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[DOCID: f:lk9722.wais]
MATERIAL SERVICE CORP.
February 4, 1999
LAKE 97-22-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 4, 1999
MATERIAL SERVICE CORP., : CONTEST PROCEEDING
Contestant :
v. : Docket No. LAKE 97-22-RM
: Citation No. 4416777; 11/13/96
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Algonquin Sand & Gravel
ADMINISTRATION (MSHA), : Mine ID No. 11-01117
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 98-31-M
Petitioner : A. C. No. 11-01117-05515
v. :
: Algonquin Sand & Gravel
MATERIAL SERVICE CORP., :
Respondent :
DECISION
Appearances: Richard R. Elledge, Esq., Gould & Ratner, Chicago,
Illinois, for Contestant\Respondent; Ruben R. Chapa,
Esq., Office of the Solicitor, Department of Labor,
Chicago, Illinois, for Respondent\Petitioner.
Before: Judge Hodgdon
These consolidated cases are before me on a Notice of
Contest and a Petition for Assessment of Civil Penalty filed by
Material Service Corporation against the Secretary of Labor, and
by the Secretary, acting through her Mine Safety and Health
Administration (MSHA), against Material Service, respectively,
pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. � 815. The Company contests the issuance to
it of Citation No. 4416777 alleging a violation of the
Secretary's mandatory health and safety standards. The petition
seeks a penalty of $60,050.00 for the contested and two other
citations. A hearing was held in Chicago, Illinois. For the
reasons set forth below, I vacate two of the citations and assess
a penalty of $30,000.00.
Background
The Algonquin Sand and Gravel mine, also known as "Yard 46,"
is one of several sand and gravel operations owned by Material
Service Corporation, a subsidy of General Dynamics Corporation.
It is located in McHenry County, Illinois. The mine is large in
area and supplies as many as 13 different grades of sand and
gravel to its customers. Trucks owned by Material Service, and
operated by employees known as "stockpilers," are loaded with
product at the Wash plant and haul it to various stockpiles
located throughout the yard. Customer trucks come onto the
property and park next to the stockpile of the type of sand or
gravel to be picked up and are loaded by a front-end loader.
Customer trucks and operator trucks all drive on the same
roadways in the yard.
On June 19, 1996, Eugene McPheron was driving a semi-dump
truck for Sunrise Cartage. Although he had only worked for
Sunrise for 35 days, he had been a truck driver hauling materials
for about 30 years. He returned to Yard 46 for his third haul at
about 10:00 a.m. and stopped at the binder[1] pile just north of
the Wash Plant to be loaded. After observing several other
trucks that had come in after him being loaded, McPheron decided
that he might be in the wrong place. He got out of his truck and
went back to ask the driver of the truck who had pulled in behind
him if he was in the right place. As McPheron walked toward the
other truck, the driver of that truck, Raymond Remillard, got out
of his truck, which was parked next to the Wash Plant, and walked
toward McPheron. They met between the trucks.
As the two men talked, they were facing northeast towards
McPheron's truck and the binder pile. While they were talking,
they were run over from the rear by an R-35 Euclid 35 ton Rear
Dump truck driven by Robert Bauman, a Material Service
stockpiler. Bauman was returning to the Wash Plant to pick up
another load when he felt a bump while passing between the two
parked trucks. He looked in his mirror and saw two bodies lying
on the ground. He got out of his truck and went to see what had
happened. On observing the bodies, he signaled the loader
operator to call for help.
The first person from management to arrive at the scene was
Frank Anderson, Production Foreman. He got there a few minutes
after the accident. He went to the bodies on the ground, told
one employee who had come to the accident to go to the front gate
to direct the emergency vehicles when they arrived, told Bauman
to move his truck and tried to see if there was anything he could
do for McPheron and Remillard. Shortly thereafter, ambulances,
police cars and fire trucks began arriving.
Remillard's injuries were fatal. McPheron suffered a
concussion, two herniated disks, two fractured ribs and numerous
bruises and scrapes. As of the date of the hearing, he had not
been released by his doctor to return to truck driving.
MSHA Inspector Jerry L. Spruell arrived to investigate the
accident on June 20, 1996. Based on his investigation, he issued
two citations to the company on June 25, 1996. The first,
Citation No. 4416239, alleged that the company had violated
section 50.12 of the regulations, 30 C.F.R. � 50.12, because the
"mine operator allowed an accident site to be altered without
approval of the District Manager or MSHA representative" by
moving the Euclid truck from where it had first stopped. (Govt.
Ex. 12.)
