Virginia Slate Company

Read the official release (fmshrc.gov)

Plain-English summary

Virginia Slate operated an open-pit slate operation where an MSHA inspector identified unguarded machinery, unsafe access, missing berms, missing impeding devices, defective horns, and other equipment and workplace conditions. Judge Avram Weisberger found violations of several mandatory safety standards and classified the specified orders and citations as significant and substantial or not significant and substantial. He rejected the Secretary’s unwarrantable-failure allegations, set individual penalties ranging from $200 to $600, and ordered a total payment of $4,400. The final order converted the listed orders to section 104(a) citations and required payment within 30 days.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.05050, 56.11001, 56.14100, 56.14107(a), 56.14131(a), 56.14132(a), 56.16005, 56.18002(a), 56.9300, 56.9301
• Outcome: Violations were found, unwarrantable-failure allegations were rejected, orders were reduced to section 104(a) citations, and a $4,400 total penalty was assessed.
• Key point: The judge found that the record supported many violations and some S&S findings, but did not establish aggravated conduct or unwarrantable failure.

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

                                       March 3, 2000

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. VA 99-8-M
Petitioner : A. C. No. 44-06803-05508
v. :
: Adco Land Corp No. 1
VIRGINIA SLATE COMPANY, :
Respondent :

                                        DECISION

Appearances: M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U. S. Department of Labor,
Arlington, Virginia, for the Secretary;
V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Richmond, Virginia, for
the Respondent.

Before: Judge Weisberger

   This case is before me based upon a Petition for Assessment of Civil Penalty filed by the

Secretary of Labor (“Secretary”) alleging that Virginia Slate Company (“Virginia”) violated
various mandatory safety standards set forth in Title 30 of the Code of Federal Regulations.
Pursuant to notice, a hearing in this matter was held in Buckingham, Virginia.

    Briefs were due to be filed three weeks after receipt of the transcript. The transcript was

filed on November 16, 1999. On December 6, 1999 the Secretary filed a motion for extension of
time to file its brief. The motion was not opposed. On October 21, 1999 an order was entered
allowing the parties until February 15, 2000 to file their briefs. On February 15, 2000 the
Secretary filed a Post-Hearing Brief. On February 28, 2000 Respondent filed a Brief and
Argument.

Findings of Fact and Discussion

      I. Order No. 7711660

        A. The Secretary’s Evidence

      On June 2, 1998, Rickey Joe Horn, an MSHA inspector, inspected Virginia’s open pit

slate operation. In the course of his examination, he observed that the tail pulley for the No. 1

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conveyor belt, located on the crusher, which was not in operation,1 was not guarded. According
to Horn, he asked Roy Terry, the foreman, why the guard was off, and the latter informed him
that the guard was off because the crusher motor was being worked on. Horn testified that he
also spoke to two crusher operators who informed him that the crusher had been worked on for
the past 2 weeks, but that it had been run during this time in the condition observed by him (Horn)
and that Terry had told him that the mine had been in production for the past week. In this
connection, Leroy Williams, who was a crusher operator in 1998, stated that a stock pile at the
site on the day of the inspection contained the quantity of material produced in “a full days run.”
(Tr. 201).

   According to Horn, the pulley was only 2 feet above the ground, and because it was

unguarded, there was nothing to prevent a person from walking into it. He described the ground
around the pulley as being rocky, and consisting of loose material. According to Horn, if a person
would trip on this material and fall into the pulley, a fatality would probably result. According to
Horn, V. Cassel Adamson, Jr., Virginia’s President, told him he did not know how long the guard
had been off.

     Horn issued an order alleging a violation of 30 C.F.R. § 56.1417(a), and opined that the

violation was significant and substantial inasmuch as two employees work all day in the area of
the tail pulley, and that it was reasonably likely that an injury that would be at least permanently
disabling, would have resulted upon inadvertent contact with the pulley. He also opined that the
violation was as the result of Virginia’s unwarrantable failure.

    Williams indicated that the cited tail pulley did not have any guard “at the time leading up

to when the inspection took place” (Tr. I, 148). He testified that the crusher had guards on it
when it was in operation, but the guards were removed a few weeks prior to the inspection. He
indicated that when crusher was being repaired, the motor was test-fired, but he did not recall if
the guards were in place. Later on in his testimony, he indicated that when the “engine” was
tested, the guards were in place.

