<DOC>
[DOCID: f:c95-261.wais]
HIGMAN SAND AND GRAVEL, INC.
June 19, 1996
CENT 95-261-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 19, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 95-261-M
Petitioner : A.C. No. 39-00993-05514
:
v. :
: Docket No. CENT 95-267-M
HIGMAN SAND AND GRAVEL, INC., : A.C. No. 39-00993-05515
Respondent :
: Docket No. CENT 96-30-M
: A.C. No. 39-00993-05516
:
: Screener Plant #1
DECISION
Appearances: Kristi Floyd, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner;
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr,
Sioux City, Iowa, for Respondent.
Before: Judge Amchan
Findings of Fact
On July 18, 1995, MSHA representative Lloyd Ferran inspected
Respondent's sand and gravel mine in the southeast corner of
South Dakota. Two Higman employees were at the mine, Mark
Rasmussen, the foreman, who was feeding the hopper to the plant
with a front-end loader and Eldon Seely, who was loading customer
trucks with another front-end loader. Neither miner accompanied
Mr. Ferran as he inspected the plant area.
Docket No. CENT 95-261-M
Citation No. 4643516, unguarded chain drive and tail pulley
When inspecting the hopper feed conveyor, Inspector Ferran
discovered a chain drive and a self-cleaning tail pulley
which were not guarded. They were located underneath the
hopper in an enclosed area. There were doors that could
close off the area
in which the drive and pulley were located, but these doors
were open on July 18. Inspector Ferran observed a shovel
and fresh foot prints near the tail pulley, which led him to
conclude that a miner had been in the area while the
conveyor belt was running. Foreman Rasmussen greased
equipment in the area every morning before turning on the
equipment (Tr. 11-23, 169, 317-26, 372-73).
Ferran issued Citation No. 4643516 to Respondent, alleging
a significant and substantial (S&S) violation of 30 C.F.R.
�56.14107(a). This regulation requires the guarding of
moving machine parts that can cause injury. Section
56.14107(b), on which Respondent relies in challenging the
citation, exempts moving parts that are at least seven feet
away from walking or working surfaces.
The inspector required termination (abatement) of the
citation by the next morning, July 19, 1995. When he
arrived
at the worksite on the 19th, Foreman Rasmussen advised him
that he had been instructed not to abate this or any other
citation issued on July 18. Ferran waited until noon, then
issued section 104(b) withdrawal Order No. 4643528 and left
the worksite
(Tr. 24-26).
The next morning, July 20, 1995, the inspector returned and
found the plant operating. No action had been taken to
terminate the citation. After some discussions involving
Respondent, Ferran and MSHA's headquarters office in Denver,
the plant shut down about noon. Respondent terminated the
violations by replacing the entire plant with other
equipment (Tr. 30-33).
Respondent violated �56.14107(a)
The issue regarding the unguarded chain drive and tail
pulley is whether they could "cause injury" within the
meaning of �14107(a), or whether there were seven feet away
from walking or
working surfaces, and thus exempt from the guarding
requirement under section 56.14107(b).
Respondent contends the regulation was not violated because
the only person who ever came within seven feet of the
unguarded chain drive and tail pulley was Foreman Rasmussen.
More importantly, it argues that Rasmussen only was in this
area before turning on the moving equipment. Each morning
before turning on the equipment he greased it and shoveled
under the tail pulley (Tr. 326). Nevertheless, exposure to
moving parts and injury was possible.
Although Rasmussen's normal procedure may have made injury
unlikely, I believe that reliance on his practices does not
preclude injury--particularly from the unguarded tail
pulley. Rasmussen was asked if he ever shoveled while the
tail pulley
was in operation. He responded, "You can't, cannot. You'd
end up with your arm when the shovel went in there." (Tr.
326).
I understand this to mean that you ordinarily do not shovel
while the tail pulley is moving because it is dangerous. I
infer that a situation may arise where material may build up
under the tail pulley while it is running. Under such
conditions, one must either turn all the equipment off or
shovel with the pulley running; otherwise, the conveyor belt
will tear.
The record does not indicate that Respondent had a work
rule preventing shoveling when the machinery was in
operation. When Ferran visited the same site a month later,
Rasmussen was
on vacation and Eldon Seely was in charge of the worksite.
