Knife River Construction v. Secretary of Labor

Plain-English summary

Knife River Construction operated an aggregate plant where an MSHA inspector saw a loaded scraper fail to stop on a steep grade and found two unattended vehicles parked on a slope without chocks or their wheels turned into a bank. Judge Richard W. Manning affirmed the imminent-danger withdrawal order because the inspector reasonably believed the defective scraper brakes could cause serious harm before the condition was corrected. He upheld the brake violation but removed its significant-and-substantial designation because the slow-moving scraper remained controllable and an injury was unlikely under continued normal operations. He also affirmed the parking citation, finding that vehicles are unattended when their operators leave the controls and cannot immediately operate them. Knife River was ordered to pay $1,100 in total penalties. The Commission later affirmed the imminent-danger order.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14101(a)(1), 56.14207
• Outcome: The imminent-danger order and parking citation were affirmed, the brake citation was modified to non-S&S, and total penalties of $1,100 were assessed.
• Subsequent review: The Commission affirmed the imminent-danger order in west-2013-827-rm-commission.
• Key point: A brake condition can support an imminent-danger order based on the inspector's reasonable on-site assessment even when the related citation is later found non-S&S on the full hearing record.

Full text (FMSHRC public release)

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MicrosoftInternetExplorer4

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

August 7, 2014

KNIFE RIVER CONSTRUCTION,

����������������������������� Contestant

�����������������
���������v.

SECRETARY OF LABOR

� �MINE SAFETY AND HEALTH

� �ADMINISTRATION (MSHA),

����������������������������� Respondent

SECRETARY OF LABOR

� �MINE SAFETY AND HEALTH� �

� �ADMINISTRATION (MSHA),

����������������������������� Petitioner

������������������������� �v.

KNIFE RIVER CONSTRUCTION,

����������������������������� Respondent

CONTEST PROCEEDINGS

Docket No. WEST 2013-0827-RM

Order No. 8699159; 05/01/2013

Docket No. WEST 2013-0828-RM

Citation No. 8699160; 05/01/2013

Docket No. WEST 2013-0829-RM

Citation No. 8699161; 05/01/2013

Knife River Vernalis
Plant

Mine Id. 04-05459

CIVIL PENALTY PROCEEDING

Docket No. WEST 2013-1009-M

A.C. No. 04-05459-327568

Knife River Vernalis
Plant

�����������

DECISION

Appearances:������������� �Courtney Przybylski,
Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for
Petitioner;

����� ������������������������������Nicholas Scala, Esq., Law Office of Adele L. Abrams PC, Beltsville,
Maryland, for Respondent.

Before:����������������������������������� Judge
Manning

����������� These cases are before me upon
notices of contest by Knife River Construction and a petition for assessment of
civil penalty filed by the Secretary of Labor, acting through the Mine Safety
and Health Administration (�MSHA�), against Knife River Construction, pursuant
to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. �� 815 and 820 (the �Mine Act�).� The
parties introduced testimony and documentary evidence at a hearing held in
Sacramento, California and filed post-hearing briefs.� One section 107(a) order and two section
104(a) citations were adjudicated at the hearing.� The mine is an aggregate operation in San
Joaquin County, California.

I.� DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

A.�
Order No. 8699159 and Citation No. 8699160

On May 1, 2013, MSHA Inspector Brian Chaix issued Order No. 8699159 under section 107(a) of the
Mine Act and Citation No. 8699160 under section 104(a).� Order No. 8699159 is an imminent danger order
and Citation No. 8699160 alleges a violation of section 56.14101(a)(1) of the Secretary�s safety standards.� (Exs.
G-1,3).� Both
the order and citation state that �scraper #1690402/LD9W95 did not stop on a
grade when tested.� The equipment was in
service at the time of inspection, handling both raw feed and waste.� The grade on which it was tested measured
approximately 12-14%�� Id.� The order also states that �[a] verbal
imminent danger order was issued to the site Foreman and regional Safety
Director at approximately 0935, requiring that the scraper be removed from
service until the brakes had been repaired and confirmed.�� (Ex. G-1).�

