San Juan Cement Company, Inc.

Plain-English summary

San Juan Cement operated an open-pit limestone quarry and cement plant at the Cantera Espinosa Mine in Puerto Rico. The case involved three citations issued after a truck driver died in an incident involving a high-voltage powerline, along with other electrical and equipment conditions. Judge John F. Cook found the three violations proven, rejected the operator's motion to dismiss, and assessed penalties of $2,000, $85, and $3,000, for a total of $5,085. The decision held that the mine was a crushed-stone operation subject to the cited Part 56 standards and that the penalties would not affect the company's ability to remain in business.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12-71, 50.10, and 56.20-11
• Outcome: The three violations were affirmed, and total civil penalties of $5,085 were assessed.
• Key point: A mine's compliance with state safety rules does not replace its obligation to comply with applicable federal mine-safety standards.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
PETITIONER
v. SAN JUAN CEMENT COMPANY, INC., RESPONDENT
Civil Penalty Proceedings
Docket No. BARB 79-222-PM
A/O No. 54-00120-05002 F
Docket No. BARB 79-283-PM
A/O No. 54-00120-05003
Cantera Espinosa Mine

DDATE:
September 12, 1990

TTEXT:

Page 2

~2602
Appearances: James J. Manzanares, Esq., Office of the Solicitor,
U.S. Department of Labor, Hato Rey, Puerto Rico, for Petitioner
Alex Gonzalez, Esq., and Mario Arroyo Davila, Esq., Dubon,
Gonzalez and Vazquez, San Juan, Puerto Rico, for Respondent
DECISION Before: Judge Cook I. Procedural Background
The Mine Safety and Health Administration (Petitioner) filed
petitions for assessment of civil penalty in Docket Nos. BARB
79-222-PM and BARB 79-283-PM on January 18, and February 15,
1979, respectively. The petitions were filed pursuant to section
110(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. | 820(a) (1978) (1977 Mine Act), and collectively allege
three violations of various provisions of the Code of Federal
Regulations. On March 19, 1979, San Juan Cement Company, Inc.
(Respondent) filed both answers to the petitions and a motion
requesting consolidation of the cases. On March 26, 1979,
Petitioner filed a motion to authorize discovery. The parties
respective motions were granted by orders dated June 13, 1979.
On August 24, 1979, a notice of hearing was issued
scheduling the hearing to commence on December 11, 1979, in Hato
Rey, Puerto Rico. On December 3, 1979, the parties filed joint
motions to approve settlement and Petitioner filed supplementary
motions pertaining thereto. The joint motions were denied by an
order dated December 7, 1979. Additionally, the December 7,
1979, order recounted the results of a December 5, 1979,
telephone conference during which the representatives of the
parties agreed to continue the hearing to December 20, 1979.

Page 3

~2603
The hearing was held as scheduled with representatives of both
parties present and participating. Following the presentation of
the evidence, a schedule was agreed upon for the posthearing
filing of Exhibits O-8 and O-9 and for the filing of posthearing
briefs. The exhibits were received in evidence by an order dated
April 3, 1980. On April 22, 1980, Petitioner filed its
posthearing brief and proposed findings of fact and conclusions
of law. No posthearing brief was filed by Respondent. II.
Violations Charged A. Docket No. BARB 79-222-PM
Citation No. 94602, March 20, 1978, 30 C.F.R. | 56.12-71. B.

Docket No. BARB 79-283-PM
Citation No. 94601, March 20, 1978, 30 C.F.R. | 50.10.
Citation No. 93262, April 20, 1978, 30 C.F.R. | 56.20-11.
III. Witnesses and Exhibits A. Witnesses
Petitioner called as its witnesses Pedro Sarkis, a Federal
mine inspector; Salvador Lugo Cortes, area engineer for the
electric power company; Luis Figueroa Arroyo, a maintenance
employee of the San Juan Cement Company; and Francisco Martinez
Ortiz, safety officer of San Juan Cement Company.
Respondent called as its witnesses William Miranda Marin,
senior vice president of San Juan Cement Company; Salvador
Torros, vice president of marketing and sales for San Juan Cement
Company; and David Cintron, chief engineer of Arnold Green
Testing Laboratories in Puerto Rico. B. Exhibits
1. Petitioner introduced the following exhibits in
evidence:
M-2 is a drawing prepared by Salvador Lugo during the course
of his testimony.
M-3 is a drawing prepared by Salvador Lugo during the course
of his testimony.
M-4 is a copy of Pedro Sarkis' curriculum vitae (resume).
M-5 is a copy of Citation No. 94602, March 20, 1978, 30
C.F.R. | 56.12-71.
M-6 is a copy of a subsequent action form pertaining to M-5
extending the time period for abatement to 2 p.m., April 28,
1978.

