<DOC>
[DOCID: f:steele.wais]
STEELE BRANCH MINING
January 25, 1996
WEVA 92-953
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
January 25, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 92-953
:
STEELE BRANCH MINING :
BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners[1]
DECISION
BY: Jordan, Chairman and Marks, Commissioner[2]
This civil penalty proceeding, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)
("Mine Act" or "Act"), involves a citation issued by the Department
of Labor's Mine Safety and Health Administration ("MSHA") to Steele
Branch Mining ("Steele Branch") alleging a violation of 30 C.F.R.
§ 77.404(a).[3] Following an evidentiary hearing, Administrative
Law Judge George A. Koutras determined that Steele Branch violated the
cited standard and that the violation was significant and substantial
("S&S"),[4] and assessed a civil penalty of $4,500. 15 FMSHRC 1667
(August 1993) (ALJ). Steele Branch timely filed a petition for
discretionary review challenging the judge's finding of violation,
his conclusion that the violation was S&S, and the penalty assessed.
For the reasons set forth below, we affirm.
I.
Factual and Procedural Background
Steele Branch, owned by the Geupel Construction Company ("Geupel"),
operated the No. 927 surface coal mine, in Logan County, West Virginia.
On April 23, 1991, while Rayburn Browning operated the No. 9 road grader
(Caterpillar Model 16) used to maintain the haulage road, the grader's
engine stalled on a hill and the grader rolled backwards. Apparently
unable to control the vehicle, Browning jumped off and the grader ran
over him. Browning sustained fatal injuries.
On April 24, MSHA Inspector Donald Mills directed the inspection
and testing of the grader. The grader was equipped with a hydraulic
service braking system and a mechanically applied parking brake which
was also intended to function as an emergency brake. Tr. 184. The
service braking system is the primary system for stopping and holding
the machine. 15 FMSHRC 1695.
The inspector caused the brakes to be tested on approximately
a 9.5% grade with the participation of mechanics employed by the C. I.
Walker Machinery Co. ("Walker"), a Caterpillar dealer. Tr. 215. With
the grader engine running, the service brakes and the parking brake
functioned properly. Because the investigation revealed that the engine
had stalled, the grader's service brakes were also tested on level
ground with the engine turned off. Tr. 31, 212, 215. The tests
revealed that, with the engine turned off, only the first brake
application produced sufficient pressure to stop the grader. Tr. 217.
All successive brake applications produced zero pressure. Tr. 32, 75,
217-19, G. Ex. 5, R. Ex.5. The inspector concluded that a component of
the braking system, the "accumulator," was not functioning properly and
caused the defective condition.[5] Tr. 32-33, 41-42.
In addition, the tests showed that the parking brake was able
to hold the grader in place on a grade once the grader had been brought
to a stop. 15 FMSHRC at 1695. However, the tests did not establish
that the parking brake was capable of bringing the grader to a stop
if the grader were rolling free on a grade. Id. The inspector also
determined that the brake pressure gauge was defective. Tr. 55. On
April 29, Inspector Mills issued Steele Branch a citation alleging an
S&S violation of 30 C.F.R. § 77.404(a)[6] involving a moderate degree
of negligence.
The judge found that the grader engine quit for an unknown reason
while Browning was operating it. 15 FMSHRC at 1689. He determined
that the accumulator was defective and, applying the Commission's
"reasonably prudent person" test, concluded that the grader was unsafe
to operate within the meaning of section 77.404(a). Id. at 1696. The
judge also concluded that the violation was S&S and that moderate
negligence was involved, and assessed a civil penalty of $4,500. Id.
at 1701.
II.
Disposition
A. The Violation
Steele Branch contends that the grader's braking system as a
whole was functioning in compliance with industry standards and that,
even if the accumulator was not functioning in accordance with the
manufacturer's specifications, that fact alone did not render the
grader unsafe within the meaning of the cited standard, because
under the circumstances of this case "a reasonably prudent person"
would not have recognized "a hazard warranting corrective action."
