Genstar Stone Products Co.

Plain-English summary

Genstar Stone Products operated a quarry where a haul-truck driver was cited for not wearing a seat belt. The judge found that the driver was not wearing the belt and affirmed the underlying violation. The judge rejected the significant-and-substantial finding because the evidence did not establish a reasonable likelihood of an accident under the conditions observed, and also found low negligence and non-serious gravity. The citation was modified to non-S&S Section 104(a), and the penalty was reduced to $50.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14131(a)
• Outcome: The seat-belt violation was affirmed, the S&S designation was vacated, the citation was modified to non-S&S Section 104(a), and the penalty was set at $50.
• Key point: The seat-belt violation was proven, but the surrounding facts did not establish the reasonable likelihood required for an S&S finding.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. GENSTAR STONE PRODUCTS
DDATE:
19930623
TTEXT:

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 92-124-M
Petitioner : A.C. No. 18-00035-05508
v. :
: Medford Quarry
GENSTAR STONE PRODUCTS CO., :
Respondent :

                           DECISION

Appearances: Gayle Green, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Kevin Sniffen, Esq., Genstar Stone Products
Company, Hunt Valley, Maryland, for the
Respondent.

Before: Judge Koutras

                  Statement of the Case

 This proceeding concerns a proposal for assessment of civil

penalty filed by the petitioner against the respondent pursuant
to section 110(a)of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), seeking a civil penalty assessment of
$168 for an alleged violation of mandatory safety standard
30 C.F.R. 56.14131(a), which requires seat belts to be provided
and worn in haulage trucks. The respondent filed a timely
contest and answer conceding the fact that the cited truck
operator was not wearing the seat belt, but contesting the
inspector's finding that the violation was "significant and
substantial" (S&S). A hearing was held in York, Pennsylvania,
and the parties filed posthearing briefs which I have considered
in the course of my adjudication of this matter.

                            Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the cited standard as alleged in the
proposal for assessment of civil penalty, (2) whether the
violation was "significant and substantial", and (3) the
appropriate civil penalty that should be assessed based on the
criteria found in section 110(i) of the Act. Additional issues

raised by the parties are identified and disposed of in the
course of this decision.

      Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977,
 Pub. L. 95-164, 30 U.S.C.  801 et seq.

 2.   Section 110(i) of the 1977 Act, 30 U.S.C.        820(i).

 3.   30 C.F.R.   56.14131(a).

 4.   Commission Rules, 20 C.F.R.     2700.1 et seq.

                       Stipulations

 The parties filed the following prehearing stipulations:

 1.   Medford Quarry is owned and operated by the respondent.

 2. Medford Quarry is subject to the jurisdiction of the
 Federal Mine Safety and Health Act of 1977 ("the Act").

 3. The presiding Administrative Law Judge has jurisdiction
 over the proceeding pursuant to  105 of the Act.

 4. The citation and termination were properly served by a
 duly authorized representative of the Secretary upon an
 agent of the respondent at the date, time, and place stated
 therein and may be admitted into evidence for the purpose of
 establishing their issuance.

 5. The parties stipulate to the authenticity of their
 exhibits but not to the relevance or the truth of the
 matters asserted therein.

 6.   The alleged violation was abated in a timely manner.

 7. The violation of 30 C.F.R.    56.14131(a), occurred as
 described in Citation No. 3869428, issued March 24, 1992.
 The parties do not agree, however, with respect to the
 Inspector's assessment of the gravity and negligence of the
 violation.

 8. The computer printout reflecting the respondent's
 history of violations is an authentic copy and may be
 admitted as a business record of the Mine Safety and health
 Administration.

 With regard to the proposed stipulations concerning the

Quarry production, Nos. 8 and 9, the respondent's counsel stated
that the total annual production of the Medford Quarry is

approximately 600,000 to 700,000, tons per year, rather than the
65,630, stipulated amount previously submitted by the parties,
and that the total company production is greater than the 1.8
million production figure submitted by the parties (Tr. 7).

                       Discussion

 The contested section 104(a) "S&S" Citation No. 3869428,

issued by MSHA Inspector Elwood S. Frederick, on March 24, 1992,
citing an alleged violation of mandatory safety standard
30 C.F.R. 56.14131(a), states as follows:

 The operator of the stock truck company No. 603 was not
 wearing his seat belt. This truck was being operated
 in and around the plant area hauling material to
 stockpiles.

           Petitioner's Testimony and Evidence

 MSHA Inspector Elwood S. Frederick confirmed that he issued

the citation in question in the course of a regular inspection at
the respondent's quarry site on March 24, 1992, and that he was
accompanied by the mine superintendent. Mr. Frederick stated
that while with the superintendent in his pickup truck in the bin
area he noticed that the cited truck that had just dumped a load
of crushed stone material was proceeding down the slight grade
from the stockpile with the truck bed in the air. The driver
was lowering the bed as he was traveling down the road.
Mr. Frederick stated that he waited until the truck pulled into
the bin area, and as it was pulling in under the bin he walked
toward the truck and motioned the driver to open the door because
he wanted to speak with him about traveling with the truck bed in
the air. When the driver opened the door Mr. Frederick observed
that the seat belt was hanging down between the door and the
seat. When he asked the driver about it, the driver informed him
that he unhooked the seat belt when Mr. Frederick motioned to him
and that the belt fell down. Mr. Frederick stated that he
observed that the driver had both hands on the steering wheel as
he was pulling into the bin area and he informed the driver that
he was issuing a citation for not wearing his seat belt and told
him that he was not to travel around the plant with the truck bed
in the air (Tr. 14-16).

