<DOC>
[DOCID: f:yk9853.wais]
BARDON TRIMOUNT, INC.
August 20, 1999
YORK 98-53-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 20, 1999
SECRETARY OF LABOR,              : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH      :
      ADMINISTRATION (MSHA),     : Docket No.  YORK 98-53-M
               Petitioner        : A.C. No.  19-00020-05530
          v.                     :
                                 : Swampscott Quarry
BARDON TRIMOUNT, INC.,           :
               Respondent        :
                             DECISION
Appearances: David L. Baskin, Esq, Office of the Solicitor,
             U. S. Department of Labor, Boston, Massachusetts,
             for the Secretary;
             Richard D. Wayne, Esq., Hinckley, Allen & Snyder,
             Boston, Massachusetts, for Respondent.
Before: Judge Weisberger
Statement of the Case
     In this civil penalty proceeding, the Secretary of Labor
("Secretary")  seeks  the  imposition  of civil penalties
against Bardon  Trimount,  Inc.,  ("Bardon") for allegedly
violating 30 C.F.R.  56.14131(a) and 56.9300(b). Pursuant to
notice, the case was heard in Cambridge, Massachusetts, on
May 4-5, 1999. On June 25, 1999, the Secretary filed a Post
Hearing Brief, and the Respondent  filed  Proposed  Findings
of Fact and a Post Hearing Brief.
Introduction
     On July 25, 1997, Daniel F. English, Jr., a truck driver
with 28 years experience, was driving a 50 ton truck down the
haulage road located at Bardon's Swampscott Quarry in
Swampscott, Massachusetts. His truck ran against concrete
blocks located long  the side of the  road  to  his right.[1]
These concrete blocks, uniform in size, are 4,000 pounds each,
and each block is 30 inches high, 36 inches long, and 24 inches
wide. The concrete blocks are held  together by  cables that
are inserted in eyes drilled in the blocks.  After English's
truck was driven parallel to these blocks, it ended up with
its front wheel on top of the blocks.  There were tire marks
for 57 feet along the blocks. The undercarriage of the truck
struck the top  of the concrete blocks and knocked off several
of the blocks. After English struggled with the truck it fell
45 feet over the outside of the blocks and English was killed.
     Subsequent to an investigation conducted by William C.
Jensen, an MSHA Inspector and Accident Investigator, which
commenced on July 26, 1997, Jensen issued a citation alleging
a violation  of  section 56.14131(a), which required that
seatbelts be ". . .  provided and worn in haulage trucks,"
and another citation  alleging  a  violation  of  section
56.9300(b), which provides, as pertinent, that "[b]erms . . .
shall  be  at  least  mid-axle  height  of  the  largest
self-propelled mobile equipment which usually travels the
roadway."
 I.  Violation of Section 56.14131(a), supra
     In order to meet its burden of establishing a violation
under section  56.14131(a),  supra,  the Secretary must
establish either that a seatbelt was not provided  in the
vehicle at issue, or  was provided but not worn. It is not
controverted that the vehicle was equipped with a seatbelt.
The Secretary argues, in essence, that it has established
that English was not wearing his seatbelt in that  before
English's truck went over the berm, English was observed
struggling to control the truck, that subsequent to the
accident the two sections of the seatbelt were found behind
the driver's seat, that Marty McKenney, the site
superintendent, told MSHA Field Office Supervisor Inspector
Randall Gadway[2] that after the accident, English was found
lying on the  ground, that a Mr. Lindsey, a truck driver,
told Gadway that he saw English fall out of the truck window,
that an autopsy report indicated that English had substantial
right side trauma to the head and upper torso, and that
according to MSHA Inspector  William  Jensen,[3] the inside
of the truck windshield was damaged on the right side. For
the reasons that follow, I find that the Secretary has not
met its burden of establishing that English was not wearing
a seatbelt.
     Although Jensen found the two sections of the seatbelt
behind the driver's seat, I note that when Jensen made this
observation the truck had already  been  turned upright, had
been hoisted by a crane onto a flatbed truck, and had been
transported from the site of the accident to the location
where it was observed by Jensen. In this connection, the
Secretary refers to an order issued on July 25, 1997, by
MSHA Inspector John Newby under  section 103(k) of the Act,
". . . prohibit[ing] personnel from entering  the  accident
site  pending  an  investigation . . . ." (Ex. G-6).  The
Secretary argues, in essence, that accordingly it  should be
found that no one entered the cab until Jensen examined it.
