K.R. Wilson Contracting, Inc.

Plain-English summary

K.R. Wilson Contracting operated a limestone quarry where a worker died after a raised loader fender fell during repairs. The judge affirmed two accident-related citations, finding that the fender was not mechanically secured and that the worker was not wearing a hard hat, while vacating a citation about defects in the portable hoist because the defects were not shown to affect safety. Two additional citations were settled in a consolidated docket. The judge assessed total penalties of $40,688 and reduced the negligence findings on the affirmed citations to low and high.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14211(b), 56.15002, and 56.14100(b)
• Outcome: Four citations were affirmed, one was vacated, and total penalties of $40,688 were assessed, including the approved settlement.
• Key point: Mine operators remain strictly liable for mandatory-standard violations even when the equipment failure was unforeseeable, but the Secretary must show that an equipment defect affected safety to sustain that citation.

Full text (FMSHRC public release)

)()6%01-2)7%)8=%2(,)%08,6):-);'311-77-32

                          3**-')3*%(1-2-786%8-:)0%;.9(+)7
                                      7O]PMRI7YMXI
                                       0IIWFYVK4MOI
                                  *EPPW'LYVGL:MVKMRME


                                       April 19, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 98-159-M
Petitioner : A. C. No. 23-00746-05530
v. :
: Docket No. CENT 98-207-M
K.R. WILSON CONTRACTING, INC., : A.C. No. 23-00746-05531
Respondent :
: Sullivan Plant

                                        DECISION

Appearances: Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner;
Michael O. McKown, Esq., Ziercher & Hocker, P.C., St. Louis, Missouri, for
Respondent.

Before:Judge Hodgdon

    These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed

by the Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),
against K.R. Wilson Contracting, Inc., pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 815. The petitions allege five violations of the Secretary s
mandatory health and safety standards and seek penalties of $100,860.00. A hearing was held in
St. Louis, Missouri. For the reasons set forth below, I vacate one citation, affirm four and assess
penalties of $40,688.00.

                                     Settled Citations

    At the beginning of the hearing, counsel for the Secretary advised that the parties had

agreed to settle the two citations in Docket No. CENT 98-207-M. The agreement provides that
the penalty will be reduced from $860.00 to $688.00. Based on the representations of the parties,
I concluded that the settlement was appropriate under the criteria set forth in section 110(i) of the
Act, 30 U.S.C. 820(i), and approved the agreement. (Tr. 16-18.) The provisions of the
agreement will be carried out in the order at the end of this decision.

                                       Background

Page 2

    The Respondent operates a small limestone quarry in Sullivan, Missouri, known as the

$Sullivan Plant.# At about 12:30 p.m., on June 20, 1997, Larry Bouse, the plant foreman, began
replacing a brake expander tube on the left rear wheel of a 1966 Caterpillar, Model 988A, front-
end loader. This required him to elevate and block the loader on stands. Since it was necessary
to remove the wheel, one end of the fender over the wheel was disconnected and the fender,
which weighed 425 pounds, was raised to an almost upright position by the boom hoist on a
hoist truck. The fender was then secured by connecting a portable ratchet hoist, commonly called
a $come-along,#1 to the top step2 on the fender and to an $eye piece# on the top of the roll-over
protective structure of the loader.

    By 4:30 p.m., Bouse had completed the brake repairs and was attempting to get the wheel

back onto the loader. Ronald Haanpaa and Vernon Abney, who had completed work for the day,
offered to assist Bouse in completing his work. Haanpaa got into the hoist truck to lift the wheel
back into position with the boom hoist. Abney got in the wheel well to guide the wheel back
onto the axle and Bouse got on the hood of the loader to communicate between Haanpaa and
Abney. When they still could not get the wheel on, Abney suggested that they completely
remove the fender. He was coming out of the wheel well when the $come-along# failed,
releasing the fender. The fender struck Abney in the forehead near the hair line and pushed his
head back into the frame of the loader. Abney, who was not wearing a hard hat at the time,
suffered massive head injuries and died as a result.

