Westrick Coal Company

Plain-English summary

Westrick Coal Company was cited after two workers repairing a bulldozer at the JPLMJ Strip Mine were observed without hard hats. Judge Avram Weisberger found a violation of the hard-hat requirement in 30 C.F.R. § 77.1710(d), but found that the evidence did not establish a likely falling-object hazard. The citation was therefore found not significant and substantial, and the evidence did not establish unwarrantable failure. The citation was amended to a 104(d) citation, and a $50 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1710(d)
• Outcome: Citation 2697967 was modified to remove the significant-and-substantial and unwarrantable-failure findings, and a $50 penalty was assessed.
• Key point: A hard-hat violation may be proven without establishing that a falling-object hazard was likely, which affects the S&S and unwarrantable-failure findings.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. WESTRICK COAL CO.
DDATE:
19881027
TTEXT:

Page 2

~1480
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. PENN 88-119
PETITIONER A.C. No. 36-07571-03516
v.
JPLMJ Strip Mine
WESTRICK COAL COMPANY,
RESPONDENT

                              DECISION

Appearances: Therese I. Salus, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Secretary;
Raymond Westrick, Owner, Westrick Coal Company,
Patton, Pennsylvania, for the Respondent

Before: Judge Weisberger

Statement of the Case

 In this case, the Secretary (Petitioner) has filed a

Petition for Assessment of the Civil Penalty alleging that the
Respondent, on July 1, 1987, violated 30 C.F.R. 77.1710(d).
After the Operator (Respondent) filed an Answer, a Prehearing
Order was issued on March 11, 1988, to which the Respondent did
not comply. Subsequently on April 11, 1988, Petitioner filed a
Motion to Dismiss Respondent's Notice of Contest on the ground
that Respondent did not comply with the terms of the Prehearing
Order. Respondent did not file any response to Petitioner's
motion, and on April 21, 1988, a Show Cause Order was issued,
directing Respondent to comply with the terms of the Prehearing
Order, or show cause why it should not be held in default for
failure to comply with the Prehearing Order. The Show Cause Order
further provided that if Respondent shall not file any response
by May 2, 1988, a default judgment shall be entered in favor of
Petitioner. No response was filed by Respondent, and on May 25,
1988, a Default Decision was entered. On June 24, 1988,
Respondent filed a Petition for a Discretionary Review. The
Commission, by Order dated July 8, 1988, vacated the Default
Decision to allow Respondent to present reasons for failures to
respond to the previous Orders, and allow the Petitioner to
interpose any objections to relief from the Default Decision. The
Order further

Page 3

~1481
provided that, should it be determined that relief from default
is "appropriate," the civil penalty issues in this matter should
be resolved. Pursuant to the Order and pursuant to Notice, a
hearing was held in Indiana, Pennsylvania, on August 18, 1988.

 At the hearing, Raymond Westrick, Respondent's owner,

testified with regard to the reasons for his failure to respond
to the previous Orders. I found persuasive the testimony of
Westrick, a non-attorney, who was appearing pro se, that he did
not have any office help, was personally involved with many
matters dealing with his mine, and had health problems at the
time the Orders were received. According to Westrick, his wife
signed the registered postal receipt for the Orders concerned,
and he described his wife as forgetful, and tending not to give
messages. Westrick also testified that he was confused by the
various correspondence he had received concerning this and other
alleged violations. Taking all these factors into account, as
well as Westrick's age, I concluded that it was in the interests
of justice, and appropriate, for the case to be heard on the
merits. The case was heard on the merits on August 18, 1988.
Gerry Boring testified for Petitioner, and Raymond Westrick
testified for Respondent.

Citation

 Citation 2697967 issued on July 1, 1987, states as follows:

         "Observed two men working in the active 001 pit,
         repairing a caterpillar bulldozer, and were not wearing
         hard hats to protect them from falling hazards (debris
         from the highwall)."

 On August 25, 1987, the Citation was modified to a 104(d)(1)

Citation.

Regulation

 30 C.F.R.   77.1710 provides as pertinent that each employee

working in a surface coal mine shall be required to wear
protective clothing and devices including " * (d) a suitable
hard hat or hard cap when in or around a mine or plant where
falling objects may create a hazard. . . ."

Stipulations

 1. The J.P.L.M.J. Strip Mine is owned and operated by

Respondent, Westrick Coal Company.

Page 4

~1482
2. The mine is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.

 3. The Administrative Law Judge has jurisdiction over this

proceeding pursuant to Section 105 of the Act.

 4. The subject citation, the modification order, and

terminations were properly served by a duly authorized
representative of the Secretary of Labor upon an agent of the
Respondent on the dates, times and places stated therein. They
may be admitted into evidence for the purpose of establishing
their issuance, but not for the truthfulness or the relevancy of
any statement asserted therein.

