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SUNNY RIDGE MINING COMPANY
April 27, 1995
KENT 93-63
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 27, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. KENT 93-63
Petitioner : A.C. No. 15-17081-03507
v. :
: Docket No. KENT 93-259
SUNNY RIDGE MINING COMPANY, : A.C. No. 15-17081-03511
Respondent :
: Docket No. KENT 93-863
: A.C. No. 15-17081-03513
:
: No. 9 Mine
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. KENT 94-453
Petitioner : A.C. No. 15-17081-03516A
v. :
: No. 9 Mine
MR. MITCH POTTER, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) : Docket No. KENT 94-454
Petitioner : A.C. No. 15-17081-03517A
v. :
: No. 9 Mine
MR. TRACY DAMRON :
Respondent :
DECISION
Appearances: MaryBeth Bernui, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Reed D. Anderson, Esq., Harris & Anderson,
Pikeville, Kentucky, for Respondent.
Before: Judge Fauver
These are civil penalty cases under � 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq., for alleged violations of mine safety standards.
Two of the charges were settled at the hearing and the rest
were heard on the merits.
After the hearing, the exhibits were lost by the Post
Office. The parties were requested to furnish copies of
their exhibits where possible. Those received from the
parties have been assembled in a replacement exhibit folder.
Having considered the hearing evidence and the record
as a whole, I find that a preponderance of the substantial,
probative and reliable evidence establishes the Findings of
Fact and further findings in the Discussion below:
FINDINGS OF FACT
1. Respondent Sunny Ridge Mining Company, Inc., a
Kentucky corporation, is a medium-sized mine operator,
producing coal for sale in or substantially affecting
interstate commerce.
2. At all relevant times, Respondent Tracy Damron was
foreman of the No. 9 Mine and Respondent Mitch Potter was
president of Sunny Ridge Mining Company, Inc.
Citation No. 4020202
3. This � 104(d)(1) citation was issued by Inspector
Butch Cure on August 5, 1992, charging a violation of
30 C.F.R. � 77.405(b), which provides:
(b) No work shall be performed under machinery
or equipment that has been raised until such
machinery or equipment has been securely blocked
in position.
4. Mine No. 9, a surface coal mine, used a makeshift
method to change flat rear tires on its coal dump trucks.
A wooden crib was stacked close to the rear of the truck
on the side that had the flat tire. The hydraulic truck
bed was then raised, tilting its front end upward and
lowering its back end on the crib. Further pressure to
raise the truck bed exerted downward pressure on the crib
and this pressure caused the rear axle and wheel to
elevate. This method is illustrated in Gov't. Exh. No. 4.
A miner would remove the lug nuts and take off the wheel
to change the tire. To remove the wheel, the miner would
put his back to the wheel (which weighed 250 to 300 pounds)
and grasp it from behind his back to pull it from the lug
bolts onto his back and then "walk it" to the ground.
After changing the tire, the miner would use his back to
lift the wheel back onto the lug bolts. He would then
face the wheel and tighten the lug nuts. All of these
steps were performed while the truck bed and axle were
elevated. Chocks or blocks were not used to prevent the
truck bed or axle from falling while the wheel was being
changed.
5. On the day in question, the cited truck was loaded
with 30 tons of coal when the hydraulic truck bed was
raised to lift the left rear axle to change a flat tire.
Chocks or blocks were not used to prevent a falling
accident.
6. When Inspector Cure first noticed the truck, he
was some distance away and saw a group of men standing
around the truck with Foreman Tracy Damron. The truck bed
was not elevated at that time. He went to the truck to
talk to the foreman about other equipment. He observed
that a crib was stacked behind the truck but the truck bed
was not raised. The truck bed was loaded. The inspector
left for another part of the mine. Later, from a distance
he saw the loaded truck bed was elevated and he drove
toward the truck to see what was happening. As he came
closer, he saw the bed was resting on the crib, a left
rear wheel was raised, and a miner was reaching in to
handle the lug nuts on the wheel. There was no jack under
the axle. As the inspector approached, some of the men
walked away and Foreman Damron quickly had the truck bed
and wheel lowered. He then got a 20-ton jack to try to
lift the axle and wheel. It would not lift them. The
inspector issued the citation to the foreman.
