Walker Stone Company, Inc.
Walker Stone Company, Inc. (FMSHRC CENT 89-37-M): Eleven safety citations affirmed with negligence findings modified
Apply this to your situation
This order from 1990 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Walker Stone operated a surface limestone quarry and mill. MSHA alleged eleven violations involving guarding, electrical grounding, conveyor warnings, fuel-tank signage, power-switch labeling, cable fittings, and defects in a fuel-delivery truck. Judge William Fauver found every cited violation established and assessed a total of $530 in civil penalties. Four citations were modified to reduce the negligence finding from moderate to low, while the citations otherwise remained affirmed. The judge also declined the Secretary's late request to change several non-significant-and-substantial allegations to significant and substantial violations.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.12008, 56.12018, 56.12025, 56.14001, 56.4101, 56.9002, and 56.9006
- Outcome: All eleven citations were affirmed, four with negligence reduced from moderate to low, and $530 in civil penalties was assessed.
- Key point: The judge distinguished the seriousness of a violation for penalty purposes from the separate significant-and-substantial classification and denied a late request to amend several citations.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. WALKER STONE
DDATE:
19900227
TTEXT:
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 89-37-M
PETITIONER A. C. No. 14-00164-05506
v. Kansas Falls Quarry and Mill
WALKER STONE COMPANY, INC.,
RESPONDENT
DECISION
Appearances: C. William Mangum, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri,
for the Petitioner;
Keith R. Henry, Esq., Weary, Davis, Henry,
Struebing and Troup, Junction City, Kansas,
for the Respondent.
Before: Judge Fauver
The Secretary of Labor seeks civil penalties for 11 alleged
violations of safety standards under 110(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801 et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and additional findings of fact in the Discussion below:
FINDINGS OF FACT
1. Respondent owns and operates the Kansas Quarry and Mill,
which is a surface limestone mine engaged in mining and selling
limestone with a regular and substantial effect on interstate
commerce.
2. Respondent is a medium size mine operator.
3. After receiving each citation involved in this case,
Respondent made a good faith effort to abate the cited condition
promptly either by correcting the condition or by removing the
cited equipment from service.
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Citation 2651713
4. On October 13, 1988, a guard was not in place over the
four V-belt drive pulleys of the 353 natural-gas drive engine for
the first set of rolls. The pulleys project from the sides of the
motor. The moving parts may be contacted by persons using the
elevated walkway around the engine. The pulleys are located about
two feet from the floor. If an individual contacted the unguarded
moving parts, the accident could result in a fatal or permanently
disabling injury.
Citation 2651714
5. On October 13, 1988, a 110 volt metal fan serviced by a
14 AWG conductor cable and located in the #1 crusher control
room was not grounded. Grounding provides fault protection.
Serious injuries could result from shock or fire.
Citation 2651715
6. On October 13, 1988, a 110 volt electrical metal heater
with a fan motor mounted on metal was not grounded. The heater
was located in the #1 crusher control room. Grounding provides
fault protection. Serious injuries could result from shock or
fire.
Citation 2651716
7. On October 13, 1988, part of a conveyor belt was not
visible from the #1 crusher control room, where the belt controls
were, and there was no warning system to warn people when the
belt would start. If a person became entangled in the conveyor,
the accident could result in a fatal or permanently disabling
injury.
Citation 2651717
8. On October 13, 1988, exposed moving parts on the tunnel
conveyor tail pulley adjacent to a walkway were not guarded. The
tail pulley was in a poorly lighted area about 2 1/2 feet from
the floor. If a person became entangled in the unguarded pulley,
the accident could result in a fatal or permanently disabling
injury.
Citation 2651718
9. On October 14, 1988, signs prohibiting smoking and open
flames were not posted on two diesel fuel tanks near the shop
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and on a diesel fuel tank near the electrical control building.
There was some dry vegetation and diesel fuel spillage around the
tanks which created a fire or explosion hazard. In the event of
fire or explosion, serious injuries could occur.
