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WHITEWATER BUILDING MATERIALS CORPORATION
February 3, 2000
WEST 99-137-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268
February 3, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-137-M
Petitioner : A.C. No. 05-02357-05516
:
v. :
: Whitewater #81.
WHITEWATER BUILDING :
MATERIALS CORPORATION, :
Respondent :
DECISION
Appearances: Edward Falkowski, Esq., Jennifer A. Casey, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Nathan A. Keever, Esq., Dufford, Waldeck, Milburn
& Krohn, Grand Junction, Colorado; for Respondent.
Before: Judge Cetti
This case is before me upon a petition for assessment of
civil penalties under sections 105(d) and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. � 801 et seq., the "Mine
Act." The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges Whitewater Building
Materials Corporation with the violation of five mandatory safety
standards. Two of the violations were alleged to be S&S. The
total proposed penalty was $393.00.
In the prehearing conference that preceded opening the
record for the requested hearing, the parties advised the judge
that they were unable to reach a settlement of any of the
citations, thus confirming their negative response to the judge's
prehearing order instructing the parties to attempt to negotiate
a settlement.
At the hearing, the parties were able to agree on the
following stipulations which Secretary's counsel read into the
record.
1. Respondent is engaged in the mining and selling of sand
and gravel in the United States, and its mining operations affect
interstate commerce.
2. Respondent is the owner and operator of the HM2 Crusher
mine, I.D. #390315.
3. Respondent is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. �� 801 et seq.
("the Mine Act").
4. The Administrative Law Judge has jurisdiction in this
matter.
5. The subject citation was properly served by a duly
authorized representative of the Secretary upon an agent of
Respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The exhibits to be offered by the parties are stipulated
to be authentic, but no stipulation is made as to their relevance
or the truth of the matters asserted therein.
7. The proposed penalties will not affect the ability of
Respondent's ability to continue in business.
8. Respondent is a mine operator with 1,327 hours worked at
the HM2 Crusher mine (I.D. #3901315) in 1997 and 7,452 total
hours worked by Respondent in 1997.
9. The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation.
The issues were the existence of each of the five violations
and the inspector's S&S designation of two of the alleged
violations.
There were a large number of potential witnesses in the
courtroom so the Judge, off-the-record, inquired as to who would
be testifying. Secretary's counsel stated that he would be
presenting the testimony of two MSHA inspectors. Inspector
George Rendon would be testifying as to the violative conditions
he observed as set forth in the two citations Inspector Rendon
wrote. Inspector Gary Grimes would testify as to his
observations of the violative conditions he observed as set forth
in the three citations he wrote.
Respondent's Vice-President, Edward M. Gardner, indicated he
would testify to the facts and contentions he set forth in his
letter of April 30, 1999, which reads as follows:
Whitewater requests that the following citations, under
the above Docket No., be vacated.
Citation Nos. 7921947 and 7921949 (lights for
caterpiller truck and front-end loader). These
citations do not violate Section 56.14100b, Title 30
CFR. Non-use or non-operating lights do not affect
safety during daylight hours. Whitewater does not
operate and has not operated during hours of darkness
or low visibility. A safety hazard is not created as
the lights were not required to be used at the time of
the inspection.
Citation No. 7921948 (pulley belt guards for haul
truck, alternator and condenser). The area cited is in
an area that is isolated and accidental contact can not
happen. The left front wheel and the truck frame
isolate this item from contact. It is not in the normal
work area of the operator and is not in arm's reach of
any one checking the engine fluids. The only time this
area would be entered by workmen would be during shut
down for maintenance of the item. Fan guards were in
place at the time of inspection. See enclosed photo
exhibits Nos. 1 and 2.
Citation No. 4669758 (side panels for tail pulley).
Whitewater believes that it had this area guarded
properly at the time of inspection and that accidental
contact could not have happened. The Inspector so notes
that a person would have to reach in to make contact.
Guards were so placed as to allow spill clean-up to be
accommodated and still protect the workmen from
accidental contact with the danger area. Also we
believe that even if the guards did not satisfy the
inspector that the citation was not an S & S citation.
If the citation is upheld we request that the S & S
designation be removed. See enclosed photo exhibits No.
3 and 4.
Citation 4669383 (hand railings on haul truck); We are
not sure what the inspector saw or intended with this
citation. This (haul truck) unit is equipped with
handholds and guards rails in all areas above the
ground and utilized by the operator to mount, dismount
and check the unit. These safety rails where installed
by the manufacturer and have not been altered, removed
or changed by Whitewater. The cab door will not open
beyond hand rail. See enclosed photo exhibits No. 5 and
6.
Having reviewed the entire file and participated in off-the-
record discussions of the issues, I told the parties that the
proposed penalties were quite modest and that they should be able
to negotiate a settlement that would resolve all issues
satisfactorily to both parties. With the assistance and
recommendations of the Judge, the parties, off-the-record,
negotiated an agreed disposition of all issues.
The agreement did not reduce the MSHA proposed penalty of
$393.00. It did, however, provide for a modification of Citation
Nos. 4669758 and 4669383 by deleting the S&S designation of the
two violations charged in those citations. Having considered the
entire record, the essence of the proposed testimony and
contentions of the parties and the statutory criteria in section
110(i) of the Mine Act, I found the agreed disposition of the
issues appropriate and approved the settlement on the record.
ORDER
Citation Nos. 7921947, 7921948 and 7921949 are AFFIRMED;
Citation No. 4669758 and 4669383 are MODIFIED by deleting the
"significant and substantial" designation and, as so modified,
are AFFIRMED.
Whitewater Building Materials Corporation is ORDERED TO PAY
a civil penalty of $393.00 to the Secretary of Labor within 30
days of the date of this decision. Upon receipt of timely
payment, this case is dismissed.
August F. Cetti
Administrative Law Judge
Distribution:
Edward Falkowski, Esq., Jennifer A. Casey, Esq., Office of the
Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)
Nathan A. Keever, Esq., DUFFORD, WALDECK, MILBURN & KROHN,
L.L.P., 744 Horizon Court, Suite 300, Grand Junction, CO 81506
(Certified Mail)
/sh