Cactus Canyon Quarries of Texas, Inc.

Plain-English summary

Cactus Canyon Quarries operated a small marble, granite, and quartz facility in Texas. The judge considered six citations involving housekeeping, protective footwear, electrical wiring, handrails, shared drinking cups, and annual grounding tests. One electrical citation was dismissed because a porcelain bushing was present, while the other five citations were affirmed as modified. The judge assessed a total civil penalty of $1,416.00.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.20003(a), 56.15003, 56.12008, 56.11002, 56.20002(b), and 56.12028
• Outcome: Citation No. 7881520 was dismissed. Citation Nos. 7881518, 7881519, 7881521, 7881522, and 7881523 were affirmed as modified. The penalty was $1,416.00.
• Key point: The Secretary must prove the cited condition, and inspector opinions about ordinary safety risks and negligence may be admitted as lay testimony when based on personal observations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       OFFICE OF ADMINISTRATIVE LAW JUDGES
                                2 SKYLINE, Suite 1000
                                5203 LEESBURG PIKE
                           FALLS CHURCH, VIRGINIA 22041

                                      March 9, 2001

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2000-118-M
Petitioner : A. C. No. 41-00009-05548
v. :
: Fairland Plant & Quarries
CACTUS CANYON QUARRIES OF :
TEXAS, INC., :
Respondent :

                                       DECISION

Appearances: Sheryl L. Vieyra, Esq., Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas, for Petitioner;
Andy Carson, Esq., Marble Falls, Texas, for Respondent.

Before: Judge Zielinski

    This case is before me on a Petition for Assessment of Civil Penalties filed by the

Secretary of Labor against Cactus Canyon Quarries of Texas, Inc., pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977 (the "Act"). 30 U.S.C. § 815. The petition alleges
six violations of the Secretary’s mandatory health and safety standards and proposes civil
penalties totaling $2,686.00. A hearing was held in Burnett, Texas on November 30, 2000. The
parties submitted post-hearing briefs following receipt of the hearing transcript. For the reasons
set forth below, I vacate one citation, affirm five citations and assess penalties totaling
$1,416.00.

                             The Evidence & Findings of Fact

   Cactus Canyon’s Fairland Plant & Quarries is a small operation producing marble,

crushed granite and quartz in a variety of colors. Its primary customers are in the more artistic
market and quality control, to assure consistent color and sizing, is essential. It has a small,
experienced work force with very low employee turnover.

   On August 24 and 25, 1999, Danny Ray Ellis, an inspector employed by the Department

of Labor’s Mine Safety and Health Administration (MSHA), conducted an inspection of
Respondent’s Fairland Plant and Quarries. Inspector Ellis has been an MSHA inspector for nine
years and has numerous years of prior experience as a miner and in the mining industry. In the
course of the inspection he observed what he determined to be violations of the Secretary’s

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mandatory safety and health standards. Six citations issued by Ellis in the course of that
inspection are at issue here.

    As Ellis inspected the shop area, he observed what he perceived to be a violation of

30 C.F.R. § 56.20003(a) which requires that workplaces "be kept clean and orderly." He issued
Citation No. 7881518, and described his observations in the "Condition or Practice" section of
the citation as follows:

   The floor of the shop was not being kept clean and orderly. There were parts and
   pieces of metal laying on the shop floor. There were chains laying around the
   shop also there were pump parts on the floor. The area was very littered with old
   pieces of motors, crushers and machinery parts.

    He concluded that the conditions presented a trip and fall hazard and that an employee

who fell might sustain a sprain or fracture resulting in lost workdays or restricted duty. Because
there were clear walkways through the area, such that employees would not have to encounter
the obstacles unless they were trying to get a part, he concluded that it was unlikely that the
violation would result in an injury. He assessed the degree of operator negligence as moderate,
because the owner, Jack Carson, admitted that he was aware of the problem and had instructed
his employees to clean the area. The condition was abated the following day, by which time the
area had been cleaned.

   While in the shop Ellis also observed what he perceived to be a violation of 30 C.F.R.

§ 56.15003, which requires the wearing of protective footwear in areas "where a hazard exists
which could cause an injury to the feet." He issued Citation No. 7881519, and described his
observations in the "Condition or Practice" section of the citation as follows:

   There were two men working in the shop and they were not wearing protective
   footwear. The men were working on a backhoe and had to pick up and carry
   various parts or tools that if dropped would cause damage to their feet.

