Hoover Incorporated

Read the official release (fmshrc.gov)

Plain-English summary

Hoover Incorporated contested two citations issued at its Donelson Pike Quarry and Mill, one after an employee worked on an elevated I-beam without a safety belt or line and one after a haulage truck continued rolling when its foot brakes were applied. Judge George A. Koutras found both violations proven and affirmed the significant-and-substantial findings. He assessed $42 for the safety-belt violation and $105 for the inadequate-brakes violation, for a total of $147. The Judge credited the operator's prompt abatement and found that the penalties would have a negligible effect on its ability to continue in business. The cases were to be dismissed after payment.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.15005; 30 C.F.R. § 56.9003
• Outcome: Both citations and their significant-and-substantial findings were affirmed, with civil penalties totaling $147.
• Key point: Prompt correction and a good compliance record may affect penalty assessment without eliminating proven violations or their S&S findings.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. HOOVER INC.
DDATE:
19881102
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 87-116-M
PETITIONER A.C. No. 40-00049-05508
v.
Docket No. SE 87-132-M
HOOVER INCORPORATED, A.C. No. 40-00049-05509
RESPONDENT
Donelson Pike Quarry & Mill

                            DECISIONS

Appearances: Michael L. Roden, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee, for the Petitioner;
James H. Neely, Safety Director, Hoover, Inc.,
LaVergne, Tennessee, for the Respondent.

Before: Judge Koutras

                   Statement of the Proceedings

 These proceedings concern civil penalty proposals 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 civil penalty assessments for two alleged
violations of certain mandatory safety standards found in Part
56, Title 30, Code of Federal Regulations. The respondent filed
timely answers contesting the proposed civil penalties and
hearings were held in Nashville, Tennessee. The parties waived
the filing of posthearing proposed findings and conclusions.
However, all oral arguments made by the parties on the record
during the course of the hearings have been considered by me in
the adjudication of these cases.

                              Issues

 The issues presented in these cases are (1) whether the

conditions or practices cited by the inspector constitute a
violation of the cited mandatory health standards, (2) the
appropriate civil penalty to be assessed for the violation,

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taking into account the statutory civil penalty criteria found in
section 110(i) of the Act, and (3) whether the violations were
"significant and substantial."

           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, 29 C.F.R.     2700.1 et seq.

Stipulations

 The parties stipulated to the following (Tr. 5Ä8; Pretrial

Joint Stipulations):

      1. Hoover, Incorporated is a Tennessee corporation
      which is in the business of surface mining and
      producing crushed limestone for resale in interstate
      commerce, and thus is subject to the jurisdiction of
      the Federal Mine Safety and Health Review Commission
      and its administrative law judges.

      2. As of June 1987, Hoover, Incorporated operated the
      Donelson Pike Quarry and Mill in Nashville, Tennessee,
      which employed 41 men and produced approximately
      5,331.33 tons of crushed limestone per day. On October
      2, 1987, Hoover, Incorporated closed the Donelson Pike
      Quarry and Mill and is no longer operating at that
      site. All of its operations in the State of Tennessee
      are now located in Rutherford County. From June 1987
      through April 1988, Hoover, Incorporated overall has
      employed 181 men and produced an average of 9,734.64
      tons of crushed limestone per day.

      3. Lawson Beech was the superintendent of the Donelson
      Pike Quarry and Mill in June 1987. T.S. Hoover was and
      is the president and majority stockholder of Hoover,
      Incorporated.

      4. The Donelson Pike Quarry and Mill began operations
      in 1957, and remained in active operation until October
      1987.

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5. On June 1, 1987, at approximately 10:30 a.m., during a regular
inspection of the quarry site, MSHA Inspector Donald Baker
observed an employee sitting on an "I" beam using a hammer to hit
a metal chute obstructed by crushed limestone. The employee was
not wearing a safety belt or line while performing this task. The
beam was approximately 8 1/2 feet above the level ground. It had
been raining earlier that morning, and the employee's shoes were
wet and muddy.

      6. On June 18, 1987, in response to a complaint by a
      former employee, MSHA Inspector Lloyd Cloyd tested the
      brakes of a 35Äton Caterpillar truck, No. 505029, owned
      by Hoover, Incorporated and used at the Donelson Pike
      Quarry and Mill. The brakes were tested on an inclined
      road in the quarry, with the truck empty, and the
      inspector sitting in the seat beside the driver. When
      the brakes were applied, the truck did not come to a
      complete stop. The truck was traveling between eight
      and nine miles per hour when the brakes were applied.

