Higman Sand and Gravel, Inc.
Higman Sand and Gravel, Inc. (FMSHRC CENT 95-261-M, CENT 95-267-M, CENT 96-30-M): Mixed citation results with $1,245 penalty
Apply this to your situation
This order from 1996 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Higman Sand and Gravel operated a sand and gravel mine and Screener Plant #1 in South Dakota. After a July 1995 inspection, Judge Arthur J. Amchan affirmed some guarding, handrail, records, seat-belt, horn, and service-brake violations, while vacating other citations and a section 104(b) order. He also affirmed several section 104(b) withdrawal orders after finding that the operator had refused to abate on time. The judge assessed individual penalties across three dockets, including $400 for a later seat-belt citation, and ordered payment of a total $1,245 civil penalty within 30 days.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.1000, 56.11002, 56.12028, 56.14100(b), 56.14107(a), 56.14130(g), 56.14132(a), 56.18002(a), 56.18010, and 56.9300(a)
- Outcome: The decision affirmed some citations and orders, vacated other citations and one order, and assessed $1,245 in total penalties across three dockets.
- Key point: The judge evaluated each cited condition separately, distinguishing violations that created a proven safety hazard from conditions the Secretary did not establish as violations or S&S.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 19, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-261-M
Petitioner : A.C. No. 39-00993-05514
v. :
: Docket No. CENT 95-267-M
HIGMAN SAND AND GRAVEL, INC., : A.C. No. 39-00993-05515
Respondent :
: Docket No. CENT 96-30-M
: A.C. No. 39-00993-05516
:
: Screener Plant #1
DECISION
Appearances: Kristi Floyd, Esq., Office of the
Solicitor, U.S. Department of
Labor, Denver, Colorado, for
Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar,
Goodwin, Gill & Lohr, Sioux
City, Iowa, for Respondent.
Before: Judge Amchan
Findings of Fact
On July 18, 1995, MSHA representative Lloyd Ferran inspected
Respondent’s sand and gravel mine in the southeast corner of
South Dakota. Two Higman employees were at the mine, Mark
Rasmussen, the foreman, who was feeding the hopper to the plant
with a front-end loader and Eldon Seely, who was loading customer
trucks with another front-end loader. Neither miner accompanied
Mr. Ferran as he inspected the plant area.
951
Page 2
952
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Docket No. CENT 95-261-M
Citation No. 4643516, unguarded chain drive and tail pulley
When inspecting the hopper feed conveyor, Inspector Ferran
discovered a chain drive and a self-cleaning tail pulley which
were not guarded. They were located underneath the hopper in an
enclosed area. There were doors that could close off the area
in which the drive and pulley were located, but these doors were
open on July 18. Inspector Ferran observed a shovel and fresh
foot prints near the tail pulley, which led him to conclude that
a miner had been in the area while the conveyor belt was running.
Foreman Rasmussen greased equipment in the area every morning
before turning on the equipment (Tr. 11-23, 169, 317-26, 372-73).
Ferran issued Citation No. 4643516 to Respondent, alleging
a significant and substantial (S&S) violation of 30 C.F.R.
'56.14107(a). This regulation requires the guarding of moving
machine parts that can cause injury. Section 56.14107(b), on
which Respondent relies in challenging the citation, exempts
moving parts that are at least seven feet away from walking or
working surfaces.
The inspector required termination (abatement) of the
citation by the next morning, July 19, 1995. When he arrived
at the worksite on the 19th, Foreman Rasmussen advised him that
he had been instructed not to abate this or any other citation
issued on July 18. Ferran waited until noon, then issued section
104(b) withdrawal Order No. 4643528 and left the worksite
(Tr. 24-26).
The next morning, July 20, 1995, the inspector returned and
found the plant operating. No action had been taken to terminate
the citation. After some discussions involving Respondent,
Ferran and MSHA’s headquarters office in Denver, the plant shut
down about noon. Respondent terminated the violations by
replacing the entire plant with other equipment (Tr. 30-33).
