Hearings
were held on March 12 and April 18, 2014 in Bluefield, Virginia and Beckley,
West Virginia, respectively. During the hearings, the parties introduced
testimony and documentary evidence. Witnesses were sequestered.
For
the reasons set forth below, I find that Citation No. 8203250 was properly
issued, as written, and I assess a civil penalty of $3689.
Based
on a careful review of the entire record, including the parties’ post-hearing
briefs and my observation of the demeanor of the witnesses,
I make the following:
II. Findings of Fact
A. Stipulations of Fact
and Law
At hearing, the parties
agreed to the following stipulations:
1.
The Administrative Law Judge and
the Federal Mine Safety and Health Review
Commission
have jurisdiction to hear and decide these civil penalty proceedings pursuant to
Section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815.
2. Extra Energy,
Inc., is the operator of Virginia Point No. 1 Surface Mine, Mine I.D. 44- 07172.
Operations
of Extra Energy, Inc., are subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq., as amended.
3. MSHA
Citation No. 8203250 and all appropriate modification and continuation forms,
may be admitted into evidence for the purpose of establishing the accuracy of
any statements asserted therein.
4. Respondent
produced 711,304 tons of coal in 2012 at the mine (Mine Identification No.
44-07172).
5. Payment
by Respondent of the proposed penalty of $3,689 will not affect the Respondent’s
ability to remain in business.
6. Inspector Mark
Tuggle was an authorized representative of the Secretary. Tr. 12- 13.
Tr. 11-13.
B. Background Information
The cited
standard provides that “[m]obile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.” 30 C.F.R § 77.404(a). The
cited truck, a Caterpillar 777B model, is a large dump truck, often used for
rock hauling in the pit mining process. The truck measures 32 feet in length,
17 feet in width, and 16.1 feet in height. It is capable of hauling a 320,000
pound load. Tr. 60, 66.
The steering
system of the truck is controlled by a hydraulically-operated steering linkage
assembly, consisting of several rods and arms located on the underside of the
truck. Tr. 75; Jt. Ex. 2. The steering wheel controls steering cylinders on the
left and right side of the steering linkage located next to the front wheels. Tr.
75, 292. As the steering wheel is turned, a proportioning valve sends
hydraulic fluid into one cylinder, which forces that cylinder to push on the
linkage system and the opposing cylinder to pull, thereby supplying the force
necessary to turn the wheels of the truck. Tr. 78. If the steering wheel is
turned in the opposite direction, the fluid valve reverses direction and the
hydraulic fluid flows accordingly. Tr. 76.
Two
tie rods installed on each side of the bottom of the truck are an integral part
of the steering linkage assembly. Tr. 76; Jt. Ex. 2. The tie rods connect the
left and right wheels so that they turn simultaneously in alignment. Tr. 78. The
tie rods have no hydraulic components and do not push or pull the truck’s
wheels. Tr. 76.
A
pitman arm extends down from the steering box and connects to one end of each
tie rod. The opposite end of each tie rod is connected to either the left or
right wheel via a steering arm. Tr. 77. The tie rods are connected to the
pitman and steering arms by ball joints. Tr. 80-81; Jt. Ex. 2. Like a hip
joint, a ball joint connects two ends, but allows a range of angular motion. The
ball joint connects the vertical components for the assembly with the
horizontally located tie rods. Tr. 79; Jt. Ex. 2.
The
balls joints are comprised, in part, by a ball with a threaded rod at the
bottom. The ball rests within a socket connected to an arm. Tr. 79.
The tie rod is connected to the steering linkage assembly by a nut, which is
tightened over the threaded rod at the bottom of the ball joint. Tr. 79. According
to Caterpillar’s 777B service manual, the nut must be torqued to 1,000 foot
pounds. Jt. Ex. 2. After the nut is torqued, a cotter pin, or metal fastener
with two prongs, is inserted in a hole drilled horizontally through the
threaded rod at the end of the ball joint, and then through a notch on the
castellated nut. Tr. 50-51.
The cotter pin ensures that the nut remains tightened according to
specifications. Tr. 50,51.
C. The Inspection at Issue
1.