       B. Discussion

         1. Violation of 30 C.F.R. § 56.14107(a)

    Section 56.14107(a) as pertinent, provides as follow: “[m]oving machine parts shall be

guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, fly wheels, couplings, shafts, fans blades, and similar moving parts that can cause injury.”

    According to Horn’s testimony the tail pulley at issue when observed by him on June 2,

did not have any guard. This testimony was not impeached, nor was it contradicted by Virginia’s

   1
    / If the hopper is not in operation, the conveyor belt can be placed in operation as it has a

separate power source.

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only witness, the V. Cassel Adamson, Jr., its President. Nor did Virginia contradict or impeach
Horn’s testimony that the tail pulley was located approximately 2 feet above the ground.
Accordingly, I accept Horn’s testimony that on June 2, the tail pulley was not guarded to prevent
persons from contacting it. I also find, based upon Horn’s uncontradicted testimony that contact
with the moving tail pulley can cause an injury. It appears to be Virginia’s argument, in essence,
that it was not in violation on June 2, as the tail pulley was not in operation. However, the plain
meaning of the wording of section 56.14107(a), supra, does not provide for any exception to the
requirements set forth therein if the moving part to be guarded is not in operation. Further,
Horn’s and Williams' testimony establishes that the tail pulley, which is powered by an electric
motor, was capable of being operated at a time when the crusher was inoperable. For all these
reasons, I find that Virginia did violate section 56.14107(a), supra.

          2. 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.

 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


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   Mining Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

    As set forth above, the evidence establishes the first two elements set forth in Mathies,

supra, i.e., that Virginia violated a mandatory safety standard, and that the violative condition
contributed to the hazard of a miner becoming injured upon coming in contact with a moving tail
pulley. In analyzing the third element of Mathies, supra, i.e., whether there was a reasonable
likelihood of an injury producing event, i.e., contact with a moving tail pulley, the continuation of
normal mining operations must be taken into an account. In essence, according to Adamson, Jr.,
in normal operations the tail pulley at issue is guarded, and the guard had been removed because
the crusher was inoperable, and was being worked on. I reject this testimony as being too
speculative to predicate a finding that, with continued normal mining operations, there would not
have been a reasonable likelihood of contact with the tail pulley, as it would have been guarded.
Further, taking into account the nature of the ground conditions in the area of the tail pulley,
consisting of rocky loose material which would have created a stumbling or tripping hazard, the
location of the tail pulley approximately 2 feet above the ground, and the fact, as testified to by
Horn, that two crusher operators work in the area, I find that the third element of Mathies, supra,
has been met. In addition, Virginia did not impeach or contradict Horn’s testimony, that should a
miner have contacted the unguarded tail pulley, it was reasonably likely that a permanently
disabling injury would have resulted. I thus find that it has been established that the violation was
significant and substantial.

         3. Unwarrantable Failure

     According to Horn, in essence, Terry and the two crusher operators has told him that the

crusher had been operated for the past 2 weeks in an unguarded condition. The Secretary did not
call Terry to testify, nor did the Secretary indicate why Terry was not called . Hence, an inference
might be drawn that Terry’s testimony would not have been helpful to the Secretary’s case.
Moreover, the only crusher operator to testify, Leroy Williams, indicated that there was no guard
at the tail pulley “at the time leading up to the inspection”(Tr. Vol I, 148), but he did not testify
that it had been run without a guard. There is no evidence that a guard was not in place prior to
the time the crusher, and the operation of the entire plant, including the belts at issue, had been
shut down approximately 2 weeks prior to June 2. According to Horn’s testimony, a stock pile
that was in existence June 2, consisted of a quantity of material produced in one full day of
operation. It appears to be the Secretary position that the stock pile evidences the fact that the
plant was in operation, and the tail pulley at issue was in operation during the 2 weeks period
when it was not guarded. I find this argument to be speculative, and not supported by the record.
I take cognizance of Horn’s testimony that James Carter, a crusher operator, had told him that he
(Carter) was told by the foreman to operate the crusher without the guards being in place.
However, not much weight was accorded this hearsay testimony, as Horn did not indicate where
or when this conversation took place. Nor was it corroborated by Williams, the other crusher
operator, who did testify. In contrast, I observed Adamson’s demeanor and found his testimony
credible that, from May 10, 1998, through June 1, 1998, the plant was not in operation, was not
producing any material and that no belts were in operation, because the conveyor was being

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worked on. I also find his testimony credible that only late in the afternoon on June 1, did the
plant operate, in order to test the crusher, and only six buckets of material were processed. Also,
I accept his uncontradicted testimony that Virginia had decided to make sure that all guards be in
place prior to the startup of the normal operations, but before this task could be performed, Horn
arrived at the site to commence his inspection.

