Secretary of Labor v. Beverly Materials, LLC

Plain-English summary

Beverly Materials contested nine non-S&S citations from two Illinois sand-and-gravel pits. Judge William B. Moran vacated a brake-light citation because the loader had only been moved to the grade where its preshift test would occur and had not yet been placed in service. He affirmed reduced penalties for a seat belt, an inadequate berm on a crusher ramp, a seat-belt label, an extinguisher tag, and damaged cable insulation. He vacated two unlabeled-breaker citations because MSHA did not prove the cited branch circuits were principal power switches, and he vacated an intermittent-horn citation because the horn worked during the preshift and failed later. Beverly Materials was ordered to pay $375 in total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12004, 56.12018, 56.14100(b), 56.14130(i), 56.14132(a), and 56.9300(b)
• Outcome: Four citations were vacated and five were affirmed or modified; total penalties were $375.
• Key point: MSHA had to prove both that equipment was already in service and that unlabeled breakers met the regulatory term, while later-arising equipment defects could defeat a preshift-based citation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue N.W. , Suite 520 N

Washington, DC 20004-1710

(202) 434-9933

January 14, 2013

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner, 

v.

BEVERLY MATERIALS, LLC,

Respondent.

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CIVIL PENALTY PROCEEDING

Docket No. LAKE 2011-876-M

A.C. No. 11-03074-259167

Foster Road Pit

Docket No. LAKE 2011-957-M

A.C. No. 11-03067-261815

Beverly Materials West Pit

DECISION

Appearances: Breyana A. Penn, Esq., U.S. Department of Labor, Office of the Solicitor,
Denver, Colorado, for Petitioner.

Dave Zumbrunn, General Manager, Beverly Materials L.L.C., pro se, and

Robert Cox, Hoffman Estates, Illinois

Before: Judge Moran

This matter involves six contested citations issued to the Respondent during 2011

. None
of the citations were alleged to be significant and substantial and each penalty was proposed at
$100.00. A hearing was held in Wheaton, Illinois on October 16, 2012.

Docket No. LAKE 2011 876 M

Citation No. 6555728. This Citation relates that “[t]he brake lights on the Caterpillar
980 C front end loader, # 6035, did not function when tested.” 30 C.F.R. § 56.14100(b), the
provision cited, entitled, “Safety defects; examination, correction and records; safety devices and
maintenance requirements,” provides: “ (a) Self-propelled mobile equipment to be used during a
shift shall be inspected by the equipment operator before being placed in operation on that shift. ”

The Secretary notes that, according to the Inspector who issued the citation, Thomas H.
Heft, he observed the loader at one location when he first arrived at the mine on May 17, 2011, at about 7 a.m., and that it was later at a different location when he inspected it, about an hour
and twenty minutes later. He therefore concluded that the loader was in use. Upon conducting
his inspection of the loader, he found the brake lights malfunctioning. Respondent concedes that
the brake light switch had corroded and needed replacement.

The factual dispute here is whether there was an opportunity for a pre-shift examination
of the loader prior to the inspection. Respondent relates that it had to move its loader to the
location of the steepest grade the machine would travel in order to perform a proper pre-shift
exam. The Secretary does not challenge that assertion about the proper testing location. The
loader’s location change, Respondent explains, is the explanation for the loader being moved.
Further, Respondent contends that both the loader operator and the mine’s supervisor, Mr. Cox,
informed the Inspector that they had yet to do the pre-shift exam for the equipment but that,
despite their protests, the inspection of the loader proceeded. This was fundamentally unfair,
from the Respondent’s perspective because, as noted, in order to do a proper inspection of the
loader, first it had to be moved to the steepest grade. This explains, and simultaneously
undermines, the Inspector’s observation that, while indeed it had been moved, it was moved for
the purpose of conducting the exam.

