Rock Products

DEC 2014

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www.rockproducts.com ROCK products • DECEMBER 2014 63 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 ex‐ tinguisher, 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 apart‐ ment 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 prob‐ lem, "Good intentions and good faith are not the same. Good faith requires vigilance about one's responsibilities, com‐ mitment to finding the resources to get the job done, and ac‐ countability 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 con‐ dition 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 inade‐ quate 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 de‐ bris 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 ac‐ cess, but the case turned on maintaining the walkway, not ELLEN SMITH Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News , www.minesafety.com. She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at minesafety@aol.com.

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