Secretary of Labor v. Cactus Canyon Quarries, Inc.

Plain-English summary

Cactus Canyon Quarries operates a small Texas mine that produces marble for the terrazzo industry. Judge David P. Simonton found that a dump truck's nonfunctioning low brake-pressure alarm violated the rule requiring every braking-system component to remain functional, even though the truck's brakes and pressure gauges worked. He reduced the operator's negligence from moderate to low and assessed a $123 penalty for that citation. He vacated two citations for broken windshield wipers because the mine did not operate in rain or windy conditions, washed its trucks frequently, and used them only for short trips at low speed, so the Secretary did not prove that continued operation was hazardous.

Decision snapshot

• Cited authority: 30 U.S.C. § 820(i); 30 C.F.R. §§ 56.14100(c) and 56.14101(a)(3)
• Outcome: The brake-alarm citation was affirmed with negligence reduced to low, two windshield-wiper citations were vacated, and $123 was assessed.
• Key point: A warning alarm can be part of a braking system even when it does not itself stop the vehicle, while an equipment defect violates section 56.14100(c) only if it makes continued operation hazardous.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE
LAW JUDGES

721 19 th ST.
SUITE 443

DENVER, CO 80202-2500

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

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH       

ADMINISTRATION (MSHA),

Petitioner,

v.

CACTUS CANYON QUARRIES INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2021-0090

A.C. No. 41-00009-527340

Mine: Fairland Plant & Qys

DECISION AND
ORDER

Appearances:              Tina
D. Davila, U.S. Department of Labor, Office of the Solicitor, 525 Griffin
Street, Suite 501, Dallas, TX 75202

Andy Carson, Cactus Canyon
Quarries Inc., 7232 Co. Road 120, Marble Falls, TX 78654

Before:                                   Judge Simonton

INTRODUCTION

This case is before me upon a petition
for assessment of civil penalty filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration, against Cactus Canyon Quarries, Inc.
(“Cactus Canyon” or “Respondent”), pursuant to the Federal Mine Safety and
Health Act of 1977 (Mine Act), 30 U.S.C. § 801. [1]
This case involves three Section 104(a) citations.

The parties presented testimony and
documentary evidence at a virtual hearing held on September 21–22, 2021. MSHA Inspector
Ty Fisher testified for the Secretary. Cactus Canyon employees Esmael Garcia
and Jesus Garcia and president Andy Carson testified for Respondent. After fully
considering the testimony and evidence presented at hearing and the parties’
post-hearing briefs, I AFFIRM Citation No. 9641812, as modified herein,
and VACATE Citation Nos. 9641813 and 9641814.

STIPULATIONS OF FACT

At hearing, the
parties agreed to the following stipulations:

Cactus Canyon Quarries, Fairland Plant & Qys is a mine
as defined under section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

The mine is subject to the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq.

Respondent is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and the presiding Administrative Law
Judge has the authority to hear the case and issue a decision.

At all times relevant to these proceedings, the products
of the subject mine enter into commerce or the operations of products thereof
which affect commerce within the meaning and scope of the Mine Act.

Copies of the citations and contest are authentic, and a
copy was served on the Respondent by an authorized representative of the
Secretary employed by the Mine Safety and Health Administration.

The individual whose signature appears on block 22 of the
citation at issue in this proceeding is an authorized representative of
the United States of America, Secretary of Labor assigned to MSHA, and was
acting in his official capacity when issuing the citations at issue in
this proceeding.

Respondent timely contested the violations.

Respondent abated the citations timely and in good faith.

Tr. 10-18.

III.         
FINDINGS
OF FACT AND SUMMARY OF TESTIMONY

Cactus Canyon
operates Fairland Plant and Qys, a small mine located in Marble Falls, Texas,
that produces and sells over thirty colors of various size marbles to the
terrazzo industry. Tr. II 79. On November 5, 2020, MSHA mine safety and health
specialist Ty Fisher, [2] who was a mine
safety and health inspector for MSHA at that time, conducted an inspection of the
mine.

Tr. I 117-18. During
the inspection, Fisher issued the three citations contested in this proceeding.

