
falsified the examination records. The
Commission held that he became an agent “for the purpose of conducting the
weekly examinations” only. He was
responsible for operating all or part of the mine when carrying out the
responsibility of making the weekly examinations and was an agent for that
purpose. R&P at 195. The
Commission has stated that the relevant inquiry is whether the miner exercised
managerial conduct at the time of the negligent conduct. Martin Marietta
at 638.
The Commission, in Nelson Quarries, Inc., 31
FMSHRC 318 (Mar. 2009), again looked to the Ambrosia Coal inquiry of
whether the function of the miner was “crucial to the mine’s operations and
involved a level of responsibility normally delegated to management personnel.”
Ambrosia Coal at 1560. In Nelson,
the Commission upheld the judge’s determination that three employees were
agents within the meaning of the Act based upon their functions at the mine.
Specifically, the Commission focused upon the fact that all three conducted all
of the daily examinations, they supervised and directed the work force assigned
to them, they addressed problems the work force brought to them in attempting
to abate citations, the work force treated them and regarded them as their
supervisors, they held themselves out as foremen, and they were designated as
the person in charge of health and safety on the legal identity and start-up
and closure reports required to be filed with MSHA. The Commission also took
note of their involvement in making recommendations on hiring, firing and
disciplining employees although the ultimate decision was left up to a higher
level manager.
I find that the facts of this case,
in light of Commission precedent lead me to the conclusion that Goss was not
acting as an agent of Active. Goss was
running the plant by himself on the night of the accident. (Stip. of Fact No. 20.) The Secretary asserts Goss was
thereby in control of part of the mine “because neither the Plant nor the mine
could continue to operate without someone to keep them running.” (Sec.
Post-Hearing Brief at 12.) First, I find that running the plant is not
analogous to being in control of the mine as contemplated by the Act. If it were so, then a continuous miner
operator or a roof bolter would also be in control of a mine or part thereof as
production cannot continue until they are finished with their tasks which
directly affect safety and health.
Moreover, the Commission has focused the inquiry on whether one is in
control of the mine by determining whether the function is crucial to the
mine’s operation and involves a level of responsibility normally delegated to
management personnel. Martin Marietta
at 637-38; REB at 211; Ambrosia at 1560; and U.S. Coal at
1688. Clearly, the function engaged in
must be crucial but also it must be a function normally undertaken by
management. The only function of Goss’ job that could possibly be considered
crucial to the mine’s operation as defined by the Commission, was his
responsibility to conduct the pre-shift safety examination of the plant. (He
did not conduct the pre-shift examination of the loader, Collins did.) This function was contained in his Position
Description (PD). (S-25.) The PD
describes Goss’ job as an hourly position responsible for such things as daily
housekeeping, minor repairs, cleaning, loading and unloading trucks, processing
the clay to meet production goals for quality and quantity, performing routine
checks and maintenance on equipment and taking and analyzing samples for
quality control. It further required performing all duties as determined
necessary by a supervisor. Necessary
training was a high school diploma or equivalent. The Secretary presented no evidence that the
running of the plant carried with it a level of responsibility normally
delegated to management personnel. The
PD indicates just the opposite. Even
assuming for a moment that the function of performing of the pre-shift
examination of the plant could, standing on its own, suggest that Goss was an
agent, the Commission has made clear that the scope of the agency
responsibility only extends to negligence committed while engaged in that
managerial function. (See Whayne Supply, 19 FMSHRC at 451-53 and Southern
Ohio Coal Co., 4 FMSHRC 1459, 1463-64.) Here, the negligence alleged by the
Secretary is that Goss did not take additional steps to ensure Hartline was
removed from the property and that he allowed Collins to operate the loader in
an unsafe manner. Neither of these
allegations have any correlation to Goss’s performance of safety examinations
on the plant. I find the Secretary’s contention fails on this point.
Examining the other functions undertaken by Goss, the
Secretary’s position is further unsubstantiated. Goss did not have a crew
assigned to him; he did not have the authority to hire, fire or discipline
other employees and despite the Secretary’s contention that he could assign
tasks to Collins, he did not have that authority. He could tell Collins from which of the three
piles of clay to draw his next load so that the quality of the product was in
line with the company’s standards. This
was required of Goss as set forth in his PD. He did not assign Collins to
operate the loader, IEC did. He did not have the authority to take Collins off
the loader and assign him to operate a different piece of equipment. He could not tell Collins to leave the plant
for any reason. Tr. 346. He did request that Collins help him trouble shoot the
v-belt motor by standing by and listening to it. However, I find that this is
the typical sort of help that any rank-in-file miner would give to a co-worker
in their operating area. It does not indicate that Goss was responsible for the
assignment of tasks to Collins.
