Secretary of Labor v. Rock Products, Inc.

Plain-English summary

Rock Products contested citations from three inspections of its New Mexico sand-and-gravel operation. Judge Margaret A. Miller affirmed violations involving an unchocked loader, damaged access steps, an unguarded tail pulley, a defective parking brake, oil near loader controls, nonfunctional warning devices, engine oil, a defective safety bar, and unsafe conveyor troubleshooting. She reduced negligence or gravity on several citations where the Secretary lacked proof of aggravated carelessness or likely exposure. She vacated a damaged-tire citation because the Secretary did not show that the defect affected safety, and vacated an electrical-switch citation because the operator had shut down and locked out the system while repairs were underway. A foreman's decision to place his hand near an energized conveyor during troubleshooting was S&S and unwarrantable. Total penalties were $24,984.

Decision snapshot

• Principal standards: 30 C.F.R. §§ 56.14207, 56.14100(b), 56.14107(a), 56.14101(a)(2), 56.14103(c)(1), 56.14132(a), 56.4102, 56.12002, and 56.14105
• Outcome: Most citations were affirmed, two were vacated, several negligence or gravity findings were reduced, and total penalties of $24,984 were assessed.
• Key point: Equipment defects support liability when daily use or deliberate modification shows operator knowledge, but aggravated negligence and safety effect still require evidence specific to each condition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

May 31, 2018

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

ROCK
PRODUCTS, INC.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. CENT 2017-0397

A.C.
No. 29-02323-441046

Docket
No. CENT 2017-0432

A.C.
No. 29-02323-443333

Docket
No. CENT 2017-0433

A.C.
No. 29-02323-443333

Mine:
Crusher #10

DECISION AND
ORDER

Appearances:   Felix
R. Marquez, U.S. Department of Labor, Office of the Solicitor, Dallas, Texas, for
Petitioner;

Charles
W. Newcom, Sherman & Howard LLC, Denver, Colorado, for Respondent.

Before:                        Judge
Miller

These cases are
before me upon petitions for assessment of civil penalties filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d) (“the Act”). These dockets involve fourteen
citations issued pursuant to Sections 104(a) and 104(d)(1) of the Act with originally
proposed penalties totaling $30,934.00. Respondent withdrew its contest of Citations
No. 8968775 and 8968780 at hearing.  The parties presented testimony and
evidence regarding the remaining citations at a hearing held in Albuquerque,
New Mexico, on March 7, 2018. Based upon the parties’ stipulations, my review
of the entire record, my observation of the demeanors of the witnesses, and
consideration of the parties’ legal arguments, I make the following findings
and order.

Crusher No. 10 is a sand and gravel mine
located in Valencia County, New Mexico, and operated by Rock Products, Inc. The
parties have stipulated that Rock Products is an “operator” as defined in
Section 3(d) of the Mine Act, 30 U.S.C. § 803(d), and is subject to the
jurisdiction of the Commission. Jt. Stips. ¶¶ 2, 3, 4.

On May 2, 2017, MSHA Inspector John
Lewis visited the mine to conduct a regular inspection. Inspector Lewis has
been a mine inspector for two years and four months, and prior to that time
worked in the mining industry. He has a bachelor’s degree in business and is a
certified MSHA trainer. He conducted three inspections of Crusher No. 10 that
are discussed here. The first began on May 2, 2017, as a regular inspection. The
second was a hazard complaint investigation beginning on May 9, 2017. The third
began on May 11, 2018, after a reported accident at the mine.

Lewis arrived at Crusher No. 10 on May
2, 2017, to conduct a regular inspection. He met with Rob Martinez,
the safety manager for Crusher No. 10 as well as several other mines owned by
the same company, and Mason Holman, the supervisor of Crusher No. 10 as well as
Rock Products Crusher No. 6. Martinez and Holman both testified on behalf of
the mine along with several other witnesses. Several of the violations were
marked as high negligence, and a number were assessed as significant and
substantial violations.

I.       
APPLICABLE
PRINCIPLES OF LAW

Establishing
a Violation

To prevail on a penalty petition, the Secretary
bears the burden of proving an alleged violation by a preponderance of
evidence. RAG Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d ,
272 F.3d 590 (D.C. Cir. 2001); Jim Walter Res., Inc. , 9 FMSHRC 903, 907
(May 1987). The Secretary may establish a violation by inference in certain
situations, but only if the inference is “inherently reasonable” and there is
“a rational connection between the evidentiary facts and the ultimate fact
inferred.” Garden Creek Pocahontas Co ., 11 FMSHRC 2148, 2152-53 (Nov.
1989); see also Eagle Energy Inc ., 23 FMSRHC 1107, 1118 (Oct.
2001).  

Negligence

The Commission
has recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and an operator’s
failure to meet the appropriate duty can lead to a finding of negligence if a
violation of the standard occurs.” A.H. Smith Stone Co. , 5 FMSHRC 13, 15
(Jan. 1983). In determining whether an operator met its duty of care, the judge
must consider “what actions would have been taken under the same circumstances
by a reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Newtown Energy, Inc. ,
38 FMSHRC 2033, 2047 (Aug. 2016); Brody Mining, LLC , 37 FMSHRC 1687,
1702 (Aug. 2015); U.S. Steel Corp. , 6 FMSHRC 1908, 1910 (Aug. 1984). While
the Secretary’s Part 100 regulations evaluate negligence based on the presence
of mitigating factors, Commission judges are not limited to that analysis. Brody,
37 FMSHRC at 1702-03. Rather, Commission judges consider “the totality of
the circumstances holistically.” Id. at 1702. The Commission has
recognized that “the gravamen of high negligence is that it ‘suggests an
aggravated lack of care that is more than ordinary negligence.’” Id. at
1703 (quoting Topper Coal Co. , 20 FMSHRC 344, 350 (Apr. 1998)).

The Mine Act
places primary responsibility for maintaining safe and healthful working
conditions in mines on operators, and they are thus expected to set an example
for miners working under their direction. Newtown , 38 FMSHRC at 2047; Wilmot
Mining Co. , 9 FMSHRC 684, 688 (Apr. 1987); see also 30 U.S.C. §
801(e). “Such responsibility not only affirms management’s commitment to safety
but also, because of the authority of the manager, discourages other personnel
from exercising less than reasonable care.” Wilmot , 9 FMSHRC at 688. When
a violation is committed by a non-supervisory employee, the conduct of the
rank-and-file miner is not imputable to the operator for negligence purposes. Ky.
Fuel Corp. , 40 FMSHRC 28, 31 (Feb. 2018). In such circumstances, Commission
judges must analyze “whether the operator has taken reasonable steps to prevent
the rank-and-file miner’s violative conduct.” Id. ; see also Knight
Hawk Coal, LLC , 38 FMSHRC 2361, 2369 (Sept. 2016). Relevant considerations
include “the foreseeability of the miner’s conduct, the risks involved, and the
operator’s supervising, training, and disciplining of its employees to prevent
violations of the standard [at] issue.” A.H. Smith Stone Co. , 5 FMSHRC
13, 15-16 (Jan. 1983).

The negligence
of an operator’s agent is imputable to the operator for penalty assessment and
unwarrantable failure purposes. Nelson Quarries, Inc ., 31 FMSHRC 318,
328 (Mar. 2009); Whayne Supply Co ., 19 FMSHRC 447, 450 (Mar. 1997); Rochester
& Pittsburgh Coal Co ., 13 FMSHRC 189, 194 (Feb. 1991). The Mine Act
defines an “agent” as “any person charged with responsibility for the operation
of all or a part of a coal or other mine or the supervision of the miners in a
coal or other mine.” 30 U.S.C. § 802(e). In analyzing whether an employee is an
agent of an operator, the Commission has considered factors including “the
ability of the employee to direct the workforce, whether the employee holds
himself out as a person with supervisory responsibilities and is so regarded by
other miners, and whether the actions of the employee in directing the
workforce have an impact on health and safety at the mine.” Nelson Quarries ,
31 FMSHRC at 328.

Significant
and Substantial

A “significant
and substantial” (“S&S”) violation is described in Section 104(d)(1) of the
Mine Act as a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated
S&S “if based upon the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum
Co. , 3 FMSHRC 822, 825 (Apr. 1981).

