<DOC>
[DOCID: f:ct97125.wais]

 
PAPPY'S SAND & GRAVEL
June 25, 1998
CENT 97-125-M


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                            June 25, 1998

SECRETARY OF LABOR,           :   CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH   :
     ADMINISTRATION (MSHA),   :   Docket No.  CENT 97-125-M
           Petitioner         :   A. C. No.  41-03590-05523
        v.                    :
                              :   Rosser Pit & Plant
PAPPY'S SAND & GRAVEL ,       :
            Respondent        :
                              :
SECRETARY OF LABOR,           :   CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH   :
     ADMINISTRATION (MSHA),   :   Docket No. CENT 97-179-M
            Petitioner        :   A. C. No.  41-03590-05524A
       v.                     :
                              :   Rosser Pit & Plant
JOHN P. REEDER,               :
            Respondent        :

                               DECISION

Appearances:    Thomas Paige, Esq., Office of the Solicitor,
                U. S. Department of Labor, Dallas, Texas,
                for the Secretary;
                Timothy A. Duffy, Esq., Burleson, Pate & 
                Gibson, L.L.P., Dallas, Texas, for
                Respondents.

Before:   Judge Weisberger

     In these consolidated cases the Secretary of Labor
(Secretary) seeks a civil penalty from Pappy's Sand & 
Gravel ("Pappy") for allegedly violating 
30 C.F.R. �� 56.14131(a) and 56.9300(a).  The Secretary
also seeks a civil penalty from John P. Reeder, under
section 110(c) of the Federal Mine Safety and Health Act
of 1977 (The Act), in connection with the violation of 
section 56.9300(a), supra.  Pursuant to notice, a hearing 
on these matters was held in Ft. Worth, Texas, on 
April 7, 1998.  Petitioner filed proposed findings of
fact and a brief on May 18, 1998.  No brief was filed by
Respondents. 

Findings of Fact and Discussion

     I.  Background

     Pappy operates a 150 acre pit in Kaufman County, Texas,
where it mines, processes, and sells concrete sand and rock.  
As part of its operation, mined material is washed by water 
that is then  pumped to the processing plant from a pond 
that is approximately 1,000 feet long and 200 feet wide.  
A levee that runs 1,000 feet along the side of the pond,
holds the water in the pond and prevents it from flooding 
a road located on the other side of the levee.  When Pappy 
commenced operations at the site in 1990, trees completely 
covered the top of the levee preventing any travel on it.  
In late 1995, Pappy decided to raise the level of the 
levee in order for the pond to be able to hold more water.  
The first step was to clear all the trees from the top of 
the levee, and to fill holes on the levee.  After this was 
done, work commenced on the levee to widen it from less 
than 10 feet to 35 feet, and raise it 1 foot so that it 
could be 6 feet above the pond.  A berm was placed on the 
levee to prevent the trucks traveling on the levee from 
sliding off.  

     In the beginning of October 1996, it was decided to 
again raise the levee.  The berm was removed because, 
according to John Ples Reeder, Pappy's president, it 
". . . would channel the water into areas which would ruin 
the levee" (Tr. 78).

     Around the beginning of November 1996, work commenced
on raising the levee an additional foot.  Dump trucks 
traveled on top of the levee to place soil in a pile that
ran along the middle of the levee for the entire length 
of the levee.[1] 

     On November 4, 1996, Ronnie Howard, who had been hired 
the previous month, was driving along the levee in a Mack 
dump truck loaded with soil.  The truck slid off the top of 
the levee into the pond and overturned, causing Howard to 
suffer a cracked rib and a collapsed lung.  

     On November 12, 1996, subsequent to an investigation, 
MSHA Inspector Omar Dale Williams, issued Pappy a section 
104(d)(1) citation alleging a violation of 
30 C.F.R. � 56.14131(a) which provides as follows:  "[s]eat
belts shall be provided and worn in haulage trucks."  
Williams also issued a section 104(d)(1) order alleging a 
violation of 30 C.F.R. � 56.9300(a) which provides that 
"[b]erms or guardrails shall be provided and maintained on 
the banks of roadways where a drop-off exists of sufficient 
grade or depth to cause a vehicle to overturn . . .  . "

     MSHA also seeks a penalty from Reeder under section 
110(c)[2] of the Act, in connection with the alleged 
violation of section 56.9300(a), supra.  

