.
SWEETMAN CONSTRUCTION CO.
January 29, 1999
CENT 98-42-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
January 29, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-42-M
Petitioner : A. C. No. 39-00226-05512
:
v. : Summit Pit
:
SWEETMAN CONSTRUCTION CO., :
Respondent :
DECISION
Appearances: Mark Nelson, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for
Petitioner; Robert Portice, Sioux Falls, South
Dakota, for Respondent.
Before: Judge Cetti
This case is before me upon a petition for assessment of
civil penalties under sections 105(d) and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. The "Mine
Act." The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges Sweetman Construction
Company with violating five mandatory safety standards set forth
in 30 C.F.R. Part 56 concerning sand and gravel mining operations.
At the hearing, two of the citations were accepted by Respondent,
three citations were fully contested and, after presentation of
documentary and testimonial evidence by both parties, were
submitted for decision.
STIPULATIONS
A. Sweetman Construction Co. is engaged in mining and
selling of sand and gravel in the United States, and its mining
operations affect interstate commerce.
B. Sweetman Construction Company is the owner and operator
of the Summit Pit, MSHA I.D. No. 39-00226.
C. Sweetman Construction Company is subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq. ("the Act").
D. The Administrative Law Judge has jurisdiction in this
matter.
E. The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of
Respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
F. The exhibits to be offered by Respondent 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.
G. The proposed penalties will not affect respondent's
ability to continue in business.
H. Respondent demonstrated good faith in abating the
violations.
I. Sweetman Construction Co., is a mine operator with a
total of 155,789 total hours worked in 1997 with 18,251 hours
worked at the Summit Pit.
J. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citations.
The Inspection
Mine Inspector Larry Larson inspected Respondent's Summit
Plant on October 15, 1997. The plant had one shift with eight
men working ten-hour days, five days a week. Inspector Larson
stated he was there to make a "regular" inspection with special
emphasis on power haulage equipment. The power haulage equipment
consisted of two trucks that were inside the yard and two front-
end loaders that were running when he arrived at the plant at 8
a.m. He completed his inspection by 1 p.m. and issued five
citations for violations he observed at the plant.
Citation Nos. 7915818 (headlights) and 7915819 (windshield
wipers)
Both citations allege defects Inspector Larson found on a
certain white construction yard truck company #404. Both
citations charge the Respondent with a violation of the
provisions of 30 C.F.R. � 56.14100(b) which reads as follows:
(B) Defects on any equipment, machinery,
and tools that affect safety shall be
corrected in a timely manner to prevent the
creation of a hazard to persons.
Citation No. 7915818 charges nonfunctional headlights on the
white yard truck and reads as follows:
The White constructor yard truck company #404
did not have the head lights being maintained
in a functional condition. This truck is
used on a daily basis when the plant is
running, to empty material from the bunkers.
Safety items must be maintained or repaired
in a timely manner.
Citation No. 7915819 charges a violation of the same safety
standard for defects on the same white yard truck consisting of
nonfunctioning windshield wipers. The citation states:
The White constructor yard truck company #404
did not have the wind shield wipers being
maintained in a functional condition. This
truck is used on a daily basis when the plant
is running, to empty material from the
bunkers. Safety items must be maintained and
or repaired in a timely manner.
I credit the testimony of Federal Mine Inspector Larson.
About three hours after commencing his inspection, Inspector
Larson checked out the White truck #404 which he observed under a
hopper with the gate open and material running into the truck.
Mr. Lien, the driver of the truck, told the inspector that he
made a preshift inspection of the truck that morning and checked
everything out. Mr. Lien did not indicate there was anything
wrong with the truck.
It is undisputed that, upon checking the truck, the
inspector found that the headlights and the windshield wipers
were not functional. The inspector determined that both of these
defects affect safety and were not corrected in a timely manner.
The operator had trouble trying to get the windshield wipers
working. A can of WD 40 was used to spray the windshield wipers
in an attempt to make them functional. After starting up the
truck, a "big air leak" was discovered in the air- pressure
system that activates the windshield wipers. The truck had to be
taken to the plant's garage where the necessary repair and
maintenance work was done to abate the citation.
On being asked how the nonfunctional headlights and
windshield wipers affected safety, the inspector replied in
pertinent part as follows:
... in South Dakota we all know that the
storms blow in in the summertime very
quickly. I have seen storms in South Dakota
here where they will come in, and it gets
black and day - black as night and the
headlights and everything come on - or the
street lights will come on it's so dark. And
these deluges, they might last 15, 20 minutes
and put a lot of rain down. So I feel that
this plant is not going to shut down for a 15
minute rainstorm, and that the windshield
wipers would be very handy to have during a
rain storm, and the lights for the visibility
of the truck out in the yard.
