Secretary of Labor, MSHA v. Apex Quarry, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA brought thirteen training, electrical, mobile-equipment, guarding, and roadway allegations against Apex Quarry, a small Kentucky limestone operation. Judge Thomas P. McCarthy affirmed six citations involving an incomplete training plan, defective parking brakes and headlights, and an uncovered electrical opening. He vacated four citation or order allegations because the Secretary did not prove that a breaker box required a dummy breaker, that two training violations occurred, or that a truck scale was a roadway requiring a higher guardrail. Three other citations were modified to remove their S&S designations because injury was unlikely from the partly exposed tail pulley, broken cab window, and incomplete pre-operational checks. The judge rejected Apex's request for a financial reduction because it had not supplied audited evidence of inability to pay. Apex was ordered to pay $2,642.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.3(a), 46.7(a), 46.11(a), 56.12032, 56.14100(a), 56.14100(b), 56.14101(a)(2), 56.14103(b), 56.14107(a), and 56.9300(b)
• Outcome: Six citations were affirmed, four citation or order allegations were vacated, three citations were modified to non-S&S, and $2,642 was assessed.
• Key point: The Secretary must prove the facts required by each standard and by an S&S designation, even when several equipment defects are undisputed.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004‑1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

January 23, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

�����������
Petitioner

v.

APEX
QUARRY, LLC,

������������
Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2010-784-M

A.C.
No. 15-18478-211341

Mine:
Apex Quarry

�����������������������������������������������������������������������������������������������������������������������

DECISION AND ORDER

Appearances:�������������������������� Latasha T. Thomas, Esq., Office
of the Solicitor, U.S. Department of Labor, Nashville, Tennessee for Petitioner

�����
Todd Harris, pro se, White Plains, Kentucky for Respondent

Before:����������������������������������� Judge
McCarthy

I. Statement of the Case

This
case is before me upon a Petition for Assessment of Civil Penalty under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Petition charges Respondent, Apex
Quarry, LLC (Apex) with thirteen violations of mandatory safety standards and
seeks a total civil penalty of $23,979 for those violations.

Prior
to hearing, the parties participated in a series of conference calls to discuss
the status of settlement negotiations and narrow the issues for hearing. Respondent,
through its pro se owner, Todd Harris, claimed that Apex Quarry was
unable to pay the proposed penalties given the company’s current financial situation.

A
hearing was held in Nashville, Tennessee. The
parties introduced rather limited testimony and documentary evidence,
particularly given the number of citations at issue.[1]
The Secretary’s sole witness was inspector Hollis.[2]
Hollis gave a brief description of each citation and the bases for his gravity
and negligence determinations supporting the proposed penalties. Harris,
content with answers provided by Hollis after cross-examination, declined to
provide narrative testimony concerning the citations at issue. Tr. 165. Instead,
Harris’ testimony was limited to
Respondent’s claimed inability to pay and
additional testimony in response to cross-examination and questions from the
bench. Tr. 167-80. Both parties waived post-hearing briefs. Tr. 165-66.

After
carefully considering the testimony of inspector Hollis and pro se owner
Harris, I find that the Secretary has demonstrated a clear violation of MSHA
standards as alleged in Citation Nos. 6596269, 6596270, 6596275, 6596271,
6596273, and 6596276. These citations are affirmed as written. The Secretary,
however, did not meet his burden of proof regarding Citation/Order Nos.
6596268, 6596269, 6596278, and 6596279. Accordingly, these citations and orders
are vacated. Finally, Citation Nos. 6596272, 6596274, and 6596277 are modified
to reduce the likelihood of injury or illness from “reasonably likely”
to “unlikely,” and to delete the significant and substantial
designation.

Based
on the entire record and my observation of the demeanor of the witnesses,[3]
I make the following:

II. Stipulations

At
hearing, the parties agreed to the following stipulations:

1. ������ Apex Quarry, LLC is the
   operator of the Apex Quarry; Mine ID No. 15-18478. The Apex Quarry is located
   in Christian County, Kentucky.

2. ������ The Apex Quarry is a “mine” as that term is defined in
   Section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

3.�������� At all times relevant
to these proceedings, products of the Apex Quarry entered commerce, or the
operations or products of thereof affected commerce, within the meaning and
scope of Section 4 of the Mine Act, 30 U.S.C. §
803.

4. ������ Employees at the Apex
   Quarry worked approximately 20,000 hours in the two years preceding the violations
   at issue.

5. ������ Copies of the
   violations at issue in this proceeding were served on Apex by an authorized
   representative of the Secretary.

6.�������� Apex Quarry, LLC
timely contested the violations.

7. ������ [Withdrawn].[4]

8.�������� In an effort to narrow
the issues in this proceeding, Apex Quarry, LLC stipulates to the following
facts related to the violations below:

A. ����� Citation No. 6596269 -
N/A

B. ����� Citation No. 6596268 -
Apex stipulates that there was not a breaker, or a dummy breaker, in the
breaker box located in the foreman’s office. However, Apex contends
that the condition would not cause a fatal injury.

C. ����� Order No. 6596269 - N/A

D. ����� Citation No. 6596270 -
Apex stipulates that the parking brake on the WABCO #4 35-ton haul truck was
not maintained in functional condition. The parking brake would not hold the
truck on the maximum grade that the truck travels. However, Apex contends that
the condition would not cause a fatal injury.

E. ������ Citation No. 6596271 -
Apex stipulates that the lights on the Kawasaki 770Z front loader were not
maintained in functional condition. However, Apex contends that the condition
would not cause a fatal injury.

F. ������ Citation No. 6596272 -
Apex stipulates that the tail pulley on the return conveyor was not guarded. However,
Apex contends that the condition was not reasonably likely to cause an injury.

G. ����� Citation No. 6596273 -
Apex stipulates that the lights on the #3 haul truck were not maintained in
functional condition. However, Apex contends that the condition would not cause
a fatal injury.

H. ����� Citation No. 6596274 -
Apex stipulates that the door glass on the WABCO #3 haul truck was broken. However,
Apex contends that the condition was not reasonably likely to cause an injury.

I. ������� Citation No. 6596275 -
Apex stimulates that the parking brake on the #3 haul truck was not maintained
in functional condition. The parking brake would not hold the truck on the
maximum grade that the truck travels. However, Apex contends that the condition
would not cause a fatal injury.

J. ������� Citation No. 6596276 -
Apex stipulates that there was not a plate covering an opening on the side of
the portable impact safe start box. However, Apex contends that this condition
would not cause an injury.

K. ����� Citation No. 6596277 -
Apex stipulates that adequate pre-operational checks of mobile equipment were
not being conducted at the time the citation was issued. However, Apex contends
that the violation was not reasonably likely to cause an injury. Apex further
contends that the violation would not cause a fatal injury.

L.�������� Order No. 6596278 -
N/A

M.������� Citation No. 6596279 -
Apex stipulates that the guardrails on the scales were not “mid-axle height” of the largest piece of
equipment that uses the scales. However, Apex contends that the condition was
not reasonably likely to cause an injury. Apex further contends that the scales
are not a “roadway” as contemplated by 30 C.F.R. § 56.9300(b).

9.�������� Apex Quarry, LLC 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
this case and issue a decision regarding this case.

10.������ Apex timely abated all
citations at issue.

�����������
Jt. Ex. 1; see also Tr. 11 re stipulation 10.

