Secretary of Labor v. Northern Illinois Service Company

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Northern Illinois Service Company's two portable limestone-crushing plants near Rockford, Illinois, for electrical, guarding, equipment, berm, training-record, fire-extinguisher, and examination-record conditions. Judge L. Zane Gill upheld ten violations and vacated one citation involving a torn and frayed front-end-loader seat belt. He found that the Secretary showed wear but did not prove the belt was nonfunctional, particularly because testimony indicated it still restrained the operator and no strength testing supported the inspector's prediction of failure. The Judge treated a training-certificate signature problem as a technical violation with no negligence because the required training occurred and a superintendent signed while the company was replacing its designated training official. The proposed total penalty of $6,756 was reduced to $4,874.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.9(b)(5), 47.44(b), 56.12004, 56.12006, 56.12028, 56.14100(b), 56.14130(i), 56.14132(a), 56.4201(a)(1), 56.9300(a), and 57.14107(a)
• Outcome: Ten citations were affirmed, the seat-belt citation was vacated, and Northern Illinois Service Company was ordered to pay $4,874.
• Key point: Visible equipment wear does not establish a functional violation without evidence that the safety device can no longer perform as required.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF THE CHIEF
ADMINISTRATIVE LAW JUDGE

1331 Pennsylvania Ave,
N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9900 / FAX: 202-434-9949

SECRETARY OF LABOR                                                                           :           CIVIL
PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH                                                                  :           Docket
No. LAKE 2011-1029-M

ADMINISTRATION (MSHA),                                                                    :           A.C.
No. 11-02963-263549

Petitioner,                                                                            :

:           Mine:
Northern Illinois Service Co.

:           Portable
Mine #1 (Blackrock Quarry)

:

v.                                                                                 :

:           Docket
No. LAKE 2012-0161-M

:           A.C.
No. 11-03104-272174

:

NORTHERN ILLINOIS SERVICE
COMPANY,                                      :           Mine: Northern
Illinois Service Co.

Respondent                                                                         :           Portable
Mine #2 (Bedrock Quarry)

DECISION

Appearances:               Sean J. Allen, Esq., Office
of the Solicitor, U.S. Department of Labor, Denver, CO, for Petitioner;

Peter
DeBruyne, Esq., Peter DeBruyne, P.C., Rockford, IL, for Respondent.

Before:                        L. Zane Gill, U.S.
Administrative Law Judge

These cases arise
from a petition for assessment of civil penalty filed by the Secretary of
Labor, acting through the Mine Safety and Health Administration, against
Northern Illinois Service Company’s (“NISC”) portable rock crushing plants near
Rockford, IL, pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”).  They
comprise 11 alleged violations distributed between the two captioned dockets. 
The Secretary proposed a total penalty of $6,756.00.  The parties presented
testimony and documentary evidence at a hearing held in Rockford, IL, starting
on January 8, 2013.

Procedural History

Prior to the
hearing, docket LAKE 2011-1029, consisting of Citation Nos. 6555758, 555759,
6555760, 6555761, 6555762, 6555763, 6555764,1 and 6555766, was consolidated with LAKE 2012-0161,
consisting of Citation Nos. 8662246, 8662247, and 8662248.  The ten remaining
citations were litigated at the hearing.

Stipulations

The parties
entered the following stipulations into the record at the hearing:

1.         Jurisdiction exists because
NISC was an operator of a mine as defined in Section 3(b) of the Mine Act, 30
U.S.C. § 803(b), and the products of the subject mine entered the stream of
commerce or the operations or products thereof affected commerce within the
meaning and scope of section 4 of the Act, 30 U.S.C. § 803. This issue is not
in dispute.

2.         This case involves two crushed
and broken limestone mines known as Northern Illinois Service Portable Mine No.
1 and No. 2, which is owned and operated by Northern Illinois Service Company. 

3.         The mines, MSHA ID Nos.
11-02963 and 11-03104, are subject to the jurisdiction of the federal Mine
Safety and Health Act of 1977.  

4.         NISC is an “operator” as
defined in § 3(d) of the Federal Mine Safety and Health Act of 1977, as
amended, 30 U.S.C. § 803(d), at the limestone mine at which the Citations at
issue in this proceeding were issued.

5.         The Administrative Law Judge
has jurisdiction over these proceedings, pursuant to Section 105 of the Act.

6.         The subject citations were
properly served by a duly authorized representative of the Secretary upon an
agent of NISC on the dates and places stated therein, and may be admitted into
evidence for the purpose of establishing their issuances, but not for the
truthfulness or relevancy of any statements asserted therein.

7.         NISC’s operations affect
interstate commerce.

8.         The exhibits offered by
Respondent and the Secretary are stipulated to be authentic, but no stipulation
is made as to their relevance or the truth of the matters asserted therein.
Additionally, both parties maintain the right to object to exhibits not
produced in discovery.

The Citations

Citation No. 6555758  (Exhibit GX-1; Docket LAKE 2011-1029) was issued
on June 22, 2011, and alleges a 104(a) violation of 30 CFR § 56.12004,
which requires that electrical conductors exposed to mechanical damage be
protected.  This citation is characterized as unlikely to cause injury,
potentially affecting a single miner, and arising from moderate
negligence.  The Secretary proposed a penalty of $108.00. 

Citation No. 6555759  (Exhibit GX-3; Docket LAKE 2011-1029) was issued
on June 22, 2011, and alleges a violation of 30 CFR § 57.14107(a), which
requires that moving machine parts be guarded to protect persons from
contacting moving parts that can cause injury.  This citation is
characterized as unlikely to cause injury, potentially affecting a single
miner, and arising from moderate negligence.  The Secretary proposed a
penalty of $807.00.

Citation No. 6555760  (Exhibit GX-5; Docket LAKE 2011-1029) was issued
on June 22, 2011, and alleges a violation of 30 CFR § 47.44(b), which
requires that operators mark temporary, portable containers not emptied at
the end of each shift with the common name of the contents. This citation
is characterized as unlikely to result in injury, lost workdays, or
restricted duty, as potentially affecting a single miner, and arising from
moderate negligence.  The Secretary proposed a penalty of $108.00.

Citation No. 6555761  (Exhibit GX-7; Docket LAKE 2011-1029) was issued
on June 22, 2011, and alleges a violation of  30 CFR § 56.14100(b), which
requires that defects on any equipment, machinery, or tools that affect
safety be corrected in a timely manner to prevent the creation of a hazard
to persons.  This citation is characterized as reasonably likely to be
fatal, potentially affecting a single miner, S&S, arising from
moderate negligence.  The Secretary
proposed a penalty of $1,795.00.

Citation No. 6555762  (Exhibit GX-9; Docket LAKE 2011-1029) was issued
on June 22, 2011, and alleges a violation of 30 CFR § 56.14132(a), which
requires that manually operated horns or other audible warning devices on
self-propelled mobile equipment be maintained in functional condition. 
This citation is characterized as unlikely to be fatal, potentially
affecting a single miner, and arising from high negligence.  The Secretary proposed a penalty of $1,203.00.

Citation No. 6555763 (Exhibit
GX-10: Docket LAKE 2011-1029) was issued on June 22, 2011, and alleges a
violation of 30 CFR § 56.14130(i), which requires that seat belts be
maintained in functional condition and replaced when necessary to assure
proper performance. This citation is characterized as being reasonably
likely to be fatal, S&S, and arising from moderate negligence.   The Secretary proposed a penalty of $1,795.00.

Citation No. 6555764  (Exhibit GX-13: Docket LAKE 2011-1029) was
issued on June 22, 2011, and alleges a violation of 30 CFR § 56.9300(a),
which requires that berms or guardrails be provided and maintained on the
banks of roadways which drop off enough to cause a vehicle to overturn or
endanger persons in equipment.  This citation is characterized as being
reasonably likely to result in lost workdays or restricted duty, affecting
a single person, S&S, and arising from moderate negligence.  The
Secretary proposed a penalty of $540.00.

Citation No. 6555766  (Exhibit GX-15: Docket LAKE 2011-1029) was issued on June 23,
2011, and alleges a violation of 30 CFR § 46.9(b)(5), which requires that
training records be kept and include MSHA Form 5000-23, containing a
statement by the person designated in the MSHA-approved training plan and
certifying that the miner in question has received periodic training as
required by the training plan.  This citation is characterized as a
paperwork violation arising from low negligence.  The Secretary proposed a
penalty of $100.00.

Citation No. 8662246  (Exhibit GX-20: Docket LAKE 2011-0161) was
issued on September 27, 2011, and alleges a violation of 30 CFR §56.12006,
which requires that electrical distribution boxes have a disconnecting
device for each branch circuit which is appropriately labeled so that it
can be visually checked to see if a device is open and the circuit is de-energized. 
This citation is characterized as unlikely to result in lost workdays or
restricted duty, potentially affecting a single person, and arising from
moderate negligence.  The Secretary proposed a penalty of $100.00.

Citation No. 8662247  (Exhibit GX-22: Docket LAKE 2011-0161) was
issued on September 27, 2011, and alleges a violation of 30 CFR
§56.4201(a)(1), which requires that fire extinguishers be visually
inspected at least once a month to determine that they are fully charged
and operable. This citation is characterized as unlikely to result in lost
workdays or restricted duty, potentially affecting a single person, and
arising from moderate negligence. The Secretary proposed a penalty of
$100.00.

Citation No. 8662248  (Exhibit GX-24: Docket LAKE 2011-0161) was
issued on September 28, 2011, and alleges a violation of 30 CFR §56.12028,
which requires that electrical grounding system be tested periodically and
records be kept for inspection. This citation is characterized as unlikely
to result in and injury but the injury could be fatal, potentially
affecting a single person, and arising from moderate negligence. The
Secretary proposed a penalty of $100.00.

