Secretary of Labor, MSHA v. Solar Sources, Inc.

Plain-English summary

MSHA cited multiple equipment, brake, fire-protection, access, and examination conditions at Solar Sources' Craney and Lewis surface coal mines. Judge Richard W. Manning rejected Solar's argument that inspectors had to pause and allow pre-operational examinations before inspecting equipment, because that would effectively provide advance notice. He affirmed six of the seven litigated citations and vacated one brake-line citation that the Secretary did not prove. Two additional citations were settled, including removal of an S&S designation from one. Solar Sources was ordered to pay $3,610 total.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 72.620, 77.410(a), 77.1104, 77.1605(b), and 77.1606(c)
• Outcome: Six litigated citations were affirmed, one was vacated, two were settled, and $3,610 was assessed.
• Key point: An operator may not delay an MSHA inspection to perform last-minute equipment examinations that should have occurred before the equipment was used.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

303-844-3577/FAX
303-844-5268

December 10, 2013

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner,

v.

SOLAR
SOURCES, INC.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2011-942

A.C.
No. 12-01732-261005

Craney
Mine

Docket
No. LAKE 2011-1038

A.C.
No. 12-02234-264071

Docket
No. LAKE 2012-0231

A.C.
No. 12-02234-272665

Docket
No. LAKE 2012-0295

A.C.
No. 12-02234-275490

Lewis
Mine

DECISION

Appearances:  Amber J. Tafoya,
Esq., with Courtney Przybylski, Esq., on brief, Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner;

Mary
M. Runnells, Esq., Bloomington, Indiana and Jacqueline B. Ponder, Esq.,
Indianapolis, Indiana, for Respondent.

Before: Judge
Manning

These
cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Solar Sources, Inc., (“Solar”) pursuant to Sections 105 and
110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”). The
parties introduced testimony and documentary evidence at a hearing held in
Bloomington, Indiana, and submitted post-hearing briefs.

At
the hearing, a total of seven citations were adjudicated and two citations were
settled. The Secretary proposed a total penalty of $4,853.00 in these cases. All
the citations were issued at surface coal mines.

I. DISCUSSION WITH FINDINGS OF
FACT

AND CONCLUSIONS OF LAW

A.   
Right
To Perform Preoperational Examinations

I
reject Respondent’s argument that six of the seven citations at issue in this
hearing should be vacated because the inspector refused Respondent’s request to
perform pre-operational examinations upon the cited equipment. Citing Wake
Stone Corporation, Respondent asserts that if examinations are not
permitted, section 77.1606 will be undermined, tenants of statutory
construction will be violated, and an incentive for operators to perform
pre-operational exams will be removed. Wake Stone Co., 33 FMSHRC 1205 (May
2011) (ALJ), petition for discretionary review granted (June 9, 2011).[1]

Respondent’s argument that the Act, read as a whole, requires the
allowance of preoperational examinations ignores
a requirement section 103(a) of the Act. 30 U.S.C.
§ 813(a). Section 103 explicitly states “no advance notice of an
inspection shall be provided to any person. . . .” If
I were to accept Respondent’s argument, it would suggest that any mine operator
could simply request that an MSHA inspector wait until it examined all equipment
and other areas of the mine before the inspection could proceed. In these cases,
Respondent actually attempted to do just that, as Troy Fields, a safety
director, testified that Respondent instituted
a policy that inspector escorts should request to perform a pre-operation
examination upon any equipment an inspector requests to inspect before the
inspector actually inspects that equipment. (Tr. 159). This would, in turn, effectively provide advance notice of
an inspection to the mine operator and contradict section 103 of the Act.

Allowing
operators to perform examinations immediately prior to an inspection does not
strengthen section 77.1606 or enforce
compliance, but would actually weaken compliance. Section
77.1606 requires pre-operational examinations before every use of equipment,
not merely before inspections. Permitting operators to examine and repair
equipment directly before inspections would allow operators to ignore section 77.1606 by not regularly examining equipment
or fixing defects. An operator is not prompted to comply with section 77.1606 by significantly reducing the possibility
of being cited for a violation of section
77.1606. This behavior would not only undermine section
77.1606, but also expose miners to safety hazards due to operators’ failure to
regularly examine or repair equipment. I therefore
reject Respondent’s assertion that six of the citations at issue should be
vacated because the inspector refused to allow Respondent to examine equipment
before inspections. [2]

I also find that it is immaterial whether Respondent requested the
opportunity to perform examinations of the cited equipment before the inspector
performed his inspection. The witnesses of Respondent and the Secretary
disagree whether Respondent requested to perform examinations prior to the
inspection. As I find that the inspector was not required to allow Respondent
to perform examinations, this argument is moot and I reject it.

