Drum Sand & Gravel, Inc.

Plain-English summary

MSHA issued nine citations at Drum Sand & Gravel's small Arkansas mine and proposed $13,750 in penalties. Judge Jeffrey Tureck vacated the opaque-loader-window citation because the Secretary did not prove that the remaining opening impaired safe visibility, and he vacated the track-hoe alarm citation because the idle equipment was not scheduled for use. He also vacated two hearing-conservation citations because MSHA had no evidence that the miners exceeded the noise action level before the inspection, and the operator enrolled them promptly once testing showed the exposure. The judge upheld but reduced the remaining citations involving an unchocked loader, a missing no-smoking sign, uncovered gas-cylinder valves, a failed loader horn, and overdue refresher training. He lowered gravity, negligence, or S&S findings where the evidence did not support MSHA's original designations. Total penalties were reduced to $1,375.30.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14207, 56.4101, 56.16006, 56.14132(a), 56.14103(c)(2), 56.14132(b)(1)(i), 62.120, and 46.8(a)(2)
• Outcome: Four citations were vacated, five were modified, and total penalties were reduced to $1,375.30.
• Key point: MSHA had to prove each cited condition under the standard actually charged, and inspection-day evidence alone did not establish earlier noise-program violations.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

April 5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

DRUM SAND & GRAVEL, INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. CENT 2010-931-M

A.C. No. 03-01773-000221607

Docket No. CENT 2011-93-M

A.C. No. 03-01773-000234194

Mine: Drum Sand & Gravel, Inc.

DECISION

Appearances:              For the Secretary: Pamela F. Mucklow, Esq., Denver, CO

For the Respondent: Kent Tester, Esq., Clinton, AR

Before:                        Judge Tureck

These cases are before me on two Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Drum Sand & Gravel, Inc. (“Respondent”), pursuant to Sections 105 and 110
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”).
The first, filed on November 18, 2010, was docketed as CENT 2010-931-M. It alleges eight
violations of the Mine Act and assessed $10,150 in penalties. The second, filed on April 21,
2011, was docketed as CENT 2011-93-M. It alleges a single violation of the Mine Act and
assessed a penalty of $3,600. Respondent contends that four of the citations should be vacated
and the penalties reduced in the other five.  On motion by the Secretary, the two cases were consolidated for hearing and decision. A
formal hearing was held in Memphis, Tennessee on January 31 and February 1, 2012. At the
hearing, Government Exhibits 1-22, 17-A and 18-A, and Respondent’s Exhibits 1 and 2, were
admitted into evidence,

and each party provided testamentary evidence. Both parties then filed
post-hearing briefs, the last of which was received on May 25, 2012.

Findings of Fact and Conclusions of Law

Respondent operates a sand and gravel mine in Harrisburg, Arkansas. At the time of the
hearing, five people worked at the mine, including the company’s owner and president, Jeff
Drum, and its office manager and health and safety coordinator, Tiffany Manuel. Seven people,
including Drum and Manuel, worked at the mine at the time of the inspection. TR2 6, 91-92.

MSHA conducted an inspection of the Mine over three days, from April 19-21, 2010.
The inspection was conducted by Steve Medlin, who had been a mine inspector for MSHA since
August, 2002. He arrived at the Mine at about 11:00 a.m. on April 19th, where he met Ms.
Manuel. Manuel had just started working for Respondent that morning. Medlin had inspected
the Mine before, so he knew who was in charge. TR1 28. He asked to see Mr. Drum, but he was
not at the Mine. He then asked to see Tony Ezel, who was the mine foreman. TR1 26-27. So
Manuel called Ezel, who met Medlin at the scale house, and Medlin began his inspection by
driving around the entire mine with Ezel for about an hour in the mine’s pick-up truck. TR1
127-28. Medlin issued Citations 6568738 through 6567843 on April 19th; he issued Citations
6567844 through 6567846 on April 20th. He returned to the Mine on April 21st to go over the
paperwork and to have a close out conference. TR1 62.

