Western Fuels-Utah, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Western Fuels-Utah contested a withdrawal order and three citations arising from a nonfatal powered-haulage accident at the Deserado Mine. Two workers were seriously injured when a raised dump-truck bed struck an overpass, and one worker's lower left leg had to be amputated at the scene. Judge Michael A. Lasher, Jr. affirmed the withdrawal order and two citations, including the significant-and-substantial designation on one citation, and vacated the citation alleging that the overpass lacked warning signs. The judge assessed $450 in civil penalties for the affirmed violations.

Decision snapshot

• Cited standards: 30 C.F.R. § 50.10, § 77.1607(s), and § 77.1600(c), along with Mine Act provisions governing accident orders, citations, and penalties.
• Outcome: Withdrawal Order No. 2835325 and Citations Nos. 2835326 and 2835327 were affirmed, Citation No. 2835328 was vacated, and $450 in penalties was assessed.
• Key point: The decision upheld the withdrawal order and the S&S designation on Citation No. 2835327 while vacating Citation No. 2835328.

Full text (FMSHRC public release)

CCASE:
WESTERN FUELS-UTAH V. SOL (MSHA)
DDATE:
19880630
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

WESTERN FUELSÄUTAH, INC., CONTEST PROCEEDINGS
CONTESTANT
Docket No. WEST 87-166-R
v. Order No. 2835325; 3/21/87

SECRETARY OF LABOR, Docket No. WEST 87-167-R
MINE SAFETY AND HEALTH Citation No. 2835326; 3/22/87
ADMINISTRATION (MSHA),
RESPONDENT Docket No. WEST 87-168-R
Citation No. 2835327; 3/22/87

                                            Docket No. WEST 87-169-R
                                            Citation No. 2835328; 3/22/87
                                            Mine I.D. 05Ä03505

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 87-251
PETITIONER A.C. No. 05-03505-03540

        v.                                  Deserado Mine

WESTERN FUELSÄUTAH, INC.,
RESPONDENT

                                DECISION

Appearances: Karl F. Anuta, Esq., Boulder, Colorado, for
Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for
Respondent/Petitioner.

Before: Judge Lasher

 The penalty case was consolidated with the four contest

proceedings at hearing---which as reflected in the caption involve
a Section 103(k) withdrawal order and 3 citations. The 5 dockets
arise under and the Commission has jurisdiction pursuant to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. Section 801
et seq. (1982) (herein the Act).

 The four enforcement papers (order and 3 citations) were

issued by MSHA Inspector Dale L. Hollopeter subsequent to the
occurrence of a serious accident which occurred at approximately
9:25 a.m., on March 20, 1987, near the Deserado mine, an
underground coal mine operated by Contestant/Respondent (herein
Western Fuels) in Rio Blanco County, Colorado.

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One of the citations (No. 2835327) charged that the alleged
violation described therein was "significant and substantial".
The other 2 Citations (numbered 2835326 and 2835328) did not
contain "S & S" designations.

A. General Findings

  The Deserado Mine is an underground coal mine located near

Rangely, Rio Blanco County, Colorado. Coal is taken from the mine
to a preparation plant from which it is transported for several
miles to a train loadout area by an overhead conveyor (T. 27, 55,
153).

 The parties, in addition to stipulations as to jurisdiction,

admissibility of underlying documentation and mandatory penalty
assessment criteria, also submitted the following written
stipulations:

      a. On Friday, March 20, 1987, at about 9:25 a.m., a
      non-fatal powered haulage accident occurred on the
      County Road 78 at the Beltline Conveyor Overpass
      (CNVÄ2). Dale J. Ackerman, truck/light equipment
      operator, and Michael G. Smith, heavy equipment
      operator, were seriously injured when the Euclid,
      RDÄ50, end dump haulage truck, with the bed raised,
      struck the overpass, causing the truck to overturn onto
      its left cab side. The accident occurred because the
      haul truck operator failed to lower the truck bed after
      dumping refuse material at Pit 2/3 (Footnote 1)

      b. The accident was reported by the (mine) operator to
      the MSHA office in Glenwood Springs at approximately
      12:00 noon on March 20, 1987.

      c. The No. 2 Beltline conveyor overpass is above County
      Road No. 78 and is used as a haul road by Western Fuels
      with express permission of Rio Blanco County and Bureau
      of Land Management.

      d. The No. 2 Beltline Conveyor overpass was not at the
      time of the accident marked and did not contain warning
      signals.

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Inspector Hollopeter, who is stationed in Denver, was advised of
the accident by his supervisor sometime after "noontime" on
Friday, March 20, 1987. After packing, he drove from Denver to
Craig, Colorado that afternoon. That night he prepared his
equipment, etc. for the ensuing investigation, and the following
morning traveled from Craig to the mine where he met with company
and union officials at approximately 8 a.m. (T. 28Ä32). He was
advised by Mine Superintendent John Trygstad that the haulage
truck-with the bed thereof in the raised position--had struck the
overland conveyor structure. At the conclusion of the meeting,
Inspector Hollopeter issued the Section 103(k) Order-- based on
what he was told at the meeting-- to insure the safety of the
miners (T. 33Ä38, 55). Following the meeting, Inspector
Hollopeter, accompanied by Western Fuels' Safety Director Jerry
Kowlok, went to the accident scene, and then to Pit 2Ä3, i.e. the
refuse pile (T. 40, 59).

