Cousins' Aggregate Sales & Hauling, Inc.

Plain-English summary

Cousins' Aggregate Sales & Hauling operated a dredging site where employee Joseph Boudreaux fell from a pipeline into the water and drowned. The judge found violations involving failure to notify MSHA after the accident, failure to require a life jacket or belt while walking over water, and a leaking rowboat used to reach the dredge. The judge found the life-jacket violation significant and substantial and the leaking-boat violation significant and substantial, but not the result of unwarrantable failure. The decision amended the leaking-boat order to a section 104(a) citation and assessed a total civil penalty of $2,250.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 50.10, 56.15020, and 56.14100(b)
• Outcome: The leaking-boat order was modified to a section 104(a) citation, and the total civil penalty was set at $2,250.
• Key point: The decision treated life-jacket use and safe access to the dredge as mandatory protections where workers faced a risk of falling into water.

Full text (FMSHRC public release)

[DOCID: f:se9826.wais]

COUSINS' AGGREGATE SALES & HAULING, INC.
October 15, 1999
SE 98-26-M

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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


                    October 15, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 98-26-M
Petitioner : A. C. No. 22-00679-05503
v. :
: Scott Pit
COUSINS' AGGREGATE SALES & :
HAULING, INC., :
Respondent :

                         DECISION

Appearances: William Lawson, Esq., Office of the Solicitor, U.
S.
Department of Labor, Birmingham, Alabama, for the
Secretary; Ronald W. Fisk, Vice President,
Cousins' Aggregate Sales & Hauling, Inc., New
Orleans, Louisiana, for the Respondent.

Before: Judge Weisberger

 This case is before me based upon  a Petition for Assessment

of Penalty filed by the Secretary of Labor ("Secretary"),
alleging that Cousins' Aggregate Sales & Hauling, Inc.,
("Cousins") violated various mandatory safety standards set forth
in Title 30 Code of Federal Regulations. Pursuant to notice, the
case was hearing in Convington, Louisiana, on September 14, 1999.
The Parties waived the filing of a post hearing brief.

I. Introduction

 On September 10,  1996,  Joseph  Boudreaux  an  employee  of

Cousins walked on top of a pipeline, located over a body of
water, in order to access a dredge that was approximately 80 feet
from the shore. Boudreaux fell from the pipeline into the water
and drowned. Subsequent to an investigation, MSHA Inspector
Benny W. Lara, issued a citation alleging a violation of
30 C.F.R. � 50.10 and two orders issued pursuant to section
104(d) of the Federal Mine Safety and Health Act of 1977 ("the
Act") alleging violations of 30 C.F.R. �� 56.15020 and
56.14100(b), respectively.

II. Citation No. 4446089 (violation of section 103(j) of the
Act, and 30 C.F.R. � 50.10)

 A.  Violation

 Section  103(j) of the Act provides that in the event of  an

accident occurring in a mine " . . . the operator shall notify
the Secretary thereof . . . ." Section 50.10, supra, as
pertinent, provides that "[i]f an accident occurs, an operator
shall immediately contact the MSHA District or Subdistrict Office
having jurisdiction over its mine." (Emphasis added.)

 None  of  Cousins agents or officers took the initiative  in

notifying MSHA of the accident at issue on September 10, 1996.
Indeed, Cousins conceded at the hearing that it did violate
section 50.10, supra. Accordingly, I find that Cousins did
violate section 50.10, supra.

 B.  Penalty

 There is no evidence that this violation would have resulted

in an injury to any miner. I thus find that the gravity of this
violation was low. At the date of the accident, Cousins had only
three employees, and thus is considered a small operation. Also,
prior to the issuance of the orders and citations at issue, MSHA
had not issued Cousins any other citations or orders. Thus,
Cousins does not have any history of violations. The Parties
stipulated that the violations were abated in a timely manner,
and in good faith.

 In  essence,  Lara  opined  that  the   level   of  Cousins'

negligence was high. In support of this opinion Lara cited that
fact that Cousins had been in operation for 10 years, had been
subject to MSHA's jurisdiction at other sites for this period of
time, and therefore should have known of its reporting
responsibilities pursuant to section 103(j), supra, and
section 50.10, supra. On the other hand, John Caldwell, who was
Cousins' superintendent at the site in question on September 10,
testified he did not call MSHA after the accident because he
thought that the site was not subject to MSHA jurisdiction as it
was not in operation. In this connection, he stated that
although approximately 20 tons of material had been produced and
piled up, no material had been sold. Don Fisk, Cousins'
President, also was of the opinion that the site was not subject
to MSHA jurisdiction, as equipment on the site was still being
rebuilt. Also, Fisk indicated that after he was informed of the
occurrence of the fatality shortly after 9:30 a.m., he was
excited and that it did not occur to him to call anyone except
Ron Fisk, Cousins' Vice President. For these reasons, I conclude
that the level of Cousins' negligence to have been less than
moderate.