The nine citations issued by Medlin will be addressed seriatim.

CENT 2011-93-M

Citation 6567840

This citation alleges a violation of 30 C.F.R. §56.14207,

which requires the wheels of
unattended vehicles to be chocked or turned into a bank when parked on a grade. The vehicle in
question was a front-end loader. The citation states that injury is unlikely, but could reasonably
be expected to be fatal; the violation is not significant and substantial (hereafter “S&S”); one
person would be affected; negligence was high, and the violation was immediately terminated by
chocking the wheels. Respondent was assessed a penalty of $3600 as a special assessment
pursuant to §100.5(a) for this violation.

Respondent does not contest the occurrence of the violation, but contends that the penalty
is excessive. Respondent alleges that its negligence was moderate, not high, and the gravity of
the violation was low. It contends that the penalty should be based on a determination of 74
penalty points rather than 104 which, under the penalty conversion table found at §100.3(g),
would reduce the penalty to $343. However, the penalty, as a special assessment, was not based
on the penalty conversion table. Rather, it was based on MSHA’s determination that the
violation was serious and Respondent’s negligence high.

I find the imposition of a $3,600 penalty here puzzling even though §56.14207 is one of
the Rules to Live By. The citation states that an injury was unlikely. In fact, there was no
likelihood of an injury. The front-end loader’s bucket was on the ground, the parking brake was
set, and the grade on which the loader was parked was only two percent. GX 1-3; TR1 47, 53.
Further, Medlin had the loader moved to the steepest grade at the Mine that the loader traveled
and had it parked there with a full load, and the parking brake held. TR1 53, 66-69. Also, the
bucket and the back left wheel of the loader may have been parked in the gravel (TR2 28-29),
which would have impeded the loader’s movement.

Moreover, the violation was found to be not S&S.

Nevertheless, that §56.14207 is one of the Rules to Live By is material. MSHA places
great emphasis on violations of these rules, since they account for a large percentage of miners’
deaths. TR1 50-51. Due to the emphasis MSHA places on the Rules to Live By, it would be
difficult to believe that Respondent was unaware of them. Accordingly, I agree with the
Secretary that Respondent’s negligence in not chocking the wheels of the loader was high. I also
agree that an injury caused by the loader if it rolled down the grade could be fatal. But since in
this case there was no likelihood of injury, that an injury from a violation of §56.14207 could be
a fatality has little application here.

Based on the above, I find that a penalty of $500 is appropriate for the violation of
§56.14207 in this case.  

CENT 2010-931-M

Citation 6567838

This citation alleges a violation of §56.4101, which requires warning signs prohibiting
smoking and open flames to be posted where fire or explosive hazards exist. Specifically, it is
alleged that Respondent did not have a warning sign prohibiting smoking or an open flame
posted in the immediate vicinity where oxygen and acetylene tanks were stored. The citation
states that injury is reasonably likely and could reasonably be expected to be lost workdays or
restricted duty; the violation is S&S; one person would be affected; negligence was high; and the
violation was immediately terminated by the posting of a warning sign. MSHA assessed a
penalty of $2,106 for this violation based on assigning 98 penalty points for the violation and
giving Respondent a ten percent reduction for good faith.

Respondent has not challenged MSHA’s contention that these tanks could present fire
and explosion hazards. Respondent also concedes that there was no warning sign in the vicinity
of the area where the tanks were stored when Medlin was conducting the inspection of the Mine.
However, Respondent contends that one was posted as late as the morning of the inspection, and
cannot explain when or how it disappeared. TR2 31, 71. Medlin agreed that there had been a
warning sign on his previous inspections of the Mine. TR1 94-97. Further, MSHA concedes
that there was an area outside the scale house that had been set aside by Respondent for smoking.
It was about 38 feet from the tanks (TR2 31) and did not present a hazard; in fact, Medlin used to
smoke there. TR1 85, 105. There would have been no reason for someone to smoke closer to the
tanks. Apropos of this, Medlin took three photographs in regard to this citation. Two show the
smoking area by the scale house, one of which is a close-up showing about two dozen cigarette
butts. GX 7, 8. The third is of the tanks and the surrounding area. GX 5. Although Medlin
contends that he saw a cigarette butt as close as ten feet to the tanks, in this photograph no butts
are visible.