Citation No. 8699160 also states that
�[m]iners operating equipment which are not capable of stopping as required by the standard risk
grave injury.�� (Ex.
G-3).� With regard to the
citation, Inspector Chaix determined that an injury
was highly likely to occur and that such an injury could reasonably be expected
to be fatal.� Further, he determined that
the violation was Significant and Substantial (�S&S�), the operator�s
negligence was moderate, and that one person would be affected.� Section 56.14101(a)(1) of the Secretary�s
safety standards requires, in pertinent part �[s]elf-propelled mobile equipment
shall be equipped with a service brake system capable of stopping and holding
the equipment with its typical load on the maximum grade it travels.�� 30 C.F.R. � 56.14101(a)(1).� The Secretary proposed a penalty of $1,140.00
for this citation.

For the reasons set forth below, I
affirm Order No. 8699159 and modify Citation No. 8699160 to be non S&S.

Discussion and Analysis

• Order No. 8699159

����������� Inspector Chaix
issued an oral imminent danger order immediately upon witnessing a scraper with
defective brakes and then reduced that oral order into writing shortly
thereafter in Order No. 8561259.

Section 3(j) of the Mine Act defines
�imminent danger� as the �existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.��  30 U.S.C. � 802(j).� The Commission has held:

Imminent danger orders permit an
inspector to remove miners immediately from a dangerous situation, without
affording the operator the right of prior review, even where the mine operator
did not create the danger and where the danger does not violate the Act or the
Secretary�s regulations.� This is an
extraordinary power that is available only when the �seriousness of the
situation demands such immediate action.�

� Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991)
(quoting the legislative history of the Federal Coal Mine Health and Safety Act
of 1969, the predecessor to the 1977 Act).�

An imminent danger exists �when the
condition or practice observed could reasonably be expected to cause death or
serious physical harm to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is eliminated.�� Wyoming Fuel Co., 14 FMSHRC 1282, 1290
(Aug. 1992) (quoting Rochester & Pittsburgh Coal Co., 11 FMSHRC
2159, 2163 (Nov. 1989).� While the
concept of imminent danger is not limited to hazards that pose an immediate
danger, �an inspector must �find that the hazardous condition has a reasonable
potential to cause death or serious injury within a short period of time.� � Cumberland
Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006).� Inspectors must determine whether a hazard
presents an imminent danger without delay, and an imminent danger determination
must be supported �unless there is evidence that [the inspector] had abused his
discretion or authority.�� Rochester
& Pittsburgh Coal Co., 11 FMSHRC at 2164.

����������� While an inspector has considerable
discretion in determining whether an imminent danger exists, that discretion is
not without limits.� Under the
circumstances, an inspector must make a reasonable investigation of the facts
and must make his determination upon the basis of the facts known or reasonably
available to him.� As the Commission
explained in Island Creek Coal Co.:

While the crucial question in imminent
danger cases is whether the inspector abused his discretion or authority, the
judge is not required to accept an inspector�s subjective �perception� that an
imminent danger existed.� Rather, the
judge must evaluate whether, given the particular circumstances, it was
reasonable for the inspector to conclude that an imminent danger existed.� The Secretary still bears the burden of
proving his case by a preponderance of the evidence.� Although an inspector is granted wide
discretion because he must act quickly to remove miners from a situation that
he believes to be hazardous, the reasonableness of an inspector�s imminent
danger finding is subject to subsequent examination at the evidentiary hearing.

15
FMSHRC 339, 346-47 (Mar. 1993).� An
inspector �abuses his discretion...when he orders the immediate withdrawal of
miners under section 107(a) in circumstances where there is not an imminent
threat to miners.�� Utah, Power
& Light Co., 13 FMSHRC at 1622-23.

����������� I find that Inspector Chaix did not abuse his discretion when he issued Order No.
8699159; his belief that the defective brakes could lead to a serious injury of
the operator of the equipment or the inspection party was reasonable.� The inspector saw a large piece of equipment
carrying a heavy load upon a steep grade.�
The brakes of that equipment did not function properly and could not
stop the vehicle upon the grade.�  Although
the cited brakes were not completely incapacitated, defective brakes have
caused numerous injuries and fatalities in mines.� Defective brakes could reasonably cause a
serious injury to miners and therefore constitute an imminent threat to miners.� Considering the facts, Inspector Chaix�s decision to
issue an oral imminent danger order was reasonable.� Order No. 8699159 is AFFIRMED.[1]�

Discussion and
Analysis - Citation No. 8699160

Respondent does not contest the fact of
violation for Citation No. 8699160, but disputes the penalty as well as the
S&S,[2]
highly likely, and fatal designations.

