Secretary of Labor v. Southern Aggregates, LLC

Plain-English summary

Southern Aggregates operates a surface sand and gravel mine where MSHA cited a fire extinguisher showing a recharge reading and a detached guard at a pea-gravel belt head pulley. Judge Jacqueline Bulluck found that the Secretary did not prove the extinguisher had actually been discharged, but did prove it was not maintained in fire-ready condition because miners could not rely on its gauge during an emergency. She reduced that violation to no negligence because the preshift check revealed no defect and the gauge apparently moved during the shift. The judge vacated the guard citation because the Secretary did not prove that vibration, shock, or wear from normal operation caused the guard's ties to fail, and MSHA had not cited the separate secured-in-place requirement. Southern Aggregates was assessed $50 for the modified extinguisher violation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.4203, 56.4200(b)(2), and 56.14112(a)(1)
• Outcome: The extinguisher citation was affirmed under the alternative fire-ready standard with no negligence and a $50 penalty; the guard citation was vacated.
• Key point: A recharge gauge can prove that an extinguisher is not fire ready, while an out-of-place guard alone does not prove that normal operating stresses caused its failure.

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.

SOUTHERN
AGGREGATES, LLC,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. CENT 2016-463-M

A.C. No. 16-01536-414747

Docket No. CENT 2016-519-M

A.C. No. 16-01536-417024

Mine: Plant 9

DECISION

Appearances:               Jim
DoByns, Conference and Litigation Representative, U.S. Dept. of Labor, MSHA,
Dallas, Texas; Christopher Lopez-Loftis, Esq., U.S. Dept. of Labor, Office of
the Solicitor, Dallas, Texas, for Petitioner;

Justin
Winter, Esq. and Bryan Carey, Esq., Conn Maciel Carey PLLC, Washington, D.C.,
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 Southern
Aggregates, LLC, (“Southern Aggregates”), 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 $214.00 for two alleged violations of his
mandatory safety standards.

A hearing was held in New Orleans, Louisiana. The
following issues are before me:   (1) whether Southern Aggregates violated the cited
standards; (2) whether the violations were attributable to the level of gravity
alleged; (3) whether the violations were attributable to the degree of
negligence alleged; and (4) the appropriate penalty. The parties’ Post-hearing
Briefs are of record.

For the reasons set forth below, I VACATE one
citation, AFFIRM one citation, as modified, and assess a penalty against
Respondent.

I.          FACTUAL BACKGROUND

Southern Aggregates operates Plant
9, a surface sand and gravel mine in Amite, Louisiana, which employs 11 miners.
Ex. R-1 at 1. Southern Aggregates’ mining process involves dredging sand from a
pond into two plants consisting of belt lines, screw conveyors, a log washer,
and a scale house. Tr. 20. Kevin Black, Plant 9 Vice President and General Manager,
and Duane “Bull” Lanier, Plant 9 Manager, were working at the Plant at the time
of the inspection. Tr. 79, 81; Ex. R-1 at 2.

On May 26, 2016, MSHA Inspector O’Neal Robertson,
accompanied by Bull Lanier, conducted a regular inspection of Plant 9 that resulted
in three citations, two of which are at issue in this proceeding: failure to
replace a discharged fire extinguisher in the cab of an excavator (Ex. P-1);
and failure to maintain a guard on the pea gravel beltline to withstand the
effect of normal operation (Ex. P-3). Tr. 19, 21.    

II.        FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.        Citation No. 8964279

Inspector Robertson issued 104(a)
Citation No. 8964279 on May 26, 2016, alleging a violation of section 56.4203
that was “unlikely” to result in an injury that could reasonably be expected to
result in “lost workdays or restricted duty,” and was caused by Southern
Aggregates’ “moderate” negligence. [1]
The “Condition or Practice” is described as follows:

Fire extinguishers
shall be recharged or replaced with a fully charged extinguisher promptly after
any discharge. The five lbs. fire extinguisher in the John Deere excavator
showed recharged on the gauge. The excavator is used as needed to do various
clean up jobs around the plant. A miner has been using this machine since the
start of his shift. A miner could receive smoke or burn type injuries from not
being able to extinguish a fire at its early stages.

Ex. P-1. The citation was terminated on May 26, after Southern
Aggregates replaced the extinguisher in the excavator.

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 Southern
Aggregates failed to replace a fire extinguisher which, according to its
pressure gauge, had been discharged. In the alternative, the Secretary argues
that the gauge reading demonstrated that the extinguisher was not being maintained
in fire-ready condition because a miner would choose not to use it in the event
of a fire. Sec’y   Br. at 6-7.

