Ideal Cement Company

Plain-English summary

Ideal Cement operated a modified front-end loader without side screens while an employee used it inside a kiln. After a fatal accident, MSHA cited the company for operating equipment with a safety-affecting defect under 30 C.F.R. § 56.9002. On remand, the ALJ applied the reasonably prudent person test, found that the missing side screens affected safety, and assessed an $8,000 civil penalty. The Commission affirmed, holding that the record supported the violation finding and that the operator's lack of prior citation did not defeat enforcement.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9002
• Outcome: The Commission affirmed the ALJ's finding of a violation and the $8,000 civil penalty.
• Key point: A missing safety component can be an equipment defect affecting safety even when the operator claims the standard did not provide specific prior notice.

Full text (FMSHRC public release)

CCASE:
MSHA V. IDEAL CEMENT
DDATE:
19910918
TTEXT:

           FEDERAL MINE SAFETY & HEALTH REVIEW COMMISSION
                          WASHINGTON, D.C.
                           September 18, 1991

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

   v.          Docket No. WEST 88-202-M

IDEAL CEMENT COMPANY

BEFORE; Backley, Doyle, Holen and Nelson, Commissioners

                 DECISION

BY THE COMMISSION:

This civil penalty proceeding, arising under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (1988)(the "Mine
Act" or "Act"), is before the Commission a second time. This case
involves a dispute between the Secretary of Labor and Ideal Cement Company
("Ideal") concerning 30 C.F.R. 56.9002 (1988), a former mandatory safety
standard applicable to surface metal and nonmetal mines, requiring that
"[e]quipment defects affecting safety shall be corrected before equipment
is used." The Secretary cited Ideal under section 56.9002 for operating a
front-end loader without side screens. In his original decision in this
matter, Commission Administrative Law Judge John J. Morris vacated the
citation on the basis that section 56.9002 did not give Ideal adequate
notice that the absence of side screens constituted an "equipment defect
affecting safety." 11 FMSHRC 1776 (September 1989)(ALJ).

The Commission granted the Secretary's petition for discretionary

review of the judge's original decision. In its earlier decision, the
Commission had determined that the absence of the side screens amounted
to an "equipment defect" within the meaning of the standard and reversed
the judge's conclusion to the contrary. With respect to whether the
absence of side screens "affect[ed] safety," the Commission determined

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that the judge had incorrectly analyzed whether the standard provided
adequate notice under the circumstances of the conduct prohibited. The
Commission remanded the case so that the judge could resolve the issue
pursuant to the reasonably prudent person test." Ideal Cement Co.,
12 FMSHRC at 409 November) (1990) ("Ideal I"). In his decision on
remand, the judge, upon application of the reasonably prudent person
test, determined that the standard did apply to the circumstances in
issue and that the Secretary had established a violation of the standard.
13 FMSHRC 359 (March 1991)(ALJ). We granted Ideal's petition for
discretionary review. For the reasons that follow, we affirm the judge's
decision.

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~1347 I.

       Factual Background and Procedural History

 The facts in this matter have been amply set forth in Ideal I

(12 FMSHRC at 2409-12), and are summarized here. On October 20, 1987,
Tom Bertagnolli, an employee of Ideal, was involved in a fatal accident
inside a kiln while operating a modified front-end loader without side
screens. The uni-loader had been modified for certain tasks, including
kiln work, in the following respects: (1) the bucket was replaced by a jack
hammer attachment; (2) the side screens were removed; (3) the standard
wheels were replaced by high pressure, narrow wheels; (4) the Rollover
Protective Structure ("ROPS") was lowered; and (5) a screen and a plywood
shield were placed in the front of the uni-loader. At the time of the
accident, Mr. Bertagnolli was using the jack hammer attachment on the
uni-loader to remove worn brick from the kiln's ceiling.

 An inspector of the Department of Labor's Mine Safety and Health

Administration ("MSHA"), Darrel Woodbeck, and an inspector for the State
of Montana, Robert Stinson, investigated the accident. They concluded
that Bertagnolli had been crushed between the uni-loader's side arms and
the ROPS, that the uni-loader must have been running at the time of the
accident for the arms to have raised, and that Bertagnolli must not have
been wearing his seatbelt. Tr. 357, 375-76. Inspectors Woodbeck and
Stinson stated their belief that if the side screens had been in place
on the vehicle, it would have been impossible for Bertagnolli to place
himself in a position to be so injured. Tr. 257, 357. Inspector Woodbeck
issued a citation to Ideal pursuant to section 104(a) of the Mine Act,
30 U.S.C. 814(a), alleging a violation of section 56.9002. The inspector
noted that the citation was terminated when the side screens were
subsequently replaced on the uni-loader.