Why Medlin took photographs showing cigarette butts in an area where there is no
contention that smoking was unsafe, but failed to take a photograph of the one butt it is
contended caused a hazard, is inexplicable. Even if there was a single butt as close as ten feet to
the tanks, it would not prove that people were smoking there. There are undoubtedly many
possible explanations for finding a single butt ten feet from the tanks even if no one was smoking
there, a likely one being that it blew over from the smoking area. There is no credible evidence
that anyone smoked nearer to the tanks than 38 feet, and the Secretary agrees that smoking that
far from the tanks was not hazardous.

Although the citation contends that an injury was reasonably likely due to the absence of
a warning sign near the tanks, I find that an injury was unlikely. Since there was a designated
smoking area only about 38 feet from the tanks which, judging from the number of cigarette butts
in the area, was used regularly, there would have been no reason for anyone to smoke close
enough to the tanks to create a hazard. The absence of cigarette butts near the tanks is evidence
that smoking did not occur there. Further, I find Respondent’s negligence to have been
moderate, not high. High negligence requires an absence of mitigating circumstances, but there
are mitigating circumstances here. Medlin testified that a warning sign had been present in his
previous inspections of the Mine. In addition, I believe that Respondent was unaware that
warning sign was missing.

Reducing the gravity of the violation from reasonably likely to unlikely reduces the
gravity points from 30 to 10. Reducing the negligence from high to moderate lowers the penalty
points from 35 to 20. A reduction of 35 points from the 98 calculated by MSHA leaves 63
penalty points. Under the penalty conversion table, 63 points equates with a penalty of $142.
When reduced by ten percent for good faith, as MSHA did for each citation other than Citation
6567838, the resulting penalty equals $127.80.

Finally, I find that this violation was not S&S. 30 U.S.C. § 814(d)(1) provides: 

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been
a violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of a nature as could
significantly and substantially contribute to the cause and effect of
a coal or other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety standards, he shall
include such finding in any citation given to the operator under this
[Act].

The Commission and several courts of appeals have agreed that four conditions must be
met to find that a violation is “significant and substantial”:

[T]he 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. Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4
(1984); see also, Austin Power, Inc. v. Secretary of Labor, 861
F.2d 99, 103 (5th Cir.1988); Consolidation Coal Co. v. Federal
Mine Safety and Health Review Comm'n, 824 F.2d 1071, 1075
(D.C.Cir.1987).

Here, the violation did not result in a safety hazard, and injury was unlikely because there is no
credible evidence that anyone smoked away from the designated smoking area. Accordingly, the
violation was not S&S. 

Citation 6567839

This citation alleges a violation of §56.16006, which requires that valves on
compressed gas cylinders be protected by covers when being transported. It states that oxygen
and acetylene tanks without guards on the valves were being transported in the bed of the plant
service truck (a pick-up truck). The citation further states that injury is reasonably likely and
could reasonably be expected to be fatal; the violation is S&S; one person would be affected;
negligence was moderate; and the violation was immediately terminated by installing guards
over the valves of the tanks.

Respondent states in its brief that it contests the likelihood of injury and the severity of
injury due to the violation, and argues that the penalty points should be reduced from 98 to 79,

lowering the penalty from the $2,106 assessed to $512. Resp.’s Brief at 5-6. It points out that
Medlin saw the oxygen and acetylene tanks in the bed of the pick-up truck as soon as Ezel drove
up to pick him up for the inspection (TR1 113), and there is no evidence Medlin did not notice
that the valves of the tanks were uncovered. Yet he rode in the truck with Ezel for at least an
hour during his inspection while there were no guards on the valves of the tanks. TR1 127-28.
Respondent contends that if an injury was likely as a result of the violation, Medlin would not
have ridden in the truck for an hour. That is a reasonable argument. Moreover, the evidence
establishes that the truck is not driven on public roads, considerably lessening the likelihood of
injury. However, if an injury was to occur, I accept Medlin’s testimony that the injury could be
fatal. TR1 114-18. Respondent did not present any evidence to the contrary.

