<DOC>
[DOCID: f:s96-352m.wais]
EAST COAST LIMESTONE, INC.
April 11, 1997
SE 96-352-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 11, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. SE 96-352-M
Petitioner : A. C. No. 31-01633-05552
:
v. :
:
EAST COAST LIMESTONE, INC., :
Respondent : Maple Hill Mine
DECISION
Appearances: Frances B. Schleicher, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Atlanta, Georgia, for the Petitioner;
Connie M. Goodson, Vice President, East Coast
Limestone, Inc., for the Respondent.
Before: Judge Feldman
This proceeding concerns a petition for assessment of civil
penalty filed by the Secretary of Labor against the respondent
pursuant to section 110(a) of the Federal Mine Safety and Health
Act of 1977 (the Act), 30 U.S.C. � 820(a). The petition seeks to
impose a total civil penalty of $1,386.00 for nine alleged
violations of the mandatory safety standards in 30 C.F.R. Part 56
of the regulations. This matter was heard on March 11, 1997, in
Wilmington, North Carolina. Connie M. Goodson, Vice President of
East Coast Limestone, Inc. (ECL), appeared on behalf of the
respondent Corporation. Bobby Goodson, Mrs. Goodson's husband,
is the corporate President. The parties stipulated the respondent
is a mine operator subject to the jurisdiction of the Act.
At the hearing, the respondent withdrew its contest of the
$50.00 proposed civil penalty for Citation No. 4550963. At the
conclusion of the hearing, the parties were advised that I would
defer my ruling in this case pending post-hearing briefs, or,
issue a bench decision if the parties waived their rights to
file post-hearing briefs. The parties declined to file briefs.
(Tr. 171-72). Accordingly, this decision formalizes the bench
decision issued at the end of trial. (Tr. 175-97). The bench
decision affirmed five citations, modified two citations by
deleting the significant and substantial (S&S) designations, and
vacated one citation. The total civil penalty assessed in
these matters for the eight citations, including the citation for
which the contest was withdrawn, is $785.00.
I. Pertinent Case Law and Penalty Criteria
The bench decision applied the Commission's standards with
respect to what constitutes an S&S violation. A violation
is properly designated as S&S in nature if, based on the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to by the
violation will result in an injury or an illness of a
reasonably serious nature. Cement Division, National
Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal
Co., 6 FMSHRC 1 (January 1984), the Commission explained:
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 [by the violation] will result in an
injury; and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious nature. 6
FMSHRC at 3-4.
See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th
Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria).
The bench decision also applied the statutory civil penalty
criteria in section 110(i) of the Act, 30 U.S.C. � 820(i), to
determine the appropriate civil penalty to be assessed. Section
110(i) provides, in pertinent part, in assesing civil penalties:
the Commission shall consider the operator's history of
previous violations, the appropriateness of such
penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect
on the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
For penalty assessment purposes, the evidence reflects
mitigating factors in that the respondent is a small to
moderately sized operator that does not have a significant
history of violations. (Gov. Exh. 11). The proposed civil
penalties will not effect the respondent's ability to remain in
business, and the respondent rapidly abated the cited violations.
II. Findings and Conclusions
ECL operates a limestone quarry in Maple Hill, North
Carolina. At this facility ECL extracts limestone through a
drilling and blasting process. The limestone is hauled from
the pit by truck where it is dumped at conveyors. The
limestone is placed on conveyors by front-end loaders for
transport to the crushing plant where it is crushed,
cleaned, sized and stockpiled for distribution. Kelly
Fultz, A Mine Safety and Health (MSHA) Inspector assigned to
the Columbia, South Carolina Field Office, conducted a
routine safety inspection of the Maple Hill plant on June 18
and June 19, 1996. During the course of his inspection,
Fultz was accompanied by Craig Dixon or Buck Pierce. Dixon
and Pierce are ECL foremen.
A. Citation No. 4550657
Fultz, accompanied by Dixon, entered the respondent's shop
and observed oil located on the floor around barrels and a
large tank that had a capacity of approximately 500 to 1,000
gallons. The tank and barrels were connected to electric
pumps that were used to fill smaller, hand-held cans with
hydraulic fluids and oil to service and maintain equipment.