The resolution of this dispute is clearly a factual matter, which necessarily involves some
credibility determinations. Applying those credibility determinations, the Court finds that the
front end loader was not in fact in service. There is no support for the conclusion that the
equipment was in its second location to perform work. Rather, the only credible conclusion on
this record is that it was moved so that the pre-shift exam could be so performed. The Secretary,
for example, did not counter with any testimony that the vehicle’s location was not located in the
area of the steepest grade in which it would be used. The Inspector never noted the loader
performing its loading function; he only saw it in two locations and made assumptions based on
that observation. Further, the very early time of the citation’s issuance, 8:20 in the morning, is
indicative that the equipment had not yet been placed in operation.

Accordingly, the citation is vacated.

Docket No. LAKE 2011-957-M

For Citation No 6555594, alleging a violation of 30 C.F.R. 56.14130(i) on the basis of a
seat belt assembly which was not maintained in functional condition, the Court, having first
heard the evidence, stated on the record that it would affirm this Citation. However, the Court
announced that a penalty of $50.00 (fifty dollars) was appropriate, not the $100.00 proposed by
the Secretary. The parties agreed to this resolution.

Citation No 6555595. In this instance, the Respondent was cited for an alleged violation
of 30 C.F.R. § 56.9300(b). That section, entitled, “Berms or guardrails, Safety devices,
provisions, and procedures for roadways, Railroads, and loading and dumping sites,” provides
that “(a) Berms or guardrails shall be provided and maintained on the banks of roadways where a
drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment.” A berm was present, but the Secretary contended that it was inadequate, citing the
requirement under subsection (b) of the standard and its provision that “Berms or guardrails shall
be at least mid-axle height of the largest self-propelled mobile equipment which usually travels
the roadway.”

Inspector Peter Ackley issued the citation because “the ramp going up to the feed hopper,
the jaw crusher, they weren’t maintaining berms at mid-axle height for the largest piece of
equipment that used that ramp.” Tr. 141. Mid-axle height for that largest equipment, a front-end
loader, is 52 inches but the berm, at its highest point, was only 36 inches. Ackley stated that the
front-end loader used the ramp to feed the hopper. It would dump a load in the hopper and then
back down the ramp. The ramp was about 125 feet long with a 15 foot width. A drop off of
about 16 feet was present on both sides of the ramp. Tr. 144., Gov. Ex. 11. In some areas there
was a berm, but it was not of sufficient height. In other parts of the ramp, for example at the top,
there were areas with no berm.

Gov. Ex. 11, Page 2 & 3.

The Respondent contends that the cited ramp is not a roadway. Instead, it views it as “a
loading dock and not a throughway by which traffic passes.” In support of this characterization,
it adds that the ramp “has a terminal point just as a loading dock does, [and this feature] not only
limits passage but speed of travel as one must achieve a full stop at the terminus point to deliver
the payload.” R’s Br. at 5. While the Respondent acknowledges that “some ramps may be
roadway . . . not all ramps are a roadways.” Id. (emphasis added). The Respondent urges that
its ramp is one of those that is not a roadway but rather is “a part of the production crusher.” It
adds that the ramp is essential for the delivery of material to the crusher and that is the ramp’s
sole purpose.

The Court understands the Respondent’s good faith belief in its argument that this ramp
should not be deemed a roadway. It is true that the ramp does not fit in the classic concept of a
roadway. The average citizen, asked to imagine a “roadway” would tend to think, as Respondent
has, of a “thoroughfare.” However, while the ramp may be outside of the common conception of
a roadway, it does not logically follow that the public’s general conception is correct. In short, a
ramp can be a roadway, albeit perhaps in some instances a short roadway, as here.

The Court also notes that a roadway and a road are essentially interchangeable terms, with
the former defined as a “road, especially the part over which vehicles travel,” and a “road” as “an
open way, generally public, for the passage of vehicles, persons, and animals.” American
Heritage Dictionary, (New College Edition) 1980. Accordingly, the ramp is found to be a
roadway within the meaning of the cited standard.