    Ellis was told by one of the men that they were replacing a relatively heavy part on the

backhoe, a starter or an alternator. He concluded that it was reasonably likely that a serious
injury, i.e., broken toes resulting in lost workdays or restricted duty, could result from the
violation and concluded that it was significant and substantial. While the owner stated that he
thought the men were wearing protective footwear, Ellis concluded that he should have known
of the violation had reasonable diligence been exercised. He classified the degree of operator
negligence as moderate, having given some credence to the owner’s statement. The violation
was promptly abated. The owner had all fourteen of his employees transported to a local store,
where protective footwear was purchased for them.

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   While inspecting the crusher, Ellis observed what he perceived to be a violation of

30 C.F.R. § 56.12008, which reads, in pertinent part:

   Power wires and cables shall be insulated adequately where they pass into or out
   of electrical compartments. Cables shall enter * * * electrical compartments only
   through proper fittings. When insulted wires, other than cables, pass through
   metal frames, the holes shall be substantially bushed with insulated bushings.

He issued Citation No. 7881520, and described his observations in the "Condition or Practice"
section of the citation as follows:

   The wires going into the junction box for the primary crusher were not properly
   bushed. The wires going into the bottom of the box were loose and could
   possibly be pulled out of the box. There were four wires going into a one inch
   hole.

    The hole was located on the bottom of the box, which was approximately at waist height.

He had bent over to look at the bottom of the box and did not see evidence of any bushing in the
hole. He did not open the box, however, because he is not allowed to open junction boxes when
the circuits are energized. He concluded that the condition presented an electrocution hazard and
that any resulting injury would likely be fatal, because the box was energized at 220 volts. 1
However, because he did not observe any broken or defective insulation on the wires, he
concluded that an injury was unlikely to occur. He rated the operator’s negligence as high
because approximately nine prior citations had been issued at the facility for the violations of the
same standard.

    Respondent established during its case that there was a porcelain bushing installed in the

opening of the junction box, through which the wires passed. Respondent introduced a picture
of the box taken a day or two following the inspection with the box’s door open and the bushing
clearly visible from the interior of the box. Carson also testified credibly that the box and
bushing had been in the same condition since 1983 and had not been cited during previous
inspections.

    At the crusher, Ellis observed what he perceived to be a violation of 30 C.F.R.

§ 56.11002, which requires that handrails be provided on "[c]rossovers, elevated walkways,
elevated ramps, and stairways. " He issued Citation No. 7881521 and described his observations
in the "Condition or Practice" section of the citation as follows:

   There were two sections of handrailing missing at the crusher at the #1 plant.


   1
             At the hearing he testified that the box was energized at 480 volts. However, his

notes, taken during the inspection, stated the voltage as 220 volts and Carson testified that 220
volts is the highest voltage used at the facility.

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   One section missing was where a person had to cross over the feed to the crusher.
   A person could fall into the crusher. The fall would be approximately 4 feet.
   The crusher could be running.

   The railing was missing on the walkway going down the steps on the side of the
   crusher. A person could fall approximately 3 feet into the crusher.

   A person works in the control booth and has to pass by a section without a
   handrail to get to the control booth.

The missing section of railing at the crossover left a gap of 24 inches. The missing piece would
have been attached with screws, but had been removed some undetermined amount of time prior
to the inspection. The other missing railing piece had been permanently attached and it did not
appear that it had been removed recently. He concluded that it was reasonably likely that an
injury would occur as a result of the violation and that the injury might be fatal. He classified
the violation as significant and substantial because he determined that the hazard contributed to
by the missing handrails was reasonably likely to result in a reasonably serious injury. Though
the owner disclaimed knowledge of the missing railings, Ellis classified the operator’s
negligence as moderate because he determined that in the exercise of reasonable diligence, the
problem should have been known and corrected.