 Mr. Frederick stated that the superintendent informed him

that his people are instructed not to travel with truck beds
raised in the air (Tr. 17). Mr. Frederick did not believe that
the driver had just unhooked his seat belt after he motioned to
him because he observed the driver with both hands on the wheel
and that the driver "had to be pretty fast to unbuckle that"
(Tr. 18). Mr. Frederick stated that "the road was fairly wide
and in fairly decent shape", and that the cited truck was

traveling approximately ten miles an hour and one other truck was
also hauling material (Tr. 20-21).

 Mr. Frederick stated that he considered the violation to be

significant and substantial because the truck bed was raised and
the driver was coming down a slight grade. With the bed in the
air, the center of gravity of the truck changed and it could
upset very easily. Mr. Frederick was aware of documented
accidents where trucks have hit potholes and overturned, or a
driver applies his brakes to avoid another truck and loses
control of the vehicle (Tr. 22). Mr. Frederick did not cite the
truck for having the bed raised, but in hindsight, stated that
"I should have issued an imminent danger order" (Tr. 24).

 Mr. Frederick stated that traveling with the truck bed

raised was not a good safety practice, and MSHA requires that the
bed be down to the horizontal position after a driver dumps a
load at the stockpile and leaves the area. He also alluded to
several hazards associated with stockpiles, and confirmed that
the stockpile in question was well-maintained (Tr. 25-29). He
confirmed that he based his "S&S" finding on the raised bed of
the truck changing the center of gravity of the truck, and not
because of any stockpile conditions. He also indicated that
there was one other vehicle in the area, and that if the driver
hit a pothole or something in the road, "he has more likelihood
of upsetting that truck" (Tr. 30). He also believed that by
allowing the driver to continue to operate the truck with the bed
in the air "it's reasonably likely if nothing's ever done that
there will be an accident". The failure to wear a seat belt
would contribute to the severity of an accident if one were to
occur, and he was aware of accident reports where a driver not
wearing a seat belt was propelled about his cab and was killed
after striking his head. He believed that a driver with his seat
belt fastened "stands a greater chance of not coming out with
serious injury or fatality than he does if he's not wearing a
seat belt" (Tr. 31-33).

 Mr. Frederick stated that he based his "moderate" negligence

finding on the fact that the respondent "does a good job", and
had a seat belt policy which it enforced, including disciplinary
action against its employees (Tr. 34, 37). Mr. Frederick stated
that if the truck bed were not raised, he would not consider the
failure to wear a seat belt to be "S&S" because the truck would
have been stable with the bed down (Tr. 42). The violation was
abated the same day it was issued after he instructed the truck
driver to hook up his belt and the driver was disciplined by the
respondent (Tr. 44).

 On cross-examination, Mr. Frederick confirmed that he was

familiar with MSHA's policy guidelines concerning "S&S"
violations, and the requirement that any "S&S" finding should be
consistent with the information recorded in his notes and

evaluation of all of the facts. He confirmed that the citation
and his notes do not mention that the raised truck bed was the
basis for his "S&S" finding (Tr. 47). He stated that the fact
that the bed was raised was significant, but that " a lot of
things we don't put in our notes", and he conceded that "to a
certain degree", he did not comply with MSHA policy in this
regard (Tr. 48).

 Mr. Frederick confirmed that when he issued the citation,

the stockpile was in good shape and the road was smooth and well-
maintained "to a degree", and the truck was traveling on a slight
incline at a safe speed (Tr. 52). He reiterated that he based
his "S&S" finding on the fact that the truck bed was in the air,
thereby changing the center of gravity of the truck, and the
presence of other vehicles in the area (Tr. 57). The raised
truck bed was a contributing factor to his "S&S" finding, and the
failure to wear a seat belt contributed to the severity of any
accident (Tr. 57-59). Mr. Frederick confirmed that he has issued
seat belt violations which he did not consider were "S&S"
violations (Tr. 63-64).

 In response to further questions, Mr. Frederick confirmed

that the truck driver in question was beginning to lower his
truck bed as he drove away from the stockpile, and it was down
when he pulled into the bin area (Tr. 67-68). He confirmed that
the respondent had established "rules of the road and traffic
patterns" for its vehicles (Tr. 71). He confirmed that the other
truck that he previously referred to was not in close proximity
to the truck that he cited, but it was possible for both trucks
to pass each other in opposite directions on the roadway
(Tr. 71). Mr. Frederick also explained the dumping of material
at the stockpile, and he conceded that he had no knowledge as to
whether the driver was wearing his seat belt while operating at
the stockpile area (Tr. 75-77). Mr. Frederick was not aware of
any prior seat belt violations at the respondent's quarry
(Tr. 81).

Respondent's Testimony and Evidence

Gene Larrick, quarry superintendent, confirmed that he was with
Inspector Frederick at the time the citation was issued.
Mr. Larrick confirmed that he observed the truck leaving the
stockpile with the truck bed up, but he did not observe the
driver without his belt on. Mr. Larrick also confirmed that the
driver was disciplined for driving with his truck bed raised and
for the seat belt violation (Tr. 90). He confirmed that the
respondent has a policy that drivers not leave dumping areas with
their truck beds raised, and that he and his supervisors
periodically check to see that employees wear their seat belts.
He stated that the respondent has a mandatory policy requiring
the wearing of seat belts at all times on equipment without
rollover protection (Tr. 91). He also confirmed that the

respondent has a Job Safety Analysis (JSA) for employees covering
safety procedures at dumping areas and that seat belt training is
provided to employees (Tr. 91-92).

