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[DOCID: f:k94-994.wais]

 
B & S TRUCKING COMPANY
March 21, 1995
KENT 94-994


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                            March 21, 1995

SECRETARY OF LABOR,          :  CIVIL PENALTY PROCEEDING
  MINE SAFETY AND HEALTH     :
  ADMINISTRATION (MSHA),     :  Docket No. KENT 94-994
               Petitioner    :  A.C. No. 15-05423-03501 Q7G
          v.                 :
                             :  Manalapan No. 1 Mine
B & S TRUCKING COMPANY,      :
               Respondent    :

                               DECISION

Appearances:  Susan E. Foster, Esq., Office of the
              Solicitor, U.S. Department of Labor, 
              Nashville, Tennessee, for Petitioner;
              Susan C. Lawson, Esq., Harlan, Kentucky,
              for Respondent.

Before:  Judge Melick

     This case is before me upon the petition for
assessment of civil penalty filed by the Secretary of 
Labor pursuant to Section 105(d) of the Federal Mine 
Safety and Health Act of 1977, 30 U.S.C. Section 801, et. 
seq., the "Act," charging B & S Trucking Company (B & S) 
with one violation of the mandatory standard at 30 C.F.R.
� 77.405(b) and seeking a civil penalty of $1,800 for that 
violation.  The issue before me is whether B & S violated 
the cited standard 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 issue, No. 4242292, alleges a 
"significant and substantial" violation of 30 C.F.R. 
� 77.405(b) and charges as relevant herein that "the 
operator of the No. 11 Mack Truck was observed working 
under the unsupported raised bed of this coal truck."  
The cited standard provides that "[n]o work shall be 
performed under machinery or equipment that has been 
raised until such machinery or equipment has been 
securely blocked in position."

     Jim Langley, a coal mine inspector and accident 
investigator for the Mine Safety and Health 
Administration (MSHA) testified that he was conducting an 
inspection at the Manalapan Mining Company (Manalapan) No.
1 Mine on October 17, 1993, when he observed from the mine 
office about 110 feet away, a truck driver pass beneath 
the raised bed of a coal truck in the process of fueling 
that truck.  It was a 20 to 30 ton 10 wheel Mack diesel 
and its bed was raised fully extended to four to eight 
feet.  The truck driver was working for B & S, which hauls 
coal for Manalapan.

     Langley maintains that he was only 100 feet away 
from the truck at the time of this observation and had 
an unobstructed view.  He first observed the driver 
fueling the left side tank then pass beneath the raised 
truck bed to fuel the other side.  Langley noted that the 
driver first passed the fuel hose across then walked 
beneath the unsecured bed.  According to Langley either a 
bed pin or crib blocks could have been used to secure the
raised bed safely and within compliance of the cited 
standard but neither was used.  Within the framework of 
this credible testimony by the experienced and 
disinterested witness, Inspector Langley, I conclude that 
the violation existed as charged.

     Inspector Langley also maintains that the 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 (1981).  In Mathies Coal
Co., 6 FMSHRC 1,3-4 (1984), the Commission explained:

          In order to establish that a violation of a
     mandatory 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 Co. v. Secretary, 
     861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 
     2015, 2021 (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 (1984), and also that the likelihood of injury be 
evaluated in terms of continued normal mining operations. 
U.S. Steel Mining Co., Inc., 6 FMSHRC 1473, 1574 (1984); 
see also Halfway, Inc., 8 FMSHRC 8, 12 (1986) and Southern 
Ohio Coal Co., 13 FMSHRC 912, 916-17 (1991).

     Based on his knowledge of prior fatalities resulting 
from falling unsupported truck beds, Langley concluded 
that it was highly likely for such a fatality to occur in 
this case. According to Langley there was no way to 
determine from an external examination of the hydraulic 
system whether the safety check valve was indeed 
functioning or was about to fail and apparently no 
mechanical examination was performed on the truck
at issue in this case to determine whether or not the 
safety check valve was functioning.  Within the above 
framework of credible evidence I agree that indeed the
violation was "significant and substantial."  In this 
regard it is noted that Manalapan Mining Company Safety 
Director Darrell Cohelia agreed that if the violation 
had happened as alleged then it was indeed a "significant
and substantial" violation.

