<DOC>
[DOCID: f:ct98159.wais]

 
K. R. WILSON CONTRACTING, INC.
April 19, 1999
CENT 98-159-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 Skyline, Suite 1000
                       5203 Leesburg Pike
                  Falls Church, Virginia 22041

                         April 19, 1999

SECRETARY OF LABOR,            :  CIVIL PENALTY PROCEEDINGS
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA),       :  Docket No. CENT 98-159-M
           Petitioner          :  A. C. No. 23-00746-05530
                               :
            v.                 :
                               :  Docket No. CENT 98-207-M
K.R. WILSON CONTRACTING, INC., :  A.C. No. 23-00746-05531
           Respondent          :
                               :  Sullivan Plant

                            DECISION

Appearances:  Mark W. Nelson, Esq., Office of the Solicitor,
              U.S. Department of Labor, Denver, Colorado, for
              Petitioner;
              Michael O. McKown, Esq., Ziercher & Hocker, P.C.,
              St. Louis, Missouri, for Respondent.

Before:  Judge Hodgdon

     These consolidated cases are before me on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor,
acting through her Mine Safety and Health Administration (MSHA),
against K.R. Wilson Contracting, Inc., pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.  815.
The petitions allege five violations of the Secretary's mandatory
health and safety standards and seek penalties of $100,860.00. A
hearing was held in St. Louis, Missouri. For the reasons set
forth below, I vacate one citation, affirm four and assess
penalties of $40,688.00.

                        Settled Citations

        At the beginning of the hearing, counsel for the Secretary
advised that the parties had agreed to settle the two citations
in Docket No. CENT 98-207-M. The agreement provides that the
penalty will be reduced from $860.00 to $688.00. Based on the
representations of the parties, I concluded that the settlement
was appropriate under the criteria set forth in section 110(i) of
the Act, 30 U.S.C.  820(i), and approved the agreement.  (Tr.
16-18.)  The provisions of the agreement will be carried out in
the order at the end of this decision.

                           Background

     The Respondent  operates  a small limestone quarry in
Sullivan, Missouri, known as the "Sullivan Plant."  At about
12:30 p.m., on June 20, 1997, Larry Bouse, the plant foreman,
began replacing a brake expander tube on the left rear wheel of a
1966 Caterpillar, Model 988A, front-end loader.  This required
him to elevate and block the loader on stands. Since it was
necessary to remove the wheel, one end of the fender over the
wheel was disconnected and the fender, which weighed 425 pounds,
was raised to an almost upright position by the boom hoist on a
hoist truck.  The fender was then secured by connecting a
portable ratchet hoist, commonly called a "come-along,"[1] to the
top step[2] on the fender and to an "eye piece" on the top of the
roll-over protective structure of the loader.

     By 4:30 p.m., Bouse had completed the brake repairs and was
attempting to get the wheel back onto the loader. Ronald Haanpaa
and Vernon Abney, who had completed work for the day, offered to
assist Bouse in completing his work. Haanpaa got into the hoist
truck to lift the wheel back into position with the boom hoist.
Abney got in the wheel well to guide the wheel back onto the axle
and Bouse got on the hood of the loader to communicate between
Haanpaa and Abney. When they still could not get the wheel on,
Abney suggested that they completely remove the fender. He was
coming out of the wheel well when the "come-along" failed,
releasing the fender. The fender struck Abney in the forehead
near the hair line and pushed his head back into the frame of the
loader.  Abney, who was not wearing a hard hat at the time,
suffered massive head injuries and died as a result.

     MSHA began its investigation of the accident the next day.
On July 21, 1997, three citations were issued to the operator as
a result of the accident.  Citation No. 7856213 alleges a
violation of section 56.14211(b) of the regulations, 30 C.F.R. 
56.14211(b), because: "On June 20, 1997 an employee was fatally
injured when a raised fender of a 988A Caterpillar front end
loader fell striking him. The portable hoist, which was used to
secure the hinged 425 pound fender, failed. (Govt. Ex. 1.)
Citation No. 7856214 charges a violation of section 56.15002, 30
C.F.R.  56.15002, in that: "When [the employee] left his truck
to assist with the loader repairs, he did not put on a hard hat
where there was a danger of falling objects." (Govt. Ex. 1.)
Finally, Citation No. 7856515 asserts a violation of section
56.14100(b), 30 C.F.R.  56.14100(b), since:

     The portable hoist, which was used to secure the hinged
     425 pound fender failed when the cable compression clamp
     broke. Additionally, it had loose bolts, the pulley bearing
     would not roll and the 3/16-inch cable was attached with
     a bolt marked "CAT."  The cable had broken wires and the
     rating information was missing. The handle did contain a
     warning against unauthorized alteration. The foreman was
     directing a wheel assembly installation on the loader and
     allowed the defective equipment, which had been altered
     and not maintained, to be used.  This constitutes more
     than ordinary negligence and is an unwarrantable failure
     to comply with the Standard.[3] (Govt. Ex. 1.)

