Secretary of Labor v. Gabel Stone Company

Plain-English summary

Gabel Stone operates a small family-owned limestone quarry in Missouri. MSHA cited owner Gary Gabel for not completing and documenting eight hours of annual refresher training, and it separately cited a flywheel guard that ended eight inches below the required height. Judge William B. Moran upheld the training violation because Gabel worked as a miner and the requirement applied to him, but found the lapse technical, with very low negligence and gravity. He also upheld the guarding violation while rejecting the inspector's claimed entanglement hazard because the flywheel turned away from the cited side and its pinch-point side was fully guarded. The judge modified the guarding citation from lost-workdays gravity to no lost workdays and reduced the proposed penalties from $112 and $100 to $20 and $25, for a $45 total.

Decision snapshot

• Cited standards: 30 C.F.R. § 46.8(a)(2); 30 C.F.R. § 56.14107(a)
• Outcome: Both violations were upheld, the guarding gravity was reduced, and total penalties were cut from $212 to $45.
• Key point: Even a proven violation can warrant a minimal penalty when the evidence shows very low negligence, very low gravity, prompt correction, and almost no violation history.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

Office
of Administrative Law Judges

1331
Pennsylvania
Avenue, NW, Suite 520N

Washington, DC 20004

Telephone:
202-434-9933 / Fax: 202-434-9949

January 12, 2017

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

GABEL
STONE COMPANY,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. CENT 2015-0621

A.C.
No. 23-02064-387725

Docket
No. CENT 2015-0630

A.C.
No. 23-02064-390172

Mine:
Willow Springs Quarry

DECISION

Appearances:   Ms.
Susan Willer, Esq., Office of the Solicitor, and Ms. Maria Rich, Mine Safety
and Health Administration, for the United States Department of Labor

Mr. Justin Gabel,
pro se, for the Respondent

Before:
Judge Moran

Introduction

These
consolidated dockets involve two notices of alleged violations, issued by MSHA
Inspector Keith Markeson at Gabel Stone’s Willow Springs Quarry in May and June
2015. [1]
Involved in CENT 2015-0630 is Order No. 8778893, issued May 13, 2015, alleging
a 30 C.F.R. § 46.8(a)(2) annual refresher training violation. The proposed
assessment of civil penalty was $112.00. The other docket, CENT 2015-0621,
involves Citation No. 8865801, issued June 16, 2015, alleging a 30 C.F.R. § 56.14107(a)
guarding violation. The proposed assessment of civil penalty was $100.00. In
sum, MSHA’s proposed penalties for the two alleged violations totaled $212.00.

A hearing was held on November 1, 2016
in West Plains, Missouri, at which MSHA Inspector Keith Markeson testified on
behalf of the Secretary and Mr. Gary Gabel, owner of the Willow Springs Quarry,
testified on behalf of the Respondent. [2]

For the reasons which follow, the Court
finds that both violations were established and, following the Commission’s
recent decision in American Coal , imposes a civil penalty in the amount
of $20.00 for the violation set forth in Order No. 8778893. Am. Coal Co. ,
38 FMSHRC 1987 (Aug. 2016). For the violation set forth in Citation No. 8865801,
the Court imposes a civil penalty in the amount of $25.00.

Factual
Background

Inspector Markeson has been an MSHA
inspector for nine years, and has specialized training in accident
investigation and mine emergencies. Tr. 25-26. He has a degree in geology, and
worked as a geologist for several years before beginning his training with MSHA.
Tr. 26-27. The mine at issue, Willow Springs Quarry is a small, family-owned
limestone quarry in Howell County, Missouri that typically employs between five
and eight people. Tr. 30; 78. [3]
Gary Gabel is the owner of the mine, and also does some work there. Gabel has
been a miner since 1977. [4]
Tr. 94.

