Secretary of Labor v. Justice Energy Company, Inc.

Plain-English summary

Justice Energy contested six citations involving contractor and company trucks, dusty haul roads, a dump-site berm, and a rock in the roadway at its surface coal mine. Judge Jeffrey Tureck upheld a contractor-truck maintenance citation but reduced the mine operator's negligence and penalty because the contractor owned and maintained the truck. He vacated a fire-hazard citation because MSHA did not prove that leaked oil and coal dust could ignite at the engine's operating temperature. He also vacated the roadway-rock citation because the standard required the road to be reasonably free of debris, and the single fallen rock was being promptly removed. The dump-site berm violation was affirmed, while the dust and fuel-truck citations were reduced to non-significant-and-substantial violations. Including three uncontested citations, Justice Energy was ordered to pay $3,802.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.404(a), 77.1104, 77.1605(l), 77.1607(i), and 77.1608(a)
• Outcome: Two contested citations were vacated, three were modified, one was affirmed, three uncontested citations remained, and total penalties were set at $3,802.
• Key point: MSHA had to prove the specific alleged hazard, while contractor responsibility and prompt road maintenance reduced the operator's culpability.

Full text (FMSHRC public release)



FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331
PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

June 4, 2013

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

v.

JUSTICE
ENERGY COMPANY, INC.
Respondent
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CIVIL PENALTY PROCEEDINGS

Docket
No. WEVA 2011-220
A.C. No. 46-06578-000234420

Docket No. WEVA
2011-629
A.C. No. 46-06578-000240531

Mine: Red Fox Surface Mine

DECISION

Appearances:

For
the Secretary: Douglas L. Sanders, Esq., Denver, CO

For
the Respondent: James F. Bowman, Midway, WV

Before: Judge Tureck

This case is before me on two
Petitions for Assessment of Civil Penalty filed by the Secretary of Labor
(“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Justice Energy Company, Inc. (“Respondent”), pursuant to
Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §§815 and 820 (“ Mine Act”). The first, filed on April 27, 2011, was
docketed as WEVA 2011-220. It alleges a single violation of the Mine Act and
assessed a penalty of $176. The second, filed on April 28,
2011, was docketed as WEVA 2011-629. It alleges eight
violations of the Mine Act and assessed $10,659 in penalties. Respondent has
accepted three of the citations in Docket No. WEVA 2011-629 and has agreed to
pay the assessed penalties.

Respondent contends that
five of the remaining citations should be vacated, and the penalty be reduced
due to a lower level of negligence in the remaining citation.

A
formal hearing was held in Beckley, West Virginia on October 23, 2012. At the
hearing, Government Exhibits 1-13, and Respondent’s Exhibits 1-3, were admitted
into evidence,

and each party provided
testamentary evidence. A list of stipulations was submitted as Joint Exhibit 1.
Both parties then filed post-hearing briefs, the last of which was received on
February 12, 2013.

Findings of Fact
and Conclusions of Law

Respondent
operates the Red Fox surface coal mine (“the mine”) located in McDowell County,
West Virginia. It is a mountaintop removal mine. TR1 109. The parties stipulated
that Respondent is a large size mine operator under the Mine Act. JX 1.
Respondent is a subsidiary of Mechel Bluestone. TR 207.

Either
very late on October 13, 2010 or just after midnight on October 14, 2010, MSHA
inspector Joseph Jones was conducting an inspection of the mine. Jones had
started at MSHA in 2008, and received his AR card in 2009. Prior to working at
MSHA, he had worked in the mining industry, both underground and at surface
mines, for 16 years. TR 21-23. At 12:25 a.m. on October 14, Jones issued two
citations to Respondent, Nos. 8110204 and 8110205, concerning the same truck, a
773B Cat haul truck,

which was owned and operated by an independent contractor, Appalachian Leasing.
Appalachian Leasing also was cited for these violations. TR 57, 61. The truck
was hauling refuse from a preparation plant to the dump at the mine. GX 5, 7; TR

25. Citation 8110204 listed nine separate defects regarding the haul truck which
    were alleged to have been in violation of 30 C.F.R. §77.404(a).

