.
DARWIN STRATON & SON INC.
October 30, 2000
WEST 2000-371-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
October 30, 2000
DARWIN STRATTON & SON INC., : CONTEST PROCEEDINGS
Contestant :
: Docket No. WEST 2000-371-RM
: Order No. 7966584; 4/24/2000
:
: Docket No. WEST 2000-372-RM
: Citation No. 7966585; 4/22/2000
:
: Docket No. WEST 2000-373-RM
: Order No. 7966587; 4/22/2000
v. :
: Docket No. WEST 2000-374-RM
: Citation No. 7941252; 4/26/2000
:
: Docket No. WEST 2000-375-RM
: Order No. 7941253; 4/26/2000
:
: Docket No. WEST 2000-376-RM
: Order No. 7941254; 4/26/2000
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEST 2000-377-RM
ADMINISTRATION (MSHA), : Order No. 7941255; 4/26/2000
Respondent :
: Docket No. WEST 2000-378-RM
: Order No. 7941256; 4/26/2000
:
: Docket No. WEST 2000-379-RM
: Order No. 7941257; 4/26/2000
:
: Docket No. WEST 2000-380-RM
: Order No. 7941258; 4/26/2000
:
: Docket No. WEST 2000-381-RM
: Citation No. 7941259; 4/26/2000
:
: Docket No. WEST 2000-382-RM
: Order No. 7941260; 4/26/2000
:
: Docket No. WEST 2000-383-RM
: Citation No. 7941261; 4/26/2000
:
: Docket No. WEST 2000-384-RM
: Citation No. 7941262; 4/26/2000
:
: Docket No. WEST 2000-385-RM
: Order No. 7941263; 4/26/2000
:
: Docket No. WEST 2000-386-RM
: Order No. 7941264; 4/26/2000
:
: Docket No. WEST 2000-387-RM
: Order No. 7941265; 4/27/2000
:
: Docket No. WEST 2000-388-RM
: Order No. 7941266; 4/26/2000
:
: Docket No. WEST 2000-389-RM
: Order No. 7941267; 4/26/2000
:
: Docket No. WEST 2000-390-RM
: Order No. 7941268; 4/26/2000
:
: Docket No. WEST 2000-391-RM
: Citation No. 7941269; 4/27/2000
:
: Docket No. WEST 2000-392-RM
: Citation No. 7941270; 4/27/2000
:
: Docket No. WEST 2000-393-RM
: Order No. 7941271; 4/27/2000
:
: Docket No. WEST 2000-394-RM
: Order No. 7941272; 4/27/2000
:
: Docket No. WEST 2000-395-RM
: Citation No. 7941273; 4/27/2000
:
: Docket No. WEST 2000-396-RM
: Citation No. 7941274; 4/27/2000
:
: Docket No. WEST 2000-397-RM
: Order No. 7941275; 4/27/2000
:
: Docket No. WEST 2000-398-RM
: Citation No. 7941276; 4/27/2000
:
: Docket No. WEST 2000-443-RM
: Citation No. 7966588; 4/22/2000
:
: Rattlesnake Pit Mine ID 42-02283
DECISION
Appearances: John Rainwater, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Respondent.
Before: Judge Manning
These cases are before me on notices of contest filed by
Darwin Stratton and Son, Inc., ("Darwin Stratton") against the
Department of Labor's Mine Safety and Health Administration
("MSHA"), pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. �� 815(d)(the "Mine Act"). A
hearing was held in Washington, Utah, on October 3, 2000, but
Darwin Stratton failed to appear at the hearing. The citations
and orders at issue in these proceedings were issued following
MSHA's investigation of a fatal accident that occurred at the
Rattlesnake Pit on April 21, 2000. MSHA was unaware of the
existence of the Rattlesnake Pit until this fatal accident.
