Central Concrete Products

Plain-English summary

Central Concrete Products operated a sand and gravel site with a front-end loader and a primary screen work area. Judge John J. Morris found that the loader's inoperative back-up alarm violated the audible-warning requirement, and that broken boards and ladder rails did not provide safe access to the screen area. Both citations were affirmed. The judge assessed penalties of $20 for the alarm citation and $50 for the safe-access citation.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9087, 30 C.F.R. § 56.11001, 30 U.S.C. § 802(3), 30 U.S.C. § 820(i)
• Outcome: Both citations were affirmed, with total penalties of $70.
• Key point: An inoperative back-up alarm and broken access components supported separate affirmed violations.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CENTRAL CONCRETE
DDATE:
19900122
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 88-100-M
PETITIONER A.C. No. 29-00822-05505

      v.                            Santa Fe River Pit

CENTRAL CONCRETE PRODUCTS,
RESPONDENT

                           DECISION

Appearances: Terry K. Goltz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for the Petitioner;
William Donnelly, President, Central Concrete
Products Company, Santa Fe, New Mexico, pro se.
Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration (MSHA), charges respondent with violating
two safety regulations promulgated under the Federal Mine Safety
and Health Act, 30 U.S.C. 801 et seq., (the Act).

 After notice to the parties a hearing on the merits was held

in Santa Fe, New Mexico.

 The parties initially waived their right to file post-trial

briefs and requested a bench decision. While the judge was
rendering his decision respondent's president took issue with
some of the judge's findings (Tr. 41).

 In view of respondent's objection it was considered

appropriate to review the transcript. Accordingly, the bench
decision was vacated.

 The parties did not file post-trial briefs.

Jurisdiction

 As a threshold matter respondent contends its sand and

gravel operation is not subject to the Act.

 The statutes, the legislative history and the court

decisions are contrary to respondent's contentions.

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When Congress adopted the Mine Act it enacted this definition of
a mine:

      "Coal or other mine" means (A) an area of land
       from which minerals are extracted * * * (B) private
       ways and roads appurtenant to such area, and (C)
       lands * * * facilities, equipment * * * or other
       property * * * used in, or to be used in, or re-
       sulting from the work of extracting such materials
       from their natural deposits * * *, or used in, or
       to be used in the milling of such minerals,
       or the work of preparing coal or other minerals, . . . "
       30 U.S.C.   802(3).

 The Senate Committee, which was largely responsible for

drafting the final mine safety legislation, elaborated as
follows:

      The Committee notes that there may be a need to
      resolve jurisdictional conflicts, but it is the
      Committee's intention that what is considered to
      be a mine and to be regulated under this Act be
      given the broadest possible interpretation, and
      it is the intent of this Committee that doubts
      be resolved in favor of inclusion of a facility
      within the coverage of the Act.

      See S. Rep. No. 181, 95th Congress., 1st Sess. 14
      (1977), reprinted in Senate Sub-Committee on Labor,
      Legislative History of the Federal Mine Safety and
      Health Act of 1977 at 602 "Legis. Hist."

 Court and Commission decisions further support the view that

sand and gravel operations are subject to the Act. Compare:
Marshall v. Standt's Ferry Preparation Co., 602 F.2d 589 (3rd
Cir. 1979); Marshall v. Sink, 614 F.2d 37 (6th Cir. 1980);
Marshall v. Texoline Co., 612 F.2d 935 (5th Cir. 1980); Marshall
v. Nolichuckey Sand Co., Inc., 606 F.2d 693 (6th Cir. 1979), cert
denied _ U.S. _, 100 S. Ct. 1835; Arizona Crushing Co., 2
FMSHRC 3736 (1980).

 It is clear that sand and gravel operations are subject to

the Mine Act. Accordingly, respondent's threshold argument is
denied.

                  Citation No. 2867636

 This citation charges respondent with violating 30 C.F.R.

56.9087, which provides as follows:

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56.9087 Audible warning devices and back-up alarms.

        Heavy duty mobile equipment shall be
      provided with audible warning devices.
      When the operator of such equipment
      has an obstructed view to the rear, the
      equipment shall have either an automatic
      reverse signal alarm which is audible
      above the surrounding noise level or an
      observer to signal when it is safe to back up.

   Citation No. 2867636 reads as follows:

        The 988 CAT loader has an inoperative
        back-up alarm.

                        THE EVIDENCE

  WILLIAM TANNER, JR., a federal MSHA inspector and person

experienced in mining, has conducted about 1500 inspections (Tr.
6-8).

 On February 4, 1988, he inspected Central Concrete at its

Santa Fe River Pit. When he entered the site he conferred with
Harold Martinez, the foreman and crusher operator (Tr. 8).

 The company was crushing and screening river gravel (Tr. 9,

10, 26).

