<DOC>
[DOCID: f:ct98128.wais]
ANDERSON SAND & GRAVEL
February 11, 1999
CENT 98-128-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 11, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-128-M
Petitioner : A. C. No. 13-02166-05504
:
v. :
:
ANDERSON SAND & GRAVEL :
Respondent : Anderson Sand & Gravel Mine
DECISION
Appearances: Mark W. Nelson, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, on
behalf of Petitioner; B. Douglas Stephens, Esq.,
Wessels, Stojan and Stephens, P.C., Rock Island,
Illinois, on behalf of Respondent.
Before: Judge Melick
This case is before me upon the Petition for Civil Penalty
filed by the Secretary of Labor against the Anderson Sand &
Gravel Company (Anderson), pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801, et
seq., the "Act," alleging five violations of mandatory standards
and seeking civil penalties of $14,100.00 for those violations.
The general issue before me is whether Anderson committed the
violations as alleged and, if so, what is the appropriate civil
penalty to be assessed considering the criteria under Section
110(i) of the Act.
Citation No. 7812338 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. Section 56.14130(g) and
charges as follows:
On 12-15-97, while conducting load and carry
operations with a Case 821 front end loader, the
operator was thrown or jumped from the cab, when the
engine died while backing down from the crusher feed
surge pile. The loader continued down to the pit floor
where it rolled over, resulting in extensive damage to
the loader. The loader operator landed in a snow drift
adjacent to the pit roadway. The operator received 3
broken ribs, a punctured lung, and several head wounds
requiring stitches. The seatbelt provided was not
being worn by the operator.
The cited standard, 30 C.F.R. Section 56.14130(g), provides
as relevant hereto that: "[s]eat belts shall be worn by the
equipment operator."
The evidence supporting this violation is undisputed.
Anderson employee Alan Kent admitted that he was operating the
subject Case 821 front end loader on December 15, 1997, without
wearing a seat belt. Kent testified that he did not feel like
wearing the belt because of the discomfort with his heavy winter
clothes. Kent also acknowledged that on prior occasions when he
was wearing heavy winter clothes he would not wear a seat belt.
He nevertheless was aware that he was supposed to wear a seat
belt and had been told by his supervisor, Bruce Anderson, more
than once to wear it. He did not believe that on this occasion
Anderson was aware that he was not wearing his seat belt. It is
undisputed in this case that Kent was thrown, or jumped, from the
cab of the loader when he lost control. He had been backing-up
on a steep grade from the crusher feed surge pile. He suffered
three broken ribs, a punctured lung and several head wounds
requiring sutures. Kent was also rendered unconscious due to his
head injuries. The violation has clearly been proven as charged.
The Secretary also maintains that the instant violation was
"significant and substantial." A violation is properly designated
as "significant and substantial" if, based on the particular facts
surrounding that 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:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary 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.
See also Austin Power Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987) (approving the Mathies criteria).
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)). The likelihood of such injury must be evaluated in terms
of continued normal mining operations without any assumptions as
to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984); See also Halfway, Inc., 8 FMSHRC 8, 12 (January
1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June 1991).
On the facts of this case the violation was clearly
"significant and substantial."
I also find that the violation was the result of operator
negligence. It may reasonably be inferred from Kent's testimony
that he had previously and repeatedly failed to use a seat belt.
His supervisor had, on several prior occasions, also told him to
wear his seat belt but he continued to disobey these
instructions. It may be inferred from this evidence that there
was insufficient training and discipline of employees for failure
to comply with the requirement for wearing seat belts.
Citation No. 7812339 alleges a violation of the standard at
30 C.F.R. Section 50.12, and Section 103(j) of the Act and
charges as follows:
On 12-15-97 at approximately 11:30 A.M. an
accident occurred in which the loader operator received
serious injuries. While conducting load and carry
operations with a Case 821 front end loader, the
operator was thrown or jumped from the cab, when the
engine died while backing down from the crusher feed
surge pile. The loader continued down to the pit floor
where it rolled over, resulting in extensive damage to
the loader. The loader operator landed in a snow drift
adjacent to the pit roadway. The operator received 3
broken ribs, a punctured lung and several head wounds
requiring stitches. The company failed to preserve the
accident site, and the loader involved was removed from
mine property, and sent to the equipment dealer for
repair prior to the arrival of M.S.H.A. personnel.
Section 103(j) of the Act provides as follows:
In the event of any accident occurring in any coal
or other mine, the operator shall notify the
Secretary thereof and shall take appropriate
measures to prevent the destruction of any
evidence which would assist in investigating the
cause or causes thereof. In the event of any
accident occurring in a coal or other mine, where
rescue and recovery work is necessary, the
Secretary or an authorized representative of the
Secretary shall take whatever action he deems
appropriate to protect the life of any person, and
he may, if he deems it appropriate, supervise and
direct the rescue and recovery activities in such
mine.