I. FINDINGS OF FACT
The Rattlesnake Pit is a small sand and gravel mine owned
and operated by Darwin Stratton near Hurricane, Utah, in
Washington County. Sand and gravel is extracted from a dry
stream bed, transported by truck to an adjacent wash plant, and
stockpiled. The stockpiled material is fed into a hopper and
conveyed to a single-deck screen where oversized material is
separated. The sand is then fed into a screw classifier and
mixed with water to remove unwanted material. The finished sand
is sold for use in making concrete. (Tr. 14; Ex. 3).
This pit has been operating for about five years, but MSHA
was never notified of its existence. As a consequence, the pit
was never inspected by MSHA. Darwin Stratton notified Utah-OSHA
of the fatal accident. MSHA learned of the accident on the
morning of April 22, 2000, when an official from Utah-OSHA called
MSHA's Denver office. MSHA began its investigation of the
accident later that day. (Tr. 11-12).
Candi Reeve, the accident victim, was the only person
working at the pit on April 21. She was fatally injured when she
became entangled in the moving conveyor belt tail pulley. There
was no guard present to protect persons from contacting the tail
pulley. Ms. Reeve arrived at the pit early in the morning on
April 21 accompanied by Todd Stratton, the foreman. (Tr. 46).
Mr. Stratton re-instructed her on the operation of the front-end
loader and the wash plant. He watched her work for a short
period and then he left at about 8:30 a.m., leaving her alone to
operate the facility. (Tr. 46-47). He also warned her to stay
away from the conveyor. (Tr. 64). When Ms. Reeve failed to
return to Darwin Stratton's office in Hurricane, Clayton
Stratton, president of the company, asked an employee to check on
her. At about 4:00 p.m., the employee observed Ms. Reeve caught
in the tail pulley. He found no vital signs. County emergency
personnel transported her to the Utah Medical Examiner's office.
The Medical Examiner determined that her death was caused by
asphyxia due to the compression of her neck by her clothing that
had become entangled in the conveyor belt assembly. (Ex. 2D).
Based on its investigation, MSHA determined that the
accident was caused by "management's failure to install guards on
the conveyor tail pulley." (Ex 3, p.5). MSHA further determined
that "[a]ssigning the inexperienced victim to work alone in an
area where hazardous conditions existed without arranging for
scheduled communication contact contributed to the severity of
the accident." Id.
Darwin Stratton timely contested the citations and orders
that are the subject of these proceedings, but otherwise refused
to cooperate with the undersigned judge or the Department of
Labor's attorney. The Secretary filed a motion to stay these
proceedings until civil penalties were proposed. I also asked
Darwin Stratton's representative whether he would prefer to stay
these cases until MSHA proposed civil penalties for the citations
and orders. (Letter dated June 28, 2000). In response, Darwin
Stratton's representative objected to any stay in these
proceedings and asked that the cases proceed to hearing. (Letters
dated June 26 and July 6, 2000). Consequently, I denied the
Secretary's motion to stay the proceedings and established a
hearing date of October 3, 2000. (Order dated July 11, 2000).
Starting in July 2000, various people who purport to
represent Darwin Stratton began writing letters to me stating
that MSHA was without jurisdiction to inspect the Rattlesnake
Pit. These letters also made demands under various state laws
including the Uniform Commercial Code ("UCC"). I responded to
these letters by sending several orders and letters to Darwin
Stratton explaining how these proceedings would be conducted. I
explained that the UCC does not apply to these proceedings and
that MSHA's citations and orders raise serious issues that may
have significant implications for Darwin Stratton. Darwin
Stratton began refusing all mail sent from me and from the
Solicitor's office. Mr. Pat Morgan, Darwin Stratton's
representative, signed and dated the outside of the envelopes and
returned them to me unopened. He also used rubber stamps on the
outside of the envelopes with the following messages: "Without
Dishonor U.C.C. 3-505" and "Refuse Mail Service to Federal
Area/Possession." Darwin Stratton failed to respond to the
Secretary's discovery requests, failed to respond to my orders,
and also returned all documents sent by the Solicitor's office.