 5. The Parties stipulate to the authenticity of the

exhibits, but not to the relevance nor to the truth of the
matters asserted therein.

    6. The alleged violation was promptly abated.

 7. The J.P.L.M.J. Strip Mine, the only mine operated by

Westrick Coal Company, was producing 37,279 annual production
tons in 1987.

Finding of Facts and Discussion

 Gerry Boring, a MSHA Inspector, testified that on July 1,

1987, when he inspected Respondent's JPLMJ Strip Mine, he
observed two men in the pit doing repair work on a dozer. These
men were not wearing hard hats. He indicated that there was no
hazard of falling rocks to these men from either the highwall,
where clearing was performed 100 to 150 feet away, nor was there
a hazard of falling objects from the loading of trucks which were
hauling dirt from the highwall. However, according to Boring,
trucks transporting stones and rocks had, on their way to the
haul road, which was at an elevated grade, passed within 15 to 20
feet from and on the same level of the men repairing the dozer.
It was Boring's testimony that the trucks, transporting items
that varied from pulverized material to rocks weighing a couple
hundred pounds, were open at the rear end, had a slight pitch,
and were not covered. As such, he opined that as these trucks
travel approximately 5 miles an hour over a "rough" road, they
could bounce and sway, causing rocks to fly out of the trucks,
(Tr. 62), and hit the men on the head, causing a possible
fracture to the skull, depending upon the size of the material
thrown out of the trucks. With regard to the condition of the
road, he testified that Respondent had four or five trucks going
back and forth, loading and unloading, and this truck traffic
"creates" ruts in the road which is made out of dirt and stone
(Tr. 89). He also indicated that there was a hazard to the men in
being hit in the head when performing the repair work with
wrenches.

Page 5

~1483
According to Boring, one of the men performing the repair work
without a hard hat was Alfred Lieb, Respondent's pit foreman. In
the opinion of Boring, the latter should be familiar with the
requirement with regard to wearing hard hats. Boring opined that
Lieb did not show reasonable care in not wearing a hat, and did
not set a proper example for the men he had to supervise.
However, Boring indicated that he does not know of any such cases
where one has been injured due to the lack of wearing a hard hat.
He also indicated that he never observed such an incident. Also,
on cross-examination, he was asked whether he saw anything that
could fall off the side of the trucks, and indicated that he did
not recall. Also, on cross-examination, he was asked whether he
observed how high the material was piled in the trucks and he
indicated that he could not recall.

 Raymond Westrick, Respondent's owner, testified that the

trucks in question had a bed which sloped down to the cab which
had a protector to prevent the stones from hitting the cab. He
also indicated that the materials that the trucks were
transporting from the overburden contain stones which weighed up
to 40 pounds. According to his testimony, the trucks were loaded
with buckets, each one containing 6 to 8 tons. He said that the
35Äton trucks were loaded with three buckets, and the 50Äton
trucks were loaded with four buckets. He said that he observed
the trucks loaded on July 1, 1987, and the biggest piece of rock
in the trucks was about 50 to 60 pounds, and the trucks were
loaded only about 60 percent. He said that in his opinion, there
was no danger of rocks falling out of the trucks, and that he had
never observed rocks falling out of the trucks. According to his
testimony, loaded trucks traveled from the overburden to the haul
road and passed the men in question, who were approximately 175
feet away. He described the surface that the trucks traveled on
from the overburden to the haul road as being "smooth as glass"
and comprised of solid slate (Tr. 130). He described the surface
as being real hard and up to 3 inches thick. He said that the
last time it was scraped by a loader was probably the previous
day, but that he did not recall. Also, his testimony indicated,
in essence, that there was no physical barrier preventing the
trucks traveling closer to the men in question while going from
the overburden to the haul road and back again.

 Based upon the testimony of both witnesses, it appears

uncontroverted that uncovered trucks, open in the back,
containing materials with rocks up to 60 pounds, were traveling
in the pit area at approximately 5 miles an hour. Should these
trucks sway or bounce, it is not entirely inconceivable that some
rocks might

Page 6

~1484
fall out and hit the men in question, depending upon their
distance from the truck. Accordingly, since there is some
possibility of this hazard occurring, and that it is not totally
impossible, I must conclude that section 77.1710(d), supra, has
been violated, in that the men, not wearing hard hats, would be
exposed to this hazard.

