Galite Corporation

Plain-English summary

MSHA cited Galite Corporation after finding one missing bolt and several loose bolts on the plate connecting the drive shaft to the transmission of an R-22 Euclid haulage truck at the Galite No. 1 Mine. Judge George A. Koutras found that the equipment defect could cause the drive shaft to fall, damage brake lines, or throw the truck out of control, and that the condition was observable during a required inspection. He affirmed the violation, the significant-and-substantial designation, and the proposed $147 civil penalty. The judge found ordinary negligence, serious gravity, good-faith abatement, and no adverse effect on Galite's ability to continue in business.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9002
• Outcome: The citation and significant-and-substantial finding were affirmed, and Galite was ordered to pay a $147 civil penalty.
• Key point: A missing or loose drive-shaft bolt is an equipment defect affecting safety that must be corrected before the vehicle is used.

Full text (FMSHRC public release)

CCASE:
SOL(MSHA) V. GALITE CORP.
DDATE:
19870828
TTEXT:

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           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. SE 86-137-M
PETITIONER A.C. No. 09-00022-05515

            v.                    Galite No. 1 Mine

GALITE CORPORATION,
RESPONDENT

                               DECISION

Appearances: Larry A. Auerbach, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
Petitioner; Kenneth P. Mayeaux, General Manager,
Galite Corporation, Rockmart, Georgia, for Respondent.

Before: Judge Koutras

                        Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment of
$147 for an alleged violation of mandatory safety standard 30
C.F.R. 56.9002. The respondent filed an answer denying the
violation, and a hearing was held in Marietta, Georgia, on June
30, 1987. The parties waived the filing of posthearing briefs.
However, I have considered the oral arguments made by the parties
on the record during the course of the hearing.

                                Issues

 The issues presented in this case are (1) whether the

conditions or practices cited by the inspector constitute a
violation of the cited mandatory safety standard, and (2) the
appropriate civil penalty to be assessed for the violation,
taking into account the statutory civil penalty criteria found

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in section 110(i) of the Act. Additional issues raised by the
parties are discussed in the course of this decision.
Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub.L.

95Ä164, 30 U.S.C. 801 et seq.

 2. Section 110(i) of the 1977 Act, 30 U.S.C.       820(i).

 3. Commission Rules, 20 C.F.R.    2700.1 et seq.

Stipulations

 The parties stipulated to jurisdiction, and that during 1986

the subject plant and quarry, including office personnel, worked
143,705 man-hours. They also stipulated that any civil penalty
assessment for the violation in question will not adversely
affect the respondent's ability to continue in business (Tr. 5).

 The parties agreed that exhibit PÄ1, a computer print-out of

prior violations for the respondent's controller corporation
reflects the controller's history of violations for the period
July 9, 1984 through July 8, 1986. The print-out reflects 50 paid
violations, 22 of which are "significant and substantial"
violations. Petitioner's counsel asserted that for this same time
period, the respondent's Galite No. 1 Mine received civil penalty
assessments for nine citations which were "other than single
penalty items," and that they were timely paid (Tr. 6Ä7).

                           Discussion

 Section 104(a) "S & S" Citation No. 2848584, July 9, 1986,

cites a violation of 30 C.F.R. 56.9002, and the condition or
practice is described as follows: "One bolt was missing and
others loose on the plate that connects the drive shaft to the
transmission on the RÄ22 Euclid haulage truck."

Petitioner's Testimony and Evidence

 MSHA Inspector Bobby A. Underwood confirmed that he issued

the citation. He described the truck as an RÄ22 U model used to
haul material from the pit to the primary crusher, and he
confirmed that it was used daily during the full shift. The route
of the truck took it over level ground, but there were declines
where the truck entered and exited the pit. The truck had a
25Äton capacity and was approximately 20 years old (Tr. 11Ä12).

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Inspector Underwood described the truck drive shaft, and he
stated that the front of the universal joint had a flange which
attached to the transmission with approximately eight one-half
inch bolts. He found that one of the bolts was completely
missing, and that the others which he examined were loose to the
point where "you could actually turn them with your fingers," and
they were "backed out halfway" (Tr. 13).