Background Facts

The citations
from LAKE 2011-1029 were issued by MSHA inspector Thomas Heft on June 22 and
23, 2011.2  Those from
LAKE 2012-0161 were issued on September 27 and 28, 2011.  NISC mines and
produces aggregate products from two locations near Rockford, IL.  The two mine
properties are identified in the record as Portable Mine No. 1 and Portable
Mine No. 2.  The mines had been idle for some time prior to June 22, 2011, and
NISC personnel had just begun the process of examining for items needing attention
prior to resuming mining when Heft appeared at the site to conduct his
inspection on June 22, 2011. 

Analysis

Common Legal Standards

Negligence

Section 110(i) of
the Mine Act requires that in assessing penalties the Commission must consider,
among other criteria, whether the operator was negligent. 30 U.S.C. § 820(i). 
Each mandatory standard carries an accompanying duty of care to avoid
violations of the standard. An operator’s failure to satisfy the appropriate
duty can lead to a finding of negligence.  In this type of case, we look to
such considerations as the foreseeability of the miner’s conduct, the risks
involved, and the operator’s supervising, training, and disciplining of its
employees to prevent violations of the standard in issue. Southern Ohio Coal
Co., 4 FMSHRC 1459, 1463-64. See also, Nacco Mining Co., 3 FMSHRC at
848, 850-51(Apr.1981) (construing the analogous penalty provision in 1969 Coal
Act where a foreman committed a violation), cited in A. H. Smith Stone
Company, 5 FMSHRC 13 (Jan.1983).

Negligence “is
conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm.” 30
C.F.R. § 100.3( d).  “A mine operator is required [ ... ] to take steps
necessary to correct or prevent hazardous conditions or practices.” Id.  “MSHA
considers mitigating circumstances which may include, but are not limited to,
actions taken by the operator to prevent or correct hazardous conditions or practices.”
Id.  Reckless negligence is present when “[t]he operator displayed
conduct which exhibits the absence of the slightest degree of care.” Id.  High
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances.” Id.  Moderate
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” Id. Low
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances.” Id. 
No negligence is found when “[t]he operator exercised diligence and could
not have known of the violative condition or practice.” Id.

Gravity

The gravity
penalty criterion under section 110(i) of the Mine Act, 30 U .S.C. § 820(i), is
most often viewed in terms of the seriousness of the violation. Sellersburg
Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673,
681 (Apr. 1987).  The seriousness of a violation can be evaluated by comparing
the violated standard and the operator’s conduct with respect to that standard
in the context of the Mine Act's purpose of limiting violations and protecting
the safety and health of miners. See Harlan Cumberland Coal Co., 12
FMSHRC 134, 140 (Jan. 1990) (ALJ).  The Commission has recognized that the
determination of the likelihood of injury should be made assuming continued
normal mining operations without abatement of the violation. Consolidation
Coal Co., 8 FMSHRC 890, 899 (June 1986).

However, the
gravity of a violation and its significant and substantial (“S&S”) nature
are not the same.  The Commission has pointed out that the “focus of the
seriousness of the violation is not necessarily on the reasonable likelihood of
serious injury, which is the focus of the S&S inquiry, but rather on the
effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC
1541, 1550 (Sept. 1996).  The gravity analysis can include the likelihood of an
injury, but should focus more on the potential severity of an injury, and the
number of miners potentially injured.  The analysis should not equate gravity,
which is an element that must be assessed in every citation or order, with
“significant and substantial,” which is only relevant in the context of
enhanced enforcement under Section 104( d). See Quinland Coals Inc., 9
FMSHRC 1614, 1622 n. l (Sept. 1987).

Significant and Substantial

It is clear in
the Mine Act that because negligence and gravity, which are delineated in 30
C.F.R. § 100.3 and related tables, apply to all citations and orders, the
enhanced enforcement provisions set out in Section 104(d) contemplate something
distinct and more, when talking about S&S and unwarrantable failure.  The
Secretary must prove negligence and gravity for all citations and orders.  In
order to invoke the enhanced enforcement provisions in Section 104(d), he must
also prove that the circumstances of the violation satisfy both the S&S and
unwarrantable failure standards.  If the Secretary fails to prove both, there
can be no enhanced enforcement.  Thus, the Secretary has to prove four distinct
elements when the enhancement scheme in Section 104(d) is alleged: (1)
negligence; (2) gravity; (3) “significant and substantial;” and (4)
“unwarrantable failure.” 

Significant
and Substantial

In Mathies
Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health Review
Commission ("Commission") explained:

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

Id. at 3-4.

In U.S. Steel
Mining Co., 7 FMSHRC 1125 (Aug. 1985), the Commission held:

We have
explained further that the third element of the Mathies formula
"requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an
injury." [. . .] We have emphasized that, in accordance with the language
of section 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. at 1129 (emphasis in original) (citations omitted).

The question of
whether a particular violation is S&S must be based on the particular facts
surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr.
1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).
S&S enhanced enforcement is applicable only to violations of mandatory
health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195
F.3d 42 (D.C. Cir. 1999)

Penalty

The principles
governing the authority of Commission administrative law judges to assess civil
penalties de novo for violations of the Mine Act are well established. 
Section 110(i) of the Mine Act delegates to the Commission and its judges the
“authority to assess all civil penalties provided in [the] Act.”  30 U.S.C. §
820(i).  The Act delegates the duty of proposing penalties to the Secretary. 
30 U.S.C. §§ 815(a), 820(a).  Thus, when an operator notifies the Secretary
that it intends to challenge a penalty, the Secretary petitions the Commission
to assess said penalty.  29 C.F.R. § 2700.28. 

Under Section 110(i) of the Mine Act, the Commission is to
consider the following when assessing a civil penalty: (1) the operator’s
history of previous violations; (2) the appropriateness of such penalty to the
size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator's ability to continue in business;
(5) the gravity of the violation; and (6) the demonstrated good faith in
abatement of the violative condition.  30 U.S.C § 820(i).  Thus,
the Commission alone is responsible for assessing final penalties. See
Sellersburg Stone Co., 736 F.2d at 1151-52 (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis
upon which to conclude that [MSHA's Part 100 penalty regulations] also govern
the Commission.”); See American Coal Co., 35 FMSHRC 1774, 1819 (July
2013)(ALJ Zielinski).

The
Commission has repeatedly held that substantial deviations from the Secretary's
proposed assessments must be adequately explained using the section 110(i)
criteria. E.g., 293 Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations
omitted).  A judge need not make exhaustive findings but must provide an
adequate explanation of how the findings contributed to his or her penalty
assessments. Cantera Green, 22 FMSHRC at 622.

Discussion

Citation No. 655758  

Inspector Heft
issued Citation No. 6555758 under 30 C.F.R. § 56.12004 alleging that the
operator failed to protect an electrical conductor exposed to mechanical
damage.  (Tr.1 at 53, Ex. GX-1)  Heft testified that he found an orange 110
volt power cable along the scale conveyor.  (Tr.1 at 54, 60)  The outer jacket
of the cable was torn exposing the inner insulated conductors. (Tr.1 at 54) 
The exposed area of the power cable was approximately one half inch long, and
the power cable was thirty inches above the ground. (Ex. GX-1; Ex. GX-2)  Heft
concluded that the breach in the cable’s outer jacket exposed the inner
electrical conductors to possible mechanical damage such as “equipment,
material, weather, and UV radiation.” (Tr.1 at 54; Ex. GX-1)  Heft surmised
that water could get inside the power cable through the jacket tear, dirt could
corrode the cable, rocks could fall from the scale conveyor and strike the
cord, clean up equipment such as the skid-steer could contact the cable, or the
vibration of the scale conveyor could further damage the cable. (Tr.1 at 56;
Tr.2 at 42-43)

Heft concluded
that the breach in the cable jacket was a safety hazard because there was only
a thin layer of insulating material left on the inner conductors (Tr.1 at 57)
which, with further deterioration, could cause pinholes or bare sections to
develop in the inner conductors.  Id.  This could expose any miner
coming in contact with the cable to electrical shock. (Tr.1 at 57, 61)  Also,
an exposed inner conductor could energize the conveyor scale’s metal frame and
possibly shock any miner coming in contact with it. Id.  Heft testified
that a jolt from the 110 volt cable could cause electrical shock, burns, or
electrocution, which in turn could result in lost work days or restricted duty.
Id

Brian Russell testified on behalf of NISC that there
was always at least one person loading trucks with the sales loader at Mine No.
1 and Mine No. 2 from April to December each year. (Tr.2 at 131)  Russell testified
that Mine #1 only crushed product about 15 days per year (Tr.2 at 50, 55-57),
but that limestone had been mined and crushed during the period from a year
before Heft’s inspection to a year after. (Tr.2 at 130-131)  Russell confirmed
that the crusher, generator, three screens, and four or five conveyor belts
were in operation when Heft did his inspection. (Tr.2 at 86)  Russell stated
that he had visually inspected the power cable in question here, but had not
turned it over to see all angles. (Tr.2 at 75-77)  Russell looked for cuts,
abrasions, and kinks in the cable to make sure the outer jacket wasn’t cracked
(Tr.2 at 76), but admitted that the compromised portion of the jacket was
facing down when Heft found it. (Tr.2 at 88-89)

The
Violation

NISC argued that
the fact that Mine No.1 was just being resurrected from its winter break should
affect my assessment of whether the defect in the 110 volt cable in question
here constituted a violation of 30 C.F.R. § 56.12004.  (Resp. Brief at 8; Tr.1
at 16)  Its argument raises a point of equity not pertinent to the strict
liability nature of the Mine Act and its implementing regulations.  See,
Allied Products Inc., 666 F.2d 890, 892-93 (5th Cir.1982). 
It may well be that time did not allow NISC to thoroughly examine all of its
equipment and grounds prior to resuming operations the day before Heft’s
inspection, or that had they only had another day or two before Heft’s
inspection, they would have been able to work their way from the most important
safety concerns to those a bit lower on their list.  But NISC had notified MSHA
that they had resumed operations (Tr.1 at 146-147; 208), and Mine No.1 was in
partial production on the day of the inspection. (Tr.2 at 332)  These factors
might weigh against a finding of higher negligence, but they have no bearing on
the existence of a violation. 

