.
CAPITOL CEMENT CORP.
March 7, 1997
WEVA 95-194-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 7, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 95-194-M
Petitioner : A.C. No. 46-00007-05550
v. :
: Docket No. WEVA 95-221-M
CAPITOL CEMENT CORP., : A.C. No. 46-00007-05551
Respondent :
: Docket No. WEVA 95-321-M
: A.C. No. 46-00007-05554
:
: Martinsburg Plant
DECISION
Appearances: Pamela S. Silverman, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Dana L. Rust, Esq., and E. E. Matthews, III, Esq.,
McGuire, Woods, Battle and Boothe, LLP, Richmond,
Virginia, for the Respondent.
Before: Judge Melick
These consolidated cases are 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 and a withdrawal order issued by the Secretary of
Labor to the Respondent, Capitol Cement Corporation
(Capitol), under Section 104(d)(1) of the Act and to
challenge the civil penalties proposed for the violations
charged therein.[1] The general issue before me is whether
the violations and the charging documents at bar should be
affirmed and, if so, what is the appropriate civil penalty
to be assessed considering the criteria under Section 110(i)
of the Act.
"Section 104(d)(1)" Citation No. 4294023 alleges a
"significant and substantial" violation of the standard at
30 C.F.R. � 56.12016 and charges as follows:
On 10/21/94 an employee suffered a disabling injury
(electrical burns) when he inadvertently contacted a 480 VAC
energized circuit (overhead crane hot rail) while checking
the rail mounting bolts in the clinker shed. Electrically
powered equipment shall be de-energized and locked out
before work is done on such equipment.
The cited standard provides as follows:
Electrically powered equipment shall be de-energized
before mechanical work is done on such equipment. Power
switches shall be locked out or other measures taken which
shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable
warning notices shall be posted at the power switch and
signed by the individuals who are to do the work. Such
locks or preventive devices shall be removed only by the
persons who installed them or by authorized personnel.
"Section 104(d)(1)" Order No. 4294024 alleges a "significant
and substantial" violation of the standard at 30 C.F.R.
� 56.15005 and charges as follows:
It was learned during the investigation of a disabling
injury (electrical burns) which occurred on 10/21/94 that
the injured employee was not wearing a safety belt and line
where there was a danger of falling. This violation was not
a contributing factor to the injury.
The cited standard provides in relevant part that "safety
belts and lines shall be worn when persons work where there is
danger of falling."
It is undisputed that on October 21, 1994, an accident
occurred at the clinker shed in Capitol's Martinsburg plant
in which shift supervisor Gregory Bonfili suffered disabling
electrical burns. He inadvertently contacted a 480 volt
alternating current energized circuit on the overhead crane
"hot rail" while checking the rail mounting bolts. The
clinker shed within which the crane operates is 600 feet
long, 80 feet wide and 75 feet high. It is used to store
material and two cranes with clamshell buckets run on rails
across the building powered by "hot rails". It is
approximately 60 feet from the crane runway to the ground
but the height varies depending on the amount of stored
material.
At the beginning of the shift, crane operator Charles Cook
found that his crane was shaking and therefore called the
maintenance department. When no one appeared to correct the
problem Cook called his foreman, Bonfili, who climbed onto
the craneway to investigate. Bonfili told Cook to cut the
power to the crane. However, as noted by the issuing
Inspector, Edward Skvarch of the Mine Safety and Health
Administration (MSHA), de-energizing the crane alone does
not in fact de-engergize the "hot rail" since they are on
separate power feeds. The disconnect switch for the "hot
rail" is located in the same building but one level below
the crane. While investigating the problem Bonfili reached
over the side and contacted the 480 volt energized "hot
rail" suffering significant burns. There is no dispute that
the "hot rail" was not de-energized or locked out and that
Bonfili, while on the 3 foot craneway some 50 feet above
ground, was not wearing a safety belt. (Respondent's Brief
p. 11).
Skvarch opined that the violations were "significant and
substantial". In the former case he opined that it could
reasonably be expected that a person working in close
proximity to the "hot rail" could suffer fatal
electrocution. In the latter case he opined that working on
a three-foot cat walk 50 feet above ground without a safety
belt could also reasonably be expected to result in fatal
injuries. The inspector concluded that in both cases the
violations were also the result of high negligence and
"unwarrantable failure" because the injured party himself
was a supervisory agent of the operator committing an
"obvious serious violation in the presence of a
subordinate."
Respondent does not dispute the violations nor that they
were "significant and substantial" and serious but contests
only that the violations were the result of its
"unwarrantable failure" or negligence and disputes the
amount of proposed penalties. (Respondent's Brief p. 11).
