<DOC>
[DOCID: f:pn200043.wais]
July 19, 2000
ROBERT FIELDS
PENN 2000-43-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 19, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 2000-43-M
Petitioner : A.C. No. 36-07953-05503
v. :
: Docket No. PENN 2000-94-M
ROBERT FIELDS, : A.C. No. 36-07953-05504
:
Respondent : Robert Fields Quarry
DECISION
Appearances: John Strawn, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania,
for the Petitioner;
Arthur D. Agnellino, Esq., Abrams & Agnellino,
Athens, Philadelphia, for the Respondent.
Before: Judge Weisberger
Statement of the Case
These cases are before me based upon Petitions for
Assessment of Civil Penalty filed by the Secretary of
Labor (Secretary) alleging violations by Robert Fields
(Fields) of 30 C.F.R. ��56.15001, 56.18010.
On April 14, 1999 Richard J. Schilling, an MSHA surface
specialist inspected the Robert Fields Quarry, a
flagstone operation. William Kithcart, who was on the
site, identified himself as the foreman. Schilling asked
Kithcart "... about the first aid materials ... ." (Tr.
21.), and the latter told him that they recently opened
up and that the kit that they had was stolen sometime
during the time that they were not in operation. A
stretcher was available and convenient to the working
areas.
Schilling issued a Citation alleging a violation of 30
C.F.R. �56.15001 which provides, as pertinent, as follows:
"[a]dequate first-aid materials, including stretchers and
blankets, shall be provided at places convenient to all
working areas." Alfred Kithcart, the father of William
Kithcart, indicated that he took over the quarry in 1999, and
that prior to that time he and his son worked the quarry with
his uncle. He said that he obtained full control of the
operation in the Spring of 1999. According to Kithcart,
on April 14, when Schilling inquired of him regarding
blankets, he told Schilling that there were blankets on
the site, but they were not in plastic bags. Further,
according to Alfred Kithcart, the blankets were located
in a sleeper attached to a tractor, and in automobiles on
the site. Also, according to Alfred Kithcart, an
unlocked camper owned by his uncle and located on a hill
on the site, contained his uncle's blanket, stretcher,
and kit.
Schilling was not shown any first-aid materials when
he made an inquiry of William Kithcart who identified
himself as the foreman. Nor was William Kithcart aware,
at the time cited, that there were any first-aid
materials on the site. Also, although Alfred Kithcart
testified, in essence, that there were first-aid
materials in an unlocked camper on the site, it appears
that these materials did not belong to the operator.
Moreover, Alfred Kithcart, aside from merely asserting
that first-aid materials were in a camper, did not
indicate the last time, prior to April 14, that he had
actually observed the first-aid kit. Nor did he testify
regarding the specific contents of the kit, or the
condition and quantity of the items therein.
Within this context, I find that although there were
blankets and a stretcher convenient to working areas,
there were no "adequate first-aid materials". I thus
find that Fields violated section 56.15001 supra.
According to Schilling, the violation was significant
and substantial. He indicated that without a first-aid kit,
should a miner suffer a broken bone on the site, the
failure to immediately immobilize the broken bone with a
splint and bandages could lead to a compound fracture.
Also, the lack of a first-aid kit containing compresses
and bandages could result in significant loss of blood
should a miner get seriously cut. In this connection, he
noted the presence of injury-causing hazards such as the
moving parts of mobile equipment, and the possibility of
a miner being caught between items of mobile equipment.
He also noted that particles that fly off stone when cut
as part of the normal operation, could cause injuries.
According to Schilling, an amputation of a limb could
result due to exposure to the blade of the saw used in
normal operations. In addition, when stone is split by
hand as part of the normal operations, small particles
fly off which could hit a person. Schilling indicated
that the area was wet creating a hazard of a person
falling. Additionally, Schilling opined that the heavy
material being mined could fall when a person is moving
it, or "[W]ith the skid - steer - loaders, you could get
caught between, or back into, or even the materials being
shift off the forks" (sic) (Tr. 29).
A "significant and substantial" violation is described
in section 104(d)(1) of the Mine 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." 30 U.S.C. � 814(d)(l). A
violation is properly designated significant and
substantial "if based upon the particular facts
surrounding the 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 825 (April
1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984),
the Commission explained its interpretation of the term
"significant and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor 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.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129 (August 1985), the Commission stated further
as follows:
We have explained further that 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). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U. S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U. S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
Based on the testimony of Schilling, I find that it has
been established that there was a violation of a
mandatory standard, and that the lack of a first-aid kit
contributed to the hazard of worsening the effect of an
injury by not being able to provide some type of first-
aid as quickly as possible. Regarding the third and
fourth elements set forth in Mathies supra, I note
Schilling's testimony as set forth above, and his further
testimony that no one currently trained in first-aid was
available at the site. However, he not describe in
detail the specific nature of all steps of Fields'
operation. Nor did he describe with any specificity the
teeth of the saws used in this operation.