S. B. Br. at 10.
The Secretary responds that substantial evidence supports the
judge's determination of violation. Sec. Br. at 4-9. The Secretary
maintains that the judge correctly applied the "reasonably prudent
person" test in concluding that the grader was unsafe. Id.
The Commission is bound by the terms of the Mine Act to apply
the substantial evidence test when reviewing an administrative law
judge's decision. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The term
"substantial evidence" means "such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November 1989),
quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
While we do not lightly overturn a judge's factual findings, neither
are we bound to affirm such determinations if only slight or dubious
evidence is present to support them. See, e.g., Krispy Kreme Doughnut
Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock
Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980).
1. The condition of the grader
The Caterpillar service manual called for the accumulator to
provide approximately five brake applications after engine shutoff.
A Walker mechanic's report indicated that "the number of brake
applications that is normally supplied by the accumulator with the
engine off is five applications." R. Ex. 5, attachment dated April 25,
1991. Steele Branch's brake expert appeared to concede that the
accumulator should have been repaired if it provided for only one
braking application. 15 FMSHRC 1692. Inspector Mills indicated that
an accumulator that provides for only three braking applications should
be repaired. Id. at 1696.[7] Steele Branch does not dispute the results
of MSHA's test of the grader's brakes showing that only one application
of brakes was possible with the engine off. We therefore conclude that
substantial evidence supports the judge's finding that the grader's
braking system only provided one service brake application after engine
stoppage because the brake accumulator, a "critical and integral
component" of the braking system, was defective. 15 FMSHRC at 1693,
1696.
2. Application of the "reasonably prudent person" test
In Alabama By-Products, 4 FMSHRC 2128 (December 1982), the
Commission held:
[I]n deciding whether equipment or machinery
is in safe or unsafe operating condition, . .
. the alleged violative condition is appro-
priately measured against the standard of
whether a reasonably prudent person familiar
with the factual circumstances surrounding
the allegedly hazardous condition, including
any facts peculiar to the mining industry,
would recognize a hazard warranting correc-
tive action.
4 FMSHRC at 2129.[8] In Ideal Cement Co., 12 FMSHRC 2409 (November
1990), the Commission elaborated on the test described in Alabama
By-Products:
[I]n interpreting and applying broadly worded
standards, the appropriate test is not
whether the operator had explicit prior
notice of a specific prohibition or
requirement, but whether a reasonably prudent
person familiar with the mining industry and
the protective purposes of the standard would
have recognized the specific prohibitions or
requirement of the standard.
Id. at 2416. See also Dolese Brothers Co., 16 FMSHRC 689, 694
(April 1994).
In concluding that Steele Branch violated the standard, the
judge expressly relied on the decisions which set forth the
reasonably prudent person test. Alabama By-Products, supra;
Ideal Cement Co., supra; Southern Ohio Coal Co., 13 FMSHRC 912
(June 1991). 15 FMSHRC at 1687-88. To support his conclusion
that the grader was unsafe within the meaning of section
75.404(a), the judge relied on the evidence indicating that a
fully charged accumulator should have provided the grader with
approximately five braking applications after the engine was shut
off, and that the accumulator in this case, which provided for
only a single braking application after engine shutoff, needed
repair. 15 FMSHRC at 1696. The judge, determining that the
record did not support respondent's claim that the parking brake
could also perform as an emergency brake, rejected Steele
Branch's claim that the parking brake rendered the grader safe.
Id. at 1695.
Invoking Alabama By-Products, Steele Branch argues on review
that it should be relieved of liability because a reasonably
prudent person would not have recognized that the grader was
hazardous. S. B. Br. at 10-21. Steele Branch bases this
contention on the presence of an operable parking brake. Id. at
14-19. Steele Branch maintains that the parking brake in this
case was also designed to serve as the emergency brake, and that
therefore the grader was in conformance with industry requirements
and may not be considered unsafe. Id. The Secretary agrees that
the Alabama By-Products test applies, and contends that the judge's
decision is faithful to it. Sec. Br. at 4-9.