There is no
dispute that Inspector Heft found a defect in the 110 volt cable or that the
defect exposed the inner, current-carrying cables to ambient conditions.
Assuming normal and continuing mining operations, even factoring in the
twenty-five or less production days during a normal work year, it is reasonably
likely the breach in the outer insulation would cause the insulation on the
inner conductors to fail due to the effects of weathering and/or friction. 
This is a violation of the standard’s requirement that “[e]lectrical conductors
exposed to mechanical damage [. . .] be protected.” 30 C.F.R. § 56.12004.

Negligence

The Secretary
argued for a finding of moderate negligence.  Moderate negligence requires that
the operator knew or should have known of a violating condition, but there are
mitigating circumstances, albeit less weighty than what is contemplated in
conjunction with a finding of low negligence.  Low negligence is defined as the
situation in which the operator knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances. 

Russell testified
that he walked along the conveyors and visually checked all power cables, but
he did not handle them. (Tr.2 at 75-77)  NISC knew (through its management)
that it had to check all power cables in the mine for damage. Id. 
Despite this, Inspector Heft found the break in the outer cable insulation that
Russell had missed.  I credit Russell’s testimony that he had checked the cable
in question.  This is evidence of mitigation.  I also consider the fact that
NISC had not gotten to every inspection item on its first day of resumed
operation, and they gave priority to more pressing inspection issues as further
evidence of mitigation. (Tr.2 at 86)  I conclude that low negligence is the
appropriate category. 

Gravity

NISC does not
contest Heft’s gravity assessment specifically.  It does argue that the citation
should be vacated because there was no evidence of compromise to the insulation
on the inner conductors, and the break in the outer insulating jacket does not
make out a violation, or in the alternative, if it could, exposure to the
elements does not constitute exposure to “mechanical damage” as specified in 30
CFR § 56.12004.  NISC also alleges that over the evening between the first and
second days of hearing, Heft came up with an alternate theory of how the
“scabbing” he found on the cable jacket amounted to mechanical damage.  I see
nothing untoward in Heft’s additional explanation about his enforcement theory,
however, I do see evidence that supports the Secretary’s gravity allegation. 
Heft noted on Exhibit GX-1 that the inner insulation was intact and that the
cable was not adjacent to a travel way, but testified that in time the cable
could continue to wear from the elements, exposure to moving equipment and
falling rocks, and mechanical vibration to the point where current could short
to the frame of the scale conveyor.  (Tr.2 at 142-43)  This is consistent with
his allegations in Exhibit GX-1 that it was unlikely that an injury would
occur, but that if it did happen, it could result in lost workdays or
restricted duty to a single miner.  I conclude that the gravity was as alleged
by Heft in Exhibit GX-1.3

Penalty

The Secretary
assessed the penalty for this citation as $108.00.  I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of
Civil Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  Because I have found low
negligence instead of moderate negligence, the point calculation in 30 CFR §
100.3 results in a penalty of $101.00.  I assess a penalty of that amount.

Citation No. 6555759

Inspector Heft
issued Citation No. 6555759 under 30 C.F.R. § 56.14107(a) when he found an
unguarded opening on both sides of the Roadstone stacker conveyor’s tail
pulley, measuring approximately four inches by six inches and situated about 16
inches above the ground.  (Tr.1 at 67-69; Ex. GX-3; Ex. GX-4)  The Roadstone
stacker was in operation, and the tail pulley was in motion. (Tr.1 at 67-68;
Ex. GX-3)  A person could walk right up to the opening in the guard.  (Tr.1 at
69)  The opening was large enough for a person’s hand to fit through it. (Tr.2
at 92-93)  Heft concluded that if a person tripped and fell and a hand were to
pass through the opening, it could come in contact with the moving tail pulley,
which could pull the hand and arm into the stacker and cause dismemberment. 
(Tr.1 at 70:6-7)  Heft stated that the condition was not open or obvious, but
NISC should have known of it because of its duty to affirmatively look for
safety and health hazards. (Tr.1 at 71)  The guard on the Roadstone stacker was
original equipment. (Tr.2 at 92)

The
Violation

There was a guard
in place on the stacker which did not cover the entire opening to the tail
pulley area.  The unguarded openings were large enough for a person’s hand to
pass through.  30 C.F.R. § 56.14107(a) applies to moving parts that may be
contacted, “including contact stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness.” Thompson Bros. Coal,
6 FMSRHC 2094, 2097 (Sept. 1984); (Thompson was incorporated by
reference for 30 C.F.R. § 56.14107 in Mainline Rock and Ballast, Inc., 693
F.3d 1181, 1186 (10th Cir. 2012))  Heft testified that he was able
to walk up to the openings and could have put his hand through them. (Tr.1 at
69-71)  Foreman Russell also stated that when he greased the machine, he put
his hand through the opening after first turning the stacker off.  (Tr.2 at
92-93)  A look at the photo of one of the openings in Exhibit GX-4 confirms
this.

I find that
however unlikely it was that a person would actually get a hand through the
unguarded opening, there was still a discernable hazard that exactly such a
mishap could occur.  NISC should have anticipated this eventuality and taken
steps to guard the entire opening.  The failure of the existing guard to
prevent a miner’s hand from coming in contact with the moving tail pulley
violates the standard.

The fact that
previous inspections had not cited this defect is of no avail to NISC, nor does
it require that MSHA give specific prior notice, as argued in NISC’s
post-hearing brief, before enforcing 30 C.F.R. § 56.14107, as it did here for
the first time on this mine property. The test for prior notice of intent to
enforce is whether a reasonable person familiar with the mining industry, the
protective purpose of the Mine Act and its implementing regulations, and how
MSHA disseminates its interpretation of its regulations should have discerned
the need to guard the machine part in question here.  See Alan Lee
Goodf d/b/a Good Construction, 23 FMSHRC 995, 1005 (Sept. 2001), MSHA v.
Holcomb & Co., 33 FMSHRC 1435, ( June 2011) (ALJ Manning), and Higman
Sand & Gravel Inc., 24 FMSHRC 87 (Jan. 2002) (ALJ Manning).  As pointed
out in the Secretary’s Post-Hearing Reply Brief, NISC was cited for violations
of this same standard seven times in the two year period preceding Inspector
Heft’s citation here.  NISC was or had reason to be aware of MSHA’s enforcement
intent with regard to this standard.  As Judge Manning explained in his
decision in MSHA v. Holcomb & Co., “[t]he regulatory history of
section 56.14107(a) makes clear that the Secretary provided notice to the
mining community that [he] interprets the safety standard very broadly to
protect persons from coming into contact with moving machine parts and that the
standard covers inadvertent, careless, or accidental contact.” (Internal
citation omitted.)  33 FMSHRC at 1439.

Negligence

The citation
alleges moderate negligence which requires that the operator knew of should
have known of the violating condition, but there are mitigating circumstances.  30
CFR § 100.3(d), Table X.  In addition, operators must be charged with knowledge
of the Mine Act and have a duty to comply with those provisions. Emery
Mining Corp., 744F.2d 1411, 1416 (10th Cir. 1984) (citations
omitted); Central Sand and Gravel Co., 22 FMSHRC 779 at n. 4 (June 2000)(ALJ
Barbour) (“It is the duty of each operator to have a thorough, working
knowledge of the code’s contents and applications.”)

NISC should have
known it was accountable for ensuring that all moving machine parts were
guarded.  It knew that this tail pulley could be contacted because Foreman
Russell had put his hand into the gap in the guard on previous occasions to
grease the Roadstone stacker. (Tr.2 at 92-93) However, the fact that the
likelihood of a miner accidentally getting a hand or other appurtenant part
into the gap in the guard was very remote mitigates against a finding of
anything more than moderate negligence.  Similarly, any adjustments to change
the positioning of the tail pulley were done from a location a foot and a half
from the opening. (Tr.2, at 95).  I conclude that NISC’s negligence was
moderate.

Gravity

NISC does not
specifically contest Heft’s characterization of the gravity of this violation,
viz., unlikely to cause injury and potentially affecting a single miner.  It
does challenge in general the fairness of MSHA issuing citations for conditions
that might have arisen over the winter production break and that NISC had not
yet gotten around to fixing on its first day of resumed operations.  (Resp. Post-Hearing
Brief, pgs. 6-7)  This violation, however, involves the lack of guarding on a
piece of equipment, a condition which did not arise during the winter break. 
NISC points out in defense of this citation that the guarding on the Roadstone
stacker came from its manufacturer in the condition Inspector Heft found. (Tr.2
at 92)  NISC also argues that the only time anyone ever inserts a hand into the
unguarded gap is to perform periodic lubrication maintenance, which is only
done when the entire stacker conveyor is shut down.  (Tr.2 at 93)  It is not
necessary to use the unguarded gap to adjust the tail pulley. (Tr.1 at 242)  I
am also aware that Inspector Heft noted in his narrative on the citation form
that “[t]he condition is not along a regular travel way,” and that given the
fact that the stacker came equipped as cited, “[t]he operator did not recognize
the hazard.” (Ex. GX-3)  The evidence of the gravity of this violation is
consistent with Heft’s finding, and I concur.

Penalty

The Secretary
recommends a penalty for this citation of $807.00.  I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of
Civil Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess a penalty of $807.00, as
the Secretary has recommended.