Markeson began conducting a routine 103(e)(1)
inspection on May 13, 2015. Tr. 29. He stopped his inspection after issuing Order
No. 8778893, alleging a violation of 30 C.F.R. Part 46, which pertains to training
and education for miners and other persons. [5]
He returned to complete the inspection on June 16, 2015. Tr. 33; 95. As noted
above, Order No. 8778893 was issued on May 13, 2015 for an alleged violation of
Section 46.8(a)(2), which states, “You must provide each miner with no less
than 8 hours of annual refresher training… no later than 12 months after the
previous annual refresher training was completed.” 30 C.F.R. § 46.8. [6]

Citation No. 8865801, the sole subject
of Docket CENT 2015-0621,was issued during the resumption of Markeson’s
inspection, on June 16, 2015. It alleges a violation of Section 56.14107(a), a
guarding standard. The discussion of Citation No. 8865801 follows the
discussion of Order No. 8778893.

Docket
No. CENT 2015-0630; Order No. 8778893: Findings of Fact and Discussion

The
Secretary’s Evidence

When Markeson arrived at the mine on May
13, he met with Gary Gabel and his wife Joyce Gabel. Tr. 32. The three of them
talked briefly about the purpose for Markeson’s presence that day. Id . Markeson
testified that Gabel is more than an executive — he works as a foreman at the
mine, and occasionally operates a front end loader or loads trucks for
customers. Tr. 40.

Markeson decided to begin his inspection
with the mine’s paperwork, which is stored in an administrative office located
about two and a half miles from the quarry itself. Tr. 34. Training records are
stored there as well. When Markeson reviewed the Respondent’s records, he found
there was no record of annual training for Gabel himself. Tr. 32. Markeson
inquired further and Gabel reputedly “mentioned to [Markeson] that he hadn’t
been to any refresher in probably eight or nine years, because while his crew
does their annual refresher training, he goes to the quarry and loads customer
trucks, so that he can keep his customers moving through the quarry.” Tr.
32-33.

Markeson testified that he spoke further
with Gabel to determine if he had received the annual refresher training and
simply failed to document it. Tr. 33. Upon determining that it was not a
recordkeeping omission and that there was an apparent violation of the training
requirement, Markeson “went with Mr. Gabel over to the quarry site, so that he
could get his crew lined out and assign a lead man so that his crew could keep
working. We then went back to his office where [Markeson] typed up the
withdrawal order.” Tr. 33. Markeson then delivered the order to Mr. and Mrs.
Gabel, along with a brief explanation of its effect. Id .

Markeson
testified that he found that Gabel “had not received the MSHA required
eight-hour annual refresher training within 12 months” of the previous training.
Tr. 38. Markeson believed that Gabel should have been aware of the requirement
because he had many decades of mining experience. Tr. 39. Because Markeson had
learned that Gabel “wasn’t present during annual refresher training and he
didn’t teach the annual refresher training,” he “determined that [Gabel] hadn’t
had it [i.e. the required training]; and therefore, the withdrawal order was
warranted.” Tr. 39-40.

Markeson
then testified as to the reasoning behind the gravity and injury designations in
the citation. Tr. 41. He selected “fatal” because annual training is required
in order “to prevent serious life threatening type injuries at a mine. The
other reason is the most — the most injured groups of people at mines are brand
new miners and miners with many years of experience, 20, 25 plus years, in
which category Mr. Gabel falls.” [7]
Tr. 41-42. The Court asked Markeson why Gabel’s many decades of experience in
mining would not undercut the “fatal” designation. Tr. 43. Markeson responded,
“Well, 47 years of experience, that’s a group that gets hurt a lot at mines;
and being that Mr. Gabel hadn’t had annual training in many years, I think if I
looked at it again now, I would still mark it as fatal.” Id .

However, inconsistently in the Court’s
view, Markeson designated the gravity of the alleged violation as “unlikely” to
result in injury, because Gabel “has been running the quarry for many years”
and he does some new miner training for his crew. Tr. 41. Markeson then
testified that he designated the alleged violation as moderately negligent
because,

[Gabel] was
aware that annual refresher training had to be done. He was providing it for
all of his hourly miners. He just didn’t believe that that training
[requirement] applied to him. So while he knew that the training was required
he didn’t realize, I guess, that it was — that he was included in that.

Tr.
45.