Given the above, the Court’s focus is whether a drop-off existed which was of sufficient
grade or depth to cause a vehicle to overturn or endanger persons in equipment and whether the
berm, which was present, was inadequate, per the requirement of subsection (b) of the standard
and its provision that “Berms or guardrails shall be at least mid-axle height of the largest
self-propelled mobile equipment which usually travels the roadway.”

The Respondent also contended that the citation didn’t acknowledge that openings for
drainage are permitted, nor did it specify exactly which areas such drainage openings would be
allowed. Tr. 163. In this regard, the Respondent acknowledged that there was a 9 foot opening
for drainage at the top end of the ramp but that the loader, having a width of 16 feet, couldn’t
pass through it. Additionally, the loader would be traveling at a very slow speed, at only about 3
mph. Tr. 167.

When the Court asked additional questions of the Inspector, he stated that there were
areas with insufficient berm height on the way up the ramp and that the issue was not limited
solely to the top, flat spot. Tr. 177-178. The Inspector also confirmed that he had issues with
insufficient berm height on the level approach pad, as shaded in Respondent’s Exhibit, “A-1.” Tr. 179. The Inspector did not see any locations he believed were drainage areas. Tr. 180.

Based on the entirety of the credible evidence, the Court finds that the standard was
violated. In determining an appropriate penalty, the Court takes into account that the Inspector
believed an injury would be unlikely because of the low speed of the loader in using the ramp.
Tr. 151. He considered the negligence to be moderate because the condition was open and
obvious. Apparently the berm deterioration had been recent, attributable to the weekend’s rain. Based upon consideration of each of the statutory penalty criteria, the Court finds that a civil
penalty of $75.00 is appropriate to be imposed.

Citation No 6555596. The parties agreed that the violation and penalty would be upheld
as proposed for this citation, involving a labeling issue for a seat belt assembly. Tr. 140. There
was no defect found with the seat belt itself. A civil penalty of $100.00 (one hundred dollars) is
imposed.

Citation Nos. 6555597 and 6555600.

As these two citations share common issues, they are discussed together. MSHA
Inspector Ackley issued Citation No. 6555597 and 6555600, asserting violations of 30 C.F.R. §
56.12018. That standard, entitled, “Identification of power switches,” provides: “Principal power
switches shall be labeled to show which units they control, unless identification can be made
readily by location.”

At hearing, the Respondent agreed that the cited switches were not labeled but contended
that the standard does not apply to those switches. Further, Respondent asserted that the switches
could be readily identified by their location. Tr. 183-184. For the first citation, the Inspector
cited what he believed to be a 220 volt breaker, which he found to be in the ‘on’ position, and for
which that breaker was not labeled to show what circuit it controlled. He added that one “could
not make identification readily [by] looking at the box.” Tr. 185. The Inspector stated that he
considered the this to be a “principal power switch” because “it shuts the power on and off to a
circuit.” Tr. 186 (emphasis added).

GX 13, page 1, a photograph, shows one of the circuits cited by the Inspector. An arrow
on that photo particularly identifies the breaker in issue. GX 13, page 2, another photograph,
shows the location of the panel box inside the MCC room for the primary crusher in the trailer.
Tr. 189. The MCC room is located “off a roadway” and there would be travel by it. Tr. 189.
Last, GX 13, page 3, shows the breaker, post-abatement, after it had been labeled. The words,
“auto comp”

were written and the inspector believed that referred to a compressor. Tr. 188.
That was the only circuit in issue for the Inspector. He stated that another layperson would not
be able to figure out what the breaker controlled and that this would be a concern in the event of
an emergency. Tr. 190. The Inspector stated that lost workdays could ensue because of
“someone working on it or if they could get entangled in a piece of equipment or shut off,”
although he conceded that was an “unlikely” occurrence. Tr. 191. This “unlikely” assessment
was sound, as the Inspector conceded that the MCC door was locked and only three people had
the keys to gain access to the locked building; the crusher operator, Mr. Cox and the electrician.
Tr. 191. Inspector Ackley agreed that it is traditional industry practice to label such breakers. Tr.