 At  the  present time,  Cousins  has  been  dissolved  as  a

corporation, and is no longer in operation. Further, Cousins'
lease of the site was not renewed by the lessor. I thus find
that imposition of a penalty would have a negative effect on
Cousins' ability to remain in business.

 Based upon all the above,  I  conclude  that  a  penalty  of

$50.00 is appropriate for this violation.

III. Order No. 4446094 (violation of 30 C.F.R. � 56.15020)

 A.  Violation

 Section   56.15020,  supra,  provides  as  follows:  "[l]ife

jackets or belts shall be worn where there is a danger from
falling into water."

 According  to  Lara,  his  investigation revealed  that  the

decedent had not been wearing a life jacket.[1] Also, Lara's
investigation revealed that the decedent, immediately prior to
his drowning, was walking a pipeline located over water. Cousins
has not disputed this testimony. I thus find that the decedent
was not wearing either a life jacket or belt when he walked on
the pipeline located over water. I find that this situation
presented a danger of falling into water. I thus find that
Cousins did violate section 56.15020, supra.

 B.  Significant and Substantial


 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 U.S.C. � 814(d)(l). 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 825 (April 1981).

 In  Mathies  Coal  Co., 6 FMSHRC 1, 3-4 (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
 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.

FOOTNOTES

 [1]:  When  the decedent's body  was  retrieved  from  the

water, he was not wearing a life jacket.

 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).  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,
 1574-75 (July 1984).

 The  pipeline   at  issue  was  approximately  10 inches  in

diameter and, as observed by Lara, had some sand on its surface.
It was located over water that was approximately 15 feet deep,
and extended approximately 85 feet from the shore to a dredge.
Given these circumstances, and the fact that a fatality did
occur, I find that it was reasonably likely that the hazard
contributed to by the violative condition of not wearing either a
life jacket or a belt while traversing the pipeline at issue,
i.e., falling into the water below the pipeline, would have
resulted in an injury of a reasonable serious nature, i.e.,
striking one's head against the pipe or falling into the water
and drowning. I thus conclude that the violation was significant
and substantial within the framework of the Commission's decision
in Secretary v. Mathies, supra.

 B.  Unwarrantable Failure

 According to Caldwell, on several occasions he had told Alex

Parker, the dredge operator, to wear a life jacket. Caldwell
stated that he had told Boudreaux, the other employee on the
site, more than once to wear his life jacket. Caldwell indicated
that the day prior to the accident, he had told Boudreaux not to
walk the pipeline. Caldwell indicated that, within 30 days of
the accident, he (Caldwell) always wore his life jacket.

 Fisk   testified   that  on  July 1,  he  had  purchased  an

additional four life jackets,[2] and had the name of each
employee placed on a life jacket. Approximately a week after the
four life jackets were purchased, Fisk had the dredge moved from
its location close to shore to a point approximately 70 feet from
the shore, and told Caldwell, Parker, and Boudreaux to no longer
walk on the pipeline, and to have their life jackets whenever
they are around water.

 On  the other hand, Caldwell testified that he was not  told

by anyone that it was unsafe to walk the pipeline, that he saw
both Ron Fisk and Don Fisk, Cousins' Vice President, walk the
pipeline, that although he had told Parker and Boudreaux not to
walk the pipeline they continued to do so, that he did not
discipline them, that Cousins did not have any safety rules or
disciplinary program, and that he did not always wear his life
jacket while in the rowboat[3] that was used to access the
dredge. Fisk stated that after July 1, he observed Boudreaux
walking the pipeline without his jacket and that he told him not
to do it.[4] Importantly, Fisk, who was the company's president,
and should have set a good safety example, conceded when the
dredge had been located only 20 feet from the shore, he had
walked on the pipeline without a life jacket. Although the water
under the pipe was 5 feet deep, and the pipe extended only
20 feet, a life jacket should have been worn as there clearly
existed some degree of danger of falling into the water.

 Within  the  context of the above evidence, I find that  the

violation herein occurred as the result of Cousins' negligence,
and that the level of this negligence reached the point of
aggravated conduct, and thus constituted an unwarrantable failure
(see, Emery Mining Corp., 9 FMSHRC 1997 (1987)).

 C.  Penalty

 I find that  the  gravity  of  this violation was relatively

high, and that the level of Cousins' negligence was relatively
high as set forth above. Considering the remaining factors set
forth in section 110(i) of the Act, as discussed above, (II B.).
I find that a penalty of $2,000.00 is appropriate for this
violation.

IV. Order No. 4446095 (violation of C.F.R. � 56.14100(b)

 A.  Violation

 Section 56.14100(b), supra, provides, as pertinent, that

". . . [d]efects on any equipment, . . . that affect safety shall
be corrected in a timely manner to prevent the creation of a
hazard to persons."