 It was Inspector Hollopeter's understanding, and I so find

from the entire record, that Dale Ackerman, the driver of the
50Äton capacity truck on the trip in question, his second of the
day (T. 132), started out from the preparation plant on March 20
with a load of refuse, proceeded down the 2Älane haul road
(County Road 78) to the refuse pile (pit) where he dumped the
refuse material, picked up passenger Smith, and was traveling
back down the gravel-dirt haul road to the preparation plant when
the accident occurred as above noted about 9:25 a.m. at a point
about 1.75 miles from the pit (T. 41, 44Ä48, 132, 256Ä257). The
speed limit on the haul road from the refuse pit (dump) is 30
m.p.h. (T. 256).

 The accident occurred when the right side of the front of

the "headache rack" (a protective part of the bed extending out
over the cab to keep falling objects from striking the cab and
the truck operator) struck the overpass structure (T. 60Ä61, 71,
362; Exs. MÄ11, 12 and 13).

 The truck ended up on its left side following the accident;

Michael G. Smith, an "authorized" passenger (T. 243, 260, 294,
295) was removed from the truck at 10:40 a.m. and Ackerman, whose
lower left leg had to be amputated at the scene, was removed from
the truck at 12 noon (T. 52Ä53, 116; Ex. MÄ14).

 After his arrival at the accident scene (and the refuse

pit), Inspector Hollopeter took various measurements and
photographs of the truck, overpass structure, and accident scene
(Ex. MÄ6 through MÄ13) (T. 41, 50Ä58).

 The overpass structure (sometimes referred to as an overhead

conveyor) extends over the haul road in an arch, the lowest point
of which is 20.16 feet and highest point being 27 feet; there was
a clearance of approximately 26 feet at the point where the truck
struck it (T. 65, 68, 138, 141). The conveyor is in the center

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of the structure itself with walkways on either side. One effect
of the withdrawal order was to prohibit persons from walking on
these walkways (T. 78). When the bed of the truck is raised it
extends upward at a 60 degree angle and is about 28 feet 4 inches
in height. The truck thus failed to clear the overpass by about
18Ä24 inches (T. 69 ). With the bed raised, there was thus no
place the truck could have cleared the overpass (T. 70). In its
travel position, i.e., with the bed lowered, the height of the
truck is 14 feet 5 inches (T. 72).

B. Docket No. WEST 87Ä166ÄR

Validity of Withdrawal Order No. 2835325

 The Order was issued pursuant to Section 103(k) of the Act

which provides:

      "In the event of any accident occurring in a coal or
      other mine, an authorized representative of the
      Secretary, when present, may issue such orders as he
      deems appropriate to insure the safety of any person in
      the coal or other mine, and the operator of such mine
      shall obtain the approval of such representative, in
      consultation with appropriate State representatives,
      when feasible, of any plan to recover any person in
      such mine or to recover the coal or other mine or
      return affected areas of such mine to normal."

 Subsequent to its issuance at 8:50 a.m. on March 21, 1987,

the Order was modified four times by Inspector Hollopeter.

 Western Fuels contends that the Order as modified, was

improperly issued since its purpose was not to insure the safety
of persons in the mine, but rather was intended to preserve
evidence (T. 202). The Order itself charges no violation and MSHA
seeks no penalty in connection therewith (T. 9).

 The "Condition or Practice" involved in the Withdrawal Order

was set forth by Inspector Hollopeter in Section 8 thereof as
follows:

      The mine has experienced a nonfatal powered haulage
      accident on the surface haul road (County Rd. 78) at
      No. 2 Beltline Conveyor overpass. This order is issued
      to assure the safety of persons until an examination or
      investigation is made to determine the area is safe. An
      investigation party of company officials, state and
      county officials, safety committeemen are permitted to
      enter the area.

 Section 15 of the Withdrawal Order, wherein the "Area or

Equipment" to be withdrawn is to be described, was filled in by
Inspector Hollopeter as follows:

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"The No. 2 Beltline Conveyor overpass structure 150 feet each
side of the haul road and the haul road 150 feet easterly and
westerly of the structure, except the southern portion of the
haul road to permit traffic to pass."

  Inspector Hollopeter issued the Order to ensure the safety

of persons until an investigation could be conducted (T. 34Ä36,
142).

 At 1:40 p.m. on March 21, 1987, the Inspector issued the

following modification:

      103(k) Order is modified to allow the operator to move
      the Euclid RÄ50 (Company No. 4) from the accident area
      to the shop area. Also, the closure of a section of
      this haul road is now removed from this order.

 At 7:35 p.m. on March 21, 1987, this second modification

(Footnote 2) was issued:

      The 103(k) Order is modified to show the area of the
      No. 2 Beltline Conveyor (overland conveyor) closure
      from the 150 feet on each of the haul road changed to
      just the No. 2 Beltline Conveyor Overpass structure and
      belt at the main supports north of the haul road to the
      main supports south of the haul road.

 At 11:39 a.m. on March 22, 1987, this third and final

modification was issued by Inspector Hollopeter:

      The 103(k) Order is modified to allow repairs to the
      No. 2 beltline conveyor overpass and operation of the
      conveyor belt this being based on the Chief Engineer
      opinion which was given and to allow repairs on the
      Euclid RÄ50 (Company No. 4) haulage truck, with
      stipulation that the District Office, MSHA, CMSH & H,
      Denver, Co., be notified of any defective item found
      and that we get a report of the damage and repairs done
      to the truck.

      If an independent shop is to do the repairs, we are to
      be notified so that we might be present during
      examination or testing.