    MSHA began its investigation of the accident the next day. On July 21, 1997, three

citations were issued to the operator as a result of the accident. Citation No. 7856213 alleges a
violation of section 56.14211(b) of the regulations, 30 C.F.R. 56.14211(b), because: $On June
20, 1997 an employee was fatally injured when a raised fender of a 988A Caterpillar front end
loader fell striking him. The portable hoist, which was used to secure the hinged 425 pound

      A $come-along# is $a little drum that a cable wraps around.# The drum is in a frame
   1

which has a ratcheting device operated by a handle. As the handle is ratcheted in one direction, it
rotates the drum, causing the cable to wrap around it. As it is ratcheted in the other direction, the
cable is played out. The frame has a hook on one end and the cable extends out from the frame
and has a pulley with a hook attached to it. (Tr. 283-84.)
2

                                             2

Page 3

fender, failed. (Govt. Ex. 1.) Citation No. 7856214 charges a violation of section 56.15002, 30
C.F.R. 56.15002, in that: $When [the employee] left his truck to assist with the loader repairs,
he did not put on a hard hat where there was a danger of falling objects.# (Govt. Ex. 1.) Finally,
Citation No. 7856515 asserts a violation of section 56.14100(b), 30 C.F.R. 56.14100(b), since:

             The portable hoist, which was used to secure the hinged 425 pound
             fender failed when the cable compression clamp broke.
             Additionally, it had loose bolts, the pulley bearing would not roll
             and the 3/16-inch cable was attached with a bolt marked $CAT.#
             The cable had broken wires and the rating information was missing.
              The handle did contain a warning against unauthorized alteration.
             The foreman was directing a wheel assembly installation on the
             loader and allowed the defective equipment, which had been altered
             and not maintained, to be used. This constitutes more than
             ordinary negligence and is an unwarrantable failure to comply with
             the Standard.3

(Govt. Ex. 1.)

    The $come-along# failed because a compression thimble, or aluminum swedge sleeve,

catastrophically collapsed. $This thimble is a soft aluminum sleeve that slides over the doubled
cable and is compressed by a special swedging tool to form a permanent loop in the end of the
cable.# (Resp. Ex. 2 at 2.) This allowed the pulley hook to become unattached from the cable,
releasing the hook and the fender. The catastrophic failure was caused by an outside event,
probably the tire on the hoist cable, or the hoist cable itself, striking the fender.

                         Findings of Fact and Conclusions of Law

Citation No. 7856213

    This citation alleges a violation of section 56.14211(b) which provides that: $Persons

shall not work on top of, under, or work from a raised component of mobile equipment until the
component has been blocked or mechanically secured to prevent accidental lowering.# Section
56.14211(d), 30 C.F.R. 56.14211(d), states that $a raised component of mobile equipment is
considered to be blocked or mechanically secured if provided with a functional load-locking
device or a device which prevents free and uncontrolled descent.#

    The regulation is clear and unambiguous that the raised component can either be

$blocked# or $mechanically secured.# The MSHA inspectors who testified were all of the opinion
that the fender should have been blocked. Consequently, it is the Secretary s position that since

   3


                                                  $                       #

$ #

                                             3

Page 4

the fender was not blocked, the standard was violated. Inasmuch as that position ignores the clear
language of the rule, I find that argument without merit. On the other hand, the Respondent
contends that the raised fender was mechanically secured by the $come-along.# The evidence,
however, demonstrates that the fender was not mechanically secured.

   As section 56.14211(d) plainly states, if a functional load-locking device or a device

which prevents free and uncontrolled descent is used the regulation is satisfied. In this case, such
a device was not used. The $come-along# did not prevent free and uncontrolled descent of the
fender when it struck Abney in the head. Since it failed, the "come-along" was obviously not
functional. Cf. Western Fuels-Utah, Inc., 19 FMSHRC 994, 998 (June 1997) (requirement that
conveyor belt be equipped with slippage and sequence switches means functional switches);
Fluor Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996) (requirement that self-propelled
mobile equipment be equipped with a service brake system means functioning system); Mettiki
Coal Corp., 13 FMSHRC 760, 768 (May 1991) ($switches to be used to lock out electrical
equipment must be equipped with functioning lockout devices#) (emphasis added). Therefore, I
conclude that the operator violated the regulation.

    I reach this conclusion even though I accept the testimony of H. Boulter Kelsey, Wilson s

mechanical engineering expert, that the $come-along# failed because of the unforseen,
catastrophic collapse of a thimble on the cable. The Act imposes strict liability on mine operators
for violation of the mandatory standards regardless of fault. Western Fuels-Utah v. Fed. Mine
Safety & Health, 870 F.2d 711, 716 (D.C. Cir. 1989); Rock of Ages Corp., 20 FMSHRC 106, 114
(February 1998); Wyoming Fuel Co., 16 FMSHRC 19, 21 (January 1994). As the Commission
has stated, $the principle of liability without fault requires a finding of liability even in instances
where the violation resulted from unpreventable employee misconduct.# Western Fuels-Utah,
Inc., 10 FMSHRC 256, 261 (March 1998). Likewise, the principle of liability without fault
requires a finding of liability in this case even though the failure of the $come-along# was
unforeseeable.