Page 4

~2604
M-7 is a copy of a subsequent action form pertaining to M-5
extending the time period for abatement to 9 a.m., May 11, 1978.
M-8 is a copy of the termination of M-5.
M-9 is a photograph.
M-10 is a memorandum to James J. Manzanares from Debbie L.
Hines, supervisory assessment clerk, addressing Respondent's
history of previous violations.
M-11 is a copy of Citation No. 93262, April 20, 1978, 30
C.F.R. | 56.20-11.
M-12 is a copy of a subsequent action form pertaining to
M-11 extending the time period for abatement to 3 p.m., April 24,
1978.
M-13 is a copy of the termination of M-11.
M-14 is a photograph.
M-15 is a drawing prepared by Pedro Sarkis during the course
of his testimony.
M-16 is a copy of Citation No. 94601, March 20, 1978, 30
C.F.R. | 50.10.
M-17 is a copy of a modification of M-16.
M-18 is a copy of a document styled "Mine Accident, Injury,
and Illness Report."
M-19 is a copy of a memorandum from Francisco Martinez
Ortiz, safety officer of San Juan Cement Company, to Federal mine
inspector Pedro Sarkis wherein the author reports the results of
his investigation of the fatal accident.
M-19-A is an initial report pertaining to the subject matter
of M-19.
M-20 is a photograph.
M-21 is a photograph.
M-23-A is a request for admission of facts filed by
petitioner in Docket No. BARB 79-222-PM.
M-23-B is Respondent's response to M-23-A.
M-23-C is a request for admission of facts filed by
Petitioner in Docket No. BARB 79-283-PM.
M-23-D is Respondent's response to M-23-C.

Page 5

~2605

2. Respondent introduced the following exhibits in evidence:
   O-1 is a copy of a letter dated April 11, 1978, from the
   electric power company to William Miranda Marin.
   O-2 is a letter dated March 27, 1978, from San Juan Cement
   Company to the electric power company.
   O-3 is a copy of a letter dated April 20, 1978, from San
   Juan Cement Company to the electric power company.
   O-4 is a copy of a check in the amount of $3,461 drawn on
   the account of San Juan Cement Company and made payable to the
   electric power company.
   O-5 is a topographic survey plan of the subject plant.
   O-6 is a copy of a memorandum dated December 18, 1979, from
   Luis M. Gonzalez to William Miranda Marin addressing the number
   and distribution of persons employed at the subject plant.
   O-7-A is a set of interrogatories from Respondent to
   Petitioner.
   O-7-B contains petitioner's answers to O-7-A.
   O-8 is a certified copy of Respondent's 1977 Commonwealth of

of Puerto Rico tax return.
O-9 is a certified copy of Respondent's 1978 Commonwealth of
Puerto Rico tax return.
3. X-1 is a drawing prepared by Salvador Lugo during the
course of his testimony. IV. Issues
Two basic issues are involved in the assessment of a civil
penalty: (1) did a violation of the 1977 Mine Act occur, and (2)
what amount should be assessed as a penalty if a violation is
found to have occurred? In determining the amount of civil
penalty that should be assessed for a violation, the law requires
that six factors be considered: (1) history of previous
violations; (2) appropriateness of the penalty to the size of the
operator's business; (3) whether the operator was negligent; (4)
effect of the penalty on the operator's ability to continue in
business; (5) gravity of the violation; and (6) the operator's
good faith in attempting rapid abatement of the violation. V.
Opinion and Findings of Fact A. Stipulations
1. The legal name of the Respondent is San Juan Cement
Company, Inc.
2. The identification of the mine where the inspection was
conducted is "Cantera Espinosa."

Page 6

~2606

3. The location of said mine is Dorado, Puerto Rico.
   4. San Juan Cement Company, Inc., is the operator of said
      mine.
   5. San Juan Cement Company, Inc., operates an open pit
      limestone quarry where it extracts limestone for use in the
      production of cement. This establishment is a mine within the
      meaning of section 3(h) of the 1977 Mine Act.
   6. The products of the Cantera Espinosa Mine enter and
      affect commerce.
   7. Petitioner's requests for admissions and the answers
      thereto which are not denials, and Respondent's interrogatories
      and the answers thereto are part of the record and in evidence.
   8. Assessment of the original penalty that was assessed by
      the Office of Assessments will not affect Respondent's ability to
      remain in business (Tr. 20-21).
   9. Benjamin Alicea Diaz was the person who was electrocuted
      on March 16, 1978. He was 5 feet 6 inches tall (Tr. 232).
   10. Exhibit 0-5 is drawn to scale such that one inch equals
       approximately 50 feet (Tr. 413).
   11. The terms "Water Resources Authority," "Power Company"
       and "Authority of Electrical Energy" have been used
       interchangeably to refer to the electric power company (Tr. 343).
       B. Jurisdiction
       Respondent entered into two stipulations of particular
       significance to the issue of jurisdiction. First, Respondent
       stipulated that it operates an open-pit limestone quarry where it
       extracts limestone for use in the production of cement and that
       such establishment is a mine within the meaning of section 3(h)
       of the 1977 Mine Act. This stipulation is further refined by
       Respondent's answers to Petitioner's request for admissions which
       reveal that the Cantera Espinosa Mine is the facility referred to
       in the stipulation and that Respondent actually operates a cement
       production plant at the mine site (Admissions 2, 3 and 4 as set
       forth in Exhs. M-23-A through M-23-D). Second, Respondent
       stipulated that the products of the Cantera Espinosa Mine enter
       and affect commerce.
       The parties evidenced considerable disagreement as to the
       legal effect of these stipulations, with Petitioner contenting
       that they have the legal effect of admitting jurisdiction and
       Respondent contending that no such effect was intended. However,
       counsel for Respondent unequivocably admitted that the Federal
       Mine Safety and Health Review Commission (Commission) has
       jurisdiction over Respondent in this proceeding (Tr. 12-18).

