GFD Construction Company, Incorporated

Plain-English summary

MSHA cited GFD Construction at its Green's Pit for seven violations involving a rented front-end loader and dredge equipment. Judge David F. Barbour found that the loader lacked a seat belt, its backup alarm and horn were not functional, its parking brakes did not hold, and three dredge drives lacked required guards. He found four violations significant and substantial, found GFD negligent for each, and assessed penalties totaling $220. The citations were affirmed and the proceeding was dismissed after payment.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14130(a)(3), 56.14132(a), 56.1410(a)(2), and 56.14107(a).
• Outcome: Seven citations were affirmed and total civil penalties of $220 were assessed.
• Key point: A small operator remained responsible for regulatory compliance on rented equipment, including guarding and seat-belt requirements.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                      OFFICE OF ADMINISTRATIVE LAW JUDGES
                             2 SKYLINE, 10th FLOOR
                              5203 LEESBURG PIKE
                         FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 92-61-M
Petitioner : A.C. No. 08-01046-05511
v. :
: Green's Pit
GFD CONSTRUCTION COMPANY, :
INCORPORATED, :
Respondent :

                                   DECISION

Appearances: William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Petitioner;
Anthony Green, GFD Construction Company,
Incorporated, Pensacola, Florida, for Respondent.

Before: Judge Barbour

                             STATEMENT OF THE CASE

  In this proceeding arising under Sections 105(d) and 110(a),

30 U.S.C. 815(d) and 820(a), of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. 801, et seq. ("Mine Act"), the
Secretary of Labor ("Secretary"), on behalf of the Mine Safety
and Health Administration ("MSHA"), seeks civil penalty
assessments for seven alleged violations of mandatory safety
standards for surface metal and non-metal mines found in Part 56
of the Code of Federal Regulations ("C.F.R."). The Secretary
further asserts that four of the alleged violations constitute
significant and substantial contributions to mine safety hazards
("S&S" violations). A hearing on the merits of the matter was
held in Pensacola, Florida.

                                 JURISDICTION

  In order to establish the nature of the operation at issue

and Mine Act jurisdiction, the Secretary first called Anthony
Green. Green stated that since 1980 he has been the owner of GFD
Construction Company ("GFD"), which at its Green's Pit, conducts
primarily a masonry sand extraction operation.(Footnote 1)
According to

1 In addition to the extraction of sand, Green stated that GFD also
extracts some clay and is involved in providing fill dirt and top soil to
buyers, as well as in land clearing. Tr. 10.

Green, sand is dredged from ponds at the pit, is separated from foreign
material and is trucked from the pit to purchasers. Approximately eighty-five
percent of the sand is sold to home builders, but GFD also sells to county and
federal institutions, such as Eglin Air Force Base. Tr. 11. At the pit, GFD
operates heavy equipment such as a dragline, front end loaders, back hoes and
trucks. Approximately, ninety percent of the trucks are purchased outside the
state of Florida, in Alabama. The trucks transport sand to purchasers' job
sites over public highways. Tr. 11-12. In addition, the last front-end
loader purchased by GFD was manufactured in Japan. Tr. 11.

   Section 4 of the Mine Act, 30 U.S.C.   814, makes subject to the Act,

"[e]ach coal or other mine, the products of which enter commerce, or the
operations or products of which affect commerce, and each operator of such
mine." Given Green's testimony, I conclude that GFD's business affects
interstate commerce, that GFD is an operator subject to the provisions of the
Mine Act in the operation of Green's pit and that, as a result, the Commission
has jurisdiction over this proceeding.

  In order to establish the existence of each alleged violation, and,

where applicable the violation's S&S nature, the Secretary called to testify
Jackie Shubert, a MSHA inspector with approximately 6 years of inspection
experience. Shubert, who issued all seven of the alleged violations, also
testified regarding the gravity of each alleged violation and GFD's negligence
in allowing the violations to exist. GFD's case was presented through the
direct testimony of Green and through Green's cross-examination of Shubert.