The second, Citation No. 4416240, alleged a violation of
section 56.9100(b), 30 C.F.R. � 56.9100(b), because:
Signs or signals to warn of hazardous
conditions were not placed at appropriate
locations on the property. There was nothing
posted on the mine site to alert customer
drivers to stay in their vehicles or that
mine equipment have [sic] the right-of-way
during load-out procedures. On 6-19-96 two
customer truck drivers were injured, one
fatally, when they were struck by a Euclid R-
35 truck (Co # 54-6502) as it was in the
process of turning into the mill area. These
drivers could not be seen by the haul truck
driver prior to the accident. In the area
where the accident occurred there was no
warnings of truck travel or to remain in your
vehicle.
(Govt. Ex. 10.)
On November 13, 1996, the inspector issued a third citation
to the company. Citation No. 4416777 asserts a violation of
section 56.9100(a), 30 C.F.R. � 56.9100(a), in that:
Rules governing right-of-way were not
established and followed on this property. .
. . The mine operator failed to establish
traffic rules to control right-of-way, a safe
traffic pattern and reduce traffic congestion
where the Euclid truck normally traveled.
They mixed off-road and over-the-road truck
vehicles without adequate allowance for the
difference in vehicle size. The company
allowed a vehicle to be parked in an area
that prevented their haul unit driver from
seeing the men on the ground before he struck
them.
(Govt. Ex. 11.)
Findings of Fact and Conclusions of Law
Citation No. 4416239
This citation alleges a violation of section 50.12, which
requires that:
Unless granted permission by a MSHA
District Manager or Subdistrict Manager, no
operator may alter an accident site or an
accident related area until completion of all
investigations pertaining to the accident
except to the extent necessary to rescue or
recover an individual, prevent or eliminate
an imminent danger, or prevent destruction of
mining equipment.
There is no dispute that the accident site was altered when the
Euclid truck was moved 30 feet from where it stopped after the
accident. Unless moving it comes within one of the exceptions
set out in the regulation, the section was violated. I find that
the truck was moved to permit emergency vehicles to recover the
victims and to eliminate a possible imminent danger and,
therefore, the section was not violated.
Anderson testified that he told Bauman to move the truck
"[b]ecause, in my opinion, he was much too close to the immediate
scene of the accident and it was impeding the emergency people
from getting to the two injured gentlemen." (Tr. 181.) He
further testified on cross examination:
Q. You did not have the Euclid truck moved to prevent
imminent danger?
A. I didn't know the condition of the truck.
I didn't know if the brake was set, and I
could not determine if there might not
possibly by an imminent danger of the truck
rolling back toward me and everybody else on
the ground.
(Tr. 248-49.) While this indicates that Anderson was concerned
with a possible imminent danger, the evidence is much stronger
that he mainly was concerned with access for emergency vehicles.
Other than stating his opinion that the truck did not have
to be moved to permit access to the victims, the inspector, who
did not view the scene until the day after the accident, provided
no reasons or rationale for his conclusion. He also testified as
follows:
Q. How many rescue vehicles responded to the
emergency, do you know?
A. I have no idea.
Q. Did you inquire?
A. Did I inquire?
Q. As to how many vehicles ---?
A. If I did, I don't remember.
Q. Okay. Thank you. Now, you spoke in
terms of your training in fatality
investigations. Have you had any personal
experience in actual mine rescue that injured
victims were present?
A. No, I have not.
Q. Have you had any personal experience in
responding to an automobile or truck or
equipment accident other than a mine accident
where there were injured parties?
A. No, I have not.
(Tr. 137-38.) Thus, the inspector's opinion appears to
be based entirely on the fact that the truck was moved,
and not on any investigation to determine whether the
movement was necessary to permit access by emergency
vehicles.
Essentially, to find a violation in this case, it is
necessary to second-guess Anderson's judgment. As he
stated:
In hindsight, the ambulance could have accessed the
victims without my moving the truck. However, at the
time, in the heat of the moment, I felt very definitely,
and I do feel today, that it was necessary to move the
truck. That was a reaction pursuant to my training to
clear the area and secure the area for the ambulance.
(Tr. 244.) I find that his decision at the time was reasonable
under the circumstances. It unquestionably was made for the
reasons stated and was not a surreptitious attempt to undermine
the investigation.[2] Finally, as the inspector admitted, the
fact that the truck had been moved "did not impede my
investigation." (Tr. 135.)
Since moving the truck, although it altered the scene of the
accident, was for reasons permitted by the regulation, was not
an attempt to subvert the investigation and did not hinder the
investigation, I find that it did not violate section 50.12.