     Within the above context, I find that Virginia’s actions regarding the violative conditions

did not reach the level of aggravated conduct, and hence did not constitute an unwarrantable
failure. (c.f., Emery Mining Corp., 9 FMSHRC 1997 (1987)).

          4. Penalty

     Inasmuch as the violative condition could have resulted in a permanently disabling injury

or fatality, I find that the level of gravity of the violation was relatively high. For the reasons set
forth above, (I.(B.)(3.)), I conclude that the level of Virginia’s negligence to have been moderate.
The violative condition was abated in a timely fashion. There is no evidence in the record that
imposition of a penalty would have any adverse affect on Virginia’s ability to remain in operation.
Also there is no evidence in the record that any penalty herein should be mitigated by the size of
Virginia’s operation. Taking all these factors into account, as set forth in section 110(i) of the
Act, as well as Virginia’s history of violations, I find that a penalty of $300.00 is appropriate.

   II. Order No. 7711661

    In his inspection of June 2, Horn observed that there was no protective device for the V-

belt drive, and the pulleys for the feeder. The drive motor was located approximately 3 feet above
ground level. Horn issued an order under section 56.14107(a), supra. Virginia did not contradict
or impeach Horn’s testimony regarding the conditions observed by him, but adduced Adamson’s
testimony to the effect that normally the belt drive at issue was located above the reach of miners
working in the area. I thus find, based upon the Horn’s testimony that on June 2, as observed by
him, the V-belt drive at issue was not guarded and was within approximately 3 feet above the
ground. For the reasons as set forth above, (I.(B.)(2.)), I find that this condition presented a
hazard to miners of contacting moving machinery. I thus find that Virginia did violate section
56.14107(a), supra. Also, for the reasons set forth above, (I.(B.)(2.), I.(B.)(3.)), I find that the
violation was significant and substantial, but not the result of Virginia’s unwarrantable failure.
For essentially for the same reasons set forth above, (I.(B.)(4)) I find that a penalty of $300.00 is
appropriate.

   III. Citation No. 7711663

   On June 2, Horn observed that the tail pulley for the No. 2 belt, which was located about

2 ½ feet above the ground level, was not guarded. Virginia did not impeach Horn’s testimony
regarding his observations, nor did it adduce evidence to contradict or rebut his observations.

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Virginia’s evidence relating to the existence of the violative condition consisted of Adamson’s
testimony that the areas at issue had usually been bolted by perforated steel material considered to
be an area guard. Since Virginia did not rebut or impeach or contradict Horn’s testimony
regarding the conditions observed by him on June 2, I find, that Virginia did violate
section 56.14107(a), supra.

     I accept Horn’s testimony, that the violation was not significant and substantial inasmuch

as a injury of a reasonably serious nature was not reasonably likely to have occurred. Essentially
for the reasons set forth above (I.(B.)(3.)), and based upon Adamson’s testimony that I found
credible that the guard at issue had been removed to clean the area, I find that the violation was
not the result of Virginia’s unwarrantable failure (c.f. Emery, supra). I find that although a
reasonably serious injury was not reasonably likely to have occurred, should an injury have
occurred as a result of the violation, it could have been of a serious nature. Thus, I find that the
gravity of the violation was relatively high. Considering the additional factors set forth in section
110(i) of the Act, as set forth above, (I.(B.)(4.)), I find that a penalty of $300.00 is appropriate.

    IV. Citation No. 7711665

    On June 2, 1998, the motor, which ran the crusher, was operated by separate clutch and

throttle hand levers. There were no guard rails or catwalks provided to access these levers. The
means of accessing these levers, was by walking on an I-beam, approximately 6 inches wide, and
located approximately 6 feet above the ground. According to the uncontradicted testimony of
Horn, a person walking on the I-beam while operating the motor, could loose his balance and
suffer an injury. Horn cited Virginia under 30 C.F.R. § 56.11001 which provides that “[s]afe
means of access shall be provided and maintained to all working places.”

