Material Service Corp.

Plain-English summary

Material Service Corporation operated the Thornton Quarry, where contract driver Charles E. Street was fatally buried and asphyxiated by limestone that sloughed from a stockpile. MSHA alleged that the stockpile should have been trimmed under 30 C.F.R. § 56.9314. The ALJ found that the Secretary did not prove that the stockpile had an observable hazardous condition requiring trimming before the accident. Citation No. 7824527 was vacated, and the docket was dismissed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9314
• Outcome: Citation No. 7824527 was vacated, and the civil penalty proceeding was dismissed.
• Key point: Evidence of normal stockpile movement did not establish that the pile had an observable hazardous condition requiring remedial trimming.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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



                                     January 11, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 99-38-M
Petitioner : A. C. No. 11-00066-05536
v. :
: Thornton Quarry
MATERIAL SERVICE CORP., :
Respondent :

                                       DECISION

Appearances: Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for the Petitioner;
Richard R. Elledge, Esq., Gould & Ratner, Chicago, Illinois, for the
Respondent.

Before: Judge Feldman

     Before me is a petition for assessment of a $35,000 civil penalty filed by the Secretary of

Labor (the Secretary) against the respondent, Material Service Corporation (MSC), pursuant to
section 110(a) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 820(a).
This matter concerns the August 18, 1997, fatality of Charles E. Street, a cartage driver employed
by Jack Gray Transport, a contract haulage company servicing MSC’s Thornton Quarry.
The fatality occurred when the victim was buried and asphyxiated by the sloughage of limestone
material after he had positioned himself on the base of a limestone stockpile, between the rear
of his haulage truck and the stockpile. The hearing in this proceeding was conducted on
September 28, 1999, in Chicago, Illinois. The parties’ post-hearing briefs have been considered
in this disposition.

     The Secretary’s petition seeks to impose a $35,000 civil penalty for Citation No. 7824527

that alleges a violation of the mandatory safety standard in section 56.9314, 30 C.F.R. § 56.9314.
This mandatory standard provides that “[s]tockpile and muck pile faces shall be trimmed to
prevent hazards to persons.” For the reasons discussed below, the Secretary has failed to
demonstrate, by a preponderance of the evidence, that the condition of the stockpile should have
alerted MSC that it required trimming. Accordingly, Citation No. 7824527 shall be vacated.

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   I. Findings of Fact

           a. The Stockpile

     The Thornton Quarry, located in Cook County, Illinois, is a limestone quarry operated

by MSC. The stockpile involved in this fatal accident contained Grade 8 material that was
composed of a mixture of various sizes of crushed limestone, from ¾ inch particles to particles
of sand. The site of the fatality was a very busy stockpile that was the most frequently used
pile in the quarry. The stockpile was located in a lower level of the quarry, approximately 50 to
60 feet below street level. It was created, and constantly refilled, by material deposited off of a
stacker conveyor that was located at a higher elevation. The conveyor system fed material onto
the stockpile at a rate of 300 tons per hour (five tons per minute).

    At the time of the August 18, 1997, accident, the subject stockpile was a “fresh pile” that

was created the night before, after the stacker system had operated for approximately eight hours.
On that day the stockpile had reached a height of approximately 75 feet. As the day progressed,
the stacker continued to add material to the top of the stockpile. While the stacker continued to
load material at the top, front-end loaders continued to remove material from the bottom of the
stockpile in order to load material into haulage trucks. As the process of adding material to the
top and removing material from the bottom continues, consistent with gravity, material continues
to slough down the side of the stockpile throughout the day until, at any given moment, the
material reaches its angle of repose.1 In this regard, the Secretary’s witness Joseph Molnar, a
contract haulage truck driver who was familiar with the Thornton Quarry, testified that as
material is loaded from the bottom, material from the top fills the void during a constant process
wherein material “filters down all day.” (Tr. 115-19). Consistent with Molnar’s testimony,
John Halloran, MSC’s area manager, testified stockpiles continually slough and move as material
is unloaded and replenished. (Tr. 270).