 Mr. Larrick stated that he remained in his pickup truck in

the bin area while Mr. Frederick went to the truck to speak to
the driver, and that Mr. Frederick returned and told him that the
driver did not have his seatbelt on. Mr. Larrick confirmed that
he did not speak to the driver himself, and that Mr. Frederick
served the citation on him at the end of his inspection review.
Mr. Larrick stated that he spoke to the driver at a later time
and the driver told him that he had his seat belt on (Tr. 100).
Mr. Larrick confirmed that the driver received a written warning
for "a combination of the bed up and not wearing the seat belt"
(Tr. 105). Mr. Larrick stated that he used the inspector's
observation to support the warning given to the driver for not
wearing a seat belt (Tr. 106).

 On cross-examination, Mr. Larrick agreed that driving a

truck with the bed raised is a poor safety practice and against
company policy. The policy is based on safety considerations
(Tr. 107-108). Since he did not accompany the inspector when he
approached the truck to speak with the driver, Mr. Larrick could
not give an opinion as to whether or not the driver had just
disconnected his seat belt at that time (Tr. 109). Mr. Larrick
agreed that a raised truck bed could cause a problem with the
truck's center of gravity under certain conditions. Insofar as
the truck striking a pothole and becoming unstable is concerned,
Mr. Larrick stated that one would have to define a "pothole" and
stated "yes, it could happen. Anything can happen" (Tr. 110-111)

 Jeff Carrey, respondent's safety supervisor, explained the

respondent's training policy with respect to safety and seat
belts (Tr. 112-114). He confirmed that he was familiar with the
citation issued by Mr. Frederick in this case and that he
participated in the closing inspection conference and discussed
the citation with the inspector (Tr. 115). He stated that he was
told at these meetings that "it was being written as "S and S"
because the program policy manual indicated that they had to
write it "S and S" and that the inspector's "hands were tied"
because of the policy. The raised truck bed was discussed as a
separate issue (Tr. 115).

 On cross-examination, Mr. Carrey confirmed that he was aware

of MSHA's program policy concerning seat belts and whether it
should be an "S&S" violation, and he stated that "I see a lot of
MSHA inspectors, and their interpretation to me has been that the
seat belt violation is always an "S&S" violation (Tr. 119). He
confirmed that his understanding of the policy language is that
"under most circumstances", such a violation is "S and S"
(Tr. 119).

 Mr. Carrey confirmed that the truck driver who was warned

took the matter no further (Tr. 120). He also confirmed that the
driver had previously been disciplined for leaving work early,
and that he had been involved in past accidents when he collided
with two county trucks (Tr. 128-129). Mr. Carrey further
confirmed that the quarry had never been previously cited for any
seat belt violations (Tr. 129).

 Inspector Frederick was recalled by the presiding judge, and

he reiterated how he determined that the truck driver in question
was not wearing his seat belt. Mr. Frederick stated that the
driver told him that he had his seat belt on, and Mr. Frederick
stated that he informed the driver that "the indications to me as
an inspector, you did not" (Tr. 123). Mr. Frederick stated that
the driver was not sitting on the seat belt, that it was hanging
down between the door and the seat, and he explained further as
follows at (Tr. 125):

    A. Well, I based everything on the fact that when he
    opened the door that I seen the seat belt hanging down.
    Now, if it was laying up on his lap, it's very possible
    that he could have unhooked it and it was unhooked
    laying on his lap. But with the belt hanging down
    between the seat and the door it was an indicator to me
    that he did not have it on. He was not getting out of
    the truck. He was still sitting in the seat of the
    truck.

 Roger McClintock, MSHA Special Investigator, was called as a

rebuttal witness by the petitioner. He explained his duties and
confirmed that he was familiar with MSHA's enforcement policies.
He stated that he has also served as an MSHA inspector and
training specialist, and he explained that the seat belt policy
is only a "guideline" for an inspector to use when evaluating a
seat belt violation. Mr. McClintock explained his understanding
of why Inspector Frederick found the violation to be "S&S", and
he indicated that if an accident occurs without the driver
wearing a seat belt, "the severity of that accident is going to
be much greater" (Tr. 135). He agreed with Mr. Frederick's "S&S"
finding because "he knew the operator did not have his seat belt
on . . . and he suspected that he came off the . . .possibly came
off the pile with the bed in the air and with the machine in an
unstable, you know, condition" (Tr. 138).

 On cross-examination, Mr. McClintock confirmed that he was

aware of the definition of "significant and substantial", and in
his opinion, although the failure to wear a seat belt may not
cause an accident, it can affect an accident (Tr. 139).
Mr. McClintock further confirmed that there has to be a
reasonable likelihood of an accident and not just a remote
possibility. He confirmed that he was not present at the time

the citation was issued and could not attest to the prevailing
conditions
(Tr. 142).

                Findings and Conclusions

Fact of Violation

 The respondent is charged with a violation of mandatory

standard 30 C.F.R. 56.14131(a), which states that "Seat belts
shall be provided and worn in haulage trucks". In support of the
violation, the petitioner points out that in its answer filed in
this case the respondent stated that it "does not dispute the
fact that the operator of the stock truck was not wearing his
seat belt". The petitioner also relies on the inspector's
testimony that when the driver opened the truck cab, he observed
that the seat belt was hanging down between the door and the
seat, and that when the driver was pulling his truck into the bin
area just prior to stopping and opening his door, both of his
hands were on the steering wheel. The petitioner concludes that
the clear inference from the time sequence of these observations
by the inspector is that the driver was not wearing his seatbelt
while driving the truck.

