FMC Corporation (ALJ decision, March 10, 1982)

Plain-English summary

MSHA cited FMC Corporation after a lube truck at its underground trona mine moved and struck a miner during servicing. Judge James A. Broderick found the truck's brakes inadequate because its braking system could fail when the lubrication pumps depleted air pressure. He also found that the truck had been parked on a grade without blocks or being turned into a rib. He denied FMC's contests, affirmed both citations, and assessed $500 for the brake violation and $300 for the parking violation, totaling $800.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 57.9-3 and 57.9-37.
• Outcome: Citations 576956 and 576970 affirmed; $800 total penalty assessed.
• Key point: A brake system vulnerable to pressure loss was inadequate, and the parked truck lacked the required restraint.

Full text (FMSHRC public release)

CCASE:
FMC V. SOL (MSHA)
DDATE:
19820310
TTEXT:
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Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

FMC CORPORATION,
Contest of Citation
CONTESTANT
v. Docket No. WEST 80-495-RM
Citation No. 576956; 8/13/80
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
Docket No. WEST 80-496-RM
ADMINISTRATION (MSHA),
Citation No. 576970; 8/13/80
RESPONDENT
FMC Mine

SECRETARY OF LABOR,
Civil Penalty Proceeding
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. WEST 81-259-M
PETITIONER A.O. No. 48-00152-05045 I v.
FMC Mine
FMC CORPORATION,
RESPONDENT

DECISION

Appearances: John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, P.C., Salt Lake City, Utah, for FMC Corporation James R. Cato, Esq., Office of the Solicitor, U.S.
Department of Labor, Kansas City, Missouri, for Secretary of Labor

Before: Administrative Law Judge Broderick

STATEMENT OF THE CASE

The above proceedings were consolidated for hearing and for the purpose of this decision. They involve a contest of two citations issued the same day, August 13, 1980, and a civil penalty proceeding seeking penalties for the violations alleged in the same two citations. Pursuant to notice, the cases were heard before Administrative Law Judge John F. Cook on August 11 and 12, 1981, in Green River, Wyoming. Judge Cook left the Commission before he could issue a decision, and the parties have agreed that I may decide the cases on the basis of ~472 the transcript of the hearing and the exhibits introduced before Judge Cook and the contentions of the parties in their posthearing briefs. Terri Matson, and Federal Mine Inspectors William W. Potter and Merrell Wolford testified on behalf of the Secretary of Labor; Jerry Doan, Jeffery Munk, Karl O. Christensen, David M. Smith, Charles R. Maggio, Russell W. Rollins and Dale Force, all employees of FMC, testified on behalf of FMC Corporation. On the basis of the entire record and considering the contentions of the parties, I make the following decision:

APPLICABLE REGULATIONS

1. 30 C.F.R. 57.9-3 provides: Powered mobile equipment shall be provided with adequate brakes.

2. 30 C.F.R. 57.9-37 provides: Mobile equipment shall not be left unattended unless the brakes are set. Mobile equipment with wheels or tracks, when parked on a grade, shall be either blocked or turned into a bank or rib; and the bucket or blade lowered to the ground to prevent movement.

FINDINGS OF FACT

1. The FMC Corporation (FMC) is the operator of a large underground mine in Sweetwater County, Wyoming, known as the FMC Mine.

2. The subject mine produces trona, a natural soda mineral, and its operation affects interstate commerce.

3. The parties have stipulated that FMC is a large operator, it could satisfy the penalties if any are assessed against it, its past history "is not extraordinary" and that the citations involved in this proceeding were abated in good faith.

4. On August 9, 1980, Terri Matson was employed in the subject mine as a lube truck operator. Her duties including driving her vehicle to the mining machines and providing necessary lubrication to them during the maintenance shift. Her truck included two oil tanks and a grease can all with pumps operated by an air compressor on the truck.

5. On the above date at about 8:00 p.m., she was servicing the miner to prepare it for production which was planned for the second half of the normal maintenance shift. Both lubrication pumps were operating: Matson was outside of the truck and was pumping the hydraulic fluid into the large tank (approximate capacity 50 gallons) on the miner and a mechanic, Roger Brown, was filling the oil tank at the head of the miner.
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6. While the above operation was going on, the lube truck was parked on a slight grade. The motor was running and the truck was in second gear. The wheels of the truck were not blocked and the vehicle was not turned into a rib. No blocks or chocks were present in the vehicle. The parking brake was set.

7. The pumps "ran down" and Matson went back to "rev up" the engine to increase the air pressure. As she did so, the truck started forward. Matson stepped on the foot brake, but it went to the floor and did not respond. The truck struck Roger Brown; he was pinned between the truck and the miner and was injured.

8. The lube truck was equipped with an air over hydraulic braking system, the air acting as a power assist and operating from the same air compressor that powered the lubrication pumps.

9. On August 13, 1980, Inspector Wolford issued a citation under section 104(d)(1) of the Act charging a violation of 30 C.F.R. 57.9-3 because the lube truck did not have adequate brakes.

10. On August 13, 1980, Inspector Potter issued a citation under section 104(a) of the Act charging a violation of 30 C.F.R. 57.9-37 because on August 9, 1980, the lube truck was parked o a grade without being blocked or turned into a rib.