Fisher testified that
he issued one citation when he determined that the low brake pressure alarm on the

34 yellow International end dump truck at the mine was not functioning. Tr. I

118; Ex. P-3. He explained that the purpose of the vehicle’s low brake pressure
alarm is to alert the driver when the reservoir air tank reaches 50 or 60 percent
of its normal operating capacity. Tr. I 118-19. When pressure is lost in the
tank, less pressure is applied when the driver engages the brakes, and the alarm
exists to warn the driver of this reduced braking capability. Tr. I 118-19. Fisher
testified that the cited truck was loaded at the time of inspection, and a loaded
truck with reduced braking capacity is hazard because an operator may not be
able to stop the vehicle. Tr. I 121, 184. To terminate the citation, the mine repaired
the alarm that same day. Ex. P-3 at 2.

Cactus Canyon
employee Esmael “Izzy” Garcia [3] confirmed that
at the time of the inspection the truck was loaded and available to be driven,
and that the low brake pressure alarm on the truck did not function when tested.
Tr. I 53-54. He said this truck is used two to three times per day. Tr. I 57-58.
He accompanied the inspector during the inspection and helped him test all of
the trucks. Tr. II 28. He recounted that, on this truck, every component of the
brake system was fully functional other than the low brake pressure alarm. Tr.
II 31. When asked if the low brake pressure alarm is part of the truck’s brake
system, he answered that it is not. Tr. II 72. Esmael Garcia expressed his
understanding that a low brake pressure alarm does not affect any part of the
brake system. Tr. II 37. In other words, whether the alarm is working or not,
it has no bearing on whether the vehicle can properly brake or not; a nonfunctioning
alarm will not cause the truck to lose
braking capability. Tr. II 39-40. He further explained that in a situation where
the air pressure was low and the alarm did not activate, the driver of the vehicle
would nevertheless be on notice that the pressure was low because the truck is
equipped with pressure gauges for both the air tanks in the vehicle. Tr. II 38,

72. Both of these gauges were functioning properly. Tr. I 216.

Cactus Canyon employee
Jesus Garcia [4] also testified
that the low brake pressure alarm was not working during the inspection, and that
the truck in question is generally used two to three times per day. Tr. I 91-93.
Before the inspection at issue, he did not know the purpose of the low brake
pressure alarm and said at hearing that in his 40 years at the mine, “no one has
ever said anything about those alarms.” Tr. I 92. Jesus Garcia fixed the low brake
pressure alarm to terminate the citation. Tr. II 7.

At hearing, mine president
Andy Carson did not contest that the low brake pressure alarm on the #34 truck
was not functioning. However, he asserted that the alarm was not a part of the truck’s
brake system, since it “reports on the status of the system” but “does not
affect the system itself.” Tr. II 94. He testified that the alarm was essentially
unnecessary at the mine because the

gauges worked, and
the alarm’s purpose was to give a driver time to pull off the road or highway, which
would not be necessary at the mine because it has no traffic and imposes a
speed limit of 10 miles per hour. Tr. II 93, 97.

After issuing the citation
for the brake pressure alarm, Fisher issued citations for two other trucks in
service at the mine, both of which were cited for inoperable windshield wipers.
Tr. I 151-52, 158-59; Exs. P-8, P-10. The first was the yellow #3 International
end dump truck, and the second was the white Ford F8000 end dump truck parked
next to it. Exs. P-8, P-10; Tr. I 158. Through conversations with the miners on
site, Fisher determined that both trucks were available and ready to be used. Tr.
I 152, 158-59. When tested, the windshield wipers on both trucks failed to function.
Tr. I 151, 158. Fisher testified that he believed the nonfunctioning wipers
posed a hazard because, if a storm were to come on suddenly and the trucks were
not near a parking area or somewhere else that they could be parked
instantaneously, they may need to be operated in the inclement weather. Tr. I 155.
He also noted that the wipers are necessary because there could be dusty conditions
where dust needs to be wiped off the windshield if the sunlight hits it and causes
a reflection the driver cannot see through. Tr. I 156. To terminate these
citations, the mine repaired the wipers on both trucks. Exs. P-8 at 2, P-10 at 2.

Esmael Garcia,
Jesus Garcia, and Andy Carson all acknowledged that the windshield wipers were not
functioning on these two trucks. See Tr. I 60-61, 69, 110; Tr. II 102. However,
they all testified that windshield wipers are essentially unnecessary on the
trucks at the mine because of certain unique facts about this operation and the
product it produces. Cactus Canyon produces terrazzo marbles as well as some
landscaping stones. Tr. II 79-81. While the landscaping stones can get wet, Carson
explained that the terrazzo marbles cannot get wet or dusty. Tr. II 81. This is
because the product is eventually mixed with epoxy, so water will ruin the mixture,
and any dust will likewise ruin the final product by changing the end color. Tr.
II 81. Accordingly, the mine needs to pay particular attention to keeping the product
dry and dust free. Tr. II 81-82. Both Esmael Garcia and Jesus Garcia confirmed
that the mine does not operate in inclement weather and testified that all
employees at the mine are aware of this policy. Tr. I 65; Tr. II 9, 57, 59. Further
highlighting the mine’s adherence to the policy, Esmael Garcia testified that
in his 15 years of working at the mine he has never been driving one of the
trucks when it started raining. Tr. I 65.