The equipment was running (Tr. 175). Although, this was
different equipment than that cited in July, it convinces me
that Mr. Rasmussen's routine did not eliminate the
possibility that someone might be injured by the unguarded
tail pulley. I therefore find a violation of the standard.
The Secretary has not established that the violation was
S&S
The Commission test for a "S&S" violation, as set forth in
Mathies Coal Co., supra, is 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.
I conclude that given the fact that Mr. Rasmussen was
normally the only person to enter the area in which the
chain drive and tail pulley were located, and that he
routinely did
so only before the equipment was turned on, that it was not
reasonably likely that the hazard would have resulted in
injury in the normal course of mining operations.
Section 104(b) Order No. 4643528 is affirmed
Upon discovering a failure to abate, an inspector must apply
a rule of reason in determining whether to issue a section
104(b) order or to extend the abatement date, Martinka Coal
Co.,
15 FMSHRC 2452 (December 1993). I conclude that Inspector
Ferran acted reasonably in issuing the instant order.
On July 18, the inspector reviewed the citations and time
allotted to terminate them with Foreman Rasmussen. The
latter did not indicate that he would be unable to abate the
citations in the time period allowed by Ferran. On July 19,
Rasmussen did not tell the inspector that he needed more
time to abate, he told him that Respondent would not abate
(Tr. 34-35). Moreover, on July 20, when Respondent decided
to comply with the abatement requirements of this and
other citations, it was able to do so within a matter of
hours.
I assess a $150 civil penalty for Citation No. 4643516
and Order No. 4643528
The Secretary proposed a penalty of $240 for the instant
citation and order. I assess a $150 penalty on the basis of
the penalty assessment criteria in section 110(i) of the
Act.
Given the fact that I deem the violation to be "non-S&S,"
I believe a penalty of $50 would be appropriate for the
original citation, taking into account the low likelihood of
injury (gravity), the low degree of negligence of the
original viola-tion, the fact that Respondent is a small
mine operator and the absence of an indication that
Respondent has a poor record of MSHA compliance in the past.
The parties have stipulated that the proposed penalties will
not compromise Respondent's ability to continue in business
(Tr. 5).
I deem the degree of negligence to be low because I believe
that Respondent did have a reasonable good faith belief that
its procedures adequately protected its miners from the
unguarded moving machine parts. However, when a mine
operator decides to ignore the abatement requirement in an
MSHA citation, it does so at the risk that the citation will
be upheld and that it may be assessed much higher penalties
for its failure to abate.
The sixth factor in assessing penalties under section 110(i)
is the good faith of the operator in rapidly abating a
violation once it is brought to its attention. When an
operator refuses to abate, and the original citation is
affirmed by the Commission, the provisions of section
110(b), providing for a civil penalty of not more than
$5,000 for each day during which the violation continues,
should be considered. In this case, I deem it appro-priate
to assess an additional $50 penalty for Respondent's failure
to have abated the violation by the beginning of the work
day on July 19 and July 20, 1995.
Citation No. 4643517: Inadequate handrails on
an elevated platform
On July 18, Inspector Ferran observed an engine located on
a platform 11-12 feet above ground level. Mr. Rasmussen
climbed up a ladder each morning to turn on the engine and
in the evening to turn it off. Although there was a
handrail and midrail on the part of the platform furthest
from the engine, the side of the platform between the ladder
and the engine was unguarded for a horizontal distance of 1-
1/2 feet. On the opposite side of the platform, a distance
of two feet horizontally was unguarded
(Tr. 36-41).
Ferran issued Respondent Citation No. 4643517, alleging an
"S&S" violation of 30 C.F.R. Section 56.11002. This
regulation requires that handrails be provided and
maintained on elevated crossovers, walkways, ramps and
stairways. I find that the regulation is applicable. The
platform provided access to the engine and therefore was an
elevated walkway within the meaning of the standard.
I conclude further that the Secretary has established a
violation, but not a S&S. It is possible, as claimed by
Inspector Ferran, that a miner could trip and fall off the
unprotected portion of the platform. However, I find that
it was not reasonably likely. The only task to be performed by
miners on the platform was to turn on the engine at the
middle of the platform. It is therefore unlikely that one would
accidently approach the unguarded portions of the edge of
the platform and fall off.
Penalty Assessment for Citation No. 4643517 and
section 104(b) Order No. 4643529
The Secretary proposed a $292 penalty for this citation and
the section 104(b) order issued when Respondent initially
refused to abate the citation. I assess a $150 penalty for
reasons that are essentially the same as those considered
with regard to the previous citation and order [1] .
