.
ANCHOR MINING INCORPORATED
January 6, 1997
WEVA 95-169
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 6, 1997
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 95-169
Petitioner : A.C. No. 46-07166-03536
:
v. : No. 1 Surface
:
ANCHOR MINING INCORPORATED, :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 96-74
Petitioner : A.C. No. 46-07166-03539 A
:
v. : No. 1 Surface
:
JAMES SIMPKINS, Employed by :
ANCHOR MINING INCORPORATED, :
Respondent :
:
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Petitioner : Docket No. WEVA 96-75
: A.C. No. 46-07166-03540 A
v. :
: No. 1 Surface
JAMES TACKETT, Employed by :
ANCHOR MINING INCORPORATED, :
Respondent :
DECISIONS
Appearances: James B. Crawford, Esq., Office of the
Solicitor, U.S. Dept. of Labor, Arlington,
Virginia, for the Petitioner;
David J. Hardy, Esq., John T. Bonham, Esq.,
Jackson and Kelly, Charleston, West Virginia, for
the Respondents.
Before: Judge Koutras
Statement of the Proceedings
These consolidated proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the
respondents pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 et seq. Docket No. WEVA 95-169, concerns
civil penalty proposals filed by the petitioner against the
respondent Anchor Mining Inc., for alleged violations of
mandatory safety standards 30 C.F.R. � 77.1006(a) and 77.1006(b).
The petitioner seeks civil penalty assessments of $8,500, for the
alleged violations.
Docket Nos. WEVA 96-74 and WEVA 96-75, concern civil penalty
proposals filed by the petitioner against the named individual
respondents pursuant to section 110(c) of the Act for allegedly
"knowingly" authorizing, ordering, or carrying out an alleged
violation of 30 C.F.R. 77.1607(g). The petitioner seeks civil
penalty assessments of $2,000 against Mr. Simpkins, and $2,500
against Mr. Tackett for the alleged violations.
The respondents filed timely answers denying the alleged
violations, and a consolidated hearing was held in Charleston,
West Virginia. The parties filed posthearing briefs and I have
considered their arguments in the course of my adjudication of
these matters.
Issues
In Docket No. WEVA 95-169, the issues include (1) whether
the corporate operator violated the cited mandatory safety
standards; (2) whether the violations were "significant and
substantial" (S&S), (3) whether the violations were the result of
unwarrantable failures to comply with the cited standards; and
(4) the appropriate civil penalties to be assessed, taking into
account the civil penalty assessment criteria found in section
110(i) of the Act.
In the two individual section 110(c) cases, the principal
issue is whether or not the named respondents knowingly
authorized, ordered, or carried out the alleged violation, and if
so, the appropriate civil penalties that should be assessed for
the violation taking into account the relevant criteria found in
section 110(i) of the Act. Also in issue is whether or not the
violation was "S&S" and the result of an unwarrantable failure to
comply with the requirements of the cited standard.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30
U.S.C. � 801 et seq.
2. Commission Rules, 20 C.F.R. � 2700.1 et seq.
3. Sections 110(a) and 110(c) of the Act. Section
110(a) provides for assessment of civil penalties
against mine operators for violations of any
mandatory safety or health standards, and section
110(c) provides as follows:
Whenever a corporate operator violates a
mandatory health or safety standard or
knowingly violates or fails or refuses to
comply with any order issued under this Act
or any order incorporated in a final decision
issued under this Act, except an order
incorporated in a decision issued under
subsection (a) or section 105(c), any
director, officer, or agent of such
corporation who knowingly authorized,
ordered, or carried out such violation,
failure, or refusal shall be subject to the
same civil penalties, fines, and imprisonment
that may be imposed upon a person under
subsections (a) and (d) (emphasis added).
An "agent" is defined in Section 3(e) of the Act (30 U.S.C.
� 802(e)) to mean "any person charged with responsibility
for the operation of all or part of a coal mine or other
mine or the supervision of the miners in a coal mine or
other mine."
Stipulations
The parties stipulated in relevant part to the
following (Tr. 8-12):
1. The respondent is the operator of the subject
mine and the operations of the mine are subject
to the jurisdiction of the Mine Act.
2. The Commission and the presiding Judge have
jurisdiction to hear and decide these matters.
3. The information contained in the proposed
assessments (MSHA FORM 1000-179) is accurate.
4. MSHA's computer print-out concerning Anchor
Mining's listing of prior violations (Exhibit G-
1) is authentic and admissible, except that the
proposed penalty assessments associated with the
two instant section 110(c) cases should be
excluded as part of the history.
5. Respondent James Simpkins served as an officer of
Anchor Mining and as an "agent" as defined in
section 3(e) of the Mine Act.
6. Respondent James Simpkins has the financial
ability to pay the assessed penalty in this
matter.
7. Respondent James Tackett served as an "agent" of
Anchor Mining as that term is defined in Section
3(e) of the Mine Act, and, was employed as mine
superintendent at the time of the violations.
8. The section 104(d)(1) and (d)(2) "chain" was
procedurally correct and followed the sequence
pursuant to the Act.
Docket No. WEVA 95-169
Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
cites an alleged violation of 30 C.F.R. 77.1006(a), and the cited
condition or practice is described as follows:
It was revealed during an investigation of a non-
fatal machinery accident that James G. Tackett,
superintendent, performed work in a underdrain at
the Dorothy Pit on September 15, 1994. Tackett
exposed himself to the hazards of the unstable
spoil on the sides of the underdrain. James
Simpkins, President/Owner, was directing the
construction of the underdrain.
Section 104(d)(1) "S&S" Order No. 4001124, October 12,
1994,
cites an alleged violation of 30 C.F.R. 77.1006(b), and the
cited
condition or practice is described as follows:
It was revealed during an investigation of a non-
fatal machinery accident that James G. Tackett,
superintendent, performed work in an underdrain
at the Dorothy Pit on September 15, 1994, while
an Hitachi Model EX 1000 excavator was positioned
at the top of the underdrain which blocked
Tackett's egress. The spoil on both sides of the
underdrain was unstable. James Simpkins,
President/Owner, was operating the excavator and
directing the construction of the underdrain.
Docket Nos. WEVA 96-74 and WEVA 96-75
Respondents James Simpkins and James Tackett are both
charged with a "knowing" violation of mandatory safety standard
30 C.F.R. 77.1607(g), as stated in a section 104(d)(1) "S&S"
Citation No. 3745835, issued on September 19, 1994. The cited
condition or practice states as follows:
It was revealed during a non-fatal accident
investigation that James Simpkins, mine operator,
failed to insure that all persons were in the
clear before moving a Hitachi EX 1000 excavator at
the Dorothy Pit on September 15, 1994. Simpkins
was placing rock into an underdrain when Dempy
Cline, Dozer operator, stepped between the
excavator and a spoil pile. Cline sustained
serious injuries to his right leg which became
pinned between the excavator and spoil. Simpkins
knew that 3 persons were standing in close
proximity to the excavator and said that he should
have instructed them to move to a safe location.
MSHA's Testimony and Evidence
Ricky D. Adams, Environmental Engineer, employed by
Cumberland River Coal Company, testified that his company holds
the coal mine leases and that the respondent was mining coal as a
contractor. Since Cumberland River was responsible for surface
environmental compliance, Mr. Adams was at the mine on September
15, 1994, to observe the construction of a French drain. He
confirmed that he took photographs to document that the drain was
constructed properly to drain the water from the underground
mine, and he explained what was taking place when the photographs
were taken (Exhibits G-2 through G-11; Tr. 22-51).
Mr. Adams stated that the excavator was digging at the base
of the highwall creating a drainage ditch running away from the
highwall. The highwall was approximately 80 feet high above the
edge of the ditch nearest the highwall, and the loose spoil
materials excavated from the ditch were placed on either side of
the ditch (Tr. 28). He confirmed that Mr. Tackett went into the
ditch to spread a Typar covering material that had fallen off the
excavator teeth over the rocks that were placed in the ditch (Tr.
33, 35).
Mr. Adams stated that the ditch was approximately six-foot
deep near the edge of the excavator and at least six-foot deep or
more at the end of the ditch near the spoil bank at the base of
the highwall. After the initial layers of rock and Typar were
placed in the ditch, there was still depth to the ditch and spoil
was piled on each side when he observed Mr. Tackett in the ditch
(Tr. 39-40).
Mr. Adams stated that the Typar material had to be stretched
from end-to-end in the drain. However, Mr. Tackett did not go
further into the ditch than the location shown in photographic
exhibits G-8 and G-9-A and "he just reached over and brought the
Typar back to completely cover the section of ditch that they had
constructed" (Tr. 42). He confirmed that Mr. Tackett was below
the height of the spoil material that was on each side of the
ditch (Tr. 45).
Mr. Adams marked a red circle on exhibit G-11, to show the
vicinity of the area where he was standing for a good view of the
drain. He stated that it was a flat area composed of the spoil
material that was dug out of the ditch (Tr. 51). He confirmed
that at one time he, Troy Perry, Dempy Cline, Mr. Simpkins, and
Mr. Tackett were all standing at that location before the
accident (Tr. 52-53).
Mr. Adams stated that Mr. Cline was standing to his left
within "a step and a reach," and that they were 16 to 18 feet
from the rear machine counterweight before it turned and
swiveled. When the machine swiveled, he estimated that they were
5 or 6 feet from the rear counterweight. After standing with the
group looking at the ditch, Mr. Simpkins commented "let's finish
the job," and he and Mr. Tackett walked around the other side of
the machine. The machine then started to turn and he noticed
that Mr. Cline was in its path. He did not notice that Mr. Cline
had moved from his prior position. Mr. Cline was looking toward
the ditch and did not see the machine. Mr. Adams yelled at Mr.
Cline and reached to grab him, but the machine trapped his leg
and dragged him into the spoil pile under the machine (Tr. 54-
59).
Mr. Adams stated that before Mr. Cline was struck, he
(Adams) knew that Mr. Simpkins was going to get on the machine,
but did not know the instant he was going to swivel the machine.
Mr. Adams noticed no signal from Mr. Simpkins and Mr. Simpkins
did not tell him that he was going to move the machine. Mr.
Adams stated that Mr. Tackett gave no warning to him, and he
noticed no warning to anyone else (Tr. 60).
Mr. Adams confirmed that when the accident occurred
preparations were being made to construct and extend the next
section of the ditch. He identified exhibit G-12 as a photograph
of the counterweight that struck Mr. Cline (Tr. 63).
Mr. Adams stated that his safety training included spoil
bank loose and unconsolidated materials. He saw nothing about
Mr. Tackett's location in the drain ditch that would cause him
any safety concern, and saw no dangerous situation involving
Mr. Tackett (Tr. 69-70).
Mr. Adams was of the opinion that the accident was
preventable if the drain had been constructed two or three weeks
earlier before pushing any spoil off the highwall because little
excavation work would have been required, and if Mr. Cline had
been standing somewhere else behind him. However, he conceded
that the state regulations did not prohibit constructing the
drain the way the respondent was doing it, and he felt reasonably
safe where he was standing, and Mr. Cline was near him (Tr. 72-
76).
On cross-examination, Mr. Adams confirmed that he holds a
mining engineering degree from West Virginia Tech and has had
daily experiences with spoil banks and highwalls (Tr. 80). He
stated that the drain design called for a six-foot deep ditch
with rock in it four-feet high and four-feet wide. The drain
area was five or six feet wide (Tr. 81-82).
