Black River Sand and Gravel, Inc. (ALJ decision, April 27, 1982)

Plain-English summary

MSHA cited Black River Sand and Gravel for four electrical hazards involving damaged or exposed cables and one unsecured acetylene cylinder at its sand and gravel pit. The company admitted the conditions but disputed the seriousness of the violations and the proposed penalties. Judge John J. Morris found that the electrical conditions presented possible shock or electrocution hazards and rejected the company's claim that OSHA, rather than MSHA, had jurisdiction. He affirmed all five citations and assessed the proposed penalties, totaling $408.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12-30 and 56.16-5.
• Outcome: Five citations affirmed; $408 total penalty assessed.
• Key point: The damaged cables and unsecured gas cylinder were equipment hazards within the operator's control.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES

333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

APR 27 1982

SECRETARY OF LABOR, MINE SAFETY AND

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING Petitioner, DOCKET NO. WEST 80-75-M v. A/C No. 45-01582-05005 BLACK RIVER SAND AND GRAVEL, INC., Mine: Black River Pit Respondent. Appearances:

Faye vonWrangel, Esq., Office of Daniel W. Teehan, Regional Solicitor, United States Department of Labor, Seattle, Washington For the Petitioner

James L. Hawk, President, Black River Sand and Gravel appearing Pro Se, Seattle, Washington For the Respondent Before: Judge John J. Morris DECISION The Secretary of Labor, on behalf of the Federal Mine Safety and Health Administration, (MSHA), charges respondent with violating various safety regulations adopted under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.

After notice to the parties a hearing on the merits was held on July 7, 1981 in Seattle, Washington.

ISSUES
The issues are whether the proposed penalties are excessive. STIPULATION The parties stipulated that the violations existed on the date of the

inspection, Respondent further reserved the right to show that the violations were not serious (Tr. 7).

743

CITATION 3545 10

This citation proposes a civil penalty of $72 for the violation of 30 C.F.R. § 56.12-30. The cited standard provides as follows:

56.12-30 Mandatory. When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.

The evidence shows that the outer insulation on respondent’s cable had pulled apart. This involved a possible electrical hazard. If the ground fault was interrupted the area could be energized with resulting shock or electrocution to a worker (Tr. 13, 14).

CITATION 3545 13

This citation proposes a civil penalty of $72 for the violation of the above cited electrical standard, 30 C.F.R. § 56.12-30.

The evidence shows that the cable to the jaw crusher was broken and within easy reach of ground level. The cable was located on a steel frame and workers could be electrocuted if the ground fault system failed (Tr. 14-16, R-7).

CITATION 354514

This citation proposes a penalty of $72 for the violation of the above cited electrical standard, 30 C.F.R. § 56.12-30.

The evidence shows that the wires of the cable going to the second material conveyor had separated from the outer insulation at the junction box. The cable was hanging down in large loops (Tr. 15-16).

CITATION 586007

This citation proposes a’penalty of $52 for the alleged violation of 30 C.F.R. § 56.16-5. The cited standard provides as follows:

56.16-5 Mandatory. Compressed and liquid gas cylinders shall be secured in a safe manner.

The evidence shows that there was an unsupported and untied acetylene bottle located next to a parts- trailer. The almost empty bottle was sitting atop a pile of rock. Workers as well as heavy equipment pass with seven or eight feet of the bottle (Tr. 16-19, 24).

744

CITATION 586008

This citation proposes a civil penalty of $140 for the violation of the previously cited standard, 30’C.F.R. § 56.12-30.

The evidence shows that the power cable from the crushing plant was exposed to falling boulders (Tr. 18, R-3). Respondent abated this condition by abandoning this particular cable and conveyor (Tr. 32)

CONTENTIONS

Respondent contends that the violations are not serious, that human error is the greatest cause of injuries at the worksite, and finally respondent contends that OSHA has jurisdiction over this worksite rather than MSHA.

I disagree. The evidence establishes that all of the electrical hazards were potentially dangerous. If the ground fault failed electrocution could result.

The unsecured acetylene bottle is less serious than the electrical violations but as indicated petitioner proposes a lesser penalty for that violation.

Respondent further contends that human error is the cause of most worksite accidents. I disagree with respondent’s argument. In these citations all of the defects involved equipment problems which are clearly under managerial control as well as ownership. Respondent’s reliance on “Fatalgrams” (R-8) and respondent’s later accident involving a fatality is not relevant in this case.

Respondent’s final argument is that OSHA 1/ rather than MSHA has jurisdiction over its sand and gravel operation. This issue has been previously decided contrary to respondent’s views. Cf Valley Rock Sand and Gravel WEST 80-3-M, 4 FMSHRC 113 (January 1982).

CIVIL PENALTIES
Section 110(i) of the Act [30 U.S.C. 820(i)] provides as follows:

The Commission shall have authority to assess all civil penalties provided in this Act. In assessing civil monetary penalties, the Commission shall consider the operator’s history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

1/ Occupational Safety and Health Act, 29 U.S.C. 651 et seq.

745

In connection with the proposed penalties I note that Citation 586008 proposes a greater penalty that the other three violations of the same standard. In my view, petitioner has properly recognized the greater gravity that can be caused by the boulders falling on an extended cable. The penalty as proposed is, accordingly, a proper analysis of that violation compared with the other violations of the same standard. Considering the statutory criteria I am unwilling to disturb the petitioner’s proposed penalties.

Based on the foregoing findings of fact and conclusions of law I enter the following ORDER

1. Citations 354510, 354513, 354514, 586007 and 586008 and the
   proposed penalties therefore are AFFIRMED.

2. Respondent is ordered to pay the total sum of $408 within 40 days
   of the date of this order.

John J. Morris
Administrative Law Judge

Distribution:

Faye vonWrangel, Esq.

Office of the Solicitor

United States Department of Labor
8003 Federal Building

Seattle, Washington 98174

Mr. James L. Hawk, President

Black Hawk Sand and Gravel, Inc.

68-8 South One Hundred Fortieth Street
Seattle, Washington 98178

746