Citation 2651719
10. On October 14, 1988, a 440 volt square D fuse switch and
a starter switch which controlled the #1 crusher conveyor belt
were not grounded. There was a grounding conductor leaving the
starter switch to the motor, but it was not connected at the
switch. If a wire connection, fuse clip, or other switch gear
part faulted, the incident could result in a fatal shock or
serious injuries.
Citation 2651720
11. On October 18, 1988, a principal 110 volt switch mounted
on the outside of the electrical building was not labeled to show
that it controlled the 110 volt starter switch for the #1 crusher
motors. The unit controlled by the switch could not be readily
identified by its location. In an emergency, delay caused by
confusion in trying to locate the right switch to de-energize the
1 crusher motors could contribute to serious injuries.
Citation 2652721
12. On October 18, 1988, the 440 volt 3 phase, 10 H.P.
conveyor drive motor was not grounded. The flex metal conduit,
which had been used as a grounding conductor, was pulled off the
motor junction box. Injury from shock could be fatal.
Citation 2651722
13. On October 19, 1988, 440 volt insulated cable wires
entering a metal motor junction box were not bushed. The outer
jacket on the cable was pushed back. The motor had been in this
condition for at least several months. Injury from shock could be
fatal.
Citation 2651724
14. On October 19, 1988, the diesel fuel delivery truck used
to haul fuel to equipment in the four quarries did not have a
door on the driver's side and had no seat belts. The truck
travels about 10 to 12 miles per shift from the shop to the four
quarries. Injury from falling out the door could be fatal.
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DISCUSSION WITH FURTHER FINDINGS
Citation 2651713
On October 13, 1988, Inspector Larry J. Day observed that
there was no guard over the V-belt drive pulleys of the
alternator part of the 353 natural gas engine for a set of rolls.
The engine was operating at the time and the pulleys were moving
"at a very rapid pace." Tr. 43. Inspector Day also observed that
the unguarded V-belt pulleys were within arm's reach of a walkway
next to the engine and the fast-moving machine parts were exposed
and would be accessible to persons on the walkway. Although
Inspector Day originally checked the "Gravity" section of the
citation as non-S & S, he testified that it should have been
classified as an S & S violation. He explained that Respondent's
plant foreman, Clifford Manning, pressured him not to issue any
citations, and because he did not want to increase the foreman's
anger, he marked a number of the citations non-S & S instead of S
& S. Tr. 227-228. His testimony on this point includes the
following:
THE WITNESS: I would like to make a statement as to the
inspection was quite intense, I did
have a lot of pressure on me.
It was very difficult to issue citations to the
operator, and I went lenient on the S and
S part because of the difficulty that I had of
issuing any citations to the operator.
I was trying not to be ambitious or aggravate the
operator any further than what he was, and
still try to do my job.
* * *
The difficulty was every time* I wrote a
citation, the operator would say, well you
can't cite me for that because I'll have it
fixed before you leave today.
For some reason, he had the interpretation
that if he could fix this violation, that I
shouldn't cite him for it.
So this made it difficult to give him -- to
issue citations. [Tr. 227-228]
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After reviewing each of his 11 citations at the hearing, the
inspector testified that he would have changed four of them to
allege gravity as S & S instead of non-S & S2.
In her brief, the Secretary requests that these four
citations be affirmed as alleging S & S violations. However,
inasmuch as the Secretary did not move to amend the citations at
the hearing, her request is denied as being untimely.
Accordingly, the above four citations will be considered
under "gravity" as used in 110(i) of the Act, but not on the
question whether they are S & S violations within the meaning of
104(d)(1) of the Act. The citations that allege S &
violations will be considered under both "gravity" in 110(i)
and the question whether the violations were "significant and
substantial" within the meaning of Section 104(d)(1) of the Act.
The Commission's test for finding an S & S violation is
discussed in connection with other citations, below.
