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A Good Safety Record is Not A Mitigating Factor in Lowering Penalties

By Ellen Smith

A good safety record at a quarry, and having an injury-free operation, is not a mitigating factor in determining final penalties for violations of the Mine Act, Review Commission ALJ Alan Paez ruled in a case involving the Campbell County, Tenn., Highway Dept. located in Jacksboro, Tenn.

The highway superintendent for the county asked ALJ Paez to consider the safety record of the quarry as a mitigating factor, but this was rejected. “While it may be true that Campbell County has a commendable record of injury-free operations, MSHA does not need an injury to find a violation of a mandatory health or safety standard,” Judge Paez said, who upheld two violations and fines of $8,000.

Withdrawal Order

A 104(d)(2) withdrawal order, and $4,000 fine was upheld for an S&S violation of §56.4102 where hydraulic oil from a John Deere Loader steering column was leaking in the cab, and had puddled on the floor. The front end loader had leaked the fluid intermittently for several months, and had been noted during previous examinations in a five month period. Because of previous 104(d)(1) violations, the MSHA inspector issued a 104(d)(2) closure order.

While the county said it had made several attempts for fix the leak, there were no repair records. Even so, the repairs were obviously ineffectual, Judge Paez said, and the amount of fluid combined with dirt mixed into the fluid suggested the leak had been present for some time.

The violation was S&S since the fluid presented a slipping and fire hazard. The county contended that the violation was not S&S, since, if a fire started, the operator could exit the cab window. In addition there was a fire extinguisher on board that could be used in case of a fire. A rubber mat on the floor made is less likely for a miner to slip on the fluid.

However, extraneous safety measures, such as the fire extinguisher, do not reduce the likelihood of an injury if there was a fire. The fact that a miner can escape the loader through a window also presents an increased risk of falling from the vehicle, and the floor mat may make the floor less slippery, but it does not decrease the likelihood of a fire.

In upholding MSHA’s unwarrantable failure charge, the county’s own safety reports placed the county on notice that its existing abatement efforts were insufficient, Judge Paez said. The fluid accumulation was present in the cab for at least two days, but record showed continuing problems for five months. “Just as an apartment owner who covers his leaking pipes with a rug gets no reprieve when the apartment below floods, Campbell County merits no sympathy for having a mat covering the loader’s floor.

While certain seals were replaced in an effort to fix the problem, “Good intentions and good faith are not the same. Good faith requires vigilance about one's responsibilities, commitment to finding the resources to get the job done, and accountability for failure. Perhaps if this were the first or even the second time that the hydraulic fluid leak had arisen, I would credit respondent's abatement efforts. But the condition was noted no less than five times. Campbell County's abatement efforts amount to treating a bullet wound with a Band-Aid; at some point, the efforts must become inadequate to any reasonable observer,” Judge Paez wrote.

Safe Access, Unwarrantable Failure

The second S&S and unwarrantable failure charge, along with a $4,000 penalty, were up upheld for a 104(d)(2) order for a violation of §56.11001 where material spilled onto on a catwalk for the rock crusher or hammer mill.

Photographs showed rocks and material ranging in size from gravel to fist-sized on the walkway, measuring 6 in. to 4 ft. in depth, and extending for approximately 5 ft. The debris had been noted for six days in the workplace exam record book, but it had not been cleaned up. The walkway was used on a daily basis, and workers would have to go walk over the material.

The county noted that it had built a walkway for easier access, but the case turned on maintaining the walkway, not the fact that the county built it so the workers could have safe access. The county also noted signage and rules prohibiting workers on the walkway while the hammer mill was operating, but this was not a mitigating factor. A reasonably prudent person would require the debris to be cleaned up on a daily basis, and this appeared to be a problem since the hammer mill was first installed. A reasonable response would have also been to modify the hammer mill to prevent the debris from spilling out onto the walkway.

A tripping and stumbling hazard made the violation S&S, even though a handrail meant that the injuries would probably be limited in severity. The violation was due to an unwarrantable failure since miners were told to grab both a grease gun and a shovel to clear their way when going to service the hammer mill. Judge Paez said it was obvious the county had adopted a policy of allowing the material to collect for days at a time, and the operator knew of the existence of the debris.

The county said its negligence was mitigated because the debris had existed for only two days. Paez said, “It defies logic to suggest that the operator should be granted leniency because the machine creating a hazard functioned worse than the inspector believed when he found the violation. In light of the obviousness of the violation and the significant degree of danger, leaving the material on the walkway for two days is aggravated conduct.”

The county also said the hammer mill was operating within its design parameters, and noted the safety manual warns of the dangers of ejected material. However, Judge Paez noted that the manual also stated it may be necessary to make alterations to conform to state and federal safety regulations.