.
PORTABLE ROCK PRODUCTION CO., INC.
August 18, 2000
WEST 99-309-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
August 18, 2000
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 99-309-M
Petitioner : A. C. No. 35-02761-05521
v. :
:
PORTABLE ROCK PRODUCTION CO., INC., :
Respondent : Portable Rock Production
: Co., Inc.
: (Sears Road Pit)
DECISION
Appearances: William W. Kates, Esq., Office of the
Solicitor, U.S. Dept. of Labor, Seattle, Washington,
for the Petitioner;
E. Jay Perry, Esq., P.O. Box 7126, Eugene, Oregon,
for the Respondent.
Before: Judge Melick
This case is before me upon a Petition for Civil Penalty
filed by the Secretary of Labor, pursuant to Section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq., the "Act," charging Portable Rock Production Company
Inc. (Portable Rock) with three violations of mandatory standards
and proposing civil penalties of $80,000.00 for those violations.
The general issue before me is whether Portable Rock violated the
cited standards as alleged and, if so, what is the appropriate
civil penalty to be assessed concerning the criteria under
Section 110(i) of the Act.
On September 2, 1998, bulldozer operator Vernon Smith
suffered massive head injuries when the outer edge of the third
level bench at Portable Rock's Sears Road Pit failed, causing his
bulldozer to overturn. It is undisputed that material had been
removed from the second level bench the day before, thereby
undercutting and removing adequate support for the third level
bench at the location of the bench failure. Smith died of his
injuries several days later.
Citation No. 4135309 alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 56.3130 and charges as
follows:
A fatal accident occurred at this mine on
September 2, 1998, when a bulldozer overturned in the
pit. When the bulldozer operator traversed the third
level bench, the outer edge of the bench failed,
causing the bulldozer to overturn.
Removal of material from the second level bench
the previous day eliminated adequate support for the
third level bench. The mine operator failed to use
mining methods that would maintain wall, bank, and
slope stability in this area.
The cited standard provides as follows:
Mining methods shall be used that will maintain
wall, bank, and slope stability in places where persons
work or travel in performing their assigned tasks.
When benching is necessary, the width and height shall
be based on the type of equipment used for cleaning of
benches or for scaling of walls, banks, and slopes.
It is undisputed that material had indeed been removed from
the second level bench on September 1, 1998, the day before the
accident at issue. As a result of such action the third level
bench was undercut and rendered unstable for travel by Smith's
bulldozer. The failure of the third level bench in this case
causing the bulldozer to overturn was a direct result of the
Respondent's failure to have maintained the stability of the
cited wall. These facts clearly establish a violation of the
cited standard.
Since the violation was the direct cause of the fatal
accident it was therefore also unquestionably of high gravity and
"significant and substantial." A violation is properly
designated as "significant and substantial" if, based on 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. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1,3-4 (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 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 will result in an injury, and
(4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria).
The third element of the Mathies formula requires that
the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984)). The likelihood of such injury must be evaluated in terms
of continued normal mining operations without any assumptions as
to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984); See also Halfway, Inc., 8 FMSHRC 8, 12 (January
1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
While the citation at issue alleges that the violation was
the result of "moderate" negligence the Secretary has cited no
theories or evidence to support such a conclusion. Indeed, the
undisputed evidence does not support a finding of any significant
operator negligence. While it is noted that the deceased, Vernon
Smith, had previously been a mine superintendent for Portable
Rock it is undisputed that he had retired from that position a
number of years before and at the time of the accident had been
working only as a rank and file bulldozer operator. As such,
Smith was not an agent of the operator whose negligent conduct
can be imputed to the operator . See Secretary v. Whayne Supply
Company, 19 FMSHRC 447 (March 1997). While the Commission held
in the Whayne Supply case that where a rank and file employee has
violated the Act, the operator's supervision training and
discipline of its employees must be examined to determine if the
operator has taken reasonable steps to prevent the rank and file
miner's violative conduct, no evidence in this regard with
respect to this violation was presented at hearing.