Mr. Adams confirmed that photographic exhibit G-9-A shows
where Mr. Tackett was standing in the ditch and he did not see
him go further into the ditch when he was stretching the Typar
over the rock. He stated that in the photograph the rock appears
to be directly over Mr. Tackett, but that is not the way he
recalled the situation when he took the picture. At that time he
had no safety concerns that Mr. Tackett was in danger of being
covered up, and the spoil banks on either side of Mr. Tackett
were not in danger of giving way (Tr. 83). He characterized
those spoil banks as "tapered out" to zero, and the ditch where
Mr. Tackett was standing was probably six feet deep and four to
six feet wide (Tr. 84). Mr. Adams stated that Mr. Tackett was in
the ditch less than a minute and he did not recall that he had
any difficulty in leaving (Tr. 85). He confirmed that he would
have spoken out if he believed Mr. Tackett was in an unsafe
position (Tr. 88).
Mr. Adams stated that the area in which he was standing
prior to the accident was loose, unconsolidated spoil material
near the toe of the spoil bank, and it consisted of ninety
percent sandstone rock. The material never slipped while he was
standing on it, and it showed no indication that it would slip
(Tr. 89). The area was level and it was approximately "five-by-
six, four-by-six, twenty-four feet square" (Tr. 90). The area
was close to the elevation of the counterweight, and he observed
that the counterweight had made a clear indentation in the spoil
bank between the level area where he was standing and the
excavator (Tr. 90-91).
Mr. Adams believed that everyone was in the clear while
standing on the level area in question, including himself and Mr.
Cline, and he perceived no hazard from that position. If he had,
he would have relocated and informed the others to do so. He
confirmed that Mr. Cline moved from the position that he had
originally observed him in, and it was not clear when he was
struck, but he did not observe him move (Tr. 93).
Mr. Adams stated that Mr. Tackett had to come "back behind,
back toward the excavator" to get out of the ditch and he was
sure that he "could get out on either side of the excavator" (Tr.
97). He observed no problem, did not believe that the excavator
was blocking Mr. Tackett's egress, and saw nothing that prevented
him from leaving the ditch area from where he was standing.
In response to further questions, Mr. Adams stated that
although the rock shown in exhibit G-9-A was away from Mr.
Tackett towards the highwall, it was part of the loose,
unconsolidated spoil bank material above the spoil bank in front
of Mr. Tackett, and if the spoil bank gave way, it could have
affected him (Tr. 108). He further confirmed that anyone going
further into the ditch to stretch the Typar all the way to the
back of the ditch would be exposed to 20 feet of spoil bank on
either side of the ditch (Tr. 119).
Mr. Adams stated that the Typar was spread by the bucket
teeth of the excavator and that Mr. Tackett did not go into the
ditch to spread it out against the farthest end of the ditch
(Exhibit G-4, G-5). He characterized the installation of the
Typar as a "sloppy job," and to spread the Typar "nice and tidy"
would require someone to do it by hand (Tr. 127-130). However,
he saw no one do this while he was there (Tr. 131).
With regard to the accident involving Mr. Cline, Mr. Adams
stated that he knew the machine was going to move and was not
surprised by the swinging of the counterweight, and he expected
it (Tr. 133-134). Mr. Simpkins was operating the machine the
entire time, and before it swiveled striking Mr. Cline he did not
hear or see Mr. Simpkins give an audible signal or "eyeball"
anyone standing at the rear (Tr. 137). He did not believe the
machine had an alarm that sounded when the counterweight
swiveled, and the area to the rear of the machine was not
posted, flagged, or barricaded. He was not aware that industry
practice or the regulations required an alarm or posting and he
believed that he and the other individuals were at a safe
distance where they were standing (Tr. 139).
Roy T. Perry, employed by the respondent as a security
guard, testified that he was present at the time of the accident
on September 15, 1994, and was taken to the site by Mr. Tackett
to help cut the Typar material that was installed in the drainage
ditch. The Typar was placed on the bucket teeth of the excavator
to be placed into the ditch, and Mr. Tackett, assisted by
Mr. Cline, were hanging the Typar on the excavator. The fabric
fell off, and he saw Mr. Tackett go into the ditch and hang the
Typar up again. After this was done, he stood to the rear left
side of the machine with Mr. Cline and Mr. Adams (Exhibit G-11;
Tr. 147-148). Mr. Cline was looking into the ditch when the
machine swung and struck him (Tr. 150). Mr. Perry further
explained as follows at (Tr. 151-152):
Q. And before the machine moved, did you have
any signal or any type of warning from anyone
that it was going to move?
A. I wasn't - myself, I wasn't expecting it. I
don't know whether there was any indication
of it, you know, to let me know or somebody
else know. I was interested in watching him
work the material in the hole.
Q. Do you recall anyone signaling you or
notifying you at all that it was going to
move?
A. I didn't see no one. Like I said, I wasn't
paying no attention. You know, I was just
looking over in the hole.
Q. How close were you to the counterweight, the
rear part of the machine, as it went by you?
A. Well, I thought I was far enough away, but
after it went by me there, if I would have
made one step, I would have probably been
under it. I could have reached up and
probably tipped it. That is why I looked
off. When it went by me, I felt the wind of
it and I jumped and looked back.
Q. How many feet would you estimate that you
were close to it?
A. It's like I told the others, an arm's length.
I could have reached out and tipped (sic) it.
Mr. Perry stated that Mr. Tackett explained the possible
dangers to him before he started the work and told him to "watch
the machine. Be careful," and warned him not to get too close.
When he observed Mr. Tackett in the ditch, Mr. Tackett was on the
right side of the bucket hanging up the Typar (Tr. 153).
On cross-examination, Mr. Perry stated that Mr. Simpkins was
operating the excavator when Mr. Cline was struck, and he
described what occurred as follows at (Tr. 156):
A. Like I said, he was standing out in front of
me. I was looking at the hole and I could
see him. He moved his foot like he was going
to turn. And when he done that, that is when
everything went into motion and I looked off.
I never did see him put down his foot. The
next time I looked back around, he was under
the machine and Rick was trying to get him
out.
Mr. Perry stated that he did not realize that he and Mr.
Cline were close to the counterweight or in danger. He confirmed
that he observed Mr. Tackett hook the Typar on the teeth of the
excavator but saw no one in the ditch laying it out, and he did
not observe Mr. Tackett straightening out the Typar (Tr. 159).
In response to bench questions, Mr. Perry viewed Exhibit G-9-A,
and confirmed that it shows Mr. Tackett in the ditch next to the
excavator bucket straightening out the Typar. However, he
indicated that he only observed Mr. Tackett hang the Typar on the
excavator teeth (Tr. 161).
Dempy Cline, testified that he was unemployed, and that he
worked for the respondent for eight years as an equipment
operator. He confirmed that he was working on September 15,
1994, helping Mr. Simpkins in the construction of the ditch.
Mr. Cline operated a D-9 dozer pushing dirt out of the way while
Mr. Simpkins excavated dirt out of the ditch (Tr. 163-168).
Mr. Simpkins was operating the excavator, and after holes were
cut into the end of the Typar material, it was placed on the
excavator teeth and Mr. Simpkins dropped it in the ditch and
stretched it out with the machine (Tr. 168).
Mr. Cline stated that when the second piece of Typar was
dropped in the ditch "it didn't go in there good," and Mr.
Tackett went into the ditch to move and stretch the material. He
stated that Mr. Tackett stretched the material toward the back of
the ditch to the farthest distance from the edge of the excavator
(Tr. 170).
Mr. Cline stated that he and Mr. Simpkins, Mr. Perry, and
Mr. Adams were standing at the left rear of the excavator
talking, and Mr. Tackett was in the ditch. Mr. Cline then moved
to the area circled in red on exhibit G-11, with Mr. Perry and
Mr. Adams, and they were talking and looking up the hill where a
strip job was working. Mr. Cline stated that he was looking up
and to the left, with his back turned toward the excavator when
"Rick Adams grabbed me by the shoulder and I sort of turned
around. About that time, the machine hit me and knocked me down,
cut my leg off" (Tr. 173).
Mr. Cline stated that he had no warning that the excavator
was going to move and he believed that Mr. Simpkins should have
known where he was positioned because he got on the machine on
the left side where the cab ladder was located, and that was the
same side where he (Cline) and the others were standing at the
left rear of the machine. Mr. Cline stated that Mr. Tackett was
not aware where he was standing (Tr. 174). He confirmed that he
was standing on recently placed spoil (Tr. 175). Mr. Cline
stated that he had no indication by the sound of the machine that
it was going to turn in the direction where he was standing, and
he did not expect that the counterweight would turn to the left
before it hit him (Tr. 176, 179)).
Mr. Cline estimated that the height of the spoil bank on
each side of the ditch was 10 to 15 feet at the excavator end of
the ditch, and 40 feet at the end toward the highwall (Tr. 179).
Based on his experience, Mr. Cline believed that a prudent
distance for anyone to be close to the machine would be 50 feet
away from the back of the machine. He was not 50 feet back
because the excavator was idling, and he was not present when the
counterweight was previously moving from right to left because he
was operating the bulldozer (Tr. 183-184).
On cross-examination, Mr. Cline confirmed that he previously
gave a taped interview to MSHA immediately following the
accident, has given at least one deposition, and has filed a
civil lawsuit against the respondent as a result of his
injuries (Tr. 187-188).
Mr. Cline agreed that people around machinery have a
responsibility to look out for its movements. He confirmed
that he was at the work location for three and one-half
hours prior to the accident and observed Mr. Simpkins swing
the machine more than once (Tr. 190).
Mr. Cline stated that he heard no loud machine noises and
observed no diesel smoke immediately prior to the accident
and that he had his back to the machine. He did not believe
that it
was idle with no one in it (Tr. 197). He did not notice Mr.
Simpkins leave the group when they were standing at the rear
of the machine talking and Mr. Simpkins said nothing to him
that he heard. He thought Mr. Simpkins "was still there
hanging around" (Tr. 198). Conceding that it was possible
that he took a step
into the path of the counterweight, Mr. Cline did not recall
ever moving. He also stated that it was possible that he
told MSHA that this is what occurred (Tr. 199).
Respondent's counsel stated that he was prepared to play the
tape of Mr. Cline's MSHA interview statement that it was
possible that he took a step to the side or forward at the
same time the
machine started to turn. MSHA's counsel stipulated that the
tape would reflect that Mr. Cline did make the proffered
statement (Tr. 200). Mr. Cline confirmed that he stated "it
was possible," but he did not recall moving (Tr. 203).
Mr. Cline confirmed that he was standing when he was struck
and that he did not slip or fall, and the area where he was
standing did not give way (Tr. 205). He confirmed that he
did not actually see Mr. Tackett positioning the Typar at
the point farthest away from the excavator, and stated "that
is what he was supposed to have done" (Tr. 206). Mr. Cline
read a portion of his prior deposition on October 31, 1995,
at page 73, stating that he did not know where he was
standing prior to the time he was struck. He could not
recall making the statement, but confirmed that he didn't
know exactly where he was standing (Tr. 207-209).
Mr. Cline confirmed his prior deposition statement that
since the excavator was not operating he didn't believe he
had anything to worry about, and had he known it was
operating he would have been back out of the way (Tr. 213).
Further, since Mr. Simpkins was near him immediately before
he was struck, Mr. Cline had no concern about the rotation
of the machine because there was no operator on it (Tr. 215-
216). The second phase of the operation would entail Mr.
Simpkins tramming the machine back
to continue placing rock and Typar in the ditch (Tr. 219).
Mr. Cline confirmed that Mr. Tackett was on the right side
of the machine prior to the accident and would not have
known where he was positioned before he was struck (Tr.
222).
Roderick R. Wallace, West Virginia state surface mine
inspector, testified that he has inspected the respondent's
mining operation and investigated the accident that occurred
on September 15, 1994. The investigation took place the
following day and Mr. Simpkins and Mr. Tackett were present
and he spoke with them. He explained what he covered and
observed during his investigation, including the dimensions
of the French drain and how it was constructed (Tr. 223-
236).
