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[DOCID: f:ct9938.wais]
RON COLEMAN MINING, INC.
August 26, 1999
CENT 99-38-M
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. CENT 99-38-M
Petitioner : A.C. No. 03-00681-05508
v. :
: Blocker Lean No. 4
RON COLEMAN MINING, INC., :
Respondent :
DECISION
Appearances: David Q. Jones, Esq., Office of the Solicitor,
U. S. Department of Labor, Dallas, Texas, for
the Secretary;
Kevin Coleman, Vice President, Ron Coleman
Mining, Inc., Hot Springs, Arkansas, for the
Respondent.
Before: Judge Weisberger
Statement of the Case
This case is before me based upon a Petition for
Assessment of Penalty filed by the Secretary of Labor
("Secretary") alleging that Ron Coleman Mining, Inc.
("Coleman") violated 30 C.F.R. �� 56.14130(i) and
56.14130(g). Pursuant to notice, the matter has heard in
Malvern, Arkansas, on July 27, 1999.
Finding of Facts and Discussion
I. Citation No. 7865573 (violation of 30 C.F.R.
� 56.14130(i)).
On July 22, 1998, Donald Ratliff, an MSHA inspector,
inspected Coleman's Blocker Lead No. 4 Mine, a surface
quartz mine. He inspected a Caterpillar D5 Dozer that was
not in operation. He observed that the seatbelt, which was
under the seat and bolted to the floor, had saturated oil on
it, and that the fabric of the belt was covered with mud or
dirt. He stated that ". . . from the way the mud had set up,
it was apparent to me that they hadn't been used in some
time (Tr. 23). He stated that ". . . Caterpillar stipulates
in the maintenance of their seatbelts is that they not become
soiled because of the fabric nature . . . [i]f they get
grease, oil, hydraulic fluid or anything of the nature on the
webbing, it will break down the webbing of the seatbelts
. . . ." (sic) (Tr. 27). He opined that because the belt
buckle was "imbedded" with dirt it had become inoperable
(Tr.27). Ratliff stated that the female end of the belt
had been impacted with dirt which he described as consisting
of hard crusty material. He did not recall if he had touched
it. According to Ratliff, a miner who accompanied him, Henry
Rogers, told him that the bulldozer in question was used to
push material over an embankment that was composed of material
that was not compacted, at a 35 degree angle, and approximately
200 feet high. Ratliff opined that since the bulldozer was
being used to push material over the embankment, and since the
embankment was comprised of material that was not compacted and
at a steep angle, there existed the possibly that the bulldozer
could travel over the embankment and possibly turn over.
He issued a Citation alleging a violation of 30 C.F.R.
� 56.14130(i), supra, which in essence provides as follows:
"[s]eat belts shall be maintained in functional condition, and
replaced when necessary to assure proper performance."
In general, Ratliff described the violation as
significant and substantial, and indicated that Kevin
Coleman, the vice president and safety coordinator of Coleman,
had driven the bulldozer the day before, and should have noted
the condition of the belt, and should have been aware that it
was not being maintained properly. In this connection, Ratliff
testified that it was "very apparent" when he walked up to the
bulldozer that the seatbelt was not maintained (Tr. 43).
Coleman does not dispute the condition of the belt as
testified to by Ratliff. However, the issue for resolution is
whether Coleman's failure to have remedied the belt's
condition as testified to by Ratliff made the belt inoperable,
or any way interfered with its use. It is signifi-cant that
Ratliff did not attempt to attach the end of the belt and so
determine whether there was any impairment in its operation
or use. As explained by Coleman, and not contradicted or
rebutted by the Secretary, one end of the belt had a hook-like
device, which is inserted into a hole at the end of the
other piece of the belt, and is then secured. There is no
evidence in the record that attaching the end of the belt in
this fashion was not possible, or in any way made difficult
to do as a consequence of the conditions observed by Ratliff.
I do not assign much probative weight to Ratliff's
testimony that Caterpillar "stipulates" that a seatbelt
should not become soiled, and that if it gets oil on it,
it will break down. Ratliff did not identify the source of
this stipulation. The Secretary did not proffer any written
statement by Caterpillar to prove the terms of what it
stipulates. Nor did the Secretary proffer the testimony of
any Caterpillar agent having personal knowledge of this
stipulation. Thus, Ratliff's testimony, by itself, under these
circumstances is not sufficiently reliable to be accorded any
significant probative value.
Accordingly, since it has not been established that the
materials on the belt would have in anyway impeded the use of
the belt and its effective functioning as a safety seatbelt, I
conclude that the Secretary has not met its burden of
establishing a violation under section 14130(i), supra.
Accordingly, Citation No. 7865573 shall be dismissed.
II. Citation No. 7865574 (a violation of 30 C.F.R.
� 56.14130(g), supra
According to Ratliff, Coleman informed him that when he
had operated the bulldozer on July 21, 1998, he had not been
wearing the seatbelt. Ratliff issued a section 104(d)(1) order
alleging a violation of section 56.14130(g), supra, which
in essence, requires the wearing of a seatbelt when
operating certain equipment, which includes the bulldozer
in question. Coleman does not dispute this violation, and
according I find that Coleman did violate section 56.14130(g),
supra.
