Bardon Trimount, Inc.

Plain-English summary

Bardon Trimount operated the Swampscott Quarry in Massachusetts. A haul truck left the road and fell over a concrete berm, and the driver was killed. MSHA cited the company for an allegedly unworn seatbelt and for a berm below the required height. Judge Avram Weisberger found the seatbelt violation unproven, but found the berm violation significant and substantial and assessed a $35,000 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.14131(a) and 30 C.F.R. § 56.9300(b)
• Outcome: The seatbelt citation was not established, the berm violation was affirmed, and a $35,000 penalty was assessed.
• Key point: A berm must meet the mandatory mid-axle-height requirement for the largest mobile equipment using the roadway.

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


                     August 20, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 98-53-M
Petitioner : A.C. No. 19-00020-05530
v. :
: Swampscott Quarry
BARDON TRIMOUNT, INC., :
Respondent :

                         DECISION

Appearances: David L. Baskin, Esq, Office of the Solicitor,
U. S. Department of Labor, Boston, Massachusetts,
for the Secretary;
Richard D. Wayne, Esq., Hinckley, Allen & Snyder,
Boston, Massachusetts, for Respondent.

Before: Judge Weisberger

Statement of the Case

 In this civil penalty proceeding, the Secretary of Labor

("Secretary") seeks the imposition of civil penalties
against Bardon Trimount, Inc., ("Bardon") for allegedly
violating 30 C.F.R. §§ 56.14131(a) and 56.9300(b). Pursuant to
notice, the case was heard in Cambridge, Massachusetts, on
May 4-5, 1999. On June 25, 1999, the Secretary filed a Post
Hearing Brief, and the Respondent filed Proposed Findings
of Fact and a Post Hearing Brief.

Introduction

 On July 25, 1997, Daniel F. English, Jr., a truck driver

with 28 years experience, was driving a 50 ton truck down the
haulage road located at Bardon's Swampscott Quarry in
Swampscott, Massachusetts. His truck ran against concrete
blocks located long the side of the road to his right.[1]
These concrete blocks, uniform in size, are 4,000 pounds each,
and each block is 30 inches high, 36 inches long, and 24 inches
wide. The concrete blocks are held together by cables that
are inserted in eyes drilled in the blocks. After English's
truck was driven parallel to these blocks, it ended up with
its front wheel on top of the blocks. There were tire marks
for 57 feet along the blocks. The undercarriage of the truck
struck the top of the concrete blocks and knocked off several
of the blocks. After English struggled with the truck it fell
45 feet over the outside of the blocks and English was killed.

 Subsequent to an investigation conducted by William C.

Jensen, an MSHA Inspector and Accident Investigator, which
commenced on July 26, 1997, Jensen issued a citation alleging
a violation of section 56.14131(a), which required that
seatbelts be ". . . provided and worn in haulage trucks,"
and another citation alleging a violation of section
56.9300(b), which provides, as pertinent, that "[b]erms . . .
shall be at least mid-axle height of the largest
self-propelled mobile equipment which usually travels the
roadway."

I. Violation of Section 56.14131(a), supra

 In order to meet its burden of establishing a violation

under section 56.14131(a), supra, the Secretary must
establish either that a seatbelt was not provided in the
vehicle at issue, or was provided but not worn. It is not
controverted that the vehicle was equipped with a seatbelt.
The Secretary argues, in essence, that it has established
that English was not wearing his seatbelt in that before
English's truck went over the berm, English was observed
struggling to control the truck, that subsequent to the
accident the two sections of the seatbelt were found behind
the driver's seat, that Marty McKenney, the site
superintendent, told MSHA Field Office Supervisor Inspector
Randall Gadway[2] that after the accident, English was found
lying on the ground, that a Mr. Lindsey, a truck driver,
told Gadway that he saw English fall out of the truck window,
that an autopsy report indicated that English had substantial
right side trauma to the head and upper torso, and that
according to MSHA Inspector William Jensen,[3] the inside
of the truck windshield was damaged on the right side. For
the reasons that follow, I find that the Secretary has not
met its burden of establishing that English was not wearing
a seatbelt.

