CAR-O-LIN

Plain-English summary

CAR-O-LIN operated a sand and gravel pit in Vermont. MSHA cited the operation after finding that a loader's backup alarm did not work and that a crusher's chain drive lacked a guard. Judge Avram Weisberger rejected the operator's arguments that the Mine Act did not apply to the site. He found both violations, assessed $25 for each, and ordered a total civil penalty of $50.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.14107(a) and 30 C.F.R. § 56.14132(a)
• Outcome: Both equipment violations were affirmed, with a total civil penalty of $50.
• Key point: The Mine Act applies to a sand and gravel pit even when its products are sold only locally.

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 26, 1999

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 98-75-M
Petitioner : A. C. No. 43-00509-05501
v. :
: Car-O-Lin Mine
CAR-O-LIN, :
Respondent :

                         DECISION

Appearances: Kathryn A. Joyce, Esq., Office of the Solicitor,
U. S. Department of Labor, Boston, Massachusetts,
for the Secretary;
Lester Corwin II, Esq., South Royalton, Vermont,
for the Respondent.

Before: Judge Weisberger

  I. Statement of the Case

 This case is before me  based  upon  a Petition  for

Assessment of Civil Penalty filed by the Secretary of Labor
(Secretary) alleging that CAR-O-LIN violated 30 C.F.R.
§§ 56.14107(a) and 56.14132(a). Subsequent to notice, a
hearing was held in Burlington, Vermont, on August 3, 1999.

 II. Findings of Fact and Discussion

 A.  Background

 CAR-O-LIN operates a sand and gravel pit in Turnbridge,

Vermont. On June 18, 1997, Edward M. Blow, an MSHA
inspector, presently retired, inspected the site at issue
and issued a backup alarm notice for an Allis-Chalmers 645-B
wheel loader. He told Linclon Chambers, who had informed
him that he was working for Brent Lindstrom, that it would
be at least 4 weeks before someone would be back to
reinspect the premises. Blow informed Lindstrom, CAR-O-LIN's
owner, that he was issuing only notices, not citations,
in order to give him (Lindstrom) time to comply. On May 7,
1998, Kathleen Robinson, an MSHA inspector, inspected the
site. She testified that a backup alarm, that had been
installed in a Fiat Chalmers front-end loader was not
working. Robinson issued a citation alleging a violation of
section 56.14132(a), supra. In addition, according to
Robinson, there were not any guards in place on a crusher
that was not in operation. She testified that several guards
were on the ground. Robinson testified that Chambers told
her that there was no guard for the chain drive. She issued
a citation alleging a violation of section 56.1417(a), supra.

 B.  Jurisdiction

 CAR-O-LIN asserted, in its closing argument, that it is

not subject to the jurisdiction of the Act, as no coal is
extracted from the site. There is no merit to this
argument. Sections 103 and 104 of the Federal Mine Safety
and Health Act of 1977 ("the Act") authorizes the Secretary
of Labor to inspect, and issue citations to operators of
"coal or other mines." Section 3(h)(i) of the Act defines
"coal or other mine" as pertinent, as ". . . (A) an area of
land from which minerals are extracted in nonliquid form . .
. ." The common meaning of the term "mineral," as defined
in Webster's New Collegiate Dictionary, as pertinent, is as
follows: ". . . broadly: any of various naturally occurring
homogeneous substances (as stone, coal, salt, sulfur, sand,
petroleum, water, or natural gas) obtained for man's use
usu. from the ground . . . ." Hence, it is clear that
CAR-O-LIN's operation is a mine as defined in the Act.

 In essence, CAR-O-LIN further  argues  that  since  its

products are not sold outside Vermont, it is not involved in
interstate commerce, and is not subject to the Act. In this
connection, Lindstrom testified that CAR-O-LIN's permit from
the State of Vermont allows it to sell only 15, 000 cubic
yards of sand and gravel a year, that it sells this material
only to customers living in Turnbridge and the surrounding
towns, and that it uses only one delivery truck and it can
only be operated in the State of Vermont.

 In Jerry Ike Harless Towing, Inc., and  Harless,  Inc.,

(16 FMSHRC 683 (April 11, 1994)), the Commission analyzed
the scope of the Commerce Clause of the Constitution as
follows:

      The Commerce Clause  of  the Constitution has been
 broadly   construed  for  over  50 years.    Commercial
 activity that  is purely intrastate in character may be
 regulated by Congress  under the Commerce Clause, where
 the  activity, combined with  like  conduct  by  others
 similarly  situated, affects commerce among the states.
 Fry v. United  States,  4221,  U.S.  542,  547  (1975);
 Wickard v. Filburn, 317, U.S. 111 (1942) (growing wheat
 solely for consumption on the farm on which it is grown
 affects  interstate  commerce).   Congress intended  to
 exercise its authority to regulate  interstate commerce
 to  the  "maximum  extent  feasible"  when  it  enacted
 Section  4 of the Mine Act.  Marshall v.  Kraynak,  604
 F.2d 231,  232,  (3d  Cir  1979), cert. denied 444 U.S.
 1014 (1980); United States v.  Lake, 985 F.2d 265, 267-
 69 (6th Cir. 1993).  In Lake, the  mine  operator  sold
 all its coal locally and purchased mining supplies from
 a  local  dealer.   985 F.2d at 269.  Nevertheless, the
 court held that the operator  was engaged in interstate
 commerce  because  "such  small  scale   efforts,  when
 combined  with others, could influence interstate  coal
 pricing and demand."  Id.  Harless, supra at 686.