Contrary to the view of the dissent, the question on review
is not whether Steele Branch should have recognized that a
grader's service brakes must provide for five braking applications
after engine shutoff (slip op. at 13-14). Rather, we examine
whether substantial evidence supports the judge's determination
that a reasonably prudent person would have recognized that a
grader that provided only one braking application after engine
shutoff was unsafe within the prohibition of the standard. See
Alabama By-Products, supra; Ideal Cement Co., supra.[9]
Substantial evidence supports the judge's conclusion that
the parking brake did not render the grader safe to operate
notwithstanding the condition of the accumulator. As the judge
pointed out, while the grader service manual refers to the parking
brake and the wheel brakes, "it does not use the term 'emergency'
brake." 15 FMSHRC at 1690. Similarly, the grader operation
maintenance guide "contains detailed information concerning the
parking brake but does not use the term 'emergency' brake." Id.
The Society of Automotive Engineers' ground vehicle standards for
braking performance for graders describe the parking brake system
as "the system to hold stopped machinery stationary." 15 FMSHRC at
1695 (emphasis omitted). Although respondent's expert witness offered
the opinion that the grader's parking brake was capable of stopping
the grader in an emergency, the judge found "no evidence that the
testing included allowing the grader to roll free on a grade and then
bringing it to a stop while it was rolling by activating the park brake."
Id.
We agree with the judge that the reasonably prudent person
would recognize the grader to be unsafe because "one can reasonably
conclude that in the event of unexpected engine failure, the first
instinct of the operator would be to attempt to stop the grader by
depressing the foot service brakes, the primary braking system designed
to stop the loader under operating conditions." 15 FMSHRC at 1696. In
the event of an engine failure, the ability of the equipment operator
to stop the grader safely is significantly impaired if only a single
brake application is possible. This conclusion is supported by
respondent's own expert witness, who confirmed that applying the foot
service brakes would also be his first reaction if a grader were rolling
downhill with the engine off. 15 FMSHRC at 1679.
We conclude that substantial evidence supports the judge's
conclusion that the grader was in an unsafe condition and, therefore,
in violation of the standard. Accordingly, we affirm the judge's
determination of violation.
B. Significant and Substantial
Steele Branch challenges the judge's affirmance of the S&S
finding, arguing in part that a serious injury was not a reasonably
foreseeable outcome of the violation here. S. B. Br. at 21-23. The
Secretary responds that substantial evidence supports the judge's
conclusion that, under the specific conditions at the mine, a reasonably
serious injury was reasonably likely to result from the violation.
Sec. Br. at 9-11.
A violation is S&S if, based on 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,
825-26 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January
1984), the Commission further explained:
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.
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).
Steele Branch's challenge relates to the third element of the
Mathies test, "a reasonable likelihood that the hazard contributed to
will result in an injury." Id. at 3-4. In relevant part, the judge
determined that:
the discrete hazard created by the failure of
the accumulator to provide for more than one
braking application with the engine off,
particularly where the grader is operated
over an inclined roadway with many curves,
presented a reasonable likelihood that the
hazard created would result in an injury . .
. of a reasonable [sic] serious nature.
15 FMSHRC at 1698.
We base our resolution of this issue "on the particular facts
surrounding the violation . . . . " Texasgulf, Inc., 10 FMSHRC 498,
501 (April 1988). We agree with the judge that, given the condition of
the grader, it was reasonably likely that a reasonably serious injury
would occur. The record establishes that the grader service brakes
provided only one brake application after engine shutoff although the
manufacturer's specifications call for approximately five brake
applications after shutoff. The grader was operated on a hilly, curved
road, thereby increasing the hazards associated with brake failure. In
fact, the equipment operator unsuccessfully attempted to stop the grader
after the engine stopped and sustained fatal injuries. Thus, substantial
evidence supports the judge's conclusion that the violation was S&S, and
we accordingly affirm.[10]
C. Civil Penalty
In challenging the civil penalty of $4,500, Steele Branch asserts
that the Secretary's delay in proposing the penalty was unreasonable
and prejudicial, that the judge's conclusion of moderate negligence was
erroneous, and that, since it is now out of business, no penalty should
be assessed.
