Greenville Quarries, Incorporated
Greenville Quarries, Incorporated (FMSHRC KENT 86-133-M): Seven violations assessed at $2,725
Apply this to your situation
This order from 1987 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
Greenville Quarries operated a limestone quarry and mill in Kentucky with about 30 employees. Judge George A. Koutras considered seven alleged violations involving electrical lockout procedures, mobile equipment brakes, equipment inspections, smoking near combustible materials, and roadway berms. He affirmed the violations and assessed penalties totaling $2,725, but vacated the significant-and-substantial designation for the inadequate-berm citation because the record did not show a reasonable likelihood of serious injury. The decision required payment within 30 days.
Decision snapshot
- Cited standard(s): 30 C.F.R. §§ 56.12016, 56.9003, 56.9001, 56.4100(a), and 56.9022
- Outcome: The violations were affirmed with a total civil penalty of $2,725, while the significant-and-substantial designation for the berm citation was vacated.
- Key point: A serious mine-safety violation is not automatically significant and substantial without evidence that the hazard was reasonably likely to result in a serious injury.
Full text (FMSHRC public release)
Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 86-133-M
PETITIONER A.C. No. 15-00034-05512
v. Docket No. KENT 86-134-M
A.C. No. 15-00034-05514
GREENVILLE QUARRIES,
INCORPORATED, Docket No. KENT 86-155-M
RESPONDENT A.C. No. 15-00034-05516
Greenville Quarry
DECISIONS
Appearances: Mary Sue Ray, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Petitioner; Brent Yonts, Esq., Greenville,
Kentucky, for the Respondent.
Before: Judge Koutras
Statement of the Proceedings
These civil penalty proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the
respondent pursuant to section 110(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 820(a). The petitioner seeks
civil penalty assessments for seven alleged violations of certain
mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulations. The respondent filed timely answers and
contests, and hearings were held in Owensboro, Kentucky. The
respondent filed posthearing arguments, but the petitioner did
not. I have considered these arguments in the course of these
decisions, and I have also considered the oral arguments made by
the parties on the record during the course of the hearings.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub.L.
95-164, 30 U.S.C. 801 et seq.
2. Section 110(i) of the 1977 Act, 30 U.S.C. 820(i).
3. Commission Rules, 29 C.F.R. 2700.1 et seq.
Issues
The primary issues presented are (1) whether the conditions
or practices cited by the inspectors constitute violations of the
cited mandatory standard, and (2) the appropriate civil penalties
to be assessed for the violations, taking into account the
statutory civil penalty criteria found in section 110(i) of the
Act. Additional issues raised by the parties are disposed of in
the course of these decisions.
The parties stipulated to the following:
1. The respondent is a Kentucky Corporation
incorporated on May 27, 1948, and it owns and operates
a quarry and mill located on State Highway 171 in
Muhlenberg County, Kentucky.
2. The respondent produces crushed and broken limestone
for sale in interstate commerce and is subject to
MSHA's jurisdiction, as well as the Commission's
Administrative Law Judges.
3. The respondent averages a production of 650,000 to
one million tons of crushed limestone per year at its
quarry and mill, and it is a medium class operation.
4. The respondent employs 30 persons at its quarry and
mill, working one shift, 8 hours per day, and 5 days
per week.
5. Federal Metal/Nonmetal Inspector Eric Shanholtz, a
duly authorized representative of the Secretary of
Labor, conducted a regular inspection of the Greenville
Quarry and Mill from January 7, 1986 to January 9,
1986.
6. The following vehicles were in operation at the
Greenville Quarry and Mill from January 7, 1986 to
January 9, 1986:
one (1) 275 B Michigan Loader
two (2) 475 B Michigan Loaders
two (2) 35 ton Euclid Pit Haul trucks
two (2) 20 ton Plant Stockpile Haul trucks
one (1) Powder truck
7. The Euclid Pit Haul trucks in operation in January
and February, 1986, were Euclid Model R35 trucks. These
trucks had been in operation for several years.
8. The respondent's history of prior violations for the
2-year period prior to January, 1986, is reflected in
an MSHA computer print-out which has been made a part
of the record in this case (exhibit P-3).
Procedural Ruling
At the hearing, respondent's counsel moved for a continuance
on the ground that he was retained by the respondent on Thursday,
May 14, 1987, and that it was difficult for him to prepare for
the hearing on such short notice. Counsel stated that he mailed
me a letter requesting a continuance, and that he also spoke with
my secretary on Friday, May 15, 1987, concerning a continuance.
The parties were informed that since I was on leave status
on Friday, May 15, 1987, I was unaware of the letter requesting a
continuance until the morning of the hearing. After consideration
of the request, it was denied from the bench (Tr. 13). Respondent
was reminded of the fact that the original notice of hearings in
these cases was issued on January 8, 1987, and that the cases
were scheduled to be heard on April 7-8, 1987, but were continued
at the request of the petitioner until May 19-20, 1987. In my
view, the respondent had more than ample time to obtain counsel
if it so desired, and I concluded that its request for
continuance was untimely.
The issues presented in these cases are not that difficult.
Respondent's vice-president, Mr. John Stovall, who represented
the respondent until the retention of counsel, appeared to be
thoroughly familiar with all of the citations, and he was present
and testified at the hearing on the respondent's behalf. In
addition, the record reflects that Mr. Stovall discussed some of
the citations with MSHA's district supervisor, and had previously
attempted to settle these cases with MSHA.
Counsel's letter requesting a continuance reflects that he
received the respondent's record on Thursday, May 14, 1987,
including copies of the petitioner's hearing exhibits. Although
no witness list was included, none was required by my pre-trial
notice. However, petitioner' witnesses were identified at the
hearing, and the respondent's counsel had ample opportunity to
cross-examine them. Although the petitioner presented an "expert
witness" who was apparently not previously known to the
respondent, his testimony was not critical or pivotal to the
petitioner's case, and I cannot conclude that the respondent has
been prejudiced by the petitioner's failure to disclose the
identity of its expert witness until the morning of the hearing.
Further, I take note of the fact that the respondent failed to
avail itself of any of the Commission's pretrial discovery
procedures. I also take note of the fact that the respondent's
answers filed in these proceedings suggest that the respondent's
principal concern was its belief that MSHA's proposed civil
penalties were excessive and unreasonable, and its offer to
settle the violations for 50 percent of the assessments was
rejected by the petitioner's counsel.
Discussion
DOCKET NO. KENT 86-133-M
Section 104(a) "S & S" Citation No. 2657368, issued on
January 7, 1986, cites a violation of 30 C.F.R. 56.12016, and
the cited condition or practice is described as follows:
An safe, established lock-out procedure had not been
established at the Greenville Quarry. The present
procedure was to simply turn off the equipment and shut
the door to the switch-house. The equipment could at
anytime be energized while being worked on. A procedure
shall be established to physically lock-out the
equipment.
MSHA Inspector Eric Shanholtz testified as to his education,
experience, and background, including a B.A. degree in mine
safety, and an M.S. degree in safety from the Marshall
University, Huntington, West Virginia. He identified exhibits P-1
and P-2 as sketches which he made of the respondent's Greenville
Quarry and Mill property. He also identified exhibit P-4 as a
series of photographs which are
representative of the plant area, the terrain, and the roadways,
and he described the areas shown in the photographs (Tr. 19-30).
Inspector Shanholtz confirmed that he issued the citation
after finding that the quarry had no established lockout
procedure for electrical equipment. He stated that quarry
superintendent Burdette Fox advised him that the procedure used
at that time was to simply turn off the equipment and shut the
door to the switch house (Tr. 31). Mr. Shanholtz stated that
during his inspection of January 7, 1986, no locks were available
or shown to him, and as far as he knew no provisions were made to
use locks. The switch house contained the electrical switch gear
for the plant area, and it also contained a partitioned-off
control booth area from which the plant was operated by means of
"push button starts." The switching gear consisted of standard
electrical "square D" manual switches (Tr. 32-34).
Mr. Shanholtz stated that when he returned to the mine on
February 26, 1986, on a follow-up inspection, he observed an
electrician working on some electrical cables by the crusher
area. The system being worked on was a 480 volt system, and no
locks were being used. The electrician admitted that he had not
locked out the equipment, and Mr. Shanholtz stated that he
personally observed the system switches, and while there was a
lock lying on top of the electrical switch box which would fit
the box, the lock was not used to lock out the switch box (Tr.
35, 37). Under these circumstances, he issued a section 104(b)
withdrawal order, No. 2657191, and petitioner's counsel confirmed
that he did so because of the failure by the respondent to timely
abate the previously issued citation of January 7, 1986 (Tr. 36).
Mr. Shanholtz was of the opinion that it was highly likely
that the failure to have a lock-out procedure or to lock out the
equipment would result in an accident. His opinion was based on
the fact that there were other employees in the area and the
electrical switch was not locked out. With 480 volts, one person
would be exposed to a fatal injury or accident (Tr. 38). Mr.
Shanholtz stated further that he was aware of one accident which
occurred after the citation was issued, during the summer of
1986, when the superintendent was working on some electrical
switches and came into contact with some energized switch
components and the resulting flash or arc caused burns to his
face and hands. This incident involved the same switch house (Tr.39).
On cross-examination, the inspector confirmed that the power
source to the switch house is from a nearby pole. In response to
a question as to whether or not he had determined that the main
power disconnect at the power pole was disconnected, during his
inspections of January 7 and February 26, the inspector stated
that he assumed that it was not because had the power been
disconnected at the power center, it would have shut down the
entire plant, and that did not happen (Tr. 44). The individual
who operated the switches in the switch house on February 26, was
not the same person doing the electrical work, nor was he the
person supervising the work (Tr. 44).
The inspector testified that while there are two switch
houses on the property, containing a total of 30 switches, his
citation addressed the switch house at the plant area which
contains 15 switches. He confirmed that he issued the citation
because mine management did not have an established procedure for
locking out electrical equipment or circuits while they were
being worked on, and not because the 15 switches in the switch
house in question did not have locks (Tr. 48). He further
explained his reasons for issuing the citation as follows at Tr.
51-52:
THE WITNESS: The citation was issued because there was
no procedures provided to physically lock out the
equipment. There had been work done in the past. As
with any quarry, there will be downtime and that
downtime encompasses removing motors, taking-climbing
down into crushing areas.
And you have to understand that they have to reasonably
show me a way that they are physically lockout this
equipment as they work on it. At the time this citation
was issued, no, there was no actual work being done
that would require the equipment to be locked out.
But in the same sense, you rely on your experience,
that they take out these motors. They replace them as
they burn up, as they go. They change screens in the
screening equipment. They're down in these crushing
areas. It's a procedure that a good, safe manager would
provide, that as they work on this equipment, that it
is going to be locked out.
Now, I asked him at that time if they had any lockout procedure
or any locks. I was told, no, they didn't. As a matter of fact,
they had to go to town and buy them.
Mr. Shanholtz could not recall how much time he gave the
respondent for abatement of the citation, but he indicated that
he usually fixes less than a week as the abatement time on
citations such as the one in question (Tr. 53). He confirmed that
the electrical equipment being worked on by the electrician on
February 26, was not energized, and while locks were near the
switches, they were not used to lock out the switch. He stated
that he spoke with the electrician and the control room operator.
However, the control room operator was in the control room and
not with the electrician who was doing the work, and while the
control room operator could not see the electrician from the
switch house control room, he was aware that the electrician was
doing some work (Tr. 60).
Mr. Shanholtz stated that he abated the order after the
switch was locked out, and after a lockout procedure was
established in writing and the employees were instructed in its
use (Tr. 59-61). However, when he issued the citation on January
7, he spoke with several employees who worked on the equipment,
and they had no knowledge about any lockout procedures (Tr. 61).
The employees were aware of a procedure for de-energizing the
power source by turning off electrical equipment which was being
worked on, and this procedure was in effect (Tr. 62). Mr.
Shanholtz stated that MSHA "doesn't recognize simply throwing a
switch as a safe procedure" (Tr. 63). He reiterated that when he
spoke with superintendent Burdette Fox on January 6, Mr. Fox
advised him that they had no locks to physically lock out the
switches and simply shut the door to the switch house (Tr. 65).
Mr. Shanholtz stated that he observed a large number of
burned out motors in the yard when he was at the mine on January
7, and he believed that they were from electrical equipment in
the switch house. Based on this, he assumed that since no
lock-out procedures were established that work on these motors
had been conducted prior to January 7 without locking out the
electrical equipment (Tr. 67-68).
Mr. Shanholtz stated that a lock would add to the safety of
the equipment if it de-energized because it would prevent the
equipment from being energized or turned on electrically
or mechanically. When asked what would happen if the equipment
were turned on while someone was working on it, he responded as
follows (Tr. 70):
A. Essentially the same thing that happened in our last
fatality in the Southeast District, that a person came
by and noticed the crusher wasn't on. It wasn't locked
out. He turned it on and it crushed the guy that was
inside the crusher.
As long as you have people who are in that general area
of that electrical switch, there is a potential that
somebody is going to turn on that piece of equipment.
Q. And I believe you've already testified you saw
employees in the area of that electrical equipment-
A. Yes.
Q.-on January 7th.