In Mathies
Coal Co. , the Commission established the standard for determining whether a
violation is S&S:

In order to establish that a violation
of a mandatory safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) a discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.

6 FMSHRC 1, 3-4
(Jan. 1984).

The second element
of the Mathies test addresses the likelihood of the occurrence of the
hazard the cited standard is designed to prevent. Newtown Energy, Inc .,
38 FMSHRC 2033, 2036 n.8 (Aug. 2016). The Commission has explained that
“hazard” refers to the prospective danger the cited safety standard is intended
to prevent. Id. at 2038. For example, Newtown involved a violation
of a standard requiring that equipment be locked out and tagged out while
electrical work is being performed. Id. The Commission determined that
the hazard was a miner working on energized equipment. Id . The
likelihood of the hazard occurring must be evaluated with respect to “the
particular facts surrounding the violation.” Id. ; see also McCoy
Elkhorn Coal Corp ., 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies , 6
FMSHRC at 4. At the third step, the judge must assess whether the hazard, if it
occurred, would be reasonably likely to result in injury. Newtown , 38
FMSHRC at 2037. The existence of the hazard is assumed at this step. Id .;
Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 161-62 (4th Cir.
2016). As with the likelihood of occurrence of the hazard, the likelihood of
injury should be evaluated with respect to specific conditions in the mine. Newtown,
38 FMSHRC at 2038. Finally, the Commission has found that the S&S
determination should be made assuming “continued normal mining operations.” McCoy ,
36 FMSHRC at 1990-91.

II.    
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

Citation No. 8968761 .

As he entered the property to begin his
inspection, Inspector Lewis observed a front-end loader idling unattended. The
parking brake on the loader was set, but Lewis checked each of the wheels and
found that they were not chocked. Lewis observed that the loader was parked on
a grade and the transmission was in neutral. There was no foot traffic in the
area. Lewis waited until the operator returned to the area and asked him to get
into the loader and release the parking brake. The machine rolled a few feet. Lewis
noted that the operator had left the bucket of the machine down, but the
machine still rolled when tested. When asked, the operator of the loader
informed Lewis that he did not have any wheel chocks.

Lewis issued a citation for a violation
of 30 C.F.R. § 56.14207, which requires that “Mobile equipment shall not be
left unattended unless the controls are placed in the park position and the
parking brake, if provided, is set. When parked on a grade, the wheels or
tracks of mobile equipment shall be either chocked or turned into a bank.”

Respondent argues that there was no
grade where the loader was parked. Martinez, the company safety director,
testified that the grade in the area was minimal. The photograph of the
violation introduced by the Secretary does not show an obvious grade. Ex. 6-1. On
cross-examination, Lewis admitted that while he had estimated a seven percent
grade, a similar seven percent grade on a road known to him was steeper than
the one in the photograph. Nevertheless, I credit the inspector’s testimony
that there was a grade which caused the loader to roll. The loader was in
neutral and the wheels were not chocked or turned into the bank. Therefore, I
find that the Secretary has proven a violation.

Lewis found the negligence to be high
because he believed that management was aware of the standard and that miners
should be aware of it through training. Respondent argues that there were
mitigating factors because the bucket was down, which prevented the loader from
rolling far, and the loader was not parked in a hazardous area.

The Commission addressed the negligence
of a similar violation in Kentucky Fuel Corp. , 40 FMSHRC 28 (Feb. 2018).
That case involved an injury to a mechanic who was working on a vehicle. The
mine was cited for a failure to block machinery against motion when conducting repairs,
and the judge found that the violation resulted from high negligence. The
Commission affirmed the judge’s finding because the operator had failed to
provide wheel chocks for use at the mine. Id. at 39. The Commission
found that the failure to provide the materials necessary for compliance with the
standard was a particularly significant breach of the operator’s duty of care
because it meant that a miner could not comply with the safety standard. Id.
at 40. Thus, the operator’s actions displayed the aggravated lack of care
required for high negligence. Id. at 41.  

In this case, the Secretary has demonstrated
an “aggravated lack of care that is more than ordinary negligence” on the part
of the mine operator. Brody , 37 FMSHRC at 1703. The operator of the
loader was a rank-and-file miner who is required to be trained before he
operates heavy equipment. He left the loader in neutral instead of in gear and
he failed to turn the wheels and chock them. Although it is not clear whether chocks
were available somewhere on the mine property, the loader operator admitted
that he had no chocks to use. At the same time, I do not agree that the bucket being
left down was a significant mitigating factor, given that it did not prevent
the loader from rolling. I find that the violation resulted from high
negligence.

The Secretary alleges that the violation
was unlikely to result in injury, but that if an injury did occur, it would
likely be fatal. The loader is a large piece of equipment that could cause
fatal injury in the event of an accident. An accident was unlikely to occur,
however, because there was no foot traffic in the area, the grade was minimal, and
the parking brake was set. I affirm the finding that the violation was not
S&S. I assess the $1,770.00 penalty as proposed.

Citation No. 8968762 .

Lewis also observed that the
bottom step on the same front-end loader was slightly bent. Exhibits 6-1 and
6-2 are photographs of the loader showing that the bottom step is bent several
inches to one side. The step provided access to the loader cab. Lewis believed
the bent step created a slip, trip, and fall hazard for a person entering or
exiting the cab. He understood that the condition had existed for some time. He
noted that the loader would have been used every shift and that the loader
operator would have to fill out a pre-operational report before each use. Lewis
cited the mine for a violation of 30 C.F.R. § 56.14100(b), which provides
that “Defects on any equipment, machinery, and tools that affect safety shall
be corrected in a timely manner to prevent the creation of a hazard to persons.”
Martinez testified that he did not believe the step affected safety because a
person could still get a three-point stand with hands and feet on the step and
hand rails. On this point, I credit the inspector’s testimony that the bent step
made it easier for a person to misstep and fall, creating a slip, trip, and
fall hazard. [1]

The Commission has explained that
whether a defect was corrected “in a timely manner depends entirely on when the
defect occurred and when the operator knew or should have known of its
existence.” Lopke Quarries, Inc. , 23 FMSHRC 705, 715 (July 2001). Thus,
to prove that a defect was not corrected in a timely manner, the Secretary must
present evidence to show when the defect occurred and when the operator knew or
should have known about it. See Martin Marietta Materials, Inc. , 36
FMSHRC 411, 412 (Feb. 2014) (ALJ) (vacating citation for timely correction of a
defect where Secretary presented no evidence to show when the operator knew or
should have known of the defect); Giant Cement Co. , 13 FMSHRC 286, 287
(Feb. 1991) (ALJ) (vacating citation for timely correction of a defect on a
loader because there was no evidence that the defect existed when the loader
was last operated, and an inspection would not be expected until it was
operated again); cf. Northshore Mining Co. , 38 FMSHRC 753, 792 (Apr.
2016) (ALJ) (finding a violation occurred where there was evidence that
management had known of the defect for a week prior to inspection); Campbell
Cty. Highway Dep’t , 36 FMSHRC 2579, 2582 (Sept. 2014) (ALJ) (finding a
violation where a leak of hydraulic fluid had been noted in examination records
prior to inspection). Given that the loader was examined and used every day, the
operator should have known of and corrected the defect. The Secretary has
proven a violation.

Lewis marked the violation as non-S&S
and unlikely to cause injury because the step was not severely damaged. He stated
that while the loader operator would use the step several times each shift, the
operator would probably only sustain an injury if he was not paying attention. Lewis
believed that an injury that did occur would most likely result in lost
workdays or restricted duty. Martinez noted that someone entering the loader
could grab onto the hand rails to avoid a fall, making injury unlikely. I
affirm the Secretary’s gravity determination.

The Secretary alleges that the violation
was the result of high negligence. Lewis stated that the operator should have
been aware of the violation because the loader is examined every day before it
is operated. He also stated that, given what he observed, the step had been in
that condition for some time. The Secretary did not introduce examination
reports from the loader. Because there is no evidence that the step was noted
on the examination reports, or that management believed it was a hazard that
needed to be repaired, I find that there is insufficient evidence in the record
to demonstrate an aggravated lack of care on the part of the operator. I find
that the violation was the result of moderate negligence. I assess a penalty of
$500.00.