III. Findings of Fact and Legal
Analysis

Respondent
is a limited liability company that operated a small limestone quarry in White
Plains, Kentucky. In December of 2009, when the contested citations were
issued, the mine was owned and operated by Todd Harris. Tr. 168. Harris had just
taken control of Apex following a buyout of his partner, Leslie Strong. Harris
alleges that Strong defrauded Apex and third parties, placing the company in a “negative cash flow situation.” Tr. 168. Under Harris’
management, Apex’s financial troubles were
exacerbated when Respondent incurred a series of MSHA citations and proposed
penalties. Id.

In
2011, Harris represented Apex in an unrelated civil penalty case before the
undersigned. In those proceedings, Respondent contested a penalty of $19,632 on
the grounds that the size of the penalty would prevent him from remaining in
business. Apex Quarries, LLC, 33 FMSHRC 3158-59 (Dec. 20, 2011) (ALJ
McCarthy). Because Respondent did not provide audited financial statements as
requested by the bench, I found that Respondent had failed to meet its burden
of proof on that issue. Id. at 3162-63. After review of that record, I
ordered Respondent to pay a reduced total penalty of $9,971 in 60 equal
installments of $163.13.[5]

Unable
to manage outstanding tax liabilities to the Kentucky Department of Revenue,
however, Apex ceased operations in September 2011. Tr. 171. In March of 2012,
Respondent sold all its mining equipment, real estate, and permits to Apex
Materials, Inc., an independent limited liability company. Tr. 171, 172. Respondent,
however, did not dissolve Apex Quarry, LLC on the advice of Respondent’s accountant. Id.

�

A.               
Citation
No. 6596269

Citation
No. 6596269 alleges a non-S&S[6] violation of
30 C.F.R. § 46.3(a) and states that, “[a] review of the training plan revealed that the
new miner training section of the plan did not have the required hours, to
total the 24 hours needed. The plan showed 12 hours total in the time required.” P. Ex. 1.

�

The
violation is alleged to affect one person and to be a result of moderate
negligence. Id. Hollis found that the operator’s negligence was mitigated by the fact that the
violation was an oversight in an otherwise valid plan. Tr. 36. The citation
further alleges that no injury was likely to result from the bookkeeping error.
P. Ex. 1.; see also Tr. 35. The Secretary proposed a penalty of $100.

30
C.F.R. § 46.3(a) provides that an
operator “must develop and implement a
written plan, approved by [MSHA] under either paragraph (b) or (c) of this
section, that contains effective programs for training new miners and newly
hired experienced miners, training miners for new tasks, annual refresher
training, and site‑specific hazard awareness training.” To receive MSHA approval, a training plan can be
submitted the “Regional Manager, Educational
Field Services Division, or designee, for the region in which the mine is
located.” 30 C.F.R. § 46.3(c). Alternatively, a plan is assumed to be
approved if it contains, at minimum, the following information:

1) The name of the production‑operator
or independent contractor, mine name(s), and MSHA mine identification number(s)
or independent contractor identification number(s); 2) The name and position of
the person designated [to be] responsible for the health and safety training at
the mine. This person may be the production‑operator or independent
contractor; 3) A general description of the teaching methods and the course
materials that are to be used in the training program, including the subject
areas to be covered and the approximate time or range of time to be spent on
each subject area; 4) A list of the persons and/or organizations who will
provide the training, and the subject areas in which each person and/or
organization is competent to instruct; and 5) The evaluation procedures used to
determine the effectiveness of training.

30
C.F.R. § 46.3(b) ��

Respondent
does not deny the paperwork violation, but claims that the inspector did not
take into account additional mitigating circumstances. Tr. 38. Respondent
highlights Hollis’ testimony on cross-examination
that during his inspection, he did not discover any miner who lacked the
requisite training. Tr. 141.

It
is clear from the record that the bookkeeping omission constitutes a violation
of section 46.3(a). Pursuant to 30 C.F.R. § 46.5, new miners must be
provided twenty-four hours of mandatory training. Respondent’s training plan did not account for half of the
required training in contravention of this regulatory requirement. Even
assuming that additional mitigating factors exist, as Respondent contends, the
Secretary has proposed the minimum penalty for this paperwork violation. Accordingly,
the Citation and $100 penalty are affirmed.

B.������� Citation No. 6596268

Citation
No. 6596268 alleges a non-S&S violation of 30 C.F.R. § 56.12032. The cited standard provides that “[i]nspection and cover plates on electrical
equipment and junction boxes shall be kept in place at all times except during
testing or repairs.” 30 C.F.R. § 56.12032. The Citation specifically alleges that “[t]he breaker box located in the foreman’s office is absent a breaker/ or dummy breaker in
the box. The breaker or dummy breaker is helpful in isolating energized
components from mines [sic] who may open the box.”
P. Ex. 2. The Citation further alleges that an injury would be unlikely to
result from this condition, but if an injury occurred, the injury could
reasonably be expected to be fatal assuming the miner was wet or standing in
water. Id.; see also Tr. 42. Finally, the Citation alleges
moderate negligence, with one person affected. P. Ex. 2. The Secretary has
proposed a penalty of $425.

The
circuit breaker box in question appears similar to the type commonly found in
residential buildings. See P. Ex. 2B. The breaker box grants easy access
to the breaker switches, while preventing access to the electrical components. Two
vertical rows of metal knockouts provide potential slots for additional
breakers to be installed. Id. The offending hole in the breaker box at
issue was partially filled by a breaker, leaving only a small gap. Id.

Hollis
testified that the door to the breaker box was closed and located indoors, in
an “out-of-the-way place,” and therefore a miner would not come into contact
with energized components “without putting some effort into
it.” Tr. 40. Hollis explained that
the purpose of the cover plate was to prevent inadvertent contact with electric
components and to protect the electrical equipment from “becom[ing] compromised . . . by moisture . . .
animals . . . birds, [or] wasps . . . making nests” in the electrical housing. Tr. 103-04.

After
carefully examining the evidence before me, I conclude that the Secretary has
not met his burden to establish a violation of section 56.12032. The standard
only requires that a cover plate be installed which, according to Hollis,
should be capable of preventing inadvertent contact and environmental hazards. Although
Hollis believed that the presence of a dummy breaker would be “helpful,” the cited standard makes no
mention of a dummy breaker and the standard does not require both a protective
door and dummy breaker.[7]

Given
the small size of the gap and the fact that Respondent kept the breaker box
closed when not in use, I find that the breaker box door effectively guards
against the risks outlined by Hollis and thus serves as a cover plate for the
purposes of section 56.12032. Accordingly, this Citation and its associated
penalty are vacated.

C.������� Order No. 6596269

Order
No. 6596269 alleges a violation of 30 C.F.R. §
46.7(a) and states:

Mr. Joey Peterson, haul truck
driver, had not received adequate task training to operate the truck. When Mr.
Peterson was asked to demonstrate the emergency steering function of the truck,
he was unable to. When Mr. Peterson was asked how long he had been operating
the truck he stated “this was his first day on that
truck[.]” The mine operator was aware of
the Part 46 training requirements. The Federal Mine Safety and Health Act of
1977 states that an untrained miner is a hazard to himself and to others.

