Fife Rock Products Company, Inc.

Plain-English summary

Fife Rock Products' plant manager was using an oxygen-acetylene torch without protective glasses or other protective equipment while cutting holes in a screen. Judge John J. Morris found that the conduct violated 30 C.F.R. § 56.15007 and could have caused blindness or a serious eye injury. The judge considered the operator's small size, violation history, negligence, gravity, and rapid abatement when setting the penalty. The citation was affirmed and a $250 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15007
• Outcome: Citation No. 2360673 was affirmed and a $250 civil penalty was assessed.
• Key point: A safety rule and an employee's usual use of glasses do not excuse failing to wear required eye protection while using a torch.

Full text (FMSHRC public release)

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 85-141-M
PETITIONER A.C. No. 42-00377-05502

      v.                            Fife Brigham Pit

FIFE ROCK PRODUCTS COMPANY,
INC.,
RESPONDENT

                       DECISION AFTER REMAND

Appearances: Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Clifford P. Woodland, Fife Rock Products
Company, Inc., Brigham City, Utah,
pro se.

Before: Judge Morris

 On October 14, 1986, the Commission remanded the above case

and directed that respondent be granted the opportunity to
present its position seeking a hearing after the entry of a
default order in the case. Respondent reasserted its position and
the judge concluded that a hearing should be granted, (Order,
November 20, 1986).

 After notice to the parties, a hearing on the merits took

place in Salt Lake City, Utah on January 6, 1987. The parties
waived their right to file post-trial briefs.

                              Issues

 The issues are whether respondent violated the regulation,

if so, what penalty is appropriate.

                          Citation 2360673

 This citation charges respondent with violating 30 C.F.R.

56.15007, which provides as follows

      Protective clothing or equipment and face shields, or
      goggles shall be worn when welding, cutting or working
      with molten metal.

                   Summary of the Evidence

 Tyrone Goodspeed, an experienced MSHA inspector, conducted

an investigation at respondent's sand and gravel operation on
April 16, 1985 (Tr. 6, 7).

 This was an average sized plant with three employees (Tr.

8). The plant area consists of a set of screens, conveyor belts,
a control room and a dump point (Tr. 9).

 The inspector located plant manager Harper who was then

cutting holes in a screen with an oxygen acetylene torch (Tr.
10). He was lying on his side and not wearing glasses or any
protective equipment (Tr. 10, 12, 13). Harper explained that he
had forgotten about wearing the glasses (Tr. 11). He had been in
a three foot space with the torch approximately 18 inches from
his face (Tr. 11, 12).

 In the inspector's experience Harper could have been blinded

or incur a serious eye injury from molten material (Tr. 12). The
inspector believed that it was reasonably likely that an injury
could occur in these circumstances (Tr. 13, 15).

 The inspector believed this was a condition involving

imminent danger (Tr. 13, 14). Further, he believed that the
negligence was high (Tr. 14).

 The inspector further indicated the citation was incorrectly

dated (Tr. 16-29, 33). The inspector's notes and the form
indicating the operator had been advised of his rights to a
conference were received in evidence (Tr. 24).

 Respondent offered in evidence its written narrative filed

with the Commission (Tr. 35, 36; Ex. R3, R4). Respondent does not
deny the violation but it condemns the action of its employee (Tr.
37).

 Earl Harper, testifying for the operator, indicated he has

been employed by Fife Rock for 30 Years (Tr. 38). He is now
designated as the plant manager (Tr. 38, 46).

 He normally uses glasses but on the day of the inspection he

was at the Eljay screen installing J-bolts by first punching
holes in the screen deck with a torch (Tr. 39, 40, 67). It was
his neglect in failing to take his glasses with him (Tr. 41). The
company, as well as the citation, stresses the use of glasses
(Tr. 41). Harper realized that a potential for injury existed
here and he should have used safety equipment (Tr. 43, 45, 50).
Harper, who has been using a torch for 35 years, has no
supervisory authority at the plant. There were two other
operators at the site (Tr. 47).

 Notwithstanding the company rule to the contrary, Harper

admitted he had previously used a welding torch without wearing
glasses. But he had not done so since the citation was issued
(Tr. 51).

 Don Perry runs the front-end loader. He also assisted with

installing screens when necessary (Tr. 52-54). Perry didn't think
Harper was wearing any protective equipment that day (Tr. 55).
The company stresses safety (Tr. 56).

 Ray Hardy feeds the crusher with a rubber tire dozer (Tr.

57). Hardy also assisted in installing the new screens (Tr. 57).
When he was called Harper replied that he'd be through in a
minute (Tr. 58, 59). Later, when they discussed the citation, the
inspector seemed upset with Harper (Tr. 61, 64).

 The company always instructed the employees to cooperate

with MSHA (Tr. 61). Signs in the shop stress safety and accidents
(Tr. 62).

                          Discussion

 The evidence establishes that the violation occurred. Harper

was seen by the inspector to be using a torch without protective
gear. Respondent's evidence confirms the violation. The citation
should be affirmed.

 The principal issue concerns the assessment of a civil

penalty. The statutory penalty to assess a civil penalty is
contained in Section 110(i) of the Act which provides as follows:

     (i) 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.

 In considering the statutory criteria I find that the

computer printout received in evidence establishes that the
operator had three assessed violations in the two year period
ending April 15, 1985. This is a considerable improvement over
the 11 violations assessed in the period before April 16, 1983.
Three violations indicate respondent's prior adverse history of
violations is below average. The operator with three employees
should be considered as small and the penalty hereafter assessed
appears appropriate in relation to the size of the business. The
operator was negligent since it failed to offer any persuasive

evidence that it enforced its safety rules relating to the use of
protective eyeglasses. There is no evidence relating to the
effect of the penalty on the ability of the operator to continue
in business. But the obligation rests with the operator to
produce such evidence. Buffalo Mining Company, 2 IBMA 226,
(1973); Associated Drilling, Inc., 3 IBMA 164 (1974). The gravity
of the violation should be considered as high. The employee could
have been blinded by molten lead. It is to the operator's credit
that it rapidly abated the violative condition.

 On balance, I consider that a civil penalty of $250 is

appropriate.

                      Conclusions of Law

 Based on the entire record and the factual findings made in

the narrative portion of this decision, the following conclusions
of law are entered:

1. The Commission has jurisdiction to decide this case.

 2. Respondent violated 30 C.F.R. 56.15007 and Citation

2360673 should be affirmed.

 Based on the foregoing findings of fact and conclusions of

law I enter the following:

                            ORDER

1. Citation 2360673 is affirmed.

2. A civil penalty of $250 is assessed.

 3. Respondent is ordered to pay to the Secretary the sum of

$250 within 40 days of the date of this decision.

                            John J. Morris
                            Administrative Law Judge