It is also undisputed that Smith had advised both co-worker
Edward Wright and the operator's agent, crusher foreman Art
Squires, that he was about to repair the subject undercut. Smith
also told Wright at the end of the shift on the previous day that
the following day he would be carrying diesel fuel to the upper
bench but would first repair the bench. Moreover, on the morning
of the accident Smith confirmed to Squires that he would need to
build the road up the hill in order to haul fuel to Wright.
Squires was then aware that the bench road had been undermined
and that it needed new material to provide support. Squires
believed that Smith was the best qualified person to perform this
work.
Under the circumstances it is apparent that foreman Squires
reasonably and in good faith believed that Smith would remedy the
hazardous condition of the third level bench before it would be
used as a roadway. Accordingly, I find the operator chargeable
with but little negligence and significant weight is given this
criterion in determining the appropriate penalty herein.
Citation No. 4135311, issued pursuant to Section 104(d)(1)
of the Act,[1] alleges a "significant and substantial" violation
of the standard at 30 C.F.R. � 56.14130(g) and charges as
follows:
A fatal accident occurred at this mine on
September 2, 1998, when a bulldozer overturned in the
pit. The third level bench caved from beneath the
bulldozer, causing it to roll 2 � times.
The victim was not wearing the seat belt. The
mine operator's failure to require and ensure that the
bulldozer operator wore the seat belt is a lack of
reasonable care constituting more than ordinary
negligence and is an unwarrantable failure to comply
with a mandatory standard.
The cited standard provides as relevant hereto that "[s]eat
belts shall be worn by the equipment operator."
The Secretary's proof in this regard is based on
circumstantial evidence, primarily observations following the
accident. MSHA inspector and special investigator Randall
Cardwell, arrived at the mine site at 9:30 on the morning of the
accident. Cardwell examined the bulldozer lying on its side
below the failed bench and noted that one end of its seat belt
was "tucked" beneath the seat. Cardwell also interviewed
Portable Rock employee Kenny Johnson who was first on the scene
of the accident. Johnson at first stated he could not recall
whether he found the deceased wearing the seat belt but later
told Cardwell that in fact he did find the deceased "out of his
seat belt." Johnson nevertheless still claimed that he did not
know whether the deceased was wearing it. According to Cardwell,
on the following day, September 3, 1998, Johnson finally
acknowledged to him that the deceased was not wearing a seat belt
when he found him.[2] I am satisfied from the above evidence
alone that the Secretary has sustained her burden of proving that
Smith had not at the time of his accident been wearing a seat
belt. The violation is accordingly proven as charged. Under all
the circumstances there is also no doubt that the violation was
of high gravity and "significant and substantial."
I also find the operator chargeable with high negligence
based upon the credible evidence of its prior failure to have
enforced its policy requiring the use of seat belts against
Smith. According to Inspector Cardwell, Portable Rock President,
Jack Bessett, admitted during his investigation that he had seen
Smith operating without a seat belt on prior occasions and that
Smith explained that he wanted to be able to jump free if the
equipment rolled over.
According to MSHA supervisory inspector Colin Galloway,
Portable Rock Vice-President Lonnie Bessett admitted to him at
the September 10, 1998, "closeout conference" that Smith
"sometimes wore his seat belts" and asked rhetorically "how do
you discipline somebody that's been with the company since it
started?" While recognizing that Jack Bessett had apparently
retired from active participation in the Portable Rock operations
in 1994, his unchallenged admissions, when considered with those
of current Vice-President Lonnie Bessett, provide a sufficient
foundation from which it may reasonably be inferred that indeed
Smith had disregarded the seat belt requirements with impunity
and without fear of disciplinary action. Within this framework
of evidence I find the operator chargeable with high negligence.
The same evidence also supports a finding that the violation was
caused by the operator's unwarrantable failure.
In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987),
the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
This determination was derived, in part, from the plain meaning
of "unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected or appropriate action"), and
"negligence" (the failure to use such care as a reasonably pru-
dent and careful person would use, and is characterized by
"inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC at
2001. Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference"
or a "serious lack of reasonable care." 9 FMSHRC at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February
1991). Clearly the evidence that both Lonnie and Jack Bassett
failed to enforce the seat belt policy
against the deceased constitutes a serious lack of reasonable
care and reckless disregard within the framework of the cited
law.