Citation No. 8968771 .

Lewis next inspected the Caterpillar
988F front-end loader and observed that the main access steps to this loader
were also damaged. The loader was being operated at the time of the inspection.
The bottom step had been modified using a chain so that it was at a height of
30 inches. Lewis stated that a normal step height would be around 18 to 24 inches.
Exhibit 6-4 shows the modified step. Lewis believed that having the step at an
increased height created a slip, trip, and fall hazard for someone entering or
exiting the loader cab. Martinez stated at hearing that the loader operator had
modified the step because he was tall and wanted a bigger step. However, when
asked, Martinez could not recall who the operator was or how tall he was. Lewis
stated that the modification was the result of a repair when the original step
had been damaged. The inspector cited the mine for a second violation of 30
C.F.R. § 56.14100(b), timely correction of a defect affecting safety. Given
that the alleged defect was the result of an intentional modification to the
step during a repair and the loader was examined regularly, the mine operator
should have known of the defect. I credit the inspector’s testimony that the
tall step created a hazard and find that the Secretary has proven a violation.

Lewis indicated in the citation that the
violation was unlikely to cause injury, and that if an injury did occur, it
would most likely result in lost workdays or restricted duty. The violation was
marked as non-S&S. At hearing, Lewis suggested that the violation could
actually cause permanently disabling injury because of the significant fall
distance. He stated that a person could break a leg or severely twist an ankle
from that distance. The Secretary alleged an injury severity of lost workdays
or restricted duty in his brief. Sec’y Br. at 21. I find that injury was
unlikely, and that if an injury did occur, it would most likely be of the
severity to cause lost workdays or restricted duty.

The Secretary alleges that the violation
was the result of high negligence. Lewis stated that the defect was obvious and
the loader operator would have done a pre-operational check on the equipment. I
find that in this instance, because the step had intentionally been modified to
this unsafe height, the high negligence assessment is appropriate. I assess a penalty of $533.00 as proposed.

Citation No. 8968772 .

The following day, Lewis inspected the
laydown conveyor located in the middle of the plant at Crusher No. 10. He observed
that the tail pulley on the conveyor was exposed underneath. Exhibit 6-6 shows
the exposed area, which was 30 inches above the ground. Lewis explained that
miners work near the tail pulley to shovel material that spills off the
conveyor. He believed the exposed tail pulley created a hazard because there
was ample room for someone’s hand to become entangled in the conveyor and
pulley.

Lewis cited the mine for a violation of
30 C.F.R. § 56.14107(a), which provides that “Moving 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.” To prove a violation of §
56.14107(a), the Secretary must show that there was an unguarded moving machine
part that “can cause injury.” The Commission has interpreted a similar guarding
standard to require proof of “a reasonable possibility of contact and injury.” Thompson
Bros. Coal Co., Inc. , 6 FMSHRC 2094, 2096 (Sept. 1984); see also Nelson
Quarries, Inc., 36 FMSRHC 3143, 3146 (Feb. 2014) (ALJ) (interpreting §
56.14107(a) to require proof of reasonable possibility of injury). The analysis
of a reasonable possibility of injury should account for “contact stemming from
inadvertent stumbling or falling, momentary inattention, or ordinary human
carelessness.” Thompson Bros. , 6 FMSHRC at 2097. Relevant considerations
include “all relevant exposure and injury variables, e.g., accessibility of the
machine parts, work areas, ingress and egress, work duties, and as noted, the
vagaries of human conduct.” Id.

The parties disagree as to whether there
was a reasonable possibility of a person contacting the moving parts. The
uncovered area was only 30 inches above the ground, and Lewis acknowledged that
if a person walking by fell into the metal, he would be protected by the
guarding that was already present. Lewis also did not believe that a person
would have a reason to intentionally crawl under the conveyor. However, he stated
that miners kneel down to shovel material out from under the conveyor, which
puts them in close proximity to the exposed tail pulley. [2]
He noted that miners would be in the area to clean on every shift. Martinez
believed that a person would need to get on his hands and knees to access the
pulley. He noted that there was an overhang of three or four inches around the
conveyor, and thus he believed it would be difficult to hit the belt with a
shovel. He believed the guard already present would protect someone who fell. I
credit the testimony of the inspector regarding the exposure and work duties in
the area, and I find that there was a reasonable possibility of injury. The
Secretary has proven a violation.

The Secretary alleges that the violation
was reasonably likely to result in a permanently disabling injury and was
S&S. The Secretary has proven a violation, satisfying the first element of
the Mathies test for S&S. The violation involves the hazard of a
miner contacting the conveyor or tail pulley. I find that the hazard was
reasonably likely to occur, given that miners worked in the area daily and their
work duty of shoveling material from under the conveyor brought them in close
proximity to the moving parts. The second Mathies element is satisfied. I
credit Lewis’s testimony that a person who contacted the pulley or conveyor
could become entangled and would likely receive a permanently disabling injury.
The third and fourth elements of Mathies are also shown, and I find that
the violation is S&S.

The Secretary alleges that the violation
involved high negligence on the part of the operator. I find that a moderate
negligence designation is more appropriate. A reasonably prudent operator would
have provided a guard in this location given the risk of serious injury. Nevertheless,
the missing guard was not particularly obvious, and the Secretary has produced
no other evidence to indicate that the negligence was more than moderate. Based
upon the change in the negligence finding, I assess a penalty of $2,000.00.

Citation No. 8968773 .

As part of his regular inspection, Lewis
requested that the parking brake on a Caterpillar 980G front-end loader be
tested. Lewis asked Mason Holman, a supervisor at the mine, to fill the loader
bucket with dirt and back up onto a ramp. He then had Holman set the parking
brake to test it. Lewis observed that when the service brake was released, the
parking brake did not hold. The machine rolled down the grade with the parking
brake set for a few feet. Lewis spoke with the operator of the loader, who told
him he had noted the defective parking brake on his pre-operational report for
the past two days. The loader was in use at the time of the inspection. Lewis
cited the mine for a violation of 30 C.F.R. § 56.14101(a)(2), which
provides that “If equipped on self-propelled mobile equipment, parking brakes
shall be capable of holding the equipment with its typical load on the maximum
grade it travels.”

Respondent argues that the brake did in
fact hold. Holman, the witness for Respondent, testified that while the loader
rolled a foot or so during the test, it was only enough for the parking brake
to lock in and then hold. However, the fact that the equipment operator had
noted a problem with the brake in his pre-operational report supports Lewis’s
assessment that the brake was not functioning properly. Based upon my
observation of both witnesses and their testimony as a whole, I found the
inspector to be a more credible witness than Holman. I credit the inspector’s
testimony and find that the Secretary has proven a violation of the standard.

The Secretary alleges that the violation
was the result of high negligence. Because the equipment operator noted the defective
brake on his pre-operational report the previous day, management was or should
have been aware of the problem. There was no evidence that management took any
action to investigate or correct the problem. This constitutes an aggravated
lack of care, and I find that the high negligence designation is appropriate.

The Secretary alleges that the violation
was unlikely to cause injury, and that if an injury did occur, it would likely be
fatal. The violation was marked as non-S&S. Lewis explained that the loader
is a large piece of equipment that could cause a fatality if it struck someone.
However, he believed that an accident was unlikely to occur because there was no
one else working in the area and the service brakes on the loader were still
functional. I affirm the gravity determination as issued and assess the
proposed penalty of $1,770.00.

Citation No. 8968774 .

Inspector Lewis also observed that in
the cab of the Caterpillar 980G front-end loader, there were accumulations of
oil and oily rags on the floor near the pedals. He observed a puddle of oil on
the floorboard near the accelerator and brake pedals. Exhibit 6-10 is a
photograph of oily rags on the floorboard of the loader cab and shows that a
piece of cardboard had been taped to the brake pedal to make it less slippery. The
loader operator told Lewis that the oil was from a leak in the steering column
and that there was oil dripping onto the pedal and onto the floorboard. The
operator of the equipment stated that he had been reporting the leak on his
pre-operational reports since March 16, 2017, approximately six weeks prior to
the inspection. Lewis reviewed the pre-operational reports and confirmed that
the leak had been mentioned beginning in March 2017. Lewis believed the oil
created a hazard because the operator’s foot could slip off the pedals, causing
him to lose control of the loader. The loader could then hit another piece of
equipment or a person on foot in the area.  