As
noted, Markeson then left the mine site after issuing the withdrawal order,
without completing his inspection. Tr. 47. He terminated the violation the following
day, after receiving records indicating that Gabel had completed eight hours of
annual refresher training. Id . In order to remedy the alleged violation,
Markeson testified, Gabel “trained himself and his wife assisted in the
training.” Tr. 44.

On
cross-examination, Markeson agreed that the Respondent’s records reflect Gabel
having administered new miner training in the past. Tr. 51-52. Markeson noted,
though, that the content of the new and annual trainings is different: for
example, annual refresher training covers topics including training on ground
conditions and control, high walls, explosives, and mobile equipment. Tr.
52-54. [8]
The Court asked whether this difference doesn’t make the term “annual
refresher” slightly misleading, given that new miners are not trained on all of
the subjects covered in the annual training. Tr. 59. Markeson answered that
while Gabel Stone’s new miner training plan meets the minimum requirements in
federal regulations, the annual training includes elective topics that
are chosen by the operator. Tr. 60. In theory, identical new and annual
training materials could meet the regulatory standard if there were no changes
in the mining environment. Tr. 60-61.

The
Respondent’s Evidence

Gabel
testified that he did not feel he had violated the annual training standard. Tr.

77. Gabel gave several examples of how he has prioritized safety by being
    involved in a number of safety trainings from the 1970s to the present and by
    encouraging his employees to speak up about potential safety issues at the mine.
    Tr. 73-76. When the Court asked Gabel to clarify whether he was discussing
    these topics in order to demonstrate that he is a very safety conscious person,
    Gabel replied “yes.” Tr. 76-77.

Gabel also stated that he receives his
annual refresher training piecemeal, by learning about safety standards through
independent reading and taking notes on safety requirements. Tr. 79-80. He described
it as “a year-long process.” Tr. 80. Although Gabel has some involvement in
preparing the annual refresher training materials, along with his wife, he
stated he doesn’t know if he reviews the content of the training materials
before they are approved. Tr. 86. The Secretary confirmed, upon the Court’s
inquiring, that there is no statutory requirement that the eight hours of
annual refresher training be completed in one session. Tr. 88.

Gabel Stone employees sometimes receive
annual refresher training at the mine site through a state agency, and
sometimes they go to another site for the training. Tr. 84-85. When miners at
the quarry attend annual refresher training on-site, Gabel informed that he “never
never went through a safety training as far as going in these classes... I’ve
sat through some of them at my own quarry, just as a witness. I did not know
that I was supposed to keep records on my hours of training.” Tr. 82-83. Gabel
then testified that in approximately 48 years of mining experience, he has
never been asked to show anyone a training certificate for his own training. Tr.
83.

Finally,
Gabel confirmed that on May 14, the day after Markeson issued the withdrawal
order, he completed eight hours of annual refresher training independently, by
watching eight hours of safety-related film. Tr. 84. Gabel said that his wife
was present for this self-training. [9]
Id . Gabel then sent the record of this training to Markeson so he could
resume working at the mine. Tr. 83.

On
cross-examination, Gabel admitted that he knows that his business must keep
records of annual training for all miners. Tr. 90. He also admitted that he
considers himself a miner. Id . When asked why he did not feel it was
important to have a training record for himself, Gabel responded, “I’ve never
been asked, didn’t know I was supposed to. I am very active in the safety part
of it. Never crossed my mind and never [been] asked for it until [Markeson] came.”
Tr. 91. Gabel also agreed that, while he occasionally looks in on annual
refresher training when it takes place at the mine, he generally keeps working
while the annual training is taking place: “If a truck comes in, I’ll run down
and load the truck and come back up [to the training.] I have sat partially in
these. I’m not telling you that I’ve been through these, but I will go in. I’ve
done this a long time.” Tr. 89

Discussion

In the Court’s estimation, the section
104(g)(1) order, alleging a violation of 30 C.F.R. §46.8(a)(2), was established
but, under all the circumstances, the violation in this instance was

de
minimis in nature. The reasons for this conclusion are twofold.

