.
NEVADA CEMENT COMPANY
September 12, 1996
WEST 95-537-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 12, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 95-537-M
Petitioner : A.C. No. 26-00015-05534
:
v. :
: Mine: Nevada Cement Co.
NEVADA CEMENT COMPANY, :
Respondent :
DECISION
Before: Judge Hodgdon
This case is before me on a Petition for Assessment of
Civil Penalty filed by the Secretary of Labor, acting
through his Mine Safety and Health Administration
(MSHA), against Nevada Cement Company pursuant to section
105 of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. � 815. The petition alleges two violations
of the Secretary's mandatory health and safety standards
and seeks a penalty of $10,000.00. For the reasons set
forth below, I affirm the citations and assess a
penalty of $7,500.00
Prior to hearing, the parties agreed to stipulate to
the facts in the case and to submit the case in
writing. The stipulated facts and briefs have been filed
by both parties.
Background
After reporting for work on the morning of May 22,
1995, Preston Niemeyer was directed by his supervisor
to replace the muffler on a 1972 International flat
bed service truck. The truck was equipped with a
five-speed manual transmission. The truck was in the
central bay of Nevada Cement's truck shop. It was in
first gear, but the parking brake had not been set or
placed in the "on" position and the wheels had not been
chocked or blocked.
While lying under the truck and removing the exhaust
pipe from the exhaust manifold, Niemeyer apparently
touched part of the exhaust pipe's heat shield to the
starter solenoid. As a result, the engine started and the
truck rolled over him, causing fatal injuries. The
truck traveled about 32 feet before it stopped when it
struck another parked vehicle. The accident occurred
at about 6:50 a.m.
MSHA's investigation of the accident resulted in the
issuance of Citation Nos. 4140701 and 4140702. Both
citations state that: "On May 22, 1995, a fatal powered
haulage accident occurred at the plant's truck shop. A
mechanic was working on a service truck when the engine
accidentally started and rolled over the victim who was
under the truck working on the exhaust system."
Citation No. 4140401 alleges a violation of section
56.14207, 30 C.F.R. � 56.14207,[1] because "the truck's
parking brake had not been set to prevent unintentional
movement." Citation No. 4140702 alleges a violation of
section 56.14105, 30 C.F.R. � 56.14105,[2] because "the
truck had not been blocked/chocked to prevent
accidental movement."
Findings of Fact and Conclusions of Law
The parties have agreed to settle Citation No. 4140702.
A reduction in penalty from $4,000.00 to $3,000.00 is
proposed. In addition, they have agreed that if
Citation No. 4140701 is affirmed, the penalty should be
reduced from $6,000.00 to $4,500.00. They disagree,
however, as to whether the Respondent violated section
56.14207.
The Respondent argues that Citation No. 4140701 should
be dismissed because it does not apply in this situation.
According to Nevada Cement, section 56.14207 applies
only to vehicles that have been parked and left
unattended, i.e. "without a person in proximity," not
vehicles that have been parked for the purpose of
performing repairs and/or maintenance on them. (Resp.
Br. at 4-5.) The company further argues that the two
violations at issue arise from same incident and,
therefore, amount to overcharging. (Resp. Br. at 9.)
I find that section 56.14207 was applicable to this
accident and that both sections were properly cited in
this case.
There do not appear to be any Commission decisions
dealing with either of these sections as cited in
this case. Nevertheless, if there is a question as
to whether a regulation applies to a specific incident,
the Commission has directed that the question be answered
by using the "reasonably prudent person test." That
is, "whether a reasonably prudent person familiar with
the mining industry and the protective purposes of the
standard would have recognized the specific prohibition
or requirement of the standard." Ideal Cement Co. 12
FMSHRC 2409, 2416 (November 1990).
In essence, the Respondent argues that the truck in
this case was not "unattended" because the mechanic was
present, albeit underneath the truck. However, it is
obvious that the purpose of the regulation is to
prevent mobile equipment from moving when someone is
not in a position to stop it. Thus, "unattended," as
used in the regulation, means more than someone not
being in proximity to the vehicle. I find that mobile
equipment is "unattended" when no one is present who
can prevent it from moving. This is consistent with
the first definition found in Webster's Third
International Dictionary 2482 (1986) that "unattended"
means "not attended: a: lacking a guard, escort,
caretaker, or other watcher."
Clearly, Niemeyer was not in a position, lying underneath
the truck, to prevent it from rolling forward.
Consequently, the truck was unattended while he was
working on it. Accordingly, I conclude that a
reasonably prudent person familiar with the mining
industry and with the requirements of section 56.14207
would have recognized that in such a situation the
regulation requires that the parking brake be set.
Contrary to the Respondent's argument,I do not find
that the two regulations are mutually exclusive. It is
not a matter of either setting the parking brake when the
equipment is parked or blocking the wheels when the
parked vehicle is being repaired. Because a person
performing repairs or maintenance on a vehicle is often
in an exposed position if the vehicle were to move,
just as Niemeyer was in this case, it is completely
logical that the regulations would require both that
the parking brake be engaged and that the wheels be
blocked. This makes sure, as best as possible, that
the vehicle cannot move.
As the Commission has observed: "The 1977 Mine Act
imposes a duty upon operators to comply with all
mandatory safety and health standards. It does not
permit an operator to shield itself from liability for
a violation of a mandatory standard simply because the
operator violated a different, but related, mandatory
standard." El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40
(January 1981). Here, although the two violations arose
from the same event, "the citations are not duplicative
because the two standards impose separate and distinct
duties upon the operator." Cyprus Tonopah Mining Corp.,
15 FMSHRC 367, 378 (March 1993).
Therefore, I conclude that Nevada Cement was properly
cited for a violation of section 56.14207. I further
conclude that the company violated the regulation when
the parking brake was not set while Niemeyer was
working underneath it.
Civil Penalty Assessment
The parties settlement agreement provides for a penalty
of $4,500.00 for Citation No. 4140701 and $3,000.00 for
Citation No. 4140702, for a total penalty of $7,500.00.
Having considered the representations and documentation
submitted, I conclude that the proffered settlement is
appropriate under the criteria set forth in section
110(i) of the Act, 30 U.S.C. � 820(i).
ORDER
Accordingly, the motion for approval of settlement
is GRANTED, Citation Nos. 4140701 and 4140702 are
AFFIRMED and Nevada Cement Company is ORDERED TO PAY a
civil penalty of $7,500.00 within 30 days of the date of
this decision. On receipt of payment, these proceedings are
DISMISSED.
T. Todd Hodgdon
Administrative Law Judge
Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S.
Department of Labor, 71 Stevenson St., Suite 1110, San
Francisco, CA 94502
(Certified Mail)
James B. Leslie, Esq., Law Offices of Michael B. Springer,
500 Ryland, Suite 200, Reno, NV 89502 (Certified Mail)
/lt
**FOOTNOTES**
[1]: Section 56.14207 provides, in pertinent part, that
"[m]obile equipment shall not be left unattended unless the
controls are placed in the park position and the parking brake,
if provided, is set."
[2]: Section 56.14105 requires, in pertinent part, that
"[r]epairs or maintenance of machinery or equipment shall be
performed only after the power is off, and the machinery or
equipment blocked against hazardous motion."