 The petitioner asserts that the only indication of record

that the facts were not as stated above is the signed statement
of the truck driver, Mr. Francis Dorsey (Exhibit R-1). The
statement, which is dated March 9, 1993, reads in relevant part
as follows:

 . . . .The safety inspector Gene Larrick was setting in
 Gene's truck talking about 50 Ft. away. The inspector
 got out was (sic) coming toward my truck being (sic)
 loaded. I open my door starte (sic) out to meet (sic)
 because in our J S A no one should walk under bins when
 plant (sic) in operator (sic). He pointed and yelled
 get back in and close door. I did not put my seat back
 (sic) on. Its Genstar's rule that everyone must wear
 seat belts when driving truck and etc.

 The petitioner maintains that Mr. Dorsey's statement is mere

hearsay and is entitled to little, if any, weight. In addition
to the fact that the statement was not given under oath, the
petitioner asserts that it is also ambiguous and unclear. As an
example, the petitioner states that it is unclear who Mr. Dorsey
was referring to in the phrase "he pointed and yelled get back
in" or what the statement "I did not put my seat back on" means.
Under the circumstances, the petitioner concludes that
Mr. Dorsey's statement is highly unreliable evidence, and that it
contradicts the other evidence in the record. The petitioner

points out that neither the inspector, nor superintendent
Larrick, who waited in his truck while the inspector and
Mr. Dorsey talked, reported seeing Mr. Dorsey make any attempt to
get out of the truck.

 The petitioner concludes that Mr. Dorsey's statement cannot

overcome the sworn testimony of the inspector, which was subject
to cross examination, as to what happened. Further, given the
fact that Mr. Dorsey was disciplined for not wearing his seat
belt, the petitioner concludes that even the respondent believed
the inspector's conclusion that Mr. Dorsey was not wearing his
seat belt, and did not believe Mr. Dorsey's story.

 Relying on Mr. Dorsey's statement, the respondent maintains

that Mr. Dorsey was wearing his seatbelt at the time of the
alleged violation. The respondent asserts that Mr. Dorsey's
explanation is logically supported by the facts presented, and it
relies on Mr. Dorsey's contention that he was attempting to get
out of the truck when the inspector motioned for him to open the
door of the truck, and concludes that it was then that Mr. Dorsey
most likely unbuckled his seatbelt. Since the seatbelt was
between the door and the seat, the respondent believes that the
belt was buckled and then fell off Mr. Dorsey's lap when he
unbuckled it, as opposed to not having been worn at all and found
on the seat under him.

 The respondent points out that the inspector admitted that

he did not actually see Mr. Dorsey operating the truck without
wearing his seatbelt, and simply observed that the belt fell out
of the truck when Mr. Dorsey opened the door. Under the circum-
stances, the respondent concludes that the inspector relied on
circumstantial evidence that Mr. Dorsey was not wearing his
seatbelt. Acknowledging the fact that it is almost impossible to
catch a driver "in the act" of not wearing his seatbelt, the
respondent contends that the inspector ignored persuasive and
convincing evidence that Mr. Dorsey had his seatbelt on and
unbuckled it to open the door when the inspector approached his
truck, as he was trained to do under the respondent's policy and
common practice. The respondent believes that Mr. Dorsey's
story is the more credible and logical explanation of the facts
and refutes the circumstantial evidence presented by the
petitioner. Finally, the respondent asserts that Mr. Dorsey
contested the violation and the reprimand he received "by writing
and meeting with MSHA (the MSHA inspector and his supervisor) and
Genstar's representatives to discuss the alleged violation".

 In its answer filed on October 8, 1992, the respondent

stated as follows: "Genstar does not dispute the fact that the
operator of the stock truck was not wearing his seat belt".

Further, the record reflects that on February 18, 1993, the
petitioner's counsel submitted prehearing stipulations agreed to
by the parties, and included therein is stipulation No. 7, which
states as follows:

 The violation of 30 C.F.R.   56.14131(a), occurred as
 described in Citation No. 3869428, issued March 24,
 1992. The parties do not agree, however, with respect
 to the inspector's assessment of the gravity and
 negligence of the violation.

 I take note of the fact that at the time the stipulations

were submitted the parties reserved the right to amend or
supplement their prehearing statements following further trial
preparation and within a reasonable time before the hearing.
However, during opening statements at the hearing, the previously
filed stipulations were reviewed by the parties, and except for a
minor disagreement concerning the respondent's production,
respondent's counsel agreed with the remaining stipulations,
including Stipulation No. 7, quoted above (Tr. 6-8). Further, at
the close of the petitioner's case, the respondent's counsel
agreed that there was no dispute as to the fact of violation (Tr.
82). However, he then proceeded to rely on Mr. Dorsey's
statement in support of his motion for summary judgement, and
argued that the statement establishes that Mr. Dorsey unbuckled
his seat belt when he got out of his truck, or was exiting the
vehicle, "the inference being that he was wearing his belt up to
that point" (Tr. 83). The motion for summary judgement was
denied (Tr. 85), and counsel's alternative motion for judgement
on the ground that the evidence did not support the inspector's
"S&S" finding was taken under advisement, and counsel proceeded
with his defense (Tr. 87-88).