That section of the regulations requires mobile equipment to be maintained in
safe operating condition and to be removed from service immediately if in unsafe
condition. He also issued Citation 8110205 regarding the haul truck for
violating §77.1104, which states that “[c]ombustible materials, grease
lubricants, paints, or flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.” For both of these violations the citations
state that injury was reasonably likely and could reasonably be expected to be
fatal; they resulted from high negligence; and were significant and substantial
(“S&S”). Respondent was assessed a penalty of $3,996 for each of these
violations. Respondent contests the determination of high negligence in Citation
8110204. For Citation 8110205, Respondent contests the occurrence of the
violation and the finding of high negligence. Respondent also contends that the
violation in Citation 8110205 is duplicative of Citation 8110204.

The
other citations still in contention were issued by MSHA Inspector Jeff Presley.
Presley began working for MSHA in 2007, and received his AR card in 2008. Prior
to working for MSHA, he had worked in the mining industry in underground mines
since the early 1990's. TR 88-89. He testified that although he did not work in
surface mines, all underground mines have surface areas and use large equipment
aboveground, so he was familiar with what goes on at surface mines even prior to
his MSHA training. Further, a large part of his MSHA training occurred in
surface mines. TR 89-90.

Presley
conducted three inspections of the mine which resulted in the issuance of
citations. On August 27, 2010, he issued Citation 8117589 for not using adequate
dust control measures in violation of §77.1607(i). GX 9. Presley testified that
he observed two very large rock trucks driving “head on” towards each other on
the main haul road, and when the trucks approached each other “the cloud of dust
just engulfed both of them.” TR 92. However, both trucks stopped without
colliding. TR 92. Injury from this violation was found to be reasonably likely
and could reasonably be expected to be lost workdays or restricted duty;
negligence was low; two people would be affected; and the violation was S&S.
Respondent was assessed a penalty of $176 for this violation. Respondent
contests the occurrence of this violation.

Presley
also inspected the mine on October 12 and November 2, 2010. The citations issued
on October 12th have been resolved and are no longer at issue. He
issued three citations on November 2nd.. Citation 8069361 alleges a
violation of §77.1605(l), which states that “[b]erms, bumper blocks, safety
hooks, or similar means shall be provided to prevent overtravel and overturning
at dumping locations.” The citation states that “[t]he berms at the dump site
above the main haul road are not being maintained to mid axle of the equipment
being used.” Presley testified that he was at the dump site and observed a rock
haul truck backing up to the berm. He stated that the berm was well below
mid-axle height. He estimated that the berm was only about 36 inches high
whereas mid axle on the truck was about 68 or 72 inches. TR 102-03. He believed
that the berm was not close to being high enough to prevent one of these huge
haul trucks from backing over it and overturning. TR 106. The citation lists
injury to be reasonably likely and could reasonably be expected to be lost
workdays or restricted duty. Presley explained that the drop off at the dump
site was not great and he “don’t believe the distance was great enough that the
truck’s going to roll enough times or be such a severe accident that it would
permanently disable or kill somebody.” TR 107. Further, he found Respondent’s
negligence to be moderate and the violation to be S&S. A penalty of $362 was
assessed for this violation. Respondent contests the occurrence of the
violation.

Citation
8069362 (GX 12) alleges a violation of §77.1608(a), which requires dumping
locations and haulage roads to be kept “reasonably free of water, debris and
spillage.” Presley observed a rock in the middle third of the main haul road
(TR1 110-11) which he has described a being “1.5 times the size of a basketball”
(id.), “beach ball size roughly. The size of a car tire” (TR111). He
noted that the rest of the road was in good condition, and this was the only
rock on it which could pose a hazard to the trucks. TR 112. Presley testified
that the haul road where the rock was located was a “high traffic area.” TR 117.
The huge haul trucks, other heavy mine equipment, small trucks and personal
vehicles use it. TR 111, 116-17. He believes that a haul truck’s tire could hit
the rock, causing the truck to overturn or the rock to be propelled and hit
another vehicle. TR 116. The citation states that injury was reasonably likely
and could reasonably be expected to be lost workdays or restricted duty.
Negligence was alleged to be moderate, and the violation was S&S. A penalty
of $362 was assessed for this violation. Respondent contests the occurrence of
the violation.