Given the assessment criteria, other than good faith rapid
abatement, I would assess a $50 penalty for the original
citation. I would note, with regard to the negligence
factor, that Respondent did have a reasonable belief that
its employees were adequately protected from injury and that
the platform was in the same condition as when it was
purchased (Tr. 327-29). With respect to gravity, although
injury was unlikely, the likely result of an accidental fall
of 11-12 feet would be death or serious injury.
**FOOTNOTES**
[1]: My consideration of the penalty criteria is essentially
the same for all the citations in these dockets unless
specifically noted. Similarly, my analysis as to the validity
of the section 104(b) orders will not be repeated unless it
differs from that concerning Order No. 4643528.
As with the previous citation and order, I believe that
the appropriate penalty for Respondent's unwillingness to
abate within the time period allowed by Inspector Ferran is
a $50
per day additional penalty for both July 19, and July 20,
1995. Therefore, considering the lack of good faith in
rapidly abating the original citation, I assess a total
penalty of $150 for Citation No. 4643517 and Order No.
4643529.
Citation No. 4643518: Unguarded V-belt(s)
On the engine located on the elevated platform discussed
above were two unguarded v-belts. One, the direct drive
belt, was located on the side of the engine, right at the
edge of the platform, approximately 1-� feet about the
platform. It is clearly shown in the photographic Exhibits,
G-3.
The other unguarded belt was on the engine's alternator and
was located at the front of the engine, near the start/stop
button about 3-1/2 feet off the ground. It can be seen in
the bottom photograph of Exhibit G-3 and in Exhibit G-4
(albeit mounted upside down).
Inspector Ferran issued Respondent Citation No. 4643518
which states:
The v belt on the direct drive unit was not guarded
adequately to prevent accidental contact with the pinch
point. This hazard was approximately one foot off the
landing, and extending to 1 �[.] employee (sic) are in
this area on a daily basis starting and stopping the
motor.
The citation initially alleged a non-S&S violation of
�56.14107(a), but was modified on July 20, 1995, to allege an
"S&S" violation.
Inspector Ferran exhibited a great deal of confusion in
describing this citation at hearing. At first, he testified that
the citation referred to the direct drive belt. Then he recanted
and testified that the citation referred to the alternator belt
(Tr. 51-62). The inspector conceded that the direct drive belt
does not require a guard because its location precludes employee
contact while it is moving (Tr. 70).
The Secretary's counsel moved at hearing to amend the
citation to allege a violation with respect to both belts
(Tr. 64-65). Respondent opposed the motion, moved to dismiss the
citation and moved to exclude Exhibit G-4, which depicts the
alternator belt.
The citation clearly describes the direct drive belt. I
find no violation of section 56.14107(a) with respect to this
belt. Aside from Inspector's Ferran's concession, the record
establishes that the belt was started and stopped from the ground
and that it was not moving when Foreman Rasmussen was on the
elevated platform to start the engine[2] (Tr. 339-42, 375-76).
It is a close question as to whether I should allow the
Secretary to amend Citation No. 4643518 to include the alternator
belt. Respondent claims prejudice in that it was not on notice
from the language of the citation that the absence of a guard on
the alternator belt was an issue in this proceeding. Ferran
claims that he discussed this belt with Rasmussen during the
inspection (Tr. 69). Rasmussen testified that Ferran never
mentioned the alternator belt to him (Tr. 339). I credit
Rasmussen's testimony in this regard, because it is corroborated
by the language of the citation itself.
The Commission's procedural rules do not address amendment
of pleadings. Therefore, the Commission looks for guidance to
the Federal Rules of Civil Procedure and particularly Rule 15,
Cyprus Empire Corporation, 12 FMSHRC 911, 916 (May 1990). The
portion of Rule 15 that is relevant to the instant proceeding
starts with the third sentence of Rule 15(b):
If evidence is objected to at the trial on the ground
that it is not within the pleadings, the court may
allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the
action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of
such evidence would prejudice the party in maintaining
**FOOTNOTES**
To start the direct drive belt Rasmussen pushed the clutch with a
pole from the ground. To turn the belt off, he pulled a string
attached to the clutch from ground level (Tr. 339-342).
the party's action or defense upon the merits. The
court may grant a continuance to enable the objecting
party to meet such evidence.
