<DOC>
[DOCID: f:yk9939.wais]
 
DOUGLAS R. RUSHFORD TRUCKING
January 19, 2000
YORK 99-39-M
        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041
                        January 19, 2000
SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
   MINE SAFETY AND HEALTH       :
   ADMINISTRATION (MSHA),       : Docket No. YORK 99-39-M
               Petitioner       : A. C. No. 30-02851-05504
          v.                    :
                                :
DOUGLAS R. RUSHFORD TRUCKING,   :
               Respondent       : Seymour Road Pit
                             DECISION
Appearances: Suzanne Demetrio, Esq., Office of the Solicitor, 
             U.S. Department of Labor, New York, New York, on  
             behalf of Petitioner;
             Thomas M. Murnane, Esq., Stafford, Trombley, Owen
             & Curtin, PC, Plattsburgh, New York, on behalf of 
             Respondent.
Before: Judge Melick
     This case is before  me  upon the Petition for Civil Penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health  Act  of  1977, 30 U.S.C.  801 et
seq., the "Act," charging Douglas R. Rushford Trucking (Rushford)
with four violations of mandatory standards  and  proposing civil
penalties  of  $27,000.00  for those violations.[1]  The  general
issue before me is whether Rushford  violated the cited standards
as alleged and, if so, what is the appropriate  civil  penalty to
be assessed considering the criteria under Section 110(i)  of the
Act.  Additional specific issues are addressed as noted.
     On  August  28,  1998,  mechanic and welder Nile Arnold, was
injured when a wheel rim exploded  while  he was inflating a tire
on a 1967 Chevrolet fuel truck.  He died on August 30, 1998, as a
result of those injuries.  The truck was customarily  used  as  a
stationery  storage  tank  to fuel mobile equipment.  The 2-piece
wheel rim which exploded consisted  of  a  center  section and an
outer ring.  The inner surface of the center section was corroded
and had rusted through in several locations.  The rim was mounted
with  a  recapped  tire with a tube and stem.  The tire  was  not
marked with a maximum inflation pressure and had been flat for an
unknown period of time  prior  to the accident.  According to the
investigation report, as the tire  was  being inflated by Arnold,
the force of the expanding inner tube caused  the  center section
of the rim to separate where it had corroded. The  section  along 
the perimeter of the rim exploded outward hitting Arnold in the 
head. Arnold was apparently kneeling with his head close to the 
wheel at the time.
     Mark  Goddeau  had  been  working for Rushford for about one
year at the time of the accident.   Mine  owner Douglas Rushford,
had  directed Goddeau that day to wash the power  screen  and  to
inflate  one  of  the  four  tires  on  the screen.  There was no
standoff inflation device available and Goddeau  had  never  seen
one  at  the  pit.   He therefore used a tire chuck which must be
held onto the valve stem while the tire is inflated.
      At this time Arnold  had already begun welding on the power
screen.  The welder ran out  of  fuel  oil so Goddeau went to get
the fuel truck.  One of its tires was low on air so Arnold  began
inflating it using the same tire chuck Goddeau had used.  Goddeau
was standing 6 to 8 inches behind Arnold and, after inflating the
tire for 20 to 30 seconds, it exploded.   Arnold fell back with a
gash on his head.  He was unresponsive so Goddeau  ran  for help.
Goddeau was at the pit when the ambulance arrived.  According  to
Goddeau  there  was  no room for the rescue workers so he and co-
worker Fonze Rushford,  moved the fuel truck and backhoe about 10
feet away.
     New York State corrections  officer  Vernal  Favreau  was  a
captain  in the responding volunteer fire department on September
28, 1998.   When  he  arrived the vehicles and the victim were in
the positions depicted  on  Government Exhibit No. 1.  The victim
was lying two to three feet from  the  fuel  truck.  Favreau gave
orders to an employee to move the backhoe to enable the ambulance
to get closer to the victim.  He did not consider  the fuel truck
to be a hazard and did not give orders to have it moved.
     New York State police Sergeant Patrick Jones also  responded
to  the  accident  scene   arriving at 4:10 to 4:15 p.m.  He  was
present  when  another  investigator   took  photographs  at  the
accident scene.  According to Jones those photographs (Gov't Exh.
No. 3/1 - 3/12) accurately depict the scene  as he observed it on
August 28, 1998, around 5:30 p.m.  He did not then see any  white
Toyota truck.  Jones also testified that the fuel  truck was then
parked parallel to the trailers approximately 150 yards  from the
victim  and  as  depicted  on  Government  Exhibit  No.  4.   The
Occupational Safety and Health Administration (OSHA) was notified
of the accident by another state police investigator.