"Unwarrantable failure" is defined as aggravated conduct
constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997 (December 1987). Unwarrantable failure
is "intentional misconduct," "indifference" or a "lack of
reasonable care." Id. At 2003-04; Rochester and Pittsburgh
Coal Company, 13 FMSHRC 189, 194-194 (February 1991).
The Secretary maintains in her brief, as to the violation
charged in Citation No. 4284023, that it was the result of
"unwarrantable failure" because "[i]t is undisputed that
Mr. Bonfili failed to de-energize and lock-out the power to
the craneway prior to performing work thereon in direct
violation of 30 C.F.R. � 56.12016." At oral argument the
Secretary further maintained that all three violations were
the result of "unwarrantable failure" because they were
obvious and dangerous and because they were committed by
foremen who are held to a high standard of care in safety
matters. See Midwest Material Company, 19 FMSHRC 30, 35
(January 1996).
In this regard it is undisputed that after Bonfili rode
back-and-forth on the crane in an effort to identify the
source of the problem but before working in the vicinity of
the "hot rail" Bonfili directed the crane operator only to
de-energize the crane. It may reasonably be inferred from
Respondent's training records that Bonfili knew that de-
energizing the crane alone would not also de-energize the
"hot rail". Moreover he failed to lock out any of the power
sources.
The violation was also obvious, extremely dangerous and
committed by a foreman held to a high standard of care. The
violation was therefore the result of "unwarrantable
failure" and high negligence. Midwest Material at p. 35.
Under the circumstances, the Secretary has clearly sustained
her burden of proving the necessary aggravating
circumstances to justify "unwarrantable failure" and high
negligence.
The Secretary similarly alleges that the violation charged
in Order No. 4294024 was the result of "unwarrantable
failure" because "[i]t is undisputed that Mr. Bonfili failed
to wear a safety belt and line while working where there was
a danger of falling, in direct violation of 30 C.F.R. �
56.15005." Clearly it again may reasonably be inferred from
Respondent's training records that Bonfili knew that the
failure to use a safety belt under the circumstances of this
case was a violation.
Respondent next argues, citing the so-called Nacco defense,
that, in any event, the negligence of shift supervisor
Bonfili is not imputable. See Nacco Mining Company 3 FMSHRC 848,
849-850 (April 1981). Under the Nacco defense the negligence of
a supervisor is not imputable to the operator if the
operator can demonstrate that no other miners were put at
risk by the supervisor's conduct and that the operator took
reasonable steps to avoid the particular class of accident.
The Commission has emphasized however that even an agent's
unexpected or willful and intentional misconduct may result
in a negligence finding where his lack of care exposed
others to risk or harm. Id at 851; Rochester and Pittsburgh
Coal Co. 13 FMSHRC 189, 197
(February 1991).
In this case it is clear that, by his negligent misconduct,
Bonfili not only put himself at risk but also placed crane
operator Charles Cook at risk. According to MSHA Special
Investigator Charles Weber, when Cook saw what happened when
Bonfili contacted the 480 volt "hot rail", he exited the
crane, ran along the exposed craneway some 50 feet above
ground and down to the next level to cut power to the "hot
rail". In running along the exposed craneway, Cook was
thereby exposed to the hazard of falling from the 50 foot
craneway and suffering potentially fatal injuries. It may
also reasonably be inferred from the record evidence that if
Bonfili had slipped or otherwise lost control on the exposed
craneway without a safety belt and was thereby placed in a
precarious position and Cook had therefore come to his
rescue he too would have been exposed to a falling hazard
with its potentially fatal consequences. It may reasonably
be inferred therefore that the negligence of Bonfili in
failing to de-energize the "hot rail" and in failing to wear
a safety belt, indeed exposed crane operator Charles Cook to
the significant risk of fatal injuries. Accordingly the
Nacco defense is inapplicable on these facts and Bonfili's
negligence may be imputed to the Respondent.
In assessing a civil penalty herein I do consider, however,
what appears to have been a responsible training program in
effect before the incident herein and that Bonfili's actions
were contrary to Respondent's own work rules. I also note
that, consistent with Respondent's written disciplinary
rules, Bonfili was subjected to a five day suspension and
written warning for his violations of the company safety
rules. Bonfili was further advised that further disregard
for these rules would lead to more progressive discipline up
to and including discharge (Respondent's Exhibit No. 11).
Finally, there is no evidence to suggest any negligence in
the hiring of Bonfili. Thus, while the violations were of a
serious nature and the negligence of Bonfili is imputable to
Respondent, these factors warrant some mitigation of the
penalty amount. Considering all the criteria under Section
110(i) of the Act I find that civil penalties of $2,500 for
the violation charged in Citation No. 4294023 and $1,250 for
the violation charged in Order No. 4294024 are appropriate.