191. The Inspector noted that the operator told him that the cited breaker had been unlabeled
     “for a couple of years.”

Tr. 193.

When the Court inquired of Inspector Ackley how he determined that the breaker is a
“principal power switch,” he responded “[b]ecause that would be the principal spot where you
actually would shut off the power to that circuit.” Tr. 193. However, he admitted that a
“principal power switch” is not a defined term, but rather his definition was just an “understood
term.” Tr. 193.

With regard to the second, similar, citation, No. 6555600, GX 14, the Inspector cited the
same standard provision as he did for the panel box listed in GX 12, 30 C.F.R. 56.12018, upon
finding “four breakers in the on position that weren’t labeled for what they controlled.” Tr. 195.
The box is located in the wash plant MCC. Tr. 197. Here too, Inspector Ackley described the
breakers as a principal power switch because “they shut the power on and off to a circuit. They
disconnect it and connect the power to a circuit.” Tr.195. The condition he observed is shown in
a photograph at GX 15, page 1. The Inspector stated that four of the breakers were not labeled,
but the exhibit, GX 15, page 1, does not show that any are labeled, whereas all were labeled in
the abatement photo of the box, GX 15, page 3.

He later learned that the breakers in the panel
box controlled lights and outlets and a horn. The gravity was listed as ‘lost work days’ because,
at 110 volts, it was not a lot of current. The Inspector acknowledged it was marked as
“unlikely” because “the main power disconnect [was] within 3 ½ feet [of the panel box].
Furthermore, the Inspector advised that “miners normally start and stop the plant from the control
tower. So I don’t have the exposure of miners being in there daily using that breaker box, and if
they had to in an emergency, they could just lock the whole power off to that.” Tr. 198. He
listed the alleged violation as of “moderate negligence” because the plant doesn’t run at night and
so the panel box would not be used to control lights.” Tr. 200.

The Court asked the Inspector to compare the relative severity of these two, like,
citations. He noted, incorrectly, that the first citation involved a 220 volt circuit. For that reason,
he considered it a greater danger. Tr. 201. However, for that same, “first,” citation, the Inspector
acknowledged that it was located in the MCC

room, which is normally locked. If the operation
were running, the crusher operator would have a key to access that room. Tr. 201-202.

The Respondent called Mr. Cox on these issues. Mr. Cox explained that both instances
involved 120 volt circuit breakers. Thus, he stated the Inspector was incorrect in asserting that
220 volt circuits were present. Tr. 204. As noted, the Court finds as fact that both instances
involved 120 volts. He further stated that, per GX 13, page 3, “auto comp” refers to the
“automation computer” and that there is no compressor anywhere in that area. Instead, there are
three 120 volt breaker switches on the top row and the fourth switch is “a blank and the cover
plate.” Tr. 204. Then, there are two on the bottom row. All are 120 volts. In fact, Mr. Cox
stated there is no 220 volt circuit anywhere at the plant. Instead, the mine’s heavier equipment
runs off of 480 volts.

In both cited instances, the boxes are adjacent to a primary service disconnect. Tr. 205.
Mr. Cox considered both of the cited matters do not involve primary power switches, but instead
they are “secondary power switches.” Tr. 205. The basis for his view is that a “principal power
switch is the disconnect that feeds the power to [the] box.” Tr. 206. What the Inspector cited,
Mr. Cox maintained, were “branch circuits that branch out to small 110 items [such as] light
bulbs, wall plugs, [and] a computer.” Tr. 206. Cox is not an electrician but he stated that the
“National Electric Code describes a principal or primary power switch to be the main disconnect
in the control panel.” Tr. 206. At this mine, the main control panel is to the right of the cited
panel. Tr. 206. Thus, it was Mr. Cox’s position that neither of the cited matters involved
principal power switches. Instead, in both instances, the primary was located next to the cited
panels and those had a 120 volt sticker and were marked that they were the shutoff for the boxes.
Tr. 207. To be more precise, for GX 13, page 3, the primary was 3 ½ feet away and, for GX 15,
at page 2, the panel box is barely in the picture but Cox stated, and the Court accepted, his
statement that the power switch was in fact in the left hand corner of that photograph. Tr. 208.

