Pittsburg and Midway Coal, Mining Company-York Cnyn Complex

Plain-English summary

Pittsburg and Midway Coal operated the York Canyon Underground Mine, where MSHA cited an explosives truck with a nonfunctioning backup alarm. Judge John J. Morris found that the truck's rear view was obstructed by explosive boxes, so the pickup-truck exception in 30 C.F.R. § 77.410(a) did not apply. He also found that workers worked near and behind the truck while handling blasting materials, making the violation significant and substantial because a worker could be struck and seriously injured or killed. The citation was affirmed, and a $200 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.410(a)
• Outcome: Citation No. 3243236 was affirmed, and a $200 civil penalty was assessed.
• Key point: A pickup-style truck is not exempt from the backup-alarm requirement when equipment or materials obstruct its rear view.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. PITTSBURG AND MIDWAY COAL
DDATE:
19940321
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                  1244 SPEER BOULEVARD #280
                    DENVER, CO 80204-3582
              (303) 844-5267/FAX (303) 844-5268

                          March 21, 1994

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 91-197-A
Petitioner : A.C. No. 29-00845-03540
:
v. :
: York Canyon Underground Mine
PITTSBURG AND MIDWAY COAL, :
MINING COMPANY-YORK CNYN :
COMPLEX, :
Respondent :

                       DECISION AFTER REMAND

Before: Judge Morris

 After the remand of the above case, the parties were granted

an opportunity to file supplemental briefs.

 The Secretary declined to file a supplemental brief but

stated in a letter filed on December 14, 1994, that the truck in
question did not have an "unobstructed rear view" and that an S&S
designation should be affirmed.

 Respondent filed a statement in lieu of a supplemental brief

and relied on its petition for discretionary review filed with
the Commission.

 In its remand of Citation No. 3293236 the Commission stated

that the Judge relied on an outdated standard.(Footnote 1) The
updated standard provides as follows:

1 77.410 Mobile equipment; automatic warning devices.

       Mobile equipment, such as trucks, forklifts, front-end
        loaders, tractors and graders, shall be equipped with
        an adequate automatic warning device which shall give
        an audible alarm when such equipment is put in
        reverse.

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Section 77.410

        (a) Mobile equipment such as front-end loaders,
      forklifts, tractors and graders, and trucks, except
      pickup trucks with an unobstructed rear view, shall be
      equipped with a warning device that--

             (1) Gives an audible alarm when the equipment
      is put in reverse; ... .

 The issues here are whether Pittsburg and Midway ("P&M")

violated the regulation and, if so, was the violation S&S. If
a violation occurred, what penalty is appropriate?

 MSHA INSPECTOR DONALD JORDAN issued Citation No. 3243235

because P&M's explosives truck had a non-functioning backup
alarm.

 He further opined that pickup trucks are required to have a

backup alarm if vision is not clear to the rear.

 The updated standard provides an exception to the require-

ment for audible alarms on mobile equipment. The exception ex-
cludes from coverage "pickup trucks with an unobstructed rear
view."

 MICHAEL KOTRICK, P&M safety manager, identified photographs

that show a relatively clear view looking to the rear of the ex-
plosives truck. (See R-1, R-2, R-3). In his opinion, the wire
mesh on the truck permits a greater "see through" than does a
standard pickup truck with an ordinary tailgate.

 It is true that Exhibits R-1 and R-2 show a relatively clear

view to the rear. This relatively clear view is the result of a
see-through wire mesh screen in lieu of a solid metal tailgate on
most pickup trucks. However, the regulation requires "an un-
obstructed(Footnote 2) rear view." The rear view of P&M's truck
is at least partially obscured by explosive boxes on each side of
the truck bed. (Exhibits R-2 and R-3 show the boxes.)

 The boxes are explosive magazines used to transport detona-

tors, boosters, primer cord, etc. They extend 2/3ds of the
length of the truck bed from the cab towards the rear. (Tr. 60,
61). Each storage compartment is 2 to 2.5 feet wide. The bed of
the truck is 4 to 6 feet wide and the width of the truck bed
between boxes is 4 feet. (Tr. 82, 83).

2 "Unobstructed" means "not obstructed, clear, unhindered [an view]."
Webster's Third New International Dictionary, unabridged, 1976, at 2505.

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The above uncontroverted facts establish the view to the rear was not
"unobstructed." Accordingly, the exception in Section 77.410(a) does not
apply.