The Secretary did not offer any evidence that would tend to
establish that no one had, in actuality, entered the truck
cab in spite of the section  103(k) Order, from the time of
the accident until the time the truck  was  observed  by
Jensen. Also, the Secretary did not proffer the testimony
of any witnesses having personal knowledge of the position
of the seatbelt immediately after the accident. Thus, there
is insufficient evidence to support a conclusion that the
two sections of the seatbelt were positioned behind the
driver's seat at the time of the accident before the truck
had been moved and placed upright.
     The Secretary's assertion that English had been observed
"standing up" in the cab struggling to control the vehicle
does not find support in the record. The Secretary has cited
the  following  testimony  of  Jensen  as  support  for  its
assertion:
     Q.   Your  investigation  also revealed that the driver
     was struggling to keep the  truck  on  the  road; isn't
     that correct?
     A.  Through eyewitnesses, yes, sir (Tr. 163).
I note that Jensen's testimony does not contain the words
"standing up."  Further, Jensen's testimony is not accorded
much weight in that his answer was in response to a leading
question, and consists of uncorroborated hearsay. Jensen did
not identify the eyewitnesses. Nor did the Secretary indicate
why any eyewitnesses were not called to testify.
     Although the autopsy report does indicate that English
had suffered trauma to the right side of the head and upper
torso, there is no medical expert opinion in the record that
would tend to establish whether or not these injuries would
be consistent with the wearing or not wearing of a seatbelt.
In this connection, I note that Jensen opined if English was
wearing a seatbelt, then  his abdomen  would  have  been
bruised in the accident as a result  of  the restraining
effect of the seatbelt. In this connection, I note that the
autopsy report indicates as follows: "blue contusions lower
abdomen," (Ex. G-7), which, according to Jensen,  would  be
consistent with the wearing of a seatbelt.
     The Secretary argues, in essence, that since the autopsy
report indicates that English suffered trauma to the right
side of his head and torso, and the windshield was cracked on
the inside opposite the passenger seat as testified to by
Jensen, it should be found that English had not been wearing
a seatbelt. I do not  accept  the Secretary's argument. There
is no evidence in the record to base a conclusion that the
crack had occurred at the time of the accident, and not either
before or after.  There is no evidence as to the condition of
the windshield prior to the accident.  Also, there is no
evidence  that the windshield, when observed by Jensen, was
in the same condition as it was at the time of the accident,
i.e., before the truck had been turned upright, and moved to
the location observed by Jensen. Also, the record does not
contain either  any  physical  evidence  or  expert  opinion
testimony, that  English's  head  could have come in contact
with the windshield, only if he  had  not  been  wearing a
seatbelt.
     Further,  in  evaluating the probative weight to be
accorded the Secretary's evidence, I note that the Secretary
did not proffer the testimony of any eyewitnesses to the
events at issue, nor  did  it  present  the testimony of any
eyewitnesses who came upon the scene immediately  after the
accident. I do not assign much  weight to Gadway's hearsay
testimony  regarding  statements made to him by McKenny and
Lindsey. The Secretary did not adduce any written statements
made by these individuals, nor did it offer  any explanation
why it did not call these individuals to testify. It thus
might reasonably be inferred that the Secretary had concluded
 not  to  call these witnesses, as it was concerned that the
 weight of their direct testimony would have been effectively
diluted or impeached on cross-examination. Also, the record
does not contain any corroboration of either McKenny's, or
Lindsey's statements. Indeed, upon cross-examination, Jensen
conceded that he had reviewed a report of the Swampscott
Police Department which contained a statement that David
Wyckoff had reported  that  he had observed the accident at
issue, and had stated that he had run to the truck and started
pulling rocks off the driver ". . . that had fallen into the
cab" (Tr. 156). This hearsay statement would tend to establish
that, after the accident occurred, English was still in the
truck. Hence, this hearsay statement would tend to contradict
the hearsay statements of Lindsey and McKenny upon which the
Secretary relies. For these reasons, I assign little probative
weight to the Secretary's hearsay evidence.
     Therefore, for all the above  reasons, I conclude that
the Secretary has failed to establish that a seatbelt had not
been worn by English. Thus I conclude that the Secretary has
failed to establish that Bardon violated section 56.14131(a),
 supra.