Darwin Stratton returned the notice of hearing unopened. The
outside of the envelope bears the signature of Pat Morgan.
On August 3, 2000, I sent Darwin Stratton an unmarked
envelope containing a copy of all of the letters and orders that
I had previously issued, along with a letter explaining
Commission procedures and the importance of these cases. I used
stamps for postage and supplied no return address in the hope
that Mr. Morgan would open it. He returned the envelope,
unopened, to the Solicitor's office marked with the same rubber
stamps. All of my subsequent letters and orders were returned
unopened in the same fashion.
On August 28, 2000, the Secretary filed a motion for
expedited hearing on the basis that Darwin Stratton had not
abated one of the citations in these cases. When an MSHA
inspector returned to the pit in June, another individual was
working alone. One of the citations in this case cited Darwin
Stratton for allowing a miner to work alone without meeting the
requirements set forth at 30 C.F.R. �56.18020. MSHA issued a
follow-up citation under section 104(a) so that it could issue a
section 104(b) order and assess daily penalties under section
110(b) of the Mine Act if the condition was not abated.
On September 1, 2000, I issued a notice of hearing site in
which I set out the exact location for the hearing to commence at
9 a.m. on October 3. I sent a copy of this notice to Pat Morgan
and to the two individuals who had sent me letters: "Johnpatrick:
Morgan" of Fredonia, Arizona, and "Clayton-Todd: Stratton" of La
Verkin, Utah. In each instance, the notice of hearing site was
returned unopened. The outside of the envelopes addressed to Pat
Morgan and Todd Stratton ("Clayton-Todd: Stratton") bear the
signature of the addressee and the same rubber stamps. In the
meantime, representatives of Darwin Stratton continued to send
letters holding me and the Secretary in default for failing to
respond to their letters.
The hearing commenced at 9 a.m. on October 3, 2000, in
Washington, Utah, as scheduled. Mr. Rainwater appeared on behalf
of the Secretary of Labor but no representatives for Darwin
Stratton appeared at the hearing. Mr. Rainwater advised me that
he had not been able to make contact with anyone from Darwin
Stratton since he first discussed the cases with representatives
of Darwin Stratton soon after it contested the citations and
orders.
II. DISCUSSION WITH FINDINGS AND CONCLUSIONS
I hold that MSHA has jurisdiction to inspect the Rattlesnake
Pit. The facilities at that pit easily fit within the definition
of "coal or other mine" in section 3(h)(1) of the Mine Act.
Minerals are extracted from the earth, the extracted minerals are
milled at the wash plant, and the resulting product is sold to
customers. The milling consists of separating the sand from the
unusable material and then cleaning the sand. The functions
performed at this pit are the same as are typically found at sand
and gravel pits throughout the country. Courts and the
Commission have consistently held that sand and gravel pits are
subject to MSHA jurisdiction. Because the products of this pit
enter or affect commerce, the pit is subject to the provisions of
the Mine Act in accordance with section 4 of that act.
I made every attempt to ensure that Darwin Stratton was
served with notice of the hearing. Darwin Stratton specifically
requested that these cases not be stayed and asked that the cases
proceed to hearing. Yet, it refused to accept any mail from my
office or from the Secretary. The citations and orders issued by
MSHA raise serious safety issues at the pit. Its failure to
cooperate raises questions about its commitment to the safety of
its employees.
Under 29 C.F.R. �2700.66(b), I could have simply held Darwin
Stratton in default at the commencement of the hearing and
dismissed these proceedings with prejudice. Because the cases
involve a fatality and the citations and orders raise serious
safety issues, I felt it was important to hear the testimony of
the MSHA inspectors and to review the exhibits prepared by the
Secretary. Consequently, the hearing proceeded without Darwin
Stratton being present. A summary of the evidence and my
findings with respect to the citations and orders are set forth
below.
