<DOC>
[DOCID: f:yo9571m.wais]
WESTERN MASSACHUSETTS BLASTING CORPORATION
February 23, 1996
YORK 95-71-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, D.C. 20006
February 23, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. YORK 95-71-M
Petitioner : A. C. No. 37-00070-05501 TMC
:
v. : J.H. Lynch & Sons Pit & Mill
:
WESTERN MASSACHUSETTS :
BLASTING CORPORATION, :
Respondent :
DECISION
Appearances: David Baskin, Esq.,Office of the Solicitor, U.S.
Department of Labor, Boston, Massachusetts, for
Petitioner;
Richard O. Lessard, Esq., Warren, Rhode Island,
for Respondent.
Before: Judge Merlin
This case is a petition for the assessment of civil penalties
filed by the Secretary of Labor against Western Massachusetts Blasting
Company under section 110 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. � 820. A hearing was held on December 12, 1995,
and the parties have submitted post hearing briefs.
Section 110(a) of the Act, 30 U.S.C. � 820(a), provides
that a mine operator of a facility covered under the Act where
a violation of a mandatory health and safety standard occurs,
shall be assessed a civil penalty. Where a violation is
proved, section 110(i), 30 U.S.C. � 820(i), sets forth six
factors to be considered in determining the appropriate
amount of a civil penalty which are as follows: gravity,
negligence, prior history of violations, size, ability to
continue in business, and good faith abatement.
The two alleged violations in this case were contained in
a citation and order issued under section 104(d)(1) of the
Act, 30 U.S.C. � 814(d)(1). That section provides that
where there is a violation that is both significant and
substantial and due to unwarrantable failure, a citation
should be issued containing such findings. If within 90
days the inspector finds another violation due to unwarrantable
failure, a withdrawal order shall be issued.
Section 56.6202 of the Secretary's mandatory standards,
30 C.F.R. � 56.6202 provides in pertinent part:
(a)(8)(i) Vehicles containing explosive material shall be
secured while parked by having the brakes set.
(ii) Vehicles containing explosive material shall be
secured while parked by having the wheels chocked if
movement could occur.
(b)(1) Vehicles containing explosives shall have no
sparking material exposed in the cargo space.
Citation No. 4293626, dated September 28, 1994, charges a
violation of the mandatory standard in 30 C.F.R. �
56.6202(b)(1) for the following condition:
The blasting Superintendent, Robert Whitlock,
was in charge of and in fact did load 5 - 55 lb.
cases of Ireco ExGel 40 explosives into the
partially unlined bed of the Ford F-250 pickup
truck VIN - 1FTHF25HOLNB24031. The floor of the
pickup was lined with 3/4 " plywood as was the
tail gate. The steel sides of the bed were
exposed as was the steel powder box magazine
and the steel detonator magazine in the pickup
cargo bed. Also in the bed was a steel bladed
shovel. This vehicle was parked at the blast
site in the quarry. This is an unwarrantable
failure.
The inspector who issued the citation found the violation signif-
icant and substantial and due to unwarrantable failure.
Order No. 4293627, also dated September 28, 1994,
charges a violation of the mandatory standard in 30 C.F.R.
� 56.6202(a)(8)(i) for the following condition:
The parking brake was not set nor were the wheels
chocked to prevent movement of the Ford F-250 explosive
truck VIN - 1FTHF25HOLNB24031. This vehicle was
within 15' of a 25' high highwall. Vertical drop
would be about 25' from this bench to the bench below.
Explosives and detonators were in the magazines located
in the cargo area of the bed. Truck was parked on a
very slight grade in the quarry. There were several
Lynch employees within several hundred feet of this
area. This is an unwarrantable failure.
The inspector found this violation significant and
substantial and due to unwarrantable failure.