      7. The truck was immediately taken to the shop for
      repairs. A new equalizer, or slack adjuster, was
      installed.

      8. Two days earlier, on June 16, 1987, the brakes on
      the truck had been worked on by a repairman.

      9. The total penalty assessment for both cases of
      $147.00 would have a negligible effect on the ability
      of Hoover, Incorporated to continue in business.

                           Discussion

 The contested citations issued in these proceedings are as

follows:

 Docket No. SE 87Ä116ÄM. Section 104(a) "S & S" Citation No.

3052407, issued on June 1, 1987, by MSHA Inspector Donald R.
Baker, cites a violation of mandatory safety standard 30 C.F.R.
56.15005, and the condition or practice is described as follows:

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An employee was observed sitting on an "I" beam using a hammer to
hit a metal chute that was hung-up with crushed limestone. The
employee wasn't wearing a safety belt and line to prevent a fall
to ground level if he slipped off this "I" beam. The "I" beam was
wet and muddy. A fall of approximately ten feet to ground level
exists at this location. This work was being performed at the
primary crushing and screening plant.

Petitioner's Testimony and Evidence

 MSHA Inspector Donald R. Baker testified as to his

experience and training, and he confirmed that he inspected the
subject mine on June 1, 1987. It had rained earlier that morning,
and the area around the crusher plant was wet and muddy. The
respondent's superintendent Lawson Beech, accompanied him during
his inspection. They proceeded to the secondary crusher plant
which was down because a chute was "hung up with limestone." Mr.
Baker identified exhibit GÄ1 as a photograph of the secondary
plant and bins with the chute in question. As they got out of Mr.
Beech's pick-up truck, Mr. Baker observed an employee sitting on
an I-beam using a small sledgehammer hitting the metal chute to
unclog the chute and to help the material flow. The employee was
seated in front of the chute with his legs off to the side, but
he was not straddling the beam, and his legs were not resting on
anything. Mr. Baker took it for granted that the individual was a
maintenance man, and he was not wearing a safety belt. He was
located approximately 10 feet off the ground, and Mr. Baker
agreed that it could have been 8 1/2 feet as stipulated to by the
parties. A pile of rock was located to one side on the ground,
and the ground directly under where the man was sitting was level
(Tr. 10Ä21).

 Mr. Baker stated that the beam was wet and muddy, but he

could not tell whether or not the man's shoes were also wet and
muddy. Mr. Baker's shoes were wet and muddy from walking around
in the area. Mr. Baker stated that the man used a ladder shown in
the photograph to reach the beam, and then walked out on the beam
to reach the chute. Mr. Beech climbed the same ladder and went
out on the beam to speak with the individual in question for a
few minutes. Mr. Baker believed that Mr. Beech also hit the chute
with the hammer while he was up on the beam, and then he and the
other individual came down. Mr. Baker asked Mr. Beech if any
safety lines or belts were

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Page 6

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available, and Mr. Beech replied "we don't have any on the
property, but I can get some" (Tr. 21Ä24).

 Mr. Baker believed that the individual on the I-beam could

have fallen off while seated on the beam, and while walking on it
to reach the chute. In the event of a fall to the ground, the
individual could have suffered broken bones as a minimum, or a
concussion if he fell on his head. Mr. Baker believed that the
individual could have tied off on one of the beam braces if he
had used a safety belt. Mr. Baker confirmed that he advised Mr.
Beech that he was issuing a citation, and served the written
citation later (Tr. 24Ä26; exhibit GÄ2).

 Mr. Baker believed that an accident and injury reasonably

likely would occur because of the fact that the individual was
sitting on a wet and slippery beam, and since he needed to walk
the beam to reach the chute location, there were several places
where he could have fallen off (Tr. 27). He also believed that
any injury would be a lost work time injury because a broken bone
would have required medical attention. Under these circumstances,
Mr. Baker concluded that the violation was significant and
substantial (Tr. 28). Mr. Baker confirmed that he made a finding
of "low negligence" because on prior inspections the respondent
had a good compliance record, and he did not believe the
respondent realized what the hazard was, and if it did, it would
have made a safety belt and line available (Tr. 29).