 Based on the broad principles enunciated by the Commission

in Harless Towing, supra, and based upon the authority of the
Sixth Circuit in Lake, supra, I am constrained to find that
although CAR-O-LIN's operation is small, and no products are
sold outside Vermont, it was engaged in interstate commerce
"because such small scale efforts, when combined with others
could influence interstate [sand and gravel] pricing and
demand" Harless, supra, at 686. I thus find that CAR-O-LIN's
operation is a mine subject to the Act's jurisdiction.

 C.  Violation of Section 56.14132(a), supra

 Section  56.14132(a)  provides as follows: "[m]anually-

operated horns or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be
maintained in functional condition."

 According to Robinson, the backup  alarm  on  the  Fiat

Chalmers front-end loader was in place, but was not working.
CAR-O-LIN did not impeach this testimony, nor did it offer a
witnesses to contradict it, and accordingly I accept it. I
thus find that since the backup alarm on the loader did not
function, it was not maintained in a functional condition,
and thus was in violation of section 56.14132(a), supra.

 The record does not contain any clear convincing evidence

as to the length of time the backup alarm had not been working,
and the length of time CAR-O-LIN should have known of this
functional defect. Blow testified that when he had inspected
the subject site in June 1997, a year prior to the inspection
at issue, he issued a "backup alarm notice" for an Allis-
Chamlers 645-B wheel loader. However, he did not testify as
to whether the loader's alarm was not functioning, or whether
an alarm had not been installed.[1] Neither did the Secretary
proffer in evidence the written Notice given to CAR-O-LIN
which might contain a description of the specific condition
that provided the basis for the Notice. Lindstrom testified
that Chambers, who was not an employee of his and who just
did repair work for him, had disconnected the alarm in order
to locate a noise in the transmission. Robinson testified that
Chambers had told her that the alarm had worked the day before
the inspection. However, neither the Secretary nor CAR-O-LIN
produced Chambers to testify. I thus find that it has not been
established that the level of CAR-O-LIN's negligence was more
than low. The Secretary did not adduce any evidence as to the
gravity of this specific violation. Hence I conclude that the
it has not been established that the level of the gravity was
more than low. The record establishes that the violation was
abated timely, and in good faith. Also the record establishes
that CAR-O-LIN does not have any history of violations.
Additionally, based upon Lindstrom's uncontradicted and
unimpeached testimony, I conclude that the size of CAR-O-LIN's
operation is small. Considering all the above factors, I find
that a penalty of $25.00 is appropriate for this violation.

 D.  Violation of 30 C.F.R. § 56.14107(a)

 Section 56.14107(a) provides as  follows:  "[m]oving

machine parts shall be guarded to protect persons from
contacting gears, sprockets, chains, drive, head, tail,
and takeup pulleys, flywheels, couplings, shafts, fan
blades, and similar moving parts that can cause injury."

 In essence, according to Robinson, there was  no  guard

for the chain drive area of the crusher. CAR-O-LIN did not
impeach this testimony, nor did it proffer any testimony or
evidence that would tend to negate Robinson's testimony that
on the date in question, the chain drive area of the crusher
was not guarded. I thus find that CAR-O-LIN did violate
section 56.14107(a), supra.

 According to Robinson, Chambers told her that  the guard

for the area at issue did not exist, and that the crusher had
last been operated a week prior to the inspection. She
asked Chambers why the guard had not been "repaired."
According to Robinson, Chambers stated that "they had not
gotten around to it" (Tr. 35). The Secretary did not call
Chambers to testify, nor did the Secretary indicate why it
had failed to do so. There is nothing in the record to
establish that Chambers would have had personal knowledge as
to why a guard had not been installed. Therefore, this
hearsay testimony was accorded little weight. On the other
hand, Lindstrom testified that the area in question was
provided with a guard, and that approximately a week prior
to Robinson's inspection, the guard had been removed in
order for a defective chain to be removed and a new one to
be installed. He also testified that the crusher had not
been run without a guard in place, and that the guard had
been installed immediately after Blow's inspection in June
1997. This testimony has not been impeached or contradicted
by the Secretary and accordingly I accept it. Within this
context, I find that the level of CAR-O-LIN's negligence was
no more than low. The Secretary did not offer any evidence
specifically detailing the gravity of the instant violation.
I thus find that it has not been established that the
gravity of the violation was more than low. The remaining
factors set forth in section 110(i) of the Act are as set
forth above (II(C) (infra). Based upon all these factors, I
conclude that a penalty of $25.00 is appropriate for this
violation.

                          ORDER

 It is ORDERED that CAR-O-LIN shall, within 30 days of the

date of this decision, pay a total civil penalty of $50.00.

                          Avram Weisberger
                          Administrative Law Judge

Distribution:

Kathryn A. Joyce, Esq.,
Office of the Solicitor,
U. S. Department of Labor,
JFK Federal Building, Room E-375,
Government Center,
Boston, MA 02203
(Certified Mail)

G. Lester Corwin II, Esq.,
2219 Vt Rt 110,
South Royalton, VT 05068
(Certified Mail)

dcp

FOOTNOTES

 [1]:  Lindstrom testified that when Blow inspected the

front-end loader, it had not been provided with a backup
alarm.