<DOC>
[DOCID: f:fldaniel.wais]
FLUOR DANIEL, INCORPORATED
July 30, 1996
SE 94-94-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
July 30, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. SE 94-92-M
:
FLUOR DANIEL, INCORPORATED :
BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners
DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801 et seq. (1994)
("Mine Act" or "Act"), raises the issue of whether Fluor Daniel, Inc.
("Fluor") violated 30 C.F.R. � 56.14101(a)(1) (1995).[1] Administrative
Law Judge Jerold Feldman concluded that Fluor did not violate the
section. 16 FMSHRC 2049, 2054 (October 1994) (ALJ). The Commission
granted the Secretary of Labor's petition for discretionary review,
which challenges the judge's vacation of the citation. For the
following reasons, we reverse the judge's decision.
I.
Factual and Procedural Background
On April 21, 1993, Steven Crapps, an employee of Fluor, was
operating a Komatsu forklift truck at the Ridgeway Mine, an open pit
gold mine located near Ridgeway, South Carolina. 16 FMSHRC at 2050-51.
At the top of the highwall, Crapps put the forklift into neutral, set
the parking brake, and shut off the engine. Id. at 2051. The forklift
started to roll forward and Crapps applied the brake pedal; however,
the brakes did not respond. Id. The forklift traveled approximately 15
feet down a 5 to 6 percent grade and pushed Johnny Ray, also an employee
of Fluor, over a berm whereupon he fell to a bench 86 feet below. Id. Ray
sustained fatal injuries. Id.
The Department of Labor's Mine Safety and Health Administration
("MSHA") began an accident investigation on the morning of April 22. Id.
That same day, MSHA issued a citation to Fluor alleging a significant and
substantial ("S&S")[2] violation of section 56.14101(a)(1)[3] for an
alleged defect in the service brakes. Id.; see Ex. P-6, at 4. On April 24,
the forklift was removed from the mine and taken to Greensboro, North
Carolina for further inspection and testing. 16 FMSHRC at 2051-52.
The forklift truck was equipped with an accumulator designed
to activate the service brake system with the engine off. Id. When
functioning properly, the accumulator forces accumulated brake fluid
into the service brake system, permitting effective operation of the
brake fluid pump for approximately five to ten depressions of the
brake pedal, which should stop and hold the forklift when the engine
is not running. Id. MSHA examined the service braking system with
the engine running and found that there was adequate hydraulic fluid
and pressure. Id. However, with the engine off, a pressure gauge
test of the accumulator indicated no pressure. Id. at 2052; Ex. P-6,
at 2.
Fluor contested the violation and, after an evidentiary
hearing, the judge vacated the citation. Construing section
56.14101(a)(1) in conjunction with 30 C.F.R. �
56.14101(b),[4] the judge stated that section (a)(1)
"relates to the service brakes' effectiveness in stopping
moving (in service) vehicles in that tests to support
violations of this mandatory standard are conducted on
moving vehicles." 16 FMSHRC at 2053-54 (emphasis added).
The judge explained that the service brake system functioned
adequately when the engine was running and thus the
Secretary failed to establish a violation of section
56.14101(a)(1). Id. The judge noted that 30 C.F.R.
� 56.14101(a)(3), requiring all braking systems to be
maintained in functional condition, was applicable to the
accumulator malfunction but the Secretary did not cite Fluor
under that section. Id. at 2054.
II.
Disposition
The Secretary argues that section 56.14101(a)(1), by its
plain terms, requires a service brake system to be capable
of stopping and holding moving equipment, regardless of
whether the equipment's engine is on or off. PDR at 8.
Additionally, the Secretary asserts that the Commission must
give weight to his interpretation of the regulations and
that his interpretation of section 56.14101(a)(1)
effectuates its purposes. Id. at 7-10.
Fluor counters that the judge correctly construed section
56.14101(a)(1) to apply only to the effectiveness of service
brakes on moving vehicles with engines running. F. Br. at
4-5. It asserts that adequate brakes had been installed,
that the standard provides the method and criteria for
testing under subsection (b), and that, because it was
stipulated that the brakes met the requirements of
subsection (b), the brakes did not violate the standard.
Id. at 7-8, 10-11. Fluor further contends that section
56.14101(a)(1) does not require that brakes once installed
be maintained in functional condition and that the Secretary
cited Fluor under the wrong provision of that standard. Id.
at 7-8, 12.