A. Accident Investigation
1. Citation No. 7966585; WEST 2000-372-RM
This citation, as modified, alleges a violation of 30 C.F.R.
�56.14107(a) as follows:
A wash plant operator was fatally injured at this mine
on April 21, 2000, when she was caught in the unguarded
tail pulley for the wash plant feed conveyor. The mine
operator stated that the pulley was never guarded.
This tail pulley was located at ground level....
MSHA Inspector Dennis Harsh determined that the violation
was serious, was of a significant and substantial nature ("S&S"),
and was caused by Darwin Stratton's unwarrantable failure to
comply with the standard. Section 56.14107(a) provides, in
pertinent part, that "[m]oving machine parts shall be guarded to
protect persons from contacting ... drive, head, tail, and takeup
pulleys, ... and similar moving machine parts that can cause
injury."
I find that the Secretary established a violation based on
the testimony of Inspector Harsh as corroborated by the
photographs introduced at the hearing. Both sides of the tail
pulley are shown in photograph Nos. 7, 8, and 8A in Exhibit 1.
No guard was present at the tail pulley. (Tr. 38). The tail
pulley is accessible and is not seven or more feet away from a
walking or working surface. (Tr. 39). The feeder bin ("hopper")
and its support structure above the belt limited the work area
around the tail pulley. Clearance between the hopper frame and
the belt assembly on the north side of the tail pulley where the
accident occurred was about 32 inches. One would have to walk
close to the belt or through the support frame for the hopper to
access the area. (Ex. 1, photo 6; Ex. 3 p. 4). It is not clear
why Ms. Reeve was working in the immediate area of the tail
pulley but it is clear that she was close enough to become
entangled. (Tr. 40-41). There was spillage in the area of the
tail pulley. Ms. Reeve's lunch was still in her truck, so the
accident may have occurred relatively early in her shift. (Tr.
49). Darwin Stratton representatives told Inspector Harsh that
it did not believe that the exposed tail pulley presented a
hazard because the belt moved slowly. (Tr. 43). The safety
standard does not provide an exception for slow moving belts.
Slow moving pulleys and belts can injure miners if their clothing
becomes entangled or if their hands or feet get close to the
moving parts.
I also find that the Secretary established that the
violation was serious and S&S. An S&S 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 ... 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." National Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,
3-4 (January 1984), the Commission set out a four-part test for
analyzing S&S issues. Evaluation of the criteria is made
assuming "continued normal mining operations." U.S. Steel Mining
Co., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is S&S must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April
1988).
The Secretary must establish: (1) the underlying violation
of the safety standard; (2) a discrete safety hazard, 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. The Secretary
is not required to show that it is more probable than not that an
injury will result from the violation. U.S. Steel Mining Co., 18
FMSHRC 862, 865 (June 1996).
I find that the Secretary met all four elements of the
Commission's S&S test. A violation existed that created a
discrete safety hazard. There was a reasonable likelihood that
the hazard contributed to by the violation would result in an
injury, assuming continued normal operations. Finally, there was
a reasonable likelihood that any injury would be of a reasonably
serious nature. The cited condition had existed for a
considerable length of time and it was only a matter of time
before someone was seriously injured by the hazard presented.
The violation was very serious.
Finally, I conclude that the violation was the result of
Darwin Stratton's unwarrantable failure to comply with the safety
standard. The Commission held that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987).
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference,"
or a "serious lack of reasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February
1991). The Commission stated that "a number of factors are
relevant in determining whether a violation is the result of an
operator's unwarrantable failure, such as the extensiveness of
the violation, the length of time that the violative condition
has existed, the operator's efforts to eliminate the violative
condition, and whether an operator has been placed on notice that
greater efforts are necessary for compliance." Mullins and Sons
Coal Co., Inc., 16 FMSHRC 192, 195 (February 1994)(citation
omitted). The Commission also takes into consideration the mine
operator's knowledge of the existence of the dangerous condition.
Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (August 1994).
The tail pulley had never been guarded at the pit. (Tr. 42-
43). The violation was so obvious that I can say without
hesitation that if the Rattlesnake Pit had ever been inspected by
MSHA, the condition would have been cited by the MSHA inspector
and this accident would have never occurred. Darwin Stratton
knew that the tail pulley was not guarded and did nothing to
correct the condition. The fact that Todd Stratton warned Ms.
Reeve to stay away from the conveyor indicates that he knew of
the hazard. For the reasons stated above, this citation is
affirmed, as modified by MSHA.
2. Order No. 7966587; WEST 2000-373-RM
This order alleges a violation of 30 C.F.R. �56.18020 as
follows:
A plant operator was fatally injured at this mine on
April 21, 2000, when she was caught in the unguarded
wash plant feed conveyer tail pulley. The wash plant
operator was assigned, required, or allowed to perform
work alone where hazardous conditions existed. The
conveyor tail pulley was not guarded and additional
safety hazards existed which were cited separately....
Inspector Harsh determined that the violation was serious,
was S&S, and was caused by Darwin Stratton's unwarrantable
failure to comply with the standard. Section 56.18020 provides
that "[n]o employee shall be assigned, or allowed, or required to
perform work alone in any area where hazardous conditions exist
that would endanger his safety unless he can communicate with
others, can be heard, or can be seen."
I find that the Secretary established a violation. Ms.
Reeve was 18 years old and had about two weeks of mining
experience.[1] She had never been assigned to work alone at the
pit before this date. (Tr. 46-47). Her only means of
communication was a two-way radio in her truck. (Tr. 48). This
truck was parked about 150 feet from the accident site. Although
the pit was close to a highway, no representatives from Darwin
Stratton checked on her between 8:30 a.m. and about 4 p.m. (Tr.
48-49). She was the only person at the pit for the entire
period. Inspector Harsh testified that it is not unusual for
people to work alone at wash plants. (Tr. 62-63). In such
instances, MSHA requires that the mine establish a means by which
the employee can communicate with others in the company. Id. If
Ms. Reeve had been wearing a communication device, she may have
been able to get help when she first became entangled. (Tr. 49-
50).
There have been few Commission decisions on "working alone"
standards. In Old Ben Coal Co., 4 FMSHRC 1800 (October 1982),
the Commission reviewed section 77.1700, a similar standard for
surface coal mines. In that case the Commission held that when
an employee is working alone there must be a means of
"communication or contact of a regular and dependable nature
commensurate with the risk present in a particular situation."
Id. at 1803. In Cotter Corp., 8 FMSHRC 1135, 1137 (August 1986),
the Commission made clear that the standards do not prohibit
working alone. In interpreting the predecessor standard, the
Commission held that "an employee assigned a task alone must have
sufficient contact with others ... if, and only if, hazardous
conditions within the meaning of the regulation are associated
with that task." Id. The Commission further held that the real
issue is "whether the employee's contact with others, which need
not be continual, was sufficient to satisfy the protective
purposes of the standard." Id.
Although the language of the standard cited in this case
differs from the standard cited in Cotter, the basic principles
are the same. I find that hazardous conditions were associated
with the tasks that Darwin Stratton assigned Ms. Reeve to
perform. One of those hazards was the lack of a guard on the
tail pulley. (Tr. 47). Other hazards were present as described
in the other citations and orders issued following the accident.
Given Ms. Reeve's relative lack of mining experience, the
potential hazard was considerable. (Tr. 50). Ms. Reeve did not
have any means to call for help, unless she was in her truck. No
other employees could see her and her cries for help could not he
heard. (Tr. 45). She did not have a communication device on her
person. No Darwin Stratton employees checked on her during the
shift. Ms. Reeve's contact with others was insufficient to
satisfy the protective purposes of the standard. I find that
these conditions present a clear violation of the safety
standard.