Order No. 4020210
7. This � 104(d)(1) order, issued on August 18, 1992,
charges a violation of 30 C.F.R. � 77.1001, which provides:
Loose hazardous material shall be stripped for
a safe distance from the top of pit or highwalls,
and the loose unconsolidated material shall be
sloped to the angle of repose, or barriers,
baffle boards, screens, or other devices be
provided that afford equivalent protection.
8. Inspector Butch Cure observed loose rocks and
boulders on the spoil side of the highwall in the
No.3 1/2 pit. The high-wall was about 25 feet high, 200
feet long. Four pieces of equipment were operating
beneath the spoil bank.
Citation No. 4020074
9. This � 104(a) citation, issued on January 27,
1993, charges a violation of 30 C.F.R. � 77.410, which
requires a backup alarm on mobile equipment such as front-
end loaders, forklifts, tractors, graders, and certain
trucks.
10. At the hearing the parties moved to settle this
charge by lowering negligence from moderate to low and
reducing the penalty from $431 to $350. The settlement
was approved.
Citation No. 4228207
11. This � 104(a) citation, issued on February 10,
1993, charges a violation of 30 C.F.R. � 77.1007(b), which
provides:
(b) Equipment defects affecting safety shall be
corrected before the equipment is used.
12. At the hearing the parties moved to settle this
charge by lowering negligence from moderate to low and
reducing the penalty from $431 to $350. The settlement
was approved.
Order No. 4020075
13. This � 104(d)(2) order, issued on January 27,
1993, charges a violation of 30 C.F.R. � 77.1001.
14. Inspector Billy Damron observed loose materials,
including blasted rock, dirt and uprooted trees, on the
highwall of the No. 2 pit. The highwall was about 65 feet
high. A bull-dozer was operating beneath the highwall.
Order No. 4020076
15. This � 104(d)(2) order, issued on January 27,
1993, charges a violation of 30 C.F.R. � 77.1001.
16. Inspector Billy Damron observed loose rocks and
loose boulders on the face and top of the highwall in the
No. 1 pit. The highwall was 90 to 100 feet high. He also
observed a loose boulder, loose rocks, and dirt on the
spoil bank side, which was about 60 feet high. Men and
equipment were operating in the pit. The inspector
observed fresh tire tracks indicating that the end loader
was operating parallel to the spoil bank. He also
observed footprints near the bottom of the spoil bank.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS
Citation No. 4020202
Section 77.405(b) provides that "No work shall be
performed under machinery or equipment that has been
raised until such machinery or equipment has been securely
blocked in position."
The operator allowed a miner to work on a wheel under
the raised bed of a 15-ton coal dump truck, loaded with 30
tons of coal, without blocking the raised truck bed and
axle.
When Inspector Cure first saw the truck, in front of
a truck shop, a group of miners were standing around the
truck with their foreman, Respondent Tracy Damron. The
inspector approached the truck to talk to the foreman about
other equipment he wanted to inspect. He noticed that the
truck was loaded and a crib was stacked behind the truck.
However, the truck bed was not elevated. He left the shop
area to inspect other vehicles. Later, from a distance he
noticed that the loaded truck bed was raised. He drove to
the truck shop to see what was happening. As he approached,
he saw the hydraulic bed was elevated to press on the crib
and the left rear wheel was raised. A miner was reaching
in to handle the lug nuts on the elevated wheel. Some of
the men scattered as the inspector approached. The
foreman quickly stopped the work on the wheel, had the
truck bed and wheel lowered, and then got a 20-ton jack to
try to raise the rear axle and wheel. It would not lift
the axle. The inspector issued Citation No. 4020202 to
Foreman Damron.