Consequently, I will vacate the citation.
Citation No. 4416240
This citation alleges a violation of section 56.9100(b)
which requires that "[s]igns or signals that warn of hazardous
conditions shall be placed at appropriate locations at each
mine." The inspector found that the company violated this
section because there were no signs warning customer drivers to
stay in their trucks or that mine vehicles had the right-of-way
at the mine. I agree.
Material Services admits that there were no signs anywhere
in the yard advising drivers to stay in their trucks, but
contends that all of the drivers knew that they were not supposed
to get out of their trucks, so the lack of signs was not a
violation of the regulation. However, this was clearly not the
case. The only customer truck driver who testified at the
hearing, McPheron, said that it was common for drivers to get
out of their trucks on mine property in the loading area.
He related that:
Well, everybody has to, you know, use
the bathroom, jump out, and that's the only
time you really got to clean your windshield
off before you go back out on the highway.
And then some guys are sweeping their truck
out and then you check your tires to see if
you've got a flat tire before you go back
out. As soon as they get stopped in line or
whatever, they're always jumping out, doing
something, you know.
(Tr. 42.) He further testified that Material Services did not
give him any warnings or safety precautions to be followed at the
yard, nor did anyone advise him about direction of movement or
who had the right-of-way. His testimony was unchallenged.
The company makes no claim that drivers getting out of their
trucks, at other than designated places, was not a hazardous
condition. Obviously, if McPheron and Remillard had not gotten
out of their trucks this accident would not have happened. Since
their were no signs anywhere directing drivers not to get out of
their trucks, I conclude that the company violated section
9100(b). See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June
1997).
Significant and Substantial
The Inspector found this violation to be "significant and
substantial." 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." A violation is
properly designated S&S "if, based upon 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 set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.
v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g
Austin Power, Inc., 9 FMSHRC 2015, 2021 (December
1987)(approving Mathies criteria). Evaluation of the
criteria is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574 (July 1984). The question of whether a particular
violation is significant and substantial must be based on
the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal
Co., 9 FMSHRC 1007 (December 1987).
In view of the death of Remillard and the serious injuries
of McPheron, there can be little doubt that this violation
satisfies the Mathies criteria. Therefore, I conclude that
the violation was "significant and substantial."
Negligence
The inspector assessed Material Service's negligence in not
complying with the regulation as "moderate" because he
believed there were few mitigating circumstances involved.
I find this to be an accurate assessment.
Citation No. 4416777
This citation alleges a violation of section 56.9100(a)
which requires that "[r]ules governing speed, right-of-way,
direction of movement, and the use of headlights to assure
appropriate visibility, shall be established and followed at
each mine." The Secretary has failed to prove this
violation.
The inspector testified that this citation was issued
because "[t]here were no rules governing the -- who had the
particular right-of-way in the area where a fatal accident
had occurred the previous June." (Tr. 97.) He further
stated that "rules had not been established dictating a safe
movement of vehicles in the area where an accident had
occurred." (Id.) The inspector maintained that he made
this determination by talking to people at the scene of the
accident.
On the other hand, Jeff Brasuell, the plant superintendent,
testified that in the spring of 1991, after he became
superintendent he made some changes in the traffic pattern
at the yard because "there was some congestion coming off
the roadways and the flow wasn't quite as precise or as
clear as I thought it could be by implementing some of these
changes, and so we looked to make it better." (Tr. 262.)
He related that a roadway "was added so that all the traffic
moved from east and south and then exited the yard basically
on the west side of the yard . . . so that everybody would
travel --- everything would travel in a clockwise pattern."
(Tr. 263.) Specifically, with respect to the Euclid truck,
he stated that it was "a long-standing rule at the plant
that the trucks would yield the right-of-way to the Euclid
truck." (Tr. 285.)
In support of its claim to have rules governing speed,
right-of-way and direction of movement, Material Service
offered into evidence a map showing the direction of traffic
and the location of traffic signs, which existed prior to
the accident, to carry out its plan. (Resp. Ex. E.) It
also presented pictures of the signs, which included "stop"
signs, "speed limit" signs, "stop ahead" signs, "Do Not
Enter" signs, "No Right Turn" signs, "Caution steep grade"
signs, "Caution. Speed limit 10 mph" signs, "Keep Right"
signs, "Wrong way" signs, "Slow" signs, and "Yield" signs.
(Resp. Ex. C.)