Lewis cited the mine for a violation of
30 C.F.R. § 56.14103(c)(1), which requires that “The operator’s stations
of self-propelled mobile equipment shall [b]e free of materials that could
create a hazard to persons by impairing the safe operation of the equipment.” The
Secretary alleges that the oil and rags created the danger that the operator’s
foot could slip and he could lose control of the loader. Respondent argues that
the rag and oil in the operator compartment did not create a hazard. Martinez
stated that the rags were there to wipe dust from the windshield. However, the
testimony of Lewis and the photograph of the rags and cardboard show that there
was a leak that created a slippery surface near the brake pedal. This is a
clear hazard and the Secretary has proven a violation. I affirm the Secretary’s
high negligence designation, given that the condition had been noted in the
pre-operational reports for six weeks and no repairs had been made.

I also find that the violation was
S&S. The Secretary has proven a violation of a mandatory safety standard. The
hazard addressed by the standard is that of the equipment operator losing
control of the loader. I find that the hazard was reasonably likely to occur because
the oil on and around the brake pedal could cause the operator’s foot to slip. If
the operator lost control of the loader, the loader could easily hit a person
on foot or another piece of equipment. While there was no one else working around
the loader at the time of the inspection, the condition had existed for some
time, and there was nothing to prevent the use of the loader around other
equipment or miners. An accident involving a person on foot would be fatal, and
a collision with another piece of equipment would likely cause serious injury.

I assess the proposed penalty of
$8,768.00.

Citation No. 8968776 .

Lewis returned to the mine on May 9,
2017, to investigate a hazard complaint regarding safety defects on a skid
steer loader. The skid steer was parked in the middle of the site at the
adjacent Crusher No. 6. It was in front of a parts trailer and next to the
diesel fuel storage in an area where other mobile equipment was available for
use. Lewis was told that the skid steer was out of service because of a bad
tire, but he observed that it did not have a tag and the key was still in the
ignition. He was told it had been moved to that location from Crusher No. 10 with
the defects, but he did not know whether it had been towed. He stated that
because of the bad tire, the skid steer could not be used, but Lewis did not
know how long it had been in that condition. The machine would normally be used
on a daily basis to clean up material or haul material around the conveyors and
the crusher. Lewis believed it had been moved to Crusher No. 6 so that it could
be used for cleaning. In order to test the functions on the skid steer, Lewis
asked the operator to get in, but told him he did not need to move the
equipment.  He had the operator test the horn and backup alarm on the skid
steer without moving it and found that both were inoperable. He cited the mine
for a violation of 30 C.F.R. § 56.14132(a).

Mason Holman, the plant supervisor, was
present for the inspection. He testified at hearing that the skid steer was
locked out and inoperable at the time. He stated that the hub on the wheel had
come off and the wheel bearing had gone out. The wheel had been repaired at
least once but shortly thereafter developed that same problem. Holman believed
that the skid steer had been parked where it was for about a month prior to the
inspection. After the inspection, the skid steer was never put back into
service, but rather was taken to the mine shop and used for parts. In response
to a leading question from counsel for Respondent, Holman agreed that in
addition to being locked out, the skid steer was also tagged out at the time of
the inspection. Respondent introduced Exhibit H-1, a photograph of a lock and
tag on the key of the skid steer. The tag reads “Out of Service. Do Not Use.” It
is signed by Holman but does not list any specific problem with the loader, and
the date on the tag is illegible. In response to further leading questions,
Holman stated that the lock and tag had been on the skid steer for a month
prior to the inspection. He explained that at the time of the inspection, he
informed Lewis that the skid steer was locked out, but Lewis asked him to get
in and test it anyway. He moved the skid steer back about a foot so that Lewis
could inspect it. Holman stated that he never removed the lock and tag during
the inspection. When questioned by the court, however, he said he had locked
the loader out but did not recall whether he had put a tag on it. He then
stated that he believed he had put a tag on, but hadn’t filled it out
correctly. On redirect, he said he believed he had tags on the loader and had
locked it out a month before. In response to further questions from counsel for
the Secretary, Holman then said that he believed there was another tag that had
just his name and the date on it, but he did not know what had happened to it.

Ralph Martinez, the safety officer, was
also present during the inspection. He stated that all miners are trained in
the company’s lockout/tagout procedures, which were introduced as Exhibit D. He
stated that when a piece of equipment is taken out of service, a lock is put on
it, and whoever takes it out of service has the key and has to be the one to
take the lock off. Before a piece of equipment is put back into service, an
examination is done by the person who did the repairs. Martinez usually
receives pre-operational reports from the foreman for equipment, but he had not
received reports for the skid steer and was not aware of the defects on it. Martinez
claims that on the day of the inspection, he informed Lewis that the skid steer
was locked out. Martinez took the photo of the lock and tag introduced as
Exhibit H-1, and testified that the tag was present before the inspection. He
stated that he did not bring the tag to the attention of Lewis during the
inspection because he believed Lewis would raise the penalty for the citation
if he argued with him. He also stated that the wheel on the skid steer was so
badly damaged that it could not have been put back into service. Exhibits H-2,
H-3, and H-4 are photographs taken by Martinez showing the wheels of the skid
steer and the tire tracks to show how far the machine moved during the
inspection. The skid steer appears to have moved less than a foot.

There is opposing testimony regarding whether
a tag was present on the skid steer prior to the inspection. Inspector Lewis
testified that when he observed the skid steer, the key was in the ignition,
and there was no tag to warn miners of defects affecting safety. On the other
hand, Martinez testified that the tag shown in Exhibit H-1 was on the skid
steer at the time of the inspection. He did not explain how the tag he
photographed was different from the tag used to terminate the citation. Martinez’s
explanation for why he did not bring the tag to the attention of the inspector
seemed disingenuous. While Martinez has many years’ experience in the industry,
he appeared confused in some of his answers. For example, when asked, he said
that the photographs of the skid steer introduced by Respondent as exhibits
were the only photographs he took during the inspection. His attorney later
indicated that in fact Martinez took many photographs during the course of the
inspection. Martinez answered some questions well, although his answers seemed
rehearsed. When he was asked other questions, he seemed confused but determined
to say what would be most beneficial. I did not find him to be a credible
witness and so discount his testimony as to the citations he discussed.

Holman also testified on direct
examination that he believed the tag shown in Exhibit H-1 was on the skid steer
prior to the inspection. Upon further questioning, however, it became clear
that he was unsure. While I think Holman was sincere in most of his testimony,
he contradicted himself regarding the tag and was not certain when it was placed
on the machine. Holman was nervous and uncomfortable, especially when asked
about things he could not remember clearly. The inspector, on the other hand,
was alert, candid, and thoughtful in his responses. He sometimes referred to
his notes when unable to recall, but took the time to review and respond.  He
was obviously more comfortable testifying than the other witnesses, and was
also comfortable in his understanding of the citations and why they were
issued. He had no reason to be untruthful, and I find him to be a credible
witness. I thus find that while the skid steer was not in use at the time of
the inspection, it was not tagged out, nor was it in a location where it would
not be available for use.

The relevant standard provides that
“Manually-operated horns or other audible warning devices provided on
self-propelled mobile equipment as a safety feature shall be maintained in
functional condition.” 30 C.F.R. § 56.14132(a). The Commission has interpreted
this standard to require that “horns or other audible warning devices must
function at all times unless the equipment has been taken out of service for
repair.” Wake Stone Corp. , 36 FMSHRC 825, 827 (Apr. 2014). The Commission noted in Wake Stone that
the standard “does not contain language limiting its application to equipment
only ‘to be used during a shift’ or to equipment that has or has not been ‘placed
in operation.’” Id. at 828. Similarly, in Alan Lee Good , 23
FMSHRC 995, 997 (2001), the Commission held that a standard requiring that
braking systems installed on equipment “shall be maintained in functional
condition” was applicable “[a] s long as the cited equipment is not tagged out of
operation and parked for repairs … whether or not the equipment is to be used
during the shift.”

