Target Construction, Inc.

Plain-English summary

Target Construction operated an open-pit gold and silver mine where a haul truck went over a dump bank and the driver suffered crushing injuries that resulted in the amputation of both legs. The judge found that the dump berm was too low to prevent overtravel and that cracks showed the ground might fail to support a vehicle. Both conditions violated the cited standards, and the operator was negligent in permitting them. The two citations were affirmed, with civil penalties totaling $13,000.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.9054; 30 C.F.R. § 56.9055.
• Outcome: Orders/Citations 3286977 and 3286978 were affirmed, with penalties of $8,000 and $5,000.
• Key point: Dump-site berms and ground conditions must be evaluated against the weight and operation of the vehicles using the site.

Full text (FMSHRC public release)

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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 89-72-M
PETITIONER A.C. No. 04-04791-05510 F2M

      v.                             Morning Star Mine

TARGET CONSTRUCTION, INC.,
RESPONDENT

                          DECISION

Appearances: Patricia Jeanne Howze, Esq., Office of the
Solicitor, U.S. Department of Labor, San Francisco,
California, for the Secretary of Labor (Secretary);
Stephan G. Saleson, Esq., Gresham, Varner, Savage,
Nolan and Tilden, San Bernardino, California, for
Target Construction, Inc. (Target).

Before: Judge Broderick

STATEMENT OF THE CASE

 Following an investigation of an accident resulting in a

serious injury to a miner, MSHA issued two imminent danger
withdrawal orders, each alleging a violation of a mandatory
safety standard (30 C.F.R. 56.9054 and 56.9055). In this
proceeding, the Secretary seeks civil penalties for the
violations. Target denies that the alleged violations occurred.
Pursuant to notice, the case was called for hearing in Ontario,
California, on October 11, 1989. Vaughan Duane Cowley and Rodric
Breland testified on behalf of the Secretary. Daryl Rogers,
Daniel Ruminski, and Jeffery Fegert testified on behalf of
Target. Both parties have filed posthearing briefs. I have
considered the entire record and the contentions of the parties
and make the following decision.

FINDINGS OF FACT

 At all times pertinent to this proceeding, Target was the

contract operator of an open pit multiple bench gold and silver
mine in San Bernardino County, California, known as the Morning
Star Mine. Target operated the mine under contract with Heavy
Metals Development Company, a wholly owned subsidiary of
Vanderbuilt Gold Corporation. In 1989, the mine employed an

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average of 24 employees; approximately 120,000 man-hours per year
were worked at the mine. Target operated other facilities, but
the record does not disclose their size or extent.

 At about 8:00 a.m., April 12, 1988, MSHA was notified by

Target of an accident at the mine which was thought to have
resulted in a fatal injury to a miner. It was later reported that
the injury, though serious, was not fatal. Federal Mine Inspector
Vaughan Cowley and supervisory inspector Rodric Breland went to
the mine and at about 11:00 a.m. inspected the dump area where
the accident occurred, accompanied by Target officials. They
discovered that a large, 65 to 70 ton truck had gone over the
dump bank approximately 250 feet to the bottom of the dump. The
berm and other ground material for a distance of approximately 84
feet in width had gone over the bank with the truck. The
inspectors saw several cracks in the ground in the dump area, one
of which extended about 200 feet, crossing almost the entire dump
area. Another crack was seen 30 feet from the perimeter. The
inspector measured one of the cracks and found it to be 1 inch
wide and 2 inches deep. I find that these cracks in the ground
were as described by the inspectors. The cracks were obvious to
visual inspection. The ground of the bank sloped down toward the
perimeter. The downslope was determined to be a 2.8% grade. Loads
were being dumped at the edge of the bank. The evidence, and
especially the photographs of the bank, do not establish that the
ground subsided beneath Billingsley's truck to the extent that it
caused the vehicle to go over the bank.

 The berm was measured and varied from 22 inches to 38 inches

high. There was no support on the back side of the berm. Target
employed haulage trucks and dozers on the bank. The mid-axle
height of Target's largest truck was approximately 48 inches. It
was (and is) the common understanding in the industry that berms
should be at least as high as the mid-axle height of the largest
vehicle being operated on a bank.

 The truck in question was at the bottom of the bank, its

front wheels and diesel fuel tank having been separated from the
truck. The fuel tank was badly damaged and lay beside the truck.
The front wheel assembly with the wheels facing the bank, was
found below the truck (Ex. R-9 and 10). Diesel spills were seen
at two areas on the slope (Ex. R-5 and 6). Head phones were found
on the slope about 15 to 25 feet from the crest to the left of
the truck tire marks. The truck gear box showed the transmission
was between neutral and first gear. The truck driver, Bill
Billingsley, was rescued from the slope, at a point about 200
feet from the crest of the dump.