Civil penalty proceedings before the Commission and its
judges are de novo, and the penalties assessed in such
proceedings are to be based upon the six statutory criteria in
110(i) of the Act rather than MSHA's classification/points
system. Sellersburg, 5 FMSHRC 287 (1983), aff'd, 736 F2d 1147
(7th Cir. 1984); Black Diamond Coal Co., 7 FMSHRC 1117 (1985).
The reliable evidence shows that Inspector Day observed a
serious violation. He testified that the unguarded V-belt pulleys
were accessible from the nearby walkway and that accidental
contact with them could cause serious injuries. The violation is
serious within the meaning of "gravity" in 110(i) of the Act,
even though it is not alleged to be a "significant and
substantial" violation within the meaning of 104(d)(1) of the
Act. It is a serious violation because the safety standard is an
important protection for the miners, and because Respondent's
conduct created a substantial possibility of serious injury. It
is also serious because Respondent's conduct should be deterred.
Citation 2651714
On October 13, 1988, Inspector Day observed an ungrounded
110 volt metal fan serviced by a conductor cable in the number 1
crusher control room. The parties have stipulated that the fan
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was not grounded and Inspector Day stated that there was no
equivalent protection provided. The control room is small, about
8 x 10 feet, and the fan would be close to an operator inside
the room. Inspector Day ran a continuity test on the fan from the
motor to the frame and found no resistance. He explained that if
the fan motor faulted, the frame of the fan would become
energized.
In defense of this citation, Respondent states that the fan
was approved for use by Underwriter's Laboratory, that it was not
in use at the time of inspection, and that it was private
property owned by the crusher operator and was used without
knowledge or permission of the company.
Inspector Day, a certified electrician, testified that the
Underwriter's Laboratory approval had no bearing upon whether the
fan was properly grounded (Tr. 50) and the fan was not grounded.
The fact that the fan was not in use at the time of inspection
does not rebut the proof of a violation, so long as the fan was
available for use. Citation 2651714 is one of the four citations
discussed above which the inspector stated should have been
classified as S & S instead of non S & S. The same ruling
applies, denying the Secretary's request to amend the citation.
The fact that the fan was owned by an employee of Respondent
and that Respondent did not expressly approve of its use does not
rebut the proof of a violation. Respondent has not shown that it
prohibited the use of the fan in its control room or that it
instructed employees against the use of personal equipment. The
fan was present at Respondent's mine site, its presence created a
hazard, and until a citation was issued Respondent permitted at
least one employee to have access to the fan while working.
I find that this is a serious violation within the meaning
of the "gravity" factor in 110(i) of the Act. It is serious
because the safety standard (30 C.F.R. 56.12025) is an
important protection for miners, Respondent's conduct created a
substantial possibility of serious injury, and such conduct
should be deterred.
Citation 2651715
On October 13, 1988, Inspector Day observed an ungrounded
110 volt metal heater located in the number 1 crusher control
room. The parties have stipulated that the heater was not
grounded. Inspector Day ran a continuity test on the heater and
found that it was a good electrical conductor. The metal heater
was the property of Respondent. The heater was on the floor of
the crusher control room within arm's reach of any operator who
would be in the room.
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This citation is one of the four citations discussed above, which
the inspector stated should have been classified as S & S instead
of non-S & S. The same ruling applies denying the Secretary's
request to amend the citation.
I find that this is a serious violation within the meaning
of the "gravity" factor in 110(i) of the Act. It is serious
because the safety standard (30 C.F.R. 56.12025) is an
important protection for miners, Respondent's conduct created a
substantial possibility of serious injury, and such conduct
should be deterred.
Citation 2651716
On October 13, 1988, Inspector Day issued Citation 2651716,
alleging a violation of 30 C.F.R. 56.9006, which provides:
When the entire length of a conveyor is visible from
the the starting switch, the operator shall visually check to
make certain that all persons are in the clear before starting
the conveyor. When the entire length of the conveyor is not
visible from the starting switch, a positive audible or visual
warning system shall be installed and operated to warn persons
that the conveyor will be started.