See, J. Moore, Moore's Federal Practice Par. 15.14, 20 ALR Fed
448.
When Respondent's counsel prepared for the hearing, he did
not discuss the alternator belt with either Foreman Rasmussen or
Harold Higman, Jr., part-owner of Respondent (Tr. 338, 396-397).
Nevertheless, I conclude that Respondent is not substantially
prejudiced by the amendment. Mark Rasmussen was familiar enough
with the alternator belt to adequately defend Respondent against
the allegation that the absence of a guard violated section
56.14107(a).
Rasmussen testified that the alternator belt is recessed
approximately three inches inside the housing of the front of
the motor, but was not completely inside the housing. He was
able to recognize the location and configuration of the belt from
Exhibits G-3 and G-4. He testified that a miner would "have to
try hard" to get caught in the belt. Finally, when asked if he
could lean up against the metal housing without "getting in
trouble with the belt," Rasmussen responded, "I could but I don't
know about the next guy... ." (Tr. 343).
I conclude that Respondent had a sufficient opportunity,
through Rasmussen, to prove that the alternator belt was either
adequately guarded or posed no hazard to miners without a guard.
Therefore, I conclude that Respondent was not materially
prejudiced by the amendment, which is granted so that the
citation includes an allegation of lack of guarding of the
alternator belt. Further, I conclude that the record clearly
establishes a violation of section 56.14107(a) with regard to
this belt.
In allowing the amendment, I have also considered that while
the violative equipment was removed from service by Respondent,
it is possible that it will be returned to service. Given the
lack of material prejudice to Respondent from the amendment, I
believe the purposes of the Act are best served by imposing a
legal requirement to guard the alternator belt if this equipment
is used again.
Citation No. 4643518 is affirmed as a non-S&S violation
and a $50 civil penalty is assessed.
Section 104(b) Order No. 4643530 is vacated
The record is insufficient to establish that there was a
reasonable likelihood of injury resulting from Respondent's
failure to guard the alternator belt. The belt was partially
recessed in the housing of the engine motor and exposure to the
belt was limited to the brief period of time that Rasmussen or
another miner would turn the engine on or off (Tr. 42, 343). I
therefore find the violation to be non-S&S.
Respondent was also issued section 104(b) Order No. 4643530,
for its refusal to terminate this citation. Since the citation
does not accurately describe the violative condition, Respondent
cannot be fairly held accountable for its failure to immediately
guard the alternator belt. I therefore vacate Order No. 4643530.
Having considered the penalty criteria in section 110(i),
I assess a $50 civil penalty for Citation No. 4643518. In
assessing such a low penalty, I have placed great weight on
the fact that it is not clear the violation was even
detected by Inspector Ferran, which I think indicates that
Respondent's negligence in not guarding the alternator belt
was very low.
My consideration of good faith attempts at abatement and
gravity are included in my discussion of the "S&S" issue and
the section 104(b) order.
Citation No.4643519: Opening in cover of a
self-cleaning tail pulley
Inspector Ferran observed a two-foot by nine-inch opening in
the cover of a self cleaning tail pulley on the stacker
conveyor (Tr. 74-86, Exh. G-5). He then issued Citation No.
4643519 to Respondent alleging a non-S&S violation of
section 56.14107(a).
This citation is affirmed. Although there were no grease
fittings inside the opening of the cover, it was possible
for a person to trip, fall and get a hand in the tail
pulley. Moreover, although cleaning under this pulley was
usually done with a front-end loader, it could have also
been done with a shovel (Tr. 345-49).
Ferran also issued section 104(b) Order No. 4643531 for
Respondent's failure to timely abate this citation. Taking
into account the small likelihood of injury, I conclude that
a $25 civil penalty is appropriate for the initial citation.
An additional $50 is assessed for the two days that the
violation continued after termination was required for a
total penalty of $75.
Citation No. 4643522: Failure to provide records
of continuity and resistance tests
On July 18, Inspector Ferran asked Foreman Rasmussen to
show him the continuity and resistance records of the
plant's electrical grounding systems. No such records were
provided to Ferran, although some records of continuity and
resistance tests were kept at Respondent's offices in Akron,
Iowa, eight miles from the Richland Pit. I credit Inspector
Ferran's testimony that he was not told about the records at
Akron (Tr. 218).