 Although Jensen found the two sections of the seatbelt

behind the driver's seat, I note that when Jensen made this
observation the truck had already been turned upright, had
been hoisted by a crane onto a flatbed truck, and had been
transported from the site of the accident to the location
where it was observed by Jensen. In this connection, the
Secretary refers to an order issued on July 25, 1997, by
MSHA Inspector John Newby under section 103(k) of the Act,
". . . prohibit[ing] personnel from entering the accident
site pending an investigation . . . ." (Ex. G-6). The
Secretary argues, in essence, that accordingly it should be
found that no one entered the cab until Jensen examined it.
The Secretary did not offer any evidence that would tend to
establish that no one had, in actuality, entered the truck
cab in spite of the section 103(k) Order, from the time of
the accident until the time the truck was observed by
Jensen. Also, the Secretary did not proffer the testimony
of any witnesses having personal knowledge of the position
of the seatbelt immediately after the accident. Thus, there
is insufficient evidence to support a conclusion that the
two sections of the seatbelt were positioned behind the
driver's seat at the time of the accident before the truck
had been moved and placed upright.

 The Secretary's assertion that English had been observed

"standing up" in the cab struggling to control the vehicle
does not find support in the record. The Secretary has cited
the following testimony of Jensen as support for its
assertion:

 Q.   Your  investigation  also revealed that the driver
 was struggling to keep the  truck  on  the  road; isn't
 that correct?

 A.  Through eyewitnesses, yes, sir (Tr. 163).

I note that Jensen's testimony does not contain the words
"standing up." Further, Jensen's testimony is not accorded
much weight in that his answer was in response to a leading
question, and consists of uncorroborated hearsay. Jensen did
not identify the eyewitnesses. Nor did the Secretary indicate
why any eyewitnesses were not called to testify.

 Although the autopsy report does indicate that English

had suffered trauma to the right side of the head and upper
torso, there is no medical expert opinion in the record that
would tend to establish whether or not these injuries would
be consistent with the wearing or not wearing of a seatbelt.
In this connection, I note that Jensen opined if English was
wearing a seatbelt, then his abdomen would have been
bruised in the accident as a result of the restraining
effect of the seatbelt. In this connection, I note that the
autopsy report indicates as follows: "blue contusions lower
abdomen," (Ex. G-7), which, according to Jensen, would be
consistent with the wearing of a seatbelt.

 The Secretary argues, in essence, that since the autopsy

report indicates that English suffered trauma to the right
side of his head and torso, and the windshield was cracked on
the inside opposite the passenger seat as testified to by
Jensen, it should be found that English had not been wearing
a seatbelt. I do not accept the Secretary's argument. There
is no evidence in the record to base a conclusion that the
crack had occurred at the time of the accident, and not either
before or after. There is no evidence as to the condition of
the windshield prior to the accident. Also, there is no
evidence that the windshield, when observed by Jensen, was
in the same condition as it was at the time of the accident,
i.e., before the truck had been turned upright, and moved to
the location observed by Jensen. Also, the record does not
contain either any physical evidence or expert opinion
testimony, that English's head could have come in contact
with the windshield, only if he had not been wearing a
seatbelt.

 Further,  in  evaluating the probative weight to be

accorded the Secretary's evidence, I note that the Secretary
did not proffer the testimony of any eyewitnesses to the
events at issue, nor did it present the testimony of any
eyewitnesses who came upon the scene immediately after the
accident. I do not assign much weight to Gadway's hearsay
testimony regarding statements made to him by McKenny and
Lindsey. The Secretary did not adduce any written statements
made by these individuals, nor did it offer any explanation
why it did not call these individuals to testify. It thus
might reasonably be inferred that the Secretary had concluded
not to call these witnesses, as it was concerned that the
weight of their direct testimony would have been effectively
diluted or impeached on cross-examination. Also, the record
does not contain any corroboration of either McKenny's, or
Lindsey's statements. Indeed, upon cross-examination, Jensen
conceded that he had reviewed a report of the Swampscott
Police Department which contained a statement that David
Wyckoff had reported that he had observed the accident at
issue, and had stated that he had run to the truck and started
pulling rocks off the driver ". . . that had fallen into the
cab" (Tr. 156). This hearsay statement would tend to establish
that, after the accident occurred, English was still in the
truck. Hence, this hearsay statement would tend to contradict
the hearsay statements of Lindsey and McKenny upon which the
Secretary relies. For these reasons, I assign little probative
weight to the Secretary's hearsay evidence.

 Therefore, for all the above  reasons, I conclude that

the Secretary has failed to establish that a seatbelt had not
been worn by English. Thus I conclude that the Secretary has
failed to establish that Bardon violated section 56.14131(a),
supra.

