New Point Stone Company, Inc.

Plain-English summary

MSHA cited New Point Stone after finding that a Mack haul truck had been operated for about a month with one of its six brake chambers removed. Judge Arthur J. Amchan found that the braking system was not maintained in functional condition under 30 C.F.R. § 56.14101, but he found insufficient evidence to establish significant and substantial status or unwarrantable failure. He modified the matter to a section 104(a) violation and assessed a $500 penalty, reduced from the proposed $2,500.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14101
• Outcome: The citation was affirmed as a non-S&S section 104(a) violation, the unwarrantable-failure characterization was vacated, and a $500 penalty was assessed.
• Key point: A mine operator must repair or obtain competent safety confirmation before operating equipment after removing a brake-system component.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. NEW POINT STONE
DDATE:
19941214
TTEXT:

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      FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

             OFFICE OF ADMINISTRATIVE LAW JUDGES
                    2 SKYLINE, 10th FLOOR
                     5203 LEESBURG PIKE
                FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-158-M
Petitioner : A.C. No. 12-00038-05510
v. :
: Mine: Harris City
NEW POINT STONE COMPANY, INC. :
Respondent :

                            DECISION

Appearances: Lisa A. Gray, Esq., Office of the Solicitor,
U. S. Department of Labor, Chicago, Illinois,
for Petitioner;
Kenneth T. Wanstrath, President, New Point
Stone Company, Inc., Greensburg, Indiana, Pro Se,
for Respondent.

Before: Judge Amchan

 On October 13, 1993, MSHA representative Jerry Spruell

inspected Respondent's Harris City, Indiana, stone quarry.
He observed that on one of the company's Mack dual axle haul
trucks a brake chamber was missing (Tr. 14-15). The brake
chamber is an air-actuated diaphragm which causes the brake
shoes to contact the stopping surface of the wheel drum (Tr. 23).

 Respondent's truck has a brake chamber for each of the

six wheel assemblies. Two of the wheels are connected by an
axle on the front of the truck. There are two axles on the rear
of the truck with four tires on each axle. The brake chamber had
been removed from the right front tires of the rear dual axles
(or the middle tires on the right) (Tr. 26).

 Scott Moffitt, a mechanic and truck driver employed by

Respondent, had removed the brake chamber in question a month,
or month and a half, earlier at the direction of foremen Russ
Wanstrath and Rod Borgman (Tr. 40). The chamber was removed
because it was leaking air which could have caused the truck
to have braking problems (Tr. 45). After removal, the line
to this chamber was plugged to prevent further leaks (Tr. 45).

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On the day of the inspection, MSHA representative Spruell
observed the truck stop on level ground without difficulty
(Tr. 15). Mr. Moffitt had driven the truck approximately once
or twice a week since the brake chamber had been removed
without experiencing any braking problems (Tr. 41-42). Foreman
Rod Borgman had also driven the vehicle with the brake chamber
removed and was able to make a sudden stop to avoid hitting a
truck that pulled out in front of him (Tr. 55, 58, 60).
Additionally, the primary operator of the truck, Richard
Van Dyke, apparently experienced no braking problems during
this period (Exh. R-3).

 Inspector Spruell issued Respondent Citation No. 4308134

pursuant to section 104(d)(1) of the Act. This citation alleged
a "significant and substantial" violation of 30. C. F. R.
56.14101(3) due to Respondent's "unwarrantable failure" to
comply with the regulation. The cited standard requires that
all braking systems on self-propelled mobile equipment "be
maintained in functional condition."

     Were the brakes on Respondent's Mack Haul Truck
           maintained in functional condition?

 Inspector Spruell opined that the absence of the one brake

chamber could cause the truck to swerve when the brakes are
applied in a panic situation (Tr. 18) and would increase the
distance within which the vehicle would stop (Tr. 20). I decline
to credit this testimony as there is nothing in the record that
would indicate that the inspector has sufficient expertise to
determine the impact of operating the truck without one of
six braking chambers. I note that the Secretary apparently did
not contact the manufacturer to determine the effect of this
alteration.

 The Secretary also contends that a braking system with a

missing component is per se not in functional condition. He
relies in part on a directive in the MSHA Program Policy Manual.
The Manual directs that a citation should be issued for violation
of section 56.14101 if a component or portion of any braking
system is not maintained in functional condition, even if the
braking system is capable of stopping and holding the equipment
with its typical load on the maximum grade it travels,
(Secretary's brief at page 4, citing MSHA Program Policy Manual,
Vol. IV, Part 56/57, p. 55a).

 Respondent, on the other hand, contends that the braking

system worked acceptably and that there is no evidence that the
missing brake chamber presented a hazard to its employees.
One reason advanced for this contention is that this truck is
driven only within the quarry, at speeds of 10 to 15 miles
per hour, while it was manufactured to be driven on the open
highway (Tr. 43, 63-64).

