Secretary of Labor v. APAC-Kansas, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

APAC-Kansas runs the Bonner Springs limestone quarry in Kansas, where MSHA opened a multi-week inspection in July 2014 and issued 32 citations and orders. The parties settled 27 of them, and Judge Jacqueline R. Bulluck tried the remaining four citations and one order. She upheld all five. Two involved a 42-foot highwall: loose rock 8 to 24 inches across sat above a front-end loader working 12 to 24 feet away, and a section of the protective catch bench had been blasted out, so both the failure to strip loose material and the failure to use mining methods that keep the wall stable were violations. She also upheld a citation for an unguarded fan belt and pulleys on a haul truck, holding that a miner greasing or troubleshooting the engine in a 30-inch space could reach the moving parts through a stumble or a moment of distraction. An order for failing to give site-specific hazard training to 12 contract truck drivers stood because both inspectors looked for the required warning sign at the tarping area and it was not there. Finally, the judge found the company's workplace examination records rarely mentioned Bonner Springs work areas and began describing routine examinations only after MSHA arrived. All five were affirmed as issued, four as significant and substantial, and APAC was ordered to pay $7,267 in total, which combines $2,650 for the litigated violations with the $4,617 settlement.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.3131, 56.3130, 56.14107(a), 46.11(a), and 56.18002(a)
• Outcome: All five litigated citations and orders were affirmed as issued; under the approved partial settlement nine other citations were vacated and several were modified to reduce negligence or remove the S&S designation. Total penalty $7,267.
• Key point: A bench does not have to have a miner standing on it to be a work area, and a guarding violation turns on whether contact is reasonably possible given the vagaries of human conduct, not on whether contact is likely in careful operation.

Full text (FMSHRC public release)

THE FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

APAC-KANSAS, INC.,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. CENT 2015-1-M

AC No. 14-01578-361486

Docket No. CENT 2015-157-M

AC No. 14-01578-369439

Docket No. CENT 2015-220-M

AC No. 14-01578-371826

Mine: Bonner Springs Quarry

DECISION

Appearances:               Daniel
McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado, for Petitioner;

Kevin
Keating, Oldcastle Law Group, Atlanta, Georgia, for Respondent.

Before:                        Judge Bulluck

These cases are before me upon Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) on
behalf of the Mine Safety and Health Administration (“MSHA”) against APAC-Kansas,
Incorporated, (“APAC”), pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977 (“Act”), 30 U.S.C. § 815(d). The Secretary seeks a total
penalty of $9,666.00 for 32 alleged violations of his mandatory safety
standards.[1]

A hearing was held in Liberty, Missouri. The
following issues are before me: (1) whether APAC violated the cited standards;
(2) whether the violations were significant and substantial, where alleged; (3)
whether the violations were attributable to the level of negligence alleged;
and (4) the appropriate penalty. The parties’ Post-hearing Briefs are of
record.

For the reasons set forth below, I AFFIRM
four citations and one order, as issued, and assess penalties against
Respondent.

I.          FACTUAL BACKGROUND

APAC owns and operates the Bonner Springs
quarry, a surface limestone mine in Wyandotte County, Kansas. The mine is
staffed by approximately nine miners, working one shift per day. Tr. 190, 219. Bryan
Lane, operations manager, and Keith Stoker, plant superintendent, were working at
the mine during the 2014 inspection at issue. Tr. 162, 197.

APAC’s mining process involves drilling
and blasting its limestone highwall to form benches. Tr. 28-29. Crushed
limestone accumulated at the base of the 42-foot highwall is removed and
stockpiled by a front-end loader, then loaded onto haul trucks to be processed
into saleable product. Tr. 27-30, 46-47. Between the mine floor and the top of
the highwall, a safety or catch bench, approximately 21 feet above ground,
prevents material in the upper highwall from falling onto the work area at the
toe. Tr. 29-30.

On July 21, 2014, local media reported that an
accident had occurred on an APAC mine site. Tr. 162. APAC investigated, and
concluded that the accident had actually occurred on an adjacent property outside
its control. Tr. 162. APAC management then called MSHA’s Topeka field office to
explain the inaccurate media report. Tr. 163. Later that night, MSHA
supervisory Inspector Sidney Garay called APAC’s division president, David
Guillaume, to inquire about the incident. Tr. 163.

The following day, MSHA inspectors Garay, Christopher
Ewing, and Dustin Crelly began an E01 regular inspection of the Bonner Springs
mine that lasted for several weeks, and resulted in numerous citations.[2]
Tr. 24-25, 98, 164. Among other violations, Garay cited APAC for failing to maintain
two areas of the highwall (Exs. P-2, P-3); failing to guard moving parts on
mobile equipment (Ex. P-5); failing to provide site-specific hazard training
(Ex. P-4); and failing to conduct adequate workplace examinations (Ex. P-6).

II.        FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.        Citation No. 8760649

Inspector Garay issued 104(a) Citation
No. 8760649 on July 22, 2014, alleging a “significant and substantial” violation
of section 56.3131 that was “reasonably likely” to result in an injury that
could reasonably be expected to be “fatal,” and was caused by APAC’s “moderate”
negligence.[3]
The “Condition or Practice” is described as follows:

Operator failed to
maintain loose and unconsolidated material on the working face located in the
pit at the Argentine ledge high wall. Several rocks measuring approximately 8
inches to 24 inches in diameter, which are located approximately 42 feet from
the ground level. The operator of the 992G CO#950 is working in the area on a
regular basis. This condition exposes miners to a catastrophic collapse of the
high wall, exposing miners to a fall of materials, blunt force, and fatal
injuries hazard.

Ex. P-2. The citation was terminated on August 5 after APAC
installed a berm at the toe of the highwall approximately 20 to 25 feet from
the working face.

