<DOC>
[DOCID: f:ct94126.wais]
WALKER STONE COMPANY, INC.
April 18, 1996
CENT 94-126-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 18, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 94-126-M
Petitioner : A. C. No. 14-00164-05522
v. :
: Kansas Falls Quarry & Mill
WALKER STONE COMPANY, INC., :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-213-M
Petitioner : A. C. No. 14-00164-05526 A
v. :
: Kansas Falls Quarry & Mill
CLIFF MOENNING, Employed by :
WALKER STONE COMPANY, INC., :
Respondent :
DECISION
Appearances: Ann M. Noble, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado,
for the Secretary; Keith R. Henry, Esq.,
Weary, Davis, Henry, Struebing & Troup,
Junction City, Kansas, for Respondents.
Before: Judge Maurer
STATEMENT OF THE CASE
These consolidated cases are before me upon the
petitions for assessment of civil penalty filed by the
Secretary of Labor (Secretary) against the Walker Stone
Company, Inc., (Walker Stone) and Mr. Cliff Moenning
pursuant to section 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. �� 815 and 820.
The petitions allege that Walker Stone violated the
mandatory standard found at 30 C.F.R. � 56.12016 and
that Mr. Moenning, as an agent of the corporate operator,
knowingly authorized, ordered or carried out that
violation. The Secretary seeks civil penalties of
$1500 against Walker Stone and $700 from Mr. Moenning.
Pursuant to notice, these cases were heard at
Fort Riley, Kansas, on November 8 and 29-30, 1995.[1]
On November 16, 1993, MSHA Inspector Eldon E. Ramage
issued section 104(d)(1) Citation No. 4332602 to Walker
Stone alleging that:
Three (3) employees were observed preforming
(sic) repair work on the electrical powered log
washer. The electrical power was not deenergized
and locked out to prevent an accidental starting
of the log washer with out (sic) the knowledge of
the persons preforming (sic) the repairs. One
person was working on and in the gear drive system.
There was (sic) two employees working on the ground.
The standard cited, 30 C.F.R. � 56.12016, provides:
Electrically powered equipment shall be deener-
gized before mechanical work is done on such
equipment. Power switches shall be locked out
or other measures taken which shall prevent the
equipment from being energized without the knowledge
of the individuals working on it. Suitable warning
notices shall be posted at the power switch and
signed by the individuals who are to do the work.
Such locks or preventive devices shall be removed
only by the persons who installed them or by
authorized personnel.
**FOOTNOTES**
[1]: There was also a deposition taken by telephone on
December 5, 1995, of Albert Boisclair which the parties have
stipulated was for trial purposes, and which has been
incorporated into the transcript of this hearing.
STIPULATIONS
At the commencement of the hearing, the parties
proffered a signed set of 17 stipulations, dated November
8, 1995, which I accepted into the record (Tr. 10) as
follows:
1. Walker Stone, Inc. is engaged in mining and selling
construction aggregates and road building materials.
2. Walker Stone, Inc. is the owner and operator of Kansas
Falls Quarry and Mill, MSHA I.D. No. 14-00164.
3. Walker Stone, Inc. is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 801
et seq. ("the Act").
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject citation was properly served by a duly
authorized representative of the Secretary upon an agent of
respondent corporation on the date and place stated therein and
may be admitted into evidence for the purpose of establishing its
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by respondents and the
Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.
7. The proposed penalties will not affect respondent's
ability to continue in business.
8. The operator demonstrated good faith in abating the
violations.
9. Walker Stone, Inc. had 54,977 hours of work in 1992.
10. The certified copy of the MSHA Assessed Violations
History (dated April 8, 1993) accurately reflects the
history of this mine for the two years prior to the date of
the citation. Respondents object to the portion of the
certified copy of the MSHA Assessed Violations History which
depicts a history in excess of the two years prior to the
issuance of the citation.
11. The inspection giving rise to the subject proceedings
occurred on November 16, 1993, at Walker Stone's Kansas
Falls Quarry and Mill.
12. Cliff Moenning is employed by Walker Stone Company,
Inc., as the Plant Supervisor and Crusher Foreman.
13. The log washer was not in operation at the time the
citation was issued.
14. The log washer was not reassembled until after the
citation was issued.
15. At the time the subject citation was issued, the log
washer was disassembled as follows: The gear drive shaft
had been removed from the gear box; and the log washer V-
belts had been removed between the motor and the gear box.