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On balance, I conclude that the Secretary has the better
argument and affirm the citation. First of all, the Commission
recognizes the MSHA Program Policy Manual as evidence of that
agency's policies, practices and interpretations, to which it
gives deference in interpreting MSHA regulations, Dolese Brothers
Company, 16 FMSHRC 689, 692-93, and n. 4 (April 1994). I find
that the Secretary's interpretation is a reasonable one which
furthers the safety objectives of the Act. I therefore defer to
that interpretation.

 Further, it is inconsistent with the objectives of the Act

to sanction the prolonged use of equipment on which the braking
system has been altered without some reliable evidence that this
practice poses no hazard to employees. Although I find Inspector
Spruell's conclusions somewhat speculative, I have the same view
of the opinions of Respondent's witnesses, who also have not been
shown to have sufficient credentials to determine that the
removal of a braking chamber posed no hazard.

 One can only assume that had it not been for the instant

citation the truck in question would have been operated with the
missing brake chamber indefinitely. Both Respondent's mechanic,
Moffitt, and foreman Borgman recognize that this is not a sound
practice (Tr. 44, 60-61). I therefore conclude that there is a
presumption that a braking system is not in functional condition
when a component has been removed, unless this presumption has
been rebutted by reliable evidence from the manufacturer, or
equally competent authority, that it is safe to operate the
vehicle with the missing component.

                  Unwarrantable Failure

 The Secretary contends that the instant citation was the

result of Respondent's unwarrantable failure to comply with the
regulation. He argues that "unwarrantable failure" is estab-
lished by the fact that the brake chamber was intentionally
removed at the direction of management and that the truck in
question was used with the brake chamber missing for an extended
period of time.

 The Commission has held that the term "unwarrantable

failure" means aggravated conduct amounting to more than ordinary
negligence, Emery Mining Corp., 9 FMSHRC 1991, 2001 (December
1987). While it is true that the brake chamber on the cited
truck was removed intentionally, I conclude that Respondent's
conduct was not sufficiently "aggravated" to constitute an
unwarrantable failure for the following reasons.

 First, it has not been established that operating the truck

with one of six brake chambers missing was in fact dangerous.
Secondly, there is no evidence from which I would conclude that
Respondent should have suspected that its conduct exposed its
employees to a hazard. Finally, only reference to the MSHA
Program Policy Manual would have apprised Respondent of the
fact that MSHA regarded operation of the truck under these
conditions to violate its regulations.

               Significant and Substantial

 The Commission's formula for a "significant and substantial"

violation was set forth in Mathies Coal Co., 6 FMSHRC 1 (January
1984):

 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.

 Since I have previously concluded that the inspector's

testimony is insufficient to persuade me of the hazards resulting
from the violation, I conclude that the Secretary has failed
to meet steps 2 - 4 of the Mathies test. I therefore affirm
Citation No. 4308134 as a non-significant and substantial
violation of section 104(a) of the Act.

               Assessment of Civil Penalty

 The Secretary proposed a civil penalty of $2,500 for this

citation. While I have vacated the unwarrantable failure
characterization of the violation, I conclude that Respondent
exhibited considerable negligence in operating the truck in
question for a month or month and a half after altering the
braking system installed by the manufacturer.

 On this record, it is difficult to determine the extent of

the gravity of the violation. Respondent quickly abated the
violation. In the absence of any evidence to the contrary, I
conclude that Respondent is a relatively small operator and that
its prior history of violations would not lead me to impose a
higher penalty than I would otherwise. Finally, there is nothing
in the record to indicate that a penalty of $2,500 or less would
threaten Respondent's financial viability.

 After considering these factors pursuant to section 110(i)

of the Act, I assess a civil penalty of $500. I arrive at this
figure primarily on the negligence factor. I deem it very
important for the safety of miners that operators not alter
safety equipment such as brakes and then assume that their
equipment poses no hazard to their employees.

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equipment poses no hazard to their employees. I conclude that
a $500 penalty is an appropriate deterrent to such conduct.
Assessment of this penalty provides this operator and others an
incentive to quickly repair such safety equipment, or at least
establish through competent authority that operation of their
equipment with the alteration does not compromise the safety of
miners.

                          ORDER

 Citation No. 4308134 is affirmed as a non-significant and

substantial violation of section 104(a) of the Act. Respondent
shall pay the assessed civil penalty of $500 within 30 days of
this decision.

                                  Arthur J. Amchan
                                  Administrative Law Judge

Distribution:

Lisa A. Gray, Esq., Office of the Solicitor, U. S. Department
of Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)

Kenneth T. Wanstrath, President, New Point Stone Co.,
992 S. County Rd., 800 E., Greensburg, IN 47240 (Certified Mail)

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