A. Yes.
Q. And in February when you issued the (B) order.
A. Yes.
John Stovall, respondent's vice-president and general
manager testified that the mine in question is a union mine which
has been represented by the United Steel Workers, and that a
three-person mine safety committee composed of two union
representative and one management representative has been
functioning since a safety committee clause was added to the
contract approximately 15 years ago. He stated that the safety
committee chairman has always accompanied MSHA inspectors during
their inspections, and that this was the case during January,
February, and March, 1986. He also stated that mine procedure
calls for the safety committee to discuss any safety problems
with their supervisors, and if they cannot be resolved at that
level, he was to be personally contacted (Tr. 136-139). Mr.
Stovall also stated that he has a good working relationship with
all of his employees, that he knows them all by name, and in the
event they wish to speak with on the job they may do so by
"flagging him down" (Tr. 140).
With regard to the citation for failure to have an electrical
equipment lock-out procedure in place, Mr. Stovall stated that
prior to January, 1986, he had no electricians on the mine
payroll and all electrical work was done by contractors. However,
since February, 1986, a certified electrician was hired and he is
now on the payroll (Tr. 148). Mr. Stovall stated that there have
never been any electrical fatalities at the mine, and that prior
to January, 1986, no one ever reported to him that any electrical
equipment was not turned off while it was being worked on. He
confirmed that the then existing procedure when work was to be
performed on any equipment was to disconnect the switch in the
switch house. If an electrical problem existed, the outside
electrician would disconnect the switch himself and then proceed
to do the work. Since the electrician was a certified electrical
contractor, Mr. Stovall assumed that "the man knew what the rules
of the game were and did what was necessary to protect himself"
(Tr. 149).
With regard to the burned out motors observed by the
inspector, Mr. Stovall stated that they did not all come from his
operation, and that some were either purchased from other
operators, or obtained from some of his other operations at the
plant site (Tr. 150).
Mr. Stovall stated that he had problems in January, 1986,
because his equipment superintendent Don Joines suffered a heart
attack and was off the job for about 5 months, and he was not on
the job during the February, 1986, compliance inspection. He also
stated that the citations which were issued in January were
discussed with the inspector and Mr. Joines and crushing foreman
Burdette Fox, and not with him. He discussed them with the
inspector during his subsequent inspection in February 26 (Tr.
152).
Mr. Stovall stated that after the citation was issued, he
immediately purchased locks, and the four or five people who had
the ability and skills to perform electrical work were told to
use the locks. The locks were available and "laying there in the
switch house" in February, and he had no idea why they were not
being used. He reiterated that the electrician and switch house
operator were told to use them (Tr. 153). He confirmed that the
prior oral instructions to use the locks was reduced to writing
to abate the violation, and that this was accomplished by typing
a two-sentence memorandum advising personnel to use the locks
when they worked on electrical equipment, and the memorandum was
taped to the wall of the switch house (Tr. 153).
With regard to the burns suffered by Mr. Fox, Mr. Stovall stated
that his injuries had nothing to do with the lack of a lock-out
since the injury "wasn't past the switch" and "he was injured
behind the switch when the electricity in the box itself arced
and burned his hands." Mr. Stovall was of the opinion that any
lock would be "absolutely useless" in that incident. Mr. Stovall
stated that at no time during prior inspections was he ever told
that the lock-out procedures were inadequate (Tr. 154).
On cross-examination, Mr. Stovall stated that the work being
performed by Mr. Fox at the time of his injury was not work
typically performed by him, and that the work should have been
performed by someone else because it was union classified work.
Mr. Stovall identified the individuals who were told to use locks
as Mr. Fox, the secondary plant operator who "is the guy that
pushes the buttons up there," Tim Rogers, an electrician, and two
welders who sometimes assisted but did not do electrical work.
Mr. Stovall stated that all of these individuals acknowledged to
him that they were aware of the fact that locks were provided in
the switch house. He confirmed that the secondary crusher
operator, and others in similar jobs, would have reason to turn
on and off electrical equipment in order to perform mechanical
work (Tr. 155-156).
Mr. Stovall confirmed that sometime in 1985, the secondary
crusher operator was involved in an electrical accident at the
plant, and while he was not sure, he indicated that the
individual suffered burns to his hands similar to the incident
involving Mr. Fox (Tr. 156).
Section 104(a) Citation No. 2657373, issued on January 8,
1986, cites a violation of 30 C.F.R. 56.9003, and the cited
condition or practice is described as follows:
The Michigan 275 front-end loader had several defects
which affect the safe operation of the loader; (1) the
front windshield was cracked and broken which affect
the operator's vision. (2) The back-up alarm provided
on the loader was not functioning, the view to the rear
was obstructed, (3) the loader did not have an operable
emergency brake. The brake would not function when
tested, (4) the primary braking system was slow to stop
the loader when tested, in an emergency condition the
operator might not be
able to stop in time, (5) the loader was not provided
with a fire extinguisher.
Inspector Shanholtz stated that he issued the citation after
finding that the front-end loader in question had "quite a few
defects that affected safety." He stated that the front
windshield was cracked, broken, and shattered so much that it
would impair the operator's vision. He determined this by leaning
into the operator's cab and looking through the windshield (Tr.
75). He also determined that the backup alarm was not functioning
in that when the operator put the loader in reverse, the alarm
would not come on (Tr. 77). He also determined that the loader
emergency brake was inoperable. He had the operator test the
lever operated hand emergency brake by applying it and then
putting the loader in gear, and the brake would not stop the
loader (Tr. 77). He also determined that the primary braking
system on the loader "was slow" and that it took "more than the
usual length of area to stop the loader." He had the operator
test the brakes on a flat surface by putting it in both forward
and reverse gears, and in each case "the unit was slow to stop"
(Tr. 78). He also determined that the loader did not have a fire
extinguisher (Tr. 78).
Mr. Shanholtz stated that the loader was operated throughout
the mine property in the stockpile area, around the jaw crusher
at the primary plant, as well as at the secondary plant area. The
loader was also required to cross a state highway separating the
primary plant area from the secondary plant area, and he observed
the loader being used in both areas (Tr. 78-79). He stated that
the loader was used to load customer trucks at both plants, and
it was used at the primary crushing area and the stockpile. He
described the traffic on the highway on the day of his inspection
as "light to medium," and the traffic around the other plant
areas where the loader operated as "quite a bit" (Tr. 79). Except
for one curved road which turns at the jaw crusher, the loader
operator's visibility would not be limited by the road conditions
at the other locations where it travelled (Tr. 80-81).
Mr. Shanholtz stated that when he returned to the mine on
February 26, 1986, he determined that the loader had no service
brakes. However, the windshield, emergency brake, and the back-up
alarm had been repaired, and a fire extinguisher had been
provided (Tr. 83). He stated that sometime between January 7,
when he first issued the citation, and his return on February 26,
the primary brakes had failed. He observed the loader in
operation on February 26, loading
trucks at the riprap plant on the primary side of the highway. He
believed that repairs were made by installing a new head on the
braking system air compressor, and he further believed that this
accounted for the weakness of the braking system when he first
inspected the loader, and for the total loss of brakes when he
returned (Tr. 84).
On cross-examination, Mr. Shanholtz stated that it would
take the loader approximately 50 feet before it would stop when
he had the operator test the brakes on January 7. He also
indicated that the loader worked "all over the plant, wherever it
was needed," and not just on flat surfaces (Tr. 87-88). He had no
knowledge that the state highway department had issued a permit
allowing the loader to cross the state highway at the crossover
in question, and he acknowledged that a sign was posted at that
location warning of equipment crossing the road (Tr. 89). He also
indicated that during the general operation of any loader, the
bucket is raised or elevated off the ground to allow free
movement, and that the raising of the bucket does "prevent vision
of what is out there" (Tr. 89-90). Mr. Shanholtz stated that
while the bucket on the loader in question was not completely up
in the air, it is raised enough so that the view directly in
front of the loader is obstructed (Tr. 90). He did not know
whether the raised bucket would be contrary to or consistent with
the manufacturer's recommendations for loader travel with a
loaded bucket (Tr. 90).
Mr. Shanholtz stated that the loader operator who was
operating the loader on February 26, when he next returned to the
mine advised him that nothing had been done to repair the brakes
since he first issued the citation on January 7, and this is what
prompted him to issue a section 104(b) order (Tr. 93). Mr.
Shanholtz stated that the operator told him that he had verbally
reported the fact that the loader had no brakes on February 25,
the day before his return to the mine, and that his report was
made to the acting maintenance superintendent Tom Nelson (Tr. 94,
96). Mr. Shanholtz confirmed that the gist of the citation which
he issued on January 7, lies in the fact that the loader had
inadequate brakes which would not completely stop it, and a
totally inoperative hand brake (Tr. 97).
Mr. Stovall stated that the cited front-end loader was used
to load "over-the-road trucks out of the stockpile, trucks that
haul up and down the public highways." These trucks were used by
commercial purchasers of rock, and he estimated that the loader
would be used to load 100 trucks a day. At no time prior to
January 6, 1986, did he ever receive
any reports that the loader was running into any trucks, and no
supervisor or the safety committee ever report to him that there
were problems with the brakes (Tr. 162). Mr. Stovall confirmed
that he has a state permit to cross highway 171 with his
equipment, that there are three designated crossings, and warning
signs are posted north and south of the highway warning motorists
of equipment crossing the highway (Tr. 163). He stated that the
highway leads mainly to the quarry, that it is not highly
travelled, and he estimated that three or four cars an hour may
pass the property on the highway (Tr. 164).
Mr. Stovall described the haul roads and entrances and
exists to the mine property, and he estimated that from the two
north crossing, one can see traffic for approximately a half mile
up the highway, and from the south crossing, one can see for a
quarter of a mile (Tr. 165). He confirmed that the loader crosses
the road, but that its operation is limited to the stockpile area
loading material out of the stockpile, and it does not operate
throughout the quarry. When the loader travels or crosses the
road, the bucket is approximately 6 inches or a foot off the
ground, or just high enough to clear the ground, and if it were
in the air it would be top heavy. He has operated a loader, and
while seated high in the cab over the bucket with the bucket
raised as described, "you can absolutely see everything in front
of the bucket." He has never had a moving vehicle accident at the
mine (Tr. 166-167).
Mr. Stovall stated that he first learned that the loader
brakes had totally failed in February when he went to the quarry
and met the inspector. During the January inspection, he learned
that the loader had been cited for "slow brakes" and the lack of
an emergency brake. However, he believed that the emergency brake
had been repaired and the brakes adjusted prior to February 26,
and while he assumed that the loader stopped quicker after the
brake adjustment, he did not personally test brakes, but believed
that attention was given to the braking system after the January
inspection, and some of the work may have been done before Mr.
Joines had his heart attack (Tr. 168). Prior to the February
inspection, a compressor head which generated air and controlled
the braking system had blown and it was promptly replaced (Tr.
169).
With regard to the inspector's assertion that he was told
that the brake condition had been reported a day before the
February 26 inspection, Mr. Stovall stated that he could not
confirm this. He stated that he spoke with two mechanic's helpers
who did not admit that the loader operator had reported the lack
of brakes and simply got into the loader and
started work. Mr. Stovall stated that "the first time we knew
that he had no brakes was when the inspector stopped him and
tested him" and shut the machine down. Mr. Stovall denied that
anyone told the loader operator that he had to operate the
loader, and stated that two spare machines were available that
day. The safety committee had not reported the condition (Tr.
168-169).
On cross-examination, Mr. Stovall confirmed that the safety
committee has the authority to shut a piece of equipment down if
it believes it constitutes an imminent danger. To his knowledge,
this has never been done (Tr. 170). He conceded that the loader
could also have been operating in the area of the riprap plant
since that is a stockpile area, and he confirmed that there are
12 or 14 stockpiles of different sized stones at difference
locations at the mine (Tr. 171). Mr. Stovall stated that he
learned about the brakes being repaired on the loader after the
January inspection after reviewing the citation which was sent to
his office by the scaleman after it was given to him by Mr.
Joines and Mr. Fox (Tr. 174). Mr. Stovall could not recall any
posted speed limit signs on the mine property (Tr. 175).
Donald Joines, respondent's equipment superintendent and
supervisory mechanic, stated that his responsibilities include
the maintenance of all equipment at the mine site, but do not
include anything connected with the electrical operation of the
plant. He confirmed that until his heart problem on February 8,
1986, he helped do the maintenance work in addition to his
supervisory work, and since that time "I just oversee now" (Tr.
191-193).
Mr. Joines stated that prior to January 8, 1986, no one
reported any problems with the emergency brake or primary braking
system on the Michigan 275 end loader, and no report was made
that the loader was not stopping while it loaded trucks. He was
not aware of any customer complaints that the loader had ever run
into any trucks, nor was he aware of any damage claims in this
regard. Mr. Joines confirmed that he was not with the inspector
when he tested the loader, did not observe him test it, and he
did not know how slow it stopped (Tr. 203). After the inspection,
parts were ordered to repair the emergency brake, and new pads
were installed and the brake was adjusted. The primary brakes
were adjusted and cleaned up, and he estimated that repairs were
completed within 3 or 4 days after the citation was issued. The
brakes were working before he left work because of his heart
problem, and he stated that they failed after this time
because he tested them to make sure the loader stopped (Tr.
204-205).
Mr. Joines stated that while the loader is loading from the
stockpile, the operator can see over and through the bucket as it
is raised and lowered, and that while travelling for a distance,
such as across the state highway, the bucket would be almost to
the ground so as to allow the operator to see in front of him,
and the loaders are never operated with the buckets raised in
such a position to obstruct the operator's vision (Tr. 206).
