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Brake Violation Not S&S, But Imminent Danger Order Upheld


By Ellen Smith

ALJ Richard Manning reduced a penalty for a brake violation under §56.14101(a)(1) while upholding an imminent danger order for the same violation. He also increased a second penalty for a parking violation under §56.14107 taking into consideration that the safety violation was committed by two management employees.

The violations occurred on May 1, 2013, at Knife River Construction’s Vernalis Plant in San Joaquin County, Calif.

The first violation and imminent danger order with MSHA’s proposed penalty of $1,140 was reduced to a non-S&S citation, and ALJ Manning imposed a $900 fine where a scraper could not stop on a grade when tested.

The violation was not S&S since the defective brakes did not render the equipment uncontrollable. At all times, the scraper moved at a slow velocity at 2-3 mph when descending the grade, and the engine retarder would hold the equipment back. In addition, the defective brakes did stop the equipment at the bottom of the grade, and also worked on flat surfaces.

There were no pedestrians in the area, and no other pieces of equipment. It was unlikely that the driver would have been injured, or a rollover would occur going 3 mph.

The judge also credited the driver’s statement that this trip was his first trip down a grade, and the driver admitted that he had not tested the brakes on a grade. He also stated that he would not operate the scraper if the brakes were not working.

Imminent Danger
On the issue of the imminent danger order, the company argued that if an S&S allegation is not upheld, then the imminent danger order should be vacated. Judge Manning disagreed.

An inspector has considerable discretion in determining whether an imminent danger exists. While that discretion is not without limits, in this case the inspector reasonably believed that the defective brake could lead to a serious injury, and could reasonably cause a serious injury to
miners.
The inspector saw the scraper carrying a heavy load on a steep grade; the brakes on the equipment did not work properly and could not stop the vehicle on the grade.

Although the cited brakes were not completely malfunctioning, it is reasonable to assume that defective brakes could reasonably cause a serious injury to miners, and therefore constitute an imminent danger.

Judge Manning stressed that an imminent danger order can be upheld without an underlying S&S violation. The inspector must make a quick decision at the time of issuance, and an imminent danger order does not necessarily have to violate the Mine Act.

Increased Penalty
Judge Manning increased MSHA’s proposed penalty of $100 to $200 for a violation of §56.14107 where two vehicles cited were parked on a grade, but the wheels were not chocked or turned into a bank.

The foreman and the safety manager who were driving the two vehicles said the MSHA inspector insisted on stopping immediately.

They were never far from their vehicles, therefore they argued, their vehicles were never “unattended.” However, Judge Manning found the vehicles were unattended because no driver was in a position to immediately control the vehicles if either vehicle rolled.

“The fact both men failed to parked in compliance with the standard, and produced an array of excuses as to why they did not, suggests that employees working at the mine likely ignored proper parking procedures and the two witnesses were simply doing what was routine for them,” Judge Manning said. “Regardless of whether that is true, both should have known to comply with section 56.14107(a) and did not do so.”

The penalty was increased from $100 to $200 since the negligence actions were committed by two management employees.

KNIFE RIVER CONSTRUCTION, 8/7/2014, FMSHRC(J) No. WEST 2013-0827-RM et al