Background
On
June 24, 2013, MSHA inspectors Mark Tuggle
and Stephen Crouse
arrived at the Virginia Point No. 1 Mine site to conduct a ground plan
inspection of an independent contractor’s high wall mining operation. Tr. 33-34.
Between noon and 12:30 p.m., while sitting in his vehicle near the site,
Tuggle noticed oil on the ground. Tr. 88. After observing a Caterpillar 777B
haulage truck make “several passes,” Tuggle identified the truck as the source
of the oil. Tr. 89.
Tuggle observed
the truck from about 100 feet away and saw “differential wheel movement” from
the rear tires as the truck moved backward. Tr. 41, 88-89. Tuggle then signaled
for the driver, Franklin Hunt, to stop the vehicle. Tr. 90.
Hunt pulled over to a nearby berm and called maintenance foreman, Robbie Ray,
via radio. Tr. 94, 248-49.
2.
Visual Inspection
After
the truck was parked and the tires were chocked, Tuggle stooped down under the
vehicle to inspect the
steering mechanism. Tr. 46. Tuggle instructed Hunt to turn the steering wheel
various ways so that Tuggle could observe the movement of the ball joints. Tr.
46-47. During one turn, Tuggle measured an inch of vertical play between the ball
and socket joint on the left front side, using a standard-rule tape measure. Tr.
47. Tuggle’s contemporaneous notes confirm this measurement. P. Ex. 2. Tuggle’s
notes also confirm that “the nut is loose on the bottom of the ball joint and
the nut has sheared the cotter pin keeper and allowed the nut to back off.” Id.
Tuggle
then called Crouse over to observe the ball joint movement. Tr. 48. Crouse went
under the truck, while Tuggle stood to the side and gave Hunt directions for
turning the steering wheel. Tr. 48. Crouse testified that he observed the nut
on the ball and socket joint hanging down about an inch, about to fall off, and
in bad condition. Tr. 163, 171. Although Crouse did not conduct a “full
inspection” of the truck, Crouse testified that he would have issued a citation
for a section 77.404(a) violation because of the vertical movement in the ball
joint and the loose nut on the tie rod ball joint. Tr. 170-73. Crouse testified
that the violative condition contributed to the hazard of loss of control of
the haul truck, particularly given the changing surface and grade over which
the truck was driven. Tr. 164-65, 168. Crouse testified that he would have
written the citation as highly likely, rather than reasonably likely, to result
in a fatal injury. Tr. 166.
While
waiting for maintenance foreman Ray to arrive, Crouse spoke with assistant
superintendent, Ritchie Bowman. Bowman told Crouse that Ray was coming with a
dial indicator to measure the play in the ball joint. Crouse told Bowman that a
dial indicator was not needed; it’s a no-brainer because the nut is about ready
to fall off and the truck is not being kept in safe operating condition. Tr.
173.
Ray
arrived after Tuggle and Crouse examined the ball joint and steering assembly. Tr.
104-05. Ray brought a dial indicator to measure horizontal movement of the
steering linkage. Tr. 105-06. Crouse and Ray then went under the truck to check
for play while Hunt turned the steering wheel in various directions. Tr. 106. Tuggle
credibly testified that while Ray was making his own examination, Ray stated, “There’s
no need to even measure this.” Tr. 105. Crouse testified that Ray removed the
nut with his hands after a couple turns. Tr. 173-74. According to Tuggle, when
Ray attempted to re-torque the nut onto the ball joint, he was unable to do so
because of excessive wear. Ray subsequently installed an entirely new joint
assembly to replace the old one. Tr. 149.
3. The Controverted Cotter Pin
Tuggle
testified that the cotter pin on the ball joint at issue was sheared. Tuggle
testified that he was unable to see the ends of the cotter pin protruding from
the joint assembly, and the nut had slid down the threading on the rod at the
end of the ball joint. Tr. 50. As noted, the ends of a cotter pin should be frayed
backward to prevent the cotter pin from falling out of the nut and rod. Tr.
140. Based on his observations, Tuggle concluded that the ends were sheared off
and that the rest of the cotter pin remained within the hole that had been drilled
into the rod and the slot in the nut. Tr. 141. Tuggle testified that shearing
can occur when the nut is subject to excessive torque or downward force. Tr.