I also find that the violation was S&S. There existed a
reasonable likelihood that the hazard contributed by the
violation would result in an injury or illness of a reasonably
serious nature. In reaching this conclusion, I have considered
the experience of the employee, the nature of the hazards present
at the pit, and the lack of any reliable means of communication
in the event of an emergency. The radio in the truck was
insufficient to meet the requirements of the standard in these
circumstances.
Finally, I find that the violation was the result of Darwin
Stratton's unwarrantable failure to comply with the standard.
Darwin Stratton knew that Ms. Reeve was relatively inexperienced
at operating the wash plant and that she would be working alone
for the entire shift. The operator also knew or had reason to
know that she would have no means to call for help if a serious
accident occurred unless she could make it to her truck. Darwin
Stratton's aggravated conduct is further evidenced by the fact
that nobody checked on her during the entire shift. She may have
been entangled in the conveyor belt assembly for a considerable
length of time. If a means of communication had been available,
someone may have been able to rescue her. (Tr. 49-50). For the
reasons stated above, this order is affirmed as written.[2]
**FOOTNOTES**
[1]: Inspector Harsh testified that Darwin Stratton
representatives were rather evasive when questioned about Ms.
Reeve's experience. (Tr. 46). Inspector Harsh estimated that
she had about two weeks experience based on the information given
to him. (Tr. 60-61). Ms. Reeve was Clayton Stratton's niece and
Todd Stratton's cousin.
[2]: As of the date of the hearing, this Order had not been
abated. (Tr. 55). MSHA issued Citation No. 7966589 and sent
Darwin Stratton a letter about its failure to abate the order.
(Exs. 5, 6). The letter stated that MSHA would consider
"implementing section 110(b)" and proposing daily penalties.
Citation No. 7966588; WEST 2000-443-RM
This citation, as modified, alleges a violation of 30 C.F.R.
�50.10 as follows:
A fatal accident occurred at this operation on April
21, 2000. The operator failed to notify MSHA of the
fatality despite operating another mine in the area and
having knowledge of the reporting requirements.
Inspector Harsh determined that the violation was not
serious, was not S&S, and was the result of Darwin Stratton's
high negligence. Section 50.10 provides that a mine operator
must immediately contact MSHA if an accident occurs at its mine.
Section 50.2(h) defines "accident" to include the "death of an
individual at a mine."
The Secretary established a violation of this regulation.
Darwin Stratton did not notify MSHA of the fatal accident. MSHA
was advised of the accident by the State of Utah's occupational
safety and health agency. I also find that Darwin Stratton's
negligence was high. Darwin Stratton operates the Airport Pit in
the same county. (Tr. 67). Because the Airport Pit had been
previously inspected by MSHA, Darwin Stratton was aware or should
have been aware of the reporting requirements under section
50.10. For the reasons stated above, this citation is affirmed
as modified.
B. Regular Inspection
The remainder of the citations and orders in these
proceedings were issued during a regular inspection conducted by
MSHA Inspector Richard Arquette during the accident
investigation.[3] These citations and orders are affirmed in all
respects as written or modified.
1. Failure to Notify MSHA of Operation
Inspector Arquette issued Order No. 7941258 and Cita-
tion No. 7941259 because Darwin Stratton failed to notify
MSHA that it was operating the Rattlesnake Pit. The inspector
alleged a violation of section 56.1000 in the unwarrantable
failure order and a violation of section 41.11 in the section
104(a) citation. Section 41.11 requires operators to file a
legal identity report providing information on their ownership
with the MSHA district manger. Section 56.1000 requires
operators to notify the local MSHA office when it starts and
stops its operations.
The Darwin Stratton failed to comply with the regulations.
(Tr. 90-91, 93-94). Although MSHA was aware of Darwin Stratton's
Airport Pit, MSHA did not know that the Rattlesnake Pit existed.