Goss testified that he had the authority to tell an unwelcome
visitor to leave the mine and he could call 911 in case of a fire and would
tell someone to stop engaging in dangerous horseplay if he saw it. (Tr. 370-71.)The Secretary asserts that this
too indicates he was responsible for the health and safety of the mine
conferring managerial duties upon him to take charge in the event of an
emergency. I do not find this is of the same level of responsibility recognized
by the Commission as normally undertaken by supervisory personnel. The Mine Act confers upon every miner the
responsibility for his/her own safety as well as that of others. See
generally Section 2 of the Mine Act.
Calling 911 in case of a fire before contacting a supervisor makes
imminent sense in preserving one’s own life or that of others. The same holds
true for telling untrained persons to leave the area or preventing others from
engaging is obviously dangerous conduct.
In contrast, in Nelson Quarries, the employee in question was
listed on the legal identity, start-up and closure documents filed with MSHA as
the person designated in charge of health and safety. This the Commission found
was significant indicia that the employee held himself out as an agent, the
company recognized his authority and it was a function normally assigned to
supervisory personnel. Active, on the
other hand, presented the Part 46 Training Plan submitted to MSHA which
listed in Item 2, Alex Glover and Chris
Watson as persons responsible for health and safety training at the mine in
compliance with 30 C.F.R. §46.3. (R-13.)
There is no evidence that Goss was so designated on any document
required by MSHA or that he held himself out to be the person in charge of
health and safety in any function required by MSHA.
Inspector Wriston testified that Goss told him he was in
charge of the mine the night of the accident. However Wriston also stated that
he considers a person to be in charge when the operator has designated that
person as the competent person in charge. Generally, when Wriston makes his
inspection of a mine, that designated competent person will accompany him on
the inspection. Goss did not do so in
this case. (Tr. 238.) Wriston also stated that there is a
difference in the meaning of a competent person in charge for metal and
non-metal mines for which there is no support in the Act or case law. I, therefore, give his interpretation and
determination that Goss was an Agent little weight.
The Secretary argues that because Goss was the only Active
employee on the property on the night shift, he had to be in charge as an agent
of the company. He responded to
Investigator Phillips, when asked who was in charge of the plant that night
that he was. Watson and Glover also so identified him during the investigation
when questioned by Wriston.(Tr. 237.) Glover testified that he did in fact tell
the investigators that Goss was in charge that night but he meant that Goss was
an operator, not a supervisor. (Tr. 323.) I find their responses were correct
in so far as Goss was in charge of running the plant that night. However, looking at the functions Goss
performed, rather than any title he assumed, he was not an agent of the
company. Furthermore, their response
that he was in charge was not intended at the time to confer any particular
legal standing on Goss and I do not find any evidence from which to conclude
that they were aware of the legal definition of an agent at the time. Looking
solely at the functions performed by Goss, he was not an agent within the legal
meaning of the term.
Worthy of note, also, is the fact that Collins apparently did
not regard Goss as his supervisor nor did Goss act as such. I conclude this in
part from the fact that when Goss saw Hartline in the loader, he called Collins
and told him that if a supervisor saw her, Collins would be fired. (Tr. 354.)
Not only did he distinguish himself apart from the supervisors with this
comment but he was clearly looking out for a fellow miner trying to keep him
out of trouble. Goss testified that he considered
Collins a friend. (Tr. 360.) Collins had
been told by Nate Southerland previously to keep his girlfriend off the mine
property. (Tr. 282-87.) Therefore, it
would be very unlikely at best that Collins would allow his girlfriend to ride
in the loader with him that night if he regarded Goss as having the authority
of a manager to discipline or fire him.
It would be equally highly unlikely that Collins would either report to
work under the influence of alcohol or drink on the job if he had any indication
that Goss had the authority to fire him.
Goss’ lying to Investigator Phillips during his first interview by
denying he saw Hartline on the property and lying under oath at the hearing by
saying Collins was standing beside him when he saw Hartline in the loader is
further indicia that he was a rank-in-file miner. It appears that Goss was
trying to protect himself from being disciplined by management. He was disciplined by Active for his false
statements to the investigator with a memorandum placed in his personnel file.
(Tr. 363.) I find this treatment of Goss
by Active management personnel indicates that the company considered him to be
a miner rather than a supervisor as well.