Citation No. 6555760

Violaton

On June 22, 2011,
Inspector Heft issued Citation No. 6555760 for failure to mark a portable
container with the common name of its contents. (Tr.1 at 73-78)  Heft found an
unlabeled, partially full, portable container in the back of a NISC service
truck. (Tr.1 at 75)  The photo in Ex. GX-6 confirms that the container was not
labeled.  Heft concluded that because the container was in the bed of service
truck on the mine premises, it was available for use. (Tr.2 at 43 and 75) 
Foreman Russell told Heft he had been driving the service truck for two days.
(Tr.1 at 77; Ex. GX-18, pg. 7)  Heft concluded that the container was being
used to transfer hydraulic oil, not as a permanent container. (Tr.1 at 77-79)  Foreman
Russell told Heft that the container had been in the service truck since
Russell had taken the truck from another site, and that he did not know the
container was partially full or unlabeled. (Tr.1 at 79; Ex. GX-5, pgs. 3-4) 
Heft concluded that the unlabeled container was a safety hazard because a miner
could contact a hazardous substance (the hydraulic oil) in the container and
would not know what precautions to take. (Ex. GX-5, pg. 3)  Heft also believed
the container was a safety hazard because it contained hydraulic oil, a
petroleum product which could cause skin and eye irritation and result in lost
work day injuries. (Tr.1 at 79; Ex. GX-5, pg. 3)

Foreman Russell
testified that he had taken the truck to Mine No. 1 for the first time the day
before Heft’s inspection. (Tr.2 at 80)  The truck was owned by NISC. (Tr.2 at
134)  The truck was used at this mine site only long enough to start the
machinery after the winter pause.  (Tr.2 at 137)  Russell did not put the
container in the truck; a mechanic did. (Tr.2 at 96; 136-137)  The container
was in the truck at the beginning of Russell’s shift on June 22, 2011.  (Tr.2
at 136-137)  Neither Russell nor the other miner on site used the container
before the inspection. (Tr.2 at 96)  Russell testified that the hydraulic oil
was used on equipment at Mine No. 1. (Tr.2 at 96-97; 134-135)

NISC argues three
points against this citation: (1) the cited standard only applies if the
contents of the portable container are actually used (Resp. Post-Hearing Brief
at 14); (2) the Secretary failed to prove that the hydraulic oil in the
container was hazardous (Id. at 15); and (3) the truck was primarily
used at non-mine locations and was only used by Russell in this case to travel
to Mine No. 1 at the beginning of this shift and was parked on mine premises
the rest of the time. Id.

None of the
Respondent’s arguments is convincing.  First, even assuming arguendo
that NISC’s syntactic logic truly meant that in order for the standard to
apply, the portable container must actually be used by a miner, its language
would also require that for the labeling requirement not to apply, the
miner using the container must not only know the identity of the contents and
its related protective measures, he must also leave the container empty at the
end of the shift.  The purpose of a temporary container is to contain
something for a time.  Whether the material in the container is used at all is
only a secondary consideration.  The gravamen of the standard is that it is
permissible to use a portable container for temporary storage, and it need
not be labeled if it is left empty at the end of the shift, regardless of
whether the contents are used during the shift.  The “use” that is central to
this standard is the use of the portable container to contain a potentially
hazardous material, not whether a miner actually uses the material. This
container was not left empty at the end of the previous shift.  Therefore, one
of the necessary elements needed for NISC’s logic to apply was unsatisfied. 
The container was not emptied at the end of the prior shift – it was found
containing hydraulic oil during the inspection shift – which means that one
condition necessary for it not to be labeled did not exist. (Tr.1 at
252)  It contained hydraulic oil during the shift and on mine premises; it was
being used by Russell for its intended purpose, i.e., to temporarily
contain something.  Russell testified that he knew that the container was in
the service truck he had driven for a day or two and that he knew it contained
hydraulic oil. (Tr.2 at 96-98)  The elements of the standard, written in the
negative as it is, that would excuse the obligation to label the temporary
container were not present.  What remains is the use of an unlabeled temporary
container to hold an arguably hazardous material while on mine premises.  It is
irrelevant whether the contents were used.

Second, Heft
testified that hydraulic oil is hazardous. (Tr.1 at 79; 253)  In its cross
examination of Heft, NISC referred to a document entitled 1999/45/E.C. (Resp. Post-Hearing
Brief at 15), which from its context seems to support the notion that hydraulic
oil is not hazardous to humans.  Heft did not acknowledge the authority of this
document, nor was it entered into evidence.  As a result, the court may not
recognize it for the purpose NISC intended.  The only evidence in the record on
the issue of whether hydraulic oil is hazardous is Heft’s testimony that it is,
in his opinion.  I find that for purposes of determining whether 30 CFR §
47.44(b) was violated in this case, hydraulic oil is hazardous.

Third, the
service truck was on mine premises with the unmarked container in its bed when
Heft did his inspection and wrote this citation. (Ex. GX-5)  I credit the fact
that Russell used the service truck to come to Mine No. 1 from another location
and parked it on the mine premises once he got there. (Tr.2 at 81-82)  I also
credit the fact that the service truck was used at non-mine locations some of
the time and had been used at such a non-regulated location during the winter
pause. (Tr.2 at 79-80)  It is also undisputed that the service truck sat parked
close to the mine shop when Russell was not using it to drive around the mine
site. (Tr.2 at 81-82)  None of this changes the fact that at the time of Heft’s
inspection, the service truck was on the Mine No.1 premises, which were subject
to MSHA regulation and inspection, and it had the unmarked container in its
bed.  These facts are relevant to the negligence and gravity findings, but they
do not obviate the violation of 30 CFR § 47.44(b).  I find that a portable,
temporary storage container was found unmarked in the bed of the service truck
while it was on mine premises and conclude that this makes out a violation of
the standard. 

Negligence

Inspector Heft
appropriately categorized this violation at the level of moderate negligence. 
Russell had driven the service truck on more than one shift and had brought it
onto mine property each time with the unmarked container in the bed.  NISC knew
or should have known of the violating condition.  As above, the brief time the
mine had been back in operation after the winter break mitigates against a
higher level of negligence.  I concur in Heft’s negligence assessment and find
that the violation was the result of moderate negligence.

Gravity

Inspector Heft
concluded that this violation was “unlikely” to cause injury, and that the
potential injury would result in lost workdays or restricted duty and involve a
single miner. (Ex. GX-5)  Heft testified that the potential injury would be
skin or eye irritation. (Tr.1 at 79)  Hydraulic oil would most likely not cause
a more serious injury if a miner got it on his skin.  I concur with Heft’s
gravity assessment.

Penalty

The Secretary
recommends a $108.00 penalty for this citation.  I have reviewed and confirmed
the data in Exhibit A to the Secretary’s Petition for Assessment of Civil
Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess the recommended penalty
of $108.00.

Citation No. 6555761

Inspector Heft
issued Citation No. 6555761 on June 22, 2011, for an alleged failure to correct
a defective acetylene torch gauge in a timely manner. (Tr.1 at 81)  Heft found
an acetylene torch on the same service truck discussed above. (Tr.1 at 84-85) 
He observed that the pressure gauge on the acetylene tank read 15 psi (pounds
per square inch).  (Tr.1 at 85)  He released the pressure to the gauge by a
process he called “bleeding off,” and expected to see the gauge reading to go
from 15 psi to zero. (Tr.1 at 86)  It did not; it stayed at 15 psi, which Heft
interpreted as evidence that the gauge was not functioning properly. (Tr.1 at
85-87)  Heft was aware that if pressure in the tank exceeded 15 psi, acetylene
could ignite spontaneously without an ignition source.  Without a functioning
pressure gauge, which would show an excess pressure reading in a red zone on
its dial, there is no way a miner would know to take extra precautions to avoid
an explosion. (Tr.1 at 89-93)  The acetylene torch was not being used at
the time of the inspection, but Foreman Russell told Heft that the torch had
been used earlier in the day. (Tr.1 at 88-89, Ex. GX-7)

Heft classified
this situation as S&S.  He believed that it was reasonably likely to result
in an injury because: (1) the torch was available for use; (2) it was not
tagged out of service; and (3) it had already been used once that day in the
defective condition. (Tr.1 at 91-92)  Heft also concluded that it was
reasonably likely to lead to a fatal injury because there was no way to
effectively tell if the pressure because too high, which could cause an
explosion. Id.

According to the
testimony of Foreman Russell, the torch was normally used to cut metal at the
NISC recycling plant located off the mine site.  (Tr.2 at 98-99)  However,
Russell also stated that a mechanic working for NISC had used the torch at the
Mine No. 1 site earlier in the day. (Tr.2 at 133-134)

NISC argues that
the service truck was only used to transport Russell to the Mine No. 1 site,
which somehow means that NISC was not obligated to do a pre-shift examination
to determine if it or any of the equipment in its bed needed attention.  NISC
goes on to posit that since it did not consider the service truck subject to
the pre-shift examination requirement, it was not obligated to, nor did it
otherwise determine that there was a problem with the gauge on the acetylene
torch and tank.  As a result, there could be no violation of the standard
because the standard requires that defects in “self-propelled mobile equipment
to be used during a shift” be “corrected in a timely manner,” and NISC could
not have detected the faulty gauge since they did not consider it, or anything
in or on the service truck, something they should inspect pre-shift.  They ask
how they could have corrected a defect in the acetylene gauge that they did not
know about as a result of their interpretation that they did not have to look
for any problems with the service truck. 

A more perfectly
circular argument is hard to find.  NISC’s argument is facile; it appears neat
and comprehensive only by ignoring the clear mandate created by the standard to
pre-shift all self-propelled equipment to be used on the mine site, including
this service truck and its contents. 

NISC compounds
things by pointing out a former decision of mine4 in which I interpreted two standards in
pari materia 5
such that the one that required a defective piece of equipment to be tagged out
of service not defeat the other which gave the operator the right (and
obligation) to discover the defect in a pre-shift examination.  In that case,
the inspector found a violation before the operator conducted its pre-shift and
before the equipment was placed in service.  In contrast, NISC argues here that
it had no obligation to pre-shift the service truck and thus had no opportunity
to discover the defect in the acetylene torch gauge, while at the same time
arguing that it was preempted from correcting problem by its own decision not
to pre-shift the truck.  There, the equipment had not yet been pre-shifted or
put in service when the inspection happened.  Here, there simply was no
pre-shift done or intended, the truck had already been put in service on the
mine site, and the faulty acetylene torch had been used on the mine site. 

