Pioneer Uravan, Incorporated (ALJ decision, February 10, 1981)

Plain-English summary

MSHA cited Pioneer Uravan over a loader with inoperable service brakes in two settings. Judge John J. Morris found that its working parking brake was adequate while the loader operated on flat ground, and he vacated the brake citation in WEST 80-63-M. In WEST 80-356-M, a drop test showed that none of the loader's braking systems held it on a 21 percent incline. The judge upheld the unsafe equipment citation in that case and assessed a $100 penalty, noting MSHA had not credited the company for good faith abatement. The release prints an inconsistent section number in one sentence, but its quoted standard and conclusions identify the brake rule as 30 C.F.R. § 57.9-3.

Decision snapshot

• Cited standards: 30 C.F.R. § 57.9-3, adequate brakes, and 30 C.F.R. § 57.14-26, removal of unsafe equipment from service.
• Outcome: Brake citation vacated in WEST 80-63-M; unsafe equipment citation upheld in WEST 80-356-M with a $100 penalty.
• Key point: Whether the loader's brakes were adequate depended on the conditions in which it was being used.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. PIONEER URAVAN,
DDATE:
19810210
TTEXT:
~422
Federal Mine Safety and Health Review Commission Office of Administrative Law Judges

SECRETARY OF LABOR,
CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DOCKET NO. WEST 80-63-M
PETITIONER
MSHA CASE NO. 05-02588-05002
v. DOCKET NO. WEST 80-356-M
MSHA CASE NO. 05-03465-05001
PIONEER URAVAN, INCORPORATED,
Mine: C-BL-23B
RESPONDENT

DECISION

APPEARANCES: James H. Barkley, Esq., Office of Henry C. Mahlman, Esq., Associate Regional Solicitor, United States Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294, for the Petitioner

John F. Peeso, Manager, appearing pro se, Pioneer Uravan, Incorporated, P.O. Box 2065, 2492 Industrial Boulevard, Grand Junction, Colorado 81501, for the Respondent

Before: Judge John J. Morris

The Secretary of Labor, on behalf of the Mine Safety and Health Administration (MSHA), charges that respondent Pioneer Uravan, Incorporated (Pioneer) violated two safety regulations promulgated under the authority of the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq. Pioneer denies that the violations occurred.

Pursuant to notice, an expedited hearing was held on December 23, 1980, in Grand Junction, Colorado.

The parties filed post trial briefs.

ISSUES

The issues are whether the violations occurred and what penalty, if any, is appropriate.

WEST 80-63

In this case citation 325276 alleges a violation of 30 C.F.R. 57.93-3. The standard provides:

57.9-3 Mandatory. Powered mobile equipment shall be provided with adequate brakes.
~423
WEST 80-356-M

In this case citation 326929 alleges a violation of 30 C.F.R. 57.14-26. The standard provides:

57.14-26 Mandatory. Unsafe equipment or machinery shall be removed from service immediately.

The parties agree that the single factual factor determinative of both cases is whether the Pioneer equipment had adequate brakes (Tr 4).

FINDINGS OF FACT

The facts are uncontroverted.

1. The 911 LH loader in issue has a Sundstrand hydrostatic drive transmission (Tr 11-42).

2. The ability of the hydrostatic transmission to brake the loader would be affected by any loss of oil. An efficient hydrostatic system leaks oil from the rotating surfaces. When the oil in the line is dissipated the hydrostatic drive fails (Tr 11-42).

3. The hydrostatic transmission fluid could be lost through a broken hose, a leak, clogging the inlet filter, or through a blow out (Tr 11-42).

4. Some mechanical failures can occur that would offset the hydrostatic power (Tr 11-42).

5. The MSHA inspector observed the Pioneer loader at the bottom of the haulage incline (Tr 43-44).

6. The service brakes were not operable (Tr 44).

7. The operator relied on the parking brake to stop the loader. The parking brake was in good condition (Tr 45,49).

8. There were no inclines of any consequences in the central loading area where the loader was being used (Tr 50,52,53).

9. The manufacturer of the 911 LH loader does not recommend the parking brakes or the hydrostatic transmision should be substituted for the serivce brakes (Tr 65,90).