    Carson testified that employees had removed the railing pieces to facilitate their clearing

of blockages at the opening of the crusher jaws, which were located approximately four feet
(horizontally) away from, and 1-1.5 feet lower than, the crossover. The opening to the crusher
jaws was 12 inches by 24 inches and was located at the end of the reciprocating feeder that
passed under the crossover. Occasionally rocks would clog the opening and Respondent’s
employees would stand on the crossover or the walkway, insert the hooked end of a bar into the
cluster of clogged rocks and then pull back, or lift, in order to dislodge the stoppage. The
employees did not like to lean over the railings and could get more leverage by removing them.
Carson also testified that the openings in the railings were relatively small, such that a person
could reach a railing from anywhere on the crossover or the walkway and that no employee has
ever been hurt by falling into the jaws of the crusher.

    After observing two men drinking from the same bottle at a water cooler, and the

absence of other containers available for men to drink from, Ellis issued Citation No. 7881522,
for a violation of 30 C.F.R. § 56.20002(b), which prohibits use of common drinking cups. He
concluded that it was unlikely that an injury would occur, because he was unable to determine
whether one of the men had a communicable disease or illness. The risk of injury presented was
of transmission of illness or disease, which he concluded might result in lost work days or
restricted duty. He rated the operator’s negligence as moderate because the violation should
have been known in the exercise of reasonable diligence. Carson had provided individual cups
to the men from time to time, had asked them to use them and thought that they were using
them. Ellis did not know why the two men were drinking from the same container on this
occasion, he did not know, for example, whether one of the men had simply temporarily

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misplaced his drinking container.

    On August 25, 1999, Ellis was examining Respondent’s records related to testing of the

electrical grounding system and observed that the last continuity and resistence test of the
grounding system had been performed on May 22, 1998, more than one year earlier. He issued
Citation No. 7881523 for a violation of 30 C.F.R. § 56.12028, which requires that such tests be
performed "annually." He testified that MSHA has consistently interpreted this and other
"annual" testing requirements to mean that no more than 365 days can elapse between tests.
Because he did not find any defects in the grounding system, he determined that it was unlikely
that an injury would occur as a result of the violation, but that if one did occur it would be fatal.
He rated the operator’s negligence as moderate because, even though Respondent had been cited
for violating this provision twice in the past, the owner had stated that he had requested that a
qualified electrician perform the test and Ellis knew that mine operators in the area had a
difficult time obtaining the services of a qualified electrician.

                              Conclusions of Law and Fact

Respondent’s Objection to Inspector’s Testimony on Gravity and Negligence

     Respondent objected to portions of exhibits and related testimony as to the gravity of the

alleged violations and the extent of Respondent’s negligence, contending that such evidence was
expert opinion and, therefore, was barred by a prehearing order precluding the Secretary from
offering expert testimony, within the meaning of Rule 702, Fed. R. Evid. 2 The objection was
overruled, subject to further briefing on whether specific testimony constituted expert testimony.
For the reasons set forth below, I conclude that the disputed evidence is more properly
characterized as lay rather than expert opinion and was not precluded by the order. Alternatively,
if the disputed evidence was deemed to be expert opinion under Rule 702, I would reconsider the
prehearing order and hold that the evidence was properly admitted.

   Respondent contends, specifically, that the degree of operator’s negligence and various

aspects of the gravity of a potential violation, i.e., the likelihood and seriousness of an injury

   2
                    Prior to the hearing, Respondent filed a motion entitled, "Motion to

Exclude Testimony of Government Experts." The grounds for the motion were that the
Secretary had failed to respond to discovery requests directed at potential expert testimony,
stating that she did not intend to call any expert witnesses. Respondent contended that
anticipated evidence on the issues of gravity and negligence amounted to expert opinion and that
the Secretary’s failure to provide substantive responses to its discovery requests justified
precluding such testimony. By order dated November 17, 2000, Respondent’s motion was
denied to the extent that it sought to preclude otherwise admissible lay testimony, but was
granted as to possible expert testimony. Absent good cause, the Secretary was "precluded from
offering expert testimony, within the meaning of Fed. R. Evid. 702."

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resulting from the violation, are matters provable only by expert testimony within the meaning
of Rule 702. With respect to Citation No. 7881519, for example, Respondent contends that
Ellis’ conclusions, 1) that an injury was "Reasonably Likely" to occur as a result of miners’
failure to wear protective footwear when handling machine parts and tools, 2) that an injury
would be severe enough to result in "Lost Workdays or Restricted Duty", 3) that the violation
was "Significant and Substantial" because there was a reasonable likelihood that the hazard
contributed to would result in an injury or illness of a reasonably serious nature, and 4) that the
degree of the operator’s negligence was "Moderate", are matters of expert testimony that should
have been precluded under the pre-hearing order.