 One effect of the Withdrawal Order, as previously noted was

to prohibit persons from walking on the walkways alongside the
conveyor. The operation of the conveyor was also "closed" by the

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order (T. 85, 86). The order did not prevent traffic on the
haulage road (County Road 78) from travelingunder the overpass
structure, and thus would not have the effect of preventing the
same kind of accident from happening had another Euclid truck
proceeded under the overpass with its bed raised (T. 80Ä85). This
is a moot point, however, since there was only one such truck
operating at the time-- the one involved in the subject accident
(T. 87). The Inspector testified he also put an order on the
truck to "prevent people from being in or around" it (T. 87Ä88)
although this is not specifically reflected in Section 15 (Area
or Equipment) of the order itself.

 At the time of his initial investigation, Inspector

Hollopeter did not know the truck was being driven-- why/or what
caused the truck to be driven-- with the bed in a raised position
(T. 73, 77). He considered the possibility that there was a
malfunction which would have caused the bed to be in a raised
position (T. 77, 151).

 Inspector Hollopeter issued the first modification of the

Withdrawal Order because the County wanted the truck moved and so
that the truck could be moved off the road to the shop area
allowing traffic to move in both directions (T. 151). At the time
of its issuance he had not checked out and cleared the overpass
structure for safety (T. 74Ä76, 142, 189). He described his
concerns relating to the overpass as follows:

      "Just underneath, looking at the conveyor, I saw
      where -- the side which the truck had contacted,
      initially, and -- at the initial contact point, I saw, on
      the lattice work, where there was (sic) braces broken
      out, bent out. And, also, the I-beams were bent,
      twisted underneath it."
                           (T. 77)

 The Inspector was also concerned about the cracking of paint

around the bolts of the overpass which may have been caused by
the accident (T. 147Ä149 ). (Footnote 3)

 Following issuance of the first modification which permitted

removal of the damaged truck from the accident area, the
Inspector again examined the conveyor structure. He testified as
to what he observed:

      "On the easterly side of the structure, which was the
      side, which the haulage truck had initially contacted,
      I saw

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the lattice work bent, braces broken out completely on one end,
and bent out. The metal, which was bent. For a distance along the
bottom of the conveyor, I observed some of the I-beams going
across underneath this structure, bent. Also, I notice on the
opposite side of the impact area, paint which appeared to be
cracked, which was apparently caused by the impact.

      Q. But, it was on the opposite side of the conveyor?

      A. Yes." (T. 89)

 Surface Area Foreman Jack L. Monfrada described what he saw

when he arrived as follows:

      "There was some beams and lattice work that was -- one
      lattice work was broke and pokin' up on the air, and
      you could see where these beams had been bent. They
      were horizontal beams, across the bottom of the
      structure.
                            (T. 342)

 After this visual examination and conducting interviews (T.

89Ä91) Inspector Hollopeter issued the second modification at
7:35 p.m. on March 21, 1987. He explained what led to issuance of
the second modification:

      "Mainly, my understanding was that the company were
      (sic) havin' security people stay at that area to
      prevent people from goin' in the accident area -- or,
      under the 103K Order area. And, they'd have to keep
      people -- they said they was going to keep people there
      all the time. And, at that particular time, I didn't
      feet the Order should be lifted, because I had concern
      on the structure, but I felt the Order cold be modified
      to bring the distances in from 150 feet just to -- just so
      the Order would pertain to the overland conveyor
      structure, that went across the road. And, that -- that
      way you wouldn't need to have a -- anyone secure the area,
      or -- as far as havin' a person there all the time."
                                  (T. 90Ä91)

                XXX          XXX          XXX          XXX

      I was concerned about the amount of metal, which was
      damaged -- your braces, your I-beams, which were bent; the
      cracking of the paint, walkway, everything.

      I was concerned about if the conveyor was operated, how
      much -- this metal was fatigued -- there could have been
      maybe an accident, shortly thereafter, if it was turned
      on. Just -- I had concern.

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Q. And, concern about the safety of anyone who might walk up on
that conveyor belt?

      A. Yes.
                               (T. 92)

 The third modification was issued at 11:34 a.m. on Sunday,

March 22, 1987, to permit Western Fuels to repair the conveyor
belt, it being the opinion of Western Fuels Chief Engineer Mike
Weigand that upon completion of such the conveyor belt could be
safely operated (T. 92Ä94) Inspector Hollopeter remained
concerned about the safety of the structure and wanted MSHA
"technical support people" to examine it. The third modification
thus continued MSHA control over this aspect of the matter. By
letter he requested them to examine it and subsequently received
a written report back indicating the structure was safe which led
to issuance of a fourth modification of the Order in May, 1987
(T. 93Ä96, 98) which removed the structure from the effect of the
Order (T. 97). At this point only the truck remained under the
control of the Order (T. 98). Following further investigation of
the truck and the Inspector's receipt of information that the
truck had no indications of defective parts, malfunction, etc.,
Inspector Hollopeter terminated the subject Section 103(k)
withdrawal order (T. 98Ä100).

 Michael J. Weigand, Western Fuels' Chief Engineer at the

Deserado Mine, testified that when he inspected the overpass
structure on the day of the accident he observed that one of the
diagonal braces had broken loose and there was "some damage" to
the ends of some I-beams which run "roughly parallel to the road"
underneath the structure (T. 363). He felt that the photographs
in the record as exhibits CÄ5, 10, 16 and 17 accurately depicted
the damage to the structure imediately after the accident (T.
362Ä368). Mr. Weigand indicated that his inspection disclosed a
5Äinch deflection of the structure the existence of which "was
possible" before the accident (T. 371). He conceded that "there
could be some effects from that accident" that could "weaken" the
structure over the "longterm" (T. 373Ä374) and the relatively
extensive repairs made to the structure after the accident were
done because such were reimbursed by insurance, it took a shorter
time to perform the repairs in that manner, and it was decided to
do it "right" so that the structure would last its projected
30Äyear term (T. 374Ä376).