 A further issue to be determined is whether the violation was "S&S." A

violation is properly designated as being "S&S" "if, based on the particular
facts surrounding that violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or an illness of a
reasonably serious nature." Cement Division, National Gypsum Co., 3 FMSHRC
822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission 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.

 Following the above criteria, it appears there was an

underlying violation of Section 77.410.

 Further, there was a discrete safety hazard contributed to

by the violation.

 In its appeal, P&M asserts the Judge failed to address

whether the violation presented a reasonable likelihood of injury
and failed to address how the relatively clear rear view would
bear upon the risk of injury.

 The third facet of the Mathies formulation is established by

these facts: The truck was in use in the pit. (Tr. 17-18). The
workers were off-loading explosives. (Tr. 18). Inspector Jordan
testified he could not see anything from a point 8 to 10 inches
below the waist of the man shown in Exhibit P-9. (Tr. 19).
Workers were exposed to the hazard since they were off-loading
explosives in preparation for charging the holes. This occurred
in the area behind the truck. (Tr. 20-21). There are always
workers around the truck. (Tr. 21). The workers take priming
materials off the truck and put the materials into the hole.
(Tr. 21-22). After they put the priming materials into the hole,
they kick the dirt in and curl up the cords. Normally, they must
kneel to do this and they are behind the truck. (Tr. 22).

 Contrary to Inspector Jordan's testimony, Mr. Kotrick, P&M's

manager for safety, testified that kneeling by workers is not

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part of the procedure in drilling and blasting.(Footnote 3) In
addition, backing up the explosives truck to a hole is not
standard proce- dure. (Tr. 61-62). Finally, the truck is
stationary, does not straddle any holes, and boosters are hand-
delivered. (Tr. 62, 63).

 I am not persuaded by Mr. Kotrick's testimony. Workers do

not always follow "standard procedure." Further, I do not find
it credible that workers could prepare a hole for blasting (as
described here) without kneeling. In addition, the explosives
truck is not always stationary as its very purpose is to deliver
explosives to the blasting site. Finally, Mr. Kotrick's testi-
mony does not reduce the activities by the workers in close
proximity to the truck.

 The credible evidence establishes the third element of

Mathies.

 The relatively clear view to the rear (as a result of the

mesh screen) does not affect the S&S designation. The explosive
boxes on each side substantially obstruct the rear view. A
worker kneeling behind the truck could be out of sight and in
danger of being run over.

 The fourth element of the Mathies formulation is apparent.

If a truck backed over a worker, the result would reasonably be a
fatality or an injury of a reasonably serious nature. In sum, I
note that, based on MSHA's experience, there have been many fatal
accidents or serious injuries from violations of this type.
(Tr. 20).

   In sum, I agree with Inspector Jordan that the violation was

S&S.

 For the foregoing reasons, Citation No. 3243236 should be

affirmed.

                       CIVIL PENALTIES

 Section 110(i) of the Act mandates consideration of certain

criteria in assessing appropriate civil penalties.

 1.   P&M is a large operator. (Stip.    5).

3 I credit Mr. Jordan's testimony that he observed the workers putting
priming materials into the hole and kneeling to curl up the cords. (Tr. 22).

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2. The assessment of a civil penalty in this case will not affect
P&M's ability to continue in business. (Stip. 3).

 3.   P&M's previous adverse history at York Canyon Surface Mine, as

evidenced by Exhibit P-3, indicates P&M paid penalties for 43 violations in
the period between March 12, 1989, and February 21, 1991.

 4.   P&M was negligent as it should have known the backup alarm was

inoperative.

 5.     The gravity of the violation has been discussed under the S&S

issues.

 6.    P&M demonstrated good faith in achieving prompt abate- ment of the

violation.

 In view of the statutory criteria, I believe a penalty of $200.00 is

appropriate.

   Based on the foregoing findings, I enter the following:

                            ORDER

 In Docket No. CENT 91-197-A, Citation No. 3243236 is AFFIRMED and

penalty of $200.00 is ASSESSED.

                            John J. Morris
                            Administrative Law Judge

Distribution:

William E. Everheart, Esq., Deputy Regional Solicitor, 525 Griffin Square
Building #501, Dallas, TX 75020 (Certified Mail)

Tana Adde, Esq., Office of the Solicitor, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

John W. Paul, Esq., PITTSBURG AND MIDWAY COAL MINING COMPANY, 6400 South
Fiddler's Green Circle, Englewood, CO 80111-4991 (Certified Mail)

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