1. Delayed proposal
Under section 105(a) of the Mine Act, the Secretary must notify
the operator of a proposed civil penalty "within a reasonable time
after the termination of such inspection or investigation" giving rise
to the citation or order. 30 U.S.C. § 815(a). Here, the citation
was issued on April 29, 1991 and terminated on June 19, 1991, but
notification of the proposed assessment was not forthcoming until
May 19, 1992. The operator alleges that this delay was prejudicial
because it was unable to call as a witness MSHA Inspector James Davis,
who had been indicted and tried for a criminal offense subsequent to
the investigation of the fatality. S. B. Br. at 24.[11]
Section 105(a) does not establish a limitations period within
which the Secretary must issue penalty proposals. See Rhone-Poulenc
of Wyoming Co., 15 FMSHRC 2089, 2092-93 (October 1993), aff'd, 57 F.3d
982 (10th Cir. 1995); Salt Lake County Rd. Dept., 3 FMSHRC 1714 (July
1981); and Medicine Bow Coal Co., 4 FMSHRC 882 (May 1982). In commenting
on the Secretary's statutory responsibility to act "within a reasonable
time," the key Senate Committee that drafted the bill enacted as the
Mine Act observed that "there may be circumstances, although rare, when
prompt proposal of a penalty may not be possible, and the Committee
does not expect that the failure to propose a penalty with promptness
shall vitiate any proposed penalty proceeding." S. Rep. No. 181, 95th
Cong., 1st Sess. 34 (1977), reprinted in Senate Subcommittee on Labor,
Committee, on Human Resources, 95th Cong., 2d Sess., Legislative History
of the Federal Mine Safety and Health Act of 1977, at 622 (1978).
Accordingly, in cases of delay in the Secretary's notification of proposed
penalties, we examine the same factors that we consider in the closely
related context of the Secretary's delay in filing his penalty proposal
with the Commission: the reason for the delay and whether the delay
prejudiced the operator.
The investigation report[12] is undated and there is no indication
whether the preparation of that report accounted for some of the 11
months that elapsed between termination of citation and issuance of
the proposed assessment. The Secretary has not offered any explanation
for his delay but does challenge the operator's claim of prejudice.
Sec. Br. at 13-15.
Concerning the reason for delay, we take official notice, as we
did in Rhone-Poulenc, of the Secretary's unusually high case load in
1992, and the resultant delay it caused in the penalty proposal process.
See 15 FMSHRC at 2094. The civil penalty involved here was prepared
in 1992, and we view that consideration as constituting adequate reason
for the delay. However, we caution the Secretary that our disposition of
this challenge is not an endorsement of unbridled Secretarial delay in
notifying operators of proposed penalties.
We further conclude, in agreement with the judge,[13] that
Steele Branch has failed to demonstrate that it was prejudiced by
the delay in notification. At no time has Steele Branch identified
how or why Inspector Davis's testimony would affect its case beyond
claiming that his unrelated criminal conviction "goes to his credibility."
Tr. 104. Inspector Davis was not a witness at the hearing, and nothing
prevented Steele Branch from calling witnesses to testify. We
accordingly affirm the judge's rejection of the operator's arguments
concerning delay.
2. Negligence
Steele Branch challenges the judge's finding of moderate
negligence. The operator argues that the accumulator was adequately
charged at the time of the accident and points out the manual's
statement that an accumulator which is fully charged will provide
approximately five braking applications. S. B. Br. at 24-25. According
to Steele Branch, the accumulator's failure was therefore not due to
any fault of the operator. Id. The operator further contends that
the accumulator may not have been defective, since its replacement did
not solve the problem, which required changing all four brake assemblies.
Id.
The operator's asserted reliance on the manual might have
some persuasive force if the record had disclosed that the persons
responsible for maintaining and repairing the grader were even aware
of the provision in question. In fact, the record discloses just the
opposite. In finding moderate negligence, the judge relied on the
admission of respondent's master mechanic that "he was unaware of the
service manual recommendation that the accumulator should provide
approximately five brake applications with the grader engine off[.]"