Inspector Day testified that ten to twelve feet of a
conveyor belt which was started from crusher control room number
1 was not visible from the crusher control room. Tr. 64, 403.
Cliff Manning, the plant foreman, stated that approximately ten
to fifteen feet of the conveyor was not visible from the control
room. There was no audible or visual warning system to warn
persons when the conveyor would be started. Employees performed
greasing around the portion of the conveyor that was invisible
from the control room. The conveyor was started once or twice a
day.
The inspector marked this violation non-S & S on the
citation. The Secretary's post-hearing request to amend the
citation to allege an S & S violation is denied as being
untimely.
I find that this is a serious violation within the meaning
of "gravity" in 110(i) of the Act. It is serious because the
safety standard (30 C.F.R. 56.9006) is an important protection
for miners, Respondent's conduct created a substantial
possibility of serious injury, and such conduct should be
deterred.
Citation 2651717
On October 13, 1988, Inspector Day issued Citation 2651717,
alleging a violation of 30 C.F.R. 56.14001, which provides:
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Gears; sprockets; chains, drive, head, tail, and
takeup pulleys; flywheels; couplings; shafts; saw
blades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may
cause injury to persons, shall be guarded.
Inspector Day testified that the tail pulley for a conveyor
belt located in a tunnel did not have a guard in place. Although
a stop cord was located over the unguarded portion of the tail
pulley, the presence of a stop cord does not replace the need for
a guard. The safety standard makes no provision for the use of a
stop cord in lieu of guarding.
The inspector marked this violation as non-S & S on the
citation, because of infrequent exposure of personnel to the
cited condition.
I find this violation to have a low degree of gravity.
Citation 2651718
On October 14, 1988, Inspector Day issued Citation 2651718,
alleging a violation of 30 C.F.R. 56.4101, which provides:
Readily visible signs prohibiting smoking and open
flames shall be posted where a fire or explosion hazard
exists.
Inspector Day observed two large diesel fuel tanks side by
side that did not have signs prohibiting smoking posted on them
or near them. A gasoline tank was located about 45 feet away from
the diesel tanks. The gasoline tank did have a single "no
smoking" sign posted on it, however the sign was not readily
visible from all areas around the diesel tanks. Respondent's
president, David Walker, stated that the diesel tanks were
accessible from all directions to the plant and that the "no
smoking" sign on the gasoline tank could not be seen from all
approaches to the diesel tanks. Mr. Walker confirmed that readily
visible "no smoking" signs were posted only after the citation
had been issued and new signs were painted on the diesel tanks.
Inspector Day testified that a third diesel tank was located
near an electrical control building. Tr. 82. The third diesel
tank did not have any signs prohibiting smoking posted on it and
although there was an old wooden building with a "no smoking"
sign located near the third diesel tank, the sign could not be
seen from the tank.
The evidence establishes that readily visible signs
prohibiting smoking and open flames were not posted on or around
three of Respondent's diesel fuel storage tanks. Inspector Day
marked this violation non-S & S on the citation.
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I find that this violation presented a low level of gravity.
Citation 2651719
On October 14, 1988, Inspector Day observed a 440 volt fuse
disconnect switch in an electrical control building about four or
five feet above a dirt floor. The switch was not properly
grounded and no equivalent protection was provided. Respondent's
plant foreman, Cliff Manning, confirmed that there was no
grounding between the fuse box and starter switch. This condition
was a violation of 30 C.F.R. 56.12025 and presented a risk of
electric shock.
The inspector marked this violation non-S & S on the
citation. The Secretary's post-hearing request to amend the
citation to allege an S & S violation is denied as being
untimely.