Finally, the Secretary has not presented any evidence that
Active had independent knowledge of the violations committed on May 2, 2009 and
she has failed to prove any other aggravating factors which would rise to a
level of negligence beyond ordinary. There was no evidence that prior to the
accident, the operator was on notice that similar violations had occurred or
that additional efforts were needed for compliance. In fact the Secretary has
conceded that there were no prior citations issued for any of the standards
involved herein at this mine and has presented no evidence of similar citations
at any other Active mines. (Sec’s
Post-Hearing Brief at 34.) Glover,
Watson and Nate Southerland testified that they had all observed Collins
operating the loader in a safe manner on every other occasion and had never
seen him do otherwise. (Tr. 316-18,
301-03, 279.) The length of time the
violative conditions existed was during the night shift of May 2, 2009.Hartline
had been on the property before and Collins was told to keep her off the
premises. The testimony was that since
that warning, she had complied and had not gone past the parking lot to drop
Collins off at work. (Tr. 282, 287, 353.)
It appears from the evidence that this was an isolated incidence which
presented no opportunity for the operator to know of or reasonably foresee the
violative conduct.
For all of these reasons, I do not find that Goss was an
agent of Active. I find, instead, that the functions performed by Goss were
comparable to those of a “lead man,” as described in Whayne Supply and Martin
Marietta. I am constrained to find that Active cannot be held accountable
for an unwarrantable failure to comply with the mandatory standards cited by
the MSHA inspectors.
NEGLIGENCE FOR PENALTY
PURPOSES
In a case of first impression on the issue of whether
negligent conduct by a rank-and-file miner could be imputed to the operator for
penalty purposes, the Commission found in the negative. Southern Ohio Coal
Co., 4 FMSHRC 1458 (Aug. 1982)(“SOCCO”).
Quoting from the NACCO decision, the Commission reiterated that
the “operator’s supervision, training and disciplining of its employees must be
examined to determine if the operator has taken reasonable steps to prevent the
rank-and-file miner’s violative conduct.” SOCCO, 4 FMSHRC at 1464, quoting
NACCO Mining Co., 3 FMSHRC at 850-51 (Apr. 1981). The operator must be found negligent in its
own right based upon its supervision and training programs with a finding that
they “directly or indirectly contributed to the violations at issue.” If so,
such commissions or omissions are properly taken into account under section
110(c) of the Act for assessing penalties, rather than under section 104(d) of
the Act. SOCCO at 1466. The Commission rendered a decision along the
same lines in Western Fuels, 10 FMSHRC 256 (Mar 1988) and Marland,
14 FMSHRC 754 (Aug. 1992).
As the Secretary acknowledged in her Post-hearing Brief, 30
C.F.R. §56.18009 requires that a competent person designated by the mine shall
be in attendance to take charge in case of an emergency. It is unconscionable that Active would leave
hourly employees alone on shift without a foreman present while engaged in the
ultra- hazardous activity of mining. This, however, they did as Goss was the
only Active employee on the night shift which had started about one month prior
to the accident.(Tr. 280, 315, 322.) While I find Hartline’s and Collins’
negligence was the proximate cause of the accident and was not foreseeable by
management, it was Active’s failure to have a properly designated supervisor
on-site that indirectly enabled this tragedy to occur. Had a foreman been
present, it is extremely unlikely at best that Collins would have invited his
girlfriend to ride in the loader with him which set the entire chain of events
in motion leading to his death. It is
impossible for any mine operator not to know that miners would engage in unsafe
conduct when left unsupervised for 12 hour shifts night after night. This was an accident waiting to happen. I
find Active engaged in a high level of negligence which indirectly led to each
of the violations discussed below.
Docket
No. SE 2010-741M
1. Citation No. 6091419
Investigator Phillips issued this
section 104(d)(1)[1]
citation for an alleged violation of 30 C.F.R. §56.9200(d). The citation is assessed as S&S, UF with
a fatality resulting from a high degree of negligence. The penalty sought to be
imposed is $70,000. It states:
A fatal accident occurred at this operation on May 2, 2009
when a miner was run over by a front end (sic.) loader that he was
operating. A person was being
transported in the front-end loader with no seat provided. When the operator exited the cab, his feet
became entangled with the passenger causing him to trip onto the left rear
tire. Additionally the park brake
disengaged allowing the front-end loader to move down a grade. Management engaged in aggravated conduct
constituting more than ordinary negligence by allowing a person to ride in the
front-end loader with no seat provided.