15 FMSHRC at 1700. Although William Roberts, the equipment manager
for Geupel pointed out that none of the manuals directed the user to
test the brake accumulator system for five applications after the engine
has been shut off, he described how such a test should be conducted and
admitted he had performed such tests in the past. 15 FMSHRC at 1674-75,
1693. The operator's failure to make sure its mechanics understood both
the manufacturer's specifications for the grader's brakes, as well as the
need to conduct the kind of test that would verify whether the grader was
performing according to these standards, indicates a lack of reasonable
care consistent with the judge's finding of moderate negligence.
The judge's negligence determination was also based on the
admission of equipment manager Roberts "that he was unaware of any
accumulator pressure checks ever being made for the grader, and had
no knowledge that the grader accumulator had ever been tested." 15
FMSHRC at 1700. Roberts's testimony provides support for the judge's
conclusion that the operator "had no method of prevention maintenance
which could have detected the condition prior to the accident." Id.
Accordingly, we conclude that substantial evidence supports the
judge's finding of moderate negligence and affirm that determination.
3. Effect of going out of business
We reject as unsupported Steele Branch's assertion that it
should be relieved of its civil penalty liability because it is no
longer in business. S. B. Br. 25-26. Beyond this bald statement, it
has provided neither the judge nor the Commission with any evidence
on this claim. See Spurlock Mining Co., Inc., 16 FMSHRC 697 (April 1994).
Accordingly, we affirm the judge's rejection of this argument.
III.
Conclusion
For the foregoing reasons, we affirm the judge's decision.
________________________________
Mary Lu Jordan, Chairman
________________________________
Marc Lincoln Marks, Commissioner
Commissioners Doyle and Holen, concurring in part and dissenting
in part:
We agree that substantial evidence supports the judge's
determination that the parking brake alone did not render the
grader safe to operate. 15 FMSHRC 1667, 1695 (August 1993)(ALJ); slip
op. at 6. We dissent, however, from the affirming Commissioners'
opinion that the administrative law judge appropriately applied the
reasonably prudent person test in determining whether Steele Branch
had violated 30 C.F.R. § 77.404(a)[14] and would remand for further
analysis of that issue.
The citation issued to Steele Branch alleged as follows:
The investigation of a fatal surface machinery (grader)
accident at this mine revealed that the Caterpillar
Grader . . . was not maintained in a safe operating
condition, in that based on the specifications of the
[manufacturer's manual,] the fully charged accumulator
provides for approximately five brake applications
after the diesel engine has been shut off. The
investigation revealed through testing that only one
brake application was provided after the diesel engine
was shut off.
G. Ex. 2 (emphasis added). The inspector testified that he had
relied on the manual provision in reaching his conclusion that
the grader was unsafe. 15 FMSHRC at 1691.
The judge, also relying on the service manual to the effect
that "a fully charged accumulator should provide approximately
five brake applications after the engine is shut off," concluded
that the grader's brake accumulator was defective, thereby
rendering the grader unsafe to operate. 15 FMSHRC at 1696.
Accordingly, he found a violation of 30 C.F.R. 77.404(a). Id.
On review, the operator challenges the judge's finding of
violation, asserting that, under the circumstances surrounding
the violation, the reasonably prudent person would not have
recognized a hazard warranting corrective action. PDR at 6.
The facts are largely undisputed. MSHA learned in its
investigation that Mr. Browning was an experienced and safe
grader operator, who conducted daily checks of his equipment and
reported all problems to the company mechanics. 15 FMSHRC at
1673; Tr. 98. On the day of the accident, Mr. Browning had shut
down the grader he usually operated because of a problem and was
operating the No. 9 grader in its place. 15 FMSHRC at 1673, Tr.
99-100. Apparently, during operation, the engine stalled, the
brakes failed, and Mr. Browning jumped from the vehicle and was
run over by the grader. R.Ex. 4 at 2-3; R.Ex. 5 at 1. The
grader came to a stop in an upright position, against the
highwall. 15 FMSHRC at 1668.