Page 7

~2607
A careful review of Respondent's position has revealed
essentially two arguments outlining the issues that Respondent
wishes the Judge to resolve.
First, Respondent appears to contend that it was improperly
cited for violations of mandatory safety standards set forth in
Part 56 of Title 30 of the Code of Federal Regulations because
the Cantera Espinosa Mine is not a sand and gravel operation.
Respondent characterizes its operation as an open pit mine and,
by implication, appears to argue that its activities are subject
exclusively to the provisions of Part 55 of Title 30 of the Code
of Federal Regulations (Tr. 12). I disagree. Part 56 sets forth
particularized requirements applicable to sand, gravel and
crushed stone operations. The activities conducted by Respondent
at the Cantera Espinosa Mine fall within the definition of a
"crushed stone operation" and, accordingly, the requirements of
Part 56 apply.
For purposes of the instant case, the key consideration is
that the subject mine is an open pit limestone quarry from which
Respondent extracts limestone for use in the production of cement
and that cement production occurs at the mine. "Cement" is
defined, amongst several definitions, as "a finely ground powder
which, in the presence of an appropriate quantity of water,
hardens and adheres to suitable aggregate, thus binding it into a
hard agglomeration that is known as concrete or mortar." Paul W.
Thrush (ed.), A Dictionary of Mining, Mineral, and Relate Terms
(Washington, D.C.: U.S. Department of the Interior, Bureau of
Mines) (1968) at p. 186. ÕEmphasis added.Ê "Crushed stone" is
defined as the "product resulting from the artificial crushing of
rocks, boulders, or large cobblestones, substantially all faces
of which have resulted from the crushing operation," and is a
"ÕtÊerm applied to irregular fragments of rock crushed or ground
to smaller sizes after quarrying." Paul W. Thrush (ed.), op
cit., p. 284. These definitions establish that cement production
at the Cantera Espinosa Mine requires, at a minimum, the crushing
of limestone to produce a finely ground powder used in the
finished product. Accordingly, the Cantera Espinosa Mine is a
"crushed stone operation" subject to the requirements of Part 56
of Title 30 of the Code of Federal Regulations.
Respondent's second argument appears to imply that
compliance with the safety regulations imposed by the
Commonwealth of Puerto Rico somehow absolves Respondent from a
duty to comply with Federal mandatory safety standards (Tr.
15-17). Respondent never clearly articulated the principles
underlying its argument, and the record contains only one
specific reference to the requirements imposed by the
Commonwealth, i.e., that the Electric Safety Code of Puerto Rico
requires 38,000-volt powerlines to be maintained at least 20 feet
above the ground (Tr. 88). As set forth later in this decision,
the powerlines involved in the instant case met the
Commonwealth's height requirements. However, assuming for
purposes of argument that Respondent maintained compliance with
all safety regulations mandated by the Commonwealth, such
compliance in no way absolved Respondent from its obligation to
comply with the more stringent requirements imposed by the 1977
Mine Act. Accordingly, Respondent's argument has no foundation.

Page 8

~2608
In view of the foregoing considerations, I conclude that
Respondent and its Cantera Espinosa Mine have been subject to the
provisions of the 1977 Mine Act at all times relevant to these
proceedings and that Respondent was properly charged under Part
56 of Title 30 of the Code of Federal Regulations. C.
Respondent's Motion to Dismiss
Respondent moved to dismiss the above-captioned cases at the
close of Petitioner's case-in-chief (Tr. 346-354). The motion
was preliminarily denied by the undersigned Administrative Law
Judge, but made subject to reconsideration at the time of the
writing of the decision (Tr. 355-356).
Respondent set forth essentially two grounds in arguing for
dismissal: (1) that Petitioner had failed to establish a prima
facie case as to the three violations charged; and (2) that,
assuming for purposes of argument that the violations existed,
the evidence presented established the existence of circumstances
mitigating against the imposition of any civil penalties.
The evidence contained in the record at the time the motion
was made has been reviewed carefully, and I conclude that the
evidence in the record at that stage of the proceedings was more
than sufficient to establish a prima facie case as to the
occurrence of the three violations charged. The arguments
advanced by Respondent are more appropriately addressed to civil
penalty assessment determinations that must be made under the six
statutory assessment criteria set forth in section 110 of the
1977 Mine Act and, accordingly, have been considered fully as
relates to the penalty assessment stage of the proceedings.
Two arguments raised by Respondent are worthy of individual
discussion at this time. First, Respondent appeared to argue
that proof of operator negligence is essential to proving
violations of the mandatory safety standards. This argument is
specifically rejected as a ground for dismissal. It is well
settled that mine operators are liable for violations of
mandatory health and safety standards without regard to fault.
United States Steel Corporation, 1 FMSHRC 1306, 1979 OSHD par.
23,863 (1979). Second, Respondent's argument that mitigating
factors can warrant the assessment of no civil penalty for a
proven violation is contrary to law. The 1977 Mine Act mandates
the assessment of a civil penalty for any violation of a
mandatory safety standard. Island Creek Coal Company, 2 FMSHRC
279, 1980 OSHD par. 24,248 (1980).
In view of the foregoing considerations, the oral
determination made at the hearing denying Respondent's motion to
dismiss is AFFIRMED. D. Occurrence of Violations, Negligence,
Gravity and Good Faith
At approximately 2 p.m. on March 16, 1978, Benjamin Alicea
Diaz, a truck driver working for a customer of Respondent
identified as Rio Grande Ready Mix, sustained a fatal injury at
Respondent's Cantera Espinosa Mine