Under these circumstances, I find that an injury was unlikely due to the violation,
although if an injury did occur it could be fatal. Moreover, the moderate negligence
determination by the inspector is reasonable, and Respondent has not challenged it.
Accordingly, the points for likelihood of injury should be reduced from 30 to 10, which leaves a
total of 78 points. The penalty for 78 points is $473. When reduced by ten percent for good
faith, the penalty becomes $425.70.

Finally, I find that this violation was not S&S, since it did not contribute to a discrete
safety hazard. Had this violation actually caused a hazardous condition, Medlin would not have
ridden in the truck with the uncovered tanks for an hour.

Citation 6567841

This citation alleges a violation of §56.14132(a), which requires manually operated
horns to be maintained in functional condition. The Secretary alleges that the horn on a front-end loader did not work. The citation states that injury was reasonably likely and could
reasonably be expected to be permanently disabling; the violation is S&S; one person would be
affected; negligence was moderate; and the violation was terminated within two hours. The
penalty was assessed at $946, based on 88 penalty points.

Respondent does not dispute that the horn failed to work during Medlin’s inspection.
But Ms. Manuel testified that the horn worked at the pre-shift examination that morning (TR2
94-97), and the Secretary does not contend otherwise. TR1 142. Although the Secretary argues
that negligence was moderate because the front-end loader operator should have known that the
horn was not working, the evidence does not suggest that the operator would have had a reason
to know that the horn was not working after the pre-shift examination. Medlin concedes that
the operator may not have needed to use the horn between the pre-shift examination and his
inspection. TR1 143. Under these conditions, I find that Respondent was not negligent in the
occurrence of this violation.

Respondent also argues that there was no likelihood of injury due to the violation
because there was a site awareness program in place and all of the miners communicated by
radio. Resp.’s Brief at 7. Respondent did not explain this contention, and I fail to see why either
of these factors would reduce the likelihood of injury.

Finally, I find that this violation was S&S. Although a vehicle’s horn is not needed
often, when it is needed - to warn another vehicle or a pedestrian of imminent danger - the horn
is an essential safety device. In those situations where a horn is needed, a non-functioning horn
clearly poses a discrete safety hazard which is reasonably likely to result in an injury; and since
a front-end loader is a large and heavy vehicle, that injury is likely to be serious. Therefore, the
requirements for an S&S violation are met.

Respondent contends that the penalty points determined by the Secretary should be
reduced from 88 to 53, with the assessed penalty accordingly reduced to $112. These reductions
are not explained, and the bases for these reductions are obscure. Reducing negligence from
moderate to none, as I have found, provides a reduction of 20 penalty points. Under the penalty
conversion table, 68 penalty points equates with a penalty of $212. With a ten percent reduction
for good faith, I impose a penalty of $190.80 for this violation.

Citation 6567842  

This citation alleges a violation of §56.14103(c)(2), which requires that mobile
equipment not be modified to obscure a driver’s visibility necessary for safe operation.
Specifically, it is alleged that the rear side window of a front-end loader has been removed and
the opening was covered in opaque white plastic. The citation states that injury was reasonably
likely and could reasonably be expected to be lost workdays or restricted duty; the violation is
S&S; one person would be affected; negligence was high; and the violation was terminated
within two hours. MSHA assessed a penalty of $2,341 for this violation based on 98 penalty
points. However, in her brief, the Secretary argues for the imposition of a $2500 penalty. She
contends that Medlin filled out the citation incorrectly, and meant to check “fatal” in box 10(b)
of the citation form rather than “lost workdays or restricted duty”. Sec’y’s Brief at 24 n.7.