1.         Fact
of Violation

In order to establish a violation
of one of his mandatory safety standards, the Secretary must prove that the
violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).

The Secretary contends that APAC’s miners
were working directly under loose, unconsolidated material, and that the
operator employed no safety measures between the bench and the pit floor where they
were working. Sec’y Br. at 6-8. APAC argues that the highwall was not in danger
of a catastrophic collapse, and that the front-end loader operator was at least
50 feet away from the highwall - - a distance beyond which a falling rock would
have traveled. Resp’t Br. at 17-19.

Supervisory Inspector Sidney Garay
came to MSHA in 2002, having worked in the mining industry for 21 years, with experience
in evaluating highwall safety in a surface mine, and familiarity with MSHA
training requirements. Tr. 17-20. He testified that section 56.3131 requires the
operator to maintain loose and unconsolidated material in the working face of
the highwall, between the bench and the floor, by scaling loose rock, or
installing a berm at the mine floor to prevent access to the area where rock
may fall. Tr. 57-59. He stated that the highwall displayed significant
cracking, that a horseshoe-shaped feature in the bench evidenced a previous rock
fall above the work area, that loose material that could fall at any time was
located above and below the bench, that 8- to 24-inch diameter loose and
unconsolidated material had accumulated on the bench, and that one section of
the bench above the work area had been blasted away. Tr. 32, 46, 57, 64, 66-67,
138-39; Ex. P-2 at 8, 10-11. He testified that no safety features protecting
miners from a fall-of-material hazard were employed between the bench and the pit
floor. Tr. 43; Ex. P-2 at 7. Garay also stated that while driving toward the highwall,
he observed a front-end loader operating perpendicular and parallel to the
highwall from an estimated distance of 12 to 24 feet, loading stone from the
muck pile onto haul trucks. Tr. 25, 32-33, 142-45; Ex. P-2 at 8. He opined that
the front-end loader operator was exposed to a fall-of-material hazard and
potentially fatal injuries because the cab of the loader offered little
protection from falling rocks, which generally fall in masses, and that the muck
pile, itself, could not constitute a berm. Tr. 65-66, 147; Ex. P-2 at 7.

Plant supervisor Keith Stoker had 29
years of mining experience, and had been working at APAC for four years. Tr.
197-98. Testifying for APAC, he stated that he accompanied Garay and Ewing into
the pit, and that the geology of the highwall is loose and unconsolidated, leading
to “pieces and parts” that “move and shift,” but that a catastrophic collapse
of the entire highwall is highly unlikely. Tr. 203-04, 215. Stoker identified a
photograph as depicting a muck pile at the foot of the highwall comprised of
shot material, and he marked the exhibit to indicate the fall pattern of the
rock that Ewing had identified to him as loose and unconsolidated during the
inspection. Ex. R-12; Tr. 203-04, 223. Stoker also stated that a front-end
loader working the muck pile would leave tracks in the direction in which it is
traveling, and that it operates perpendicular to the highwall. Tr. 224. According
to Stoker, when the front-end loader’s bucket is touching the highwall, the
operator’s seat is elevated 13.5 feet above ground and its centerline is exactly
28 feet from the highwall. Tr. 207. In his opinion, therefore, the front-end
loader operator was not exposed to any fall-of-material hazard because of the
“size of the machine, the height of the bench, and loading techniques being
perpendicular.” Tr. 206.

It is uncontested that the highwall
was comprised of loose and unconsolidated material 8 to 24 inches in diameter,
above, below, and accumulated on the bench, that one section of the bench above
the work area had been blasted away, and that a front-end loader was loading haul
trucks with material from the muck pile at its toe when the inspection team
arrived at the site. Since a portion of the bench had been blasted away, it no
longer provided a layer of protection for the front-end loader operator. Based
on the photograph showing tracks both perpendicular and parallel to the working
face (Ex. P-2 at 8), corroborating Garay’s observation, I find that the
front-end loader was operating in both directions, and because APAC failed to
challenge Garay’s estimation, 12 to 24 feet from the highwall. Furthermore,
APAC’s reliance on Lakeview Rock Products, Inc., 32 FMSHRC 305 (Mar. 2010)
(ALJ), is misplaced. In that case, there was insufficient evidence that rocks
in the highwall were loose and, even if they were, it was highly unlikely that
they would have traveled 80 feet to where the front-end loader was operating. Id.
at 308-09. Here, the loader was operating significantly closer to the
unscaled highwall than in the circumstances under which Lakeview was
decided. As a result, I find that the front-end loader operator was exposed to
a fall-of-material hazard, especially because the bench above the working face
had been compromised, no berm had been constructed, and the front-end loader’s
cab only provided limited protection. Accordingly, the Secretary has
established a violation of section 56.3131.

2. Significant
   and Substantial

In Mathies Coal Company, the
Commission set forth four criteria that the Secretary must establish in order
to prove that a violation is “significant and substantial” (“S&S”) under Nat’l
Gypsum, 3 FMSHRC 822 (Apr. 1981): 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.

6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d 9 FMSHRC
2015, 2021 (Dec. 1987) (approving Mathies criteria).

The Commission has recently
explained that the second Mathies criterion requires the judge to
determine “whether, based upon the particular facts surrounding the violation,
there exists a reasonable likelihood of the occurrence of the hazard against
which the mandatory safety standard is directed.” Newtown Energy, Inc., 38
FMSHRC ___, slip op. at 6, No. WEVA 2011-283 (Aug. 29, 2016). When evaluating
the third Mathies criterion, the judge is to assume that the hazard
identified in step two has been realized, and then consider whether the hazard
would be reasonably likely to result in injury in the context of “continued
normal mining operations.” Id. at 13 (citing Knox Creek Coal Corp. v.
Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir. 2016); Peabody Midwest
Mining, LLC, 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal, 52
F.3d 133 at 135; U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
Resolution of whether a violation is S&S must be based “on the particular
facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501
(Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12
(Dec. 1987). The Secretary need not prove a reasonable likelihood that the
violation, itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC
1257, 1280-81 (Oct. 2010).