 The inspector issued a citation because a 988 CAT loader had

a disconnected back-up alarm (Tr. 10, 12, 17). The loader was
being used to load trucks in the river bed (Tr. 13). The loader
has blind sports. If the operator turns to his left and looks
back he has a blind spot to his right. Conversely, if he turns
right and looks back, he has a blind spot to his left. The blind
spots are 25 to 30 feet and even further back (Tr. 14, Ex. P-5)

 In the inspector's opinion it was unlikely that an injury

would occur due to this condition (Tr. 17, 18). Further, he did
not consider the violation to be significant and substantial.

 Mr. Donnelly advised the inspector that he had personally

disconnected the alarm. The inspector charged the company with
moderate negligence because someone should have noticed the alarm
was not working (Tr. 18). Upon re-inspection he found the back-up
alarm had been re-hooked (Tr. 19).

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Citation No. 2867637

 This citation charges respondent with violating 30 C.F.R.

56.11001, which provides as follows:

             56.11001 Safe access.

        Safe means of access shall be provided
        and maintained to all working places.

   The citation reads as follows:

        A safe means of access was not provided
        to the primary screen work area.

 MSHA Inspector WILLIAM TANNER, JR. observed that two boards

used for a walkway were broken at one end. This condition was
caused by large rocks falling off the screen and breaking the
boards.

 Exhibit P-6 shows the main screen from the hopper. At the

time of the inspection the ladder (shown in Exhibit P-6) was
broken in the middle on the right-hand side. Mr. Martinez said
workers climb to the top of the screen to perform weekly
maintenance (Tr. 21, 22, 27). The two broken boards were used for
a walkway (Tr. 22).

  Foreman Martinez only shrugged his shoulders when the

witness asked him about the handrails (Tr. 19, Ex. P-6, P-7,
P-8).

 The inspector considered that an injury was unlikely. He

further considered the violation was not significant and
substantial. The negligence was moderate because the company
could have gotten a better ladder, repaired the two boards and
put up handrails (Tr. 23).

 At a re-inspection on February 10, 1988, the inspector

issued a 104(b) order because the condition had not been abated
(Tr. 24).

 In cross-examination the inspector agreed the front-end

loader was removing river gravel and loading it onto large trucks
(Tr. 26).

 Mr. Tanner indicated the 988 loader had an obstructed view

to the rear (Tr. 28).

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WILLIAM L. DONNELLY, testifying for the company, agreed the
back-up alarm was not working (Tr. 30). However, Mr. Donnelly's
view is that after a time workers will disregard and "tune out"
an alarm. Also an alarm can disturb the equipment operator (Tr.
30).

 Mr. Donnelly also indicated, regarding the safe access

issue, that some boards had been broken. However, Mr. Donnelly
didn't think a guard rail was needed (Tr. 31).

 TOD AGENBROAD was present during the inspection. However,

the inspector used his book (regulations) as a "Bible" instead of
as a guideline (Tr. 32).

 Mr. Agenbroad agrees there were some broken boards. But he

didn't remember if the ladder was broken. Mr. Agenbroad didn't
consider the access unsafe. But they corrected the problem by
adding a guardrail to the outside. He felt this caused
maintenance to be a lot more difficult (Tr. 33, 34).

 The witness didn't feel anyone in the area could hear the

back-up alarm unless he was real close to it. In addition, there
would be no one on the ground in danger of being struck by the
loader.

 The company did not keep a flagman to watch behind the

loader (Tr. 34, 35).

                         Discussion

 Concerning the failure to have a backup alarm: the inspector

indicated the alarm was inoperative and the view to the rear was
obstructed. Respondent's President, Mr. Donnelly, admits this
condition existed.

 Citation No. 2867636 should be affirmed since it is clear

that respondent violated the regulation.

 The failure to provide safe access to the primary screenwork

area is established by the uncontroverted evidence. Specifically,
everyone agrees that two boards and the side of the ladder used
for access were broken.

 During the bench decision Mr. Donnelly stated the company

did not admit the broken ladder was unsafe (Tr. 41). However, the
contrary opinions of witnesses Donnelly and Agenbroad are
rejected. Broken boards and broken side rails do not provide safe
access as contemplated by the regulation.

   Both citations herein should be affirmed.

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Civil Penalties

 Section 110(i) of the Act sets forth the criteria to be

followed in assessing civil penalties.

  The operator should be considered small. The proposed

assessment form indicates respondent produces 7,160 tons per
year.

 There was no evidence indicating how a penalty might affect

this operator's ability to continue in business.

 The operator's prior history is favorable since the company

was only assessed three violations in the two previous years.

 The operator was moderately negligent since the conditions

as to both violative conditions were open and obvious. These
conditions should have been observed and remedied.

 The gravity of each violative condition was moderate. It

appears there was minimal exposure to the company's workers.

 The company is entitled to the statutory credit for abating

the violative conditions alleged in Citation No. 2867636.

 On balance, I deem the penalties hereafter set forth in the

order of this decision are appropriate.

                          ORDER

 Based on the foregoing conclusions of law I enter the

following order:

 1. Citation No. 2867636 is affirmed and a penalty of $20 is

assessed.

 2. Citation No. 2867637 is affirmed and a penalty of $50 is

assessed.

                          John J. Morris
                          Administrative Law Judge