<DOC>
[DOCID: f:c97-61m.wais]
BOB BAK CONSTRUCTION
November 3, 1997
CENT 97-61-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
November 3, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 97-61-M
Petitioner : A.C. No. 39-01328-05527
:
v. :
: Crusher No. 3
BOB BAK CONSTRUCTION, :
Respondent :
DECISION
Appearances: Edward Falkowski, Esq., U.S. Department of Labor,
Denver, Colorado, for the Petitioner; Elsie Bak, Bob Bak
Construction, Pierre, South Dakota, for the Respondent.
Before: Judge Weisberger
This case is before me based upon a petition for assessment
of penalty filed by the Secretary of Labor (Petitioner), seeking
the imposition of civil penalties against Bob Bak Construction
(Respondent), and alleging that Respondent violated various
mandatory safety standards set forth in title 30 of the Code of
Federal Regulations. Subsequent to notice, the case was
initially scheduled for hearing on August 20, 1997. Respondent
requested an adjournment, and after discussion in a telephone
conference call with representatives of both parties, the case
was rescheduled and heard in Fort Pierre, South Dakota on
September 17, 1997.
Findings of Fact and Conclusions of Law
Order No. 4410644
On August 14, 1996, Roger G. Nowell, an MSHA inspector,
inspected Respondent's crusher No. 3, a sand and gravel operation
located in Wagner, South Dakota. According to Nowell, the trap
feed self-cleaning tail pulley, located in an enclosed structure,
was not provided with a guard. He indicated that this condition
was "easily observable" (Tr. 14). According to Nowell, should a
person place his arm on top of the pulley brace or perpendicular
to it, there is a possibility that his arm would become entangled
in the fins of the pulley resulting in severe injuries to the arm.
Nowell issued an order under Section 104(d)(2) of the Federal Mine
Safety and Health Act of 1977 alleging a violation of 30 C.F.R.
� 56.14107(a).
Section 56.14107(a) supra provides 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."
Respondent elected not to cross-examine Nowell, and not to
present any evidence to impeach or contradict his testimony.
Therefore, I accept Nowell's testimony. I find that the tail
pulley can cause injury, and that it was not guarded to protect
persons from contacting it. I thus find that Respondent did
violate Section 56.14107(a) supra.
According to Nowell, persons entered the enclosure wherein
the pulley in question was located, in order to clean, maintain,
or lubricate the pulley. He indicated that a person traveling
under the belt to clean it would be within six to eight inches
from the belt and the pulley. In this connection, he noted the
width of the entry alongside the belt and pulley was only
approximately two feet wide. He concluded that the area was
confined, and that a person working there would be in close
proximity to the unguarded pulley. He thus concluded that it was
reasonably likely for an injury such as loss of an arm to have
resulted.
Inasmuch as Nowell's testimony was not impeached on cross
examination, nor was it contradicted by Respondent, as Respondent
did not introduce any evidence, I accept Nowell's testimony. I
thus find that Petitioner has established a violation of a
mandatory safety standard, i.e., Section 56.14107(a) supra, that
this violation contributed to the hazard of an injury occasioned
by contact with the unguarded pulley, that it was reasonably
likely that this hazard would result in an injury, and that it
was reasonably likely that the injury would be of a reasonably
serious nature. I thus find that it has been established that
the violation was significant and substantial (Cement Division,
Nat'l Gypsum Co., 3 FMSHRC, 822, 825 (April 1981)).
According to Nowell, in essence, a previous Section 104(d)(1)
withdrawal order had been issued to Respondent. Nowell indicated
that Respondent had been cited 16 times prior to August 14, 1996,
for guarding violations. He also opined that Respondent's foreman,
Lawrence Roghair, helped set up the crusher, and was aware that
the tail pulley was not provided with a guard. He opined that the
violation was the result of Respondent's unwarrantable failure.