 Inspector Underwood stated that he was alerted to the

condition of the drive shaft when he noticed a "shiny spot" in
the area next to the differential which appeared to have been
caused by some rubbing action. He checked the drive shaft and
found the loose and missing bolts which "was making the
transmission work up and down." Based on what he observed, he
concluded that it would have taken several days for the bolts to
work loose. He confirmed that upon inspection of the truck he
also issued two additional citations, one for an inoperative
horn, and one for a badly worn tie rod for the steering cylinder
(Tr. 15Ä16; exhibits PÄ2 and PÄ3). The condition of the tie rod
was such that it had the potential for breaking, and if it did,
the truck would lose its steering capability. Both cited
conditions were repaired (Tr. 16). He also observed that two
bolts were missing from the left rear transmission hangar plate,
but did not issue a citation for this condition. Although he did
not believe that this condition in and of itself would cause an
accident, "it would contribute to this drive shaft because it
would move back and forth" (Tr. 17).

 Mr. Underwood described the hazard associated with the cited

conditions as follows (Tr. 18Ä19):

      Q. What kind of hazard did you see associated with this
      problem with the drive shaft?

      A. The drive shaftÄwith the lost motion in it, if the
      bolts didn't come out, there was a good possibility of
      snapping those bolts, but this truck doesn't have a
      cross member underneath. The drive shaft would fall
      down, possibly sticking into the ground and throwing
      the truck out of control, or wham around and possibly
      hit the brake line and breaking it where you would lose
      your braking system.

      Q. What would cause it to go around? What would cause
      the drive shaft to fly around like that?

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A. Well, the front end would be loose and the differential would
turn the drive shaft around.

      Q. The differential is hooked onto the rear end of the
      drive shaft? Is that right?

      A. Right.

      Q. The back wheels?

      A. Right.

      Q. And that would still be turning as the truck is
      moving. Is that right?

      A. Right. Yes.

 Mr. Underwood stated that it is not unusual to use the

transmission to help brake the truck while it is on a grade or an
incline (Tr. 20). He identified a copy of an MSHA fatal accident
report involving another mine operator where a drive shaft on a
haulage truck gave way and the operator lost control of the
vehicle (Tr. 21; exhibit PÄ4). Petitioner's counsel asserted that
this incident is a representative example of what could happen
when a truck loses its transmission (Tr. 21). Respondent's
representative took the position that the report is not
particularly relevant because it states that "the direct cause of
the accident could not be determined" (Tr. 23).

 Mr. Underwood believed that the violative conditions which

he cited with respect to the drive shaft could result in serious
injuries or a fatality in the event the truck overturned or
collided with another vehicle or individual. He believed that the
condition was observable and that the lost transmission motion
and noise from the rubbing action should have alerted the
respondent. Since the result of the rubbing action was
observable, a routine further inspection under the truck would
have detected the loose and missing bolts (Tr. 24). Mr. Underwood
confirmed that the truck was taken to the shop, and that when he
next saw it, it was repaired. To his knowledge, the truck was not
used after the citation was issued (Tr. 24).

 In response to further questions, Mr. Underwood stated that

the truck operator is required to inspect his truck before
operating it. Although one would have to be under the

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truck to observe the drive shaft flange, the results of the
rubbing action of the drive shaft against the transmission was
noticeable to anyone simply walking around the truck. The truck
was being operated when he stopped it to inspect it, and he
observed the area which had been rubbing and wanted to know what
caused it. The truck was empty and the driver did not seem to
know anything about the conditions in question (Tr. 26Ä27). He
believed that the driver should have been alerted to the
condition in the normal course of his driving (Tr. 28).

 On cross-examination, Mr. Underwood confirmed that the

condition of the bolts, the wear on the side of the transmission
where it had been working up and down, the loose bolts on the
flange, and the missing bolts on the left rear of the
transmission, led him to believe that the cited condition had
existed for 2 or 3 days (Tr. 30). He could not state how long it
would have taken to work the drive shaft loose (Tr. 31). He
confirmed that he was aware of a prior accident at a mine where
he once worked which was caused by a loose drive shaft which
turned a haulage truck over on a decline (Tr. 31).

 Mr. Underwood stated that in the event the drive shaft on

the cited truck had come loose, it was possible that the driver
could have stopped it safely with the brakes if he had the
opportunity to do so. Although the brakes were adequate, if the
drive shaft had fallen down while the truck was operating in
loose dirt and rock and the end of the shaft caught on this
material, it could have pulled the truck out of gear (Tr. 32).