Mr. Wallace stated that the loose unconsolidated soil
material that was excavated out of the drain ditch
constituted "a very high potential of this stuff slipping
and sliding off of there," and he believed "it would be
foolish to go into that hole
for any reason" (Tr. 236). He further stated that the spoil
in and around the ditch was "all near vertical. It was all
loose, unconsolidated material" (Tr. 236). Based on his
interviews, he determined that the people who were present
at the time of the accident were standing on loose,
unconsolidated material that was on a slope, and they were
in very close proximity to the swinging arc of the
excavator. He confirmed that he interviewed Mr.
Simpkins, Mr. Tackett, Mr. Adams, and Mr. Perry (Tr. 243).
In his opinion, any location within the swinging radius of
the excavator is a hazardous position, and standing on
unconsolidated spoil will increase the potential for
personal injury (Tr. 245, 248).
Mr. Wallace stated that no one told him that they were
standing on unconsolidated material or were unsure of their
footing. Nor did they tell him that they were slipping or
sliding or thought that they were in a hazardous position
(Tr. 245). He stated that Mr. Perry told him he was within
an arm's length of the excavator (Tr. 246). Mr. Wallace
stated that anyone within the swinging radius of the
excavator boom could come in contact with the machine (Tr.
251).
Mr. Wallace stated that in an interview with Mr. Cline after
his initial investigation Mr. Cline told him that Mr.
Tackett went into the drain to spread the Typar, and Mr.
Tackett later confirmed that he was in the ditch (Tr. 255).
Mr. Wallace was of the opinion that it was not safe for
anyone to be anywhere in the ditch because of the
surrounding unconsolidated material (Tr. 256).
Mr. Wallace stated that in the event of a spoil bank
collapse, anyone in the ditch would have to come out the
front,
and the excavator would partially block that area and make
it "a little more difficult to get out" (Tr. 258). He
confirmed that Mr. Simpkins indicated to him that if he had
made sure everyone was in a safer location the accident
would not have occurred (Tr. 260). Mr. Wallace stated that
if he had observed the individuals standing in the location
indicated, he would have cited them for being in close
proximity to the moving machine (Tr. 260).
On cross-examination, Mr. Wallace confirmed that he has no
mining engineering degrees, has no experience operating an
excavator, and took no measurements concerning the width or
depth of the ditch. He also confirmed that his accident
report reflects that there is conflicting evidence
concerning
Mr. Cline's position in that Mr. Adams and Mr. Perry
indicated
that Mr. Cline stepped down into the excavator, and Mr.
Cline did not recall that he had done so (Tr. 268). His
report also reflects that "as the excavator began to move,
Dempy Cline appeared to step onto a flat area where the
counterweight had scruffed off on the spoil bank" (Tr. 269).
Mr. Wallace stated that no state personal action was taken
against Mr. Tackett, Mr. Adams, Mr. Cline, or Mr. Perry, but
charges were recommended against Mr. Simpkins for a knowing
violation (Tr. 280-281). He confirmed that his report
contains no statement that anyone was within the zone of
danger on the
swing of the excavator boom (Tr. 284). He further confirmed
that he did not personally know whether Mr. Tackett had a
means of egress and ingress to the left of the excavator,
and it was possible that he could have exited on the right
side or under the tracks of the machine (Tr. 285).
Mr. Wallace confirmed that he cited Mr. Simpkins "for
operating a piece of equipment with people in such proximity
as to be injured" (Tr. 287). He also cited the company for
the same violation and for operating an excavator within
four feet of a spoil pile, and the citations were issued as
"unknowing" violations (Tr. 290).
William A. Blevins, MSHA supervisory mine inspector,
testified that he went to the mine on September 16, 1994, in
response to a notification by the respondent that a serious
accident occurred the prior evening, and he discussed his
investigation and what he observed, including a sketch of
the accident scene, his accident report, and several
photographs (Exhibits G-12, G-13, G-18; Tr. 291-311).
Mr. Blevins confirmed that he issued all of the citations in
question. He issued section 104(d)(1) Citation No.
3745835, for a violation of section 77.1607(g), because of
the respondent's failure to assure that everyone was clear
of the excavator at the time of the accident (Exhibit G-14,
Tr. 315). He based his "S&S"
gravity conclusions on the fact that an accident occurred
and Mr. Cline lost part of his leg. He based his "high
negligence" finding on the fact that Mr. Simpkins was
directing the work being performed and Mr. Tackett was in
the area helping with the work (Tr. 317-318).
Mr. Blevins stated that he based his unwarrantable failure
findings on the fact that Mr. Simpkins and Mr. Tackett were
in the area directing the work force, had direct knowledge
of the position of Mr. Adams, Mr. Perry, and Mr. Cline, and
failed to exercise reasonable care to assure that they were
in a safe location before moving the machine. He believed
that this constituted aggravated conduct (Tr. 319). He
further explained
that he was told that before getting back on the machine,
Mr. Simpkins glanced to the left to see where the three
people were located and Mr. Tackett was to the right side of
the machine. Mr. Simpkins signaled Mr. Tackett that he was
getting back on the machine, but did not signal the other
individuals (Tr. 320).
Mr. Blevins stated that the cited regulation requires the
equipment operator to check around the machine to be sure
that everyone is in the clear, or give a signal or use other
means to assure that everyone is in the clear before moving
the machine (Tr. 322). Mr. Blevins stated that during his
interview, Mr. Simpkins told him that he saw the three
individuals standing in
close proximity to the excavator. He further stated that he
asked Mr. Simpkins what he could have done to prevent the
accident, and Mr. Simpkins stated "have the people move to a
safe location" (Tr. 327).
With regard to section 104(d)(1) Order No. 4001122, citing a
violation of section 77.1006(a) because Mr. Tackett entered
the drain ditch and exposed himself to loose and unstable
spoil,
Mr. Blevins stated that he based it on statements made by
Mr. Cline, Mr. Adams, and Mr. Tackett that Mr. Tackett had
indeed entered the ditch (Exhibit G-15; Tr. 331-332). He
based his "S&S" and gravity findings on the fact that the
unstable materials would cover up a person in the ditch if
work were to continue. He based his high negligence finding
on superintendent Tackett's admission that he entered the
ditch and exposed himself to a hazard. His unwarrantable
failure finding was based on the following (Tr. 334):
A.Well, when I went back to the mines and talked
to Mr. Tackett about it, he then admitted that he
had gone into the ditch and realized that it was
unsafe for him to do so and said that he shouldn't
have done it. And I don't remember his exact
remarks, but he wouldn't ask anybody else to go in
and do it, but he would do it himself, something
of that nature.
Mr. Blevins confirmed that he issued section 104(d)(1) Order
No. 4001124, citing a violation of section 77.1006(b), after
concluding that Mr. Tackett's egress from the ditch where he had
worked would be blocked by the manner in which the excavator was
positioned (Exhibit G-16; Tr. 334). He believed the only access
out of the ditch was up by the excavator tracks, but that mode of
access "was just about blocked," although not completely. While
it is possible that Mr. Tackett could have escaped under the
machine and between the tracks, Mr. Blevins believed this would
be unsafe (Tr. 336).
Mr. Blevins explained his gravity findings, and he stated
that Mr. Tackett had a small area on each side of the machine
that would possibly have allowed him through depending on where
unstable spoil fell, but in the event of a spoil failure, "it
would probably have been fatal," and he would have been covered
up (Tr. 337). He based his unwarrantable failure finding
basically on the fact that Mr. Tackett was the superintendent and
agent of the operator and placed himself in a dangerous position
by getting in the ditch (Tr. 339).
On cross-examination, Mr. Blevins confirmed that he has
worked at a surface strip mine but has never operated an
excavator. He further confirmed that he made no measurements
during his investigation, and that all of the distances he
mentioned were estimates (Tr. 344). He stated that Mr. Tackett
admitted that he was in the ditch but that the boom was not
extended out over him (Tr. 346-347).
Mr. Blevins agreed that nothing in his investigation led him
to believe that any of the witnesses thought they were in a
dangerous situation prior to the accident. He confirmed that his
accident report does not address the swing of the excavator boom
in the "zone of danger" associated with the range of the boom
(Tr. 349-350).
Mr. Blevins confirmed that his report reflects that Mr.
Cline positioned himself in a location where he would be struck
by the counterweight, and Mr. Blevins cold not recall that Mr.
Adams believed that the material he was standing on was loose and
unconsolidated. Mr. Blevins could not recall whether he asked
Mr. Tackett or Mr. Simpkins whether they recognized the area
where they were standing as hazardous, and he confirmed that Mr.
Simpkins believed they were in a safe location (Tr. 352).
Mr. Blevins confirmed that the statement attributed to Mr.
Simpkins as reflected on the face of the citation was made
in response to "what could we do to prevent a reoccurrence,"
and that it was made after the accident (Tr. 354-355).
Mr. Blevins confirmed that Mr. Simpkins told him that he
looked back to see the location of the three miners. Mr.
Blevins stated that this was an unobstructed view to the
left of the machine and he found no evidence to refute Mr.
Simpkins' statement, or to refute his statement that he
looked and made visual contact with Mr. Tackett on the right
side of the machine (Tr. 357).
Mr. Blevins confirmed that Mr. Adams and Mr. Perry stated
that Mr. Cline took a step in towards the machine, and these
statements were made a day after the accident. Mr. Cline's
interview was conducted approximately three weeks later afer
Mr. Cline's attorney contacted him and advised him that Mr.
Cline was available at his home for an interview (Tr. 357-
359).
Mr. Blevins was of the opinion that the men were in an
unsafe location even before the counterweight swung around,
and
the fact that the miners did not recognize the hazard would
not mitigate the respondent's negligence (Tr. 360). He
believed that the hazard should have been obvious to the
miners, but he did not consider Mr. Cline's movement as part
of his unwarrantable failure finding, and he based his
determination on their position prior to the accident (Tr.
361).
Mr. Blevins did not know whether or not Mr. Tackett could
have gone around the right or left side of the machine when
he was in the ditch, but stated it was possible. He also
did not know if Mr. Tackett could have exited the ditch
under the machine and between the tracks because the machine
had been moved. The question of Mr. Tackett's ability to
get himself in and out of the area was not addressed during
his initial investigation interviews, but he obtained the
information weeks later. He spoke to no eyewitnesses and
issued the citation based on his judgment alone (Tr. 375-
376).
Mr. Blevins stated that during his interviews of Mr. Perry,
Mr. Adams, and Mr. Cline, they gave no indication that Mr.
Simpkins warned or informed them that he was going to move
the machine, and they stated that they did not know that Mr.
Simpkins had gotten back into the machine (Tr. 380). Mr.
Blevins observed that there was an indentation in the spoil
where the accident occurred, and according to the statements
of the miners they were standing within a few feet of the
indentation. He concluded from this that they were too
close to the machine (Tr. 382).
Dr. Kelvin K. Wu, PH.D., Chief, Mining Engineering Division,
MSHA Pittsburgh Safety and Health Technology Center, was
accepted as an expert in geotechnical matters, including
ground control (Exhibit G-19; Tr. 12-21). He testified that
he reviewed the accident report and gained further
information concerning the respondent's mining operation
through discussions with MSHA's counsel and Inspector
Blevins, and also reviewed the photographic exhibits and
equipment specifications for the Hitachi Model 1000
excavator. He also gave a deposition attended by
respondent's counsel and has been present during the
testimony in these proceedings (Tr. 30). Based on his
review of the photographs and witness testimony, Dr. Wu was
of the opinion that the ditch was not very wide and that the
sloped sides of the ditch consisted of loose materials that
"can fall in unpredictably anytime" (Tr. 37). He also
believed that anyone standing at the end of the
ditch closest to the excavator would be in a hazardous
location because the sloped materials can slide and cover
him up (Tr. 41).