The issue
in this case is whether the skid steer had been taken out of service. I find
that it had not. MSHA regulations provide two methods for taking a piece of
equipment out of service:

When defects make continued operation hazardous to persons,
the defective items including self-propelled mobile equipment shall be taken
out of service and placed in a designated area posted for that purpose, or a
tag or other effective method of marking the defective items shall be used to
prohibit further use until the defects are corrected.

30
C.F.R. § 56.14100(c) (emphasis added). In this case, the skid steer was parked
in an area of the mine where mobile equipment was available for use. There was
no tag marking it as defective. While a lock may have been present, the key was
in the ignition, and Holman stated that he started the loader without removing
the lock. Further, while Inspector Lewis testified that “Because of the tire,
it couldn’t be used,” the skid steer was able to move a minimal distance during
the inspection. See Tr. at 64, 195; Ex. H-3. I therefore find that the
skid steer had not been taken out of service.

The skid steer was “wheeled… equipment
capable of moving or being moved” and thus constituted “mobile equipment” under
the Secretary’s definitions. See 30 C.F.R. § 56.2. I credit the inspector’s
testimony that the horn and backup alarm were not functional and find that the
Secretary has proven a violation.

The Secretary alleges
that the violation was the result of high negligence. The inspector based his
negligence determination on the fact that the skid steer had been moved from
another location in the mine with the defective tire. However, he did not know whether
it had been towed. The mine’s witnesses stated that they were unaware of the
defective horn and backup alarm, and there was no mention of a pre-operational
report that detailed the malfunctioning backup alarm or horn. Because there was
no evidence that the skid steer was operated with the defective horn and backup
alarm or that management had knowledge of them, I find that the negligence is
more appropriately designated as moderate.

The Secretary alleges that the violation
was reasonably likely to cause a permanently disabling injury and was S&S. The
Secretary has proven a violation of a mandatory standard. The defective backup
alarm and horn presented the hazard that a person or piece of equipment could
be struck without warning by the skid steer when it was backing up. However, given
the particular facts surrounding the violation, I find that the hazard was
unlikely to occur. See Newtown Energy, Inc. , 38 FMSHRC 2033, 2036 n.8
(Aug. 2016); McCoy Elkhorn Coal Corp. , 36 FMSHRC 1987, 1991-92 (Aug.
2014). It was unclear from the testimony whether the defective tire would have
been obvious to a miner and prevented him from using the machine. It was also
unclear whether anyone was working in the area and might be exposed to the
machine backing up. The inspector stated that the skid steer “couldn’t be
used,” suggesting it could not have moved far, and it appears that the skid
steer may not have been used for several weeks. Additionally, Martinez stated
that the loader would have been inspected before it was put back into service
after repairs on the tire were completed. Thus, the backup alarm would most
likely have been noted as defective when the tire was repaired. See Knox
Creek Coal Corp. , 36 FMSHRC 1128, 1138-39 (May 2014) (finding that a violation
was not S&S when the equipment was under repair for a different defect
because company policy required inspection after repair and the cited defect
would have been found and corrected before the equipment was returned to
service). I find that it was unlikely that a miner would have attempted to use
the skid steer before the alarm and horn were repaired, and thus it was
unlikely that the machine would have struck someone while backing up.

Given
that I have lowered the gravity assessment, I do not assess the proposed
penalty of $3,939.00, but instead assess a penalty of $2,000.00.

Citation No. 8968777 .

During his inspection of the skid steer
loader, Lewis also observed oil accumulated in the engine compartment. The oil
was settled on top of the engine and the engine compartment. Lewis believed the
oil presented a fire hazard. Because the engine compartment was right behind
the back seat, a person operating the skid steer could get burned if there was
a fire. Lewis believed injury was unlikely, however, because it would be easy
for the miner to get out of the cab. Martinez and Holman both told the
inspector that they did not know how long the oil had been present. Lewis
observed dust, dirt, and mud on the bottom of the compartment, which indicated
to him that the oil had been present for several days. Martinez stated that he had
not received a report for this loader, and if he had he would have taken it out
of service.

Lewis cited the mine for a violation of
30 C.F.R. § 56.4102, which provides that “Flammable or combustible liquid
spillage or leakage shall be removed in a timely manner or controlled to
prevent a fire hazard.” The Secretary defines “flammable liquid” as “a liquid
that has a flash point below 100 °F (37.8 °C), a vapor pressure not exceeding
40 pounds per square inch (absolute) at 100 °F (37.8 °C), and is known as a
Class I liquid.” 30 C.F.R. § 56.2. A “combustible liquid” is defined as a
liquid “having a flash point at or above 100 °F (37.8 °C).” 30 C.F.R. § 56.2. Thus,
almost any liquid is covered except water. Lehigh Sw. Cement Co. , 33
FMSHRC 340, 353 (Feb. 2011) (ALJ). Lewis did not discuss the flash point of
oil, but stated that it was a fire hazard. Respondent did not dispute the
flammability or combustibility of the oil. See Resp. Br. at 6-7.

Here, Lewis believed the oil had been
present for several days based on the dust and dirt in the compartment. Martinez
admitted that had he observed the oil, he would have taken the equipment out of
service. The oil was on the engine and easily observed by anyone. The Secretary
has proven a violation. [3]

The Secretary alleges that the violation
was the result of high negligence. Lewis based his negligence determination on
the absence of mitigating circumstances. I find that a moderate negligence
designation is more appropriate, given that the loader had not been operated
for some time, and thus a pre-operational exam would not have been conducted
recently. Although the oil was obvious, overall the violation did not rise to
the level of high negligence.

The Secretary alleges that the violation
was unlikely to cause injury, and that if an injury did occur, it would likely
result in lost workdays or restricted duty. The violation was marked as
non-S&S. I agree that injury was unlikely to occur because the loader had
not been used for some time and would likely be examined before it was used
again. If a fire did occur, injury including minor burns would be likely and
would result in lost workdays.

The Secretary proposed a penalty of
$533.00, but given the change in the negligence assessment, I assess a penalty
of $400.00

Citation No. 8968778 .

In addition to the above defects, Lewis
observed that the safety bar on the Caterpillar 326 skid steer loader was not
functioning properly. The safety bar typically has gas shocks that hold it in
place while the machine is operating. On this loader, the gas shocks had been removed,
so the bar was not held firmly up or down. When functioning properly, the bar
is intended to hold the operator in the seat while the loader is moving, and to
stay raised when the operator is entering or exiting the cab. If the bar is
lifted, it disables the machine. The cab of the skid steer with the safety bar
down is shown in Exhibit 6-16. Lewis believed the defective safety bar
presented a hazard because if the machine were to roll over, the operator would
not be secure in his seat and could even be hit by the safety bar. Additionally,
the safety bar could fall and hit the operator while he was entering the
machine. Lewis did not believe that a fatality would result, because the
operator would also be wearing a seatbelt. Lewis did not know when the shocks
had been removed, and when asked, Martinez said that he did not know. Lewis
said that in his experience, the shocks lose pressure over time and have to be
replaced.

Lewis cited the mine for a violation of
30 C.F.R. § 56.14100(b), which provides that “Defects on any equipment,
machinery, and tools that affect safety shall be corrected in a timely manner
to prevent the creation of a hazard to persons.” The Commission has made clear
that whether a defect was corrected “in a timely manner depends entirely on
when the defect occurred and when the operator knew or should have known of its
existence.” Lopke Quarries , 23 FMSHRC at 715 (vacating citation when
there was no evidence in the record indicating when the cited device became
defective). Thus, in order to sustain his burden of proof for a violation of 30
C.F.R. § 56.14100(b), the Secretary must present evidence demonstrating when
the alleged defect arose and when the operator knew or should have known of its
existence. In this case, Lewis stated that he did not know when the safety bar
became defective. However, Lewis also testified that the gas shocks holding the
safety bar in place had been removed. I infer based on this fact that the
operator was aware of the defect. The skid steer should have been tagged out of
service for repairs at that point, which it was not. I find that the Secretary
has proven a violation.