As mentioned for the first citation, as depicted in the photos for GX 13, at page 2, the
principal power switch is on the outside of the room in that photograph.

In addition, the room
itself is normally locked. Tr. 209. By shutting off the primary feeder on the outside of the
building, one kills all the 110 power in that building. Tr. 210-211. Mr. Cox also stated that a
blank is installed in the slot of a switch breaker if it isn’t there anymore so that there is not
simply an open hole. Tr. 211. Thus, for GX 13, where it says “auto comp,” there’s a blank next
to a 110 switch. A compressor could not run off this panel because it needs 480 volts.

Discussion.

The principal issue for these two citations is whether the cited breakers were “principal
power switches” or, as the Respondent contends, they were “secondary power switches.” The
Respondent contends that the principal power switch is the disconnect that feeds the power to the
panel boxes and therefore not the panel boxes themselves. The panel boxes, Respondent asserts,
are “branch circuits that feed out to small 110 items.” The Secretary acknowledges that, per the
National Electrical Code (“NEC”), the term “principal power switch” refers to the “main
disconnect in the control panel.” Sec. Br. at 19. While the Secretary admits that Mr. Cox
testified that there were primary circuits which were located nearby and that those circuits were
marked as shut offs, he also stated that, for Citation No. 6555597, the primary for the panel box
was not located next to the cited circuit, but rather was outside the building.

The Secretary’s position is that its definition of a “primary power switch” is entitled to
deference. Sec. Br. at 20, citing Chevron, 467 U.S. 837, at 843-45 (1984), Twentymile Coal Co.,
411 F.3d at 261-62, Excel Mining, LLC, 334 F.3d at 6. However, in the next breath, the
Secretary admits that MSHA has not “expressly defined” the term. It adds that the NEC has not
expressly defined the term either. Id. The Secretary, moving from the general principle of
deference, cites to specific cases which, it contends, support the argument that 110/120 volt
breakers have been found to be principal power switches. Cemex Construction Materials of
Florida, 2012 WL 362193 at *4, Judge Zielinski, Jan. 2012 (“Cemex”), Homestake Mining Co.,
2 FMSHRC 493, 502 (Judge Fauver, Feb. 1980), Blue Mountain Production Co.,(Judge Miller,
Oct. 2010). Pointing particularly to the Blue Mountain decision, the Secretary notes that the
judge there held that because the switch de-energized portions of an area and because the issuing
inspector was a certified electrician, weight was given to that view.

The Court, having
examined both decisions, notes that as they are not Commission level decisions no deference is
required. Beyond that, the cases are not persuasive because there is no discussion within them on
the matter in contention here. In Cemex, for example, it was simply an uncontested and
unarticulated given that the breaker was a “principal power switch.” In Blue Mountain, although
it was challenged that the power switch box was a principal power switch, the judge simply
credited the testimony of the inspector, who was a certified electrician, that it was one.
However, it seemed that part of the judge’s reasoning was that the switches could de-energize
large portions of the area by throwing a switch.

For its part, the Respondent counters that, if the Secretary’s view is adopted, a simple
light switch, as it shuts power on and off to a circuit, could be deemed a “principal power
switch.” This would seem to be true under the Secretary’s interpretation.

In response to the Inspector’s stated concern, in support of the standard’s application in
this instance, that the need for prompt recognition of a circuit for the purpose of repairs or to deal
with an emergency, make such identification critical, the Respondent counters that its main
disconnect, being located a mere 3and ½ feet away from the circuit, addresses those concerns.
R’s Br. at 8. That main, it submits, is what anyone would turn off for such issues.