This violation is an unwarrantable failure to comply with a mandatory
standard.
(S-1.)
The cited standard provides that
persons shall not be transported outside cabs, equipment operators' stations,
and beds of mobile equipment, except when necessary for maintenance, testing,
or training purposes, and provisions are made for secure travel.
The operator argues that this standard was improperly cited
because Hartline was a trespasser and therefore she is not entitled to the
protection afforded by the Act to miners.
Secondly, Active asserts that the standard requiring a passenger to be
secured does not contemplate a hazard posed while exiting the loader rather
than while transporting persons. (Sec’s Post- Hearing Brief at 7-8.) Neither of these arguments is
persuasive.
Active cites Peabody Coal Co., 7 FMSHRC 1357 (Sept.
1985) and Extra Energy, 1998 CCH OSHD 31,487 as authority for the
position that only persons engaged in mining activities are entitled to the
protection of the Mine Act. I find the
issue in those cases entirely different from the situation here. Any person reasonably familiar with mining
operations would be on notice that an unsecured passenger riding in a front-end
loader could pose a danger to the operator during the normal course of
operations. Active has not provided any
authority for the proposition that this standard only seeks to protect the
passenger. It is appropriate to give a
mandatory standard the broadest interpretation of its terms to protect health
and safety which would encompass an interpretation that the standard seeks to
protect the operator as well as the passenger.
See Secretary of Labor v. Cannelton Industries Inc., 867 F 2d
1432 (D.C. Cir. 1989).
The operator incorrectly focuses on the cause of the fatal
injury to Collins in support of their second argument. Collins was killed when he tripped over
Hartline upon exiting the loader. The undisputed evidence is that Collins had
been operating the loader for some period of time loading clay into the bucket,
driving up the ramp and dumping the clay into the hopper with Hartline in the
loader. The parties stipulated that
Hartline was not secured with either a seat or a safety belt and that no
testing, training or maintenance was being performed at the time of the
accident. (Stip. of Fact Nos. 14, 15, 16, 18 and 19.) This is a strict
liability mandatory standard and I find that it has been violated.
The Secretary has
also established the S&S criteria. There was a violation of section 56.9200(d).
The violation created a discrete safety hazard. The loader travels over uneven
ground and up and down ramps and carries thousands of pounds of a material in
the bucket. It is reasonably likely that
running over a bump or into a ditch in the road could cause the loader to
bounce or tip side to side throwing an unsecured passenger into the driver
causing bodily injury or into any one of the control levers in cab causing the
operator to lose control of the loader.
This in turn could result in the loader rolling over causing even
greater injuries to the driver.
I find this violation to be of very serious gravity but I do
not find this violation to be an UF as discussed above.I find it to be the
result of high negligence for the reasons set forth above. I assess a penalty
of $50,000.00.
2. Order No. 6091420
This section 104(d) order was issued by Investigator Phillips
for a violation of 30 C.F.R. §56.14206(b) which he assessed as S&S, and UF with a fatal injury having occurred as
the result of high negligence.The Secretary proposes a penalty of $25,000.It
states:
A fatal accident
occurred at this operation on May 2, 2009 when a miner was run over by the end loader he was
operating. The victim stopped on the
elevated ramp with a loaded bucket
in the raised position and exited the end loader. Management engaged in aggravated conduct constituting more than ordinary negligence by
not correcting a known work
practice. This violation is an
unwarrantable failure to comply with a mandatory
standard.
(S-2.)
The mandatory standard provides in
relevant part that when mobile equipment is unattended or not in use, buckets
shall be lowered to the ground.
Hitson testified that as the first
responder, he found the loader in the position it had been in when the accident
occurred. The loader was parked on the
ramp with the bucket in the fully raised position. He got into the loader and lowered the bucket
to the ground, put the loader in neutral and turned off the ignition to render
the scene safe for persons investigating the accident. (Tr. 29.)
Deputy Crowder testified that when
he arrived on the scene the loader was in the same location as it had been when
the accident occurred. He was informed
by Hitson that he (Hitson) had lowered the bucket. Crowder observed that there were no visible
drag marks the ramp to indicate that the bucket was lowered before the loader
rolled down the ramp crushing Collins.
(Tr. 46-47.) This can be seen in
the photographs S-16-19 which clearly depict tire treads in front of the bucket
but no drag marks.