The only evidence presented by the Secretary to support the violation is a photograph of
the side of the front-end loader showing plastic covering most of the window opening (GX 13)
and Medlin’s testimony of what he thinks can be deduced from this photo. The photograph
shows that the piece of plastic did not cover the entire window area. Somewhere between a
quarter and a third of the window opening from the bottom was uncovered. Respondent argues
that this photograph fails to show “exactly how obstructed the miner’s view was . . .” since it
was taken from outside the loader and not from the operator’s seat. Resp.’s Brief at 7; see also
TR1 154-55. Medlin conceded that a photograph from inside the cab of the loader would have
been more helpful in determining what the operator could see than the one he took from outside,
and that he had the opportunity to take such a photograph. TR1 168. Morever, the photograph
was not taken right away. Rather, by the time the photograph was taken the plastic had been
removed from the window. To show how the window appeared with the plastic covering in
place, Ezel is holding the plastic over the window opening. TR1 162-63. But it does not look
like Ezel is holding the plastic all the way to the top of the window opening, and the
unobstructed opening when the loader was operating may have been larger than the photograph
indicates. Medlin also admitted that it was possible that the operator would have been able to
reach the plastic and lift it while he is backing up if he was not operating the bucket at the time.
TR1 163-64. Further, Medlin did not measure the window opening or the part of the window
opening which was not obstructed, so precisely how much of the window opening was
unobstructed cannot be determined. TR1 150.

Section 56.14103(c)(2) is violated only if the obstruction to the driver’s visibility affects
the safe operation of the vehicle. In this respect, it is relevant that the cab of front-end loaders is
high off the ground. See GX 1-3, 13. To see other vehicles or pedestrians, the operator would
be looking down rather than at eye level. The photograph of the obstructed window opening of
the front-end loader indicates that the operator of the loader would have been able to look down
through the uncovered part of the opening to see other vehicles and pedestrians. Further, the
operator would have had full visibility to the right side of the loader through the door, and to the
rear through the rear window. Therefore, I find that the Secretary has failed to prove that the
operator’s vision was impaired in a way that would have affected the safe operation of the
loader. Accordingly, no violation of §56.14103(c)(2) occurred, and Citation 6767842 is
vacated.  

Citation 6567843

This citation alleges a violation of §56.14132(b)(1)(i), which requires mobile equipment
to have an automatic reverse-activated alarm signal when the operator has an obstructed view to
the rear. By motion dated January 10, 2012, the Secretary moved to amend this citation to plead
in the alternative a violation of §56.14132(a), which requires mobile equipment to have audible
warning devices maintained in functional condition. Without objection, the citation was
amended to plead a violation of this section of the regulations in the alternative.

The Secretary alleges that the reverse-activated alarm of a track hoe did not function.
The citation states that injury is unlikely and could reasonably be expected to be lost workdays
or restricted duty; the violation is not S&S; one person would be affected; negligence was high;
and the violation was terminated the following morning. A penalty of $425 was assessed for
this violation. Respondent argues that this citation should be vacated because the track hoe was
not in operation at the time of the inspection.

Section 56.14132(b)(1)(i) applies only when the operator of mobile equipment has an
obstructed view to the rear, and having an observer to signal when it is safe to back up can take
the place of an automatic reverse-activated signal alarm. It clearly applies only when the
equipment is in motion. Since the track hoe was not in motion during the inspection (TR1 180),
Respondent could not have violated this section of the regulations. As the Secretary obviously
realized in moving to amend the citation, §56.14132(a) is the section of the regulations
applicable to the facts in this case. This section is not dependent on the equipment actually
being in use at the moment; a violation occurs if the applicable warning devise is not in working
condition.

