Secretary of Labor v. Staker & Parson Companies

Plain-English summary

Staker & Parson Companies operated a sand and gravel pit where a haul truck traveled through a berm, down an 80-foot embankment, and into a partially flooded pit, killing the driver. MSHA cited the company for failing to maintain control of the truck and for the driver's alleged failure to wear a seat belt. The Judge upheld the loss-of-control violation as significant and substantial because the truck was not kept within the designated dumping area or operated at a speed suited to conditions. He reduced its negligence from moderate to low because the driver was properly trained, the truck did not contribute to the accident, and the company had sound safety policies, although management did not adequately investigate an earlier berm contact. The Judge vacated the seat-belt citation because the evidence did not establish when the driver unlatched the belt. He assessed a total penalty of $1,000.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9101 and 56.14131(a)
• Outcome: The seat-belt citation was vacated, the loss-of-control citation was modified to low negligence, and a $1,000 penalty was assessed.
• Key point: The Secretary must prove when an alleged seat-belt violation occurred, while loss of vehicle control can be established without proving why the operator lost control.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

Office of
Administrative Law Judges

721 19 th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577        

February 1, 2018

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

STAKER
& PARSON COMPANIES,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEST 2017-134-M

A.C.
No. 42-00410-423470

Beck
Street South

DECISION

Appearances:               Timothy
S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for Petitioner;

M. Craig Hall, Esq.,
and F. Xavier Balderas, Esq., Oldcastle Law Group, Atlanta, Georgia for
Respondent.

Before:                                    Judge
Manning

This case is
before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Staker & Parson Companies (“Staker”) 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 presented testimony and documentary
evidence at a hearing held in Salt Lake City, Utah, and filed post-hearing
briefs. Two section 104(a) citations were adjudicated at the hearing. Staker operated
the Beck Street South mine, a sand and gravel pit in Salt Lake County, Utah.

The two
citations at issue stem from a fatal accident on March 8, 2016 in which a haul
truck driver was killed when his truck traveled through a berm, down an
embankment and into a partially flooded pit. For reasons set forth below, I VACATE
Citation No. 8942613 and MODIFY Citation No. 8942614 to low negligence. Although
I have not included a detailed summary of all evidence or each argument raised,
I have fully considered all the evidence and arguments.  

I.  DISCUSSION
WITH FINDINGS OF FACT

AND CONCLUSIONS
OF LAW

The Beck Street South Mine is a single
bench sand and gravel operation. Tr. 25. At the time of the fatal accident mine
personnel were removing waste material from one area, loading the material into
haul trucks, transporting the material to a dump site, and dumping the material
into a pit. Tr. 25, 179. The designated dump site was at the top of an 80 foot
embankment between two large piles of material. Tr. 28, 47; PX-15 p. 7. A berm was
maintained along the top edge of the embankment. Tr. 29. The purpose of the
berm was to indicate the edge of the highwall and prevent a truck from backing
close to the dropoff. Tr. 94, 122.  The berm was 44 inches tall and 14 feet
wide at its base. Tr. 29, 34-35. The dumping process involved the haul truck
operator driving the truck into the dump site area with the berm at the top of
the embankment on his left side, making a right turn such that the right-hand
side pile of the two large piles of material could be seen in the haul truck’s left
side mirror, backing the truck into the area between the two large piles of
material, and then dumping the truck’s load between the two piles just short of
the berm. [1]
Tr. 27-31, 34-35, 181. The two piles of material (the “guide piles”) directed
the truck drivers to the correct dumping location but the berm also continued to
the right well beyond the second guide pile. After dumping his load, the
operator would lower his truck’s bed and return for another load. Tr. 31-32.

On March 8, 2016, a fatal accident
occurred when a haul truck driven by 54 year old Blaine Linck traveled through
a berm, down the 80 foot tall embankment, and into 14 feet of water at the
bottom of the pit. Tr. 20-21, 24-25.  Linck drowned as a result of the
accident. [2]
Tr. 54. Jory Argyle [3] ,
the mine’s safety manager at the time of the accident, timely reported the
accident to MSHA. Tr. 22.