109.
Tuggle further
testified that when Ray came to investigate the problem, Ray removed the nut
with his bare fingers, at which time Tuggle was able to see the sheared cotter
pin. Tr. 100. Tuggle testified that Ray then pulled the remaining pieces of
the cotter pin out with needle-nosed pliers, and threw the remnants on the
ground. Tr. 100, 109, 120.
Crouse corroborated
Tuggle. Crouse testified that when he investigated the tie rod and ball joint,
the cotter pin appeared to have been sheared. Tr. 163.
Ray
testified that he could take and rock the nut back and forth and it was covered
in oil or grease and mud. He testified that the top of the nut was flush with
the bottom of the steering link. Tr. 334. Ray further testified that there
could be no vertical movement on the ball stud because the nut prevents it from
coming up out of the center link. Tr. 334-35. Ray testified that he and
Respondent’s mechanic, Arvil Phipps, cleaned the grease and mud off the nut
with rags, and the cotter pin was still in the stud. Ray testified that he
could see the round head of the cotter pin sticking out between the cutouts of
the nut where it was driven back in the groove. Tr. 335-36. The following
leading exchange then occurred on direct examination of Ray.
Q. So
the end was not sheared off?
A. No.
Q. And
it was sticking out from the ball stud itself under the nut?
A. It was recessed in the nut. That’s -- we
drive it in and bend the opposite sides of it down.
Q. But
it wasn’t completely in the ball stud?
A. No.
No. It was sticking out.
Q. All right. And the other – what was the
other -- the condition of the other end of the cotter pin?
A. It
was bent down the backside of the ball stud.
.
. . .
Q. So
there is two legs on the end of this pin?
A. It’s
a split pin.
Q. One
was bent up and one was bent down?
A. Yes.
Tr. 336.
Respondent’s
mechanic Phipps, who had been in Respondent’s employ for one and one-half
years, testified that when he arrived to fix the ball joint, he removed the
cotter pin with a pliers and a hammer. Tr. 269. Phipps testified that the
cotter pin was not sheared and was in one piece. Tr. 269-70. Phipps further
testified that after he removed the cotter pin, he tightened up the nut, but
inspector Tuggle was still not satisfied, so a whole new assembly was
installed. Tr. 269-70.
4. Issuance of
Citation No. 8203250
At
3:36 p.m., Tuggle issued Citation No. 8203250 for a § 74.404(a) violation. Tr.
35. The violation was designated S&S because the gravity was reasonably
likely to result in a fatal injury affecting one miner. Negligence was
designated as moderate. P. Ex. 1. Tuggle testified that Respondent should have
been aware of the hazardous condition of the ball joint during the
pre-operational inspection of the truck, and that there were no mitigating
circumstances. Tr. 64, Tr. 67-68. The proposed penalty is $3,689.
D. Conflicting Testimony about
the Potential Effect of a Loose Nut on a Ball Joint with
an Inch of Vertical
Play
1.
Petitioner’s Testimony
Tuggle
testified that the potential hazard resulting from a loose nut and inch of
vertical play in the ball joint was comprised steering and loss of control of
the truck should the ball joint slip. Tr. 53,59. Specifically Tuggle testified
as follows:
Q. Okay. Now, as for the reasonable likely –
reasonable likelihood, what was the hazard that you contemplated?
A. That the truck would actually lose the tie
rod, the ball joint would actually come apart, the wheel stability would be
lost. There would still be partial steering due to the hydraulic jacks, but the
steering itself would be compromised. And the roads, even though they were
wide in certain areas, they were passing cars, -- or not cars, pickup trucks
and service trucks, water trucks. They were actually passing where the miners
were on foot walking back and forth from the highwall miner to the Porta John,
their cars and the bus. And if they lost any control in it, then there is a
chance that it would run over or kill somebody, because one of these trucks --
there is multiple videos you can go on msha.gov, and you can actually look up
on Google, where these trucks have run over similar pickup trucks, and they’re
flat as a pancake.
Q. And what do you believe made that
reasonably likely?