    Stockpiles are frequently trimmed. Loader operator Michael O’Donnell estimated

stockpiles are trimmed every other day. Area Manager John Halloran testified stockpiles are
trimmed daily. The trimming occurs from the street level above, by using dozers to push
material down when the stockpile becomes too high and the angle of repose becomes extreme.
When necessary, dozers or loaders are used at the base of the stockpile to knock material down to
fill hazardous voids that are created during the loading process. The Grade 8 stockpile had not
been trimmed prior to the accident because it was a new stockpile that had been created the
previous evening.

   1
    Stockpiles become unstable during loading and unloading. Sloughage (material falling

down the side of the slope) occurs when a stockpile exceeds its angle of repose. A stockpile
achieves its angle of repose when the pile reaches a state of relative equilibrium and the pile is at
rest.

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           b. The Accident

   At the time of the accident, Charles Street had already picked up and transported

approximately 7 loads of crushed stone. The stone was transported and delivered to a
construction site by utilizing spreader chains on the back of the truck bed. Spreader chains limit
the opening in the truck bed to enable material to be spread , rather than dumped, at a site for
purposes such as road bed construction. (Tr. 70).

    At approximately 11:00 a.m., after Street’s load was placed in his truck before he had

driven off the Thornton Quarry premises, a MSC dispatcher was informed by a Jack Grey
Transport dispatcher, that Street’s last load had been canceled. The MSC dispatcher conveyed
this information to Street who proceeded to drive back to the stockpile to unload.

    Eyewitnesses told MSHA investigators that Street backed his truck into the base of the

stockpile and raised his truck bed in an attempt to dump his load. However, the spreader chains
prevented Street from dumping the load in a timely or efficient manner. MSHA accident
investigator Fred Tisdale testified that, after Street had raised his truck bed:

   [Street]dropped his truck bed a little bit, went to the back of the truck, and
   unhooked the left or driver’s-side spreader chain, crossed over [on the base of the
   stockpile] behind the truck, and was attempting to unhook the right spreader
   chains when the pile of material sloughed off and covered him up, trapping him
   behind the right-hand tandem wheel.

(Tr. 70-1; MSHA Accident Investigation Report, Gov. Ex. 6 ). Molnar testified the proper
method of removing spreader chains is to remove them when the truck is a safe distance from the
stockpile.

   At the time of the August 18, 1997, accident, Michael O’Donnell, MSC’s heavy

equipment operator, was operating a loader for the purpose of filling haulage trucks at the
Grade 8 stockpile. O’Donnell normally loads trucks on the driver’s side. When the accident
occurred O’Donnell was loading a truck driven by Joseph Molnar, operated by Brites Cartage,
from the passenger side because Jack Gray Transport drivers, who were returning their loads,
were parking on the driver’s side of the trucks O’Donnell was loading. O’Donnell’s loader was
approximately 25 feet away from Street’s truck. At the time O’Donnell finished loading
Molnar’s truck, O’Donnell noticed material behind Street’s truck start to slide. But O’Donnell
could not see Street because his view was obstructed by Molnar’s truck. As Molnar was driving
forward after receiving his load, O’Donnell could see Street being covered with material.
O’Donnell testified that the amount of sliding “didn’t look that big to [him].” (Tr. 169).

    Molnar testified that, on August 18, 1997, the material at the Grade 8 stockpile was just

normally filtering down “all day long,” with the top filling the void at the bottom as trucks were
loaded. (Tr. 115-16). Significantly, Molnar testified that as he looked at the stockpile through
his rear view mirrors, he saw no unusual overhangs or other hazardous conditions. (Id.) Street
drove his truck to the stockpile and backed it against the stockpile next to Molnar’s truck.
Molnar observed Street as Street left his truck and walked on the base of the stockpile behind the
truck.

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Page 4

     John Halloran, MSC’s area manager, was working in the vicinity of the Grade 8 stockpile

at the time of the accident. Halloran immediately went to the accident scene to assist in the
rescue efforts. Halloran directed O’Donnell and another loader operator to use their loaders to
remove material from the side and from the rear of the truck. While the loader operators were
removing material, material that was being loaded from the stacker conveyor above continued to
slide down the stockpile and cover the victim. It took several minutes to turn off the conveyor.

     Although Halloran did not know the approximate weight of the fatal slide, Halloran

testified the sloughage area was not extensive in that Street was extricated from the waist up to
his face pretty quickly. However, Street could not be removed because his legs were caught
between the rear passenger tires. Halloran tried mouth-to-mouth resuscitation but was
unsuccessful.