 In response to further questions, Mr. Underwood stated that

the truck was used to haul expanded shell rock which was being
mined, and that other company vehicles used the roadway.
Pedestrians did not usually use the roadway, and the trucks
normally travelled 35 miles an hour empty and approximately 10
miles an hour loaded (Tr. 34). Respondent's representative stated
that the posted speed limit is 15 miles an hour for trucks which
are empty and loaded, and that the distance from the pit to the
quarry is about half a mile, and from the quarry to the crusher
about half a mile. He concluded that the trucks do not attain
much speed in the half mile of travel (Tr. 35). Mr. Underwood
agreed with these distances, but suggested that the drivers
exceeded the posted speed limit (Tr. 35). He also agreed that the
haulage road is 80 feet wide for most locations over which the
trucks are driven, except for an area directly where they enter
the quarry. At

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that point the roadway is 50 feet wide for a distance of 100 feet
(Tr. 36).

Respondent's Testimony and Evidence

 Although the respondent's safety director was present during

the hearing, he was not called to testify, and the respondent
presented no testimony or evidence in defense of the citation
other than the arguments of its representative (Tr. 36).

Arguments Presented by the Parties

 The parties waived the filing of posthearing briefs and

relied on their oral arguments made on the record during the
close of the hearing (Tr. 43). Respondent takes the position that
the cited standard, 30 C.F.R. 56.9002, as worded, does not
apply to the cited condition of the drive shaft. Respondent
points out that the standard speaks in terms of "defects
affecting safety," and that since the alleged truck defect was in
the drive mechanism rather than on the truck's safety equipment,
the standard is inapplicable. Respondent concedes that a steering
mechanism may affect safety, but not necessarily a drive shaft,
especially one that is still intact and operating. Respondent
also believes that the condition of the drive shaft was something
that could have happened after the equipment was started and not
prior to its operation. In this regard, respondent asserted that
the bolts could have been in place and fallen off in the 3 hours
that the truck was in operation prior to its being inspected and
that "it's very hard to say that this did happen during the
operating period" (Tr. 8Ä9; 37). Since the condition was not
noted by the driver during his inspection, respondent concludes
that it occurred during the operation of the truck immediately
prior to the inspection (Tr. 41). However, respondent agreed that
"we do not go over the truck completely every day" (Tr. 41).

 The petitioner takes the position that the cited truck

defect involving the drive shaft of a large haulage truck with a
25Äton capacity was in such a condition that it was subject to
coming loose, causing lack of control of the vehicle, which could
result in serious injury or death, and that it is in fact a
defect which directly and perhaps substantially affected the
safety of the employees (Tr. 8). The petitioner points out that
it was not difficult for the inspector to observe the clue that
led him to find the defect, and that he simply walked around the
truck and observed this clue. Under the circumstances, petitioner
believes that had

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the operator of the truck conducted the same type of inspection,
he would have detected the defect and taking appropriate
corrective action (Tr. 38).

 Petitioner asserted that while the cited condition indicates

a possible maintenance problem, such problems, as reflected by
the defect found by the inspector, directly affects safety.
Petitioner pointed out that the inspector found another
maintenance problem during his inspection, but did not cite it
because it was not, of itself, a safety defect. With regard to
the respondent's suggestion that the cited condition may have
occurred during the 3 hours that the truck was operated prior to
the inspection, the petitioner submits that the unrefuted
testimony by the inspector is that the condition of the drive
shaft simply cannot reasonably happen in 3 hours. In any event,
petitioner asserts that this issue goes to the question of
negligence rather than to the existence of any violation (Tr.
39). In further support of its case, the petitioner cites a
decision by the Commission in Allied Chemical Corporation, 3 MSHC
1544, August 28, 1984, 6 FMSHRC 1854 (August 1984), affirming a
violation of an identical surface mining standard found in 30
C.F.R. 57.9002, in which the Commission held that "Defects
affecting safety in equipment continuously in operation,
including those occurring during the course of operation, must be
corrected before the equipment is used any further," 3 MSHC 1584
(Tr. 40).

                    Findings and Conclusions

 The respondent is charged with a violation of mandatory

safety standard 30 C.F.R. 56.9002, which provides that
"Equipment defects affecting safety shall be corrected before the
equipment is used."

 In Ideal Basic Industries, Cement Division, 3 FMSHRC 843

(April 1981), the Commission affirmed a violation of section
56.9002, and stated as follows at 3 FMSHRC 144 with respect to
its interpretation of the standard:

      [W]e hold that use of a piece of equipment containing a
      defective component that could be used and which, if
      used, could affect safety, constitutes a violation
      This interpretation is more likely to prevent
      accidents, a primary goal of the Act.