"Where the language of a statutory or regulatory provision
is clear, the terms of that provision must be enforced as
they are written . . . ." Utah Power & Light Co., 11 FMSHRC
1926, 1930 (October 1989); see also Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-
43 (1984). Section 56.14101(a)(1) provides: "Self-
propelled mobile equipment shall be equipped with a service
brake system capable of stopping and holding the equipment
with its typical load on the maximum grade it travels."
That section does not limit the braking requirement to
moving vehicles with engines running. Under its plain
language, the service brakes must be capable of stopping and
holding the equipment on the maximum grade it travels. The
uncontroverted evidence established that the forklift's
brakes failed to meet this requirement. 16 FMSHRC at 2051-
52. Thus, the judge erred in vacating Citation No. 4094231
and we reverse his determination that the Secretary failed
to establish a violation of section 56.14101(a)(1).
We reject Fluor's argument that section 56.14101(b) limits
the scope of subsection (a) and requires a different result.
Section 56.14101(b) relates only to the testing of service
brakes when there is "reasonable cause to believe that the
service brake system does not function, as
required . . . ." Section 56.14101(a)(1) does not state
that the tests contained in subsection (b) are the exclusive
means of determining the effectiveness of service brakes.
As the Notice accompanying the publication of this rule in
the Federal Register stated, "Testing would only be utilized
in those instances when there is disagreement about the
performance capabilities of the service brakes." 53 Fed.
Reg. 32,496, 32,505 (August 25, 1988). That the forklift's
brakes failed at the time of the accident and in subsequent
testing was not disputed. Therefore, MSHA properly cited a
violation of section 56.14101(a)(1). Moreover, even if
section 56.14101(b) were applicable here, it does not
specify that the effectiveness of brakes can only be
determined with the engine running. To the extent that the
judge read into section 56.14101 any of these additional
requirements, he erred.
In addition, even if the forklift's lack of braking
capability could have been cited under section
56.14101(a)(3) or 30 C.F.R. � 56.14100(b),[5] as Fluor
asserts (F. Br. 12), we conclude that the condition was
properly cited under section 56.14101(a)(1). A hazardous
condition may violate more than one standard and the fact
that MSHA determines not to issue citations under all
applicable sections does not render invalid the citations it
does issue. See Cyprus Tonopah Mining Corp., 15 FMSHRC 367,
378 (March 1993).
III.
Conclusion
For the foregoing reasons, we reverse the judge's vacation
of the citation alleging a violation of section
56.14101(a)(1). At the hearing, the parties stipulated that
a violation involving the failure to have operational
service brakes was properly characterized as S&S. 16 FMSHRC
at 2052. We remand for reassessment of penalty, including
consideration of the S&S nature of the violation.
Mary Lu Jordan, Chairman
Arlene Holen, Commissioner
Marc Lincoln Marks, Commissioner
James C. Riley, Commissioner
**FOOTNOTES**
[1]: 30 C.F.R. � 56.14101(a)(1), entitled "Brakes," states:
Minimum requirements. Self-propelled
mobile equipment shall be equipped with a
service brake system capable of stopping and
holding the equipment with its typical load
on the maximum grade it travels. This
standard does not apply to equipment which is
not originally equipped with brakes unless
the manner in which the equipment is being
operated requires the use of brakes for safe
operation. This standard does not apply to
rail equipment.
[2]: The S&S terminology is taken from section
104(d)(1) of the Act, 30 U.S.C. � 814(d)(1), which
distinguishes as more serious in nature any violation
that "could significantly and substantially contribute to
the cause and effect of a . . . mine safety or health
hazard . . . ."
[3]: In connection with the accident, MSHA also
issued an imminent danger order under 30 U.S.C. � 817(a)
requiring immediate removal of the forklift. 16 FMSHRC at
2051, 2054. Two other citations were issued against Fluor
alleging violations of 30 C.F.R. � 56.14101(a)(2), for a
defective parking brake, and 30 C.F.R. � 56.14100(a), for
inadequate inspection of the forklift. The judge affirmed
the order and the two citations. Id. at 2051, 2054-60. They
were not appealed and are not at issue before the Commission.
[4]: Section 56.14101(b), involving testing of
brakes, provides in part:
(1) Service brake tests shall be
conducted when an MSHA inspector has
reasonable cause to believe that the service
brake system does not function as required,
unless the mine operator removes the
equipment from service for the appropriate
repair;
(2) The performance of the service brakes
shall be evaluated according to Table M-1.
[5]: Section 56.14100(b) provides:
Defects on any equipment, machinery, and
tools that affect safety shall be corrected
in a timely manner to prevent the creation of
a hazard to persons.