First, as mentioned above, the education
and training standards in Subchapter H are a curiosity in their wording,
because the various standards found therein routinely begin with the command
“You must.” In fact, “You” is defined at 30 C.F.R §46.2(p) to mean “production
operators and independent contractors.” Accordingly, the thrust of the Part 46
standards is clearly directed at ensuring that such operators and
contractors comply with its various provisions including the training plans
and their implementation, new miner training and annual refresher training,
among other requirements. Each of these standards is focused on providing the
various types of training for miners with the responsibility resting
upon the operator to make sure that its miners are so trained. Accordingly
the “You” in the cited standard, applies in this instance to Mr. Gabel. It is
therefore understandable that Mr. Gabel thought of himself in his primary role
as the mine operator, a view that no one in MSHA had disabused him of in years
of previous inspections.

It is true that the term “Miner” is also
a defined term within Part 46, where it is there expressed as “[a]ny person,
including any operator or supervisor, who works at a mine and who is engaged in
mining operations [and that] [t]his definition includes independent contractors
and employees of independent contractors who are engaged in mining operations,”
and therefore Mr. Gabel fits the broad definition. 30 C.F.R. § 46.2(g)(1)(i). However,
at age 71, Gabel’s primary role at Gabel Stone is that of the production
operator, that is to say, the “You,” referred to in the training and retraining
requirements.

The second, and independent, basis for
concluding that the violation was more of a technical transgression is evidenced
by the testimony of Markeson and by Gabel himself. Collectively, their
testimony was largely consistent in that both witnesses agreed that Gabel has
long been involved in providing training to his employees.

Bordering on a perversity, Gabel
complied with his training deficiency by training himself . One does not
usually think of self-training as the customary or typical method for
overcoming a training deficiency.  

That said, the Court does not adopt
Gabel’s contention that he fulfilled the annual refresher training requirement
through periodic reading and discussion on safety matters. Accordingly, the
Court was not persuaded by Gabel’s assertion that he covered the required
annual training materials piecemeal, through reading, taking notes, and having
discussions about workplace safety throughout the year. Nor is the Court
persuaded by the Respondent’s suggestion, while cross-examining Markeson, that
Gabel satisfied the annual training requirement by administering initial
training to new miners. Although there was some mention of Gabel’s role in
approving the annual training materials, the Court did not have enough evidence
to conclude that Gabel re-trained himself at some point in the 12 months
preceding the inspection while reviewing these materials. [10]

In
this instance, Gabel admitted that he mistakenly believed himself exempt from
this requirement. The Court inferred from the testimony that, although Gabel is
a miner, it never occurred to him, or to MSHA for that matter, that the annual
refresher training standard applies to him, even though he is also the owner of
the mine. As noted at hearing, the Court found Gabel’s account of how he has
prioritized worker safety at his mine to be credible, and it also found that he
was truthful in asserting that he is a safety-conscious person. These
considerations have relevance in evaluating negligence.

Docket
No. CENT 2015-0621; Order No. 8865801: Findings of Fact and Discussion

The
Secretary’s Evidence

When
Inspector Markeson returned to Willow Springs Quarry on June 16, 2015 to
continue his inspection, he issued a section 104(a) citation, Citation No.
8865801, for a guarding violation, citing 30 C.F.R. § 56.14107(a). Tr. 95-96,
referencing P-2. As pertinent here, the standard cited first provides that: “Moving
machine parts shall be guarded to protect persons from contacting gears,
sprockets, chains… flywheels… and similar moving parts that can cause injury.” 30
C.F.R. § 56.14107(a). However the standard also sets forth an exception to the
general guarding requirement, stating that “Guards shall not be required where
the exposed moving parts are at least seven feet away from walking or working
surfaces. 30 C.F.R. § 56.14107(b).    

In this instance a guard was present in
front of a portable flywheel, but the inspector measured it as reaching 6 feet
and 4 inches above ground level. Therefore, the flywheel was 8 inches short of
meeting the “at least 7 feet away walking and working surfaces” requirement. Tr.

102. Additionally the citation stated that “a grease block was 6 ½ inches from
     the unguarded portion of the flywheel.” Ex. P-2.