Section 104(a) Citation No. 3596821, 10/15/91, 30 C.F.R.
56.14130(a)(3)

                                 EVIDENCE

  The citation states:

               The Kobelco 600A front-end loader S/N
               02119 was not provided with seat belts.

Exh. P-2. In addition to finding that a violation existed Shubert found that
the violation constituted a S&S violation.

   Shubert stated that on October 15, 1991, he conducted an inspection of

Green's Pit. Upon arriving at the mine, he stopped at the mine office to
advise Green of the nature of his visit. Green did not accompany him during
the inspection. Tr. 14-15

  At the pit, Shubert observed a Kobelco front-end loader ("loader")

dumping sand into a truck. Upon inspecting the loader, he noticed that it
lacked a seat belt. Tr. 16. Shubert considered this to be a violation of
Section 56.14130(a)(3).

  Explaining why he regarded the violation to be S&S, Shubert stated that

the loader's operator compartment had rollover protection but not a closed
cab. Although the loader was being operated on level ground., Shubert
nonetheless feared that it could turn over and throw the operator from the
compartment, subjecting him to crushing injuries or death should the rollover
protection structure strike him. Shubert stated that if the bucket were not
loaded evenly and were raised, the loader could become unstable and overturn.
Shubert mentioned an incident at a Mississippi operation where this had
happened. Tr. 17-20.

  Shubert also explained his understanding that GFD did not own the

loader, that the loader had been rented by GFD from Pensacola Ford Tractor
Co., and that the rented loader had been at the pit for approximately two
weeks. Nonetheless, Shubert believed that GFD, as the operator, was
responsible for assuring that the loader complied with all applicable federal
mine safety regulations when it was operated at the pit. Tr. 57.

   Green agreed that the front-end loader was rented.   Tr. 81.
                                THE VIOLATION

  Section 56.14130(a)(3) requires that seat belts be installed on wheel

loaders. There is no dispute that the cited loader was a wheel loader and
that it lacked a seat belt. Moreover, there is no dispute that GFD was the
operator of the pit and that the front-end loader, although rented, was under
GFD's control and direction at the pit. As Shubert correctly stated, whether
or not an operator owns a piece of equipment, the operator is responsible for
assuring regulatory compliance while the equipment is in operation at its
mine. Therefore, I find that the violation has been established.

                                     S&S

  In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The Commission set forth

the elements of a "significant and substantial" violation 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 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 reasonable serious nature. (6
         FMSHRC, supra, at 3-4.)

  In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August

1985), 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).

  There was a violation of the cited standard. In addition, Shubert's

testimony established a measure of danger contributed to by the violation in
that the lack of a seat belt contributed to the danger of the loader operator
being injured should the loader overturn. Further, I conclude that Shubert's
testimony established that the hazard of being thrown and injured was
reasonably likely to occur, even though the front-end loader was being
operated on fairly level ground. Shubert specifically referenced the danger
of loaders overturning due to unevenly filled buckets, and Shubert noted that
such an accident had happened before. In addition, and as Shubert also noted,
this particular front-end loader lacked a protective cab. Finally, a loader
operator who was thrown from the operator's compartment and struck or crushed
by the roll-over protection structure surely would be reasonably likely to
suffer a serious injury--even death. In sum, I agree with the inspector that
this was a S&S violation.

                          GRAVITY AND NEGLIGENCE

  The violation was serious. As the inspector testified, without a seat

belt the protection afforded by the front-end loader's roll-over protection
"was not worth a dime." Tr. 19. While Green expressed the opinion that a bar
in front of the operator's compartment would prevent the operator from being
thrown forward, he agreed that nothing would prevent the
operator from being thrown or from falling sideways. Tr. 83-84.

  Further, I conclude that GFD was negligent in allowing the violation to

exist. The seat belt was missing. It is the operator's duty to ensure that
the seat belt was in place and was functional. GFD did not meet its duty in
this regard.

