<DOC>
[DOCID: f:se2000159.wais]
WAKE STONE CORPORATION
SE 2000-159-M
April 19, 2001
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
April 19, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 2000-159-M
Petitioner : A.C. No. 31-01940-05542
v. :
: Triangle Quarry
WAKE STONE CORPORATION, :
Respondent : Docket No. SE 2000-160-M
: A.C. No. 31-02071-05514
:
: Nash County Quarry
DECISION
Appearances: Melody S. Wesson, Conference and Litigation
Representative, U.S. Department of Labor, Mine
Safety and Health Administration, Birmingham,
Alabama, for Petitioner;
Roland Massey, Safety/Human Services Director,
Wake Stone Corporation, Knightdale, North Carolina,
for Respondent.
Before: Judge Zielinski
These cases are before me on Petitions for Assessment of
Civil Penalties filed by the Secretary of Labor against Wake
Stone Corporation pursuant to section 105 of the Federal Mine
Safety and Health Act of 1977 (the "Act"). 30 U.S.C. � 815. The
petitions each allege a single violation of the Secretary's
mandatory health and safety standards and propose civil penalties
totaling $177.00. A hearing was held in Raleigh, North Carolina
on February 15, 2001. For the reasons set forth below, I affirm
the citations and assess penalties totaling $100.00.
The Evidence - Findings of Fact
On January 24, 2000, Thomas P. Clarkson, an inspector
employed by the Department of Labor's Mine Safety and Health
Administration (MSHA), inspected Respondent's Nash County Quarry.
As he inspected a Caterpillar 796C haul truck, company number
8019, he observed that there were no guards for the alternator
pulley and v-belt in the engine compartment and issued Citation
No. 7792135, charging a violation of 30 C.F.R. � 56.14107(a),
which provides:
(a) Moving 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.
He concluded that the violation was "unlikely" to result in
injury but that if an injury did occur, it would be permanently
disabling. He assessed the degree of operator negligence as
"moderate" and did not find the violation "significant and
substantial."
The location of the alternator pulley and v-belt in the
Caterpillar truck's engine compartment are clearly depicted in a
series of pictures introduced into evidence as Respondent's Ex.
4. The truck is a very large vehicle and a man can easily stand
between the left front tire and the engine compartment. The v-
belt drives and the alternator pulley are located 12-14 inches
inside one of the truck's frame members at approximately shoulder
height and are directly accessible to anyone who might stand in
that position.
On March 15, 2000, Darrell Brennan, another MSHA inspector,
conducted an inspection of Respondent's Triangle Quarry. As he
inspected a Euclid R-22, water haulage truck, company number
8008, he observed that the v-belt drives in the engine
compartment were not guarded and issued Citation No. 7792816,
also charging a violation of 30 C.F.R. � 56.14107(a). He
determined that the violation was "reasonably likely" to result
in an injury that would result in lost work days or restricted
duty. He concluded that the violation was "significant and
substantial" and assessed the degree of operator negligence as
"moderate."
The Euclid R-22 truck is depicted in a series of pictures
introduced into evidence as Respondent's Ex. 5. It is smaller
than the Caterpillar truck and access to the left side of the
engine compartment, where the v-belt and pulley are located, is
restricted by a fender/headlight assembly and a hose reel that is
mounted on the forwardmost part of the trucks' frame. In order
to reach the v-belt and pulley, a person would have to stand in
front of the fender and reach through the approximately 14 inch
wide gap between the fender and the hose reel. The v-belt and
pulley are located approximately 31 inches from the outermost
edge of the hose reel. By standing sideways, however, a normal
sized man could slip between the hose reel and the fender and get
considerably closer to the v-belt/pulley.
Both inspectors based their assessment of the violation and
gravity factors on the possibility that the truck's operator
might come into contact with the v-belt/pulley while performing a
pre-shift inspection of the truck or investigating a problem with
the truck, such as a fluid leak or belt noise. They opined that
the operators would likely attempt to diagnose any such problem
before reporting it to a mechanic, in order to more fully inform
the mechanic of the problem. They testified that they have
written other citations for similar violations on mobile
equipment, although not at Respondent's facility. The Secretary
also introduced a listing of reported injuries involving v-belt
drives and pulleys on mobile equipment in order to demonstrate
that such injuries do, in fact, occur.