Dr. Wu described the working parameters of the machine that
was used in excavating and constructing the ditch (Tr. 48-
53). He confirmed that the machine boom can make a complete
360 degree turn, with a resulting 45 foot radius. He agreed
that the boom
may not swing completely around in a circle while
excavating, but since it is capable of doing so, he was of
the opinion that a location outside of the 45 foot boom
swing would be a "safe
location" for people to be in. He further believed that
only those people necessary to the work being performed be
allowed around the machine, and that in order to avoid an
accident it was critical for the machine operator to make
acknowledged eye contact with persons near the machine (Tr.
57-60).
Dr. Wu stated that depending on the prevailing conditions,
and in an emergency, Mr. Tackett could have crawled out of
the ditch under and through the openings of the
undercarriage of the machine (Tr. 62-66). However, given
the fact that the ditch area is sloped, a sudden slide of
materials would make it very difficult to get out of the
ditch (Tr. 66-67). Reviewing photographic exhibits G-9(a)
and G-11, Dr. Wu believed that Mr. Tackett would be exposed
to a hazard if he were positioned between the machine shovel
bucket and the front of the machine, and in the event of a
massive slide of loose material, the machine boom area would
be covered up (Tr. 68-70). Dr. Wu believed that providing
clearance on either side of the machine, or providing a
wider area on either side of the ditch slopes, could have
provided a means of egress for Mr. Tackett (Tr. 84-86).
Dr. Wu believed that the area outside the farthest reach of
the machine would be a "safe zone." Although Mr. Simpkins
may
have made visual contact with the people standing behind the
machine, he did not receive any acknowledgment (Tr. 72).
Dr. Wu believed that the people standing behind the machine
on loose materials as shown by the red circle on
photographic exhibits G-2 and G-11, could have lost their
footing while the machine was turning, and he was of the
opinion that these hazardous conditions would be obvious to
the equipment operator, and precautions should have been
taken (Tr. 78, 81-82). He further stated as follows at (Tr.
90):
Q. Would a reasonably prudent equipment
operator, first of all, under these
circumstances, have been aware that these
miners, as testified to were in the
counterweight area, were in an unsafe area?
A. As I stated before, based on this
specification, I can comfortably say there is
a blind area or spot behind this piece of
equipment the operator wouldn't see. So if
he knows there is a certain blind spot and
very close if he knows people are there, then
special precaution should be taken.
Q. And from testimony as was stated earlier,
there was testimony that Mr. Simpkins looked
toward these people. And would a reasonably
prudent equipment operator do that? Was that
enough under the circumstances to - -
A. Under this circumstances, I would say no,
because when the machine was faced to the
highwall, the operator sitting in the cab,
when he turns left, he can see those people.
As I stated, you might misjudge the distance.
And the major
things happening here is miscommunication.
Seems to me that testimony is no
acknowledgment of those people receive his
visual contact. When the machine swing to
the right, then those people behind the
counterweight is in the blind spot. He no
longer can see them.
And at (Tr. 92):
Q. And in terms of the spoil bank conditions
surrounding the ditch, would a reasonably
prudent superintendent or someone in charge
of the health and safety of the area of the
mine permit someone to go into that ditch to
work under those conditions?
A. If those people responsible for the
operation have a knowledge of the hazardous
conditions, then they probably would
recognize it. If they do not, then probably
not.
On cross examination, Dr. Wu acknowledged that he has never
worked as a miner or operated an excavator (Tr. 97). He
confirmed that his involvement in this case began in July
1996, and he has never visited the accident scene (Tr. 100).
He agreed
that no exact measurements were made with respect to the
areas in and around the excavator, and after reviewing
photographic exhibits G-2, G-9(A), G-10 and G-11, he agreed
that they do not show a lack of clearance on the left or
right of the machine tracks (Tr. 104-106). He confirmed
that he was aware of no definite or clear testimony
indicating the clearance between the
left and right tracks where Mr. Tackett was moving the Typar
material (Tr. 107-108). Dr. Wu was of the opinion that a
minimum of 2 � feet of clearance on each side of the tracks
would be sufficient clearances to meet the requirements of
the regulation. In addition, a further safe practice would
be to stabilize the side slopes in order to maintain the
clearances, even though this is not required by the cited
regulation (Tr. 116-118).
Reviewing photographic exhibit G-9(A), Dr. Wu described what
he believed were loose materials around the area where Mr.
Tackett is standing. He estimated that the machine boom is
extended 25 feet from the front of the excavator track, and
that Mr. Tackett is approximately 5 to 10 feet from the boom
bucket teeth (Tr. 122-124). Dr. Wu could not speculate or
predict where the rock that is circled in the photograph
would go if it fell and rolled down the slope (Tr. 124-125).
Dr. Wu estimated from the photographs and testimony that the
ditch was approximately 30 to 40 feet long, and from 0 to 30
feet
deep. He further estimated that the ditch was 10 to 15 deep
where Mr. Tackett was standing, and that he was standing
within 25 feet of the end of the ditch (Tr. 131-135). He
believed that a safe depth for Mr. Tackett to stand with
loose material around him would be 4 � feet (Tr. 136).
Dr. Wu stated that an equipment operator has a duty to make
sure he makes eye contact with a person in a hazardous area
before he moves the equipment, and the person needs to
acknowledge that he received the signal and must also be
alert that he is in a hazardous area (Tr. 138-139). He
agreed that when Mr. Simpkins looked left before swinging
the machine, he could see the people and they were not in
his blind spot. It could take two seconds for the machine
to swing in the other direction, and someone could move to
his blind spot and he would not have time to do anything
once he starts the turn. Under this
scenario, it is extremely important that the person
acknowledge the operator's signal (Tr. 141). The operator
sits on the left side of the machine and has a blind spot on
the right side for anything below his visual line of sight
(Tr. 142).
Dr. Wu was not aware of any MSHA policy guidelines or
bulletins regarding an equipment operator's duty pursuant to
sections 77.1006(a) and (b) (Tr. 143-144). Although he
believed that Mr. Adams honestly believed he was standing on
stable
material when the accident occurred, Dr. Wu believed that
Mr. Adams' belief was based on a lack of training. He would
have expected Mr. Adams to understand that loose materials
are unstable and that any disturbance can cause the
materials to flow (Tr. 147). Dr. Wu acknowledged that there
is no evidence that the area where Mr. Adams and the others
were standing moved an
inch or caused the accident, and the accident report
reflects that Mr. Cline, for whatever reason, "got himself
down in that indentation" (Tr. 148). Dr. Wu was unaware of
any MSHA regulation that would have prevented the way the
drain was constructed (Tr. 153).
Dr. Wu confirmed his deposition testimony that a slope such
as the one at the ditch would generally be hazardous if it
was
over six feet, or at the height of the individual standing
in the
ditch (Tr. 153-157). He also confirmed that he performed no
calculations in formulating his opinion (Tr. 163).
In response to further questions, Dr. Wu stated that there
would be no serious safety concern if Mr. Tackett were
standing in the five or ten foot area at the end of the
ditch coming out, but there would be a hazard if he were
beyond that point in the ditch towards the highwall.
However, if he were standing in the ditch where it was four
feet deep, and the ditch slope bank was an additional four
feet, this would be hazardous because of the
presence of the loose materials (Tr. 165-166). He also
believed that the individuals who were behind the excavator
when it swung around were too close to the machine, and they
were standing on loose, unconsolidated materials. Under
these conditions, they were exposed to a hazard of slipping
or loosing their footing while in close proximity to the
machine (Tr. 167-168).
Respondent's Testimony and Evidence
James G. Tackett, mine superintendent, testified that he was
serving in that capacity on the day of the accident, but he
did
not observe it take place, and did not observe Mr. Cline's
actions immediately prior to the accident because the
excavating machine was between them and blocked his view
(Tr. 180).
Mr. Tackett stated that Mr. Simpkins called him and asked
him to come to the area where the ditch was being
constructed and he explained the work that was being
performed, including preparing and installing the first
layer of Typar material in the ditch. He stated that he
never entered the ditch during the installation of the first
layer because Mr. Simpkins used the excavator bucket to
spread the Typar (Tr. 181-185). He stated that he and Mr.
Cline and Mr. Perry then stood to the left side of the rear
of the machine in a flat area approximately 10 feet wide and
watched Mr. Simpkins loading rock into the ditch over
the Typar. Everyone was standing 8 to 10 feet away from the
machine at that time, and he confirmed that the
counterweight of the machine was swinging around and digging
into the soil bank (Exhibit G-11; Tr. 185-188).
Mr. Tackett believed that everyone was in the clear and in
no danger while Mr. Simpkins was loading the rock into the
ditch
over the first layer of Typar. He also believed that the
rock
and dirt spoil materials in the area where they were
standing "was good and stable there, because it was solid
and there was no loose rock, everything was compact and I
wasn't walking on no
loose rock," and no one had any trouble with their footing
(Tr. 191).
Mr. Tackett confirmed that he went into the ditch when the
second layer of Typar was being spread over the rocks and it
overlapped itself close to the front of the machine, and he
looked to both sides and under the machine, checked the
spoil on both sides, and determined that it would be safe to
step onto the rock and spread the Typar. He believed he had
at least three feet on each side of the machine as an
escapeway in the event spoil materials came into the ditch
(Tr. 195).
Mr. Tackett stated that the ditch was approximately two to
three feet deep at the end closest to the excavator where he
was
standing in front of the machine bucket on the other side of
the track. He was able to see around and out of the area
while he was in that position (Tr. 196-197, Exhibit G-11).
He believed he had access in and out of the ditch to the
right and left, and could have gone out under the machine,
and he estimated the tracks to be three to four feet high
(Tr. 199).
Mr. Tackett stated that he was never in front of the machine
bucket toward the highwall side of the ditch area and from
what he observed he believed he was safe and would not have
gone into the ditch if he thought he would be hit by a rock.
He confirmed
that he did not initially inform Inspector Blevins that he
was in the ditch because "I didn't even think nothing about
it two or three weeks later." He denied telling Mr. Blevins
that he "should have known better" or should not have done
it. He did not believe that it was unsafe for anyone else
to go into the ditch, but stated "I wouldn't care to put
either one of them men in there" (Tr. 201-203).
Mr. Tackett stated that Anchor Mining is presently doing
reclamation work and is not mining coal, and when the
reclamation is completed the company has no further
contractual obligations to mine coal. He expects that
Anchor Mining will close its operation and be out of
business by October 1996, and he will probably be laid off
and will have to look for a job. He expects
to earn $50,000 in 1996, has savings accounts and a car
payment of $520 a month. His wife is unemployed, and if he
is laid off, he expects to receive $1,000 a month in
unemployment. He owes $10,000 for his wife's 1994
automobile. He stated that if he were required to pay the
proposed $2,000 assessment it would create a hardship for
him and he would have to use some of the $1,900, he has
saved for his 13 year old daughter's college fund (Tr. 206).
Mr. Tackett stated that he was approximately five feet ten
inches tall and at the location where he was standing, he
estimated that the ditch was three to four feet high, or
"waist high" on each side of him (Tr. 207).
On cross-examination, Mr. Tackett could not recall stating
in his deposition of July 16, 1996, that the ditch was
"between five and ten feet or something like that" where he
was standing (Tr. 209). He explained further that this
statement referred to the height of the spoil bank on the
side of the machine where he had been walking and standing
and where the machine counterweight was rubbing the spoil
(Tr. 214; Exhibit G-9-A).
Mr. Tackett estimated that there was three feet of spoil
material on the edge of the ditch where he was standing and
"plenty of spoil," approximately 30 to 40 feet, toward the
highwall. However, he was not in that area (Tr. 215). When
he stretched out the Typar at the point where it was
overlapping he pulled it toward the back of the machine, and
at no time did he stretch it back in the direction of the
highwall (Tr. 216-218).