 On cross-examination, Mr. Baker confirmed that he did not

see how the individual sitting on the beam got there, but he did
observe Mr. Beech climb on the ladder to the walkway, and then
cross over the conveyor to the beam (Tr. 30). Mr. Baker estimated
that the individual sitting on the beam was approximately 3 feet
from the chute, but he did not measure the distance. Mr. Baker
stated that he would not argue with Mr. Neely's assertion that
the employee was 22 inches from the chute, and Mr. Baker
indicated that his estimate was based on his "eyeballing it" from
ground level. The individual was not really "stretched out," and
he would have been "pretty close" to the chute (Tr. 33). Mr.
Baker conceded that there could have been some "buildup" of
crushed stone on the ground under the beam, but that "I really
never noticed it" (Tr. 37). He confirmed that the distance that
the individual had to stretch to reach the chute was a
consideration as to the danger involved because "he's leaning
forward using a hammer and if he's gong to lose his balance, he
could lose his balance that way." He also agreed that a 22Äinch
stretch would have placed the individual in a dangerous situation
(Tr. 37).

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Respondent's Testimony and Evidence

 James H. Neely, respondent's safety director, testified that

he did not believe there was a danger of falling in this case
because "with all the framework and braces that were there, you
would have had to have pushed the man off almost, tied his hands
and pushed him off to have gotten him to fall" (Tr. 41).
Referring to a photograph, exhibit RÄ3, similar to petitioner's
photograph, Mr. Neely explained that one could not walk the beam
in question without holding on to a beam "because there's not
that much room" (Tr. 41).

 Mr. Neely stated that his position is that the individual

could not have fallen to the ground because there was ample
opportunity for him to grasp the braces and framework of the
structure shown in the photograph (Tr. 43). He also explained
that wet rock was being processed on the day in question, and
that when it "got bridged over" a hammer sometimes has to be used
to loosen it, but that this does not occur frequently (Tr. 44).
If it were an everyday occurrence, a walkway and handrail would
have been constructed to provide working access to the chute (Tr.
45). He also believed that tieing off on a slick beam would be
more difficult than simply sitting on the beam with an arm around
a beam (Tr. 45).

 On cross-examination, Mr. Neely stated that since the steel

beams had two quarter-inch flanges, they would provide a "hand
hold" for anyone to grab if he were falling, and this would be
true even if the beam were wet. He agreed that any fall would
occur "suddenly," but he saw no reason for anyone falling because
of the presence of braces for anyone to grab or put their arms
around. Referring to photographic exhibit GÄ1, Mr. Neely stated
that the individual was sitting on the bottom beam as shown in
the photograph, and that he could have braced his feet against
the crusher feed box. However, since he did not observe the
individual on the beam when the inspector did, Mr. Neely did not
know for a fact that his feet were braced against the box (Tr.
45Ä52).

 Docket No. SE 87Ä132ÄM. Section 104(a) "S & S" Citation No.

2862746, issued on June 18, 1987, by MSHA Inspector Lloyd W.
Cloyd, cites a violation of mandatory safety standard 30 C.F.R.
56.9003, and the condition or practice is described as follows:

      The 35Äton Caterpillar Truck Co. No. 29 did not have
      adequate brakes. The brakes were checked on the
      inclined road in the quarry with the truck empty. When
      the foot brake was

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applied the truck was going between 8 and 9 miles per hour and
continued to roll for several feet before stopping. This truck
was immediately taken to the shop for repairs.

Petitioner's Testimony and Evidence

 In view of the unavailability of MSHA Inspector Lloyd W.

Cloyd, his pretrial deposition was taken on June 28, 1988, with
the respondent's representative Neely present, and the transcript
of Mr. Cloyd's testimony, including two photographic exhibits,
were received as part of the record in this matter (Tr. 7;
exhibit GÄ1).

 Inspector Cloyd confirmed that he inspected the cited truck

on June 18, 1987, and the brakes were tested that day on the
haulroad with an approximate grade of 15 percent. He was seated
next to the driver while the truck was driven down the road at an
approximate speed of 8 or 9 miles per hour, and the truck was
empty. Prior to the actual test, the driver advised him that the
truck brakes were "fair," and that the truck would stop
"sometimes" when the brakes were applied on the incline. The
driver applied the brakes while the truck was approximately
two-thirds down the inclined road, or approximately 200 to 300
feet down the roadway, at the location shown by an "X" mark which
he placed on a copy of a photograph shown on deposition exhibit
No. 1. Mr. Cloyd confirmed that he observed the driver apply the
brakes to the fullest extent possible by raising up off the seat
and applying pressure to the brake pedal, and when he did, the
truck slowed, but continued to roll for approximately 30 to 40
feet before coming to a stop. After it stopped, Mr. Cloyd checked
the emergency brake, and found that it was in working order (Tr.
6Ä15).