    Ellis’ conclusions were based upon his observations of two miners working in

Respondent’s shop area who were not wearing hard-toed boots. In response to his questions, one
of the men told him that they were engaged in replacing a part, a starter or a generator, on a
backhoe. Ellis concluded that men wearing soft-toed boots handling a heavy part, like an
alternator or generator, or tools that would be used in the process of replacing one, might drop
the part or tools on their, or a fellow employee’s, foot and that broken bones might be the result.
He determined that the failure to wear hard-toed boots presented a hazard, that an injury would
be reasonably likely to occur, that it would result in lost time or restricted duty and would be of
a reasonably serious nature. He also determined that Respondent’s management, in the exercise
of reasonable diligence, should have known of the condition. He accepted the owner’s
mitigating explanation that he thought that protective footwear was being worn, and assessed the
degree of negligence as "moderate."

   Rule 701, Fed. R. Evid., deals with opinion testimony by lay witnesses and, at the time of

the hearing in this case, read as follows:3

             If the witness is not testifying as an expert, the witness’ testimony in the
    form of opinions or inferences is limited to those opinions or inferences which are
    (a) rationally based on the perception of the witness and (b) helpful to a clear
    understanding of the witness’ testimony or the determination of a fact in issue.

   Asplundh Mfg. Div. v. Benton Harbor Eng’g., 57 F.3d 1190 (3d Cir. 1995), cited in the

Advisory Committee Notes to the 2000 Amendment of Rule 701, Fed. R. Evid., is a very
informative case on the distinction between lay and expert testimony. As noted in Asplundh,
Rule 701 has been applied by the courts to permit lay persons to express opinions that go beyond
shorthand statements of fact, so long as the personal knowledge, rational basis, and helpfulness
standards of the Rule are met. The cases "are arrayed along a spectrum, ranging from what
might be described as modest departures from the core area of lay opinion testimony . . . to those

    3
             Rule 701 was amended, effective December 1, 2000, the day following the hearing

in this case, to add a third qualification “(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.”

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which approach the ambit of Rule 702 expert opinion." Id. At 1198. The conclusions or
opinions at issue here would be representative of those in cases at the end of the spectrum
furthest from the ambit of Rule 702. See discussion and cases cited in Asplundh, 57 F3d. at
1198-99.

    Conclusions as to the general likelihood and seriousness of injuries and operator

negligence that Ellis formed in the performance of his duty as he personally observed what he
believed to be violations of mandatory safety standards are not opinions based upon scientific,
technical, or other specialized knowledge within the scope of Rule 702. They are not opinions
on complex issues, such as whether a particular injury or illness was caused by a particular
negligent act. They are merely general conclusions about the risk that an injury may occur, what
types of injuries may be reasonably anticipated, and the degree of operator culpability. These
types of conclusions result "from a process of reasoning familiar in everyday life" not from one
that "can be mastered only by specialists in the field." State v. Brown, 836 S.W.2d 530, 549
(1992), also cited in the Advisory Committee Notes. Ellis’ conclusions were clearly lay, rather
than expert, opinion. See, Wilburn v Maritrans GP Inc., 139 F.3d 350, 359-60 (3d Cir. 1998)
(expert testimony not required for jury to conclude that certain actions under conditions
presented would negligently expose plaintiff to injury); Eckert v. Aliquippa & Southern Railroad
Co., 828 F.2d 183, 185 n. 5 (3d Cir. 1987) (plaintiff with thirty years experience and familiarity
with railroad procedures allowed to offer lay opinion on likelihood that injuries would have
occurred had railroad cars been properly coupled); Hulmes v. Honda Motor Co., Ltd.,
960 F.Supp. 844, 859-60 (D.N.J. 1997), aff’d. 141 F.3d 1154, cert. denied, 119 S.Ct. 49 (police
officer’s testimony, based upon post-accident investigation, that vehicle was traveling over
posted speed limit and that accident resulted from driver inattention, admitted as lay opinion).