There are three manuals for the No. 9 Grader (Caterpillar
Grader Model No. 16, serial No. 49G915). The first is an
operation and maintenance manual (R.Ex. 6), which directs that
the accumulator precharge pressure be checked every 500 service
meter hours. Id. at 92. The second is a lubrication and
maintenance guide (R.Ex. 8), which directs that the accumulator's
nitrogen precharge pressure be checked "when required." Id. at
9. The third is a service manual (R.Ex. 9), which is used by
mechanics who are making major repairs on the machine (Tr.147)
and which indicates that, at 70 degrees Fahrenheit, the
accumulator is fully charged at 600 pounds per square inch
("psi") and that "[f]ully charged, the accumulator provides for
approximately five brake applications after the diesel engine has
been shut off." R.Ex. 9 at Group 70, p. 1 (issued 3-65). The
service manual also contains detailed instructions for checking
the pressure in the accumulator by using a shutoff valve, gauge,
hose and chuck. Id. at Group 100, p.1. It contains no
indication that the pressure in the accumulator is to be tested
by repeated brake application after engine shutoff or that brake
applications are part of the test procedure of the braking
system. See R.Ex. 9. Nor do the other manuals contain such
information. See R.Ex. 6, 8.
On the basis of the service manual provision stating the
expected performance of the brakes after engine shutoff, MSHA
charged that Steele Branch violated section 77.404(a), despite
the fact that the accumulator, when tested after the accident,
was fully charged with a nitrogen precharge reading of 600 psi,
as required by the service manual. 15 FMSHRC at 1672, 1675; Tr.
75-76, 151; R.Ex. 5 at 5, 8; R. Ex. 9 at Group 40, p. 1 (issued
4-65).[15]
The Commission has held that a safety standard cannot be "so
incomplete, vague, indefinite or uncertain that [persons] of
common intelligence must necessarily guess at its meaning and
differ as to its application." Alabama By-Products Corp., 4
FMSHRC 2128, 2129 (December 1982) (citation omitted). The
Commission has determined that adequate notice of the
requirements of a standard is provided if a "reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific
prohibition or requirement of the standard." Ideal Cement Co.,
12 FMSHRC 2409, 2416 (November 1990); Energy West Mining Co., 17
FMSHRC 1313, 1318 (August 1995).
The affirming Commissioners assert that the judge determined
that a reasonably prudent person would have recognized that the
grader had been rendered unsafe. Slip op. at 6. We disagree.
In his decision, the judge referred to the Commission's
reasonably prudent person test. 15 FMSHRC at 1687. In our
opinion, however, he failed to apply that test to ascertain
whether Steele Branch, despite having a grader accumulator that
was properly charged in accordance with the service manual,
nevertheless should have recognized a "hazard warranting
corrective action," Alabama By-Products, 4 FMSHRC at 2129, and
should have recognized that it was also required to assure that
it had approximately five brake applications after engine
shutoff.
We note that the affirming Commissioners, in stating that
the service manual may be considered only in determining the
level of negligence but not in determining the violation, slip
op. at 6 n.9, have overlooked the fact that the citation in this
case was expressly based on the service manual's representation
of five brake applications. G.Ex. 2. Moreover, the scheme of
liability without fault set forth in the Mine Act does not
override the due process protections of the Constitution. "Laws
must `give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly.'" Energy West, 17 FMSHRC at 1318, quoting Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972). The case relied on
by the affirming Commissioners, Fort Scott Fertilizer - Cullor,
Inc., 17 FMSHRC 1112, 1115 (July 1995), involved a challenge by
the Secretary of Labor to a judge's determination that employee
misconduct was a defense to a violation. No notice issues were
raised.
For the foregoing reasons, we would remand the proceeding
for application of the Commission's reasonably prudent person
test.
______________________________
Joyce A. Doyle, Commissioner
______________________________
Arlene Holen, Commissioner
**FOOTNOTES**
[1]: Commissioner Riley assumed office after this case had
been considered and decided at a Commission decisional meeting.