 Mr. Cloyd stated that after completing his inspection of the

truck, Mr. Neely advised him that work was performed on the truck
brakes on the Tuesday prior to his inspection on Saturday, June
18, 1987, but Mr. Neely did not advise him as to why the brakes
needed work and did not identify any particular problem. Mr.
Cloyd confirmed that he had received two prior complaints about
the brakes from the operator who stated that "the brakes worked
perfect most of the time, but sometimes he would mash on the
petal and have nothing" (Tr. 16). Mr. Cloyd further confirmed
that repair work was done on the brakes after the citation was
issued, and that the Caterpillar Company was immediately called
to do the repairs. Mr. Neely informed him that a new equalizer or
slack adjuster was installed on the truck, and that the purpose
of the equalizer was to provide equal air pressure to all of the
wheels, and

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the lack of such pressure would hinder the brakes from stopping
the truck. The only reason for replacing the equalizer would be
to replace one that is defective (Tr. 15Ä18).

 Inspector Cloyd stated that he classified the violation as

"significant and substantial" because of the steepness of the
inclined roadway, and the fact that there was a 90 degree curve
at the bottom of the roadway, with a solid limestone wall in
front of it. He also considered the fact that the past history of
the cited truck indicated that there had been previous problems
(Tr. 18Ä19). Inspector Cloyd confirmed that after the truck was
repaired, he checked it while it was loaded at the dump, and
found that the brakes "worked perfect." He did not test the truck
with a load before repairs were made because he saw no reason to
load it up with 30 tons of rock, and he believed that a load
would have further hindered it from stopping. Mr. Cloyd confirmed
that the citation was abated on June 19, 1987, after the repairs
were made, rather than September 19, as previously noted (Tr.
24).

 At the hearing, petitioner's counsel introduced a copy of a

work invoice indicating certain work which was done on the truck
brakes on June 15, 1987, and this work included the installation
of a hose to the left front wheel, two pistons on the slack
adjuster or equalizer, and a diaphragm on the parking brake valve
(Tr. 11; exhibit GÄ4).

Respondent's Testimony and Evidence

 Safety Director James H. Neely, introduced a statement

executed by William E. Reeves, the mechanic who inspected the
truck and performed the work on it after it was removed from
service on June 18, 1987. Mr. Reeves states that the brakes "were
in good working order," and that "the retarder and parking brake
were also working well." Mr. Reeves also stated that "I could
find no indication that the brakes were unsafe. As a preventive
maintenance measure, I did replace two pistons in the slack
adjusted at the time of this brake check (Exhibit RÄ5).

 Mr. Neely asserted that the slack adjuster installed by Mr.

Reeves was installed "so that we could put the truck back in
operation, because I wouldn't attempt to take it after the
inspector would leave--take the truck back down there and put it
in operation without doing something" (Tr. 13Ä14). Mr. Neely
confirmed that shortly after Mr. Reeves arrived to inspect the
truck, they drove the truck around the shop area, checked the
hand brakes and retarder, and found that they both worked and
would stop the truck (Tr. 15).

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Mr. Neely stated that the 30Ä40 feet within which the truck
stopped after being tested by Inspector Cloyd was just a fraction
over the actual length of the truck itself, and an unloaded
80,000 ton truck going down a 15Ädegree grade on a loose rock
road cannot be expected to stop any quicker than that distance.
Mr. Neely explained the operation of the compressed air truck
brakes, and indicated that the stopping distance of 30Ä40 feet
for the truck when the brakes are applied is normal (Tr. 17). Mr.
Neely also pointed out that given the fact that work started at
6:00 a.m. on the day of the inspection, and the truck was
inspected by Mr. Cloyd at 9:00 a.m., the truck operator must have
made 10 or 12 trips with the truck, loaded and unloaded, and did
not report any problems with the brakes (Tr. 17).

 Mr. Neely stated that mine management was aware of the fact

that the quarry was 410 feet deep, and presented dangerous
conditions, and that was the reason why they had the truck
repaired. He stated that "we had it fixed at that time because it
was just too dangerous to take a chance" (Tr. 17). He confirmed
that after the repairs, there was no reason to know that there
was anything wrong with the brakes, and when they were checked,
"there wasn't anything wrong with them," and all three brake
systems were working (Tr. 18).