The
Violation

NISC put the
service truck and the acetylene torch equipment in its bed into service without
conducting a pre-shift examination.  Heft discovered a defect in the acetylene
torch gauge.  NISC does not contest the fact that the gauge was defective.  The
service truck was a piece of self-propelled equipment used on a mine site that
had to be pre-shifted and wasn’t.  As a result, NISC did not know, although it
should have, about the defective acetylene gauge, and it did nothing to correct
the defect before Heft discovered it during his inspection.  This is a
violation of 30 CFR § 56.14100(b), which requires that defects on any
equipment, machinery, or tools that affect safety be corrected in a timely
manner to prevent the creation of a hazard to persons.

There can be no
doubt that this violation occurred on a mine site and, as such, arose under the
Mine Act.6  Although
NISC argues that the fact that the service truck was used most commonly at a
facility that was outside MSHA regulation should make a difference in Heft’s
enforcement decisions, there is no dispute that the defective acetylene torch
gauge was located in the service truck bed on the Mine No. 1 site when Heft
discovered the defect, and when it was used earlier that day to cut metal.7  There is no de
minimus rule that allows this court to exclude from its review the fact
that the violating event happened and was discovered on a mine site subject to
the jurisdiction of the Mine Act, no matter how little time the service truck
was used at the Mine No. 1 site.

Negligence

Heft rated this
violation at the level of moderate negligence.  This requires that NISC knew or
should have known that the acetylene gauge was defective, and that there were
mitigating circumstances.  NISC should have and could have known about the
defective gauge if it had conducted a competent pre-shift examination of the
service truck and the items, including the acetylene torch, in its bed.  When
the miner used the acetylene torch to cut metal earlier in the shift, NISC had a
second opportunity to know of the defect in the acetylene torch. (Tr.1 at
88-89; Tr.2 at 133-134; Ex. No. 7, 3)  Heft explained that the proper procedure
for maintaining an acetylene torch is to bleed off the hose after each use and
check that the gauge shows zero pressure. (Tr.1 at 92-93)  Had the miner bled
off the hose on the torch, he could have discovered the defect and timely done
something to remedy it before Heft found it.  (Tr. 1 at 257)  Heft did not
explain in testimony what he considered to be mitigating circumstances.  I do
not consider anything that happened on June 22, 2011, as mitigation.  Heft’s
assessment of moderate negligence is appropriate.

Gravity

Heft classified
this violation as reasonably likely to involve a single miner in a potentially
fatal accident.  He explained that since acetylene can become volatile and
prone to explode without an ignition source at pressures above 15 psi, the
faulty pressure gauge prevented a miner from visually determining if there was
excess pressure in the system, thus increasing the likelihood of an explosion.
(Tr.1 at 91-92)  This is a reasonable conclusion; it is not contested by NISC. 
I concur that as it was found and assuming it would have continued to be used
during normal continuing mining activities, the faulty pressure gauge was
reasonably likely to result in a fatality.  U.S. Steel Mining Company. Inc.,
6 FMSHRC 1573, 1574 (1984).

Significant
& Substantial

The Secretary
seeks a ruling that this violation is significant and substantial (“S&S”). 
If an inspector finds, “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,” then the
violation must be classified as significant and substantial (“S&S”).  National
Gypsum Co., 3 FMSHRC 822, 825 (1981).  To establish that a violation of a
mandatory safety standard is S&S, the Secretary must prove: (1) the
underlying violation of a mandatory safety standard; (2) a discrete safety
hazard, i.e., a measure of danger to safety contributed to by the violation;
(3) a reasonable likelihood that the hazard will result in an injury; and (4) a
reasonable likelihood that the injury will be of a reasonably serious nature.  Mathies
Coal Co., 6 FMSHRC at 3-4. 

I have found that
NISC’s failure to find and remedy the faulty acetylene pressure gauge is a
violation of 30 CFR § 56.14100(b).  The measure of danger to safety contributed
to by the violation was discussed as part of the gravity analysis above, as was
the reasonable likelihood that the defective pressure gauge could lead to an
explosion from volatile, over-pressured acetylene and result in a fatality. 
This violation is properly characterized as S&S.

Penalty

The Secretary
recommends a $1,795.00 penalty for this citation.  I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of
Civil Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I have also confirmed that this
violation should be subject to enhanced S&S consequences.  I assess the
recommended penalty of $1,795.00.

Citation No. 6555762

Violation

Inspector Heft
discovered that the horn on the service truck did not work and issued Citation
No. 6555762 under 30 C.F.R. § 56.14132(a).8 (Tr.1 at 96; Ex. GX-9)  Heft instructed Russell to
test the manual horn on the service truck. (Tr.1 at 84-85)  The horn did not
work. (Tr.1 at 98)  Heft testified that a manual horn is a basic safety device
to warn inattentive people not to step in front of the truck. (Tr.1 at 98-99) 
Heft testified that if a person were hit by a Ford F-700 truck, he could suffer
a fatal crushing injury. (Tr.1 at 99; Ex. GX-9)  Heft considered the likelihood
of such an injury unlikely because of the limited foot traffic at the mine
site. (Tr.11 at 99-100) 

Russell did not
check the horn at the beginning of the shift. (Tr.1 at 100; Ex. GX-9; Tr.2 at
137-138)  The truck had been on the mine site for two days. Id.  Heft
testified that Russell should have tested the horn as part of the mandatory
pre-shift examination of the service truck.  Russell had operated the truck for
over six hours before Heft issued the citation. (Tr.1 at 101)  If a meaningful
pre-shift examination had been done, Heft expected that the faulty horn would
be noticed and the truck taken out of service until the horn was fixed.  (Tr.1
at 102)  Heft also testified that he did not find anything about the faulty
horn situation that he considered mitigating circumstances. (Tr.1 at 102)

Russell testified
that there was no other equipment operating on the mine site when he drove the
service truck onto the site. (Tr.2 at 100)  The truck was only driven on the
mine site when NISC needed to crush limestone. (Tr.2 at 100-104)  Russell did
not consider the horn to be a real problem because the other mobile equipment
on the site was louder than the horn, and everyone on the site wore earplugs.
(Tr.2 at 100-103)  On further questioning, Russell conceded that the loudness
of the equipment was not an excuse for not having a functioning horn on the
service truck. (Tr.2 at 137-138)

NISC argues that,
for the same reasons cited in relation to the preceding violation, this
citation should simply be dismissed.  It suggests that because this service
truck was used more at sites not subject to Mine Act regulation, Heft should
have regarded it as a personal private vehicle rather than a piece of mobile
mine equipment.  It is not contested that Russell used it to travel to and come
onto the mine site to perform his assigned work tasks for NISC.  Heft correctly
considered the service truck as a piece of self-propelled mobile equipment,
irrespective of the possibility that it saw more used on non-regulated sites.

The Commission
laid out a clear rule governing this issue in Wake Stone Corp., 36
FMSHRC 825, 828, April 18, 2014, “[S]tandards requiring maintenance in
functional condition are enforceable when the cited equipment is not in actual
use, unless it has been removed from service.” Citing Ideal Basic Indus.,
3 FMSHRC 843, 844-45 (Apr. 1981).  (Use of a piece of equipment containing a
defective component that could be used and which, if used, could affect safety,
constitutes a violation.) Id. at 844; See also Alan Lee Good, 23
FMSHRC at 997 (reinforcing the rule that equipment not tagged out of operation
and parked for repairs must be maintained in functional condition, “whether or
not the equipment is to be used during the shift.”); Mountain Parkway,
12 FMSHRC at 963 (relying on Ideal Basic and interpreting the term
“used” broadly to include equipment that was parked in the mine in turn-key
condition and not removed from service).

I find that the
service truck was a piece of self-propelled equipment available for use on the
mine site and that its manual horn did not work.  This was a violation of  30
C.F.R. § 56.14132(a).

Negligence

The citation
alleges high negligence for this violation.  High negligence is present for
MSHA’s enforcement purposes when an operator knew or should have known of the
violating condition and there are no mitigating circumstances. 30 C.F.R. §
100.3(d), Table X.  The court should consider the following factors in finding
a high degree of negligence: (1) was management aware of the condition; (2) was
the mine on notice regarding the condition; and (3) was the operator complacent
in complying with the standard?  See, e.g., Robert L Weaver, 21
FMSHRC 370, 373 (Mar. 1999)(ALJ Bulluck); Sangravl Co., 33 FMSHRC
__, 2011 WL 2286880 at * 4 (May 2011) (ALJ Barbour) ; Lebanon
Quarry & Mill, 33 FMSHRC 751, 760 (Mar. 2011)( ALJ Miller). 

Russell should
have, but did not, conduct a pre-shift examination of the service truck.  Had
he done so competently, he would have checked the horn (as Heft did) and
discovered that it obviously did not work.  NISC did not argue that it lacked
the notice required to give it knowledge of the faulty horn.  NISC is expected,
as a mining company, to know the law, including the requirement to do a competent
pre-shift examination of mobile mine equipment such as this service truck.  See
Emery Mining Corp. 744 F.2d at 1416.  NISC cannot claim that it lacked
knowledge of the faulty horn because it failed to conduct a pre-shift exam.  See,
Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 363 (D.C. Cir.
1997) (stating that “knowing” in the context of section 110(c) includes
“deliberate ignorance” and “reckless disregard”).  NISC’s failure to conduct a
pre-shift exam is proof of its complacence about its duty to comply with the
standard.  Although Russell had used the truck on mine property for two days
(Tr.1 at 100), Russell did not even undertake an exam that could have revealed
the faulty horn.  I find that NISC should have known – and would have known –
of the faulty horn had it not ignored the duty to look for defects in the
service truck before using it on the mine site.  I conclude that Heft’s
assignment of high negligence was proper.

