W. J. Bokus Industries, Inc. (ALJ decision, July 8, 1993)
W. J. Bokus Industries, Inc. (FMSHRC YORK 92-106-M and YORK 92-107-M): Mixed results on mine jurisdiction and citations
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Plain-English summary
W. J. Bokus Industries operated a sand and gravel mine and related asphalt and materials operations in New York. Judge Avram Weisberger held that MSHA jurisdiction depended on whether the cited equipment and areas were used in extraction, milling, or preparation of minerals. He vacated and dismissed orders involving cylinders, a grinder, and a stove, modified three orders to non-significant and substantial with penalties of $500 each, and affirmed a post-order operation citation with a $1,000 penalty. Total civil penalties were $2,450.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.11012, 56.12030, 56.14101, 56.14115, 56.14132, 56.16005, and 56.16006
- Outcome: Orders 3593041, 3593042, 3594752, and 3594756 were vacated or dismissed. Orders 3593043, 3594753, and 3594754 were modified to non-significant and substantial. Citation 3594758 was affirmed. Total penalties of $2,450 were ordered.
- Key point: Mine jurisdiction turns on whether the cited area or equipment is used in extracting, milling, or preparing minerals, not merely on its location at a property with mining activity.
Full text (FMSHRC public release)
FEDEEALHINE SAFETY AND BEALTIIEEVIEWCOHNISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
JUI_ 8
1993
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. YORK 92-I06-M
Petitioner A.C. No. 30-02790-05512
V. Docket No. YORK 92-I07-M
A.C. No. 30-02790-05513
W. J. BOKUS INDUSTRIES, INC.
Respondent High Peaks Asphalt
DECISION
Appearances: William G. Staton, Esq., U.S. Department of Labor,
office of the Solicitor, New York, New York,
for Petitioner;
W. J. Bokus, President, W. J. Bokus Industries,
Incorporated, Greenfield Center, New York,
for Respondent.
Before: Judge Weisberger
Statement of the Case
In these consolidated cases the Secretary of Labor,
(Petitioner) filed petitions for assessment of civil penalty, alleging violations by the Operator (Respondent), of various
mandatory standards set forth in volume 30 of the code of
Federal Regulations. Pursuant to notice, the cases were
scheduled and heard on February 16 and 17, 1993, in Saratoga Springs, New York. At the hearing, Randall Gadway testified for Petitioner. James E. McGee, Patrick Durkin, Laura
Mace, Thomas W. Barss, and William John Bokus testified for
Respondent. Subsequent to the hearing, the parties filed post- hearing briefs on June 21, 1993.
On June 16, 1993, the Secretary filed and served Respondent
with a Motion for Leave to Supplement Memorandum. Respondent did not file any reply to this motion and it is granted. The Secretary's Supplemental Post-Hearing Memorandum was filed June 30, 1993.
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Findinqs Facts and Discussion
I. Backqround
In 1983, William J. Bokus, Respondent's President, purchased
the subject property consisting of 65 "for
acres, the sole
purpose of having an asphalt plant there" (Tr. 130). A stream bisects the property, and a road connects the portion of the property on the east side of the river, with that located on the
west
side.
In 1984, an asphalt plant erected
was on the east side of
the river. The asphalt plant is owned by High Peaks Asphalt ("High Peaks") and is leased to Pallette Stone ("Pallette"). High Peaks and Pallette are corporate entities separate from W.J. Bokus Industries. Until 1990, the minerals
raw used in the
production of asphalt at the plant were obtained from mines not located on the subject site.
In October 1991, W. J. Bokus Industries, commenced operating
a mine on the west side of the property mining sand, and gravel.
A screen that
located is the east side
on of the property
separates gravel from the mine by size. This material is crushed by a crusher, which is a non-permanent installation, but on the dates in issue, was located on the east side of the property. The crusher also crushes material from other mines. Also on the east side of the property are two stockpiles containing sand, stone, and "rubble", a by-product of crushed recycled concrete and asphalt. Some of these materials were previously mined at the subject mine. Approximately 20 to 50 percent of the material in these two stockpiles is sold final
as a product, and the
balance goes to the asphalt plant on the subject site.
In addition, there are two other stockpiles on the east
side, one of which contains piles of old concrete and asphalt returned by Respondent's customers, and the other contains processed concrete products. The items in the latter two stockpiles are sold to customers.
