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[DOCID: f:k96-327.wais]
WINN CONSTRUCTION CO., INC.
February 7, 1997
KENT 96-327
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 7, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. KENT 96-327
Petitioner : A.C. No. 15-16482-03526
v. :
: Browns Valley Mine
WINN CONSTRUCTION CO., INC., :
Respondent :
DECISION
Appearances: Anne T. Knauff, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee,
for the Peitioner;
J. R. Winn, Safety Director, Winn Construction
Company, Inc., Owensboro, Kentucky, for the
Respondent.
Before: Judge Melick
This civil penalty proceeding is before me pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 801 et seq., the "Act," to challenge two citations
issued by the Secretary of labor to Winn Construction Company,
Inc. (Winn Construction) and to contest the civil penalties
proposed for the violations charged therein. The general issue
before me is whether Winn Construction violated the cited
standards and, if so, what is the appropriate civil penalty to be
assessed considering the criteria under Section 110(i) of the
Act.
The two citations at issue arose from an accident at the
Browns Valley Mine on March 7, 1996. A 10-foot by 10-foot steel
pump house, built on four 12-foot pontoons and weighing
approximately one ton, was to be moved to another work site
utilizing a "cherry picker". Foreman Max Fendell was operating
the cherry picker and mechanic George Townsell and miner
Dewayne Pharris walked alongside prepared to steady the load as
it was being moved. It was suspended by chains attached to a
hook on the cherry picker boom. The load was not otherwise
secured.
As the cherry picker moved across some water diversion
ditches, the load began to move. Townsell and Pharris steadied
the pump house with their hands. The boom of the cherry picker
then contacted the overhead high-voltage power lines, breaking
one of the power lines and the ground line. Since Townsell was
in contact with the metal pump house with his right hand the
electrical current entered this hand and exited his right foot.
He suffered burns to his fourth, middle and index fingers, two
small burn holes on the ball of his right hand and a dime-sized
burn on the bottom of his right foot. He received first-aid and
was later transported to the intensive care unit of the Owensboro
Mercy Health System for observation. He was released on the
third day after the accident and returned to work on
March 11, 1996.
It is undisputed that Pharris and Townsell were not watching
the power lines as they walked alongside the pump house. It has
also been stipulated that Foreman Fendell knew the high-voltage
lines were energized, that he examined the work area before
moving the pump house, that he did not consider energized lines
to be a hazard, and that he thought he had lowered the boom
sufficiently to clear the power lines.
Citation No. 4276841 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 77.1607(s) and charges
as follows:
The Galion model 125 company ID 301 cherry picker
located at the preparation plant area was transporting
an approx 12 times 12 metal pump house pontoon and the
equipment was not secured. The equipment was involved
in an accident March 7, 1996.
The cited standard, 30 C.F.R. � 77.1607(s) provides that
"[w]hen moving between work areas, the equipment shall be
secured in the travel position."
Citation No. 4276919 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 77.807-3 and
charges as follows:
The Galion model 125 Co. ID 301 cherry picker
located at the preparation plant area was being operated
within 10 feet of an energized overhead line and the power
lines were not deenergized or other precautions taken.
The cherry picker was transporting an approx. 12 x 12 foot
metal pump house pontoon when the boom made contact with the
energized overhead power line. One person was contacting
the metal structure and received an electric shock from the
7200 volt overhead power line. The accident occurred
March 7, 1996.
The cited standard, 30 C.F.R. � 77.807-3, provides that
"when any part of any equipment operated on the surface of
any coal mine is required to pass under or by any energized
high-voltage power line and the clearance between such
equipment and power line is less than that specified in
Section 77.807-2 for boom and masts, such power lines shall
be deenergized or other precautions shall be taken."
The standard at Section 77.807-2 provides in part that "the
booms and masts of equipment operated on the surface of any
coal mine shall not be operated within 10 feet of an
energized overhead power line."
There is no dispute in this case that the violations
occurred as charged, and that they were "significant and
substantial" and of high gravity. Winn Construction takes
issue, however, with the amount of penalty proposed by the
Secretary for the vioaltions. In determining the amount of
penalty to be assessed in these cases, the degree of
operator negligence is of particular importance. In this
regard Inspector
Michael Van Moore of the Mine Safety and Health
Administration (MSHA) noted that, when issuing these
citations there were mitigating circumstances which
warranted his findings of moderate negligence. In
particular, Moore relied upon statements to him by Foreman
Fendell that although he knew the power lines were energized
he tried to avoid them by suspending the pump house in a low
position and that he had the other miners watch the overhead
lines.
Jerry Winn, Jr., on behalf of the Respondent testified that
he too had talked to Fendell and that Fendell told him that
he did not specifically tell his workers to watch out for
the power lines. In addition, Winn testified that Pharris
reported to him that he was not told "anything in
particular" regarding the power lines. Under the
circumstances it would appear that Inspector Moore's
conclusions that Respondent was chargeable with but moderate
negligence may have been based upon less than credible and
self serving statements. I do note however that Fendell was
disciplined by Respondent for his negligence and received a
letter of reprimand.
In any event, under all the circumstances and considering
the criteria under Section 110(i) of the Act, I conclude
that civil penalties of $500 for each of the violations is
appropriate.
ORDER
Citation Nos. 4276841 and 4276919 are affirmed and Winn
Construction Company, Inc. is hereby directed to pay civil
penalties of $500 for each of the violations in the above
citations within 30 days of the date of this decision.
Gary Melick
Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002
Richard Jones Road, Suite B-201, Nashville, TN 37215-2862
(Certified Mail)
J.R. Winn, Safety Director, Winn Construction Co., Inc., 2920 Fairview
Drive, Owensboro, KY 42303 (Certified Mail)