Southern Aggregates, relying on the
National Fire Protection Association’s Standard for Portable Fire Extinguishers,
argues that a gauge reading, alone, is insufficient to establish a violation of
either standard, and that the fire extinguisher had not been discharged and was
fire ready. Resp’t Br. at 7-9 (citing 10 National
Fire Protection Association, Standard for Portable Fire Extinguishers §§
7.1.7.1.1, 7.2.2, A.7.7.1.3 (2013 ed.)). It cites several cases in support of
its position that the operator can rebut evidence of discharge with other
indications of an extinguisher’s condition. Resp’t Br. at 6-8; see Warren E.
Manter Co., Inc. , 11 FMSHRC 805 (May 1989) (ALJ) (dismissing a violation of
section 56.4203 where the inspector failed to note an extinguisher’s pressure
gauge reading, and the operator averred that the extinguisher was full); Paul
Hubbs Constr. Co. , 9 FMSHRC 1368 (Aug. 1987) (ALJ) (upholding a violation
of section 56.4200(b)(2) where the inspector observed a “completely discharged”
fire extinguisher in a trailer, and the operator failed to prove that it had
been discharged by vandalism); and Brighton Sand & Gravel , 13 FMSHRC
127 (Jan. 1991) (ALJ) (upholding a violation of section 56.4203 by relying upon
the low gauge reading).  

Inspector Robertson came to MSHA in
2015, having worked in the mining industry for 21 years, with experience and
training in diesel engine maintenance and fire suppression. Tr. 16-18. He had performed
approximately 160 MSHA inspections, and cited fire extinguisher and guarding
violations. Tr. 17-19. Robertson testified that on May 26, he inspected the cab
of a Southern Aggregates excavator that had been operated recently, and observed
that the gauge on a five-pound fire extinguisher displayed “recharge.” [2]
Tr. 24, 45, 62; Exs. P-1 at 2, P-2 at 1;     Ex. R-1 at 5. He stated that the
extinguisher showed no signs of damage, that the firing pin and zip-tie were
intact, that he was not told that it had been used, and that Southern
Aggregates diligently performs preshift examinations. Tr. 30, 45-46. He opined
that the excavator operator was exposed to burn and smoke inhalation hazards
because the extinguisher, possibly partially or even fully inoperable, may have
been ineffective in timely extinguishing a fire. Tr. 28-29. He determined that such
injury would have been unlikely, however, because the excavator operator would have
been able to leave the cab in the event of a fire, and other fire extinguishers
were accessible. Tr. 29.

He testified that section 56.4203
requires operators to replace or recharge fire extinguishers that have been
discharged, and that section 56.4200(b)(2) requires operators to maintain fire
extinguishers in ready-to-use condition. Tr. 24. He explained that a fire
extinguisher is operated by removing the firing (or retaining) pin, which
breaks the zip-tie holding the pin in place, thereby allowing the trigger to be
squeezed to release the fire extinguishing chemical. Tr. 47-49. Finding an
intact zip-tie and firing pin, without more, he testified, is an insufficient
basis for concluding that the extinguisher had not been discharged, considering
that he has personally encountered extinguishers that have leaked propellant
because of being jostled around. Tr. 67-71, 73-74. Nor would such leaks be
detectible by weighing the extinguisher, he stated, because propellant weighs very
little compared to the extinguishing chemical which accounts for most of its
weight. Tr. 75. Instead, he explained, miners are trained to rely upon the
gauge reading, which indicates the pressure of the gaseous propellant that
dispenses the extinguishing chemical and, even in a fire emergency, miners
would seek an alternative to using an extinguisher indicating that it needs
recharging. Tr. 25-26, 70-71.

VP Kevin Black testified that he
instructed an employee to deliver the cited extinguisher to him on the day of
the inspection. Tr. 85. He opined that the gauge was on “recharge” because it may
have been faulty, as opposed to the extinguisher having been discharged. Tr. 87.
He reached that conclusion because the fire extinguisher was in good condition,
the firing pin and zip-tie were intact, its weight was consistent with that of
a fully charged extinguisher, the preshift examination noted no defects and,
based upon his management position, any event requiring its discharge would
have been reported to him. Tr. 82-86. Furthermore, he noted that miners would have
replaced the extinguisher had the “recharge” gauge reading been observed. Tr.
104.