Mr. Joines stated that the terrain over which the loader
operated was virtually level, although there are "a couple of
hills, small grades." Other than the trucks being loaded, there
are no other vehicles in the area where the loader is loading,
and normally, other than a supervisor, people would not be
walking around where the loader is loading. The operator can see
approximately one-half a mile down the state highway at the first
crossing, and a little less at the other crossing. In the event
of a total brake failure, the operator would "slap that bucket to
the ground" to stop it, and it would stop "so fast it will throw
you out of the cab." This would be the case while going forward
or backward with the loader, and if the bucket were loaded, it
would stop faster (Tr. 206-207).
On cross-examination, Mr. Joines stated that dropping the
bucket to stop a loader is not a permissible alternative to
brakes, but if the brakes completely fail that may be the only
reasonable alternative (Tr. 208). Mr. Joines agreed that the
loader may load 100 trucks over a normal 8-hour work shift, and
that the loader may cross the state highway 20 to 25 times a day
(Tr. 209). He confirmed that the air compressor head is
constructed of aluminum and one cannot predict when one will fail
and "it just happened" (Tr. 210).
Section 104(a) "S & S" Citation No. 2657377, issued on
January 8, 1986, cites a violation of 30 C.F.R. 56.9001, and
the cited condition or practice is described as follows: "An
equipment inspection, check-off list was not being utilized at
the Greenville Quarry. Equipment operators have known of defects
on equipment without reporting them. The inspection list shall be
kept for 6 months."
Inspector Shanholtz confirmed that he issued the citation
after determining that equipment operators were not utilizing any
equipment checkoff lists to report equipment defects.
Mr. Shanholtz stated that during the course of regular
inspections he had found a lot of equipment defects in the
maintenance of the respondent's rolling stock which had not been
reported, and he gave the respondent until January 21st to
initiate a procedure to insure that such lists were made
available to the equipment operators and used to report defects.
Mr. Shanholtz stated further that section 56.9001 requires that
such records recording defects be kept on file at the mine office
for a period of 6 months. When he asked to review the records, he
found that none were on file at the office, and none were filled
out and turned in by the operators (Tr. 98).
Mr. Shanholtz stated that no one advised him of the
existence of any union safety committee, and he saw no evidence
of any union safety reporting procedure in existence (Tr. 99). He
stated that he informed the respondent's representatives Donald
Joines, Tom Nelson, and Burdette Fox that he was issuing the
citation because of the lack of checkoff lists. At that time, Mr.
Joines advised him that he had the lists, and he opened a cabinet
next to his desk and Mr. Shanholtz observed "several stacks of
unused checkoff lists" (Tr. 100).
Mr. Shanholtz stated that when he returned to the mine on
February 26, he found that the checkoff lists were not being used
and that the respondent had not instructed the employees in their
use, and this prompted him to issue a section 104(b) order for
noncompliance (Tr. 100). Mr. Shanholtz confirmed that he found
reportable defects affecting safety on both January 8, and
February 26, which should have been found during the inspection
of the equipment, but that no reports had been filed. He stated
that no one from management told him of any existing procedure
for reporting any safety defects (Tr. 100).
Mr. Shanholtz stated that his finding that it was
"reasonably likely" that a fatality would result from the lack of
a reporting procedure was based on the fact that he was finding a
large amount of equipment defects, and had the checkoff lists
been utilized, it was his belief that many of these defects would
have been corrected. He stated that the equipment operators were
not supplied with the lists, nor were they instructed in their
use, and he believed that such instructions should be a part of
any checkoff list procedure (Tr. 101). Mr. Shanholtz stated that
even if the respondent supplied the lists to the equipment
operators, the fact that they were not used would still prompt
him to issue a citation for a violation of section 56.9001 (Tr.
102). Mr. Shanholtz believed that the lists were not utilized
because equipment
operators were aware of defects on equipment and did not report
them (Tr. 104-105).
On cross-examination, Mr. Shanholtz was asked whether or not
he made any inquiry of the equipment superintendent or anyone
else in the mine office as to what had been reported to them and
what was done about it. His response was as follows at (Tr. 106):
A. I talked to just about all of the operators on that
property, of mobile equipment. And I was informed by
them that these defects had existed for a long time,
that they were told to operate the equipment or else.
Mr. Shanholtz stated that he would have accepted any
informal written record of equipment being checked and defects
being reported (Tr. 110). He stated further that he asked
maintenance superintendent Donald Joines whether or not any
reporting system or records were being kept, and Mr. Joines
simply opened a cabinet door and showed him the supply of
checkoff lists, but he did not produce any list which had been
turned in (Tr. 111). Mr. Shanholtz suggested that the equipment
operators did not report equipment defects because they were
intimidated (Tr. 114).
Mr. Shanholtz confirmed that he abated the order after the
respondent posted written procedures instructing equipment
operators as to the procedures for the use of the checkoff lists
(Tr. 114). He confirmed that the lists were being used (Tr. 116).
He also confirmed that the respondent was previously cited in
1985 for not having any checkoff lists, and that was the reason
why it had them at the office (Tr. 116).
Mr. Stovall described the equipment defects reporting
procedure in place at the time of the January inspection as
follows (Tr. 175-176):
A. Every employee on the job knew that Don Joines was
the equipment superintendent and he was totally in
charge of the equipment. Any equipment defects were
reported by these employees to Don Joines.
Q. Were there, in fact, reports?
A. Yes.
Q. How were those reports logged?
A. Don would note the reports himself on his
caterpillar calendar, or whatever it was, as they were
reported to him.
Q. A calendar hanging on the wall-is that what you're
speaking of-or on a desk or someplace?
A. I think it was his desk calendar. It was a desk
calendar.
Q. Then would safety committee people report this or
any employee report this, or how was it reported?
A. It was reported verbally by the safety committee or
the individual employees. And, of course, being around
myself, too, I have discussed-not what I would call
equipment-necessarily safety, but maybe a EUC. Engine
doesn't have enough power. The operator might tell me,
"I need more power out of his engine." and I'll say
something to Don about it. But it's all verbal though.
Q. Now, that system, how long had it been in effect?
A. Ever since I, you know, could remember. We tried to
keep up-not only from a safety standpoint, but from a
maintenance standpoint, we tried to keep up with our
equipment defects the best we could.
Mr. Stovall stated that the procedure he described was in
place during prior MSHA inspections. He indicated that the verbal
system of reporting defects had been accepted on previous
inspections, and while the checklist forms were available, he
found that the verbal system worked better than any written
system (Tr. 177). He stated that after speaking with the
inspector after the February inspection, "we was more or less
ordered to go to the checkoff system," and he complied because
"that is what it took to satisfy the inspector" and not because
it was a better system (Tr. 177). In response to further
questions, Mr. Stovall stated as follows (Tr. 181-183):
JUDGE KOUTRAS: * * * But in this particular case, Mr. Stovall,
obviously, the inspector found absolutely no record keeping at
all and that is what prompted him to issue the citation.
THE WITNESS: Well, the records were being kept, because
I discussed with Don Joines after the January
inspection-and they were not being kept to suit him,
but other inspectors had accepted them as acceptable
when Don showed them the calendar.
**********
On January 9 when the inspector issued this citation-on
January 8-did you have check lists, printed check
lists?
THE WITNESS: We had printed check lists in the storage
cabinet at Greenville Quarries, yes, but we were not
using them.
JUDGE KOUTRAS: Let me ask you this. Aren't the
individual equipment operators required to at least
walk around their equipment and give it a preshift
examination or at least check it before they get in and
operate it?
THE WITNESS: Yes, there are and another problem we had
with two or three of our operators, they couldn't read
or write. So a check list was-number one, they couldn't
fill it out. Number two, they didn't know what they
had.
JUDGE KOUTRAS: Were these particular check lists for
that purpose, for the ones that were literate?
THE WITNESS: No. It had to be verbal with them.
JUDGE KOUTRAS: The ones that could read and write, I'm
saying. In other words, did you use these check lists
for anything?
THE WITNESS: We tried them one time, but then went away from them
because we felt like they were not working.
JUDGE KOUTRAS: In other words, you had this supply of
check lists you had used before the inspector here came
in on January 8.
THE WITNESS: Right.
JUDGE KOUTRAS: But you stopped using them because you
felt they didn't work.
THE WITNESS: Right.
JUDGE KOUTRAS: The verbal system worked better.
THE WITNESS: That is right.
JUDGE KOUTRAS: Were you there when the inspector issued
this citation on January 8?
THE WITNESS: No.
Donald Joines stated that prior to February of 1986,
equipment defects were reported to him verbally, and he would
write them down on a calendar. He would record the date that the
condition was reported and the date that repairs were made. He
stated that he maintained his records in this way after
discussions with Inspector Lloyd Cloyd from MSHA's Knoxville
office, and that Mr. Cloyd found this to be sufficient (Tr. 193).
Mr. Joines stated that he had previously used a written checkoff
list but found that system to be less effective than the verbal
system because it generated "misunderstandings," and in some
instances an operator would check off something and then turn in
the list a week later. With the verbal system, when equipment was
down, it was reported and repaired" as quick as we could repair
it" (Tr. 194).
Mr. Joines explained the circumstances of the inspection
conducted by Mr. Shanholtz as follows (Tr. 195-197):
Q. Did he question you about your reporting system for
defects?
A. Yes, sir. At the time, he came in and wanted to know
if I had a checkoff list,
period. I said, "Yes, sir." That is when I showed him the
checkoff list.
Q. What happened then?
A. That was it. He started writing again.
Q. Did you have the opportunity to show him your
calendar?
A. Well, at the time, really, I didn't.
Q. Why not?
A. Things was moving pretty fast.
Q. Explain that. That doesn't tell me anything.
A. Well, he had his pencil warmed up. I reckon he was
going to keep going.
Q. Did you say, "Hey, wait a minute. I've got a
calendar right here that says%y(4)27"
A. Well, really, I didn't-I didn't-you know, I didn't
really get that far. But I had the calendar there. It
was there in the desk.
Q. That was the system that had been previously used-
A. Yes.
Q.-and was effective and had been approved.
A. Yes. Because this guy from out of the Knoxville
office, every time he came he wanted to see it. And,
you know, and he understood what was happening and we
had no problem with it.
Q. Did there get to be any heated debate between you
and the inspector?
A. There was a few heated words, yes.
Q. What happened to your calendar?
A. While I was off, I guess they figured I wasn't going to make
it, so they cleaned out a whole lot of stuff.
Q. You don't have your calendar today. Somebody threw
it-
A. No. I wish I did have.
**********
Q. Are you saying you didn't have the opportunity to
tell the inspector about your calendar? Is that what
you're saying, or you weren't allowed to?
A. I felt like I didn't have, yes.
Mr. Joines stated that the present system in use at the mine
is the checkoff list. However, he still believes it is less
effective than the verbal system because equipment operators may
hold the lists for 3 or 4 days before turning them in, and many
times 3 or 4 days pass before he sees them (Tr. 197).
On cross-examination, Mr. Joines stated that he could not
remember a prior citation issued on March 13, 1985, by an
inspector from MSHA's Franklin, Tennessee office because of the
lack of a reporting system for equipment defects. He also denied
that he had ever been advised by anyone from MSHA that his
reporting system was less than adequate (Tr. 198).
When asked why he did not tell the inspector that he was
using a calendar to record defects, Mr. Joines responded "maybe
there was a miscommunication" (Tr. 199). Mr. Joines could not
recall whether he had recorded the cracked windshield condition
on the front-end loader on his calendar (Tr. 199). MSHA's counsel
confirmed that Inspector Lloyd Cloud works out of MSHA's Franklin
office, and she did not have a copy of the prior citation of
March 13, 1985, available at the hearing (Tr. 201). Mr. Joines
stated that he was not aware of any brake problems on the
vehicles at the mine and none were ever reported to him (Tr.
202).
Section 104(a) "S & S" Citation No. 2657386, issued on April
22, 1986, cites a violation of 30 C.F.R. 56.4100(a), and the
cited condition or practice states as follows:
Cigarette butts were observed inside the oil storage shed, on the
floor. This is a posted no smoking area. A high fire potential
existed in this area due to oil spillage and accumulation of oily
rags, employees utilizing the oil storage area shall be
instructed in the hazards of smoking in this area.
Inspector Shanholtz confirmed that he issued the citation
after observing approximately five cigarette butts on the floor
of an oil storage shed which is adjacent to and connected to the
main outside shop. The shed is a three-sided structure, with one
front opening, and it contained approximately 20 55-gallon drums
of 10 and 30 weight oil, and some hydraulic fluid. The shed area
is a posted no-smoking area, and the floor area was saturated
with oil spillage to the point where one could smell it and leave
footprints in the cement floor. Also present were oily rags and
paper, and litter. The butts were fresh, and he did not believe
they were there long since they were not soaked in oil (Tr.
119-120).
Mr. Shanholtz stated that he had previously cited the area
for not having a "No Smoking" sign posted, and had previously
discussed the matter with either Mr. Joines or Mr. Burdette (Tr.
120)
Mr. Shanholtz stated that the oil stored in the shed was a
Class II combustible liquid which emitted a vapor at 100 degrees.
In his opinion, a thrown cigarette, or one which was not
extinguished properly, could have ignited any vapor and started a
fire. He also believed that a "flash fire" could occur or
propagate because of the oil spillage and saturation, and the
only means of escape would be out of the front of the shed (Tr.
121-122). His assumption that someone had been smoking was based
on his observation of the cigarette butts (Tr. 122-123). He found
no matches anywhere (Tr. 123).