Foreman Damron testified there were two 20-ton jacks
under the axle when the inspector saw the raised truck bed
and a miner working on the wheel. I do not accept this
testimony. I find that there was no jack under the axle
when the inspector saw a miner handling the lug nuts when
the truck bed and wheel were raised.
The president of the company, Respondent Mitch Potter,
testified concerning the company's practice of changing
rear tires on coal trucks. He was not present during
Inspector Cure's inspection. Mr. Potter testified that
the company practice was to stack a wooden crib behind the
truck, raise the truck bed to press on the crib to relieve
pressure on the wheel, and use two jacks to lift the axle
on the side of the flat tire. He did not know what
practice or conditions were observed by Inspector Cure on
the day in question.
Contrary to the practice contended by Mr. Potter,
Inspector Cure observed that the hydraulic truck bed and
left rear wheel were raised without using a jack. A miner
was handling the lug nuts when the inspector observed the
raised bed and wheel.
The miner was working "under . . . machinery or
equipment" within the meaning of the regulation because
the wheel he was working on was under the elevated truck
bed and truck frame. If the truck bed fell the wheel may
have been jarred loose and fallen on him, the truck frame
may have struck him, or the tire may have crushed a foot.
If he was handling the lug nuts when the truck bed fell
he may have received severe hand injuries.
The violation was "significant and substantial" in
that it was reasonable likely to result in serious injury
if this practice of shortcutting safety devices continued
in normal mining operations. Mathies Coal Co.,
6 FMSHRC 1 (1984).
Because the truck was not designed to lift a wheel in
the manner used by the mine operator, and jacks were
available and designed for that purpose, the operator was
highly negligent in shortcutting safety devices and
endangering a miner. The violation was therefore
"unwarrantable" within the meaning of � 104(d)(1) of the
Act. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189
(1991).
In addition to citing the corporation, the Secretary
charged Tracy Damron individually under � 110(c) of the
Act, which provides in part:
Whenever a corporate operator violates a
mandatory health or safety standard . . . any
director, officer or agent of such corporation
who knowingly authorized, ordered, or carried
out such violation . . . shall be subject to
the same civil penalties, fines and imprisonment
that may be imposed upon a person under
subsections (a) and (d) of this section.
Section 3(c) of the Act defines "agent" as "any person
charged with responsibility for the operation of all or
part of a coal or other mine or the supervision of the
miners in a coal or other mine." Foreman Damron was an
agent of the corporation.
The Commission has interpreted the term "knowingly" in
� 110(c) as follows:
Knowingly, as used in the Act does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that used in
contract law, where it means knowing or having
reason to know. A person has reason to know when
he has such information as would lead a person
exercising reasonable care to acquire knowledge
of the fact in question or to infer its existence
[citation omitted]. We believe this
interpretation is consistent with both the
statutory language and the remedial nature of the
Coal Act. If a person in a position to protect
employee safety and health fails to act on the
basis of information that gives him knowledge or
reason to know of the existence of a violative
condition, he has acted knowingly and in a
manner contrary to the remedial nature of the
statute.
Secretary v. Kenny Richardson, 3 FMSHRC 8,16 (1981), aff'd,
689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928
(1983).
Foreman Damron was present while the tire was being
changed in an unsafe manner in violation of 30 C.F.R.
� 77.405(b). As the inspector approached the truck, some
men scattered and the foreman quickly had the truck bed
and wheel lowered. He then got a 20-ton jack and attempted
unsuccessfully to raise the rear wheel. The foreman's
effort to cover up his method of changing a tire is strong
evidence of his knowledge of a violation. I find that
Foreman Damron "knowingly authorized, ordered, or carried
out" the violation alleged in Citation No. 4020202, within
the meaning of � 110(c) of the Act. I find that he was
highly negligent.
Considering all of the criteria for civil penalties
in � 110(i) of the Act, I find that a penalty of $5,000 is
appropriate for the corporation and a penalty of $2,500 is
appropriate for Foreman Tracy Damron, for the violation
cited in Citation No. 4020202.