The fact of violation has been established and,
respecting the second Mathies criterion, the hazard against which
section 56.3131 is directed is a fall-of-material. A rock fall was reasonably
likely given the unconsolidated composition of the highwall, evidence of a
previous rock fall, loose 8- to 24-inch diameter material above, below, and
accumulated on the bench, the compromised section of the bench above the work
area, and the operation of the loader as close as 12 to 24 feet from the
highwall. The third Mathies criterion has been met, in that falling rock
striking the loader’s cab with only limited protection to the operator, was
reasonably likely to result in an injury; and there is a reasonable likelihood
that the operator would suffer serious musculoskeletal to fatal injuries,
satisfying the fourth Mathies criterion. Therefore, I find that
the violation was S&S.

3.         Negligence

The Secretary argues that APAC’s
negligence was moderate, and that the conditions were obvious and subject to
regular workplace examinations. Sec’y Br. at 13. In consideration of the
obviousness and extensiveness of this violation, and APAC’s failure to remediate
its removal of the bench above the work area by employing safety measures such
as scaling loose material or sloping the highwall to the angle of repose, I
find that APAC was moderately negligent in violating section 56.3131.

B.        Citation
No. 8760656

Inspector Garay issued 104(a) Citation No.
8760656 on July 22, 2014, alleging a “significant and substantial” violation of
section 56.3130 that was “reasonably likely” to result in an injury that could
reasonably be expected to be “fatal,” and was caused by APAC’s “moderate”
negligence.[4]
 The “Condition or Practice” is described as follows:

Mining methods were
not being used to maintain the wall, bank, and slope stability above the
Argentine mine area. The north side high wall, at the 2nd bench area, has loose
and unconsolidated material that is not sloped to angle of repose or stripped
back for at least 10-feet. The exposed area is approximately 40 to 60 feet in
length and approximately 15 to 20 feet high from the Argentine bench level. Miners
were working below the high wall exposing them to a

catastrophic
failure, collapse of the high wall, engulfment, blunt force, fatal injury
hazard.  

Ex. P-3. The citation was terminated on July 23 when the
highwall above the bench was scaled.

1.         Fact
of Violation

The Secretary contends that APAC
did not employ any mining methods to maintain the wall, bank, and slope
stability of the highwall above the bench where it had been mining. Sec’y Br.
at 8-9. On the other hand, APAC argues that the highwall was not in danger of a
catastrophic collapse, that no miner was working on the bench level and, again,
relying upon Lakeview, 32 FMSHRC at 305, that its front-end
loader operator was too far from the highwall to be exposed to any fall-of-material
hazard. Resp’t Br. at 18-20.

Inspector Christopher Ewing joined
MSHA in February of 2013 with 18 years of mining experience, and he was a trainee
under Garay’s supervision at the time of the inspection. Tr. 24, 225-28. Ewing
was shown a photograph which he described as depicting the working area on the
bench as it existed on the day of the inspection. Ex. P-3 at 4; Tr. 232. He
testified that under loose, unconsolidated rock on the highwall edge, he observed
tire tracks and windrows on the bench which, he concluded, were caused by a
small front-end loader sweeping the bench in preparation for a round of
drilling and blasting.[5]
Tr. 229, 232-35; Ex. P-2 at 4. Ewing stated that the bench had not been
barricaded to prevent access, that he saw a drill on the bench that was poised to
drill the shot “as soon as they got somebody to it,” that he did not see a
front-end loader or miner on the bench, and that he took a photograph of the
drill (not in evidence).     Tr. 229-31, 242-43; Ex. R-14. Inspector Garay
testified similarly, that there was a drill on the bench, but he believed that a
miner was there also, although he testified that he did not take a photograph
or make note of either. Tr. 154, 157; Ex. P-3 at 3. Garay and Ewing both testified
that loose and unconsolidated material was at risk of falling onto the bench. Tr.
64, 154-56, 233; Ex. P-3 at 4.

Stoker testified that the front-end-loader
operator was the only miner in the pit at the time of the inspection, that no one
was working on the bench, and that no one was exposed to any fall-of-material
hazard. Tr. 210, 212-13. As has already been noted, Stoker opined that a catastrophic
collapse of the highwall is highly unlikely, although some rock fragments might
shift. Tr. 215.

It is uncontested that the bench
had not been barricaded against entry, that a drill was positioned on it, that there
was no front-end loader on it at the time of the inspection, and that loose, unconsolidated
material was at risk of falling onto it. The credible evidence also establishes
that no miner was on the bench at the time of the inspection. Nevertheless, I
find that the bench was a work area based on the uncontroverted evidence of track
marks and windrows indicating that a front-end loader had been operating there
and that, based on the presence of the drill and APAC’s mining methods, drilling
and blasting were soon to follow. Again, Lakeview is not persuasive
because, in this case, the bench work area was directly under loose,
unconsolidated rock. Therefore, I find that APAC failed to maintain the
stability of the highwall above the working area on the bench by scaling the
unconsolidated material, and that the Secretary has established a violation of
section 56.3130.

2.         Significant
and Substantial

Relying on Halfway, Inc., 8
FMSHRC 8, 12 (Jan. 1986) (determining that the focus of the S&S reasonable
likelihood of injury criterion is the “pendency of the violative condition
prior to the citation” and “continued normal mining operations”), the Secretary
contends that it is immaterial to the S&S analysis whether a miner was, in
fact, present on the bench at the time of the inspection. Sec’y Br. at 12. APAC
argues, on the contrary, that since no miners were working on the bench, the
violation posed no hazard. Resp’t Br. at 19-20.