B.
Citation No. 8434044; LAKE 2011-942

On
May 25, 2011, Inspector Douglas Herndon issued Citation No. 8434044 under
section 104(a) of the Mine Act, alleging a violation of section 77.400(a) of
the Secretary’s safety standards. (Ex. G-1). The Secretary amended the citation
to allege a violation of section 77.1605(b); the initial designation of
77.400(a) was a mistake. (Tr. 20). The citation stated that the parking brake
of the 1190 Euclid End Dump would not function. Id. Inspector Herndon determined
that an injury was unlikely to occur but any injury could reasonably be
expected to be fatal. Further, he determined that the operator’s negligence was
moderate and one person would be affected. Section 77.1605(b) of the
Secretary’s regulations requires “front-end
loaders shall also be equipped with parking brakes.” 30 C.F.R. § 77.1605(b). The Secretary proposed a
penalty of $807.00 for this citation.

For
the reasons set forth below, I affirm Citation No. 8434044.

Discussion and Analysis

I
find that Respondent violated section 77.1605(b). Both Fields and Inspector
Herndon testified that the cited parking brake was ineffective and Respondent
does not argue the contrary. (Tr. 149, 20). The cited loader lacked a
functional parking brake, which is a violation of section 77.1605(b).

I
affirm the “unlikely” and “fatal” gravity designations of Citation No. 8434044.
Respondent contends that the vehicle was parked in a parking berm and the
likelihood that the truck could unintentionally roll would be “remote” and
therefore there was no likelihood of an injury. The probability associated with
the word “remote” is not zero; it means that an injury causing accident is unlikely,
which matches the inspector’s designation. Respondent also contends that the
equipment would be examined and repaired before use. The inspector believed,
however, that the equipment was operated in the cited condition. I credit
Inspector Herndon’s testimony that the brake was unlikely to fail while parked
and parking brakes fail as a result of long-term use and ordinary wear and tear.
(Tr. 31-32). The inspector appropriately designated Citation No. 8434044 as
unlikely.[3]

I
also find that the likely injury caused by the cited condition would be fatal. Respondent
argues that the likely injury would be no lost workdays because the cited
parking brake was unlikely to injure miners. I credit the inspector’s testimony
that the piece of equipment was large, used upon wet surfaces and grades and
used in close proximity to miners. (Tr. 25). A vehicle without a functional
parking brake that works around miners and contributes to an injury is likely
to contribute to a fatal injury.

I
find that Citation No. 8434044 was the result of Respondent’s moderate
negligence because Respondent knew or should have known about the condition.[4]
As I stated before, I credit the inspector’s testimony that parking brakes wear
out over time. A penalty of $800.00 is appropriate for Citation No. 8434044.

C.
Citation No. 8434059; LAKE 2011-1038

On
June 23, 2011, Inspector Herndon issued Citation No. 8434059 under section
104(a) of the Mine Act, alleging a violation of section 77.1606(c) of the
Secretary’s safety standards. (Ex. G-3). The citation stated that the air brake
system for the 1327 Diamond fuel truck was not maintained because the front
right air hose (airline) was completely broken away from the brake chamber. Id.
Inspector Herndon determined that an injury was reasonably likely to occur and that
such an injury could reasonably be expected to result in lost workdays or
restricted duty. Further, he determined that the operator’s negligence was moderate
and one person would be affected. Section 77.1606(c) of the Secretary’s safety
standards requires “[e]quipment
defects affecting safety shall be corrected before the equipment is used.”
30 C.F.R. § 77.1606(c). The Secretary proposed a penalty of $745.00 for this
citation.

For
the reasons set forth below, I vacate Citation No. 8434059.

Discussion and Analysis

I
find that the Secretary did not satisfy his burden to show that Respondent
violated section 77.1606(c). The Secretary is required to show the existence of
a violation by a preponderance of the evidence. RAG Cumberland Resources Co.,
22 FMSHRC 1066, 1070 (Sept.
2000). The Secretary did not show that the cited brake defect would not be
corrected before the cited equipment was used or that the equipment was used in
the cited condition. The Secretary argues that the weathered and tattered
condition of the airline suggested that the condition had existed for more than
one operating shift and asserts that the testimony of Respondent’s witnesses
was unreliable. The Secretary bases his argument upon the inspector’s testimony
that the airline was “tattered” but not completely broken away from the brake
chamber. (Tr. 51).[5]
The testimony of Kenneth Seib, the former pit boss at Lewis Mine, corresponds
with the citation itself, which states that the “air hose was completely broken
away.” (Tr. 257; Ex. G-3). The inspector’s testimony conflicts with the
citation that he wrote and issued. (Tr. 51-52). The vehicle sat unused for
“approximately more than three days,” but most likely the vehicle had not been
used since April 24, 2011. (Tr. 52; Ex. R-B). This period of inactivity makes a
violation of section 77.1606(c) less likely and harder to prove. The damage
could have occurred due to a miner stepping upon the airline at any time during
its long inactivity. The Secretary did not present evidence to show that the
cited equipment was or would be used in this condition.[6]
I hereby VACATE Citation No. 8434059.