The standard at 30 C.F.R. Section 50.12 provides that
"unless granted permission by a MSHA district manager or
subdistrict manager, no operator may alter an accident site
or an accident related area until completion of all
investigations pertaining to the accident except to the
extent necessary to rescue or recover an individual, prevent
or eliminate an imminent danger, or prevent destruction of
mining equipment."
It is undisputed that the accident at issue occurred on
December 15, 1997. According to Inspector William Owens of
the Department of Labor's Mine Safety and Health
Administration (MSHA), MSHA learned of the accident only
through an anonymous telephone call on December 19, 1997,
apparently from a business competitor. Owens confirmed with
Bruce Anderson that the accident had in fact occurred.
Owens was then informed that the subject front end loader,
which had gone out of control and rolled over, had been
removed for repairs. Owens thereafter inspected the damaged
loader at a repair shop. During the course of his
investigation at the mine site on December 22, Owen also
observed, and was told by Bruce Anderson, that one of the
berms along the roadway, through which the front end loader
had passed, had been rebuilt. I agree with the Secretary's
determination that the violation was of low gravity.
In her post hearing brief the Secretary argues that
Respondent was highly negligent because it had been in
business since 1989 and, implicitly, should therefore have
known of its obligations to timely report accidents and
preserve accident scenes. The Secretary also claims that
Respondent had received the MSHA manual explaining the
operator's obligations in this regard but offered no proof
of this. In any event I agree that it may reasonably be
inferred that Respondent should have known of its
obligations in this regard and that it was therefore
negligent. Respondent argues only that it was not motivated
by an intent to conceal the accident or alter evidence.
Citation No. 7812340 alleges a violation of Section 103(j)
of the Act and the regulatory standard at 30 C.F.R. Section
50.10 and charges as follows:
On 12-15-97 at approximately 11:30 A.M. an
accident occurred in which the loader operator
received serious injuries. While conducting load
and carry operations with a Case 821 front end
loader, the operator was thrown or jumped from the
cab, when the engine died while backing down from
the crusher feed surge pile. The loader continued
down to the pit floor where it rolled over,
resulting in extensive damage to the loader. The
loader operator landed in a snow drift adjacent to
the pit roadway. The operator received 3 broken
ribs, a punctured lung, and several head wounds
requiring stitches. The company failed to
immediately report to M.S.H.A. the occurrence of
this accident. M.S.H.A. became aware of this
accident 12-19-97 at approximately 03:30 P.M. by
an anonymous phone call to the Fort Dodge Field
Office. A phone call to the mine operator
confirmed the occurrence and an investigation was
initiated at that time.
The standard at 30 C.F.R. Section 50.10, provides as
follows:
If an accident occurs, an operator shall
immediately contact the MSHA district or
subdistrict office having jurisdiction over its
mine. If an operator can not contact the
appropriate MSHA district or subdistrict office,
it shall immediately contact the MSHA headquarters
office in Arlington, Virginia, by telephone, at
(800) 746-1553.
This violation is unchallenged. As previously noted, MSHA
did not learn of the accident on December 15, 1997, until it
received an anonymous phone call, apparently from one of
Anderson's competitors, on December 19, 1997. For the
reasons set forth regarding the previous violation I also
find that the operator was negligent. The violation was not
"significant and substantial" and was of low gravity.
Citation No. 7812341, alleges a "significant and
substantial" violation of the standard at 30 C.F.R. Section
56.14100(a), and charges as follows:
On 12-15-97 the operator of the Case 821 front end
loader failed to conduct a proper pre-operational
inspection of this loader. While conducting load
and carry operations with this loader the engine
died, while the machine was backing down the
crusher feed surge pile. The loader operator was
thrown or jumped from the cab at the top of the
pit ramp. The loader continued down this ramp to
the bottom where the loader came to rest on its
side. Inspection of this loader indicates this
machine rolled end over end and sideways before
coming to rest. Inspection of the service brakes
found them operational. Inspection of the
emergency/parking brake found it not operational.
The actuator cable was broken at the cab lever.
Dirt in the cable track indicated this was not a
new break. The operator stated he had not checked
this brake prior to operating this day.
The cited standard 30 C.F.R. Section 56.14100(a), provides
that "[s]elf-propelled mobile equipment to be used during a
shift shall be inspected by the equipment operator before
being placed in operation on that shift."
The evidence supporting this violation is unchallenged.
Loader operator Alan Kent admitted that he had not checked
the condition of the parking brake on the subject Case 821
loader before operating it on December 15, 1997. In
addition, Inspector Owens concluded, based upon the amount
of dirt and rust in the cable track for the broken cable on
the emergency parking brake, that the cable had been broken
for a period in excess of one month.