The fact of violation has been
established and, having found that no miner was on the bench, the focus is on the
mining activities that preceded and were to follow on the heels of the
inspection. Respecting the second Mathies criterion, the hazard against
which section 56.3130 is directed is a fall-of-material. A rock fall from above
the bench was reasonably likely to occur because the upper highwall above the
working face had not been scaled of loose, unconsolidated material, and the
area had been prepared for impending drilling and blasting. The third Mathies
criterion has been met, in that falling rock striking an unprotected miner was
reasonably likely to result in an injury; and there is a reasonable likelihood
that the miner would suffer serious musculoskeletal to fatal injuries,
satisfying the fourth Mathies criterion. Therefore, I find that
the violation was S&S.

3.         Negligence

Garay opined that APAC’s negligence
was moderate because although the unstable highwall was obvious, he found no
indication that APAC willfully exposed miners to the hazard. Tr. 60, 67. I find
that APAC should have barricaded the affected bench area against entry or scaled
down the loose, unconsolidated rock. Accordingly, I conclude that APAC was
moderately negligence in violating the standard.

C.        Citation No. 8760651

Inspector Garay issued 104(a)
Citation No. 8760651 on July 22, 2014, alleging

a “significant and substantial” violation of section
56.14107(a) that was “reasonably likely” to result in an injury that could
reasonably be expected to be “permanently disabling,” and was caused by APAC’s
“moderate” negligence.[6]
The “Condition or Practice” is described as follows:

The Caterpillar Haul
Truck, Model 777, CO#26.660090, the fan belt and pulley assemblies in the
engine compartment directly below the operator cab were not guarded to protect
persons from contacting fan blades and pulley assemblies and similar moving
parts. This condition exposes persons to permanently disabling, entanglement,
crushing injury hazards, in that the equipment operators access the area to
perform regular maintenance. The exposed area is approximately 10 inches to 20
inches wide and approximately 4 feet from the ground level.

Ex. P-5.  The citation was terminated on July 23 when APAC
installed a guard.

1.         Fact
of Violation

The Secretary argues that a haul
truck did not have any guard installed in the engine compartment that would protect
miners from inadvertently contacting the fan belt and pulleys located in a
30-inch wide work space that was regularly accessed in order to perform
maintenance, examinations, and troubleshooting, that the engine is running
while the mechanic is troubleshooting, and that a miner could slip, trip, or
fall into the unguarded area. Sec’y Br. at 18-20. APAC argues that the engine
compartment was equipped with a factory-installed guard that was in place at
the time of the inspection, that the fan belt and pulley assemblies could not be
inadvertently contacted, and that the moving parts were too far away from any
working miner to pose a hazard. Resp’t Br. at 9-11.

Both parties cite Thompson Bros.
Coal Co., Inc., 6 FMSHRC 2094 (Sept. 1984), for the test set forth by the
Commission in analyzing whether moving parts require guarding. Sec’y Br. at 19;
Resp’t Br. at 9. In Thompson, the Commission recognized that the
guarding standard “imports the concepts of reasonable possibility of contact
and injury, including contact stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness.”

6 FMSHRC at 2097. Therefore, all relevant exposure and
injury variables must be considered, including “accessibility of the machine
parts, work areas, ingress and egress, work duties,    and . . . the vagaries
of human conduct.” Id.  

Garay testified that the fan belt
and pulley assemblies, recessed an estimated 10 to 20 inches inside the haul
truck’s engine compartment, elevated four feet off the ground, and accessible
to miners through a 30-inch gap between the front tire and the truck’s body,
were not guarded to protect miners against inadvertent contact. Tr. 81-82, 84,
137; Ex. P-5 at 5-7. Referring to his field notes, he stated that while the
truck is positioned on uneven ground, miners access the work space daily to
lubricate grease points or “Zerks,” that mechanics access it to perform visual
examinations with the engine running to troubleshoot the fan belt and pulleys,
and that the exposed parts move when the engine is running, creating an
entanglement hazard. Tr. 86-87, 97, 130, 136; Ex. P-5 at 4-8. He opined that
miners could slip, trip, and fall into the unguarded area and that, instinctively,
they put their hands out to brace their fall, risking inadvertent contact and
entanglement that could result in loss of a limb. Tr. 96, 134, 137. He
testified that Caterpillar manufactures a factory-installed guard for the fan
belt and pulleys, and that similar haul trucks at the mine were equipped with
factory-installed guards. Tr. 90-92. On cross-examination, he was unable to
identify whether a photograph of the cited truck depicted a factory-installed
guard. Ex. P-5 at 5; Tr. 133-34. Garay also explained that Caterpillar does not
install belt and pulley guards on haul trucks intended for use in construction
applications, unlike those intended for use in the mining industry; therefore, trucks
purchased secondhand by mines may lack appropriate guards. Tr. 90-91.

Bryan Lane, operations manager for
APAC since 2010, testifying for APAC, stated that he accompanied Garay during
the inspection of the haul truck. Tr. 162, 175. Shown a photograph of the space
between the truck body and tire, he opined that it was impossible for miners to
inadvertently contact the fan belt and pulleys approximately seven feet off the
ground, two to three feet inside the engine compartment, and behind what he
identified as a factory-installed pulley guard. Ex. R-1; Tr. 169-71. He acknowledged
that equipment operators would perform pre-shift examinations, but denied that a
miner would contact moving machine parts.  Tr. 172. He testified that the truck
was equipped with grease Zerks requiring daily lubrication, which could result
in a miner standing in the space between the front tire and body, that the
engine would not “normally” be running, and that the miner would be facing away
from the engine compartment. Tr. 173-74. He also contended that when
maintenance is performed, the truck is shut down. Tr. 172.