A new Commissioner possesses legal authority to participate in
pending cases, but such participation is discretionary. Mid-
Continent Resources, Inc., 16 FMSHRC 1218, n.2 (June 1994). In
the interest of efficient decision making, Commissioner Riley has
elected not to participate in this matter.
[2]: Chairman Jordan and Commissioner Marks vote to affirm
the judge's decision. Commissioner Doyle and Commissioner Holen
would remand this matter to the judge. In Pennsylvania Electric
Co., 12 FMSHRC 1562, 1563-65 (August 1990), aff'd on other
grounds, 969 F.2d 1501 (3d Cir. 1992), the Commission determined
that the effect of an evenly split vote, in which at least two
Commissioners would affirm a judge's decision, is to leave the
decision standing as if affirmed. Accordingly, the vote of
Chairman Jordan and Commissioner
Marks to affirm the judge's decision is the Commission's
disposition.
[3]: Section 77.404(a) provides:
Mobile and stationary machinery and equipment
shall be maintained in safe operating
condition and machinery or equipment in
unsafe condition shall be removed from
service immediately.
30 C.F.R. § 77. 404(a).
[4]: 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 . . . ."
[5]: The accumulator is described in the service manual as:
the pressure source for brake actuation. Its
accumulation of oil, under nitrogen pressure,
is released to apply the brakes whenever the
brake pedal is depressed . . . . Fully
charged, the accumulator provides for
approximately five brake applications after
the diesel engine has been shut off.
G. Ex. 3, R. Ex. 9.
[6]: The citation stated:
The investigation of a fatal surface machinery
(grader) accident at this mine revealed that
the Caterpillar Grader involved, Model No. 16,
serial No. 49G915, was not maintained in a
safe operating condition, in that based on the
specifications of the manufactor (sic) the
fully charged accumulator provides for
approximately five brake applications after
the diesel engine has been shut off. The
investigation revealed through testing that
only one brake application was provided after
the diesel engine was shut off. Also, the
brake pressure gauge, located on the
instrument panel in the cab of the grader
(Company No. 03009) was found to be
inoperative. . . .
G. Ex. 2.
[7]: Respondent argued that MSHA's post-accident
investigation did not reveal the condition of the grader at the
time of the fatality since the braking system might have been
damaged in the accident. 15 FMSHRC at 1693. The judge considered
but rejected this argument, concluding that "[t]he credible and
unrebutted testimony of Inspector Mills reflects that there was no
collision damage to the loader braking system as a result of the
accident . . . ." Id. The judge pointed out that "respondent's
accident report reflected that the only damage to the grader was a
cracked rear cab glass and two broken engine mounts." Id.
Substantial evidence supports the judge's finding that the
accident itself did not render the accumulator faulty.
[8]: The underground coal standard addressed in Alabama By-
Products, 30 C.F.R. § 75.1725(a), contains the same text found in
section 77.404(a), the surface coal standard involved here.
[9]: Our colleagues also suggest that, in applying the
reasonably prudent person test, the judge should have examined
whether the reasonably prudent person would have recognized the
existence of a hazard "despite having a grader accumulator that
was properly charged in accordance with the service manual." Slip
op. at 13-14. Although the operator's purported reliance on the
service manual is a factor that may be considered in determining
the level of negligence for purposes of assessing the penalty, see
section C.2. infra, it has no bearing on whether the operator
violated the standard. As we have frequently had occasion to
observe, the Mine Act imposes liability without regard to fault.
E.g., Fort Scott Fertilizer - Cullor, Inc., 17 FMSHRC 1112, 1115
(July 1995).
[10]: We reject Steele Branch's argument that its violation
was not S&S because it ceased mining operations subsequent to the
violation at issue here.
[11]: Steele Branch mistakenly refers to section 105(d) of
the Mine Act, 30 U.S.C. § 815(d).
[12]: G. Ex. 5.
[13]: 15 FMSHRC at 1701.
[14]: 30 C.F.R. § 77.404(a) provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from
service immediately.
[15]: In fact, even after a new, fully charged accumulator
was installed on the grader, the service brakes still
provided only one application. 15 FMSHRC at 1675; Tr.
151-53.