<DOC>
[DOCID: f:y94-14m.wais]
COLD SPRINGS GRANITE COMPANY
January 23, 1995
YORK 94-14-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 23, 1995
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 94-14-M
Petitioner : A.C. No. 30-00066-05523
:
v. : Lake Placid
COLD SPRINGS GRANITE COMPANY, :
Respondent :
DECISION
Appearances: James A. Magenheimer, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York, for
Petitioner; Steven R. McCown, Esq., Little, Mendelson,
Fastiff & Tichy, Dallas, Texas, for Respondent.
Before: Judge Weisberger
This case is before me based upon a Proposal for Assessment
of Civil Penalty filed by the Secretary of Labor (Petitioner)
alleging a violation by Cold Springs Granite Company of 30 C.F.R.
� 56.3400. [1] A hearing on this matter was held in Burlington,
Vermont, on November 1, 1994. Subsequent to the hearing,
Petitioner, filed a Post Hearing Memoranda on December 22, 1994.
Respondent's Brief was received on December 28, 1994.
Findings of Fact and Discussion
Cold Springs Granite Company ("Cold Springs") operates the
Lake Placid Blue and Green Quarry in Ausable Forks, New York.
In general, the first step in Cold Springs granite mining operation
is the drilling of the loaf[2] to be blasted from the quarry. In
the next step, the granite loaf is blasted from the quarry. After
the loaf has been blasted and freed from the earth or the quarry, it
is then split at the quarry site by wedges or explosives in order to
break off smaller pieces of material. Those pieces of material
that are broken off and squared off and are of transportable size,
are removed from the quarry site to be placed in inventory for
shipping to customers. The material from the loaf that have
not been squared off (blocks) are transported to the finishing
yard where they are washed and split further.
On March 12, 1993, Joseph C. Cayea, a rock driller, was
assigned to split blocks at the finishing yard. The blocks
of granite were about four or five feet high laying on their side
in close proximity to each other. The blocks had been pre-drilled
by machine. From a position standing on top of the
blocks of granite, Cayea split the blocks of granite by using tools
he called "wedges" and "half-rounds." The half-rounds are rod-
like tools that start thin on the top, and become larger on
the bottom. Cayea took two of the half-rounds together and slid
them into every other pre-drilled hole. Then he took the wedge
and put it between the half-rounds, and pounded the half-
rounds into the pre-drilled holes until the blocks were fully
cracked. Exhibit Nos. P-11, 12 and 13 are illustrations of the
blocks of granite viewed from different angles, and demonstrates
how the accident occurred.
Following the above procedure, Cayea split the first block
(Block No. 1 as depicted in the diagrams). Then he
similarly split another block (Block No. 3 as indicated in
Exhibit P-11),[3] leaving a larger piece, and a smaller
piece (Block B).[4] According to Cayea, after he split
Block No. 3, it was stable. The larger piece from No. 1
was removed from the area leaving the smaller piece (Block
A), which remained upright.
Cayea proceeded to split the third block of granite
(Block No. 4 in diagrams Exhibits P-12 and 13). He began
using the half-rounds and wedges as he had done before, but
realized that he needed additional wedges. Cayea jumped
down from the block of granite he was working on, and walked
along the ground in front of Block A in order to retrieve
the wedges he needed. When Cayea came next to Block A, it
suddenly tipped over on top of him. It appears that Block B
had suddenly shifted and fell onto Block A which tipped over
and fell onto Cayea. Cayea sustained serious injuries to
both legs, which were subsequently amputated.
On March 15, 1993, Edward M. Blow, an MSHA Inspector,
inspected the subject site to investigate the accident that
had occurred on March 12. Prior to becoming an MSHA
Inspector, Blow had worked for a granite company for 25
years. One of the jobs he performed was splitting rocks.
Blow opined that Block B had been split from the longer
block, but had not immediately fallen, as it had been
connected by frozen material. Blow opined that because the
bottom of Block B extended 24 inches beyond the support
provided by the wooden block, and the top of Block B
extended 41 inches beyond that support (see Exhibit P-13),
the frozen bond between Block B and the earth was released
causing Block B to tip over, and hit Block A causing it to
fall on Cayea.