Based on the accident that actually occurred and the serious
injuries suffered by loader operator Kent, it is clear that
the violation was also "significant and substantial" and of
high gravity. The violation was clearly also the result of
high operator negligence based on the unchallenged evidence
that the cable to the emergency parking brake had been
broken for a month. It may reasonably be inferred from this
evidence that the operator had failed to perform
inspections required by the cited standard for that period
of time.
Citation No. 7812342, alleges a "significant and
substantial" violation of the standard at 30 C.F.R. Section
56.14101(a)(2) and charges as follows:
The emergency/parking brake on the Case 821 front
end loader was not maintained in functional
condition. On 12-15-97 at approximately 11:30
A.M. this loader was involved in an accident.
While conducting load and carry operations with
this loader the engine died, while the machine was
backing down the crusher feed surge pile. The
loader operator was thrown or jumped from the cab
at the top of the pit ramp. The loader continued
down this ramp to the bottom where the loader came
to rest on its side. Inspection of this loader
indicated this machine rolled end over end and
sideways before coming to rest. Inspection of the
service brakes found them operational. Inspection
of the emergency/parking brake found it not
operational. The actuator cable was broken at the
cab lever. Dirt in the cable track indicated this
was not a new break. The operator stated he had
not checked this brake prior to operating this
day.
The cited standard provides that "if equipped on self-
propelled mobile equipment, parking brakes shall be capable
of holding the equipment with its typical load on the
maximum grade it travels."
It is undisputed that with the emergency parking brake cable
broken the parking brake was indeed inoperable and
accordingly could not have been capable of holding the cited
front end loader with its typical load on the maximum grade
it traveled. The violation is accordingly proven as
charged. Indeed, the undisputed evidence is that even with
the parking brake cable intact, the subject brake was
incapable of meeting the requirements of the cited standard.
It is the operator's duty to determine the capabilities of
the braking systems of equipment it intends to use at its
mine and its failure to do so in this case constitutes
significant negligence. More significantly, however, the
evidence is undisputed that the parking brake cable had been
broken for a month prior to the accident in this case and
that the loader had been used in that condition. This
evidence clearly supports a finding of high operator
negligence.
The violation was also "significant and substantial" and of
high gravity. There is no dispute that operating the
subject loader on the steep grades prevalent at the subject
mine, including grades of 19.3 degrees and 22 degrees, the
parking brake would be unable to hold the loader sufficient
to enable the operator to safely escape in an emergency.
Thus, even assuming that the service brakes were
operational, should an emergency arise, the operator would
have been unable to hold and secure the loader at such steep
grades, thereby enabling him to escape. Accordingly, the
violation herein was without a doubt "significant and
substantial" and of high gravity.
Civil Penalty Assessments
In assessing a Civil Penalty under Section 110(i) of the
Act, consideration is to be given to the operator's history
of previous violations, the appropriateness of the penalty
to the size of its business, the effect on the operator's
ability to continue in business, good faith abatement,
negligence and gravity. Anderson is a small operator.
There is no evidence that Anderson's ability to continue in
business would be affected by penalties as high as those
proposed by the Secretary and there is no evidence that the
citations were not satisfactorily abated. The gravity and
negligence relating to these violations have previously been
discussed. In regard to the operator's history, the
Secretary has submitted a printout indicating that Anderson
had no violations in the two years preceding December 22,
1997. The printout indicates that Anderson had seven
violations for the period preceding December 23, 1995, but,
with the exception of one violation, the dates are unknown
(See Gov. Exh. No. 11). The Secretary has also presented a
copy of Citation No. 4104178, dated August 19, 1993,
indicating a prior violation of the standard at 30 C.F.R.
Section 56.14101(a). Because that violation was over four
years old and because of the unestablished age of the other
prior violations I give this history but little weight.
Consideration is particularly given in this case to the
small size of this operator and to the absence of any
violations in the two-year period preceding the instant
violations. Under all the circumstances, the penalties set
forth in the order below are deemed appropriate.
ORDER
Citations No. 7812339 and 7812340, are affirmed and the
Anderson Sand & Gravel Company is directed to pay the civil
penalties of $50.00, proposed by the Secretary, for each of
the violations charged therein within 40 days of the date of
the decision. Citations No. 7812338, 7812341 and 7812342,
are affirmed as "significant and substantial" citations and
Anderson Sand & Gravel Company is directed to pay civil
penalties of $2,000.00, $3,000.00 and $3,000.00,
respectively for the violations charged therein within 40
days of the date of this decision.
Gary Melick
Administrative Law Judge
Distribution:
Mark W. Nelson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
B. Douglas Stephens, Esq., Wessels, Stojan and Stephens,
P.C., 423 17th Street, P.O. Box 4300, Rock Island, IL 61204-
4300 (Certified Mail)
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