P. Ex.

3. The cited standard provides that, before a miner performs a new task, the
   operator “must provide any miner who is
   reassigned to a new task in which he or she has no previous work experience
   with training in the health and safety aspects of the task to be assigned,
   including the safe work procedures of such task, information about the physical
   and health hazards of chemicals in the miner's work area, the protective
   measures a miner can take against these hazards, and the contents of the mine's
   HazCom program.” 30 C.F.R. § 46.7(a).

The
Order is alleged to be significant and substantial, to wit, reasonably likely
to result in an injury that would reasonably be expected to be fatal, and the
result of high negligence, with one person affected. P. Ex. 3. The Secretary
has proposed a penalty of $7,774.

During
the inspection, Hollis flagged down a haulage truck and proceeded to question
the driver about the truck’s safety features. Tr. 46. The
truck driver, Joey Peterson, answered all of Hollis’ questions correctly, but was unable to engage the
emergency steering function when asked to do so. Id.; Tr. 143. On this
fact alone, Hollis determined that Peterson had not received adequate task
training.

Hollis
placed little importance on the fact that this was the first day that Peterson
had been assigned to the haulage truck, and because the Order issued at 11:55
a.m., Peterson had driven the truck for only several hours. Tr. 47; P. Ex. 3. More
importantly, Hollis appears to have completely disregarded the fact that
Respondent had a record of providing the appropriate training to Peterson, but
Hollis did not record this fact in his inspection notes or in the Order’s narrative. Hollis testified, “I checked the records. But, again, when you ask a
man to demonstrate something and he can’t demonstrate it, the records is
the records and the demonstration is the demonstration.” Tr. 142.

Peterson’s failure to demonstrate a single safety feature on
a vehicle that he had only been operating for several hours, does not, in itself,
prove that Respondent failed to provide training required under section
46.7(a). Had Peterson been unfamiliar with multiple safety features or had
other miners also failed to demonstrate knowledge of the emergency steering
function, perhaps an inference could be drawn that Respondent’s training regime was incomplete or inefficient. Alternatively,
Hollis could have attempted to determine the content of Respondent’s new task training for this particular vehicle. Instead,
Hollis’ inquiry ended prematurely and
the Secretary has been left to make a case on an incomplete set of facts that
falls far short of meeting his burden of proof.

Accordingly,
I find that the Secretary has failed to meet his burden of proof to establish a
violation of 30 C.F.R. § 46.7(a). This Citation and its
associated penalty are vacated.

D.������� Citation No. 6596270

Citation
No. 6596270 alleges a violation of 30 C.F.R. §
56.14101(a)(2) and states:

The parking break [sic] provided
on the WABCO #3 35 ton haul truck was not maintained in a functional condition.
The parking brake would not hold the truck either empty or loaded on the
steepest grade it is required to traverse in the mine.

P.
Ex. 4. The cited standard provides that “[i]f 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.”
30 C.F.R. § 56.14101(a)(2).

The
non-S&S Citation alleges that an injury was unlikely to occur from this
condition, but if an injury did occur, it could reasonably be expected to be
fatal, with one person affected as a result of moderate negligence. P. Ex. 4. Id.
The Secretary proposed a penalty of $425.

Hollis
testified that when the truck was parked on the steepest road at the mine and
the parking break was engaged, the vehicle rolled back approximately five or
six feet. Tr. 55-56. Hollis expected that any injury to a miner hit by the
large haulage truck would likely be fatal. Tr. 58-59. Respondent has stipulated
to the violation, but argues that MSHA regulations require redundant breaking
mechanisms. Tr. 143.

Given
the parties’ stipulation that the truck’s parking brake was not operational, I find a
violation of the cited standard. The inspector took into account the redundant
braking mechanisms on the truck when determining that the violation would be
unlikely to result in an injury. Tr. 53. This appears contrary to analogous
Commission precedent in the S&S context,[8]
but under other extant Commission precedent, I lack authority to modify the non-S&S
designation and make it S&S.[9] Although
Respondent appears to contend that additional braking mechanisms also mitigate
negligence, the presence of additional safeguards already required under the
Act or MSHA regulations do not mitigate Respondent’s duty to comply with a mandatory health or safety
standard requiring operational parking brakes.

Additionally,
Respondent contends that the violation is not likely to result in a fatal
injury. Jt. Ex. 1. In explaining the “fatal” designation, Hollis testified that parking brake
failures have resulted in fatalities in the past and that he was aware of
instances where miners have died while working under unspecified vehicles. Tr.
58-59. Hollis’ testimony on this point,
however, was vague and generic. The inspector did not provide an example in
which a miner at Apex would face a reasonable likelihood of injury, considering
the type of vehicle cited, its use at this particular mine, and the location
where it was normally parked or serviced. Instead, he proposed a scenario,
unsupported by any factual basis, where a miner would be “climbing around . . . [and] crawling under [the
vehicle], trying to work on it” while parked on an incline. Tr.
59.

Despite
the paucity of specific evidence on this issue, I find that the hazard was
reasonably likely to contribute to a serious and possibly fatal injury. The
size of the Wabco #3 truck, capable of carrying 35 tons, substantially
increases the likelihood that the failure of the parking brake to hold on the
mine’s steepest incline contributed to
a run-away truck hazard that would reasonably result in a fatal crushing
injury. In addition, I take administrative notice of the fact that MSHA has
designated § 56.14101(a) in its “Rules to Live By”
program as one of the most commonly cited standards in fatal accident
investigations at metal/non-metal mines. MSHA, Fatality Prevention - Rules to Live By, available at
www.msha.gov/focuson/

RulestoLiveBy/RulestoLiveByI.asp
(last accessed Jan. 23, 2014). Accordingly, Citation No. 6596270 is affirmed,
as written, and Respondent is assessed a penalty of $425.

E.������� Citation No. 6596275

Citation
No. 6596275 alleges a violation of 30 C.F.R. §
56.14101(a)(2) and states that “[t]he parking break [sic] on the
WABCO #3 haul truck would not hold the truck on the steepest grade it [is]
required to traverse in the mine. The truck was tested loaded and empty and the
parking brake would not hold in either case.”
P. Ex 9.

For
the reasons set forth in the previous citation, Citation No. 6596275 is affirmed
and a penalty of $425 is assessed against Respondent.

F.�������� Citation No. 6596271

Citation
No. 6596271 alleges a violation of 30 C.F.R. §
56.14100(b) and states:

The lights on the Kawasaki 770 Z
front-end loader are not working. The loader is used to feed the plant hopper
and the lights would be helpful in the event of rail or dusty conditions.

P.
Ex. 5. The cited standard provides that “[d]efects 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.”
30 C.F.R. § 56.14100(b). The non-S&S
Citation alleges that an injury was unlikely to occur from this condition, but
if an injury did occur, it could reasonably be expected to be fatal, with one
person affected as a result of moderate negligence. P. Ex. 5. The Secretary has
proposed a penalty of $425.

Inspector
Hollis testified that the lights on the front-end loader provided two important
safety functions: 1) to aid the operator’s vision in inclement weather,
low light, or dusty conditions, and 2) to warn miners and other traffic of the
vehicle’s approach. Tr. 62-63. Hollis
determined that an injury was unlikely because the mine operates during daytime
hours, but added that the mine would likely continue normal operations in rainy
weather or dusty conditions. Tr. 64-66.