At the hearing the parties agreed to the following stipula-
tions (Tr. 9):
1. Respondent is an independent contractor who was
performing work at the subject site;
2. Respondent is a mine operator under section 3(d) of the
Federal Mine Safety and Health Act and the independent
contractor and the mine are subject to the jurisdiction of
the Act;
3. The administrative law judge has jurisdiction of this
case;
4. The inspector who issued the subject citation and order
was a duly authorized representative of the Secretary;
5. True and correct copies of the subject citation and
order were properly served upon the respondent;
6. Respondent demonstrated good faith abatement;
7. Respondent has no prior history of violations;
8. Respondent is small in size with 16 employees;
9. Respondent has had no fatalities or lost time injuries.
Citation No. 4293626
The inspector testified that when he visited the mine he
saw the blasting supervisor sitting in a pickup truck near the
blast site (Tr. 24). The supervisor had just finished
loading a shot and was doing paperwork as he sat in the cab
of the truck (Tr. 22-23, 80). The inspector saw five
cardboard cases filled with sticks of dynamite in the bed of
the truck. The explosives were EX-Gel 40 consisting of
blasting powder with nitroglycerine and ammonium nitrate
(Tr. 24-26). One of the boxes did not have a lid (Tr. 26).
The bed of the truck and the tailgate were lined with
plywood, but the steel sides were exposed (Tr. 26). The
inspector was of the opinion that if the truck were in
motion, the sides, magazines, and shovel would present a
sparking hazard (Tr. 27-29). The movement of the truck
could cause the shovel to hit either the sides of the
pickup's bed or the magazines, thereby creating a spark
which could ignite the explosives (Tr. 28-29). A spark
also could have occurred when the shovel was placed in the
truck bed (Tr. 29). The danger was that the spark could
ignite the explosives in the cardboard boxes (Tr. 31). If
the truck did not move, detonation would be very unlikely
(Tr. 66). According to the inspector, the individuals in
the immediate area were the foreman and his helper (Tr. 27).
The situation was abated when the foreman put the explosives
in the magazines (Tr. 31-32).
The blasting supervisor agreed that the explosives were
in cardboard boxes in the bed of the truck (Tr. 80). The
shovel had been used in preparing the blast and was not in
the bed of the truck when he put the explosives there (Tr.
93, 80-81). He was not aware the shovel was there (Tr. 80).
When he finished the paperwork, he intended to put the
explosives in the magazines (Tr. 80, 90-91).
There is, therefore, no conflict over the conditions and
practices which the inspector found. However, a conflict
exists with respect to whether the supervisor intended to
drive to the next blasting site before he put the explosives
in the magazines. The inspector testified that the
supervisor told him that he was going to move to the next
blasting site without placing the explosives in the
magazines (Tr. 29-30, 55-57, 62-63). But the supervisor
maintained that before driving to the next site, he intended
to put the explosives in the magazines and said that is what
he does all the time (Tr. 82-83). After carefully observing
and listening to the witnesses, I find the testimony of the
supervisor more credible and accordingly find that he would
have placed the explosives in the magazines prior to going
to the next blasting site.
I have not overlooked the supervisor's admission that prior
to being cited he had moved the truck about thirty feet when
it was in the same condition as the inspector saw it (Tr.
57, 80, 91). The supervisor moved the truck so that its
underside would not become entangled with tubing being used
in connection with the blasting (Tr. 57-58, 60, 87). The
supervisor was trying to improve safety, but he was wrong in
thinking he could move the truck a short distance without
putting the explosives away (Tr. 87, 89-90, 92).
Nevertheless, I find that his candor in acknowledging his
actions enhances his overall credibility.
Section 56.6202(b)(1) of the regulations, quoted above, is
clear. Vehicles containing explosives shall have no
sparking materials in the cargo space. The exposed steel
sides of the truck, the magazines, and the steel shovel
could have sparked, setting off the exposed explosives.
Just throwing the shovel in the truck bed could have created
a spark. Accordingly, I find a violation existed.
The inspector found that the violation was "significant
and substantial" within the meaning of the Act. The Commission
has established a four part test to determine whether a
violation is significant and substantial. The Secretary
must prove (1) the existence of an underlying violation of a
mandatory safety standard; (2) a discrete safety hazard --
that is a measure of danger to safety; (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. National
Gypsum Company, 3 FMSHRC 822 (April 1981); Mathies Coal
Company, 6 FMSHRC 1 (January 1984); Peabody Coal Company, 17
FMSHRC 508 (April 1995).
The exposed explosives presented a measure of danger since
a spark could have been created, setting off the explosives.
However, the Secretary has failed to establish reasonable
likelihood because the inspector was not asked and did not
address the issues of whether the occurrence of an injury
was reasonably likely and whether a reasonably serious
injury would result. On this basis the finding of
significant and substantial is vacated because the Secretary
has not sustained his burden of proof. However, it is also
noted that the blasting supervisor's intent to put the
explosives away before moving to the next site precludes a
finding of reasonable likelihood. The inspector admitted
that detonation would be very unlikely if the truck did not
move (Tr. 66).