 On cross-examination, Mr. Neely confirmed that he was not at

the mine site on June 18, 1987, when Mr. Cloyd conducted his
inspection. Mr. Neely confirmed that when he and Mr. Reeves
tested the truck after it was cited at the same location while
travelling 8 to 9 miles an hour, the speed at which trucks are
allowed to operate on the incline, the truck travelled
approximately 30 feet after the brakes were applied before it
stopped. He reiterated that this was the normal stopping distance
for an empty truck of its size, but if it were loaded, it would
have rolled for 3 or 4 feet before stopping because the added
weight would give it more traction (Tr. 20Ä22).

 Mr. Neely confirmed that mechanical problems were

encountered with the cited truck, as well as the other trucks,
prior to the inspection by Mr. Cloyd, and that driving up and
down hills 12 hours a day does wear on the trucks. He also
confirmed that prior complaints were made about the cited truck
in question, but they would be taken care of immediately. He
described the complaints as "the brakes weren't working adequate,
or maybe the wheels would grab it before the other one would." He
also confirmed that the complaints indicated that "the brakes
were erratic and sometimes they would work

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and sometimes they wouldn't." When asked how long before the
inspection of June 18, the complaints were made, he responded "it
might be two weeks or it might be six months. You never know when
those things occur. It's just like any other piece of machinery,
you don't have any warning." Mr. Neely stated that the complaints
were not made regularly, and "no more than the rest of them
were," and since the cited truck was used primarily to haul from
the quarry to the crusher, "it got more wear" than the other
trucks which were not using their brakes as much (Tr. 22Ä24).

 Mr. Neely stated that although the operable hand brake and

retarder would have stopped the truck, he conceded that they were
not the principal means for stopping the truck, and that the
first thing a driver would do to stop a truck would be to apply
the foot brakes (Tr. 25). Mr. Neely confirmed that he was not
with Inspector Cloyd when he tested the truck after the brakes
were repaired, but it was his recollection that the truck was not
tested at the same location where it was cited or under the same
conditions (Tr. 31).

 Mr. Neely stated that management had no knowledge that the

cited truck had a problem until the morning of June 18, when
Inspectors Cloyd and Daugherty came to the mine in response to
complaint made by an employee who had been discharged. Mr. Neely
confirmed that the repairs made on the truck on June 15, were
made in response to the truck operator's statement that one wheel
was locking before the other one while going downhill, causing
the truck to slide, and the operator was concerned that he might
"wind up over against the buffer over the hill." In light of
this, "we took corrective action right then" (Tr. 41).

 Mr. Neely stated that his truck maintenance and service

records would show that similar conditions could be found for all
of the trucks from time-to-time, and in each instance, the repair
company would be called to the mine to make the necessary repairs
(Tr. 42). In the case at hand, Mr. Neely did not believe the
citation was justified because all of the information available
to management did not indicate any braking problems with the
cited truck (Tr. 42Ä43).

 Mr. Neely confirmed that the quarry site where the citation

was issued has been shut down and is no longer in operation, and
petitioner's counsel agreed that with the exception of the
citation in issue in this case, the respondent had not previously
been cited for inadequate braking condition on any of its trucks
(Tr. 44Ä45).

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Findings and Conclusions

Docket No. SE 87Ä116ÄM

Fact of Violation

 In this case the respondent is charged with a violation of

mandatory safety standard 30 C.F.R. 56.15005, which requires
the use of safety belts and lines when persons are performing
work where there is a danger of falling. The credible unrebutted
testimony of Inspector Baker establishes that an employee was
sitting on an I-beam approximately 10 feet off the ground banging
on a metal chute with a hammer while attempting to free up some
material which had clogged the chute. The employee was not
wearing a safety belt or line, nor was he tied off in any manner.
He was seated on the beam in front of the chute with his legs off
to one side, and he had to reach approximately 2 to 3 feet to
strike the chute with his hammer. The inspector was concerned
that the employee could have fallen from the beam while seated on
it and striking the chute, or when he walked on the beam to reach
his work location.

 The respondent agreed that the employee in question was not

using a safety belt or line, and its defense is based on its
belief that the employee was in no danger of falling because of
the presence of the steel framework of the structure in question.
Respondent believed that the employee could have grabbed the beam
flange as a "hand hold" in the event of a fall, and also argued
that the employee could not have fallen while walking the beam
because he could have held onto the steel braces.