The Court then inquired about the
direction the flywheel would turn when activated, with the inspector advising
that it moved counter-clockwise. Tr. 104-05. The importance of this is that
there was no risk of one’s hand getting caught in the flywheel. Markeson
acknowledged that was true, but added that applied only to the side of the
flywheel that was cited by him. The other side of the flywheel would
present an entanglement or a pinch point risk, but the inspector admitted that
side was fully guarded .

In the Court’s view, the inspector
stretched the rationale he offered about the hazard presented by the
insufficient guard. The Court pointed out to the inspector that he used the
word “entanglement” in his citation, but he admitted there was no entanglement
risk at least in terms of a pinch point being created. Tr. 111. To justify that
claim, Markeson asserted that what he “was talking about was if one of those
burrs caught your sleeve or caught your arm.” Id . The Court continued,
“[y]ou call that entanglement?” Id . Markeson still attempted to support
his use of that word, saying,

[w]ell, if it
grabs your clothes and pulls, that's -- I mean it's not like getting pulled
into a turn roller, but it is still entanglement. It's much more minor while
the flywheel isn't perfectly smooth, it does have points that could cut you or
catch you. It's unlikely that it's going to cause an injury, because it's
turning away from you and not toward you. . . the injuries would be minor, possibly
broken bones, most likely lacerations, bruising, that type of injury would be if
you contacted the flywheel while it was turning.

Tr.
114.

Markeson
essentially shifted his account of the citation’s basis away from asserting a
risk of entanglement, adding that he “felt that [the flywheel] could grab your
sleeve or your arm while you were greasing,” while admitting that the actual
pinch point was on the other side of the flywheel, the non-cited side, which
side was properly guarded. Tr. 124-25.

In the Court’s estimation it is more
likely that Markeson didn’t think about the direction of travel for the
flywheel when he issued the citation. For that reason, at the hearing he had to
stretch his testimony. [11]  

The
Secretary presented photographs of the flywheel, in which Markeson contended
that he visualized a small nick in the edge of the flywheel. Tr. 109. He
testified that this contributed to his conclusion that there was a hazard of
cuts or abrasions without adequate guarding. Id . Markeson also stated
that there was roughly six and a half inches of space between the flywheel and
the grease block where miners do maintenance work. Tr. 110.

There
is considerable doubt that the flywheel had nicks or burrs on the surface, as
claimed by the inspector. Agreeing that the Respondent’s photographs were of
better clarity than the government photo of the flywheel, Markeson admitted on
cross examination that he could not see any burrs or nicks in those pictures. Tr.
123.

Markeson then described the conversation
he had with Gabel, who was accompanying him during the inspection. Tr. 112. Gabel
told Markeson that greasing is done on the flywheel while the plant is in
operation. In Markeson’s words, he was told “that the plant is lubricated, that
it’s greased, while it’s in operation.” Tr. 113. However, it was not clear
whether greasing is done while the flywheel is moving. Id . Markeson
noted that he was unsure how long this situation had existed, because in his
experience plants with multiple portable units occasionally reconfigure their
equipment. Tr. 117. Markeson remarked that Gabel said that the flywheel had been
in place for 14 years: “according to my notes, he told me it had existed for 14
years.” Tr. 117.

Based on this information, Markeson
concluded that the hazard would likely result in lost workdays, but that such
an injury was unlikely, saying,

The main reason
was because that flywheel turns away from the side that the miner is greasing
it, while the flywheel isn’t perfectly smooth, it does have points that could
cut you or catch you. It’s unlikely that it’s going to cause an injury, because
it’s turning away from you and not towards you.

Tr.
114.

He also marked the violation as
affecting one person, because only one person is required to do the maintenance
at the grease point. Markeson designated the negligence as low because,

Mr. Gabel
indicated to me that this condition had existed for a long period of time. And
from the appearance of the guard, that appeared to be true. The other reason was,
as I went through the plant, and Mr. Gabel’s plants are older equipment, much
of which probably wasn’t factory guarded. His plant has lots of moving parts,
lots of belts, and it’s all very well guarded, and I felt that if Mr. Gabel had
noticed this point, he would have guarded it. So I felt it was low negligence
on Mr. Gabel’s part, based on how good a job he does everywhere else. He just
missed this one.