Respondent violated '56.14107(a)
The issue regarding the unguarded chain drive and tail
pulley is whether they could Acause injury@ within the meaning of
'14107(a), or whether there were seven feet away from walking or
Page 4
working surfaces, and thus exempt from the guarding requirement
under section 56.14107(b).
Respondent contends the regulation was not violated because
the only person who ever came within seven feet of the unguarded
chain drive and tail pulley was Foreman Rasmussen. More
importantly, it argues that Rasmussen only was in this area
before turning on the moving equipment. Each morning before
turning on the equipment he greased it and shoveled under the
tail pulley (Tr. 326). Nevertheless, exposure to moving parts
and injury was possible.
Although Rasmussen’s normal procedure may have made injury
unlikely, I believe that reliance on his practices does not
preclude injury--particularly from the unguarded tail pulley.
Rasmussen was asked if he ever shoveled while the tail pulley
was in operation. He responded, AYou can’t, cannot. You’d end up
with your arm when the shovel went in there.@ (Tr. 326).
I understand this to mean that you ordinarily do not shovel
while the tail pulley is moving because it is dangerous. I infer
that a situation may arise where material may build up under the
tail pulley while it is running. Under such conditions, one must
either turn all the equipment off or shovel with the pulley
running; otherwise, the conveyor belt will tear.
The record does not indicate that Respondent had a work
rule preventing shoveling when the machinery was in operation.
When Ferran visited the same site a month later, Rasmussen was
on vacation and Eldon Seely was in charge of the worksite.
The equipment was running (Tr. 175). Although, this was
different equipment than that cited in July, it convinces me
that Mr. Rasmussen’s routine did not eliminate the possibility
that someone might be injured by the unguarded tail pulley. I
therefore find a violation of the standard.
The Secretary has not established that the violation was S&S
The Commission test for a "S&S" violation, as set forth in
Mathies Coal Co., supra, is as follows:
954
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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.
I conclude that given the fact that Mr. Rasmussen was
normally the only person to enter the area in which the chain
drive and tail pulley were located, and that he routinely did
so only before the equipment was turned on, that it was not
reasonably likely that the hazard would have resulted in injury
in the normal course of mining operations.
Section 104(b) Order No. 4643528 is affirmed
Upon discovering a failure to abate, an inspector must apply
a rule of reason in determining whether to issue a section 104(b)
order or to extend the abatement date, Martinka Coal Co.,
15 FMSHRC 2452 (December 1993). I conclude that Inspector Ferran
acted reasonably in issuing the instant order.
On July 18, the inspector reviewed the citations and time
allotted to terminate them with Foreman Rasmussen. The latter
did not indicate that he would be unable to abate the citations
in the time period allowed by Ferran. On July 19, Rasmussen did
not tell the inspector that he needed more time to abate, he told
him that Respondent would not abate (Tr. 34-35). Moreover, on
July 20, when Respondent decided to comply with the abatement
requirements of this and other citations, it was able to do so
within a matter of hours.
I assess a $150 civil penalty for Citation No. 4643516
and Order No. 4643528
The Secretary proposed a penalty of $240 for the instant
citation and order. I assess a $150 penalty on the basis of the
penalty assessment criteria in section 110(i) of the Act.
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Given the fact that I deem the violation to be Anon-S&S,@
I believe a penalty of $50 would be appropriate for the original
citation, taking into account the low likelihood of injury
(gravity), the low degree of negligence of the original viola-
tion, the fact that Respondent is a small mine operator and the
absence of an indication that Respondent has a poor record of
MSHA compliance in the past. The parties have stipulated that
the proposed penalties will not compromise Respondent’s ability
to continue in business (Tr. 5).
I deem the degree of negligence to be low because I believe
that Respondent did have a reasonable good faith belief that its
procedures adequately protected its miners from the unguarded
moving machine parts. However, when a mine operator decides to
ignore the abatement requirement in an MSHA citation, it does so
at the risk that the citation will be upheld and that it may be
assessed much higher penalties for its failure to abate.