Section 104(a) Citation No. 3596822, 11/15/91, 30 C.F.R.
56.14132(a)

                                  EVIDENCE

   The citation states:

                The back-up alarm on the Kobelco 600A
                front-end loader S/N 02119 was not being
                maintained in working condition.

Exh. P-3.

  Shubert stated that while inspecting the same loader, he observed the

machine backing up and did not hear the back-up alarm sound. Upon closer
inspection, he found that the alarm was in place but was not working. He was
not sure why the alarm failed to sound.

   Green did not dispute this testimony.

                                THE VIOLATION

  Section 56.14132(a) requires that back-up alarms be provided on self-

propelled mobile equipment and be maintained in functional condition. The
inspector's testimony regarding the non-functioning state of the alarm was not
contradicted, and I conclude that the violation existed as charged.

                           GRAVITY AND NEGLIGENCE

  The violation was not serious. The inspector indicated that he believed

it unlikely that the violation would result in injury to any miner. Exh. P-
3.

  Further, and for the reasons stated with regard to the violation of

Section 56.14130(a)(3) previously discussed, I conclude GFD was negligent in
allowing the violation to exist.

Section 104(a) Citation No. 3872700, 10/15/91, 30 C.F.R.
56.1410(a)(2)

                                  EVIDENCE

The citation states:

          The parking brakes on the Kobelco 600A front-end
          loader[,] Serial Number 02119[,] would not hold the
          load on level ground with [an] empty bucket, in that
          the loader rolled freely when [the parking] brakes was
          [sic] applied.

Exh. P-4.

  Shubert stated that during the course of his inspection of the

previously discussed loader he asked that the parking brakes be engaged, and
he observed that the loader, nonetheless, continued to roll. Tr. 23.

                                THE VIOLATION

  Section 56.1410(a)(2) requires that if self-propelled mobile equipment

is equipped with parking brakes, the brakes shall be capable of holding the
equipment, with its typical loaded on the maximum grade it travels. Shubert's
testimony regarding the lack of effect of the loader's parking brakes was not
disputed, and I conclude that the violation existed.

                            GRAVITY AD NEGLIGENCE

  The violation was not serious. As with the lack of a working back-up

alarm, Shubert found the non-operational
parking brakes unlikely to cause injury. Exh. P-4. Further,
and for the reasons stated with regard to the violations of Sections
56.14130(a)(3) and 56.14132(a), I conclude that GFD was negligent in allowing
the violation to exist.

Section 104(a) Citation No. 38728411, 10/15/91, 30 C.F.R.
56.14132(a)

                                  EVIDENCE

   The citation states:

                The front-end loader was not being
                maintained in functional condition, in
                that when the horn button was depresses
                the horn didn't sound an alarm on the
                Kobelco 600A front-end loader[,] Serial
                Number 02119. There was no fast traffic
                in the area.

Exh. P-5.

  Shubert testified without contradiction that when he asked the loader

operator to blow the horn on the loader, the horn would not sound. Tr. 24.

                                THE VIOLATION

  Section 56.14132(a) requires that horns provided on

self-propelled mobile equipment be maintained in functional condition.
Shubert's testimony established that the horn would not function. I find that
the violation existed as charged.

                           GRAVITY AND NEGLIGENCE

  Shubert stated on the citation form that there was no fast traffic in

the area, and he further indicated that it was unlikely an injury would result
from the violation. Exh. P-3.
I therefore conclude that the violation was not serious.

  Further, and for the reasons stated with regard to

the violations of Sections 56.14130(a)(3), 56.14132(a)
and 56.1410(a)(2), I conclude that GFD was negligent in allowing the violation
to exist.

Section 104(a) Citation No. 3596823, 11/15/91, 30 C.F.R.
56.14107(a)

                                  EVIDENCE

   The citation states:

                The main pump drive shaft located on the
                dredge was not provided with a guard to
                protect a person from contacting the drive
                shaft. The operator stands beside the
                drive shaft to operated the dredge.

Exh. P-6. In addition, Shubert found that the violation was S&S.