 Mr. Dorsey was not called to testify in this proceeding, nor

was he deposed by either party. Insofar as his unsworn statement
is concerned, I find it lacking in reliability and somewhat
confusing and I have given it little weight. Although the
respondent's counsel suggested that the statement was prepared
and witnessed by Mr. Larrick, when asked if this was true,
Mr. Larrick responded "it was just prepared and then I did read
the statement" (Tr. 92). Further, although Mr. Larrick confirmed
that he questioned Mr. Dorsey after the citation was issued and
stated that Mr. Dorsey told him that he did have his seat belt
on, I take note of the fact that Mr. Dorsey's statement is dated
March 9, 1993, more than a year after the issuance of the
citation.

 Mr. Larrick testified that he remained in his own pickup

truck while the inspector approached Mr. Dorsey's truck, and
although Mr. Larrick stated that most drivers will get out of
their trucks and come to his truck when he is in the bin area, he
did not state that this was case with Mr. Dorsey. Indeed,

Mr. Larrick doubted that Mr. Dorsey knew that Mr. Frederick was
an inspector when he approached his truck, and he indicated that
Mr. Dorsey initially opened the door as the inspector approached
his truck, and then closed it again (Tr. 94).

 Inspector Frederick testified that as he approached

Mr. Dorsey's truck, he motioned for him to open his door because
he wanted to discuss his travelling with the truck bed in the
air. When the door was opened, Mr. Frederick noticed the seat
belt hanging down between the door and the seat, and he stated
that Mr. Dorsey told him that he had just unhooked it after
Mr. Frederick had motioned to him (Tr. 15-16). However,
Mr. Frederick obviously did not believe him since he issued the
citation, and he did so because he observed that Mr. Dorsey had
both hands on the steering wheel as he pulled into the bin area
and did not believe that he had time to unhook his belt as he
claimed (Tr. 16, 18).

 Mr. Larrick testified that Mr. Dorsey was disciplined for

having his truck bed up as well as not having his seat belt on
(Tr. 105). Mr. Larrick confirmed that he did not personally see
the seat belt when Mr. Dorsey opened the truck door for the
inspector and that he could not state an opinion as to whether or
not Mr. Dorsey had just disconnected his seat belt before opening
the door. Mr. Larrick further confirmed that he relied on the
inspector's observations to support the disciplinary action taken
against Mr. Dorsey (Tr. 106).

 The respondent's assertion that Mr. Dorsey contested the

violation and the company's disciplinary action taken against him
suggests that Mr. Dorsey formally appealed his reprimand and
therefore lends credence to his claim that he was wearing his
seat belt. I reject any such conclusion. The respondent's
safety supervisor, Jeff Carrey, explained that in addition to the
inspection closing conference, Mr. Dorsey sent a letter to MSHA,
and met with the inspector and his supervisor, to state his
position and disagreement with the inspector's finding that he
did not have his seat belt on (Tr. 114). However, Mr. Carrey
confirmed that since no company official observed the incident
regarding the seat belt citation, the respondent agreed with the
inspector and gave Mr. Dorsey a warning, and the matter went no
further within the company (Tr. 120-121). Mr. Larrick confirmed
that Mr. Dorsey has been involved in other "incidents" with the
truck other than seat belts, including collisions with two county
trucks (Tr. 128-219).

 After careful review of all of the testimony and evidence

adduced in this proceeding, and apart from any admissions and
stipulations made by the respondent with respect to the
violation, I conclude and find that the petitioner has
established through a preponderance of all of the credible
evidence and testimony, albeit circumstantial, that Mr. Dorsey

was not wearing his seat belt when he drove his truck into the
bin area after departing from the stockpile area on the day in
question. I further conclude and find that the failure by
Mr. Dorsey to wear his seat belt constitutes a violation of the
cited section 56.14131(a), and the violation issued by the
inspector IS AFFIRMED.

Significant and Substantial Violations

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      In order to establish that a violation of a
 mandatory safety standard is significant and
 substantial under National Gypsum the Secretary of
 Labor must prove: (1) the 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.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

      We have explained further that 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 Mining Co., 6 FMSHRC 1834,
 1836 (August 1984). We have emphasized that, in
 accordance with the language of section 104(d)(1), it
 is the contribution of a violation to the cause and
 effect of a hazard that must be significant and
 substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
 1866, 1868 (August 1984); U.S. Steel Mining Company,
 Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 The question of whether any particular violation is

significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987). Further, any determination of the significant
and substantial nature of a violation must be made in the context
of continued normal mining operations. National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Company, 6 FMSRC 1573, 1574
(July 1984); U.S. Steel Mining Co., Inc., 7 FMSHRC 327, 329
(March 1985). Halfway, Incorporated, 8 FMSHRC 8, (January 1986).

The Petitioner's Argument

 The petitioner maintains that the violation was significant

and substantial (S&S). In support of its position, the
petitioner asserts that the record reflects the existence of a
discrete safety hazard, or a measure of danger to safety,
contributed to by the violation. The petitioner argues that
there was extensive testimony concerning the safety effects of
not wearing seat belts in haulage truck accidents, and it cites
Inspector Frederick's testimony concerning accident reports that
he had studied and reviewed showing injuries and fatalities
resulting from the failure to wear seat belts, and establishing
that a person secured in a seat belt stands a greater chance of
avoiding serious injury or death in an accident. The inspector
alluded to operators being propelled around inside their truck
cab or being ejected from the truck and either sustaining serious
injuries on impact from the fall or being struck or run over by
the truck itself. The petitioner also cites the testimony of
Supervisory Special Investigator McClintock concerning his review
of numerous haulage truck accidents, both fatal and non-fatal,
which the petitioner believes establishes that the failure to
wear seat belts constitutes a discrete safety hazard that
contributes to a measure of danger to safety because it
contributes to the severity of an injury suffered in an accident,
and can mean the difference between severely disabling injuries
and minor injuries.