Ferran issued a non-S&S citation alleging a violation of
section 56.12028. That standard requires that continuity
and resistance testing of grounding systems be performed
after installation, repair, and modification; and annually
thereafter. It provides further that the most recent test
results shall be provided to an inspector upon request.
I conclude that the standard requires that the mine operator
bring the test results to the mine site, if the Secretary's
authorized representative so requests. An operator who
insists that the inspector travel elsewhere is in violation
of the regulation. Moreover, I conclude that Respondent did
not have results of resistance and continuity tests
performed in the previous year on the grounding systems at
Richland because none had been performed.
On July 20, 1996, Inspector Ferran assisted Rasmussen in
terminating the citation by helping him perform the
continuity and resistance tests. Rasmussen testified that
he "had kind of forgotten how to do it" (Tr. 350-51).
Ferran discovered that one of the grounding wires on the
motor junction box had been disconnected (Tr. 92).
Rasmussen believed the wire may have become detached in the
early spring of
1994 when the motor had been repaired in Akron (Tr. 351).
There is no indication that any other event occurred after
the spring of 1994 that would have knocked the grounding
wire loose.
I infer that had continuity and resistance testing been
performed since that repair work, the detached ground wire
would have been detected. Moreover, if records of
continuity and resistance tests performed within the year
prior to the inspection were in Respondent's files at Akron,
copies could have been produced at hearing. I infer from
the failure to produce such records that there were no such
records for the year prior to July 18, 1995.
I assess a $25 penalty for Respondent's initial failure to
provide records that complied with the requirements of the
standard. I assess $25 for each day that it persisted in
this refusal, for a total penalty of $75 for Citation No.
4643522 and 104(b) Order No. 46435532. This assessment does
not take into account the gravity of Respondent's failure to
perform continuity tests on its equipment within the year
prior to the inspection. I decline to assess such a penalty
since the Secretary did not cite for failure to perform the
test. I note, however, that the failure to test created a
situation where inadequate grounding of the equipment was
allowed to persist and posed serious potential hazards.
Citation No. 4643524: Failure to conduct
workplace examinations
On July 18, Inspector Ferran issued Citation No. 4643524
alleging a violation of section 56.18002(a). That
regulation requires that a competent person examine each
working place at least once each shift in order to detect
safety hazards.
Mr. Rasmussen told the inspector that he performed such
examinations but that he kept no records of his examinations
(Tr. 97-98). Ferran concluded that if daily workplace
exami -nations were being performed, he would not have
found the
number of violations that he detected (Tr. 102).
I vacate this citation and credit Mr. Rasmussen's testimony
that he examined all working places each day when he
greased the equipment (Tr. 352-53). The fact that Ferran
found a number of violative conditions may be the result of
Respondent's belief that the conditions cited were not
violations, rather an indication that workplace examinations
were not performed.
Citation No. 4643525: Absence of Berms on
ramp leading to the hopper
On the first day of the inspection, Ferran observed
Mr. Rasmussen feed the hopper with his model 980 Caterpillar
Front-End Loader. There was a short ramp to the hopper
which had no berms on either side. When feeding the hopper, the
front wheels of the vehicle were five to six feet above the
floor of the pit and only a foot or foot and a half from the
edges of the ramp (Tr. 104-110).
Ferran cited Respondent for a violation of section
56.9300(a). That regulation provides that:
Berms or guardrails shall be provided and maintained
on the banks of roadways where a drop off exists of
sufficient grade or depth to cause a vehicle to over-
turn or endanger persons in equipment.
Inspector Ferran believes that the ramp presented a hazard
because it was at a three or four percent grade and because
the loader's bucket was raised 8-10 feet in the air when
feeding the hopper (Tr. 106-109). Both Mr. Rasmussen and
Harold Higman, Jr., dispute the inspector's contention that
there was a danger of the loader tipping due to the absence
of berms (Tr. 355-356, 392-396).
Higman, who has significant experience operating such
vehicles, opined that the incline of the ramp and the
differential in height between the wheels is insufficient to
cause the loader to tip over (Tr. 396). I conclude that the
opinions of Respondent's witnesses on this issue have at
least equal validity to those of Mr. Ferran. Therefore, I
find that the Secretary has not established that a drop off
of sufficient grade or depth to cause an accident existed
and I vacate this citation.