A. Is because the nut was ready to
fall off, and this truck was loaded coming down steeper grades. Fully loaded,
and, you know, with a – it’s three – excuse me, it’s close to 324,000 pounds
loaded.
Q. Okay.
A. So coming down the steep grade,
if you lost it down a steep grade fully loaded, and you’re trying to rely on
just a single jack to steer your wheels, the chance is that that -- you’re not
going to be able to steer it.
Q. Now, did you witness this vehicle
operating loaded?
A. Yes, I did.
The Court: Did you measure the grade?
The Witness: No, I did not measure the
grade. It was steep on the right side as it come into the pit, but as an
engineer, I would guess it between ten and twelve degrees.
Tr. 59-60. On rebuttal,
Tuggle further testified that the haul truck was driven at speeds between 12
and 15 miles per hour (mph) while loaded, and greater than 20 mph when
unloaded. Tr. 400-01.
Crouse’s
testimony about the hazard of losing control of the vehicle under continued normal
mining conditions corroborated Tuggle’s testimony that such a loss of control would
result in injury or fatality to the driver or to other miners in the vicinity. Tr.
164-67.
Tuggle further testified
that during training at the Mine Academy, MSHA instructs inspectors to consult
a manual, which Tuggle referred to as the “Fleet Commercial” or the “Commercial
Vehicle Program Manual,” to aid in determining when a vehicle is in safe operating
condition. Tr. 57-58, 84-85.
According to Tuggle, the manual provides that a vehicle with any
vertical play in a ball joint is to be removed from service. Tr. 84. Based on
his experience in the trucking industry prior to working for MSHA and his
training at the Mine Academy, Tuggle credibly testified that vertical play in a
ball joint constitutes an unsafe operating condition requiring that the truck
immediately be placed out of service. Tr. 154-55.
With
regard to his negligence designation, Tuggle testified that an inadequate
pre-operational inspection had been performed on the haul truck. Tuggle
observed other vehicle inspections earlier that day that were conducted with
poor lighting and there was only one person present to inspect the steering system.
Tr. 64. Tuggle testified that a proper inspection of the steering system requires
two persons, one to observe the ball joints for play, and another to turn the
steering wheel from side to side to reveal any play. Tr. 129.
2.
Respondent’s Testimony
Ray
testified that a ball stud could not be removed, even if the nut on the bushing
was missing. Tr. 307. Rather, in order to remove the tie rod ball joint from
its socket, the cotter pin must first be removed. Tr. 304. According to Ray, an
impact wrench is required to remove the nut from the ball stud. He testified
that manual removal is impossible. Tr. 301, 305. Ray also testified that a
properly installed ball stud cannot be dislodged without the application of
considerable force. Tr. 304. Ray testified that removing the ball stud from the
socket in the wishbone assembly generally requires the use of a 20-ton
hydraulic jack. Id. After such jack is applied to the joint, the ball is
raised from the assembly and hit with a hammer to remove the ball joint from
the socket. Tr. 304, 307.
Respondent’s
safety and compliance director, Philip Hale, referred to the Caterpillar 777B's
steering jacks as a “failsafe system.” Tr. 199.
In Hale’s view, the steering jacks are responsible for moving the tires as the
truck turns, and the loss of a tie rod would not result in a hazard since the tie
rod only ensures that the wheels turn uniformly, not that they turn at all. Tr.
199.
Respondent’s
truck operator, Gregory Cole, testified that he alone performed a pre-operational
check on the cited truck at 6:00 a.m. on the day of Tuggle’s inspection. Tr.
206, 222-223. The pre-operational checklist in evidence does not
mention any safety concerns. R. Ex. 1. Cole drove the truck from about 6:00
a.m. until 1:30 p.m. that day, and he did not notice any steering difficulties.
Tr. 214, 225. Cole testified that if any steering difficulty had occurred, he
would have pulled the truck over immediately and examined it, per company
policy. Tr. 214. Cole testified that at the time of the inspection, the mine roads
over which the truck was driven did not contain sharp turns or steep grades. Tr.
213-4.
Driver
Hunt
testified that there was a five to six
percent grade along the route driven on June 24, 2013. Tr. 236. Hunt further testified
that the turns of the steering wheel that Tuggle asked him to perform during
the inspection were sharper than the turns usually encountered at the mine
site. Tr. 245.