 During the MSHA investigation in the 2Äday period following

the accident, Mr. Weigand participated and gave his opinion to
Inspector Hollopeter that the structure "was safe" (T. 377Ä378 ).
It was also his opinion that the structure was not a "dangerous
overpass" either before or after the accident (T. 386).

 On cross-examination, this exchange, of some significance,

between Mr. Weigand and MSHA's counsel occurred:

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Q. All right. And, you did tell Mr. Hollopeter, as I understand,
that it was your opinion that there were some braces that should
be replaced on this overpass?

      A. I felt that if immediate work was done, that that's
      the part that should have been done, yes. (T. 392)

 Mr. Weigand also conceded the possibility that the cracked

paint on the structure occurred as a result of the truck's impact
with it (T. 396).

 Maintenance Superintendent Anthony Lauriski described the

damage to the overpass structure as follows:

      A. There was two trusses tore loose, and the hand rail
      was sort of bent in one spot, and there was some damage
      to the supports that go across and hold the walkway up
      (T. 410).

 Western Fuels' Safety Instructor/Inspector David G. Casey,

who in the beginning took charge of the rescue operation,
described the damage to the structure this way:

      "We had a couple of cross-beams that were tore
      loose- they were vertical beams, and a few I-beams that
      had been bent."
                                (T. 450)

 Mr. Casey expressed the opinion that the overpass was not

dangerous, perilous or risky either before or after the accident
(T. 452, 461) for persons or vehicles to travel under or near (T.
461Ä462).

 As to that part of the Order pertaining to the truck, Mr.

Lauriski testified that he first "knew" there was no malfunction
which would have caused the bed to raise (and thus cause the
accident) when the valve was disassembled after the truck was
taken to the repair shop (T. 419). This is supportive of the
Inspector's judgment.

 Although Western Fuels, in its Brief, repeats several times

the charge that Inspector Hollopeter's issuance of the Section
103(K) Order was to "preserve evidence"- an allegedly unauthorized
purpose, I find no direct or substantive support in the record,
arguments or briefs for making such a finding. Inspector
Hollopeter testified that he issued the subject order so that
could "go in and look at the area to insure the safety of the
miners" (T. 34). Scrutiny of the actions of the Inspector, from
the time of his notification of the accident through his ensuing
investigation and issuance of the Order and its three primary
modifications, supports the contention of the Petitioner that
"Throughout the course of the investigation, as Mr. Hollopeter
learned more of the accident and investigated the

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site, he was able to modify the order to keep in line with what
he knew, while still ascertaining that no further injuries would
occur." The nature of the possible hazards which the impact might
have sustained to the structure (See Ex. CÄ2) and the possible
problems with the truck which could have caused the bed to raise
without operator negligence, all adequately evidenced in this
record, would have made it irresponsible for the Inspector to
have (1) proceeded without issuing the Order, or (2) to have
terminated the Order prematurely. I find no support in the record
for the proposition that the Order was issued either routinely or
for the sole-or primary-purpose of preserving evidence pending a
post-accident investigation. (Footnote 4)

 Western Fuels' contention (Brief, p. 22) that "The inspector

used a club when a simple "please' would have been sufficient,"
ignores the responsibility placed on the Inspector by the Mine
Act to insure safety in such circumstances. (Footnote 5)

 There being no admissions or substantive or probative

evidence upon which to conclude otherwise, it is found that the
exercise of discretion by the Inspector in issuing the Order and
its modifications was appropriate in the circumstances and that
such Order and its modifications should be affirmed.

C. Docket No. WEST 87Ä167ÄR

Citation No. 2835326

 The "Condition or Practice" deemed a violation by Inspector

Hollopeter was described in Section 8 of the Citation as follows:

      "The operator did not immediately contact the MSHA
      District or Subdistrict office having jurisdiction over
      its mine of an accident which had injuries to two
      miners which had reasonable potential to cause death. A
      non fatal powered haulage accident occurred on 3/20/87
      about 9:25 a.m. in

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which an Euclid RÄ50 (Co No. 4) End dump haulage truck contacted
the No. 2 Beltline Conveyor overpass and the two miners in the
cab were seriously injured. MSHA Glenwood Springs, CO. field
office was notified of the accident 12 p.m. on 3/20/87."

 The standard alleged to have been violated was, 30 C.F.R.

50.10 (entitled "Immediate Notification") which is placed in the
codification system of the regulations under Subchapter M
(entitled "Accidents, Injuries, Illnesses, Employment, and
Production in Mines"), under Part 50 thereof (entitled
"Notification, Investigation, Reports and Records of Accidents,
Injuries, Illnesses, Employment and Coal Production in Mines")
and lastly under Subpart B thereunder (entitled "Notification,
Investigation, Preservation of Evidence"). Section 50.10
provides:

      "If an accident occurs, an operator shall immediately
      contact the MSHA District or Subdistrict Office having
      jurisdiction over its mine. If an operator cannot
      contact the appropriate MSHA District or Subdistrict
      Office it shall immediately contact the MSHA
      Headquarters Office in Washington, D.C., by telephone,
      toll free at (202) 783Ä5582."