     The Secretary also maintains that the violation was 
the result of high operator negligence.  His analysis in 
this regard was set forth in his post-hearing brief as 
follows:

          The operator had to have known, and ignored the 
fact, that the design of the gas pumps at the No. 1 mine 
encouraged drivers to engage in the violative practice 
committed by Mr. Brock.  The pumps were designed in a 
manner which prevented the drivers from conveniently and 
expeditiously refueling the tanks on each side of the 
truck. Specifically, the pumps were situated so that a 
driver had to pull alongside the pumps to refuel his truck.  
However, with the truck in that position, the hose was
not long enough to reach the tanks on both sides of the 
truck. Accordingly, in order to fuel the second tank, the 
driver was required to turn the truck around.  However, as
a more expedient alternative, the driver could raise the 
bed of the truck, throw the hose across the frame, and then 
either step over the frame under the raised bed or walk 
around the truck.  Human nature being what it is, the 
operator must have realized that its drivers, like Mr. 
Brock, were stepping or leaning across the frame of the 
truck under the raised bed.  This would not pose any
danger so long as the driver used the bed pins to block 
the raised bed into position.  Here, however, power lines 
above the pumps prevented the drivers from fully extending 
the bed of the truck and, thus, the driver could not use 
the bed pins to block the raised bed into position.

          That the operator recognized the hazards posed 
by this situation is suggested by the fact that the pumps 
at the other mine sites were designed differently.  
Specifically, they were designed so that the driver could 
pull nose first up to the tanks.  When designed in this 
manner, the gas hose was long enough to reach the gas 
tanks on both sides of the truck without having to move 
the truck or raise the bed.

     There are three major problems with the Secretary's
argument.  First, there is insufficient evidence to
establish that the independent haulage contractor B&S had 
any authority regarding the location and arrangement of 
the fuel pumps at issue.  The pumps were apparently under 
the control of a separate corporate entity, Manalapan
Mining Company.  Second, even if B&S had authorized the 
location of the pumps it is undisputed that the haulage 
truck drivers could nevertheless have fueled both their 
tanks from that configuration in compliance with the law.
Third, finding negligence retroactively by reliance upon
subsequent remedial measures i.e. by realigning the fuel
pumps into a position facilitating the safe fueling of 
haulage trucks, is contrary to public policy and the 
objectives of the Act to encourage mine operators to 
optimize safety.  See also Rule 407, Federal Rules of
Evidence.

     There is, moreover, no evidence of any prior 
violations or similar practices at this or any other mine 
location and indeed it is the undisputed testimony that 
the regular truck drivers customarily filled the driver's 
side fuel tanks on one pass and, upon returning, filled 
the other side tank -- a non-violative practice.  I have 
also considered the evidence that B & S employees had 
been provided required safety training, including 
specific warnings against working under unsecured raised 
truck beds.  Even the truck driver at issue in this case, 
Charles Brock, acknowledged having such training and 
admitted that he knew working beneath raised unsecured 
truck beds was improper. Under the circumstances, I find
B & S chargeable with but little negligence.

     In reaching my conclusions in this case, I have not
disregarded the testimony of truck driver Charles Brock
that he worked beneath the raised truck bed only while 
passing the hose across the truck frame and that he did 
not actually climb across the truck frame itself.  I 
nevertheless find the disinterested and credible 
testimony of Inspector Langley that he actually observed 
Brock crossing the truck frame beneath its raised bed,
to be entitled the greater weight.  Langley had an 
unobstructed view of Brock from a distance of only about 
100 feet.  I also note Brock's self-interest in avoiding 
possible discipline from his employer for having violated 
known rules of safe conduct.

     Under all the circumstances and considering the 
relevant criteria under section 110(i) of the Act, I 
find that a civil penalty of $400 is appropriate for the 
violation herein.

                              ORDER

     Citation No. 4242292 is AFFIRMED as a "significant
and substantial" citation and B & S Trucking Company is 
hereby directed to pay a civil penalty of $400 within 30 
days of the date of this decision.


                                Gary Melick
                                Administrative Law Judge


Distribution:

Susan E. Foster, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite
B-201, Nashville, TN 37215-2862  (Certified Mail)

Susan C. Lawson, Esq., Buttermore, Turner, Lawson & Boggs,
P.S.C., 111 S. First Street, P.O. Box 935, Harlan, KY
40831  (Certified Mail)

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