The sixth factor in assessing penalties under section 110(i)
is the good faith of the operator in rapidly abating a violation
once it is brought to its attention. When an operator refuses to
abate, and the original citation is affirmed by the Commission,
the provisions of section 110(b), providing for a civil penalty
of not more than $5,000 for each day during which the violation
continues, should be considered. In this case, I deem it appro-
priate to assess an additional $50 penalty for Respondent’s
failure to have abated the violation by the beginning of the work
day on July 19 and July 20, 1995.
Citation No. 4643517: Inadequate handrails on
an elevated platform
On July 18, Inspector Ferran observed an engine located on
a platform 11-12 feet above ground level. Mr. Rasmussen climbed
up a ladder each morning to turn on the engine and in the evening
to turn it off. Although there was a handrail and midrail on the
part of the platform furthest from the engine, the side of the
platform between the ladder and the engine was unguarded for a
horizontal distance of 1-1/2 feet. On the opposite side of the
platform, a distance of two feet horizontally was unguarded
(Tr. 36-41).
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Ferran issued Respondent Citation No. 4643517, alleging an
AS&S@ violation of 30 C.F.R. Section 56.11002. This regulation
requires that handrails be provided and maintained on elevated
crossovers, walkways, ramps and stairways. I find that the
regulation is applicable. The platform provided access to the
engine and therefore was an elevated walkway within the meaning
of the standard.
I conclude further that the Secretary has established a
violation, but not a S&S. It is possible, as claimed by
Inspector Ferran, that a miner could trip and fall off the
unprotected portion of the platform. However, I find that it
was not reasonably likely. The only task to be performed by
miners on the platform was to turn on the engine at the middle
of the platform. It is therefore unlikely that one would
accidently approach the unguarded portions of the edge of the
platform and fall off.
Penalty Assessment for Citation No. 4643517 and
section 104(b) Order No. 4643529
The Secretary proposed a $292 penalty for this citation and
the section 104(b) order issued when Respondent initially refused
to abate the citation. I assess a $150 penalty for reasons that
are essentially the same as those considered with regard to the
previous citation and order 1 .
Given the assessment criteria, other than good faith rapid
abatement, I would assess a $50 penalty for the original
citation. I would note, with regard to the negligence factor,
that Respondent did have a reasonable belief that its employees
were adequately protected from injury and that the platform was
in the same condition as when it was purchased (Tr. 327-29).
With respect to gravity, although injury was unlikely, the likely
result of an accidental fall of 11-12 feet would be death or
serious injury.
1
My consideration of the penalty criteria is essentially
the same for all the citations in these dockets unless
specifically noted. Similarly, my analysis as to the validity
of the section 104(b) orders will not be repeated unless it
differs from that concerning Order No. 4643528.
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As with the previous citation and order, I believe that
the appropriate penalty for Respondent’s unwillingness to abate
within the time period allowed by Inspector Ferran is a $50
per day additional penalty for both July 19, and July 20, 1995.
Therefore, considering the lack of good faith in rapidly abating
the original citation, I assess a total penalty of $150 for
Citation No. 4643517 and Order No. 4643529.
Citation No. 4643518: Unguarded V-belt(s)
On the engine located on the elevated platform discussed
above were two unguarded v-belts. One, the direct drive belt,
was located on the side of the engine, right at the edge of the
platform, approximately 1-2 feet about the platform. It is
clearly shown in the photographic Exhibits, G-3.
The other unguarded belt was on the engine’s alternator and
was located at the front of the engine, near the start/stop
button about 3-1/2 feet off the ground. It can be seen in the
bottom photograph of Exhibit G-3 and in Exhibit G-4 (albeit
mounted upside down).
Inspector Ferran issued Respondent Citation No. 4643518
which states:
The v belt on the direct drive unit was not guarded
adequately to prevent accidental contact with the pinch
point. This hazard was approximately one foot off the
landing, and extending to 1 2[.] employee (sic) are in
this area on a daily basis starting and stopping the
motor.