   With respect to the nature and extent of the slide, Halloran explained:

   . . . what I gathered from the two Brites drivers I talked to . . . [Street] was up on
   the top of the pile; and when it sloughed, it kind of took his feet and pushed him
   underneath the truck. Because if he stood straight up, he would never have got
   (sic) buried. But what happened is his feet, with the motion of the pile, he slid
   underneath, and then he tried to dive out. And then when he dove out, the pile
   just came down and buried him. . . . he probably went underneath the tires.
   Because we found his feet when we pulled the truck forward. We couldn’t get
   him out by just pulling him. Because we tried to put ropes on him and just pull
   him out. We couldn’t do it, so we pulled the truck forward and then got him out.

(Tr. 286-87).

            c. The Condition of the Stockpile

    MSHA accident investigators Fred Tisdale and Steven Richetta arrived at the Thornton

Quarry accident scene several hours after the accident had occurred. Thus, Tisdale and Richetta
did not observe the stockpile prior to the accident. Although Tisdale and Richetta speculated
about possible overhangs that may have required trimming, neither testified that their accident
investigation revealed the existence of any potentially abnormal or otherwise hazardous
conditions immediately prior to the accident. As previously noted, neither Molnar nor O’Donnell
observed any abnormal stockpile conditions before the accident.

   Although Richetta testified that the extent of the sloughage led him to believe there was

an overhang in the slope of the stockpile, the magnitude and location of the sloughage that
caused the fatality was disturbed and redistributed during the recovery efforts. Moreover, normal
portions of the stockpile had to be removed and stacked in order to remove the victim.

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Page 5

    While the Secretary relies on remnants of material on the back of Street’s tailgate

measuring approximately 7 to 8 feet in height from ground level to support her hazardous
overhang theory, examination of accident scene photographs reflects Street’s truck was backed
into the slope of the stockpile. (Gov. Exs. 2, 3). Thus, the location of residue lines on the
tailgate, 8 feet above ground level, is of little evidentiary value with respect to demonstrating the
significance of the sloughage.

    Of greater significance is the slope of the angle of repose immediately prior to, and after,

the accident. MSHA’s accident investigation concluded:

   Measurements taken at the [accident] scene indicated the angle of the stockpile
   was approximately 37 degrees. It was estimated that the angle of this stockpile
   prior to the accident was approximately 39 degrees.

(Gov. Ex. 6, p.3).

    Richetta testified the angles of repose before and after the accident were determined

through trigonometric formulas utilizing measurements taken at the accident site and adjacent to
the accident site. (Tr. 231). Richetta further testified that 39 degrees verses 37 degrees would
not be a discernible difference. (Tr. 233). In fact, Richetta conceded a 39 degree angle of repose
was not necessarily hazardous. (Id.). Both Tisdale and Richetta testified that, based on their
observations of the condition of the stockpile after the accident, the stockpile was in compliance
with section 56.9314 in that it did not have to be trimmed. (Tr. 95, 96, 104, 240, 323).

   Based on Tisdale and Richetta’s accident investigation, on September 11, 1997, Tisdale

issued Citation No. 7824527 alleging a violation of section 56.9314. The Citation stated:

   On August 18, 1997, a contract truck driver was fatally injured when the grade
   eight stockpile sloughed, covering him as he was removing the spreader chains
   from his truck’s tailgate. He had backed the truck against the base of the
   approximately 75 foot high stockpile, and had walked between the truck and the
   stockpile, when the stockpile sloughed. (Emphasis added).

    To abate Citation No. 7824527, Tisdale required MSC to provide documentation that

safety meetings were held with truck drivers at which times the fatal accident, and ways to
prevent further injury, were discussed. MSC was also required to provide cartage drivers with
handouts concerning rules of behavior on mine property. The citation was terminated on
October 14, 1997. The abatement action did not involve trimming or otherwise altering the
stockpile accident site.

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           d. Procedural History of Citation No. 7824527

     Citation No. 7824527 issued on September 11, 1997, the subject of this proceeding,

initially alleged a violation of the mandatory safety standard in section 56.9314 that requires that
“[s]tockpile and muckpile faces shall be trimmed to avoid hazards to persons.” On March 25,
1998, MSHA modified Citation No. 7824527 to substitute section 56.3439, 30 C.F.R. § 56.3430,
as the mandatory safety standard violated. This safety standard specifies, in pertinent part,
that “[p]ersons shall not work or travel between machinery or equipment and the highwall bank
or bank where the machinery or equipment may hinder escape from falls or slides of the highwall
or bank.”