Darwin Stratton previously filed a legal identity report for the
Airport Pit but not for the Rattlesnake Pit. As a consequence,
the Rattlesnake Pit was never inspected for compliance with MSHA
safety standards. If Darwin Stratton had complied with sections
41.11 and 56.1000, MSHA would have inspected the Rattlesnake Pit
prior to the fatal accident. (Tr. 97). These violations are
serious and Darwin Stratton's negligence was high. The citation
and order are affirmed as modified by MSHA.
2. Workplace Examinations
Inspector Arquette issued Order No. 7941260 because
workplace examinations were not being conducted by a competent
person at least once each shift as required by section 56.18002.
He determined that the violation was S&S and was the result of
the operator's unwarrantable failure to comply with the standard.
(Tr. 97).
Compliance with this standard is important because such
examinations may reveal hazardous conditions. The operator
should have known of this requirement because of its experience
at its Airport Pit. This violation was S&S and was the result of
the operator's unwarrantable failure. The order is affirmed as
modified.
Order No. 7941263 alleges that equipment defect records were
not being kept for the front-end loader. Inspector Arquette
testified that Darwin Stratton had not been making the
examinations required under section 56.14100. (Tr. 103-04).
Compliance with this standard is important because such
examinations may reveal hazardous conditions. The operator
should have known of this requirement because of its experience
at its Airport Pit. This violation was S&S and was the result of
the operator's unwarrantable failure. The order is affirmed as
written.
3. Electrical Violations
Inspector Arquette issued 12 citations and orders alleging
violations of MSHA's electrical standards. Inspector Arquette
has an electrical background and was concerned about the pit's
electrical system. (Tr. 71). Citation No. 7941252 states that
the pit's "electrical system from the portable [generator] to the
electrical equipment was not provided with a ground" in violation
of section 56.12025. The citation also states that the
electrical system was not provided with an overcurrent device.
When the inspector tested the system, he found that the
electrical system was not properly grounded. (Tr. 75-76). A
fault in the system could have transferred current to the frames
of electrical equipment and seriously injured or killed an
employee. I affirm this S&S citation.
Order No. 7941275 states that the operator had not been
testing the continuity and resistance of grounding systems at the
pit in violation of section 56.12028. (Tr. 141-42). Such
testing would have revealed that the electrical system at the
wash plant was not grounded. I affirm this unwarrantable failure
order.
Order No. 7941268 states that the electrical control panels
at the pit were not labeled to show what equipment each switch
controls in violation of section 56.12018. Inspector Arquette
testified that the representative of the operator had a difficult
time determining which switches to throw to shut down particular
pieces of equipment. (Tr. 118-19). He had to follow the
electrical cables along the ground from the equipment to the
control panel to make this determination. In the event of an
emergency, an employee would not be able to quickly shut down
equipment. I affirm this order as modified by MSHA. I also find
that the Secretary established that the violation was a result of
the operator's unwarrantable failure.
Citation Nos. 7941269, 7941273, and 7941274, and Order Nos.
7941266, 7941271, and 7941272 all concern electrical circuits for
equipment at the mine. They allege violations of sections
56.12001 and 56.12002. In each instance, Inspector Arquette
observed defects in these circuits. Motor starters, fuses, and
circuit breakers were not the correct size and heater elements
(overcurrent devices) were installed incorrectly. (Tr. 109-13,
121-40). I credit the testimony of Inspector Arquette with
respect to these citations and orders. Each citation and order
is affirmed as written by Inspector Arquette or subsequently
modified by MSHA.
Citation No. 7941276 states that the cabinets for the motor
controllers were not designed to be used outside but were made to
be used in areas where they would not be exposed to the elements.
The citation alleges a violation of section 56.12041. Inspector
Arquette testified that this condition created an electric shock
hazard because water could get into the electrical circuits.