Mr. Tackett stated that he was never instructed to stretch
the Typar along the entire length of the ditch as shown in
Exhibit R-12, nor was he instructed to go into the ditch,
and stated "I took that on myself to do that" (Tr. 221). He
confirmed that he was aware of the spoil bank material on
each
side of the ditch as shown in exhibit G-9-A. He was also
aware of the spoil bank at the highwall area, and knew that
the spoil bank materials were loose and unconsolidated
materials that were dug out from the ditch. He also knew
that none of these materials were supported by any shoring,
posts, or timbers
(Tr. 224). Referring to exhibits G-7 and G-8, he stated
that Mr. Simpkins stretched out the rest of the Typar with
the machine bucket as shown in exhibit R-12 (Tr. 228-230).
He confirmed that he was between the machine bucket and the
machine when he stretched out the Typar (Tr. 235-236).
Mr. Tackett reiterated that he never stated to Mr. Blevins
that he knew it was unsafe to go into the ditch, and he
explained further as follows at (Tr. 238):
I just got in the ditch. I observed both
sides, looked carefully, seen if there was a
way to get in and out of that ditch. I could
have walked to either side of the machine,
went under the machine. I chose to just step
off the rock, onto the flat area.
Mr. Tackett stated that just before the accident he was
standing to the left side of the machine with Mr. Perry, Mr.
Cline, and Mr. Adams, and with the machine counterweight
swinging, they were in the "danger zone." He stated that he
observed that everybody was safe and away from the machine.
He did not recall if Mr. Simpkins was there at that time,
but he was not in the machine and "was probably off, on the
ground" (Tr.
239-240). He received no communication from Mr. Simpkins at
that time that he was going to move the machine, nor could
he recall Mr. Simpkins tell him that he was going to do so
(Tr. 241-242).
Mr. Tackett stated that after he left the area where the
three individuals were standing he went to the right side of
the machine and saw Mr. Simpkins in the operator's seat.
Mr. Simpkins did not give him any signal. However, he
signaled to Mr. Simpkins with his arm that he was in the
clear and he knew that after spreading the Typar, Mr.
Simpkins would move the machine (Tr. 247-248).
Mr. Tackett stated that he did not signal the people
standing to the left side of the machine or try to warn Mr.
Simpkins that they were there because he was on the right
side of the machine and Mr. Simpkins "was aware" and "was
over there with the people on the left side of the machine"
(Tr. 250). He stated that Mr. Simpkins made eye contact
with him, but he did not signal Mr. Simpkins to stop the
machine to check the other side because "the last time I
was on the other side of the machine, all the men were in
the clear when I was over there with them" (Tr. 252).
In response to further questions, Mr. Tackett stated that
the excavator dual diesel engines are noisy, and when the
machine throttles up to swing around, it was very loud and
everyone in the area could hear it. Mr. Tackett stated that
he never had any concern that the three people standing to
the left of the machine were not in the clear. While he was
in that area everyone was safe and out of the swing of the
machine. He stated that Mr. Cline was an experienced miner
and had operated the excavator ninety percent of the time.
Mr. Tackett stated that he advised Mr. Perry to stay away
from the swing of the machine because he was inexperienced.
Mr. Tackett reiterated that it would be difficult for him to
live on his unemployment if he were laid off and that it
would be "tough" for him to make ends meet if he had to pay
the proposed penalty assessment (Tr. 263).
James Simpkins, testified that he is one of the mine owners
and has been in business for 8 to 10 years. He confirmed
that he was operating the excavator constructing the ditch
in question on the day of the accident, and has operated
excavators for 20 years. He considered himself to be an
excellent operator and explained how the ditch was excavated
and how he spread the Typar with the machine. (Tr. 265-
274).
Mr. Simpkins stated that the rock shown in Exhibit G-9-A,
that appears to be above Mr. Tackett's head was secure and
nearly halfway up into the ditch and he tried to dig it out
but could not move it (Tr. 277). He attempted to remove it
because he was
concerned that materials might flow from under the rock into
the ditch while he was digging at the bottom. He speculated
that the rock was 5 to 10 feet in front of Mr. Tackett (Tr.
178).
Mr. Simpkins stated that he tested and checked the rocks and
the sides of the ditch, and did not believe that there was a
potential for Mr. Tackett to be covered up by any loose
spoil where he was located. If Mr. Tackett had gone inby
that area he would have exposed himself to some danger, but
he did not do so (Tr. 279). Mr. Simpkins stated that the
company has no assets, no prospects for future coal
production, and "has been in the red for the last four
years," and has no way of paying any assessments (Tr. 281).
Mr. Simpkins described what occurred prior to the accident.
After Mr. Tackett stretched the Typar, he came out of the
ditch and went to the right side of the machine and Mr.
Adams, Mr. Cline, and Mr. Perry were in the area where they
had been standing all day (Exhibits G-11). He estimated
that they were 15
to 20 feet from where he was located and clearly out of the
way of the swing of the machine counterweight (Tr. 283-285).
He further explained at (Tr. 285-286):
A. At that point in time, Tackett had
flipped the Typar back over. The bucket was
already turned down into the hole with the
teeth down in the right direction. I simply
made a couple of quick, short passes to
stretch the Typar, looked to the left and
right, revved the machine up and proceeded to
swing the machine to the right, but could
not, since I had raised the boom up, see Jim
Tackett and I had to lean up and look forward
to locate him.
Having spotted Jim, knowing he was now in the
clear, I proceeded to swing, and at that
point, made a swing out of the hole with the
machine, turned it around almost a ninety
degree turn. And at that point in time, Troy
Perry came running
around the side of the machine, waving me
down, and I knew something had happened.
Mr. Simpkins stated that after the last swing of the machine
his work was finished and he planned to tram the machine out
of
the ditch. He stated that "I told the men that I was
finished and I was going to tram the machine out of the
hole," but up to that point, he gave Mr. Cline no indication
that he would turn the machine around and tram out.
Although he could not state for certain whether Mr. Cline
heard him state that the work was finished, Mr. Simpkins
stated "If he didn't, he should have" (Tr. 288).
Mr. Simpkins stated he "felt perfectly comfortable" with the
three individuals standing on the left side of the machine,
and he further explained at (Tr. 289-290):
Q. Would you rather have had them in a different
position?
A. I liked having them where I could see them.
Q. Why?
A. Because I knew where they were. Had they been
to my rear, all the time, then I would have had to
swing around completely to have located them. And
when they were standing off to my left - - that is
why Rick had chosen that spot to take the
pictures, so I could see him, and not gotten off
on right side or behind me. He got on my left
where there was clear visible contact between the
two of us and I could always see where he was.
Q. Did you have any reason - - did you have any
indication at all that anyone was going to step
into the path of the counterweight?
A. No, I had no idea that Dempy was going to do
that.
Q. Did you have any reason to believe that Mr.
Cline or anyone else out there was going to move -
- that any one of those people on the left-hand
side of your machine was going to move from the
position that you last saw them in?
A. No. They had been there for two or three
hours in that position and they seemed to be quite
content there.
Q. Had they all been in that position?
A. At times. Troy and Rick had been there most
of the time and even, I think, at times, Tackett
was there with them, and Dempy at different times.
Mr. Simpkins stated that the company paid the assessment for
the violation that was issued for failure to make certain
that people were in the clear because he had instructed his
controller to promptly pay for all violations. He did not
have time to stop the payment, and he would not have paid it
(Tr. 291).
Mr. Simpkins confirmed that he made a statement to the MSHA
inspectors during the accident investigation, but he could
not recall the exact words, and indicated that "the only
thing that could have been done was just not to have those
people there, period." He stated that he had no control
over what any of the people would do "because they could
have walked up to the machine while I was busy with the
equipment and had my back to it" (Tr. 292). He further
stated that "he may have" acknowledged
to the inspector that the people were not in the clear when
he began to move the machine (Tr. 293). Mr. Simpkins stated
that Mr. Cline was a close friend of his and worked for him
for 8 years, and he "was heartbroken" and grief stricken
over the accident, the first such incident at the mine (Tr.
293-294).
On cross-examination, Mr. Simpkins stated as follows at
(Tr. 294-295).
Q. All right, Mr. Simpkins, according to our
transcription from the tape recording
interview of you by Mr. Blevins, you were
asked by him, as indicated by Mr. Bonham,
what could be done to prevent this accident
from happening. And the answer from the tape
transcription is, "If I had, before I moved
the machine, if I had moved everybody from
the area and made sure they were back away
completely, this accident would not have
happened." Does that refresh your memory as
to what you said?
A. Yes. If you're reading from the
transcript, then that is what I said, yes.
* * * *
Q. And you made mention to them that you
were going to tram the machine out of there?
A. Yes.
Q. And you didn't mention to them, did you,
that you were going to swing the
counterweight to the left and swing the boom
to the right, did you?
A. It would have been necessary to have done
that to have trammed the machine.
Mr. Simpkins confirmed that he did not exchange any signals
with the people standing on the left side of the machine
because "they were already in the clear and I could plainly
see them" (Tr. 299). He believed they should have known he
was going to
move the machine when he throttled it up because it would
have been impossible for them not to hear the engines, and
he acknowledged that the machine responds quickly and the
counterweight turns in seconds (Tr. 302-303).
With regard to the rock near Mr. Tackett as shown in Exhibit
G-9-A, Mr. Simpkins confirmed that it was secure, but that
it was located in loose, unconsolidated material, and even
at 8 feet away, it could have caved in and effected Mr.
Tackett. However, he tried to move the rock and found it
very secure (Tr. 310). He stated that the machine bucket is
five feet wide and that the ditch was approximately ten feet
wide and the reach of the bucket boom is 47 feet (Tr. 311).
Mr. Simpkins confirmed that the mine produced 1,000 tons of
coal per day until mid-July 1996, and he sold it for $10 or
$15 a ton. He stated that the company is owned by Pehem
Industries, Inc., a parent company, and it has mined coal in
1995 and 1996 (Tr. 317-318). He confirmed that he also owns
the cattle that are at the mine and is co-owner of Pehem
Industries, the owner of Anchor Mining's stock (Tr. 319).
Dr. Wu was recalled, and stated as follows at (Tr. 323-324):
A. I do believe as what Mr. Simpkins stated,
that he did try to loosing the material and
the rock is his concern. It should be a
simple thing to do with this particular
piece of equipment. And my concern is for
loose materials, we're not only talking one
piece of rock or one particular
piece of rock when you try to move it and
you're sure the thing will not come down.
Basically, when we're talking dealing
with loose material, he is talking overall
the spoil bank. So there could be this
piece of rock at the time was firm, but as
time goes and the bottom, the material,
starts getting loose and a big piece can
come down anytime. So it's always
important to slope back those banks, the
spoil banks, to provide a safe working
environment.
Findings and Conclusions
Docket No. WEVA 95-169. Fact of Violations.
Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
30 C.F.R. 77.1006(a)
Inspector Blevins cited Anchor Mining Company with a
violation of mandatory safety standard 30 C.F.R. 77.1006(a)
after making a determination that Mr. Tackett went into the
ditch that was under construction at the base of the
highwall to smooth out a part of the Typar covering material
that was over the rock that had been placed in the ditch.
The cited section 77.1006(a), provides as follows:
� 77.1006 Highwalls; men working.
(a) Men, other than those necessary to
correct unsafe conditions, shall not work
near or under dangerous highwalls or banks.
Based on the evidence adduced with respect to this
violation, I conclude and find that the construction of the
drainage ditch in question was taking place near or under a
dangerous highwall and spoil banks that were located on
either side of the ditch and formed by the materials that
either came off the highwall or were excavated from the ditch
during construction and placed on either side of the ditch.
Accordingly, the cited safety standard clearly applied to the
work that was being performed on September 15, 1994, the day
of the accident in question.
Mr. Tackett admitted that he went into the ditch to pull
back and straighten out a piece of the Typar material, and
this act on his part was confirmed by eye witnesses Adams,
Cline, and Simpkins. I conclude and find that Mr. Tackett was
in the ditch near and under the dangerous ditch spoil banks
performing work and that his presence there was a clear
violation of section 77.1006(a). Under the circumstances,
the violation IS AFFIRMED.