Inspector Phillips testified that
when he interviewed Hartline, she told him that when Collins received the first
call from Goss, he parked the loader on the ramp just below the truck bed. The
next time he received a call, Collins backed up from the hopper and parked the
loader in the same location towards the lower end of the ramp and left the
bucket in the air. (Tr. 107-08.)
Active has made the argument that
Hartline could have raised the bucket when she was fumbling with the controls
in the cab. In light of Hartline’s
statement to Phillips, Crowder’s and Hitson’s testimony and the photographs of
the scene, there is no basis to believe such a theory. I find the standard has been violated.
I also find this violation is
S&S. The loader was used to transport clay up a ramp with an 11-18% incline
to feed it into a hopper. Tr.
206-07. As Phillips explained, the
hazard posed by leaving the bucket in the raised position, especially when
loaded with material and parked on an incline, is that the hydraulics could
fail causing the bucket to suddenly drop.
With the bucket on the ground, the loader is far less likely to roll
backwards. If it did roll, the bucket would slow or stop the loader if it is
pressed to the ground. (Tr. 124-26.) Glover, Active’s operations manager,
confirmed that a lowered bucket could keep the loader from rolling and that is
why he would lower the bucket. (Tr.
341-42.) Under continued mining operations, it is reasonably likely that the
hazard would cause injuries and such injuries would be reasonably serious,
including fatal crushing injuries. (Tr.
125-26.)
For the same reasons as set forth in
the discussion above, I do not find this to be UF. This violation was very
serious and as set forth above, the result of high negligence. I assess a
penalty of $10,000.00.
3. Order No. 6091421
This 104(d) order for a violation of
30 C.F.R. §56.14207 was assessed by Phillips as having resulted in a fatality,
S&S, UF and the result of high negligence.
The proposed penalty is $25,000. The order reads:
A fatal
accident occurred at this operation on May 2, 2009 when a miner was run over by a front-end loader he was
operating. The victim stopped the end
loader on the elevated ramp and
exited the machine without turning the wheels into a bank or using wheel chocks to prevent the machine from
rolling. Management engaged in aggravated conduct constituting
more than ordinary negligence by not correcting
a known work practice. The violation is
an unwarrantable failure to comply
with a mandatory standard.
(S-3.)
The standard covering parking
procedures for mobile equipment provides “when parked on a grade, the wheels or
tracks or mobile equipment shall be either chocked or turned into a bank.” 30 C.F.R. §56.14207.
The evidence is undisputed that
Collins parked the loader on the ramp just below the truck bed when he exited
to assist Goss with the belt motor.
Photographs S-17 and S-20 show the area where the loader came to rest
after crushing Collins. Hitson, Crowder,
Phillips, Hartline and Goss described the area as the lower section of the ramp
below the truck bed. Phillips testified
that the grade on this part of the ramp was approximately 11%. This is a sufficiently steep grade to cause
mobile equipment such as the loader to roll downhill if not properly secured.
(Tr. 341.) The Respondent admitted that
chocks were not available. (S-6; Stip. of Fact No. 34.) Active presented evidence that when Collins
was observed operating the loader by Active and IEC supervisors, he always
parked the loader to the side of the ramp on even ground. Never had he been observed parking on the
ramp. (Tr. 301, 316-17.) Goss testified
that he saw the loader on the ramp when Collins came to assist him but he could
not or did not observe whether the wheels were turned into the side of the
ramp. (Tr. 358-59.) Active’s defense of
this violation is that there is insufficient evidence from which to draw the
conclusion that the wheels were not turned into the bank at the time Collins
exited the loader since Hartline admittedly moved the loader from the position
in which Collins parked it.
I accept the expert testimony of the
Secretary’s witnesses. Inspector
Phillips stated that had the wheels been turned into the bank, the tracks that
can be seen in photographs S-12, 17, 20, 28 and 29 would not have been in a
straight line as they are. (Tr.
83.)Investigator Crowder provided the same opinion as Phillips that the loader
was parked on the ramp and rolled straight backwards when Hartline released the
parking brake which accounts for the tracks being in a straight line. Tr.
46. The Secretary has proven the
standard has been violated.
The violation is S&S. The violation, as Inspector Phillips
explained, poses the discrete hazard of the loader rolling backwards down the
grade which is more likely to occur if the wheels are not turned or
chocked. If the loader did start to
move, it would likely move only a foot or two before it stopped itself. In this case, Collins would not have been
killed. (Tr. 141.) As is evident from this event, the hazard of
the loader rolling straight backwards while unattended is reasonably likely to
result in a very serious, if not fatal accident.