E. Respondent’s
Post-Inspection Video Evidence
Respondent
introduced a flash drive containing two videos of the cited Caterpillar 777B haul
truck, which was identified by the serial number 1747 on the outside of the
driver’s cab window. Tr. 360.
The
first video is two minutes and thirty-six seconds long. It is identified on the
flash drive as “195” and it was received in evidence as R. Ex. 2. This video
shows the truck being driven off site, on flat terrain, with the right side tie
rod disconnected. Tr. 360; R. Ex. 2. Ray estimated that the truck in the video was
driven at about five to ten mph over terrain with rocks, similar to that at the
mine site. Tr. 364, 369. Tuggle testified, on rebuttal, that the
terrain in the video was less steep than the terrain present at the mine site. Tr.
400.
I
find the video to be of little probative value to Respondent’s defense. The
video was taken off site. The truck in the video is not loaded. Mine roads and
curves are not being navigated in the video. Moreover, the operator is aware of
the filming and could compensate for a detached tie rod.
Throughout
the video, the camera pans away as the haul truck makes a turn, or the turn is
executed behind another large vehicle. During the truck’s initial turn in the
video, the front left tire starts to turn before the right front tire. Thereafter,
the right front tire appears to turn more quickly to “catch up.” Tr. 397; R. Ex.
2 at 00:55-00:58. For much of the video, one is unable to see the front tires
of the truck. R. Ex. 2 at 01:05-01:24.
At
one point in the video, the massive truck is driven behind a bus and another
vehicle, and the front tires are not visible as the truck backs up to make a
turn. R. Ex. 2 at 01:24-01:41. The camera pans away completely at one point
while the truck is making this maneuver. R. Ex. 2 at 01:43. Thereafter, when
the truck is straightened out, the left side is driven over wooden cribbing on
the ground. R. Ex. 2 at 01:53-01:56. At this point, the video pans away and
zooms in and out. R. Ex. 2 at 01:55.
Later
in the video, the right front tire is driven over wooden cribbing and that tire
distinctly wobbles. R. Ex. 2 at 02:11-02:16. Tuggle testified that this
wobbling resulted from the detached tie rod on the right front tire. Tr.
399-400. Thereafter, the camera pans away and one is only able to see the back
of the truck before the video camera is turned off. R. Ex. 2 at 02:30, 02:36.
The second video
is labelled “1644.” This video is three minutes and 55 seconds long.
R. Ex. 3. This video shows
the process of ball stud removal. Tr. 309; R. Ex. 3. A 20-ton Air Over hydraulic
jack is placed on wooden cribs and lined up with the ball joint stud. Tr. 311;
R. Ex. 3 at 00:01-01:38. The jack applies force against the ball stud and causes
it to pop loose from the assembly. Tr. 311; R. Ex. 3 at 01:10-01:26.
A driver then
gets into the cab and maneuvers the truck around a relatively flat area. R. Ex.
3, 02:25-03:23. The viewer only sees the right side, or driver’s side of the
truck for a significant segment towards the end of the video. R. Ex. 3,
03:20-03:50. As the truck reverses and turns, the left front tire is somewhat
out of alignment and the video stops. R. Ex. 3 at 03:48-03:52.
III. Analysis and Disposition
A.
The Violation of Section
77.404(a)
Section
77.404(a) imposes two duties upon an operator: (1) to maintain machinery and
equipment in safe operating condition, and (2) to remove unsafe equipment from
service. Derogation from either duty violates the standard. Peabody
Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979).
The
large haul truck cited by inspector Tuggle was mobile equipment. It is
undisputed that such mobile equipment was in service when cited. The dispute
is whether the truck was maintained in safe operating condition. I find that
the truck was not maintained in safe operating condition and was not removed from
service. Accordingly, Respondent derogated both duties. I find the violation.