Gravity

This citation is
characterized as unlikely to result in an injury, but if it did, the injury
might reasonably be fatal, and potentially affecting a single miner.  Due to
the fact that the violation occurred in the first days of operation after a
winter pause and there was only one other miner on the property at the time
(Tr.2 at 100-103), I concur that the lack of a working horn on the service
truck was unlikely to result in an injury.  I also agree that a truck of this
size could cause a fatal accident were it to hit a miner. (Tr.1 at 99)

Penalty

The Secretary
recommends a $1,203.00 penalty for this citation.  I have reviewed and
confirmed the data in Exhibit A to the Secretary’s Petition for Assessment of
Civil Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess the recommended penalty
of $1,203.00.

Citation No. 6555763

Violation

Inspector Heft
found a torn and frayed seatbelt on a Caterpillar 992G front end loader (Tr.1
at 105; Ex. GX-10) for which he issued Citation No. 6555763 under 30 C.F.R. §
56.14130(i).  The standard requires that seat belts be maintained in functional
condition and replaced when necessary to assure proper performance.  The loader
was on the mine site and was in use at the time the citation was issued. (Tr.1
at 107)  The photos in Ex. GX-11 show the seat belt tear and fraying.  Heft
measured the tear to be approximately three-eighths of an inch into the belt.
(Tr.1 at 106-107; Ex. GX-11)  The frayed portion on the side of the belt was
approximately two-and-one-half inches long. Id.  The belt was a lap belt
meant to restrain a person from leaving the seat. (Tr.1 at 108)  In Heft’s
opinion, the seat belt was not functional because of the tear, the thinning
from wear, and the frayed edges. Id.  Heft testified that as he saw it,
the seat belt was not in its original manufactured condition (Tr.1 at 108-109),
and in the event of a roll-over accident, this degree of wear might be enough
to cause the belt to fail to restrain the driver. (Tr.1 at 109)  If the belt
broke, the operator could be thrown from the loader or bounced around in the
cab and fatally injured. Id. 

Heft felt that
the defects in the seat belt made an injury accident reasonably likely. (Ex.
GX-10)  During continued mining operations, the tear would get worse as shown
by the visible tear that had developed in the area where the belt was frayed.
(Tr.1 at 109-110)  Heft factored in the fact that the loader frequently
operated on a ramp near the scale house which was long and fairly steep (Tr.1
at 110:16-17) and that there were other ramps in the quarry the loader used
during normal mining operations. (Tr.1 at 110)  Heft testified about an MSHA
Program Policy Manual source that states that failure to maintain seatbelts is
a serious safety hazard and should be cited as significant and substantial
under most circumstances. (Tr.1 at 113; Ex. GX-12)  Heft testified that the
loader operator knew that the belt was torn and frayed, but did not recognize
the hazard and did not inform management. (Tr.1 at 120)  The tears and fraying
were obvious because they were on the main part of the belt which lies on the
operator’s lap. Id.

Russell testified
that the seatbelt was still functional because when he drove the same loader on
terrain that caused him to bounce around in his seat, he could feel the belt
restraining his motion. (Tr.2 at 107:8-11)  Russell agreed with Heft that there
were 35 to 40 degree slopes at the Mine No. 1 site. (Tr.2 at 107) 

NISC argues that
Heft should not have determined that the seat belt was non-functional based on
the fact that it was not in new condition.  It maintains that the Secretary
only proved that the belt was somewhat worn, not that it was non-functional.  I
agree. 

The only evidence
in the record bearing on the belt’s functionality, other than Heft’s opinion,
is Russell’s testimony about the belt holding him in place in the operator’s
seat as he drove the loader over rough roadways on the quarry site.  It is
possible that in the event of a rollover accident the belt might fail, but
there is no evidence in the record to make that possibility anything more than
speculation.  The photos in Ex. GX-11 confirm that the belt was frayed and
certainly not in factory-new condition, but there is nothing beyond Heft’s
unsupported conclusion to prove that the belt wear was serious enough to make
the possibility of it breaking in a rollover more than conjecture.  See, Ammon
Enterprises, 2008 WL 4190445 at *13 (July 2008)(ALJ Zielinski). (Four inch
wide seat belt frayed at edges with a three-quarter inch tear was deemed
“functional” by MSHA inspector.  Gravity assessment was based on prediction
that the belt would fail during a rollover accident.  No strength testing done
on the belt.  Inspector’s determinations based solely on his visual
examination.  Secretary failed to carry burden of proof.)

I conclude that
the Secretary failed to prove that this seat belt was non-functional and vacate
Citation No. 6555763.

Citation No. 6555764

Violation

Inspector Heft
issued Citation No. 6555764 when he discovered that a portion of a berm was
missing on the roadway on the west side of the NISC maintenance shop.  He noted
that there was a drop-off next to the roadway deep enough to cause a vehicle to
overturn or endanger persons in equipment that might go over the drop-off.
(Tr.1 at 122-123; Ex. GX-13)  The photos in Ex. GX-14 show the before and after
condition of the edge of the roadway and confirm that a portion of berm was missing. 
The roadway was approximately twenty feet wide and was used by mobile equipment
to access the shop area. (Tr.1 at 125-127)  Heft testified that the berm was
insufficient along a 36 foot section where the drop-off was approximately five
feet. (Tr.1 at 127-128: Ex. GX-13; Ex GX-18)  Heft measured the slope of the
unbermed area and determined it to be forty percent. (Tr.1 at 129) 

Heft
characterized the missing berm section as S&S due to the lack of anything
along the section of roadway to keep a vehicle on the roadway. (Tr.1 at 131) 
He concluded it was reasonably likely that a vehicle could go over the edge of
the roadway because he observed vehicle tracks within two feet of the edge.
(Tr.1 at 126-127; 131; Ex. GX-13)  The five foot drop-off and forty percent
slope were enough in Heft’s assessment to pose a danger to anyone who drove a
vehicle over the edge of the roadway. (Tr.1 at 129-130)  Heft envisioned a
person going over the edge being thrown and banged around inside the vehicle
cab (Tr.1 at 130) and suffering cuts, bruises, strains, sprains, and broken
bones in the process. (Tr.1 at 130) 

There was
agreement between Heft and Russell that there had been a berm in this location
which had washed away. (Tr.1 at 132; Tr.2 at 111-112; Ex. GX-14)  Heft felt
that the operator should have known that a berm was required in that area.
(Tr.1 at 132), which Russell confirmed when he testified that a berm was needed
on this portion of the roadway. (Tr.2 at 139)

Russell testified
that he had not yet inspected this portion of the roadway.  He had been busy
getting the plant started.  (Tr.2 at 77; 111)  Russell stated that this roadway
was not the main roadway in the mine area. (Tr.2 at 62)  The roadway was not
used by customers of Mine No. 1 and was rarely used by miners. Id. 
Russell explained that because the corner between the maintenance shop and the
edge of the roadway was so narrow – about 20 feet – anyone driving on that
section would take care to go very slowly – no more than 5 miles per hour.
(Tr.2 at 116-117)  Nonetheless, the roadway had a speed limit of 10 miles per
hour and was open to the public. (Tr.2 at 114)  Russell testified that the 9980
sales loader used this roadway (Tr.2 at 115-116) and that it is the largest
piece of equipment that traveled the roadway – more than 12 feet wide. (Tr.2 at
139)  Russell agreed that if a person drove off the edge of the roadway, he
would be thrown around, but would probably not be injured. (Tr.2 at 140) 

As with the other
citations in this decision, Russell claimed to have intended to get to the
missing berm in due course, but had just not gotten that far down his start-up
to-do list yet when Heft arrived for the inspection. (Tr.2 at 77; 111)  Russell
also claimed, based on his experience with ordinary farm equipment, that he had
driven equipment down equivalent grades and had not overturned or been thrown
around in the cab. (Tr.2 at 112-114) 

In defense of
this citation, NISC argued that Heft agreed that it would be best when
restarting production after an idle period to attend first to those areas of
the plant that posed the greatest potential danger to miners, but he had gone
against this concept by citing NISC for doing exactly that. (Resp’s
Post-Hearing Brief at 21)  NISC argues further that its prioritization of tasks
at the start-up was not negligent and that it should be relieved of any
responsibility for the missing berm section because, although Heft testified
that according to his understanding of his duty as an authorized representative
of the Secretary of Labor if he saw a violating condition, he was obligated to
write a citation irrespective of negligence or excuses, it is unfair to NISC to
hold it to a strict liability standard. 

The standard
requires berms or guardrails at any portion of a roadway where there is a
drop-off of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in the vehicle.  There is no dispute that there was no berm in
the area Heft referred to in the citation documentation and in his testimony. 
There is also no dispute that the cited area was a roadway used by vehicles on
the mine site needing to go to the maintenance shop. (Tr.1 at 127-129)  Heft
and Russell agree that a person could be thrown around in the cab if the
vehicle went over the edge of the roadway at that point.  It stands to reason
that cuts, bruises, strains, sprains, and broken bones are within the ambit of
reasonably likely injuries arising from this violation.  Russell acknowledged
that the missing berm section needed to be fixed, which confirms the court’s
view that a reasonably prudent miner would have seen the need to fix the berm
and done so post haste.  NISC’s argument that it just did not have time to get
to this item yet does not avail it anything in this strict liability regulatory
environment.  See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10 th Cir.
1989). “[W]hen a violation of a mandatory safety standard occurs in a mine, the
operator is automatically assessed a civil penalty.” Id. at 1197.  I
conclude that NISC violated 30 CFR § 56.9300(a).