Consequently, Fultz issued Citation No. 4550657 citing a
non-S&S violation of the mandatory safety standard in
section 56.20003, 30 C.F.R. � 56.20003, that requires that
"the floor of every workplace shall be maintained in a clean
and, as far as possible, dry condition (emphasis added)."
Goodson stated the floor around the drums and tank was
constantly being cleaned because of spills that invariably
occurred from drips or overflows during the can filling
process. Consistent with Goodson's testimony, Fultz
explained that he designated the violation as
non-S&S because the spills were confined to an area that was
"not in a regular traveled workway" in that the cited area
was not "where you do your normal walking through the shop."
(Tr. 26-27). The Secretary proposed a civil penalty of
$50.00.
The undisputed condition cited by Fultz constitutes a
violation of section 56.20003. Although men may have been
cleaning up the oil at the time of Fultz's inspection as
asserted by Goodson, there is a reasonable inference to be
drawn that the cleanup was motivated by Fultz's presence in
the shop. Significantly, Dixon did not inform Fultz that
the spills in question were very recent, or, that they were
in the process of being cleaned. Therefore, Citation No.
4550657 is affirmed. Although I recognize the slip and fall
hazard associated with stepping in oil, given the viscosity
of oil, the inherent drips and spills that will occur during
the can filling process, and the confined affected area, the
negligence attributable to the respondent is reduced from
moderate to low. Accordingly, a slightly reduced civil
penalty of $35.00 shall be assessed for Citation
No. 4550657.
B. Citation No. 4550658
As Fultz was leaving the shop area, he observed a haulage
truck being driven from the direction of the plant to the
pit with the driver's door open. Fultz looked up through
the open door and observed the seatbelt hanging from the
seat. Fultz stopped the truck and talked to the driver.
The driver, Rodney James, informed Fultz that he had just
gotten back in the truck after checking something outside,
and that he had forgotten, or not had a chance, to buckle
his seatbelt. Consequently, Fultz issued Citation No.
4550658 for an alleged S&S violation of the mandatory safety
standard in section 56.14131(a), 30 C.F.R. � 56.14131(a),
that requires that "seatbelts shall be provided and worn in
haulage trucks." The Secretary seeks to impose a civil
penalty of $362.00 for this violation.
The evidence clearly establishes a violation of the cited
mandatory standard. However, the issue of whether the
violation was properly designated as S&S is not so clear.
With the exception of respirable dust violations, that are
presumed to be S&S because of the cumulative effects of
respirable dust inhalation, issues concerning S&S must be
decided based "on the particular facts surrounding the
violation...."[1] Texasgulf, Inc., 10 FMSHRC 498, 501
(April 1988); See Consolidation Coal Co., 8 FMSHRC 890, 898
(June 1986), aff'd 824 F.2d 1071 (D.C. Cir. 1987). Thus,
there is no legal authority for the MSHA policy, as
enunciated by Fultz, that all seatbelt violations must be
presumed to be S&S in nature.
In this case, Fultz testified that the respondent has a very
strict policy that requires all drivers to wear seatbelts.
The spontaneous exculpatory statement by James, that he had
just gotten back in his truck moments before, supported by
his open driver door, is credible and of significant
evidentiary value. Whether a violation is properly
characterized as S&S must be viewed in the context of
continued mining operations. Halfway Incorporated, 4 FMSHRC
8, 12-13 (January 1986). Here the testimony supports the
respondent's contention that James's failure to buckle up
was a momentary lapse of memory that was contrary to company
policy. The Commission has stated that an S&S designation
"requires that the Secretary establish a reasonable
likelihood that the hazard contributed to will result in an
event in which there is
[a serious] injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). The Secretary has not demonstrated, or
even asserted, that James's failure to secure his seatbelt
was more than an isolated event. Thus, there is an
inadequate basis for concluding that there was a reasonable
likelihood of an injury causing event. Accordingly, the S&S
designation for Citation No. 4550658 shall be deleted.
Balancing the reduction in gravity in view of the S&S
deletion, with the importance of wearing seatbelts at all
times, a civil penalty of $125.00 is assessed for this
citation.
C. Citation No. 4550659
During his inspection, Fultz, in the presence of Dixon,
examined John Deere haulage truck No. 578. Fultz determined
the service brakes, park brakes, service horn and windshield
wipers were in proper working order. Fultz requested Dixon
to put the truck in reverse. Fultz stood by the side, rear
of the truck and noted that although he could hear the
backup alarm with the truck idling, he could not hear the
backup alarm when Dixon revved the engine up. (Tr. 61).