II.  Violation of Section 56.9300(b), supra
     Section  56.9300(b) provides  as  follows:  "[b]erms  or
guardrails shall be at least mid-axle height  of  the largest
self-propelled mobile equipment  which  usually  travels  the
roadway." Thus,  the  language  of section 56.9300(b), supra,
is clear and unambiguous in mandating  only one criteria of a
berm in order to satisfy its requirements, i.e.,  it  should,
"[b]e at least mid-axle height of the largest self-propelled
mobile  equipment which usually travels the roadway."  It is
not contested by Bardon that the height of the concrete berm
that was in place was  less  than the mid-axle height of the
caterpillar 773-B which English had been driving, and which
is the largest  piece  of  mobile  equipment  which  usually
traveled on the road in question. Bardon argues, nontheless,
that the berm in question did  satisfy  section  56.9300(b),
supra, in that it fulfilled the purpose of section 56.9300(b),
supra, as set forth in a statement made by the Secretary in
the Federal Register, as including "alert[ing] the equipment
operator of the hazardous situation, moderat[ing] the force
of the equipment, provid[ing] time for corrective action, and
assisting the operator in regaining control of the equipment."
(53 Fed. Reg. 32496, 32501, (August 25, 1998)). Bardon argues,
in essence, when the instant accident occurred, the purposes
of section 56.9300(b), supra, were fulfilled, in that the berm
held firm upon impact, which would  have  alerted English that
he was in a hazardous situation, and that it slowed down the
truck providing English with adequate time to apply his brakes
and control the truck. I fin  no merit to Bardon's argument.
The manner in which the  berm  functioned  in  the  instant
peculiar accident, is  not relevant in determining whether
the berm satisfied the requirements  of  section  56.9300(b),
supra. Since  the  berm  did  not  met  the only unqualified
mandatory requirement of section 56.9300(b), supra, i.e., its
height was less than the mid-axle height of the largest truck
which usually travels the roadway, I find that  Bardon did
violate section 56.9300(b), supra.
     A.  Significant and Substantial
     The citation at issue alleges that the violation was
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 clearly establishes that the first and second
factors set forth in Mathies, supra, as Bardon did violate a
mandatary standard,  and this violation contributed to the
hazard of a vehicle going off the road and overturning. The
road at issue was at an incline, and  the  773-B  truck, the
largest truck that usually  traveled the roadway at issue,
made 25 round trips per shift.  Also, a Caterpillar 992 truck,
whose tires were higher than those of the 773-B truck, also
traveled the roadway one round trip daily. Gadway testified
he has investigated haulage road accidents involving vehicles
traveling a haulage road, and assessed the effect inadequate
berms.  Gadway opined, based upon his investigation of the
instant accident, and upon studies and tests that he did not
identify, that if the berm is below mid-axle height, it
". . . act[s] just like a stair and lift[s] th[e] truck"
(Tr. 203). In this connection, I note that the mid-axle height
of the truck, at 40 inches,  was  10 inches higher than the
30 inch high berm. It also is clear, as evidenced by the
accident at issue, that should a vehicle have over  traveled
the  berm as a consequence of the inadequate height of the
berm, it is reasonably likely that a serious injury would have
resulted. Therefore, for all the above reasons, I conclude
that the third and fourth elements set forth have in Mathies,
supra, have been met. I thus conclude that it has been
established  that the violation  was  significant  and
substantial.
     B.  Penalty
     The cited violation was abated in a timely fashion, and
in good faith. Although Bardon is  controlled  by  Aggregate
Industries,  PLC, the Swampscott Quarry at issue, during the
12 month  period  immediately  proceeding  the  accident  at
issue,  employed   approximately   26 employees  who  worked
approximately  60,000  hours  at the quarry.   The  Assessed
Violation  History report, relied  upon  by  the  Secretary,
indicates, that  in  the  period from June 16, 1996, through
the date to instant citations  at  issue  in this proceeding
were issued, Bardon received 16 citations excluding  the two
at  issue  in  these  proceedings.   A  Mine  Inspection and
Violation History report proffered by Bardon indicates  that
Bardon   was   issued   32  citations  in  the  period  from
December 12, 1995 through  the  date  the citations at issue
were  issued.  This report indicates it  covers  the  period
from  April  1993  through  May  1998,  but  there  were  no
citations  listed  prior  to  December 12, 1995.  Bardon has
conceded that the imposition of  the penalty will not effect
its ability to remain in business.   Based  on the testimony
of Gadway, and considering that a fatality occurred  herein,
that  the  roadway  along  which  the  berm  was located was
regularly used, and was at an incline, that there  was  a 10
inch  difference between the height of the berm and the mid-
axle of  the  truck  at issue, and that there was a drop off
beyond the berm, I conclude that the violation herein was of
a high level of gravity,  as  the  violative condition could
have resulted in a fatality or serious injuries.