The violation is however, of some gravity. A violation can
be serious even though it does not meet the criteria
required for significant and substantial. Consolidation
Coal Company, 15 FMSHRC 34, 41 (Jan. 1993); Consolidation
Coal Company, 10 FMSHRC 1702, 1706 (December 1988); Columbia
Portland Cement Company, 10 FMSHRC 1363, 1373 (September
1983), See also, Youghiogheny & Ohio Coal Company, 9 FMSHRC
2007, 2013 (December 1987); Quinland Coals, Inc., 9 FMSHRC
1614, 1622 n.11 (September 1987). Here the exposed
explosives and the presence of sparking materials presented
a degree of danger, although the Secretary has failed to
prove reasonable likelihood and the facts do not show it.
As set forth previously, in order for a citation to be
issued under section 104(d)(1) of the Act, it must be both
significant and substantial and due to unwarrantable
failure. Since the Secretary has failed to sustained the
significant and substantial finding, the citation must be
modified from a 104(d)(1) citation to a 104(a) citation.
The inspector also determined that the operator's
negligence was high. I credit the statement of the blasting
supervisor that he was unaware of the shovel in the truck
bed and that the shovel was not readily visible (Tr. 80-81).
In addition, he intended to put the explosives in the
magazines before he drove to the next blasting site (Tr. 82-
83). Finally, this citation was the first issued to the
operator under the Act. The statement of the operator's
owner that the company has never received a citation from
the State or any other Federal agency, is undisputed (Tr.
101). This is not to say, however, that the operator is
without fault. It should have been aware of Federal laws
governing its activities. Under the circumstances I
conclude that the operator's conduct did not amount to high
negligence but is more properly characterized as ordinary
negligence.[1]
**FOOTNOTES**
[1]: Since the violation was not significant and
substantial, a finding on unwarrantability is not necessary to
modify the order. I do, however, note that the Commission has
determined that unwarrantable failure means aggravated conduct
constituting more than ordinary negligence. Emery Mining
Corporation, 9 FMSHRC 1997, 2004, (December 1987); Youghiogheny
and Ohio Coal Company, 9 FMSHRC 2007, 2010 (December 1987).
Therefore, even if the Secretary had met his burden with respect
to significant and substantial, the operator's conduct did not
rise to the level contemplated by Commission for unwarrantable
failure.
Citation No. 4293627
The inspector testified that he saw the blasting supervisor
a second time (Tr. 32, 72). There is no dispute that the
parking brake was not set (Tr. 32, 85, 87). The inspector
relied upon subsection (a)(8)(i) of section 56.6202 of the
mandatory standards, supra, which requires that vehicles
containing explosive materials must be secured while parked
by having the brakes set. Accordingly, a violation existed
with respect to the parking brake.
The narrative portion of the citation also describes the
failure to chock the wheels. Subsection (a)(8)(ii) of
section 56.6202, supra, requires that vehicles containing
explosives must have their wheels chocked if movement could
occur. The inspector did not cite that subsection but the
operator has raised no issue regarding lack of notice. I
find the operator was fully apprised of this charge. The
inspector and the supervisor agreed that the truck was
parked on a very slight grade (Tr. 32, 70, 86). They
disagreed on how the vehicle was parked. The inspector
testified that the truck was parked at an angle to the
highwall, but the supervisor said it was parked parallel
(Tr. 70, 85). The truck was in low gear (Tr. 86). Based
upon the evidence, I find that movement could have occurred.
The standard applies wherever there is a possibility of
movement, without reference to any degree of probability.
Based upon the fact that the truck was on a slight grade, I
find that movement could have occurred and conclude,
therefore, that a violation existed.
In view of the modification of the previous citation, the
subject citation must be considered as though it were the
initial 104(d)(1) citation. The inspector found the
violation significant and substantial within the meaning of
the Act. Under the interpretation adopted by the
Commission, the first two requirements to support the
inspector's characterization are present. A violation
existed. And there was a measure of danger, because if the
truck were to move and turn over, the explosives could
detonate (Tr. 34). However, the Secretary has failed to
prove reasonable likelihood because the inspector was not
asked and did not address whether the occurrence of an
injury was reasonably likely or whether it was reasonably
likely that a reasonably serious injury would result. On
this basis the finding of significant and substantial is
vacated because the Secretary has not sustained his burden
of proof. It is also noted that the very slight grade, the
parallel position of the vehicle, and that the vehicle was in
low gear would preclude a finding of reasonable likelihood.