Consequently, Fultz issued Citation No. 4550659 for an
alleged violation of section 56.14132(b)(2), 30 C.F.R. �
56.14132(b)(2), that requires alarms to be audible above
surrounding noise levels. Fultz concluded the violation was
non-S&S because he did not
observe any foot traffic in the loading or unloading areas.
The evidence reflects the backup alarm was operational.
However, depending upon how forcefully the engine was
revved, there became a point when the alarm could not be
heard. Fultz conceded that it is difficult to keep a
haulage truck backup alarm in optimum operating condition
because it frequently gets clogged with mud. (Tr. 63-64).
Given the operational condition of the alarm, and the
mitigating testimony by Fultz concerning the difficulty of
maintaining the cited alarm, the degree of the respondent's
negligence is reduced from moderate to low. Therefore, a
corresponding reduction in the proposed penalty from $50.00
to $25.00 shall be assessed.
D. Citation No. 4550660
Fultz issued Citation No. 4550660 for a violation of the
mandatory standard in section 56.14132(a), 30 C.F.R. �
56.14132(a), because he determined the respondent's Kobelko
LK 300A front-end loader's service horn was not operational.
The respondent has stipulated that the horn was not working.
Although the service horn malfunction had been noted in the
preshift examination book, there was no explanation noted
for why it had not been repaired. Fultz designated the
violation as non-S&S because he did not observe any foot
traffic in the area.
He also determined the cited loader's service brakes were in
good operating condition, and he concluded the brakes could
be relied upon to stop the loader thus minimizing the need
for using the horn. (Tr. 73). The Secretary proposes a
civil penalty of $50.00 for this violation.
As noted, the respondent admits the fact of the violation.
With respect to the appropriate penalty to be assessed, the
administrative law judge is not bound by the civil penalty
proposed by the Secretary. Rather, as the trier of fact, I
must consider the statutory penalty criteria and the
deterrent purposes underlying the Act's penalty assessment
provisions. See Sunny Ridge Mining Company, Inc., et al, 19
FMSHRC 254, 263 (February 1997) citing Sellersburg Stone
Co.,
5 FMSHRC 287, 294 (March 1983), aff'd 736 F.2d 1147 (7th
Cir. 1984). Here, the respondent failed to take any action
to repair a malfunctioning horn noted in the preshift
examination book. Ignoring a condition noted during a
preshift examination negates the purpose of the
examination. Such conduct must not be condoned and warrants
a finding of an increase in the degree of the respondent's
negligence. Consequently, an increased civil penalty of
$100.00 shall be assessed.
E. Citation No. 4550961
Fultz inspected the respondent's Terex 90B front-end loader.
Fultz observed a cut in the operator's seatbelt, which he
estimated was "more than half way through" the width of the
belt,
in the area where the seatbelt extends up from the vehicle
floor. As a result, Fultz issued Citation No. 4550961
citing an alleged S&S violation of section 56.14130(i), 30
C.F.R. � 56.14130(i). This mandatory safety standard
requires seatbelts to be "maintained in functional
condition, and replaced when necessary to assure proper
performance." The Secretary proposes a civil penalty of
$362.00 for this citation.
With respect to the fact of occurrence of the cited
violation, the respondent does not deny that there was a cut
in the subject seatbelt. In fact, the respondent has
provided a photograph
of the cut in question. (See Resp. Exh. 6). Based upon the
condition of the seatbelt depicted in Resp. Exh. 6, there
was a reasonable basis for Fultz's conclusion that this
seatbelt should be replaced "to assure proper performance."
Accordingly, the evidence establishes the fact of the
violation.
Turning to the issue of S&S, once again we are confronted
with the propriety of MSHA's policy that all seatbelt
violations are deemed to be significant and substantial in
nature. However, as discussed above, S&S questions must be
resolved on a case-by-case basis based on the totality of
circumstances surrounding the violation. It is well settled
that the Secretary has the burden of proving a violation is
S&S. See Peabody Coal Co., 17 FMSHRC 26, 28 (January 1995)
citing Union Oil of Cal., 11 FMSHRC 289, 298-99 (March
1989). Thus, it is incumbent on the Secretary to
demonstrate that there is a reasonable likelihood, based on
the facts in this case, that the condition of the seatbelt
(the hazard) will result in a serious injury causing event
(the failure of the seatbelt).