Significant and Substantial

    The Inspector found this violation to be $significant and substantial.# A "significant and

substantial" (S&S) violation is described in Section 104(d)(1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard." A violation is properly designated S&S "if, based upon the
particular facts surrounding that 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 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts

                                              4

Page 5

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 1007 (December 1987).

     In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying

violation of a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious
nature.

   In view of Abney s fatal injuries, there can be little doubt that this violation satisfies the

Mathies criteria. $Clearly, it was a significant contributing cause to the fatal accident.# Walker
Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997). Consequently, I conclude that the violation
was $significant and substantial.#

Citation No. 7856214

    Section 56.15002, which this citation alleges to have been violated, requires that: $All

persons shall wear suitable hard hats when in or around a mine or plant where falling objects may
create a hazard.# The evidence is undisputed, and, indeed, the Respondent concedes, that Abney
was not wearing his hard hat when he was struck by the fender. It is also undisputed that this was
an area where hard hats were supposed to be worn. Accordingly, I conclude that the company
violated this regulation.

Significant and Substantial

     This violation is alleged to be $significant and substantial.# The operator argues that

Abney would have been killed even if he had been wearing a hard hat. The evidence to support
this claim is the speculation of Mr. Kelsey based on his calculation of the force of the blow
suffered by Abney. Mr. Kelsey, however, did not see the accident, or pictures of the accident, nor
did he see the type of hard hat Abney was not wearing or even know what brand it was.

   On the other hand, Abney was not wearing a hard hat and he was killed by a blow to the

head. There is no way to know what would have happened to him if he had been wearing a hard
hat. Under those circumstances, I conclude that his failure to wear a hard hat reasonably
contributed to his death and that the violation was, therefore, $significant and substantial.#

Citation No. 7856215

   This citation alleges a violation of section 56.14100(b), which states: $Defects on any

equipment, machinery, and tools that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons.# The citation lists the following defects in the $come-
along#: (1) loose bolts; (2) pulley bearing would not roll; (3) the cable was attached with a bolt
labeled $cat#; and (4) the cable had broken wires. As it turns out, none of these defects caused the
accident. Despite that, if the defects affected safety, the standard was violated. In this case, the
Secretary has not proved that the defects affected safety.

                                              5

Page 6

    The Commission has stated that: $The phrase !affecting safety . . . has a wide reach and

the !safety effect on an uncorrected equipment defect need not be major or immediate to come
within that reach. # Ideal Cement Co., 13 FMSHRC 1346, 1350 (September 1991) (citations
omitted). While the Secretary s witnesses characterized the $come-along# as a $piece of junk# and
reported that Bouse and Mr. Wilson had similarly described it, the Secretary has failed to
demonstrate how the defects affected safety.

    Conversely, the Respondent has rebutted any inferences to be derived from the

descriptions of the $come-along# with the testimony of Mr. Kelsey. He stated that the $Cat# bolt
$enhanced the capacity# of the $come-along. (Tr. 296.) With regard to the broken wires, he said:
$I looked at the frame at the cable and about three or four strands were broken. It had nothing to
do with the failure in this circumstance. . . . You can break probably half of the wires in this cable
and still have it lift the 4,000 [pound] capacity.# (Tr. 296-97.) In reply to a question about the
pulley not rolling, he testified:

                   It has no effect because the pulley was standing still for four
           and a half hours. This come-along was in a static loaded condition.
            There is no movement of the fender. There is no rolling back and
           forth. There is nobody cranking the handle. It is holding the fender
           in a locked, secured position for the time period prior to the
           catastrophic failure. There is no influence whatsoever by the pulley
           under those circumstances.

(Tr. 297-98.) Finally, in answer to whether the $come-along# was a $piece of junk,# he
responded:

                    Yeah, it s a piece of junk but it s usable junk. It s usable
           junk like this that we have around in virtually every kind of shop in
           this country that people use all the time. It is not unsafe. It is not
           something that when you pick it up and look at it and say [$]oh, this
           thing could fail any minute[#] because that just isn t the case. It is a
           piece of pretty well worn equipment. A lot of folks consider it junk
           but it s still usable.