That the company's plan was effective is evidenced by the
testimony of McPheron. In testifying concerning the area
where the accident happened, he stated, "I'm sure it's one-
way, but I'm not sure if it was posted there. It's just a
given that everybody knew which way, you know, to go in and
go out." (Tr. 31.) With regard to the Euclid truck, he
testified: "I don't think it's posted anywhere, but
everybody knows, you stay out of his way and leave room for
him and you don't block any roads, you know where he's
going, let him do his job, you know." (Tr. 38.)
Finally, to abate this violation, MSHA did not require
Material Services to change the rules concerning right-of-
way and traffic already in effect, but only to put up a few
more signs reinforcing the rules previously established.
Randall Mucha, Director of Safety for Material Services,
testified that after receiving the citation:
We looked at traffic patterns again at
Yard 46. We even looked at traffic patterns
to maybe reverse the flow of traffic at
[this] location and every alteration that we
were to try --- that we looked at making, we
always ended up going back to the original
study that was done and original traffic
pattern that was completed in 1991.
(Tr. 329.) Off-road and over-the-road trucks are still operating
on the same roadways and nothing was apparently done to prohibit
trucks from parking were the trucks were parked at the time of
the accident, even though those two items were the specific
deficiencies set out in the citation as demonstrating that the
company had not implemented traffic rules.
The regulation requires that the company have rules, and in
this case there is no doubt that the company did have rules.
There has been no showing that those rules were in any way
deficient.[3] Moreover, there is nothing to indicate that the
accident resulted from a failure of the company's rules of the
road. The accident occurred because truck drivers got out of
their trucks when they should not have, not because there was
confusion as to rights-of-way or who had to yield to whom. The
signs that were put up to abate the violation did not change
Material Service's traffic pattern or rules of the road and would
not have prevented the accident.
Accordingly, I conclude that the Secretary has failed to
establish that the operator violated section 56.9100(a).
Consequently, I will vacate the citation.
Civil Penalty Assessment
The Secretary has proposed a penalty of $40,000.00 for the
violation of section 56.9100(b). However, it is the judge's
independent responsibility to determine the appropriate amount of
penalty in accordance with the six penalty criteria set out in
section 110(i) of the Act, 30 U.S.C. � 820(i). Sellersburg Stone
Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace
Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).
With respect to the penalty criteria, the parties have
stipulated that Yard 46 worked 50,906 man hours during 1996 and
that all Material Service operations worked 798,297 man hours
during 1996; that for the two years prior to the violations in
this case Material Service had 169 violations for 13 mine
facilities, of which 10 were issued to Yard 46; and that the
company's ability to remain in business will not be affected by
payment of the proposed penalty for all three citations of
$60,050.00. (Jt. Ex. 1.) From this, I find that Yard 46 is a
medium size mine and Material Service is a medium size company;
that the mine's history of previous violations is average and
that the operator's ability to remain in business will not be
adversely affected by a penalty in this case.
I have already found that Material Service's negligence in
this case was moderate. I further find that the gravity of the
violation was extremely serious since a fatality occurred, as
well as serious injuries to McPheron. The Secretary has not
presented any evidence that the company did not demonstrate good
faith in attempting to achieve rapid compliance after
notification of the violation. In fact, based on the available
evidence, it appears that Material Service did act in good faith
in trying to rapidly abate the violation and I so find.
Taking all of the criteria into consideration, I conclude
that a penalty of $30,000.00 is appropriate in this case.
ORDER
Accordingly, Citation Nos. 4416239 and 4416777 are VACATED;
Docket No. LAKE 97-22-RM is DISMISSED; and Citation No. 4416240
is AFFIRMED. Material Service Corporation is ORDERED TO PAY to
pay a civil penalty of $30,000.00 within 30 days of the date of
this decision.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Richard R. Elledge, Esq., Gould & Ratner, 222 North LaSalle
Street, Suite 800, Chicago, IL 60601 (Certified Mail)
Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
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**FOOTNOTES**
[1]: "Binder" is a "substance used to produce cohesion in
loose aggregate, as the crushed stones in a macadam road."
American Geological Institute, Dictionary of Mining, Mineral, and
Related Terms 50 (2d ed. 1997).
[2]: There is no evidence that the operator attempted to
hide the fact that the truck was moved from the inspector.
Further, the operator's employees showed the inspector where the
truck stopped.
[3]: The only evidence on this citation presented by the
inspector was that he had talked to people during his
investigation about road rules. He did not state to whom he had
talked, nor did he relate what they said. Since this citation
was issued some five months after the accident, at the direction
of the inspector's superiors, and over his reservations, which
appear to have been well-founded, it is questionable whether the
investigation turned up any evidence to support this citation.
It it did, the Secretary did not present it.