Respondent
stipulated that the headlights were not operational at the time of the
inspection, but maintains that the violation would not contribute to a hazard
that would result in a fatal injury. Jt. Ex. 1. Hollis justified the “fatal” designation because he was
concerned that “someone could have been run over
and killed.” Tr. 66. Hollis testified that
there were miners on foot and miners operating other vehicles in the area where
the loader was operating. Tr. 64.

Similar
to the analysis in the parking brake citations above, I find that if an exposed
miner, particularly a miner traveling on foot, was hit by a large vehicle like
the front-end loader, the resulting injury would likely be fatal. Furthermore,
Section 56.14100(b) has been recognized in MSHA’s
Rules to Live By III as a major contributor to fatalities at metal/non-metal
mines. MSHA, Rules to Live By III -
Preventing Common Mining Deaths, available at
www.msha.gov/focuson/RulestoLiveByIII/MNMStandards.asp (last accessed January
23, 2014). Accordingly, Citation No. 6596271 is affirmed, as written, and
Respondent is assessed a penalty of $425.

G.������� Citation No. 6596273

Citation
No. 6596273 alleges a violation of 30 C.F.R. §
56.14100(b) and states that “[t]he lights on the WABCO #3 haul
truck are not working. The lights would be helpful in the event of rain or
dusty conditions.” P. Ex. 7. The non-S&S
Citation alleges that an injury was unlikely to occur from this condition, but
if an injury did occur, it could reasonably be expected to be fatal, with one
person affected as a result of moderate negligence. Id. The Secretary
has proposed a penalty of $425.

For
the reasons set forth in the previous citation, Citation No. 6596273 is
affirmed and a penalty of $425 is assessed against Respondent.

H.������� Citation No. 6596272

Citation
No. 6596272 alleges a violation of 30 C.F.R. §
56.14107(a) and states:

The tail pulley guard on the
return conveyor has been damaged and has exposed the moving machine parts
(fluted tail pulley) to passing miners. There are footprints in the mud where
miners have passed by the exposed parts. If the condition is continued [sic] to
exist it is reasonably likely that a miner could contact the moving parts. If a
miner accidentally contacted the parts, he/she could receive severe possibly
permanently disabling injuries.

P.
Ex. 6. The cited standard provides that “[m]oving 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.”
30 C.F.R. § 56.14107(a).

The
S&S Citation alleges that the cited condition was reasonably likely to
contribute to a hazard that would result in an injury and that such injury
would reasonably be expected to be permanently disabling, with one person
affected as a result of moderate negligence. P. Ex. 6. The Secretary has
proposed a penalty of $946.

Respondent
does not contest the fact that the tail pulley guard was damaged, but maintains
that the violation was not reasonably likely to result in injury. Jt. Ex. 1. Respondent
points out that the tail pulley guard was in place, but that one corner of the
guard had been damaged or bent back, thereby exposing the flutes on the tail
pulley. Tr. 144-45; see also P. Ex. 6B. Respondent also asserts that the
area was not accessed often, thereby reducing the likelihood that a miner would
come into contact with the unguarded tail pulley. Id.

When
asked why the citation was designated reasonably likely to result in an injury,
Hollis replied:

Well, there was exposure or
evidence that someone had been in the area by the footprints in the mud. The
location of the pulley, the person could easily get within a seven‑foot
criteria on 14107(a) as far as guarding moving machine parts. So if the
condition would have been allow[ed] to continue, it's reasonably likely someone
at one time could have contacted those machine parts and got into them.

Tr. 82.

�Hollis
further testified that a ground man may patrol the area to ensure that the
machinery is operational and to perform routine maintenance or clean up. Tr.

83. Hollis also testified, however, that this particular tail pulley was self
    cleaning and “doesn’t get a material buildup on it like a smooth tail
    pulley does,” and conceded that the footprints
    could have been left by a miner greasing the bearing during a pre-shift
    examination. Tr. 78-79; 145.

Under
the Mine Act, an S&S violation is one “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)(1). A violation is S&S “if, based on the particular facts surrounding the
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).

To
establish an S&S violation under National Gypsum, the Secretary must
prove the four elements of the Commission's subsequent Mathies test: (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. See Mathies Coal Co., 6
FMSHRC 1, 3‑4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal,
supra, 52 F.3d at 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir.
1988) (approving use of Mathies criteria). An evaluation of the
reasonable likelihood of injury is made assuming continued normal mining
operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC
1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I),
6 FMSHRC 1573, 1574 (July 1984).

The
tail pulley was mostly guarded, as shown in the inspector’s photograph. See P. Ex. 6B. The gap in the
damaged guard appears relatively small and positioned in such a way that a
miner would be unlikely to come in contact with the fluted tail pulley without
reaching into the gap. I find it unlikely that a ground man would come in
contact with the unguarded section while patrolling the area. Rather, only a
miner working in very close proximity to the tail pulley while the machinery
was operational would likely be exposed to the hazard. The Secretary has
offered no evidence to establish that a miner would ever be subject to these
conditions while the machinery was running.

Therefore,
I find that the Secretary has failed to meet his burden of proof to show that,
assuming continued mining operations, the violative condition contributes to a
hazard that was reasonably likely to result in a serious injury. Accordingly,
the Citation is modified to reduce the likelihood of injury or illness from “reasonably likely”
to “unlikely,” and to delete the significant and substantial designation.
Applying the criteria set forth in section 110(i) of the Act, I assess a
penalty of $190 to reflect the lower level of gravity.

I.��������� Citation No. 6596274

Citation
No. 6596274 alleges a violation of 30 C.F.R. §
56.14103(b) and states:

The door glass (right side
sitting in the seat) of the WABCO #3 haul truck is broken with sharp raised
edges. The truck operator sits with-in 3 feet of the sharp edges. If the
condition is allowed to exist it is reasonably likely that the operator would
contact the sharp raised edges, receiving injuries requiring time to heal. The
truck is used to haul material from pit to plant.

P.
Ex. 8. The cited standard provides that “[i]f damaged windows obscure
visibility necessary for safe operation, or create a hazard to the equipment
operator, the windows shall be replaced or removed. Damaged windows shall be
replaced if absence of a window would expose the equipment operator to
hazardous environmental conditions which would affect the ability of the
equipment operator to safely operate the equipment.” 30 C.F.R. § 56.14103(b).[10]

The
S&S Citation alleges that it was reasonably likely that an injury would
result from the cited condition and that such injury would reasonably be
expected to result in lost workdays or restricted duty, with one person
affected. P. Ex. 8. Hollis determined that the alleged violation was the result
of low negligence after he was informed that Respondent had ordered a
replacement window. Tr. 99, 178. The Secretary has proposed a penalty of $285.

Respondent
stipulated to the fact that the window glass was broken, but argues that the
hazard was not reasonably likely to cause injury. Hollis testified that the
broken window was approximately three feet to the right of the driver’s seat. Tr. 92. While fractured, the window remained
mostly intact, with the exception of a portion of the top right quadrant. P.
Ex. 8B. When asked how an operator would come in contact with the broken glass,
Hollis testified, that “getting in the truck, the person
could possibly come in contact with the glass.”
Tr. 92. Upon questioning from the undersigned, Hollis conceded that an operator
would enter the cab from the left side, not the right side where the window was
broken.Tr. 92, 94.