Equipment
is in unsafe operating condition under section 77.404(a) when a reasonably
prudent person familiar with the factual circumstances surrounding the alleged
hazardous condition, including any facts peculiar to the mining industry, would
recognize a hazard warranting corrective action within the purview of the
applicable regulation. Ambrosia Coal & Construction Company, 18
FMSHRC 1552, 1557 (Sept. 1996) (citing Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (Dec. 1982) (applying identical standard in underground coal
mines). Applying this test, I find that a reasonably prudent person familiar
with driving a large and often-loaded haul truck over uneven, curved and graded
mine roads, would recognize that an inch of vertical play in a ball joint and
a loose nut on the ball joint constitutes failure to maintain the truck in safe
operating condition, free from hazards that require corrective action. Had a
pre-operational inspection been completed, with one person monitoring the
steering linkage and another moving the steering wheel, the defects would have
been noticed by a reasonably prudent person.
I credit Tuggle’s
testimony that there was an inch of vertical play between the ball and socket
joint on the left front side when Hunt turned the wheel. Tuggle used a
standard-rule tape measure. Tr. 47. Tuggle’s contemporaneous notes confirm this
measurement and confirm that the nut was loose on the bottom of the ball joint
and had sheared the cotter pin keeper, allowing the nut to back off. P. Ex. 2.
Crouse essentially corroborated Tuggle’s testimony. Specifically, Crouse
testified that he observed the nut on the ball and socket joint hanging down
about an inch, about ready to fall off, and in bad condition. Tr. 163, 171. I
credit Crouse’s testimony that while waiting for maintenance foreman Ray to
arrive, Crouse told assistant superintendent Bowman that a dial indicator was
not needed; it’s a no-brainer because the nut is about ready to fall off and
the truck is not being kept in safe operating condition. Tr. 173. I further
credit Tuggle that when Ray arrived with the requisite tools to measure the
play and make his own examination, Ray chose not to and admitted, consistent with
Crouse’s no-brainer opinion, that “[t]here’s no need to even measure this.” Tr.
105. Ray did not deny this. Further, Crouse credibly testified that Ray removed
the nut with his hands after a couple turns. Tr. 173-74. Accordingly, I find
an inch of vertical play in the ball joint and a loose nut on the ball joint.
The Commission
has recognized that movement in steering linkage ball joints alone can rise to
the level of a hazardous defect. See LaFarge North America, 35 FMSHRC
3497, 3500 (applying section 56.14100(c), which concerns defects that make
continued operation hazardous, and remanding to determine amount of movement in
ball joints and whether such amount constitutes a hazardous defect). I find
that an inch of vertical play in the ball joint is sufficient to constitute a
hazardous defect. Tuggle convincingly testified that he was trained at the
Mine Academy to use the “Commercial Vehicle Program” as source criteria for
vertical play in the ball joint and that any vertical movement requires that
the vehicle immediately be removed from service. Tr. 57. The North American
Standard Out-of-Service Criteria manual, issued by the Commercial Vehicle
Safety Alliance, provides that a vehicle is to be taken out of service if any
of its ball and socket joints exhibit “any motion, other than rotational,
between any linkage member and its attachment point of more than 1/8 inch
(3.2mm) measured with hand pressure only” or if any tie rod exhibits “any looseness
in any threaded joint.” Commercial Vehicle
Safety Alliance, North American Standard Out-of-Service Criteria, at 44
(revised April 1, 2010). Since this manual was relied on by Tuggle pursuant to
his training at the mine Academy, I find it provides useful guidance for
whether the inch of vertical play in the ball joint constituted a hazardous
defect making continued operation of the haul truck unsafe. Further, I
emphasize that Tuggle was an experienced MSHA inspector, with specific skill
and training in the trucking industry, and therefore his opinion, based on his
training, that an inch of vertical play in the ball joint was sufficient to
constitute a hazardous defect requiring the haul truck’s removal from service, is
entitled to substantial weight. Cf., Harlan Cumberland Coal Co., 20
FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Co. v. FMSHRC, 52 F.3d
133,135 (7th Cir. 1995). Accordingly, I conclude that the inch of vertical play
in the ball joint constitutes a hazard making continued operation of the haul
truck unsafe and requiring its removal from service.