Inasmuch as Respondent did not cross-examine Nowell, nor did
it adduce any evidence to impeach or contradict Petitioner's
evidence, I accept Nowell's testimony. I find, within the
framework of his testimony, that it has been established that
Respondent was negligent relating to the violation herein, and
that its negligence reached the level of aggravated conduct.
Hence I find that the violation resulted from the Respondent's
unwarrantable failure. (Emery Mining Corp., 9 FMSHRC 1997
(December 1987)).
The record establishes that the violation was abated
promptly. According to Nowell, MSHA records indicate that the
crusher in issue was in operation for 4,000 production hours. I
find, based upon Nowell's testimony, that the violation was of a
high level of gravity, as it could have resulted in a serious
injury such as a loss of a limb. I also find, as indicated
above, that the level of Respondent's negligence was high.
Respondent proffered, post-hearing, an income tax return
for 1996 for Robert Bak and Elsie Bak which indicates that the
former is the proprietor of Bob Bak Construction. This return
indicates business income i.e., net profit, of $66,222, but a net
operating loss of $251,807. Petitioner did not rebut or impeach
these figures. I find that imposition of a penalty would have a
negative effect, to some degree, on Respondent's ability to
continue in business.
Weighing all the above factors, I find that a penalty of
$480 is appropriate.
Order No. 4410645
According to Nowell, the top portion of the stacker belt
tail pulley on the crusher was not guarded. He indicated
that a person coming in close proximity to the pulley could
be caught up by the belt splices, and become entangled in
the fins, or pinch point. Since Nowell's testimony was
neither impeached nor contradicted, I accept it. I thus
find that the stacker belt pulley was not guarded, exposing
persons to possible injury as a result of contact with the
unguarded belt and pinch point. I thus find that it has
been established that Respondent violated Section
56.14107(a) supra.
According to Nowell, the loader operator on the site, Gerry
Freeman, told him that the pulley guard in issue had been
removed in transporting the crusher at issue. Since it had
not been replaced at the time of Nowell's inspection, and
for the reasons set forth above, infra, I find that it has
been established that the violation resulted from
Respondent's unwarrantable failure. (See, Emery, supra).
For the reasons set forth above, infra, I find that
Respondent's negligence was of a high degree, and that the
violation was of a high level of gravity since an injury
could have resulted. Considering also the effect of a
penalty on the Respondent's ability to continue in business,
as discussed above, infra, I find that a penalty of $400 is
appropriate.
Order No. 4644414
MSHA inspector Jeran Sprague inspected the subject site on
August 14, 1996. He indicated that he observed a 175 Clark
front-end loader in operation, and that the door was open.
According to Sprague, the operator of the loader did not
have his seat belt on. He issued an order under Section
104(d)(2) alleging a violation of 30 C.F.R. Section
56.14130(g).
30 C.F.R. � 56.14130(g) provides, as pertinent, that "[s]eat
belts shall be worn by the equipment operator. . . ".
Sprague's testimony was not impeached or contradicted, and
hence I accept it. I find that the operator of the front-
end loader in question was not wearing a seat belt. Hence,
it has been established that Respondent violated Section
56.14130(g) supra.
According to Sprague, the front-end loader was operated over
uneven terrain, and traveled down a 15 percent grade for a
distance of 50 feet on a ramp located five feet above the
adjacent ground. He indicated that since the loader
articulates, when the bucket is raised in normal operations,
the loader could tip or turn over. In such an event, the
operator not wearing a seat belt could be thrown from the
vehicle especially if the door was open as observed by
Sprague. Since the testimony of Sprague was not impeached
or contradicted by the Respondent's evidence, I accept it.
In the context of Sprague's testimony, I find that it has
been established that the violation is significant and
substantial. (National Gypsum, supra).