MSHA Inspector Joe Summers [4]
was assigned to lead the investigation of the fatality. Tr. 20-21, 24. As the
lead investigator he coordinated with two other MSHA employees, Ron Medina [5] ,
from MSHA’s Technical Services, and Kent Norton, from MSHA’s Educational, Field
and Small Mine Services. Tr. 25

Inspector Summers traveled to the mine on
March 9, the day after the accident, and met with a group of management officials
from Staker. Tr. 40. Over the following weeks the investigation team took
photographs and measurements, gathered documents, tested a similar truck, and
interviewed employees of the mine. Tr. 41-43, 121.

During interviews, Inspector Summers
learned that Linck began his shift at 4:00 PM and mine personnel noticed that
the truck went missing at approximately 10:56 PM. Tr. 125. When the truck went missing,
Neilo Taylor, the mine foreman, instructed mine personnel to cease operations
and locate the truck. Tr. 56, 126. Clint Leek, the loader operator, went to the
edge of the dump site, looked over, saw headlights from the truck in the pond
below, and called in the accident over the radio. Tr. 56. Taylor, in response,
went to the pit and swam to the truck where he found Linck deceased in the
operator station face down in the water. Tr. 57, 108. The operable seatbelt for
Linck was not secured. Tr. 108.

Inspector Summers testified that, during
his time with MSHA, he has never heard of a situation where a seatbelt unlatches
as a result of an accident. Tr. 109-110. Inspector Summers stated that Linck
could have taken his seatbelt off at any time the evening of the accident and
Staker would not have known. Tr. 110.

Inspector Summers testified that, based
on records obtained and reviewed by Norton, [6]
Staker’s task training, training plan, and examinations relevant to the subject
truck were all in order. [7]
Tr. 54, 81. Further, the MSHA investigative team performed tests on the haul
truck and determined that no defects were found with the braking system, backup
camera, throttle, pressure in the steering system, or the safety system
designed to prevent the truck from backing up while the bed was raised. [8]
Tr. 79-81. In addition, the seatbelt in the truck, when tested multiple times,
functioned as designed and was properly certified. Tr. 81-82, 110. MSHA
determined that the condition of the truck was not a contributing factor to the
accident. [9]
Tr. 83, 156-158.

Based on his observations and other
evidence collected, Inspector Summers determined that Linck drove beyond the
two guide piles rather than backing up between the piles where he was required
to dump the rock. The inspector believes that Linck’s truck, while in reverse, overtraveled
the 44 inch high berm to the right side of the pile marking the right edge of
the dump site, tumbled down the 80 foot embankment, [10]
landed right side up facing the opposite direction in 14 feet of water, causing
Linck to drown. Tr. 28-29, 44-45, 58-59; PX-15 p. 1, 3, 5; PX-16 p. 2. [11]
Inspector Summers agreed that, while it was dark out at the time of the
accident, the lack of lighting in the area was not a contributing factor to the
accident. Tr. 115-117. Inspector Summers observed tracks and rubber from the
tires on the rocks in the area where the truck traveled through the berm. Tr. 59,
62; PX-15 p. 2. Based on this evidence, he theorized that Linck had pulled up
to the berm, felt resistance, pressed the accelerator, which spun the tires and
left rubber behind, powered through the berm, and traveled down the embankment
into the pond 80 feet below. [12]
Tr. 59-62, 152-153, 156. He explained that, while berms can retard the progress
of a haul truck, they are designed to warn the driver and cannot stop a truck
from going through them. Tr. 94, 122-124. Damage to the operator’s station, front
of the vehicle, rock guard above the cab, mirrors, walkways, handrails and
access ladder on the truck indicated to Inspector Summers that the truck
suffered a significant impact. Tr. 48-50, 142, 149; PX- 16 p. 4. The cab itself
was beaten up, but intact. Tr. 110.