  Shubert stated that after inspecting the loader he went to the part of

the pit where the dredge was located. Shubert went by boat to inspect the
dredge. The dredge was not pumping at the time Shubert arrived, but Shubert
stated that the dredge operator, Willie Small, told him that it had been
pumping earlier that morning and that the dredge was not then operating
because the pump had lost its prime. Tr. 24-25. Small was trying to reprime
the pump. Tr. 25.

  Shubert described the dredge as having a diesel powered main pump, along

with a smaller primer pump. According to Shubert, the main pump sucks sand up
through a long snout. The snout is lowered into the water and down to the
sand floor of the pond by

a winch. The sand is then sucked up to the snout, through the pump and is
piped to another area of the pit where it is discharged. Tr. 26.

  Shubert stated that the drive shaft on the main pump is 8 feet long and

3 inches in diameter. The shaft rotates very rapidly. The drive shaft turns
the main pump. Shubert testified that the dredge operator may sit 10 to 12
inches from the shaft during the course of his duties while operating the
dredge. Tr. 27-28. Because, in Shubert's experience, all dredges are subject
to oil leaks and water spills on the their decks, Shubert feared the dredge
operator could slip or fall in the immediate vicinity of the turning shaft,
and the operator's clothing could become caught in the shaft and the operator
could be pulled into the shaft. If such were to happen, Shubert feared that a
broken limb or even a lost limb could result, as well as possible cuts. Tr.
30.

  During cross-examination, Green asked Shubert if he had been told that

the dredge was sabotaged shortly before the inspection and Shubert stated that
he had not. Tr. 48. Green explained during his testimony that the dredge had
been sunk in 35 feet of water, that it had completely turned over and that
when Shubert saw the dredge it had recently been refloated but that the pump
mechanism was gone and the main pump did not work. According to Green, on
October 15, GFD was trying to get the pump fixed. Tr. 68-69.

                               THE VIOLATION

  Section 56.14107(a) requires that moving machine parts that can cause

injury shall be guarded to protect persons from contacting such parts. In
addition, the regulations enumerates several parts that must be guarded, and
shafts are among the parts listed. As Commission's Administrative Law Judge
George Koutras has stated, "[t]he language. . . found in [Section] 56.14107(a)
specifically and unequivocally requires guarding for any of the enumerated
moving parts that can cause injury if contacted. The obvious intent of the
standard is to prevent contact with a `moving part'." Highland County Board
of Commissioners, 14 FMSHRC 270.291 (February 1991)(ALJ Koutras).

  I conclude that the violation existed as charged. While Green

maintained that the pump was not working on October 15, he did not go to the
pit with Shubert and was not there to hear Shubert's conversation with Small.
Nor did Green mention the sabotage to Shubert when Shubert came to his office
on the morning of the inspection. Tr.75-76. Shubert was adamant that Small
told him the pump had been in operation that morning, and I credit Shubert's
testimony. It seems logical that if the dredge had still been out of
operation due to the sabotage, Green would have told Shubert. Moreover,
Shubert stated that before

reaching the dredge he had seen sand at the end of the dredge pipeline.
Shubert believed the sand had been dredged that morning. Tr. 103. Thus, I
conclude that the pump had been in operation on October 15.

  The main pump drive shaft was a long and rapidly rotating part.

Shubert's fear that the dredge operator could become entangled on the shaft
should he slip or fall in its vicinity was reasonable, and it is reasonable to
credit his belief that an injury could result. Therefore, I conclude that the
main pump drive shaft could cause injury if contacted. It was not guarded,
and I therefore find that the violation existed as charged.

                                    S&S

  The evidence shows a violation of the underlying guarding standard.

There was a measure of danger contributed to by the violation. The unguarded
drive shaft, in conjunction with the proximity of the dredge operator and the
usual presence of oil and water on the deck of the dredge, was reasonably
likely to result in an injury. Further, becoming entangled with the shaft
could have resulted in a reasonably serious injury. In sum, I agree with
Shubert that this was a S&S violation.