Wake Stone had purchased the Euclid R-22 truck in 1976 as a
used vehicle and it did not have guards installed around the
engine compartment v-belt drives. The hose reel was installed in
1986. The Caterpillar 796C truck had been purchased new in 1986.
It did not have engine compartment v-belt drive guards installed,
nor were such items listed as optional equipment in the list of
specifications for the truck. In order to abate the violation on
the 796C truck, Respondent consulted the manufacturer's more
recent publications and was able to identify a v-belt drive guard
for a front end loader that would fit the truck. It was
purchased and installed. The company had been inspected by MSHA
at least twice a year and the absence of v-belt drive guards in
the engine compartments of these trucks had never been cited as a
violation in the past, nor had any of Respondent's employees been
injured due to the absence of guards.
Conclusions of Law and Fact
Respondent contends, in essence, that its truck operators
virtually never put themselves into a position where they could
contact the v-belt/pulley assemblies in the trucks' engine.
compartments and that there is no reasonable possibility of
injury due to the absence of guards. The Secretary contends that
truck operators or mechanics may, in fact, come into contact with
the v-belt/pulley assemblies in examining or working on the
engine.
In construing an analogous standard[1] in Thompson Bros.
Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), the Commission
stated:
We find that the most logical construction of the
standard is that it imports the concepts of reasonable
possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness.
In related contexts, we have emphasized that the
constructions of mandatory safety standards involving
miners' behavior cannot ignore the vagaries of human
conduct. See, e.g., Great Western Electric,
5 FMSHRC 840, 842 (May 1983); Lone Star Industries,
Inc., 3 FMSHRC 2526, 2531 (November 1981). Applying
this test requires taking into consideration all
relevant exposure and injury variables, e.g.,
accessibility of the machine parts, work areas, ingress
and egress, work duties, and as noted, the vagaries of
human conduct. Under this approach, citations for
inadequate guarding will be resolved on a case-by-[case]
basis.
At issue in Thompson were citations issued for failure to
guard cooling fan blades and air compressor belts and pulleys in
the engine compartments of two Euclid R-50 dump trucks. The
Commission affirmed the decision of an ALJ finding violations of
the standard based on the possibility that a miner might come
into contact with the exposed moving machine parts while
examining or working on the engines while they were idling.
While the possibility of such contact was determined to be
"minimal" it satisfied the "reasonably possible" test.
I similarly find that, while the possibility of contact and
injury presented by the unguarded v-belt/pulley assemblies was
minimal, contact and injury was reasonably possible within the
meaning of Thompson. There is no question that the v-belt/pulley
assemblies were accessible to a miner or mechanic standing near
the engine compartments of the subject trucks. The inspectors
described a plausible scenario of a driver exploring some problem
with a truck's engine and contacting the v-belt/pulley with a
hand or clothing. A mechanic examining the engine while idling,
even though trained to work in such conditions, could also
inadvertently contact the unguarded v-belt/pulley resulting in
injury.
Respondent also contends that the obligation imposed by the
standard is to maintain guards furnished with the equipment, not
to install new guards, except where an unusual hazard is
presented. However, that contention is based only upon MSHA's
past enforcement practices at its facilities and a citation to
dicta in an ALJ opinion that appears to be at odds with an
earlier opinion by the same ALJ.[2] It also ignores other ALJ
decisions finding violations of this or a related standard based
upon the failure to install guards on moving machine parts in the
engine compartments of vehicles that were manufactured without
such guards. See, Nelson Bros. Quarries, Inc., 21 FMSHRC 1100,
1102-03 (Oct. 1999) (ALJ); Riverton Corp., 16 FMSHRC 2082 (Oct.
1994) (ALJ); Power Operating Co., 16 FMSHRC 591, 595 (May 1994)
(ALJ). Respondent's contention is unfounded. Thompson and the
cited ALJ opinions make clear that guards are required where
contact and injury is reasonably possible.
Citation No. 7792816 - Significant and Substantial
In issuing Citation No. 7792816, Inspector Brennan
determined that the violation was significant and substantial. A
"significant and substantial" (S&S) violation is described in
Section 104(d)(1) of the 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." A
violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the
Commission explained:
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. (footnote omitted)
See also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th
Cir. 1999); Austin Power, Inc. v. Sec'y of Labor, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015,
2021 (Dec. 1987) (approving Mathies criteria).