����������� I find that the Secretary did not
fulfill his burden to establish that Citation No. 8699160 was S&S because
the Secretary failed to show that the violation was reasonably likely to
contribute to an injury.� Although the
brakes on the cited scraper were defective, they did not render the equipment
uncontrollable.� The brakes failed to
stop the equipment on the grade, but stopped the equipment quickly at the
bottom of the grade.� (Tr.
113).� At all times, the scraper
moved at a slow velocity, traveling only two to three miles per hour when
descending the grade.� (Tr.
155).� It was uncommon for the
scrapers to travel this grade at the mine and the scraper had not done so for
more than a month.� (Tr.
141).� I credit Kevin Farwell, the
operator of the scraper at the time, that he would
usually not use the brakes on the grade and would have stopped operating the
vehicle when he thought it posed a danger.�
(Tr. 161, 170).�
He testified that he would rely on the engine retarder to �hold the rig
back.�� (Tr. 161).� Furthermore, there was no equipment working
in the area and no pedestrian traffic.� The
inspection party was present, but at the top of the hill rather than downgrade
from the scraper.� The cited area was a
cut grade, which means it was surrounded by walls that contained the scraper.� (Tr. 77).�

The Secretary relies upon the size of
the equipment and steepness of the grade to support his S&S designation,
arguing that each contributed to the likelihood of an injury as a result of an overtravel hazard.� Both
the mass of the equipment and the grade it travels upon may contribute to the
likelihood of an injury by making the vehicle more difficult to stop.� Although the operator of the scraper could be
hurt in a sudden stop or collision with the wall, considering continued normal
mining operations, the speed of the scraper, and the condition of the brakes, I
find it was unlikely that the operator would be injured as a result of the
cited condition.� I credit the testimony
of Farwell that, at a speed of three miles per hour, the engine retarder would
keep the scraper under control.� I agree
with the Secretary that, as a general matter, operating heavy equipment on a
grade without functioning service brakes creates a potential S&S violation,
but under the facts here it was unlikely that Farwell would have lost control
of the equipment.� It was also unlikely
that, in the event of an emergency, the malfunctioning service brakes would
have contributed to an accident in which there was an injury.� The Secretary did not present evidence to
show that the cited condition was reasonably likely to contribute to a serious
injury under continued normal mining operations and therefore the violation was
not S&S.

����������� Although the cited condition was
unlikely to lead to an injury, if an injury occurred as a result of the
condition it was reasonably likely that injury would be serious.� As there were no miners working in the area,
the operator was the most likely person to be injured.� In the event of a rollover of the vehicle,
the operator could suffer permanently disabling injuries.� Due to the low speed of the vehicle, however,
a rollover was unlikely.� The most likely
injury would be a lost workdays restricted duty type
of injury.� The gravity of this violation
was serious.

����������� I find that the violation was the
result of Respondent�s moderate negligence.�
The service brakes failed to hold when Farwell operated the scraper upon
the grade, but performed well upon flat surfaces, which made it difficult for
the operator to know that the brakes were defective.� Farwell tested the brakes on the level route
he expected to travel at the start of his shift and the brakes functioned
properly.� (Tr. 150).� A berm blocked the area of the mine with the
grade at the beginning of the shift and the operator only entered the area
after production shut down and the berm was removed.� Farwell did not expect to operate the vehicle
on the grade the day of the inspection and had not traveled down the grade
before the inspector witnessed it.� That
trip was Farwell�s first opportunity to test the brakes on the grade.� (Tr. 151).� Farwell credibly testified that, under normal
circumstances, he would have tested the brakes on this first run down the grade
and, if the brakes failed to stop the scraper on the grade, he would have taken
the scraper out of service to have the brakes checked and repaired as needed.� (Tr. 163-65).� After the brakes failed to hold the scraper
on the grade in the presence of the inspector, however, Farwell should have
stopped the equipment to take it out of service rather than driving back around
the other side to return to the inspection party.�

I hereby AFFIRM Order No. 8699159
and MODIFY Citation No. 8699160.� With
regard to Citation No. 8699160, I find that the cited condition was unlikely to
contribute to an injury and therefore is non-S&S; a penalty of $900.00 is
appropriate for this violation.