Citation
8069363 alleges a violation of §77.404(a). It states that Respondent’s fuel
truck was not being maintained in safe operating condition, alleging five
defects. GX 13. The citation states that injury was reasonably likely and could
reasonably be expected to be lost workdays or restricted duty. Negligence was
listed as high, and the violation was found to be S&S. A penalty of $1,203
was assessed for this violation. Respondent contests both the occurrence of the
violation and the finding of high negligence.

Discussion

Citation 8110204

Inspector
Jones found that the 773B Caterpillar haul truck had the following safety
defects:

1. The ball stud that connects the left steering
   jack to the bell crank has excessive slack.

2.
The left rear tires have 35 psi; they should have 85 psi.

3.
The keeper on the upper pen for the passenger side bed lift jack has a bolt
missing and the pen is backing out.

4.
The door stop is broken and allows the door to open too far, exposing the driver
to a fall hazard.

5.
No signal light or marker lights are working.

6.
The battery box is busted on the bottom and sagging from the weight of the
batteries.

7.
Excessive oil leaks under the bed inside the frame and on the motor are
contributing to accumulations of combustible materials.

8.
The emergency steering is not working.

9.
The access step on the passenger side of the machine is broken off.

Respondent
concedes that these conditions existed and were reasonably likely to cause
injury. Resp’s Br. at 3. However, Respondent contends that it was not negligent.
The truck was owned and operated by another company, Appalachian Leasing. It was
Appalachian Leasing’s responsibility to conduct pre-shift inspections and make
any necessary repairs. TR 59, 234. Gilbert Witt, the safety manager at the mine,
testified that Respondent has a program that contract trucking companies must
follow to be allowed to operate at the mine. TR 235; see RX 3. The
contractors are required, inter alia, to provide all inspection and
repair documentation each month for trucks to be used at the mine. TR 236; RX 3.
When the proper documentation is provided, a truck is given a sticker which
permits it to operate at the mine for the next month. Respondent also conducts
spot checks of contractors’ trucks. TR 237. Further, the Cat truck at issue was
used primarily at Black Bear Processing Plant, which was not owned by Bluestone
Mechel. TR 233-34. The truck came to the Red Fox mine only to haul refuse to the
dump. TR 25, 233. Witt testified that the truck was at the processing plant 80%
of the time, and spent the remaining 20% hauling the plant’s refuse to the Red
Fox mine’s dump. TR 233.

Nevertheless,
the Secretary contends that Respondent was highly negligent in permitting this
truck to operate at the mine. Jones contends that Respondent should have known
the truck was in violation of the safety standards. TR 70. He notes that he
never wrote so many violations on a single truck. TR 40. Further, he stated that
one of the truck’s left rear tires was visibly low, and signal lights and marker
lights were not working. TR 26-28. Since the inspection was being conducted
around midnight, that lights on the truck were not working should have been
noticeable to Respondent. In addition, the missing step on the passenger side of
the truck and the low tire pressure may have been visible, even at night,
depending on the lighting at the mine. But most of the truck’s defects were not
visible without examining the truck

A
citation regarding the truck’s condition alleging high negligence was also
issued to Appalachian Leasing. TR 59-60. It is hard to see how, based on the
facts in this case, that Respondent’s negligence could equal that of the company
which owned and operated the truck and was directly responsible for examining
and maintaining it. Accordingly, although I otherwise uphold the citation, I
find Respondent’s negligence to have been moderate, not high. Finally,
considering all of the factors set out in §110(i) of the Mine Act, I find that a
penalty of $2500 is appropriate.