Next,
Hollis testified that the operator of the truck might come in contact with the
glass when being jostled around the cab while operating the truck on the mine’s bumpy roadways. Tr. 95. Hollis, however, conceded
that if wearing a seatbelt, as required, the operator would be less likely to
extend his arm to the window three feet away in an effort to regain balance. Tr.

147. Hollis also testified that the operator might place a water jug or lunch
     bucket on the right side of the cab or that a buddy seat might be installed on
     the right side to accommodate an additional passenger. Tr. 97. Hollis, however,
     could not remember if such conditions existed in the cited vehicle. Id.

Harris
and Hollis gave conflicting testimony as to the composition of the broken
window. Section 56.14103(a)
requires that all windows of self-propelled mobile equipment should be made of “safety glass or material with equivalent safety
characteristics.”[11] Harris testified that the window
was made of plastic plexiglass. Tr. 178. Hollis, however, claimed that it was
not plexiglass, but what he called “door glass” or “windshield glass.” Tr. 146. Inspector Hollis’s characterization of the glass did not draw any
distinction between tempered glass or laminate glass, which may react
differently when shattered and pose a different level of risk of cuts or
lacerations. Both
parties do agree, however, that the broken window did have some sharp edges. Tr.
100, 178.

I
find that the Secretary established that the safety glass posed a hazard to the
operator of the vehicle under the cited standard and therefore the Secretary
established a violation of section 56.14103(b). Based on the existing record,
the risk of such hazard, however, appears to be remote. The most likely
scenario set forth by Hollis was that the mine’s
bumpy roads would jostle the operator, causing him to reach out and cut his arm
on the broken window.[12] Tr. 95. For
a vehicle operator wearing a seat belt to touch the broken glass, the driver’s arm would have to extend three feet and come in
contact with the top right quadrant of the window. Such a location does not
appear a likely candidate for an operator to grasp in an attempt to regain
balance. See R S & W Coal Co. Inc., 30 FMSHRC 100, 101-02 (Jan.
2008) (ALJ) (violation was not S&S when the vehicle operator was unlikely
to come in contact with the broken section of the driver-side window). Furthermore,
I credit Harris that the window was made of plastic plexiglass over Hollis’ vague characterization
of the glass. Since I find that the window was plastic, the chance of lacerations
was substantially decreased. See Johnson Paving Co., Inc., 31 FMSHRC
1246, 1258-59 (Oct. 2009) (ALJ) (citation vacated where judge found that “[s]afety glass typically cracks rather than
shatters. It is common knowledge that such cracks do not necessarily produce
edges capable of cutting a person’s hand.”).

Accordingly,
Citation No. 6596274 is modified to reduce the likelihood of injury or illness
from “reasonably likely” to “unlikely,” and to delete the significant and substantial
designation. Applying the criteria in Section 110(i), a civil penalty of $100
is assessed for this violation.

J.�������� Citation No. 6596276

Citation
No. 6596276 alleges a violation of 30 C.F.R. §
56.12032 and states:

There is not a knock-out
plug/cover plate in place on the side of the portable impact safe start box
located in the motor control center. The plug/plate is helpful in maintaining
the inner integrity of the box and provides a level of protection.

P. Ex.

10. The cited standard provides that “[i]nspection and cover plates on
    electrical equipment and junction boxes shall be kept in place at all times
    except during testing or repairs.” 30 C.F.R. § 56.12032. The non-S&S citation alleges that an
    injury would be unlikely to occur from this condition, but if an injury did
    occur, such injury would reasonably be expected to cause lost workdays or
    restricted duty, with one person affected as a result of moderate negligence. P.
    Ex. 10. The Secretary has proposed a penalty of $127.

Respondent
has stipulated to the violation, but argues that the hazard would not result in
injury. Jt. Ex. 1. Unlike Citation No. 6596269 discussed above, the motor
control start box did not have a door or cover that would protect against
inadvertent contact or environmental hazards. Exposed electrical components
clearly pose a risk of injury, even if such risk is unlikely, as the Secretary
maintains. Accordingly, the Citation is affirmed, as written, and I assess a
penalty of $127.

K.������� Citation No. 6596277

Citation
No. 6596277 alleges a violation of 30 C.F.R. §
56.14100(a) and states:

Adequate pre-operational checks
of mobil [sic] equipment are not being conducted at the mine. This is evident
by the amount of citations issued on equipment conditions. A through [sic]
pre-operational check helps identify conditions that could be hazardous to
equipment operators and notifies the mine operator of the conditions.

P.
Ex. 11. The cited standard provides that “[s]elf‑propelled mobile
equipment to be used during a shift shall be inspected by the equipment
operator before being placed in operation on that shift.” 30 C.F.R. § 56.14100(a). The S&S
Citation alleges that it is reasonably likely that an injury would result from
the cited practice and that the injury would reasonably be expected to be fatal,
with one person affected as a result of moderate negligence. P. Ex. 11. The
Secretary has proposed a penalty of $2,106.

�

Pre-operational
safety examinations should be performed each shift before a piece of equipment
is put into operation. Tr. 113. Hollis testified that Harris told him that
pre-operational examinations were performed on all vehicles in accordance with
the standard. Tr. 111. In addition, the operators of the equipment produced
examination checklists documenting that the examinations were performed and
that “everything was okay.” Tr. 116-17. Hollis testified that the checklists
were “good forms” and included a detailed list of safety features
that should be examined. Tr. 117-18.

While
section 56.14100(a) does not specifically include an adequacy requirement,
Hollis testified that he believes the standard was violated because the mobile
equipment operators did not document the violative conditions above regarding
inoperative parking brakes and headlights. Tr. 112. Hollis testified that equipment
operators must do more than pay lip service to checking the oil and fluids. Rather,
they must establish that they have checked all safety-related features, such as
brakes and steering, prior to engaging a vehicle. Id.

I
note that here were five citations issued for defects in mobile equipment: two
citations for inoperative headlights, two citations for inoperative parking
brakes, and one citation for a broken window. Citation No. 6596274 was
documented by mine management and a replacement window had been ordered at the
time the citation was issued. Tr. 178. Accordingly, that Citation does not
demonstrate that the pre-operational examination was inadequate. Similarly, the
Citations for the faulty parking brakes are not very persuasive because the
vehicle must be put into operation and driven to the mine’s steepest gradient before the violative condition
can be tested or observed. 30 C.F.R. § 56.14101(a)(2) requires that
parking brakes be capable of holding the equipment with the “typical load on the maximum grade it travels.” To observe this condition, the vehicle must be
loaded then driven to the part of the road with the steepest grade. Notably,
inspector Hollis did not discover the faulty parking brakes by visual
inspection, but by asking the vehicle’s operator to attempt to engage
the parking brake on the steepest grade at the mine. Tr. 56. There was no
testimony adduced at hearing about whether the condition would be apparent to
an operator before the equipment was put into operation.[13]

�

On
the other hand, I find that it unlikely that the headlights on two different
vehicles became inoperable after pre-operational examinations were concluded. Rather,
it appears that the equipment operators were not checking the functionality of
the headlights during the pre-operational examination. Had a full examination
been performed, the problems should have been obvious to a competent,
well-trained miner. Cf. Sunbelt Rentals, Inc., 35 FMSHRC 3208 (Sep.
2013) (ALJ McCarthy), petition for rev. granted, Unpublished Order dated
Jan. 13, 2014 (summary dismissal granted where facts established that a
properly recorded pre-shift examination by a competent examiner failed to note
a latent hazard). Although section 56.14100(a) does not require that
examinations be “adequate,” where the violative condition is patently obvious
or especially egregious, the failure to note such condition during the
examination is tantamount to the failure to conduct a pre-operational
examination. See Cemex, Inc., 32 FMSHRC 1897, 1903-04 (Dec. 2010) (ALJ)
(discussing pre-shift workplace examinations under § 56.18002(a)). Accordingly, I find such a violation
here with respect to the headlights on two separate trucks.