    Virginia did not impeach or contradict Horn’s testimony, and I accept it. Accordingly, I

find that on June 2, there was no safe means of access provided to a working place, i.e., the
location of the levers to operate the crusher. Accordingly, I find that Virginia violated
section 56.11001, supra.

    According to Williams, he had to access the levers by walking on the I-beam twice a day.

Considering this testimony, as well as the width of the I-beam, and its location above a rocky
surface, I find, that within this context it has been established that the violation was significant and
substantial (See Mathies, supra).

    According to Horn, it was “plainly visible”(Tr. Vol I, 82) that there were no railings or

catwalks providing access to the control levers. However, the only evidence the Secretary
adduced regarding the length of time that the violative condition had existed, consisted of
Williams’ testimony. Williams indicated that when he first started to work at the plant, he asked
the foreman, Roy Terry, why there was no hand rail on the crusher, and Terry said that he did not
know. Not much weight was accorded this hearsay testimony, as it was not corroborated. Also,
the Secretary did not indicate why it had not called Terry to testify.

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    Williams testified that the means of access to the controls as depicted in government

exhibit 20, had been in that condition for 2 months or less prior to the date of the inspection (Tr.
Vol. I, 175). However, he also indicated that he thought the access platform was taken down a
week or so prior to the inspection, but that he could not remember, and was not sure (Tr. Vol. I,
178). He indicated that the plant was in operation just part of the week prior to June 2 (Tr. Vol.
I, 180). I find Williams’ testimony unclear, and can not predicate any findings on his testimony
regarding the length of time the crusher had operated without safe access.

    On the other hand, I observed that the demeanor of Adamson, and found his testimony to

be credible that the crusher was not in operation in the period from May 10 through June 1, and
that after the new motor in the crusher was tested for 10 minutes on June 1, it was then shut
down and instructions were given not to run it again until either the controls were shifted to the
side of the crusher that had a catwalk, or additional catwalks were installed. Within this
framework, I find that it has not been established that Virginia’s actions herein amounted to
aggravated conduct, and thus do not constitute an unwarrantable failure (see Emery).

     I find that the level of gravity of the violation was relatively high, inasmuch as a serious

injury could have resulted. For the reasons set forth above, I find that the level of Virginia’s
negligence to have been no more than moderate. My analysis of the remaining factors set forth in
Section 110(i) of the Act is set forth above (I.(B.)(4.)). I find a penalty of $300.00 appropriate
for this violation.

   V. Order No. 7711666

     Horn testified that a berm was missing for 20 feet along the west side of an elevated

roadway leading to the dump. He indicated that there was a 15 to 20 foot drop-off. He issued an
order alleging a violation of 30 C.F.R. § 56.9300 which provides as follows: “[b]erms or guard
rails shall be provided and maintained on the banks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or endanger persons and equipment.”
Virginia did not impeach, contradict, or rebut Horn’s testimony, and accordingly I accept it.
Based upon Horn’s testimony, I find that, on June 2, 1998, a berm was missing for approximately
20 feet on the bank of the roadway where there existed a drop off of approximately 15 to 20 feet
would have endangered persons in a vehicle using the roadway. Accordingly, I find that Virginia
did violate section 56.9300(a), supra.

     According to Horn, the violation was significant and substantial, because trucks do use the

roadway, and if such a vehicle would overturn, fatal injuries could result. The Secretary has not
adduced any evidence regarding the slope, physical condition of the surface of the roadway, the
width of the roadway, how often it was traversed, whether the roadway was used for two way
traffic, and the condition of the trucks traveling the roadway. Within this context, I find that it
has not been established that an injury producing effect was reasonably likely to have occurred. I
thus find that it has not been established that the violation was significant and substantial (see,
Mathies, supra).

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    According to Horn, Adamson III, told him that he was responsible for checking the area at

issue, that Virginia had started using a front-end loader the week prior to June 2, and that he did
not realize that the drop off was that high. Horn concluded that the violation was as the result of
Virginia’s unwarrantable failure, since Virginia knew of the violative condition, and did nothing
about it. Williams testified that since February 1998, a front-end loader has been used to load the
hopper. On the other hand, Adamson testified that from March 1997 when operations
commenced, until June 1, 1998, he only saw the excavator feeding the crusher. He indicated that
normally the excavator was used to load the hopper, but that on June 1, the front-end loader was
used the load the hopper for about 10 minutes.