The citation initially alleged a non-S&S violation of
'56.14107(a), but was modified on July 20, 1995, to allege an
AS&S@ violation.
Inspector Ferran exhibited a great deal of confusion in
describing this citation at hearing. At first, he testified that
the citation referred to the direct drive belt. Then he recanted
and testified that the citation referred to the alternator belt
(Tr. 51-62). The inspector conceded that the direct drive belt
does not require a guard because its location precludes employee
contact while it is moving (Tr. 70).
958
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The Secretary’s counsel moved at hearing to amend the
citation to allege a violation with respect to both belts
(Tr. 64-65). Respondent opposed the motion, moved to dismiss the
citation and moved to exclude Exhibit G-4, which depicts the
alternator belt.
The citation clearly describes the direct drive belt. I
find no violation of section 56.14107(a) with respect to this
belt. Aside from Inspector’s Ferran’s concession, the record
establishes that the belt was started and stopped from the ground
and that it was not moving when Foreman Rasmussen was on the
elevated platform to start the engine (Tr. 339-42, 375-76).
It is a close question as to whether I should allow the
Secretary to amend Citation No. 4643518 to include the alternator
belt. Respondent claims prejudice in that it was not on notice
from the language of the citation that the absence of a guard on
the alternator belt was an issue in this proceeding. Ferran
claims that he discussed this belt with Rasmussen during the
inspection (Tr. 69). Rasmussen testified that Ferran never
mentioned the alternator belt to him (Tr. 339). I credit
Rasmussen’s testimony in this regard, because it is corroborated
by the language of the citation itself.
The Commission’s procedural rules do not address amendment
of pleadings. Therefore, the Commission looks for guidance to
the Federal Rules of Civil Procedure and particularly Rule 15,
Cyprus Empire Corporation, 12 FMSHRC 911, 916 (May 1990). The
portion of Rule 15 that is relevant to the instant proceeding
starts with the third sentence of Rule 15(b):
If evidence is objected to at the trial on the ground
that it is not within the pleadings, the court may
allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the
action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of
such evidence would prejudice the party in maintaining
To start the direct drive belt Rasmussen pushed the clutch with a
pole from the ground. To turn the belt off, he pulled a string
attached to the clutch from ground level (Tr. 339-342).
959
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the party’s action or defense upon the merits. The
court may grant a continuance to enable the objecting
party to meet such evidence.
See, J. Moore, Moore’s Federal Practice Par. 15.14, 20 ALR Fed
448.
When Respondent’s counsel prepared for the hearing, he did
not discuss the alternator belt with either Foreman Rasmussen or
Harold Higman, Jr., part-owner of Respondent (Tr. 338, 396-397).
Nevertheless, I conclude that Respondent is not substantially
prejudiced by the amendment. Mark Rasmussen was familiar enough
with the alternator belt to adequately defend Respondent against
the allegation that the absence of a guard violated section
56.14107(a).
Rasmussen testified that the alternator belt is recessed
approximately three inches inside the housing of the front of
the motor, but was not completely inside the housing. He was
able to recognize the location and configuration of the belt from
Exhibits G-3 and G-4. He testified that a miner would Ahave to
try hard@ to get caught in the belt. Finally, when asked if he
could lean up against the metal housing without Agetting in
trouble with the belt,@ Rasmussen responded, AI could but I don’t
know about the next guy... .@ (Tr. 343).
I conclude that Respondent had a sufficient opportunity,
through Rasmussen, to prove that the alternator belt was either
adequately guarded or posed no hazard to miners without a guard.
Therefore, I conclude that Respondent was not materially
prejudiced by the amendment, which is granted so that the
citation includes an allegation of lack of guarding of the
alternator belt. Further, I conclude that the record clearly
establishes a violation of section 56.14107(a) with regard to
this belt.