Tr.
115.

Markeson
testified that the Respondent abated the condition by installing additional
guarding almost immediately, the same day that the inspection took place. Tr.
90.

The
Respondent’s Evidence

The Respondent
introduced additional photos of the flywheel, and Markeson admitted that he
could not see any nicks in those pictures. Tr. 123. Markeson agreed that the
Respondent’s photographs of the flywheel were of better quality than those
introduced by the Secretary. Id . Markeson also admitted that the back
side of the flywheel, where there is a pinch point, is guarded to a height of
seven feet or more. Tr. 124-25. Importantly, there was no guarding violation on
that other side, where a pinch point existed.

Putting
aside the misuse of the term “entanglement,” the Court finds the Respondent’s
evidence regarding any potential injury from contact with the flywheel to be
much more credible. Gabel testified that given the 6 foot and 4 inch distance
from ground level, one couldn’t have an elbow contact the flywheel while greasing
the nearby grease block. As Gabel convincingly explained, at the flywheel’s
slow speed, one could lay one’s hand on it and also that the flywheel’s surface
was smooth, without burrs or nicks. Tr. 147. The Secretary did not counter
Gabel’s assertion that one could place a hand on the moving flywheel without
being injured, and the Respondent’s photos certainly support the latter claim
that the flywheel’s surface was smooth and free of burrs.

At
the close of the hearing, the Secretary agreed to stipulate that aside from the
flywheel, there were no other moving machine parts with inadequate guarding. Tr.

143. As noted above, the inspector himself concluded that the “plant has lots
     of moving parts, lots of belts, and it’s all very well guarded.” Id. Gabel
     testified that he believed there was no hazard, because the flywheel moves relatively
     slowly, at 225 rotations per minute. Tr. 145-47. Gabel also argued that there
     was little or no risk of a miner bumping the flywheel while greasing, because
     there is a distance of six inches or more from the grease block to the flywheel.
     Tr. 147. Gabel re-emphasized that he is very committed to running a safe
     operation and taking proactive steps to ensure the safety of his employees. Tr.
     157-58.

Discussion

In
light of the evidence presented, upon applying the burden of proof [12] the
Secretary must meet, the Court concludes that both alleged violations were
established. For the reasons which follow, the Court finds that the guarding
violation was established, but that both the gravity and negligence attendant
to that violation were very low. While the violation was established, there was
a fundamental flaw in the inspector’s understanding of the hazard presented
because he stated in the citation “[t]his condition creates an entanglement
hazard to the miner.” Ex. P-2. The inspector was completely wrong about his claim
of an entanglement hazard.  

As
noted, the Court finds that the Secretary proved that this standard was
violated. Both parties stipulated that the flywheel in question is a moving
machine part, and “the height of the guard in question measured six feet, four
inches.” Jt. Ex. 1.

At
the time of the inspection, miners would routinely put their hands about six
inches away from the flywheel to perform maintenance while the plant was in
operation. Neither party presented evidence to show whether the flywheel was
typically in motion while this took place. Because of the direction in which
the flywheel rotates, there was no risk of clothing or limbs becoming pinched
or entangled in the machine. [13]
Both parties agreed that the back side of the flywheel, where there would
hypothetically be a risk of entanglement, such as a hand being pulled in, was
adequately guarded. It seems that this guarding issue existed for several
years, and went unnoticed by examiners both from the mine and from MSHA.

At hearing, the Secretary argued that
the violation presented a hazard of cutting or abrasion, and to this end
presented evidence of a nick in the edge of the flywheel. Tr.109, referencing
Ex. P-3-2. The Respondent disputed this evidence, and presented evidence that
the flywheel rotates at a relatively slow speed, and would therefore be
unlikely to cause abrasions if a miner accidentally came into contact with it. Tr.
123, 147. The Court agrees with the Respondent’s view that the risk of injuries
from cuts or abrasions was low.

