Western Fuels-Utah, Inc.
Western Fuels-Utah, Inc. (FMSHRC WEST 87-251, WEST 87-166-R, WEST 87-167-R, WEST 87-168-R and WEST 87-169-R): Withdrawal order and two citations affirmed, one citation vacated
Apply this to your situation
This order from 1988 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
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
DDATE:
19880630
TTEXT:
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FMSHRC-DC
JUNE 30, 1988
WESTERN FUELS-UTAH, INC., CONTEST PROCEEDINGS
Contestant Docket No. WEST 87-166-R
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. 05-03505
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 FUELS-UTAH, 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 (Tr. 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 nonfatal powered
haulage accident occurred on the County Road 78 at the Beltline Conveyor
Overpass (CNV-2). Dale J. Ackerman, truck/light equipment operator, and
Michael G. Smith, heavy equipment operator, were seriously injured when the
Euclid, RD-50, 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 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.
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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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. 28-32). 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. 33-38, 55).
Following the meeting, Inspector Hollopeter, accompanied by Western Fuels'
Safety Director Jerry Kowlok, went to the accident scene, and then to Pit
2-3, 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 50-ton 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
2-lane 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, 44-48, 132, 256-257). 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. 60-61, 71, 362; Exs. M-11, 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. 52-53,
116; Ex. M-14).
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. M-6 through M-13)
(T. 41, 50-58).
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 18-24 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 87-166-R
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. 34-36, 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 R-50 (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 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 R-50 (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
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).
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order (T. 85, 86). The order did not prevent traffic on the haulage
road (County Road 78) from traveling under 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. 80-85). 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. 87-88) 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 mal-function 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. 74-76, 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. 147-149 ). 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
3/ Although not well articulated by the witness, I infer that this
concern as directed toward the possible traumatic effect the impact of
the collision had on the structure.
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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 poking' 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. 89-91)
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) having' security people stay at that area to
prevent people from going 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 --last
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 having a person there all the
time." (T. 90-91)
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. 92-94) 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. 93-96, 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. 98-100).
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 C-5, 10, 16 and 17
accurately depicted the damage to the structure immediately after the
accident (T. 362-368). Mr. Weigand indicated that his inspection disclosed
a 5-inch 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. 373-374) 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 30-year term (T. 374-376).
During the MSHA investigation in the 2-day period following the
accident, Mr. Weigand participated and gave his opinion to Inspector
Hollopeter that the structure "was safe" (T. 377-378 ). 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. 461-462).
As to that part of the Order pertaining to the truck, Mr. Laruiski
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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which an Euclid R-50 (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) 783-5582."
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?" 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
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.
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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. C-2) 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 reserving evidence pending a
post-accident investigation. 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. 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 87-167-R
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
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.
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.
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rescue operation (T. 111). Evidence of record (Ex M-5) 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 a.m. The
first individual on the scene was a Coca-Cola 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, 466-467). 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. 335-336, 406, 429-430, 434, 459-460, 468-469).
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. 109-110). 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. 176-180). 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 immediately
(T. 335-340, 341, 361, 406-408, 420, 428-432, 460, 466-468). 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) there-of).
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, 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 87-168-R
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 R-50 (Co. No. 4) End dump
haulage truck, being driven from the Pit 2-3 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:
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. M-1) indicating that Western Fuels had 129 previous
violations in the 2-year period preceding the issuance of the subject
Citations.
Page 15
~845
"When moving between work areas, the equipment shall be secured in
the travel position." 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 Fuels-Utah, 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. 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, 418-419).
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:
8/ "Travel position" for the truck in question required the bed to be
secured in its lowered position (T. 113, 242, 253-254). 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. 112-115, 226-227, 310).
9/ I conclude elsewhere herein that the accident in question occurred as a
result of Mr. Ackerman's unforeseeable negligence.
Page 16
~846
"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, 3-4 (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. 115-118, 408; Ex. M-5). 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
Page 17
~847
drive the Euclid R-50 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 8-13 trips a day from the preparation
plant to the refuse dump (T. 220-222, 286). Ackerman was familiar with the
road-and by inference-the presence of and characteristics of the overpass
he was to travel under (T. 283-286; See also "General Findings", supra).
Western Fuels established that in December, 1986, Mr. Ackerman had
been trained in the operation of the Euclid R-50 truck by its Surface Area
Foreman, Daniel J. Rideout (T. 216-218).
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 R-50 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. 225-226). Rideout
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. C-7, at p. 33-35, (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. 232-233). 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).
Page 18
~848
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 C-11) 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. 255-256, 262-263, 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. 296-297). 10/
Based on its maintenance records and "Preshift 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. 402-406,
410-413) 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.
10/ From this dialogue as well as other evidence (T. 255-259) 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).
Page 19
~849
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. 455-456)
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. 439-445) 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 1463-1464 (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
~850
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 87-169-R
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 R-50 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. 158-160).
Western Fuels contends that the Conveyor (CNV-2) 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. 118-121, 189-192, 245-246,
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. 121-125).
Page 21
~851
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. C-14) requires signs when less than 12 inches
clearance is provided over the highest vehicle being used on the roadway
(T. 380-381).
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 20-27 feet approximately), (2) the general
compliance of the structure with requirements other governmental agencies
(T. 380-384)), (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 here was 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
Page 22
~852
Distribution:
Karl F. Anuta, Esq., P.0. Box 1001, 2120 13th Street, Boulder, CO 80306
(Certified Mail)
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294
(Certified Mail)
United Mine Workers of America, Local 1984, District 15, Box 615,
Rangely, CO 81648 (Certified Mail)
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