Docket No. CENT 95-267-M
Citation No. 4643513: Failure to notify MSHA prior to
commencement of intermittent operations
Respondent also received Citation No. 4643513 alleging that
it violated section 56.1000. That standard requires an
operator to notify MSHA of the actual or approximate date
that mine operations will commence. The standard requires
that the noti - fication include the mine name, location,
the company name, mailing address, person in charge, and
whether the operations will be continuous or intermittent.
In challenging this citation, Respondent asserts that it was
not required to notify MSHA of commencement of operations at
the Richland Pit in 1995 because the pit had never been
closed down the previous fall. Nevertheless, I conclude
that Respondent is subject to the notification requirement
contained in section 56.1000.
Vice-President Harold Higman, Jr., conceded that Respondent
reports to MSHA that Richland is an intermittent operation
(Tr. 404-05). I consider Respondent estopped from asserting
otherwise. By virtue of its status as an intermittent
operation, the Richland Pit is generally subjected to only
one inspection per year, rather than the two inspections it
would receive if it were a continuous operation, MSHA
Program Policy Manual, section 103.
MSHA proposed a $50 civil penalty for this violation. I
assess a $20 penalty. The penalty must account for the fact
that Respondent was issued a citation for a violation of the
same requirement in 1994. However, it should also reflect
that most of the information required was conveyed to
Inspector Ferran by Mr. Rasmussen in early 1995.
Sometime prior to April 1, 1995, Inspector Ferran
encountered Mr. Rasmussen at Respondent's pit near Volin ,
South Dakota (Tr. 117). Rasmussen informed the inspector
that Respondent would start mining at a site near Richland
in April and gave him directions to the pit (Tr. 234-5).
It appears that Respondent resumed its full-time
production operations at Richland in May or June 1995 (Tr.
370-71). Since the date on which this occurred depended
upon the weather, it appears that when Rasmussen informed
Ferran that he would start in April, he provided virtually
all the information required by the standard. The gravity
of the violation was therefore very low and I assess a
penalty of $20.
Citation Nos. 4643513 and 4643520: failure of miners
to wear seat belts while operating front-end loaders
on July 18, 1995
On July 18, 1995, Inspector Ferran observed both foreman
Rasmussen and miner Eldon Seely operating their front-end
loaders while not wearing a seat belt (Tr. 119-20, 124-25).
He issued Citation Nos. 4643513 and 4643520, alleging S&S
violations of
30 C.F.R. Section 56.14130(g), as a result.
Rasmussen was feeding the hopper with his loader, which also
had weak service brakes (Tr. 121). Seely was using his
loader primarily to load customer trucks (Tr. 125). I
affirm these violations as S&S violations and assess civil
penalties of $100 for each of these citations.
Anytime a driver operates in an occupational setting without
a seat belt, there is a reasonable likelihood of an
accident resulting in serious injury. Thus, I find the
gravity of these violations to be high. I also find the
negligence of Rasmussen, which is imputed to Respondent, to
be high. If supervisors do not feel compelled to observe
MSHA's safety regulations, it is likely that their
subordinates will be lax in complying with them as well. If
a mine operator expects its employees to comply with the
Act, it is essential that its foremen set an example and
comply with MSHA's requirements.
Docket No. 96-30-M
Citation No. 4643521: First Aid Training
On July 18, Ferran asked foreman Rasmussen and miner Eldon
Seely if either had been trained in first aid. Rasmussen
showed him a card issued by Respondent indicating that his
first aid training had expired a month earlier. The
inspector thereupon
issued Citation No. 4643521, alleging a violation of 30
C.F.R. Section 56.18010 (Tr. 132). This regulation states
that:
Selected supervisors shall be trained in first aid.
First aid training shall be made available to all
interested employees.
Mr. Rasmussen did have some sort of first aid training
several times prior to July 1995 (Tr. 360-61). This training
primarily concerned cardio-pulmonary resuscitation (CPR), rather
than other facets of first-aid (Tr. 382)[3].
I vacate the citation because the regulation only requires
that some degree of first aid training be provided to super-
visors, which I conclude Mr. Rasmussen received. The standard
does not specify the details of the first aid training or require
any periodic retraining or any demonstration that the supervisor
learned or remembered anything from the training. The standard
also does not require an active first aid card.
I do not believe that such requirements can be extrapolated
from section 56.18010. If MSHA wants to assure that there is a
supervisor present at every metal/non-metal surface mine who is
competent to administer first-aid, it will have to revise its
regulations.