Also on the east side of the is
property a garage that
contains electrical services, and repair parts for the asphalt plant. The garage is owned by High Peaks, and is leased to Pallette. According to Bokus, the is used the
garage "primarily for
support of the black top (asphalt) plant" (Tr.133).
(Emphasis Supplied) He said that "its primary purpose was for the repair of trucks" (Tr. 196). However, the garage is also used as a site for the repair of crusher and screen equipment. Stored in the garage are some and
oxygen acetylene cylinders
owned by Respondent. Also Respondent's employees at times work
in the garage.
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An office staffed by Respondent's employee is also located
on the east side of theproperty. Truck drivers transporting material from the subject site weigh their trucks at a weighing station, and then report the results to Respondent's employee in the office.
On October 22, 1991, MSHA Inspector Randall Gadway inspected
the subject site. He issued a number of orders pursuant to Section 104(d)(1) of the Federal Mine Safety and Health Act of
1
conditions
1977, ("the Act",) alleging violative concerning a
loader which loads sand from a stockpile, equipment located in the garage, and a walkway near the office. Essentially, it appears to be Respondent's position that the stockpiles and equipment located in the garage, are not within Petitioner's jurisdiction.
II. Cylinders in the Garaqe(Order Nos. 3593041 and 3593042)
2
Gadway cited a total of seven cylinders in the garage that
were not secured, in violation of 30 C.F.R. § 56.16005. He also cited the same cylinders as lacking covers in violation of 30
C.F.R. § 56.16006.
In general, oxygen and acetylene cylinders are used in
welding. Cylinders such as those cited are used in the garage by Respondent's mechanic. Respondent's other employees as part of
their duties, also work the in
garage. Also, repairs to a
crusher and a screen in
used the preparation of gravel, are
performed in the garage. Both Respondent and Pallette store oxygen and acetylene cylinders in the garage.
Section 3(h)(1) of the Act defines a mine as, inter alia
"...lands, structures, facilities, equipment, machines, tools,
...used in, or to be used in, or resulting from, the work of extracting such minerals from deposits...or their natural
used
in, or to be used in, the milling materials, or the of such
work
of preparing coal or other minerals, The legislative ....
"
history of the Act, as summarized with approval in Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.C. Cir. 1984), indicates a clear intent for the Act to be given a broad interpretation. Nonetheless, it is manifest, based upon the clear language of Section 3(h)(1), supra, that structures, facilities, machines, tools, or equipment are considered a mine and within the jurisdiction of Petitioner, only if they are used in, or to be
1prior to the issuance of these orders, a citation prusuant
to Section 104(d)(1) of the Act, supra, had been issued to Respondent on October 22, 1991.
24 or 5 of the cylinders contain oxygen, and the rest
contained
acetylene.
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used in, or resulting from, either the extraction, milling, or
preparation of minerals.
There is no evidence indicating that the specific and
oxygen
acetylene cylinders that were cited were used in connection with the repair or manufacture of tools equipment
or specifically used
in the milling or preparation of the minerals mined at the subject site. Further, even if it is inferred that the cylinders
were
used,
so and hence were subject to MSHA jurisdiction, there
is insufficient evidence to conclude that Respondent was an operator vis-a-vis the cited cylinders. In this connection, Section 3(c) of the Act, defines operator
an
as an "owner,
lessee, or other person who operates, controls, or supervises a coal or other mine "
Hence, in order for be
....
Respondent to
properly cited for the allegedly violative conditions of the specific cylinders cited, it must be established that it either was the owner, or lessee of the cylinders, or in some other fashion exercised control over them. There is no evidence with regard to the ownership cylinders ofin the
question. The garage
was used to store cylinders that belong to either Pallette or Respondent. To further complicate matters, Pallette's employees were allowed to use the cylinders owned by Respondent, and Respondent's employees were allowed to use the cylinders owned by Pallette. Since Respondent's employees worked at times in the garage, and at times used acetylene or oxygen cylinders, it is
possible that they used or would be using these cylinders.
However, due to the lack of evidence, I cannot conclude that it is more likely than not that the cylinders at issue were either used by Respondent's employees, or would be used by them in the ordinary course of Respondent's operation. Hence, Order Nos. 3593041 and 3593042 issued to Respondent violative
concerning
cylinders are to be vacated.
