Z C A Mines, Incorporated

Plain-English summary

Z C A Mines employee Ronald Mashaw operated a front-end loader without wearing an available seat belt. The operator accepted that the seat-belt standard was violated but challenged the inspector's significant-and-substantial finding. Judge Avram Weisberger found that nearby traffic, loose ore, and possible tire failure did not establish a reasonable likelihood of an injury in the circumstances, and he found only a small degree of negligence. The judge removed the S&S designation and assessed a $20 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.14130
• Outcome: The citation was amended to remove the S&S designation, and a $20 penalty was assessed.
• Key point: A seat-belt violation is not S&S without evidence that the surrounding operating conditions make an injury reasonably likely.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. Z C A MINES
DDATE:
19920730
TTEXT:

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           Federal Mine Safety and Health Review Commission
                 Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. YORK 92-40-M
PETITIONER A. C. No. 30-01688-05506
v.
Hyatt Mine
Z C A MINES, INCORPORATED,
RESPONDENT

                               DECISION

Appearances: William G. Staton, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York
for Petitioner;
Sanders D. Heller, Esq., Gouverneur, New York,
for Respondent.

Before: Judge Weisberger

 This case is before me based on a Proposal for Assessment of

Civil Penalty filed by the Secretary (Petitioner). Subsequent to
a telephone conference call between the undersigned and counsel
for both parties, a hearing in this matter was scheduled for June
30, 1992, in Watertown, New York. At the hearing, William L.
Kobel, Jr., a Mine Safety and Health Administration (MSHA)
Inspector, testified for Petitioner, and David C. Roberts,
Douglas L. Beachard and Ronald P. Mashaw testified for the
Operator (Respondent). The parties waived their right to submit
written briefs and in lieu thereof presented oral argument
subsequent to the hearing.

                   Findings of Fact and Discussion

 On July 30, 1991, William L. Kobel, Jr., in inspecting

Respondent's Hyatt mine, observed Ronald P. Mashaw operating a
front-end loader. Although the loader was equipped with a
functioning seat belt, Mashaw was not wearing it while operating
the loader. Mashaw was in the process of operating the loader by
picking up a load of coal from an ore pile, reversing, and then
going forward to dump the load of ore in a truck. In continuing
this operation, the loader would then be backed up and returned
again to the ore pile where the process would be repeated. The
distances traversed by the loader are depicted on Respondent's
Exhibit No. 1. I find the depictions of these distances to be
accurate, inasmuch as they are based upon actual

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measurements taken by Respondent's witnesses David C. Roberts and
Douglas L. Beachard. I find these measurements more credible than
the estimates testified to by Kobel.

 Kobel issued a citation alleging a violation of 30 C.F.R.

57.14130. Respondent does not contest the fact of the violation,
but seeks to challenge the finding made by Kobel that the
violation was significant and substantial.

 In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The

Commission set forth the elements of a "significant and
substantial" violation 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 reasonable serious nature. (6 FMSHRC, supra, at
      3-4.)

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

1129 (August 1985), 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).

 In essence, Kobel testified that he concluded that the

violation was significant and substantial, inasmuch as there was
a reasonable likelihood of an injury resulting in a loss of work.
He indicated that, specifically, his conclusion in this regard
was based on the fact that the main access road was nearby, and
was used by at least two trucks travelling more than 10 miles an
hour. He also indicated that trucks were going to the far side of
the waste pile, and travelling 4 to 5 miles an hour. According to
Kobel, should the loader go to the garage to obtain fuel as part
of its normal operation it would have to cross a line of traffic.
In essence, he indicated that due to the presence of this traffic
there existed the possibility of a collision. He indicated that
should the loader hit another object, it is "quite likely" that
the operator, not wearing a seat belt, would be "tossed into one
of the structures, or his knee would strike underneath the
steering wheel." (Tr. 18)

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He further indicated that the roadway on which the loader
was operating was full of loose zinc ore with the largest material
approximately 8 inches x 10 inches x 3 inches. He stated that
this spillage adds to the chance that a tire will be blown. He
indicated that should this occur when the bucket of the loader is
raised as part of the normal operation, the loader could sway, or
tip over. Should this occur an injury could occur to the operator
as a result by his being tossed around, or ejected should the
door of the loader be open.

 I find the testimony of Kobel insufficient to establish a

reasonable likelihood that, considering all the circumstances
herein, the hazard contributed to would have resulted in an event
in which there is an injury (See U.S. Steel Mining Company, 6
FMSHRC supra). Any other vehicular traffic in the area was not in
the path or line of travel of the loader, which operated in a
most circumscribed area travelling an extremely short distance as
depicted in Respondent's Exhibit No. 2. The terrain was level,
not elevated, and there were no berms in the areas. The surface
itself consisted of crushed rock, packed fairly hard. The speed
at which the loader was operating was estimated Kobel to be a
little faster then a fast walk.

 On cross-examination Kobel indicated that a lot of the loose

zinc ore spillage was crushed. Further, although Kobel indicated
that blowouts do happen, he indicated that the tires were
reasonably well maintained. Also, Roberts, who has worked for
Respondent 20 years, indicated that in his experience at
Respondent's operation, there has not been any tire failure from
the use of the roadway in question. Mashaw, who also has worked
for Respondent 20 years, indicated that, in driving a front end
loader, he has never known "of a tire to blow out". (Tr. 97)
Beachard who has worked for Respondent 22 years, indicated that
he never heard of a front end loader "blowing out a tire" at
Respondent's premises. (Tr. 106). Further, Roberts and Mashaw
operated the loader in question, and described it as being
stable. In this connection Kobel indicated that the loader did
not appear unstable when the bucket was raised, or when it
dumped. Also it stopped fairly smoothly.

 For all these reasons, I conclude that the third element set

forth in Mathies supra., has not been met. Therefore I conclude
that it has not been established that the violation herein was
significant and substantial.

 I find that there was only a small degree of negligence on

the part of the Respondent herein, inasmuch as the credible
testimony establishes that Respondent has a good safety record,
and was diligent in instructing employees to use a seat belt. I
find that a penalty of $20 is appropriate for the violation
herein.

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ORDER

 It is ORDERED that Citation No. 3592398 be amended to

reflect the fact that violation cited was not significant and
substantial. It is further ORDERED that Respondent pay a civil
penalty of $20 within 30 days of this decision.

                            Avram Welsberger
                            Administrative Law Judge