Lanham Coal Co., Inc.

Plain-English summary

Lanham Coal hired an independent trucking company to haul coal from its surface mine. A truck driver fell about 10 feet while covering a load and was not wearing a safety belt or line. Judge James A. Broderick found that the Mine Act allowed MSHA to cite the production operator for an independent contractor's violation of 30 C.F.R. § 77.1710(g), affirmed the citation, and assessed a $250 penalty. The judge found no negligence because the operator and inspector had not previously understood the standard to apply to this tarping practice, and the record did not establish that the fall caused the driver's later death.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1710(g)
• Outcome: Citation No. 3297324 was affirmed, and Lanham was ordered to pay $250.
• Key point: A production operator may be cited for an independent contractor's safety-standard violation on mine property, even when the operator did not directly control the contractor's work.

Full text (FMSHRC public release)

CCASE:
MSHA V. LANHAM COAL
DDATE:
19900430
TTEXT:

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           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          FALLS CHURCH, VA
                           April 30, 1990

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. KENT 89-186
Petitioner A.C. No. 15-13428-03508

      v.                   Lanham No. 1 Mine

LANHAM COAL CO., INC.,
Respondent
DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary);
Flem Gordon, Esq., Gordon and Gordon, Owensboro,
Kentucky, for Lanham Coal Co., Inc. (Lanham).

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks a civil penalty for an alleged violation of

30 C.F.R. 77.1710(g) because a contractor-truck driver was working
in an elevated area where there was a danger of falling, and was not
wearing a safety belt and line. Pursuant to notice, the case was
heard in Owensboro, Kentucky, on January 17, 1990. Gazi Bokkin and
James Harold Utley testified for the Secretary. Tony Lanham testified
for Respondent. The record was kept open for the submission of additional
evidence, namely a copy of the death certificate of Claude J. Daugherty
and a deposition of Willard Keith, M.D. These documents were received on
February 12 and March 26, 1990. Both parties have filed post hearing
briefs. I have considered the entire record and the contentions of the
parties in making the following decision.

FINDINGS OF FACT

 1. At all times pertinent to this proceeding, Lanham was the owner

and operator of a surface coal mine in Daviess County, Kentucky, known as
the Lanham No. 1 Mine.

 2. In 1988, the subject mine produced 197,826 tons of coal.   It is a

mine of moderate size.

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3. In the 24 months prior to the alleged violation involved herein,
Lanham had 17 paid violations, none of which involved 30 C.F.R.
77.1710(g). This history.is not such that a penalty otherwis
appropriate should be increased because of it.

 4. A penalty for the alleged violation will not affect Lanham's

ability to continue in business.

 5. Lanham had a contract with Caney Creek Trucking Company (Caney)

to haul coal from the mine to Lanham's coal dock at the river approximately
14 miles from the mine.

 6. Caney was owned by Claude Daugherty. Daugherty drove one of the

trucks and had other employee coal truck drivers. Caney had 7 or 8 trucks.
Six, 7 or 8 were operated each day hauling coal for Lanham. Caney hauled
under contract with Lanham for approximately two and one half years as of
December 29, 1988. Lanham paid Caney by the ton for its services in
hauling the coal.

 7. It was Lanham's practice to call Daugherty at night and tell him

how much coal would be loaded the next day. The coal was loaded by a
Lanham end loader into each truck. The truck driver indicated how much
coal he wished to carry. The driver then covered the coal with a tarp
and drove it to Lanham's dock. The truck was weighed and the coal dumped
on the ground. Later it was loaded into a hopper and taken to a barge on
the river. The truck was weighed empty and returned to the mine for
another load.

 8. Neither Caney nor Claude Daugherty had an MSHA Mine I.D. Number

in December 1988.

 9. Lanham operated end loaders, dozers and scrapers.   It did not

have any coal trucks.

 10. Lanham did not furnish any equipment to Caney and did not

control the manner in which Caney performed its services.

 11. Prior to December 29, 1988, Caney's truck drivers, after the

coal was loaded, tarped their trucks in a parking area off the main haul
road but on mine property.

 12. On December 29, 1988, Claude Daugherty drove his truck to

Lanham's mine, had it loaded with coal at the pit, drove to the top of
the ramp and stopped there to cover the load with his tarp. During this
procedure, he fell from the truck approximately 10 feet to the ground.
Daugherty was not secured by a belt or line while tarping the truck.

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13. Daugherty was taken to the Owensboro-Daviess County Hospital
and transferred two weeks later to the Norton Hospital in Louisville,
Kentucky. He sustained fractures of the right hip, a dislocated right
shoulder, and an apparent vascular injury to the spinal cord.

 14. Daugherty died in the hospital on January 22, 1989, of septic

shock following renal failure.

 15. Following Daugherty's death, Lanham reported the injury to

MSHA and an investigation was commenced.