Section 104(d)(1) "S&S" Order No. 4001124, October 12, 1994,
30 C.F.R. 77.1006(b).
Inspector Blevins cited Anchor Mining Company with a
violation of 30 C.F.R. 77.1006(b), after concluding that the
excavator being used to construct the drainage ditch on
September 15, 1994, was positioned in such a way as to block
Mr. Tackett's egress from the ditch which he had entered to
perform the work that resulted in the issuance of the prior
section 104(d)(1) "S&S" Order No. 4001122. Section
77.1006(b), provides as follows:
� 77.1006 Highwalls; men working.
* * * *
(b) Except as provided in paragraph (c) of
this section, men shall not work between
equipment and the highwall or spoil bank
where the equipment may hinder escape from
falls or slides.
Photographic exhibits G-8 and G-9-A, clearly depict Mr.
Tackett in the ditch pulling on the Typar material, and he
is positioned between the excavator and the highwall and
adjacent ditch spoil banks that were on either side of him.
Further, his location in the ditch was observed by several
of the witnesses, and I conclude and find that Mr. Tackett
presented no credible evidence to rebut the fact that he was
in the ditch between the excavator and the highwall and
spoil banks. The critical issue however, is whether or not
the excavator would have hindered Mr. Tackett's escape from
his location in the ditch in the event of a fall or slide of
the spoil materials. Webster's New Collegiate Dictionary,
defines "hinder"as follows at pgs. 536-537:
to make slow or difficult the progress of; to
delay, impede, or prevent action.
The burden of proof is on the petitioner to establish the
violation by a preponderance of all of the credible and
probative evidence presented in support of the charge
described in the citation. I take note of the fact that
although section 77.1006(b), prohibits an individual from
working between equipment and a highwall or spoil bank where
the equipment may hinder his escape from falls or slides,
the citation issued by Inspector Blevins states that the
excavator blocked Mr. Tackett's egress from the ditch. The
word "block" is defined by Webster's New Collegiate
Dictionary, as "to make unsuitable for passage by
obstruction; to hinder the passage of;." I conclude and
find that both words have essentially the same meaning and
the fact that the citation states "blocked" rather than
"hindered" is not critical to the charge.
Eyewitness mining engineer Adams, testified credibly that
Mr. Tackett was in the ditch for less than a minute and he
did not recall that Mr. Tackett experienced any difficulty
in leaving after he pulled back the Typar (Tr. 85). Mr.
Adams further believed that the excavator did not block Mr.
Tackett's egress and he was certain that he could have
exited the ditch on either side of the excavator (Tr. 97).
State mine inspector Wallace, who investigated the accident
the following day, confirmed that he made no measurements of
the
width or depth or the ditch, and he was of the opinion that
in the event of a collapse of the spoil bank anyone in the
ditch would have to exit out of the front of the ditch and
that the excavator would partially block the area and make
it "a little more difficult to get out" (Tr. 258, 268). Mr.
Wallace conceded that he had no personal knowledge as to
whether Mr. Tackett had a
means of egress or ingress to the left side of the
excavator, and that it was possible that Mr. Tackett could
have exited the ditch on the right side of the excavator or
under the tracks (Tr. 285).
MSHA Inspector Blevins confirmed that he too made no
measurements during the course of his accident investigation
and his report is confined to the accident itself and
contains no information concerning this alleged violation.
Indeed, Mr. Blevins admitted that Mr. Tackett's ability to
get in and out of the ditch was not included as part of his
accident investigation and that he spoke to none of the
eyewitnesses about this violation at that time. He
confirmed that he obtained information about this event
"weeks later" and that the citation was based on his
judgement alone (Tr. 375-376).
Mr. Blevins believed that the only access out of the ditch
was by the excavator tracks that "was just about blocked,"
but not completely (Tr. 336). However, he also believed
that assuming there was no spoil failure, there was an area
on each side of the machine that would possibly have allowed
Mr. Tackett to pass through (Tr. 337). He later testified
that he had no knowledge as to whether or not Mr. Tackett
could have exited the ditch around the right or left side of
the excavator, but nonetheless believed this was possible
(Tr. 367-368). I find Mr. Blevins's testimony in support of
this particular violation to be rather equivocal,
contradictory, and less than credible.
Mr. Tackett's credible and unrebutted testimony is that he
had access in and out of the ditch to the left and right
side of the excavator, as well as under the machine tracks,
and that before going into the ditch he looked carefully to
both sides and determined that there was a way to get in and
out by walking to either side of the excavator or under the
tracks (Tr. 199-238). His testimony is essentially
corroborated by Dr. Wu, who, after viewing several
photographic exhibits, agreed that they do not show a lack
of clearance on the right and left sides of the excavator,
and that Mr. Tackett could have crawled out of the ditch and
through the undercarriage of the machine in an emergency
(Tr. 66, 104-106).
Although Dr. Wu believed than a minimum of 2 � feet of
clearance on each side of the machine would provide
sufficient clearance to meet the requirements of section
77.1006(b), he agreed that no measurements were taken by
anyone in connection with this violation, and as noted
above, his own testimony lends support to Mr. Tackett's
belief that he had sufficient clearance on either side of
the machine, as well as under it, to leave the ditch
unimpeded by the position of the machine.
After careful review and consideration of the evidence and
testimony adduced with respect to this alleged violation, I
conclude and find that the petitioner has not established a
violation of section 77.1006(b), by a preponderance of the
credible and probative evidence presented in this case.
Under the circumstances, the violation and contested order
ARE VACATED.
Docket Nos. WEVA 96-74 and WEVA 96-75
Fact of violation, Section 104(d)(1) "S&S" Citation No.
3745835, September 19, 1994, 30 C.F.R. 77.1607(g).
Mr. Tackett and Mr. Simpkins are charged individually
pursuant to section 110(c) of the Act as agents of Anchor
Mining Company with "knowingly authorizing, ordering, or
carrying out" a violation of mandatory safety standard 30
C.F.R. 77.1607(g), which states as follows:
� 77.1607 Loading and haulage equipment;
operation.
(g) Equipment operators shall be certain, by
signal or other means, that all persons are
clear before starting or moving equipment.
Respondent Anchor Mining Company did not contest section
104(d)(1) Citation No. 3745835, issued on September 19,
1994, for a violation of section 77.1607(g), and pursuant to
section 105(a) of the Act, the uncontested violation and
proposed civil penalty assessment became a final order of
the Commission. Pursuant to the Commission's decision in
Old Ben Coal Company, 7 FMSHRC 205, 209 (February 1985),
such final orders reflect violations of the Act and the
asserted violation contained in the citation is regarded as
true.
Although Mr. Simpkins and his counsel stated that the $4,000
civil penalty assessed against Anchor Mining was paid (Tr.
291, 320), an MSHA computer print-out of the respondent's
history of prior violations prepared on July 8, 1996,
reflects that the penalty was not paid and that a
delinquency letter was issued (Exhibit G-1). Further, at
page 4 of his post-hearing brief, MSHA's counsel states that
as of the filing of the brief on October 28, 1996, the
penalty assessment of $4,000 has not been paid.
The respondent's suggestion that Mr. Cline caused the
accident and violation by stepping in front of the excavator
counterweight, thereby absolving Anchor Mining and its
management from any responsibility or liability for the
violation is rejected. It is well settled that mine
operators are liable
without regard to fault for violations of the Act. See:
Secretary v. Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC
1112, 1115 (July 1995); Secretary v. Western, Fuels-Utah,
Inc., 10 FMSHRC 256 (March 1988). However, the absence of
fault by the mine operator may mitigate its negligence and
any civil penalty assessment for the violation.
In Austin Power, Inc., 9 FMSHRC 2015, 2018-2019 (December
1987), the Commission stated as follows:
We hold that section 77.1607(g) requires the
operator of equipment subject to the standard
to be certain that all persons within the
potential zone of danger are clear from
reasonably foreseeable hazards resulting from
the starting or moving of the equipment. *
* *
As contrasted with more detailed regulations,
the requirement of section 77.1607(g) that
"[e]quipment operators be certain . . . that
all persons are clear before starting or
moving equipment" is the kind of regulation
made "simple and brief in order to be broadly
adaptable to myriad circumstances." Kerr-
McGee Corp., 3 FMSHRC 2496, 2497 (November
1981). Generally, the
adequacy of an equipment operator's efforts
to comply with section 77.1607(g) is
evaluated in each case with reference to an
objective test of what actions would have
been taken by a reasonably prudent person
familiar with the mining industry, relevant
facts, and the protective purpose of the
standard. See, e.g., United States Steel
Corp., 6 FMSHRC 1908, 1910 (August 1984);
United States Steel Corp., 5 FMSHRC 3, 5
(January 1983); Alabama By-Products, 4 FMSHRC
2128, 2129 (December 1982).
The critical issue here is whether or not Mr. Simpkins, who
was operating the excavator, acted reasonably and prudently
in making certain that Mr. Cline was clear of the machine
when he put it in motion by swinging the boom to the right,
causing the rear counterweight to swing to the left into Mr.
Cline, causing serious injuries to his leg.
Mr. Adams, Mr. Perry, and Mr. Cline were standing together
to the left rear of the machine shortly before Mr. Simpkins
put it in motion. Mr. Adams testified that they were
standing in a level area close to the elevation of the
machine and he saw that the machine counterweight had made
an indentation in the spoil bank between the area where they
were standing and the excavator as it swung around in the
course of the work that was taking place (Tr. 90-91).
Mr. Adams testified that he perceived no hazard to Mr. Cline
where he was standing, and he felt "reasonably safe" where
he (Adams) was standing, and that Mr. Cline was near him.
However, he nonetheless believed that the accident was
preventable, in part, if Mr. Cline had been standing
somewhere else behind him (Tr. 72-76). Mr. Adams also
indicated that he and Mr. Cline were 5 or 6 feet, or "a step
and a reach" from the counterweight when it swiveled (Tr.
54-57).
Although Mr. Adams stated that he was not surprised by the
swinging counterweight and expected it, he confirmed that he
did not hear Mr. Simpkins give any audible signal or see him
"eyeball" anyone before putting the machine in motion (Tr.
133, 137).
Mr. Perry and Mr. Cline testified credibly that they had no
advance warning that Mr. Simpkins would put the machine in
motion, and Mr. Perry observed no signal from Mr. Simpkins
(Tr. 151-152). Mr. Perry further testified that he was "one
step" and an "arm's length" away from the counterweight as
it swung by him, and that he "felt the wind" as it passed
him (Tr. 151-152).
Mr. Tackett testified that Mr. Cline, Mr. Perry, and Mr.
Adams were standing 8 to 10 feet from the excavator on the
level area to the rear left of the machine while Mr.
Simpkins loaded
rock into the ditch. Although they were in the "danger
zone," Mr. Tackett believed the men were clear and in no
danger at that time (Tr. 188, 190). He could not recall
that Mr. Simpkins ever told him that he was going to move
the machine and he received no communication from Mr.
Simpkins that he was going to do so
(Tr. 241-242).
Contrary to the testimony of Mr. Perry, Mr. Cline, and Mr.
Tackett, Mr. Simpkins testified that he told them that he
was going to tram the machine out of the area. With respect
to Mr. Cline, Mr. Simpkins did not know if Mr. Cline heard
him, and stated, "if he didn't, he should have" (Tr. 288).
I find the testimony of Mr. Simpkins to be less than
credible, and conclude that he did not inform Mr. Cline that
he was going to move the machine before he put it in motion.
Mr. Simpkins' assertion that the machine was loud enough for
Mr. Cline to hear it and realize that it was going to move
is rejected. The cited standard requires the equipment
operator to be certain "by signal or other means" that all
persons are clear before moving the equipment. I reject as
unreasonable any notion that revving up the engine is an
acceptable means of warning anyone to stand clear of the
machine, particularly since the machine boom can swing
around in a matter of seconds (Tr. 302-303).