The record supports a finding that equipment
operators and mechanics routinely access the 30-inch work space between the truck’s
front tire and body to perform pre-shift examinations, lubrications, and
troubleshooting while the engine is running. I also find, based upon the photograph
depicting a six-foot tall miner standing in the work space with the engine
compartment opening adjacent to his head (Ex. R-1), that the compartment was somewhat
less than six feet above ground and, based on the lack of any concrete
measurement and conflicting testimony, that the moving parts were recessed 20
to 36 inches within the compartment. I fully credit Garay’s testimony that the
cited haul truck’s belt and pulleys were not guarded based on a reasonable
inference that the truck was acquired by APAC secondhand, and his observation
that similar trucks on-site were equipped with factory-installed guards, a
contention unchallenged by APAC. APAC’s reliance on Hollow Contracting,
18 FMSHRC 2044 (Nov. 1996) (ALJ), is misplaced. In that case, the judge vacated
a citation alleging a violation of section 56.14107(a) after finding that the
unguarded belt was not within seven feet of any walking or working surfaces. Id.
at 2056. In this case, however, considering all relevant factors, especially
the “vagaries of human conduct,” I find that it is reasonably possible for a
miner of average height, working within the limited work space while the engine
is running, to inadvertently contact the moving machine parts, which are
entirely reachable although recessed at least 20 inches, through extension of
the arms precipitated by a misstep, loss of balance, momentary distraction, or
startlement. This finding takes into account the myriad possible human responses
to all manner of external stimuli, as well as the protective purpose of the
Act. Accordingly, the Secretary has established a violation of section
56.14107(a).

2.
        Significant and Substantial

The fact of violation has been
established and, respecting the second Mathies criterion, the hazard
against which section 56.14107(a) is directed is contact with moving machine parts.
Inadvertent contact with the belt and pulleys was reasonably likely to occur
considering that miners frequently performed examinations, lubrications, and
troubleshooting on uneven ground, and accessed the space between the truck’s
tire and the body with the engine running, putting them within the 20- to 36-inch
reachable range of the engine’s moving parts. The third Mathies criterion
has been met, in that contact with the moving belt and pulleys was reasonably
likely to result in an injury; and there is a reasonable likelihood that the
miner would suffer serious disfigurement or loss of a limb, satisfying the
fourth Mathies criterion. Therefore, I find that the violation was
S&S.

3.         Negligence

The Secretary argues that APAC’s
negligence was moderate because the unguarded area was frequently entered and obvious,
that APAC had similar equipment on-site that was appropriately guarded, and
that Caterpillar manufactures a guard for the haul truck. Sec’y Br. at 21. I
find, based on the miners’ daily access to the tight work space between the
truck’s tire and body with the engine running, that the hazard of contacting
moving parts within the engine compartment was obvious. Furthermore, based on
APAC’s use at the mine of similar Caterpillar trucks outfitted with
factory-installed guards, I find that APAC knew or should have known that it
was required to guard the belt and pulleys so that its miners could perform
their tasks safely.  Accordingly, I conclude that that APAC was moderately
negligent in violating the standard.

D.        Order
No. 8760689

Inspector Garay issued 104(g)(1) Order No. 8760689
on August 5, 2014, alleging a violation of section 46.11(a) that was “unlikely”
to cause an injury that could reasonably be expected to be “permanently
disabling,” and was caused by APAC’s “high” negligence.[7]
The

“Condition or Practice” is described as follows:

Twelve Clarkson
Construction Company, Over the Road Truck Drivers, Contractor ID# KTL, entering
the mine site have not received the required site-specific hazard awareness
training, exposing them to mine hazards. The Mine Operator was aware of the
training requirements. The mine operator must withdraw the Twelve Clarkson
Construction Over the Road Truck Drivers from the mine until they have received
the required training. The Federal Mine Safety and Health Act of 1977 states
that an untrained miner is a hazard to himself and to others.

Ex. P-4. The citation was terminated when APAC provided MSHA
with a photograph of a sign outlining site-specific mining hazards. Tr. 73; Ex.
R-6.

1.         Fact
of Violation

The Secretary points out that the site-specific hazard
training requirement may be satisfied by posting warning signs.[8]
Sec’y Br. at 15. He makes several contentions in support of establishing the
violation: that no signage with the requisite warnings was posted at the
tarping area at the time of the inspection; that if it were, the operator would
have discussed it with the inspector; that if it were, the operator would not
have needed a training video; and that it is irrelevant whether other signs were
posted elsewhere on-site because they do not satisfy the standard. Sec’y Br. at
15-17.

APAC argues that from 2010 through
the time of the inspection, it had a sign in place at the tarping area that satisfied
the site-specific hazard training requirement, and that the Secretary’s contention
that the sign was installed after the inspection to abate the violation
is “mistaken or untruthful.” Tr. 125; Resp’t Br. at 4-5. The operator also contends
that the Secretary has not established that the 12 truck drivers lacked
site-specific hazard training because the inspector failed to inquire whether
the truckers had received any training other than formal training. Resp’t Br.
at 11-13. In support of this contention, APAC relies on Apex Quarry, 36
FMSHRC 211 (Jan. 2014) (ALJ). Resp’t Br. at 11-13. In Apex Quarry, the
judge vacated an order alleging a violation of section 46.11(a) because the
inspector only asked the contractors whether they had received site-specific hazard
training and, therefore, they may not have understood the “special meaning of
the term ‘training’” in the context of the cited standard. 36 FMSHRC at 230-31.