 The Secretary thereafter filed a proposed assessment of civil

penalty in the amount of $10,000 against Ideal for the alleged violation.
Following an evidentiary hearing, Judge Morris vacated the citation
because he concluded that section 56.9002 did not give Ideal adequate
notice that the absence of side screens constituted an "equipment defect
affecting safety." 11 FMSHRC at 1783, 1786-88. The judge acknowledged
that equipment defects within the scope of the standard are not limited
to components affixed to the equipment but also may take the form of
missing components. The judge determined, however, that a defect affecting
safety must impair the actual functioning or operation .of the equipment.
11 FMSHRC at 1785. He found that the missing side screens did not
constitute such a defect. Id.

The Commission granted the Secretary's petition for discretionary

Page 4

review of Judge Morris' original decision. On review, the Commission
determined that the judge erred in construing the standard to support a
finding of violation only when a defective or missing component effectively
impairs the operation of the equipment. 12 FMSHRC at 2414-15. The
Commission held that a missing piece of safety equipment may be as much a
"defect" as a malfunctioning operational component, and thereby satisfy the
first element of a two-pronged analysis of whether a condition constitutes
an "equipment defect" that

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"affect[s] safety." 13 FMSHRC at 2415. The Commission concluded that the
absence of the side screens amounted to an equipment defect within the
meaning of the standard and reversed the judge's decision to the contrary.
Id.

 With respect to whether the operator had sufficient notice that the

absence of the side screens affected safety, the Commission determined that
the judge erred when he applied a test that required Ideal to have received
explicit prior notice that the standard required attachment of the side
screens. 12 FMSHRC at 2415-16. The Commission concluded that the issue
was properly addressed through application of the reasonably prudent person
test. Id. Accordingly, the Commission remanded the case to the judge to
consider "whether a reasonably prudent person, familiar with the mining
industry and the protective purpose of section 56.9002, would have
recognized that the missing side screens on the uni-loader 'affect[ed]
safety' within the meaning of the regulation and would have remedied that
defect prior to any further use of the equipment." 12 FMSHRC at 2416. The
Commission provided the following guidelines for such analysis.

            The judge should examine the evidence in
  the context of the modified condition in which
  the uni-loader was being used at the time of the
  accident. The judge should examine and set forth
  findings and conclusions based on the evidence of
  record including but not limited to: (1) the
  testimony of the Ideal employees and the inspectors
  regarding whether operating the uni-loader in the
  kiln without side screens affected safety, taking
  into account the proximity of the side arms to the
  operator's cab; (2) any evidence regarding whether
  the presence of the side screens impeded the equipment
  operator's vision with respect to the work area;
  (3) any evidence regarding whether Ideal's safety
  policies prohibited removal of the screens; and
  (4) any evidence of industry or manufacturer's policy
  regarding the removal of the side screens and the
  circumstances, if any, under which the side screens
  could be removed without inspiring safety....

 In his decision on remand, the judge concluded that a violation

had been established. The judge determined that, under the circumstances
presented, a reasonably prudent person would have recognized that the
absence of the side screens affected safety within the meaning of the
standard. The judge found that safety would be affected in the context
of the kiln work in two ways: bricks could fall through the area of the

Page 6

missing side screens onto the uni-loader operator and the operator could
be pinched by the uni-loader's sidearms. 13 FMSHRC at 364.

In reaching the conclusion that a violation had occurred, the judge
considered each of the four factors suggested by the Commission in Ideal I.
supra. With respect to the first factor the judge found that: (1) the

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inspectors had concluded that the side screens were designed to prevent
contact with the lifting arms and that Bertagnolli would not have been
able to place himself in a position to be crushed if the side screens
had been in place; (2) there was evidence that the purpose of the side
screens is to "keep your arms out from underneath the loader while you
are operating it" and to prevent brick from falling on the uni-loader
operators lap (Tr. 404); (3) evidence indicated that when an operator
sits in the uni-loader "everything is pretty close" (Tr. 171), and
photographs "confirm[ed]" this testimony; and (4) the total distance
between the sidearms at mid-point was 45.4 inches. 13 FMSHRC at 360,
362-63.