While the cause of death was ultimately
determined by the coroner to be drowning, Linck also suffered lacerations,
abrasions and contusions to his body. Tr. 102-103; PX-13. Inspector Summers agreed
that that these types of injuries are what one would expect a haul truck driver
to suffer in an accident of this type. Tr. 102-103. The coroner’s report indicated
that pharmaceuticals, including antidepressants were found in Linck’s system. Tr.
104, PX-13.

At the time of the accident Linck had
been operating haul trucks at the mine for approximately four months. Tr. 55,
154, 175, 182. Inspector Summers confirmed that Linck’s training, including his
task training for operating the truck, was up to date and no deficiencies were
noted. Tr. 55-56. Moreover, he agreed that Linck was properly trained by Staker
to wear a seatbelt and taking the belt off at any time would have been contrary
to his training. Tr. 111. Inspector Summers also learned that Linck had
recently been diagnosed with type 2 diabetes and was going through a divorce. Tr.

160. However, these factors did not influence Summers’ conclusions. Tr. 160.

During interviews, Inspector Summers
learned that, approximately an hour prior to the fatal accident, Linck had been
involved in an incident when the haul truck he was driving struck a berm on the
haul road while on his way to the dump site. Tr. 85, 87-89, 100, 104-105. Although
mine personnel asked Linck if he and the truck were okay, to which Linck
responded “yes,” nothing else was done. Tr. 86. 105. Matt Wilson, [13]
the mine’s foreman, who was not on site when the berm brush incident occurred,
confirmed that mine personnel made contact with Linck after the incident and
that Taylor felt that it was okay to allow Linck to continue working. Tr. 185.

Wilson testified that, with regard to
the chain of command, Linck reported to Neilo Taylor who in turn reported to
Wilson. Tr. 175. He averred that Linck was a model employee who had worked at
the mine for four months, dumping in the same area, without any issues. Tr. 175,
183, 187-188. His driving skills were carefully monitored during his first
month of driving to make sure he could safely perform the job. Argyle admitted
that Linck was no longer permitted to drive a vehicle on public highways on
behalf of Staker because his driver’s license had been revoked the day prior to
the accident. [14]
Tr. 215-216. At some point after the fatal accident Wilson learned from Linck’s
family that Linck suffered from diabetes and was going through a nasty divorce.
Tr. 192. Prior to that Staker had no knowledge of any health concerns with
Linck. Tr. 191. Wilson explained that he was involved in the accident
investigation and believed that the accident may have been an intentional act because
Linck was a well-trained and competent truck operator, Linck’s son told Wilson
that he thought his father did it on purpose, and Linck was on medication with
potential side effects such as blurred vision, mood and mental changes, and
suicidal thoughts. Tr. 186-187, 192-193, 210; RX-25 and 26. Moreover, Wilson
believed that it would have taken a serious and intentional effort on Linck’s
part to get through or over the berm. Staker built a berm of the same size on
level ground to see how difficult it would be to travel over the berm. [15]
Tr. 193-194. He agreed that the rubber and ruts on the ground near the berm indicate
that the truck’s accelerator had been pressed all the way down. Tr. 191.

Wilson explained that the mine conducts
daily inspections and safety meetings. Tr. 183-184. Argyle testified that Staker
maintains an employee driven safety culture, as evidenced by completed initial
and refresher training, risk assessment tools utilized by the employees and weekly
“toolbox talks” to discuss different safety processes and ensure that the
employees are “constantly staying on top of any outcoming processes or
procedures.” Tr. 201-202.

Wilson explained that Staker’s seatbelt
policy requires operators to wear seatbelts, [16]
equipment operators are trained on the policy, and employees are not allowed to
operate equipment until they have shown they can do so correctly. Tr. 177. Argyle
testified that, although the policy had been violated in the past, no citations
had ever been issued and appropriate disciplinary action had been taken. Tr. 199,
211-212. According to Wilson, Linck always wore his seatbelt, was a safe
driver, was properly trained on the equipment, as evidenced by the certificate
of training, [17]
and never had any disciplinary problems at the mine. Tr. 177-180; RX-20.