Page 9

~2609
when he accidentally either achieved physical contact with a
high-voltage powerline which crossed the main access road to the
plant, or came sufficiently close to such powerline to be
electrocuted.1 All vehicular traffic entering or leaving the
plant passed beneath the powerlines in question. The
circumstances surrounding his death are clear and relatively
uncontroverted.
Mr. Alicea drove a cement bulk carrier onto the premises at
approximately 2 p.m. to pick up a load of cement for Rio Grande
Ready Mix. He parked his truck on the access road while waiting
in line to reach the weighing station known as the scale house.
The scale house was located approximately 90 feet from the site
of the accident. Parked in this location, the truck was
positioned directly beneath the high-voltage powerlines. The
voltage passing through the lines was described as 38,000 volts,
phase-to-phase, and 27,500 volts, phase-to-ground.
Mr. Alicea got out of the truck cab and proceeded to climb
atop the bulk carrier in order to open the hatches. In his hand,
he had a 14- to 16-1/2-inch long hammer composed entirely of
metal. Mr. Alicea achieved physical contact with, or came within
close proximity of, one of the high-voltage power lines while
atop the bulk carrier. Witnesses to the accident reported
hearing an explosion as the powerline broke, observed the victim
fall to the pavement in flames and observed tires on the bulk
carrier catch fire.
The three citations at issue in the above-captioned cases
were issued as a result of an investigation into the
circumstances surrounding the fatal accident. 1. Citation No.
94602, March 20, 1978, 30 C.F.R. 56.12-71 Occurrence of Violation
This citation alleges a violation of mandatory safety
standard 30 C.F.R. | 56.12-71 in that "ÕtÊhe high tension cables
that are located in the access road to the scale house do not
have the minimum 10 feet of separation between the vehicles that
drive under this electric line. (Measure must be taken from the
highest vehicle that will move under the above-mentioned electric
lines)" (Exh. M-5). The cited mandatory safety standard provides
as follows: "When equipment must be moved or operated near
energized high-voltage powerlines (other than trolley lines) and
the clearance is less than 10 feet, the lines shall be
deenergized or other precautionary measures shall be taken."

Page 10

~2610
The evidence in the record reveals that Mr. Salvador Lugo Cortes
area engineer for the electric power company, visted the Cantera
Espinosa Mine on March 16, 1978, to investigate the accident and
that he measured the height of the powerline involved in the
accident after it had been repaired and raised. The measurement
was made by using a telescopic rod usually utilized to disconnect
energy circuits which was in turn measured with a tape measure.
This revealed that the powerline was 21 feet 3 inches above the
ground. Mr. Lugo provided expert testimony revealing that the
powerline was at approximately the same height before the
accident as after it was repaired and raised based upon the type
of repair and raising operation performed. His testimony reveals
that the height of the lines after the completion of the repairs
could have varied by approximately 2 or 3 inches from the height
at the time of the accident (Tr. 42-43, 50-52, 87). Mr. Lugo's
testimony on this point is confirmed by the testimony of Mr.
Salvador Torros, Respondent's vice president of marketing and
sales. Mr. Torros testified that he observed the powerline
before the accident and after it was repaired and raised, and
that there could not have been much difference in the height. It
was his belief that any difference in the height would not have
been noticeable (Tr. 424-425).
In addition to taking the above measurement, Mr. Lugo also
measured the height of the lowest powerline that had not fallen
and testified that it measured 21 feet 6 inches above the ground
when measured from the side of the truck away from the victim's
body.
In view of the foregoing, it is found that the powerline
involved in the accident was within 2 or 3 inches of 21 feet 3
inches above the ground at the time of the accident, and that the
lowest of the remaining powerlines was 21 feet 6 inches above the
ground when measured from the side of the truck away from the
body.
The evidence in the record further reveals that Mr. Lugo
measured the height of the truck while it was still under the
powerlines at the site of the accident. Mr. Torres Tome, an
engineer employed by Respondent, and Mr. Francisco Martinez
Ortiz, Respondent's safety officer, were present when the
measurement was made. The measurement was taken from the ground
to the highest point on the truck, and the testimony reveals that
the measurement was taken with reference to the point located
directly beneath the powerline where it was believed that Mr.
Alicea was standing at the time of the electrocution. It can be
concluded that this point could have been deduced with reasonable
accuracy since Federal mine inspectors observed blood on the
truck during the course of their March 17, 1978, investigation.
The measurement revealed a height of 13 feet.
The accuracy of Mr. Lugo's height measurement was disputed
by the testimony of Mr. David Cintron, chief engineer of Arnold
Greene Testing Laboratories. Mr. Cintron examined the truck
involved in the fatality. The examination was performed on the
premises of Rio Grande Ready Mix. The truck was resting on
wooden blocks with the tires removed when Mr. Cintron's height
measurement was made. In this position, Mr. Cintron obtained a
height measurement of 12 feet 3 inches and thereafter calculated
a correction factor to to determine that the truck, with tires