The Secretary alleges UF for this
violation on the same agency theory and I therefore find it is not UF. The gravity is very serious and the
negligence is appropriately assessed as high. I assess the penalty at
$15,000.00.
4. Citation No. 6091422
This alleged
§104(a) violation of 30 C.F.R. §46.7(a) was assessed by Inspector Phillips as
having caused a fatal accident and S&S resulting from moderate
negligence. The proposed penalty is
$22,000.00. The citation reads:
A fatal accident occurred at this
operation on May 2, 2009 when a miner was run over
by the end loader he was operating. The
victim parked the end loader on an elevated
ramp with the bucket in the raised position, wheels not chocked, and an untrained passenger
in the operator’s compartment with no seat provided. He had not
received adequate training to perform the task of operating an end loader in a safe manner.
(S-4.)
The cited section of this mandatory
standard requires the operator to:
[P]rovide
any miner who is reassigned to a new task in which he or she has no previous work experience with training in the health and
safety aspects of the
task to be assigned, including the safe work procedures of such task, information
about; the physical and health hazards
of chemicals in the miner’s work
area, the protective measures a miner can take against these hazards, and
the contents of the miner’s HazCom program.
This training must be provided
before the miner performs the new task.
30 U.S.C.
§46.7(a).
The Secretary supports her position
in her post-hearing brief by stating that Collins parked the loader on the ramp
without lowering the bucket or securing the wheels on numerous occasions. He also allowed his girlfriend to ride in the
loader. She also asserts that other loader operators were not properly trained.
“These numerous violations by multiple people” raise a logical inference that
when “repeated violations are committed by more than one person…it becomes
increasingly likely that the problem lies in the training.” (Sec’s Post-Hearing Brief at 26.) The problem
with this argument is that the Secretary presented no evidence that any other
loader operators worked for Active, that there were any other violations of
this standard by anyone else prior to the accident, or that Collins operated
the loader improperly at any time other than on the night of May 2, 2009, or
that anyone was aware of the improper operation of the loader by Collins on
that night.
Also problematic with the
Secretary’s theory of the violation is the Operator’s position that Collins was
not an inexperienced loader operator. Paragraph (c) of the standard states that
new task training is not required under paragraph (a) if the miner has similar
task experience and can demonstrate the necessary skills to perform the task in
a safe and healthful manner by observation. Nathan Southerland testified that
he hired Collins as a loader operator. At the time he took him on, Collins had
approximately 25 to 30 years of equipment operating experience, including the
operation of front-end loaders. (Tr.
278-79.) The Secretary offered nothing to rebut this information. Southerland stated that he observed Collins
operating the loader when Collins was on the day shift for a period of three to
four weeks for a total time of approximately 40 hours on the same loader
involved in the accident. (Tr. 276,
278.) The Secretary’s response to this
testimony was that Southerland could not present documentation to prove this
claim. Instead, Southerland produced the
New Miner Training document R-14, which they assert has an insertion in the
right margin indicating Collins was tasked trained on the loader for 3.5 hours
and that this notation was added sometime after the accident occurred making it
wholly unreliable. (Sec’s Post-Hearing Brief at 26-27.) Phillips testified that the independent
contractor has the primary responsibility of conducting task training for their
employees. He admitted that when he reviewed the task training document during
the course of his investigation, he did see that Collins had received task
training for 3.5 hours by IEC. (R-14
line second to the bottom indicates “task training” for 3.5 hrs.) Phillips
clarified with Southerland that this was done and annotated on the form in
April 2009. (Tr. 399-403.) In fact, Phillips said that he learned through
conversation during the investigation that “the only thing was (sic) verified
was that 3.5 hours …(sic) for moving rock around, plus the 25 years (sic)
experience.” (Tr. 404.) Southerland
testified that he had never completed these training forms before and there was
likely a mistake made by him it their completion. (Tr. 280-82.)It is reasonable to draw the
conclusion from the testimony of Phillips that the training was done and the
notation on the side of the document that clarified that the task training was
for the loader was added later; not that a falsification of a record took
place. Since Collins apparently did not
operate any other equipment beside the front-end loader or perform any other
tasks for Active, it is reasonable to conclude that the “task training” that
appeared on the document at the time of the accident referred to front-end
loader training.
The standard cited does not specify
the amount of time during which an experienced miner must be observed in order
for management to make the determination that he can operate the equipment in a
safe and healthful manner. With 25 years
of experience and having been observed for the three weeks Collins was on the
day shift, Southerland believed Collins demonstrated sufficient skills to
operate the loader safely and healthfully.