The
two citations for inoperable headlights alone, however, do not warrant the
S&S designation. As noted above, the deficiencies with the pre-operational
examinations were not as extensive as inspector Hollis had determined when
issuing the Citation because Hollis improperly considered the parking brake and
broken window violations. Tr. 108.

Furthermore,
I find that the gravity for this Citation should not exceed that of the
headlight violations, Citation Nos. 6596273 and 6596271, which were not alleged
to be S&S. While the decisions of other judges are not binding on the
undersigned, I note that inspector Hollis’s classification of the
violations for inoperable headlights as non-S&S was in keeping with a long
line of ALJ decisions finding the same. See Freeman Rock, Inc., 28
FMSHRC 354, 358 (May 2006) (ALJ Melick) (inoperable headlights violation was of
low gravity); Nelson Bros. Quarries, 24, FMSHRC 980, 989 (Nov. 2002)
(inoperable headlights did not pose a hazard under § 56.14100(b) when vehicle operated only during
daylight hours) (ALJ Feldman); Florida Rock Indus., 34 FMSHRC 745,
762-63 (Mar. 2012) (ALJ Zielinski) (citation for broken headlights was not
S&S when operation of vehicle in darkness or reduced visibility was rare); Walker
Stone Co., 20 FMSHRC 1225, 1226 (Oct. 1998) (ALJ Manning) (violation for
inoperable headlights “was not very serious” when vehicle only used in daylight hours); Bob
Bak Constr., 19 FMSHRC 582, 605 (Mar. 1997) (ALJ Fauver) (judge credited
inspector testimony that if the vehicle was only operating during daylight
hours, the violation of § 56.14100(b) was not S&S); Walker
Stone Co., 20 FMSHRC 1218, 1222 (Oct. 1998) (ALJ Manning) (lack of
headlights not S&S when vehicle operated during daylight hours). It is
undisputed that the mine only operated during daylight hours and that mines
such as Apex Quarry typically cannot operate in heavy rain. Tr 64-65. As the
failure to check headlights during pre-operational examinations of mobile
equipment contributes to the same hazard as the citations for inoperable
headlights, I modify the citation to reduce the likelihood of injury or illness
from “reasonably likely” to “unlikely,” and to delete the significant and substantial
designation.

With
regard to negligence, I find that Apex was performing and documenting
pre-operational examinations and its pre-operational checklist exceeded
industry standards. As inspector Hollis noted, Respondent provided equipment
operators with a comprehensive pre-operational checklist that required
operators to check safety features. According to Hollis, Apex’s checklist appears to have exceeded normal industry
standards and thus mitigated Respondent’s negligence. In these
circumstances, I affirm the inspector’s finding of moderate negligence.

As
such, Citation No. 6596277 is modified to reduce the likelihood of injury or
illness from “reasonably likely” to “unlikely;” to delete the significant and substantial
designation. Based on the reduction in gravity, I find that a reduced penalty
of $425 is appropriate under section 110(i) of the Act.

L.������� Order No. 6596278

Order
No. 6596278 alleges a violation of 30 C.F.R. §
46.11(a) and states:

Three contract miners working at
the mine have not received the required site-specific hazard training. The mine
operator was aware of the training requirements. The mine operator must
withdraw the contract miners until they have received the required training. The
Federal Mine Safety and Health Act of 1977 states that an untrained miner is a
hazard to himself and to others.

P.
Ex. 12. The section 104(g)(1) Order is alleged to be significant and substantial
because the training violation is reasonably likely to result in an injury that
would be fatal, with three people affected as a result of high negligence. P.
Ex. 12. The Secretary has proposed a penalty of $9,882.

The
cited standard provides that the operator “must provide site‑specific
hazard awareness training before any person specified under this section is
exposed to mine hazards . . . . The training must address site‑specific
health and safety risks, such as unique geologic or environmental conditions,
warning and evacuation signals, evacuation and emergency procedures, or other
special safety procedures; and recognition and avoidance of electrical and
powered‑haulage hazards, and hazards resulting from traffic patterns and
control or in restricted areas. 30 C.F.R. § 46.11(a), (d). Unlike other
training requirements, MSHA regulations are much more lenient in determining
what constitutes training under this section. Operators need only alert miners
of site-specific hazards by means of “written hazard warnings, oral
instruction, signs and posted warnings, walkaround training, or other
appropriate means.” 30 C.F.R. § 46.11(e). Further, such training is “not required for any person who is accompanied at
all times by an experienced miner who is familiar with hazards specific to the
mine site.” 30 C.F.R. § 46.11(f).

The
record reveals that during the inspection, Hollis approached three contractors
working near the plant in an area where vehicles were parked when not in use. Tr.

121. Hollis identified one of the contractors, Mark Bowles, as the supervisor
     or owner of the contracting company. Tr. 122-23. Hollis then asked each
     contractor if they had received site-specific hazard training “for contractors.”
     They replied that they had not. Id.; Tr. 150. When Hollis
     requested that the mine superintendent produce records showing that the
     contractors had been given site-specific hazard training, he was unable to
     locate such records. Id. 122.[14] While the
     Order was premised on Hollis’ belief that the contractors had
     no familiarity with Apex Quarry, the inspector did not ask the contractors
     about their experience working at Apex Quarry. Tr. 123-24, 151.

Hollis
maintains that even though the contractors may have been experienced, failure
to provide site-specific hazard training to the contractors put them at risk of
fatal injuries. Tr. 123-24. Hollis testified that the contractors should have
received training regarding the hazards associated with “their exposure to the blasting activities, the
traffic pattern activities, and other hazards associated with mine property.” Tr. 125. On the other hand, Harris argues that the
contractors did not need to receive site-specific hazard training because they
were accompanied by an experienced miner with knowledge of the hazards specific
to the area of the mine where the contractors were working. Harris argues that,
in addition to his role as a contractor, Bowles was Respondent’s employee and had experience working at the mine
site. Tr. 150. Harris also testified that in addition to his job with
Respondent, Bowles rents mining equipment to Respondent. Id.; Tr.
160-61.

Pursuant
to subsection 46.11(f), an operator does not need to provide site-specific
hazard training when miners are accompanied by an experienced miner familiar with
the hazards specific to the mine site. It is undisputed that the contractors
were under the supervision of Bowles, an experienced miner. Tr. 123. Harris
maintains that Bowles worked both in his capacity as a rank-and-file miner and
as a contractor renting equipment to Respondent. Tr. 150, 160-61. Although
Respondent has not provided additional evidence concerning Bowles’ relationship with Respondent, the Secretary has
presented no evidence in support of Hollis’ allegation that Bowles was
unfamiliar with the mine site and its hazards. In fact, during the inspection,
Hollis did not even inquire as to the contractors’
experience or familiarity with Apex Quarry and the site-specific hazards to
which they were exposed. Tr. 151.