Mr. Shanholtz stated that no employees are regularly
assigned to the shed area, and employees simply come and go from
the area while servicing their vehicles (Tr. 124). Abatement was
achieved by posting a letter warning employees about smoking in
posted "No Smoking" areas (Tr. 126).
On cross-examination, Mr. Shanholtz confirmed that the oil
was stored on both sides of the inside of the shed, and that the
large front opening was not obstructed. He observed people coming
and going to service their vehicles, and he
observed no one smoking (Tr. 128). He did not believe the
cigarette butts were tracked in, blew in by the wind, or dumped
in from another area. Since they were fresh and were located
inside the middle of the shed, he believed they were extinguished
where he found them by someone who had been smoking (Tr. 130).
Mr. Shanholtz confirmed that he also issued a citation on
April 22, 1986, for a violation of section 56.4102, because of
spillage and leakage of flammable or combustible liquid in the
same shop were he found the cigarette butts (Tr. 131-132). MSHA's
computer print-out of prior violations, exhibit P-3, reflects a
prior violation of section 56.4100(b), issued on January 7, 1986,
for smoking in an area where flammable or combustible liquids are
stored or handled, but Mr. Shanholtz could not recall the details
of that citation (Tr. 132).
Mr. Stovall confirmed that a large "No Smoking" sign was
posted at the oil storage shed in question and that he has never
seen anyone smoking in the shed. He assumed that all employees
understood the posted sign. He described the shed as a "room"
located behind the metal shop building, and he stated that the
south end is composed of doors which provide a 20-foot opening
when they are opened. He stated that all employees have access to
the shed while obtaining oil, and they park in a circular roadway
that goes around the shed and simply walk in to get what they
need. Mr. Stovall confirmed that smoking is prohibited only in
posted areas, and he could not explain the presence of the
cigarette butts on the floor (Tr. 188-189).
Mr. Joines stated that he has never observed anyone smoking
in the oil shed, and he had no knowledge as to how the cigarette
butts got there (Tr. 210-211). He confirmed that he was not at
work when the citation was issued and that he had installed the
"No Smoking" sign (Tr. 211-212).
DOCKET NO. KENT 86-134-M
Section 107(a)-104(a) "S & S" Order No. 2657189, issued on
February 26, 1986, cites a violation of 30 C.F.R. 56.9003, and
the cited condition or practice is described as follows:
The Euclid 35 ton haul truck, S/N 69035 did not have a
functional emergency brake. The emergency brake had
been cited on 1/8/86 during the course of a regular
inspection. Upon this compliance inspection it has also
been found that the rear brakes also do not operate on the haul
truck and have not operated for several years. The fluid
reservoir that provides braking fluid to the rear brakes was
empty with scum like material in the reservoir, indicating that
fluid had not been added for some time. The haul truck shall be
parked until such time that the primary and emergency brakes are
properly repaired.
Section 107(a)-104(a) "S & S" Order No. 2657190, issued on
February 26, 1986, cites a violation of 30 C.F.R. 56.9003, and
the cited condition or practice is described as follows:
The Euclid 35 ton haul truck S/N 69036 was observed
being operated without adequate brakes. The primary
braking system would not stop the haul truck when
tested. The emergency brake when tested would not hold
the truck. When inspected it was found that the haul
truck had only 1 functional wheel brake. Upon
inspection of the fluid reservoir to the braking system
it was found that the reservoir to the rear brakes were
empty. The hoses leading from the reservoir to the
brakes had been disconnected. Dirt and oil on the hose
connections indicate that the hoses had been
disconnected for sometime.
Inspector Shanholtz confirmed that he cited haul truck No.
69036 because the emergency brake would not hold and the primary
braking system or service brakes were also not functioning. When
the truck was tested on a decline going from the primary crusher
down into the pit area, he told the driver to put it in low gear
and to stop and put the emergency brake on. The driver began
driving down the incline but he could not stop the truck and had
to put it in reverse gear to stop. The inspector checked the
braking system and found that it had only one functional brake on
the right front.
Inspector Shanholtz stated that he also followed the same
testing procedure with the No. 69035 truck and found that "it was
slow to stop" when driven down the incline." This truck had been
previously cited on January 7, 1985, for lack of a functional
emergency brake, but he did not check the service brakes at that
time because the driver told him that they were working, and he
took him at his word.
Inspector Shanholtz described the truck braking system, and
stated that upon visual inspection of both trucks, he found that
the rear braking system reservoirs were empty and the hoses had
been disconnected. Dirt had built up on the hydraulic hoses, and
there was a thick "scum-like" substance in the hydraulic
reservoirs which led him to believe that the brakes had not been
functional for some time. He estimated that the brakes had been
in that condition for a year (Tr. 6-12).
Referring to petitioner's photographic exhibits P-4, at
pages 5 and 6, the inspector described the areas and service
roads over which these trucks were operated, including a public
highway, and he estimated that the trucks crossed the highway on
an average of four times a day. He confirmed that the trucks
operated primarily from the jaw crusher to the pit area, and that
they travelled from 15-20 miles an hour over the service roads.
Utility pick-up trucks and some public traffic would also be
operating in these areas. The trucks were equipped with seat
belts, and he cited no other truck defects during his inspection
of February 26 (Tr. 12-14).
On cross-examination, Inspector Shanholtz confirmed that he
had previously inspected both of the cited trucks during the
inspection of January 7, 1985, but did not cite the No. 69035
truck for anything other than a non-functional emergency brake
because he took the operator's word that the other brakes were
operational, and he failed to inspect them more thoroughly (Tr.
15). During his inspection of February 26, he determined that the
69035 truck had no rear brakes, and when they were actuated
during the testing there was no action on the brakes. He then
traced out the lines and checked the reservoir (Tr. 17).
Inspector Shanholtz stated that the truck operator told him
that he had reported the condition of the truck. He also stated
that when he discussed the brake conditions with Mr. Stovall, he
denied that the conditions had been reported (Tr. 17).
Kazimer Niziol, Mining Engineer, MSHA Technical Support
Group, testified as to his background, education, and experience
as a miner, maintenance superintendent, automobile mechanic, and
prior work with a manufacturer of hydraulic braking systems. He
confirmed that he has been involved in MSHA accident
investigations involving haulage truck and underground equipment,
and that he has discussed the braking systems on the 35 ton
Euclid haul trucks in question with the manufacturer and
different engineers (Tr. 23-25). Mr. Niziol
described and explained the braking systems on the trucks in
question (Tr. 27-29). MSHA's counsel conceded that Mr. Niziol did
not inspect the cited trucks in question, and that his testimony
generally covers the truck braking systems (Tr. 28, 30).
John Stovall confirmed that on February 26, 1986, the
emergency brake on the No. 69035 truck was not functional. When
he checked the truck after it had been ordered out of service by
the inspector, he found that the emergency brake did not work and
he agreed with the inspector's finding that it was inoperative
(Tr. 32). With regard to the rear brakes on that truck, Mr.
Stovall stated that he spoke with the driver, Wayne Kiddinger,
who informed him that when the truck was tested on the hill by
the jaw crusher, it "would stop, but not fast enough to suit the
inspector." Since the truck had been taken out of service, and he
was instructed to take it to the shop for repairs, the truck was
not tested again on the hill. When the truck was driven into the
shop on a level concrete floor, the driver jammed on the brakes
and the front wheels locked and skidded on the floor, but the
rear wheels did not skid (Tr. 34).
Mr. Stovall stated that in his opinion, there was
"approximately 50% brake on the rear wheels" of the No. 69035
truck, but that the front brakes were 100 percent. Nothing was
done to repair the front brakes, but the rear brakes were
repaired, and by the time the parts arrived and the work was
finished, it took 3 days to complete the repair job. Mr. Stovall
confirmed that there was a leak in the rear braking system, and
he conceded that 50 percent of the rear brakes were not working
(Tr. 35).
Mr. Stovall stated that Mr. Kiddinger informed him that he
had not reported the brake conditions to anyone, and that he
believed the brakes were sufficient (Tr. 35). Mr. Stovall also
stated that when the brakes were applied on the level concrete
floor of the shop, "he stopped quick enough that the front wheels
skidded %y(3)27 the complete truck stopped just immediately, but
he was on level" (Tr. 36).
With regard to truck No. 69036, Mr. Stovall stated that he
checked its stopping power by having the mechanic drive it on a
slight grade rock incline next to the shop, and that "the truck
did hold on the hill," and that "both front wheels would scoot on
the ground, the loose rock." Work was only done on the rear
brakes of that truck and it was completed in 3 days (Tr. 37). Mr.
Stovall could not explain why the brake hose was disconnected,
and in his opinion, the disconnected
hose had no bearing on the operation of the truck. The driver of
the truck, Norris Johnson, informed him that he had not reported
any "bad brakes" on that vehicle (Tr. 38). Mr. Stovall confirmed
that he recorded several notes concerning the citations on the
face of his record copies and they were made a part of the record
in this case (Tr. 38, exhibits R-1 and R-2).
With regard to the abatement work on the No. 69036 truck,
Mr. Stovall confirmed that new brake shoes and wheel cylinders
were installed on the rear wheels, and the hoses were reconnected
(Tr. 41). He also confirmed that he did not check the emergency
brake on that truck after it was cited, and had no basis for
disputing the inspector's finding that the emergency brake would
not hold the truck (Tr. 42).
In response to further questions, Mr. Stovall stated as
follows (Tr. 42-43):
JUDGE KOUTRAS: So when you get down to the bottom line
on both of these citations, at least to some degree,
the inspector's findings here that the truck brakes
were defective was true, wasn't it, to one degree or
another?
THE WITNESS: They were not a hundred percent (100%),
yes, sir.
JUDGE KOUTRAS: They were not a hundred percent (100%).
THE WITNESS: That is right.
JUDGE KOUTRAS: So would you agree, then, that the
brakes were less than adequate? At least the emergency
brakes were less than adequate if you agree they were
both inoperative.
THE WITNESS: The emergency brakes on those of trucks,
of course, is something-the driver might drive it for
weeks and not know it was-
**********
JUDGE KOUTRAS: What I'm saying is you at least concede
that these brakes weren't a hundred percent (100%),
what they were supposed to be.
THE WITNESS: That is right.
JUDGE KOUTRAS: So they were less than adequate. The
standard says they have to be with adequate brakes.
THE WITNESS: My opinion of adequate brakes might be
something less than a hundred percent (100%).
Inspector Shanholtz was called in rebuttal, and he stated
that his contemporaneous notes made at the time of his inspection
on February 26, reflect that Mr. Kiddinger, the driver of the No.
69035 truck told him that the brakes on that truck "had been that
way for years, that they had never operated and that he was told
by Donald Joines never to fill the two reservoirs because the
brakes didn't work. He also stated the truck was like this for
approximately three years that he had worked there" (Tr. 52).
Mr. Shanholtz stated that the operator of the No. 69036
truck, Norris Johnson, told him that he too was advised by Mr.
Joines not to fill the two reservoirs because they had been
disconnected and the fluid would run out. Mr. Johnson also
informed him that "they had been that way for several years" (Tr.
53). Mr. Shanholtz also stated that Mr. Joines told him that the
operator would continually burn the emergency brakes off and that
they could operate the equipment the way it was (Tr. 53).
Mr. Shanholtz confirmed that he has taken MSHA training
classes covering the operation of hydraulic braking systems, and
in his opinion, rear brakes which are only 50 percent operational
would be inadequate to stop a truck, even though the front brakes
were fully operational (Tr. 55).
Vernon Denton, MSHA Supervisory Inspector, Lexington Field
Office, testified as to experience, education, and background,
including work as a state mining inspector, and he confirmed that
he has worked for MSHA for 17 years. Mr. Denton stated that Mr.
Stovall came to his office to discuss the braking citations with
him and with sub-district manager Fred Jouppery, but that Mr.
Stovall did not tell him that the brakes had been repaired or
were in the process of being repaired (Tr. 60-62).
Mr. Denton stated that Mr. Stovall told him that he had a
letter from someone informing him that the brakes on the
cited trucks were adequate with the rear brakes disconnected. Mr.
Denton stated that he told Mr. Stovall that he could not accept
anything less than the designed brakes, and that Mr. Stovall said
nothing to him about the rear brakes operating at 50 percent
efficiency (Tr. 63). Mr. Denton stated that as an enforcement
policy, truck brakes must be maintained as they are originally
equipped by the manufacturer, and if they are not, the designed
safety of the vehicle is lost. In his opinion, one cannot do away
with half of the designed braking capability and expect to have a
safe vehicle under all conditions. Although the vehicle may be
able to operate at one mile an hour with one or two brakes,
consideration must be given to the fact that the trucks are
operated up and down hills during reasonable mining conditions,
and in order to be adequate the brakes must be at least as safe
as they were designed (Tr. 64). The fact that the trucks in
question may have operated with 50 percent rear brakes over a
3-year period with no reported accidents is no reason for
inferring that an accident will not occur with brakes in those
conditions (Tr. 65). Mr. Denton stated that "adequate brakes," in
terms of enforcement of the safety standard in question means
brakes which are maintained to their design specifications (Tr.
65).
On cross-examination, Mr. Denton stated that he and Mr.
Stovall discussed a number of matters during their meeting,
including negligence and gravity, and Mr. Stovall expressed
concern that he was being singled out for unusually strict
enforcement (Tr. 66). Mr. Denton stated that even if the brakes
were at 100 percent efficiency, this would not support a
reasonable inference that one will never have an accident.