 The issue posed by Western Fuels in connection with this

Citation is:

      "Does an operator violate the immediate reporting
      obligation of the regulations where he delays advising
      MSHA for 2 hours while devoting full attention to the
      rescue of injured miners, and where the delay does not
      exacerbate the rescue efforts or hinder the subsequent
      accident investigation?" (Footnote 6)

 It has been stipulated, and the record also reflects, that

the accident occurred at 9:25 a.m. and that Western Fuels
reported it to MSHA's Glenwood Springs Office at 12 noon (T. 107,
109, 448). This coincides with the 2 1/2 hour period of the

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rescue operation (T. 111). Evidence of record (Ex MÄ5) indicates
that passenger Mike Smith called in the accident on his two-way
radio (hand-held pack-set) at approximately 9:23 a.m.

 The first individual on the scene was a CocaÄCola delivery

man. When he first arrived at the scene he thought no one was in
the truck but upon investigation he saw and heard Mike Smith
calling on the radio for help. When he heard no response to the
first call for help, he got on Mike's radio and repeated the call
for help. Immediately upon receiving the call that two miners
were trapped in an overturned haul truck, the Western Fuels
ambulance was dispatched and the Rangely District Hospital was
notified at approximately 9:27 a.m. that their ambulance was also
needed. The Rangely Rural Fire Protection District was also
notified at this time. A Western Fuels Security Guard was
dispatched immediately to the scene and arrived at 9:26 a.m. This
security guard and the preparation plant foreman arrived in a
Ford pickup (security vehicle).

 Western Fuels' Safety Director at the time, Jerry Kowlok (T.

406), who did not testify, reported to Inspector Hollopeter that
he contacted the Glenwood Springs office at about 12 noon and
that he was "the only person designated to contact MSHA on an
accident" (T. 109, 110, 339, 421, 447, 466Ä467). Mr. Kowlok did
not make this report until after he had left the accident scene
(T. 448, 459, 460). Mr. Kowlok had a radio at the scene of the
accident, was in contact with his security base which had a
telephone, and thus had the means by which to immediately notify
MSHA of the accident (T. 335Ä336, 406, 429Ä430, 434, 459Ä460,
468Ä469).

 Some of the general purposes of immediate notification are

(1) determination of the type of accident, (2) getting the
nearest available MSHA inspectors to the accident site, (3)
allowing MSHA the opportunity to supply expertise to the
situation as well as special equipment and special rescue teams,
and (4) prevention of future accidents (T. 109Ä110). According to
the Inspector, however, no such rescue teams, etc. were actually
available for use in rescuing the two miners trapped in the truck
in the instant situation (T. 176Ä180). On the other hand, MSHA
was deprived of any opportunity to immediately investigate or be
present at the accident site to assist in rescue or attempt to
prevent further injuries. There was no allegation or evidence
that notifying MSHA would have been a futile act i.e., that based
on past inept performances by MSHA in accident situations, that
Western Fuels was justified in believing a 2 1/2 hour delay would
make no difference.

 Further, there was no evidence presented that it was

impossible- or even difficult- for Western Fuels to have notified
MSHA imediately (T. 335Ä340, 341, 361, 406Ä408, 420, 428Ä432,
460, 466Ä468). There clearly was available the means of

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communicating with MSHA and various management and other
personnel available to do it. It is thus concluded that the
violation as charged in the Citation occurred and that Western
Fuels was negligent in the commission of such. The regulation
infracted constitutes a highly important aspect of mine safety
process and enforcement in terms of both accident investigation
and assistance and is eroded only at considerable cost in the
perspective of future accidents and tragedies. The importance of
this regulation is related to the role Congress has mandated for
inspectors in the Act itself (See Sections 103(j) and (k)
thereof). Although the probability that the delay did not affect
rescue or investigation processes, the humanitarian interests of
Western Fuels' personnel, and the emotionally traumatic aspects
of the incident itself are to be inferred from the record overall
and stand in some mitigation of the considerable seriousness and
culpability to be attributed to the violation, (Footnote 7) the $20
penalty sought by the Secretary, being but a token sum, is not
considered appropriate. A penalty of $150.00 is assessed.

D. Docket No. WEST 87Ä168ÄR

Citation No. 2835327

 The "Condition or Practice" charged to be a violation by

Inspector Hollopeter was described in Section 8 of the Citation
as follows:

      "The equipment, Euclid RÄ50 (Co. No. 4) End dump
      haulage truck, being driven from the Pit 2Ä3 Refuse
      dump to the preparation plant was not secured in the
      travel position. A nonfatal powered haulage accident
      occurred, severely injuring the operator and passenger
      of the truck, when the raised truck bed struck the No.
      2 Beltline Conveyor Overpass. Through interviews it was
      determined that it is the Company policy to have the
      bed of the truck lowered when traveling."

 The standard allegedly violated was subsection (s) of 30

C.F.R. 77.1607 pertaining to "Loading and Haulage Equipment;
Operation", which provides:

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Page 15

~982
"When moving between work areas, the equipment shall be secured
in the travel position." (Footnote 8)

 Inspector Hollopeter designated this to be a "significant

and substantial" violation on the face of the Citation, giving
rise to what appears to be the contention raised by Western
Fuels: "Should an operator be charged with a significant and
substantial violation where a driver, contrary to common sense,
company policy, and specific operational instruction, operates a
dump truck without lowering the bed" (Western Fuels Brief, p.
33). It is noted parenthetically at this juncture that the
phraseology of this contention appears directed more to the mine
safety concepts of "liability without fault" and mitigation of
the penalty assessment criterion of negligence than to the
"significant and substantial" formula.