Page 11

installed, would have measured approximately 12 feet in height.

Page 12

~2611
Mr. Lugo's height measurement is deemed the more probative of the
two for the following reasons: First, Mr. Cintron admitted that
he could not establish a specific height for the truck. Second,
Mr. Lugo's height measurement was obtained at the site of the
accident with the truck in the same position it occupied at the
time of the accident. Company employees, one of whom was an
engineer, observed the measurements being made. There is no
indication that any company employee interposed an objection to
the accuracy of the measurement obtained or that they even
expressed concern as to any perceived irregularities in the
measurement procedure used. In fact, the evidence clearly
reveals that Respondent's safety officer accepted the measurement
as correct and included it in his report.
Accordingly, it is found that the truck measured 13 feet in
height.
In view of the foregoing findings of fact, it is found that
a violation of 30 C.F.R. | 56.12-71 has been established by a
preponderance of the evidence. Negligence of the Operator
On February 27 and 28, 1978, and March 1, 1978, Federal mine
inspectors conducted an inspection at the Cantera Espinosa Mine
pursuant to the provisions of the Federal Metal and Nonmetallic
Mine Safety Act of 1966, 30 U.S.C. | 721 et seq. (1971)
(Metal-Nonmetal Act).2 No citations were issued at that time
as relates to the subject powerlines because the inspectors made
no observations specifically attracting their attention to those
lines. Additionally, the testimony of Mr. Lugo establishes that
the powerlines complied with the 20-foot height requirement
established by the Commonwealth of Puerto Rico.
Respondent places great reliance on these considerations in
its arguments germane to the issue of operator negligence.
Respondent's reliance thereon is misplaced. The failure of
Federal mine inspectors to detect a given violation of a
mandatory health or safety standard during the course of an
inspection does not conclusively establish that the mine
operator, through the exercise of due diligence, could not have
detected the violative condition. The fact that Mr. Martinez,
Respondent's safety officer, had no knowledge on the date of the
accident as to the height of the lines (Tr. 320) indicates that
Respondent had made no effort to ascertain whether they complied
with the Federal height requirement in spite of actual knowledge
that all vehicular traffic entering or leaving the plant passed
under

Page 13

~2612
the lines and in spite of the fact that the area where the
accident occurred was clearly visible from the plant office
building located approximately 90 feet away. Respondent is
lawfully charged with a duty to comply with the Federal mandatory
safety standards notwithstanding its adherence to the less
exacting standards imposed by the Commonwealth of Puerto Rico.
The fact that the lines may have been the property of the
electric power company is of no assistance to Respondent. The
evidence presented as to abatement of the violation reveals that
the power company would raise the lines on request from the
customer upon payment of the requisite costs.
Respondent attempts to characterize Mr. Alicea's conduct in
climbing atop the bulk carrier as a voluntary act on his part
beyond Respondent's control. However, Mr. David Cintron, who
visited the plant to familiarize himself with the location of the
accident, testified that during his visits to the site he
discovered that the hatches on bulk carriers are always opened at
the weighing station so as to make certain that the cargo
compartment is empty or free of water. Respondent presented no
evidence establishing that the procedure ordinarily employed
around the time of the accident differed from those observed by
Mr. Cintron and, in fact, the testimony of Mr. Martinez implies
that it was the same. The evidence further reveals that most
union employees staged a walkout at the Cantera Espinosa Mine on
March 16, 1978, and that the plant was being operated by
supervisory personnel and the remaining workers. The walkout
resulted in slow service to the trucks arriving at the plant
which, in turn, resulted in a backup of trucks waiting to reach
the weighing station. According to Mr. Torros, the trucks
usually remain on the scale for a short period of time and,
accordingly, there is no delay.
It can be inferred from this testimony that the slow service
resulting in the backlog of trucks was at least partially
attributable to a shortage of personnel at the weighing station.
Under these circumstances, it is highly foreseeable that a truck
driver would undertake to open the hatches on his bulk carrier
while waiting in line so as to save time upon reaching the
scales, and it is equally foreseeable that the line of trucks
would extend under the powerlines since only three trucks had to
be in line for the last one to be positioned under those
powerlines. Accordingly, the occurrence of the accident was
foreseeable notwithstanding the fact that the actions of Mr.
Alicea can legitimately be characterized as voluntary. It was
therefore incumbent upon Respondent, since it chose to operate
the plant that day, to make doubly certain that the high-voltage
powerlines met Federal height requirements or that adequate
precautionary measures were taken. Respondent's failure to so
undertake these actions indicates that the occurrence of the
accident was not completely beyond Respondent's control.
Of greater significance to the issue of operator negligence,
is the testimony of Mr. Martinez and Inspector Pedro Sarkis.
Inspector Sarkis testified that he observed vehicles parked under
the powerlines during his March 20, 1978, and April 20, 1978,
visits to the Canteral Espinosa Mine. The walkout referred to by
Mr. Torros lasted only "a couple of days," thus