 The usual  means  to provide access to the off shore dredge,

in order to repair or service it, was by rowing an aluminum
rowboat that was located on the shore.

 According  to  Lara,  when he inspected the subject site  on

September 12, 1996, he rowed to the dredge in the rowboat along
with Caldwell. According to Lara, on the way back to the shore,
after the boat had been in the water for approximately
20 minutes, he observed approximately 2 inches of water on the
bottom of the boat. He indicated that there were three holes on
the bottom of the boat, and the diameter of one hole was
approximately the size of an eraser on a pencil. According to
Lara, to the best of his recollection, when he entered the boat
prior to rowing to the dredge, it did not have any water in it.

 Caldwell indicated that he had repaired the boat by caulking

it on September 9, 1996, but did not test it after he made the
repairs. Importantly, Caldwell did not contradict Lara's
testimony regarding the depth of the water on the bottom of the
boat as observed by him, and the fact that there was no water in
the boat prior to its being launched. I thus conclude that, when
observed by Lara, the boat did leak. Further, according to the
uncontradicted testimony of Lara, the leaks, as observed by him,
could only get worse, and, if not corrected, would affect safety,
and could cause the boat to sink, thus creating a hazard to any
persons in the boat. I thus find that the rowboat did have a
defect affecting safety.

 Caldwell testified that after  he  observed the boat leaking

on September 9, 1996, he caulked it, and that he had also
previously patched leaks around rivets. Fisk testified that he
had put silicone around the rivets "off and on." However, since
the boat was leaking on September 12, as observed by Lara, I
conclude that, in spite of previous patching, all the leaks had
not been corrected. Thus, I find that it has been established
that Cousins did violate section 56.14100(b), supra.

 B.  Significant and Substantial

 Caldwell  opined  that  the leaks  in  the  boat  were  "not

serious." Fisk testified that he never saw any hole as large as
a quarter inch in diameter as testified to by Lara. He opined
that the boat was "not leaking badly." However, considering the
fact that the boat provides the normal way for employees to
travel to the dredge, the distance the boat travels from the
shore to the dredge, the fact that, as testified to by Lara and
not contradicted, 2 inches of water accumulated in the bottom of
the boat after it had been in the water for 20 minutes, and
considering the depth of the water in the pond, I conclude that,
within this context, the violation was significant and
substantial (see, Mathies, supra).

 C.  Unwarrantable Failure

 Caldwell testified that in the  month  prior  to the date of

the accident after he had informed Don Fisk and Ron Fisk, the two
principal officers of Cousins, regarding the leaks in the boat,
and they had refused to fix the boat. However, later on in his
testimony he indicated that although neither Don Fisk nor Ron
Fisk told him to fix the boat, when he had reported the leaks to
Don Fisk the first time the latter did not respond, and Caldwell
could not recall his response the second time. Caldwell did not
set forth with any specificity any words spoken to him by Ron
Fisk from which he concluded that the latter had refused to fix
the boat. In contrast, I observed the demeanor of Ron Fisk, and
found his testimony credible that he had not refused to fix the
boat, and that "off and on" he had repaired leaks around the
rivets with silicone. Futher, Caldwell had attempted to patch
the leaks with caulking on September 9, and also a few weeks
prior to that date. Within this context, I find that Cousins had
not neglected the leaks, and had made attempts to repair them.
Accordingly, its conduct cannot be found to have been aggravated
conduct. Thus, I conclude that the violation herein was not the
result of Cousins' unwarrantable failure (see Emery, supra).

 C.  Penalty

 Since the violative conditions could  have  resulted  in the

boat's capsizing, and thus causing injuries to employees, I find
that the gravity of the violation was relatively high. For the
reasons set forth above (IV. C.), I find that Cousins was aware
of the leaking condition of the boat, but that it did make an
attempt to repair the leaks. Thus, I conclude that the level of
its negligence was moderate. Taking into account the remaining
factors set forth in section 110(i) of the Act, as discussed
above (II. B.), I conclude that a penalty of $200.00 is
appropriate for this violation.

                          ORDER

 It is ORDERED that Order No. 4446095 be amended to a section

104(a) citation that was significant and substantial. It is
further ORDERED that within 30 days of this Decision, Cousins
shall pay a total civil penalty of $2,250.00.

                            Avram Weisberger
                            Administrative Law Judge

Distribution:

William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Chambers Building, Suite 150, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)

Ronald W. Fisk, Vice President, Cousins' Aggregate Sales &
Hauling, Inc., 1661 Canal Street, Suite 1000, New Orleans, LA
70112 (Certified Mail)

dcp

FOOTNOTES

 [2]:  Prior to July 1, there were three life jackets at the

site for the three employees.

 [3]:  The rowboat was referred to by the witnesses as a "jon

boat."

 [4]:  Fisk indicated that he did not fire Boudreaux because

he felt that Boudreaux, whom he described as a hard worker,
needed the job.