    I find the Secretary’s evidence inadequate to specifically establish how long a period of

time prior to June 2, the area in question has been used as roadway. More importantly, the
Secretary failed to establish for how long a period prior to June 2, there was no berm along the
bank for approximately 20 feet. Within this context, I find that it has not been established that
Virginia’s actions amount to aggravated conduct. Thus I find that it has not been established that
the violation was the result of Virginia’s unwarrantable failure (see, Emery, supra).

    I find that should a vehicle have gone off the road due to the lack of a berm a reasonably

serious injury could have resulted. Accordingly, I find that the gravity of the violation was
relatively high. For the reasons set forth above, I find that it has not be established that Virginia’s
negligence was more than moderate. I find that the violation was abated in a timely fashion.
Additionally, taking into account the remaining factors set forth in section 110(i) of the Act, as
discussed above (I.(B.)(4.)). I find that a penalty of $200.00 is appropriate.

   VI. Order 7711667

   According to Horn, there were no bumper blocks or any other impeding devices to

prevent a front-end loader loading the hopper from running into the hopper, hitting a rock, or
overturning. He issued a section 104(d)(1) order alleging a violation of 30 C.F.R. § 56.9301
which provides that “[b]erms, bumper blocks, safety hooks, or similar impeding devices shall be
provided at dumping locations where there is a hazard of overtravel or overturning.”

    Virginia did not impeach or contradict Horn’s testimony that there were no bumper blocks

or any impeding devices at the hopper dumper location. Nor did it impeach or rebut Horn’s
testimony that there was a danger of overturning. Accordingly, I find that it has been established
that Virginia did violate section 56.9301, supra.

     According to Horn, the violation was significant and substantial because it was reasonably

likely that if the front-end loader continued to use the dumping point, the vehicle would overturn,
hit rocks, or run into the side of the hopper. However, he did not explain the bases for his
conclusion. Nor does the record contain any facts to support such a conclusion. Accordingly, I
find that it has not been established that the violation was significant and substantial.

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    The evidence adduced by both Parties regarding the issue of unwarrantable failure was

essentially the same as that adduced regarding Order No. 771166. Hence, for the reasons set
forth above (V., infra), I find that the violation herein was not the result of Virginia’s
unwarrantable failure.

   Essentially, for the reasons set forth above (V., infra), I find that a penalty of $200.00 is

appropriate.

   VII. Order 7711668

    According to Horn, on June 2, he asked the operator of the Case 584 fork lift to test the

manual horn and the automatic reverse horn, and they did not work. He issued an order alleging a
violation of 30 C.F.R. § 14132(a) which provides as follows: “[m]anually-operated horns or other
audible devices provided on self-propelled mobile equipment as a safety feature shall be
maintained in a functional condition.”

    Virginia did not impeach Horn’s testimony. Adamson testified that the cited vehicle, at

the time of the inspection, was not provided with any manual horn. However, he did not present
any evidence to contradict Horn’s testimony that the automatic reverse horn was not operable.
Hence, based upon Horn’s testimony, I find that Virginia did violate section 56.14132(a), supra.

    Adamson testified that the operator of the fork lift sits high above the ground, has all

around visibility, and can see behind him by using a rear mirror. Virginia did not impeach or rebut
Horn’s testimony that the fork lift was being operated inside a building where there is foot traffic.
Within the framework of this evidence, I find it has been established that the violation was
significant and substantial (see Mathies, supra).

     Adamson testified that the fork lift had not been cited in the two previous inspections, and

that he was not aware that the horn was not operational. However, on the other hand, Horn
testified that he spoke to the operator of the fork lift who told him that the horn and backup alarm
had not worked for several weeks. There is no evidence that the fork lift operator had
communicated the existence of this defect to any Virginia’s managers. Thus, there is no evidence
that Virginia’s conduct reached the level of aggravated conduct (see, Emery, supra). Within the
context, I find that it has not been established that the violation was the result of Virginia’s
unwarrantable failure.

