California Portland Cement Company

Plain-English summary

California Portland Cement Company operated the Mojave Cement Plant, where seven parked railcars rolled down a track and seriously injured a welder. Judge John J. Morris found that the railcars were not securely blocked even though the brakes held them for several hours, because air leakage and a frozen valve eventually reduced their braking capacity. He affirmed the citation for violating 30 C.F.R. § 56.9047 and found moderate negligence and high gravity. A $600 civil penalty was assessed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9047
• Outcome: Citation No. 3287171 was affirmed, and a $600 civil penalty was assessed.
• Key point: Railcars must be securely blocked when their brakes do not effectively hold them, even if the brakes initially keep them stationary.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. CALIFORNIA PORTLAND CEMENT
DDATE:
19891229
TTEXT:

Page 2

~2621
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 88-243-M
PETITIONER A.C. No. 04-00036-05523

      v.                            Mojave Cement Plant

CALIFORNIA PORTLAND CEMENT
COMPANY,
RESPONDENT

                             DECISION

Appearances: George B. O'Haver, Esq., Office of the Solicitor,
San Francisco, California,
for Petitioner;
Scott H. Dunham, Esq., O'Melveny & Myers,
Los Angeles, California,
for Respondent.

Before: Judge Morris

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

Health Administration, (MSHA), charges respondent, California
Portland Cement Company, with violating 30 C.F.R. 56.9047, (FOOTNOTE 1)
a safety regulation promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. 801 et seq., (the "Act").

 After notice to the parties a hearing on the merits was held

in Los Angeles, California.

 The parties filed post-trial briefs.

Page 3

~2622
STIPULATION
At the commencement of the hearing the parties stipulated as
follows:

    1. The respondent is the owner and operator of the subject

mine.

 2. The respondent and the mine are subject to the

jurisdiction of the Federal Mine Safety and Health Act of 1977.

    3. The Administrative Law Judge has jurisdiction in this

case.

 4. The Federal Mine Safety and Health Administration

("MSHA") inspector who issued the subject citation was an
authorized representative of the Secretary of Labor.

 5. A true and correct copy of the subject citation was

properly served upon respondent.

 6. A copy of the subject order or citation and narrative

findings for a special assessment at issue are authentic and may
be admitted into evidence for purposes of establishing their
issuance, but not for the purpose of establishing the
truthfulness or relevance of any statements asserted therein.

 7. The imposition of the civil penalty in this case will not

affect the respondent's ability to continue in business.

    8. The alleged violation was abated in good faith.

 9. The respondent's history of prior violations is described

in the narrative findings for special assessment.

    10. The respondent is a large operator.

 11. Ronald Harrison, an employee of the respondent, was

seriously injured when a train of seven Southern Pacific Company
railroad cars rolled down a track and hit him.

 12. The train of seven cars was parked on approximately a 4%

grade approximately 164 feet beyond where the employee was
welding on the track. The cars had been parked on the track for
at least five hours prior to the time the accident occurred.

 13. Before beginning work on the track, the employee

visually inspected the first car and determined that the air
brakes were engaged on that car and tightened the pull chain
which provides an additional manual brake on the cars.

Page 4

~2623
14. The cars of the train were not blocked in any way.

 15. The employee began work on his shift at 3:00 p.m. on

February 19, 1988. At approximately 8:00 p.m., the brakes which
had been holding the cars of the train in place failed to the
extent that the cars rolled from their parked spot on the track
striking the employee.

 16. An engineering analysis of the brakes on the railcars

conducted by an independent laboratory following the accident
revealed that the brakes on the four westernmost cars of the
train were defective. (A copy of a preliminary analysis as well
as a final analysis by Vollmer-Gray, Engineering Consultants, is
attached hereto as Exhibit A.) The valve connecting the fourth
and fifth cars was also frozen in a closed position. Thus, there
was no air brake application affected on the easternmost three
cars. The movement of the railcars was caused by air leakage from
the air brake system of the four westernmost cars. This resulted
in a pressure decay which eventually (over a period of
approximately 6-1/2 hours) released the brakes on all the
railcars.