I find that this is a serious violation within the meaning
of "gravity" in 110(i) of the Act. It is serious because the
safety standard (30 C.F.R. 56.12025) is an important protection
for miners, Respondent's conduct created a substantial
possibility of serious injury, and such conduct should be
deterred.
Citation 2651720
On October 18, 1988, Inspector Day issued Citation 2651720,
alleging a violation of 30 C.F.R. 56.12018, which provides:
Principal power switches shall be labeled to show
which units they control, unless identification can be
made readily by location.
Inspector Day observed a large principal power switch
mounted on the outside of an electrical control building. He saw
three conductors running into the switch and a conduit running
out of the switch into the earth. He could not readily identify
which unit or units were controlled by the switch and there was
no label on the switch to identify the unit it controlled. Plant
foreman Clifford Manning confirmed that the unlabeled power
switch might be confusing to some employees. Inspector Day
eventually determined that the unlabeled power switch controlled
the conveyor motors for the crusher.
The evidence establishes that a principal power switch was
not labeled to show which units it controlled and that
identification could not be made readily by its location.
Inspector Day marked this violation non S & S on the
citation. I find that it presented a low level of gravity.
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"Gravity" of a violation under 110(i) and a "Significant
and Substantial" violation under 104(d)(1) of the Act
The term a "significant and substantial violation" derives
from 104(d)(1) and (2) of the Act,3 and not its civil
penalty provision ( 110(i)). The civil penalty provision simply
uses the term "gravity of the violation," as one of six statutory
criteria to consider in assessing a penalty.
Sections 104(d)(1) and (2) grant an administrative
injunctive power to the Secretary of Labor quite different from
the civil penalty authority in 110(i). Sections 104(d)(1) and
(2) authorize the Secretary to withdraw miners from a mine if a
certain chain of violations occurs. The chain must begin with a
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finding of a violation which, though not an imminent danger,4
is "of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety
and health hazard" and is also "caused by an unwarrantable
failure . . . to comply with . . . mandatory health or safety
standards . . . . " If a mine inspector finds such a violation,
104(d)(1) requires that the inspector "include such finding in
any citation given to the operator . . . . " It is this finding
that begins a 104(d)(1) chain that may lead to a 104(d)(2)
order withdrawing miners from the mine or a part of it.
This administrative injunctive power is strictly construed
by the Commission, which has ruled that, to prove a "significant
and substantial" violation, the Secretary must prove "a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature" (Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (1981)).
The Commission has not stated how its definition of a
"significant and substantial" violation differs from the Act's
definition of an "imminent danger" (see n. 4, infra). However,
inasmuch as 104(d)(1) does not apply to an "imminent danger,"
the Commission's definition of an S & S violation must mean a
level of gravity below an imminent danger.
"Gravity of the violation," as used in 110(i), i.e. for
civil penalty purposes, is not tied to the question whether a
violation is or is not "significant and substantial" within the
meaning of 110(d)(1). "Gravity," for civil penalty purposes, is
the seriousness of a violation. This includes the importance of
the safety or health standard, and the seriousness of the
operator's conduct, in relation to the Act's purpose of deterring
violations and encouraging compliance with safety and health
standards. Many types of safety or health violations are serious
even though a single violation might not show a "reasonable
likelihood" of causing injury or illness, or even fit into a pr
obability-of-injury-or-illness mold. For example, some violations
are serious because they demonstrate recidivism or an attitude of
defiance by the operator. Others are serious because the safety
and health standard involved is an important protection for the
miners. Important safety or health standards are such that, if
they are routinely violated or trivialized substantial harm would
be likely at some time, even if the likelihood that a single
violation will cause harm may be remote
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or even slight.5 Other mine safety and health violations are
serious because they may combine with other violations or
conditions to set the stage for a mine accident or disaster, even
though individually, or in isolation, they do not appear to
forecast injury or illness. Still others are serious because they
involve a substantial possibility of causing injury or illness,
if not a probability.