     This conclusion is entirely consistent with settled Commission precedent that the

judgement of an MSHA inspector "is an "important element" in making significant and
substantial findings. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998);
Mathies Coal Co., 6 FMSHRC 1, 5 (Jan. 1984); Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822-825-26 (Apr. 1981); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1999)
(inspector’s opinion alone sufficient to support "common sense conclusion that a fire burning in
an underground coal mine would present a serious risk of smoke and gas inhalation to miners").
While the inspectors, who generally have considerable experience in the mining industry,
possess specialized experience and training, the nature of their testimony as to gravity and
negligence issues results from a "process of reasoning familiar in everyday life"4, like the
"common sense" conclusion referenced in Buck Creek. As the Advisory Committee Notes make
clear, the Federal Rules of Evidence do not "distinguish between expert and lay witnesses, but
rather between expert and lay testimony."
The testimony at issue here was clearly lay opinion testimony and was not precluded by
the prehearing order. Even if the disputed evidence was deemed to be more properly classified
as expert opinion under Rule 702, it was properly admitted. The prehearing order was not

   4
           State v. Brown, supra.

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intended to establish a rule of admissibility more restrictive than should have been applied in this
administrative proceeding.

           The complicated rules of evidence applicable to judicial trials were
   designed to govern decisionmaking by juries. They are premised on the belief
   that lay jurors are likely to misuse large categories of relevant evidence if they
   become aware of that evidence. Whether or not the [Federal Rules of Evidence]
   are well-suited to that purpose, they are totally inappropriate for application either
   to agency adjudications or to judge-tried cases. . . . .

II Davis and Pierce, Administrative Law Treatise 118 (3rd ed.).

    The Commission, like most federal agencies, operates under a far more relaxed standard

for the admission of evidence. Commission Procedural Rule 63(a), 29 C.F.R. § 2700.63(a),
provides that: "Relevant evidence, including hearsay evidence, that is not unduly repetitious or
cumulative is admissible." The Federal Rules of Evidence are referred to only for guidance.
Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1366 n. 8 (Dec. 2000) (Federal Rules
of Evidence "may have value by analogy," but are not required to be applied to Commission
hearings); In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1843 (Nov. 1995), aff’d, sub nom, Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d
1096 (D.C.Cir. 1998) (on issues of admissibility and crediting of expert testimony, Commission
is "guided by principles established under Rule 702 of the Federal Rules of Evidence").

    The disputed evidence was clearly relevant and was properly admitted. Moreover, baring

the evidence based upon a failure to provide discovery would have been an overly harsh
sanction here. Respondent was fully apprized of Inspector Ellis’ conclusions on the issues of
gravity and negligence because they were clearly itemized on the citations. Ellis had discussed
the citations with Respondent’s owner, who was aware that Ellis’ conclusions were formed as a
result of observations during the inspection, as guided by his general experience and training.
Respondent had determined not to depose Ellis to determine the precise basis for each of his
conclusions. It could hardly claim surprise or prejudice by the admission of Ellis’ testimony and
related exhibits.

Citation No’s. 7881518, 7881519 and 7881522.

    I find that Respondent violated the health and safety standards cited in the subject

violations and also find that the gravity and negligence of the violations was accurately assessed
by Inspector Ellis. Respondent’s only real defense to these citations was its evidentiary
challenge to what it claimed to be expert testimony on issues of gravity and negligence. Those
objections are without merit as discussed above. I also find that the violation charged in Citation
No. 7881519 was significant and substantial.

   A "significant and substantial" (S&S) violation is described in Section 104(d)(1) of the

Act as a violation "of such nature as could significantly and substantially contribute to the cause

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and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Nat’l Gypsum, supra, 3 FMSHRC at 825.

   In Mathies Coal, supra, 6 FMSHRC at 3-4, the Commission explained:

           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. (footnote omitted)

See also, Buck Creek Coal, Inc. v. MSHA, supra, 52 F.3d at 135; Austin Power, Inc. v.
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g, Austin Power, Inc., 9 FMSHRC 2015,
2021 (December 1987) (approving Mathies criteria).

    In U.S. Steel Mining Co., 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., Inc.,
   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 Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co.,
   Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

    This evaluation is made in terms of "continued normal mining operations." U.S. Steel

Mining Co., Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
significant and substantial must be based on the particular facts surrounding the violation.
Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC
1007 (December 1987).