Mr. Simpkins acknowledged his prior statements to MSHA's
inspector that the accident would not have happened if he
had moved Mr. Cline and the other individuals from where
they were standing to the rear left of the machine and made
sure they were completely clear of the machine (Tr. 295).
Mr. Simpkins also admitted that he did not exchange any
signals with these individuals, and claimed he did not do so
because he believed they were clear of the machine and he
could see them (Tr. 299).
Mr. Simpkins' assertion that he was in complete compliance
with section 77.1607(g), because he made certain that all
men in the vicinity of the excavator were in the clear
before he moved is rejected. The evidence establishes that
Mr. Simpkins did not signal the men standing to the rear of
the machine that he was going to move it and swing the
counterweight around in their direction. He clearly
violated that part of section 77.1607(g) that requires a
signal by the equipment operator. The "other means" of
compliance argued by Mr. Simpkins is that he visually
observed the men standing to the rear of the machine, and
based on his experience and judgment, concluded that they
were clear of the machine counterweight (Tr. 284-285).
I conclude and find that the credible testimony of Mr.
Cline, Mr. Perry, and Mr. Tackett establishes that they were
not completely clear of the swing of the counterweight and
were in
the "danger zone" when Mr. Simpkins put the machine in
motion. While it may be true that Mr. Cline may have
stepped into the counterweight when it swung in his
direction, the evidence strongly suggests that he did not
step far before the machine contacted his leg, and
reasonably supports a conclusion that he was not completely
clear of the counterweight. The same can be said of Mr.
Perry who was standing near Mr. Cline and testified that he
could have reached out and touched the counterweight and
heard the rush of air as it passed him.
I conclude and find that Mr. Simpkins acted less than a
reasonably prudent mine operator when he failed to make sure
that the three individuals who he observed standing to the
rear of the excavator acknowledged the fact that he saw them
and clearly understood that he was about to put the machine
in motion and swing the counterweight in their direction.
In the absence of a clearly communicated and acknowledged
signal by Mr. Simpkins indicating that he was going to put
the machine in motion, I conclude and find that his
unilateral observation of the three men standing to the rear
of the machine was an inadequate and unreasonable means of
making certain that the men were in fact clear of the
counterweight before putting the machine in motion. This is
particularly true in this case where Mr. Simpkins claimed
that his work with the machine was finished and that he
intended to tram the machine out of the area. If this were
the case, I
can only conclude that the three individuals had no
particular reason for being so close to the machine, and
that it would have been a rather simple matter for Mr.
Simpkins to make sure that the men were completely removed
from the area before moving the machine. I believe that a
reasonably prudent mine operator would have done so in these
circumstances. I further believe that Mr. Simpkins's tacit
admission that he should have removed all of the individuals
from the area and made sure they were completely away from
the machine supports these conclusions.
Based on the foregoing findings and conclusions, I conclude
and find that the petitioner has established a violation of
section 77.1607(g), by a preponderance of all of the
credible evidence adduced in these proceedings.
The alleged "knowing" violation.
The Commission has defined the term "knowingly" as used in
the statutory predecessor to section 110(c), in Kenny
Richardson v. Secretary of Labor, 3 FMSHRC 8 (January 1981),
aff'd 669 F.2d 632 (6th Cir. 1982), cert denied, 461 U.S.
928 (1983), as follows:
"Knowingly," as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that used in
contract law, where it means knowing or having
reason to know. A person has reason to know when
he has such information as would lead a person
exercising reasonable care to acquire knowledge of
the fact in question or to infer its existence . .
. . We believe this interpretation is consistent
with both the statutory language and the remedial
intent of the Coal Act. If a person in a position
to protect employee safety and health fails to act
on the basis of information that gives him
knowledge or reason to know of the existence of a
violative condition, he has acted knowingly and in
a manner contrary to the remedial nature of the
statute. 3 FMSHRC 16.
In Secretary of Labor (MSHA) Bethenergy Mines, Inc., et al.,
14 FMSHRC 1232 (August 1991), the Commission reaffirmed its
prior holding in Kenny Richardson, supra, and stated that
"the proper legal inquiry for purposes of determining
liability under section 110(c) of the Act is whether the
corporate agent knew or had reason to know" of a violative
condition, and that the Secretary must prove only that the
cited individual knowingly acted and not that he knowingly
violated the law, 14 FMSHRC 1245. The Commission has also
stated that a corporate agent in a position to protect
employee safety acts knowingly when, based on the
facts available to him, he knew or had reason to know that a
violation would occur, but failed to take preventive steps.
Roy Glenn, 6 FMSHRC 1583 (July 1984). Further, a "knowing"
violation requires proof of aggravated conduct exceeding
ordinary negligence. Wyoming Fuel Co., 16 FMSHRC 1618, 1630
(August 1994); Beth Energy Mines, Inc., 15 FMSHRC 1232, 1245
(August 1992).
WEVA 96-75, James Tackett.
The evidence establishes that as the mine superintendent,
Mr. Tackett was an "agent" of Anchor Mining Company on the
day of the violation, and he has stipulated that this was
the case. The petitioner argues that Mr. Tackett and Mr.
Simpkins were both supervisory personnel with a heightened
standard of responsibility for the safety of the miners at
the work site, and its theory of section 110(c) liability on
the part of Mr. Tackett for the violation seems to be based
on the fact that Mr. Tackett occupied a supervisory position
and was present at the area where the violative conduct took
place.
The evidence in this case establishes that Mr. Simpkins, and
not Mr. Tackett, was supervising and directing the drain
construction work on the day in question. Indeed, at page
19 of its post-hearing brief, the petitioner recognizes that
this was
the case. The evidence further establishes that Mr.
Simpkins summoned Mr. Tackett to the ditch area to explain
the work that was to be performed, and although Mr. Tackett
was the mine superintendent, Mr. Simpkins was in charge and
directed the work force which I find included Mr. Tackett.
Under the circumstances, I conclude and find that Mr.
Tackett had little, if any, supervisory authority or
responsibility for the ditch construction work that was
taking place on September 15, 1994, when the violation
occurred.
The evidence further establishes that Mr. Simpkins was
operating the excavator when the violation occurred and was
aware of the fact that Mr. Adams, Mr. Cline, and Mr. Perry
were standing to the rear of the machine. As the operator
of the equipment, Mr. Simpkins was directly obligated under
section 77.1607(g), to make sure that the individuals were
clear of the machine, and I conclude and find that he,
rather than
Mr. Tackett, was in the best position to make sure that this
was done.
Mr. Tackett testified credibly that before leaving the area
where the three individuals were standing, he was satisfied
that they were clear of the machine. Mr. Tackett then went
to the other side of the machine, and he had no further
visual contact with the individuals because the excavator
blocked his view and
he assumed that Mr. Simpkins had them in view because his
operator's compartment was on the left side of the machine.
Mr.
Tackett's credible testimony that his view was blocked is
corroborated by Mr. Cline, the injured miner, who was an
experienced excavator operator who often operated the
machine. Mr. Cline testified credibly that Mr. Tackett was
not aware where he (Cline) was standing when Mr. Simpkins
put the machine in motion. Further, Mr. Perry, who was
inexperienced and normally
worked as a security guard, testified credibly that before
the work was started, Mr. Tackett explained the hazards
associated with the ditch work to him and warned him to be
careful and not to get too close to the machine (Tr. 153).
In view of the foregoing, and in particular the fact that
Mr. Tackett was not supervising the ditch work that was
taking place and was located in an area where he could not
see the three individuals standing behind the machine before
Mr. Simpkins put it in motion, I cannot conclude that Mr.
Tackett acted in a knowing and intentional manner, or
engaged in any aggravated conduct. In short, I cannot
conclude that the credible evidence adduced with respect to
Mr. Tackett establishes that he knowingly authorized,
ordered, or carried out a violation of section 77.1607(g),
within the meaning of section 110(c) of the Act, and the
applicable case law. Accordingly, the alleged violation
charged to Mr. Tackett is VACATED, and the proposed civil
penalty assessment filed against him IS DENIED and
DISMISSED.
WEVA 96-74, James Simpkins
I agree with the petitioner' assertion that in his
supervisory capacity as the part mine owner, Mr. Simpkins
had a heightened duty and standard of care to insure
compliance with the cited standard. As I found earlier, Mr.
Simpkins was supervising the work, while at the same time
operating the excavator, and he clearly gave no signal to
the individuals behind the machine before placing it in
motion. I have also concluded that Mr. Simpkins acted less
than a reasonably prudent operator when he failed to make
sure that the individuals who he observed to the rear of the
machine either acknowledged the fact that he had seen them,
or to remove them completely from the area near the machine.
As the supervisor in charge of the ditch construction, Mr.
Simpkins was in the best position to provide protection for
Mr. Cline and the other individuals standing to the rear of
the excavator, and by failing to take reasonable steps to
insure that they were not in close proximity to the machine
when he put it in motion, causing the counterweight to
swivel around and strike Mr. Cline, I conclude that he acted
knowingly within the meaning of
section 110(c) of the Act. Under the circumstances, I
conclude
and find that the petitioner has carried its burden of
proving by a preponderance of the evidence that Mr. Simpkins
knowingly
carried out the cited violation. Accordingly, the violation
IS AFFIRMED.
Significant and Substantial Violations
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 contributed to the
cause and effect of a coal or other mine safety or health
hazard."
30 C.F.R. � 814(d)(1). A violation is properly designated
S&S "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 reasonable
serious
nature." Cement Division, National Gypsum Co. 3 FMSHRC 822,
825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 3-4 (January 1984), the
Commission explained its interpretation of the term "S&S" 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.
See also Austin Power, Inc. V. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December
1987) (approving Mathies criteria).
The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation,
including the nature of the mine involved, Secretary of
Labor v. Texasgulf, Inc., 10 FMSHRC 498 (April 1988);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987). Further, any determination of the significant nature
of a violation must be made in the context of continued
normal mining operations. National Gypsum, supra, 3 FMSHRC
327, 329 (March 1985). Halfway, Incorporated, 8 FMSHRC 8
(January 1986).
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as
follows:
We have explained 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
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).
The Commission reasserted its prior determinations that as
part of his "S&S" finding, the Secretary must prove the
reasonable likelihood of an injury occurring as a result of
the hazard contributed to by the cited violative condition
or
practice. Peabody Coal Company, 17 FMSHRC 508 (April 1995);
Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996).
Section 104(d)(1) "S&S" Citation No. 3745835, September 19,
1994, C.F.R. 77.1607(g)
After careful consideration of all of the evidence and
arguments presented with respect to this citation, I
conclude and find that the petitioner has established by a
preponderance of
the credible evidence that this violation was significant
and substantial (S&S).
I have concluded that a violation of section 77.1607(g) has
been established. I further conclude and find that the
failure
of Mr. Simpkins to signal or take other reasonable
precautions to insure that the three individuals who were
located behind and close to the excavator when he put the
machine in motion were clear of the machine, or to remove
them from the area where they were standing, presented a
discrete hazard of the machine counterweight striking one of
the individuals when it was placed in motion and turned to
the right by Mr. Simpkins.
I further conclude and find the failure to signal the
individuals or otherwise insure that they were clear of the
machine, or moved away from the area, presented a reasonable
likelihood that the machine would come in contact with any
individual in close proximity to the swinging machine
counterweight. If this were to occur, I further conclude
and find that the individual contacting the counterweight as
it turned would reasonably likely suffer injuries of a
reasonably serious nature. Indeed, in this case, that is
precisely what happened, and Mr. Cline lost a leg as a
result of the accident. Under the circumstances, the
inspector's "S&S" finding IS AFFIRMED.
Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
30 C.F.R. 77.1006(a)
After careful consideration of all of the evidence and
arguments presented with respect to this violation, I
conclude and find that the petitioner has established by a
preponderance of the credible evidence that the violation
was significant and substantial (S&S).
The respondent's assertion that Mr. Tackett went no further
than the outside edge of the drain area to grasp and pull
taut the Typar fabric is not well taken. While there is no
evidence
to establish that Mr. Tackett ventured beyond the excavator
bucket in the direction of the highwall while he was in the
ditch, the fact remains that the testimony and evidence
presented, including the photographs, establishes that he
was in the ditch, and not simply "at the outside edge." Mr.
Adams testified that the location where Mr. Tackett was
standing was approximately 6 feet deep and 4 to 6 feet wide,
and that Mr. Tackett was below the spoil bank material that
was on each side of the ditch (Tr. 45, 84).
Mr. Tackett estimated that the height of the ditch where he
was standing was 3 to 4 or 5 feet or "waist high" on each
side of him, and he estimated that there was 3 feet of spoil
material on
the edge of the ditch where he was standing (Tr. 207, 215).
Mr. Tackett confirmed that he was 5 feet, 10 inches tall,
and I conclude and find that if the spoil bank where Mr.
Tackett was
standing in the ditch had given away, he could have been
covered up by the materials.
The fact that Mr. Tackett may have been in the ditch for
less than a minute, as testified to by Mr. Adams (Tr. 85),
is not particularly relevant in my view. Accidents
involving roof falls, falling rocks, and sliding loose
unconsolidated spoils materials have been known to occur
instantaneously and in less than a minute.
Although Mr. Simpkins indicated that the rock shown in
photographic exhibit G-9-A, was secure, and that he also
tested and checked the sides of the ditch and did not
believe that Mr. Tackett could potentially be covered up by
any loose spoil where he was located in the ditch, Mr.
Simpkins further testified that the secured rock was located
in loose, unconsolidated material, and even though it was 8
feet away from Mr. Tackett, if these materials caved in, it
would have affected Mr. Tackett (Tr. 279-310). He also
testified that he attempted to remove the rock because he
was concerned that loose materials might flow from under the
rock and into the ditch that was being constructed (Tr.
178).
Mr. Adams did not believe that the spoil banks on either
side of the ditch at the location where Mr. Tackett was
standing
were in danger of giving way. However, he stated that the
rock that Mr. Simpkins found to be secure was part of the
loose, unconsolidated spoil bank material in front of where
Mr. Tackett was located, and if it were to give way, the
rock may have affected Mr. Tackett (Tr. 83, 108).
State mine inspector Wallace viewed the scene of the
accident the next day and testified credibly that the spoil
banks around the ditch consisted of loose, unconsolidated
materials and were nearly vertical. He believed that these
materials had a very high potential of slipping or sliding
and that that "it would be foolish" for anyone to go into
the ditch for any reason (Tr. 236).
MSHA inspector Blevins, who also viewed the scene the day
following the accident, testified credibly that he based his
"S&S" finding on the fact that the unstable spoil materials
would cover up anyone in the ditch if work were to continue
(Tr. 216).
Dr. Wu, who did not view the scene, but was nonetheless
competent to express his expert opinion, stated that
standing in a 4 foot deep ditch adjacent to an additional 4
foot sloped spoil bank, would be hazardous to Mr. Tackett
because of the presence of the loose spoil materials (Tr.
165-166).
I have concluded that a violation of section 77.1006(a), has
been established. I further conclude and find that working
near or under spoil banks consisting of loose unconsolidated
soil and rock materials presents a discrete hazard of anyone
working in such a location to be covered up or being hit in
the event of a slide or fall of the materials into the
ditch. If this were to occur in the normal course of mining
activities, I find that it would be reasonably likely that
the person in the ditch would suffer injuries of a
reasonably serious nature. In this case, I conclude and
find that Mr. Tackett placed himself in just such a position
when he went into the ditch in close proximity to a slide or
fall of materials hazard. Accordingly, I conclude and find
that the violation was significant and substantial (S&S),
and the inspector's finding in this regard IS AFFIRMED.
Unwarrantable Failure Violations
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977),
decided under the 1969 Act, and it held, in pertinent part,
as follows at 295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an
unwarrantable
failure to comply with such standard if he
deter-
mines that the operator involved has failed
to
abate the conditions or practices
constituting
such violation, conditions or practices the
operator knew or should have known existed or
which it failed to abate because of a lack of
due diligence, or because of indifference or
lack of reasonable care.
In several decisions concerning the interpretation and
application of the term "unwarrantable failure," the
Commission further refined and explained this term, and
concluded that it
means "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of
the Act." Energy Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC
2007 (December 1987); Secretary of Labor v. Rushton Mining
Company, 10 FMSHRC 249 (March 1988). Referring to its prior
holding in the Emery Mining case, the Commission stated as
follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is
conduct that is "inadvertent," "thoughtless"
or "inattentive," unwarrantable conduct is
conduct that is described as "not
justifiable" or "inexcusable." Only by
construing unwarrantable failure by a mine
operator as aggravated
conduct constituting more than ordinary
negligence, do unwarrantable failure
sanctions
assume their intended distinct place in the
Act's enforcement scheme.
In Emery Mining, the Commission explained the meaning of
the phrase "unwarrantable failure" as follows at 9 FMSHRC
2001:
We first determine the ordinary meaning of
the phrase "unwarrantable failure."
"Unwarrantable" is defined as "not
justifiable" or "inexcusable." "Failure" is
defined as "neglect or an assigned, expected,
or appropriate action." Webster's Third
New International Dictionary (Unabridged),
2514, 814 (1971) ("Webster's"').
Comparatively, negligence is the failure to
use such care as a reasonably prudent and
careful person would use and is characterized
by
"inadvertence," "thoughtless," and
"inattention." Black's Law Dictionary 930-
931 (5th ed. 1979). Conduct that is not
justifiable and inexcusable is the result of
more than inadvertence, thoughtlessness, or
inattention. * * *
Section 104(d)(1) "S&S" Order No. 4001122, October 12, 1994,
30 C.F.R. 77.1006(a).
As noted earlier, Mr. Tackett did not deny that he went
into the ditch, and he did so with the full knowledge of the
presence of loose and unconsolidated materials on both sides of
the spoil banks where he was standing. I conclude and find that
he failed to exercise such care as a reasonable and prudent
person would be expected to use, particularly someone in a
responsible position like Mr. Tackett, who in his capacity as
the mine superintendent, should set an example. I conclude
and find that Mr. Tackett's conduct was aggravated and
inexcusable, exceeded ordinary negligence, and constituted an
unwarrantable failure on his part to comply with the
requirements of the cited standard. Accordingly, the
inspector's finding in this regard IS AFFIRMED.
Although Mr. Tackett asserted that he was not instructed
to go into the ditch, and took it upon himself to do so, and
exposed no one other than himself to a hazard, I nonetheless
conclude and find that his conduct and negligence may be
imputed to Anchor Mining Company, particularly in light of
the fact that a high level agent of Anchor Mining (part-
owner and officer), in the person of Mr. Simpkins, was
supervising the work and obviously observed Mr. Tackett go
into the ditch and did nothing to prevent him from doing so.
See: NACCO Mining Co., 3 FMSHRC 848 (April 1981); Rochester &
Pittsburgh Coal Company, 13 FMSHRC 189, 197 (February 1991).
Section 104(d)(1) "S&S" Citation No. 3745835, September 19,
1994,
30 C.F.R. 77.1607(g).
After careful review and consideration of all of the
testimony and evidence presented with respect to this violation,
and based on my findings and conclusions with respect to Mr.
Simpkins' "knowing" violation of section 77.1607(g), which I
incorporate herein by reference, and where I found that Mr.
Simpkins acted in a knowing and intentional manner because he
knew or had reason to know that Mr. Cline and the other
individuals with him were standing dangerously close to the
rear area of the excavator when he was about to put the
machine in motion causing the counterweight to swing around
and contact Mr. Cline's leg, I conclude and find that Mr.
Simpkins's conduct was aggravated, exceeded ordinary
negligence, and resulted in an unwarrantable failure to
comply with the cited standard. Accordingly, the inspector's
finding in this regard IS AFFIRMED.
I further conclude and find that the negligence of Mr.
Simpkins, including his unwarrantable failure conduct in his
supervisory capacity, is imputable to Anchor Mining Company,
NACCO Mining Co., 3 FMSHRC 848, 849-850 (April 1981).
History of Prior Violations
With respect to Anchor Mining Company, a computer
print-out for the period beginning on October 12, 1992, and
ending October 11, 1994, reflects that it paid penalty
assessments for 41 prior section 104(a) citations, none of which
are for violations of the same standards at issue in these
proceedings. Further, there is no evidence that Mr. Tackett
or Mr. Simpkins have ever been previously charged pursuant to
section 110(c) of the Act.
I have considered the compliance record of the respondents
in these proceedings in assessing the penalties which I have
affirmed and I conclude that any additional increases over
those penalty assessments are not warranted.
Gravity
Based on my "S&S" findings and conclusions, I conclude
and find that the violations that have been affirmed were serious
violations.
Good Faith Compliance
I conclude and find that the violations were all abated
in good faith by the respondents.
Negligence
Based on my unwarrantable failure findings, I conclude
and find that the violations resulted from a high degree of
negligence on the part of the respondents.
Size of Business and Effect of Civil Penalty Assessments
on the Respondent's Ability to Continue in Business
I conclude and find that Anchor Mining Company was a small
to medium sized mining operation at the time of the violations.
Mr. Simpkins stipulated that he has the financial ability to
pay the assessed penalty in his case, and I find no credible
evidence to the contrary. With regard to the respondent
Anchor Mining Company, I find no credible evidence to
establish that it lacks the resources to pay the penalty
assessment for the violation that I have affirmed.
Civil Penalty Assessments
On the basis of my foregoing findings and conclusions, and
my de novo consideration of the civil penalty assessment criteria
found in section 110(i) of the Act, I conclude and find that
the following penalty assessments are reasonable and appropriate
for the violations that have been affirmed in these
proceedings:
Docket No. WEVA 95-169
30 C.F.R.
Order No. Date Section Assessment
4001122 10/12/94 77.1006(a) $4,500
Docket No. WEVA 96-74
30 C.F.R.
Citation No. Date Section Assessment
3745835 09/19/94 77.1607(g) $2,500
ORDER
IT IS ORDERED as follows:
1. Section 104(d)(1) "S&S" Order No. 4001122,
October 12, 1994, 30 C.F.R. 77.1006(a), IS
AFFIRMED.
2. Section 104(d)(1) "S&S" Order No. 4001124,
October 12, 1994, 30 C.F.R. 77.1006(b), IS
VACATED, and the proposed civil penalty
assessment IS DENIED AND DISMISSED.
3. The section 110(c) charge that Respondent
James Tackett violated mandatory safety standard
77.1607(g), as stated in section 104(d)(1) "S&S"
Citation No. 3745835, issued on September 19,
1994, IS VACATED and DISMISSED, and the proposed
civil penalty assessment IS DENIED and DISMISSED.
4. The section 110(c) charge that Respondent
James Simpkins violated mandatory safety standard
77.1607(g), as stated in section 104(d)(1) "S&S"
Citation No. 3745835, issued on September 19,
1994, IS AFFIRMED.
5. The respondents Anchor Mining Company and
James Simpkins shall pay civil penalty
assessments in the amounts shown above for the
violations that have been affirmed. Payment is
to be made to MSHA within thirty (30) days of the
date of these decisions and order, and upon
receipt of payment, these matters ARE DISMISSED.
George A. Koutras
Administrative Law Judge
Distribution:
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington,
VA 22203 (Certified Mail)
John T. Bonham, Esq., David J. Hardy, Esq., Jackson & Kelly,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
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