In allowing the amendment, I have also considered that while
the violative equipment was removed from service by Respondent,
it is possible that it will be returned to service. Given the
lack of material prejudice to Respondent from the amendment, I
believe the purposes of the Act are best served by imposing a
legal requirement to guard the alternator belt if this equipment
is used again.
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Citation No. 4643518 is affirmed as a non-S&S violation
and a $50 civil penalty is assessed.
Section 104(b) Order No. 4643530 is vacated
The record is insufficient to establish that there was a
reasonable likelihood of injury resulting from Respondent’s
failure to guard the alternator belt. The belt was partially
recessed in the housing of the engine motor and exposure to the
belt was limited to the brief period of time that Rasmussen or
another miner would turn the engine on or off (Tr. 42, 343). I
therefore find the violation to be non-S&S.
Respondent was also issued section 104(b) Order No. 4643530,
for its refusal to terminate this citation. Since the citation
does not accurately describe the violative condition, Respondent
cannot be fairly held accountable for its failure to immediately
guard the alternator belt. I therefore vacate Order No. 4643530.
Having considered the penalty criteria in section 110(i),
I assess a $50 civil penalty for Citation No. 4643518. In
assessing such a low penalty, I have placed great weight on the
fact that it is not clear the violation was even detected by
Inspector Ferran, which I think indicates that Respondent’s
negligence in not guarding the alternator belt was very low.
My consideration of good faith attempts at abatement and gravity
are included in my discussion of the AS&S@ issue and the section
104(b) order.
Citation No.4643519: Opening in cover of a
self-cleaning tail pulley
Inspector Ferran observed a two-foot by nine-inch opening in
the cover of a self cleaning tail pulley on the stacker conveyor
(Tr. 74-86, Exh. G-5). He then issued Citation No. 4643519 to
Respondent alleging a non-S&S violation of section 56.14107(a).
This citation is affirmed. Although there were no grease
fittings inside the opening of the cover, it was possible for a
person to trip, fall and get a hand in the tail pulley.
Moreover, although cleaning under this pulley was usually done
with a front-end loader, it could have also been done with a
shovel (Tr. 345-49).
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Ferran also issued section 104(b) Order No. 4643531 for
Respondent’s failure to timely abate this citation. Taking into
account the small likelihood of injury, I conclude that a $25
civil penalty is appropriate for the initial citation. An
additional $50 is assessed for the two days that the violation
continued after termination was required for a total penalty of
$75.
Citation No. 4643522: Failure to provide records
of continuity and resistance tests
On July 18, Inspector Ferran asked Foreman Rasmussen to
show him the continuity and resistance records of the plant’s
electrical grounding systems. No such records were provided to
Ferran, although some records of continuity and resistance tests
were kept at Respondent’s offices in Akron, Iowa, eight miles
from the Richland Pit. I credit Inspector Ferran’s testimony
that he was not told about the records at Akron (Tr. 218).
Ferran issued a non-S&S citation alleging a violation of
section 56.12028. That standard requires that continuity and
resistance testing of grounding systems be performed after
installation, repair, and modification; and annually thereafter.
It provides further that the most recent test results shall be
provided to an inspector upon request.
I conclude that the standard requires that the mine operator
bring the test results to the mine site, if the Secretary’s
authorized representative so requests. An operator who insists
that the inspector travel elsewhere is in violation of the
regulation. Moreover, I conclude that Respondent did not have
results of resistance and continuity tests performed in the
previous year on the grounding systems at Richland because none
had been performed.
On July 20, 1996, Inspector Ferran assisted Rasmussen in
terminating the citation by helping him perform the continuity
and resistance tests. Rasmussen testified that he Ahad kind of
forgotten how to do it@ (Tr. 350-51).
Ferran discovered that one of the grounding wires on the
motor junction box had been disconnected (Tr. 92). Rasmussen
believed the wire may have become detached in the early spring of
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1994 when the motor had been repaired in Akron (Tr. 351). There
is no indication that any other event occurred after the spring
of 1994 that would have knocked the grounding wire loose.