     Regarding Bardon's negligence, I find that the existence
of the berm was most obvious as it ran along a regularly used
roadway. Therefore, Bardon reasonably should have been aware
of  the  berm,  and  reasonably should have measured  it  to
ascertain if it was in  compliance.   Hence,  Bardon  should
reasonably have been expected to know that the berm was less
than the mid-axle  height of the largest truck used  on  the
road and hence was not in compliance with section 56.9300(b),
supra. The record is not clear as to the precisely how  long
the violative berm was in existence prior to its being cited.
Douglas  Gallant,  Bardon's   lead   laborer  on  the  site,
testified  at  the  hearing  on  May 5, 1999,  that  he  had
installed the berm at issue in the  summer  of 1996.  On the
other hand, MSHA Inspector Carl Onder testified  that in his
inspection in December 1996, the area in question,  the west
side,  was  bermed  only  with  oversized  bolders  which he
indicated  to  be  at  eye  level.[4]   This would appear to
confirm  the  hearsay  statements of McKenny  to  Newby  and
Jensen that the berm was  installed  in  January  1997.   It
would  also  confirm  a  statement made by Cristos Sarhanis,
Bardon's safety risk manager,  that  he  made in a letter to
James R. Petree, the Northeast District Manager  of  MSHA on
May 29, 1998, as follows: "[s]peaking with various people at
the  Swampscott  Quarry, the berm was placed at the location
in January of 1997"  (Ex.  G-4).   Hence,  at a minimum, the
violative berm had existed for over 6 months  and  until  it
was cited.  Bardon, argues, in essences, that any negligence
on  its  part  should  be  greatly  mitigated by considering
Gallant's testimony that in the summer  of  1996,  during an
MSHA  inspection, an MSHA inspector told him to replace  the
existing  stone  berm,  that  varied  from  3  to  5 feet in
diameter, with concrete blocks to be at a height of half the
distance  of  the  wheel  base of the highest object in  the
quarry.  According to Gallant,  approximately a month later,
an MSHA official returned, and recommended  that  he tie the
blocks  together.   However,  Gallant was unable to identify
the MSHA official who provided  these  instructions.  On the
other hand, MSHA Inspector Robert Dow testified in rebuttal,
that  Gallant  did not participate in an inspection  of  the
site that he (Dow)  made  in  July 1996.  Dow also indicated
that he did not tell Bardon or  Gallant  to install concrete
blocks as a berm.  I accept Dow's version over Gallant's.  I
observed Dow's demeanor and found him to be  a very credible
witness.   Further,  the  record  does  not contain  even  a
scintilla  of  evidence  to provide Dow with  a  motive  for
telling Bardon to remove an  existing berm, whose height was
never considered to be out of  compliance,  and  instead  to
install  concrete  blocks, that were in violation of section
56.9300(b), supra.   Also,  Gallant  could  not identify the
MSHA  person  who  instructed  him to install the  violative
berm.  There is no evidence that  any  inspector  other than
Dow  inspected  the  site  on  the  dates  in question until
December 1996.  Further, I note Sarhanis' testimony  that on
May  3,  1999,  two  days  before  Gallant  testified at the
hearing, he (Gallant) had told him (Sarhanis)  that  he  had
been  instructed  by McKenny to install the concrete blocks.
Within  this  context,   I   consider   the  level  Bardon's
negligence to have been relatively high.
     Considering all the above factors set forth in  section
110(i)  of  the  Act,  and  giving  considerable  weight  to
Bardon's  negligence  and  the  gravity  of   the  violative
condition,   I   find  that  a  penalty  of  $35,000.00   is
appropriate for this violation.
                              ORDER
     It is ORDERED that Citation No. 7707459 be DISMISSED. It
is further ORDERED that, within 30  days  of the date of this
decision,  Bardon  shall  pay  a  total  civil  penalty   of
$35,000.00.
                              Avram Weisberger
                              Administrative Law Judge
Distribution:
David L. Baskin, Esq.,
Office of the Solicitor,
U.S. Department of Labor,
John F. Kennedy Federal Building, Room  E-375,
Government Center, Boston, MA 02203
(Certified Mail)
Richard D. Wayne, Esq.,
Hinckley, Allen, & Snyder,
28 State Street, Boston,
MA 02109-1775
(Certified Mail)
dcp
**FOOTNOTES**
     [1]: English  was  sitting  in the left side of the
truck (the driver's seat), as it traveled parallel to the
blocks.
     [2]: Gadway was involved in investigating English's
fatal accident.
     [3]: Jensen investigated English's fatal accident, and
issued the citations at issue.
     [4]: Onder testified that he is 68 inches tall.