A. 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 establishes the first two elements set forth
in Mathies, supra, in that Coleman does not dispute that it
violated a mandatory standard, i.e., section 56.14130(g),
supra. Also, Ratliff's uncontradicted testimony establishes
that the failure to wear a seatbelt would have contributed
to the hazard of the operator becoming injured if the
bulldozer would have over-turned. According to Ratliff, MSHA
studies have concluded that the wearing of a seatbelt is a
top priority to prevent serious injuries in haulage
situations. In essence, he opined, that based on MSHA's
studies and his personal experience, a serious injury was
highly likely to have occurred, because the bull-dozer was
being operated in a manner that rendered an injury occurring
event, i.e., the bulldozer overturning, to have been highly
likely to have occurred, since the bulldozer was being used
to push material over a steep embankment that was 200 feet
high, and made out of material that was not compacted. On
the other hand, Coleman testified that the bulldozer at issue
had never been used at the mine site until July 21, and that
he used it on that date because the customary equipment, a
front-end loader, was broken. He indicated that he used
bulldozer for about 30 to 45 minutes, and that there was a
mound of dirt between him and the edge of the highwall.
It appears from photographs of the site, (Respondent's
Exhibits 1 and 2), that the area in which Coleman operated
the bulldozer was flat. However, since the bulldozer was
located at the site at issue, it was available for use in
the manner described by Ratliff. Hence, given continued
mining operations, and the bulldozer operator not wearing
a seatbelt, I find that within the framework of the above
evidence, the third and forth elements of Mathies, supra,
have been met, and that the violation was significant and
substantial.
B. Unwarrantable Failure
According to Ratliff, he considered the violation to
have been an unwarrantable failure in that, Ron Coleman, who
is the safety coordinator, and is responsible for providing
safety training, should have noted, in an examination of the
bulldozer prior to its operation, that it was provided with
a seatbelt, and should have worn the seatbelt. Ratliff
asserted that Coleman, as safety coordinator, should set a
good example for other miners. Also, Ratliff indicated that
the seatbelt was visible, and that it was not necessary to
remove the seat of the bulldozer in order to see it.
I accept Coleman's testimony inasmuch as it was not
contradicted or impeached, that he always instructs his
miners to wear their seatbelts, always wears a seatbelt when
operating a vehicle that he knows to be equipped with a
seatbelt, and that when he operated the bulldozer on the
date in question, he could not have been seen by the other
miners on the site due to the spatial difference between
their locations. In addition, Coleman, asserts that he did
an examination of the bulldozer before he operated it, and
no seatbelt was visible, and hence he did not wear one.
Although Coleman may not have observed the seatbelt, I find
that he reasonablely should have seen the belt, as Ratliff's
testimony that the seatbelt was visible and he did not have
to remove the seat in order to see it, was not contradicted
or impeached . Moreover, since Coleman was a safety
coordinator and responsible for safety training, and since a
seatbelt was visible to Ratliff, he (Coleman) should have
looked for and been able to have seen the seatbelt, and thus
should have worn it. In these circumstances, I find that
failure to do so, constituted more than ordinary negligence
and reached the level of aggravated conducted, and thus was
an unwarrantable failure. (See, Emery Mining Corporation 9
FMSHRC 1997 (1987)).
C. Penalty
According to Ratliff's uncontradicted testimony, a
serious injury or fatality could have resulted from the
violation herein, i.e., failure to wear a seatbelt, should
the bulldozer have turned over. Thus, I find that the level
of gravity of the violation was high. I also find, as set
forth above, that the level of Coleman's negligence was
high, in that Coleman should have observed the presence of a
seatbelt, and should have worn it. On the other hand, I
find that the penalty to be assessed herein should be
mitigated by the fact that Coleman is not a large operation,
having produced only 24 tons of mined material in 3,384 man-
hours in 1998, had demonstrated good faith in abating the
violations within a reasonable period of time after
notification of the violations, and, importantly, had no
assessed violations in the past 24 months. Also, Coleman's
tax returns for the year 1997, the most recent year
available, indicated a loss of $74,121.00 which tends to
indicate that a penalty may have a negative impact upon its
ability to continue in business. Therefore, for all these
reasons, I find that Coleman shall be assessed the penalty
of $1,000.00.
ORDER
It is ORDERED that Citation No. 7865573 be DISMISSED. It
is further ORDERED that Order No. 7865574 be AMENDED to a
section 104(d)(1) Citation,[1] and that Coleman pay a total
civil penalty of $1,000.00 within 30 days of this Decision.
Avram Weisberger
Administrative Law Judge
**FOOTNOTES**
[1]: Since Citation No. 7865573 which was issued as
a section 104(d)(1) Citation is dismissed, and there is no
evidence of the issuance of any other section 104(d)(1)
Citation within the previous 90 days prior to the issuance
of Order No. 7865574, the latter must be reduced to a section
104(d)(1) Citation.
Distribution:
David Q. Jones, Esq,
Office of the Solicitor,
U. S. Department of Labor,
525 South Griffin Street, Suite 501,
Dallas, TX 75202
(Certified Mail)
Kevin Coleman,
Vice President,
Ron Coleman Mining, Inc.,
P. O. Box 8219,
Hot Springs, AR 71909
(Certified Mail)
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