Secretary of Labor v. P.W. Gillibrand of Texas, Inc.

Plain-English summary

P.W. Gillibrand of Texas operates the Voca West sand plant in Texas. MSHA cited the mine because its grease station lacked a visible sign prohibiting smoking and open flames. Judge David P. Simonton found a fire hazard because an open drip barrel contained combustible paper and rags beside grease that could burn and emit toxic fumes. He affirmed the non-S&S violation but reduced negligence from moderate to low because the station was new, supervisors had overlooked the missing sign, and similar warnings were posted elsewhere at the mine. He assessed $125 for that citation and approved another uncontested $125 penalty, for a total of $250.

Decision snapshot

• Cited authority: 30 C.F.R. §§ 56.4101 and 100.3(d); 30 U.S.C. § 820(i)
• Outcome: The warning-sign citation was affirmed with negligence reduced to low, a second citation was uncontested, and $250 was assessed.
• Key point: Combustible trash next to grease created a fire hazard requiring a visible no-smoking and no-open-flame sign even though no ignition source was observed.

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.

P.W. GILLIBRAND OF TEXAS, INC.,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. CENT 2021-0104

A.C. No. 41-03618-529109

Mine: Voca West

DECISION

Appearances:              Maria
C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room
462, Dallas, TX 75242

Meghan
Neal, P.W. Gillibrand Co., Inc., 1000 Oglebay Norton Drive, Brady, TX 76825

Before:                                   Judge Simonton

INTRODUCTION

This case is before me on a
petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration, against P.W.
Gillibrand of Texas, Inc. (“PWG” or “Respondent”), pursuant to the Federal Mine
Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 801. [1] This case involves two
Section 104(a) citations with a total proposed penalty of $250.00. Respondent
has withdrawn its contest of Citation No. 9516972, so only Citation No. 9516971 remains in dispute. Jt. Stip. 9.

The parties presented testimony and
documentary evidence regarding the citation at issue at a virtual hearing held
on September 23, 2021. MSHA mine safety and health specialist Ty Fisher
testified for the Secretary. PWG environmental health and safety manager Jimmy
Palacio testified for Respondent. After fully considering the testimony and
evidence presented at hearing and the parties’ post-hearing briefs, I AFFIRM
Citation No. 9516971, as modified herein.

STIPULATIONS OF FACT

At hearing, the parties agreed to
the following stipulations:

P.W. Gillibrand, at all times relevant to these
proceedings, engaged in mining activities and operations at the Voca West
(Mine I.D. 41-03618) (the “Voca West Mine”) in McCulloch County, Texas.

P.W. Gillibrand is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ et seq. (the
“Mine Act”).

P.W. Gillibrand’s mining operations affect interstate
commerce within the meaning and scope of § 4 of the Mine Act, 30 U.S.C. §
803.

Respondent is an “operator” as defined in § 3(d) of the
Mine Act, 30 U.S.C. § 803(d), at the Mine where the contested citations in
these proceedings were issued.

The Administrative Law Judge has jurisdiction over these
proceedings pursuant to § 105 of the Mine Act.

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

The citations at issue in this proceeding were properly
served upon P.W. Gillibrand, as required by the Mine Act.

The penalties associated with the violations in this docket
if imposed, will not affect the Mine’s ability to remain in business.

The Respondent agrees to withdraw contest of Citation No.
9516972 and agrees to pay the assessed penalty of $125.00.

Tr. 7-8, 12.

FINDINGS OF FACT AND SUMMARY
OF TESTIMONY

PWG operates the Voca West mine, a
sand plant located in McCulloch County, Texas. Tr. 22, 82; Jt. Stip. 1. On
October 7, 2020, MSHA mine safety and health specialist Ty Fisher [2] arrived at the
mine to conduct a regular EO-1 inspection. Tr. 23. While inspecting the site,
he was accompanied by three members of mine management: shift supervisor Mike
Weeks, environmental health and safety manager Jimmy Palacio, and manager Tony
Vargas. Tr. 26-27. Fisher traveled throughout the mine and inspected the pit,
tire plant, fuel island, shop, and offices. Tr. 28.