The Secretary alleges that the violation
was S&S. The Secretary has proven a violation of a mandatory standard. The
standard is intended to prevent the hazard of a person operating equipment with
a safety defect. Here, however, it was unlikely that anyone would operate the
skid steer with the broken safety bar. The inspector stated that the skid steer
“couldn’t be used,” and no one had used it in approximately a month. The
machine likely would have been inspected before it was used again, giving the
operator an opportunity to correct the defect. I find that the violation was
not S&S.

The Secretary alleges that the violation
was the result of high negligence. The inspector did not explain the basis for
his high negligence determination at hearing, other than to say that the shocks
had been removed, yet the equipment was not tagged out or in a position where
it would be repaired. Given that the shocks had been removed, it is reasonable
to infer that a person with authority at the mine knew of the violation. I thus
find that a high negligence determination is appropriate.

The Secretary has proposed a penalty of
$2,640.00, but given that the gravity of the violation has been reduced, I find
that a penalty of $1,800.00 is appropriate.

Citation No. 8968779 .

Continuing with the items listed on the
hazard complaint, Lewis inspected a Caterpillar 988 front-end loader. He
observed that the left front tire had a large gash in the tread that exposed
the inner rubber tire. The loader was not functional or capable of being
operated. However, it was not tagged out. It was located behind the stockpile near
Crusher No. 10. The damaged tire had been noted on a pre-operational report indicating
that it had been left inside the machine. Lewis examined the pre-operational
reports in the mine office and saw that the condition had been reported from
March 20 through April 8. At the time of the inspection, Lewis asked Martinez
if the loader was in service, and Martinez said that it was not. Martinez told
Lewis that the loader had been parked because it had a bad transmission. Lewis
asked Martinez if he had a tag, and Martinez said he didn’t know. Lewis did not
observe a tag on the loader or whether a key was in the ignition. Holman also
testified at hearing that the transmission on the loader was out and
inoperable. He did not recall whether there was a tag. Lewis did not start or
try to move the loader or otherwise confirm that the transmission was bad. On
cross examination, Lewis agreed that if the transmission was in fact not
working, the loader could not have been moved to do any mining work. On
redirect examination, he clarified that it would depend on what type of problem
there was with the transmission. Martinez testified at hearing that there was
no defect in the tire, but rather the gash observed by the inspector was part
of a repair to the tire. Martinez stated that the loader was not locked out,
but was parked where loaders were kept for parts and not in an area where
equipment was available for use.

Lewis cited the mine for a violation of
30 C.F.R. § 56.14100(b), which provides that “Defects on any equipment,
machinery, and tools that affect safety shall be corrected in a timely manner
to prevent the creation of a hazard to persons.” Respondent argues that there
was no violation because the loader was inoperable and not available for use. I
am not persuaded by this argument, because the condition was noted on
pre-operational reports for several weeks, indicating that the loader had been
used with the defective tire before it became inoperable. However, I find that
the Secretary has failed to demonstrate that the gash in the tire was a defect
that affected safety as specified in the standard. See Ideal Cement Co. ,
12 FMSHRC 2409, 2416 (Nov. 1990) (directing the judge to consider evidence as
to whether a reasonably prudent person familiar with mining would recognize
that the removal of a certain equipment part affected safety). The inspector stated
that the gash left the inner tire exposed, but did not explain the consequence
of the defect. He instead stated that the tire was unlikely to cause injury because
there was no exposure. Therefore, the citation is vacated.

Citation No. 8968781 .

During the course of the hazard
complaint inspection on May 9, Lewis also observed that the switches for conveyor
No. 12 and feeder conveyor No. 7 did not function when pushed. The condition
had been part of the hazard complaint. The switches were located in the control
panel. Lewis asked the control room operator to start all of the conveyors as
he would when he starts the plant. Conveyor No. 12 and feeder conveyor No. 7
did not start. Lewis believed the switches created a hazard of electrical
shock. However, he noted that the main power was locked out when he arrived, which
meant that there was no power to those breakers either. The control room
operator only energized the power at Lewis’s request so that he could test the switches.
The individual breakers were not locked and tagged. Lewis stated that when he
arrived for the inspection, Martinez was already aware of the condition and was
waiting for an electrician to arrive to repair the switches.

Nate Stein was working as a laborer
running the control panel at the time of the inspection. He stated that at the
time of the inspection, the system was locked down while they were waiting on
parts for the breaker. When Lewis arrived, he informed Stein that he needed to
see the plant running. Stein told Lewis that they had electrical problems with
the breakers and they were locked out. Lewis told him not to fire up the ones
that were broken, but asked him to get everything else running. Stein stated
that he took the lock off the main power breaker and proceeded to fire
everything up. Stein’s lock on the main breaker is shown in Exhibit J. The
daily log-in sheets introduced by Respondent as Exhibit K show that the mine
was waiting on the breaker parts on May 8, 2018, the day before the inspection.
The plant restarted on May 9 around 5:30 p.m. after an electrician came out to
check everything.

William Garrett, who worked on the
electrical boxes at the crusher on May 9, testified at hearing that there was a
problem with the conveyors starting and stopping on May 4, 2017. Someone at the
mine tested the circuit breakers in boxes 7 and 12 and determined that they
were bad. Garrett ordered parts and replaced the breakers on May 9. He
testified that the system was locked out for four days until the parts arrived.
Nate Stein had locked out the main power supply, and Garrett himself had also
locked out box 7 and box 12 when he pulled the breakers out. While there would
have been no power to any of the control panels with the main power disconnected,
Garrett explained that it was still necessary to lock out the boxes because the
breakers had been removed.

Lewis cited the mine for a violation of
30 C.F.R. § 56.12002, which provides that “Electric equipment and circuits
shall be provided with switches or other controls. Such switches or controls
shall be of approved design and construction and shall be properly installed.” While
the parties agree that the cited switches were not functioning, the operator
was aware of the condition and had shut down the system and locked out the main
power supply until the switches could be repaired.

The testimony of the witnesses for both
the Secretary and the operator clearly established that the operator was aware
of the defective switches prior to the inspection and repairs were already
underway. While there was some dispute as to whether the individual breakers
were locked out, the main power supply was locked out and there was no power to
the defective switches. The Secretary did not present any evidence related to
the elements of the standard cited and has not cited any decision in which a
citation was upheld under similar circumstances. I find that in shutting down and
locking out the affected area and initiating repairs, the operator complied
with the requirements of the standard. The citation is vacated.

Citation No. 8968787 .

Inspector Lewis returned to Crusher No.
10 again on May 11, 2018, to investigate a reported accident. He learned that
the mine foreman, Chris Lucero, had received an injury to his finger while
investigating an issue with the conveyor. The conveyor had stopped and Lucero,
as foreman, was responsible for directing repairs if any problems arose at the
plant. Three other people were in the area at the time, including Nate Stein
and Lance Richards. Lucero removed the guard to the 3/8” drive pulley and belt
to see if there was a problem, then asked the control room operator, Stein, to
start the conveyor. When Stein started the conveyor, Lucero had his finger on
the drive pulley, and it was injured, resulting in the need for 40 stitches to
his left middle finger. Stein was not in Lucero’s line of sight when Stein
started the conveyor, but the conveyor was equipped with an alarm, which the
control room operator would have activated before starting the conveyor in
order to warn people in the area. While there was testimony that the area was
noisy and the alarm difficult to hear, a citation was not issued for the alarm.
Lewis had inspected the alarm during the hazard complaint inspection two days
earlier and found that it functioned.  

Testimony from the mine’s witnesses was
largely consistent with Lewis’s account of the incident. Nate Stein was present
when Lucero injured his finger. He testified that he and Lucero were in the
control room when an employee came running in and said that one of the belts
had stopped. Lucero shut everything down and they walked out to the belt that
had stopped. Lucero jumped onto a frame above the belt to look at it. He
removed one of the guards and then asked Stein to try turning the power on
because it looked like there was nothing wrong with it. Stein walked to the
control room, sounded the alarm, and turned the power on. A few seconds later,
another employee came running in to say that Lucero had badly cut his finger. Stein
stated that, in his opinion, it was necessary to test the belt with the guard
removed before it was locked out.

Martinez, the safety manager, was also
on site in a different area of the mine when the injury to Lucero occurred. Stein
came to tell him what had happened, and after reviewing what had happened, Martinez
gave Lucero and Stein a written warning about lockout/tagout procedures. After
the injury, Lucero did not return to work.