B.�
Citation No. 8699161

On May 1, 2013, Inspector Chaix issued Citation No. 8699161 under section 104(a) of
the Mine Act, alleging a violation of section 56.14107 of the Secretary�s
safety standards.� (Ex.
G-10).� The citation states, in
part, that �[t]wo vehicles were observed unattended on
a grade on the mine haul road, while neither ribbed, banked, nor chocked.� Neither vehicle was carrying chocks, but a
bank was available.�� Id.� Inspector Chaix
determined that an injury was unlikely to occur, but that such an injury could
reasonably be expected to result in lost workdays or restricted duty.� He determined that the operator�s negligence
was moderate, and that one person would be affected.� Section 56.14207 of the Secretary�s safety
standards requires �[m]obile equipment shall not be
left unattended unless the controls are placed in the park position and the
parking brake, if provided, is set. When parked on a grade, the wheels or
tracks of mobile equipment shall be either chocked or turned into a bank.�� 30 C.F.R. � 56.14207.� The Secretary proposed a penalty of $100.00
for this citation.

For the reasons set forth below, I
affirm Citation No. 8699161.

Discussion and
Analysis

����������� I find that the cited conditions
violated section 56.14107 because the two vehicles cited were parked on a
grade, but the wheels were not chocked or turned into a bank.� Section 56.14207 can be broken down into four
requirements for parked mobile equipment: (1) an unattended vehicle (2) must be
placed in park (3) with the parking brake set and (4) tires must be choked or
turned into a bank if a vehicle is on a grade.�
The cited vehicles were unattended, parked with parking brakes set on a
grade, but the tires were neither choked nor turned into a bank.

I find that the vehicles were unattended
because no operator was in a position to immediately control the vehicles.� Although Respondent argues that the vehicles
were not unattended because the operators were not far from the vehicles,
Respondent�s witnesses agree with Inspector Chaix
that they exited their vehicles.� (Tr. 57-58, 121-22, 182).�
A miner outside of, but close to, a vehicle cannot operate the vehicle
and therefore cannot attended the vehicle under the standard.� Nevada
Cement Co., 18 FMSHRC 1653, 1655 (Sept. 1996)
(ALJ).�
A miner in proximity to an improperly parked vehicle,
furthermore, is exposed to an overtravel hazard if
the vehicle rolls.� A vehicle is unattended, regardless of the proximity of
miners to the vehicle, if the operator is not in a position to immediately
operate that vehicle.

Respondent argues that the
vehicles were not actually �parked� because the drivers were going to
immediately return to their vehicles.� Section
56.14207,
however, focuses upon unattended vehicles.� When the standard states �when parked on a
grade,� the word �parked� is not an additional requirement within the standard.� It references the fulfillment of the first
three requirements of the standard.� A
vehicle is parked if it is unattended.� If
a vehicle is unattended and placed in park with a parking brake set, the
vehicle is clearly �parked� under the safety standard and by any definition of
the word.� It is immaterial if the
vehicle is in an area that vehicles are not commonly parked; the point of the
standard is to create uniform procedures for operators to follow when exiting
and parking vehicles anywhere in the mine.

The
vehicles were placed in park with parking brakes set, and all the witnesses
agree that the cited vehicles were parked upon a grade or slope.� (Tr. 58, 131, 197).[3]� The
tires were not chocked or turned into a bank.�
The condition cited in Citation No. 8699161 violates section 56.14207.� The gravity of this violation was low.