                                ISSUES

 On the undisputed facts the issues are whether a violation

of 30 C.F.R. 56.9047 occurred. If a violation occurred, then
what penalty is appropriate.

                             THE EVIDENCE

 EARL WAYNE McGARRAH, an MSHA inspector, is a person

experienced in mining (Tr. 10, 11).

 On February 22, 1988, he conducted an accident investigation

at respondent's cement plant. During his inspection he learned
that a string of seven parked and loaded railcars, had been moved
from their parking spot and rolled over a welder's hand. At the
time the welder was welding a frog(FOOTNOTE 2) on the track (Tr. 11, 12;
Ex. P-1, P-2). Inspector McGarrah also observed the brake shoes
on the railcars. On car number 3 there were three missing brake
shoes (Tr. 15, 16; Ex. P-3). This condition was obvious and it
was not necessary to crawl under the car to take pictures of the
condition (Tr. 16).

Page 5

~2624
The air valve on the fourth car was frozen in a closed position.
It could not be opened by hand (Tr. 17; Ex. P-4). A valve in this
position prevented the air from setting the brakes on the
following three railcars. Since the parked cars were not blocked
they rolled. The brakes did not hold them effectively.

 A block under a wheel, on the downgrade side, will keep cars

from rolling (Tr. 18).

 After the accident the cars were blocked with a factory-type

block (Tr. 19).

 Inspector McGarrah learned the company had set the air

brakes and one hand brake(FOOTNOTE 3) before the accident occurred.

 REUBEN PAUL VOLLMER testified for respondent. Mr. Vollmer, a

professional engineer, specializes in reconstructing accidents
and failures involving train accidents (Tr. 27 - 30).

 On February 22, 1988, he inspected the railcars involved in

this accident (Tr. 32).

 He found the brake linings were adequate on all the railcars

with the exception of car No. 3 which had broken shoe material.
On two of the brakes the shoe material was completely worn away
(Tr. 33). The lack of brake lining would not affect a train at
rest (Tr. 38, 46).

 He also learned that each of the four cars had been charged

with air prior to the accident. In addition, the angle valve on
the brake pipe between cars 4 and 5 was closed. Due to the closed
valve(FOOTNOTE 4) the air brakes would not be functioning on the
easternmost three cars (Tr. 33).

 Mr. Vollmer did a leakage test on the brakes. The charging

system was set at 70 pounds per square inch. The test was made to
determine if the brake locks tightened on the wheels of the cars
when the brakes were applied (Tr. 34, 35). Mr. Vollmer's test
established the brake system was functional and operating on the
four cars (Tr. 35).

Page 6

~2625
Other tests by witness Vollmer included monitoring the air
cylinders which operate the linkage to the brake locks of each
wheel. It was found that cars 1, 2 and 4 bled down in
approximately one and one-half hours. Car No. 3, the one with the
least service, held for approximately six and one-half hours
before it bled. In other words, the brakes on Car No. 3 were
effective for six and one-half hours. If the brakes were set on
one car of a seven-car train and there was no air leakage the
brakes would effectively hold the train "forever" (Tr. 35, 36).

 A test was also conducted by applying leak-detector solution

to all the fittings visible on the railcars. This test indicated
there were relatively significant leaks on Cars 1, 2 and 4. There
was no indication of the air leaks unless a person got close to
the fittings. In such a position you could audibly hear the air
movement, similar to a sizzling sound (Tr. 36, 37, 42). The air
leaks caused the cars to move. However, the cars had been held
effectively braked for six and one-half hours (Tr. 44).

                           DISCUSSION

 The regulation   56.9047, simply provides that parked

railcars "unless held effectively by brakes" shall be securely
blocked. The regulation itself does not further define nor
discuss the meaning of "effectively held by brakes." It is
accordingly appropriate to consider the ordinary meaning of the
words.

 Webster's dictionary(FOOTNOTE 5) defines "effective," the

adjective, as "producing a decided, decisive or desired effect."
Effectively is listed as the adverb for "effective."