However, he believed the chances were better that no accident
would happen with 100 percent brakes, and that this would be a
"judgment call" (Tr. 67).
Mr. Niziol was recalled, and he identified exhibit P-15 as a
schematic drawing depicting the rear truck braking system with
one set of operative lines to the rear wheel, and one set of
inoperative lines to the wheel. In his opinion, if one wheel had
a problem and lost pressure, the remaining two front wheels and
the one other rear wheel should be able to stop the vehicle
within the stopping distances established by the Society of
Automobile Engineers (SAE), and that is what the system is
designed to do. However, if the truck is used in that condition
without being repaired, it will result in further brake abuse and
the braking system will be overheating and will cause a loss of
friction in the lining. While the condition may be good enough to
provide a stop, it is not good for further use (Tr. 70). In his
opinion, while the brakes may stop the truck on this one
occasion, they
would be inadequate for continued day-to-day use (Tr. 71). The
parking brake does no good for dynamic braking, and it will only
hold the vehicle in a stationary position on a grade (Tr. 72).
Mr. Niziol stated that a truck with only two functional
front brakes may be capable of stopping when it is first
operated, but after the brakes heat up, they may not work at all
due overheating of the system and that this is very common (Tr.
76).
Mr. Donald Joines was called in rebuttal by the respondent,
and he denied that he ever instructed the truck drivers in
question not to fill the brake fluid tanks. He also denied that
he had told the drivers not to properly maintain the brakes or
not to report the braking conditions. He also denied that he ever
instructed the drivers to operate the trucks when the brakes did
not work because to do so would damage the transmissions which
are expensive (Tr. 79).
DOCKET NO. KENT 86-155-M
Section 104(a) No. 2657392, issued on April 23, 1986, cites
a violation of 30 C.F.R. 56.9020, and the cited condition or
practice is stated as follows:
Adequate berms were not provided for the elevated
roadway where it crosses the stream at two places in
the crushing plant. Rock berms had been provided at one
time but had slipped down the embankment. Haul trucks
and front-end loaders utilize these crossover points.
Inspector Shanholtz confirmed that he issued the citation on
April 23, 1986, after observing that the material used to berm
two road crossovers of a dry stream bed that runs through the
mine property had eroded and slipped down into the stream bed.
There were several areas where there was either a very low berm
or no berm at all. Mr. Shanholtz stated that the correct standard
which should have been cited is section 56.9022, rather than
56.9020.
Mr. Shanholtz identified photographic exhibit P-4, page 2,
as representative of the appearance of the two crossovers and the
stream bed, but not the berms. The crossovers were approximately
10 to 11 feet wide, and the average width of the trucks crossing
at those locations was 8 or 9 feet.
Mr. Shanholtz stated that customer trucks, and company utility,
pick-up, and 22-ton stockpile trucks used the crossovers, and
that the crossover shown in the exhibit was the primary crossover
and heavily travelled, while the other crossover was used less.
The conditions at both cited locations were the same.
Mr. Shanholtz estimated that the cited conditions had
existed for at least several months. He confirmed that berms had
existed at both locations at one time, but that the rocks had
slipped over the bank. He identified the lower photographic
exhibit P-4 page 2 of 11, as the rock which had slipped over the
bank.
Mr. Shanholtz stated that abatement was achieved by
providing more rock at the locations in question, and he
confirmed that the crossovers are drawn in on the map of the main
plant site, exhibit P-2 {Tr. 6-9).
On cross-examination, Mr. Shanholtz stated that the
crossover shown in the photograph was approximately 15 feet wide,
and that the ditch is about 8 feet deep. He confirmed that when
he issued the citation he made a finding that an injury was
unlikely and that the violation was not significant and
substantial. He changed these findings later on April 29, 1986,
when he modified the citation to reflect the gravity as
"reasonably likely," and that the citation was "significant and
substantial." When asked why he had changed his mind, he
responded "it was simply a clerical error on my part" (Tr. 11).
Mr. Shanholtz believed that the berm conditions which he
observed on April 23, were a "fairly serious and major problem."
When asked why he had not cited the conditions previously during
his inspections of January 8, February 26, or March 4, 1986, he
responded "I have no idea. I'm human, I guess." He did not
believe that the rocks which apparently slipped into the creek
"just happened," and he was certain that the berm conditions had
existed for several months even though they were not previously
cited (Tr. 12).
Mr. Shanholtz stated that the roadway at the cited crossover
locations was "elevated" at that portion where it crossed the
stream bed in that there was a drop-off on both sides. The
roadway at those locations was elevated above the stream bed (Tr.
15-17). Mr. Shanholtz believed that those elevated portions of
the roadway created a hazard.
In response to further questions, Mr. Shanholtz stated that berms
were required at the crossovers to prevent a vehicle from going
into the stream bed and overturning (Tr. 21). He considered the
fact that vehicle traffic was heavier in April when there was
more production then in January (Tr. 22). He believed that any
ditch over 4 feet in depth could easily cause the dump trucks or
a front-end loader using the crossovers to turn over (Tr. 22).
Mr. Shanholtz stated that with the berms in place, the width
of the roadway was adequate for daily truck usage (Tr. 23). The
berms are constructed from whatever material is available, such
as rock or fill dirt (Tr. 25).
Mr. Shanholtz stated that the three people exposed to the
hazard would be the two stockpile truck drivers and the loader
operator who crosses the crossover to load customer trucks or to
clean up (Tr. 27). Access to the crossovers by the vehicles would
depend on the direction of vehicle traffic. The flow of traffic
varies, and some trucks may approach the crossovers straight
across, while other vehicles could approach it at an angle or by
turning into the crossovers (Tr. 28). Customer trucks also used
the crossovers (Tr. 29).
Mr. Shanholtz confirmed that the width of the crossovers
only allowed for one truck at a time to cross, and he made no
inquiries as to the respondent's traffic procedures or controls
(Tr. 29).
In response to further questions, Mr. Shanholtz stated as
follows (Tr. 29-32):
Q. You indicated on here that you thought that
negligence was high in this case. Why did you mark it
high?
A. Okay. At that time, I didn't feel the crossover berm
was being maintained. It had been established and had
been allowed to deteriorate. The operator knew that
berms were needed in that area, that they had been
provided once before and that they had been allowed to
deteriorate.
Q. There were some berms there, weren't there?
A. Partial, yes.
Q. So that is why you thought the negligence was high?
A. Yes.
Q. And you said initially the S & S-when you found non
S & S, it was strictly a clerical error?
A. Yes, sir.
Q. You talked to nobody on the 29th?
A. No, sir.
Q. This is not a case of your just not thinking it was
S & S and then maybe your supervisor may have
suggested, "Hey, this is a berm citation. This can't be
non S & S."
A. No, because the citation was issued on 4/23 and the
report probably wasn't issued until 4/29. So it was
just a clerical error that I caught.
Q. What about the gravity part where you said initially
it was unlikely and later reasonably likely, was that
also a clerical error?
A. Yes, sir. That was changed due to the volume of
traffic across that crossover.
Q. When did you determine the volume of traffic, at the
time you issued the citation?
A. Yes, sir.
Q. And the citation of 9020, was that clerical?
A. Yes, sir.
John Stovall stated that he "paced off" the primary
crossover location and found that it was 27 feet wide without the
berm in place, and 20 feet with the berm. The distance across and
through the crossover was 15 feet. The widest truck and end
loader using the crossovers was 14 feet, and the smallest were
the customer truck and pick-ups, which were 8 feet wide. He
estimated that there would be 3 feet on each
side of the largest vehicle as it passed over the crossover (Tr.
34-36). He stated that several years ago an MSHA inspector
requested him to lay a couple of rocks on each side of the
roadway, and he is not aware of any truck going into a ditch
since he has operated the mine from 1962 to the present (Tr. 37).
Mr. Stovall described the crossovers as a natural
drainageway ditch. A drain pipe was placed in the ditch to allow
water to flow through, and fill was dumped over the pipe to
construct the crossover. During the prior inspections of January,
February, and March, no mention was made of the ditch. The
vehicles crossing the ditch travel at an average speed of 5 miles
per hour, and most traffic that crosses is unloaded (Tr. 41).
On cross-examination, Mr. Stovall confirmed that the
drainage ditch is cleaned out every 3 or 4 years to keep the
drain tiles free of debris. He also confirmed that there is not
enough clearance to permit two vehicles to pass each other over
the crossovers, and this is not done (Tr. 42).
Mr. Shanholtz stated that he has observed vehicular traffic
approach the crossovers from different directions, including
right and left turns into and across the crossovers (Tr. 47). Mr.
Stovall indicated that access to the primary crossover is by an
approach of a "100 feet straight shot either side" (Tr. 48).
Mr. Shanholtz was called in rebuttal, and he stated that he
had issued another citation for lack of berms over a crossover
ditch by the jaw crusher, and the condition was abated. He also
indicated that in that instance it was reported to him that a
hydraulic hose had broken on a Euclid 35 ton haul truck and that
the truck lost its steering and went into the ditch beside the
haul road. However, this incident occurred "on the other side" of
the location where the citation was issued, and it was not at the
same location (Tr. 51).
Mr. Shanholtz stated that the "rule of thumb" for compliance
with the berm standard in question is that a berm be constructed
so that its height is mid-axle to the largest piece of equipment
using the roadway (Tr. 52). He also stated that assuming the
width of the roadway and the depth of the ditch at the crossover
were as stated by Mr. Stovall, it would not change his opinion as
to whether berms were required at the cited locations (Tr. 53).
Mr. Shanholtz reiterated that he observed vehicular traffic
approaching and using the crossover from both directions and at
different angles, and that there was no posted set traffic
pattern (Tr. 53). Although he confirmed that he issued another
citation for employee over-exposure to "nuisance dust" on the
roadway near the secondary crushing plant, and indicated that
this dust "could very well possibly" have contributed to a truck
driver's visibility and could affect the gravity of the
situation, he conceded that he did not consider this dust to
impact on the gravity of the citation which he issued for
inadequate berms (Tr. 54-57).
Findings and Conclusions
DOCKET NO. KENT 86-133-M
Fact of Violation
Citation No. 2657368, January 7, 1986, 30 C.F.R. 56.12016
The respondent is charged with a violation of mandatory
safety standard section 56.12016, which provides as follows:
Electrically powered equipment shall be deenergized
before mechanical work is done on such equipment. Power
switches shall be locked out or other measures taken
which shall prevent the equipment from being energized
without the knowledge of the individuals working on it.
Suitable warning notices shall be posted at the power
switch and signed by the individuals who are to do the
work. Such locks or preventive devices shall be removed
only by the persons who installed them or by authorized
personnel.
In North American Sand and Gravel Company, 2 FMSHRC 2017
(July 1980), the judge affirmed a violation of section 56.12016,
after finding that a mine operator simply removed fuses when
electrical equipment was down for repairs, and had no lock-out
procedure to insure that anyone working on the equipment would
not be injured by someone inadvertently starting the equipment.
Likewise, in Brown Brothers Sand Company, 3 FMSHRC 734 (March
1981), a violation was affirmed where it was found that an
employee working on a pump deenergized the equipment by opening
the power "knife" switch, but failed to lock out the switch to
prevent it from being energized without his knowledge.
In Price Construction Company, 7 FMSHRC 661 (May 1985), a welder
with 25 years experience lost a leg when he was injured by the
rollers of a crusher he was working on. The accident occurred
when the plant foreman misunderstood the welder's instructions
and engaged a switch which had not been locked out and simply
left in the "on" position. The plant superintendent admitted that
he did not require padlocks to lock out roller switches, and the
existing "lock-out" procedures was accomplished by merely turning
off the generator and cutting the switches. The judge found a
violation of section 56.12-16, and found that the company safety
director admitted that he knew that a padlock had to be used on
the roller switch to conform with the required lock-out
procedures, and that it is a generally understood practice in the
mining industry that a "lock-out" requires the use of a padlock.
Section 56.12016, requires that power switches be locked out
before work is performed on any electrically powered equipment,
and the locks may only be removed by the person who installed
them or by other authorized personnel. In this case, the
inspector found that the mine had no established lock-out
procedures and the evidence establishes that no locks were
available or being used to lock out the switching equipment
located in the switch house. Further, the respondent has not
rebutted the inspector's testimony that the quarry superintendent
admitted that no locks were available to physically lock out the
switches, and that the only purported "lock-out" procedure in
effect called for turning off the equipment and shutting the
switch house door. Although the inspector testified that several
employees told him that electrical equipment was de-energized at
the power source when it was worked on, they also told him that
they were unaware of any established lock-out procedures.
While there is no evidence that anyone was performing any
work on electrical equipment at the time the inspector noted the
violation on January 7, the inspector noted some burned out
motors stored in the yard and he assumed that they came from the
switch house. Since he found no evidence that locks were
available or used to lock-out electrical equipment, he further
assumed that any prior work on the motors was done without
locking out the power switches. Further, the inspector determined
that motors were routinely changed out as they burn out, and that
crushing and screening equipment were similarly serviced
periodically, and he also assumed that this work was done without
locking out the power switches.
In his posthearing brief of June 30, 1987, respondent's counsel
argues that it was using independent contractors for its
electrical work before hiring an in-house electrician. Counsel
asserts that a lock-out policy was adopted and locks were
purchased, but apparently on the occasion when the inspector was
at the mine the individual doing the work did not use any locks.
