Steele Branch Mining

Plain-English summary

Steele Branch Mining was cited after an investigation involving a fatal accident at its surface mine. Judge Avram Weisberger found that a grader's excessive steering-wheel play violated the requirement to maintain mobile equipment in safe operating condition and assessed $85 for that violation. He also found that the operator violated the requirement to submit an investigation report to MSHA, but ruled that violation was not significant and substantial because the operator had orally reported the key preventive steps six days after the accident. The judge assessed $10 for the reporting violation, amended Citation No. 2956463 to remove the significant-and-substantial designation, and ordered a total penalty of $95.

Decision snapshot

• Cited standards: 30 C.F.R. § 77.404(a), 30 C.F.R. § 50.11(b)
• Outcome: Both violations were affirmed, one was found not significant and substantial, and the total penalty was $95.
• Key point: The report violation remained a violation, but the judge reduced its seriousness based on the operator's oral report of corrective steps.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR, .. CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH ..
ADMINISTRATION (MSHA), .. Docket No. WEVA 91-2077
Petitioner : A. C. No. 46-00506-03519
V. :
..
Docket No. WEVA 91-2123
STEELE BRANCH MINING, : A.C. No. 46-00506-03520
Respondent ..
: Surface Mine No. 927
DECISION.
Appearances: Patrick L. DePace, Esq., U.S. Department of Labor,
Office of the Solicitor, Arlington, Virginia for
Petitioner:
Roger L. Sabo, Esq., Schottenstein, Zox, and Dunn,
Columbus, Ohio for Petitioner.
Before: Judge Weisberger
Statement of the Case
These two civil penalties_ proceedings,
- which were
consolidated for hearing, are before me based upon petitions
filed by the Secretary (Petitioner), alleging violations by the
Operator (Respondent) of 30 C.F.R. § 77.404(a) and 30 C.F.R. § 50.11(b), and seeking the imposition of civil penalties.
Pursuant to notice, the cases were heard in Charleston, West
Virginia on March 18, 1992. James E. Davis and Donald R. Mills,
testified for the Secretary. Wiley Queen, Bobby Edward Casto,
Frederick R. Miller, Steven L. Kittle, Mark Potnick, and William
Roberts testified for Respondent. The parties filed post hearing
briefs on May 11, 1992.
Findings of Facts and Discussion
I. Violation of 30 C.F.R. § 77.404(a)
On April 23, 1991, Donald R. Mills an MSHA investigator of
heavy machines and coal mine inspector, inspected the primary
fuel filter of a No. 16 caterpillar road grader (No. 009), which
had been involved in a fatal accident earlier that day involving

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the Operator of the grader, Rayburn Browning.' Mills removed
the filter case assembly and observed that the retainer, spring,
and ring, were all missing and that the element assembly (filter) -
was no longer properly connected, and was lying on the bottom of
the case assembly. He indicated that the filter was not
performing its function, and that accordingly the engine of the
grader could stall, or shut down, as a result of being injected
with fuel containing contaminants. According to Mills, should
this occur while the grader is going around a curve, an accident
could occur causing injuries or death.
Mills also indicated that the steering wheel had between 270
to 300 degrees of slack, in that the wheel had to be turned to
that extent in order for it to respond. He indicated that a
delay in steering could cause an accident should this occur while
the vehicle is being driven around a blind curve. Mills issued a
Citation alleging a violation of 30 C.F.R. § 77.404(a) which, as
pertinent, provides that mobile equipment tt...shall be maintained
in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.*@
a. The primary filter
The filter at issue is a primary filter designed to remove
scabbing, rust, dirt, and particulate from the fue12. Before
the fuel in the grader is pumped into the engine, it is first
pumped through the primary filter in question. Then the fuel
goes through two secondary filters whose function is to remove
fine particles. James Davis, an MSHA inspector, indicated that
all three filters are needed to insure that clean fuel will enter
the injection pump where it is then pumped to the engine. He was
unable to state whether the secondary pumps will adequately
remove contaminates in the event that the primary filter does not
operate. However, he indicated on cross examination that
material not trapped by the primary filter would then enter the
secondary filters where the materials would then be trapped.
Wiley Queen, head mechanic at the mine in question,
indicated that the purpose of the primary filter is to screen

 'The Citations that were.issued as a consequence of an MSHA

investigation of this fatality are not the subject of the instant
proceeding.
2James Davis, an MSHA inspector, indicated that the filter
is also designed to remove water. William Roberts, the equipment
manager of Geupel Construction Company, the parent company of
Respondent, testified that the filter is not designed to remove
water, but rather that water settles to the bottom of the case
assembly. I accord more weight to the testimony of Roberts due
to his expertise.