Negligence

Heft rated this
violation at the level of moderate negligence.  This requires that NISC knew or
should have known that the berm was missing on this section of roadway and that
there were mitigating circumstances.  NISC should have and could have known
about the missing berm section.  On the first day of resumed activities at the
mine site, Russell did not inspect the roadway section in question here, though
he intended to get to it as soon as possible. (Tr.2 at 77; 111)  NISC does not
argue that it should not have known about the missing berm.  It argues that its
intention was to find and fix all hazards on the mite site, but had not gotten
to this one yet.  In mitigation, I credit the fact that NISC seems to have been
working diligently to find and fix hazards.  I concur with Heft’s assessment of
moderate negligence. 

Gravity

This citation is
characterized as reasonably likely to result in an injury involving lost
workdays or restricted duty, and potentially affecting a single miner.  Given
the fact that the roadway in question was quite narrow – approximately 20 feet,
was used occasionally by vehicles needing to access the maintenance shop,
showed evidence of vehicles tracking close to the drop-off, had a drop-off of
approximately five feet with a 40 percent grade, I concur that there was a
reasonable likelihood of an injury and that the injury could result in lost
workdays or restricted duty.  It is well within the realm of feasible that an
operator strapped into a vehicle such as the sales loader would sustain such
injuries in the event he drove over the unbermed edge and got thrown around in
the cab, even without the vehicle tipping over in the process.

Significant
& Substantial

Heft designated
this violation as S&S.  Applying the four elements of the accepted S&S
analysis discussed above, I conclude that this violation was S&S, as
charged.  There was an underlying violation of a mandatory safety standard,
there was a discrete element of safety hazard, e.g., vehicle roll-over or
serious jostling in the cab, rolling over or running off the edge could
reasonably result in an injury to the driver, and the injury could involve
serious bodily harm, or worse.  The Mathies S&S elements are
satisfied.  Mathies Coal Co., 6 FMSHRC at 3-4.

Penalty

The Secretary
recommends a $540.00 penalty for this citation.  I have reviewed and confirmed
the data in Exhibit A to the Secretary’s Petition for Assessment of Civil
Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess the recommended penalty
of $540.00.

Citation No. 6555766

The
Violation

Heft wrote
Citation No. 6555766 under 30 C.F.R. § 46.9(b)(5), which requires that training
records be kept and include MSHA Form 5000-23, containing a statement by the
person designated in the MSHA-approved training plan and certifying that the
miner in question has received periodic training, as required by the training
plan.  Heft asked to see NISC’s training records but did not find a Form
5000-23 annual training certificate with the appropriate signature.  (Tr.1 at
134-137; Ex. GX-15)  Brian Russell was the person responsible for training
under the Part 46 Training Plan (Tr.1 at136) but Heft found that the Form
5000-23 had been signed by Will Hoff, NISC’s field superintendent. (Tr.1 at
136-137; Tr.2 at 167-169)  Hoff was not listed as the designated signatory
under the Part 46 Training Plan. Id.  Hoff testified that he signed the
forms for all NISC miners because NISC was in the process of naming a new
quarry superintendent and someone with company authority had to certify that
the training had taken place.  Hoff did the training for all other types of work
as NISC. (Tr.2 at 168-169)  Hoff signed the forms at the conclusion of the
training course. (Tr.2 at 169) 

This is a
technical violation of the standard.  The training had taken place, and all
covered employees got the training.  The violation consists of a clerical
inconsistency and failure to hue to the letter of the standard.  Again, because
of the strict liability nature of Mine Act enforcement, Heft was within the
bounds of his enforcement authority when he wrote the citation. 

Negligence

In 2011, when the
training took place, former quarry superintendent Dahm had removed the Training
Plan from NISC’s premises when he was discharged and a replacement
superintendent had not yet been named. (Resp. Post-Hearing Brief at 24)  Hoff
stepped into Dahm’s shoes to sign the training certificates.  I agree with
NISC’s argument that the purpose behind the requirement of having a supervisor
sign the training certificates was satisfied.  After the quarry reopened for
the next production season, Russell was promoted to quarry foreman. 
Administrator Dagnon prepared a new Training Plan which designated Russell as
the training officer.  When Heft did his inspection, Russell’s name was not yet
on the new training plan.  Under these circumstances, I conclude that NISC was
not negligent.

Gravity

This violation is
considered a paperwork violation and does not involve an assessment of gravity.

Penalty

I assess a
penalty of $20.00.

Citation No. 8662246

Violation

When he inspected
Portable Mine No. 2 on September 27, 2011, Heft found four 110 volt circuit
breakers in a circuit breaker panel on the east side of the scale office that
were not labeled to show which circuit each disconnecting device controlled.
(Tr.1 at 153-157)  He cited NISC under 30 CFR §56.12006, which requires that
electrical distribution boxes have a disconnecting device for each branch
circuit which is appropriately labeled so that it can be visually checked to
see if a device is open and the circuit is de-energized. (Ex. GX-20)  Heft
found the unmarked circuit breakers in a distribution box approximately 100
feet from the scale house. (TR.1 at 154-156)  Each circuit breaker was
connected to one of four power cables. (Tr.1 at 156)  The power cables were
used to send current to engine block heaters in the winter. Id.  Heft
was unable to visually determine which circuit breaker controlled which power
cable because they were not labeled. (Tr.1 at 156-157)  The breaker box was energized
at the time of the inspection. (Tr.2 at 26)  The power cables had not been used
in four years, according to Russell. (Tr.2 at 120) 

NISC argued that
this citation should be vacated because no active mining was taking place at
Portable Mine No. 2. (Resp’s Post-Hearing Brief at 26)  However, Heft’s
inspection field notes show that “man hours” had been reported in a quarterly
report submitted to MSHA and relating to Mine No. 2. (Tr.2 at 174-175)  No
limestone was being crushed at Mine No. 2 when Heft did his inspection. (Tr.2
at 125)  However, Russell testified that limestone had been crushed and
blasted, and the crushing machine had been used at Mine No. 2 before and after
Heft’s inspection. (Tr.2 at 143-144)  Mine No. 2 was also open to customers to
come on site to purchase limestone that had been previously crushed. (Tr.2 at
146; 174-175) 

I credit Heft’s
testimony summarized above and conclude that the lack of labeling on the four
circuit breakers and associated power cables was a violation of 30 CFR
§56.12006. 

Negligence

Heft assigned
moderate negligence to this violation, which requires that the operator knew or
should have known about the violating condition and there were mitigating
circumstances.  30 C.F.R. §100.3(d), Table X.  NISC does not argue that it did
not know about the lack of labeling on these circuit breakers and cables, but
it does argue that the four year period of disuse and its intent not to use the
power cables in the future should mitigate against the existence of a violation
and be factored into the assessment of both negligence and gravity. (Tr.2 at
27)  Heft testified that the standard’s requirement of suitable marking is a
matter of common knowledge in the industry. (Tr.1 at 160-161)  Heft also took
into account the fact that the breaker box was located close to the scale house
office where management went on a daily basis in his assessment of negligence.
(Tr.1 at 154-155)  I feel it is appropriate to consider the disuse and lack of
future plans to use the power cables as evidence of mitigation.  The
Secretary’s decision to rate the negligence at the moderate level is
appropriate.

Gravity

This citation is
characterized as unlikely to result in lost workdays or restricted duty and
potentially affecting a single person.  Heft testified he did not rate the
gravity any higher than “unlikely” because there was a master breaker switch
located next to the unmarked breaker box which could de-energize all four
unmarked circuits. (Tr.1 at 159-160)  I concur that the level of gravity
assigned to this violation should be “unlikely” and would potentially affect a
single miner. 

Penalty

The Secretary
recommends a $100.00 penalty for this citation.  I have reviewed and confirmed
the data in Exhibit A to the Secretary’s Petition for Assessment of Civil
Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess the recommended penalty
of $100.00.

Citation No. 8662247

Violation

Inspector Heft
issued Citation No. 8662247 on September 27, 2011, because NISC could not
provide evidence of monthly inspections for two fire extinguishers located in
the scale office.  (Tr.1 at 162-165; Ex. GX-22) An annual inspection was done
on the two fire extinguishers in June, 2011, but there was no record that the
required monthly visual inspection had been done in the interim between the
annual inspection and the date of Heft’s inspection. Id.  Heft concluded
that no monthly visual inspection had been done because of the missing
documentation. (Tr.1 at 165-166)  Any written evidence of the monthly
inspection would have sufficed, including a note on the inspection tag on the
extinguisher itself or any other written record.  (Tr.1 at 165-166; Ex. GX-23) 
The purpose of a monthly visual inspection is to ensure that the extinguisher
is charged and operable. (Tr.1 at 163) 

NISC argued that
Mine No. 2 was closed on September 27, 2011, when Heft issued this citation.
(Tr.1 at 162)  The mine did not reopen until November 2, 2011. (Tr.2 at 147) 
Heft testified that if he had inspected Mine No. 2 during the winter shut-down,
he would have factored into his thinking that no one from NISC had been on the
premises to conduct a monthly visual inspection. (Tr.2 at 28-30)  Heft stated
that if there were no one on site to check the fire extinguishers, he would not
issue a citation for the months when no one was there. (Tr.2 at 31)  NISC
argued that because no harm resulted from its failure to do the monthly visual inspection,
the citation should be vacated. 

Heft did not
issue a separate citation for every month without a visual inspection record. 
He issued only one citation for the lack of records of the monthly visual
inspections since the annual check.  The citation responds to the conditions
discovered by Heft on the date of his inspection.  No additional liability is
attributed to the fact that there were no records for several months.  This
makes Heft’s failure to inquire whether anyone was present at the mine after
the annual inspection in June, 2011 meaningless for purposes of assessing
strict liability.  Although the extinguishers were fully operable at the time
of Heft’s inspection, there is still a violation of the standard, which clearly
requires monthly record keeping.       