 United States Steel Corporation, 4 FMSHRC 616 (April 1982),

concerned a violation of an identical standard found in 30 C.F.R.
55.9Ä2. In that case, a driver of a 2 1/2Äto

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pick-up truck detected that the dual rear wheels of the truck had
shifted in the rear wheel-well while he was driving it. He
reported the condition to his foreman, but the condition was not
corrected. Two days later, another driver visually inspected the
truck, and believing that it had been repaired, proceeded to
drive it with a crew of men in it. On a straightaway, the driver
noticed that the rear tires were smoking in the rear wheel-wells.
Within seconds the rear end started to steer itself around the
cab, and when the driver let up on the gas pedal, the truck's
drive shaft dropped loose, and the truck overturned injuring the
occupants.

 The operator advanced an argument similar to that of the

respondent in this case. The operator contended that the term
"defects affecting safety" should be intended to cover detects
which are normally associated with the safe operation of the
vehicle, and that the question of whether the mechanical problem
cited by the inspector constituted an equipment defect affecting
safety should be interpreted in light of the knowledge and
understanding of the operator's personnel at the time it was
first observed, rather than after the truck had rolled over under
circumstances which had never previously been known to cause a
truck to turn over. Judge Steffey rejected this argument, and
found that the shifting rear end of the truck constituted a
"defect affecting safety" which was not corrected before the
equipment was used, and he affirmed the violation.

 The Commission affirmed Judge Steffey's decision, and

observed as follows at 6 FMSHRC 1434Ä1435:

      Substantial evidence also supports the judge's
      conclusion that the shifted rear end of this truck was
      a defect affecting safety. There is evidence in
      the record that a shifted rear end is a sign of
      mechanical defect, with a potential to cause an
      accident. Also, at some point, a shift in a vehicle's
      rear end will affect safety. In this particular
      instance, the shifted rear end caused the spring
      package to break, a punctured rear tire, the broken
      drive shaft to separate from the vehicle, and the truck
      to roll over. All of these facts point to a
      defect affecting safety.

 The Allied Chemical Corporation case cited by the petitioner

involved two missing bolts on a chock leg used for roof support
on a longwall system. In affirming the judge's

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finding that the missing bolts constituted an equipment defect
affecting safety, the Commission stated as follows at 6 FMSHRC
1857Ä1858:

      In both ordinary and mining industry usage, a "defect"
      is a fault, a deficiency, or a condition impairing the
      usefulness of an object or a part. Webster's Third New
      International Dictionary (Unabridged) 591 (1971); U.S.
      Department of Interior, Bureau of Mines, A Dictionary
      of Mining, Mineral, and Related Terms 307 (1968).

                           **********

      The judge further found that the absence of the two
      bolts in this case affected safety. We agree. Although
      the effect on safety of two missing leg bolts in a
      hydraulic chock line of some 125 units could be viewed
      as inconsequential and beyond the standard's purview,
      we are not prepared to dispute the judge's findings as
      to the adverse impact on safety occasioned by the two
      missing bolts.

      The starting point for analysis is the broad language
      of the standard, "affecting safety." That phrase is
      neither modified nor limited. Although this case does
      not require us to describe the minimal effect on safety
      cognizable under the standard, it is clear that the
      standard has a wide reach. The safety effect of an
      uncorrected equipment defect need not be major or
      immediate to come within that reach.

And, at 6 FMSHRC 1859:

      Defects affecting safety in equipment continuously in
      operation, including those occurring during the course
      of operation, must be corrected before the equipment is
      used any further. The contrary approach urged by Allied
      could result in such defects not being repaired for
      substantial periods of time, thus needlessly increasing
      safety risks.

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Fact of Violation

 In this case the inspector issued the citation because of

his belief that the loose and missing bolts on the flange plate
which connected the front universal joint to the transmission
presented a potential for the drive shaft to come loose, thereby
resulting in loss of control of the truck. He found one missing
bolt and several other bolts which were loose to the point where
they could be turned with his fingers. These conditions resulted
in the transmission moving up and down, and the inspector
believed that even if the loosened bolts had not come completely
out as the truck was driven, there was a good possibility that
they would snap off, thereby causing the drive shaft to fall out.
If this had occurred, and since the underside of the truck had no
restraining cross-member on its undercarriage, the fallen drive
shaft could possibly stick into the ground causing gear loss and
a loss of control of the vehicle. Since the truck differential is
hooked to the rear end of the drive shaft at the back wheels of
the truck which would be turning, had the drive shaft come loose
at the front end, it could whip around and possibly strike the
brake lines, thereby resulting in a loss to the truck braking
system.