Citation
No. 8942614

Citation No. 8942614, issued under
section 104(a) of the Mine Act on April 26, 2016, alleges a violation of
Section 56.9101 of the Secretary’s safety standards and asserts that the haul
truck driver failed to maintain control of the haul truck when the vehicle
traveled through a berm and off a dump site into a partially flooded pit. The
citation further alleges that there were no signs of evasive or corrective actions
taken by the driver to maintain control of the truck. Section 56.9101 requires
that “[o]perators of self-propelled mobile equipment shall maintain control of
the equipment while it is in motion. Operating speeds shall be consistent with
conditions of roadways, tracks, grades, clearance, visibility, and traffic, and
the type of equipment used.” 30 C.F.R. § 56.9101.

Inspector Summers determined that a fatal
injury had occurred, the condition was S&S, affected one person, and was
the result of Respondent’s moderate negligence. The Secretary proposed a
penalty of $3,876.00 for this alleged violation,

Inspector Summers testified that he
determined the standard had been violated because Linck deviated from normal
procedures, he was not aware of the surroundings and he backed up into an area
outside of the designated dump site and powered through the berm. Tr. 90. As a
result, he did not have full control of the truck. Tr. 89-90. He explained
that, in order to be in control of the truck the operator must be trained and
know the operating conditions (i.e., the load, the surroundings, what equipment
and personnel are in the area, and where and how you are going to dump). Tr.
91-92. Because Linck did not have control while the truck powered through the
berm, which required a significant amount of force, Inspector Summers
determined there was a violation of the standard. Tr. 92-94. Moreover, he
explained that because it required a significant amount of force to get through
the berm, he did not believe the operating speed that Linck’s truck was
traveling was consistent with the condition of the roadway and grade. Tr.
94-95.

Inspector Summers testified that it does
not matter why Linck failed to maintain control and stated that even if Linck
had been mistaken about his location, was suffering from a medical condition
that caused him to lose control, was on medications that affected his knowledge
of the surroundings, or accidentally stepped on the accelerator instead of the
brake, he nevertheless failed to maintain control, thereby violating the
standard. Tr. 98-100, 155-156. Moreover, he noted that while he could not be
sure if Linck intentionally tried to power over the berm, intent is not a
factor to consider when determining whether there was a violation.  Tr. 153-154,
61.

I find that the Secretary has proven a
violation of the cited standard. The cited standard requires that equipment
operators maintain control of the equipment. Respondent argues that in order
“[f]or the Secretary to meet its evidentiary burden it must prove by a
preponderance of the evidence that Linck’s failure to maintain control of the
Vehicle was the only plausible cause of the Accident.” Staker Br. 16. I
disagree. I must determine whether Staker violated the safety standard not whether
the violation caused the accident. Given the strict liability nature of the
Mine Act, whether Linck purposefully powered through the berm or accidently did
so is not dispositive. The Commission, in Daanen v. Janssen, Inc. , 20
FMSHRC 189, 196 (Mar. 1998) confirmed that the “reasons for a loss of control
are irrelevant to consideration of whether control over moving equipment was
maintained.” Rather, in order to sustain a violation the Secretary need only
prove that Linck lost control of the truck at some point. Even if I were to
assume that Linck intentionally drove through the berm, thereby “controlling”
the vehicle as it powered through the material, there can be no question that
he was not in control of the vehicle as it tumbled down the embankment. Moreover,
it is clear that, in powering through the berm outside of the designated
dumping area Linck was not following the mine’s proscribed dumping and truck
handling procedures, which call for the truck operator to dump between the two
large guide piles and not make contact with a berm. Accordingly, I find that
Linck did not maintain control of the truck.