Clearly, the maintenance and the timely repair of headlights
and windshield wipers on a haulage yard truck is an important
step in avoiding a hazard not only to the drivers but also to
persons that are in and around the mine property. Defects which
make the headlights and/or windshield wipers of a yard haulage
truck nonfunctional affect safety and timely correction is
required by the cited safety standard. The evidence established
that this was not done. I find these were two separate
violations of 30 C.F.R. � 56.14100(b). Both citations are
affirmed.
Citation No. 7915820 - (Berms at elevated dump site)
This citation charges the operator with an S&S violation of
30 C.F.R. � 56.9301 which provides as follows:
Berms, bumper blocks, safety hooks, or
similar impeding devices shall be provided at
dumping locations where there is a hazard of
overtravel or overturning.
The citation alleges a violation of the cited standard as
follows:
There were no berms, bumper blocks or similar
restraints on the elevated mason sand
stockpile, to keep equipment from backing or
driving over the edge of the dump site and
overturning. This elevated stockpile is of
sufficient height that the operator of the
piece of equipment could get seriously
injured if a roll over should occur. Persons
in mobile equipment are in and around this
elevated stockpile on a daily basis when the
plant is running.
Inspector Larson testified that there were no berms, bumper
blocks or similar restraints on the elevated mason sand stockpile
dump site to keep mobile equipment from backing or driving over
the edge of the dump site and overturning. The inspector
observed that there was no berm of any kind at the dump site at
the end of the mason sand stockpile ramp and only a 10- inch berm
of mason sand along the side of the ramp. To comply with the
regulations, a berm must be axle height of the mobile equipment
that traveled up the ramp to the elevated dump site. To meet
this requirement in this case, the height of the berm would have
to be at least 2� feet high. Inspector Larson also rebutted
testimony by Respondent that wind may have blown away the mason
sand berm. Inspector Larson was of the opinion that winds of up
to 37 miles per hour would not cause more than a slight
deterioration of the berm.
The evidence clearly established a violation of 30 C.F.R. �
56.9301.
Significant and Substantial Violations
Inspector Larson testified the dump site was close to 15
feet high and stated that the elevated dump site was of
sufficient height that the driver of mobile equipment could get
seriously injured if a roll-over should occur. Persons in mobile
equipment are in and around this elevated stockpile on a daily
basis when the plant is running.
I agree with Inspector Larson's opinion that if the dump
site was left unbermed, it was reasonably likely that an accident
of a serious nature would occur. I find that the lack of
adequate berms on the elevated stockpile dump site was a
significant and substantial violation of the cited safety
standard. A "significant and substantial" (S&S) violation is
described in section 104(d)(1) of the 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)(1). 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 further 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.
Id. At 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d. 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
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).
I credit Inspector Larson's testimony and find that the
evidence presented by Petitioner established each of the elements
required to show that this was an S&S violation of 30 C.F.R.
� 56.9301.
Citation Nos. 7915816 and 7915817 Were Accepted
Both citations were issued under section 104(a) of the Act
alleging non-significant and substantial violations. MSHA
proposed a civil penalty of $50.00 for each of the citations. At
the hearing, the operator accepted both violations along with
MSHA proposed penalties in full, totaling $100.00. I find the
proposed penalties for these two violations are appropriate under
the criteria set forth in section 110(c) of the Act. The
proposed penalties are approved.
Assessment of Civil Penalties
In assessing a civil penalty under section 110(i) of the
Act, the judge is required to give consideration to the
appropriateness of the penalty to the size of the operator's
business, the probable effect on the operator's ability to
continue in business, the operator's history of previous
violations, the operator's negligence, the gravity of the
violations and the operator's good faith abatement.
I have considered the statutory criteria in my de nova
review and determination of the appropriate penalties and I find
the MSHA proposed penalties are the appropriate penalties for
each of the violations.
ORDER
Based on the statutory criteria in section 110(i) of the
Mine Act, 30 U.S.C. � 820(i) I assess the following penalties:
Citation No. 30 CFR � Penalty
7915016 56.4101 $ 50.00
7915017 56.12030 50.00
7915818 56.14100(b) 50.00
7915819 56.14100(b) 157.00
TOTAL $357.00
Accordingly, each of the five citations is AFFIRMED and
Respondent, Sweetman Construction Co., is ORDERED TO PAY the
Secretary of Labor the sum of $357.00 within 40 days of the date
of this decision. Upon receipt of timely payment, this case is
dismissed.
August F. Cetti
Administrative Law Judge
Distribution:
Mark Nelson, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified
Mail)
Mr. Robert Portice, Safety Director, SWEETMAN CONSTRUCTION CO.,
1201 West Russell, P.O. Box 84140, Sioux Falls, SD 57118-4140
(Certified Mail)
/sh