    There can be little question that the violation contributed to a discrete safety hazard, the

potential that any dropped or falling machine part or tool could land on unprotected feet causing
injury. The more serious of the injuries likely to result, broken bones, is easily classified as
reasonably serious. The circumstances of the violation also made it reasonably likely that the
hazard contributed to would result in a reasonably serious injury. The two men were working in
relatively close proximity and would have been handling machine parts and tools with some
frequency. It is reasonably likely that one of them would drop a part or tool, or that a loose part

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or tool would fall, and strike one of their feet and that a broken bone, or bones, would result.

Citation No. 7881520

    I find that Respondent did not commit the violation charged in Citation No. 7881520.

The citation was issued because Inspector Ellis did not observe an insulated bushing in the
junction box hole when he bent over to look at the bottom of the box. In fact there was a
porcelain bushing in the hole through which the wires passed. There was also some testimony
that a proper fitting should have included a clamp for the wires. However, the source of that
requirement was never explained, and it appears that the standard’s reference to "proper fittings"
applies only to cables not wires.5 I find that there was a substantial insulated bushing in the
hole through which the wires passed and that the Secretary has not carried her burden on this
citation.

Citation No. 7881523

    Respondent’s defense specific to this citation is that the Secretary’s interpretation of the

requirement that grounding and continuity tests be performed "annually" as requiring that no
more than 365 days elapse between tests is unreasonable. The correct interpretation, according
to Respondent is that the standard would be satisfied if the test is performed at any time in each
calendar year. Any ambiguity in the term "annually" was apparently addressed by the Secretary
long ago. I accept Inspector Ellis’ testimony that the Secretary’s interpretation is taught to
inspectors at MSHA’s training academy and that other similar standards are interpreted and
enforced in the same manner. As he explained, Respondent’s interpretation would permit
deferring the test for almost two years. The Secretary’s interpretation of this, and apparently
other similar standards, appears to be well-settled, is a reasonable interpretation of the regulatory
provision consistent with the purposes of the Act, and is entitled to deference. See, e.g., Kerr-
McGee Coal Corp. v. FMSHRC, 40 F.3d 1257, 1261-62 (D.C.Cir. 1994), cert. denied, 115 S.Ct.
2611 (1995); Island Creek Coal Co., 20 FMSHRC 14, 18-19 (Jan. 1998).

    I find that Respondent violated the standard as alleged and that the assessment of gravity

issues made by Inspector Ellis were reasonable. I disagree with his assessment of "moderate"
negligence, however. It is uncontested that mine operators in the area have considerable
difficulty securing the services of qualified electricians to perform such tests. I accept Carson’s
testimony that he had ordered the test previously and that the test was overdue by only a little
over two months. Under the circumstances, I assess the operator’s degree of negligence as
"low."

   5
            The applicable standard appears to address two types of electrical conductors,

"wires" and "cables," establishing somewhat different requirements for each. Though Inspector
Ellis referred to the conductors as cables, he also referred to them as wires and both his notes
and the citation itself refer to them as wires.

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Citation No. 7881521

    I find that Respondent violated 30 C.F.R. § 56.11002 as charged in this citation and that

the violation was significant and substantial. The standard clearly requires that handrails be
provided on these elevated walkways. Parts of the handrails that satisfied the standard had been
deliberately removed. While the resulting openings were not large, they created a risk of falling
three to four feet for anyone traveling the walkways. Respondent’s point that a person could still
reach a handrail from anywhere on the walkways does not diminish the violation. The safety
enhancement provided by handrails goes considerably beyond providing a secure handhold for
someone deliberately seeking to steady himself. It also acts to prevent inadvertent movement of
a person’s body from the walkway and a secure place to grab in the event of an unanticipated
slip. The missing portions of handrail clearly contributed to the hazard of falling from the
walkways. It was also reasonably likely that an injury would result, i.e., that a fall would occur,
and that an injury resulting from a fall of three to four feet would be reasonably serious.
Consequently, the violation was significant and substantial. I disagree with Inspector Ellis in
only one respect. I find that the possibility of a fatal injury was so remote as to reduce the
gravity of the offense. Ellis’ assessment was premised upon someone falling into the 12" by 24"
opening of the crusher while it was operating. That opening, however, was some four feet away
from the crossover walkway and, if the crusher was operating, would have been filled with
rocks. While it might be possible that a person falling from the crossover or the side walkway
would encounter the opening and rocks for a sufficient length of time to suffer injury from the
crusher, that prospect appears quite remote. The type of injury that could be reasonably likely to
occur could reasonably be expected to result in no more than lost work days or restricted duty.