    I find that the level of gravity of this violation was relatively high, inasmuch as a serious

injury could have resulted should a person not have been warned of the fork lift backing up, and
thus could have sustained a serious injury. For the reasons set forth above, I find that it has not
been established that the level of Virginia’s negligence was more than moderate. Taking all the
remaining factors of section 110(i) of the Act into account, I conclude that a penalty of $300.00 is
appropriate.

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   VIII. Order 7711669

    Horn testified that the left section of the two-piece seatbelt in a R-22 Euclid haul truck

was missing. Virginia did not impeach Horn’s testimony. Horn issued an order alleging a
violation of 30 C.F.R. § 56.14131(a).2

    Adamson testified that when he drove the truck in early May 1998, both halves of the

seatbelt were in place. However, Virginia did not adduce any evidence to contradict Horn
regarding his observation on June 2. Accordingly, I find that Virginia did violate section
56.14131(a), supra.

     Horn testified that truck was driven on a elevated roadway to and from the pit. He opined

that an accident would have been reasonably likely to have occurred, should the truck have lost its
brakes, or hit something, and that a fatality would have resulted. Accordingly Horn concluded
that the violation was significant and substantial. Virginia did not impeach this testimony nor did
it offer any evidence to rebut it. Hence, within this frame work I find that the violation was
significant and substantial (see, Mathies, supra.

    According to Horn, Terry had told him that after the truck was delivered 3 weeks prior to

June 2, he did not check it for safety defects. Also, Horn testified that Adamson III had told him
that he drove it prior to its being put in service. Roy Lee Green, a former truck driver for
Virginia, testified that he had driven the truck almost every day prior to the inspection, and that it
had just one side of a seatbelt. On cross-examination, he stated that he had driven the truck for
3 weeks without a seatbelt. He indicated that he reported the lack of a full seatbelt to Terry who
told him that “he would get it straight. But . . . he didn’t do nothing about it” (sic) (Tr. Vol II,
224).

     Adamson testified that when he drove the truck in early May 1998, when he had

purchased it, both halves of the seatbelt were in place. He also testified that he had told Terry to
check it out before it was put in service, that a couple of days later, he asked Green, who was
driving it, how it was and he said it was okay, that his (Adamson’s) son drove it and said it was
okay, and that the preshift reports of the truck indicated that it was satisfactory. I accept
Adamson’s testimony that he neither knew nor reasonably should have known that the left side of
the seatbelt was missing on June 2, and prior thereto. However, Virginia did not rebut or
impeach Horn’s testimony that Terry had told him that he did not check it. Nor did Virginia
impeach or rebut Green’s testimony that he had reported the lack of a complete seatbelt to Terry,
but that the latter did not do anything about it. Within the context, I find that Virginia’s actions
constituted aggravated conduct, and hence I find that the violation resulted from its unwarrantable
failure (see Emery, supra).

   2
       / Section 56.14131(a) provides that “[seatbelts shall be provided and worn in haulage

trucks.”

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Page 11

    I accept Horn testimony, inasmuch as it was not impeached or rebutted, that if the truck

would have rolled over, the operator would have been thrown out of the cab, due to the lack of
seatbelt. Accordingly, I find that the gravity of the violation was relatively high. Also, for the
reasons set forth above, I find that the level of Virginia’s negligence was relatively high.
Considering also the remaining factors set forth in section 110(i) of the Act, I find that a penalty
of $600.00 is appropriate.

   IX. Order No. 7711674

    According to Horn, on June 2, he observed two compressed gas cylinders that were

standing unsecured in a scale house. He indicated that although they were capped, they could fall
over and injure someone. He issued an order alleging a violation of 30 C.F.R. § 56.16005 which
requires that compressed gas cylinders be secured in a safe manner.

    Virginia did not rebut or impeach Horn’s testimony, and accordingly, I accept it. I thus

find that Virginia did violate section 56.16005, supra.

    According to Horn, Adamson III told him that he had placed the cylinders inside the scale

house, and that he knew that instead they should have been placed in a storage area, and that he
knew he was at fault. Also, according to Horn’s testimony, Virginia had been cited in the past for
this same type of violation. Virginia did not rebut or impeach this testimony, and I accept it.
Within this framework, I find that the violation was as the result of Virginia’s aggravated conduct
and thus constituted an unwarrantable failure (see Emery, supra).

