By Ellen Smith
Lafarge Midwest Inc. was ordered to pay a $10,000 penalty for a severely scratched windshield on a gator that was used on every shift, seven days a week, with Federal Mine Safety and Health Review Commission ALJ Margaret Miller increasing the penalty from MSHA’s initial fine of $8,209.
MSHA issued a citation for a violation of §56.14103(b), which requires that damaged windows , which obscure visibility necessary for safe operation, or create a hazard to the equipment operator, must be replaced or removed.
MSHA claimed that when the gator was driven toward the sunlight during the day, or toward bright lights at night, the glare created from the reflection of the light in the scratches made it very difficult for the driver to see. When a person was driving this vehicle under these conditions, MSHA claimed they could easily run over another person walking in the area, impact an obstruction, or travel into the path of another vehicle.
A miner had testified during the hearing that he had complained to management about the windshield, but “gave up in frustration.” Both MSHA and the operator agreed that the mine had cleaned the windshield on a number of days and times with different solutions, none of which alleviated the problem with the scratches and the difficulty with seeing out the windshield.
In upholding MSHA’s S&S finding, the ALJ said the damaged windshield “ would contribute to an injury.” Even if the gator traveled at low speeds, as the company testified, it was likely that the driver could hit a person crossing his path or run the gator into the coal pile or other obstruction because his view was obstructed. In addition, the gator was operated in a high traffic area with both equipment and pedestrians. “In the course of continued mining operations, an accident was sure to occur,” and the ALJ said , “it is reasonably likely that these hazards would result in injuries of a reasonably serious nature.”
In upholding MSHA’s charge of an unwarrantable failure to comply with the standard, ALJ Miller found the violation obvious and had existed for at least six months. In addition, one employee had made complaints to two supervisors “that went unheeded,” and the ALJ noted that other employees had complained as well. In addition, the employee who complained to management was told that “he could walk or take the windshield out.” The ALJ said “it was management's responsibility to remove the windshield if indeed that was determined what the solution should be, but that the management knew for months, many, many months that there was a complaint about the windshield and not enough was done.”
The penalty was increased from $8,209 to $10,000 based on the testimony and the Mine Act’s penalty criteria. E