     Fonze  Rushford is a grandson of owner Douglas Rushford.  He
was in the pit  area  at  the  time of the accident and maintains
that he saw Arnold's pickup truck  at the accident scene at point
"A"  on Government Exhibit No. 10.   He  maintains  an "EMT" told
him to move the backhoe and he did so.  The police said only that
they were "finished with it."
     Todd Lapham is owner Douglas Rushford's son in-law.   He was
in the pit on the day of the accident but did not see it.  At the
time  he went to lunch that day he saw Arnold's truck in the  pit
area at  position  "A"  on Government Exhibit No. 11.  He did not
observe it later that day.   Lapham  testified that some 1  to 2
months later he drove the truck from the  shopyard in Plattsburgh
to his house.  As he was planning to paint  the  truck he removed
the  tool  box  on  the  back  of  the  truck and gave the  tools
contained therein to Douglas Rushford.  He maintains that he then
observed a standoff device in the truck.   He claims to have seen
the same device in the Plattsburgh shop before.
     Supervisory  mine inspector Randall Gadway,  testified  that
the Mine Safety and  Health Administration (MSHA) district office
was first notified of  the  August 28, 1998 accident on September
1, 1998 by "OSHA."  Gadway described  the  Seymour  Pit  when  he
arrived  on  September 2, 1998, as depicted in Government Exhibit
No. 2 with the fuel truck parked parallel to the work trailers at
"F" and the backhoe located at Box "B."  Gadway concluded that no
standoff device  had  been  used  to  inflate the tire.  He found
moreover, that  none of the employees had  received  training  in
the  use  of  a  standoff  inflation device.  Indeed, none of the
employees present, including  Mark  Goddeau, Fonze Rushford, Todd
Lapham, even knew at that time what a  standoff  inflation device
was.   Douglas  Rushford  told  Gadway  that  he  had  a standoff
inflation  device  at  the  shop but Gadway was later shown  only
three clip-on air chucks.  Gadway  later  found  it  necessary to
draw Douglas Rushford a picture of a standoff inflation device to
describe  it.   Rushford  never  produced  any standoff inflation
device during the time of Gadway's investigation.
Citation No. 7716903
     This  citation  alleges  a  "significant  and   substantial"
violation  of  the  standard  at 30 C.F.R.  56.141104(b)(2)  and
charges as follows:
          A  mechanic/welder was  fatally  injured  at  this
     operation  on  August 28, 1998, when he was struck by a
     section  of wheel  rim  which  exploded  while  he  was
     inflating  a  truck tire.  A stand-off-inflation device
     was not used.   The  mine operator's failure to provide
     and require the use of a stand-off-device for inflating
     tires is a lack of reasonable  care  constituting  more
     than   ordinary  negligence  and  is  an  unwarrantable
     failure to comply with a mandatory standard.
     The cited  standard,  30  C.F.R.   56.14104(b), provides as
follows:
          To  prevent  injury  from wheel rims  during  tire
     inflation, one of the following  shall  be  used: (1) a
     wheel  cage  or  other  restraining  device  that  will
     constrain  all wheel rim components during an explosive
     separation of  a  multi  piece wheel rim, or during the
     sudden release of contained  air  in a single piece rim
     wheel;  or  (2)  a  stand-off  inflation  device  which
     permits  persons  to  stand outside  of  the  potential
     trajectory of wheel components.
     There is no dispute in  this  case that neither a wheel cage
nor  a stand-off inflation device was  used  when  employee  Nile
Arnold  inflated  the  tire  on  the  fuel  truck at Respondent's
Seymour Road Pit.  Since mine operators are liable  without fault
for violations at its mines the violation is  proven  as charged.
Fort  Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112 (July  1995).
The  violation   was   also  "significant  and  substantial."   A
violation is properly designated as "significant and substantial"
if, based on 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 explained:
          In order  to  establish  that  a  violation  of  a
     mandatory    safety   standard   is   significant   and
     substantial under  National  Gypsum  the Secretary 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.
     See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04
(5th  Cir.  1988),  aff'g  9 FMSHRC 2015,  2021  (December  1987)
(approving Mathies criteria).
     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)).  The likelihood of such injury must be evaluated in terms
of continued normal mining  operations without any assumptions as
to abatement.  U.S. Steel Mining Co.,  Inc.,  6 FMSHRC 1573, 1574
(July  1984);  See  also Halfway, Inc., 8 FMSHRC 8,  12  (January
1986) and Southern Ohio Coal  Co.,  13  FMSHRC 912,  916-17 (June 
1991).