On the other hand, a telephone was located 150 yards from
the pit working area, and 400 yards from the re-cut
building where some stone is cut. An ambulance service
was located only a few minutes drive from the site.
William Kithcart had received first-aid training when he
served in the military in 1993, and Alfred Kithcart, had
also received first-aid training while in the military,
and received weekly first-aid training while working as a
mechanic.
I give more weight to the testimony of Alfred Kithcart
regarding the condition of the equipment at the site due
to the specifics in his testimony. I also note that this
testimony was not contradicted or impeached.
Further, the "highwall" at the site was only 5 feet high
and, according to Alfred Kithcart's testimony, that was
not contradicted or impeached, all work on the flagstone
was performed on a flat surface. Also, according to his
uncontradicted and unimpeached testimony, the saws used
at the site to cut the flagstone did not have any teeth
but contained diamond chips which cut the flagstone
material by means of abrasion and water, rather that than
by cutting. There is no evidence of any injuries at the
site that required treatment by a physician.
Within the above context, I find that the third and
fourth elements set forth in Mathies, supra, have not
been established. Thus I conclude that it has not been
established the violation was significant and
substantial.
Considering the testimony of Alfred Kithcart, that he and
his son were the only permanent workers at the site, that
the mine was a seasonal operation, that the three other
persons who worked at the site on occasion were his
children, I find that the size of the operation was
small. Also, I note that only three citations had been
previously issued regarding the operation of the site,
and none were issued subsequent to the time that William
and Alfred Kithcart took over the operation in 1999.
Also, considering the factors that an ambulance service
was nearby, that there is no history of serious injuries
at the site, that the likelihood of a serious injury was
not too great considering the fact that the highwall at
the site was only 5 feet high, that the saws used at the
site did not have any teeth, and that the material worked
on was on a flat surface, I find that the level of
gravity of the violation was relatively low. Further,
inasmuch as the mine was not in operation, that its
first-aid materials had been stolen over the previous
winter when the mine was not in operation, that one of
the two permanent workers at the site, Alfred Kithcart,
believed that first-aid materials owned by his uncle
were located on the site, that both the permanent workers
on the site had some degree of first-aid training, I find
that the level of Fields' negligence was relatively low.
Further, considering Alfred Kithcart's testimony, that
was not contradicted or impeached, that after the
Citation had been issued, blankets on the site were put
in plastic bags, and that upon receipt of the Citation at
issue, a first-aid kit was purchased containing ace
bandages, gauze, band-aids, sterile packs, and tape, I
find that Fields acted in good faith in abating the
Citation at issue. Taking into account all the above
factors, I conclude that a penalty of twenty-five dollars
($25.00) is appropriate for this violation.
Schilling also cited Fields for violating 30
C.F.R.�56.18010, which requires that an individual
capable of providing first-aid shall be available on all
shifts, and shall be currently trained. Fields conceded
that when cited, there was no one available on the site
who was currently trained in first-aid. I thus find that
Fields did violate Section 56.18010 supra.
According to Schilling, the factors that he set forth
in his testimony regarding the first Citation that he
issued, relating to his conclusion that it was
significant and substantial, apply equally to the
instant Citation. Thus, essentially for the reasons set
forth above, I find that, within the context of that
evidence, the violation was not significant and substantial.
Essentially for the reasons set forth above, I find that
the level of gravity of the violation as well as the
negligence of Fields to have been low. Taking this into
account, as well as considering the remaining factors set
forth in Section 110i of the Federal Mine Safety and
Health Act of 1977, I find that a penalty of twenty-five
dollars ($25.00) is appropriate for this violation.
ORDER
It is ordered that, within 30 days of this Decision,
Fields shall pay a total civil penalty of fifty dollars
($50.00).
Avram Weisberger
Administrative Law Judge
(703) 756-6215
Distribution: (Certified Mail)
John Strawn, Esq., Office of the Solicitor, U.S. Department of
Labor, Suite 630 East, Curtis Center, 170 S. Independence Mall
West, Philadelphia, PA 19106-3306
Arthur D. Agnellino, Esq., Abrams & Agnellino, 515 South Main
Street, Athens, PA 18810
/sct