Order No. 4135313, issued pursuant to Section 104(d)(1) of
the Act, alleges a "significant and substantial" violation of the
standard at 30 C.F.R. � 56.14130(i) and charges as follows:
A fatal accident occurred at this mine on
September 2, 1998, when a bulldozer overturned in the
pit. The seat belts on the bulldozer were not
maintained in functional condition in that the belt had
been cut or torn 2 � inches from the flat metal end,
preventing adjustment of the belt to a flat metal end,
preventing adjustment of the belt to a longer length.
Further, the belt was cut or torn slightly on each
edge, approximately 8 inches from the buckle. The mine
operator's failure to ensure that the seat belts were
properly maintained is a lack of reasonable care
constituting more than ordinary negligence and is an
unwarrantable failure to comply with a mandatory
standard.
The cited standard provides that "seat belts shall be
maintained in functional condition and replaced when necessary to
assure proper performance."
The Secretary acknowledges in her post-hearing brief that
the cited seat belt in fact "did work" and upon testing found
that the "buckle components of the belt" held (Petitioner's Brief
at p. 5). At hearing the citing inspector also acknowledged that
he was unaware of any mandatory standard governing the length of
seat belts, that he was unaware of the length of the seat belt at
issue, that he was unaware of the waist size of any of the
operator's employees, that he was unaware of any specific
requirement for seat belt strength, that no strength testing had
been performed on the seat belt at issue and that he did not know
whether the dirt (and presumably also the oil stains) found on
the belt had resulted from the accident at issue. The inspector
further acknowledged that while he could have photographed both
of the alleged cuts or tears in the seat belt he photographed
only one. Moreover the barely visible cut or tear shown in the
photograph in evidence is not in itself sufficient to demonstrate
that the subject seat belt was not maintained in a functional
condition or that it should have been replaced to assure proper
performance. Under the circumstances I cannot find that the
Secretary has sustained her burden of proving the violation at
issue. Accordingly, Order No. 4135313 must be vacated.
Civil Penalties
The Act requires that, "[i]n assessing civil monetary
penalties, the Commission shall consider" the following six
statutory criteria:
[1] the operator's history of previous violations, [2]
the appropriateness of such penalty to the size of the
business of the operator charged, [3] whether the
operator was negligent, [4] the effect on the
operator's ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good
faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
In determining appropriate civil penalties herein I have
considered the gravity and negligence findings previously made as
to each violation. I have also considered the small size of the
operator (approximately 9,282 hours worked at the subject mine in
the calendar year prior to the violations, its history of
violations (a bad history consisting of 43 paid violations within
the two preceding years 21 of which were "significant and
substantial") and the Secretary's admission that the violative
conditions were abated as directed and within the time specified.
There is no claim or evidence that even the Secretary's proposed
penalties would affect Respondent's ability to remain in
business. There is a presumption therefore that the penalties
herein would not affect its ability to remain in business.
ORDER
Order No. 4135313 is vacated. Citation No. 4135311 is
modified to a citation under Section 104(a) of the Act and is
affirmed as a "significant and substantial" citation. Citation
No. 4135309 is affirmed as a "significant and substantial"
citation. Portable Rock Production Company, Inc., is hereby
directed to pay civil penalties of $5,000.00 for the violation
charged in Citation No. 4135309 and $25,000.00 for the violation
charged in Citation No. 4135311, within 40 days of the date of
this decision.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
William W. Kates, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
E. Jay Perry, Esq., Employers Defense Counsel, P.O. Box 7126,
Eugene, OR 97401
\mca
**FOOTNOTES**
[1]: Section 104(d)(1) 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 given to the operator under this Act. If, during
the same inspection or any subsequent inspection of such mine with-
in 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 subsec-
tion (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."
[2]: While Johnson testified that he could not recall at the
time of the hearing whether he found Smith wearing a seat belt I
recognize that at the time of his testimony he remained an
employee of Portable Rock. I find Inspector Cardwell's testimony
regarding Johnson's statements to him on the date of the accident
and the day after, corroborated by Cardwell's notes, to be the
most reliable and credible evidence on this issue.