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[DOCID: f:ct9938.wais]

 
RON COLEMAN MINING, INC.
August 26, 1999
CENT 99-38-M


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                         August 26, 1999

SECRETARY OF LABOR,             :  CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     :  Docket No.  CENT 99-38-M
               Petitioner       :  A.C. No.  03-00681-05508
          v.                    :
                                :  Blocker Lean No. 4
RON COLEMAN MINING, INC.,       :
               Respondent       :

                            DECISION

Appearances: David Q. Jones, Esq., Office of the Solicitor, 
             U. S. Department of Labor, Dallas, Texas, for 
             the Secretary;
             Kevin  Coleman, Vice President, Ron Coleman 
             Mining, Inc., Hot Springs, Arkansas, for the
             Respondent.

Before: Judge Weisberger

                      Statement of the Case

     This case is before me based upon a Petition for 
Assessment of Penalty filed by the Secretary of Labor 
("Secretary") alleging that Ron Coleman Mining, Inc.  
("Coleman") violated 30 C.F.R.  56.14130(i) and 
56.14130(g). Pursuant to notice, the matter has heard in 
Malvern, Arkansas, on July 27, 1999.

Finding of Facts and Discussion

     I. Citation No. 7865573 (violation of 30 C.F.R.   
 56.14130(i)).

     On July 22, 1998, Donald Ratliff, an MSHA inspector,
inspected Coleman's Blocker  Lead  No.  4  Mine, a surface 
quartz mine. He inspected a Caterpillar D5 Dozer that was  
not in operation. He observed that the seatbelt, which was 
under the seat and bolted to the floor, had saturated oil on 
it, and that the fabric of the belt was covered with mud or 
dirt. He stated that  ". . . from the way the mud had set up, 
it was apparent to me that  they  hadn't been used in some 
time (Tr. 23). He stated that ". . . Caterpillar stipulates 
in the maintenance of their seatbelts is that they not become 
soiled because of the fabric nature . . . [i]f they get  
grease, oil, hydraulic fluid or anything of the nature on the 
webbing, it will break down the webbing of the seatbelts 
. . . ." (sic) (Tr. 27).  He opined that because the belt  
buckle was "imbedded" with dirt it had become inoperable 
(Tr.27).  Ratliff  stated  that the female end of the belt 
had been impacted with dirt which he described as consisting
of hard crusty material. He did not recall if he had touched 
it. According to Ratliff, a miner who accompanied  him, Henry 
Rogers, told him that the bulldozer in question was used to 
push material over  an embankment that was composed of material 
that was not compacted, at a 35 degree angle, and approximately 
200 feet high. Ratliff  opined  that  since the bulldozer was 
being used to push material over the embankment, and since the 
embankment was comprised of material that was not compacted and 
at a steep angle, there existed the possibly that the bulldozer 
could travel over the embankment and possibly turn over.
He issued a Citation alleging a violation of 30 C.F.R. 
 56.14130(i), supra, which in essence provides as follows: 
"[s]eat belts shall be maintained in functional  condition, and 
replaced  when necessary to assure proper performance."

     In  general,  Ratliff  described  the  violation  as 
significant  and  substantial, and  indicated  that  Kevin  
Coleman, the vice president and safety coordinator of Coleman, 
had driven the bulldozer the day before, and should have noted 
the condition of the belt, and should have been aware that it 
was not being maintained properly. In this connection, Ratliff 
testified that it was "very apparent" when he walked up to the 
bulldozer that the seatbelt was not maintained (Tr. 43).

     Coleman does not dispute the condition of  the belt as
testified to by Ratliff. However, the issue for resolution is
whether Coleman's failure  to have remedied the belt's 
condition as testified to by Ratliff made the belt inoperable,
or any way interfered with its use.  It is signifi-cant that 
Ratliff did not attempt to attach the end of the belt and so  
determine whether there  was  any impairment in its operation 
or use. As explained by Coleman, and  not  contradicted  or 
rebutted by the Secretary, one end of the belt had a hook-like 
device, which is inserted into  a  hole at the end of the 
other piece of the belt, and is then secured.  There is no 
evidence in the record that attaching the end of the belt in 
this fashion was not possible, or in any way  made difficult 
to do as a consequence of the conditions observed by Ratliff.