Robertson and Black both testified
that during the later post-inspection close-out meeting, Black told Robertson
that he had weighed the fire extinguisher and found the weight to be consistent
with that of a fully-charged unit, i.e., slightly less than five pounds. Tr.
30-31, 49-50, 86. Robertson also corroborated Black’s testimony that he offered
to discharge the extinguisher to prove it operable, but that Robertson declined
to consider its weight or a discharge test because of his uncertainty as to
whether the extinguisher had been switched. Tr. 50, 88-89. Black stated that he
was of the impression that Robertson would be issuing the citation in any case
and, therefore, he did not discharge it. Tr. 88-89. 

It is uncontested that the pressure
gauge of the fire extinguisher was in the “recharge” position, that the
extinguisher was otherwise in good condition, that its weight was slightly less
than five pounds, and that the firing pin and zip-tie were intact. I credit
Black’s testimony that he would have been made aware of any event involving its
intentional discharge and, in conjunction with Robertson’s testimony attesting
to Southern Aggregates’ diligence in performing examinations, and Black’s
assertion that the May 26 preshift examination revealed no defects on it, I
find that the low pressure reading manifested some time after the preshift
examination, and that the cause was other than intentional discharge. Simply
put, the Secretary has not presented sufficient evidence to establish that
Southern Aggregates discharged the fire extinguisher, triggering a duty to
recharge or replace it, as opposed to the “recharge” indicator being a
condition of leaked propellant or a faulty gauge. Therefore, I find that the
Secretary has failed to establish a violation of section 56.4203.

Such is not the case, however, when
analyzing the facts under the alternatively pled standard, section
56.4200(b)(2), which requires Southern Aggregates to maintain its fire
extinguishers in fire-ready condition. Robertson offered credible, unrebutted
testimony that miners are trained to rely on the gauge and, therefore, would forego
use of a fire extinguisher indicating “recharge” in the event of an emergency. This
position is persuasive, given that fire emergencies generally leave no time for
testing of firefighting equipment. Southern Aggregates’ reliance on sections of
the Standard for Portable Fire Extinguishers, cited to contend, in essence,
that a fire extinguisher may be fire ready even if the gauge is malfunctioning,
is misplaced. Those sections merely enumerate criteria for inspecting fire
extinguishers, including weighing the units and checking their gauges; they do
not establish that fire extinguishers are fire ready where the gauges indicate
otherwise. Similarly, none of the cases cited by the operator undermines the
central importance of reliance on the pressure gauge to determine fire
readiness. On the contrary, the citation in Manter was vacated precisely
because the inspector failed to check the gauge. Thus, Robertson’s sole reliance
on the fire extinguisher’s gauge is consistent with the reasonable proposition
that an extinguisher cannot be fire ready where a miner cannot rely upon the
visual cue provided, especially during an emergency, to alert him immediately
to its condition. Moreover, by Southern Aggregates’ own account, its miners
would have replaced the extinguisher had they noticed the gauge reading. Accordingly,
the Secretary has established a violation of section 56.4200(b)(2).

2.         Gravity and Negligence

The record establishes the unlikelihood of the
excavator operator suffering injuries resulting in lost workdays or restricted
duty from smoke inhalation and burns in the event of a fire, because of ease of
egress from the cab and accessibility of other fire extinguishers. The
Secretary argues that Southern Aggregates was moderately negligent under either
standard because, as mitigation, it examines its fire extinguishers daily. Sec’y
Br. at 8. As noted above, the preshift examination of the fire extinguisher was
unremarkable, and the “recharge” indicator developed as the excavator was
operating during the shift. No prudent operator, exercising reasonable care, would
have known of the gauge movement under these circumstances and, accordingly, I
find that Southern Aggregates was not negligent in violating the standard.

B.        Citation
No. 8964281

Inspector Robertson issued 104(a) Citation No. 8964281
on May 26, 2016, alleging a violation of section 56.14112(a)(1) that was “unlikely”
to result in an injury that could reasonably be expected to result in “lost
workdays or restricted duty,” and was caused by

Southern Aggregates’ “moderate” negligence. [3]
The “Condition or Practice” is described as follows:

Guards shall be constructed
and maintained to withstand the vibration, shock, and wear to which they will
be subjected during normal operation; and shall be securely in place while
machinery is being operated except when testing or making adjustments which
cannot be performed without removal of the guard. The guard for the p gravel
stacker belt had fallen off exposing the rotating shaft on the head pulley. The
opening on the guard measured 3 ft. wide x 4½ ft. long. Miners come in this
area as needed to do maintenance and repairs. A miner could receive
entanglement type injuries from contacting rotating machinery.  