     The failure to use  a wheel cage or other restraining device
or a stand-off inflation device  under  the circumstances of this
case  resulted  in  Arnold's fatal injuries.   There  can  be  no
question  on the facts  of  this  case  that  the  violation  was
therefore "significant and substantial."
     I also  conclude  that  the violation was also the result of
"unwarrantable  failure"  and  high   negligence.   Unwarrantable
failure  is aggravated conduct constituting  more  than  ordinary
negligence.   Jim  Walter  Resources Inc., v. Secretary, 103 F.3d
1020 (D.C. Cir. 1997); Emery  Mining  Corp.,  9 FMSHRC 1997, 2004
(December 1987).  This determination was derived,  in  part, from
the  plain  meaning  of   "unwarrantable"  ("not justifiable"  or
"inexcusable"), "failure" ("neglect of an assigned,  expected  or
appropriate  action"),  and "negligence" (the failure to use such
care as a reasonably prudent and careful person would use, and is
characterized   by   "inadvertence,"    "thoughtlessness,"    and
"inattention")   Emery   Mining   Corp..    9   FMSHRC  at  2001.
Unwarrantable  failure is also characterized by such  conduct  as
"reckless disregard," "intentional misconduct," "indifference" or
a "serious lack  of  reasonable  care."   9  FMSHRC  at  2003-04;
Rochester  &  Pittsburgh  Coal  Co.,  13  FMSHRC  at  189, 193-94
(February 1991).
     In finding unwarrantable failure and high negligence in this
case  I  have  considered  the  evidence  that Rushford had never
bothered  to obtain a copy of the health and  safety  regulations
governing the  operation  of  his  mine and the credible evidence
that not only did the deceased fail  to use an appropriate device
for protection during tire inflation but  that no such device was
available either at the mine site where the  accident occurred or
at the mine shop in Plattsburgh.  In fact, Douglas  Rushford made
no  provision for compliance with the cited standard and  indeed,
had himself  directed  another  employee to inflate a tire at the
mine site without a stand-off device  on  the  same  day  as this
fatality.   In  addition,  I  find  credible  Inspector  Gadway's
testimony that mine owner Douglas Rushford did not even know what
a  stand-off inflation device was.  The hazard presented by  this
violation  was  also  particularly  dangerous as evidenced by the
fatality.    These   factors  clearly  support   a   finding   of
unwarrantability and gross negligence .
     In reaching this  conclusion  I  have  not  disregarded  the
testimony  of  Todd  Lapham,  Douglas Rushford's son in-law, that
several months after the fatal  accident  he  found  a  stand-off
inflation  device  in  the tool box of the victim's pickup truck.
Rushford thought that the device was discovered about one and one
half months after the accident.   Even  assuming,  arguendo, that
this testimony is credible and that a stand-off device  was found
in the victim's truck six weeks or more after the accident,  such
evidence is clearly insufficient to permit an inference that such
a device was available to the victim on the date of the accident.
It  could very well have been a device that Rushford subsequently
purchased to abate the citation.  This conclusion is supported by
Mark Goddeau's testimony that he did not see such a device in the
victim's truck on the date of the accident and, indeed, had never
seen such a device at the mine.
Citation No. 7716904
     The  citation  alleges  a  violation  of  the standard at 30
C.F.R.  50.10 and charges as follows:
          A  mechanic/welder  was  fatally injured  at  this
     operation on August 28, 1998, when  he  was struck by a
     section  of  wheel  rim  which  exploded while  he  was
     inflating a truck tire.  He died  on  August  30, 1998.
     The   mine  operator  failed  to  notify  MSHA  of  the
     accident.
     The cited standard, 30 C.F.R.  50.10, provides as follows:
          If   an   accident   occurs,   an  operator  shall
     immediately  contact the MSHA District  or  Subdistrict
     office  having  jurisdiction  over  its  mine.   If  an
     operator  cannot  contact the appropriate MSHA District
     or Subdistrict office, it shall immediately contact the
     MSHA headquarters in  Arlington,  Virginia by telephone
     at 800-746-1553.
     There  is no dispute in this case that  Rushford  failed  to
notify MSHA of  the  accident  as required by the cited standard.
The New York State police officer  who  responded to the accident
notified the Occupational Safety and Health Administration which,
in turn, notified MSHA.  The violation is  accordingly  proven as
charged.