 Respondent's Safety Director, James Neely, confirmed that he

did not observe the employee sitting on the beam without a safety
belt or line as did the inspector. Based on the credible
testimony of the inspector who confirmed his observations of the
employee sitting on the beam and striking the metal chute with a
hammer, I conclude and find that a violation has been
established. The position of the employee on the beam 10 feet off
the ground with a hammer in one hand striking the metal chute
without using a safety belt or otherwise being tied off and
secured to one of the nearby braces supports a reasonable
conclusion that he was in a precarious location which clearly
exposed him to a falling hazard. Such falls are usually
unexpected and may occur at any time while an employee is
preoccupied with his work. Mr. Neely conceded that any fall could
occur suddenly, and the fact that the employee could have reacted
by attempting to grab part of the structure

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on which he was seated while performing his work is not in my
view a reasonable defense to the violation. Under the
circumstances, the citation IS AFFIRMED.

Docket No. SE 87Ä132ÄM

Fact of Violation

 In this case the respondent is charged with a violation of

mandatory safety standard 30 C.F.R. 56.9003, for having
inadequate brakes on one of its haulage trucks. Section 56.9003
requires powered mobile equipment to be provided with adequate
brakes. Inspector Cloyd cited the truck after he had the foot
brakes tested by the driver while the truck was being operated
downhill and empty on an inclined haul roadway while travelling
at approximately 8 or 9 miles an hour. The inspector was seated
next to the driver while the test was performed, and his
unrebutted testimony reflects that when the truck was
approximately 200 to 300 feet down the haulroad, the driver
applied the foot brakes to their fullest possible extent by
raising up on his seat, but the truck continued to roll for
approximately 30 to 40 feet before coming to a stop. In Mr.
Cloyd's opinion, the incline where the truck was tested was not
such as to present a problem for a truck with brakes in proper
working order from coming to a complete stop when the brakes were
applied (Deposition (Tr. 8). Mr. Cloyd also believed that an
empty truck travelling at 8 or 9 miles an hour should have no
problem in stopping once the brakes were applied, and that the
road conditions where the truck was tested would not have made
stopping the truck a problem (Tr. 10Ä11).

 In addition to the actual testing of the brakes, Inspector

Cloyd confirmed that the driver advised him that the brakes were
"fair," and that the brakes would stop the truck "sometimes" when
the boot brakes were applied. Mr. Cloyd also confirmed that he
had received prior complaints from the truck operator who advised
him that while the brakes worked most of the time, there were
times when he applied the brakes and "had nothing." Since the
driver was not called to testify in this case, Inspector Cloyd's
testimony regarding the comments of the driver are unrebutted.

 The evidence establishes that after the truck was cited, it

was immediately taken out of service and repairs were made by the
installation of a brake equalizer or slack adjuster which
provided equal pressure to all of the truck wheels, and Inspector
Cloyd confirmed that the only reason for replacing the equalizer
would be to replace one that was defective. A

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~1532
statement by the mechanic who performed the repair work on June
18, 1987, reflects that two pistons in the brake adjuster were
replaced as "a preventative maintenance measure" (Exhibit RÄ5).

 The respondent asserts that repairs were made on the truck

brakes prior to the time of the inspection and the issuance of
the citation, and the record establishes that this was the case.
In view of these prior repairs, respondent maintains that it had
no reason to believe that the brakes were in other than operable
condition, and that when the brakes were tested by the mechanic
after the citation was issued, he found them to be in good
working order and could find nothing to indicate that they were
unsafe.

 In defense of the violation, the respondent relies on the

written statement by the mechanic expressing his opinion that the
brakes were in good working order and not unsafe. However, the
mechanic did not testify at the hearing, and neither he nor Mr.
Neely were present when the inspector had the brakes tested in
his presence under actual driving conditions. Consequently, I
have given little weight to the mechanic's statements.

 I take particular note of the fact that the mechanic did in

fact replace some pistons in the brake slack adjusters, and Mr.
Cloyd's testimony is that the slack adjusters served as a means
of providing equal air pressure to all of the truck wheels, and
would not be replaced if they were not defective. Given the fact
that the driver had to raise up on his seat while applying full
foot pressure to the brake pedal while they were being tested
under actual driving conditions, I believe one can reasonably
conclude that the failure of the truck to stop when the brakes
were applied, and its continuing to roll, was the result of a
lack of adequate and available air pressure on the foot brakes.
Although Mr. Neely stated that the truck hand brakes and retarder
were operable and would stop the truck when it was tested by the
mechanic, he conceded that the retarder and hand brake were not
the principal means for stopping the truck, and that the first
thing a drier would do to stop the truck would be to apply the
foot brakes. Mr. Neely also conceded that the cited truck was
subjected to more brake wear than other trucks, and like other
pieces of equipment, failures are unpredictable and can occur
without warning.