II. Violation of Section 56.9300(b), supra

 Section  56.9300(b) provides  as  follows:  "[b]erms  or

guardrails shall be at least mid-axle height of the largest
self-propelled mobile equipment which usually travels the
roadway." Thus, the language of section 56.9300(b), supra,
is clear and unambiguous in mandating only one criteria of a
berm in order to satisfy its requirements, i.e., it should,
"[b]e at least mid-axle height of the largest self-propelled
mobile equipment which usually travels the roadway." It is
not contested by Bardon that the height of the concrete berm
that was in place was less than the mid-axle height of the
caterpillar 773-B which English had been driving, and which
is the largest piece of mobile equipment which usually
traveled on the road in question. Bardon argues, nontheless,
that the berm in question did satisfy section 56.9300(b),
supra, in that it fulfilled the purpose of section 56.9300(b),
supra, as set forth in a statement made by the Secretary in
the Federal Register, as including "alert[ing] the equipment
operator of the hazardous situation, moderat[ing] the force
of the equipment, provid[ing] time for corrective action, and
assisting the operator in regaining control of the equipment."
(53 Fed. Reg. 32496, 32501, (August 25, 1998)). Bardon argues,
in essence, when the instant accident occurred, the purposes
of section 56.9300(b), supra, were fulfilled, in that the berm
held firm upon impact, which would have alerted English that
he was in a hazardous situation, and that it slowed down the
truck providing English with adequate time to apply his brakes
and control the truck. I fin no merit to Bardon's argument.
The manner in which the berm functioned in the instant
peculiar accident, is not relevant in determining whether
the berm satisfied the requirements of section 56.9300(b),
supra. Since the berm did not met the only unqualified
mandatory requirement of section 56.9300(b), supra, i.e., its
height was less than the mid-axle height of the largest truck
which usually travels the roadway, I find that Bardon did
violate section 56.9300(b), supra.

 A.  Significant and Substantial

 The citation at issue alleges that the violation was

significant and substantial.

 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 U.S.C. § 814(d)(l). 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 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 (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).  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 record clearly establishes that the first and second

factors set forth in Mathies, supra, as Bardon did violate a
mandatary standard, and this violation contributed to the
hazard of a vehicle going off the road and overturning. The
road at issue was at an incline, and the 773-B truck, the
largest truck that usually traveled the roadway at issue,
made 25 round trips per shift. Also, a Caterpillar 992 truck,
whose tires were higher than those of the 773-B truck, also
traveled the roadway one round trip daily. Gadway testified
he has investigated haulage road accidents involving vehicles
traveling a haulage road, and assessed the effect inadequate
berms. Gadway opined, based upon his investigation of the
instant accident, and upon studies and tests that he did not
identify, that if the berm is below mid-axle height, it
". . . act[s] just like a stair and lift[s] th[e] truck"
(Tr. 203). In this connection, I note that the mid-axle height
of the truck, at 40 inches, was 10 inches higher than the
30 inch high berm. It also is clear, as evidenced by the
accident at issue, that should a vehicle have over traveled
the berm as a consequence of the inadequate height of the
berm, it is reasonably likely that a serious injury would have
resulted. Therefore, for all the above reasons, I conclude
that the third and fourth elements set forth have in Mathies,
supra, have been met. I thus conclude that it has been
established that the violation was significant and
substantial.

 B.  Penalty

 The cited violation was abated in a timely fashion, and

in good faith. Although Bardon is controlled by Aggregate
Industries, PLC, the Swampscott Quarry at issue, during the
12 month period immediately proceeding the accident at
issue, employed approximately 26 employees who worked
approximately 60,000 hours at the quarry. The Assessed
Violation History report, relied upon by the Secretary,
indicates, that in the period from June 16, 1996, through
the date to instant citations at issue in this proceeding
were issued, Bardon received 16 citations excluding the two
at issue in these proceedings. A Mine Inspection and
Violation History report proffered by Bardon indicates that
Bardon was issued 32 citations in the period from
December 12, 1995 through the date the citations at issue
were issued. This report indicates it covers the period
from April 1993 through May 1998, but there were no
citations listed prior to December 12, 1995. Bardon has
conceded that the imposition of the penalty will not effect
its ability to remain in business. Based on the testimony
of Gadway, and considering that a fatality occurred herein,
that the roadway along which the berm was located was
regularly used, and was at an incline, that there was a 10
inch difference between the height of the berm and the mid-
axle of the truck at issue, and that there was a drop off
beyond the berm, I conclude that the violation herein was of
a high level of gravity, as the violative condition could
have resulted in a fatality or serious injuries.