     The "come-along" failed because a compression thimble, or
aluminum  swedge  sleeve, catastrophically collapsed.  "This
thimble is a soft aluminum sleeve that slides over the doubled
cable and is compressed by a special swedging tool to form a
permanent loop in the end of the cable." (Resp. Ex. 2 at 2.)
This allowed the pulley hook to become unattached from the cable,
releasing the hook and the fender.  The catastrophic failure was
caused by an outside event, probably the tire on the hoist cable,
or the hoist cable itself, striking the fender.

             Findings of Fact and Conclusions of Law

Citation No. 7856213

     This citation alleges a violation of section 56.14211(b)
which provides that:  "Persons shall not work on top of, under,
or work from a raised component of mobile equipment until the
component has been blocked or mechanically secured to prevent
accidental  lowering."  Section 56.14211(d),  30  C.F.R.  
56.14211(d), states that "a raised component of mobile equipment
is considered to be blocked or mechanically secured if provided
with a functional load-locking device or a device which prevents
free and uncontrolled descent."

     The regulation is clear and unambiguous that the raised
component can either be "blocked" or "mechanically secured." The
MSHA inspectors who testified were all of the opinion that the
fender should have been blocked.  Consequently, it is the
Secretary's position that since the fender was not blocked, the
standard was violated. Inasmuch as that position ignores the
clear language of the rule, I find that argument without merit.
On the other hand, the Respondent contends that the raised fender
was mechanically secured by the "come-along."  The evidence,
however, demonstrates that the fender was not mechanically
secured.

     As section 56.14211(d) plainly states, if a functional load-
locking device or a device which prevents free and uncontrolled
descent is used the regulation is satisfied. In this case, such
a device was not used. The "come-along" did not prevent free and
uncontrolled descent of the fender when it struck Abney in the
head.  Since it failed, the "come-along" was obviously not
functional. Cf. Western Fuels-Utah, Inc., 19 FMSHRC 994, 998
(June 1997) (requirement that conveyor belt be equipped with
slippage and sequence switches means functional switches); Fluor
Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996) (requirement
that self-propelled mobile equipment be equipped with a service
brake system means functioning system); Mettiki Coal Corp., 13
FMSHRC 760, 768 (May 1991) ("switches to be used to lock out
electrical equipment must be equipped with functioning lockout
devices") (emphasis added). Therefore, I conclude that the
operator violated the regulation.

     I reach this conclusion even though I accept the testimony
of H. Boulter Kelsey, Wilson's mechanical engineering expert,
that the  "come-along"  failed  because  of the unforseen,
catastrophic collapse of a thimble on the cable. The Act imposes
strict liability on mine operators for violation of the mandatory
standards regardless of fault. Western Fuels-Utah v. Fed. Mine
Safety & Health, 870 F.2d 711, 716 (D.C. Cir. 1989); Rock of Ages
Corp., 20 FMSHRC 106, 114 (February 1998); Wyoming Fuel Co., 16
FMSHRC 19, 21 (January 1994). As the Commission has stated, "the
principle of liability without fault requires a finding of
liability even in instances where the violation resulted from
unpreventable employee misconduct." Western Fuels-Utah, Inc., 10
FMSHRC 256, 261 (March 1998).  Likewise, the principle of
liability without fault requires a finding of liability in this
case  even  though  the failure of the  "come-along"  was
unforeseeable.

                   Significant and Substantial

     The Inspector found this violation to be "significant and
substantial." 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 contribute to the
cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "if, based upon
the particular facts surrounding that 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 822, 825 (April 1981).

     In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms
of "continued normal mining operations." U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 1007 (December 1987).

     In order to prove that a violation is S&S, the Secretary
must establish:  (1) the underlying violation of a safety
standard; (2) a distinct safety hazard, 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 will be
of a reasonably serious nature.

     In view of Abney's fatal injuries, there can be little doubt
that this violation satisfies the Mathies criteria. "Clearly, it
was a significant contributing cause to the fatal accident."
Walker Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997).
Consequently, I conclude that the violation was "significant and
substantial."