Ex. P-3. The citation was terminated on May 26, when
Southern Aggregates secured the guard in place.

1.         Fact
of Violation

The Secretary contends that a
head-pulley guard had detached from its mounting points, creating an opening
for miners to inadvertently contact moving parts. Sec’y Br. at 9-10. The
Secretary cites two cases in which violations were found under section
56.14112(b) to support his contention that evidence of the detached guard, by
itself, is sufficient to find a violation under section 56.14112(a)(1). Sec’y
Br. at 10-11 (citing Washington Rock Quarries, Inc. , 28 FMSHRC 1080
(Dec. 2006) (ALJ); and Jamieson Co. , 13 FMSHRC 1500 (Sept. 1991) (ALJ)).

Southern Aggregates argues that there
is no evidence that the guard had not been designed or maintained to withstand
normal operation, and that the citation should be vacated. Resp’t Br. at 10-12
(citing Lakeview Rock Products, Inc. , 19 FMSHRC 321 (Feb. 1997) (ALJ)
(vacating a section 56.14112(a)(1) order where no evidence was presented that
the tail-pulley guard came out of place as a result of normal operation)).

Robertson testified that section
56.14112(a)(1) requires guards to be constructed and maintained to protect
miners during normal equipment operation. Tr. 33. He stated that on May 26, while
the plant was operating, he climbed the catwalk of the pea gravel belt, an incline
stacker beltline, until he reached the head-pulley area, situated approximately
20 to 25 feet above ground, and that miners would periodically enter this area
to perform maintenance or repairs.  Tr. 33, 35, 36, 39, 52-53. He was shown two
photographs that he took during the inspection, which he described as depicting
a metal guard that was leaning against the head-pulley mechanism and, thus, was
not positioned in its designated place. Tr. 34, 37; Ex. P-4 at 1-2. He
testified that the guard showed no signs of wear and tear, and was not bent,
only rusted from age. Tr. 55. He determined that the guard had come askew
because the tabs (zip-ties or tie wire) securing it to the frame had broken
sometime before the inspection. Tr. 34, 37. He discussed this condition with
Bull Lanier, who told him that miners had been working in that area a couple of
days before the inspection. Tr. 39. Robertson testified that he could not
remember whether, in fact, Lanier told him that the guard had been removed in
order to perform maintenance but, he surmised, maintenance “very likely”
explained the guard’s detachment. Tr. 56, 74. 

Black testified that miners access
the head-pulley monthly to perform greasing. Tr. 92. When shown Robertson’s two
photographs of the guard, he testified that the guard was askew because the ties,
either zip-ties or tie wire, holding it in place had “broke.” Tr. 91, 95; Ex.
P-4 at 1-2. Finally, he stated that he did not know whether maintenance had
been performed in the head-pulley area before the inspection, but implied that
Lanier would know. Tr. 111-12.

Commission judges have upheld
section 56.14112(a)(1) violations where there is credible evidence that the
conditions of normal equipment operation caused the guards to dislodge. For
example, in Northshore Mining Company , a violation of section
56.14112(a)(1) was found upon the inspector’s testimony that normal operation
included exposure to corrosion from wet processes and belt vibrations which
caused the guard’s failure. 36 FMSHRC 426, 431-32 (Feb. 2014) (ALJ); see
also Carder Inc. , 27 FMSHRC 839, 842-44 (Nov. 2005) (ALJ) (finding a
violation of section 56.14112(a)(1) where the inspector testified that vibrations
from normal operation caused the guard to become loose). Conversely, citations
have been vacated where such causal evidence was lacking. For example, in Lakeview ,
a violation of section 56.14112(a)(1) for an out-of-place rear tail-pulley
guard and side guard was vacated because the Secretary’s evidence was limited
to the danger posed by the openings between the dislodged guards, and there was
no evidence that the guards detached due to vibration, shock, or wear from
normal operation. 19 FMSHRC at 355-57. Similarly, in Lehigh Southwest Cement
Company , a violation of section 56.14112(a)(1) for a damaged guard on the
tail-pulley was vacated because the inspector’s notes and operator’s testimony
indicated that the guard had been damaged by a Bobcat skid-steer loader, an
abnormal event unrelated to normal operation. 33 FMSHRC 340, 352 (Feb. 2011)
(ALJ).