Due to the unique
nature of the product the mine produces, Cactus Canyon must wash its trucks
very frequently. Andy Carson testified that the mine produces over 30 colors of
terrazzo marbles. Tr. II 79-80. Esmael Garcia testified that the trucks need to
be clean so that the various colors do not mix with one another. Tr. I 55. He specified
that the trucks are washed out between uses, and that the windshields are washed
in addition to the bed and back of the trucks. Tr. I 55-56. Jesus Garcia also
testified that the trucks are washed before being loaded with a different color
and that when performing this task, employees wash the entire truck, not just
the truck bed. Tr. II 14-15.

Fisher testified that
if there had been signage in the vehicles prohibiting their use during any
hazard that would occur because of obstructed vision, he would not have written
the citations for nonfunctioning windshield wipers. Tr. I 286. He did explain
that had this been the case, he would have still recommended that the mine fix
the wipers because, though sometimes acceptable, “administrative controls are
never a good way to go.” Tr. I 286.

IV.         
DISPOSITION

A.     Citation No.
9641812

During his inspection on November
5, 2020, Fisher issued section 104(a) Citation No. 9641812, which alleged:

The air brake system on the #34 yellow
International end dump truck with serial #1HSLCHYN5GHA6607 & model #1754
with a Manufactures date of 06/27/1986 was not maintained in functional condition.
When inspected the operator (CDL license holder) demonstrated the correct method
of testing the low brake pressure alarm, the low brake pressure alarm system
failed to work in two attempts. This safety defect is an intricate part of the air
brake system and when it is not maintained in a functional state affects the
safe operation of the truck exposing the operator to injuries from a failed brake
system.

Ex. P-3 at 1. Fisher designated the citation as a non-significant
and substantial violation of 30 C.F.R. § 56.14101(a)(3) that was unlikely to cause
an
injury that could reasonably be expected to result in “lost workdays or
restricted duty,” would affect one miner, and was caused by Cactus Canyon’s
moderate negligence.
Ex. P-3; Tr. I 134-35.

i.         
Fact
of Violation

The Commission has long held that
“[i]n an enforcement action before the Commission, the Secretary bears the
burden of proving any alleged violation.” Jim Walter Res., Inc. , 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co. , 14 FMSHRC 1282, 1294 (Aug.
1992). To
prevail, the Secretary
must prove any cited violation “by a preponderance of the evidence.” Garden
Creek Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that
follow, I find that the Secretary has presented sufficient evidence to show that
Cactus Canyon violated 30 C.F.R. § 56.1401(a)(3).

The regulation mandates that “[a]ll braking
systems installed on the equipment shall be maintained in functional condition.”
30 C.F.R. § 56.1401(a)(3). The parties agree that the #34 yellow International
end dump truck in question was equipped with a low pressure warning signal, and
that the signal was not functioning at the time of the inspection. Tr. I 53, 91,

118. The Secretary maintains that the low brake pressure alarm on the truck is
     a part of the equipment’s air brake system. Tr. I 150; Petitioner’s Post-Hearing
     Brief (“Sec’y Br.”) at 3. The

Secretary asserts that because the alarm is a component
of the braking system, and because the alarm was not functioning, the fact of violation
should be affirmed. Sec’y Br. at 3.

Cactus Canyon asserts that 30
C.F.R. § 56.14101(a)(3) is inapplicable to the nonfunctioning low brake
pressure alarm cited by the inspector. Respondent’s Post-Hearing Brief (“Resp.
Br.”) at 17-20. Respondent argues that the low brake pressure alarm is not a part
of the vehicle’s “brake system” because the alarm cannot cause the brakes to
fail; it is merely a signal that reports on the functioning of the air brake
system. Id. at 19. Accordingly, Respondent maintains the violation should
be vacated. Despite Respondent’s fixation on this point, this inquiry does not
center on a determination of whether the alarm’s status as functional or not functional
affects the braking capability of the vehicle. In fact, it is reasonably
apparent from the facts established at hearing that the nonfunctioning alarm, which
had not functioned in a long time, had no bearing on the actual braking
capability of the truck. The low brake pressure alarm is a signal that alerts the
vehicle’s operator to a loss of air pressure. Tr. I 118-19, 190-91. The signal
was not functioning, but at the time of inspection, the truck’s brakes worked just
fine. Tr. I 58, 141; Tr. II 31-32.