                          GRAVITY AND NEGLIGENCE

  As indicated, Shubert stated that slipping or falling into the shaft and

becoming entangled in it could lead to broken or lost limbs and to cuts.
These are serious injuries. Further, the dredge operator at times had to work
in close proximity to the shaft and, as Shubert also observed, oil and water
was usually present on the dredge deck to some degree. Tr. 29-30, 50. While
the shaft remained unguarded the conditions under which the dredge operator
worked increased the likelihood that he would be injured. I therefore
conclude that this was an serious violation.

  I credit Green's testimony that the dredge recently had been sabotaged.

However, I also credit Shubert's testimony that the dredge had been in
operation the day of his inspection. Not only was he told this by GFD's
employee, he observed sand that he had reason to believe had been dredged
before he arrived at the mine. Green suggested that in the sinking of the
dredge, the guard had been lost. Whether or not this happened, once the
dredge resumed operation a guard was required and in neglecting to provide it,
GFD failed to meet the standard of care required of it as an operator. I
therefore conclude that GFD was negligent in allowing the violation to exist.

Section 104(a) Citation No. 3596825, 10/15/91, 30 C.F.R.
56.14107(a)

                                  EVIDENCE

   The citation states:

                The V-belt drive on the small primer pump
                located on the dredge was not provided
                with a guard to protect persons from
                contacting the V-belt.

Exh. P-7. In addition, the inspector found the violation to be S&S.

  Shubert described the V-belt drive as consisting of a belt that sits in

a pulley. As such, it is similar to a drive pulley. He also explained that
the primer pump is the smaller of the two pumps on the dredge and that it
pumps water into the main pump in order to get the main pump started. Tr. 31-

32. Because the
    V-belt drive lacked a guard, Shubert believed that should the dredge operator
    slip or fall, he or his clothing could become caught in the drive. Tr. 32.
    The dredge deck was usually wet; and as previously noted, Shubert stated that
    small amounts of oil or diesel fuel and water were present on the deck. Tr.

33. In Shubert's opinion this made it highly likely that the dredge operator
    would slip or fall into the belt drive. Tr. 33-34. Shubert described an
    incident in Mississippi where this had occurred and where a miner had lost a
    thumb. Tr. 32. He also stated that the dredge operator would walk within one
    or two inches of the V-belt drive during the normal course of a work day. Tr.
    34.

                                THE VIOLATION
    
    Drive pulleys are among those enumerated moving machine parts that
    

    Section 56.14107(a) requires must be guarded if they can cause injury. I
    accept Shubert's testimony that the V-belt drive lacked a guard. I also
    accept Shubert's testimony with regard to the possibility of injury should the
    dredge operator slip or fall into the V-belt drive. Although Green maintained
    that the dredge was not operable when the violation was cited, I have found to
    be credible Shubert's testimony that the dredge had been operated on October
    15. Thus, I conclude that the violation occurred as charged.

                                     S&S
    

    The evidence shows a violation of the cited guarding regulation. There
    was a measure of danger contributed to by the violation. The unguarded V-belt
    drive, together with the possible proximity of the dredge operator to the
    unguarded part and the consistently slippery condition of the dredge deck,
    made

it reasonably likely that injury to the dredge operator would occur. Further,
becoming entangled with the V-belt drive would be likely to cause a reasonably
serious injury. In sum, I agree with Shubert that this was an S&S violation.

                           GRAVITY AND NEGLIGENCE

  The violation was serious in that it subjected the dredge operator to

the likelihood of loss or injury of a finger or thumb. Once the dredge
resumed operation, a guard was required. In neglecting to provide it, GFD
failed to meet the standard of care required by the regulation, and thus was
negligent in allowing the violation to exist.

Section 104(a) Citation No. 3872742, 10/15/91, 30 C.F.R.
56.14107(a)

                                  EVIDENCE

  The citation states:

                The "V"-belt for the winch that operates
                the suction pipe was not guarded to
                protect persons, the dredge operator was
                working in the area.