Inspector Lewis believed that the
conveyor should have been locked out and tagged out before the guard was
removed. If it was necessary to start the conveyor to troubleshoot, Lucero
should have stood farther from the moving parts. Lewis cited the mine for a
violation of 30 C.F.R. § 56.14105, which provides that “Repairs or maintenance
of machinery or equipment shall be performed only after the power is off, and
the machinery or equipment blocked against hazardous motion. Machinery or
equipment motion or activation is permitted to the extent that adjustments or testing
cannot be performed without motion or activation, provided that persons are
effectively protected from hazardous motion .” (Emphasis added). In this
instance, Lewis stressed that the primary concern was that Lucero was not far
enough back from the moving belt as he was troubleshooting, and therefore was
not protected from hazardous motion. Lewis believed it was reasonably likely
that a more serious injury could have occurred, including an amputation if
Lucero became entangled in the pulley and drive belt.

Respondent argues that the citation
should be vacated because the standard allows for “machinery motion or
activation” in situations where troubleshooting is being done. Resp. Br. at 9. Respondent
notes that the conveyor was locked out once the problem was identified. However,
the standard permits machinery activation only “provided that persons are
effectively protected from hazardous motion.” 30 C.F.R. § 56.14105; see also
Empire Iron Mining P’ship , 29 FMSHRC 999, 1007 (Dec. 2007) (finding that
warnings, training, and location of moving parts did not provide adequate protection
where a miner was killed by moving parts during repairs). It is clear that
miners were not “effectively protected,” given that Lucero was in close
proximity to the moving machine parts and was injured. I find that the
Secretary has proven a violation.

The Secretary alleges that the violation
was the result of high negligence. Lewis stated that once the guard was
removed, the exposed parts were an obvious hazard. He noted that Lucero was a
foreman and was aware that Stein was about to start the belt. Lucero should
have known to step back at that point. As a foreman, Lucero was an agent of the
operator, and his negligence is attributed to the operator. In view of Lucero’s
status as a foreman and the obviousness of the hazard, I find that the high
negligence designation is appropriate.

The inspector
also designated the citation as an unwarrantable failure to comply with the
standard. The
“unwarrantable failure” terminology is taken from Section 104(d) of the Act, 30
U.S.C. § 814(d). The Commission has explained that unwarrantable failure is
“aggravated conduct constituting more than ordinary negligence. [It] is
characterized by conduct described as ‘reckless disregard,’ ‘intentional
misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable care.’” Consol.
Coal Co ., 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining Corp. ,
9 FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In determining whether
a violation is an unwarrantable failure, the Commission has instructed its
judges to consider all of the relevant facts and circumstances in the case and
determine whether there are any aggravating or mitigating factors. Id. Aggravating
factors to be considered include

the length of
time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator’s efforts in abating the violative
condition, whether the violation was obvious or posed a high degree of danger,
and the operator’s knowledge of the existence of the violation.

IO Coal Co. , 31 FMSHRC
1346, 1352 (Dec. 2009); see also Consol ., 22 FMSHRC at 353. The negligence
of an operator’s agent is imputable to the operator for penalty assessment and
unwarrantable failure purposes. Nelson Quarries, Inc ., 31 FMSHRC 318,
328 (Mar. 2009). The Commission has long recognized that mine foremen are
agents of the mine operator. See, e.g., Southern Ohio Coal Co. , 4 FMSHRC
1459, 1463-64 (Aug. 1982). Based upon the following analysis of the factors
enumerated by the Commission, I find that the Secretary has proven an
unwarrantable failure in this case.

Duration . In IO Coal
Co. , the Commission emphasized that the duration of time that the violative
condition existed is a “necessary element” of the unwarrantable failure
analysis. 31 FMSHRC at 1352. However, the brief duration of a violative
condition is not a mitigating factor. Knight Hawk Coal, LLC , 38 FMSHRC
2361, 2371 (Sept. 2016). In Midwest Material Co. , the Commission noted
that the brief duration of a violation does not weigh against a finding of
unwarrantable failure when the violation is highly dangerous and obvious. 19
FMSHRC 30, 36 (Jan. 1997) (finding that a brief, highly dangerous violation
resulting in a fatality was “readily distinguishable from other types of
violations . . . where the degree of danger and the operator’s responsibility
for learning of and addressing the hazard may increase gradually over time”). In
that case, the Commission noted that the condition existed for a short time
only because it led to an accident causing a fatality. Id. Here, the
violation existed for a short period of time while Lucero was troubleshooting
the stopped conveyor. The conveyor was locked out after Lucero’s injury
occurred. However, the brief duration was enough time for injury to occur, and
the condition might have persisted longer had it not resulted immediately in
injury.

Extensiveness .
The extent factor is intended to “account for the magnitude or scope of the
violation” in the unwarrantable failure analysis. Dawes Rigging & Crane
Rental , 36 FMSHRC 3075, 3079 (Dec. 2014). Facts relevant to the extent of
the condition include the size of the affected area and the number of persons
affected. Id . at 3079-80. In Dawes , the Commission found that
where one miner endangered himself by walking under a suspended load for a
period of seconds, the violation was not extensive. Id . at 3080. Here,
Lucero was the only miner affected. Richards testified that he was within arm’s
length of Lucero when the conveyor was turned on, but no one except Lucero was
close enough to be injured by the moving parts. Extensiveness, therefore, does
not weigh in favor of the unwarrantable finding. 

Notice . A mine operator
may be put on notice that it has a recurring safety problem in need of
correction where there is a history of similar violations. Black Beauty Coal
Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012); IO Coal , 31
FMSHRC at 1353; Peabody Coal Co., 14 FMSHRC 1258, 1264 (Aug. 1992). Prior
violations may be relevant even though they did not involve the same regulation
or occur in the same area of the mine within a continuing time frame. IO
Coal , 31 FMSHRC at 1354; San Juan Coal Co ., 29 FMSHRC 125, 131 (Mar.
2007); Peabody , 14 FMSHRC at 1263. It is not required that the past
violations were the result of unwarrantable failure. IO Coal , 31 FMSHRC
at 1354; Consolidation Coal Co ., 23 FMSHRC 588, 595 (June 2001). Past
discussions with MSHA can also serve to place the operator on notice that
greater efforts were necessary to assure compliance with the safety standard. Consolidation
Coal Co. 35 FMSHRC 2326, 2342 (Aug. 2013) (citing cases). The Secretary notes
that the mine received a citation for an unguarded tail pulley less than two
weeks earlier, Citation No. 8968772 discussed above. However, that citation
involved a permanent guard and appeared to be an isolated problem. I do not
find that the single guarding citation put the mine on notice of a problem with
guarding in general at the mine. The real issue here was keeping away from a
hazard when engaged in troubleshooting and repair. There is no evidence that
the mine had been placed on notice in that regard, and hence, notice was not a
substantial aggravating factor in this case.

Abatement . Abatement
efforts prior to or at the time of the inspection may support a finding that
the violation was not unwarrantable. Utah Power & Light Co ., 11
FMSHRC 1926, 1933-34 (Oct. 1989). Conversely, where the operator has notice of
a condition, such as through previous violations or conversations with an
inspector, a failure to remedy the problem weighs in favor of an unwarrantable
failure finding. Consol ., 35 FMSHRC at 2343; Enlow Fork Mining Co .,
19 FMSHRC 5, 17 (Jan. 1997). Abatement efforts relevant to the unwarrantable
failure analysis are those made prior to the issuance of the citation or order.
Consol. , 35 FMSHRC at 2342; IO Coal , 31 FMSHRC at 1356. Respondent
introduced refresher training records for Lucero showing that he received
training on guarding and prevention of accidents in January 2017. Nevertheless,
it is clear that Lucero, who was a management employee, made no effort to abate
the violation by moving away from the machine or asking other employees to
stand clear. Therefore, abatement is not a mitigating factor in this case.

Degree of danger . A high degree of
danger posed by a violation can be an aggravating factor that supports an
unwarrantable failure finding. IO Coal , 31 FMSHRC at 1355-56. In some
cases, the degree of danger may be “so severe that, by itself, it warrants a
finding of unwarrantable failure.” Manalapan Mining Co. , 35 FMSHRC 289,
294 (Feb. 2013). The degree of danger was high in this instance. Lucero
received a moderately serious injury, and the potential existed for a more
serious injury if he had become entangled in the belt. I find that this factor
weighs in favor of the unwarrantable finding.