16. The paddles and the drive gear would not turn
without the V-belts in place and the motor energized.
17. The V-belts were not reinstalled until after the
citation was issued.
FINDINGS, CONCLUSIONS, AND DISCUSSION
The so-called log washer is not used to wash logs.
Rather, it is an electrically-powered piece of machinery
used to clean the rock aggregate. Very basically,
aggregate comes in one end and a system of gears and
paddles moves it to the other end through a water trough.
For a couple of days prior to the MSHA inspection,
the log washer had been down with a broken counter shaft,
which is described as a shaft between two gear boxes.
To remedy this situation, Roger Beecham, the maintenance
supervisor, testified that 2 days or so before the citation
at bar was issued, he deenergized and locked out the
circuit breaker for the log washer while he removed the
broken shaft. He also removed the V-belts from the motor,
thereby mechanically disconnecting the electrical motor
from the drive gear. When he departed the job site, he
removed his lock from the circuit breaker box because he
might need it if he had an electrical problem somewhere
else. The broken shaft was then taken to a machine shop
for repair. Mr. Beecham, for personal reasons, was not
available for work when the shaft was returned and therefore,
Mr. Sayers was called at home on the evening of November 15,
1993, by Mr. Moenning and told to replace the shaft and
get the log washer reassembled the following day, the
date the citation was issued.
Mr. Sayers, a mechanic, assisted by Mr. Frederick,
began the job of reassembling the log washer early on the
morning of the 16th. They did not lock out the equipment
before starting to work on it because they both assumed it
was locked out already. It was not, as discovered by the
inspector at 9:15 a.m., after they had already been working
on it for about an hour. Presumably, if the inspector had
not intervened at that time, they would have continued to
reassemble the machinery on through to completion, without
locking it out.
Walker Stone disputes the violation of the standard on the
basis that the log washer was not completely reassembled
until after the citation was issued. More particularly,
they point out that basically, nothing would move until such
time as the V-belts were back in place and the motor
energized with the on-off switch. However, because the
regulatory scheme employed by MSHA assumes continued normal
mining operations, I conclude that their defense more
properly goes to the issue of gravity (i.e., "S&S") than to
the basic underlying violation of the cited mandatory
standard.
The respondents themselves admit that the power source for
the log washer was controlled by a circuit breaker and that
this circuit breaker was in the "on" position at the time of
the subject inspection and citation (Respondent's Proposed
Finding of Fact No. 10).
It is also undisputed by all that the log washer was in fact
not locked out at the time the inspector cited it, and at
least two individuals (Sayers and Frederick) were in fact
working on it.
Accordingly, I find that a violation of 30 C.F.R. � 56.12016
occurred as charged. It is simply indisputable that the log
washer should have been positively deenergized at the
circuit breaker and locked out by Sayers or Frederick before
they started working on it, just as Beecham did 2 days
earlier when he worked on the machinery. Their failure to
do so amounted to a violation of the cited standard.
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or
health hazard." 30 C.F.R. � 814(d)(l). A violation is
properly designated significant and substantial "if, based
upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably
serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term
"significant and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety--
contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129 (August 1985), the Commission stated further as
follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U. S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. S. Steel
Mining Company, Inc., 6 FMSHRC 1866, 1868 (August
1984); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
Applying the Mathies test, I conclude that there is not a
reasonable likelihood that the hazard contributed to by the
violation here would have resulted in a serious injury. This is
so because as is generally acknowledged, there is no danger if
the mechanism cannot move, and in this case the log washer
ultimately was controlled by an on-off switch, found in the "off"
position, which was located on the second floor of the control
house, a mere 30 feet from the log washer and no one was in the
control house during the reassembly of the log washer, until the
arrival of the inspection party.
Even presuming, as is reasonable to do in this case, that
the circuit breaker would not have been turned to the "off"
position or locked out at any time during the reassembly process
without the inspector's intervention, the fact remains as the
respondents' repeatedly emphasized, that neither the paddles nor
any of the drive gears could turn until the V-belts had been
reinstalled and the off-on switch moved to the "on" position. In
point of fact, the V-belts were the very last item replaced on
the log washer during reassembly and the off-on switch was never
activated and remained in the "off" position until such time as
the reassembly was complete and the equipment was ready to be
test run.
Accordingly, I find that it has not been established that an
injury producing event was reasonably likely to have occurred and
therefore, it is concluded that the violation found herein, was
not significant and substantial ("S&S").