The term a "significant and substantial" violation within
the meaning of 104(d)(1) of the Act has been interpreted by the
Commission in a number of cases.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984), the Commission
stated:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary . . . 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.
The Commission has explained further that the third element of
the Mathies formulation "requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury." U.S. Steel Mining, Co.,
6 FMSHRC 1834, 1986 (1984) (emphasis deleted). It has also stated
that, in accordance with 104(d)(1), it is the contribution of a
violation to the cause and effect of a hazard that must be
significant and substantial. Id. In addition, the evaluation of
reasonable likelihood should be made in terms of "continued
normal mining operations." U.S. Steel Mining Co., Inc., 6 FMSHRC
1573, 1574 (1984).
The Commission's definition of an S & S violation will be
applied in considering the following three citations:
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Citation 2651721
On October 18, 1988, Inspector Day observed a conveyor and
conveyor motor mounted on a river bridge. He saw three conductors
running into the motor and a broken conduit next to the junction
box on the motor. The unit was not properly grounded. A metal
framed walkway ran parallel to the conveyor. Inspector Day
explained that two types of faults would probably result in the
motor shutting off. Tr. 110. However, in the event of a
"ground-to-face" fault the entire steel conveyor could become
energized creating a hazard of electrocution. Tr. 110-113.
Inspector Day further observed that the walkway adjacent to the
conveyor was used regularly and he observed people on it often
during the week he was there.
Failure to ground the metal framed motor constituted a
violation of 30 C.F.R. 56.12025. A discrete safety hazard of
electrocution was contributed to by the violation. The location
of the improperly grounded motor and the frequent use of the
adjacent metal walkway by employees resulted in a reasonable
likelihood that the violation would cause a serious injury.
Inspector Day classified this violation as "significant and
substantial." The violation meets the criteria set forth in
Mathies Coal Co., supra.
Citation 2651722
On October 19, 1988, Inspector Day issued Citation 2651722,
alleging a violation of 30 C.F.R. 56.12008, which provides:
Power wires and cables shall be insulated adequately
where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors splice boxes,
and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through metal
frames, the holes shall be substantially bushed with
insulated bushings.
Inspector Day observed that the wires from a 440 volt cable
entered a metal motor junction box. The cable itself did not
enter the box, but the cable jacket had been torn back so that
only the wires entered the junction box. Inspector Day observed
that there was no bushing inside the junction box or anywhere on
the cable wires. Lack of adequate bushings could result in
electric shock or fire with serious injuries.
Inspector Day's testimony regarding the condition of the
wires is not contradicted. He classified this violation as
significant and substantial. The violation meets the criteria set
forth in Mathies Coal Co., supra. A violation of 30 C.F.R.
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56.12008 is established by the fact that insulated wire
passing through the metal frame of junction box were not bushed.
The violation contributed to a discrete safety hazard of
electrocution, and created a reasonable likelihood of serious
injuries.
Citation 2651724
On October 19, 1988, Inspector Day issued Citation 2651724,
alleging a violation of 30 C.F.R. 56.9002, which provides:
Equipment defects affecting safety shall be corrected
before the equipment is used.
The inspector observed an old dump truck that had been
converted into a fuel delivery truck by mounting a large fuel
tank on it. The door on the driver's side of the truck had been
removed and no seat belt had been installed in the cab. The truck
operated on rough gravel roads. The combined equipment defects of
no door and no seat belt created a reasonable likelihood of a
driver falling out of the truck and being run over by the truck
or receiving other serious injuries from the fall.
Inspector Day classified this violation as significant and
substantial. This violation meets the criteria set forth in
Mathies Coal Co., supra. The lack of a seat belt and a missing
door on the fuel delivery truck are equipment defects affecting
safety in violation of 30 C.F.R. 56.9002. The violation created
a discrete safety hazard which was reasonably likely to cause a
serious injury.
