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[DOCID: f:ct99228.wais]
WALKER STONE COMPANY INC.
October 12, 1999
CENT 99-228-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 12, 1999
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 99-228-M
Petitioner : A. C. No. 14-01560-05511
v. :
:
WALKER STONE COMPANY INC., :
Respondent : Portable Plant #4
DECISION
Appearances: Kristi L. Floyd, Esq., Office of the Solicitor,
U.S.
Department of Labor, Denver, Colorado, on behalf
of Petitioner;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing
& Troop, LLP, Junction City, Kansas, on behalf of
Respondent.
Before: Judge Melick
This case is before me upon a Petition for Civil Penalty
filed by the Secretary of Labor against the Walker Stone Company
(Walker) 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 one violation of the mandatory standard at 30 C.F.R. �
56.14130(g) and seeking a civil penalty of $104.00 for that
violation. The general issue before me is whether Walker
committed the violation as alleged and, if so, what is the
appropriate civil penalty to be assessed considering the criteria
under Section 110(i) of the Act. Additional specific issues are
addressed as noted.
The citation at bar, No. 7926770, alleges a "significant and
substantial" violation of the noted standard and charges as
follows:
The operator of the D-8K Cat dozer, Company No.
8PI was operating the dozer a [sic] the reclaim area
and not wearing his seatbelt. The dozer had a RPOS
[sic] with no cab and was working on a [sic] incline at
the time of inspection. The employee had been trained
and knew that a seatbelt is required to be worn when
the dozer is in operation. A seatbelt is needed and
required to prevent injury in the event of an
emergency.
The cited standard, 30 C.F.R. � 56.14130(g), provides as
relevant hereto that "seatbelts shall be worn by the equipment
operator."
Walker does not dispute the violation but challenges the
Secretary's "significant and substantial" and gravity findings.
According to Inspector James Timmons of the Mine Safety and
Health Administration (MSHA), he was performing an inspection at
Portable Plant No. 4 on March 30, 1999, when he observed a
bulldozer at the reclamation site working on a grade while its
operator was not wearing a seatbelt. The bulldozer, a D-8K
Caterpillar model, was according to Inspector Timmons, operating
in an area including "inclines and rough terrain." The bulldozer
had rollover protection bars but no cab. Timmons concluded that
the violation was "significant and substantial" because it would
be reasonably likely for there to be a fatality in the event of
an emergency such as a rollover. Timmons also opined that if the
bulldozer should suddenly stop or if the operator should fall out
of the cab onto the crawlers he could also suffer injury. The
bulldozer could suddenly stop if the blade should drop to the
ground or if the brakes were inadvertently activated.
The bulldozer operator admitted that he was required to wear
a seatbelt and that he had been trained to wear it. He
nevertheless felt that he could escape injury by jumping if the
bulldozer turned over and that he could do so more easily without
a seatbelt.
Foreman Scott Litke testified that the bulldozer operator
had in fact been trained to wear his seatbelt and the training
records in evidence support his testimony (See Resp.'s Exh. No.
4, Page 2, Item 13). Litke opined that, at worst, there was only
a four-to-one incline in the area in which the bulldozer was then
operating and there were no conditions that could cause a
rollover. Litke also noted however that the bulldozer operator
had failed a drug test earlier in March, before the instant
violation, and subsequently resigned after again failing a drug
test. Litke had previously observed this employee operating a
bulldozer without his seatbelt and warned him to put it on. This
event occurred the same week that he had been trained. The
employee was not disciplined.
David Walker, Chief Executive Officer of Walker Stone
Company, also testified that all employees are trained to wear
seatbelts. Walker also opined that the conditions present at the
time of the violation were neither hazardous nor "significant and
substantial." He noted that the area in which the bulldozer was
operating was "too flat" and observed that they had never had a
bulldozer turn over in the history of their operations. Walker
did acknowledged however, that it could be hazardous if the
bulldozer was working on a highwall. He noted that there was in
fact another location on the mine property at which this
bulldozer could have been working on a five to six-foot highwall.
He observed however that the ground was very stable at the
highwall.
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 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).
Under the facts of this case, particularly wherein this
bulldozer could be expected to be working above a five or six-
foot highwall, the violation was clearly "significant and
substantial" and of high gravity. Although there is evidence
that this employee had previously been warned about failing to
use his seatbelt, the Secretary attributes only low negligence to
the operator. In light of its previous efforts to train and warn
this employee about the need to wear his seat belt I would agree
with the Secretary's assessment. The operator is small to medium
in size and has no prior history of the violation charged herein.
The history is otherwise unremarkable with a modest number
primarily of "$50.00" violations. There is no dispute that the
violation herein was timely abated by instructing the employee to
wear his seatbelt. Under all the circumstances a civil penalty
of $75.00 is appropriate.
ORDER
Citation No. 7926770 is affirmed with its "significant and
substantial" findings and the Walker Stone Company is hereby
directed to pay a civil penalty of $75.00 within 40 days of the
date of this decision.
Gary Melick
Administrative Law Judge
Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Dept. of Labor,
1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)
David S. Walker, President, Walker Stone Company, Inc., Box 563,
Chapman, KS 67431 (Certified Mail)
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