There is no evidence to establish that this is an unreasonable amount of
time in which to make this determination under the circumstances. Phillips testified that under Part 46, New Miner
Training, the task training must be recorded within 90 days and any training
outside of the first seven categories on the form must be recorded within 60
days.
The time periods for recordation of
training is contained in 30 C.F.R. §46.9. A new miner is defined as “a person
who is beginning employment as a miner … who is not an experienced miner.” 30
U.S.C. §46.2. On the other hand, an experienced miner is as one who fits into a
number of categories requiring far less than the 25 years of experience Collins
had at the time he was hired in February 2009.
Under the recordation standard, new miner training must be completed
within the time periods mentioned by Inspector Phillips. For newly hired experienced miners,
recordation must be completed 60 days after the miner begins work at the mine or
upon completion of new task training. According to the evidence and as
reflected on the training document, Collins was hired on 2/11/09 and his task
training was documented on 4/17/09. If
Collins had been observed during the first two to three weeks of his employment
on the Active mine site, I do not find this is an untimely recording of task
training for an experienced newly hired miner. Furthermore, the section of the
standard under which Active was cites applies to new miners, not experienced
newly hired miners.
The Secretary has not met her burden
of proving a violation of the mandatory standard cited and the citation is
vacated.
Docket
No. SE-2010-38M
5. Citation No. 6117817
This alleged
violation of 30 C.F.R. §56.14107(a) was issued by MSHA Inspector Wriston as
reasonably likely to result in a permanently disabling injury affecting one
person, S&S and the result of moderate negligence. It was later amended
from a section 104(a) citation to a section 104(d) citation and from moderate
to high negligence and UF on the agency theory because Goss committed the
alleged violation. The proposed penalty
is $2,000.00.
The citation
states that “a guard to prevent persons from contenting (sic) the plant infeed
(sic)screw motor v-belt and drive assembly was not in place.” The amended citation further added the words
“Leadman Goss engaged in aggravated conduct constituting more than ordinary
negligence in that he was aware of the missing guard, and allowing (sic) the
machine to run.”
(S- 5.)
The
standard, 30 C.F.R. §56.1410(a) states as follows:
Moving machine parts shall be
guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan
blades, and similar moving parts that can cause injury.
It was this
v-belt motor assembly that Collins was assisting Goss with on the night of the
fatality. On the third occasion when
Goss called Collins for assistance, Collins tripped over Hartline and was
killed.
Danny
Wriston has been an MSHA inspector for 21 years. His mining experience includes
15 years in underground coal mines as a foreman and fire boss, electrician and
maintenance man. He reported to the
accident site and took numerous photographs including S-21 A-D of the v-belt motor
assembly. He found the guard to the
motor depicted in S-21 C lying on the ground leaving the moving parts of the
motor exposed. As he explained, the clay travels from the hopper to the in-feed
screw, as the screw turns the material is carried along the belt into the plant
for processing. Along this assembly line, there are several pinch points at the
upper and lower pulleys that make up the motor drive. The lowest moving exposed part was 18” off
the ground, the second one approximately 36” off the ground and the third one
another six inches higher. (Tr. 231-36.) Goss told Wriston that he had removed
the guard at approximately 6pm because it was making noise. He ran the plant
until the time of the accident without the guard in place. Goss confirmed by his testimony that he operated
the motor for several hours after he removed the guard. (Tr. 374-76, 385-86.)
Active
refers to a maintenance exception under a different standard than the one cited
as a permissible justification for removing the guard while operating the
motor. 30 C.F.R. §56.14105 provides that “machinery or equipment motion or
activation is permitted to the extent that adjustments or testing cannot be
performed without motion or activation, provided that persons are effectively
protected from hazardous motion.” They
argue that the Secretary has cited the wrong standard and even if it she has
not, there was little likelihood that anyone would be exposed to injury as Goss
observed Collins standing a safe distance away from the motor when he was asked
by Goss to listen to the motor.
The
Secretary correctly refutes this argument by pointing out that the cited
standard more specifically applies to guards and is therefore the controlling
standard to cite in this situation. Furthermore, Goss went back into the
laboratory building and Collins returned to the loader and continued to operate
for some lengthy period of time while the guard remained on the ground. Tr. 257. Wriston testified that based upon
his experience with this type of motor, there would be no need or it would be
completely unsafe to try to adjust it while it was running. Tr. 261. I credit
the experienced opinion of Inspector Writson and find this standard has been
violated.