Citation
8110205

Respondent
contends that the Secretary failed to prove a violation of §77.1104. The
citation states that “combustible materials, coal dust mixed with motor oil and
hydraulic oil, have been allowed to accumulate where they could create a fire
hazard.” RX 7. Respondent argues that the materials which may have accumulated
on the motor of the Cat haul truck did not create a fire hazard. Jones testified
that what most concerned him was the accumulation of oil on both sides of the
engine. TR 44-46. He also found that hydraulic oil had leaked down the frame of
the truck. If the oil on the engine caught fire, the leaked hydraulic oil could
cause the fire to spread throughout the truck. TR 45. But Jones testified that
he does not know the ignition point of the accumulated oils, nor does he know
the surface temperature of the sides of the engine. TR 72-73. He also did not
know how much coal dust had accumulated on the engine (TR 71), nor did the
Secretary present any evidence of the ignition point of coal dust. Apparently,
the Secretary wants me to accept as a matter of faith the totally illogical
contention that a truck’s engine oil will catch fire at the temperature at which
a truck’s engine operates.

Under
these conditions, there is no basis to find that the accumulations of oil and
coal dust on the sides of the engine were combustible at the temperatures at
which the truck operated. Therefore, there is no evidence that they created a
fire hazard. Further, Respondent presented uncontradicted evidence that the
ignition points of the oils which allegedly accumulated on the engine were
substantially higher than the temperature of the outside of the engine.
See TR 238-44; RX 1.

Therefore,
Citation 8110205 is vacated. Since I am vacating this citation for the reasons
stated above, I will not address Respondent’s other contentions regarding this
citation.

Citation
8117589

Section
77.1607(i) states that “[d]ust control measures shall be taken where dust
significantly reduces visibility of equipment operators.” Respondent alleges
that it took adequate dust control measures in that the four and a half miles of
haul roads are watered continuously on each shift by a full-time employee whose
sole job it is to operate the water truck. TR 212-14. Presley did not dispute
this; in fact, he agrees that Respondent “kept pretty good water on the roads
most of the time.” TR 99. This explains why he found only low negligence.
Id. But Presley stated that the section of the haul road where he
observed the two trucks raising a cloud of dust was a particularly dry section
of the road because it was near an intersection and was heavily traveled, and it
needed additional watering. TR 95-97.

Although
Respondent disagrees with Presley’s description of the incident, Presley was the
only eyewitness to it to testify at the hearing, and I credit his observation
that the road was extremely dusty where the two trucks were approaching each
other.

Presley testified that he was sitting about 100 to 150 feet from the haul road
and slightly above it when he saw the two haul trucks approaching each other
head on from opposite directions. When they got close to each other, all he
could see from his vantage point was the rear foot or two of each truck. TR
91-92. However, Presley’s testimony that the trucks were approaching each other
“head on” is not convincing. Doubtless, this conclusion was influenced by his
belief that the haul road “wasn’t a whole lot wider than two rock trucks
passing”, and each rock truck was 24 feet wide. TR 94. Although he did not
measure the width of the haul road, he estimated that when two rock trucks were
passing each other, there was only five feet of space between them. Id.
But subsequently, he testified that the road was about 75 feet wide (TR 158);
and Gilbert Witt, who as Mechel Bluestone’s safety director should know,
testified that the haul road at the point it was being observed by Presley was
100 feet wide (TR 211), which is greater than the width of four rock trucks.
There would have been no reason for the trucks to approach each other head on
when the road was that wide. Moreover, Presley testified that he could clearly
see the trucks’ drivers in their cabs until their vehicles almost reached each
other (TR 94), meaning that each driver would have been able to see the other
truck while the trucks were approaching each other. So unless one or both of the
drivers were asleep or suddenly incapacitated, it is hard to believe the trucks
would have been approaching each other head on. Further, Presley testified that
the dust cloud around the trucks dissipated in a few seconds. TR 156.