 Billingsley sustained severe crushing injuries which

resulted in the amputation of both legs. The inspector

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interviewed him in the hospital. He stated that he backed up to
the dump area, put the gear shift in neutral and "revved" the
motor to dump his load when he heard and saw the ground subsiding
behind him. He shifted to first gear before going over the slope
backwards. Billingsley stated that the gear shift linkage on the
truck was defective. Two other truck drivers told the inspector
that the gear shift linkage was troublesome; that the truck would
appear to be in neutral when it was actually in reverse. Neither
Billingsley nor either of the other employees was called as a
witness. Billingsley is no longer employed by Target. Cliff
Morrison, the night shift supervisor, had been at the scene when
the accident occurred, but was not interviewed by the inspector
and was not called as a witness. The bulldozer operator who was
responsible for the berm told the inspector that there was an
adequate berm when he was at the dump shortly before the
accident. He was not called as a witness. A mechanic was working
on a disabled truck in the area. He told a Heavy Metals engineer,
Daniel Ruminski, that the he did not hear a back-up alarm on
Billingsley's truck, nor did he hear a revving noise such as
occurs when a truck is dumping. However, neither did he hear
Billingsley's truck go over the side, nor another truck which
dumped after Billingsley. The mechanic was not called as a
witness.

 In September 1987, Target was cited by MSHA for a berm

violation which resulted in a fatal accident. At the close-out
conference following that citation Target was told that a berm
should as a minimum be as high as the mid-axle height of the
largest piece of equipment on the mine property. Sometime in 1985
a Target truck went over a dump. The driver jumped out and
sustained broken bones. On another occasion, a truck was reported
to have gone over with no injuries resulting. In March 1987, an
imminent danger withdrawal order was issued to Target for lack of
an adequate berm in the dump.

 On April 12, 1988, at about 2:30 p.m., Inspector Cowley

issued two section 107(a) orders of withdrawal citing a violation
of 30 C.F.R. 56.9055 because of unstable ground at the dump
site, insufficient to support the weight of the 65 ton haulage
trucks; and a violation of 30 C.F.R. 56.9054 because adequate
berms were not provided at the waste dump. The berm violation was
abated when Target established 48 inch berms completely around
the perimeter of the dump with two to one slopes on the front and
back sides. The ground violation was abated by compacting the
ground in the dump area and reversing the slope from a 2.8
percent downslope to a 2 percent up-slope. Both orders were
terminated on April 14, 1988, at 4:45 p.m.

 There was considerable testimony addressed to the question

of what caused the accident to Billingsley, and how the accident

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occurred. This evidence does not bear necessarily or directly on
the primary issues before me: did the alleged violations occur?
It may be important, however, in determining the gravity or
negligence if the violations or either of them are established.

 Respondent contends that Billingsley drove forward over the

bank either intentionally or inadvertently. It suggests that he
may have been listening to the radio (hence the reference to the
headset), and that he was tired and inattentive after working a
long shift. Target's production manager at the Moringstar Mine,
Clarence Darrell Rogers, testified that Billingsley was an
experienced truck driver and an excellent employee.

  Daniel Ruminski, a mining engineer for Heavy Metals,

supervised the contract with Target. Ruminski testified that he
initiated the first safety program at the mine. In his opinion,
Target was very safety conscious following the September 1987,
fatal accident. In Ruminski's opinion, the ground in the dump
area was stable before the April 1988 accident and the berm was
adequate. He admitted that he did not measure the berm, but
criticized the way MSHA measured it. He agreed that the industry
standard required a berm to be mid-axle height of the largest
vehicle in use. He disagreed with MSHA's position that the
industry standard required a berm to be twice as wide as it was
high.

 Ruminski took a number of photographs after the accident

(Exhibits R-5 through 15) in an attempt to determine how and why
the accident happened. He concluded that Billingsley drove the
truck forward through the berm and over the bank. He based his
conclusion on an analysis of the photographs and of the physical
conditions at the dump after the accident.

 Clarence Darrell Rogers, Target's production manager, was of

the opinion that the berm was adequate prior to the accident, and
that the ground was stable. Like Ruminski, he believed that
Billingsley had gone over the slope forward.