     Rushford  argues that any negligence should nevertheless  be
negated or mitigated  by  its  efforts,  albeit  unsuccessful, to
contact  MSHA.   Rushford  bookkeeper, Mary Pelkey, attempted  to
call MSHA by using a telephone  number  she  had been given by an
MSHA  employee  around  1991.   Pelkey  called  that  number  but
received  only  a  recorded  message  that  the number  had  been
disconnected  and  no  forwarding  number  was provided.   It  is
undisputed  that the MSHA offices had moved in  the  interim  and
their telephone  number  changed.  Pelkey was unaware of the toll
free number provided in the  Secretary's  regulations.   She also
acknowledged  that  she did not attempt to call "information"  to
obtain the current MSHA  telephone  number  and  made  no further
attempts  to  call MSHA after her father, Douglas Rushford,  told
her that the state  police  would tell MSHA anyway.  She did call
the victim's wife and for emergency services.
     I agree that Pelkey's efforts to contact MSHA, while clearly
inadequate, do warrant some consideration.   Accordingly,  I find
Respondent   chargeable   with  only  moderate  negligence.   The
Secretary's low gravity findings  are  accepted  for  purposes of
assessing a civil penalty.
Citation No. 7716905
     This  citation  alleges  a violation of the standard  at  30
C.F.R.  50.12 and charges as follows:
          A  mechanic/welder was  fatally  injured  at  this
     operation  on  August 28, 1998, when he was struck by a
     section  of wheel  rim  which  exploded  while  he  was
     inflating  a truck tire.  The mine operator altered the
     accident site  by  moving  the  truck  involved  in the
     accident  before  MSHA  was  notified and initiated its
     investigation.
     The cited standard, 30 C.F.R.  50.12 provides as follows:
          Unless granted permission  by  a  MSHA's  District
     Manager  or Subdistrict Manager, no operator may  alter
     an accident site or an related area until completion of
     all investigation  pertaining to the accident except to
     the  extent  necessary   to   rescue   or   recover  an
     individual, prevent or eliminate an imminent danger, or
     prevent destruction of mining equipment.
     There is no dispute that the fuel truck at issue  was  moved
by Rushford employee Mark Goddeau before MSHA was notified of the
accident  and  initiated  its  investigation.  Rushford maintains
that there was nevertheless no violation  because  of the need to
rescue and recover the victim in this case.
     According  to the undisputed testimony of Mark Goddeau,  who
was standing directly behind the deceased when the tire exploded,
the deceased was  knocked  onto his back with his feet only about
6- inches from the wheel.  His  arm  was  lying  on  the  backhoe
bucket  and  the    bucket  was  only 1 to 1  feet from the fuel
truck.   Goddeau was also present when  the  emergency  personnel
arrived.   He  thought  it  was  necessary to move the fuel truck
because there was insufficient space  for  emergency personnel to
aid the victim.  Goddeau then drove the truck about 20 to 25 feet
away.  I find that, under the circumstances,  it  was  reasonable
for  Goddeau  to  have  moved  the  truck  in  the good faith and
reasonable belief that it was necessary to aid in  the  rescue of
Arnold.   There  is  no  evidence  of  any  attempt  to alter the
accident  scene  for  purposes  of  concealing  the cause of  the
accident, and indeed, in the end, the movement of  the  truck and
backhoe had little, if any, impact on the MSHA investigation.  It
would  indeed be counterproductive and contrary to public  policy
to discourage  the  safe  and prompt recovery of accident victims
based  on the reasonable and  good  faith  actions  of  rescuers.
Under the circumstances I find that there was no violation of the
cited  standard   as   charged  and  Citation  No.  7716905  must
accordingly be vacated.
     In assessing civil  penalties  herein I have also considered
the  operator's  small  size,  lack  of  a   history   of  recent
violations, apparent good faith abatement and absence of evidence
that the penalties would affect its ability to stay in business.
                              ORDER
     Citations  No.  7716905  and  7716908 are vacated.  Citation
Nos. 7716903 and 7716904 are affirmed  and  Douglas  R.  Rushford
Trucking  is  directed  to  pay  civil penalties of $3,000.00 and
$100.00, respectively, for the violations  charged therein within
40 days of the date of this decision.
                               Gary Melick
                               Administrative Law Judge
Distribution: (Certified Mail)
Suzanne Demitrio, Esq., Office of the Solicitor,  U.S.  Dept.  of
Labor, 201 Varick St., Room 707, New York, NY 10014
Thomas  M. Murnane, Esq., Stafford, Trombley, Owens & Curtin, PC,
One Cumberland Avenue, P.O. Box 2947, Plattsburgh, NY 12901
\mca
**FOOTNOTES**
     [1] During  hearings  Citation No. 7716908, charging one of
these violations, was vacated by the Secretary.