Accordingly,
I find that Respondent’s negligence was low, as the Secretary alleged, and
injury due to the violation was unlikely.

The
only remaining issue regarding this citation is whether the violation was
significant and substantial (“S&S”). 30 U.S.C. § 814(d)(1) provides: 

If, upon any inspection of a coal
or other mine, an authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety standard, and if he also
finds that, while the conditions created by such violation do not cause imminent
danger, such violation is of a nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an unwarrantable failure
of such operator to comply with such mandatory health or safety standards, he
shall include such finding in any citation given to the operator under this
[Act].

The Commission and several courts
of appeals have agreed that four conditions must be met to find that a violation
is “significant and substantial”:

[T]he 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.
Secretary of Labor
v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984);
see
also,
Austin Power, Inc.
v. Secretary of Labor, 861 F.2d 99, 103 (5th
Cir.1988);
Consolidation Coal
Co. v. Federal Mine Safety and Health Review Comm'n, 824 F.2d 1071, 1075
(D.C.Cir.1987).

Since I have found that an injury was unlikely to result from the violation,
I conclude that the violation was not S&S.

Finally,
I find that a penalty of $100 is appropriate for this violation.

Citation 8069361

Section
77.2(d) defines “berm” as “a pile or mound of material capable of restraining a
vehicle.” Presley testified that the berm at Respondent’s dump site was only
about 36 inches high, too low to restrain the huge rock trucks which used it. TR
102-03. He added that “a [CAT] 793 rock truck wouldn’t even feel it. He’d back
plumb through it.” TR 106. Although Presley did not measure the height of the
berm, he testified that he knows from experience how high 36 inches is in
relation to his body. TR 104. Regardless, he stated that in order to be
effective, the berm would have to reach at least mid-axle height, which on a CAT
793 rock truck would be about 68 to 72 inches high (TR 102; see GX 11, at
2), and the berm at the dump site “was significantly inadequate. It was pretty
obvious.” TR 104. Because he believed the violation was obvious, he found
Respondent’s negligence to be moderate. TR 108-09. He also found that injury to
the driver could reasonably be expected to be lost workdays or restricted duty
rather than anything more severe because the dump site was not significantly
elevated and if a truck went over the edge he did not believe “the truck’s going
to roll enough times or be such a severe accident that it would permanent
disable or kill somebody.” TR 107.

Respondent’s
defense to this citation consists of two prongs. First, Respondent contends that
Presley’s testimony on this issue is inconsistent; but to the extent that he was
inconsistent the inconsistencies relate to irrelevant facts. Respondent has not
even argued that the berm at the dump site was higher than 36 inches. Second,
Respondent contends that the operator of the bulldozer which was working at the
dump site would spot the rock trucks to assure they did not drive through the
berm. But the standard does not allow for spotting as a means of preventing
vehicles from overtraveling and overturning at dump sites; the standard requires
a physical barrier or restraint.

Therefore,
I conclude that Respondent violated §77.1605(l). Moreover, Respondent has not
challenged the inspector’s determinations that an injury was reasonably likely
and would cause lost workdays or restricted duty; that Respondent was moderately
negligent; and that the violation was S&S; and I concur with all these
determinations. Finally, the Secretary assessed a penalty of $362 for this
violation, which I find appropriate.

Citation 8069362

This
citation is based on the presence of a single large rock in the road. GX 12; TR