(Tr. 142-44). This citation is affirmed as written.
Order No. 7941267 states that the power cable entering the
motor for the sand screw was not equipped with a bushing or
fitting. About eight inches of the electrical conductors inside
the cable were exposed to mechanical damage. (Tr. 114-17). This
condition created an electric shock hazard. The Secretary
established a violation of section 56.12004 and the order is
affirmed as written.
Citation No. 7941270 states that splices and repairs on the
power cable for the screen motor were not mechanically strong,
properly insulated, or sufficiently protected against damage, in
violation of section 56.12013. Inspector Arquette testified that
the cited condition created a shock hazard. (Tr. 128-30). This
citation is affirmed.
4. Other Citations and Orders
Inspector Arquette issued nine other citations and orders.
These citations and orders allege violations of various safety
standards. The violations include inadequate berms on elevated
roadways, several fire hazards, inadequate guarding on the screen
feed belt, inadequate first aid supplies, and equipment defects
that affect safety. Based on the evidence presented at the
hearing, all of these citations and orders are affirmed as
written or modified. All of the citations and orders at issue in
these cases are listed below.
**FOOTNOTES**
[3]: Inspector Harsh also issued Order No. 7966584 under
section 103(k) of the Mine Act. Darwin Stratton contested the
order in WEST 2000-371-RM. This order is affirmed.
III. LIST OF CITATIONS AND ORDERS AFFIRMED
The following citations and orders are affirmed as written
by Inspectors Harsh and Arquette or, if subsequently modified by
MSHA, they are affirmed as modified. This list includes all
modifications.
30 C.F.R. � 30 U.S.C. �
Order No. 7966584 N/A �813(k)
Citation No. 7966585 56.14107 �814(d)(1)
Order No. 7966587 56.18020 �814(d)(1)
Citation No. 7966588 50.10 �814(a)
Citation No. 7941252 56.12025 �814(a)
Order No. 7941253 56.9300(b) �814(d)(1)
Order No. 7941254 56.9300(b) �814(d)(1)
Order No. 7941255 56.4101 �814(d)(1)
Order No. 7941256 56.4102 �814(d)(1)
Order No. 7941257 56.20008 �814(d)(1)
Order No. 7941258 56.1000 �814(d)(1)
Citation No. 7941259 41.11 �814(a)
Order No. 7941260 56.18002 �814(d)(1)
Citation No. 7941261 56.14107(a) �814(a)
Citation No. 7941262 56.14132(a) �814(a)
Order No. 7941263 56.14100(d) �814(d)(1)
Order No. 7941264 56.15001 �814(d)(1)
Order No. 7941265 56.11002 �814(d)(1)
Order No. 7941266 56.12002 �814(d)(1)
Order No. 7941267 56.12004 �814(d)(1)
Order No. 7941268 56.12018 �814(d)(1)
Citation No. 7941269 56.12001 �814(a)
Citation No. 7941270 56.12013 �814(a)
Order No. 7941271 56.12001 �814(d)(1)
Order No. 7941272 56.12001 �814(d)(1)
Citation No. 7941273 56.12002 �814(a)
Citation No. 7941274 56.12002 �814(a)
Order No. 7941275 56.12028 �814(d)(1)
Citation No. 7941276 56.12041 �814(a)
IV. ORDER
For the reasons set above, each citation and order listed
above is AFFIRMED WITH PREJUDICE and these proceedings are
DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Mr. Pat Morgan, Darwin Stratton & Son, P.O. Box 1089, St.
George, UT 84771 (Certified Mail)
Johnpatrick: Morgan, General Post Office, Fredonia, AZ 86022
(Certified Mail)
Clayton-Todd: Stratton, General Post Office, La Verkin, UT 84745
(Certified Mail)
Darwin Stratton & Son, 720 West State Street, Hurricane, UT 84737
(Certified Mail)
John Rainwater, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
RWM