Medlin testified that he had Ezel check the auto-reverse alarm and it did not work. TR1
179, 184. Jeff Drum testified that sometime between a few days and a few weeks before the
inspection the track hoe had gotten stuck in deep mud in the pit. TR2 47-48; see also TR1 178-79. Ezel told Medlin that the alarm was probably full of mud. TR1 179. There is no evidence
that the track hoe had been used since it had gotten stuck in the mud. In fact, Medlin testified
that it had not been operated without the reverse alarm working. TR1 185. Medlin also
testified that Ezel would not have known the reverse-activated alarm was not functioning until
he had him test it during the inspection, presumably because the track hoe had not been used
since it got stuck in the mud. Id.

Despite the fact that the automatic reverse-activated signal alarm did not work when it
was tested, I hold that Respondent did not violate §56.14132(a). Section 56.14100(a) requires a
pre-shift examination of self-propelled mobile equipment before it is placed in operation on that
shift, and §56.14100(b) requires defects on such equipment to be corrected “in a timely manner
to prevent the creation of a hazard to persons.” Section 56.14132(a) must be interpreted with
these related regulations in mind. Since the track hoe was not going to be used on April 19th, a
pre-shift examination was not required. Further, since it was not going to be used, there was no
hazard to persons which had to be corrected at that time. Accordingly, since Respondent was
not required to conduct a pre-shift examination of the track hoe, and since no safety hazard was
going to be created, it would be inconsistent with §§56.14100(a) and (b) to hold that the failure
to maintain the automatic reverse-activated signal alarm on a piece of equipment which was not
going to be used could violate §56.14132(a). Holding otherwise would require mine operators
to conduct pre-shift examinations of each machine at a mine regardless of whether it was going
to be used during that shift, which not only would be inconsistent with §56.14100(a) but would
be onerous and serve no purpose. Therefore, this citation is vacated.

Citations 6567844 and 6567845

These citations allege a violation of §62.120, which states: “If during any work shift a
miner’s noise exposure equals or exceeds the action level the mine operator must enroll the
miner in a hearing conservation program . . . .” The citations allege that noise samples were
taken on April 20th of a utility worker (Ezel) and front end loader operator (Pablo Martinez),
respectively, that exceeded the action level (see §62.101), but the miners were not enrolled in a
hearing conservation program. The citations state that injury is reasonably likely and could
reasonably be expected to be permanently disabling; the violations are S&S; one person would
be affected by each violation; negligence was moderate; and the citations were terminated on
May 17, 2010. However, during his testimony, Medlin stated that he made a mistake in listing
the likelihood of injury as reasonably likely. TR1 201. He should have listed injury as unlikely,
according to the citation writing handbook. TR1 199. He testified that the assumption is that if
the action level is exceeded, the miners would be enrolled in a hearing conservation program,
which would prevent a hearing loss. TR1 200-01. He also testified that these violations were
not S&S. TR1 207.

It is Respondent’s position that no violations occurred since they were not under an
obligation to enroll Ezel and Martinez in a hearing conservation program until it discovered they
were exposed to noise in excess of the action level. Once Respondent was informed that Ezel
and Martinez were exposed to noise levels in excess of the action level, Respondent instituted a
hearing conservation program and the violations were terminated. GX 17a, 18a.

During the inspection, four miners were subjected to noise monitoring. Only Ezel and
Martinez exceeded the action level. TR1 211. Further, during previous inspections, the noise to
which Respondent’s miners were exposed never reached the action level. TR1 195. Drum
testified that Respondent never monitored its miners’ noise exposure. TR2 50. He did not
believe there was a requirement to do so, and he had never been cited for a noise violation. TR2