The crux of the Respondent’s position is that the breakers cited were branch circuits, not
principal power switches. R’s Br. at 8. In support of this, Respondent turns to the testimony of
Mr. Cox, who stated that the principal power switch is the disconnect that feeds the power to the
panel boxes which were cited. The cited panel boxes are only branch circuits that feed power to
the 110 volt items. Mr. Cox’s position was supported by the fact that there were primary circuits
located nearby and those were marked as shut-offs. As the cited panel is housed within a metal,
20-foot-long, shipping container, it makes sense that the emergency shut-off panel is located
outside that building. Respondent also correctly points out that no one who testified at the
hearing for the Secretary was a qualified electrician and therefor the case for deference to the
Secretary’s interpretation is unsupported. R’s Br. at 9.

The Court agrees.

The Court concludes, while normally the Secretary is entitled to deference, as an
evidentiary matter, it did not establish that deference is due here.

The Secretary did not point to
any policy interpretation, nor any authoritative source, nor to any Commission law establishing
what is meant by a “principal power switch.” Instead, it merely claimed that the cited boxes were
such switches because the inspector, who is not an electrician, and who did not point to any
electrical code definition, simply asserted that they were. Deference certainly requires more than
that. This is especially true given that the Inspector was found to be misinformed about critical
information relating to his citations and because he either did not know about or misunderstood
the close proximity of the main switches nearby the cited switch boxes.

Accordingly, the Secretary having failed to meet her burden of proof for both these
citations, they are VACATED.

Citation No 6555598

For Citation No 6555598, Inspector Ackley cited the Respondent under 30 C.F.R.
56.14132(a). That section, entitled “Horns and backup alarms,” provides: “ (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.” The Inspector tested the horn on a
scraper and it did not sound. There is no dispute that the cited scraper is a piece of
“self-propelled mobile equipment” and therefore within the standard’s coverage. Although the
mine operator told the Inspector that it had been working, the Inspector never heard it function.
There was another scraper in the area but no persons were on foot beyond the Inspector and the
person with him for the inspection. This prompted him to list the gravity as “unlikely.” Tr.224.
The Inspector also listed the violation as “moderate negligence” because the scraper had just
been brought to the mine site that day. He calculated that it had been on site for approximately
five hours. Tr. 225- 226. He also acknowledged that a horn could simply stop working
overnight, and he had no idea how long the problem had been present. Tr. 226. Having
acknowledged that, the Inspector still felt that the operator should have detected the problem, as
part of its safety check before putting the equipment in operation.

While the operator told the Inspector that the horn had been working, it never worked
when the Inspector was present for a test. Tr. 228. Still, the Inspector acknowledged that he
heard it sound when it was operating. It simply didn’t work when tested. Tr. 229. The
Inspector, based on his hearing it working while he was present, albeit not when tested, agreed
that it was possible that the horn worked when it was tested during the preshift examination. Tr.
232-233. The Inspector simply could not recall if he examined the preshift reports to see if the
horn had been checked that day. Tr. 233. Based on the Inspector’s testimony, it is fair to
conclude that the horn worked intermittently but that it never worked when tested and the Court
finds this as a fact.

Mr. Cox then testified about the matter, but his recounting varied from the Inspector’s, as
he asserted that in fact the horn did sound at least some of time when it was tested in front of the
Inspector. Tr. 234. Mr. Cox corrected the Inspector’s testimony, asserting that it was actually
the scraper’s second day at the site. According to his version, the horn was tested pre-shift and
found to be working that day. Tr. 235, 236. Thus, Respondent contended that the horn problem
developed after the pre-shift, at some point during that day’s operation. Tr. 236. Respondent
added, without contradiction, that the scraper had been working in a jarring environment, (i.e.
under dusty, dirty and rough conditions) which is harsh on such equipment as horns and lights.
Ultimately, the horn was replaced, because it was found to be unreliable. Tr. 237.

Accordingly, for Citation No 6555598, the Court finds that the horn was working when
the equipment was examined during its pre-shift and that it worked, albeit only intermittently,
when the Inspector was present. On this record, it is concluded that the horn was working when
the shift began and only later started acting up, working intermittently thereafter. The citation is
therefor VACATED.