     II.  Violation of Section 56.14131(a), supra.

     According to Williams' investigation, Howard was not 
wearing a seat belt at the time of the accident on 
November 4.  Pappy did not present any evidence to 
contradict or impeach the Secretary's evidence.  Hence, 
I find that it has been established that Howard was not 
wearing a seat belt and that accordingly, Pappy did 
violate Section 56.14131(a), supra.

          A.  Significant and Substantial

     According to Williams, the violation was significant
and substantial. 

     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 U.S.C. � 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 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).

     The record establishes that Pappy did violate a 
mandatory standard.  It is also clear that this violation 
contributed to the occurrence of an injury to the truck 
operator.  Further, the roadway on which the dump truck at 
issue traveled did not have a berm, and was elevated 
approximately 6 feet above a pond.  Also, an accident did 
occur resulting in serious injuries.  I find that within 
this context, the third and fourth elements set forth in 
Mathies, supra, have been met.  I thus find that it has 
been established that the violation was significant and
substantial.

          B.  Unwarrantable Failure

     According to Reeder, it is Pappy's policy for employees 
to wear seat belts.  He said that in safety meetings 
employees are told to wear seat belts.  Reeder said that if 
he would be informed that someone is not wearing a seat
belt, he would reprimand him.  He said that he was not 
aware that Howard had not been wearing his seat belt, and 
that he (Reeder) did not arrive on the site on November 4, 
until after the accident had occurred.

     Williams testified that in three or four prior visits 
to the site, he spoke to various employees, and was 
satisfied that they had been told to wear seat belts.  He 
also observed employees with their seat belts on.

     On the other hand, Pappy had previously been cited on 
December 28, 1995, by MSHA Inspector Robert LeMasters, for 
violating section 56.14131(a), when LeMasters observed an 
employee operating a Mack haul truck on the site without a 
seat belt.  Also, records of safety meetings do not 
indicate that Howard was present at any meeting when 
safety belts were discussed.  Also, Reeder conceded on 
cross-examination that although all employees were 
instructed to wear seat belts, some were "hard-headed" 
(Tr. 69), and received an abusive reprimand.  Howard was 
reprimanded by Reeder on two occasions for driving too 
fast, but had not been reprimanded for not wearing a seat 
belt.  Within the context of this evidence, I find that it 
has been established that Pappy's conduct rose to the 
level of aggravated conduct, and hence, I find that the 
violation resulted from its unwarrantable failure (See 
Emery Mining Corp., 9 FMSHRC 1997 (1987)).  

          C.  Penalty

     As discussed above, I find that the level of Pappy's 
negligence to have been more than moderate.  I also find 
that the violation, having in resulted in an accident that 
caused serious injuries to Howard, was of a high level of 
gravity.  I find that a violation of $5,000.00 is 
appropriate for this violation.  

     III.  Violation of Section 56.9300(a), supra.

     The evidence is undisputed that, when cited, the 1,000 
foot long levee did not have a berm.  In essence, it is 
Pappy's position that the levee was not a roadway and 
hence, was not required by section 56.9300(a), supra, to 
have a berm.  Pappy argues that the levee was initially 
covered with trees, and was never used by vehicles to pass
from one place to another.  Pappy refers to the fact that,
when cited, the trucks on the levee were delivering dirt to
the site to be spread on top of the levee to increase its 
height, and that upon completion of this task, grass would 
be grown on the levee, and it would not be open to 
vehicular traffic.  