 I first find that it is a violation, whether or not a

"significant and substantial" one. Thus, in reaffirming the
strict liability or "liability without fault" doctrine's
application in mine safety matters in Western FuelsÄUtah, Inc.,
10 FMSHRC 256 (March 25, 1988), the Commission pointed out that
the principle of liability without fault requires a finding of
liability even in instances where the violation results from
unpreventable employee conduct. It thus rejected the notion of an
exception to the rule even for unforeseeable employee
misconduct. (Footnote 9) The parties have stipulated, and the record is
clear, that the accident occurred because the truck operator
failed to lower and secure the truck bed. The bed was raised when
the accident occurred (T. 408, 418Ä419). The truck thus was not
in "travel position" as the standard requires and Ackerman was
driving the truck between work areas when the accident occurred.
This constitutes a violation of the pertinent standard. For
purposes of liability- as distinguished from penalty assessment
purposes-- a miner's negligence or misconduct is properly imputed
to the mine operator. Secretary v. A.H. Smith Stone Company, 5
MSHRC 13 (1983). The question of negligence imputation for
penalty purposes will be taken up subsequently herein.

 In a recent decision Secretary v. Texasgulf, Inc., 10 FMSHRC

__ (April, 1988) the Commission reaffirmed its position as to
proof of significant and substantial violations:

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Page 16

~983
"Section 104(d)(1) of the Mine Act provides that a violation is
significant and substantial if it is of "such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30
U.S.C. 814(d)(1). A violation is properly designated
significant and substantial "if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal
Co., 6 FMSHRC 1, 3Ä4 (January 1984) the Commission explained:

             In order to establish that a violation of a
             mandatory safety standard is significant and
             substantial under National Gypsum, the Secretary
             ... must prove: (1) the underlying violation
             of a mandatory safety standard; (2) a discrete
             safety hazard -- that is, a measure of danger to
             safety -- contributed to by the violation; (3) a
             reasonable likelihood that the hazard contributed
             to will result in an injury; and (4) a reasonable
             likelihood that the injury in question will be of
             a reasonably serious nature.

        The Commission has explained further that the third
        element of the Mathies formulation "requires that the
        Secretary establish a reasonable likelihood that the
        hazard contributed to will result in an event in which
        there is an injury." U.S. Steel Mining Co., 6 FMSHRC
        1834, 1836 (August 1984) (emphasis deleted). We have
        emphasized that, in accordance with the language of
        section 104(d)(1), 30 U.S.C.   814(d)(1), it is the
        contribution of a violation to the cause and effect of
        a hazard that must be significant and substantial. Id.
        In addition, the evaluation of reasonable likelihood
        should be made in terms of "continued normal mining
        operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1574
        (July 1984)."

 In the circumstances of this case, the infraction of the

safety standard was clearly established, as well as the fact that
the violation contributed to the creation of a discrete safety
hazard. Not only was there a reasonable likelihood that the
hazard contributed to would result in an injury, but the hazard
actually occurred, that is, it came to fruition when the raised
truck bed struck the overpass structure, the direct result of
which were the serious injuries to Ackerman and Smith (T.
115Ä118, 408; Ex. MÄ5). This is found to be a "significant and
substantial" violation.

 We turn now to the questions of negligence and mitigation.

Mr. Ackerman was a full-time employee whose primary job was to

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Page 17

~984
drive the Euclid RÄ50 haul truck and another haul truck whose
dumping mechanism was similar to that of the Euclid. Ackerman
would normally (at least since December, 1986) make 8Ä13 trips a
day from the preparation plant to the refuse dump (T. 220Ä222,
286). Ackerman was familiar with the road-and by inference-the
presence of and characteristics of the overpass he was to travel
under (T. 283Ä286; See also "General Findings", supra).

 Western Fuels established that in December, 1986, Mr.

Ackerman had been trained in the operation of the Euclid RÄ50
truck by its Surface Area Foreman, Daniel J. Rideout (T.
216Ä218).

 This training covered proper dumping procedures which

Rideout described as follows:

      "The proper dumping procedures would be to make sure
      your area -- where you're backing on up to --- that there's no
      obstructions or anything in the way, like that. Try to
      be on as level ground as possible, and set your dump
      bed; put your truck in neutral, sound the horn, dump
      your load; lower your bed; sound your horn, again;
      release your dump brake; put it in gear, and that's
      basically it; you're done."
                          (T. 220) (emphasis added)

 Rideout described the Euclid RÄ50 as an "easy-to-drive",

stable truck which had no tendency to tip over, and said there
was no occasion on which it should be driven with the bed raised
(T. 225Ä226). Ridout reiterated the company "policy" of not
driving the truck with the bed raised and pointed out that such
is set forth also in the "Operator Handbook" for the truck, Ex.
CÄ7, at p. 33Ä35, (T. 227, 253, 293). Truck drivers were directed
to keep a copy of the Handbook in the truck and to read it in
their idle time (T. 228, 289). Rideout had never seen Ackerman
driving with the bed up and would have disciplined him had he
done so (T. 232Ä233). Rideout was certain that in meetings with
his drivers, which I conclude would have included Mr. Ackerman,
that the need for lowering the truck bed before traveling was
discussed (T. 248, 258, See also T. 288). The drivers, however,
were not specifically advised that the haul truck with the bed up
would not clear the overpass, nor were they specifically advised
what the height of the truck was with the bed raised (T. 258).
Nor were they specifically advised what the clearance of the
overpass was (T. 259). This was the only overpass the truck
drivers would have occasion to drive under (Tr. 259).

