Energy Supply, Incorporated/Donray Industries, Incorporated

Plain-English summary

Energy Supply and Donray Industries used a Ford truck with an inoperable engine and differential as a platform for a drill rig and moved it around the Mack Mine with a bulldozer. Judge Avram Weisberger found a violation of 30 C.F.R. § 77.404(a), but not significant and substantial, and found unwarrantable failure because the operator knew the truck had been inoperable for about two months. He ordered a $223 civil penalty, approved related settlements, and awarded miner Jeffrey Stennett $526.05 plus 10 percent annual interest under section 111.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 77.404(a)
• Outcome: A machinery-condition violation resulted in a $223 penalty, related settlements were approved, and $526.05 plus interest was awarded to a miner.
• Key point: Equipment used as a drill platform still must be maintained in safe operating condition or removed from service.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 86-291
PETITIONER A.C. No. 36-04007-03512

           v.                          Mack Mine

ENERGY SUPPLY, INCORPORATED/
DONRAY INDUSTRIES,
INCORPORATED,
RESPONDENT

UNITED MINE WORKERS OF COMPENSATION PROCEEDING
AMERICA ON BEHALF OF
JEFFREY STENNETT, Docket No. PENN 86-228-C
COMPLAINANT
Mack Mine
v.

ENERGY SUPPLY, INCORPORATED/
DONRAY INDUSTRIES,
INCORPORATED,
RESPONDENT

                                  DECISION

Appearances: Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary; Vasilis C.
Katsafanas, Esq., Pittsburgh, Pennsylvania, for
Respondent.

Before: Judge Weisberger

                           STATEMENT OF THE CASE

 The above Civil Penalty Proceeding is before me based upon a

Petition for Assessment of Civil Penalty filed by the Secretary
(Petitioner) on November 5, 1986, alleging a violation by Energy
Supply, Incorporated (Respondent) of 30 C.F.R. 77.404(a). An
Answer was filed by the Respondent on January 15, 1987. On
February 6, 1987, I ordered the above Civil Penalty Proceeding to
be consolidated with Docket No. PENN 86-228-C, as identical
issues were involved in both cases i.e., the propriety of the
issuance of Order No. 2695927. Pursuant to notice, these cases

were scheduled for hearing on May 5, 1987, in Pittsburgh,
Pennsylvania. On April 29, 1987, a communication was received
from the United Mine Workers of America, the representative of
the Complainant in the above compensation case, indicating that
it will not appear at the hearing on May 5, 1987, and would rely
on evidence presented by the Secretary in the above Civil Penalty
Proceeding regarding whether Order No. 2695927 was properly
issued. The Civil Penalty Proceeding, Docket No. PENN 86-291, was
heard on May 5, 1987, in Pittsburgh, Pennsylvania. Wendell Hill
testified for the Petitioner and Raymond L. Hulings testified for
the Respondent. At the hearing, Counsel for both Parties
indicated that a settlement had been reached with regard to the
following Citations: 2695932, 2695934, and 9945451 and Order No.
2695934. The Secretary, subsequently, on May 12, filed its Motion
to Approve Settlement concerning these citations. For the reasons
that follow, these Motions have been granted.

 Petitioner filed its brief on June 25, 1987 and Respondent

filed its brief on June 15, 1987.

                      Regulatory Provision

 30 C.F.R.   77.404(a) provides as follows: "Mobile and

stationary machinery and equipment shall be maintained in safe
operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately."

                             Issues

 1. Whether Respondent violated 30 C.F.R.    77.404(a).

 2. If a violation of Section 77.404(a), supra, occurred, was

it of such a nature as could have significantly and substantially
contributed to the cause and effect of a safety hazard.

 3. If a violation of Section 77.404(a), supra, occurred,

whether such violation was caused by Respondent's unwarrantable
failure to comply with Section 77.404(a).

            Findings of Fact and Conclusions of Law

 I have jurisdiction to hear and decide this case. The

Respondent owns and operates the Mack Mine which is subject to
the provisions of the Federal Mine Safety and Health Act of 1977.

 On May 15, 1986, at approximately 9:30 a.m., Wendell Hill, a

MSHA Inspector, in the course of an inspection at Respondent's
Mack Mine, issued a 104(d)(2) Order in which he alleged that a
Ford Truck, Model 800, that had a drill mounted on it, was not
being maintained in good operating condition inasmuch as the

drive engine "will not operate," and the differential gears were
"damaged." The Respondent does not contest the existence of the
above conditions. Its owner and operator, Raymond Hulings
indicated, in essence, that the truck's engine and gears had been
inoperable for approximately 2 month prior to May 15, 1986.
Although the truck's brakes were fully operable, it is clear that
because the engine and gears were not operable, the truck was not
maintained in a safe operating condition. Also, although the
truck was not being used in a fashion that required its engine
and gears to function, it was not removed from service as it was
being used as a platform for a drill rig that was mounted on it,
and was pushed or pulled by a bulldozer, 3 to 4 times a shift, to
transport the drill to various drilling sites. As such, I
conclude that Section 77.404(a) has been violated.