     In essence, section 56.9300(a), supra, requires berms 
on "roadways."  That term is not defined in  Title 30,
supra.  Webster's Third New International Dictionary (1986 
Edition) ("Webster's") defines "roadway" as pertinent, as 
follows: " . . . b:ROAD; specif.: the part of a road over 
which the vehicular traffic travels."  Webster's defines 
"road," as pertinent, as follows:  "3(c): the part of a 
thoroughfare over which vehicular traffic moves . . .  . "
Webster's defines "thoroughfare,"as pertinent, as follows: 
"1:  a way or place through which there is passing . . .  ."

     Since, when cited, bulldozers and dump trucks traveled 
over the levee while dumping dirt, I find that the levee 
was indeed used as a roadway.  Hence, it fell within the 
scope of section 56.9300(a), and a berm was required.  
Since the levee did not have a berm, section 56.9300(a), 
supra, was violated.

     A. Significant and Substantial

     Vehicles traveled the entire length of the top of the 
levee, approximately 1,000 feet.  The levee was 6 feet 
above a pond, but no berm was provided along the levee.  At 
least one driver did not wear a seat belt.  I find, within 
this context, that it has been established that the 
violation was significant and substantial.  (See Mathies, 
supra.)

     B.  Unwarrantable Failure and Reeder's Violation of 
Section 110(c)  

     In October 1996, Pappy intentionally removed the berm 
that had been in place on the levee.  Trucks then began to 
travel on the top of the levee to dump soil.  As set forth 
above, (III, supra), a violation of section 56.9300, supra, 
resulted.  Since the violation was caused by Pappy's 
intentional act, I find that the violation resulted from 
its unwarrantable failure.  (See Emery, supra).  For the 
same reasons, I find that Pappy's President, Reeder, who 
directed that the berm be removed, violated section 110(c), 
supra, in that he authorized such a violation.

     C.  Penalty

     For the reasons set forth above, I find that the level
of Pappy's negligence was more than moderate.  Also, since
the lack of a berm contributed to the accident wherein
Howard suffered serous injuries, I find that the gravity 
of the violation was relatively high.  I find that a 
penalty of $8,000.00 is appropriate.  In assessing a 
penalty against Reeder, I make the same findings regarding 
gravity and negligence (See Sunny Ridge Mining Company, 
Inc., 19 FMSHRC 254, 272 (Feb. 1997).  Sunny Ridge, supra,
further provides that in assessing a penalty against an 
individual under section 110(c) of the Act, the 
individual's income and family support obligations, the 
appropriateness of the penalty in light of the individual's
job responsibilities, and the individual's ability to pay.  
These facts appear to be within the control of Reeder.  
However, he did not adduce any evidence regarding them.  
I find that he has not come forward with any evidence to 
mitigate a penalty based upon his ability to pay.  Taking 
into account the factors set forth above, I find that a 
penalty of $600.00, is appropriate.  

ORDER

     It is ORDERED that, within 30 days of this decision, 
Pappy pay a total civil penalty of $13,000.00, and that 
John P. Reeder, pay a civil penalty of $600.00.


                                Avram Weisberger
                                Administrative Law Judge


Distribution:

Thomas Paige, Esq., Office of the Solicitor, U. S.
Department of Labor, 525 South Griffin Street, Suite 501, 
Dallas, TX  75202 (Certified Mail)

Timothy A. Duffy, Esq., Burleson, Pate & Gibson, L.L.P., 
2414 North Akard Street, Suite 700, Dallas, TX 75201 
(Certified Mail)

dcp

[1]     /  It was contemplated that after all the soil was
piled on the levee, graders were to be used to level the 
soil over the surface of the top of the levee, and raise 
it 1 foot.  According to Reeder, the same amount of soil 
would have been required to build a berm for the length of
the levee.  Upon completion of the raising of the height 
of the levee, Pappy intended to seed the top of the levee, 
and trucks would no longer travel there. 

[2]     /  Section 110(c), supra, provides, as pertinent,
that ". . . [w]henever a corporate operator violates a 
mandatory . . . safety standard . . . any . . . officer 
. . . of such corporation who knowingly authorized, ordered, 
or carried out such violation, . . . shall be subject to 
the same penalties . . .  that may be imposed upon a person 
under subsections (a) and (b)."