At the outset, while Fultz characterized the cut in the belt
as "more than half way through," there is no evidence of
actual measurements of the cut and belt width. Examination
of the photograph on Resp. Exh. 6 reveals the cut to have
been approximately one-third through the belt. (Tr. 93).
In any event, I credit Fultz's testimony that the seatbelt
was "probably compromised 40 to 50 percent." (Tr. 87).
While such a cut on a seatbelt in a haulage truck may be
properly designated as S&S, this citation concerns a front-
end loader. Fultz testified operation of this loader was
confined to the crusher area where it was maneuvered to pick
up dumped material and load it into the crusher hopper.
(Tr. 101). Although this area was on an incline, Fultz
conceded the maximum speed attained by this front-end loader
was between 5 and 10 miles per hour. (Tr. 102). While I
recognize Fultz's concern about the potential for the loader
to turn over, such an event still requires a reasonable
likelihood of seatbelt failure in order for the Secretary to
prevail on the S&S issue.
In the final analysis, if a seatbelt is intended to hold
drivers securely in place at highway speeds, is the same
seatbelt, approximately 40 percent compromised, reasonably
likely to fail at speeds of 5 to 10 miles per hour? I don't
think so. Accordingly, Citation No. 4550961 is modified to
delete the significant and substantial designation.
Although the S&S designation has been deleted, thus reducing
the gravity of the violation, I concur with the Secretary
that a defective seatbelt is a serious violation
attributable to a moderate degree of negligence on the part
of the respondent. Consequently, a civil penalty of
$150.00 shall be imposed.
F. Citation No. 4550962
Fultz determined the parking brake on the respondent's John
Deere No. 406 haulage
truck would not hold the loaded truck when tested on a
slight incline. Fultz issued Citation
No. 4550962, citing a violation of section 56.14101(a)(2),
30 C.F.R. � 56.14101(a)(2). This mandatory standard
requires parking brakes to be "capable of holding [mobile]
equipment with its typical load on the maximum grade it
travels." The Secretary seeks to impose a $50.00 civil
penalty for this violation which the Secretary has
designated as non-S&S.
The respondent does not deny the inadequacy of the parking
brake. Rather, the respondent asserts there is no violation
because its haulage trucks are routinely parked on level
ground. The respondent misses the point. Parking brakes
are commonly known as "emergency brakes." When the service
brakes malfunction or become inoperable, such as in
instances where a haulage truck stalls, the emergency brake
may be the last resort for controlling the vehicle. Parking
brake malfunctions can contribute to fatal accidents. See,
e.g., Fluor Daniel Incorporated, 16 FMSHRC 2049 (October
1994), rev'd on other grounds ,18 FMSHRC 1143 (July 1996).
While I disagree with the Secretary's under-zealous
characterization of the cited violation as non-S&S, the sua
sponte authority of an administrative law judge to modify a
citation to add an S&S designation under section 105(d) of
the Act, 30 U.S.C. � 815(d),
is unclear. See Mechanicsville Concrete, Inc., t/a
Materials Delivery, 18 FMSHRC 877, 880 (June 1996). While I
will affirm the citation as issued, the serious gravity and
degree of negligence associated with the continued operation
of a multi-ton haulage truck without adequate parking
brakes, at the very least, warrants a doubling of the
initial penalty proposed by the Secretary. Accordingly, a
civil penalty of $100.00 shall be assessed for Citation No.
4550962.
G. Citation No. 4550963
At the hearing, the respondent withdrew its contest of
Citation No. 4550963. (Tr. 117). This citation concerned
the malfunction of the service horn on the respondent's John
Deere 844 front-end loader in violation of 56.14132(a), 30
C.F.R. � 56.14132(a). The violation was designated as non-
S&S, and the Secretary proposes a civil penalty of $50.00.
Consequently, Citation No. 4550963 is affirmed, and the
respondent shall pay the proposed $50.00 civil penalty.
**FOOTNOTES**
[1]: There is also case law suggesting that violations of
the mandatory safety standard in section 75.360(a), 30 C.F.R. �
75.360(a), concerning preshift examination requirements are
presumptively S&S "because of the inherent potential hazards
existing in underground mining." Manalapan Mining Company,
Incorporated, 18 FMSHRC 1375, 1395 (August 1996) (concurring
opinion).