Citation No. 8662001

The parties briefly addressed the Citation pertaining to a D8T bulldozer with a fire
extinguisher missing its identifying tag, Citation No. 8662001. The Respondent maintained that
the tag “blew off” the extinguisher. The parties agreed that the Secretary would amend that
Citation to reflect “no lost workdays,” but the negligence would remain as “moderate.” This
change, they parties acknowledged, would impact the penalty the Court would assess. Tr. 242-

244. Given this change, the Court AFFIRMS the violation and assesses a penalty of $75.00.

Citation No. 6555599

The last Citation in issue, Citation No. 6555599, alleges a violation of 30 C.F.R.
56.12004. Entitled, “Electrical conductors,” it provides: “Electrical conductors shall be of a
sufficient size and current-carrying capacity to ensure that a rise in temperature resulting from
normal operations will not damage the insulating materials. Electrical conductors exposed to
mechanical damage shall be protected.”

Inspector Ackley found the outer protected jacket of a cable to be damaged, exposing
inner conductors. “The damaged section was hanging on part of the metal frame for the Grade 9
stacker, the tail section.” Tr. 246. The Inspector focused on the last sentence of the cited
standard and its provision that “[e]lectrical conductors exposed to mechanical damage shall be
protected.” Here, the copper wires inside the power cable were his concern. This was a 480 volt cable and it was damage to the outer protected jacket that the Inspector cited. Tr. 248. As with the other citations, photographs were taken for this matter as well. GX 19, pages 1, 2, & 3. If
matters worsened to the point that the inner conductors were exposed, a fault could occur if those
inner conductors were to contact the nearby bare metal that was the frame of the conveyor. If
that were to occur, electrical injury, shocks and electrocution could occur. Tr. 249. Still, the
Inspector marked the violation as “unlikely” because the inner conductors were not yet damaged
at the time of the citation. Tr. 251. He also listed the negligence as “moderate.” He believed
that the mine should have discovered the condition as part of its daily workplace examination
requirement. Based upon its appearance, he did not feel that the condition he observed was a
fresh break. Tr. 252. The defective area was approximately 2 inches long and a half-inch wide.

For the Respondent’s part, it had its Exhibit 2 admitted. It is a cross-section of a typical
cord. The Respondent conceded the violation in that it agreed that the outer protective jacket was
cut. Tr. 258. However, not only were the inner leads still insulated, but the Inspector agreed that
all 3 inner leads would need to be bare for one to receive a full 480 volt shock.

Tr. 259. Mr.
Cox testified about the Citation for the Respondent. In total, he estimated that the mine would
have in the neighborhood of 3 to 4 miles of such cable. Tr. 263. This was plainly offered to
make the point that keeping up with the condition of every inch of the cable is no easy task. Mr. Cox also offered, as a mitigating circumstance, that the mine continually certifies that such
equipment is grounded “so that if [it were] to short, it would immediately go to ground.” Tr.

264. The mine also has other safety devices to reduce the risk of shock such as ground fault
     alarms and thermal protection in the overload to kill the circuit. The Respondent’s point was
     that it is attentive to this matter and takes the issue seriously. Tr. 265. With the routine vibration
     these belts are exposed to, it is common for the mine to splice a cord once every week or two.
     Tr. 265. Mr. Cox did agree that it is practice to repair a condition, such as was cited, as soon as
     [he] found it.” Tr. 267.

Based on the evidence of record, this Citation is AFFIRMED and the Court imposes the
civil penalty of $75.00 (seventy-five dollars).

ORDER

Beverly Materials LLC is ORDERED to pay a total civil penalty of $375.00 (three
hundred seventy-five dollars) within 40 days of this decision.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Breyana A. Penn, Esq., U.S. Department of Labor, Office of the Solicitor, 1999
Broadway, Suite 800, Denver, Colorado, 80202-5708

Dave Zumbrunn, General Manager, Beverly Materials L.L.C., 1100 Brandt Drive,
Hoffman Estates, Illinois 60192