Order No. 4020210
This order was issued under � 104(d)(1) of the Act,
charging a violation of 30 C.F.R. � 77.1001.
On August 18, 1992, Inspector Butch Cure observed
loose and unconsolidated material in the form of large and
small rocks and boulders on the spoil side of the highwall
in No. 3 1/2 pit. The highwall was about 25 feet high and
200 feet long.
The inspector testified that the loose material
presented a hazard to the drivers of four pieces of
equipment operating below the spoil bank.
Mr. Ed Brown, an engineer, testified for the operator
regarding the likelihood of injury from rocks falling on
the end loader operating beneath the spoil bank. He found
the risk of injury to be remote if the end loader operated
at a perpendicular angle to the spoil bank but increased
as the angle approached a position parallel to the spoil
bank.
I find that there was a reasonable likelihood that the
loose material on the spoil bank would slough or roll off
striking equipment or miners and causing serious injuries.
The violation was thus significant and substantial.
The operator had been cited for a violation of the
same standard on the same highwall less than two weeks
before this violation. The same foreman, Tracy Damron,
was in charge on both occasions. Upon issuing the prior
citation, Inspector Cure spoke to Foreman Damron about the
hazards of loose material on the highwall. I find that
the foreman's disregard of the hazards on August 18, 1992,
was serious and shows aggravated conduct beyond ordinary
negligence. I therefore find that the violation was
"unwarrantable" within the meaning of � 104(d)(1) of the
Act.
The Secretary also charged Foreman Damron with
individual liability for this violation, under � 110(c)
of the Act.
Foreman Damron was aware of the hazardous conditions
because he conducted a daily examination of the work site
before Inspector Cure arrived. I find that the foreman
knowingly authorized, ordered, or carried out the
violation cited in Order No. 4020210, within the meaning
of � 110(c) of the Act.
Considering all of the criteria for civil penalties
in � 110(i) of the Act, I find that a penalty of $8,000 is
appropriate for the corporation and a penalty of $3,000 is
appropriate for Foreman Tracy Damron for the violation
cited in Order No. 4020210.
Order No. 4020075
This order was issued under � 104(d)(2) of the Act,
charging a violation of 30 C.F.R. � 77.1001.
On January 27, 1993, Inspector Billy Damron observed
loose and unconsolidated material in the form of blasted
rock, dirt and trees on the highwall and spoil bank in
No. 2 pit. The highwall was about 65 feet high. The
inspector observed a bulldozer operating beneath the
highwall.
The operator had been issued 17 charges of violations
of the same standard within about six months, and had been
issued two charges for violating the same standard during
the last inspection. The same foreman, Tracy Damron, was
in charge on the previous inspection and the day that
Order No. 4020075 was issued. I find that Foreman
Damron's disregard of hazardous, loose materials on the
highwall and spoil bank shows aggravated conduct beyond
ordinary negligence. The violation on January 27, 1993,
was therefore unwarrantable. The violation was reasonably
likely to result in serious injury, and therefore was
significant and substantial.
In addition to charging the corporation, the Secretary
charged Foreman Tracy Damron individually under � 110(c).
Foreman Damron was in charge and conducted a daily
examination of the pit before the inspection. I find that
he knew about the hazardous conditions. For the reasons
discussed as to other violations of � 77.1001 by Foreman
Damron, above, I find that Foreman Damron knowingly
authorized, ordered, or carried out the violation on
January 27, 1993, within the meaning of � 110(c).
Considering all of the criteria for civil penalties
in � 110(i), I find that a penalty of $10,000 is
appropriate for the corporation and a penalty of $4,000 is
appropriate for Foreman Tracy Damron for the violation
cited in Order No. 4020075.
Order No. 4020076
This � 104(d)(2) order was issued on the same day as
Order No. 4020075.