    I find that the gravity of this violation was only moderate, inasmuch as Horn testified that

should the cylinders fall over as a consequence of not having been secured, and it could cause an
injury that would that would result in restricted duty. For the reasons set forth above, I find that
the level of Virginia’s negligence to have been relatively high. Considering the remaining factors
set forth in section 110(i), supra, I find that a penalty of $300.00 is appropriate.

   X. Citation No. 7711685

    According to Horn, on June 10, 1998, he provided the driver of the R-22 Euclid haul

truck with a calibrated noise dosimeter, and the driver kept it on for 8 hours. Horn testified that
the dosimeter indicated, after proper conversion from percentage to decibel, a decibel reading in
excess of 90. Horn issued a citation alleging a violation of 30 C.F.R. § 56.05050, which, in
essence, provides that exposure for 8 hours to more than 90 decibels is not permissible. Virginia
did not rebut or impeach Horn’s testimony, and accordingly, I accept it. I find on the basis of this
testimony that Virginia did violate section 56.05050, supra.

   According to Horn, continued exposure of the truck driver to this level of noise over a

long period of time would cause the employee to start to loose his hearing, and that this injury is
permanently disabling. Virginia did not rebut or impeach this testimony, and accordingly, I

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accept. Within this framework I find that the violation was significant and substantial (see,
Mathies, supra.

    I find that there is not any evidence that Virginia’s negligence was more than moderate.

Since the violation could have resulted a miner losing his sense of hearing, I find that the level of
gravity was relatively high. Considering the remaining factors in section 110(i) of the Act, I find
that a penalty of $300.00 is applicable.

    XI. Order No. 7711680

    Horn testified that in his inspection, he had noted various safety defects that should have

been observed in an examination, and corrected. He noted that it was obvious that guards, a
berm, and a stopping block were missing. He concluded that proper examinations were not being
performed, and issued an order alleging a violation of 30 C.F.R. § 56.18002(a) which, as
pertinent, requires that each shift the operator shall examine each working place “. . . for
conditions which may adversely affect safety or health. The operator shall promptly initiate
appropriate actions to correct such conditions.”

     Inasmuch as I previously found that these violative conditions did exist (I.(B.)(1.), II, III,

V, VI, infra), I conclude that Virginia did violate section 56.18002, supra. Further, since the
failure to conduct proper examinations resulted in not correcting violative conditions that were
found to be significant and substantial (I.(B.)(2.), II, infra), I find that the violation herein was
significant and substantial.

    According to Horn, Adamson III told him that “. . . examinations had not been conducted

in a while, and that they just let it slide” (Tr. Vol. III, 20-21). Inasmuch as Virginia did not
impeach, rebut, or contradict this testimony, I accept it and find that within this framework,
Virginia’s conduct amounted to an unwarrantable failure (see Emery, supra).

    Since the violation herein was significant and substantial, I find that the level gravity was

relatively high. Also, as discussed above, I find that the level of negligence was relatively high.
Taking into the account the remaining factors set forth in section 110(i) of the Act, supra, as
discussed above, I conclude that a penalty of $600.00 is appropriate.

    XII. Order No. 7711681

    Horn testified that because he had observed several safety defects on mobile equipment, in

his inspection on June 2, he concluded that if a preshift examination had been done properly, the
defects would not have existed. He issued an order alleging a violation 30 C.F.R. § 56.14100
which requires, in essence, the inspection of mobile equipment prior to its being placed in

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operation on a shift. As discussed above (VII, VIII, infra), the record establishes the existence of
the following safety defects on mobile equipment: inoperable horns and lack of seatbelts. Due to
the existence of safety violations on various mobile equipment, I conclude that it was more
probable than not that a proper preshift examination had not been performed. I thus find that
Virginia did violate section 56.14100, supra. Essentially for the reasons stated above (VII, VIII,
infra), inasmuch as the various safety defects were found to be significant and substantial, I
conclude that the violation herein of the failure to inspect, was also significant and substantial.

    The record does not contain sufficient facts to predicate a finding that Virginia’s conduct

rose to the level of aggravated conduct. Horn referred to the fact that Terry and Adamson III
were aware of the standard at issue, and had ignored the various defects cited. Since the
gravamen of the violation relates to the performance and thoroughness of the inspection, evidence
of the failure to correct violative conditions is not relevant regarding the issue of negligence
relating to a proper preshift examination. Within this context, I find that it has not been
established that Virginia’s actions constituted an unwarrantable failure.