In this case, prior to the inspection,
the ties securing the guard in place had broken or been severed, and the guard
had dislodged from its originally designated position. The guard was observed
to be in good condition, without signs of wear or tear, and I credit Robertson’s
account of what he was told, that maintenance had been performed a few days prior
to the inspection. Critically, no evidence was introduced as to the actual
cause of the ties’ compromise, and Robertson could only speculate as to the probability
that the guard was displaced due to recent maintenance. Here, as in Lakeview ,
there is no evidence of the stress generally imposed on the guard by normal
operation, let alone any evidence that operational stress specifically caused
the ties to break. Therefore, the record provides no basis from which to conclude
that the guard dislodged due to normal operation of the beltline, rather than from
some abnormal incident, as in Lehigh , or from deliberate severance of
the ties during recent maintenance. Furthermore, notwithstanding the exposure to
the moving parts of the head-pulley, there is no evidence that the guard,
detached and leaning against the head-pulley, would not be able to withstand
the vibration, shock, and wear of continued normal operation. I note, at this
juncture, that Southern Aggregates was not cited under the standard requiring
that guards be secured in place. Accordingly, I find that the Secretary has failed
to establish a violation of section 56.14112(a)(1), and Citation No. 8964281
must be vacated. [4]

III.       PENALTY

While the Secretary has proposed a civil penalty
of $114 for Citation No. 8964279, 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 Southern Aggregates is a small
operator employing 11 miners, with an overall history of violations that is neither
a mitigating nor aggravating factor in assessing appropriate penalties (in the
15 months preceding the inspection, the operator had been cited for eight
violations, unrelated to any standard at issue in this proceeding). As
stipulated, Southern Aggregates demonstrated good faith in achieving rapid
compliance after notice of the violations. Jt. Stip. 7. Since Southern
Aggregates has not put forth any evidence that imposition of the proposed
penalty would adversely affect its ability to remain in business, “it is
presumed that no such adverse [e]ffect would occur.” Sellersburg , 5
FMSHRC at 294 (citing Buffalo Mining Co. , 2 IBMA 226, 247-48 (Sept.
1973)).

The remaining criteria involve
consideration of the gravity of the violation, and Southern Aggregates’
negligence in its commission. These factors have been discussed fully,
respecting each violation. Therefore, considering my findings as to the six
penalty criteria, the penalty is set forth below.

Respecting Citation No. 8964279, it has been
established that this violation of section 56.4200(b)(2) was unlikely to cause
injuries resulting in lost workdays or restricted duty, that Southern
Aggregates was not negligent in violating the standard, and that it was timely
abated. Based on these factors, and considering the operator’s lack of
negligence, I find that a penalty of $50.00 is appropriate.

ORDER

WHEREFORE , it
is ORDERED that Citation No. 8964281 (Docket No. CENT 2016-463-M) is VACATED ,
and that Citation No. 8964279 (Docket No. CENT 2016-519-M) is AFFIRMED ,
as modified, to “no negligence.”

It is further ORDERED
that Southern Aggregates, LLC, PAY a civil penalty of $50.00 within
thirty (30) days of the date of this Decision. [5]
ACCORDINGLY , these cases are DISMISSED .

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Jim DoByns, Conference and
Litigation Representative, U.S. Department of Labor, MSHA, 1100 Commerce
Street, Room 462, Dallas, TX 75242

Christopher Lopez-Loftis, Esq.,
U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite
501, Dallas, TX 75202

Justin Winter, Esq., Bryan
Carey, Esq., Conn Maciel Carey PLLC, 5335 Wisconsin Avenue, N.W., Suite 660,
Washington, DC 20015

/tcp

[1]
30 C.F.R. § 56.4203 provides that “[f]ire extinguishers shall be recharged or
replaced with a fully charged extinguisher promptly after any discharge.” The
Secretary’s unopposed Motion to Plead in the Alternative a violation of 30
C.F.R. § 4200(b)(2) was granted on October 21, 2016.

30 C.F.R. § 56.4200(b)(2)
provides that “onsite firefighting equipment shall be [s]trategically located,
readily accessible, plainly marked, and maintained in fire-ready condition.”

[2]
Robertson’s testimony variously refers to the gauge as indicating either
“discharge” or “recharge.” Both terms have the same meaning and effect.

[3]
30 C.F.R. § 56.14112(a)(1) provides that “[g]uards shall be constructed and
maintained to [w]ithstand the vibration, shock, and wear to which they will be
subjected during normal operation.”

[4]
The Secretary’s reliance on Washington Rock and Jamieson is
misplaced because those cases arose under a distinguishable standard, section
56.14112(b), requiring that guarding be secured in place, whereas section
56.14112(a)(1) requires that guards be constructed and maintained to withstand stresses
of normal operation.

[5]
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.