Citation No. 7856214

     Section 56.15002, which this citation alleges to have been
violated, requires that:  "All persons shall wear suitable hard
hats when in or around a mine or plant where falling objects may
create a hazard." The evidence is undisputed, and, indeed, the
Respondent concedes, that Abney was not wearing his hard hat when
he was struck by the fender. It is also undisputed that this was
an area where hard hats were supposed to be worn. Accordingly, I
conclude that the company violated this regulation.

                   Significant and Substantial

     This violation is alleged to be "significant and
substantial."  The operator argues that Abney would have been
killed even if he had been wearing a hard hat. The evidence to
support this claim is the speculation of Mr. Kelsey based on his
calculation of the force of the blow suffered by Abney. Mr.
Kelsey, however, did not see the accident, or pictures of the
accident, nor did he see the type of hard hat Abney was not
wearing or even know what brand it was.

     On the other hand, Abney was not wearing a hard hat and he
was killed by a blow to the head. There is no way to know what
would have happened to him if he had been wearing a hard hat.
Under those circumstances, I conclude that his failure to wear a
hard hat reasonably contributed to his death and that the
violation was, therefore, "significant and substantial."

Citation No. 7856215

     This citation alleges a violation of section 56.14100(b),
which states:  "Defects on any equipment, machinery, and tools
that affect safety shall be corrected in a timely manner to
prevent the creation of a hazard to persons." The citation lists
the following defects in the "come-along": (1) loose bolts; (2)
pulley bearing would not roll; (3) the cable was attached with a
bolt labeled "cat"; and (4) the cable had broken wires. As it
turns out, none of these defects caused the accident.  Despite
that, if the defects affected safety, the standard was violated.
In this case, the Secretary has not proved that the defects
affected safety.

     The Commission has stated that: "The phrase `affecting
safety' . . . has a wide reach and the `safety effect on an
uncorrected equipment defect need not be major or immediate to
come within that reach.'" Ideal Cement Co., 13 FMSHRC 1346, 1350
(September 1991) (citations omitted).  While the Secretary's
witnesses characterized the "come-along" as a "piece of junk" and
reported that Bouse and Mr. Wilson had similarly described it,
the Secretary has failed to demonstrate how the defects affected
safety.

     Conversely, the Respondent has rebutted any inferences to be
derived from the descriptions of the "come-along" with the
testimony of Mr. Kelsey. He stated that the "Cat" bolt "enhanced
the capacity" of the "come-along. (Tr. 296.) With regard to the
broken wires, he said: "I looked at the frame at the cable and
about three or four strands were broken. It had nothing to do
with the failure in this circumstance. . . . You can break
probably half of the wires in this cable and still have it lift
the 4,000 [pound] capacity."  (Tr. 296-97.)  In reply to a
question about the pulley not rolling, he testified:

          It has no effect because the pulley was standing
     still for four and a half hours.  This  come-along was
     in a static loaded condition.  There is no movement of the
     fender.  There is no rolling back and forth.  There is
     nobody cranking the handle. It is holding the fender in
     a locked, secured position for the time period prior to
     the catastrophic failure.  There is no influence whatso-
     ever  by  the pulley  under  those circumstances.

     (Tr. 297-98.) Finally, in answer to whether the "come-
along" was a "piece of junk," he responded:

          Yeah, it's a piece of junk but it's usable junk.
     It's usable junk like this that we have around in
     virtually every kind of shop in this country that people
     use all the time. It is not unsafe. It is not something
     that when you pick it up and look at it and say ["]oh,
     this thing could fail any minute["] because that just
     isn't the case.  It is a piece of pretty well worn
     equipment.  A lot of folks consider it junk but it's
     still usable.

     (Tr. 318-19.) (Emphasis added.)

     Clearly, the only defect affecting safety was the defect in
the thimble. However, that defect was not visible.  As Mr.
Kelsey stated:

          The normal visualization of the surface would show some
     s[cr]atching on the surface but nothing to indicate that a
     catastrophic failure was imminent by just looking at it.
     There is no evidence of that. Even after the fact  the only
     way we can tell it's a catastrophic failure is by looking at
     it under a microscope.  You still can't tell with just the
     naked eye.

     (Tr. 306-07.) Since the defect was not apparent, the company
cannot be faulted for not correcting it.