Notwithstanding the above analysis, I
would also find a violation under the second part of the cited standard, which
requires that the truck be operated at a speed consistent with conditions of
the area. In order for the truck to have powered through the berm it had to
have been traveling at a very high rate of speed. Wilson agreed that the rubber
and ruts on the ground near the berm that the truck went through were evidence
that the truck’s accelerator had been pressed all the way down. Tr. 191. Moreover,
the low speed testing conducted by Staker with MSHA present as well as the subsequent
higher speed testing make clear that the truck must have been traveling at an
exceptionally high rate of speed in order to break through or travel over the
berm. Because the truck was clearly operating at a speed in excess of that
which was appropriate, I find that a violation has also been proven under the
second part of the standard.

Gravity and S&S

A 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). 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). An experienced MSHA
inspector’s opinion that a violation is S&S is entitled to substantial
weight. Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1278-79 (Dec. 1998).

The Commission
has explained that the focus of the Mathies analysis “centers on the
interplay between the second and third steps.” ICG Illinois , 38 FMSHRC
2473, 2475 (Oct. 2016) (citing Newtown Energy Inc. , 38 FMSHRC 2033 (Aug.
2016)). The second step requires the judge to adequately define the “particular
hazard to which the violation allegedly contributes[,]” and then determine
whether “there exists a reasonable likelihood of the occurrence of the hazard
against which the mandatory safety standard is directed.” Id . at
2475-2476. This determination must be made “based on the particular facts
surrounding the violation[.]” Id . The third step then requires the judge
to assume the existence of a hazard and assess whether the hazard “was
reasonably likely to result in serious injury.” Newtown at 2038; ICG
Illinois at 2476.

The “reasonably
likely” provision does not require the Secretary to prove that an injury was
“more probable than not.” U.S. Steel Mining Co. , 18 FMSHRC 862, 865
(June 1996). In addition, the “Secretary need not prove a reasonable likelihood
that the violation itself will cause injury” but, rather, that the hazard contributed
to by the violation is reasonably likely to cause an injury. Musser
Engineering, Inc. and PBS Coals Inc. , 32 FMSHRC 1257, 1280-81 (Oct. 2010) (emphasis
added); Cumberland Coal Res. , 33 FMSHRC 2357, 2365 (Oct. 2011).

Inspector Summers designated the citation
as S&S because the failure to maintain control of the truck could cause a
crash that would result in serious and potentially fatal injuries such as,
bruising, contusions, broken bones, and internal injuries to both the driver
and others in the area. Tr. 100-101. He noted that the medical examiner’s
report, while indicating drowning as the cause of death, also referenced
lacerations, abrasions and contusions on Linck’s body. Tr. 102-103. Inspector
Summers characterized the injuries as blunt force type injuries that would be
expected on a haul truck driver when they have an accident. Tr. 104.

I find that the violation was S&S. I
have already found that a violation existed. Here, the hazard to which the
violation allegedly contributes is a crash or other accident that results from
failure to maintain control of the truck. Assuming that control of the truck is
lost, as it was here, a multi-ton vehicle tumbling out of control down an 80
foot embankment into a 14 foot deep pond is reasonably likely to result in very
serious injuries. Consequently, I find that the violation was S&S and the
gravity was high.

Negligence

Inspector Summers designated the
citation as being the result of Staker’s moderate negligence. Tr. 106. He noted
that while Linck was properly trained and knew how to operate the truck, Staker
management did not take action to ascertain whether Linck was physically and mentally
capable of operating the truck, or on any medication that might impair his
driving, after he brushed against the berm earlier in the shift. Tr. 105-106,

161. On cross-examination Summers agreed that Staker did everything right with
     regard to training, equipment maintenance, and testing. Tr. 127-129. Moreover,
     Inspector Summers agreed that Staker prohibited trucks from coming into contact
     with a berm. Tr. 154-155.

Negligence is not defined in the Mine
Act. The Commission determines negligence under a traditional analysis rather
than relying on the Secretary's regulations at 30 C.F.R. § 100.3(d). Mach
Mining, LLC v. Sec'y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 2016)
(quoting Brody Mining, 37 FMSHRC 1687, 1702 (Aug. 2015)). Each mandatory
standard carries a requisite duty of care. Id. In making a negligence
determination, the Commission takes into account the relevant facts, the
protective purpose of the regulation, and what actions would be taken by a
reasonably prudent person familiar with the mining industry. Id. In
evaluating these factors, the negligence determination is based on the
"totality of the circumstances holistically" and may include other
mitigating circumstances unique to the violation. Id. (quoting Brody
Mining, 37 FMSHRC at 1703).