Penalty
Determinations for Order No. 8778893 and Citation No. 8865801 [14]

Section 110(i) of the Mine Act confers
authority upon the Commission to assess civil penalties. It is well-established
that the Commission's judges are accorded broad discretion in assessing civil
penalties under the Mine Act. Musser Engineering, Inc ., 32 FMSHRC 1257,
1288-89 (Oct. 2010) (citing Cantera Green , 22 FMSHRC 616, 620 (May
2000)). In assessing civil monetary penalties, Section 110(i) requires that the
Court consider: (1) the operator’s history of previous violations, (2) the
appropriateness of the penalty to the size of the operator’s business, (3) the
operator’s negligence, (4) the gravity of the violation, (5) the operator’s
ability to continue in business, and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of
the violation.

Penalty assessments must reflect proper
consideration of the abovementioned penalty criteria. In determining the amount
of the penalty, neither the judge nor the Commission is restricted by a penalty
recommended by the Secretary. Sellersburg Stone Co ., 5 FMSHRC 287, 291
(Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984).

That
said, the Secretary’s proposed penalty cannot be glided over, as the Commission
also stated that judges “must explain any substantial divergence between the
penalty proposed by MSHA and the penalty assessed… If a sufficient explanation
for the divergence is not provided, the credibility of the administrative
scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness.” Am. Coal Co. , 38 FMSHRC
1987, 1994 (Aug. 26, 2016) (citing Sellersburg Stone Co ., 5 FMSHRC 287,
293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984)). The Commission requires
a duality in judge’s penalty analysis, stating on the one hand, that,
essentially, it was “[re]affirming the right and duty of Commission Judges to
make assessments independently,” while, on the other hand, simultaneously
requiring an “explan[ation] [for] any substantial divergence between the
penalty proposed by MSHA and the penalty assessed by the Judge. Id . at
1997. (citing Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986).  

As this Court reads the Commission’s
decision in American Coal , a judge must, on one hand, consider the
Section 110(i) penalty criteria in making a de novo penalty assessment, but in
doing so a judge must also explain the basis for agreement with, or any
substantial divergence from, the Secretary’s proposed penalty.

Penalty
Determination for Order No. 8778893: The Training Violation

As discussed above, Gabel’s failure to
fulfill the annual training requirement appears to have been the result of a
misunderstanding. The Court adopts Gabel’s contention that if he had received
information and guidance on the scope of this standard, he would have promptly fulfilled
the obligation for his own annual training.

Following
these precepts, and viewing the evidence in its totality, the Court finds that
the operator’s oversight with regard to annual refresher training was the
result of very low negligence. The gravity is similarly on the very low end of
that criterion. Upon considering the evidence regarding negligence, gravity, the
operator’s virtually non-existent history of violations, [15] its small
size, and its good faith in achieving very rapid compliance after being cited
for the training infraction, the Court has concluded that a penalty amount of $20.00
is appropriate and that a larger penalty is not warranted . [16]

Penalty
Determination for Citation No. 8865801: The Guarding Violation

The Court finds that the condition involving
the flywheel guarding was not likely to lead to lost workdays or restricted
duty in the event of an injury. Given the evidence presented regarding the
condition and operation of the flywheel, and the distance between the flywheel
and the grease point accessed by miners, the Court finds that the gravity of
the violation was less than that alleged by the Secretary. As with the training
violation, upon consideration of the entire evidentiary record, and the Court’s
consideration of each statutory criterion, with an emphasis on the very low gravity
involved and the rapid installation of additional guarding, the Court
determines that a penalty amount of $25.00 is appropriate .

Wherefore, it is ORDERED that
Citation No. 8865801 be MODIFIED from “lost workdays or restricted duty”
to “no lost workdays.”

It is further ORDERED that Gabel
Stone Company pay the Secretary of Labor a civil penalty in the total amount of
$45.00.

/s/ William B.
Moran

William B. Moran

Administrative
Law Judge

Distribution

Gary
and Justin Gabel, 2092 County Road, Suite 5900, Willow Springs, Missouri 65793

Maria
C. Rich, Conference and Litigation Representative, MSHA, 11000 Commerce Street,
Room 462, Dallas, Texas 75242

Susan
J. Willer, Esq., U.S. Department of Labor, Two Pershing Square, Suite 1020,
Kansas City, Missouri 64108

[1] It is
determined, per 29 C.F.R. § 2700.2(b)(4), that the Conference and Litigation
Representative (CLR) be accepted to represent the Secretary in accordance with
the notice of limited appearance she has filed with the penalty petition.
Cyprus Emerald Res. Corp. , 16 FMSHRC 2359 (Nov. 1994).