10. In the Mum Mine the slopes do not exceed 3 to 4 degrees (Tr 96).

11. Pioneer lowers and removes this loader from the mine with a 50 horsepower electrical hoist (Tr 97).
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DISCUSSION

Citation 325276 should be vacated.

The evidence shows that the parking brakes of the loader were adequate in view of the flat area in which the loader was operating. Although it is common for the equipment to follow ore bodies up and down, the inspector saw no such incline. The cited standard requires "adequate brakes". Further, the inspector testified there was no incline where any kind of a braking failure would have been hazardous (Tr 50). These circumstances establish that the parking brake was therefore adequate as required by 30 C.F.R. 57.9-3.

MSHA contends that mines of this type follow the ore and as such the degree of incline can rapidly change. In short, MSHA says adequate brakes must describe the braking ability of the loader under all possible applications of the machine and not just at the mine site. I disagree. In determining whether brakes are adequate the circumstances under which the equipment is being used must be considered. To hold otherwise would impugn to an operator an intent to violate the regulation in the future. The service brakes were not maintained due to the abrasive mud in the mine. If a condition existed where a hazard arose from a steeper incline then I would find a violation occurred. However, absent such factual conditions, I rule that the parking brakes were adequate.

WEST 80-356-M

The facts are uncontroverted.

12. An electrical hoist was assisting in lowering a Pioneer loader down a 21 percent incline (Tr 105-107).

13. The two miners were at the bottom of the 600 foot incline (Tr 107).

14. In a 2 foot drop test, the hydrostatic drive, the foot brakes, and hand brakes would not hold the unit (Tr 109-111).

DISCUSSION

This citation should be affirmed.

The test observed by the inspector clearly establishes the brakes were inadequate in view of the circumstances under which the equipment was being used.

Pioneer contends the hydrostatic drive transmission is adequate without any brakes. Further, Pioneer offers evidence that similar loaders sold commercially do not even furnish separate service brakes (Exhibits R2, R3, R4, R5).

I reject Pioneer's arguments. The expert testimony establishes that the hydrostatic transmission drive will eventually leak out a sufficient ~425 amount of oil that its braking power will no longer hold the loader. In addition, the 911 LHD loader operator's manual is contrary to Pioneer's argument (Exhibit P-1, Page 9).

The second argument that other commercial loaders do not furnish service brakes is not supported by Pioneer's evidence. The Clark "Bobcat" shows brakes are "standard equipment" (R2). The J I Case Uniloader and the International Hustler do not indicate they have any service brakes (R3, R4). It may well be that service brakes are such standard equipment that those two manufacturers did not mention that feature in their brochures. The Massey Ferguson skid steer loader brochure under braking indicates "automatic 4-wheel drive with control levers in neutral position". Without additional expert testimony I cannot find that the Massey Ferguson equipment does not have service brakes (R5).

PENALTY

MSHA failed to credit Pioneer with any good faith abatement.
In view of this factor and the other statutory criteria (FN.1) I deem a civil penaly of $100.00 to be appropriate.

CONCLUSIONS OF LAW

1. Complainant failed to prove a violation of 30 C.F.R.
57.9-3 and citation 325276 should be vacated (Facts 1-11).

2. Respondent violated 30 C.F.R. 57.14-26 and citation 326929 should be affirmed and a penalty of $100.00 assessed (Facts 12-14).

ORDER

Based on the foregoing findings of facts and conclusions of law, I enter the following order:

WEST 80-63

1. Citation 325276 and all other penalties therefor are vacated.

WEST 80-356-M

2. Citation 326929 is affirmed and a penalty of $100.00 is assessed.

John J. Morris
Administrative Law Judge
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ (FOOTNOTES START HERE.)
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1 30 U.S.C. 820(i)