Negligence

Heft justified
the moderate negligence designation because the extinguishers were in the main
office where it would have been very easy to do the visual check and note it.
(Tr.1 at 168)  Heft felt that the blue card on the back of the extinguisher put
NISC on notice that monthly visual checks had to be done and recorded. Id. 
The blue card is laid out in columns for the date of inspection and the
initials of the person doing the inspection.  (Ex. GX-23, pg. 3)  Heft spoke to
Russell about this citation and learned that Russell was aware that a monthly
visual inspection was required, but he did not know that such an inspection had
not been done since June, 2011.  (Tr.1 at 170-173; Ex. GX-22)  Other mine
employees apparently did not know that a monthly inspection was required. (Tr.1
at 168; Tr.2 at 154-155) 

I conclude that
Heft appropriately considered all evidence relating to this violation in
arriving at his determination of moderate negligence.  As of the date of his inspection,
when NISC personnel were on site and able to make a record of a visual fire
extinguisher check, not only was no record made, but Russell was aware that
such records were required.  I credit Heft’s testimony as to what he would have
done hypothetically if he had made his inspection during the winter shut-down
period as evidence of mitigation.  Here there is the necessary combination of
knowledge on the part of NISC and appropriate consideration of mitigating
circumstances. 

Gravity

Heft
characterized this violation as unlikely to result in an injury because when he
inspected the extinguishers, it appeared to him that they were mechanically
sound and in good condition and that the annual inspection had been done just
three months before. (Tr.1 at 169) NISC reminds the court that this was a
no-harm-no-foul situation.  I find that Heft appropriately accounted for the
NISC argument in making his “unlikely” gravity assessment. 

Penalty

The Secretary
recommends a $100.00 penalty for this citation.  I have reviewed and confirmed
the data in Exhibit A to the Secretary’s Petition for Assessment of Civil
Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess the recommended penalty
of $100.00.

Citation No. 8662248

Violation

30 CFR §56.12028
requires that electrical grounding systems be tested periodically and records
of the testing be kept for inspection on request.  Inspector Heft requested
records for four pieces of equipment during his inspection on September 28,
2011, at Mine No. 2: (1) the grounding system of the 40 kilowatt generator
(“genset”); (2) the 30 horsepower Flyght submersible pump in the pit; (3) the
110 volt outlets in the scale trailer; and (4) the four 110 volt power cables
at the breaker panel east of the scale office. (Tr.1 at 176-181; Ex. GX-24) 
All four pieces of equipment were in operation at the time the citation was
issued. (Tr.1 at 180-181)  NISC did not provide the requested records. (Tr.1 at
179)  Heft testified that such records are required to assure that continuity
and resistance testing is done and can be verified.  Since it is not possible
to visually determine if an electrical circuit is intact and free of circuit
faults, these records play an important role in assuring the safety of
electrical equipment. (Tr.1 at 178-182) Heft explained that if the resistance
in a piece of equipment is too high, the overload protection may not work, and
if a person were to contact equipment without functioning ground protection, he
could be electrocuted. (Tr.2 at 178-182) 

Russell told Heft
that he believed a test had been done on the genset and pump, but there was no
record because it was done by a person who was no longer an employee of the
company. (Tr.1 at 183-185; Ex. GX-24)  Russell stated that he had observed
NISC’s former foreman, John Dahm, conduct continuity and resistance testing for
the genset and submersible pump during the prior production year. (Tr.2 at
126-127)  Russell did not see Dahm do the testing on the 110 volt outlets in
the scale house or the power cords at the distribution box. (Tr.2 at 127-128) 
Russell confirmed that he did not give Heft any records proving that continuity
and resistance testing had been done on any of the equipment. (Tr.2 at 142) 

NISC argued that
Dahm had done the continuity and resistance testing (Tr.2 at 38-40), and that
he had taken the testing records with him when his employment at NISC ended.
(Tr.2 at 64; 142)  NISC points out that Russell told Heft that he was aware
that Dahm had done the testing on the pump and genset (Tr.2 at 39-40) and
believed that Dahm had done a continuity and resistance test on anything that
had a motor at Mine No. 2. (Tr.2 at 127)  It also contended that Heft’s
citation and related documentation did not mention the keeping and production
of testing records. (Resp. Post-Hearing Brief at 29) 

The thrust of
NISC’s defense is that the Secretary failed to prove that the testing had not
been done.  This misses the point.  The standard requires that records be kept
as proof of testing.  Russell’s parole evidence about what he saw Dahm do and
what Dahm must have done in keeping with his reputation as a conscientious
foreman (Tr.2 at 127-128) does not satisfy the requirements of the standard. 
The record is clear.  NISC did not produce the required testing records on
request.

The standard is
unambiguous.  It requires that “[continuity and resistance of grounding system
shall be tested immediately after installation, repair, and modification; and
annually thereafter.  A record of the resistance measured during the most
recent test shall be made available on a request by the Secretary or his duly
authorized representative.”  30 CFR §56.12028  NISC violated the standard by
failing to produce the requested records, which implies that no such testing
had been done for the four pieces of equipment identified above.  (Tr.1 at
176-181; Ex. GX-24) See Knaak Sand, 24 FMSHRC 964, 966 (Nov. 2002)(ALJ
Feldman). 

Negligence

Heft testified
that the operator should have known to do continuity and resistance testing
before placing the equipment into operation. (Tr.2 at 182)  Russell’s testimony
that he observed Dahm perform the tests on some of the equipment during the
prior production year and his belief that Dahm had tested everything on the
motor with an electric motor is confirmation that NISC knew it was obligated to
perform the testing.  The testimony that Dahm had taken the testing records
when he left NISC shows that NISC was aware of the obligation to keep the
records.  Again, in this strict liability setting, NISC’s excuse for not being
able to produce the records does not obviate its duty to comply with the
standard.  The excuse is, however, an element of mitigation which supports
Heft’s designating this violation as involving moderate negligence.  I concur.

Gravity

Heft issued this
citation as unlikely to result in injury because the equipment looked to be in
good condition. (Tr. 2 at 182-183)  NISC does not offer any argument against
this element.  I agree that this violation was unlikely to result in a miner
injury.

Penalty

The Secretary
recommends a $100.00 penalty for this citation.  I have reviewed and confirmed
the data in Exhibit A to the Secretary’s Petition for Assessment of Civil
Penalty

showing the number of
production hours for the mine and the mine controller, the number of prior
violations per inspection days, the number of repeat violations, the number of
persons affected by prior violations, the negligence points, the likelihood
points, and the good faith point reductions.  I assess the recommended penalty
of $100.00.

ORDER

Based on the
criteria in section 110(i) of the Mine Act, 30 U.S.C.§820(I), I assess the
penalties summarized in the following table for the citations discussed above. 
NISC is ORDERED to pay the Secretary of Labor the sum of $4,874.00
within 30 days of the date of this decision. It is also ORDERED that
Citation No. 6555763 be VACATED.

Citation No. 6555758

$101.00

Citation No. 6555759

$807.00

Citation No. 6555760

$108.00

Citation No. 6555761 

$1,795.00

Citation No. 6555762

$1,203.00

Citation No. 6555763

Vacated

Citation No. 6555764

$540.00

Citation No. 6555766

$20.00

Citation No. 8662246 

$100.00

Citation No. 8662247 

$100.00

Citation No. 8662248

$100.00

Total: $4,874.00

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Sean J. Allen, Esq., Office
of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver,
CO  80202-5708

Peter DeBruyne, Esq., Peter
DeBruyne P.C., 838 North Main Street, Rockford, IL  61103

1 Citation No. 6555765 was issued with the other
citations in this docket but was vacated on April 20, 2012. (Resp. Post-Hearing
Brief, pg. 1)

2 LAKE 2011-1029 comprises the following citations:
Citation Nos. 6555758, 6555759, 6555760, 6555761, 6555762, 6555763, and 6555764
were issued on June 22, 2011; Citation No. 6555766 was issued on June 23,
2011.  LAKE 2012-0161 comprises three citations.  Nos. 8662246 and 8662247 were
issued on September 27, 2011, andCitation No. 8662248 was issued on September
28, 2011.

3Heft did not designate this violation as S&S or an
unwarrantable failure to comply with the requirements of the standard.

4 MSHA v. Wake Stone Corp., 33 FMSHRC 1205, 2011
WL 2745783.  (Currently on appeal to the Commission.)

5 The general principle of in pari materia, a rule of
statutory interpretation, says that laws of the same matter and on the same
subject must be construed with reference to each other. The intent behind
applying this principle is to promote uniformity and predictability in the law.

6 Section 4 of the Mine Act provides in part that
“[e]ach coal or other mine [. . .] shall be subject to the provisions of this
Act.” 30 U.S.C. § 803.  “Coal or other mine” is defined in section 3(h)(1) of
the Act as:

(A) an
area of land from which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (B) private ways and roads
appurtenant to such area, and (C) lands, excavations, underground passageways,
shafts, slopes, tunnels and workings, structures, facilities, equipment,
machines, tools, or other property including impoundments, retention dams, and
tailings ponds, on the surface of underground, used in, or to be used in, or
resulting from , the work of extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form, with workers underground, or
used in, or to be used in, the milling of such minerals, or the work of
preparing coal or other minerals, and includes custom coal preparation facilities. 
In making a determination of what constitutes mineral milling for purposes of
this Act, the Secretary shall give due consideration to the convenience of
administration resulting from the delegation to one Assistant Secretary of all
authority with respect to the health and safety of miners employed at one
physical establishment.

30
U.S.C. § 802(h)(1). 

7  NISC does not contend that the location of the
violation was excluded from Mine Act jurisdiction.  It does mention that the
location where the service truck was most often used and stored was not subject
to MSHA jurisdiction.  However, since the site where the violation occurred and
was discovered is clearly under MSHA jurisdiction, this fact means nothing.

8 30 C.F.R. § 56.14132 (a) Manually-operated horns or
other audible warning devices provided on self-propelled mobile equipment as a
safety feature shall be maintained in functional condition.