    Subsequent to the modification, the Secretary apparently became concerned about

the applicability of a stockpile to the terms “highwall” and/or “bank” contained in 30 C.F.R.
§ 56.3430. Accordingly, on August 9, 1999, the Secretary filed a motion to allow modification
of Citation No. 7824527 to reinsert section 56.9314 as the mandatory standard allegedly violated
instead of section 56.3430. The Secretary’s motion was granted by Order dated August 25, 1999.

   II. Further Findings and Conclusions

    As a threshold matter, in appropriate circumstances, mandatory safety standards

should be broadly interpreted so that they can be adaptable to a myriad of circumstances.
Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). I note the hazard associated with
the inability to escape from unstable highwalls or banks addressed in section 56.3430 is identical
to the hazard posed by the inability to escape from an unstable stockpile. However, in this
matter, the Secretary has elected to attempt to establish a section 56.9314, rather than a section
56.3430, violation. Accordingly, the issue of whether the victim’s position between the rear of
his truck and the stockpile constitutes a violation of section 56.3430 is beyond the scope of this
proceeding.

    As already noted, section 56.9314 requires that “[s]tockpile and muckpile faces shall be

trimmed to avoid hazards to persons.” Put another way, section 56.9314 requires a mine operator
to trim a stockpile when the operator has a reason to know that the stockpile is hazardous or
unsafe. In deciding whether a condition is unsafe, the Commission has determined that “the
alleged violative condition must be measured against the standard of whether a reasonably
prudent person familiar with the factual circumstances surrounding the allegedly hazardous
condition, including facts peculiar to the mining industry, would recognize a hazard
requiring corrective action.” Alabama By-Products Corporation, 4 FMSHRC 2121, 2129
(December 1982).

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Page 7

     Thus, the issue for resolution is whether Material Service Corporation knew, or should

have known, the stockpile was hazardous and required corrective action, i.e., the angle of repose
was too extreme and/or there was an overhang or other abnormal condition. In addressing this
issue, sloughage, alone, is not evidence of a hazardous condition. Section 56.9314 does not
repeal the law of gravity. When rock material is loaded from above by a stacker conveyor at a
rate of five tons per minute, and removed from below by a front-end loader, obviously material
will slide down the slope of the stockpile. Thus, the uncontroverted testimony, by both Secretary
and MSC witnesses, is that sloughage is a normal and continuing process. (See, e.g., tr. 124-29).

    The first question, therefore, is whether the angle of repose was severe enough to alert

MSC of a potential hazardous fall or slide. The evidence reflects the angle of repose prior to
the accident was 39 degrees. The post-accident angle of repose in the vicinity of the accident
was 37 degrees. MSHA investigator Richetta conceded there is no discernible difference
between a 39 degree and 37 degree angle of repose. Moreover, Richetta admitted a 39 degree
angle of repose was not necessarily hazardous. Both Tisdale and Richetta stated the 37 degree
angle of repose after the accident complied with the provisions of section 56.9314 in that no
trimming was required. Consistent with their testimony, MSHA did not require any trimming
action to abate the citation. Consequently, the record does not reflect, nor does MSHA contend,
that the angle of repose prior to the accident provided notice to MSC that trimming was
necessary.

    The second and more difficult question is whether there were any overhangs or other

hazardous abnormalities that provided a basis for suspecting that remedial trimming action was
appropriate “to avoid hazards to persons” as required by section 56.9314. It is not uncommon for
the Secretary to establish the elements of a violation, i.e., a hazardous overhang, by inference.
Mid-Continent Resources, 6 FMSHRC 1132, 1138 (May 1984). However, there must be
“a logical and rational connection between the evidentiary facts and the ultimate fact inferred.”
Id. Although Tisdale and Richetta admit the stockpile did not require trimming after the
accident, they have no personal knowledge of the stockpile conditions prior to the accident. They
infer there was a hazardous overhang based on what they believe was an extensive rock slide.