I further credit
Tuggle’s testimony that the nut at the bottom of the ball joint was loose and
ready to fall off, had sheared the cotter pin keeper, and was removed by Ray
with his bare hands. Tr. 50. Tuggle’s contemporaneous notes confirm his
testimony to this effect. P. Ex. 2. Crouse corroborated Tuggle. Tr. 163, 171,
173-74. Although Ray and Hale testified that a loose nut on the ball joint did
not constitute an unsafe operating condition, they never addressed whether play
in the ball joint constituted such a condition. Tr. 199, 295. Moreover, I
discount their testimony and find Tuggle’s testimony more persuasive. In
describing the hazard, Tuggle testified “[t]hat the truck would actually lose
the tie rod, the ball joint would actually come apart, the wheel stability
would be lost. There would still be partial steering due to the hydraulic
jacks, but the steering itself would be compromised . . . .” Tr. 59. Tuggle's
testimony that he observed the haul truck’s tires out of alignment before he
issued the citation supports the inference that a loose ball joint can
compromise steering. Tr. 88-89. The video evidence offered by Respondent
further bolsters rather than refutes the contention that a loose or
disconnected ball joint in a tie rod compromises steering control, which can be
hazardous. Tr. 397; R. Ex. 2 at 00:55-00:58; see also R. Ex. 2 at
02:11-02:16 (right front tire is driven over wooden cribbing and tire
distinctly wobbles). Tuggle credibly testified that the wobbling of the front
right wheel in the video as the truck rode over the wooden crib resulted from
the detached tie rod on the right front tire. Tr. 399-400.
In sum, based on
my review of the entire record, I find that the Secretary has proven by a
preponderance of the evidence that Respondent violated Section 77.404(a) by
failing to maintain the haul truck in safe operating condition, and by failing
to remove it from service.
B.
The Violation of Section
77.404(a) was Significant and Substantial
The Mine Act describes
an S&S violation as one “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). The Commission has held that a violation
is S&S “if, based on 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).
To establish an
S&S violation under National Gypsum, the Secretary must prove the
four elements of the Commission’s subsequent Mathies test: (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. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984) (footnote omitted); accord Buck Creek Coal, supra, 52 F.3d at 135
(7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
use of Mathies criteria). An evaluation of the reasonable likelihood of
injury is made assuming continued normal mining operations. U.S. Steel
Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting
U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984).
For
the reasons explained above, I have found the underlying violation of mandatory
safety standard 77.404(a).
With
regard to the second Mathies factor, the violation created a discrete safety hazard or measure of danger to
safety. My finding of a violation a fortiori requires a finding of a
discrete measure of danger to safety as the standard violated requires a
failure to maintain mobile equipment (the haul truck) in safe operating
condition. Ergo, if the truck is not maintained in safe operating condition
there is necessarily a discrete measure of danger to safety.
Furthermore,
the Secretary need only identify a safety hazard associated with the putative
S&S violation. Highland Mining Co., 34 FMSHRC 3434, n. 5 (Dec.
2012). Although the parties focused much attention on the discrete hazard of
loss of control caused by a detached tie rod, the record evidence establishes
that one inch of vertical play in the ball joint and the loose nut at the
bottom of the ball joint contributed to the discrete hazard of compromised
steering and loss of control of the haul truck. Tr. 59; Tr. 85. As noted, I
have found that there was one inch of vertical play in the ball joint, which
required the truck’s removal from service according to MSHA’s experienced
inspectors, MSHA Academy training, and guidance from the Commercial Vehicle
Safety Alliance, North American Standard Out-of-Service Criteria. In
addition, I have found that the nut at the bottom of the ball joint was loose,
ready to fall off, and had sheared the cotter pin keeper. Further, I have
credited Tuggle’s testimony over testimony from Respondent’s witnesses that
these hazards would compromise wheel stability and steering. Tuggle's pre-citation
observation that the tires were out of alignment bolsters my findings that the loose
ball joint compromised wheel stability and steering. The video evidence offered
by Respondent does more to bolster than refute my finding of the danger of a
loose or disconnected ball joint that could result in a detached tie rod and
compromise wheel stability, alignment and steering control. Tr. 397, 399-400;
R. Ex. 2 at 00:55-00:58; see also R. Ex. 2 at 02:11-02:16. There is clearly
different and unaligned wheel movement in the video, and the tire with the
detached tie rod exhibits wobbly motion. Tr. 397, R. Ex. 3; 0:55-:58,
1:53-1:56; Tr. 399-400. Accordingly, I find that the second Mathies
factor is satisfied.