 This definition, which is its primary meaning of the word,

indicates the brakes here did not produce the desired nor
decisive effect.

 Respondent contends no violation occurred because the brakes

held for at least five hours. (In fact, the evidence establishes
the brakes held for six and one-half hours.) Respondent argues
the Secretary's interpretation is improper because it would
render the phrase "unless effectively blocked" meaningless. By
phrasing the regulation in the terms it did, the Secretary
intended that railcars could be parked without the use of blocks.

Page 7

~2626
Respondent also argues that if the Secretary desires that
railcars always be blocked, she could have explicitly so stated
(Brief at 5). In short, respondent argues the Secretary's
position emasculates the regulation and eliminates the portion
providing "unless held effectively by brakes" (Tr. 9).

 I disagree with respondent's contentions. Respondent's

construction would rewrite the regulation to read that "railcars,
unless held effectively for at least five hours, by brakes, shall
be blocked securely." Such a regulation would not promote the
safety of miners.

 The Commission and the appellate courts have repeatedly

stated that if there is a conflict between an interpretation that
promotes safety and an interpretation that would serve another
purpose as a possible compromise of safety the first should be
preferred. District 6, United Mine Workers of America, v. United
States Department of Interior Board of Mine Operations Appeals,
562 F.2d 1260, 1265 (D.C. Cir. 1977). See also Pittsburg and
Midway Coal Mining Company, 8 FMSHRC 4, 6 (1986).

 Section 56.9047 reasonably addresses the various safety

issues that may be present in any factual scenario. Whether
parked railcars can be held effectively by brakes would no doubt
depend on the number, weight and length of the railcars, the
track grade and the condition of the braking systems (air and
manual).

 I have considered respondent's engineering analysis and the

testimony of its expert witness. But I conclude Mr. Vollmer
simply confirmed the railcars moved when air leakage caused a
pressure decay in the air brake system (Tr. 46, 47). I further
note that this air leakage could have been detected. In addition,
the frozen closed valve on Car No. 4 was readily observable. The
leakage of air and the closed valve reduced and eventually
eliminated the braking capacity of the railcars.

 For the foregoing reasons the citation herein should be

affirmed.

                        CIVIL PENALTIES

 The statutory criteria for assessing a civil penalty is

contained in Section 110(i) of the Act, now codified at 30 C.F.R.
820(i)

Page 8

~2627
Considering these factors I conclude that respondent is a large
operator (Stipulation 10).

 The imposition of a penalty will not affect respondent's

ability to continue in business (Stipulation 7).

 A favorable history appears in that respondent has been

assessed for 23 violations in the preceding 24 months
(Stipulation 9).

 Respondent's negligence is moderate. The operator could have

detected the leaking air in the brake system or observed the
closed valve.

 The gravity is high inasmuch as a workman's hand was

severed.

 Respondent abated the violative condition and is entitled to

statutory good faith.

 On balance I deem that a civil penalty of $600 is

appropriate.

    For the foregoing reasons I enter the following:

                                ORDER

 Citation No. 3287171 is affirmed and a civil penalty of $600

is assessed.

                               John J. Morris
                               Administrative Law Judge

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
FOOTNOTES START HERE
~FOOTNOTE_ONE
1. The cited regulation reads as follows:

        56.9047 Securing parked railcars.
      Parked railcars, unless held effectively by brakes,

shall be blocked securely.

~FOOTNOTE_TWO
2. A frog is part of the switch that guides the cars onto
another track (Tr. 12, 13).

~FOOTNOTE_THREE
3. The end hand brake looks like a wheel on the top of the
westernmost car on the downgrade (Tr. 20, 25). The brake works
like an emergency brake on an automobile (Tr. 25). It furnishes
additional braking power (Tr. 26).

~FOOTNOTE_FOUR
4. This valve appears in Exhibit P-4 (Tr. 34).

~FOOTNOTE_FIVE
5. Webster's New Collegiate Dictionary, 1973, at 359.