Counsel asserts further that the employee had been told to use a
lock but failed to put it back on as required.
The citation at issue in this case is the one issued by the
inspector on January 7, 1986, and the petitioner seeks a civil
penalty proposal for that violation. The incident concerning the
electrical work being done by an individual who did not use the
locks which had been purchased by the respondent to abate the
January 7, citation, occurred on February 26, 1986, when the
inspector re-inspected the mine and issued a section 104(b)
order. That violation is not at issue in this case, and it is not
the subject of this case. Accordingly, the fact that an employee
was not using a lock which had been provided on February 26, is
not material to the citation issued on January 7.
The testimony and evidence advanced by the respondent does
not rebut the inspector's findings with respect to the lack of a
lock-out procedure mandating the use of locks to physically lock
out the power switches on January 7, 1986. Mr. Stovall candidly
admitted that at the time of the inspection no locks were
available at the plant to lock out the switches, and only after
the citation was issued was any effort made to purchase locks and
make them available to service personnel. Although Mr. Stovall
alluded to the fact that all prior electrical work at the site
was performed by contractors who "knew what the rules of the game
were and did what was necessary to protect himself," and that
outside electricians would disconnect the switch itself before
doing work on electrical equipment, the fact remains that
respondent presented no credible evidence that any switches were
ever locked out as required by the standard. With regard to the
burned out motors observed by the inspector, Mr. Stovall simply
suggested that not all of them came from the switch house. This
suggests that some of them did.
I take note of the fact that the citation, on its face,
makes no mention of the fact that locks were not provided or used
to lock out the power switches in the switch house. I also note
that the inspector conceded that he issued the citation because
he found no written established lock-out procedure requiring the
physical lock out of electrical equipment,
and not because there were no locks available to lock out the
equipment.
I find nothing in section 56.12016 that specifically
requires a mine operator to promulgate written procedures for
locking out electrical equipment. Although one may reasonably
conclude that such established procedures in writing may be a
desirable safety practice, I find nothing in the standard that
requires it. However, on the facts of this case where the
preponderance of the credible evidence clearly establishes the
total lack of locks to physically lock out the electrical
equipment during maintenance work, and an inadequate system in
place which simply required the turning off of equipment and
simply shutting the door to the switch house, I conclude and find
that a violation of section 56.12016 has been established.
Although the inspector confirmed that the respondent had a
procedure for de-energizing the power source by turning off
electrical equipment which was being worked on, this only
establishes possible compliance with the first sentence found in
section 56.12016. It does not comply with the requirement that
power switches be locked out while the work is being performed.
The citation IS AFFIRMED.
Citation No. 2657373, January 8, 1986, 30 C.F.R. 56.9003
The respondent is charged with a violation of section
56.9003, which provides as follows: "Powered mobile equipment
shall be provided with adequate brakes."
The inspector testified that when the loader operator tested
the loader emergency brake in his presence by applying the brake
while the loader was in gear, the brake would not stop the
loader. The operator also tested the primary braking system on a
level surface with the machine in gear, and the inspector found
that while operated in both forward and reverse gears, the loader
"was slow to stop" and that it took more than the usual length of
area to stop the loader.
In its posthearing brief, at page 2, the respondent
maintains that the loader operator did not complain about the
condition of the windshield, and that the inspector never got
into the operator's cab to determine whether there was any
problem with operating the loader with a cracked windshield.
Further, the respondent points out that it received no complaint
from union safety committee concerning the condition of the
loader, and that it operated on level ground with "adequate"
brakes notwithstanding the inspector's findings. At page 3 of his
brief, respondent's counsel states that the inspector had
previously inspected the loader 2 or 3-months
prior to the time he issued the citation, but failed to cite it
for any defects. Counsel suggests that the inspector's assertion
that the equipment had operated in this condition for years
defies credibility because he failed to cite it in the past.
In this case, the issue presented is whether or not the
petitioner has presented credible evidence to support the
inspector's findings that the cited loader had inadequate brakes.
Although the condition of the windshield, the inadequate back-up
alarm, and the lack of a fire extinguisher may have been
contributory factors to the hazard presented, the gist of the
violation lies in the inspector's finding that the brakes were
inadequate, and the respondent's counsel agreed that this was the
case (Tr. 97). Thus, the condition of the windshield is not
particularly relevant to the question of a violation of section
56.9003, for inadequate brakes.
I believe that counsel has confused the inspector's
testimony with respect to any assertion that the cited condition
may have existed for years. I believe that the inspector's
testimony concerning any pre-existing brake conditions came about
during his testimony regarding two citations that he issued for
inadequate brakes on two haulage trucks (Docket No. KENT
86-134-M). In any event, such testimony goes to the question of
negligence, and not to the question as to whether the brake
condition found by the inspector constitutes a violation of the
cited standard. Further, the fact that the safety committee
failed to report any defective brake condition is irrelevant to
the question of whether a violation has been established.
On the facts here presented, the respondent has not rebutted
the credible findings by the inspector with respect to the
condition of the brakes on the cited loader in question. Mr.
Stovall stated that he first learned about the condition of the
loader brakes when he reviewed a copy of the citation after it
was issued. Equipment superintendent Joines confirmed that he was
not with the inspector when the loader was cited, and he had no
knowledge as to how slow it may have stopped. However, he
confirmed that new pads were ordered and installed to repair the
emergency brakes, and that the primary brakes were adjusted and
cleaned.
I conclude and find that the credible evidence adduced by
the petitioner establishes that the emergency and primary brakes
on the cited loader were less than adequate when the inspector
inspected the loader and issued the citation. I
further find and conclude that a violation of section 56.9003 has
been established, and the citation IS AFFIRMED.
Citation No. 2657377, January 8, 1986, 30 C.F.R. 56.9001
The respondent is charged with a violation of section
56.9001 which provides as follows:
Self-propelled equipment that is to be used during a
shift shall be inspected by the equipment operator
before being placed in operation. Equipment defects
affecting safety shall be reported to, and recorded by
the mine operator. The records shall be maintained at
the mine or nearest mine office for at least 6 months
from the date the defects are recorded. Such records
shall be made available for inspection by the Secretary
of Labor or his duly authorized representative.
The second sentence of section 56.9001 requires that
equipment defects affecting safety be reported to, and recorded
by, the mine operator. The citation charges that the respondent's
equipment operators knew of equipment defects but did not report
them, and that the respondent failed to utilize an "equipment
check-off" list for the reporting and recording of such defects.
I find nothing in section 56.9001, that requires a mine
operator to have any formalized written check-list system for the
reporting and recording of equipment defects. The standard simply
requires the pre-operational inspections of equipment, and the
reporting and recording of any defects noted during that
inspection. I take note of the fact that MSHA's Metal and
Nonmetal Mine Safety and Health Inspection Manual, 1981 Edition,
which contains guidelines and applications of the standards found
in Parts 55, 56, and 57, Title 30, Code of Federal Regulations,
makes no reference to any particular methods or systems which
must be used for reporting and recording equipment defects.
In United States Steel Corporation, 6 FMSHRC 1435 (June 26,
1984), the Commission affirmed a judge's finding of a violation
of the identical standard at issue in this case. The facts in
that case reflect that the mine operator was using an oral system
of reporting equipment defects, but had failed to record an oral
report made with respect to certain brake defects on a truck. The
violation was affirmed because the evidence established that a
defect had in fact existed,
but that the person who received the oral report forgot to record
it and act on it, and not because of the failure to utilize any
particular written check-list form.
In the instant case, there is support in the record for a
reasonable conclusion that the inspector believed that section
56.9001 required a mine operator to utilize a formalized written
equipment check-off list for the purpose of reporting equipment
defects. The inspector readily admitted this during the course of
the hearing. He testified that "I issued a citation on 1/8 for
failure to have an operator's checkoff list utilized by the
company. And I gave them till the 21st to initiate a procedure
that they would make the list available and utilize it" (Tr. 98).
And, at transcript page 99, where he states that "when I issued
the citation and Donald Joines was in the office there and there
was Donald Joines, Tom Nelson and Burdette Fox. I told them at
that time I was issuing a citation for the checkoff list." He
also confirmed that while the respondent had the forms available
and therefore "satisfied the first requirement," they were not
being used (Tr. 103).
In addition to the inspector's testimony, the record
establishes that the inspector subsequently issued an order after
finding that the check-off lists were not being used, and it was
terminated, and the violation abated, only after it was
established to the inspector's satisfaction that the respondent
had established a procedure for the use of written check-off
lists and issued written instructions to its employees as to
their use.
During the hearing, it was suggested that the respondent had
the written check lists available because it had been previously
cited for a violation of section 56.9001, on March 13, 1985.
However, no evidence was forthcoming with respect to this prior
violation, and petitioner's counsel did not produce a copy of the
citation. Respondent's evidence suggests that as a result of the
prior citation, a supply of written formalized check-list forms
were obtained but were not used because they proved to be
ineffective. It also suggests that the respondent began using an
oral system for reporting and recording equipment defects on a
desk calendar kept in the equipment supervisor's office, and that
another MSHA inspector somehow approved of this practice as
acceptable compliance with section 56.9001. However, neither
party called that inspector to testify.
In further clarification of his interpretation of section
56.9001, the inspector testified that he would have
accepted any written proof that equipment defects were being
reported and that such a reporting or recording system need not
be formalized (Tr. 110). He confirmed that when he inquired of
the respondent and asked for proof that defects were being
reported and recorded, nothing was shown to him in writing (Tr.
117). In this regard, Mr. Stovall admitted that when the citation
was issued on January 8, 1986, printed check-list forms were
available and stored in a cabinet in the mine office but they
were not being used. Mr. Stovall confirmed that he was not
present when the inspector issued the citation and did not
discuss the matter with him.
Respondent's equipment supervisor Donald Joines also
admitted that while the check-off lists were available on January
8, 1986, they were not being used. He contended that the
inspector simply asked him if he had such a list, and that he
showed him the blank printed forms. Even though Mr. Joines
claimed that he had his "calendar check-list" available at the
time of the inspection, he did not tell the inspector about it
and did now show it to him. Mr. Joines at first testified that he
did not believe that the inspector gave him an opportunity to
explain about his calendar system and insinuated that the
inspector was pre-disposed to write the citation, but later
testified that there may have been some miscommunication between
him and the inspector and that they had some "heated words" over
the citation. Mr. Joines could not produce the purported calendar
in question during the hearing, and he confirmed that it was
destroyed during the time he was off the job recovering from
heart surgery, and Mr. Stovall also confirmed that this was the
case.
The respondent has produced no evidence as to what may have
been recorded on the calendar, nor has it produced any credible
evidence or proof to establish that equipment operators were
reporting equipment defects or that such reported defects were
being recorded so that they would be available for inspection
during the required 6-month period pursuant to section 56.9001. I
note that neither party in this case saw fit to call any of the
equipment operators to testify in this case. I also find it
amazing that the respondent would destroy the purported calendar
which could have provided proof that equipment defects were being
reported and recorded, and that Mr. Joines did not even mention
it or show it to the inspector at the time the citation was
issued.
As a condition precedent to establishing a violation of
section 56.9100, the petitioner must present some credible
evidence that the kinds of equipment defects required to be
reported and recorded so that repairs could be timely
accomplished in fact existed. Some proof must be forthcoming that
defects affecting safety existed but were not being reported or
recorded prior to the time the inspector issued the citation on
January 8, 1986.
The petitioner's proof that prior reportable equipment
defects existed consists of the inspector's testimony that the
condition of the equipment as he found it indicated a need to use
a check-list, his assertion that since he found many defects
which needed attention during his inspections, it was obvious
that they were not being reported, recorded, or corrected, and
his testimony that he talked to "just about all of the mobile
equipment operators on the property and was informed that these
defects had existed for a long time" (Tr. 106; 98; 101). The
inspector also testified that even though the check-list forms
were available to the respondent on January 8, 1986, they were
not being used because the equipment operators were not reporting
any equipment defects (Tr. 105).
As indicated earlier, none of the equipment operators were
called to testify in this case. It seems to me that these
operators would be the best evidentiary source concerning
equipment defects, the length of time that they existed, and the
fact that they were being reported or not reported, recorded or
not recorded, or ignored. The inspector suggested that the
equipment operators were intimidated and instructed to operate
the equipment with known defects. However, there is a total lack
of evidence in the record to support these conclusions. Further,
since such charges raise the possibility of section 110(c)
violations, it seems to me that if the inspector had any evidence
that operators were instructed to operate equipment with known
safety defects that were in violation of any mandatory safety
standards, he had an obligation to report this so that MSHA could
pursue the matter further. There is no information that this was
done. Although petitioner's counsel expressed some reluctance
about identifying the source of this information, she could have
subpoenaed the equipment operators to testify about their
knowledge of any safety defects, but she did not do so.
Another available evidentiary source to establish the
existence of reportable equipment defects prior to the issuance
of the citation on January 8, 1986, is MSHA's computer print-out
listing prior violations. However, petitioner's counsel did not
pursue this during the hearing, and she failed to provide any
further information with regard to the prior violation of section
56.9001 which was issued on
March 13, 1985. Further, no testimony was elicited from the
inspector as to his knowledge of these violations, whether or not
he issued them, or whether they involved equipment safety defects
required to be reported and recorded pursuant to section 56.9001.
Although the inspector did refer to his observation of equipment
operating with no brakes, that notation was made on his
subsequent order of February 26, 1986, and he indicated that they
were observed "during this compliance inspection." I take this to
mean the inspection of February 26, 1986, which was subsequent to
the January 8, 1986, inspection.