                            872

large debris. William Roberts, equipment manager for Geupel
construction Company, Respondent's parent, indicated that
secondary filters are meant to remove fine particles. Hence, it
would appear that the contaminants which would not have been
screened by the primary filter which was not in its proper place,
would, a fortiori, have been screened and trapped by the two
secondary filters that are designed to screen smaller particles.
b. Excessive Play in the steering wheel
Mills did not drive the grader, and did not start the
engine. However, when he turned the wheel he observed between
270 to 300 degrees of slack through which the steering wheel had
to be turned before the wheels responded. He indicated that the
slack in the steering wheel should be "10 degrees, 20 degrees".
(Tr. 88) According to Queen, if the engine on the grader is in
operation all the slack in the steering wheel would be taken up
except for about a third. In the same connection, Roberts
indicated that due to the gear system the grader is equipped
with, if the engine off, there is more play in the steering
wheel. He indicated that with the,engine off the play in the
steering wheel is about 120 degrees, whereas if it is on there is
only 45 degrees of play. Bobby Edward Casto, a field serviceman
employed by Walker Machinery, which services the grader in
question, testified that if the engine in the grader is not on,
there is about 100 to 180 degrees of play in the steering wheel
before movement of the wheels is felt. Casto indicated that on
April 23, he drove the grader up a hill, and there was only about
one degree of play. I do not assign much probative weight to
this testimony with regard to the play of the steering wheel with
the engine on, as Casto did not specifically test the steering
wheel for play. Also, there is no indication that when Casto
drove the vehicle uphill any curves were encountered which
necessitated the turning of the steering wheel.
Queen also indicated that he had driven the grader sometime
prior to the time the citation was issued, and did not notice any
slack in the steering. However he could not indicate with any
degree of specificity when this occurred. Accordingly, not much
weight was accorded his testimony in this regard.
Queen indicated that he had worked with Browning for a year,
and that if Browning experienced any problems he brought them to
his (Queen's) attention. Queen stated that on the morning of the
fatality, Browning returned grader No. 007 as there was a problem
with the brakes, and instead was given the grader in question to
operate. Queen indicated that Browning did not state that there
were any problems with the steering of the vehicle. Queen said
that, in his opinion, Browning would not have operated the
vehicle in question if it was unsafe. In the same fashion
Frederick R. Miller, who was the mine superintendent from
October 1989 through September of 1991, indicated that Browning

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was "real good" at making preshift examinations, and that he
would normally bring any problems to attention of the mechanic
(Tr.274).
According to Miller, the vehicle in question was inspected
by MSHA and State inspectors three weeks prior to April 23, 1991,
and no violation was cited. Respondent's records indicate that
the vehicle was operated only 17.5 hours subsequent to the date
of this inspection up until April 23 (Exhibit F).
In analyzing whether the evidence establishes that the
grader was "unsafe" within the purview of Section 77.404, § 77.404(a), supra, the common meaning of the term "safe" is to be
considered. Webster's Third New International Dictionary (1986
edition) (IUWebster's") defines "safe" as "2. Secure from'threat
of, danger, harm or loss:~', Webster's defines ""Secure" as "2 a:
free from danger." "Danger" is defined in Webster's as "3. a:
liability to injury, pain, or loss: PERIL, RISK... .”
I find the testimony of Respondent's witnesses insufficient
to contradict or impeach the specific testimony of Mill that, on
April 23, 1990, when he tested the steering there was between 270
to 300 degrees of play. Although the steering wheel might
exhibit more slack when the engine is off, I conclude that play
in the steering wheel of approximately 270 degrees when the
engine is off, is clearly evidence of play in the steering wheel
to a more than non-significant degree when the engine is on.
Inasmuch as the grader was being operated on an access road that,
according to the uncontradicted testimony of Mills, contained
curves, and an 8 to 9 percent grade in some areas, an accident
could have resulted from a delay in the steering caused by the
play in the steering wheel. Hence, applying the common usage of
the term lfsafelt as defined in Webster's infra, I conclude, that
due to the play in the steering wheel, the grader in question was
not in safe operating condition. Since it was in operation, I
find that Respondent herein did violate section 77.404(a).
C.’ Significant and substantial
The grader was being used to grade and maintain a 6 mile
road which provided the only access to the mining operation. As
such, the road was used by trucks carrying coal from Respondent's
operation, as well as by other vehicular traffic. According to
the uncontradicted testimony of Mills, the road had a 8 to 9
percent grade in some areas, and portions of the roadway that
curved were only 20 to 25 feet wide. Given the degree of the
excessive play in the steering wheel, and the road and traffic
conditions, I conclude that the violation herein was significant
and substantial. (See Turner Brother, Inc., 7 FMSHRC 424 (1985)
(Judge Melick)).