Even
assuming, arguendo, that Bowles was not an experienced employee of Apex
Quarry, the Secretary has not established that there were site-specific hazards
that the contractors might be exposed to, but of which they were unaware. Section
46.11(a) only requires that site-specific hazard training address hazards to
which the contractors may be exposed. Hollis testified that there were at least
two potential hazards at Apex Quarry that the contractors should have been made
aware of: blasting activities and traffic pattern activities.

There
is insufficient evidence to support Hollis’ contention that the contractors
were exposed to blasting hazards. The contractors were working at a ready line
near the plant, which by Hollis’ own estimation was between 150
and 200 yards from the pit. Tr. 57, 121. Hollis could not recall if the mine
was blasting while the contractors were on mine property. Tr. 125. Further, the
Secretary has not proffered any evidence that the contractors would be required
to enter the pit where the operator was engaged in blasting activities. Given
the contractors’ considerable distance from the
pit and limited work area, I cannot assume without any supporting evidence,
that the contractors were in an active blast area and thus required to have
site-specific hazard training to make them aware of the potential hazards
associated with blasting.

As
to the Hollis’ claim that the contractors were
subject to hazards from their exposure to traffic pattern activities, I find
that the severely limited scope of Hollis’ investigation failed to support
his conclusion that the contractors were not made aware of such hazards. Hollis’ allegations are based primarily on the response of
the contractors when asked by Hollis if they had received site-specific
training for contractors. While the contractors replied that they had not
received such training, it is unclear if the contractors understood the special
meaning of the term “training” in the context of section 46.11. While most
training in the MSHA context consists of highly standardized formal
instruction, section 46.11 has a significantly more expansive definition of
what constitutes “training” than what one normally would assume.[15]

As
noted, under the regulation, operators can provide training through the use of
written hazard warnings, oral instruction, signs and posted warnings,
walkaround training, or other appropriate means to alert persons to
site-specific hazards. 30 C.F.R. § 46.11(e). Thus, a violation of
the standard does not rest simply on whether a miner received formal instruction,
but rather whether the operator took appropriate steps to alert miners of
site-specific hazards. The inspector, however, did not inquire as to the
contractor’s familiarity with the mine site
or whether they were made aware of any hazard particular to this mine. Because
the inspector did not examine other means of “training” that MSHA has deemed appropriate, Hollis’s inquiry did not go far enough to establish a
violation of the standard.

Thus,
after consideration of all the circumstances in the existing record, I find
that the Secretary has failed to establish a violation of 30 C.F.R. § 46.11(a). Accordingly, Order No. 6596278 and its
associated civil penalty are vacated.

M.������ Citation No. 6596279�����������

Citation
No. 6596279 alleges a violation of 30 C.F.R. §
56.9300(b) and states:

The rails of the truck scales are
not at least mid-axle height of the largest piece of equipment that uses them
.. [sic] The existing rails are approximately 4-5 inches from the deck floor. The
mid-axle height of the equipment is about 17-19 inches. There is a 3-3 2 foot vertical drop on one side of the scales. If a
truck over turned on this drop is it [sic] reasonably likely that the operator
could receive injuries requiring time to heal. The scales are used everyday to
weigh trucks.

P.
Ex. 13. The cited standard provides that “[b]erms or guardrails shall be at
least mid‑axle height of the largest self‑propelled mobile
equipment which usually travels the roadway.”
30 C.F.R. § 56.9300(b). The cited condition
is alleged to be a significant and substantial violation of the standard
because it contributed to a tip-over hazard that was reasonably likely to
result in a lost-workdays or restricted-duty injury, with one person affected
as the result of moderate negligence. P. Ex. 13. The Secretary has proposed a
penalty of $634.

Respondent
concedes that the truck scale did not have guards or berms of mid-axle height,
but contends that the hazard was not reasonable likely to result in injury. Jt.
Ex. 1. Further, Respondent argues that the truck scale does not constitute a “roadway” for the purposes of section
56.9300(b). Id.

The
facts concerning Citation No. 6596279 closely mirror those in Knife River
Corp., 34 FMSHRC 1109 (May 2012) (ALJ McCarthy). At issue in Knife River
was a truck scale equipped with a 10-inch rub rail and a 41-inch drop-off that
was cited under section 56.9300(b). Id. at 1111. I found, as a matter of
fact and law, that the Secretary failed to establish that the Paetsch pit truck
scale at issue in that case was a roadway or part of the mine’s roadways. Id. at 1122.[16]
My rationale was based on the fact that the scale was “a piece of equipment designated and used for a
specific purpose. It was not designed to serve as a roadway and does not share
roadway features, such as banks, that are envisioned in section 56.9300. Not
all traffic must travel the scale to reach a particular destination and the
scale is not integral to the adjacent roadway’s
function.” Id.

In
this case, Hollis’ description of the truck scale’s function and use is more akin to the limited-use
equipment described in Knife River than to the bridges, ramps, and
benches that the Commission has found to be extensions of a mine’s roadway system in the context of a similar
regulation concerning elevated roadways at coal mines. See El Paso Rock
Quarries, 3 FMSHRC 35, 36 (Jan. 1981) (bench is an elevated roadway); Burgess
Mining & Constr. Corp., 3 FMSHRC 296 (Feb. 1981) (bridge is an elevated
roadway); Capitol Aggregates, Inc., 4 FMSHRC 846 (May 1982) (ramp is an
elevated roadway); see also 30 C.F.R. §
77.1605. Hollis testified that a “truck would not have to cross
over the scales to leave the property. There was a road right beside the scales
. . . and if [the truck] didn’t need weigh[ing] or wasn’t weighed, [the truck driver] could go around the
scales.” Tr. 131. Further, there was only
one vehicle on the scale at a time and the vehicle would be traveling “very, very slow,”
less than two to three miles an hour. Tr. 134, 136, 152.

Upon
examination of the use and function of the truck scale at issue, I find as a
matter of fact that
the truck scale at Apex Quarry is not a roadway or part of the mine’s roadways under section 56.9300. Furthermore, I
incorporate by reference the legal analysis set forth in Knife River establishing
that a truck scale is not a “roadway” under the clear and unambiguous meaning of the
standard. Accordingly,
Citation No. 6596279 and the associated proposed penalty are vacated.

VI. Penalty Assessment

Section
110(i) of the Mine Act sets forth the following criteria to be considered in
determining an appropriate civil penalty:

The operator's history of
previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification and violation.

Apex
is a small quarry, employing no more than eight employees at any given time. Tr.

170. The parties have stipulated that Respondent timely abated the violations
     in good-faith. Tr. 11. The negligence and gravity factors have been addressed
     above with respect to each violation.

Both
Respondent and the Secretary agree that Apex is no longer in the mining
business. Tr. 10. Harris provided undisputed testimony that Apex has sold its
assets and is no longer operational. Tr. 169. Harris further testified that he
does not intend to reopen mining operations and is currently working as a
contract mechanic. Tr. 172. Respondent, however, has not dissolved its
corporate entity based on advice from its accountant. Tr. 171.

The
Secretary contends that the section 110(i) criteria regarding the effect of a
penalty on an operator's ability to continue in business is inapplicable to an
operator who is already out of business. Spurlock Mining Co., 16 FMSHRC
697 (Apr. 21, 1994). In Spurlock, the Commission declined to reduce a
penalty where a mine ceased operations, but intended to reopen once sufficient
financing was secured. Id. 700. The Commission, however, specifically
declined to pass on whether it would be appropriate to reduce the penalty if a
mine was permanently out of business. Id.