With respect to the second factor listed by the Commission .. whether

the presence of the side screens impeded vision .. the judge noted evidence
that the screens had a tendency to impede side vision when the uni-loader
was backed down a ramp and out of the kiln, and that some employees
attached the side screens while others did not. 13 FMSHRC at 361, 363.
The judge determined that the vision impediment existed only when the
uni-loader was being backed out of the kiln and that such a problem could
be rectified by using a wider ramp. The judge further found that, in any
event, Bertagnolli was not engaged in backing up the uni-loader at the time
when he was crushed. 13 FMSHRC at 363-64.

With respect to the third factor .. whether Ideal's safety policies
prohibited removal of the screens .. the judge noted that Ideal's
supervisors did not require or prevent the use of the side screens, that
Ideal's safety policies did not prevent the removal of the side screens,
but that Ideal's safety manual contains a provision stating, in part, that
"[g]uards shall not be removed except for making repairs, cleaning,
dressing, oiling or adjusting and then only by authorized persons when
machines are stopped...." 13 FMSHRC at 361.63.

Concerning the fourth factor .. industry practices .. the judge stated
that the record contained "no evidence of any industry or manufacturer's
policy regarding the removal of the side screens and the circumstances
under which the side screens could be removed without impairing safety."
13 FMSHRC at 367.

The judge thus concluded that inasmuch as the Commission had
determined that the missing side screens constituted an equipment defect
and, in light of his new determination that their absence affected safety,
a violation of the standard had been established. He assessed a civil
penalty of $8,000. 13 FMSHRC at 365.

                   II.

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             Disposition of Issues

The essential issue presented on review is whether substantial
evidence of record supports the judge's conclusion in this case that,
upon application of the reasonably prudent person test, the missing side
screens affected

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safety within the meaning of section 56.9002. 1/ Ideal contends that
the evidence reveals: that the presence of the side screens would not
have prevented the uni-loader operator from being hit with bricks falling
through the front of the loader; that had Bertagnolli been wearing his
seat belt, as allegedly required by Ideal's safety policies, he would not
have been able to lean out of the uni-loader; that MSHA inspectors had
previously observed the uni-loader being operated without side screens but
had not issued any citations; and, that Ideal's employees did not consider
it unsafe to operate the uni-loader without side screens because, if they
had, they could have red-tagged the uni-loader and removed it from service
or installed the side screens. I. Br. at 9, 14, 16 n. 11.

The phrase "affecting safety" in the standard has a wide reach and

the "safety effect of an uncorrected equipment defect need not be major or
immediate to come within that reach." Ideal I. 12 FMSHRC at 2415, citing
Allied Chemical Corp., 6 FMSHRC 1854, 1858 (August 1984). The first safety
effect found by the judge was the danger of falling brick. Although brick
could have fallen through the front of the uni-loader, as pointed out by
Ideal, Ideal's employees acknowledged that the side screens were used to
keep

1/ Ideal argues that the judge's conclusion of violation is not supported
by a "preponderance" of the evidence. Section 113(d)(2)(A)(ii)(I) of the
Mine Act provides that the Commission's review is based on whether the
judge's findings are supported by substantial evidence. See, e.g.,
Secretary v. Michael Brunson, 10 FMSHRC 594, 598 (May 1988).
Ideal has raised additional arguments. Ideal argues that the
absence of the side screens does not constitute an "equipment defect" and
maintains that the Commission retroactively determined that the absence of
the side screens was a "per se violation of this broadly worded standard."
I. Br. at 5. The Commission did not hold that the absent side screens
constituted a "per se violation" of the standard but determined that the
first element of the two-pronged analysis had been established. The
Commission remanded the remaining safety.effect issue to the judge.
12 FMSHRC at 2415. We choose not to re-examine this issue further.
Ideal also contends that the judge improperly relied upon
uncorroborated hearsay and speculation to reach his conclusion that "the
absence of the side screens resulted in the accident." I. Br. at 15.
The Commission has determined that hearsay evidence is admissible in its
hearings, so long as it is material and relevant. Mid-Continent Resources,
Inc., 6 FMSHRC 1132, 1135 (May 1984). However, even if we were to conclude
that the judge's finding that the "absence of the side screens resulted in
the accident" was not supported by substantial evidence, it would not be
determinative of whether a violation of the standard occurred. Lone Star
Industries, Inc., 3 FMSHRC 2526, 2529 (November 1981). The judge did not