Blow issued a citation alleging a violation of 30 C.F.R.
� 56.3400, which provides that, "Prior to secondary breakage
operations, material to be broken, other than hanging
material, shall be positioned or ed to prevent movement
which would endanger persons in the work area. Secondary
breakage shall be performed from a location which would not
expose persons to danger."
In essence, it is Petitioner's position that the first
sentence of Section 56.3400 was violated because neither
Blocks A nor B were blocked to prevent a movement, which
endangered Cayea. Petitioner also alleges that the second
sentence of Section 56.3400, supra, was violated because
Cayea's work was not being performed from a location which
would not expose him to danger.
The blocking requirements of the first part of
Section 56.3400, supra, apply "prior to secondary breakage
operations." The safe location requirements of the second
sentence of Section 56.3400 pertain to the performance of
"secondary breakage." The regulations do not define the
term "secondary breakage". However, the plain language of
Section 56.3400 supra, makes it obvious that its intent is
to protect miners from the hazards associated with being
endangered by materials to be broken that were not
positioned or ed to prevent movement. This hazard was
clearly present in the splitting stage at issue, at least to
the same degree as that presented in the other breaking
operations that preceded the one at issue. The plain
language of Section 56.3400, supra, further manifests an
intention to protect miners from being exposed to danger
from secondary breakage being performed from a location
exposing them to danger. Clearly such a danger existed in
the instant splitting operation at least to the same degree
as that presented in the operations that had been performed
up to this point.[5] Although there was some material,
i.e., a wooden block, placed under Block No. 3, it was not
of a sufficient length under the base of Block B to have
prevented it from falling and knocking over and Block A,
which than led to Cayea's injuries.
I thus find that Respondent violated Section 56.3400, supra.
Within the framework of the above evidence, I find that
the violation was significant and substantial. I find that
a penalty of $157 is appropriate.
Avram Weisberger
Administrative Law Judge
Distribution:
James A. Magenheimer, Esq., Office of the Solicitor, U.S.
Department of Labor, 201 Varick Street, New York, NY 10014
(Certified Mail)
Steven R. McCown, Esq., Little, Mendelson, Fastiff & Tichy,
300 Crescent Court, Suite 600, Dallas, TX 75201 (Certified Mail)
/ml
**FOOTNOTES**
[1]: Initially the proposal also sought a penalty for the
violation of 30 C.F.R. � 50.10 (Citation No. 4079780).
Subsequently, the parties filed a joint motion for approval of a
settlement of this citation. By order dated June 23, 1994, Chief
Judge Merlin issued an order approving the settlement and
ordering dismissal of this citation. Subsequent to the filing of
the proposal, Petitioner filed a motion to amend the citation at
issue (No. 4079928) to change the standard allegedly violated from
30 C.F.R. � 56.16001 to 30 C.F.R. � 56.3400. On April 18, 1994,
Chief Judge Merlin issued an order granting the motion to amend.
[2]: The loaf is a piece of granite approximately 80 to 100
feet wide, 15 to 20 feet deep, and 15 to 20 feet high.
[3]: In response to direct examination, Cayea referred to the
three blocks of granite that he was splitting on the day of the
accident as first, second and third. These particular blocks are
marked as Nos. 1, 3 and 4, respectively, in the diagrams
(Exhibits P-11, 12 and 13).
[4]: Block B measured 51 inches wide across the top, but
tapered down to a width of only 34 inches at the bottom. It was
laying on top of a block of wood, 6 inches by 6 inches, that
extended only 10 inches lengthwise under Block B. The wooden
had been placed under No. 3 in order to make it level for proper
splitting.
[5]: The removal of a loaf from the ground or quarry is the
initial step in the operation which is followed by the splitting
of the loaf at the quarry site, and then further splitting at the
finishing yard. The latter breaking operation performed by Cayea
was thus secondary. (Reference is made to the common meaning of
the word secondary as set forth in Webster's New International
Dictionary, as pertinent, as follows: "2a: immediately derived
from something original, primary, or basic ... . f.1: not first
in order of occurrence or development... . 3a: of or relating
to the second order or stage in a series."