Citation No. 4643526: Inoperative horn on front-end loader
Inspector Ferran determined that the horn on Mr. Rasmussen's
front-end loader was not operable on July 18, 1995 (Tr. 137-39).
He therefore issued Citation No. 4643526 alleging a non-S&S
violation of section 56.14132(a). Although it is rare for
persons or vehicles to come near Mr. Rasmussen's vehicle, it is
possible (Tr. 363-64). Therefore, I affirm the citation and
assess a $25 civil penalty.
**FOOTNOTES**
With regard to this issue I credit the testimony of Harold
Higman, Jr., that Rasmussen's training included more than CPR
(Tr. 401-02). Rasmussen did not recall such training (Tr. 382).
Citation No. 4643527: Inadequate service
brakes on front-end loader
Mr. Ferran also determined that the compressor supplying
air to the service brakes of Mr. Rasmussen's front-end
loader was leaking. Due to this leak, the service brakes
would not hold the loader when idling on the ramp to the hopper
(Tr. 143-48).
Although Rasmussen normally operates his loader when no
other people or vehicles are around him, he has had occasion
to use his service brakes to stop the loader quickly (Tr.
365). Thus, I conclude that the Secretary has established a
S&S violation of section 56.14100(b), as alleged in Citation
No. 4643527.
Rasmussen's vehicle had a problem with slow-reacting brakes
for several months prior to the inspection(Tr. 365, 384-85).
This indicates a considerable degree of negligence on
Respondent's part in letting this condition persist. Given
this negligence and the reasonable likelihood of a serious
injury due to the slowness of the brakes, I assess a $100
civil penalty for this violation.
Citation No. 4643552: Failure to wear seat belt
at August 1995 inspection
On August 15, 1995, Inspector Ferran returned to the
Richland Pit. Mr. Rasmussen was on vacation and Eldon Seely
was in charge at the mine. Ferran observed another miner
operating Rasmussen's front-end loader without wearing a
seat belt
(Tr. 152-57).
The driver told Ferran that he had not been told by anyone
that he was required to wear a seat belt (Tr. 153). Ferran
issued Citation No. 4643552 alleging a S&S violation of 30
C.F.R. 56.14130(g). MSHA subsequently proposed a $102
penalty for this citation.
I affirm this citation as an "S&S" violation and assess a
$400 civil penalty. The Commission assesses penalties de
novo after considering the six penalty criteria in section
110(i) of
the Act. It is not bound or limited by MSHA regulations or
determinations regarding proposed penalties, United States
Steel Mining Co., 6 FMSHRC 1148 (May 1984).
I believe that with customer trucks operating at the pit,
there is a reasonable likelihood that failure of the loader
driver to wear a seat belt would result in a serious injury.
Thus, I believe that gravity factor would call for a penalty
of about $100, when combined with consideration of
Respondent's size, good faith in rapidly abating the
citation, and the fact that Higman's ability to stay in
business is not affected.
However, when consideration is given to Respondent's prior
history of violations and negligence, a considerably higher
penalty is warranted. I believe it would be entirely
incon - sistent with the purposes of section 110(i) to
ignore the
two seat belt citations Respondent had received a month
before. Also, the fact that the driver had not been told
that wearing
of a seat belt was a condition of his employment establishes
a high degree of negligence given the recent prior
citations. Therefore, I conclude that a $400 civil penalty
is appropriately assessed.
ORDER
The citations, orders and proposed penalties in these
dockets are resolved as follows:
Docket No. CENT 95-261-M
Citation/Order Proposed Penalty Assessed Penalty
4643516/4643528 $240 $150
4643517/4643529 $292 $150
4643518/4643530 $240 $ 50; citation affirmed;
order vacated
4643519/4643531 $195 $ 75
4643522/4643532 $108 $ 75
4643524 $ 50 Vacated
4643525 $102 Vacated
Docket No. CENT 95-267-M
4643513 $ 50 $ 20
4643515 $ 81 $100
4643520 $102 $100
Docket No. CENT 96-30-M
4643521 $ 50 Vacated
4643526 $ 50 $ 25
4643527 $102 $100
4643552 $102 $400
Respondent shall pay the total assessed penalties of $1,245
within thirty (30) days of this decision.
Arthur J. Amchan
Administrative Law Judge
Distribution:
Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)
Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr,
750 Pierce St., P.O. Box 717, Sioux City, IA 51102
(Certified Mail)
/lh