Page 10

find a violation because the "absence of the side-screens resulted in an
accident." Rather, he found that a violation was established because the
missing screens affected safety in that they allowed the uni-loader
operator to lean out of the cab or get his arms caught or pinched by the
lifting arms, or allowed bricks to fall into the operator's lap. 13 FMSHRC
at 364.

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brick from falling on the uni-loader operator. Stephen Carey, an Ideal
heavy equipment operator, testified:

  I came out on a B shift, and the side screens were
  off at that time, and I knew the machine, and, when
  you're knocking brick out, you always had a chance
  of catching a brick coming into your lap or whatnot,
  and I knew the machine, I think, a lot better than
  most people did, and so I went down ... and got the
  screens and ... put them on myself....

Tr. 88. Mr. Carey also stated that the purpose of the side screens was to
prevent brick from falling onto the uni-loader operator's lap. Tr. 115.
Bert Todd, an Ideal yard foreman, testified that the purpose of the side
screens was to prevent "falling rock [from] coming down when you are
loading" and "to keep your arms out from underneath the loader while you
are operating it. Tr. 404.

The judge also found that the absence of side screens could allow a

uni-loader operator to be pinched or crushed by the side arms. The judge
noted that Stanley Veltkamp, an Ideal employee, testified that "everything
is pretty close" inside the uni-loader (Tr. 171). Such testimony is
corroborated by the photographs of the uni-loader. E.g., Exhs. R-2, P-6,
8-12, 16.18. Inspector Stinson testified that the purpose of the side
screens was to prevent the uni-loader from contacting the uni-loader
sidearms. Tr. 253-54. Inspector Woodbeck testified that Bertagnolli had
been crushed between the sidearms of the uni-loader and the ROPS. Tr. 357.
He explained that, if the side screens had been present on the uni-loader,
it would not have been physically possible for Bertanolli to place his body
over the sidearms. Id.

The foregoing testimony and other evidence constitutes substantial
evidence to support the judge's conclusion that a reasonably prudence
person, familiar with the mining industry and the protective purpose of
section 56.9002, would have recognized that under the circumstances in
which the uni-loader was being used, the missing side screen affected
safety within the meaning of the standard.

We reject Ideal's argument that it is not liable for any violation

in this case because of Bertagnolli's failure to wear a seat belt (as
allegedly required by Ideal), which would have prevented him from leaning
out of the uni-loader. Under the liability scheme of the Mine Act, an
operator is liable for the violative conduct of its employees, regardless
of whether the operator itself was without fault and notwithstanding the
existence of significant employee misconduct. See, e.g., Asarco, Inc. -

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Northwestern Mining Dept. v. FMSHRC and AMC, 868 F.2d 1195, 1197-98 (10th
Cir. 1988), and authorities cited. Moreover, this case does not involve a
seatbelt violation, but rather, whether the missing side screens affected
safety. 2/

2/ We note that the importance of seatbelts, which are required to be
worn under current Mine Act regulations. See, e.g., 30 C.F.R. 56.14130(g)
(Present mandatory safety standard for surface metal and nonmetal mines).

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We find similarly unpersuasive Ideal's argument that it did not
receive adequate prior notice of the standard's requirements because MSHA
had not previously cited Ideal for operating the uni-loader without side
screens. Relying on settled Commission precedent, we reject Ideal's
assertion that equitable estoppel should be applied against the Secretary.
See. King Knob Coal Company, Inc., 3 FMSHRC 1417, 1421-22 (June 1981).

For the foregoing reasons, we affirm the judge's decision. 3/

                 Richard V. Backley, Commissioner

               Arlene Holen, Commissioner

3/ Chairman Ford did not participate in the consideration or disposition
of this matter.

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Distribution

James J. Gonzales, Esq.
Holland & Hart
555 Seventeenth St., #2900
P.0. Box 8749
Denver, Colorado 80201

Jerald Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Blvd.
Denver, Colorado 80204