The proper inquiry here is simply
whether the low brake pressure alarm is a component of the #34 truck’s “braking
systems,” and thus must be maintained in functional condition under 30 C.F.R. §
56.14101(a)(3). In Daanen & Jansen, Inc. , the Commission considered
this same standard in a case involving rear adjusting bolts that had become
frozen in place. 20 FMSHRC 189 (Mar. 1998). In that case, the respondent asserted
that “the standard’s plain language requires a finding of violation only when
the braking system fails to serve its primary purpose of stopping and holding
the vehicle.” Id. at 191-92. The Secretary countered that “the plain
language of the standard mandates a finding of violation when a component of the
braking system is not maintained in functional condition, regardless of whether
the braking system is capable of holding and stopping the vehicle.” Id. at

192. Alternatively, the Secretary argued that her interpretation of the standard,
     as outlined in MSHA’s Program Policy Manual, was reasonable and entitled to deference.
     Id. The Commission determined that the language of section 56.14101(a)(3)
     supported at least two plausible and divergent interpretations, and accordingly
     found that it was ambiguous. Id. at 192-93. The Commission then examined
     the Secretary’s interpretation and found that it was consistent with the language
     of the regulation, that it advanced the Mine Act’s goal of protecting miner safety,
     that it had been consistently applied, and that it gave meaning to all
     subsections of the standard. Id. at 193-94.

In making its findings, the
Commission in Daanen & Jansen looked at the common usage of the word
“system,” and determined that, “[b]ecause the definition of the term ‘system’
entails an interrelationship of component parts, it follows that for the system
to be considered functional, each of its component parts must be functional.” Id.
at 193. Additionally, the Commission explained that the Secretary’s
interpretation of the standard allows for a violation to be issued before the
entire braking system fails, and that this preventative interpretation advances
the Mine Act’s goal of protecting miners because it seeks to cure defects before
accidents occur. Id. The Commission also determined that the Secretary’s
interpretation of the standard embodied in the citation had been consistently
applied and was succinctly stated in MSHA’s Program Policy Manual. [5]
Id. at 194.

As in Daanen & Jansen , it
is undisputed in this case that the component at issue failed to perform its
designated function—the low brake pressure alarm did not work. As anyone who drives
a car can understand, a brake system on a vehicle serves the common purpose of
slowing and stopping the vehicle when its operator determines that doing so is desired
or necessary. Even if the low brake pressure alarm does not actually cause the
vehicle to slow or stop, it serves this common purpose by alerting the driver of
the truck to reduced braking capacity. As Fisher explained at hearing, if the
brake pressure is low and the alarm is not working, an operator may not be on
notice that the truck has reduced braking capability and the truck might become
a runaway. Tr. I 184, 198, 211. Obviously, this functionality is directly related
to the purpose of the braking system as a whole. The alarm’s inclusion as part
of the system is further demonstrated in a handout carried by the inspector to
help him explain the components of brake systems to mine operators. Ex. P-7, at
5; Tr. I 149-50.

Respondent highlighted
the fact that the low brake pressure alarm is essentially redundant where the
truck in question had fully functional, accurate pressure gauges that convey to
the operator the air pressure in both air tanks at any given time. Resp. Br. at

20. This safety feature, though it may be redundant, does not obviate the requirement
    to maintain the alarm under section 56.14101(a)(3). T he standard requires
    that “all” components be functional, and, since the warning signal is a component
    of the braking system and was not functioning, Cactus Canyon has violated the
    standard.

I find that the low brake air pressure
alarm is, unquestionably, a component of the brake system of the #34 dump truck,
that the alarm was not functioning at the time of inspection, and thus conclude
that Cactus Canyon violated section 56.14101(a)(3). Accordingly, Citation No.
9641812 is AFFIRMED , as modified below.

ii.         
Gravity

Fisher designated the citation as
unlikely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty. Ex. P-3. He explained at hearing that he marked
the citation as “unlikely” because the brakes had no air leaks at the time of
inspection, the horn on the truck is electric and would not use any air from the
air tank when used, the air tanks are drained of moisture daily, and there is
only one slope on the mine site. Tr. I 140-41. He further explained that he marked
“lost workdays or restricted duty” because the driver is the only person who was
likely to be affected by the hazard, and whiplash would be the most likely
injury. Tr. I 143-44.