  The overpass was constructed in 1982 and would have been in

existence throughout Mr. Ackerman's tenure as truck driver (T.
251).

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Page 18

~985
At the time of the accident there was no sign or notice in the
cab of the truck to remind the driver to lower the bed (T. 270)
although such notice was apparently installed thereafter (T. 270,
323). There was an "indicator" (depicted in Exhibit CÄ11) which
comes down in front of the truck's windshield from which the
truck driver can determine if the bed was raised or lowered (T.
255Ä256, 262Ä263, 296).

 Jack L. Munfrada, a Surface Area Foreman, described the bed

indicator in the following examination sequence:

      "Q. Is there any other way, when you're sitting in the
      driver's seat, or in the passenger's seat, that you can
      see that the bed is in the air?

      A. Yes. There's a bed indicator on the bed of the
      truck. If the bed is lowered, it is in the right-hand
      corner, visually through the eight-inch window, and it
      is a round -- in diameter, approximately five inches, with
      a decal -- a red and white decal, with a black figure,
      pointing back towards the dump box. Also, you can see
      it through the driver's mirror, very plainly.

      Q. You can see the bed through the driver's --

      A. Yes. You could see it out the passenger door
      window -- you could see the headache rack. And, also, if
      the bed was up in the daytime, you'd notice the change
      in light." (T. 296Ä297). (Footnote 10)

 Based on its maintenance records and "Pre-shift Operator's

Check Lists", Western Fuels had no indication to believe that the
subject truck was not functioning properly in proximity to the
accident (T. 402Ä406, 410Ä413) and in the absence of any other
evidence to the contrary, and in light of the evidence indicating
operator failure as the cause of the bed not being lowered to
travel position, it is inferred and found that the truck was in
proper operating condition at the time of the accident.

 The record in this proceeding indicates that the cause of

the accident was the operator's failure to lower the bed before
proceeding on to the haul road and moving the vehicle to its
point of impact with the overpass structure.

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Page 19

~986
David G. Casey, Western Fuels' Safety Instructor, testified that
he visited Mr. Ackerman in the hospital on the day of the
accident and recounted this conversation concerning what had
happened:

      Q. And, did he explain to you what happened?

      A. Yes. And -- and he said that he spaced it -- he couldn't
      believe that he'd spaced it out.

                     XXX       XXX       XXX

      "The Witness: He couldn't believe that he'd spaced it
      out -- referring to the dump bed being up."
                                         (T. 455Ä456)

 When pressed to develop his understanding of Ackerman's use

of the phrase "spaced out", Mr. Casey stated:

      "The Witness: -- and he said "spaced out", and then we -- he
      said "I can't believe I f----- up", and he repeated
      it again, "I can't believe I did that", you know."
                           (T. 471)

 From this and other evidence of record indicating Ackerman

was a "good" employee who had received safety training (T.
439Ä445) it is concluded that the accident resulted from Mr.
Ackerman's negligent oversight in not lowering the bed of the
truck, and that such negligent conduct was not foreseeable by
Western Fuels' responsible management personnel. Southern Ohio
Coal Co., 4 FMSHRC 1459, at 1463Ä1464 (1982). In this connection,
it is further noted that there is no evidence of prior accidents
having occurred at the overpass (T. 465).

  While a mine operator is not necessarily shielded from

imputations of negligence even where non-supervisory employees
such as Mr. Ackerman are concerned, A.H. Smith Stone Co., 5
FMSHRC 13 (1983), for the negligence of the miner to be
attributed to the operator, consideration must be given the
foreseeability of the miner's conduct, the risks involved, and
the operator's supervision, training and discipline of its
employees. Here, the record indicates that the mine operator
fulfilled its obligations as to training and in the establishment
of its policy as to not operating the truck with the bed raised.
MSHA, in its brief does not contend (or discuss) imputation. Mr.
Ackerman's negligence in the commission of the violation will not
be imputed to Western Fuels, Southern Ohio Coal Co., supra, at
1465.

 In view of the seriousness of this violation, and upon

evaluation of the other general mandatory penalty assessment

---

Page 20

~987
factors previously discussed in connection with Citation No.
2835326, a penalty of $300.00 is determined to be appropriate and
assessed.

E. Docket No. WEST 87Ä169ÄR

Citation No. 2835328

 The "Condition or Practice" deemed a violation by Inspector

Hollopeter was described in Section 8 of the Citation as follows:

      "The No. 2 Beltline Conveyor Overpass above the haul
      road (County Rd. No. 78) was not conspicuously marked
      or warning devices installed when necessary to insure
      the safety of the workers. A nonfatal powered haulage
      accident occurred when an Euclid RÄ50 End dump (Co. No.
      4) raised bed contacted the overpass while traveling on
      the haulage road. The operator of the truck and
      passenger were severely injured. At the time of the
      investigation the overhead clearance was not marked.

 The standard allegedly violated was Subsection (c) of 30

C.F.R. 77.1600 (entitled "Loading and haulage; General") which
states:

      "Where side or overhead clearances on any haulage road
      or at any loading or dumping location at the mine are
      hazardous to mine workers, such areas shall be
      conspicuously marked and warning devices shall be
      installed when necessary to insure the safety of the
      workers."

 Although the Inspector originally charged that this was a

"significant and substantial" violation, the Citation was
subsequently modified to delete such designation upon further
investigation (T. 158Ä160).