     I do not assign much probative weight to Ratliff's 
testimony that Caterpillar  "stipulates"  that a seatbelt 
should not become soiled, and  that if it gets oil on  it,  
it will break down. Ratliff did not identify the source of 
this stipulation. The Secretary did not proffer any written 
statement by Caterpillar to prove  the terms of what it 
stipulates. Nor did the Secretary proffer  the  testimony of 
any Caterpillar agent having personal knowledge of this 
stipulation. Thus, Ratliff's testimony, by itself, under these 
circumstances is not sufficiently reliable to be accorded any 
significant probative value.

     Accordingly, since it has not been established that the
materials on the belt would have in anyway impeded the use of 
the belt and its effective functioning as a safety seatbelt, I
conclude  that  the  Secretary  has  not  met  its  burden  of
establishing  a  violation  under  section 14130(i), supra.
Accordingly, Citation No. 7865573 shall be dismissed.

     II.  Citation  No.  7865574 (a violation of  30 C.F.R.  
 56.14130(g), supra

     According to Ratliff,  Coleman informed him that when he 
had operated the bulldozer on July 21,  1998, he had not been 
wearing the seatbelt. Ratliff issued a section  104(d)(1) order 
alleging a  violation  of section 56.14130(g), supra,  which  
in essence, requires  the  wearing  of  a  seatbelt  when  
operating certain equipment, which  includes  the  bulldozer  
in question. Coleman does not dispute  this  violation, and 
according I find that Coleman did violate section 56.14130(g), 
supra.

           A.  Significant and Substantial

     A "significant and substantial"  violation is described 
in section 104(d)(1) of the Mine Act as a violation "of such
nature as could significantly  and  substantially contribute
to the cause and effect of a coal or  other  mine  safety or
health  hazard."   30 U.S.C.   814(d)(l).   A violation  is
properly  designated significant and substantial  "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 reasonably
serious  nature."   Cement  Division,  National Gypsum  Co.,
3 FMSHRC 825 (April 1981).

     In  Mathies  Coal Co., 6 FMSHRC 1, 3-4 (January  1984),  
the Commission  explained  its  interpretation  of the term
"significant and substantial" 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.

     In United States Steel Mining  Company, Inc., 7 FMSHRC 
1125, 1129 (August 1985), the Commission stated further as 
follows:

     We have explained further 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 there 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); U. S. Steel Mining Company, Inc., 6 FMSHRC 1573,
     1574-75 (July 1984).

     The record establishes  the first two elements set forth
in Mathies, supra, in that Coleman does not dispute that it 
violated a mandatory standard, i.e., section  56.14130(g),  
supra. Also, Ratliff's  uncontradicted  testimony establishes 
that the failure to wear a seatbelt would have  contributed  
to the hazard of the operator  becoming  injured  if  the 
bulldozer would  have over-turned. According to Ratliff, MSHA 
studies have concluded that the  wearing of a seatbelt is a 
top priority to  prevent  serious injuries  in  haulage  
situations. In essence, he opined, that based  on MSHA's 
studies and his personal experience, a serious injury was 
highly likely to have occurred, because the bull-dozer was 
being  operated in a manner that rendered an injury occurring
event, i.e., the bulldozer overturning, to have been highly
likely  to have occurred, since the bulldozer was being  used
to push material over a steep embankment that was 200 feet 
high, and made out of  material that was not compacted.  On 
the other hand, Coleman testified that the bulldozer at issue 
had never been used at the mine  site until July 21, and that 
he used it on that date because the customary  equipment, a 
front-end loader, was broken. He indicated that he used  
bulldozer  for about 30 to 45 minutes, and that there was a 
mound of dirt between  him  and  the edge of the highwall.

     It appears from photographs of the site, (Respondent's
Exhibits  1 and 2), that the area in which Coleman  operated 
the bulldozer was  flat.  However, since the bulldozer was 
located at the site at issue,  it  was available for use in
the manner described  by Ratliff.  Hence, given continued 
mining operations, and the bulldozer  operator  not  wearing 
a seatbelt, I find that within the framework of the above 
evidence,  the  third and forth elements of Mathies, supra, 
have been met, and that the violation was significant and 
substantial.