Knowledge/Obviousness . The obviousness
of the violative condition is an important factor in the unwarrantable failure
analysis. IO Coal , 31 FMSHRC at 1356. An operator’s knowledge of the
existence of a violation may be established not only by demonstrating actual
knowledge, but also by showing that the operator “reasonably should have known of
the violative condition.” IO Coal Co. , 31 FMSHRC 1346, 1356-1357
(Dec. 2009); see also Drummond Co ., 13 FMSHRC 1362, 1367-68 (Sept.
1991); E. Associated Coal Corp ., 13 FMSHRC 178, 187 (Feb. 1991); Emery
Mining Corp ., 9 FMSHRC 1997, 2002-04 (Dec. 1987). Here, Lewis stated that
the moving machine parts were obvious when the guard was removed. As a foreman,
Lucero should have known how to troubleshoot without putting himself and others
in danger, and certainly he should have known not to put his hand into an area
with a moving belt. His knowledge is imputed to the operator.

The degree of danger and the obvious
nature of the violation are the primary bases to support a finding of unwarrantable
failure. In addition, there was no effort to abate. It is true that the mine
had not been placed on notice, and the duration factor does not significantly
weigh in either direction. The Commission addressed a similar case involving a
dangerous and obvious violation by a supervisor in Capitol Cement Corp. ,
21 FMSHRC 883 (Aug. 1999), aff’d , 229 F.3d 1141 (4th Cir. 2000). In that
case, a shift supervisor was injured when he attempted to perform maintenance
on a crane without wearing a safety belt or deenergizing the rail that provided
electrical power to the crane. The supervisor contacted the energized rail and
received severe burns to his forearm. Another miner was forced to run along a
craneway and down a stairway to a circuit breaker to deenergize the crane. Id.
at 884. The Commission upheld the judge’s unwarrantable failure finding, citing
the obviousness and high degree of danger of the violation. Id. at 892. The
Commission also noted that supervisors are subject to a high standard of care
under the Act, and that they are “entrusted with augmented safety
responsibility and … obligated to act as [] role model[s]” for their
subordinates. Id. at 893. The Commission found that the supervisor’s
failure to meet that high standard of care, especially in the presence of a
subordinate, supported the unwarrantable failure finding. Id.

Respondent argues that an unwarrantable
failure finding is inappropriate in this case because Lucero was merely thoughtless
and inattentive. Resp. Br. at 9. While Lucero’s injury was certainly the result
of carelessness, that carelessness is measured against the high standard of
care demanded of a supervisor. Lucero had an obligation to follow safety
procedures and exercise care to ensure the safety of himself and other miners,
which included protecting them from moving machine parts during maintenance. His
failure to do so in the presence of subordinates was an aggravated breach of
his duty of care. I find that the violation is properly designated as an
unwarrantable failure.  

The Secretary also alleges that the
violation was S&S. The Secretary has proven a violation of a mandatory
safety standard, satisfying the first Mathies element. The violation
involved the hazard that a miner could become entangled in moving machine
parts. Given Lucero’s proximity to the conveyor when it was activated, the hazard
was likely to occur. The hazard caused Lucero to receive a reasonably serious
injury to his finger, satisfying the third and fourth elements. I assess the
proposed penalty of $4,377.00.

III. PENALTY

The principles
governing the authority of Commission Administrative Law Judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine Act delegates to the Commission and its judges “authority to
assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The duty
of proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a),
820(a). The Secretary calculates penalties using the penalty regulations set
forth in 30 C.F.R. § 100.3 or following the guidelines for special assessments
in 30 C.F.R. § 100.5. When an operator notifies the Secretary that it intends
to challenge a penalty, the Secretary then petitions the Commission to assess
the penalty. 29 C.F.R. § 2700.28. Commission judges are not bound by the
Secretary’s penalty regulations or his special assessments. Am. Coal Co .,
38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that in assessing
civil monetary penalties, the judge must consider six statutory penalty
criteria: the operator’s history of violations, its size, whether the operator
was negligent, the effect on the operator’s ability to continue in business,
the gravity of the violation, and whether the violation was abated in good
faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the
Commission has held that judges must make findings of fact on the statutory
penalty criteria. Sellersburg Stone Co ., 5 FMSHRC 287, 292 (Mar. 1983), aff'd ,
736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a
judge’s penalty assessment for a particular violation is an exercise of
discretion “bounded by proper consideration of the statutory criteria and the
deterrent purposes underlying the Act’s penalty scheme.” Id . at 294; see
also Cantera Green , 22 FMSHRC 616, 620 (May 2000). The Commission requires
that its judges explain any substantial divergence from the penalty proposed by
the Secretary. Am. Coal , 38 FMSHRC at 1990. However, the judge’s
assessment must be de novo based upon her review of the record, and the
Secretary’s proposal should not be used as a starting point or baseline. Id .

The history of
assessed violations at Crusher No. 10 has been admitted into evidence and shows
27 violations that became final orders in the 15-month period prior to the
inspection. Ex. 1. Four involve equipment hazards, and eight involve problems
with guarding. The parties agree that the citations at issue were abated in
good faith. The mine has not raised the defense of ability to pay. The
negligence and gravity have been discussed above with respect to each citation.
The penalties are assessed as follows:

Citation No.

Originally Proposed Assessment

Assessed

Amount

Modification

Docket No. CENT 2017-0397

8968772

$3,939.00

$2,000.00

Modify
negligence from high to moderate.

8968774

$8,768.00

$8,768.00

None.

8968775

$533.00

$533.00

None.

8968776

$3,939.00

$2,000.00

Modify
negligence from high to moderate. Modify likelihood of injury from reasonably
likely to unlikely. Remove S&S designation.

8968777

$533.00

$400.00

Modify
negligence from high to moderate.

8968780

$533.00

$533.00

None.

8968781

$533.00

$0.00

Vacate.

TOTAL

$18,778.00

$14,234.00

Docket
No. CENT 2017-0432

8968787

$4,377.00

$4,377.00

None.

TOTAL

$4,377.00

$4,377.00

Docket
No. CENT 2017-0433

8968761

$1,770.00

$1,770.00

None.

8968762

$533.00

$500.00

Modify
negligence from high to moderate.

8968771

$533.00

$533.00

None.

8968773

$1,770.00

$1,770.00

None.

8968778

$2,640.00

$1,800.00

Modify
likelihood of injury from reasonably likely to unlikely. Remove S&S
designation.

8968779

$533.00

$0.00

Vacate.

TOTAL

$7,779.00

$6,373.00

IV. ORDER

Respondent is
hereby ORDERED to pay the Secretary of Labor the sum of $24,984.00
within 30 days of the date of this decision.

/s/
Margaret A. Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution:
(U.S. First Class Mail)

Felix Marquez,
U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, Suite
501, Dallas, TX 75202

Charles W.
Newcom, Sherman & Howard LLC, 633 17th Street, Suite 3000, Denver, CO 80202

[1] The inspector determined that this citation and
Citation No. 8968771 were unlikely to cause injury. Respondent argues that,
based on this determination, neither defect “affected safety” within the
meaning of the standard, and so both citations must be vacated. I am not
persuaded by this argument, because whether a defect “affects safety” is a
separate question from whether it is likely to cause injury. See, e.g., Apex
Quarry, LLC , 36 FMSHRC 211, 221 (Jan. 2014) (ALJ) (affirming two violations
of 30 C.F.R. § 56.14100(b) and finding that both were unlikely to cause
injury).

[2] Respondent notes that the inspector agreed on
cross-examination that “somebody wouldn’t be kneeling down to get underneath
this car.” Tr. at 147; Resp. Br. at 4. I interpret that statement to mean that
Lewis did not believe that a miner would intentionally climb under the
conveyor. However, he did believe miners would kneel in close proximity to the
conveyor in order to shovel under it. Tr. at 52.

[3] As explained above, I reject the argument that the
skid steer could not be inspected because it was “unavailable for use.” See
Resp. Br. at 2.