Page 14

~2613
implying that the facility was operating at normal capacity at
least as of April 20, 1978. Accordingly, it can be inferred that
vehicles had parked under the powerlines prior to the date of the
accident when the plant was operating normally. Additionally,
the emphasized portion of the following passage from Mr.
Martinez' testimony indicates that it was customary to perform
work under the powerlines prior to the date of the accident:
Q. Following the date of the accident, did you see
trucks, bulk carriers of the type that was involved in the
accident, go to the San Juan Cement Company, Inc., to pick up
cement?
A. There were trucks which went in of the bulk carrier
type, but I cannot say whether they were the same type as the
truck involved in the accident.
Q. Did they drive under the electric lines under which
the truck that was involved in the accident was parked at the
moment of the accident?
A. Would you repeat the question?
Q. Did those trucks that we're talking about now, did
they pass while being driven under the electric lines?
A. All types of trucks have to go under.
Q. Under the electric lines?
A. Yes, because they are aerial lines and they pass
under.
Q. Under the electric lines that were involved in the
accident?
A. Exactly. What was not done was the usual work
under.
(Tr. 318-319). ÕEmphasis added.Ê
In view of the foregoing considerations, it is found that
Respondent demonstrated far more than ordinary negligence.
Gravity of the Violation
The testimony of Mr. Cintron, an individual with impressive
credentials in the fields of electrical engineering, occupational
safety, and accident reconstruction, implies that mandatory
safety standard 30 C.F.R. | 56.12-71 is not specifically directed
against the occurrence of an injury of the type involved in this
case. However, Mr. Cintron's opinion notwithstanding, the
evidence reveals that Respondent's failure to comply with the
mandatory safety standard significantly contributed to the
occurrence of the accident.

Page 15

~2614
Accordingly, it is found that the violation was extremely
serious. Good Faith in Attempting Rapid Abatement
Inspector Sarkis testified that increasing the height of the
powerlines was necessary to abate the violation. The citation
set forth 1 p.m., April 3, 1978, as the termination due date
(Exh. M-5). Extensions were issued on April 20, 1978, and May 1,
1978, which ultimately extended the time period for abatement to
9 a.m., May 11, 1978 (Exhs. M-6, M-7). The extensions were
issued based upon arrangements with the Electric Authority to
increase the height of the lines and based upon the existence of
a prolonged strike at the power company (Exhs. O-1, O-2). The
violation was abated by replacing the 45-foot telephone poles
with 55-foot telephone poles, thus raising the height of the
lines by approximately an additional 10 feet (Exhs. O-1, M-8).
The Electric Authority charged Respondent $3,461 to raise the
lines (Exh. O-4).
Inspector Sarkis did not know the exact date of abatement,
but testified that it was safe to assume that Respondent raised
the lines by 9 a.m. on May 11, 1978. The citation was terminated
at 4 p.m. on May 16, 1978 (Exh. M-8).
Accordingly, it is found that Respondent demonstrated good
faith in attempting rapid abatement. 2. Citation No. 93262,
April 20, 1978, 30 C.F.R. | 56.20-11 Occurrence of Violation
This citation was issued at 1:45 p.m. on April 20, 1978,
alleging a violation of mandatory standard 30 C.F.R. | 56.20-11
in that "ÕtÊhere is no warning or sign to alert the operators of
the equipment to the electric lines of high-voltage in the area
which cross the entrance of the plant" (Exh. M-11). 30 C.F.R. |
56.20-11 provides as follows: "Areas where health or safety
hazards exist that are not immediately obvious to employees shall
be barricaded, or warning signs shall be posted at all
approaches. Warning signs shall be readily visible, legible,
display the nature of the hazard, and any protective action
required."
The findings of fact set forth previously in this decision
reveal that the area in which the high-voltage powerlines crossed
the main access road was an area where a safety hazard existed
and that the hazard was not immediately obvious to employees.
The testimony of Inspector Sarkis reveals that neither barricades
nor warning signs were present when the citation was issued.
Accordingly, it is found that a violation has been
established by a preponderance of the evidence. Negligence of the
Operator
On March 17, 1978, Federal mine inspectors requested Mr.
Marcos Corrada, the plant manager, to post a warning sign to
protect the lives of other individuals using the subject portion
of the access road (Tr. 167-168, 189).