           B.  Unwarrantable Failure

     According  to Ratliff, he considered the violation  to  
have been an unwarrantable failure in that, Ron Coleman, who
is the  safety coordinator, and is responsible for providing
safety training, should have noted, in an examination of the
bulldozer prior  to its operation, that it was provided with
a seatbelt, and should  have  worn  the  seatbelt.   Ratliff
asserted  that Coleman, as safety coordinator, should set  a
good example for other miners.  Also, Ratliff indicated that
the seatbelt  was  visible, and that it was not necessary to
remove the seat of the bulldozer in order to see it.

     I accept Coleman's testimony inasmuch  as  it  was  not
contradicted  or  impeached, that he  always  instructs  his
miners to wear their seatbelts, always wears a seatbelt when
operating a vehicle  that  he  knows  to  be equipped with a
seatbelt,  and  that when he operated the bulldozer  on  the
date in question,  he  could not have been seen by the other
miners on the site due to  the  spatial  difference  between
their locations.  In addition, Coleman, asserts that he  did
an  examination  of the bulldozer before he operated it, and
no seatbelt was visible,  and  hence  he  did  not wear one.
Although Coleman may not have observed the seatbelt,  I find
that he reasonablely should have seen the belt, as Ratliff's
testimony that the seatbelt was visible and he did not  have
to  remove the seat in order to see it, was not contradicted
or  impeached  .   Moreover,  since  Coleman  was  a  safety
coordinator and responsible for safety training, and since a
seatbelt  was  visible  to Ratliff, he (Coleman) should have
looked for and been able to have seen the seatbelt, and thus
should have worn it.  In  these  circumstances,  I find that
failure  to do so, constituted more than ordinary negligence
and reached  the level of aggravated conducted, and thus was
an unwarrantable  failure.  (See, Emery Mining Corporation 9
FMSHRC 1997 (1987)).

           C.  Penalty

     According to Ratliff's  uncontradicted  testimony, a 
serious injury  or fatality could have resulted from  the  
violation herein, i.e., failure to wear a  seatbelt, should
the bulldozer have turned over. Thus, I find that the level 
of gravity of the  violation  was high. I also find, as set
forth  above,  that  the  level of Coleman's negligence  was
high, in that Coleman should have observed the presence of a
seatbelt, and should have worn  it.   On  the  other hand, I
find  that  the  penalty  to  be  assessed herein should  be
mitigated by the fact that Coleman is not a large operation,
having produced only 24 tons of mined material in 3,384 man-
hours in 1998, had demonstrated good  faith  in  abating the
violations   within   a  reasonable  period  of  time  after
notification of the violations,  and,  importantly,  had  no
assessed  violations in the past 24 months.  Also, Coleman's
tax  returns  for  the  year  1997,  the  most  recent  year
available,  indicated  a  loss  of $74,121.00 which tends to
indicate that a penalty may have  a negative impact upon its
ability to continue in business.  Therefore,  for  all these
reasons,  I  find that Coleman shall be assessed the penalty
of $1,000.00.

                              ORDER

     It is ORDERED that Citation No. 7865573 be DISMISSED. It 
is further ORDERED  that  Order  No. 7865574  be AMENDED to a
section 104(d)(1) Citation,[1] and that Coleman pay  a total
civil penalty of $1,000.00 within 30 days of this Decision.


                              Avram Weisberger
                              Administrative Law Judge



**FOOTNOTES**

     [1]: Since Citation No. 7865573  which  was issued as 
a section 104(d)(1) Citation is dismissed, and there is no 
evidence of the  issuance of any other section 104(d)(1) 
Citation within the previous  90 days prior to the issuance 
of Order No. 7865574, the latter must be reduced to a section 
104(d)(1) Citation.


Distribution:

David Q. Jones, Esq, 
Office of the Solicitor,  
U. S. Department of Labor,  
525 South Griffin Street, Suite 501,   
Dallas, TX 75202
(Certified Mail)

Kevin Coleman,  
Vice President, 
Ron Coleman  Mining, Inc.,  
P. O. Box 8219,   
Hot Springs, AR 71909
(Certified Mail)

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