51. However, he is wrong that there is no requirement to monitor miners’ noise exposure -
    §62.110(a) imposes such a requirement. Nevertheless, Respondent was not charged with the
    failure to establish a noise monitoring system; Respondent was charged with failing to set up a
    hearing conservation program “during any work shift a miner’s noise exposure level exceeds the
    action level . . . .” The Secretary’s case rests on speculation that since Ezel and Martinez were
    exposed to noise levels in excess of the action level on April 20, 2010, they must have been
    exposed to such noise levels previously, and therefore a hearing conservation program should
    have already been in place. But speculation cannot take the place of concrete evidence; and that
    Ezel and Martinez were exposed to noise levels in excess of the action level on those days does
    not mean they were exposed to such noise levels previously. When MSHA previously
    inspected the mine, noise levels did not equal or exceed the action level. Further, Respondent
    offered plausible explanations for why Martinez and Ezel may have been exposed to more noise
    that day than usual. The loader’s air conditioner was not working, so Martinez was operating
    the loader with the door open; further the right rear window was missing. TR1 206. In regard
    to Ezel, the air conditioner in the control shack was off, and he had the window open. TR1 224;
    RX 1, at 2. Medlin also noted that the CB radio was “very loud” and the music radio was
    playing “pretty loud”. RX 1, at 2. He did not ask Ezel whether he always played the radios that
    loudly or why he had the window open rather than the air conditioner on.

Since there is no evidence to support a finding that Martinez and Ezel were exposed to
noise levels at or above the action level prior to the inspection on April 20, 2010, and
Respondent enrolled both miners in a hearing conservation program in a timely manner once it
was determined that they were exposed to noise levels in excess of the action level, the
Secretary has failed to prove that Respondent violated §62.120. Therefore, Citations 6567844
and 6567845 must be vacated.

Order 6567846

This order alleges a violation of §46.8(a)(1), which requires that a newly hired miner be
provided with no less than eight hours of annual refresher training. By motion dated January 25,
2012, the Secretary moved to amend this order to a violation of §46.8(a)(2), which requires
providing miners with refresher training not later than 12 months following the previous
refresher training. Section 46.8(a)(1) had been cited incorrectly in the order since the alleged
violation concerned Jeff Drum’s failure to obtain refresher training, and Drum was not a newly
hired miner. Without objection, that amendment was accepted.

The order states that injury is reasonably likely and could reasonably be expected to be
lost workdays or restricted duty; the violation is S&S; one person would be affected; and
negligence was high. Drum was ordered withdrawn from the mine until he completed his
refresher training. Drum testified that he completed the training by watching eight hours of
videos within two days of the inspection. TR2 18. Respondent was assessed a penalty of $971
for this violation.

Respondent contends that Drum was not a miner at the time of the inspection, and
therefore he did not have to undergo refresher training. Alternatively, Respondent argues that
“because of the circumstances and the very short duration of noncompliance, which was only
three weeks”, the penalty should be reduced to $112.

Section 46.2(g)(1)(i) defines “miner” as “[a]ny person, including any operator or
supervisor, who works at a mine and who is engaged in mining operations.” Section 46.2(h)
defines “mining operations” as “development, drilling, blasting, extraction milling, crushing,
screening, or sizing minerals at a mine; maintenance and repair of mining equipment; and
associated haulage of materials from within the mine from these activities.”

Drum is the sole shareholder of Respondent. At the time of the hearing he was working
as a laborer at the mine on a regular basis, due to a reduction of the number of employees
working there between the time of the MSHA inspection and the hearing. TR2 6, 9. But he was
not working regularly as a laborer at the time of the inspection. At that time, he was working
primarily at his cattle farm, which is adjacent to the mine. TR2 10. Tony Ezel was the plant
foreman, and had been for four or five years prior to the inspection. TR2 11. Drum testified
about his regular activities at the mine at the time of the inspection as follows:

A. I would usually come in the office at 7:00 in the morning and when it
got to 8:00, I would leave. . . .

. . .

Q. And what would you do in the office from 7:00 to 8:00?

A. I would usually get caught up on the day before, . . . make my
telephone calls. If they were out of diesel or order stuff such as that, you know.
If they needed parts, find out if they needed parts, go get them, such, you know,
just a gofer.

Q. Okay

A. And just see that things were going like they were supposed to
be going . . . .

. . .