Garay testified that section 46.11(a) requires
APAC to administer site-specific hazard training to its customers and that,
alternatively, it may post adequate warning signs. Tr. 70. Garay also stated
that at the beginning of the inspection, APAC’s safety manager, Chris
Switchman, told him that APAC satisfies the site-specific hazard training requirement
by showing anyone who comes to the mine a training video in the scale house or
office, and then issuing a card documenting that the training was received. Tr.
68, 71. Ewing testified similarly, but did not name the APAC management employees
with whom he spoke. Tr. 236-37. According to Garay, 12 Clarkson employees in
the tarping area of the mine told him that they had not received site-specific
hazard training, had not viewed the training video, and had not been issued
training cards. Tr. 67-69; Ex. R-5. Garay and Ewing both maintained that they looked
for signs in the tarping area, but found none satisfying the training
requirement, that the sign posted to terminate the citation was not present on
the day of the inspection, and that no APAC representative ever raised the idea
that a warning sign was posted. Tr. 80-81, 113, 236-38; Exs. R-6, R-15. Garay opined
that untrained customers would be unlikely to suffer permanently disabling
injuries as a result of being exposed to heavy equipment operation, blasting,
or other hazards, because they only travel to limited areas of the mine. Tr.
69.

Lane testified that APAC does not show the
training video to customers. Tr. 182-83. He stated that customer truck drivers
are trained using signage posted throughout the facility, including the sign
used to terminate the citation which, according to him, was in place in the
tarping area at the time of the inspection, and had been since 2010. Tr. 180-81;
Exs. R-6, R-7, R-8, R-9, R-10, R-11.

The record makes clear that the training video
of which the inspectors were advised was not shown to the over-the-road truck
drivers, and the parties agree that APAC would have satisfied the site-specific
hazard training requirement if appropriate warning signage were posted at the
tarping area. See Tr. 78-79; Sec’y Br. at 16. Both inspectors testified that the
tarping-area sign was not there, and that they specifically looked for such a
sign. APAC’s attempt on cross-examination to have Garay identify a zoomed-in
object in a photograph as a tarping-area sign was an exercise in futility
because the image was so indistinct as to appear ethereal. Interestingly, in
its brief, APAC abandoned any argument that the photograph depicted the
requisite signage. In consideration of the inspectors’ credible testimony, and
the fact that no one, including APAC’s safety director, showed the inspectors
any sign, I find that no warning signage was posted at the tarping area on the
day of the inspection. Testimony and exhibits regarding signage elsewhere
on-site miss the mark because they do not address the hazards identified in the
tarping area. Furthermore, APAC’s reliance on Apex Quarry is not
persuasive because here, Garay not only questioned the 12 customers and APAC’s
safety director about the training, but he and Ewing specifically looked for an
appropriate warning sign in the tarping area. Accordingly, I find that the Secretary
has established a violation of section 46.11(a).  

2.         Gravity
and Negligence

The record establishes that because the
untrained customers only accessed limited areas of the mine, they were unlikely
to suffer permanently disabling injuries resulting from exposure to heavy
equipment operation. The Secretary argues that APAC’s negligence was high, however,
because it was aware that it needed to provide training, as evidenced by its
production of the training video. Sec’y Br. at 18. I find that APAC knew or
should have known of the site-specific hazard training requirement and, in
failing to train its customers by video or posting appropriate signage at the
tarping area, that it was exposing its customers to avoidable hazards. Furthermore,
I do not find that signage elsewhere around the mine mitigates APAC’s negligence
because there is no evidence that they pertain to the hazards specific to the
tarping area. Accordingly, I find that APAC was highly negligent in violating
the standard.

E.        Citation
No. 8760690

Inspector Garay issued 104(a) Citation
No. 8760690 on August 5, 2014, alleging a “significant and substantial”
violation of section 56.18002(a) that was “reasonably likely” to result in an
injury that could reasonably be expected to be “permanently disabling,” and was

caused by APAC’s “high” negligence.[9]
The “Condition or Practice” is described as follows:

The mine operators
competent persons did not conduct thorough examinations of workplaces at least
once each shift for conditions which may adversely affect safety or health, in
that the daily workplace examinations reviewed, did not document any of the
conditions cited, which adversely affect safety and health of the miners, and
attributed to multiple citations and orders issued during the E01 regular
inspection.

Ex. P-6.

1.         Fact
of Violation

The Secretary argues that the
obviousness of the cited hazards and the condition of the mine demonstrated
that APAC was not conducting adequate workplace examinations. Sec’y Br. at 23. The
Secretary also contends that the examination records do not document all working
areas of the mine, and that testimony that rank-and-file miners also perform
examinations should be given no weight because there is no documentation of
their competence, or any record of such examinations. Sec’y Br. at 25-28.

APAC contends that a competent
person performed adequate examinations of all working areas prior to each shift,
and that the number of citations and orders issued is not determinative of the
adequacy of those examinations, especially since the inspection was
retaliatory, the alleged violations were not obvious, and APAC disagrees with
nearly all of them. Resp’t Br. at 13-16.

According to Garay, the cited violations were
obvious to any competently trained miner and, therefore, should have been
discovered and recorded through adequate workplace examinations. Tr. 98-102. He
testified that he reviewed Stoker’s daily log or diary containing records of
APAC’s workplace examinations, and concluded that Stoker oversaw operations at
the Bonner Springs and Shawnee quarries and that, regarding Bonner Springs, his
records failed to identify working areas or hazards, or when they were
corrected. Tr. 102-03. Garay opined that a plant superintendent and supervisor
are competent persons to conduct workplace examinations within the meaning of
section 56.18002(a). Tr. 158.

Lane testified that APAC foreman David Platt and
superintendent Stoker, or a competent person designated by them, record a diary
of activities that they perform throughout the day, including work areas that
they have examined and whether the examination has been completed. Tr. 174, 189,
191; Exs. R-2 (Stoker), R-3 (Platt). Lane testified that Stoker’s diary pertains
to the Bonner Springs and Shawnee quarries, while Platt’s diary covers only
Bonner Springs.    Tr. 188. Presented with entries in Stoker’s and Platt’s
daily logs for July 8, 2014, Lane was unable to identify any workplace that
either miner had examined. Tr. 190-91; Exs. R-2 at 1,

R-3 at 1. He offered that another competent person, who he
could not identify, may have performed the examination on that day, but that he
was unaware of any examination records other than Platt’s and Stoker’s diaries.
Tr. 191-92, 195.