Inasmuch as Citation No. 4332602 does not recite an "S&S"
violation, it must be modified to a citation issued under
section 104(a) of the Act.
I also disagree with the negligence factor contained in the
citation. The Commission has long held that the conduct of a
rank-and-file miner is not imputable to the mine operator in
determining negligence for penalty purposes. Southern Ohio Coal
Co., 4 FMSHRC 1459, 1464 (August 1982). In this case, the direct
negligence contributing to the violation is attributable to
Messrs. Sayers and Frederick, particularly Mr. Sayers, who was
nominally in charge of the reassembly project. Sayers and
Frederick both neglected to check the status of the circuit
breaker and lock it out in the "off" position as they acknowl-
edged they were both trained to do. They both testified that
they "assumed" someone else had performed that function and they
admitted they simply did not check it. It is noteworthy that
both are rank-and-file miners, with no management responsibil-
ities.
I attribute "moderate" negligence to the quarry foreman
personally and Walker Stone generally for the inattention to
detail and lack of supervision over these maintenance personnel
that permitted this violation to occur.
On the basis of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that a civil
penalty of $300 is a reasonable and appropriate civil penalty
that will serve to satisfy the public interest in this matter.
THE SECTION 110(c) CASE
The Commission has defined the term "knowingly" that appears
in section 110(c) of the Act[2] in Kenny Richardson, 3 FMSHRC 8,
16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982) as
follows:
"Knowingly", as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such informa-
tion as would lead a person exercising reasonable care
to acquire knowledge of the fact in question or to
infer its existence. . . . We believe this interpre-
tation is consistent with both the statutory language
and the remedial intent of the Coal Act. If a person
in a position to protect employee safety and health
fails to act on the basis of information that gives him
knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in a
manner contrary to the remedial nature of the statute.
It is true that Moenning is the quarry foreman and,
as such, is an agent of the corporation. It is also true
that Moenning did not instruct Sayers to lock out the log
washer's circuit breaker after deenergizing the circuit.
However, he credibly testified that he assumed Sayers would
do so on his own. I find that to be not an unreasonable
assumption, even though it turned out to be erroneous in
this instance. Nor had Moenning either during his telephone
conversation with Sayers the previous evening, or the two or
three times that he passed by the vicinity of the log washer
that morning, directed Sayers or Frederick to deenergize
and lock out the equipment. Neither did he personally
ever check that it was deenergized and locked out.
Still, Sayers, Frederick, and even Boisclair,
who was also generally in the area and was the "operator"
of the log washer, had all been trained to deenergize
and lock out the equipment prior to working on it. The
fact that they did not do it cannot be laid off onto
Moenning. Moenning had no actual knowledge that the log
washer was not locked out, nor did he have any particular
reason to know or even suspect that to be the case.
Furthermore, he credibly testified that he had neither
approved of, authorized, or directed the failure of
Sayers, et al, to comply with the standard. Rather, he
testified that there were indeed lock out procedures
in effect at the quarry and management, including
himself, expected the miners to utilize them.
In sum, there is no evidence that Moenning's conduct
was reckless, intentional or involved aggravated conduct
beyond ordinary negligence. Accordingly, I conclude that
Mr. Moenning did not knowingly carry out the violation
found herein and is therefore not personally liable
pursuant to section 110(c) of the Mine Act.
ORDER
l. Citation No. 4332602 IS MODIFIED to delete the
"S&S" finding and, as modified to a section 104(a)
citation, IS AFFIRMED.
2. The Walker Stone Company, Inc. IS ORDERED TO
PAY the Secretary of Labor a civil penalty of $300 within
30 days of the date of this decision.
3. The civil penalty petition against Clifford
Moenning IS DISMISSED.
Roy J. Maurer
Administrative Law Judge
**FOOTNOTES**
[2]: Section 110(c) of the Mine Act provides, in
pertinent part, that: "Whenever a corporate operator
violates a mandatory health or safety standard . . . any
director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such
violation . . . shall be subject to the same civil
penalties. . . ."
Distribution:
Ann M. Noble, Esq., Office of the Solicitor, U. S.
Department of Labor, 1999 Broadway, Suite 1600, Denver,
CO 80202-5716 (Certified Mail)
Keith R. Henry, Esq., Weary, Davis, Henry, Struebing &
Troup, 819 North Washington Street, P. O. Box 187, Junction
City, Kansas 66441 (Certified Mail)
/dcp