I find the gravity designations made
by the inspector to be appropriate. The nonfunctioning low brake pressure alarm
was unlikely to cause an injury because the air tanks were holding pressure,
the tanks are drained of moisture daily, and there is only one slope at the
mine site. The #34 truck is only used two or three times per day on mostly flat
ground at low speeds. Tr. I 143-44. Fisher determined only one person—the driver—would
be affected by this violation. Tr. I 144. I find that Fisher properly designated
this violation as unlikely to cause an injury that could result in lost workdays
or restricted duty and as affecting one person.

iii.         
Negligence

Under the Mine Act, operators are
held to a high standard of care, and must “be on the alert for conditions and
practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R.
§ 100.3(d). Fisher determined this violation was the result of Cactus Canyon’s
moderate negligence because “no one seemed to know that the trucks had a low
brake pressure alarm system.” Tr. I 144-45.  Pursuant to the Secretary’s
regulations, negligence is considered moderate when
“the operator knew or should have known of the violative condition or practice,
but there are mitigating circumstances.” 30 C.F.R. § 100.3: Table X.

Unlike MSHA, however, the Commission
and its judges determine whether an operator has met its duty of care using a traditional
negligence analysis, considering the “totality of the circumstances holistically,”
including “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.” Brody Mining, LLC ,
37 FMSHRC 1687, 1702 (Aug. 2015). In this case, Carson and his employees were
unaware of the existence of the low brake pressure alarm but should have been
aware of it. Esmael Garcia had his commercial driver’s license and had been
trained to perform the tests that would have detected the nonfunctioning alarm.
Tr. II 29-30. A reasonably prudent person familiar with the mining industry
likely would have taken the vehicle out of service until each component of the
braking system was working properly. However, since Carson and his employees
were not aware of the alarm and utilized the functioning gauges to determine
whether the air tanks were holding pressure, I reduce Cactus Canyon’s negligence
from moderate to low for this citation.

B.     Citation Nos. 9641813
and 9641814

Fisher issued nearly identical citations
for the yellow #3 International end dump truck and the white Ford F8000 end
dump truck, stating for each that the windshield wipers:

did not work when tested. This condition increases
the risk of collision with other equipment during dusty or inclement weather
conditions exposing miners to injury. The loader was not taken out of service,
marked or tagged out of service, parked in a designated area for equipment with
defects, or was there any posting warning of this defect. Mine operator stated
that the truck was parked in an area for operational and ready to be used
equipment with another truck. There was no tag or energy isolation locking
device on the truck.

Exs. P-8 at 1, P-10 at 1. Fisher designated the citations
as non-significant and substantial violations of 30 C.F.R. § 56.14100(c) that were
unlikely to cause injuries
that could reasonably be expected to result in “lost workdays or restricted
duty,” would affect one miner, and were caused by Cactus Canyon’s moderate negligence. Exs. P-8 at 1, P-10
at 1.

i.         
Fact
of Violation

The cited standard
mandates that

[w]hen 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).

Fisher testified that at the time
of inspection the windshields of the two cited trucks were not perfectly clean
but were “good.” He explained, however, that the defective wipers made
continued operation hazardous because dust can come up from equipment traveling
throughout the mine site, and obstructed vision could cause an injury. Tr. I 273.
He also testified that a storm requiring the use of the wipers could come on
suddenly, even though the mine does not generally operate in inclement weather.
Tr. I 155-56. Accordingly, the Secretary asserts that these citations should be
upheld because the operation is inherently dusty, and the water used to control
dust as well as the water used to wash out the trucks could cause dust to stick
to the windshields and impair visibility. Sec’y Br. at 9-10. The Secretary contends
that because the windshields could get dusty, continued operation of these
two trucks was hazardous.

Cactus Canyon argues that these citations
should be vacated because there was “no likelihood” of an obscured windshield that
could be corrected by functioning windshield wipers. Resp. Br. at 16-17. At
hearing, Carson expressed his opinion that “the hazard determination that there
was some sort of danger. . . to health or safety does not have support.” Tr. II
101.