Stoker testified that his log entries demonstrate
that he examines and records any area of the mine that he visits, and that properly
trained miners examine their work areas and provide him with completed
examination record sheets at the end of each shift. Tr. 215-17, 219-21;   Ex.
R-2. He also stated that he did not conduct an examination of the mine on July
8, 2014.   Tr. 221; Ex. R-2.

Stoker’s and Platt’s diaries rarely address Bonner
Springs’ working areas or conditions and, when they do, only in cursory fashion.
Neither diary records any hazard identified during MSHA’s inspection, nor does
either record a workplace examination of any area of Bonner Springs on July 8,
2014. It is noteworthy that Stoker’s and Platt’s diaries begin to state, in
routine fashion, that they examined the Bonner Springs plant, pit, and shop only
after MSHA had begun its inspection. Stoker’s testimony, that other
competent miners conduct examinations of all working areas and fill out record
sheets, is undermined by Lane’s testimony that he is unaware of any
documentation other than Stoker’s and Platt’s diaries, by APAC’s failure to
provide copies of such examination records to Garay during the inspection, and APAC’s
failure to move for their admission into the record at the hearing. Accordingly,
I find that APAC failed to perform and record adequate examinations of the Bonner
Springs workplaces during every shift, and that the Secretary has established a
violation of section 56.18002(a).

2.         Significant
and Substantial

The fact of violation has been
established and, respecting the second Mathies criterion, the hazard
against which section 56.18002(a) is directed is timely detection and
correction of workplace hazards. Obvious hazardous conditions were reasonably
likely to go undetected and promptly corrected by management based on APAC’s
failure to conduct adequate workplace examinations on a regular basis, and when
they did, the examinations were incomplete and inaccurately recorded. The third
and fourth Mathies criteria have been met, in that failure to timely identify
and remedy unstable material above the working face of the highwall was
reasonably likely to result in serious, if not fatal, injuries; likewise,
entanglement with unguarded moving machine parts was reasonably likely to
result in serious disfigurement or loss of a limb. Therefore, I find that the
violation was S&S. 

3.         Negligence

The Secretary argues that APAC’s negligence was
high because it was aware that it was required to perform workplace
examinations, many hazards were obvious, and its inspection records were incomplete
and disorganized. Sec’y Br. at 29-30. APAC contends that the alleged hazards
were not obvious, and that it disagrees with nearly all of the citations and
orders. Resp’t Br. at 14. In consideration of my findings that the highwall and
guarding violations were obvious and serious, I find that APAC’s failure to conduct
adequate workplace examinations of the mine and timely correct identified
hazards was the result of high negligence.

III.       PENALTIES

While the Secretary has proposed civil penalties
totaling $3,070.00, the judge must independently determine the appropriate
assessment by proper consideration of the six penalty criteria set forth in
section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co.,        
5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).

Applying the penalty criteria, and based upon a
review of MSHA’s online records, I find that APAC is a small operator, with an
overall history of violations that is a mitigating factor in assessing
appropriate penalties (in the 15 months preceding the inspection, the operator had
been cited for violating one standard, unrelated to any at issue in this
proceeding). I also find that APAC demonstrated good faith in achieving rapid
compliance after notice of the violations. Furthermore, APAC represents that
the proposed penalties will not affect its ability to remain in business. Resp’t
Br. at 21.

The remaining criteria involve consideration of
the gravity of the violations, and APAC’s negligence in committing them. These
factors have been discussed fully, respecting each violation. Therefore,
considering my findings as to the six penalty criteria, the penalties are set
forth below.

A.        Citation No. 8760649

It has been established that this S&S
violation of section 56.3131 was reasonably likely to cause an injury that
could reasonably be expected to be fatal, that it was caused by APAC’s moderate
negligence, and that it was timely abated. Based on these factors, and
considering the operator’s violation history as a mitigating factor, I find
that a penalty of $450.00 is appropriate.

B.        Citation No. 8760656

It has been established that this
S&S violation of section 56.3130 was reasonably likely to cause an injury
that could reasonably be expected to be fatal, that it was caused by APAC’s
moderate negligence, and that it was timely abated. Based on these factors, and
considering the operator’s violation history as a mitigating factor, I find
that a penalty of $450.00 is appropriate.

C.        Citation
No. 8760651

It has been established that this S&S
violation of section 56.14107(a) was reasonably likely to cause an injury that
could reasonably be expected to result in permanently disabling injuries, that
it was caused by APAC’s moderate negligence, and that it was timely abated. Based
on these factors, and considering the operator’s violation history as a
mitigating factor, I find that a penalty of $250.00 is appropriate.

D.        Order No. 8760689

It has been established that this
violation of section 46.11(a) was unlikely to cause an injury that could
reasonably be expected to result in permanently disabling injuries, that it was
caused by APAC’s high negligence, and that it was timely abated. Based on these
factors, and considering the operator’s violation history as a mitigating
factor, I find that a penalty of $700.00 is appropriate.

E.        Citation No. 8760690

It has been established that this
S&S violation of section 56.18002(a) was reasonably likely to cause an
injury that could reasonably be expected to result in permanently disabling
injuries, that it was caused by APAC’s high negligence, and that it was timely
abated. Based on these factors, and considering the operator’s violation
history as a mitigating factor, I find that a penalty of $800.00 is
appropriate.