H. Citation No. 4550964
Fultz issued Citation No. 4550964 for a violation of section
56.9300, 30 C.F.R.
� 56.9300, on the basis of his observation that berms and
guardrails were not provided on the outer bank of the
roadway going to the filler plant hopper feeder. This
roadway is traversed by the John Deere 844 front-end loader.
Fultz designated the violation as S&S because of the
exposure of the loader to unprotected sides of the roadway.
Fultz opined that given the absence of a berm, under
conditions where the loader is frequently unbalanced because
of a full raised bucket, it was reasonably likely that the
loader will fall off the side of the roadway causing serious
injuries to the loader operator. Fultz testified the
roadway was approximately 14 feet wide, and that the height
of the inclined roadway to the ground below, from the
beginning to the end of the roadway's 40 feet length,
increased from zero feet to a maximum of 6 to 10 feet.
(Tr. 136-37). Fultz testified there was evidence that berms
were once there, although they apparently had been washed
away.
At the hearing, the respondent essentially conceded the
absence of the berms. However, the respondent relied on a
building, located approximately 5 feet from the side of the
roadway, to prevent the loader from overturning as an
alternative to berm protection.
I credit Fultz's testimony concerning the respondent's
failure to maintain berms on the cited roadway. A building,
located near the side of a roadway, does not satisfy the
mandatory safety standard section 56.9300 that requires
berms on elevated roadways. Accordingly, the evidence
supports the fact of the cited violation. Fultz's testimony
regarding the likelihood of the loader falling off the side
of this unprotected roadway was credible. Consequently, the
S&S designation in Citation No. 4550964 is also affirmed.
Given the conflicting testimony concerning whether the
maximum height of the roadway was 6 feet as alleged by the
respondent, or 10 feet as asserted by Fultz, which impacts
on the gravity and degree of negligence penalty criteria,
the $362.00 civil penalty proposed by the Secretary shall be
reduced to $200.00.
I. Citation No. 4550965
Based on Fultz's inspection findings of defective mobile
equipment, such as malfunctioning front-end loader service
horns, an inadequate back-up alarm, a defective seatbelt,
and defective parking brakes, Fultz concluded the respondent
was failing to inspect its mobile equipment before each
shift as required by section 56.14100, 30 C.F.R. � 56.14100.
Consequently, Fultz issued Citation No. 4550965 citing a
non-S&S violation of this mandatory standard. The Secretary
proposes a $50.00 civil penalty for this citation.
Fultz admitted that his basis for issuing this citation was
his assumption that no preshift inspections had been
performed. Fultz admitted he did not ask any employees if
they had preshifted the vehicles. He also acknowledged that
he did not ask to examine preshift records or otherwise seek
to determine if preshift inspection reports were kept by the
respondent. At the hearing the respondent presented
preshift inspection reports. (Tr. 158-60).
I am unpersuaded by the Secretary's position that an
operator is presumed to have failed to perform preshift
inspections of mobile equipment simply because defects in
the equipment are revealed during the course of an MSHA
inspection. In the absence of specific evidence
constituting inadequate preshift inspection procedures, mere
speculation that the respondent failed to perform preshift
examinations because of defects detected by an MSHA
inspector does not provide an adequate basis for
establishing that the failure to preshift in fact occurred.
Accordingly, Citation No. 4550965 shall be vacated.
ORDER
In view of the above, IT IS ORDERED that Citation Nos.
4550658 and 4550961 are modified to delete the significant
and substantial designations. IT IS FURTHER ORDERED that
Citation No. 4550965 IS VACATED. The respondent shall pay a
total civil penalty of $785.00 within 30 days of the date of
this decision in satisfaction of the citations in issue in
this matter. Upon timely receipt of payment, this docket
proceeding IS DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
Frances B. Schleicher, Esq., Office
of the Solicitor, U.S. Dept. of
Labor, 61 Forsyth Street, Room
7T10, Atlanta, GA 30303 (Certified
Mail)
Connie M.Goodson, Vice President,
East Coast Limestone, Inc., 14620
N.C. Highway 53 East, Maple Hill,
N.C. 28454 (Certified Mail)
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