 Western Fuels contends that the Conveyor (CNVÄ2) overpass

was not "hazardous to mine workers" and thus warning signs (or
devices) were not required.

 Evidence in the record establishes that other than speed

limit signs (T. 448) there were no signs, warnings, "clearance"
signs or flashing lights on the overpass structure or conveyor
(T. 118Ä121, 189Ä192, 245Ä246, 259, 463), or on the road on
either side of the structure (T. 189, 448). Specifically, there
was no sign on the overpass which said what the clearance was (T.
259). Inspector Hollopeter was of the opinion a hazard existed
because there was no sign warning of the clearance of the
overpass structure either on the structure itself or back along
the haul road (T. 121Ä125).

---

Page 21

~988
There are no regulations applicable in mine safety matters which
establish height requirements for structures such as the subject
overpass (T. 382).

 The U.S. Department of Transportation's Manual on Uniform

Traffic Control Devices (Ex. CÄ14) requires signs when less than
12 inches clearance is provided over the highest vehicle being
used on the roadway (T. 380Ä381).

 Chief Engineer Weigand expressed the opinion that prior to

the accident the overpass structure was not "dangerous"
"perilous" or "risky" (T. 386). As noted previously, there had
been no prior accidents at the overpass, and in view of (1) the
significant clearance height of the overpass (ranging from 20Ä27
feet approximately), (2) the general compliance of the structure
with requirements other governmental agencies (T. 380Ä384)), (3)
the general opinions of Western Fuels witnesses that the overpass
was not "perilous" or dangerous, (4) the vagueness of MSHA's
evidence and theory that the overpass was hazardous, and (5) the
fact that the accident under scrutiny herewas caused by the
forgetfulness of a truck driver who broke the rule against
driving with the bed raised and who had been passing under the
overpass some 20 times a day for months, it is concluded that the
overpass clearance was not "hazardous" within the meaning of the
regulation cited and that no violation occurred.

                               ORDER

 (1) Withdrawal Order No. 2835325 and its modifications are

affirmed.

 (2) Citations numbered 2835326 and 2835327 (including its

"Significant and Substantial" designation) are affirmed.

   (3) Citation No. 2835328 is vacated.

 Contestant/Respondent Western Fuels shall pay the Secretary

of Labor the total sum of $450.00 as and for the civil penalties
hereinabove assessed on or before 30 days from the date of this
decision.

                        Michael A. Lasher, Jr.
                        Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
Footnote starts here:-

~Footnote_one

1 The evidence of record also overwhelmingly established
that the driver of the truck, Ackerman, for whatever reason,
failed to lower the truck bed and then drove the truck
approximately 2 miles from the pit to where the bed struck the
overpass as the truck attempted to proceed underneath.

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Page 22

~Footnote_two

2 Upon the issuance of this second modification, the
coverage of the Order would have remained on the "curved arched
portion of the overpass structure", the truck, and the conveyor
belt (T. 153).

~Footnote_three

3 Although not well articulated by the witness, I infer that
this concern was directed toward the possible traumatic effect
the impact of the collision had on the structure.

~Footnote_four

4 The Inspector, under Section 103(j) of the Act, certainly
does have an independent obligation and responsibility to take
appropriate measures "to prevent the destruction of any evidence
which would assist in investigating the cause or causes" of an
accident.

~Footnote_five

5 The responsibility for determining structural damage to
the overpass and conveyor, any truck malfunction, and any patent
or latent safety hazards stemming therefrom, is recognized as a
considerable one. Any question in the mind of the sole person
bearing this burden in mine safety enforcement would necessarily
be resolved on the side of safety.

~Footnote_six

6 It is initially noted that the questions whether the delay
(1) exacerbated rescue efforts, or (2) hindered MSHA's
investigation, would relate more directly to the penalty
assessment factor of seriousness, rather than to the occurrence
of an infraction of the standard cited. Obviously, at the time of
delay in notification, the ultimate effects thereof may not be
recognizable and the elements of proof inherent in the
phraseology of the regulation contain no such exception for
situations where there is no prejudicial effect. A roof-control
requirement, for example, is not self-abnegating where the
violation of such does not cause an injury - causing fall.

~Footnote_seven

7 The parties, as part of their written stipulation (Court
Ex. 1) concurred that Western Fuels is a large bituminous coal
mine operator and that it proceeded in good faith in attempting
to achieve rapid compliance after notification of all the alleged
violations. As part of the same stipulation, the parties
submitted into evidence a computerized history of prior
violations (Ex. MÄ1) indicating that Western Fuels had 129
previous violations in the 2Äyear period preceding the issuance
of the subject Citations.

~Footnote_eight

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Page 23

8 "Travel position for the truck in question required the
bed to be secured in its lowered position (T. 113, 242, 253Ä254).
As noted in the Citation itself and established at the hearing,
Western Fuels' policy required the truck, when moving, to have
the bed in the lowered "travel" position (T. 112Ä115, 226Ä227,
310).

~Footnote_nine

9 I conclude elsewhere herein that the accident in question
occurred as a result of Mr. Ackerman's unforeseeable negligence.

~Footnote_ten

10 From this dialogue as well as other evidence (T. 255Ä259)
indicating other reasons why a truck driver would normally know
or be aware of the raised bed, I find and infer that for a driver
of the truck in question to proceed along the haul road with the
truck bed raised and not have such fact enter the stream of his
consciousness would be an unusual occurrence and one which would
not be foreseeable by his foreman or other management (T. 471).