Respondent
has offered no evidence demonstrating that Apex is permanently out of business.
The company remains registered with the State of Kentucky as a corporate entity
and Respondent has not been able to account for all of the $750,000 obtained
through the sale of Apex’s assets. Tr. 171-74. While a
portion of this money is due to creditors, any remaining funds could be used by
Apex to reenter the mining industry. As Respondent has not provided any audited
financial documentation showing what Apex is owed and what it owes it
creditors, I cannot determine if Apex is unable to pay the penalties assessed.

Furthermore,
although Apex Quarry, LLC may have sold its assets, the mine continues
production under new ownership as Apex Materials, LLC. Tr. 172. In an apparent
attempt to avoid paying MSHA penalties, Harris testified that he was advised to
keep the Apex Quarry alive as a corporate entity to avoid personal liability
for outstanding MSHA penalties. Tr. 171. The sale of a mine, however, does not
absolve the owners from paying outstanding MSHA penalties, particularly in the
successor or alter ego context. See generally Performance Coal Co., 34
FMSHRC 587 (Mar. 2012) (ALJ) (approving settlement of outstanding proposed
penalties to be paid by successor-in-interest); Ember Contracting Corp.,
33 FMSHRC 2742, 2758 (Nov. 2011) (ALJ) (“The Mine Act's concession to
operators having difficulties in continuing their businesses does not reward
those engaged in shell games.”).

For
the reasons set forth above, I decline to reduce the assessed penalties on
account of Respondent’s financial position. Accordingly,
a total penalty of $2,642 is assessed against Respondent.

VII. Order

WHEREFORE, it is ORDERED that
Citation/Order Nos. 6596279, 6596268, 6596278 and 6596269 be VACATED. Citation
Nos. 6596274, 6596277, and 6596272 are MODIFIED to reduce the likelihood
of injury or illness from “reasonably likely” to “unlikely,” and to delete the significant and substantial
designation. It is ORDERED that Respondent pay a total penalty of $2,642
within thirty days of this decision.[17]

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution:

Latasha
T. Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219-2456�����������������

Todd
Harris, Apex Quarry, LLC, 1627 Cavanaugh Road, White Plains, KY 42464

/tjr

[1]
Joint Exhibit 1, which reflected stipulated facts, and well as P. Exs. 1-14
(copies of citations, supporting documentation or photographs, and a certified
violation history report) and R. Ex. 1 (a 2010 safety award), were received
into evidence. (Tr. 10-15).

[2]
Inspector Hollis has nearly thirty
year of mining experience and has been with MSHA since April 1999. Tr. 29. Hollis’ experience is exclusively with surface and underground
metal/non‑metal mines including “sand and gravel operations, dredges,
limestone quarries, underground zinc mines, [and] underground lead mines.” Tr. 31. Although clearly an experienced inspector, Hollis’ interpretation of certain facts was fraught with
unsubstantiated conclusions and logical fallacies. Accordingly, I give
appropriate weight to this fact in assessing the probative value of Hollis'
testimony and the Secretary’s burden of proof.

[3]
In resolving conflicts in testimony, I have taken into consideration the
demeanor of the witnesses, their interests in this matter, the inherent
probability of their testimony in light of other events, corroboration or lack
of corroboration for testimony given, and consistency or lack thereof within
the testimony of witnesses and between the testimony of witnesses.

[4]
The original stipulation read: “Apex Quarry, LLC claims that the proposed civil money
penalties will affect its ability to remain in business. Apex Quarry, LLC
requests an opportunity to present proof regarding its financial condition.” At hearing, the parties withdrew the stipulation because
Apex had gone out of business after the stipulations were drafted. Tr. 10-11.

[5] According to MSHA’s Mine Data Retrieval System, Respondent is delinquent on
all citations issued after November 2007 for which a penalty has been assessed.
See Mine Safety & Health Admin., Data Retrieval System (“MSHA DRS”),
http://www.msha.gov/drs/drshome.htm (Apex Quarry, LLC (“1518478”)).

[6]
The Mine Act defines an S&S violation as one “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)(1). A violation is
S&S “if, based on
the particular facts surrounding the 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).

[7]
I note that the Secretary has
previously maintained that a door can serve as a cover plate under section
56.12032. Lakeview Rock Products, Inc., 18 FMSHRC 1504, 1506-07 (Aug.
1996) (ALJ) (finding a violation of the standard where the door to an
electrical junction box was left ajar); Essroc Cement Corp., 33 FMSHRC
459, 465-66 (Feb. 2011) (ALJ) (same).

[8]
Cf. Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133 (7th Cir.
1995); see also Amax Coal, 18 FMSHRC 1355, 1359 (Aug. 1996); Amax
Coal, 19 FMSHRC 846, 850 (May 1997); Big Ridge, 35 FMSHRC 1525 (June
2013); Cumberland Coal, 33 FMSHRC 2357, 2369-70 (Oct. 2011), aff’d Cumberland Coal Res. v.
FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013).

[9]
Mechanicsville Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 880
(June 1996).

[10] The Secretary does not claim that the broken
window impaired the operator’s visibility or exposed the operator to
adverse environmental conditions.

[11]
Safety glass is defined as either
tempered glass “that when struck breaks into relatively
harmless granules rather than large jagged pieces”
or laminated glass. Webster's Third New Int'l Dictionary (Unabridged)
1998 (1993). Laminate glass is a “plate consisting of two or more sheets
of glass with plastic sheeting bonded between to resist shattering.” Id. at 1267.

[12]
The other scenarios set forth by
Hollis appear to be mere conjecture with little or no foundation based on the
actual condition or use of the truck in question. Tr. 92 (contact with glass
when entering vehicle), or Tr. 97 (contact with glass when reaching for a water
jug or a passenger riding in a buddy seat).

[13] I note that the standard requires
pre-operational examinations to be performed by the vehicle operator, not a
certified mechanic. As such, the complexity of the examination is controlled by
what a competent vehicle operator can reasonably be expected to perform prior
to operation of the vehicle.

[14]
It is not clear from the record if
Respondent was required to maintain site-specific hazard training records for
two of the contractors. Section 46.9 specifically exempts operators from having
to maintain such records for maintenance or service workers, who do not work at
a mine site for frequent or extended periods. See 30 C.F.R. § 46.2(g)(2). Two of the contractors were preforming
maintenance on mobile equipment at the time that the Order was issued. Tr. 127.
There was no testimony regarding the amount of time the contractors spent at
the mine. Tr. 151.

[15]
Even inspector Hollis was hesitant
to classify informal discussion with miners and mine management as “training.” Tr. 199.

[16]
Additionally, I found in Knife
River that the Secretary’s broad definition of a roadway
encompassing truck scales was unreasonable, inconsistent with the regulatory
language and history, and unworthy of deference. Knife River Corp., supra,
34 FMSHRC at 1127-31. In this case, the Secretary has declined to brief the
issue or set forth his rationale for interpreting section 56.9300(b) to include
truck scales. In the interest of brevity, my legal findings in Knife
River regarding the scope and plain meaning of the standard are
incorporated by reference.

[17] Payment
should be sent to: Mine Safety & Health Administration, U.S. Department of
Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179‑0390.