112. The Secretary contends that “in allowing the rock to sit in the middle of
     the active, main haul road, Respondent violated the cited standard.” Sec’y’s Br.
     at 25. But the standard only requires that haulage roads be kept “reasonably
     free” of debris and spillage. Both Presley and Witt testified that rocks on the
     haul roads are a common occurrence at surface mines. TR 111-12, 224. Rocks often
     fall off haul trucks. TR 118, 222-24. Moreover, the haul roads are made of rock,
     as are the berms and embankments. TR 117. Accordingly, it would not be
     unreasonable for a large rock to be in the road, and the mere presence of one in
     the road would not necessarily equate with a violation of a standard requiring
     roads to be kept “reasonably free” of debris. Presley did not see how the rock
     came to be in the road or how long it had been there, but assumed it fell off a
     rock truck. TR 119-21. Consistent with Presley’s surmise, Witt testified that
     the rock had fallen off a truck as the truck was turning. TR 220. He added that
     the driver reported that the rock had fallen onto the road, and a rubber-tired
     dozer was on the way to remove it when the citation was issued. TR 220-21.
     Although Presley disputes that anyone reported the rock in the road over the CB
     radio (TR 180), he admits the violation was abated by a rubber-tired dozer
     moving the rock. TR 182.

Based
on this evidence, I conclude that no violation of §77.1608(a) occurred. By
requiring that the roads be kept “reasonably free” of debris, the standard
accepts that perfection would be unreasonable to expect under the circumstances.
The presence of a single large rock on a surface mine haul road which was
removed promptly after it was discovered to be there is consistent with the road
being kept “reasonably free” of debris. It should be stressed that Respondent
did not receive a citation for a violation of §77.1607(aa), which requires that
“trucks shall be trimmed properly when they have been loaded higher than the
confines of their cargo space.” Citation 8069362 should not be permitted to
serve as a backhanded means to establish a violation of that standard because a
large rock was found in the roadway. In any event, no evidence was presented
that the rock in question fell from an improperly loaded truck. TR 119-20.
Accordingly, how the rock came to be in the roadway is not relevant. What is
relevant is that other than the single large rock at issue, Presley conceded
that the haul road was in good condition (TR 112); and the rock was removed from
the roadway as soon as practicable.

Therefore,
Citation 8069362 is vacated.

Citation 8069363

The
Secretary alleges that Respondent’s fuel truck was not being maintained in safe
condition, in violation of 77.404(a), and it was required by that standard to
have been removed from service immediately, because:

The drive shaft for the fueling
pump is bent and vibrating against the frame of the battery box[;] the straps
holding both fuel tanks are loose[;] the hinges for the hood are loose and hood
[sic] is broken to the point it is very hard to open[;] the switch for
the air on the drivers [sic] seat does not work[;] and there is 1/4" of
slack in the steering jack on the off side of the machine.

Apparently, none of these alleged defects
specifically violate any safety standards. Rather, the Secretary is relying on
Presley’s opinion that these factors affected the safe operation of the fuel
truck to prove his case.

Presley
admitted that the driver’s seat can be adjusted manually, and there is no
requirement that trucks have an air-adjustable seat (TR 194). This is not a
safety issue.

In
regard to the hood of the fuel truck, Presley’s safety concern was that it could
bounce or break loose. TR 125. But both Presley and Witt testified, as was
alleged in the citation, that the hood was very heavy and hard to open. TR 126,
229, 232. Presley failed to explain why a truck’s hood which was very heavy and
often required two me to open it would suddenly open by itself and possibly fall
off the truck. The evidence fails to prove that the fuel truck was not
maintained in safe operating condition because the hood was hard to open.

Next,
Presley admitted that he received no training from MSHA or mining equipment
manufacturers regarding the wear on steering jacks (TR 138-40). Further, Presley
did not measure the slack in the steering jack. He determined that the steering
jack had one-quarter inch of slack just by looking at it. (TR 128). Presley’s
testimony that without measuring, “you can determine a quarter inch. Anybody,
you know, can determine a quarter inch” (TR 129), is ludicrous. Accordingly, I
reject Presley’s opinion regarding this contention. It is unprofessional and
lacking in credibility.