(Tr. 318-19.) (Emphasis added.)

   Clearly, the only defect affecting safety was the defect in the thimble. However, that

defect was not visible. As Mr. Kelsey stated:

                    The normal visualization of the surface would show some
           s[cr]atching on the surface but nothing to indicate that a
           catastrophic failure was imminent by just looking at it. There is no
           evidence of that. Even after the fact the only way we can tell it s a
           catastrophic failure is by looking at it under a microscope. You
           still can t tell with just the naked eye.


                                              6

Page 7

(Tr. 306-07.) Since the defect was not apparent, the company cannot be faulted for not correcting
it.

     The Secretary did not present any evidence on how the defects affected safety. At best,

the testimony of the MSHA inspectors created an inference that the defects affected safety. The
Respondent, however, has effectively rebutted this inference with the expert opinion of Mr.
Kelsey. Because of his expertise, Mr. Kelsey s testimony is entitled to much greater weight than
the opinions of the inspectors. Accordingly, I conclude that the company did not violate section
56.14100(b) and will vacate the citation.

                                 Civil Penalty Assessment

   The Secretary has proposed penalties of $40,000.00 for the violation of section

56.14211(b) and $25,000.00 for the violation of section 56.15002. However, it is the judge s
independent responsibility to determine the appropriate amount of penalty in accordance with the
six penalty criteria set out in section 110(i) of the Act. Sellersburg Stone Co. v. FMSHRC, 736
F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996).

    In connection with the penalty criteria, the parties stipulated that K.R. Wilson was a small

company and that the operator demonstrated good faith in abating the violations. (Tr. 14-15.)
The company s Assessed Violation History Report shows that it was only assessed four $50.00
violations during the two years preceding the violations in this case. Based on this, I find that the
operator has a good history of violations. Finally, since the violations in this case resulted in a
death, I find that both violations are of high gravity.

   In an attempt to show that its ability to remain in business will be adversely affected by

the proposed penalties, the company has put into evidence an Accountants Review Report with
attached financial statements. (Resp. Ex. 3.) The cover letter contains the following disclaimer:

           All information included in these financial statements is the
           representation of the management of K.R. Wilson Contracting,
           Inc.

                  A review consists principally of inquiries of Company
           personnel and analytical procedures applied to financial data. It is
           substantially less in scope than an audit in accordance with
           generally accepted auditing standards, the objective of which is the
           expression of an opinion regarding the financial statements taken as
           a whole. Accordingly, we do not express such an opinion.

(Id. at 1.) This disclaimer is precisely the reason that unaudited financial statements are not
sufficient to carry the operator s burden of establishing that a penalty will adversely affect the
company s ability to remain in business. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700
(April 1994). Consequently, I conclude that the penalties in this case will not have a detrimental
effect on K.R. Wilson s ability to remain in business.

                                             7

Page 8

    The last penalty criterion is negligence. The Secretary has alleged a $high# level of

negligence with regard to Citation No. 7856213. This is presumably based on the defects found
in the $come-along.# However, in view of the fact that the apparent defects did not affect safety
and that the defect which caused the accident was neither discernible nor foreseeable, I conclude
that the level of negligence should be $low.#

   The Secretary has asserted that the violation in Citation No. 7856214 resulted from

$moderate# negligence. The evidence in this case indicates that Larry Bouse, the foreman in
charge of the repairs to the loader, did not $like# hard hats and was $occasionally# lax in
demanding that employees wear them. (Tr. 143, 371.) Therefore, I conclude that this violation
was caused by $high# negligence.

    Taking all of the penalty criteria into consideration, I assess a penalty of $15,000.00 for

Citation No. 7856213 and $25,000.00 for Citation No. 7856214.

                                           Order

   Accordingly, Citation Nos. 7856213 and 7856214 are modified with regard to the level of

negligence as set out above, and are AFFIRMED as modified, and Citation No. 7856215 is
VACATED in Docket No. CENT 98-159-M. Citation Nos. 7855877 and 7855909 are
AFFIRMED in Docket No. CENT 98-207-M.

   K.R. Wilson Contracting, Inc., is ORDERED TO PAY civil penalties of $40,688.00

within 30 days of the date of this decision.

                                           T. Todd Hodgdon
                                           Administrative Law Judge

Distribution:

Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716

Michael O. McKown, Esq., Zeircher & Hocker, P.C., 231 South Bemiston, 8th Floor, St. Louis,
MO 63105

/nj

                                              8