While inspecting the shop area,
Fisher issued a citation when he discovered there were no readily visible
warning signs prohibiting smoking or open flames at the grease station used to
service equipment. Tr. 28-29, 76; Ex. S-1-1. Fisher explained at hearing that
there were three barrels present at the grease station. Tr. 29. One 55-gallon
barrel contained a red grease and was hooked up to a grease gun. Tr. 30, 38,
79, 111; Exs. S-1-2, S-2-1A, S-2-9. That barrel also had grease on the outside
of it and was connected to an air pump located on top of the barrel. Tr. 38;
Ex. S-2-9. A second 55-gallon barrel was mostly empty except for green grease
residue along the inside of it. Tr. 30, 39, 79; Exs. S-1-2, S-2-1A, S-2-11. A
third, 33-gallon barrel was located below the grease gun to catch drips, but
also contained four inches of combustible trash inside. Tr. 30-31, 34-35, 79;
Exs. S-1-2, S-2-1A, S-2-8A.

Fisher testified that he believed
the grease barrels posed a fire hazard because the combustible materials stored
in the open barrel could be easily ignited by a spark and potentially cause the
grease to burn. Tr. 35, 40. Fisher noted that grease fires emit toxic fumes and
are harder to extinguish than other types of fires. Tr. 40. To terminate the
violation, the mine installed a warning sign at the grease station. Tr. 52, 85;
Ex. S-2-12.

PWG’s
environmental health and safety manager, Jimmy Palacio, [3] testified for Respondent. Examining
the safety data sheet for the green grease, he explained that he did not
believe the green grease posed a fire hazard. Tr. 94; Ex. R-E-4. Palacio did
not believe a warning sign cautioning against smoking and open flame would be a
reasonable precaution to implement for this material. Tr. 105-06.

DISPOSITION

During his inspection on October 7,
2020, Fisher issued 104(a) Citation No. 9516971, which alleged:

The grease station
area at the shop had no warning signs prohibiting no smoking or open flames
readily visible. The combustible grease barrels (3) that are used to grease
equipment if ignited are a fire hazard to miners working near them, exposing
them to burn injuries and smoke inhalation. There was no ignition source
observed in the immediate are. The maintenance shop has an available fully
functional fire extinguisher nearby.

Ex. S-1-1; Tr. 28.

Fisher
designated the citation as a non-significant and substantial violation of 30
C.F.R. § 56.4101 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 PWG’s moderate negligence. Ex. S-1-1.

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). The Commission has described the Secretary’s
burden as:

The burden of
showing something by a “preponderance of the evidence,” the most common
standard in the civil law, simply requires the trier of fact “to believe that
the existence of a fact is more probable than its nonexistence.” RAG Cumberland
Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000); 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 PWG violated
30 C.F.R. § 56.4101.

30 C.F.R. §
56.4101 provides that “[r]eadily visible signs prohibiting smoking and open
flames shall be posted where a fire or explosion hazard exists.” The Secretary
asserts that the mine’s grease station posed a fire hazard. Sec’y Br. at 5-6. At
the grease station, there were three barrels: one closed barrel containing a
red grease, one closed barrel with residue of a green grease coating the
inside, and one open barrel catching drips of the red grease with about four
inches of trash inside it. Respondent presented testimony and documentary
evidence regarding the flammability of the green grease but failed to
meaningfully address the relevant properties of the red grease. The safety data
sheet for the green grease conveys that that the grease is “not considered
flammable or combustible, but this product will burn if involved in a fire.” Ex.
R-E-1. The grease will also emit toxic fumes when burned. Id . Fisher
testified that the grease at the grease station was a combustible liquid, and,
while it did not pose an explosion hazard, it did present a fire hazard even
though the grease was not flammable. Tr. 57-58.

As Fisher
testified at hearing, the green grease at issue here “is not the only fire
hazard.” Tr. 76. There were two greases present alongside paper and other
trash. While the flammability of the red grease was not established, it is
clear that the paper and rags present in the open barrel posed a fire hazard
because they are undoubtedly flammable. Given the presence of that trash, and
its proximity to grease that emits toxic fumes when burned, I find that the
condition of the grease station at Voca West posed a fire hazard. 30 C.F.R. §
56.4101 requires signage to be posted where a fire or explosion hazard exists,
and by failing to post signage at the grease station, PWG violated the
standard.