 Regarding Bardon's negligence, I find that the existence

of the berm was most obvious as it ran along a regularly used
roadway. Therefore, Bardon reasonably should have been aware
of the berm, and reasonably should have measured it to
ascertain if it was in compliance. Hence, Bardon should
reasonably have been expected to know that the berm was less
than the mid-axle height of the largest truck used on the
road and hence was not in compliance with section 56.9300(b),
supra. The record is not clear as to the precisely how long
the violative berm was in existence prior to its being cited.
Douglas Gallant, Bardon's lead laborer on the site,
testified at the hearing on May 5, 1999, that he had
installed the berm at issue in the summer of 1996. On the
other hand, MSHA Inspector Carl Onder testified that in his
inspection in December 1996, the area in question, the west
side, was bermed only with oversized bolders which he
indicated to be at eye level.[4] This would appear to
confirm the hearsay statements of McKenny to Newby and
Jensen that the berm was installed in January 1997. It
would also confirm a statement made by Cristos Sarhanis,
Bardon's safety risk manager, that he made in a letter to
James R. Petree, the Northeast District Manager of MSHA on
May 29, 1998, as follows: "[s]peaking with various people at
the Swampscott Quarry, the berm was placed at the location
in January of 1997" (Ex. G-4). Hence, at a minimum, the
violative berm had existed for over 6 months and until it
was cited. Bardon, argues, in essences, that any negligence
on its part should be greatly mitigated by considering
Gallant's testimony that in the summer of 1996, during an
MSHA inspection, an MSHA inspector told him to replace the
existing stone berm, that varied from 3 to 5 feet in
diameter, with concrete blocks to be at a height of half the
distance of the wheel base of the highest object in the
quarry. According to Gallant, approximately a month later,
an MSHA official returned, and recommended that he tie the
blocks together. However, Gallant was unable to identify
the MSHA official who provided these instructions. On the
other hand, MSHA Inspector Robert Dow testified in rebuttal,
that Gallant did not participate in an inspection of the
site that he (Dow) made in July 1996. Dow also indicated
that he did not tell Bardon or Gallant to install concrete
blocks as a berm. I accept Dow's version over Gallant's. I
observed Dow's demeanor and found him to be a very credible
witness. Further, the record does not contain even a
scintilla of evidence to provide Dow with a motive for
telling Bardon to remove an existing berm, whose height was
never considered to be out of compliance, and instead to
install concrete blocks, that were in violation of section
56.9300(b), supra. Also, Gallant could not identify the
MSHA person who instructed him to install the violative
berm. There is no evidence that any inspector other than
Dow inspected the site on the dates in question until
December 1996. Further, I note Sarhanis' testimony that on
May 3, 1999, two days before Gallant testified at the
hearing, he (Gallant) had told him (Sarhanis) that he had
been instructed by McKenny to install the concrete blocks.
Within this context, I consider the level Bardon's
negligence to have been relatively high.

 Considering all the above factors set forth in  section

110(i) of the Act, and giving considerable weight to
Bardon's negligence and the gravity of the violative
condition, I find that a penalty of $35,000.00 is
appropriate for this violation.

                          ORDER

 It is ORDERED that Citation No. 7707459 be DISMISSED. It

is further ORDERED that, within 30 days of the date of this
decision, Bardon shall pay a total civil penalty of
$35,000.00.

                          Avram Weisberger
                          Administrative Law Judge

Distribution:

David L. Baskin, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
John F. Kennedy Federal Building, Room E-375,
Government Center, Boston, MA 02203
(Certified Mail)

Richard D. Wayne, Esq.,
Hinckley, Allen, & Snyder,
28 State Street, Boston,
MA 02109-1775
(Certified Mail)

dcp

FOOTNOTES

 [1]: English  was  sitting  in the left side of the

truck (the driver's seat), as it traveled parallel to the
blocks.

 [2]: Gadway was involved in investigating English's

fatal accident.

 [3]: Jensen investigated English's fatal accident, and

issued the citations at issue.

 [4]: Onder testified that he is 68 inches tall.