 The petitioner further argues that the facts presented in

this case support a conclusion that there was a reasonable
likelihood that the hazard contributed to by the violation would
result in a reasonably serious injury from a haulage truck
accident, and that it was reasonably likely that such an
accident, and resulting injury, would occur. In support of this
conclusion, the petitioner asserts that a truck travelling with
its bed in the air causes the center of gravity of the truck to
shift, and it becomes less stable and easily subject to upset.
The petitioner points out that the respondent admitted that
travelling with the bed up is an unsafe practice that affects the
stability of the vehicle, that it is against company policy, and
that employees have been instructed not to do it.

 The petitioner maintains that the practice of traveling with

the truck bed raised itself makes it more likely that a haulage
accident will occur, and that other factors observed by the
inspector, in combination with the raised bed, made an accident
reasonable likely. These "other factors" included two-
directional traffic on the same road going to the stockpile,
another haul truck operating in the same area and at the same
time hauling from the bins to the stockpile, a slightly graded
roadway, and the existence of a stockpile which is made of
material that is not compacted and is affected by weather
conditions. The petitioner asserts that all of these factors
contributed to the inspector's assessment that an accident was
reasonably likely, and that any injury received as a result of
the accident would be reasonably serious.

 The petitioner denies the respondent's contention that

Inspector Frederick based his "S&S" findings on MSHA's June 27,
1990, Program Policy Letter regarding the wearing of seat belts,
and his belief that the policy required all seat belt violations
to be cited as "S&S", rather than on the facts and conditions
that he observed at the time the citation was issued. The
petitioner points out that the policy letter does not state that
all seat belt violations are "S&S", and merely states that the
failure to provide, maintain, or wear seat belts is a serious
safety hazard and under most circumstances should be a
significant and substantial violation. The petitioner agrees
that the appropriateness of an "S&S" designation depends on the
facts and circumstances observed at the time a citation is
issued, and it maintains that the inspector's testimony
establishes that he relied on all of the aforementioned
conditions he observed. The petitioner also points out that
Inspector Frederick has issued non-"S&S" seat belt citations in
the past and confirmed that he would not have designated the
contested citation as "S&S" if the conditions had been different.

 Commenting on three cases cited by the respondent's counsel

in the course of the hearing in which seat belt violations were
found not to be "S&S", the petitioner points out that in two of
those cases, the inspectors did not cite the violations as "S&S"
(Island Construction Co., Inc., 11 FMSHRC 877 (April 1990); Brown
Brothers Sand Co., 12 FMSHRC 877 (April 1990). In Brown
Brothers, the petitioner states that the violation was not "S&S"
because the loader was being operated in a level area and there
were no facts that would make it likely that it would strike
other equipment or roll over. In the third case, Bennett
Trucking Co. and B & S Trucking Company, 12 FMSHRC 1038 (May
1990), the petitioner points out that the cited regulation,
section 77.1710(i), applied only to vehicles where there was a
danger of overturning, which was not established in that case,
whereas the language of the cited seat belt regulation in the
instant case is mandatory for all haulage trucks. Further, as
previously discussed, the petitioner states that there were a

combination of factors, the most important one being the fact
that the truck was travelling with its bed raised, in itself an
unsafe practice against company policy, that made it reasonably
likely that an accident would occur. Under the circumstances,
the petitioner concludes that the cases relied on by the
respondent do not lend support to its position that the violation
should not have been cited as "S&S".

The Respondent's Argument

 Citing the Commission's National Gypsum Company decision,

supra, and MSHA's policy manual guidelines for determining "S&S"
violations, the respondent maintains that it must be shown that
there was a reasonable likelihood of a serious accident, based on
the surrounding facts of the case, before the contested violation
can be designated as "S&S". The respondent asserts that an
objective standard of reasonable likelihood requires that the
probability of a serious accident resulting from a violation be
more than just remote or speculative. On the facts of this case,
the respondent concludes that there did not exist a reasonable
likelihood that a hazard or accident would have occurred on the
day in question.

 The respondent further argues that MSHA's policy manual

states that before designating a violation as "S&S", a serious
injury must be "reasonably likely" to occur if the violation is
not abated. Citing Bennett Trucking Company, 12 FMSHRC 1038
(May 1990), the respondent maintains that the petitioner must
first establish the danger of the truck overturning before a
seatbelt violation could be designated as "S&S". The respondent
submits that MSHA's policy, and the case law, require that such
danger be reasonably likely, not just possible, and that the
inspector supported this position by admitting that he had first
determined that an accident was reasonably likely from the
truck's bed being in the air before stating that the seatbelt
violation would only then contribute to the severity of any
injuries.

 The respondent contends that the evidence in this case does

not support the inspector's application of the "reasonable
likelihood" standard. In order for the inspector to have
properly determined that the violation was "S&S", the respondent
believes that he would have been required to find that there
existed the "reasonable likelihood" that the truck would have
overturned simply from having its bed being lowered as it pulled
away from a stable stockpile. The respondent asserts that there
was no evidence of any other unsafe conditions that could have
contributed to a potential accident, and that without the
presence of other factors, such as an unstable stockpile, or a
roadway pot hole, the probability of the truck overturning is
speculative at best, much less reasonably likely to have
occurred.

 The respondent concludes that the petitioner offered no

other evidence to support the inspector's "S&S" finding other
than references to irrelevant cases and studies which involved
factors not present in the instant case.