Accordingly, in this instance also the Secretary has failed
to sustained the significant and substantial finding.
Therefore, the order must be modified from a 104(d)(1) order
to a 104(a) citation and a determination of unwarrantable
failure is again unnecessary.
With respect to the negligence finding, the blasting
supervisor testified that he forgot to set the brake because
he was upset over the first citation (Tr. 87, 88). The
inspector confirmed this (Tr. 33). The supervisor's
conduct, therefore, amounted to only a momentary lapse in
judgment which is explained, if not justified, by the
circumstances. Such behavior does not rise to the level of
high negligence as rated by the inspector. The degree of
negligence was ordinary.[2]
Determination of Appropriate Penalty Amount
As set forth above, under section 110(i) of the Act six
criteria must be taken into account in fixing the amount of
penalty. Findings with respect to gravity and negligence
for each of the violations have been made.
Another factor specified in section 110(i) is the effect
of a penalty upon the operator's ability to continue in
business. The operator has submitted evidence regarding its
financial situation. Due to the Rhode Island banking crisis
the operator lost its line of credit with a Rhode Island
bank (Tr. 105). Also, its present loan balance of $220,000
with another bank has been placed in collection (Tr. 109).
The operator's tax returns show losses of $25,507 in 1992
and $34,855 in 1993 (Op. Exh. O34; Tr. 109). Working drafts
from the operator's accountant show losses of $20,317 for
1994 and $45,419 for 1995 (Op. Exh. O34, Tr. 109). Based
upon the foregoing, I find that imposition of substantial
penalties would impair the operator's ability to continue in
business.
**FOOTNOTES**
[2]: For the reasons given in footnote 1, the
unwarrantability finding could not be upheld even if the
violation had been significant and substantial.
Also identified by the Act as a relevant factor is the
operator's history of prior violations. Here the operator
has no prior history. I recognize that the operator did not
obtain an MSHA I.D. number until the subject violations were
issued (Tr. 36-37). However, the fact remains that there is
no prior history and the Act directs that this be taken into
account in setting a penalty amount. In addition, the
evidence is uncontradicted that the operator received no
citations from the State. Again, these circumstances
militate against imposition of a heavy penalty.
It has been stipulated that there was good faith abatement
and that the operator is small in size.
In light of all the evidence and in accordance with applicable
provisions of the law, I determine that penalties of $125 be
assessed for the violation in No. 4293626 and $100 for the violation
in No. 4293627.
The operator should understand that these modest penalties
which represent substantial reductions from the original
assessments, are based in part upon the absence of a prior
history. This circumstance will, of course, not be present
in a future proceeding. It is the operator's responsibility
to familiarize itself with the requirements of the Act as
they apply to its activities. The operator's belief that it
is acting safely is not a defense to the charge of a
violation.
The post-hearing briefs filed by the parties have been
reviewed. To the extent the briefs are inconsistent with this
decision, they are rejected.
ORDER
It is ORDERED that the findings of a violation for Citation
No. 4293626 and Order No. 4293627 be AFFIRMED.
It is further ORDERED that Citation No. 4293626 and Order
No. 4293627 be MODIFIED to delete the significant and
substantial designations.
It is further ORDERED that Citation No. 4293626 be MODIFIED
from a 104(d)(1) citation to a 104(a) citation and to reduce
negligence from high to ordinary.
It is further ORDERED that Order No. 4293627 be MODIFIED
from a 104(d)(1) order to a 104(a) citation and to reduce
negligence from high to ordinary.
It is further ORDERED that a penalty of $225 be ASSESSED and
that the operator PAY $225 with 30 days of the date of this
decision.
Paul Merlin
Chief Administrative Law Judge
Distribution:
(Certified Mail)
David L. Baskin, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
One Congress Street, 11th Floor,
P.O. Box 8396,
Boston, MA 02114
Richard O. Lessard, Esq.,
P. O. Box 362,
Warren, RI 02885
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