Wriston
testified that he assessed the violation as S&S because the unguarded
condition of the motor created a hazard of exposing moving parts and pinch
points which could cause the loss of a finger or limb given the height of the
motor from the ground. (Tr. 236.)
According to Wriston, the condition of the ground surrounding the motor was
rocky and uneven and it was dark outside. (S-21; Tr. 243.) Wriston also stated that being five feet away
from the motor would not be close enough to enable someone to determine what
the cause of the malfunction. It would, however, be an unsafe distance to stand
because it would be within the height of an average person plus the length of
the arms meaning it was close enough for someone to come in contact with it if
they tripped. (Tr. 263-64.) I give
substantial weight to Inspector Wriston’s opinion that it was reasonably likely
that an injury of a reasonably serious nature would result from this violation
and find it was properly assessed as S&S.
For the same
reasons as set forth above, I do not find this violation to be UF but find it
to be the result of a high degree of negligence. Not only was there a complete
lack of supervision for the entire 12 hour night shift for a period of almost
two months, but, Goss testified that the motor had been malfunctioning during
the day shift and management had to be aware of this. (Tr. 349.) Still, knowing that Goss would
have to fix the motor in order to run the plant, Active did not find it
necessary to have a foreman present to oversee the shift. I find the proposed assessment of $2,000
appropriate.
III. PENALTIES
Section
110(i) of the Act requires the Commission and its administrative law judges,
through its delegation of authority, to consider the following statutory
factors:
In assessing civil monetary penalties, the Commission shall consider theoperator’s history of previous
violations, the appropriateness of such penalty to the size of the business of operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation. In proposing civil penalties under this Act, the Secretary may rely upon a summary review of the information available to [her] and shall not be required to make findings of fact concerning the above factors.
30 U.S.C. §820(i).
The
Secretary has submitted information that the Respondent had no prior violations
in the prior five months that it had been in operation and had 32 violations in
all of Respondent’s mines combined in the past 15 months. The Respondent has stipulated that the mine
reported 7,314 controller hours worked in calendar year 2009 and 253,450
controller hours in 2008 in other mines; and, that the proposed penalties will
not affect the operator’s ability to continue in business. The Secretary does not dispute the
Respondent’s good faith effort to achieve compliance after notification of the
alleged violations. (Sec’s Post-Hearing
Brief at 34.)
The gravity
and negligence have been addressed within the discussion under Findings and
Conclusions of Law above. I have also found that the operator did not have
knowledge of the violative conduct engaged in by Collins and Goss, however, I
do not find that fact or any other factors argued by Active mitigates the high
negligence in the total lack of supervision of the night shift by the operator.
The
following penalties are assessed in consideration of the statutory factors
under 110(i) of the Act: 1) Citation No. 6091419, $50,000; 2) Order No.
6091420, $10,000; 3) Order No. 6091421,
$15,000; 4) Order No. 6091422, Vacated; 5) Citation No. 6117817, $2,000.
IV. Order
Citation
Nos. 6091419 and 6091422 and Order Nos. 6091420 and 6091421 under Docket No. SE
2010 -741M are Modified to not UF with High negligence and are Affirmed
as modified. Citation No. 6091422
under Docket No. SE 2010-741M is Vacated. Citation No. 6117817 under Docket No. SE
2010-38M is Modified to not UF with High negligence and is Affirmed
as modified. Respondent is hereby ORDERED to pay the sum of $77,000
within 30 days.
/s/
Pricilla M. Rae
Priscilla
M. Rae
Administrative
Law Judge
Distribution:
Benjamin A. Stark Esq., U.S. Department of Labor, Office of
the Solicitor, 61 Forsyth St. S.W., Room 7T10, Atlanta, GA 30303
Melanie L. Paul, Esq., U.S. Department of Labor, Office of
the Solicitor, 61 Forsyth St. S.W., Room 7T10, Atlanta, GA 30303
Carla J. Gunnin, Esq., Constangy, Brooks & Smith, LLP,
230 Peachtree St. N.W., Suite 2400, Atlanta, GA 30303
[1] Section 104(d)(1) of the Mine Act provides:
If, upon any inspection of
a coal or other mine, an authorized representative of the Secretary finds that
there has been a violation of any mandatory health or safety standard, and if
he also finds that, while the condition created by such violation do not cause
imminent danger, such violation is of such a nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation given to the
operator under this Act.
30 U.S.C. §801.