IMC Fertilizer, Inc.

Plain-English summary

IMC Fertilizer operated a phosphate mine where an inspector found inadequate brakes on a Caterpillar 980 loader and a Clark 275 loader. After hydraulic fluid was added to the Caterpillar and the Clark's brakes were adjusted, both machines stopped in two or three feet instead of seven or eight feet. Judge James A. Broderick affirmed both citations but found that the Secretary had not proved a reasonable likelihood of serious injury. The significant-and-substantial findings were vacated, and penalties of $50 per citation were assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9003
• Outcome: Both brake citations were affirmed, their S&S findings were vacated, and total penalties of $100 were assessed.
• Key point: Marginally inadequate brakes supported violations, but the record did not establish a reasonable likelihood of serious injury.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. IMC FERTILIZER
DDATE:
19890424
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 PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 88-94-M
PETITIONER A.C. No. 08-00176-05509

         v.                            Clear Srings Mine & Mill

IMC FERTILIZER, INC.,
RESPONDENT

                                DECISION

Appearances: Ken S. Welsch, Esq., Office of the Solicitor, U.S.
Department of Labor, Atlanta, Georgia, for the
Secretary of Labor (Secretary); George L. Bushn,
Safety Director, for IMC Fertilizer, Inc. (IMC).

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks civil penalties for two alleged

violations of 30 C.F.R. 56.9003, cited on June 28, 1988,
because a Caterpillar front end loader and a Clark front end
loader had inadequate brakes. Pursuant to notice, the case was
called for hearing in Tampa, Florida, on March 16, 1989. Lawrence
L. Richardson testified on behalf of the Secretary; Clarence L.
Williamson, Charles Brown, Jessie Perez and Ed Gilmore testified
on behalf of IMC. At the conclusion of the hearing the parties
argued their positions on the record, and waived the right to
file post-hearing briefs. I have considered the entire record and
the contentions of the parties, and make the following decision.

FINDINGS OF FACT

 IMC is the owner and operator of a phosphate mine in Polk

County, Florida known as the Clear Springs Mine. The operation of
the mine affects interstate commerce. IMC is a large operator.
During 1987, 284,195 man hours of work were reported at the Clear
Springs Mine. During the 24 month period from August 9, 1986 to
August 8, 1988, seven citations were issued charging violations
at the mine, including the two contested herein. Two have been
paid. This history is not such that penalties otherwise
appropriate should be increased because of it. The violations
involved in this proceeding were promptly abated by IMC.

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Lawrence L. Richardson, a Federal mine inspector made an
inspection of the subject mine on June 28, 1988. Richardson has
been a Federal mine inspector for approximately eleven years.
Prior to that time, he worked in the mining industry in Florida
for about 32 years. He has operated heavy equipment including
front end loaders, has been employed as a mine superintendent and
has owned his own contracting business. During his eleven years
with MSHA, he has inspected the brakes of thousands of front end
loaders.

CITATION 3249791-980 CATERPILLAR FRONT END LOADER

 On June 28, 1988, IMC's 980 Caterpillar front end loader was

in a holding area undergoing repairs for a faulty electrical
light system. Inspector Richardson inspected the brakes, which
were air over hydraulic, the back up alarm, the horn and the
windshield wipers. He asked the mechanic to start the loader and
drive forward until the inspector dropped his hand and then to
apply the brakes. The loader came to a "slow stop." Before the
brakes were applied the loader was travelling at about 10 miles
an hour. After the brakes were applied it travelled 7 to 8 feet.
The inspector asked the loader operator if the brakes felt
"spongy" and the operator replied "yes." Inspector Richardson
issued the subject citation charging that the brakes were not
adequate. Approximately one quart of hydraulic brake fluid was
added to the reservoir. The machine has two reservoirs, each
holding about two quarts of fluid. The brakes were then tested in
the same manner as previously, and the vehicle stopped in 2 to 3
feet. The violation was considered abated, and the citation was
terminated. IMC's witnesses testified that the stopping distance
was approximately the same on both tests. The operator of the
vehicle was on sick leave and did not testify. However, a written
statement taken from him by IMC Safety Supervisor Williamson was
admitted into evidence. I am accepting as factual the testimony
of Inspector Richardson based on his experience and expertise in
performing the inspection.

CITATION 3249795 CLARK 275 FRONT END LOADER

 On June 28, 1988, Inspector Richardson inspected the brakes

on IMC's Clark 275 loader in the same manner as the 980
Caterpillar. The 275 loader is a much larger piece of
equipment--perhaps twice as large as the Caterpillar. Again the
vehicle stopped in approximately 7 to 8 feet after the brakes
were applied. Again, in answer to the Inspector's question, the
loader operator stated that the brakes felt spongy. The 275 Clark
is equipped with an all air brake system; the brake pedal

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is spring loaded. The mechanic adjusted the brakes--tightening
the adjuster on one wheel by a half turn, and on the other wheels
by a quarter turn. Thereafter, the brakes were tested in the same
manner, the brakes locked, and the machine stopped in two or
three feet. I accept the Inspector's testimony as factual for the
same reasons I accepted his testimony concerning the stopping
distances for the Caterpillar loader.

REGULATION

 At the time the citations were issued, 30 C.F.R.      56.9003

provided as follows:

         Powered mobile equipment shall be provided with
         adequate brakes.

ISSUES

 1. Whether the brakes on the cited equipment were adequate?

 2. If violations are established, what are the appropriate

penalties?

 3. If violations are established, were they significant and

substantial?

CONCLUSIONS OF LAW

 Respondent at all relevant times was subject to the Federal

Mine Safety and Health Act in the operation of the subject mine,
and I have jurisdiction over the parties and subject matter of
this proceeding.

 I have accepted the Inspector's testimony as to the results

of the tests he made on the two pieces of equipment: the
equipment could be stopped in 7 to 8 feet prior to abatement and
in 2 to 3 feet after abatement (the addition of fluid in the case
of the Caterpillar; the adjustments in the case of the Clark).
IMC's witnesses were of the opinion that brakes which stopped the
equipment in 7 to 8 feet were adequate. They deny that the adding
of fluid or the adjustment performed had any effect on the
brakes' adequacy. Although the matter is not free from doubt, I
am accepting the Inspector's opinion that the brakes on both
pieces of equipment were inadequate when he tested them and
issued the citations. I base this conclusion largely on the
Inspector's extensive experience in the industry and as a Federal
inspector.

 However, the Secretary has not carried her burden of

establishing that the violations were significant and
substantial.

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The inadequacy of the brakes was marginal. There is no evidence
in the record that in the case of either of the loaders, there
was a reasonably likelihood of a serious injury. The violations
were, however, of moderate seriousness. Because of the size of
the equipment, it is important that adequate brakes be maintained
at all times. There is no evidence that the violations resulted
from IMC's negligence. Based on the criteria in section 110(i) of
the Act, I conclude that an appropriate penalty for each
violation is $50.

                               ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Citations 3249791 and 3249795 are AFFIRMED, but the

significant and substantial finding is VACATED.

 2. Respondent shall within 30 days of the date of this

decision pay the following civil penalties:

 CITATION                         PENALTY

 3249791                          $ 50
 3249795                            50

                      TOTAL       $100

                              James A. Broderick
                              Administrative Law Judge