 Upon the truck being pulled by a bulldozer from one drilling

site to another the operator of the bulldozer, and the person
sitting in the truck's cab to control it, would both be facing in
the same direction. Accordingly, there would not be any
possibility of visual communication between the two. Further,
audio communication would be difficult. Thus, some degree of
hazard would be created if the truck would be pulled down a
grade. In this situation, the truck would not have the benefit of
the braking power of its engine, and its rate of descent would be
controlled solely by its brakes. Hence, there would be some
degree of risk of a collision with the bulldozer. However, it was
essentially the uncontradicted testimony of Hulings, that the
truck is pulled at a speed of approximately one or two miles an
hours, and that more than half the time when the truck is moved,
it is moved along the bench which is level.

 When the Order in question was issued, there was no lighting

system in the area of the highwall. Thus, when the truck was
being pushed by a bulldozer during an afternoon shift after
sunset, the area behind the truck towards the highwall, would be
illuminated only by the lights on the rear of the truck, as well
as the headlights from the bulldozer. Also, were the person in
the cab of the truck to apply the brakes to stop the truck, the
operator of the bulldozer would notice a slight decrease in speed
of the bulldozer and an increase in its RPMs. However, the
application of the truck's brakes would not stop the bulldozer
from pushing it. Accordingly, the failure to remove the truck
from service, did create some degree of risk of the bulldozer
pushing the truck over the highwall or causing it to come in
contact with and injure a spotter who might be working in the
area behind the truck.

 I conclude that there is no evidence that the fashion in

which the truck was used, when being pulled or pushed by the
bulldozer, created any reasonable likelihood of a injury that

would of a reasonably serious nature. (See, Mathies Coal Co., 6
FMSHRC 1 (January 1984). In this connection, I note the
uncontradicted testimony of Hulings, that the bulldozer pulling
the truck was moving at about 1 or 2 miles an hour, and that more
than half the time the truck was being pulled on a level grade.
Also, when the truck was being pushed by the bulldozer, the blade
of the bulldozer was not raised high enough to prevent the
bulldozer operator from being able to see the operator of the
truck who was facing him. In this regard, I rely more on the
testimony of Hulings, whose testimony was based on his personal
knowledge, rather than the upon testimony of Hill, whose
knowledge in this regard was based upon what others told him.
Taking into account the facts that the back of the drill had 12
volt flood lights, that the bulldozer travels at only 1 or 2
miles an hour, and that the operators of the truck and bulldozer
were in visual contact, I find that the evidence does not
establish that the failure to remove the 800 truck resulted in
any reasonable likelihood of a reasonably serious injury.
Therefore, based upon all of the above, I conclude that the
violation by Respondent of 30 C.F.R. 77.404(a), was not
significant and substantial (See Mathies Coal Co., supra).

 At the date the Order herein was issued, Hulings,

Respondent's owner and operator, had known for 2 months that the
engine and the gear of the 800 truck was inoperable. In spite of
this, Respondent did not repair the truck nor did it remove it
from service. Accordingly, I find that the violation of section
77.404(a), was due to Respondent "unwarrantable failure." (U.S.
Steel Corp., 6 FMSHRC 1423 (June 1974).

 Based upon the statutory criteria in Section 110 of the

Federal Mine Safety and Health Act of 1977, I find that a penalty
of $100 is appropriate for the violation of 30 C.F.R.
77.404(a).

 Subsequent to the hearing, on May 14, 1987, the Petitioner

has filed a Motion to Approve a Settlement Agreement for Citation
No. 2695932, Citation No. 9954451, and Order No. 2695934. A
reduction in penalty from $123 to $80 was proposed. I have
considered the representations and documentation submitted, and I
conclude that the proffered settlements are appropriate under the
criteria set forth in Section 110(i) of the Act.

 On May 22, 1987, the United Mine Workers of America and

Energy Supply Incorporated filed a Joint Stipulation wherein they
agreed that if Order No. 2695927 is found to have been properly
issued, then Jeffery Stennett will be entitled to compensation
pursuant to Section 111 of the Federal Mine Safety and Health Act
of 1977. The Parties further stipulated that Energy Supply
Incorporated will, within 15 days of the issuance of a final
decision in PENN 86-291, pay Jeffery Stennett $526.05 plus
interest

at the rate of 10 percent per annum. Considering this
Stipulation, and the fact that I have found that Order No.
2695972 was properly issued, I conclude that Jeffery Stennett is
entitled to compensation pursuant to section 111 of the Act, in
the amount of $526.05 plus interest at the rate of 10 percent per
annum.

                             ORDER

 It is ORDERED that:

 1. The operator pay the sum of $223, within 30 days of this

decision, as a civil penalty for the violations found herein.

 2. The operator pay Jeffery Stennett, within 15 days of this

decision, $526.05 plus interest at the rate of 10 percent per
annum.

                                 Avram Weisberger
                                 Administrative Law Judge