 Respondent's second defense is that the 30 to 40 foot

rolling distance that the truck travelled after the driver
applied the foot brakes was "normal." However, absent any
indication that Mr. Neely is a brake expert, and lacking any

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~1533
evidence as to the manufacturer's brake specifications or other
credible evidence reflecting the actual "normal" stopping
distances for an empty truck driving at 8 to 9 miles an hour, I
find no basis for Mr. Neely's unsupported conclusion as to the
"normal" stopping distance for the truck, and I have given it
little weight. Further, I reject Mr. Neely's suggestion that the
repairs made to the brakes after the citation was issued were
made simply to abate the citation or to facilitate placing the
truck back into operation. I believe that the repairs were made
because they were needed, and the mechanic confirmed that he
replaced the parts as a preventive measure. Inspector Cloyd
confirmed that once these repairs were made, the brakes "worked
perfect" when the truck was tested under a load.

 In several reported cases interpreting the meaning of the

term "adequate brakes," such determinations were made by the
inspectors through their inspections of the braking systems where
certain defects were noted, or by tests conducted on the trucks
by operating them on inclines to determine their braking or
stopping capability.

 In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980),

and Medusa Cement Company, 2 FMSHRC 819 (April 1980), Judge
Melick and Judge Cook affirmed violations for inadequate brakes
on haulage trucks based on tests conducted by the drivers by
driving the trucks on inclines to determine their braking and
stopping capability. In the Medusa Cement case, an MSHA inspector
defined the term "adequate" as "capable of stopping and holding a
loaded haul unit on any grade on the mine property." Judge Cook
found that the test conducted by the inspector and his
interpretation of the results obtained sufficiently established a
prima facie case for inadequate brakes.

 In Minerals Exploration Company, 6 FMSHRC 329, 342 (February

1984), Judge Morris affirmed an "inadequate brake" violation
based on an inspector's observation that the cited water truck
was "pulling very hard to the right." Testimony by the operator's
foreman reflected that the brakes on the truck had been relined 2
weeks before the citation was issued.

 In Turner Brothers, Inc., 6 FMSHRC 1219, 1259 (May 1984),

and 6 FMSHRC 2125, 2134 (September 1984), I affirmed violations
of section 77.1605(b), for inadequate parking brakes on a coal
haulage truck and an endloader based on tests which consisted of
parking the equipment on an incline and setting the brakes to
determine whether they would hold. In both instances, the brakes
would not hold the equipment, and I concluded that the brakes
were inadequate.

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In Greenville Quarries, Inc., 9 FMSHRC 1390, 1430 (August 1987),
I affirmed a violation for inadequate brakes on two haulage
trucks based on tests conducted on an incline which indicated
that the brakes would not hold the truck and that they were "slow
to stop" when the brakes were applied. Upon visual inspection of
one of the trucks, the inspector found that the rear brake fluid
cylinder was empty, and that on a second truck, the fluid
cylinder was also empty, and the brake hoses were disconnected.
He also found that 50 percent of the rear braking system on one
truck was inoperative.

 On the facts of the instant case, while it is true that the

inspector did not physically inspect the brakes or find any
specific defects, he nonetheless concluded that the empty trucks
travelling at a slow rate of speed should have been capable of
coming to a complete stop without rolling 30 to 40 feet after the
foot brakes were applied by the driver, or without the necessity
of the driver raising up on his seat to apply all of the
available foot pressure to the brake pads. Coupled with the fact
that repairs were made to replace a mechanism which controlled
the air pressure for the foot braking system, and my conclusion
that the lack of adequate air pressure to the brakes could
reasonably have prevented the truck from coming to a complete
stop sooner than 30 or 40 feet, I conclude and find that the
petitioner has established by a preponderance of the available
credible evidence that the cited truck foot brakes were in fact
inadequate. Accordingly, the citation IS AFFIRMED.

Significant and Substantial Violations

 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

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Page 17

~1535
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.

 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 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).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 With regard to Citation No. 3052407, I conclude and find

that the failure by the employee sitting on a wet and muddy
I-beam in question to wear a safety belt or line where there was
a danger of falling constituted a significant and substantial
violation of section 56.15005. In the event of a fall, I believe
it would be reasonably likely that the employee in question would
have suffered injuries of a reasonably serious nature. I agree
with the inspector's finding, and IT IS AFFIRMED.