 The respondent emphasizes the fact that there has never been

an instances at its quarry where a truck has overturned from
lowering its bed while safely proceeding down a slight grade, and
that the inspector could not recall of any instances in his
experience where this has occurred without some other unsafe
force or factor involved.

 The respondent points out that MSHA's policy manual dealing

with "S&S" violations provides that an inspector shall include
all of the factors relevant to his evaluation of a violation as
"S&S" in his inspection notes. Although the inspector claimed at
the hearing that he based his "S&S" finding on the fact that the
truck bed was up, and that he tries to include pertinent
information in his notes "right there on the spot", the
respondent points out that he made no mention of the truck bed
being up in the air in his notes or in the citation. The
respondent contends that the inspector gave little weight to the
raised truck bed when he designated the violation as "S&S". In
support of this conclusion, the respondent relies on the absence
of this information in the inspector's notes, and his statement
at the closing conference that his hands were tied because of
MSHA's seatbelt policy. The respondent submits that the raised
truck bed only became a significant factor once it decided to
challenge the seatbelt policy.

 Finally, the respondent maintains that on the basis of its

dealings with MSHA, it believes that the inspectors are
overzealously assessing all alleged seatbelt violations as "S&S"
pursuant to its policy statement, irrespective of mitigating
circumstances. Even assuming the existence of mitigating
circumstances, the respondent still believes that MSHA's policy
does not state the proper standard by which "S&S" violations
should be judged as required by its own policy that requires an
inspector to find that there is a "reasonable likelihood" of an
injury or illness in order to designate the violation as "S&S",
and not just a remote possibility of an accident, or the
presumption of an "S&S" violation based on the policy manual.
The respondent concludes that the inspector in this case
improperly applied MSHA's policy, as well as the case law, in
finding that the violation was "S&S".

 I conclude and find that whether or not Inspector Frederick

relied on MSHA's policy manual as the basis for his "S&S" finding
is not particularly critical. The Commission has held that such
policy instructions "are not officially promulgated and do not
prescribe rules of law binding upon an agency" (Commission). Old
Ben Coal Company, 2 FMSHRC 2806, 2809 (October 1980). However,

since the policy manual guidelines and instructions are intended
to provide instructions and assistance to inspectors as they go
about their daily inspection duties, and are relied on by the
industry so that it may be aware of MSHA's interpretations and
applications as a means of staying in compliance, I would expect
an inspector to follow the policy. In this case, the inspector
conceded that he failed to follow the policy with respect to
noting and documenting each essential factor that prompted him to
make his "S&S" finding.

 Although I find some merit in the respondent's suggestion

that MSHA's policy guidelines with respect to seat belt
violations provide a ready formula for an inspector to conclude
that all such violations are per se "S&S", I cannot conclude that
the inspector in this case made a per se finding of "S&S" based
solely on such a policy. However, I do take note of the fact
that the policy instructions which state that "the failure to
wear seat belts is a serious hazard and under most circumstances
should be a significant and substantial violation"; that "all
citations issued for failure to wear seat belts should be
reviewed for special assessment", e.g., violations cited as
contributing to serious injury or fatality, or violations
evaluated as having extraordinarily high gravity (highly likely
and fatal); and that "without mitigating circumstances, the
gravity evaluation of reasonably likely or highly likely, and
fatal would usually be justified" (without identifying examples
of mitigating circumstances), are rather suggestive and do
provide convenient and expedient ingredients for an inspector to
conclude that all seat belt violations are per se "S&S", without
considering all of the prevailing conditions mandated by the case
law to support such a finding.

 At the heart of the petitioner's case is its contention that

the raised truck bed, in combination with other factors, such as
two-directional traffic of the roadway, another truck hauling
from the bins to the stockpile, a slightly graded roadway, and a
stockpile made of material that is not compacted and is affected
by weather conditions, support the inspector's belief that an
accident was reasonably likely. However, as indicated by the
discussion which follows below, the testimony of the inspector
himself does not support the petitioner's suggestions that these
"other factors" made it reasonably likely that an accident would
have occurred. Having viewed the inspector in the course of the
hearing, and having carefully reviewed his testimony, I find it
to be rather contradictory, equivocal, and lacking in credible
support for his asserted reasons for his "S&S" finding.

 Inspector Frederick initially testified that he based his

"S&S" finding on the fact that the truck driver was travelling
down a slightly graded roadway with his truck bed in a raised
position, and the inspector believed that the truck could easily
upset because its center of gravity would shift with the bed in

the air (Tr. 22, 45). Although the inspector suggested that this
was an imminently dangerous situation, he did not issue an
imminent danger order or otherwise cite the raised truck bed
condition (Tr. 24). The inspector later testified that the
raised truck bed "was one of the contributing factors", rather
than "the direct cause" for his "S&S" finding (Tr. 57). He also
stated that any determination as to the type of citation he would
issue would depend on "the conditions at the time that the
violation is cited", and that MSHA's seat belt policy statement
"is only a guidance, it's not a set forth enforcement tool"
(Tr. 64).

