Concrete Products Company

Plain-English summary

MSHA cited Concrete Products after an inspector found a 35-ton Caterpillar operating without a back-up alarm at a sand and gravel pit. The company admitted the violation and repaired or replaced the alarm the same day. Judge John J. Morris found that the defect had been reported several days earlier, the operator was negligent in leaving the equipment in service, and the hazard could result in a fatality or serious injury. He affirmed the citation and reduced the proposed $400 penalty to $150.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9087
• Outcome: The citation was affirmed and a $150 civil penalty was assessed.
• Key point: Prompt abatement and a good safety record mitigated the penalty, but leaving defective mobile equipment in service supported a penalty.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CONCRETE PRODUCTS
DDATE:
19870220
TTEXT:

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         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 86-111-M
PETITIONER A.C. No. 42-01014-05504
v.
Walker Sand & Gravel Pit
CONCRETE PRODUCTS COMPANY,
RESPONDENT

                             DECISION

Appearances: Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner;
Mr. Boyd Nielson, Concrete Products Company, Salt
Lake City, Utah, pro se.

Before: Judge Morris

 The Secretary of Labor, on behalf of the Mine Safety and

Health Administration, charges respondent with violating a safety
regulation promulgated under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. 801 et seq., (the "Act").

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

place in Salt Lake City, Utah on August 13, 1986.

   The parties waived their right to file post-trial briefs.

                              Issue

 The issue is what penalty is appropriate for failure to

provide a back-up alarm.

Citation 2644078

 This citation alleges respondent violated 30 C.F.R.

56.9087 which provides as follows:

        56.9087 Audible warning devices and back-up alarm.
       Heavy duty mobile equipment shall be provided with
       audible warning devices. When the operator of such
       equipment has an obstructed view to the rear, the
       equipment shall have either an automatic reverse signal
       alarm which is audible above the surrounding noise
       level or an observer to signal when it is safe to back
       up.

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Summary of the Evidence

 William W. Wilson is a person experienced in mining as well

as an MSHA safety and health inspector (Tr. 4, 5).

 On December 10, 1985 Mr. Wilson inspected respondent, a sand

and gravel operation (Tr. 5, 6). There were three or four
employees at the pit (Tr. 6). While on the site the inspector
observed a 35-ton Caterpillar that did not have a backup alarm
(Tr. 7; Ex. P1).

 The driver of the vehicle, which was in operation, had

restricted vision to the rear. This hazard could reasonably cause
a fatality or serious injury (Tr. 8, 11). Inspector Wilson
believed the negligence was high because the defect had been
reported to the mechanical department over a week before the
inspection (Tr. 9). But, there had been no repairs made to the
equipment (Tr. 10, 11).

 The alarm was either replaced or repaired within the

specified time (Tr. 11).

 Boyd E. Nielsen, general foreman for respondent, testified

the company operates eight sand and gravel pits. They are located
in Utah, Nevada and Wyoming (Tr. 17).

 The maintenance department was advised of the defect four or

five days before the inspection (Tr. 18).

 Exhibits were received in evidence showing the normal time

required to effect repairs (Tr. 18, 19); Ex. R1, R2).

 The company abated the instant violation the same day the

citation was issued (Tr. 14, 20).

 The company has an outstanding safety record and it makes

every effort to comply with MSHA regulations.

 The proposed penalty will not effect the company's ability

to continue in business (Tr. 21).

                          Discussion

 Respondent in this case admits the violation (Tr. 3, 4).

Accordingly, the sole issue focuses on the appropriate penalty.

 The statutory criteria to assess civil penalties is

contained in section 110(i) of the Act. The provision, now 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

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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.

 The operator had six violations in the two year period

ending December 9, 1985. This is a considerable improvement over
the 17 violations that occurred before December 10, 1983. The
violations involved in the most recent period indicate that the
number of respondent's violations are less than average. The
respondent must be considered a small operator inasmuch as it has
only three or four employees at this pit. It does, however, have
additional pits. The operator was negligent in that it failed to
remove the equipment from service. Respondent's evidence
established there was a time lag between the time of reporting
the defect and its repair. I am not persuaded by such evidence
particularly when respondent abated the violation the very day
the citation was issued. The parties stipulated that the proposed
penalty of $400 would not affect the operator's ability to
continue in business. The gravity must be considered high since a
fatality could occur. The operator's good faith is apparent since
it immediately abated the condition.

 On balance, I deem that a penalty of $150 is appropriate.

Conclusions of Law

 Based on the entire record and the factual findings made in

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

   1. The Commission has jurisdiction to decide this case.

   2. Respondent violated 30 C.F.R. § 56.9087.

 Based on the foregoing findings of fact and conclusions of

law I enter the following:

                              ORDER

   1. Citation 2644078 is affirmed.

   2. A civil penalty of $150 is assessed.

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

$150 within 40 days of the date of this decision.

                           John J. Morris
                           Administrative Law Judge