The Effect of Prior Inspections
With respect to five of the eleven the citations, Respondent
contends that Inspector Day should not have issued a citation
because earlier inspections by other MSHA inspectors (of the same
conditions at this mine) did not result in citations.
Specifically, in its post-hearing brief Respondent contends that
Citations 2651716, 2651717, 2651720, 2651721, and 2651724 were
for conditions that had previously been observed by other
inspectors without issuing a citation.
The doctrine of collateral estoppel may not be invoked to
prevent a mine inspector from issuing a citation for a condition
he or she believes to be a violation of a safety or health
standard. The fact that other MSHA inspectors may not have cited
Respondent for the same conditions later cited by Inspector Day
does not affect the validity of his citations. However,
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Respondent's reliance on prior inspectors' lack of citations may
have a bearing upon the question whether Respondent was negligent
and, if so, to what degree. After careful consideration of the
evidence concerning each violation found herein, I find that the
degree of negligence should be changed from "moderate" to "low"
for the following citations: Nos. 2651717, 2651720, 2651721, and
2651724. The inspector's finding of low negligence in Citation
2651716 is sustained by the reliable evidence. As to each of the
remaining violations (Citations 2651713, 2651714, 2651715,
2651718, 2651719 and 1651722), I find that the violation could
have been prevented by the exercise of reasonable care and was
due to moderate negligence.
Considering all of the criteria for a civil penalty in
110(i), I find that the following penalties are appropriate for
the violations found herein:
Citation Civil Penalty
2651713 $ 50.00
2651714 $ 50.00
2651715 $ 50.00
2651716 $ 20.00
2651717 $ 20.00
2651718 $ 20.00
2651719 $ 50.00
2651720 $ 20.00
2651721 $ 75.00
2651722 $100.00
2651724 $ 75.00
CONCLUSIONS OF LAW
1. The judge has jurisdiction over this proceeding.
2. Respondent violated the cited safety standard alleged in
each of the above citations.
ORDER
WHEREFORE IT IS ORDERED that:
1. Citations 2651717, 2651720, 2651721, and 2651724 are
modified to change the degree of negligence from "moderate" to
"low." The above modified citations and the other citations
herein are AFFIRMED.
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2. Respondent shall pay the above-assessed civil penalties of
$530 within 30 days of this Decision.
William Fauver
Administrative Law Judge
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a1. At page 228 of the transcript the reporter transcribed
the word "everything," but the words used were "every time."
2. Citations 2651713, 2651714, 2651715 and 2651719. Tr.
221-225, 404.
3. Sections 104(d)(1) and (2) provide:
"(d)(1) If, upon any inspection of a coal or other
mine, an authorized representative of the Secretary finds that
there has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions created
by such violation do not cause imminent danger, such violation is
of such nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine safety
or health hazard, and if he finds health hazard, and if he finds
such violations to be caused by an unwarrantable failure of such
operator to comply with such mandatory health and safety
standards, he shall include such finding in any citation given to
the operator under this Act. If, during the same inspection or
any subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or
safety standard and finds such violation to be also caused by an
unwarrantable failure of such operator to so comply, he shall
forthwith issue an order requiring the operator to cause all
persons in the area affected by such violation, except those
person referred to in subsection (c) to be withdrawn from, and to
be prohibited from entering, such are until an authorized
representative of the Secretary determines that such violation
has been abated.
"(2) If a withdrawal order with respect to any area in
a coal and other mine has been issued pursuant to paragraph (i),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order under
paragraph (1) until such time as an inspection of such mine which
discloses no similar violation. Following an inspection of such
mine which discloses no similar violations, the provisions of
paragraph (1) shall again be applicable to that mine."
4. Section 3(j) of the Mine act defines "imminent danger" as
"the existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated."
30 U.S.C. 802(j).
Page 18
5. For example, a stop-look-and-listen safety law for public
service vehicles at railroad crossings may be considered an
important safety standard even though a particular instance of
violation may not show a "reasonable likelihood" of collision
with a train.
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