According to Nowell, when he inspected Respondent's
operation on June 5, 1995, Roghair was operating a front-end
loader but was not wearing a seat belt. According to
Sprague, Respondent had previously been cited for a
violation of the same standard at issue i.e., Section
56.14130(g) supra. He indicated that the citation was
issued "probably" prior to 1994. Sprague testified that
after he observed a Mr. Freeman operating the loader at
issue without a seat belt on August 14, 1996, the former did
not put on his seat belt until Roghair told him to.
Elsie Bak, Respondent's office manager, testified that all
operators are instructed to wear seat belts, and if they do
not wear belts they are told "to buckle up" (Tr. 59).
Since Respondent did not impeach or contradict Petitioner's
evidence that Respondent had previously been cited for a
seat belt violation I accept Petitioner's evidence. For the
same reason, I accept Petitioner's evidence that on June 5,
1995, Roghair was observed not wearing a seat belt. I also
accept the Inspector's testimony that on August 14, Freeman
continued to operate the loader without wearing a seat belt
until told to do so by Roghair. Within this framework, I
find that it has been established that the violation herein
resulted from Respondent's unwarrantable failure (See, Emery
supra).
I find that the level of Respondent's negligence was high,
and that the violation was of a high level of gravity
inasmuch as the operator of the loader could have been
seriously injured. Considering also the effect of a penalty
on Respondent's ability to continue in business, I find that
a penalty of $480 is appropriate.
Order No. 4644415
On August.14, 1996, Sprague observed a lubricating truck
that was located approximately 75 to 100 feet from the
stacker. According to Mrs. Bak, the truck was located in a
parking area, and was used to change tires on trucks that
haul material from the stockpile to locations off the
subject site.
According to Sprague, he opened the side door of the truck
and observed an oxygen bottle that was protected with a cap,
lying on the floor. He indicated that the bottle was
covered with oil, and was lying unsecured on the floor of
the truck in an accumulation of oil. In addition, Sprague
observed a bottle of acetylene, oil drums, and tubes of
grease, inside the truck. According to Sprague, both the
bottle of acetylene and the oxygen bottle were full.
Sprague issued a Section 104(d)(2) order alleging a
violation of 30 C.F.R. � 56.4601 which provides as follows:
"[o]xygen cylinders shall not be stored in rooms or areas used
or designated for storage of flammable or combustible liquids,
including grease".
Respondent did not impeach or contradict Sprague's testimony
that he observed an oxygen bottle on the floor of a truck
that also contained oil drums and tubes of grease. I thus
find that it has been established that Respondent did
violate Section 56.4601 supra.
Sprague indicated that oxygen is highly volatile. He
indicated that in hooking up a gauge to the oxygen cylinder
should a wrench slip, it could cause sparks resulting in an
explosion. He indicated that these cylinders " . . . sail
like a rocket when they explode" (Tr. 66). He indicated
that such an event was reasonably likely to have occurred
since, in essence, the heat generated by attaching gauges to
the oxygen cylinder, could have caused a spark which, taking
into account the presence of oil, could have led to an
explosion.
Although the cylinders were protected with a cap, I accept
the testimony of Sprague, inasmuch as it was not impeached
or contradicted, that, in essence, due to the presence of
oil on the cylinder at issue, an explosion was reasonably
likely to have occurred. I find that, given an explosion, a
reasonably serious injury could have resulted as, according
to Sprague, two miners were in the area. I thus find that
it has been established that the violation was significant
and substantial. (See National Gypsum supra.)
I find that the violation was of a high level of gravity
inasmuch as a serious injury could have resulted. I also
find that the violation was of a high level of negligence.
Considering also the effect of the penalty on Respondent's
ability to continue in business, I find that a penalty of
$480 is appropriate.
Order
It is ORDERED that the orders at issue are affirmed as
written. It is further ORDERED that within 30 days of this
decision Respondent shall pay a total civil penalty of $1,840.
Avram Weisberger
Administrative Law Judge
Distribution:
Edward Falkowski, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)
Robert Bak Owner, Bob Bak Construction,
P.O. Box 159, Pierre, SD 57501 (Certified Mail)
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