Q. Sir, did you work at all?

. . . .

A. [S]o like if they’ve had something that, you know, that they
thought they was - someone would get injured or something they
couldn’t do, they’d call me, I’d come and do it. I either hired the
person - I’d either do it myself or hire someone to get whatever
done so, you know, to continue operating.

TR2 12-14. See also TR2 48.

Consistent with this testimony, Drum testified that when the track hoe became stuck in
deep mud, he and his brother were the ones who pulled it out. TR2 14, 48. Further, he testified
that he would drive around the mine four to five times a day to check things out. TR2 16-17.
He also brought the mail to the mine between 12:30 and 1:00 p.m. every day. TR2 86.

Despite Respondent’s protestations, I find that Drum was a miner on April 19-20, 2010.
He clearly meets the first part of the definition of a miner since he worked at the mine every day.
He also meets the second part of the definition. Although Ezel was the mine foreman, Drum
took an active role in the mining operations. He would drive around the mine several times a
day, presumably to assure that things were running smoothly, and would perform labor in the
mine when necessary. Accordingly, I find that he was engaged in mining operations.

Since Drum was a miner, §46.8(a)(2) requires that he undergo refresher retraining
within one year of his previous training. The inspection occurred more than a year after Drum
had last completed refresher training, so he was in violation of that section of the regulations.

The next issue to be resolved is the degree of Respondent’s negligence. The Secretary
contends that Respondent’s negligence was high because Drum admitted to Medlin that he knew
he was supposed to undergo the training but postponed it because he did not have time. TR1
244-45. I accept Medlin’s testimony that this conversation occurred. However, Medlin
forthrightly admitted that he has changed his mind regarding the likelihood of injury. Since
Drum was only three weeks late in his training, an injury due to the violation was unlikely. TR1
245-46. Further, Drum testified that he completed the training by watching eight hours of
videos within two days of the inspection. TR2 18. Although Medlin believes that Drum’s short
period of violation affects only the likelihood of injury, I find it also is relevant to mitigate the
degree of negligence. Another factor which mitigates against a finding of significant negligence
is that Drum testified that he is certified to teach the miner refresher training, and has been so
certified for many years. TR2 18. Therefore, it is hard to see how his failure to attend the
training in a timely manner was significant, and I find that Respondent’s negligence was low.
Reducing Respondent’s negligence from high to low reduces the penalty points found for this
violation from 87 to 62, which in turn lowers the penalty from $971 to $131.

ORDER

Based on the foregoing, IT IS ORDERED that:

Citation 6567840 - Likelihood of injury is modified from “unlikely” to “no likelihood”,
and the penalty is reduced from $2,106.00 to $500.00.

Citation 6567838 - Likelihood of injury is reduced from “reasonably likely” to
“unlikely”, negligence is reduced from “high” to “moderate”, “significant and substantial” is
changed to “not significant and substantial”, and the penalty is reduced from $2,106.00 to
$127.80.

Citation 6567839 - Likelihood of injury is reduced from “reasonably likely” to
“unlikely”, “significant and substantial” is changed to “not significant and substantial”, and the
penalty is reduced from $2,106.00 to $425.70.

Citation 6567841 - Negligence is reduced from “moderate” to “none”, and the penalty is
reduced from $946.00 to $190.80.

Citations 6567842, 6567843, 6567844 and 6567845 are vacated.

Order 6567846 - Likelihood of injury is reduced from “reasonably likely” to “unlikely”,
negligence is reduced from “high” to “low”, and the penalty is reduced from $971.00 to
$131.00.

Respondent shall pay a penalty in the amount of $1,375.30 within 30 days of the date of
this Decision.

/s/ Jeffrey Tureck

effrey Tureck

Administrative Law Judge

Distribution:

Pamela F. Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway,
Suite 800, Denver, CO 80202-5708   [email protected]

Kent Tester, Esq., 230 Hwy. 65 North, Suite 7, Clinton, AR 72031 [email protected]