[2] As a preliminary
matter, the Court notes that the parties chose not to submit post-hearing
briefs in this matter.

[3] Markeson
testified regarding the plant’s usual operation, and the Respondent did not
dispute his account or offer any contradictory evidence. The mine is an open
pit, multi-level quarry with portable equipment set up as an on-site crushing
plant. Once rock has been drilled, it is transferred to the plant, where it
goes through several stages of crushing and screening and it is then stocked
for purchase. Tr. 30-31.

[4] Hereinafter,
“Gabel” refers to the Gary Gabel and not to Gabel Stone Co., the Respondent.

[5] The education
and training standards in Subchapter H are a curiosity in their wording,
because the various standards found therein routinely begin with the command “You
must.” In fact “You” is defined within the subchapter: “ You means
production-operators and independent contractors.” 30 C.F.R §46.2(p).  

[6] The parties
stipulated that the Respondent has never been cited for a violation of this
standard before. Tr. 92-93.

[7] When the Court
inquired if Markeson always marks violations of this sort as “fatal,” Markeson
replied, “if I was writing a training withdrawal order because a miner had
missed the last hour of annual refresher [training,] I don’t know that I
would mark fatal.” Tr. 42 (emphasis added). Therefore, practically speaking,
Markeson’s answer to the question was “yes,” as he would only consider a
designation other than fatal in extremely rare circumstances. As discussed infra ,
the Court finds the “fatal” designation to be overblown.

[8] Markeson listed
a number of other topics which are included in annual refresher training, but
not in new miner training, including fall prevention, working around moving
objects, site-specific health and safety risks, and power haulage hazards. Tr.
58.

[9] Joyce Gabel did
not testify.

[10] As mentioned
previously, Gabel was somewhat unclear on the extent of his involvement in this
process. Supra at 5; see also Tr. 86.

[11] Although the
following comment does not alter the Court’s conclusions that both violations were
established, the Respondent did raise an issue as to whether Markeson was determined
to find violations, if possible. 128-30. The Respondent’s concern stemmed from
an earlier incident in 2015 when Markeson issued a citation for failure to
notify MSHA that the mine was closed. Tr. 133. The inspector reached an
incorrect conclusion– that the mine was in operation – and accordingly that
citation had to be withdrawn. Without making an express finding about the
Respondent’s concern that the inspector was vexed by that outcome, the Court
wishes to stress that all inspections should be fair-minded, focusing on
genuine violative conditions and not be animated in any regard by past
interactions between inspectors and mine operators. MSHA inspectors are to
operate with professionalism and objectivity and approach each new inspection without
regard to past conflicts.

[12] The Secretary is
required to prove all elements of the alleged violations by a preponderance of
the evidence, which requires the trier of fact to believe that the existence of
a fact is more probable than its nonexistence. RAG Cumberland Res. Corp. ,
22 FMSHRC 1066, 1070 (Sept. 2000) (internal citations omitted).

[13] The text of the
citation is somewhat misleading on this point. Markeson wrote, “This condition
creates an entanglement hazard to the miner.” Ex. P-2-7. Markeson later
testified, “rather than a pinching hazard, it was more of a laceration/striking
hazard.” Tr. 108. The Secretary presented no evidence suggesting a risk of
entanglement.

[14] As noted above,
Order. No. 8778893, the annual refresher training violation, was initially
assessed for a $112.00 penalty. Citation No. 8865801, the guarding violation,
was initially assessed for a $100.00 penalty.

[15] The Secretary
admitted that Gabel Stone has no history of non-compliance issues regarding
miner training standards. Tr. 93.

[16] The criterion
of the effect on the ability to continue in business is a non-factor under the
Secretary’s proposed penalty and therefore under the Court’s assessment as
well.