Exh. P-8. In addition, the inspector found that the violation was S&S.

  As already indicated, the standard requires V-belt drives that can cause

injury to persons to be guarded.(Footnote 2) Shubert described the function
of the winch as pulling the cable that was attached to the nozzle of the
dredge and thus allowing the nozzle to be raised. When the winch was released
the nozzle dropped into the water. The V-belt drive only ran when the winch
was engaged. While the dredge operator was normally seated while the winch
was engaged, he occasionally had to walk by the V-belt drive to inspect the
nozzle and in so doing he passed within inches of the V-belt drive. Tr. 36-
39, 51. If the dredge operator were to slip or fall into the V-belt drive, a
possibility made likely by the usual presence of water, and of lubricants or
fuel on the dredge deck, Shubert feared that the operator could loose fingers
or even a limb. Tr. 37.

2 Although the citation is written in terms of the belt, Shubert's
testimony made clear that his concern was for the unguarded belt drive.
Tr. 36-37.

                               THE VIOLATION

  As previously indicated, I accept Shubert's testimony that the dredge

had been operating earlier in the day. I also accept his testimony with
regard to the lack of a guard and that a person could be injured if entangled
in the V-belt drive.(Footnote 3) There was a violation of the cited
regulation.

                                    S&S

  For the same reasons as those stated with respect to the preceding

violation, I agree with Shubert that this was an S&S violation.

                          GRAVITY AND NEGLIGENCE

  For the same reasons as those stated with respect to the preceding

violation, I conclude that the violation was serious and that GFD was
negligent in allowing the violation to exist.

                          CIVIL PENALTY CRITERIA

  The criteria that I must consider when assessing civil penalties is

contained in Section 110(i) of the Mine Act,
30 U.S.C. 820(i). Gravity and negligence have been discussed. With regard
to size of the business of the operator, it is clear from Green's testimony
that GFD is a small operator. Further, there is no evidence that the size of
the penalties assessed will adversely affect GFD's ability to continue in
business. The only evidence submitted regarding GFD's previous history of
violations are copies of two citations, one issued on July 11, 1989 for a
violation of Section 56.14130(a) and one issued on May 31, 1990 for a
violation of Section 56.14100. I conclude from this that GFD has a negligible
history of previous violations. Finally, GFD abated the violations within the
time set by Shubert, and Shubert had nothing but praise for the manner in
which GFD complied once it had been cited. I conclude, therefore, that
GFD demonstrated good faith in attempting to achieve rapid compliance.

3 Green testified that there was no V-belt drive on the winch, rather
that the winch was hydraulically operated. Tr. 65. However, Shubert was
certain that when he observed the winch the V-belt drive mechanism was
present. He stated that a hydraulic system had been installed for the winch
but only after he issued the October 15 citation. Tr. 66-67. Green was not
at the pond with the inspector on October 15, nor did he testify that he went
to the pond that day. Since I have no reason to doubt Shubert's testimony
with regard to what he observed on October 15, I conclude Shubert's
description of the winch mechanism was accurate.

                                CIVIL PENALTIES

  Considering all of the statutory civil penalty criteria, I conclude the

following penalties are appropriate:

   1.   Citation No. 3596821 - $40

   2.   Citation No. 3596822 - $20

   3.   Citation No. 3873700 - $20

   4.   Citation No. 3872841 - $20

   5.   Citation No. 3596823 - $40

   6.   Citation No. 3596824 - $40

   7.   Citation No. 3872842 - $40

                                       ORDER

   Based on the above it is ordered:

   1.   The citations at issue are AFFIRMED.

  2. GFD shall pay to the Secretary the assessed civil penalties within

thirty (30) days of the date of this order and upon receipt of payment this
proceeding is DISMISSED.
David F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution:

William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, 2015
Second Avenue, No., Suite 201, Birmingham, AL 35203 (Certified Mail)

Mr. Anthony Green, G F D Construction Company, Incorporated, 8777 Ashland
Avenue, Pensacola, FL 32534 (Certified Mail)

/epy