Page 16

~2615
Yet, the sign had not been posted as of April 20, 1978, nor had
barricades been installed. Vehicles similar to the one involved
in the fatality continued to use the access road and, in fact,
vehicles were observed parked under the powerlines during
Inspector Sarkis' March 20, 1978, and April 20, 1978, visits to
the plant. The area involved was clearly visible from the plant
office.
The electrocution of Mr. Alicea should have apprised
Respondent of the actual dangers, given the proper circumstances,
posed to individuals using the area beneath the powerlines. It
was entirely foreseeable that another electrocution could occur.
The thought that first springs into the mind of a reasonable man
upon the occurrence of a fatality of the type involved in this
case, under the type of circumstances present in this case, is
the need to post effective warnings or to take other steps so as
to prevent the occurrence of a similar tragedy. Yet, Respondent
did absolutely nothing. The issuance of a citation was required
in order to force Respondent to discharge the basic and self
evident duty that could, and should, have been undertaken with
minimal effort immediately following Mr. Alicea's death.
Accordingly, it is found that the violation was accompanied
by a wanton disregard for the safety of others. Gravity of the
Violation
One fatality had occurred in the area and the occurrence of
another fatality was foreseeable. Accordingly, it is found that
the violation was extremely serious. Good Faith in Attempting
Rapid Abatement
The citation set forth 3 p.m., April 22, 1978, as the
termination due date (Exh. M-11). When Inspector Sarkis returned
to the Cantera Espinosa Mine on April 24, 1978, Respondent had
posted a warning sign 30 inches long by 14 inches wide on one of
the telephones poles (Exh. M-14). The sign was so small that a
truck driver would have been unable to read it. Accordingly, at
9 a.m., Inspector Sarkis extended the time period for abatement
to 3 p.m., April 24, 1978 (Exh. M-12). The citation was
terminated at 8:40 a.m. on April 25, 1978, following the posting
of an adequate warning sign (Exh. M-13).
Respondent's conduct between April 20, 1978, and April 24,
1978, indicates that Respondent viewed the requirement to post a
warning sign as a nuisance, and therefore undertook half-hearted
action which was clearly not designed to provide adequate warning
to others. Accordingly, it is found that Respondent demonstrated
extreme bad faith in attempting rapid abatement of the violation.

3. Citation No. 94601, March 20, 1978, 30 C.F.R. | 50.10
   Occurrence of Violation
   This citation alleges a violation of 30 C.F.R. | 50.10 in
   that "ÕtÊhe fatal accident that occurred on March 16, 1978, was
   not immediately notified to MSHA by officials of the company.
   The fatal accident was discovered by

Page 17

~2616
inspectors from MSHA who arrived on the property for other
reasons one day after the accident" (Exhs. M-16, M-17). At all
times relevant to this proceeding, 30 C.F.R. | 50.10 reported at
42 Fed. Reg. 65536 (1977) (effective date: January 1, 1978),
provided as follows:
If an accident occurs, an operator shall immediately
contact the MESA District or Subdistrict Office having
jurisdiction over its mine. If an operator cannot contact the
appropriate MESA District or Subdistrict Office, it shall
immediately contact the MESA Headquarters Office in Washington,
D.C. by telephone, toll free, at 800-737-2000.
The evidence presented reveals that Federal mine inspectors
visited the Cantera Espinosa Mine at approximately 3:30 p.m. on
March 17, 1978, to provide Respondent with a print on safety load
operations. Mr. Luis Gonzalez Rivo, Respondent's personnel
manager, thereupon apprised the inspectors of the March 16, 1978,
fatality. Notification was not provided immediately following the
accident as required by the regulation.
Accordingly, it is found that a violation of 30 C.F.R. |
50.10, reported at 42 Fed. Reg. 65536 (1977), has been
established by a preponderance of the evidence. Negligence of the
Operator
Immediately following the accident, Respondent contacted the
police and the insurance company and summoned an ambulance (Tr.
152). There is no indication that the failure to immediately
notify the appropriate Federal mine safety authorities was the
result of anything other than inadvertence.
Accordingly, it is found that Respondent demonstrated
ordinary negligence. Gravity of the Violation
Failure to notify the appropriate Federal mine safety
authorities is potentially serious in that one of the purposes of
the notification provision is to enable Federal mine inspectors
to ascertain the cause of an accident and order the mine operator
to institute corrective action designed to prevent the future
occurrence of another accident. Additionally, the mine
operator's failure to comply with the notification requirement
can prevent the collection of evidence needed for a variety of
legitimate Governmental purposes.
The evidence presented reveals that Federal authorities were
able to gather the information necessary to determine the cause
of the accident and order the implementation of corrective
action, notwithstanding Respondent's failure to comply with the
regulation. Accordingly, it is found that the violation was
nonserious.