I infer that had continuity and resistance testing been
performed since that repair work, the detached ground wire would
have been detected. Moreover, if records of continuity and
resistance tests performed within the year prior to the
inspection were in Respondent’s files at Akron, copies could have
been produced at hearing. I infer from the failure to produce
such records that there were no such records for the year prior
to July 18, 1995.
I assess a $25 penalty for Respondent’s initial failure to
provide records that complied with the requirements of the
standard. I assess $25 for each day that it persisted in this
refusal, for a total penalty of $75 for Citation No. 4643522 and
104(b) Order No. 46435532. This assessment does not take into
account the gravity of Respondent’s failure to perform continuity
tests on its equipment within the year prior to the inspection.
I decline to assess such a penalty since the Secretary did not
cite for failure to perform the test. I note, however, that the
failure to test created a situation where inadequate grounding of
the equipment was allowed to persist and posed serious potential
hazards.
Citation No. 4643524: Failure to conduct
workplace examinations
On July 18, Inspector Ferran issued Citation No. 4643524
alleging a violation of section 56.18002(a). That regulation
requires that a competent person examine each working place at
least once each shift in order to detect safety hazards.
Mr. Rasmussen told the inspector that he performed such
examinations but that he kept no records of his examinations
(Tr. 97-98). Ferran concluded that if daily workplace exami -
nations were being performed, he would not have found the
number of violations that he detected (Tr. 102).
I vacate this citation and credit Mr. Rasmussen’s testimony
that he examined all working places each day when he greased
the equipment (Tr. 352-53). The fact that Ferran found a number
of violative conditions may be the result of Respondent’s belief
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that the conditions cited were not violations, rather an
indication that workplace examinations were not performed.
Citation No. 4643525: Absence of Berms on
ramp leading to the hopper
On the first day of the inspection, Ferran observed
Mr. Rasmussen feed the hopper with his model 980 Caterpillar
Front-End Loader. There was a short ramp to the hopper which
had no berms on either side. When feeding the hopper, the front
wheels of the vehicle were five to six feet above the floor of
the pit and only a foot or foot and a half from the edges of the
ramp (Tr. 104-110).
Ferran cited Respondent for a violation of section
56.9300(a). That regulation provides that:
Berms or guardrails shall be provided and maintained
on the banks of roadways where a drop off exists of sufficient
turn or endanger persons in equipment.
Inspector Ferran believes that the ramp presented a hazard
because it was at a three or four percent grade and because the
loader’s bucket was raised 8-10 feet in the air when feeding the
hopper (Tr. 106-109). Both Mr. Rasmussen and Harold Higman, Jr.,
dispute the inspector’s contention that there was a danger of the
loader tipping due to the absence of berms (Tr. 355-356, 392-
396).
Higman, who has significant experience operating such
vehicles, opined that the incline of the ramp and the
differential in height between the wheels is insufficient to
cause the loader to tip over (Tr. 396). I conclude that the
opinions of Respondent’s witnesses on this issue have at least
equal validity to those of Mr. Ferran. Therefore, I find that
the Secretary has not established that a drop off of sufficient
grade or depth to cause an accident existed and I vacate this
citation.
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Docket No. CENT 95-267-M
Citation No. 4643513: Failure to notify MSHA prior to
commencement of intermittent operations
Respondent also received Citation No. 4643513 alleging that
it violated section 56.1000. That standard requires an operator
to notify MSHA of the actual or approximate date that mine
operations will commence. The standard requires that the noti -
fication include the mine name, location, the company name,
mailing address, person in charge, and whether the operations
will be continuous or intermittent.
In challenging this citation, Respondent asserts that it was
not required to notify MSHA of commencement of operations at the
Richland Pit in 1995 because the pit had never been closed down
the previous fall. Nevertheless, I conclude that Respondent is
subject to the notification requirement contained in section
56.1000.