 16. On January 23, 1989, coal mine inspector Gazi Bokkin issued

a citation for a violation of 30 C.F.R. 77.1710(g) because the
contractor-driver was working in an elevated area where there was a
danger of falling and was not wearing a safety belt or line.

 17. The citation was terminated on February 14, 1989, when a

reinspection disclosed that coal trucks were "not being tarped on mine
property." The loaded trucks drove off the mine property before the
drivers secured the tarps.

 18. Daugherty had chronic pancreatitis and an enlarged liver,

neither of which was related to the fall.

 19. The evidence does not establish that the fall from the truck

on December 29, 1988, caused Daugherty's death on January 22, 1989.

 20. The inspector had never previously cited Lanham, Caney or any

other mine operator or trucking contractor for a violation involving a
similar factual situation. He had previously inspected the Lanham
facility and had seen trucks being tarped.

 21. None of Lanham's employees normally worked in the area where

the trucks were tarped.

 22. Inspector Bokkin in 20 years as an inspector and 22 years as

a miner had never observed coal trucks provided with belts or lines for
the person putting a tarp on or removing it from a loaded coal truck.
Bokkin did not know that the practice cited was a violation prior to
issuing the citation involved in this case.

 23. The citation was issued to Lanham rather than Caney because

at the time Caney did not have an I.D. number.

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24. MSHA has never issued any instructions or bulletins regarding
the duty of a mine to provide safety belts and lines for use while tarping
trucks.

REGULATION

   30 C.F.R.    77.1710(g) provides in part as follows:

             77.171

         Each employee working in a surface coal mine or
         in the surface work areas of an underground coal
         mine shall be required to wear protective clothing
         and devices as indicated below:

         *      *      *

         (g) Safety belts and lines where there is danger of
         falling, . . .

ISSUES

 1. Whether a mine operator is responsible under the Mine Act

for violations of safety standards by its independent contractors on
mine property?

 2. If so, whether the evidence establishes a violation of the

standard as charged?

 3. If so, what is the appropriate penalty considering the

statutory criteria?

CONCLUSIONS OF LAW

   I.   JURISDICTION

 Lanham is subject to the provisions of the Act in the operation of

the subject mine. I have jurisdiction over the parties and subject matter
of this proceeding. A production operator may generally be cited for
violations of mandatory safety standards by independent contractors. The
Secretary has discretion in such cases "to cite production operators as
(s)he [sees] fit." Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533,
538 (D.C. Cir. 1986). The case cited by Lanham, Secretary v. Jim Walter
Resources, Inc., 7 FMSHRC 1099 (1985) was based on the Review Commission
decision in Cathedral Bluffs which was reversed by the Court of Appeals.
See also Secretary v. Consolidation Coal Company, 11 FMSHRC 1439 (1989).
I see no reason to conclude that the Secretary abused her discretion in

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this case when she cited Lanham for the violation committed by Caney.

 II. VIOLATION

 A coal truck driver who fastens a tarp over a load of coal in his

truck while standing on the load of coal is in danger of falling. In the
case before me he did in fact fall. Since he was not wearing a safety belt
or line, a violation of the standard has been established.

 III.     GRAVITY

 The testimony establishes that the driver tarping his load is ten feet

or more from the ground. A fall from that height can result in a serious
injury. The fall which resulted here did cause a hip fracture and a
shoulder dislocation. Even though the death of the driver was not shown
to have been caused by the fall, the violation was serious.

 IV.     NEGLIGENCE

 Until MSHA was notified of the contractor truck driver's death,

neither Lanham nor the inspector considered the standard applicable to
the tarping of trucks. The inspector never observed safety belts or lines
used in such situations in more than 40 years of mining experience. MSHA
had no standards or guidelines concerning this practice. Lanham had no
specific notice that the practice violated the standard. It would be
absurd under these circumstances to conclude that the violation resulted
from Lanham's negligence. I conclude that it did not.

 V.     PENALTY

 Lanham is a moderately sized operator. It had 17 paid violations

in the 24 months prior to the issuance of the citation involved herein.
It abated the violation promptly in a manner satisfactory to MSHA.
Considering the criteria in section 110(i) of the Act, I conclude that a
penalty of $250 is appropriate for the violation.

                             ORDER

 Based on the above findings of fact and conclusions of law, IT IS

ORDERED:

 1.     Citation 3297324 is AFFIRMED.

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2. Respondent Lanham Coal Company shall within 30 days of the date
of this decision pay the sum of $250 for the violation found herein.

                          James A. Broderick
                          Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor,
2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 (Certified Mail)

Flem Gordon, Esq., Gordon & Gordon, P.S.C., 1500 Frederica Street,
P.0. Box 390, Ovensboro, KY 42302 (Certified Mail)