I find that Respondent exhibited only
very low negligence. Inspector Summers agreed that Linck was properly trained,
the condition of the truck was not a contributing factor, and Staker’s training
and safety policies were good. However, I find that Staker management’s failure
to conduct even a cursory investigation of the berm brushing incident prior to
the fatal accident nevertheless warrants a finding of at least some negligence.
Rather than conduct a brief investigation, Staker personnel instead only asked
Linck if he and the truck were okay. Although the berm brush event was rather
inconsequential, at the very least it put Staker on notice that Linck had
failed to comply with one of Staker’s own internal safety policies to never
come in contact with a berm and also on notice that Linck might not have been
in condition to drive that night. Citation No. 8942614 is MODIFIED to
low negligence.  I find that a penalty of $1,000 is appropriate.  

Citation
No. 8942613

Citation No. 8942613, issued under
section 104(a) of the Mine Act on April 26, 2016, alleges a violation of
Section 56.14131(a) of the Secretary’s safety standards and asserts that the
haul truck driver was not wearing a seatbelt at the time of the accident. Section
56.14131(a) requires that “[s]eat belts shall be provided and worn in haulage
trucks.” 30 C.F.R. § 56.14131(a).

Inspector Summers determined that a
fatal injury had occurred, the condition affected one person and was S&S,
and was the result of Respondent’s moderate negligence. The Secretary proposed
a penalty of $3,876.00 for this alleged violation.

Inspector Summers testified that the
standard was violated because Linck was found without his seatbelt on, floating
face down in the water. Tr. 108. He explained that the standard requires that
belts be worn at all times when in haulage trucks. Tr. 110. On
cross-examination he agreed that it would have gone against Linck’s training
for him to have not worn his seatbelt. Tr. 164.

In order for the Secretary to establish
a violation of the cited standard he must prove by a preponderance of the
evidence that Linck was not wearing his seatbelt while operating the haul
truck. Respondent asserts, and I agree, that the Secretary has failed to
establish that the Linck was not wearing his seatbelt while operating the haul
truck. While there is no dispute that when Staker personnel found Linck’s body
he was not wearing a seatbelt, there were no witnesses to the accident, and the
evidence before me is far from conclusive as to when Linck detached his
seatbelt. The Secretary asks the court to infer, based on indirect evidence,
that Linck was not wearing his seatbelt while operating the truck. I decline to
do so for two reasons.

First, I credit Wilson and Argyle’s
testimony that Linck was well trained in the use of his seatbelt, Staker
enforced its seatbelt policy, and Linck had never been seen operating a vehicle
without wearing a seatbelt. Moreover, Inspector Summers agreed that Linck was
properly trained by Staker to wear a seatbelt and taking the belt off at any
time would have been contrary to his training.

Second, the physical evidence suggests
that Linck may have in fact been wearing his seatbelt while the truck fell down
the embankment. Inspector Summers testified that, although Linck was found face
down with his head in the water towards the passenger side, he was nevertheless
still in the operator station of the truck. Had Linck not been wearing his
seatbelt, I find it less than likely that he would have been in the position in
which he was found, especially given that windows of the operator station had
broken out, and the truck had clearly been violently tossed about and likely
rolled, as it tumbled down the embankment. Moreover, I agree with Respondent
that the medical conclusions documented in the autopsy report do not seem to
support the Secretary’s theory that Linck was unbuckled during the accident
sequence. Staker Br. 13-14. The report documents lacerations to the head and
superficial blunt force injuries to the torso and extremities. Notably, no
broken bones or internal injuries were found. [18]
Had Linck been unbuckled during such a violent tumble down the embankment, it
is likely he would have sustained greater injuries. Given the above analysis, I
find that it is just as likely that Linck unlatched the seatbelt when the truck
came to rest at the bottom of the pit or just prior to that time. Consequently,
I find that the Secretary has failed to meet his burden of proof. Citation No.
8942613 is VACATED .