III. Grinding Machines in the Garage (Order No. 3594752)
Gadway also cited a grinding machine located in the garage
that did not have a hood, in violation of 30 C.F.R. § 56.14115. In general, Gadway testified with to the hazards
regard
relating
to the violative condition. He also testified that James E. McGee, an employee of Respondent, told him that he had reported to William Bokus the lack of a hood, but Bokus did not do anything about it.
There is no evidence in the record to the
as specific use of
the grinder in question, especially it
as pertains to the
preparation or milling of stone. Since the grinder was located in the garage, and Respondent's employees worked there, it is possible that it m__i• have been used in the milling or preparing of stone. However, I find that Petitioner failed to adduce sufficient evidence that would support such a conclusion. In other words, due to the lack of adequate evidence, I cannot conclude that it was more likely than not that the grinder was
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used in milling or preparing stone or other mine materials. For these reasons, Order No. 3594752 regardingthe grinder is to be dismissed.
IV. Metal Stove in the Garage (Order No. 3594756)
Gadway also cited exposed wires connected to a fan that was
mounted on the side of a metal stove in violation of 30 C.F.R. § 56.12030. Gadway testified to the hazards inherent in this condition, but did not adduce any testimony with regard to the manner, if any, in which this stove is used in the milling or
preparation of minerals. Thus, I conclude that it has not been established that the stove was subject to the Act, and regulations promulgated pursuant to the Act. Accordingly, Order No. 3594756 is to be dismissed. For the same reasons, the Section 107(a) order (Order No. 3594756) issued by Gadway for an
alleged imminently dangerous condition regarding the wires "feeding" the stove, is to be vacated.
V. Hole in a Walkwa7 (Order No. 3593043)
A. Violation of 30 C.F.R. § 56.11012
On October 1991, Gadway
22, indicated that there was a hole
measuring
2 feet
by 3 feet in wooden planks located in front of
the scale
(office)
house entrance. He indicated that the hole
was 3 feet deep. Essentially, he indicated that the hole was within 3 feet of the walkway traversed by truckers when walking between the scale where trucks are weighed, and the office where the weight of the trucks is recorded. Gadway issued a Section 104(d) (i) order alleging a violation of 30 C.F.R. § 56.11012.
part
As of its mining operation sand and gravel are loaded
by Respondent onto its customer's trucks. Thus, I conclude that the cited area in question is an integral part of Respondent's mining operation. Hence, I find that this area is considered mine property.
Laura Mace, Respondent's employee who works in the office in
question, estimated the size of the hole as 6 inches by 2 1/2 feet. She estimated that it was a distance removed from the walkway equal to at least her height, which she indicated as 5 feet 4 inches. I accord more weight to Gadway's testimony regarding the dimensions of the hole, inasmuch as it was based upon actual measurements that he had taken. Also, based upon my observations of the demeanor of the witnesses, I accord more
weight to the testimony of Gadway with regard to the distance the hole was removed from the walkway.
Section 56.11012 supra, provides, that "openings near
travelways through which persons or materials may fall shall be protected by railings, barriers, or covers. Where it is
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nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal 6
Co.,
FMSHRC i, 3-4 (January 1984), the Commission explained:
In order
establish to that a violation
of mandatory
a standard is significant and
substantial under National Gypsum the
Secretary must prove: (1) the underlying
violation of a mandatory safety standard;
(2) a discrete safety hazard --
that is, a
measure ofdanger 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.
See also Austin Power Co. v. Secretary, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'•, 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria). The
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury" (U.S. Steel Mininq Co., 6 FMSHRC
1834, 1836 (August 1984)), and also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. Steel Mininq Co., Inc. 6 FMSHRC
1573, 1574 (July 1984); see also Halfway, Inc., 8
FMSHRC 8, 12 (January 1986).
Southern Ohio, • at 916-917.
Since Gadway's opinion that the violation herein was
significant and substantial, was not based upon the proper test as set forth in Mathies, and
supra, U.S. Steel, su_•_ra, I have not
accorded it any weight. The only evidence before me on this
issue is Gadway's opinion that a truck driver could fall into the hole. Clearly this hazard did exist. However, considering the
fact that the hole not in the
was travelway, but was
approximately three feet away, and considering the lack of any other evidence on this point, I conclude that it has not been established that the hazard contributed to by violation, i.e., a person falling into the hole or tripping on it, was reasonably likely to have occurred. Hence, I conclude that the violation herein was not significant and substantial.