     The Secretary did not present any evidence on how the
defects affected safety.  At best, the testimony of the MSHA
inspectors created an inference that the defects affected safety.
The Respondent, however, has effectively rebutted this inference
with the expert opinion of Mr. Kelsey. Because of his expertise,
Mr. Kelsey's testimony is entitled to much greater weight than
the opinions of the inspectors. Accordingly, I conclude that the
company did not violate section 56.14100(b) and will vacate the
citation.

                    Civil Penalty Assessment

     The Secretary has proposed penalties of $40,000.00 for the
violation of section 56.14211(b) and $25,000.00 for the violation
of section 56.15002. However, it is the judge's independent
responsibility to determine the appropriate amount of penalty in
accordance with the six penalty criteria set out in section
110(i) of the Act. Sellersburg Stone Co. v. FMSHRC, 736 F.2d
1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC
481, 483-84 (April 1996).

     In connection with the penalty criteria,  the parties
stipulated that K.R. Wilson was a small company and that the
operator demonstrated good faith in abating the violations. (Tr.
14-15.) The company's Assessed Violation History Report shows
that it was only assessed four $50.00 violations during the two
years preceding the violations in this case. Based on this, I
find that the operator has a good history of violations.
Finally, since the violations in this case resulted in a death, I
find that both violations are of high gravity.

     In an attempt to show that its ability to remain in business
will be adversely affected by the proposed penalties, the company
has put into evidence an Accountants Review Report with attached
financial statements. (Resp. Ex. 3.) The cover letter contains
the following disclaimer:

      All information included in these financial statements is
the representation  of the management of K.R. Wilson  Contracting,
Inc.

      A  review  consists  principally  of inquiries of Company
personnel and analytical procedures applied to financial data.
It is substantially less in scope than an audit in accordance
with generally accepted auditing standards, the objective of
which is the expression  of an opinion regarding  the financial
statements taken as a whole.  Accordingly, we do not express
such an opinion.

     (Id. at 1.)  This disclaimer is precisely the reason that
unaudited financial statements are not sufficient to carry the
operator's burden of establishing that a penalty will adversely
affect the company's ability to remain in business. See Spurlock
Mining Co., Inc., 16 FMSHRC 697, 700 (April 1994). Consequently,
I conclude that the penalties in this case will not have a
detrimental effect on  K.R. Wilson's ability to remain in
business.

     The last penalty criterion is negligence. The Secretary has
alleged a "high" level of negligence with regard to Citation No.
7856213. This is presumably based on the defects found in the
"come-along."  However, in view of the fact that the apparent
defects did not affect safety and that the defect which caused
the accident was neither discernible nor foreseeable, I conclude
that the level of negligence should be "low."

     The Secretary has asserted that the violation in Citation
No. 7856214 resulted from "moderate" negligence. The evidence in
this case indicates that Larry Bouse, the foreman in charge of
the repairs to the loader, did not "like" hard hats and was
"occasionally" lax in demanding that employees wear them. (Tr.
143, 371.) Therefore, I conclude that this violation was caused
by "high" negligence.

     Taking all of the penalty criteria into consideration, I
assess a penalty of $15,000.00 for Citation No. 7856213 and
$25,000.00 for Citation No. 7856214.

                              Order

     Accordingly, Citation Nos. 7856213 and 7856214 are modified
with regard to the level of negligence as set out above, and are
AFFIRMED as modified, and Citation No. 7856215 is VACATED in
Docket No. CENT 98-159-M.  Citation Nos. 7855877 and 7855909 are
AFFIRMED in Docket No. CENT 98-207-M.

     K.R. Wilson Contracting, Inc., is ORDERED TO PAY civil
penalties of $40,688.00 within 30 days of the date of this
decision.

                         T. Todd Hodgdon
                         Administrative Law Judge

Distribution:

Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716

Michael O. McKown, Esq., Zeircher & Hocker, P.C., 231 South
Bemiston, 8th Floor, St. Louis, MO 63105

/nj

**FOOTNOTES**

     [1]:  A "come-along" is "a little drum that a cable wraps
around." The drum is in a frame which has a ratcheting device
operated by a handle.  As the handle is ratcheted in one
direction, it rotates the drum, causing the cable to wrap around
it.  As it is ratcheted in the other direction, the cable is
played out. The frame has a hook on one end and the cable
extends out from the frame and has a pulley with a hook attached
to it. (Tr. 283-84.)

     [2]:  The fender had steps on it to be used in climbing up on
the loader.

     [3]:  This citation originally alleged a violation of section
56.14100(c). The citation was modified on November 13, 1997, to
substitute the "Condition or Practice " set out above, to change
the standard alleged to be violated and to charge that the
violation was an "unwarrantable failure."