    However, the accident scene was significantly altered to extricate the victim. Thus, piles

of rock material removed by loaders from the side and rear of the truck, in an effort to reach the
victim underneath the truck, are not necessarily evidence of a significant rock slide. Moreover,
the residue sloughage on the rear of the tailgate likewise does not support the conclusion of a
massive rock slide. Photographs of the accident scene reflect Street’s truck was backed against
the slope of the stockpile. (Gov. Exs. 1-3). The conclusion that Street backed his truck against
the stockpile is consistent with the description of the accident in Citation No. 7824527, as well as
MSHA’s accident investigation report.2 (Gov. Exs. 4, 6, p.4).

   2
      A photograph of the accident scene depicts the truck backed against the stockpile.

(Gov. Ex. 2). The photograph reflects the position of the truck after it had been advanced several
feet in an effort to free the victim.

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Page 8

     Although, Tisdale and Richetta did not see the victim prior to his removal, MSC’s

manager, John Halloran participated in the recovery efforts. Halloran credibly testified that the
fatality apparently occurred because the sloughage caused the victim to slide under the truck
preventing his escape. With the victim in a prone position, confined to the area under the truck,
it did not take a large amount of dislodged material to cause the fatality.

    In concluding that the fatality was not caused by a large rock slide, I am not suggesting

that the stockpile was stable immediately prior to the accident. To the contrary, given the loading
from above at five tons per minute, and unloading from below, the stockpile was inherently
unstable. However, it is significant that the Secretary does not argue that loading the top of the
stockpile by stacker conveyor, at the same time material is being removed by loaders at the
bottom, is a violation of any mandatory safety standard. In this regard, the Secretary responded:

   The Court:      Ms. Kassak, let me ask you a question. How did the Mine Safety
                   and Health Administration’s abatement process prevent this
                   accident, or prevent the sloughage from recurring if that was the
                   problem, the loading at the top and - - by the stacker conveyor and
                   the loading from the front-end loader at the bottom?

   Ms. Kassak:     I don’t believe we addressed that as a hazard your honor . . . .

   The Court:      . . . the operator was not prevented from continuing that normal
                   operation subsequent to the accident; is that correct?

   Ms. Kassak:     I have to say that is correct . . . .

(Tr. 122-23).

   Although the process of loading from above creates constant “filtering” or sloughage, in

view of the limited nature and extent of the localized sloughage at the accident site, the evidence
does not suggest an observable overhang that required trimming. In this regard, neither Molnar
nor O’Donnell observed any abnormalities in the stockpile immediately prior to the accident.

    In the final analysis, the possibility of drawing two inconsistent inferences from the

evidence does not, alone, preclude the Secretary’s overhang theory. Id., citing NLRB v. Nevada
Consolidated Copper Corp., 316 U.S. 105, 106 (1942). However, the greater weight of the
evidence, given the localized nature of the fatal sloughage behind the truck, the location of Street
on the stockpile, the weight of Street’s truck on the base of the stockpile, the weight of the
material that may have been released when Street initially raised the truck bed before removing
the spreader chains, and the lifting and lowering of the truck bed against the slope of the
stockpile, leads to the conclusion that Street’s position on the stockpile, as well as the contact of
the stockpile with Street’s truck and its material, substantially contributed to the dislodging of the
material that resulted in this tragic accident.

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Page 9

    Accordingly, the Secretary has failed to establish, by a preponderance of the evidence,

that there was any observable hazardous stockpile condition prior to the accident that warranted
remedial trimming. In reaching this conclusion, I have not addressed whether Material Service
Corporation had a duty to prevent the exposure of cartage drivers to stockpiles, and, if so,
whether Material Services Corporation satisfied its duty. Although there was testimony that
signs were placed on mine property warning drivers to stay in their trucks, the adequacy of
Material Service Corporation’s efforts to address the disembarkment hazard that was the
proximate cause of this fatality is not an issue in this case. (Tr. 262-63).

                                        ORDER

  In view of the above, Citation No. 7824527 IS VACATED. ACCORDINGLY,

Docket No. LAKE 98-38-M IS DISMISSED.

                                         Jerold Feldman
                                         Administrative Law Judge

Distribution:

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

Richard R. Elledge, Esq., Gould & Ratner, 222 North LaSalle Street, 8th Floor,
Chicago, IL 60601 (Certified Mail)

/mh

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