 I am unpersuaded by Ruminski's analysis and find on the

basis of the evidence before me that Billingsley's truck went
over the bank backward. Although he did not testify, Billingsley
told Inspector Cowley and his ultimate supervisor Rogers, that he
backed over the edge of the dump. I find it significant that
Billingsley was described by his superior as an experienced
driver and an excellent employee. He told the inspector that he
was having trouble with the gear shift linkage, and this was
corroborated by other drivers. Ruminski's opinion is based in
part on the statement of the mechanic that he did not hear a back
up alarm or the revving of the motor on Billingsley's truck. I
discount this, because the mechanic also did not hear the truck

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go over the dump, nor did he hear another truck unload
subsequently. Ruminski is not an accident reconstruction expert,
but a mining engineer. The extraordinary trauma involved in a
loaded 65 to 70 ton truck going over an embankment and coming to
rest 250 feet below can result in too many twists and turns and
revolutions to put much reliance on Ruminski's over-simplified
analysis. I place greater reliance on the statements of
Billingsley. Obviously, it would be more statisfactory to have
had his testimony, as well as that of the foreman, mechanic and
other truck drivers, but for various reasons these men were not
called as witnesses. Based on the statements of Billingsley and
his co-workers to the inspector, I find that the gear shift
linkage on the truck was defective. I find that the ground in the
dump area was unstable, as evidenced by the cracks in the
surface. However, the evidence does not establish that the
unstable ground by itself caused the truck to go over the bank.

REGULATIONS

 30 C.F.R. 56.9054 provided, as of April 12, 1988, as

follows:
Berms, bumper blocks, safety hooks or similar means
shall be provided to prevent overtravel and overturning
at dumping grounds.

 30 C.F.R. 56.9055 provided, as of April 12, 1988, as

follows:

      Where there is evidence that the ground at a dumping
      place may fail to support the weight of a vehicle,
      loads shall be dumped back from the edge of the bank.

ISSUES

 1. Whether the evidence establishes that Target failed to

provide berms at the waste dump sufficient to prevent trucks from
overtravelling the dump edge?

 2. Whether the evidence establishes that the ground at the

Morning Star Mine dumping place was such that it might fail to
support the weight of a 65 to 75 ton truck?

 3. If either or both of the above questions are answered

affirmatively, what is the appropriate penalty for the violation
considering the statutory penalty criteria?

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CONCLUSIONS OF LAW

                            I

 Respondent Target was at all times pertinent to this

proceeding subject to the provisions of the Mine Act in the
operation of the subject mine. I have jurisdiction over the
parties and the subject matter of this proceeding.

                            II

 There is direct and convincing evidence in the record that

the berm at Target's dump was not as high as the mid-axle height
of Target's largest vehicle. Although the standard in effect on
March 12, 1988, did not in terms require that it be at least of
mid-axle height (the standard adopted effective in September
1988, did specifically require that), the evidence is very clear
that such was a recognized industry standard, and that a berm of
that height is necessary to prevent overtravel. I reject the
conclusions of Target's witnesses that the berm was adequate when
the citations were issued. I conclude that the berm provided at
Target's dump, which was from 10 to 26 inches lower than mid-axle
height, was not sufficient to prevent overtravel and overturning.
I conclude that a violation of 30 C.F.R. 56.9054 has been
established.

                           III

 There is a dispute as to the existence and significance of

cracks in the ground in the dump area. I accept the testimony of
the federal inspectors as to the existence and extent of the
cracks (see findings of fact, page 2). I also accept their
conclusions that these extensive cracks constituted evidence of
unstable ground, evidence that the ground might fail to support
the weight of a vehicle. Therefore, I conclude that the evidence
establishes a violation of 30 C.F.R. 56.9055.

                            IV

 Target is a relatively small operator, employing

approximately 24 persons. There is no evidence in the record as
to its general history of prior violations, but there is evidence
of prior inadequate berm and unstable ground violations. This
history is significant, and will result in increased penalties
for the violations found herein. There is no evidence that the
imposition of penalties in these proceedings will affect Target's
ability to continue in business. The violations were abated
promptly in good faith.

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The inadequate berm violation was very serious. It contributed
directly to the accident and to the serious injury suffered by
Billingsley. The unstable ground condition in itself did not
contribute to the injury, but, combined with the downslope, it
constituted a very hazardous condition. It, too, was a very
serious violation.

 Target was certainly on notice of the critical importance of

providing adequate berms and stable ground in its dumping area.
It had experienced a number of accidents including a recent fatal
accident as an apparent result of violations of the two standards
involved herein. On the other hand, there is evidence in the
record that the berms were adequate some hours prior to the
accident which occurred on April 12, 1988. The location of both
the bank and the berm change of course as dumping continues.
Nevertheless, I conclude that Target was negligent in permitting
the inadequate berm here, and in permitting the unstable ground.

 Considering the criteria in section 110(i) of the Act, I

conclude that an appropriate penalty for the berm violation is
$8000, and an appropriate penalty for the unstable ground
violation is $5000.

                          ORDER

 Based on the above findings of fact and conclusions of law,

Orders/Citations 3286977 and 3286978 are AFFIRMED. Respondent is
ORDERED to pay within 30 days of the date of this decision the
following civil penalties for the violations found herein.

   ORDER/CITATION                        PENALTY

   3286977                               $ 5000
   3286978                                 8000
                                         $13000

                           James A. Broderick
                           Administrataive Law Judge