In
regard to the straps holding the fuel tanks, there was relatively little
testimony. The tanks sit on a bracing or shelf. TR 193, 227. Presley testified
that he could see the straps were loose and he could move them with his hands.
TR 123-25. He inferred that this condition could cause the fuel tanks to fall
off the truck. Witt testified that only one of the two fuel tanks was
operational; the other was sealed shut because it had a hole in it. TR 227. The
only function the sealed fuel tank served was as a step for the driver to get in
the cab. Nevertheless, Witt did not dispute that the straps around both fuel
tanks were loose or that the fuel tanks could break off. TR 227-28. A fuel tank
falling off a moving truck, whether the tank is full or empty, presents an
obvious hazard to other vehicles and pedestrians, and possibly to the fuel truck
itself.

Finally,
the Secretary contends that the drive shaft to the fueling pump was bent and was
hitting the frame of the battery box. The Secretary argues that this creates a
safety hazard because the metal-on-metal contact could cause a spark which could
ignite the fuel or fumes given off by the battery. TR 123-24. The Secretary also
argues that the contact could cause the battery box to become loose, causing the
battery to fall off the truck. TR 124. Witt testified that the drive shaft had
only a gradual bend (TR 226), in contrast to Presley’s testimony that there was
an obvious bend in the in the drive shaft. TR 123. Witt also testified that the
drive shaft was in a metal enclosure, and Presley agreed that it would have to
be guarded. TR 188, 226. When Presley was asked “[s]o if the drive shaft’s
guarded, then how is it rubbing against the battery box?”, his answer was
equivocal. TR 188. I find that the Secretary has failed to prove that the drive
shift presented a safety hazard.

The
only alleged safety problem regarding the fuel truck which the Secretary has
proven was the loose straps on the fuel tanks. Nevertheless, since Witt
testified that the fuel tanks could fall off, this single deficiency is
sufficient to prove that the fuel truck was not being maintained in a safe
operating condition, a violation of §77.404(a). But the Secretary has not proven
that it is reasonably likely a fuel tank would fall off the truck. The fuel
tanks sit on a platform or shelf, and obviously are connected to the truck
itself in order for the fuel to reach the engine. It would appear that the role
of the straps is to keep the tanks from moving around on the shelves or
platforms. Although loose, the straps were still intact, and there is no
evidence that they were failing to hold the tanks in place or that the tanks
were in imminent danger of falling off. Therefore, I find that injury from this
violation was unlikely. Since injury was unlikely, the violation cannot be
S&S. Finally, since the straps were visibly loose, I find that negligence
was moderate.

The
Secretary assessed a penalty of $1,203 for the alleged violation in this
citation. However, only one of the five alleged deficiencies regarding the fuel
truck was proven; negligence has been reduced from high to moderate; injury has
been found to be unlikely; and the violation is not S&S. Under these
conditions, I find that a penalty of $100 is reasonable.

In
sum, penalties totaling $3,800 are assessed for the violations which have been
proven or were unopposed.

ORDER

It
is ORDERED that:

Citation
8103635 is unchanged, with an assessed penalty of $540.

Citation
8103636 is unchanged, with an assessed penalty of $100.

Citation
8103637 is unchanged, with an assessed penalty of $100.

Citation
8110204 is modified to reduce negligence from “high” to “moderate”, and the
assessed penalty is reduced to $2,500.

Citation
8110205 is vacated.

Citation
8117589 is modified from injury being “reasonably likely” to “unlikely”, and the
violation is changed from S&S to non-S&S. The assessed penalty is
reduced from $176 to $100.

Citation
8069361 is unchanged, with an assessed penalty of $362.

Citation
8069362 is vacated.

Citation
8069363 is modified from injury being “reasonably likely” to “unlikely”,
negligence reduced from “high” to “moderate”, and the violation from S&S to
non-S&S. The assessed penalty is reduced from $1,203 to $100.

It
is further Ordered that Respondent
pay a penalty of $3,802 within 30 days of the date of this order.

/s/ Jeffrey Tureck

Jeffrey
Tureck

Administrative
Law Judge

Distribution:

Douglas L. Sanders, Esq., U.S.
Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver,
CO 80202

James F. Bowman, P.O. Box 99,
Midway, WV 25878