 The inspector's testimony is unrebutted, and the respondent

presented no testimony or evidence to refute his contentions with
respect to the cited conditions. Further, the respondent has not
refuted the testimony of the inspector, which I find credible, as
to the potential consequences which may flow from the loosened
and missing bolts in question. There was a real potential for the
drive shaft to come loose and whip around freely under the truck
while it was being driven, thereby contributing to the loss of
control and possible loss of braking power. Under the
circumstances, and in light of the conditions which were
described and cited by the inspector, I conclude and find that
the missing and loose bolts in question were equipment defects
affecting safety within the meaning of section 56.9002, and the
citation IS AFFIRMED.

 The respondent's suggestion that section 56.9002 is

inapplicable because the cited conditions related to a mechanical
drive mechanism, rather than a safety component of the truck is
rejected. The standard makes no such distinctions, and the
decisions which have been discussed with respect to the
interpretation and application of this standard hold otherwise.

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The respondent's assertion that the bolts could have been
loosened and fallen off during the 3Ähour period that the truck
was in operation immediately prior to its inspection is not
relevant to the fact that a violation occurred. As noted by the
Commission in Allied Chemical Corporation, supra. "Defects
affecting safety in equipment continuously in operation,
including those occurring during the course of operation, must be
corrected before the equipment is used any further" (emphasis
added).

History of Prior Violations

 I conclude and find that the respondent's past compliance

record is not such as to warrant any additional increase in the
civil penalty which has been assessed for the violation which has
been affirmed.

Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business

 I conclude and find that the respondent is a relatively

small operator, and that the civil penalty which has been
assessed for the violation in question will not adversely affect
its ability to continue in business.

Gravity

 I conclude and find that the cited conditions constituted a

serious violation. Although the inspector found that the brakes
on the cited truck were adequate, and that it was possible that
the driver could have stopped the truck in the event the drive
shaft came loose, he nonetheless believed that a loose drive
shaft whipping freely under the truck could have pulled the truck
out of gear, sheared the brake lines, or caused loss of control
by sticking in the ground.

Negligence

 While it is true that the inspector had to look under the

truck to detect the cited defects, his unrebutted testimony is
that the shiny spot caused by the rubbing action of the
transmission which alerted him to look under the truck was
readily observable to anyone walking around the truck. Given the
fact that the truck driver is required to inspect the vehicle
prior to placing it in operation, and given the admission by the
respondent's representative that "we do not go over the truck
completely every day" (Tr. 41), I conclude and find that the
violation resulted from the respondent's

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failure to exercise reasonably care, and that this constitutes
ordinary negligence.

Good Faith Compliance

 The inspector confirmed that the truck was taken to the shop

after the citation was issued, and that when he next saw it the
conditions had been corrected. I conclude and find that the
respondent exercised good faith in abating the violation.

Significant and Substantial Violation

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3Ä4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      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 hazardÄthat is, a
      measure of danger to safetyÄcontributed 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.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

      We have explained further that the third element of the
      Mathies formula "requires that the Secretary establish
      a reasonable likelihood that the hazard contributed to
      will result

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in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d)(1), it is the
contribution of a violation to the cause and effect of a hazard
that must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel
Mining Company, Inc., 6 FMSHRC 1573, 1574Ä75 (July 1984).

 I agree with the inspector's finding that the cited

conditions constituted a significant and substantial violation.
Based on the facts of this case, I conclude and find that it was
reasonably likely that the continued operation of the truck with
loosened and missing bolts which obviously affected the drive
shaft would cause the drive shaft to come loose, thereby
contributing to a loss of control of the vehicle and a potential
accident of a reasonably serious nature. The inspector's "S & S"
finding IS AFFIRMED.

Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that the petitioner's proposed civil
penalty assessment of $147 is reasonable and appropriate.

                             ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

in the amount of $147 for the violation in question, and payment
is to be made to MSHA within thirty (30) days of the date of this
decision. Upon receipt of payment, this case is dismissed.

                         George A. Koutras
                         Administrative Law Judge