A review of MSHA's computer print-out, exhibit P-3, listing
the respondent's prior violations, reflects a total of 49
violations during the period April 23, 1984 to April 22, 1986.
Seventeen of these violations were issued subsequent to January
8, 1986. Eight were issued in 1984 and 1985, more than 6-months
prior to January 8, 1986. Six listed violations are the subject
of the instant proceedings. With the exception of the instant
citation, three of these violations were issued subsequent to
January 8, 1986. One was issued on January 7, 1986, and did not
concern equipment defects, and one was issued on January 8, 1986,
and it concerns the defects noted on the front-end loader which
was cited on violation No. 2657373. The remaining violations,
with two exceptions, concern mandatory standards which do not
involve self-propelled equipment defects. The two exceptions
concern a citation issued on January 7, 1986, for a violation of
section 56.6042 for failure to provide a fire extinguisher on
self-propelled equipment for which the respondent paid a $20
"single penalty assessment," and one issued that same date for a
violation of section 56.9003, for inadequate brakes on mobile
equipment for which the respondent paid a penalty assessment of
$206.
After distilling the information reflected on the computer
print-out, it would appear that the two prior violations issued
on January 7, 1986, concerning the lack of a fire extinguisher on
self-propelled vehicles, and inadequate brakes on self-propelled
equipment, which were paid, involved equipment defects which were
required to be reported pursuant to section 56.9001. However, the
petitioner failed to introduce these citations, provided no
information with respect to the circumstances under which they
were issued, and presented no testimony or evidence that
Inspector Shanholtz conducted the inspections which resulted in
the issuance of those citations, or that he was even aware of
them at the time he issued the citation of January 8, 1986. Under
the circumstances, I cannot conclude that these citations were
among the "many
unreported equipment defects" that the inspector claims formed
the basis for the issuance of the citation in issue.
The only available credible evidence of the existence of any
equipment defects affecting safety which were present on January
8, 1986, is the front-end loader citation (No. 2657373) which was
issued that same day (exhibit P-7). It is the subject of this
proceeding, and the cited violation has been affirmed. The
citation reflects that it was issued at 8:45 a.m., during the
same inspection, and prior to the time the reporting citation in
issue here was issued. During his testimony in connection with
the loader violation, Inspector Shanholtz confirmed that he found
"quite a few defects that affected safety" on the loader,
including a cracked, broken, and shattered windshield that would
impair the operator's vision, a non-functioning back-up alarm, an
inoperable emergency brake, inadequate service brakes, and the
lack of a fire extinguisher. Under the circumstances, I find that
the inspector had reasonable cause to support his belief that
equipment defects were not being timely reported or addressed by
the respondent. Coupled with the fact that the respondent could
produce no evidence that such defects were being reported or
recorded as required by the regulations, I further conclude and
find that the petitioner has established a violation of section
56.9001. Accordingly, the citation IS AFFIRMED.
Citation No. 2657386, April 22, 1986, 30 C.F.R. 56.4100(a)
The respondent is charged with a violation of mandatory
safety standard section 56.4100(a), which provides as follows:
"No person shall smoke or use an open flame where flammable or
combustible liquids, including greases, or flammable gases are;
(a) used or transported in a manner that could create a fire
hazard; or (b) stored or handled."
The inspector issued the citation after finding
approximately five fresh cigarette butts on the floor inside a
storage room or shed used to store combustible motor oil and some
hydraulic fluid. The area was a posted "No Smoking" area, and the
shed was used by employees to service their vehicles. The
inspector saw no one smoking, and the presence of the tell-tale
cigarette butts led him to conclude that someone had been
smoking.
In its posthearing brief, the respondent maintains that the
citation should be dismissed "for a total want of proof."
Respondent's assertion in this regard is rejected. The respondent
does not deny the presence of the cigarette butts inside the
shed, and it offered no reasonable explanation as
to how the butts may have gotten there. On the other hand, the
petitioner has established that fresh cigarette butts were
present inside the oil storage shed in question. While it may be
true that the inspector did not observe anyone smoking, I
conclude and find that the tell-tale fresh cigarette butts found
by the inspector, while circumstantial, is sufficiently adequate
to support a reasonable inference that someone had been smoking
in or around the posted "No Smoking" area, and put out the butts
on the floor where they were found by the inspector. Under the
circumstances, the citation IS AFFIRMED.
DOCKET NO. KENT 86-134-M
Fact of Violations
Order Nos. 2657189 and 2657190, February 26, 1986, 30 C.F.R.
56.9003
The respondent is charged with two violations of section
56.9003, which requires that powered mobile equipment be provided
with adequate brakes. In these instances, the inspector found
that a 35-ton haul truck had an emergency brake which did not
function, and rear brakes which were inoperative. On a second
truck, he found that the primary braking system had only one
functional brake and an emergency brake which did hold the truck.
Further, the inspector found that the brake fluid reservoir
providing fluid to the rear brakes of the first truck was empty,
and that the reservoir on the second truck was empty and that the
brake hoses were disconnected.
In support of the violations, the inspector testified that
both trucks were tested during the inspection. With regard to the
truck No. 69036, the inspector stated that when it was tested on
a decline, the driver could not stop the truck with the brakes
and he had to put it in reverse gear to stop it. Upon checking
the braking systems, he found that the emergency brake would not
work, and that only the right front service brake was functioning
properly. With regard to truck No. 69035, the inspector stated
that the emergency brakes were not functioning, and that the
truck "was slow to stop" when tested on a decline.
Mr. Stovall conceded that the emergency brake on truck No.
69035 was not functioning, and that 50 percent of the rear
braking system was defective or inoperative and that there was a
leak in the system. With regard to truck
No. 69036, Mr. Stovall did not dispute the inspector's finding
that the emergency brake would not hold the truck. He also did
not dispute the fact that the brake hoses were disconnected, and
he confirmed that new brake shoes and wheel cylinders were
installed on the rear wheels and that the hoses were reconnected.
He also confirmed that the rear brakes on the No. 69035 truck
were overhauled.
In addition to the testimony of the inspector who issued the
violations after inspecting the cited trucks, the petitioner also
presented testimony from a supervisory inspector who testified
that brakes which are not maintained as they were originally
equipped, or which are not maintained to their design
specifications, are less than adequate within the meaning the
requirements of section 56.9003. This inspector also testified
that a truck which has lost half of its established rear braking
capacity has lost the designed safety of the vehicle and cannot
be expected to be operated safely under all conditions.
The petitioner also presented testimony from an MSHA braking
expert who confirmed that while a truck with a partial operative
braking system may be capable of stopping when first operated, it
is common for such brakes to be rendered inoperative as they heat
up, and operating the trucks in such a condition will result in
further brakes abuse and render the brakes inadequate for
continued use.
The respondent's defense is based on Mr. Stovall's belief
that even though the service brakes may not have been
"one-hundred percent," they were still adequate within the
meaning of the cited section. This contention is rejected. It
seems clear to me from the credible evidence presented by the
petitioner, that the emergency braking system on both cited
trucks were not functioning at all. With respect to the primary
braking systems, the credible evidence establishes that the brake
fluid reservoirs on both trucks were empty and the brake hoses on
one of the trucks were disconnected. Further, the evidence
establishes that the driver of one of the trucks had to put it in
reverse gear to stop it, and that the only functioning service
brakes were those on the right front. The rear brakes on the
second truck were only 50 percent functional, and there was a
leak in the system.
I conclude and find that the petitioner has established the
violations in question by a clear preponderance of the credible
evidence adduced in this case. Accordingly, the violations and
the orders ARE AFFIRMED.
DOCKET NO. KENT 86-155-M
Fact of Violation
Citation No. 2657392, April 23, 1986, 30 C.F.R. 56.9022
Although the citation as issued cites a violation of
mandatory safety standard section 56.9020, the inspector
confirmed that this was a "clerical error," and that he intended
to cite section 56.9022 which provides that "Berms or guards
shall be provided on the outer bank of elevated roadways." I
cannot conclude that the respondent has been prejudiced by the
erroneous citation, and take note of the fact that the record
establishes that the respondent was well aware of the fact that
it was being cited for having inadequate berms, and ultimately
abated the violation. Further, the factual basis for the issuance
of the citation is the "condition or practice" stated by the
inspector on the fact of the citation, and the petitioner has the
burden of proof. Under the circumstances, I conclude that the
inspector's reference to another standard was no more than a
clerical error which has not prejudiced the respondent, Old Ben
Coal Co., 2 FMSHRC 1187 (1980), and the respondent has raised no
objection, nor has it claimed any prejudice.
The respondent is charged with a failure to provide adequate
berms at two roadway locations which crossed a dry stream bed
which ran through the mine property. The inspector testified that
berms consisting of rock and other fill dirt material had been
provided at one time, but it had eroded and slipped down into the
stream bed. He issued the citation after finding no berms, or
very low berms, at several locations along the two crossovers in
question.
The inspector testified that photographic exhibit P-4, pg. 2
of 11, depicts the cited primary crossover which was more heavily
travelled than the second cited crossover, and he confirmed that
the photograph is representative of both locations. The
crossovers were described as a natural drainage ditch or dry
stream bed which ran through the property. Drain pipes were
placed in the ditch to allow water to flow through, and fill dirt
was dumped over the pipes to construct the crossovers. The
inspector estimated the depth of the ditch as 10 to 12 feet, and
"possibly 8 feet" (Tr. 8, 10).
The inspector confirmed that his conclusion that the roadway
was "elevated" was based on the fact that at the crossover
locations where the roadway passed over the ditch where
"drop-offs" existed on either side of the road, the
roadway was in fact elevated above the stream bed. He also
confirmed his belief that the lack of adequate berms at the
elevated locations above the stream bed created a hazard on each
side of the crossovers in that a truck could go into the ditch
and overturn, and he believed that adequate berms were required
to prevent this from happening (Tr. 21). He further believed that
a ditch over 4 feet deep created a hazard in that the trucks and
front-end loaders using the crossovers could easily overturn if
they ran into the ditch (Tr. 22).
When asked to explain his understanding of the application
of the berm standard in this case, the inspector replied that if
the depth of the ditch at the crossover is such that it is
reasonably likely to cause an accident, such as a vehicle
overturning in the ditch, he would cite a violation of section
56.9022, and that this is a "judgement call" (Tr. 32-33). The
inspector stated that the "rule of thumb" is to require berms as
high as the mid-axle height of the largest piece of equipment
using the roadway, and that "we hope it helps to stop them" (Tr.
52).
In its posthearing brief, respondent's counsel takes the
position that the cited crossovers are not an elevated roadway.
Recognizing the fact that "the berms are supposedly there to
prevent the equipment from going off into the ditch," counsel
asserts that "very little danger, if any," existed in that the
equipment using the road has adequate room for crossing and no
more than one vehicle at a time crosses over the cited locations.
In United States Steel Corporation, 5 FMSHRC 3 (January
1983), the Commission held that proof of "inadequate" berms
requires evidence as to what type of berm a reasonably prudent
person would install under the circumstances. In fashioning a
test for determining the adequacy of a berm, the Commission
stated in part as follows at 5 FMSHRC 5:
We hold that the adequacy of a berm or guard under
section 77.1605(k) is to be measured against the
standard of whether the berm or guard is one a
reasonably prudent person familiar with all the facts,
including those peculiar to the mining industry, would
have constructed to provide the protection intended by
the standard. See Alabama By-Products, supra. See also
Voegele Company, Inc. v. OSHRC, 625 F.2d 1075, 1077-79
(3rd Cir.1980). The definition of berm in section
77.2(d) makes clear that the standard's protective
purpose is the provision of berms and, by implication, guards
that are "capable of restraining a vehicle." (Footnote omitted).
With regard to the question as what constitutes an
"elevated" roadway, I take note of several berm decisions
rendered by Commission judges and the Commission on this issue.
In W.B. Coal Company, 3 FMSHRC 193, 201-201 (January 1981), Judge
Bernstein held that a roadway with "drops on both sides" was an
elevated roadway. In Golden R Coal Company, 1 FMSHRC 1843, 1848
(November 1979), I held that the location of an unprotected
roadway where trucks were required to back up to begin their
ascent up an incline was of sufficient height above the adjacent
terrain to create a hazard in the event a truck ran off the
unprotected elevated portion of the roadway and was in fact
"elevated." In that case, the inspector testified that if a truck
were to run off the road, it was likely to overturn, and he was
aware of an accident where a truck overturned when the driver
backed into a 2-foot hole.
In Cleveland Cliffs Iron Company, 1 FMSHRC 1965, 1969
(December 1979), Aff'd by the Commission at 3 FMSHRC 291
(February 1981), Judge Broderick held that a cited roadway
location which had 10 to 12 foot drop-off to a ledge below the
roadway was of sufficient height above the adjacent terrain to
create a hazard in the event a vehicle ran off the roadway, and
therefore was elevated.
In Burgess Mining and Construction Corporation, 3 FMSHRC 296
(February 9, 1981), Judge Fauver held that while a bridge could
reasonable be found to be an elevated roadway, the cited berm
standard found at 30 C.F.R. 77.1605(k), was limited to roads
cut along the side of mountain, hill, pit wall, or earth bank,
and not to a bridge crossing a river. The Commission reversed,
and stated as follows at 3 FMSHRC 297:
Nothing logically suggests why a roadway ceases being
such when it crosses a bridge. A bridge is nothing more
than that part of a road which crosses a stream.