II.  APPROPRIATE
CIVIL PENALTY

Section 110(i)
of the Mine Act sets forth the criteria to be considered in determining an
appropriate civil penalty. 30 U.S.C. § 820(i). According to MSHA’s website Staker
worked approximately 40,000 hours during 2015 and during 2016, which correlates
with a small to medium size operator. 30 C.F.R. § 100.3 Table III; Exhibit A to
Penalty Petition. Exhibit A to the penalty petition indicates that Staker’s
controller worked over 7,000,000 hours, which correlates with a large
controller. 30 C.F.R. § 100.3 Table IV. Respondent has not argued that the
penalty will affect its ability to remain in business. Respondent’s violation
history indicates four 104(a) citations, only one of which was designated as
S&S, in the 15 months preceding the issuance of Citation No. 8942614. The
gravity and negligence are discussed above. Citation No. 8942614 was timely
abated. Based on the penalty criteria I assess a total penalty of $1,000.

III.  ORDER

For reasons set
forth above, Citation No. 8942613 is VACATED and Citation No. 8942614 is
MODIFIED to low negligence. Staker & Parson Companies is ORDERED
TO PAY the Secretary of Labor the sum of $1,000 within 40 days of the date
of this decision. [19]

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Timothy
S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor, 1244
Speer Blvd., Denver, CO 80204

M.
Craig Hall, Esq. and F. Xavier Balderas, Esq, Oldcastle Law Group, 900 Ashwood
Parkway, Suite 700, Atlanta, GA 30338

[1]
The haul truck operators dumped their loads away from the edge and berm. Tr. 32,

181. Staker had a policy that the trucks were not to hit or disturb the berms
     at any time. Tr. 194. Once the dumpsite between the two piles became full, a
     front loader would do a cleanup of the area by pushing the dumped loads over
     the embankment before ensuring that there was a new berm at the edge. Tr.
     32-33.

[2]
The autopsy confirmed drowning as the cause of death. Tr. 58-59.

[3]
Argyle has been with Staker for twelve and a half years and has experience in
the mining and road construction industries. Tr. 199. As the mine safety and
health manager he was responsible for oversight of training over a broader area
than just this mine and provided service to the mine on an as needed basis. Tr.
200, 212.

[4]
Inspector Summers has been with MSHA for 12 years and conducted upwards of 400
metal/non-metal inspections. Tr. 17-18. He is a certified accident investigator
and is trained to reconstruct the scene of an accident. Tr. 18, 119. However,
he is not trained on how to analyze and draw conclusions based on disturbances
of the earth to reconstruct accidents. Tr. 170. Prior to his time with MSHA, he
worked at various mines operating equipment, including haul trucks similar in
size and power to the one driven by Linck. Tr. 18-19.

[5]
Medina is a member of MSHA’s technical support department and specializes in
equipment and components found on vehicles. He is not a MSHA inspector. Summers
testified that MSHA ultimately determined that the truck did not contain any
defects that contributed to the accident. Medina did not testify at hearing,
but did provide deposition testimony during discovery. While Medina offered
deposition testimony with regard to other topics beyond the issue of whether
the truck was a contributing factor, I decline to take that testimony into
consideration given the court’s inability to weigh his credibility.

[6]
At hearing Respondent alleged that the Secretary had failed to produce Kent
Norton for deposition and moved the court to infer that Norton’s testimony
would have been adverse to the Secretary. However, as the Secretary noted,
Norton retired during this litigation and was no longer employed by MSHA. Although
previous counsel for the Secretary indicated that he would attempt to produce
Norton for deposition, current counsel for the Secretary informed counsel for
the Respondent that he would not do so and Respondent made no attempt to obtain
a subpoena for Norton’s deposition testimony. Accordingly, I decline to apply
the severe sanction of an adverse inference. Respondent’s motion is DENIED .