I find that Respondent�s moderate to high
negligence caused the conditions cited in Citation No. 8699161.� Respondent�s witnesses, who parked the cited
vehicles improperly, contend that they did not park the vehicles properly
because the inspector insisted upon stopping immediately, the tires were turned
toward the bank, it was unusual to stop in the area, and that the SUV was new.� Both a foreman and the safety supervisor for
the region parked vehicles improperly.� Both
men were responsible for parking properly, regardless of whether the inspector
said to stop or they stopped independently.[4]� The
fact that both men failed to parked in compliance with
the standard and produced an array of excuses as to why they did not suggests
that employees working at the mine likely ignored proper parking procedures and
the two witnesses were simply doing what was routine for them.� Regardless of whether that is true, both
should have known to comply with section 56.14107(a) and did not do so.� A penalty of $200.00 is appropriate for this
violation.� I increased the penalty from
that proposed by the Secretary taking into consideration that the negligence
actions were committed by two management employees.

II.� APPROPRIATE CIVIL
PENALTIES

����������� Section 110(i)
of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty.� I have
considered the Assessed Violation History Report, which was submitted by the
Secretary.� (Ex. G-14).� The Secretary�s records show that Respondent
had only one violation in the previous 24 months and the violation was not
S&S.� Based on the penalty points
assigned by the Secretary in Exhibit A to the petition for penalty, Respondent
is a medium to small-sized operator.� Id.� The violations were abated in good faith.� The penalties assessed in this decision will
not have an adverse effect upon the ability of Knife River Construction to
continue in business.� The gravity and
negligence findings are set forth above.

III.� ORDER

����������� For the reasons set forth above, I AFFIRM
Order No. 8699159 and Citation No. 8699161 and MODIFY Citation No.
8699160.� Knife River Construction is ORDERED
TO PAY the Secretary of Labor the sum of $1,100.00 within 30 days of the
date of this decision.[5] The three
contest proceedings are hereby DISMISSED.

�����������������������������������

��������������������������������� ��������������������������������������/s/
Richard W. Manning���������������������������������������������

Richard W.
Manning�

�����������������������������������������������������������������������
Administrative Law Judge

Distribution:

�����������������������

Courtney
M. Przybylski, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202 (Certified
Mail)

Nicholas
Scala, Esq., Law Office of Adele L. Abrams PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705 (Certified Mail)

[1] I reject
Respondent�s argument that if a citation issued in conjunction with an 107(a)
order that addresses the same condition as the 107(a) order is not S&S then
the 107(a) order must be vacated.� A
judge considers all evidence that the parties present de novo when reviewing an
S&S designation.� When reviewing a
107(a) imminent danger order, the judge reviews the order to determine if the
inspector, who must make a quick decision at the time of issuance, �abuses his discretion[.]�� Utah,
Power & Light Co., 13 FMSHRC at 1622-23.� The difference between the review processes,
although the underlying events are the same, means that a 107(a) order can be
upheld without an underlying S&S violation.�
The Commission, furthermore, has held that the condition underlying an
imminent danger order does not necessarily have to violate the Act, which
suggests that no S&S violation is required to uphold a 107(a) order.� Id.

[2] An S&S violation is a violation �of such nature as
could significantly and substantially contribute to the cause and effect of a .
. . mine safety or health hazard.� 30 U.S.C. � 814(d) (2006).
In order to establish the S&S nature of a violation, the Secretary 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 will
be of a reasonably serious nature.� Mathies Coal
Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc.,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99,
103 (5th Cir. 1988) (approving Mathies criteria).� The Commission has held that �[t]he test under the third element is whether there is a
reasonable likelihood that the hazard contributed to by the violation�will
cause injury.�� Musser Eng�g, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010).

[3] Respondent
argues that the cited vehicles passed a roll test and therefore did not violate
the standard.� Kevin Smudrick,
the Northern California Safety manager and operator of one of the vehicles,
performed the roll test, however, after moving the vehicle, which did not show
that the location where the vehicles were cited did not have a grade.� All three witnesses agree that the vehicles
were originally parked on a grade.

[4] I find no merit
in Respondent�s argument that the inspector �set up� Respondent when he asked
to stop.� Even if this contention is
true, furthermore, it is not grounds to vacate a citation.� MSHA inspectors must cite any violations they
find.� 30 U.S.C. �
814(a). The inspector did not cause this violation by asking to stop;
the operators had the opportunity to properly park the vehicles before exiting.

[5] Payment should
be sent to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.