Inspector Billy Damron observed loose, hazardous
material in the form of rocks and boulders on the face
and top of a highwall in No. 1 pit. The highwall was
about 90 to 100 feet high. He observed a front-end loader
and coal trucks operating beneath the highwall.
Inspector Damron also observed a large boulder and
loose rocks and dirt on the spoil bank side, about 60 feet
high. The inspector observed fresh tire tracks indicating
the end loader was operating parallel to the spoil bank.
He also observed miners working in the pit and footprints
near the bottom of the spoil bank.
The corporation had been issued two charges of
violating the same standard in the previous inspection and
the same foreman, Tracy Damron, was in charge on both
inspections.
I find that Foreman Damron's disregard of the hazards
discovered by the inspector shows aggravated conduct beyond
ordinary negligence. The violation was therefore
unwarrantable within the meaning of � 104(d) of the Act.
The violation was reasonably likely to result in
serious injury, and therefore was significant and
substantial.
The Secretary charged Foreman Damron individually
under � 110(c). He was in charge on January 27, 1993, and
he had conducted a daily examination of the pit before the
inspector arrived. Foreman Damron was also the foreman in
charge when two citations were issued for violations of the
same standard during the previous inspection within six
months of the date when Order No. 4040076 was issued. I
find that Foreman Damron knowingly authorized, ordered, or
carried out the violation cited in Order No. 4020076 within
the meaning of � 110(c).
Considering all of the criteria for civil penalties
in � 110(i) of the Act, I find that a penalty of $10,000
is appropriate for the corporation and a penalty of $4,000
is appropriate for Foreman Tracy Damron for the violation
cited in Order No. 4020076.
Section 110(c) Charges Against Mitch Potter
The Secretary also charged Mitch Potter, president of
the corporation, with individual liability under � 110(c)
concerning the violations cited in Order Nos. 4020075 and
4020076.
Mr. Potter supervised the day-to-day operations of
the corporation. He was present at Mine No. 9 on January
27, 1993, and was aware of the conditions of the highwalls
involved in the two orders before the inspection. Also,
Mr. Potter was aware of previous citations issued by
Inspector Cure for similar violations of the same standard.
I find that Mr. Potter was in a position to prevent the
violations found on January 27, 1993, but failed to take
action to do so. I find that he knowingly authorized,
ordered, or carried out the violations charged in Order
Nos. 4020075 and 4020076, within the meaning of � 110(c).
Considering all of the criteria for civil penalties
in � 110(i), I find that a civil penalty of $6,000 against
Mr. Potter is appropriate for the violation charged in
Order No. 4020075 and a civil penalty of $6,000 against Mr.
Potter is appropriate for the violation charged in Order
No. 4020076.
CONCLUSIONS OF LAW
1. The judge has jurisdiction.
2. Respondent Sunny Ridge Mining Co., Inc., violated
the safety standards as alleged in Citation Nos. 4020202,
4228207 and 4020074, and in Order Nos. 4020210, 4020075,
and 4020076.
3. Respondent Tracy Damron knowingly authorized,
ordered, or carried out the violations alleged in Citation
No. 4020202, and in Order Nos. 4020210, 4020075, and
4020076 within the meaning � 110(c) of the Act.
4. Respondent Mitch Potter knowingly authorized,
ordered, or carried out the violations alleged in Order
Nos. 4020075 and 4020076 within the meaning of � 110(c)
of the Act.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent Sunny Ridge Mining Co., Inc., shall
pay civil penalties of $33,700 within 30 days of the date
of this Decision.
2. Respondent Tracy Damron shall pay civil penalties
of $13,500 within 30 days of the date of this Decision.
3. Respondent Mitch Potter shall pay civil penalties
of $12,000 within 30 days of the date of this Decision.
William Fauver
Administrative Law Judge
Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215-2862 (Certified Mail)
Reed D. Anderson, Esq., Harris & Anderson, P.O. Box 279,
Pikeville, KY 41502 (Certified Mail)
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