[7]
Summers testified that, while records indicate that proper pre and
post-operational checks of the truck were done before Linck operated it, the
pre-operational check documentation filled out by Linck was destroyed by water.
Tr. 81.

[8]
Testing of the actual steering was impossible due to damage to the front left
of the truck. Tr. 80.

[9]
Although the truck was equipped with a proximity detector to provide
information regarding materials behind the truck, it could not be tested
because it had been submerged in water as a result of the accident. Tr.
147-148.

[10]
Summers provided detailed testimony as to why he believed the truck traveled
backward through the berm and how it traveled down the embankment. Tr. 64-79,
130-144; PX-15 p. 12-14. However, he conceded there was no way to know if the
truck was going forwards or backwards when it went through the berm. Tr. 130,

171. Matt Wilson, a Staker witness, also believed that the truck was traveling
     in reverse when it went over the berm. Tr. 193-194. Although it is possible
     Summers correctly discerned the exact sequence of events as to how the truck
     tumbled down the embankment, I decline to credit that testimony given his lack
     of expertise on the topic. Nevertheless, I find that the photographs of the
     indentations in the embankment and the fact that the truck landed facing the
     opposite direction, establish that the truck was violently tossed around as it
     travelled down the embankment and likely rolled.

[11]
Summers testified about and marked an aerial photo of the subject area. PX-12
p. 2. The photo was taken by Staker personnel using a drone. Tr. 36. At
hearing, Summers used pink marker to show the road that the trucks travel into
the dump site area, blue marker to show the designated dump site, green marker
to show where Linck went through the berm outside of the designated dumpsite
and down the embankment, and yellow marker to indicate where the truck
ultimately came to rest at the bottom of the embankment in the pond. Tr. 35-39.

[12]
On cross-examination Summers conceded that he was not capable of calculating
the speed that the truck was traveling at the time, nor is he trained to
conduct an analysis of what kind of force was required to damage the front of
the truck and the attached ladders. Tr. 120-121.

[13]
Wilson started working at Staker in 1999. Tr. 173. He has worked as a laborer,
road crew foreman, and was a quarry foreman at the time of the accident. Tr.
173-174.

[14]
Argyle testified that Linck’s loss of his license had no bearing on his ability
to lawfully operate a haul truck on the mine property. Tr. 217. Had Staker been
aware of the moving violations that resulted in the revocation of Linck’s
license, it would have taken it into account. Tr. 214. However, he explained
that the operation of a haul truck is vastly different from a personal vehicle
and haul truck operators are subject to driving tests, evaluations, and
continuous monitoring by peers. Tr. 214-215.

[15]
Wilson testified that Staker conducted two tests in which an operator drove an
identical truck into a simulated berm. Tr. 188. The berm was constructed to the
same measurements as the berm Linck’s truck went through. Tr.189. During the
first test, for which MSHA personnel were present, the truck stopped when it
ran into the berm at the required low speed. Tr. 189-190, 195. Summers confirmed
that the test revealed a berm would be minimally disturbed if it were struck by
a truck. Tr. 59.  During the second test, when MSHA was not present, the truck
was unable to breach the berm in reverse even while traveling at a higher
speed. Tr. 190.

[16]
The haul trucks are equipped with orange seatbelt straps so it is easy to see
from outside of the cab whether an operator is wearing it. Tr. 177-178, 203.

[17]
Wilson said that 40 hours of training was provided, after which equipment
operators must sit down with Wilson and go over safety procedures until Wilson
feels that they are safe to run the equipment, at which point the operator
signs the certificate of training and keeps a copy in their wallet. Tr. 180

[18]
Summers testified that broken bones and internal injuries would be expected in
an accident like this. The autopsy report concludes that these types of
injuries were not present. This evidence supports a conclusion that Linck was
likely wearing his seatbelt as his truck tumbled down the.

[19]
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.