* * * Further, the hazards addressed by the standard
are certainly no less serious and in need of prevention
when a vehicle is elevated over a body of water that
when it runs along elevated ground.
In the instant case, Mr. Stovall estimated the distance of
the roadway crossovers through and across the point where it
crossed the drainage ditch as 15 feet, and a sketch of the area
which he prepared reflects that the depth of the ditch
from the roadway surface to the bottom of the ditch is 8 feet
(exhibit R-3; Tr. 35). The inspector's estimate of the depth of
the ditch at the points where the roadway crossed at 10 to 12
feet, and possibly 8 feet. While it is true that the roadway in
question was generally on level ground, I conclude and find that
the 15 feet portion of the roadway crossovers which continued
across the ditches were elevated within the scope and meaning of
section 56.9022, and the respondent's assertions to the contrary
are rejected.
With regard to the alleged inadequacy of the berms which
were in place, I find the inspector's testimony that portions of
the berms had eroded or slid over the roadway to the point where
they were either non-existent or too low to restrain a vehicle
from going into the ditch to be credible. The respondent has not
rebutted or denied the fact that the berms had slipped or eroded
away. Further, I agree with the inspector's assessment of the
potential hazard presented at the cited locations at the points
where the elevated roadway crossed over the adjacent ditch areas
which were 8 to 12 feet deep. I conclude and find that the
inspector's belief that a vehicle driving across those locations
would likely overturn and cause an accident with resulting
injuries to the driver if it went into the ditch was reasonable.
I further conclude and find that the petitioner has established
that the eroded and non-existent berms at the cited locations
adequately and reasonably support the inspector's conclusion that
the berms were inadequate. Accordingly, the citation IS AFFIRMED.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties have stipulated that the respondent is a
medium-sized operator. Respondent has advanced no argument or
evidence to establish that the payment of the civil penalties
which have been proposed will adversely affect its ability to
continue in business. I conclude and find that the civil
penalties which have been assessed for the violations will not
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The computer print-out summarizing the respondent's
compliance record for the period April 23, 1984 through April 22,
1986, reflects that the respondent paid civil penalty assessments
totalling $8,672, for 43 violations, 17 of which are paid
"significant and substantial" (S & S) violations. For an
operation of its size and scope, I cannot conclude that the
respondent's compliance record is such as to warrant any
additional increases in the civil penalty assessments which I
have made for the violations which have affirmed in these
proceedings.
Negligence
In Docket No. KENT 86-133-M, the inspector found a "high"
degree of negligence at the time he issued the citations in
question, and he marked the appropriate box on the citation form
to reflect this finding.
With regard to the lock-out citation, I take note of the
fact that no prior citations were issued for violations of
section 56.12016, and the respondent established that it at least
de-energized the electrical equipment before work was performed
on it, and that it also used the services of a contract
electrician. With regard to the citation for failure to report
and record equipment defects, the evidence establishes that the
equipment operators themselves were not reporting these defects,
and that the respondent did have the check-list forms available
at the mine but apparently chose not to use them because it
believed that its "oral" reporting system was more effective and
had previously been approved by another inspector. Although the
record shows one prior citation for a violation of section
56.9001, the petitioner failed to produce that citation and
furnished no further details as to the circumstances under which
it was issued.
With regard to the smoking violation based on the existence
of the cigarette butts which the inspector found, although one
prior violation of section 56.4100(b), is noted in the
respondent's prior history of violations, no further explanation
of that citation was forthcoming from the petitioner, and the
record establishes that the respondent did have the area posted
with a no-smoking sign.
The petitioner has advanced no arguments to support the
inspector's "high" negligence findings, and I find no credible
testimony from him in the record to support these findings. In
any event, I conclude and find that the three violations in
question resulted from the respondent's failure to exercise
reasonable care to insure compliance with the requirements of the
cited mandatory safety standards. I further find and conclude
that the respondent knew or should have known about the cited
conditions and that its failure to address those conditions
constitutes moderate and ordinary negligence.
With regard to the inoperative hand brake and inadequate primary
brakes on the front-end loader, since the loader had several
other defects which were readily observable and detected, a
reasonable and prudent operator would have taken the loader out
of service for a thorough inspection. If this were done, I
believe the lack of an operable handbrake and inadequate primary
brakes would have been detected. Under the circumstances, the
inspector's finding of a high degree of negligence is affirmed.
In Docket No. KENT 86-134-M, the inspector's negligence
findings for the two braking violations reflect findings of
"reckless disregard." With regard to one of the trucks, the
inspector indicated that the non-functional emergency brake
condition had previously been cited during an inspection on
January 8, 1986, and that the defective rear brakes had been
inoperative "for several years." He also found that the brake
fluid reservoir was empty, and the condition of the reservoir led
him to believe that fluid had not been added for some time. With
regard to the second truck, he found an empty brake fluid
reservoir, and that the brake hoses had been disconnected.
I find no credible evidence to support the inspector's
belief that one of the trucks had operated with defective rear
brakes "for several years." However, I find his testimony to be
credible as to the condition of the brake fluid reservoirs and
the fact that the brake hoses on one of the trucks were
disconnected and that the emergency brake on the truck had been
previously cited. Under these circumstances, although I cannot
conclude that the evidence supports the inspector's "reckless
disregard" negligence findings, I do conclude and find that it
supports a finding of a high degree of negligence as to both
violations, and supports a finding that the respondent knew or
should have known of the cited defective braking conditions.
In Docket No. KENT 86-155-M, concerning the berm citation,
the inspector found a "high" degree of negligence. The evidence
establishes that rock berms were provided but had slipped down an
adjacent embankment. Although the inspector testified that the
conditions had existed for "several months," he did not cite the
condition on prior inspections, and I find no credible evidence
to support his high negligence finding. However, I do conclude
and find that the respondent failed to exercise reasonable care
by failing to add additional materials to reconstruct the berms,
and that this omission on its part constitutes moderate and
ordinary negligence.
Gravity
I conclude and find that all of the violations which have
been affirmed in these proceedings were serious. Failure to
provide locks and to have an established lock-out procedure for
electrically powered equipment presented a hazard in that the
equipment could have inadvertently energized while someone was
performing work on it. In this event, I conclude that it was
reasonable likely that anyone working on the equipment would be
exposed to an electrocution hazard with serious resulting
injuries.
All of the braking violations presented an accident
potential which would reasonably and likely be expected to result
in injuries to the vehicle operators as well as to other
equipment operators and miners exposed to such hazards. The
failure to report and record defective equipment would result in
delays in correcting any hazards, as well as permitting equipment
to continue to operate with defects. One can reasonably conclude
that in such a situation, there was a reasonable likelihood of
accidents, with resulting injuries to those mine personnel who
were expected to operate the equipment, as well as to other
miners in close proximity to the equipment.
The smoking violation presented a potential fire hazard,
particular in light of the evidence which established the
presence of combustible oils, hydraulic fluid, fumes, and
accumulated oily rags and oil spillage. In the event of a fire, I
believe it is reasonably likely that miners in or around the shed
would be exposed to hazards resulting in serious injuries. The
lack of adequate berms presented a hazard in that a truck or
other vehicle operator approaching the edge of the crossover,
particularly those in large haulage trucks, would have an
inadequate warning that they were close to the adjacent drainage
ditch. If a truck were to drive over the edge of the ditch, it
could possibly overturn, thereby exposing the driver to an
accident hazard, with resulting injuries.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine 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." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon 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 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
Incorporating by reference my gravity findings, and applying
the principles of a "significant and substantial" violation as
articulated by the Commission in the aforementioned decisions, I
conclude and find that with one exception (Citation No.
2657392-lack of adequate berms), the remaining violations were
all significant and substantial, and the findings by the
inspector in this regard ARE AFFIRMED.
I conclude and find that in terms of continued normal mining
operations, the hazards noted in my gravity findings support a
conclusion that there was a reasonable likelihood that the cited
conditions could contribute to the hazards resulting from the
violative conditions in question. In each of these instances, had
the events noted occurred, I believe it is reasonable to conclude
that the injuries produced could be of a reasonably serious
nature.
With regard to the inadequate berm citation, the
respondent's evidence, which I find credible, establishes that
the roadway widths at the crossover points were wide enough to
more than adequately accommodate the largest vehicle using that
road, with more than adequate clearance on either side of the
vehicle. Further, there is no evidence of any speeding or
vehicles passing each other on the crossovers, and I believe that
the respondent's testimony that the vehicles approached the
crossovers on a "straight line" rather than cutting corners or
approaching it at an angle to be more credible than that of the
inspector. I also note that the inspector initially found upon
inspection that an injury was unlikely and that the violation was
not significant and substantial, but later changed his mind and
modified the citation accordingly because of a purported
"clerical error." I reject the inspector's explanation as to why
he later changed his mind as less than credible. Although I have
concluded that the violation was serious, I cannot conclude that
the petitioner has established that it was significant and
substantial. Accordingly, the inspector's finding in this regard
IS VACATED.
Good Faith Abatement
With regard to Citation Nos. 2657189 and 2657190, concerning
the defective brakes on the cited 35-ton haul trucks, the record
reflects that they were taken out of service when the inspector
issued the violations. Both violations were terminated on March
4, 1986, after repairs were made. Respondent's credible testimony
reflects that parts were ordered and that the repairs were
completed within 3 days of the issuance of the orders. Under the
circumstances, I conclude and find that these violations were
timely abated in good faith by the respondent
The smoking violation was timely abated when the respondent
posted a letter advising employees not to smoke in posted areas,
and the berm citation was terminated one day prior to the time
fixed by the inspector. As to these citations, I
conclude and find that the respondent exercised good faith in
timely abating the violations.
The lock-out violation (No. 2657368), front-end loader
violation (No. 2657373), and check-off list violation (No.
2657377) were all initially issued as section 104(a) citations.
Upon subsequent inspections, the inspector found that the cited
conditions had not been timely abated within the time fixed, and
this resulted in the issuance of section 104(b) orders. In each
instance, the inspector noted on the face of the orders that "no
apparent effort" was made by the respondent to timely abate the
violative conditions cited in the notices. No information was
forthcoming as to whether or not the orders were contested, and
it is clear that they are not the subject of these civil penalty
proceedings.
With regard to the lock-out citation, the evidence
establishes that after the citation was issued, the respondent
did purchase locks. However, upon his subsequent inspection on
February 26, 1986, the inspector found that they were not being
used, and that a lock-out procedure had not been formulated and
adopted by the respondent. He also found that electrical and
mechanical work was being performed without locking out the
equipment. Under these circumstances, he issued the section
104(b) order. Although it is true that the purchase of locks
indicates that the respondent made some effort to timely abate
the violative conditions, the fact remains that total abatement
was not achieved by the time the inspector returned on his
subsequent inspection. Under the circumstances, I conclude and
find that the respondent exhibited less than total good faith
compliance in timely abating the citation.
With regard to the inoperable emergency brake and inadequate
primary brakes on the front-end loader, the inspector's
subsequent inspection on February 26, 1986, which resulted in the
issuance of an order, indicated that the emergency brake was
still inoperative, and that the primary braking system had
completely failed. However, the order, on its face, reflects that
a new emergency brake had been installed, and both Mr. Stovall
and Mr. Joines confirmed that work had been done on the brakes
shortly after the citation was issued, and Mr. Joines confirmed
that repairs were completed within 3 or 4 days of the issuance of
the citation. They attributed the subsequent loss of braking
power after the repairs were made to a defective air compressor
which subsequently blew out and had to be replaced. I find their
testimony to be credible, and find no credible evidence by the
inspector to support his conclusion that the respondent "made no
apparent effort" to
correct the cited conditions. To the contrary, I conclude that
the respondent did make a good faith effort to correct the
originally cited conditions, and that after the order was issued,
additional repairs were timely made to abate the conditions cited
in the order.
With regard to the equipment check-list citation, when the
inspector returned on a subsequent inspection on February 26,
1986, he found no evidence that the available check-lists were
being used and that instructions as to their use had not been
given to the equipment operators. He also found some defective
brakes on equipment, and this led him to believe that the lists
were not being used and that defects were still going unreported.
Since the inspector found that compliance had not been achieved
by February 21, 1986, the date fixed for abatement of the
citation, he issued the order. Under the circumstances, I
conclude and find that the respondent exhibited less than good
faith compliance in timely abating the citation, and that it did
so only after the order issued.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section 110(i) of the
Act, the following civil penalties are assessed by me for the
violations which have been affirmed.
DOCKET NO. KENT 86-133-M
Citation No. Date 30 C.F.R. Section Assessment
2657368 01/07/86 56.12016 $ 500
2657373 01/08/86 56.9003 $ 450
2657377 01/08/86 56.9001 $ 375
2657386 04/22/86 56.4100(a) $ 150
DOCKET NO. KENT 86-134-M
Order No. Date 30 C.F.R. Section Assessment
2657189 02/26/86 56.9003 $ 500
2657190 02/26/86 56.9003 $ 600
DOCKET NO. KENT 86-155-M
Citation No. Date 30 C.F.R. Section Assessment
2657392 04/23/86 56.9022 $ 150
ORDER
The respondent IS ORDERED to pay the civil penalties in the
amounts shown above within thirty (30) days of the date of these
decisions. Payment is to be made to MSHA, and upon receipt of
same, these proceedings are dismissed.
George A. Koutras
Administrative Law Judge
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