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 Taking into account the statutory factors set forth in

Section 110(i) of the Federal Mine Safety and Health Act of 1977
(the Act), I conclude that a penalty.of $85 is appropriate for
this violation.
II. Violation of 30 C.F.R. § 50.11(b)
James E. Davis, an MSHA inspector and accident investigator,
indicated that on April 23, 1991 an investigation commenced with
regard to the fatality that had occurred at Respondent's site on
that date. He indicated that at the start of the investigation,
he requested of Frederick R. Miller, and Mark Potnick, the
Director of Human Resources of Geupel Construction Company to
provide an investigation report including a description of steps
taken to prevent a similar occurrence in the future. Davis
indicated that he made follow-up requests on April 23, April 24,
and April 26. He indicated that on April 29, he spoke with
Potnick, who oversees the mine safety programs at the Steel
Branch operation, concerning preventive measures Respondent
would take to avoid a recurrence of a fatal accident. Davis said
that he and Potnick discussed "the subject of seat belts",,
reinstructing miners in the safe operating and emergency
procedures and.the examinations of equipment and "relevant"
training (Tr.41). He indicated that he made follow-up requests
of Respondent on May 8 and May 9, and that the only reasons
offered to him by Respondent to excuse its not having filed a
report were that the father-in-law of Potnick had died, and that
the report was being worked on "or passed through the appropriate
channels" (Tr.48). He further stated that Potnick never told him
when the report was going to be submitted. Davis indicated that
normally reports are submitted 3 to 4 days after the conclusion
of the investigation.
On May 13, 1991, Davis cited the operator for violating
Section 50.11(b) supra. The report was submitted 3 days later on
May 16.
Section 50.11(b), supra, as pertinent, provides as follows:
"An operator shall submit a copy of any investigation report to
MSHA at its request." Section 50.11(b), supra does not expressly
require the operator's report to be submitted within any time
frame subsequent to the occurrence of the accident or
investigation. It requires only that the report "shall" be
submitted at the "request" of MSHA. Respondent has not
contradicted or impeached the testimony of Davis that he
initially requested of Respondent to submit a report at the
commencement of the investigation on April 23, and made follow-up
requests on April 24, 26, May 8, and May 9. Nor has Respondent
impeached or contradicted the testimony of Davis that Potnick had
never told him when the operator's report was to be submitted.
Further, the record is clear that no report had been submitted by
the Operator by May 13, the date the Citation was issued by
Davis.

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                   -   --   _.   ___h.   .-.   _.   _.._,   _.    ,_   _I.   ..a.   ._




 Respondent appears to rely on the testimony of Potnick that

a delay in the submission of a copy of its report was not
unreasonable, taking into account Potnick's numerous other
responsibilities, the desire to prepare the report after a review
by him of transcripts of interviews with various witnesses during
the investigation, the need to submit the report to his superiors
for review, and the delay occasioned by the death of his father-
in-law. These factors are germane to the issue of the amount of
the penalty to be imposed and will be discussed in that
connection. However, these factors are insufficient to rebut
Petitioner's case that by May 13, 1991, Respondent had failed to
submit a copy of its investigation report in spite of numerous
requests by MSHA. Accordingly, I find that Respondent herein did
violate Section 50.11(b) supra.
Davis testified that he considered the violation to be
significant and substantial. In essence, he explained that
failure to submit the report was highly likely to result in a
fatality, because there could be a reoccurrence if MSHA is not
advised of the steps taken to prevent a recurrence. (Tr. 36,42).
Having observed the demeanor of Potnick, I find his
testimony credible that, on April 29, at the closeout conference
of the investigation, he informed Davis orally that the operator
intended to have its employees instructed by Walker Machinery on
the functions of the particular heavy equipment in question, the
use of the seat belts, and the dangers of jumping out of moving
heavy equipment. In the written report submitted on May 16, the
operator reiterated these steps and did not set forth any others.
Hence, since the operator did orally report to MSHA, as early as
the closeout of the investigation six days after the accident, on
the steps that it intended to take to prevent a similar
reoccurrence, I find that the violation herein to be not
significant and substantial.
In evaluating the amount to a civil penalty to be imposed
herein, I place emphasis on the fact that six days subsequent to
the accident the operator orally reported to MSHA with regard a
description of the steps to be taken to prevent a similar
occurrence in the future. Also, I note the good faith of the
operator as manifested by Potnick's uncontradicted testimony that
a delay in submitting the written report was caused by the desire
of the operator to have a complete set of facts prior to the
submission of the report. In this connection, Potnick indicated
that he wanted to study the typed transcript of questions and
answers of various persons interviewed during the investigation.
Also, due to company policy, Potnick had to submit the entire
completed written report to his supervisors for their review. In
addition, delay was contributed to by Potnick's numerous
responsibilities, as well as the fact that his father-in-law had
died unexpectedly sometime after the investigation. I thus find
that Respondent was not negligent to any degree in connection

                                                            876

i with the violation herein, and that the violation itself was not
, very serious considering the fact that the critical aspects of
the report i.e. a description of steps taken to prevent a similar
occurrence, were orally reported to MSHA six days after accident.
Taking into account the other factors set forth in Section 110(i)
of the Act I conclude that a penalty herein of $10 is
appropriate.
ORDER
It is ORDERED that Respondent shall pay a civil penalty of
$95, within 30 days of this decision. It is further ORDERED that
citation No. 2956463 be amended to reflect the fact that the
cited violation is not significant and substantial.

                                         L
                               Avram Weisberger
                               Administrative Law Judge
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Roger L. Sabo, Esq., Schottenstein, Zox and Dunn, 41 South High
Street, 2600 Huntington Center, Columbus, OH 43215-6105
(Certified Mail)
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