Regarding
the third Mathies factor, the Secretary demonstrated a reasonable
likelihood that the hazard contributed to by the violation, i.e., loss of
control of the large haul truck on the mine roads, was reasonably likely to
result in an injury during continued mining operations. During continued mining
operations, a large haul truck driven at speeds between 12-15 mph over uneven,
curved and graded mine roads, with an inch of vertical play in a ball joint and
a loose nut on the ball joint was reasonably likely to result in loss of
control of the truck and injury to the driver, injury to another driver during collision
with another vehicle, or injury
to another miner travelling
on foot in the vicinity of haul truck operations. The driver of the truck or a
passing vehicle was clearly exposed to injury from collision or loss of control
of the truck due to failure to maintain the truck in safe operating condition. Further,
the credited testimony from inspectors Tuggle and Crouse establishes that other
miners travelling in passing vehicles or on foot were exposed to post-collision
injury from loss of control of the truck. Tr. 59, 62-63, 164, 167. In these
circumstances, an injury was reasonably likely to occur during continued
operation of the large haul truck over mine property with defective components on
the steering linkage assembly.
Concerning the
fourth Mathies factor, I find a reasonable likelihood that any such injury
would be of a reasonably serious nature. The loss of control hazard
contributed to by the failure to maintain the large haul truck in safe
operating condition was reasonably likely to result in a collision and
concomitant serious or fatal injury to the truck driver, miners in a colliding
vehicle, or miners struck on foot. The Caterpillar 777B is a very large rock
haul truck, measuring over 16 feet high and capable of carrying a load of over
320,000 pounds. A collision with another vehicle or miner likely would be
serious or fatal. Accordingly, the Secretary has shown a reasonable likelihood
that an injury resulting from the hazard contributed to by the violation was
reasonably likely to be serious or fatal.
C. Respondent’s Negligence was Appropriately Designated
as Moderate
The Respondent
challenges Tuggle’s moderate negligence designation. The level of negligence
is properly designated as moderate when “[t]he operator knew or should have
known of the violative condition or practice, but there are mitigating
circumstances.” 30 C.F.R. § 100.3, Table X. The level of negligence is properly
designated as low when there are considerable mitigating circumstances
surrounding the violation. 30 C.F.R. § 100.3, Table X (emphasis added).
Based on the testimony
and briefs, I do not find considerable mitigating circumstances that would
justify reducing the negligence designation from moderate to low. Respondent
highlights none. Further, the lack of adequate procedures for investigating
defects in steering linkage assembly components during Respondent’s
pre-operational inspection supports a moderate negligence designation. In this
regard, the pre-operational inspection should have included two individuals. The
record establishes that that there is no way to measure or observe play in the
ball joint without one miner manipulating the steering wheel and another
checking the tie rod and ball joints for movement and play. In these
circumstances, I find that the Secretary
properly designated the level
of negligence as moderate.
D.
Civil Penalty
I have evaluated the
Secretary's proposed penalty in light of the principles announced in my recent Big
Ridge decision. Big Ridge Inc., 36 FMSHRC slip op. at 4-6
(July 19, 2014) (ALJ). I find that the penalty proposed by the Secretary is
consistent with the statutory criteria in section 110(i) of the Mine Act. 30
U.S.C. 820(i). Accordingly, I assess a $3,689 civil penalty against Respondent.
IV. ORDER
For the reasons set forth above, I AFFIRM Citation No. 8203250, as
written. It is ORDERED that the operator pay a civil penalty of $3,689 within
30 days of this decision.
/s/ Thomas P. McCarthy
Thomas P. McCarthy
Administrative
Law Judge
Distribution:
Nicholas
Preservati, Esq. and Sarah Korwan, Esq., Preservati Law Offices, PLLC, P.O. Box
1431, Charleston, West Virginia 25325
Anthony
Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th
Avenue North, Suite 420, Nashville, Tennessee 37219