Given the relevant facts, I agree. The
standard mandates that defective equipment be taken out of service “[w]hen
defects make continued operation hazardous to persons.” 30 C.F.R. §
56.14100(c). I t
is undisputed that the windshield wipers were not functioning on either of these
two trucks. See Tr. I 60-61, 69, 109-110. The broken wipers made the equipment
defective. However,
these defects did not make continued operation hazardous to persons at the mine.
It is well established that Cactus Canyon does not operate in windy or rainy conditions
and washes its trucks very frequently. Additionally, these vehicles are never
operated outside of the mine, and are only used on site over a short distance at
a maximum speed of 10 miles per hour. Tr. II 48, 93. Given these very unique facts,
I find that the Secretary has failed to establish that the broken windshield wipers
made continued operation of these two trucks hazardous.

I find it is worth noting here that
Fisher acknowledged that Cactus Canyon employees told him they shut down
operations in the rain and that he considered the fact that employees shut down
the plant “when they’re supposed to.” Tr. I 236, 238. He later testified that had
there been a notice in the vehicles informing employees not to operate in the rain,
he would not have written the citations for the nonfunctioning wipers . Tr.
I 283-84. While it may not have been established to the inspector’s liking at
the time of inspection, I find that there was a well-understood policy at the mine
to discontinue operations in windy and rainy conditions or when there was a sufficient
chance of such conditions. Though unwritten, the very policy that would have prevented
Fisher from issuing these citations was in place and adhered to by all
employees. In almost any other situation involving motor vehicles, it would be
hazardous to operate without functioning wipers. In this unique circumstance,
however, I find the Secretary has failed to meet its burden of proving a
violation of section 56.14100(c) by a preponderance of the credible evidence. Accordingly,
Citation Nos. 9641813 and 9641814 are VACATED .

V.         
PENALTY

It is well
established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone
Co. , 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil
monetary penalties, the Commission ALJ shall consider the six statutory penalty
criteria:

(1) the operator’s history of previous violations, (2)
the appropriateness of such penalty to the size of the business of the operator
charged, (3) whether the operator was negligent, (4) the effect on the operator’s
ability to continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the person charged in attempting to achieve rapid compliance
after notification of a violation.

30 U.S.C. §
820(i).

For Citation No.
9641812, the Secretary proposed a regularly assessed penalty of $123.00. Ex.
P-2. Cactus Canyon has a minimal violation history and is a relatively small operation.
Id . Respondent presented no evidence regarding whether payment of the proposed
penalty would affect its ability to continue in business. As discussed above, I
find that this non-significant and substantial violation was unlikely to result
in an injury causing lost workdays or restricted duty and was the result of
Cactus Canyon’s low negligence. Finally, Cactus Canyon demonstrated good faith
in achieving rapid compliance after the citation was issued. Jt. Stip. 8. Considering
these factors, I find that the proposed penalty of $123.00 is appropriate for
this violation.

VI.         
ORDER

It is hereby ORDERED that Citation No. 9641812 is AFFIRMED , as modified to
reduce the degree of negligence to “low,” and that Citation Nos. 9641813 and
9641814 are VACATED . Respondent is
hereby ORDERED
to
pay the Secretary $123.00
within
40 days of this order. [6]

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution: (Electronic and U.S. First Class mail)

Tina D. Davila, U.S. Department of Labor, Office of the
Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202, [email protected]  

Andy Carson, Cactus Canyon Quarries Inc., 7232 County Road
120, Marble Falls, TX 78654, [email protected]

[1] In this decision,
the joint stipulations, transcript, Petitioner’s exhibits, and Respondent’s
exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. P–#,” and “Ex. R–#,”
respectively.

[2] At the time of the
hearing, Ty Fisher had worked at MSHA for two years and ten months. Tr. I 117. He
has worked in the mining industry for well over 30 years. See Tr. I 287.

[3] Esmael Garcia has
worked at Cactus Canyon for 15 years as a general laborer and mechanic. Tr. I 43-47.
He holds a commercial driver’s license. Tr. II 27.

[4] Jesus Garcia has
worked as a laborer at Cactus Canyon for approximately 40 years. Tr. I 81-83.

[5] MSHA’s
preventative interpretation analyzed in Daanen & Jansen remains the
same all these years later: “Standard [56].14101(a)(3) should be cited if a
component or portion of any braking system on the equipment is not maintained
in functional condition even though the braking system is in compliance with
(1) and/or (2) above.” IV MSHA, U.S. Dep’t of Labor, Program Policy Manual ,
Parts 56/57, at 51 (2003).  

[6]
Please pay penalties electronically at Pay.Gov, a service of the
U.S. Department of the Treasury, at  https://www.pay.gov/public/form/start/67564508 .
Alternatively, send payment (check or money order) to: U.S. Department of Treasury,
Mine Safety and Health Administration

P.O.
Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.