 I also agree with the inspector's significant and

substantial finding with respect to Citation No. 2862746,
concerning the inadequate brakes on the No. 29 Caterpillar truck.
The

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Page 18

~1536
respondent did not dispute the fact that the inclined haulage
road over which the truck normally traveled during the course of
the working shift had a 90Ädegree curve at the bottom, with a
solid wall in front of it. The respondent also did not dispute
the fact that the depth of the quarry adjacent to the haulage
road, as shown in the photograph exhibits GÄ2 and Deposition
exhibit No. 1, posed a hazard, and Mr. Neely confirmed that the
repairs made on the truck brakes on June 15, 1987, were in
response to the concerns of the driver that one wheel was locking
while going downhill, causing the truck to slide towards the edge
of the roadway adjacent to the open pit below.

 Given the fact that the inadequate brakes allowed the cited

truck in question to roll some 30 or 40 feet before coming to a
stop, I believe that one can reasonably conclude that the
condition of the brakes posed a discrete hazard of the truck
colliding with the wall at the foot of the haulage road or
running off the roadway to the pit below in the event the driver
applied his brakes while approaching the bottom of the hill while
making the right turn. Inspector Cloyd confirmed that during the
testing of the brakes he had the driver apply the brakes before
reaching the curve at the bottom of the road at a pre-determined
location out of concern for the curve in the road, as well as the
wall, and he did so to allow an additional margin of safety in
the event the driver was unable to completely stop the truck. The
inspector confirmed that he based his "S & S" finding on the fact
that the haulage road was steep and the presence of a 90Ädegree
curve at the bottom with a solid limestone wall in front of it.
He also considered the fact that the cited truck had a history of
brake problems. Under the circumstances, I conclude and find that
the inspector's finding was reasonable, and IT IS AFFIRMED.

History of Prior Violations

 An MSHA computer print-out reflects that for the period

October 1, 1985 through September 30, 1987, the respondent paid
civil penalty assessments in the amount of $903 for 26
violations, twenty (20) of which are "single penalty" $20
assessed violations (exhibit GÄ3). For an operation of its size,
I cannot conclude that the respondent's compliance record
warrants any additional increases in the civil penalty
assessments which have been made for the violations which have
been affirmed in these proceedings.

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~1537
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business

 The record reflects that the subject limestone quarry and

mill operated by the respondent at the time the citations were
issued is not in operation and was closed on October 2, 1987.
During its operation, the respondent employed 41 miners at that
location and the facility produced 5,331.33 tons of crushed
limestone per day. From June 1987 through April 1988, the
respondent employed 181 miners in all of its operations and
produced an average of 9,734.64 tons of crushed limestone per
day. I conclude and find that the respondent is a medium-to-large
mine operator, and the parties stipulated that the payment of the
proposed assessed civil penalty assessments for the violations in
question would have a negligible effect on the respondent's
ability to continue in business. I adopt this stipulation as my
finding and conclusion on this issue.

Good Faith Compliance

 The record establishes that the cited truck was immediately

taken out of service and taken to the shop for repairs, and a new
equalizer, or slack adjuster, was installed. With regard to the
safety belt citation, the record reflects that when the employee
was observed sitting on the eye beam without a safety belt or
line, the respondent's quarry superintendent spoke to the
employee and ordered him off the I-beam, and the respondent
provided two safety belts and lanyards for use by its employees
in the primary crusher area. I conclude and find that the
respondent exercised good faith compliance by timely and rapidly
abating both of the violations.

Negligence

 I conclude and find that both of the violations which have

been affirmed resulted from the respondent's failure to exercise
reasonable care, and the negligence findings made the inspector's
with respect to both violations, ranging from "low" to
"moderate," are affirmed.

Gravity

 On the basis of my findings and conclusions affirming the

significant and substantial findings made by the inspectors, I
conclude and find that both of the violations which have been
affirmed in these proceedings were serious.

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~1538
Civil Penalty Assessments

 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 following proposed civil
penalty assessments are reasonable and appropriate for the
violations which have been affirmed in these proceedings:

Docket No. SE 87Ä116ÄM

Citation No. Date 30 C.F.R. Section Assessment

3052407 06/01/87 56.15005 $ 42

Docket No. SE 87Ä132ÄM

Citation No. Date 30 C.F.R. Section Assessment

2862746 06/18/87 56.9003 $105

                                ORDER

 The respondent IS ORDERED to pay the civil penalties

assessed in these proceedings within thirty (30) days of these
decisions and order. Upon receipt of payment by the petitioner,
these cases are dismissed.

                                George A. Koutras
                                Administrative Law Judge