IV.       APPROVAL OF SETTLEMENT

The parties have filed a Motion to Approve
Partial Settlement respecting 27 of the 32 citations/orders involved in these
dockets. A reduction in penalty from $6,596.00 to $4,617.00 is

proposed. The citations/orders, initial assessments, and
proposed settlement amounts are as follows:

Docket No.

Citation/Order
No.

Initial Assessment

Proposed Settlement

CENT 2015-1-M

8760652

$263.00

$263.00

8760657

$585.00

$969.00

8760658

$100.00

$100.00

8760659

$263.00

$0.00

8760660

$263.00

$0.00

8760663

$263.00

$263.00

8760688

$100.00

$100.00

8760664

$100.00

$100.00

8760665

$263.00

$263.00

8760667

$100.00

$0.00

8760669

$585.00

$0.00

8760671

$100.00

$100.00

8760672

$100.00

$100.00

8760681

$100.00

$100.00

8760682

$263.00

$0.00

8760673

$100.00

$100.00

8760674

$100.00

$100.00

8760675

$263.00

$263.00

8760676

$263.00

$0.00

8760677

$263.00

$263.00

8760678

$263.00

$263.00

8760679

$263.00

$0.00

8760680

$263.00

$0.00

8760687

$100.00

$100.00

SUBTOTAL:

$5,326.00

$3,447.00

CENT 2015-157-M

8760650

$585.00

$585.00

8760661

$585.00

$585.00

8760662

$100.00

$0.00

SUBTOTAL:

$1,270.00

$1,170.00

TOTAL:

$6,596.00

$4,617.00

I have considered the representations and
documentation submitted in these matters under section 110(k) of the Act, and I
conclude that the proffered settlement is appropriate under section 110(i) of
the Act.

ORDER

WHEREFORE, it
is ORDERED that Citation Nos. 8760659, 8760660, 8760662, 8760667,
8760669, 8760676, 8760679, 8760680, and 8760682 are VACATED.

It is further ORDERED
that Citation Nos. 8760649, 8760650, 8760651, 8760652, 8760656, 8760672, 8760673,
8760674, 8760677, 8760681, 8760690, and Order No. 8760689 are AFFIRMED,
as issued.

It is further ORDERED
that the Secretary MODIFY Citation Nos. 8760663, 8760671, and
8760687 to reduce the degree of negligence to “low;” Citation Nos. 8760663,
8760665, 8760675, and 8760678 to reduce the level of gravity to “unlikely,” and
remove the “significant and substantial” designation; Citation No. 8760658 to
allege a violation of 30 C.F.R.          § 56.14107(a) in the alternative, and
Citation No. 8760665 to allege a violation of 30 C.F.R.     § 56.14112(a)(1) in
the alternative; and Citation Nos. 8760657, 8760658, 8760664, 8760665, 8760675,
8760678, and 8760688 to incorporate the proposed language in the “Condition or
Practice;” and that these citations are AFFIRMED, as modified.

It is further ORDERED
that APAC-Kansas, Incorporated, PAY a civil penalty of $7,267.00 within
thirty (30) days of the date of this Decision.[10]
ACCORDINGLY, these cases are DISMISSED.

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Daniel McIntyre, Esq., U.S.
Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, Suite 216,
Denver, CO 80204

Kevin Keating, Oldcastle Law
Group, 900 Ashwood Parkway, Suite 600, Atlanta, GA 30338-4780

/tcp

[1]
The parties reached a settlement on 27 of the 32 contested citations/orders. The
total civil penalty proposed for the remaining four citations and order
adjudicated in this proceeding is $3,070.00.

[2]
APAC characterizes the inspection as retaliatory and a clear abuse of
discretion.    Tr. 164, 201; Resp’t Br. at 2-3, 14. Even if the inaccurate
media report sparked the inspection, no citations were issued related to the
incident, and there is no record evidence, whatsoever, supporting this
contention.

[3]
30 C.F.R. § 56.3131 provides that “[i]n places where persons work or travel in
performing their assigned tasks, loose or unconsolidated material shall be
sloped to the angle of repose or stripped back for at least 10 feet from the
top of the pit or quarry wall. Other conditions at or near the perimeter of the
pit or quarry wall which create a fall-of-material hazard to persons shall be
corrected.”

[4]
30 C.F.R. § 56.3130 provides that “[m]ining methods shall be used that maintain
wall, bank, and slope stability in places where persons work or travel in
performing their assigned tasks. When benching is necessary, the width and
height shall be based on the type of equipment used for cleaning of benches or
for scaling of walls, banks, and slopes.”

[5]
A windrow is “[a] ridge of soil pushed up by a grader or bulldozer.” Am.
Geological Institute, Dictionary of Mining, Mineral, and Related Terms
628 (2d ed. 1997) (“DMMRT”).

[6]
30 C.F.R. § 56.14107(a) provides that “[m]oving machine parts shall be guarded
to protect persons from contacting gears, sprockets, chains, drive, head, tail,
and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.”

[7]
30 C.F.R. § 46.11(a) provides that mine operators “must provide site-specific
hazard awareness training before any person specified under this section is
exposed to mine hazards.”

30 C.F.R. § 46.11(b) requires
mine operators to “provide site-specific hazard awareness training, as
appropriate, to any person who is not a miner as defined by § 46.2 of this part
but is present at a mine site, including: . . . (4) customers, including
over-the-road truck drivers.”

[8]
30 C.F.R. § 46.11(e) provides that mine operators “may provide site-specific
hazard awareness training through the use of written hazard warnings, oral
instruction, signs and posted warnings, walkaround training, or other
appropriate means that alert persons to site-specific hazards at the mine.”

[9]
30 C.F.R. § 56.18002(a) provides that “[a] competent person designated by the
operator shall examine each working place at least once each shift for
conditions which may adversely affect safety or health. The operator shall
promptly initiate appropriate action to correct such conditions.”

[10]
Payment should be sent to: Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
Please include Docket number and A.C. number.