Page 18

~2617
Good Faith in Attempting Rapid Abatement
The citation was terminated when the operator gave his
assurance of future compliance (Exh. M-16). Accordingly, it is
found that Respondent demonstrated good faith in attempting rapid
abatement. E. History of Previous Violations
Respondent had no previous violations for which assessments
had been paid as of the dates of the violations involved in these
proceedings (Exh. M-10). Accordingly, Respondent has no history
of previous violations cognizable in these proceedings. Peggs Run
Coal Company, 5 IBMA 144, 82 I.D. 445, 1975-1976 OSHD par. 20,001
(1975). F. Size of the Operator's Business
Respondent is rated as a medium-size operator based upon the
number of annual man-hours worked. G. Effect of a Civil Penalty
on Respondent's Ability to Remain in Business
In Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973
OSHD par. 15,380 (1972), the Commission's predecessor, the
Interior Board of Mine Operations Appeals, held that evidence
relating to the issue as to whether a civil penalty will affect
the operator's ability to remain in business is within the
operator's control, resulting in a rebuttable presumption that
the operator's ability to continue in business will not be
affected by the assessment of a civil penalty. The parties
stipulated in these proceedings that assessment of the civil
penalties proposed by the Office of Assessments will not affect
Respondent's ability to remain in business (Tr. 20-21). The
proposed assessments are identified as follows:

 Citation No.      Date 30 C.F.R. Standard    ¢$C4¢$Proposed

Assessment

$ 94602 3/20/78 56.12-71 $1,150 94601 3/20/78
50.10 122 93262 4/20/78 56.20-11 255

Accordingly, the question presented is whether Respondent has
sustained its burden of proof by establishing that assessment of
an otherwise appropriate civil penalty in an amount greater than
that proposed by the Office of Assessments will adversely affect
its ability to remain in business.
The sole evidence presented on this point was the testimony
of Mr. William Miranda Marin, vice president and treasurer of
Respondent, and the posthearing receipt in evidence of certified
copies of Respondent's 1977 and 1978 Commonwealth of Puerto Rico
tax returns, denominated Exhibits O-8 and O-9, respectively.

Page 19

~2618
A careful review of this evidence does not indicate that the
civil penalty ultimately assessed in these proceedings would have
an effect upon the Respondent's ability to remain in business.
VI. Conclusions of Law
1. San Juan Cement Company, Inc., and its Cantera Espinosa
Mine have been subject to the provisions of the 1977 Mine Act at
all times relevant to these proceedings.
2. Under the 1977 Mine Act, the Administrative Law Judge
has jurisdiction over the subject matter of, and the parties to,
these proceedings.
3. Federal mine inspectors Pedro Sarkis and Juan Perez were
duly authorized representatives the Secretary of Labor at all
times relevant to these proceedings.
4. The oral determination made at the hearing denying
Respondent's motion to dismiss is AFFIRMED.
5. The violations charged in the three subject citations
are found to have occurred as alleged.
6. All of the conclusions of law set forth in Part V of
this decision are reaffirmed and incorporated herein. VII.
Proposed Findings of Fact and Conclusions of Law
Petitioner submitted a posthearing brief and proposed
findings of fact and conclusions of law. Additionally, both
parties set forth arguments on the record during the hearing.
Such brief and arguments, insofar as they can be considered to
have contained proposed findings and conclusions, have been
considered fully, and except to the extent that such findings and
conclusions have been expressly or impliedly affirmed in this
decision, they are rejected on the ground that they are, in whole
or in part, contrary to the facts and law or because they are
immaterial to the decision in these cases. VIII. Penalty
Assessed
Upon consideration of the entire record in these cases and
the foregoing findings of fact and conclusions of law, I find
that the assessment of penalties is warranted as follows: A.
Docket No. BARB 79-222-PM

    Citation No.   Date 30 C.F.R. Standard   Penalty

$ 94602 3/20/78 56.12-71 $2,000

B. Docket No. BARB 79-283-PM

    Citation No.   Date ¢$C3¢$30 C.F.R. Standard Penalty

$ 94601 3/20/78 50.10 $ 85 93262 4/20/78
56.20-11 $3,000

ORDER
1. The oral determination made at the hearing denying
Respondent's motion to dismiss is AFFIRMED.
2. Respondent is ORDERED to pay civil penalties in the
amount of $5,085 within 30 days of the date of this decision.
John F. Cook
Administrative Law Judge
1 The testimony of Mr. David Cintron reveals that
electrocution could have occurred absent physical contact with

Page 20

the powerline. According to Mr. Cinton, high voltage electricity
will jump, or arc, on air. Arcing on air depends upon such
atmospheric conditions as humidity, rain or temperature.
Experiments have established that under normal conditions,
38,000-volt, phase-to-phase, electricity can arc 12 to 18 inches
on air. The National Electric Code specifies that it is safe for
a man to work 36 inches or more from a 38,000-volt line under
standard atmospheric conditions. The 36-inch figure contains a
built in safety factor (Tr. 433-434).
2 The Federal Mine Safety and Health Amendments Act of 1977
(Amendments Act) was signed into law by President Carter on
November 9, 1977. Pursuant to section 307 of the Amendments Act,
all provisions of the 1977 Mine Act relevant to these proceedings
became effective on March 8, 1978. The Amendments Act repealed
the Metal-Nonmental Act, but all mandatory standards relating to
mines issued under the Metal-Nonmetal Act, in effect on the date
of enactment of the Amendments Act, remain in effect as mandatory
standards under the 1977 Mine Act until such time as new or
revised standards are issued by the Secretary of Labor. See
sections 301(b)(1) and 306(a) of the Amendments Act.