 Petitioner herein has alleged the violation to be

significant and substantial. In essence, according to Boring
there was a likelihood of a rock being thrown from the uncovered,
open-ended trucks based upon their uncovered condition, speed of
5 miles an hour, the rough condition of the road with ruts, and
the proximity of 15 to 20 feet from the men in question. However,
I found Westrick's testimony more persuasive with regard to the
condition of the surface the trucks traveled and the path they
took in relation to the men. It does not appear that Boring
observed Respondent's operation on more than the one occasion
when he made his inspection on July 1, 1987. Neither the
contemporaneous notes of Boring (Government Exhibit 4), nor the
narrative of the Citation issued on July 1, 1987, contains any
description of the road condition, the level of the material in
the trucks, or the distance that the men in question were from
the path taken by the trucks which were loaded. It would thus
appear that Boring's testimony was based upon his current
recollection of one visit more than 2 years ago. In contrast, I
find Westrick's description of the path taken by the loaded
trucks to be more accurate, as he related the path taken to both
the haul road and the overhang where the trucks actually did
their loading. Also, inasmuch as Westrick was in the pit on a
frequent and regular basis, I find his description of the surface
more credible. This conclusion is also based upon my observations
of his demeanor. Also, although Boring could not recall how high
the material was piled in the truck, I find Westrick's testimony
that the trucks were filled to only 60 percent of their space
more credible, as it was based upon his recollection of the
tonnage capacity of the trucks and the number of buckets each
truck was loaded. Hence, I find that it has not been established
that the road was rough, and that the material in the truck was
piled more than 60 percent of the volume capacity. Nor has it
been established that the trucks were traveling within 15 to 20
feet of the men, nor has it been established that the trucks
traveled in an upgrade from the men in close proximity. I
therefore find that it has not been established that there is any
likelihood of the hazard of falling rock occurring. In addition,
I note that even Boring indicated that, in essence, he does not
have any knowledge of men without hats being injured from rocks
falling out of trucks in similar circumstances. Also Boring
indicated that there was no hazard from material falling on the
men from the highwall work or from the loading of the trucks. He
indicated that the men might have been injured from the wrenches
they were working with.

Page 7

~1485
However, it is clear that this hazard is not within the purview
of section 77.1710(d), supra, which refers to a hazard from
"falling objects." Further, there is no evidence upon which to
conclude that there was a likelihood to any degree of this injury
occurring from a wrench. Therefore, for these reasons, I must
conclude that it has not been established that the violation
herein was significant and substantial (See, Mathies Coal
Company, 6 FMSHRC 1 (January 1984)).

 Petitioner relies upon Secretary v. Turner Brothers, Inc., 6

FMSHRC 2125 (January 1984). However, I do not find Turner
Brothers, supra, to be relevant to the disposition of this case
at bar. In Turner Brothers, supra, Judge Koutras affirmed a
finding of significant and substantial with regard to a violation
of section 1710, supra, as the testimony indicated that the
miners therein, not wearing hard hats, were exposed to the hazard
from falling rocks from the highwall. In contrast, in the case at
bar, according to Boring, there was no evidence of any hazard of
rocks falling from the highwall.

 The citation herein was modified on August 25, 1988, and

upgraded to a 104(d)(1) Citation, because, according to Boring,
one of the men not wearing a hard hat was Respondent's foreman,
who "should be familiar with the requirements with reference to
wearing hard hats" (Tr. 80). There was no further evidence
adduced with regard to the issue of unwarrantable failure. The
Commission has recently held that unwarrantable failure is more
than ordinary negligence and requires aggravated conduct. (Emery
Mining Corporation 9 FMSHRC 1997 (December 1987)). Inasmuch as
the evidence herein has failed to establish a likelihood of a
hazard created by falling objects, I conclude that there was no
aggravated conduct in Respondent's foreman not having worn a hard
hat. Accordingly, I conclude that the violation herein was not
caused by Respondent's unwarrantable failure.

 As analyzed above, infra, because it has not been

established that an injury herein was likely to occur, I conclude
that the gravity herein was low. I conclude that Respondent's
foreman, Lieb, who did not wear a hard hat, should have been
aware of the regulation in question and should have set a better
example for the men that he had to supervise. Accordingly, I rate
the negligence herein as moderately high. Westrick indicated, in
essence, that imposition of a penalty herein would affect
Respondent's ability to continue in business as it is ready to go
out of business, and that this Citation, along with other
Citations that it had received, is forcing it into bankruptcy.
However, although he indicated that it was hard to answer whether
Respondent had a profit in 1987 and 1986, he indicated that it
did pay taxes and that Respondent was always able to pay its
employees on time. Accordingly, I conclude that the imposition of
a penalty herein

Page 8

~1486
would not affect the Respondent's ability to continue in
business. I also have taken into account all the remaining
statutory factors as stipulated to by the Parties. Based upon all
the above, and especially the low level of gravity herein, I
conclude that a penalty of $50 is appropriate.

                             ORDER

 It is ORDERED that the Citation 2697967 is hereby amended to

reflect the fact that the violation is not significant and
substantial, nor is it a result of Respondent's unwarrantable
failure, and accordingly it is amended to a 104(d) Citation. It
is further ORDERED that the Respondent shall pay a civil penalty
herein of $50 within 30 days of the date of this Decision.

                             Avram Weisberger
                             Administrative Law Judge