 Inspector Frederick testified that the roadway was "fairly

wide and in fairly decent shape" (Tr. 19). Although
Mr. Frederick relied on several accident reports concerning
incidents at other mining operations where truck drivers hit
potholes and lost control of their vehicles, causing an overturn,
or encountered other vehicles on a roadway and lost control after
hitting their brakes (Tr. 22), there is no evidence that any of
these conditions ever existed at the respondent's mine or at the
time of the inspection. Indeed, while testifying that he also
relied on a general "history" of poorly maintained stockpiles and
trucks encountering overhead wires, the inspector conceded that
these conditions were different and distinguishable from those
presented in this case (Tr. 64-65). With regard to the accident
reports mentioned by special investigator McClintock, there is no
evidence that any of the conditions that may have been present
during those events were present in the instant case, and Mr.
McClintock confirmed that he was not present when the citation
was issued by Inspector Frederick,and Mr. McClintock could not
attest to the conditions that prevailed at that time (Tr. 142).

 There is no evidence in this case to establish that the

raised bed of the truck in question in fact changed its center of
gravity or affected its stability. Although the respondent
conceded that driving with the truck bed up was an unsafe
practice and against company policy, superintendent Larrick
testified that whether or not the truck's center of gravity could
be affected would depend on certain conditions. The evidence
establishes that the driver was lowering the truck bed as he
departed the stockpile area at a low rate of speed and there is
no evidence that he travelled for any substantial distance with
the bed completely in the air. Under the circumstances, I cannot
conclude that in the normal course of mining activities the
driver would have driven the truck with the truck bed
continuously in a raised position. Indeed, the evidence
establishes that when the truck reached the bin area, the truck
bed was completely down, and the inspector conceded that with the
bed down the truck would have been stable and he would not have
considered the fact that the driver did not have his seat belt
fastened to be an "S&S" violation (Tr. 41-42).

 Inspector Frederick confirmed that the driver "wasn't really

travelling fast", and he estimated the speed of the truck at 8 to
10 miles an hour as it left the slight incline away from the
stockpile area. The inspector also confirmed that the driver did
not travel the entire distance of 150 to 200 feet from the
stockpile area to the bin area with his truck bed raised, and
that he was lowering the bed as he left the stockpile area
(Tr. 68). The inspector further confirmed that the respondent
had established "rules of the road", passing routes, and a right-
hand traffic pattern in place (Tr. 70). Although he alluded to
other vehicle traffic on the roadway in question, he could not
recall any traffic in close proximity to the cited truck at the
time of his inspection (Tr. 71).

 The inspector conceded that he did not observe the driver

dumping his load at the stockpile, and that he did not know
whether he had his belt on or off when he was at the stockpile
area prior to pulling the truck into the bin area (Tr. 76-77).
The inspector also confirmed that the stockpile area "was well
maintained" (Tr. 28) and I find no evidence to support the
petitioner's suggestion that the stockpile materials in question
were not compacted or otherwise unstable.

 In view of the foregoing, and after careful consideration of

all of the evidence and testimony adduced in this case, including
the arguments advanced by the parties in support of their
respective positions, I conclude and find that the petitioner has
failed to make a case in support of its contention that the
violation cited by the inspector was significant and substantial
(S&S). Accordingly, the inspector's "S&S" finding IS VACATED,
and the contested citation IS MODIFIED to a non-"S&S" section
104(a) citation.

Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business

 I conclude and find that the respondent is a small-to-medium

size operator, and I find nothing to suggest that the payment of
the civil penalty assessment for the violation in question will
adversely affect the respondent's ability to continue in
business.

History of Prior Violations

 The parties stipulated to the admissibility of a computer

print-out purportedly containing a record of the respondent's
compliance record (Exhibit G-3). However, the document contains
no meaningful information. The inspector had no knowledge of the
respondent's compliance record and was unaware of any prior seat
belt citations issued at the quarry (Tr. 80-81). The
petitioner's counsel and MSHA supervisory Inspector McClintock
agreed that the document reflects no prior history of violations

for the two-year period preceding the issuance of the contested
citation in this case (Tr. 148-150). Under all of these
circumstances, and for purposes of a civil penalty assessment for
the violation which has been affirmed, I conclude and find that
the respondent has no history of prior assessed violations.

Negligence

 The inspector found that the violation resulted from a

"moderate" degree of negligence on the part of the respondent.
He confirmed that the respondent did a good job with its seat
belt program and that it held safety meetings, instructed its
drivers in the use of seat belts, periodically checked to make
sure its employees were in compliance, and disciplined them if
they were not (Tr. 34). The inspector testified that the
respondent "did a lot of things to protect their employees. They
had the seat belt policy, they enforced the seat belt policy,
they disciplined the people" (Tr. 37). The inspector indicated
that the cited driver "for some reason, I guess, forgot or didn't
pay much attention to what was going on and drove with the bed in
the air" (Tr. 67-69). Under all of these circumstances, I
conclude and find that there was a low degree of negligence on
the respondent's part.

Good Faith Compliance

 The parties have stipulated that the violation was abated in

a timely manner, and the inspector confirmed that it was
terminated the same day it was issued. I conclude and find that
the respondent demonstrated rapid good faith compliance in taking
the appropriate action to abate the cited condition.

Gravity

 I conclude and find that on the facts of this case, the

violation was non-serious.

                Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the civil penalty assessment criteria found
in section 110(i) of the Act, I conclude and find that a civil
penalty assessment of $50 is reasonable and appropriate for the
violation which has been affirmed.

                          ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

of $50, within thirty (30) days of the date of this decision and
order. Payment is to be made to the petitioner (MSHA), and upon
receipt of payment, this matter is dismissed.

                            George A. Koutras
                            Administrative Law Judge

Distribution:

Gayle M. Green, Esq., U.S. Department of Labor, Office of the
Solicitor, 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)

Kevin E. Sniffen, Esq., Genstar Stone Products Co., Executive
Plaza IV, Hunt Valley, MD 21031-1091 (Certified Mail)

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