Vice-President Harold Higman, Jr., conceded that Respondent
reports to MSHA that Richland is an intermittent operation
(Tr. 404-05). I consider Respondent estopped from asserting
otherwise. By virtue of its status as an intermittent operation,
the Richland Pit is generally subjected to only one inspection
per year, rather than the two inspections it would receive if it
were a continuous operation, MSHA Program Policy Manual, section
103.
MSHA proposed a $50 civil penalty for this violation. I
assess a $20 penalty. The penalty must account for the fact that
Respondent was issued a citation for a violation of the same
requirement in 1994. However, it should also reflect that most
of the information required was conveyed to Inspector Ferran by
Mr. Rasmussen in early 1995.
Sometime prior to April 1, 1995, Inspector Ferran
encountered Mr. Rasmussen at Respondent’s pit near Volin ,
South Dakota (Tr. 117). Rasmussen informed the inspector that
Respondent would start mining at a site near Richland in April
and gave him directions to the pit (Tr. 234-5).
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It appears that Respondent resumed its full-time production
operations at Richland in May or June 1995 (Tr. 370-71). Since
the date on which this occurred depended upon the weather, it
appears that when Rasmussen informed Ferran that he would start
in April, he provided virtually all the information required by
the standard. The gravity of the violation was therefore very
low and I assess a penalty of $20.
Citation Nos. 4643513 and 4643520: failure of miners
to wear seat belts while operating front-end loaders
on July 18, 1995
On July 18, 1995, Inspector Ferran observed both foreman
Rasmussen and miner Eldon Seely operating their front-end loaders
while not wearing a seat belt (Tr. 119-20, 124-25). He issued
Citation Nos. 4643513 and 4643520, alleging S&S violations of
30 C.F.R. Section 56.14130(g), as a result.
Rasmussen was feeding the hopper with his loader, which also
had weak service brakes (Tr. 121). Seely was using his loader
primarily to load customer trucks (Tr. 125). I affirm these
violations as S&S violations and assess civil penalties of $100
for each of these citations.
Anytime a driver operates in an occupational setting without
a seat belt, there is a reasonable likelihood of an accident
resulting in serious injury. Thus, I find the gravity of these
violations to be high. I also find the negligence of Rasmussen,
which is imputed to Respondent, to be high. If supervisors do
not feel compelled to observe MSHA’s safety regulations, it is
likely that their subordinates will be lax in complying with them
as well. If a mine operator expects its employees to comply with
the Act, it is essential that its foremen set an example and
comply with MSHA’s requirements.
Docket No. 96-30-M
Citation No. 4643521: First Aid Training
On July 18, Ferran asked foreman Rasmussen and miner Eldon
Seely if either had been trained in first aid. Rasmussen showed
him a card issued by Respondent indicating that his first aid
training had expired a month earlier. The inspector thereupon
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issued Citation No. 4643521, alleging a violation of 30 C.F.R.
Section 56.18010 (Tr. 132). This regulation states that:
Selected supervisors shall be trained in first aid.
First aid training shall be made available to all
interested employees.
Mr. Rasmussen did have some sort of first aid training
several times prior to July 1995 (Tr. 360-61). This training
primarily concerned cardio-pulmonary resuscitation (CPR), rather
than other facets of first-aid (Tr. 382).
I vacate the citation because the regulation only requires
that some degree of first aid training be provided to super-
visors, which I conclude Mr. Rasmussen received. The standard
does not specify the details of the first aid training or require
any periodic retraining or any demonstration that the supervisor
learned or remembered anything from the training. The standard
also does not require an active first aid card.
I do not believe that such requirements can be extrapolated
from section 56.18010. If MSHA wants to assure that there is a
supervisor present at every metal/non-metal surface mine who is
competent to administer first-aid, it will have to revise its
regulations.
Citation No. 4643526: Inoperative horn on front-end loader
Inspector Ferran determined that the horn on Mr. Rasmussen’s
front-end loader was not operable on July 18, 1995 (Tr. 137-39).