Gravity

Fisher
designated the citation as unlikely to cause an injury that could be reasonably
expected to result in lost workdays or restricted duty. Ex. S-1-1. At hearing,
Fisher explained that there was no potential ignition source at the grease
station, and that the area is only used to service equipment at certain times,
so there was low exposure to the hazard. Tr. 41, 45. He marked “lost workdays
or restricted duty” because, if a fire were to occur in the area, the most
likely injuries would be smoke inhalation or burns. Tr. 46. There were clear
and open escape routes on three sides of the grease station, so someone
affected by the hazard would be able to get away from it. Tr. 46. Because the
citation is marked “unlikely,” it is not considered a significant and
substantial violation. Tr. 46. Respondent did not contest the gravity
designations for this violation, and I find the designations made by the
inspector to be appropriate.

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). MSHA’s regulations define reckless disregard as conduct
which exhibits the absence of the slightest degree of care, high negligence as
actual or constructive knowledge of the violative condition without mitigating
circumstances; moderate negligence as actual or constructive knowledge of the
violative condition with mitigating circumstances; and low negligence as actual
or constructive knowledge of the violative condition with considerable
mitigating circumstances. 30 C.F.R. § 100.3: Table X.

Fisher
determined that the violation was a result of PWG’s moderate negligence,
explaining at the hearing that “the operator should have known to put up
warning signs prohibiting smoking and no open flames,” but there were
mitigating circumstances. Tr. 47. The grease station had been put in only one
or two months before the inspection, and supervisors were unaware that there
was no signage posted. Tr. 47. Fisher also stated that there were numerous
other signs prohibiting smoking and open flames throughout the mine site, which
“showed that they do their due diligence and it was just an oversight.” Tr. 47.

PWG should have
known to put up a warning sign at the grease station. However, given the
considerable mitigating circumstances, I reduce PWG’s negligence from moderate
to low for this citation.

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 Company, 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. 9516971, the Secretary proposed
a regularly assessed penalty of $125.00. PWG has a minimal violation history
and is a relatively small operator. Tr. 24-25, Ex. S-5. The parties stipulated
that the penalty will not affect PWG’s ability to continue in business. Jt.
Stip. 8. As discussed above, I find that this non-S&S violation was
unlikely to result in an injury causing lost workdays or restricted duty and
was the result of PWG’s low negligence. Finally, PWG demonstrated good faith in
quickly installing a sign to achieve compliance with the cited standard. In
light of these considerations, I find that the proposed penalty of $125.00 is
appropriate.

For Citation No. 9516972, the Secretary has
proposed a regularly assessed penalty of $125.00. PWG has withdrawn its contest
of this violation and agreed to pay the proposed penalty. Jt. Stip 9. As
required by the Mine Act, I have considered the representations and
documentation submitted and conclude that the proposed penalty is appropriate
under the criteria set forth in Section 110(i) of the Act.

ORDER

It is hereby ORDERED to pay
the Secretary the total sum of $250.00 within 40 days of this order. [4]

/s/
David P. Simonton

David P. Simonton

Administrative
Law Judge

Distribution: (Email [5] )

Maria C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA,
1100 Commerce Street, Room 462, Dallas, TX 75242 ( [email protected] )

Jimmy Palacio, P.W. Gillibrand of Texas, Inc., 1000 Oglebay
Norton Drive, Brady, TX 76825 ( [email protected] )

Meghan Neal, P.W. Gillibrand Co., Inc., 1000 Oglebay Norton
Drive, Brady, TX 76825 ( [email protected] )

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

[2] Ty Fisher has
worked for MSHA for two years and 10 months. Tr. 19. He has worked in the
mining industry for many years, including as a safety director and as a
firefighter. Tr. 20-21.

[3] Jimmy Palacio has
worked for PWG for 18 months, oversees three mines, and has over seven years of
experience working in mine safety and health. Tr. 81.

[4]
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. 

[5] For
the foreseeable future, Federal Mine Safety and Health Review Commission
(FMSHRC) notices, decisions, and orders will be sent only through electronic
mail. Because FMSHRC will not be monitoring incoming physical mail or faxes,
parties are encouraged to submit all filings through the agency’s electronic
filing system. If you are not able to file through our electronic filing
system, please send an email copy and we will file it for you.