D. Penalty
Considering the obvious nature of the hazard presented by
the violative condition, the fact that the condition could have resulted in an injury such as a broken leg or hip, the fact that the hole had been in existence for at least a week prior to the
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time that it was cited, and considering the remaining factors set forth in Section ll0(i) of the Act, I conclude that a penalty of
$450 is appropriate for this violation.
VI. Loader Loadinq from Stockpiles (Order Nos. 3594753 and
3594754)
On October 22, 1991, a loader was being used by Respondent's
employee, Tom Barss, to remove sand from a stock pile on the east side of Respondent's property, and load it onto customers' trucks. The stockpile contained sand and other minerals mined from the west side of the property in question.
Gadway asked Barss if the horn and back-up alarm were
functioning, and he indicated that
they were not. Gadway did not
observe them to be functioning. Gadway issued an order alleging a violation of 30 C.F.R. § 56.14132, which, as pertinent, provides that horns or other audible warning devices on self- propelled mobile equipment "shall be maintained in functional condition."
Respondent argues that MSHA does not have jurisdiction over
stockpiles. In this connection, Respondent refers to a statement made by an MSHA engineer, John Montgomery, who was one of the speakers at an MSHA seminar in Albany, New York, in the fall of 1992. James McGee, Respondent's employee who was at the seminar, testified that Montgomery, in response to a question from the audience after he had made his presentation on electrical matters, stated that MSHA jurisdiction regarding gravel operations did not extend to stockpiles. Clearly this statement cannot be considered to be a statement of MSHA policy, but is rather a statement of an individual not involved with policy. (See, Lancashire Coal Co., 13 FMSHRC 875, 888, (1991).
I find that the use of the loader in question, loading mined
stocks onto trucks,
customer's was an integral part of
Respondent's mining operation, and hence the loader was within MSHA jurisdiction. Since the horn and backup alarm were not working, I find Respondent violated Section 56.14132, supra.
Gadway opined that as a
consequence of this violation, an
injury was reasonably likely have
to occurred, since truck
drivers in the area could have been hit by the loader when it backed up. Should this have occurred, a fatality could have resulted.
Certainly, a person could have been hit and injured by the
loader when it backed up. Gadway indicated that the operator of the loader would not have known that a person was behind the loader. However, the record does not indicate the specific position of the loader operator on the loader, whether the loader had a rear view mirror, whether the operator would have had good
1327
visibility Of the area behind the loader, and whether there were any blind spots when the operator looked to the rear of the loader. Within the framework of this record, I conclude that it has not been established that the hazard contributed to by the violation herein i.e., the possibility of a person being hit by the loader, was reasonably likely to have occurred. I thus conclude that it has not been established that the violation herein was significant and substantial.
According to Gadway, Barss indicated to him that the horn
and alarm were not functioning, and said that the loader in question had been brought onto the subject property a week prior to the date the Order was issued, "in this condition". (Tr. 231). Gadway testified that Barss told him that Bokus operated the loader, and "he should have known" (Tr. 231). Barss, who testified later on at the hearing, did not rebut this testimony, nor did Bokus testify in rebuttal to rebut this testimony. Hence, since a loader is operated both forward and reverse, and since Respondent's employees operated the loader for a week knowing the horn or backup alarm did not function, I conclude that the violation herein was as a result of than
more
ordinary
negligence, and constitued an unwarrantable failure. (See, Em_mg_e_e_e_e_e_e_e•,
su_•xa)
.
Taking into account the statutory factors in Section 110(i),
of the Act, and especially noting the degree of Respondent's negligence as discussed above, I conclude that a penalty of $500 is appropriate.
VII. Order No. 3594754
On October 22, 1991, Barss informed that
Gadway the parking
brakes the loader
on were not working. Gadway had Barss test
them, and he concluded that the parking brakes were not working. Gadway issued a Section 104(d)(1) order alleging a violation of 30 C.F.R. § 56.14101 which provides, as pertinent, that "...parking brakes shall be capable of holding the equipment with its typical load on the maximum grade it travels." Based on the testimony before me, I conclude that this standard has been violated as alleged by Gadway.