He therefore issued Citation No. 4643526 alleging a non-S&S
violation of section 56.14132(a). Although it is rare for
persons or vehicles to come near Mr. Rasmussen’s vehicle, it is
possible (Tr. 363-64). Therefore, I affirm the citation and
assess a $25 civil penalty.
With regard to this issue I credit the testimony of Harold
Higman, Jr., that Rasmussen’s training included more than CPR
(Tr. 401-02). Rasmussen did not recall such training (Tr. 382).
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Citation No. 4643527: Inadequate service
brakes on front-end loader
Mr. Ferran also determined that the compressor supplying
air to the service brakes of Mr. Rasmussen’s front-end loader
was leaking. Due to this leak, the service brakes would not
hold the loader when idling on the ramp to the hopper (Tr. 143-
48).
Although Rasmussen normally operates his loader when no
other people or vehicles are around him, he has had occasion to
use his service brakes to stop the loader quickly (Tr. 365).
Thus, I conclude that the Secretary has established a S&S
violation of section 56.14100(b), as alleged in Citation
No. 4643527.
Rasmussen’s vehicle had a problem with slow-reacting brakes
for several months prior to the inspection(Tr. 365, 384-85).
This indicates a considerable degree of negligence on
Respondent’s part in letting this condition persist. Given this
negligence and the reasonable likelihood of a serious injury due
to the slowness of the brakes, I assess a $100 civil penalty for
this violation.
Citation No. 4643552: Failure to wear seat belt
at August 1995 inspection
On August 15, 1995, Inspector Ferran returned to the
Richland Pit. Mr. Rasmussen was on vacation and Eldon Seely was
in charge at the mine. Ferran observed another miner operating
Rasmussen’s front-end loader without wearing a seat belt
(Tr. 152-57).
The driver told Ferran that he had not been told by anyone
that he was required to wear a seat belt (Tr. 153). Ferran
issued Citation No. 4643552 alleging a S&S violation of 30 C.F.R.
56.14130(g). MSHA subsequently proposed a $102 penalty for this
citation.
I affirm this citation as an AS&S@ violation and assess a
$400 civil penalty. The Commission assesses penalties de novo
after considering the six penalty criteria in section 110(i) of
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the Act. It is not bound or limited by MSHA regulations or
determinations regarding proposed penalties, United States Steel
Mining Co., 6 FMSHRC 1148 (May 1984).
I believe that with customer trucks operating at the pit,
there is a reasonable likelihood that failure of the loader
driver to wear a seat belt would result in a serious injury.
Thus, I believe that gravity factor would call for a penalty of
about $100, when combined with consideration of Respondent’s
size, good faith in rapidly abating the citation, and the fact
that Higman’s ability to stay in business is not affected.
However, when consideration is given to Respondent’s prior
history of violations and negligence, a considerably higher
penalty is warranted. I believe it would be entirely incon -
sistent with the purposes of section 110(i) to ignore the
two seat belt citations Respondent had received a month before.
Also, the fact that the driver had not been told that wearing
of a seat belt was a condition of his employment establishes a
high degree of negligence given the recent prior citations.
Therefore, I conclude that a $400 civil penalty is appropriately
assessed.
ORDER
The citations, orders and proposed penalties in these
dockets are resolved as follows:
Docket No. CENT 95-261-M
Citation/Order Proposed Penalty Assessed Penalty
4643516/4643528 $240 $150
4643517/4643529 $292 $150
4643518/4643530 $240 $ 50;
4643519/4643531 $195 $ 75
4643522/4643532 $108 $ 75
4643524 $ 50 Vacated
4643525 $102 Vacated
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Docket No. CENT 95-267-M
4643513 $ 50 $ 20
4643515 $ 81 $100
4643520 $102 $100
Docket No. CENT 96-30-M
4643521 $ 50 Vacated
4643526 $ 50 $ 25
4643527 $102 $100
4643552 $102 $400
Respondent shall pay the total assessed penalties of $1,245
within thirty (30) days of this decision.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr,
750 Pierce St., P.O. Box 717, Sioux City, IA 51102
(Certified Mail)
/lh
970
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