                               The Appropriate Penalties

    As noted above, Respondent is a small operator. Respondent’s history of violations was

reflected in an Assessed Violation History Report, referred to as an "R-7." The report had been
prepared shortly before the hearing.6 That report and the assessment sheet reflect that in the 24
months preceding the subject inspection that Respondent’s operation had been inspected on 17
days and that 41 citations had been written. Findings on the gravity and negligence associated
with each sustained citations are also noted above.

   6
             Respondent objected to admission of the report on grounds that it was produced

for the first time at the hearing and had not been properly authenticated. The report, Petitioner’s
exhibit “P-12", bore the certification of the custodian of such records, the Assistant Director of
Assessments for MSHA’s Civil Penalty Compliance Office, dated November 28, 2000, two days
prior to the hearing. While the report was produced to Respondent on short notice, it was
produced as soon as it was available and at least some of the information would have been
available to Respondent upon request. Respondent has not identified any inaccuracies in the
report in its post-hearing briefs. The certified report was properly admitted over Respondent’s
objection. As noted, supra, under Commission rules of procedure, all relevant evidence, including
hearsay, is admissible.

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    Upon consideration of the factors itemized in § 100(i) of the Act, I impose the following

penalties, which are appropriate to the size of Respondent’s business. As to Citation No.
7881518, I assess a penalty of $224.00, the penalty proposed by the Secretary. As to Citation
No. 7881522, I assess a penalty of $242.00, the penalty proposed by the Secretary. As to
Citation No. 7881519, I assess a penalty of $200.00, a reduction of the proposed penalty of
$294.00, because Respondent’s abatement effort substantially exceeded its obligations. As to
Citation No. 7881521, I assess a penalty of $450.00, a reduction from the proposed penalty of
$655.00, because of the reduced severity of the reasonably likely injury. As to Citation No.
7881523, I assess a penalty of $300.00, a reduction from the proposed penalty of $399.00,
because of the lower degree of negligence.

Financial Hardship

     Respondent contends that imposition of the proposed penalties totaling $2,686.00 would

result in financial hardship. Carson testified that neither he nor Respondent’s representative
have drawn a salary from Respondent’s operation in years and that he deferred purchasing a used
fork lift truck because of the pending assessment of penalties for the citations at issue.
Respondent’s gross sales range from approximately $500,000.00 in a "bad" year to $900,000 in a
"good" year. Sales in 1998, the last year for which sales figures were available, were
approximately $890,000.00. While Respondent has paid some past penalties on an installment
basis, it did not approach MSHA seeking a reduction in the proposed penalties on the basis of
financial hardship.

    While Respondent asserts, in essence, that imposition of the proposed penalties would

result in financial hardship, it does not directly claim, and did not introduce any evidence, that
imposition of those penalties would threaten its ability to remain in business. In fact, the only
impact upon Respondent’s operations described by Carson was the deferral of the purchase of a
piece of equipment. Respondent’s evidence and arguments fall far short of demonstrating that
either the proposed penalties or the reduced penalties imposed above would threaten its ability to
remain in business. Broken Hill Mining Co, 19 FMSHRC 673 (April 1997); Spurlock Mining
Co., 16 FMSHRC 697 (April 1994).

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                                        ORDER

  Based upon the foregoing, Citation numbered 7881520 is Dismissed. Citations

numbered 7881518, 7881519, 7881521, 7881522 and 7881523 are affirmed, as modified, and
Respondent is ordered to pay a civil penalty of $1,416.00 within 30 days.

                                         Michael E. Zielinski
                                         Administrative Law Judge

Distribution:

Sheryl L. Vieyra, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202 (Certified Mail)

Jack Carson, Andy Carson, Esq., Cactus Canyon Quarries, 7232 County Road 120,
Marble Falls, TX 78654 (Certified Mail)

/mh

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