The critical issue here is whether there was a reasonable
likelihood that the hazard contributed to will result in an
injury. As noted above, Respondent has voiced concern about the
consistency of MSHA's enforcement actions, noting that the
conditions cited have existed for many years and have never
before been cited. Respondent's concerns about consistency are
further highlighted by differences in the two citations at issue
here. Inspector Clarkson determined that it was "unlikely" that
an injury would result from the violation he cited with respect
to the Caterpillar 796C truck and concluded that the violation
was not significant and substantial. Inspector Brennan, on the
other hand, found that the violation on the Euclid R-22 truck was
"reasonably likely" to result in an injury and was significant
and substantial. The Secretary's representative explained that
the difference in the gravity assessments was based upon the
degree of accessibility. However, it is apparent from the
pictures and related testimony that the v-belt/pulley assembly on
the R-22 truck was considerably less accessible than that on the
796C truck cited by Inspector Clarkson.
I agree with Respondent and Inspector Clarkson that it is
unlikely that an injury would result from the cited violations
and find that the violation charged in Citation No. 7792816 was
not significant and substantial.
Negligence
I find that the negligence of the operator with respect to
these violations was low. It is undisputed that guards were not
installed on the v-belt/pulley assemblies by the manufacturers of
the trucks in question and that Respondent purchased the trucks
in the cited condition. It is also undisputed that the
violations were not cited in numerous prior MSHA inspections and
that no injuries have resulted to Respondent's employees from the
cited conditions. As noted above, I have found that the
possibility of injury presented by the violations was minimal, or
unlikely. Moreover, that portion of MSHA's Program Policy Manual
addressing the standard here at issue, makes no reference to
mobile equipment. Only recently has MSHA apparently issued any
specific guidance on applicability of the standard to mobile
equipment.[3] While there have been prior decisions by
Commission ALJ's finding violations under circumstances similar
to those presented here, I find that the degree of operator
negligence with respect to these citations was low.
The Appropriate Penalties
The assessment sheets reflect that Respondent's quarries are
medium sized and part of a small controlling entity. The
assessment sheets also show that in the 24 months preceding the
subject inspection that the Triangle Quarry had been inspected on
23 days and that only 11 citations had been written and that the
Nash County Quarry had been issued only 4 violations in 15
inspection days, both very good records. The violations were
promptly abated. Findings on the gravity and negligence
associated with each sustained citation are also noted above.
Upon consideration of the factors itemized in � 100(i) of
the Act, I impose the following penalties, which are appropriate
to the size of Respondent's business. As to Citation No.
7792135, I assess a penalty of $50.00, slightly lower than the
penalty proposed by the Secretary because of the finding that the
operator's negligence was low. As to Citation No. 7792816, I
also assess a penalty of $50.00, a reduction from the proposed
penalty of $122.00, because of the finding that the violation was
not significant and substantial and that the degree of negligence
was low.
ORDER
Based upon the foregoing, Citations numbered 7792135 and
7792816 are affirmed, as modified, and Respondent is ordered to
pay a civil penalty of $100.00 within 30 days.
Michael E. Zielinski
Administrative Law Judge
Distribution:
Melody S. Wesson, Conference & Litigation Representative, U.S.
Department of Labor, MSHA, 135 Gemini Circle, Suite 212,
Birmingham, AL 35209 (Certified Mail)
Roland Massey, Safety Director, Theodore D. Bratton, President,
Wake Stone Corporation,
P.O. Box 190, Knightdale, NC 27545 (Certified Mail)
/mh
**FOOTNOTES**
[1]: 30 C.F.R. � 77.400
(a) Gears; sprockets; chains; drive, head, tail and
takeup pulleys; flywheels; couplings; shafts;
sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and
which may cause injury to persons shall be guarded.
[2]: Compare Newmont Gold Co., 19 FMSHRC 1640, 1642-43
(Oct. 1997) (ALJ) (stating in dicta that promulgators of
standard intended that, except in a rare and exceptional
case, there would be no requirement to supplement the
existing guards that the manufacturer of a truck had installed
in and around the truck's engine area) with Walsenburg Sand
& Gravel Co., 11 FMSHRC 2233, 2237-38 (Nov. 1989) (ALJ)
(finding of violation for inadequate guarding of engine fan
blade on road grader).
[3]: The Secretary attempted to introduce into evidence
an excerpt from a revision to an MSHA guarding guide, or
book, to show that machine parts on mobile equipment need
to be guarded to prevent contact during inspection and
maintenance activities. Respondent's objection to the exhibit
was sustained because the revision was not adopted and printed
until late in the year 2000, after these citations had been
issued.