"Section 104(d)(1)" Citation No. 4294714 alleges a
"significant and substantial" violation of the standard at
30 C.F.R. � 12016 and charges as follows:
On March 15, 1995, a shift supervisor was injured when
his right hand and arm became caught between the No. 2
collecting belt and head drum. The supervisor was
attempting to "train" the belt by installing duct tape to
lag the east side of the head drum while the belt was
running. The pulley guard had been moved out of position,
and the conveyer had not been de-energized and locked out as
is required when doing such work. There is an unwarrantable
failure violation.
As previously noted, that standard provides as follows:
Electrically powered equipment shall be de-energized
before mechanical work is done on such equipment. Power
switches shall be locked our or other measures taken which
shall prevent the equipment from being energized without the
knowledge of the individuals working on it. Suitable
warning notices shall be posed at the lower switch and
signed by the individuals who are to do the work. Such
locks or preventive devices shall be removed only the
persons who installed them or by authorized personnel.
Inspector Skvarch discovered the instant violation while
reviewing injury reports at the mine on April 18, 1995. The
record shows that shift supervisor Arthur Lozano injured his hand
while using duct tape to "train" a conveyer belt. The injury
resulted in four days of restricted duty for Lozano but Skvarch
opined that, by placing his hand in close proximity to the moving
belt, Lozano subjected himself to permanently disabling injury.
Skvarch also opined that it was reasonably likely that Lozano
could have suffered the loss of a finger or hand. This evidence
is undisputed and I therefore find this violation also to be
"significant and substantial" and serious. Skvarch also found
the violation to have been the result of high operator negligence
and "unwarrantable failure" on the grounds that Lozano, as shift
supervisor, was the operator's agent and intentionally committed
a serious and obvious violation. Respondent again claims the
Nacco defense. Nacco Id. pps. 849-850.
Jeffrey Miller was working as a general laborer on March 15.
He had been directed to assist Lozano. He was shoveling beneath
the belt when Lozano told him "come here, I want to show you a
trick". Miller testified that he did not know what Lozano
planned to do but observed that Lozano placed his hand between
the head pulley and the moving belt. Lozano's left arm was then
caught and pulled into the head pulley. The belt was then shut
down.
This violation was of an obvious and dangerous nature and
was committed by a shift supervisor, a person held to a high
degree of care. Even without the cited regulatory standard it
shows reckless disregard to do what the shift supervisor did
here. The violation was clearly the result of aggravated
circumstances constituting "unwarrantable failure" and high
negligence. Midwest Material p. 35.
Miller testified, however, that he was not placed in any
danger by Lozano's action. MSHA Special Investigator Charles
Weber disagreed, observing that Miller was only 3 or 4 feet from
Lozano when Lozano was pulled into the moving belt. Weber
observed that if Lozano had been further engaged by the belt
Miller may then have attempted to extract Lozano from the belt
thereby also exposing himself in the same way thereby also
suffering potentially serious injuries. I agree that Weber's
analysis may reasonably be inferred from the evidence and, under
the circumstances, I must again conclude that the Nacco defense
is inapplicable. In assessing a civil penalty however I also
consider in mitigation the absence of negligence in Lozano's
hiring, the operator's training program, and the fact that Lozano
was disciplined with a 3-day suspension for violating its safety
rules. I also note that Lozano was warned that further disregard
of company safety rules would lead to more serious discipline, up
to and including discharge.
Considering the criteria under Section 110(i) of the Act I
find that a civil penalty of $1,600 is appropriate for this
violation.
ORDER
Citation
No. 4294023, Citation No. 4294714 and Order
No. 4294024 are hereby affirmed. Capitol Cement Corporation is
directed to pay civil penalties of $5,350 within 30 days of the
date of this decision.
Gary Melick
Administrative Law Judge
Distribution:
Pamela S. Silverman, Esq., Office of the
Solicitor, U.S. Dept. of Labor, 4015
Wilson Blvd., Suite 516, Arlington, VA
22203 (Certified Mail)
Dana L. Rust, Esq., McGuire, Woods,
Battle and Boothe, LLP, One James
Center, 901 East Cary Street, Richmond,
VA 23219-4030 (Certified Mail)
/jf
**FOOTNOTES**
[1]: Section 104(d)(1) of the Act provides as follows:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
Footnote 1 Continued
given to the operator under this Act. If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the
area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and to
be prohibited from entering, such area until an authorized
representative of the Secretary determines that such
violation has been abated.