Gadway indicated that there was no engine shut-off, and thus
an injury, as
consequence a of the violation herein, was
reasonably likely to have occurred. He said that the area where the loader loads the trucks is not completely level, but that there are "small ups and downs". (Tr. 240) He said that there are grades where the loader could roll to the stockpile. There is no evidence with regard to the specific terrain in the immediate area where the loader would have stopped, and remained stopped in its normal operation. Within this framework, I conclude that it has not been established that the violation was significant and substantial.
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When Barss was Gadway
asked if the byalarm horn and parking
brake were functioning, indicated, in
Barss essence, that the
loader had been brought on the property a week ago in this condition, and everybody had operated it, including Bokus. For the reasons set forth above, VI, infra, I conclude that the violation herein resulted from more than ordinary negligence and constituted an unwarrantable failure.
Taking into account the factors set forth in Section 110(i)
of the Act, and considering the degree of Respondent's negligence, I find that a penalty of $500 is appropriate.
VIII. Citation No. 3594758
Gadway indicated that on October 22, 1991, he had explained
to Barss that he was issuing an Order requiring that the loader not be used until repaired, and that MSHA should be notified by the Operator (Respondent) that repairs have been done before the Operator would be allowed to use it.
Subsequent to the issuance of the i04(d)(1) Orders discussed
above, VI, and VII, infra, Barss ordered parts to repair the parking brakes, and replaced the fuses for the horn and back-up alarm on October 22. However, MSHAwas not informed.
On October 23, 1991, at approximately 9:00 a.m., Gadway
returned to the subject property. He observed the same loader that had been cited the day before, loading crushed stone from the stockpile, and transporting it to the asphalt bin. According to Gadway, he left the premises after Bokus had told him that MSHA did not have jurisdiction the asphalt plant, over and the stockpiles. Gadway subsequently returned at approximately 11:40 a.m. At that time, he asked Bokus how many trucks had been loaded. Gadway indicated that Bokus informed him that three
trucks had been loaded with the loader.
Mace, who works in the office, indicated that she heard all
of Bokus' conversation on October with
23 Gadway, and that Bokus
did not say that he loaded three trucks with the loader. In rebuttal, Gadway explained that upon his arrival at the site at
approximately 11:40 a.m., he spoke to Bokus who informed him that he had loaded trucks with loader. the Gadway said that this conversation took place at the right side of the garage, which is not within the line of sight of the office where Mace works. Bokus did not contradict this testimony. I therefore accept it.
On October 23, 1991, Gadway issued a Citation alleging a
violation of Section 104(d)(1), of the Act which, as pertinent, provides that once an Order has been issued under section 104(d)(1), persons in the affected area shall be withdrawn, and be prohibited from entering such area until an authorized representative of the Secretary determines that such violation
1329
has been abated.
Within the of framework the above discussed evidence of
record, I find loader that the in issue was subject to two Section i04(d)(1) Orders, and yet Respondent operated it prior to a determination by Gadway that the violative conditions had been abated. Accordingly, I find that the Citation issued by Gadway was properly issued and is to be affirmed.
The record indicates that Respondent was made aware that the
loader should not have been operated until it had been repaired, and MSHA was notified of that fact. Respondent's belief that MSHA had no jurisdiction over the stockpile is insufficient to mitigate its non-compliance with the Orders at issue. The proper course was to have complied with the Orders, and then to have filed a Notice of Contest to challenge the issuance of the Orders. Thus, the violation herein resulted from a high degree of Respondent's negligence. I find that a penalty of $i,000 is appropriate for this violation.
ORDER
It is ORDERED that: (i) The following Orders are to be
vacated and dismissed: Orders No. 3593041, 3593042, 3594752 and 3594756; (2) The following Orders are to be amended to reflect the fact that the violations alleged therein are not significant and substantial: Orders No. 3593043, 3594753, and 3594754; and, (3) Respondent shall pay, within 30 days of this decision, a civil penalty of $2,450 for the
viol•ons found herein.
/ /
Administrative Law Judge
Distribution:
William G. Staton, Esq., Office of the Solicitor, U. S. Department of Labor, 201 Varick Street, New York, NY 10014
(Certified
Mail)
Mr. W. J. Bokus, President, Bokus
W. J. Industries, Inc., 30 Mill
Road, Greenfield Center, NY 12833 (Certified Mail) nb
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