<DOC>
[DOCID: f:y94-51m.wais]
Wehrle Quarry BUFFALO CRUSHED STONE
March 26, 1997
YORK 94-51-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
March 26, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 94-51-M
Petitioner : A. C. No. 30-00012-05522
:
v. :
:
Wehrle Quarry :
BUFFALO CRUSHED STONE, :
Respondent :
DECISION ON REMAND
Before: Judge Weisberger
On February 18, 1997, the Commission issued a decision
in this case (19 FMSHRC ___) in which it, inter alia,
remanded this matter to me for determination whether the violation
of 30 C.F.R. � 56.14109(a)[1] by Buffalo Crushed Stone, Inc.
("Buffalo"), was S&S, and assessment of a civil penalty. The
Commission further reversed my initial holding (16 FMSHRC 2154,
(October 1994)), that Buffalo's violation of 30 C.F.R.
� 56.11009[2] was not S&S, and remanded the matter for reassessment
of the civil penalty.
I. Violation of Section 14109(a).
A. Significant and Substantial
A "significant and substantial" 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 coal or other mine safety or
health hazard." 30 C.F.R. � 814(d)(1). A violation is
properly designated significant and substantial "if, based
upon the particular facts surrounding the 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 its interpretation of the
term "significant and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor 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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that 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). We have emphasized that, in
accordance with the language of section 104(d)(1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and
substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The record establishes that a portion of the stop cord at
issue had become slack, and had fallen two inches below a
conveyor belt. This condition, found by the Commission to have
been violative of Section 56.14109(a) supra, contributed to the
hazard of a miner who falls coming in contact with a moving
conveyor belt. Thus, the evidence establishes the first two
elements of S&S set forth in Mathies, supra. The next issue for
resolution is whether the Secretary established that the third
element set forth in Mathies, supra, i.e., the likelihood of an
injury producing event -- a miner falling in the area where the
stop cord was slack.
In general, the evidence adduced at the hearing relating to
the issue of S&S, and the likelihood of an injury consists of the
following testimony by the MSHA Inspector:
Q. Now, in terms of your evaluation of this condition,
you've indicated that injury would be reasonably
likely. What's the basis for that?
A. Any time the stop cord is not where it's supposed
to be, even for a short length of distance, you've got
the possibility of someone slipping and falling or
slipping and falling and not having immediate access to
either grab the cord and deactivate the equipment or to
automatically hit the cord during their fall on the way
down and deactivate the equipment. So over time,
although this was a short length of distance, over
time, if any stop cord is out of place, I believe
there's a reasonable likelihood that that could occur
and I marked it as such.
Q Q. You've also indicated that the type of injury
that could reasonably be expected would be lost work
days or restricted duty. What's your basis for that
conclusion?
A. An arm, for example, that's caught up between a
conveyor belt and the troughing that the belt rides on
could have devastating injury, burn type frictional
type injury to an arm, for example.
Q. You've indicated that the condition was significant
and substantial. What's your basis for that
conclusion?
A. In my judgment, a reasonable likelihood existed
because the cord was not intact everywhere along the
belt as it should be. With a reasonable likelihood and
with the possibility of a permanent injury, by
definition the violation was significant and
substantial.
Q. You've indicated that the number of persons
affected would be one. What's that based on?
A. If anyone were injured because of the stop cord
being out of place, it would be one person (Tr. 46-48).
In addition, the Inspector testified on cross-examination as
follows:
Q. Okay. In your opinion, if there was a gentleman on
that catwalk, a medium sized man or average sized,
somewhere between me and you I would guess, fell up
against that conveyor, the likelihood of him not being
able to pull that cord in your opinion is -- would be
what?
A. I think there would be a reasonable likelihood of
him not being able to pull the cord before becoming
entangled (Tr. 89).
Thus, the Inspector opined as to what could occur should
a miner fall, and not to be able to grab the stop cord.
However, no evidence was adduced regarding the likelihood of
a miner falling in the area of the cord that was cited.
There is no evidence in the record of the conditions in the
area which would have made a fall reasonably likely to have
occurred. I find that the Secretary has failed to establish
the third element set forth in Mathies supra. Accordingly,
I conclude that it has not been established that the
violation of Section 56.14109(a) supra was S&S.
B. Penalty
There is no evidence in the record that the Secretary
had, prior to the inspection at issue, communicated to
Buffalo her interpretation that Section 56.14109(a),
supra, requires that a stop cord be tight and located
"somewhere near the side edge of the belt to as much as
four inches above the side edge of the belt" (Tr. 44,
115). As such, the Secretary had not previously
communicated to Buffalo that a stop cord located below
the side edge of the belt, the condition cited herein,
would be considered a violation of Section 56.14109(a),
supra. I note that Section 56.14109(a), supra, does
not require a particular placement for the stop cord.
Hence, I find that Buffalo was not negligent to any
degree. As such, the penalty for this violation is to
be mitigated to a high degree.
According to the testimony of the Inspector, the type
of injury to be expected as result of their violation is
as follows: "An arm, for example, that's caught up
between a conveyor belt and the troughing that the belt
rides on could have devastating injury, burn type
frictional type injury to an arm, for example" (Tr.
47). I accept the Inspector's testimony in this
regard, as it was not contradicted or impeached. I
find that the level of gravity of this violation was
moderate. The condition cited was timely abated.
Considering the lack of Buffalo's negligence, I find
that a penalty of $20 is appropriate.
II. Reassessment of a penalty for the Violation of 30
C.F.R. � 56.11009
I take cognizance of the holding of the Commission that
this violation was S&S (Slip op. P. 7-8, supra). Further,
Buffalo did not impeach the Inspector's testimony that
should one fall on an inclined walkway that was not
provided with cleats, possible head injuries or
fractures of fingers or wrists can result. Thus, I
find that the violation was of a moderate level of
gravity. The Inspector could not determine how long
the cited conditions had existed. The Secretary did
not contradict or rebut the testimony of Buffalo's
witness Rashford that it was intended by Buffalo to
replace the cited catwalk. I find that Buffalo's
negligence was of a low level. I find that a penalty
of $50 is appropriate.
III. Order
It is ordered that within 30 days of this decision,
Buffalo pay a total civil penalty of $20 for the violation of
section 56.14109(a), and $50 for the violation of Section
56.11009, supra.
Avram Weisberger
Administrative Law Judge
Distribution:
William G. Staton, Esq., Office of the Solicitor, U.S. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail)
Salvatore A. Castro, Safety Director, Buffalo Crushed Stone,
Inc., 2544 Clinton Street,
P.O. Box 710, Buffalo, NY 14224 (Certified Mail)
/mh
**FOOTNOTES**
[1]:Section 56.14109 states, in relevant part:
Unguarded conveyors next to the travelways shall
be equipped with --
(a) Emergency stop devices which are located so
that a person falling on or against the conveyor can
readily deactivate the conveyor drive motor . . . .
[2]:Section 56.1109 states:
Walkways with outboard railings shall be provided
wherever persons are required to walk alongside elevated
conveyor belts. Inclined railed walkways shall be nonskid
or provided with cleats.