   I find that the gravity of this violation was high, but that the level of negligence was no

more than moderate. Taking into the account the remaining factors set forth in section 110(i) of
the Act, I find that a penalty of $300.00 is appropriate.

   XIII. Order No. 7711683

    According to Horn, on June 4, 1998, a 1978 Ford welding truck was being operated on

the subject site by an employee of the mine. Horn indicated that the manually operated horn on
this truck was not operable. He issued an order alleging a violation of section 56.14132(a), supra.

    According to Adamson, the pickup truck was owned by Terry who used it to commute to

the work site. Adamson stated that the truck contained a tool box, torches, and gauges that
belonged to him (Terry). Adamson stated that the welder was usually transported with a fork lift,
and that the only time it was in Terry’s truck was when, on a couple of occasions, Terry
borrowed it. Adamson testified that the truck was not considered Virginia’s quarry equipment,
and was never intended to transport quarry equipment around the site, and that specifically it was
never intended for Terry to put the welder or company tools in the truck, or for him to use his
truck for other than personal transportation.

    However, Adamson indicated that he did not know which set of tools or gauges in the

truck were his or Terry’s. Also, Virginia did not impeach or rebut Horn’s testimony that on
June 4, the truck was being operated by an employee of Virginia. Nor did Virginia impeach or
contradict Horn’s testimony regarding the inoperable condition of horn. Accordingly, I find that
it has been established that Virginia did violate section 56.14132(a), supra.

   I find that Horn’s opinion reasonable that Terry, as foreman, should have known that his


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truck was being used on the site. However, although on June 2, Virginia had been cited for a
violation of the section 56.14132(a), supra, a different piece of equipment was cited. There is no
evidence as to how long a period the horn had been inoperable, and for how long a period
Virginia knew or should reasonable have known that it was inoperable. Within this context, I find
that it has not been established that Virginia’s action herein constituted aggravated conduct, and
thus the violation was not as a result of its unwarrantable failure.

     There is insufficient evidence in the record regarding the path of travel normally taken by

the truck, the traffic pattern in the area, any pedestrian traffic in the area, and the nature of the
roadway over which it travels. I thus find that it has not been established that the gravity of the
violation was more than low. For the reasons set forth above, I find that Virginia’s negligence
was no more than moderate. Considering the remaining factors set forth in section 110(i) of the
Act, I find that a penalty of $200.00 is appropriate.

   XIV. Order No. 7711684

     Horn testified that he asked the operator of the 1978 Ford truck to back up a slight

incline, and set the parking brake, but that the vehicle rolled. Virginia did not impeach or rebut
Horn’s testimony. I thus find that it has been established, as alleged by Horn, in the order that he
issued, that Virginia did violate section 56.14101(a)(2), supra, which, as pertinent, provides that
mobile equipment shall be provided with a service brake system “. . . capable of . . . . holding the
equipment with its typical load on the maximum grade it travels.”

    There is no evidence as to how long a period prior to June 4, the parking brake had been

defective. Within this context, and for the reasons stated above, infra, I find that it has not been
established that Virginia’s conduct herein amounted to an unwarrantable failure (see Emery,
supra).

    According to the uncontradicted and unimpeached testimony of Horn, as a consequence of

the violative condition, the truck could hit a person or roll over a cliff causing an injury resulting
in loss of work days or restricted duty. I find that the gravity of this violation was moderate. For
the reasons set forth above, I find that it has not been established that Virginia’s negligence was
more than moderate. Considering the remaining factors set forth in section 110(i) of the Act, I
find that a penalty of $200.00 is appropriate.

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                                        ORDER

    It is ORDERED that: (1) The following orders are to be reduced to section 104(a)

citations that are significant and substantial: 7711660, 7711661, 7711665, 7711668, and
7711681; (2) the following orders reduced to section 104(a) citations that are not significant and
substantial; 7711663, 7711666, 7711667, 7711683, and 7711684; and (3) Respondent shall pay a
total penalty of $4,400.00 within 30 days of the date of this Decision.

                                         Avram Weisberger
                                         Administrative Law Judge

Distribution:

M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203 (Certified Mail)

V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Crozet House, 100 East Main Street,
Richmond, VA 22219-2168 (Certified Mail)

nt

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