ISSUES

1. On August 13, 1980, did the lube truck in question have adequate brakes?

2. If it did not have adequate brakes, was this caused by the unwarrantable failure of FMC?

3. If a violation of 30 C.F.R. 57.9-3 is found, what is the appropriate penalty?

4. On August 9, 1980, was the lube truck in question parked on a grade and neither blocked nor turned into a bank or rib?

5. If a violation of 30 C.F.R. 57.9-37 is found, what is the appropriate penalty?
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DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS

1. ADEQUATE BRAKES

          Inspector Wolford testified that his inspection of the
     brakes indicated that the modification of the hydraulic
     braking system to provide the air assistance rendered
     the brakes marginal when the air compressor provided
     between 75 and 90 p.s.i. and inoperable when it fell
     below 75 p.s.i. He stated that the use of the air
     compressor for the lube system could reduce the air
     pressure to the above mentioned levels. Jerry Doan,
     FMC maintenance supervisor, testified that running the
     lubrication pumps depletes the pressure in the air
     system and that if the air pressure gets sufficiently
     low, the hydraulic brakes will fail. The figures
     referred to by Inspector Wolford were disputed by other
     witnesses for Respondent, but their precise accuracy is
     not important. Karl Christensen, FMC Diesel foreman,
     testified that if the hydraulic system is working
     properly and the brake pedal goes to the floor, it
     could be explained by inadequate air pressure. I
     accept as true and accurate Ms. Matson's testimony that
     when she stepped on the brake pedal just prior to the
     accident on August 9, 1980, the pedal went to the floor
     and the brake did not operate. The only logical
     explanation for this is a depletion in the air pressure
     as a result of using the lubrication pumps. On this
     basis, I conclude that the braking system was
     inadequate because of the possibility of failure due to
     its being tied in with the air compressor operating the
     lubrication system.
   
          There was also testimony (disputed) concerning the
     holding ability of the parking brake while the vehicle
     was in second gear, but this is not referred to in the
     citation and I am not considering it.
   
        (a)   UNWARRANTABLE FAILURE
   
          An unwarrantable failure to comply with a mandatory
     safety standard (section 104(d)(1) of the Act) has been
     defined as the failure to abate a condition which the
     operator knew or should have known existed or because
     of lack of due diligence or
   

   ~475
   reasonable care. Zeigler Coal Co., IBMA (1977) 1 MSHC
   1518. The evidence in this record shows (1) the operator
   deliberately altered the braking system on the vehicle
   in question; (2) the operator knew or should have known
   that the use of the lubrication pumps could deplete the
   air pressure and cause a failure in the hydraulic braking
   system. Therefore, I conclude that the violation was
   caused by FMC's unwarrantable failure to comply with the
   regulation in question.

   (b) PENALTY CRITERIA

             The violation was directly responsible for the injury
        to Roger Brown. I conclude that it was serious. Since
        I have previously concluded that it was an
        "unwarrantable failure" violation, ipso facto, it was
        due to FMC's negligence. FMC is a large operator, with
        more than two and one half million man hours worked
        each year. The history of prior violations is not such
        that penalties otherwise appropriate should be
        increased because of it.
   

2. FAILURE TO BLOCK WHEELS OR TURN INTO BANK OR RIB

             There is little or no dispute that on August 9, 1980,
        Terri Matson parked her mobile vehicle in order to
        lubricate the miner. The vehicle was on a slight grade
        and was not blocked. The vehicle was facing an upward
        grade and the rear wheels were 5 or 6 feet from the
        rib. That is, if it rolled backwards, it would roll 5
        or 6 feet before being stopped by the rib. I conclude
        that these facts establish a violation of the standard
        contained in 30 C.F.R. 57.9-37.
   
    (a)    PENALTY CRITERIA
   
             Clearly the violation could have resulted in injury.
        However, because the grade was gradual and the distance
        the vehicle could have rolled was limited, I conclude
        that the violation was only moderately serious. This
        violation did not cause or contribute to the injury to
        Mr. Brown.
        Matson testified that she had no blocks on her vehicle
        and had never blocked the vehicle in question. She
        stated that she did not block the vehicle on August 9,
        1980 and did not turn the wheels into the
   

   ~476
   rib. She further stated that she had never seen other
   miners in her crew block the wheels of their vehicles or
   turn into a rib when they parked the vehicles.

        Jeffrey Munk testified that although vehicles are
    supposed to be chocked or turned into a rib when
    parked, Ms. Matson (Foley) only "occasionally" followed
    this procedure. For his own part, Munk admitted that
    prior to August 9, 1980, he "might have been a little
    lax on it, but for the most part we did, yes." Matson's
    foreman testified that he instructed her to block her
    vehicle when she parked it. However, I conclude on the
    basis of all the testimony that the policy was not
    strictly or vigorously enforced. I therefore further
    conclude that the violation was caused by FMC's
    negligence.
   
                           ORDER
   

   IT IS ORDERED that the Contest of Citations 576956 issued
   August 13, 1980, and 576970 is DENIED and the citations are AFFIRMED.

   IT IS FURTHER ORDERED that Respondent in the penalty
   proceeding, FMC Corporation, shall within 30 days of the date of this decision pay the following civil penalties for the violations found herein to have occurred:

                      30 C.F.R.
   

   Citation Standard Penalty

   576956 57.9-3 $ 500
   576970 57.9-37 $ 300

                                   Total   $ 800
   
                     James A. Broderick
                     Administrative Law Judge