D.
Citation No. 8434060; LAKE 2011-1038

On
June 23, 2011, Inspector Herndon issued Citation No. 8434060 under section
104(a) of the Mine Act, alleging a violation of section 77.1606(c) of the
Secretary’s safety standards. (Ex. G-4). The citation stated that the air brake
system for the 1334 Ford fuel truck was not maintained because the front brake
chamber was “blown allowing air to leak freely.” Id. Inspector Herndon
determined that an injury was reasonably likely to occur and that such an
injury could reasonably be expected to result in lost workdays or restricted
duty. Further, he determined that the operator’s negligence was moderate and
one person would be affected. The Secretary proposed a penalty of $745.00 for
this citation.

For
the reasons set forth below, I affirm Citation No. 8434060.

Discussion and Analysis

I
find that the conditions cited in Citation No. 8434060 violated section
77.1606(c) because the cited vehicle was used before Respondent corrected the
cited hazardous defect. The parties do not dispute that the diaphragm in the
brake chamber was damaged and I find that this condition affects safety because
it would reduce the braking and stopping capacity of the cited vehicle, making
collisions more likely. Although the cited fuel truck was not used the day that
the inspector issued the citation, I find that it had been used in the cited
condition. (Tr. 245). Hargus testified that splatter marks could occur on the
vehicle due to “a little bit of oil” coming out of the brake system. (Tr. 235).
The splatter marks, however, were noticeable according to the inspector’s
description, which suggests that the condition existed before the vehicle was
put into operation during the previous night shift. (Tr. 66-67). I credit the
inspector’s testimony that the condition existed for “some time” due to the
splatter of internal lubrication and I find that the equipment was put into
operation the day before the inspection without correcting the defect. (Tr.
67).

I
find that the violation was S&S[7]
because it was reasonably likely that someone would be seriously injured due to
the cited condition. I find that the brakes operating at less than full capacity
due to the failure of a front brake is reasonably likely to lead to a serious
injury due to a collision. To prevent this likely hazard, front brakes are
required upon all trucks, not merely in the mining industry, according to Hargus.
(Tr. 238-39). Hargus also testified that the rear brakes would stop the vehicle
even in an emergency, but that the vehicle could slide. (Tr. 242). The cited
vehicle, furthermore, operates in areas of the mine where other mobile
equipment and pedestrians travel. (Tr. 68). Although I find that it is unlikely
the cited condition would cause the vehicle to violently pull to one side as
Inspector Herndon testified, slight pulling to one side, slipping, or stopping
slower are all possible and all reasonably likely to lead to an injury causing
accident. Citation No. 8434060 is S&S.

I
find that Citation No 8434060 was the result of Respondent’s moderate
negligence. Hargus testified that splatter on a vehicle did not mean that the
brake system was defective, only that “it would warrant looking at.” (Tr. 235).
Respondent should have “looked at” this equipment before using it. Respondent
knew or should have known of the cited condition. A penalty of $750.00 is
appropriate for Citation No 8434060.

E.
Citation No. 8434074; LAKE 2011-1038

On
July 5, 2011, Inspector Herndon issued Citation No. 8434074 under section
104(a) of the Mine Act, alleging a violation of section 77.1605(b) of the
Secretary’s safety standards. (Ex. G-6). The citation stated that the parking
brake of the 1175 Euclid R50 end dump did not function. Id. Inspector Herndon
determined that an injury was unlikely to occur, but that such an injury could
reasonably be expected to result in lost workdays or restricted duty. Further,
he determined that the operator’s negligence was moderate and one person would
be affected. The Secretary proposed a penalty of $127.00 for this citation.

For
the reasons set forth below, I affirm Citation No. 8434044.

Discussion and Analysis

I
find that the conditions described in Citation No. 8434074 violated 30 C.F.R. §
77.1605(b). The safety standard requires that all trucks and loaders be
equipped with a parking brake. I credit the testimony of Inspector Herndon,
Fields, and Seib that the parking brake could not hold the cited vehicle upon a
grade, which is a violation of the standard. (Tr. 77, 173, 260).

Respondent
acknowledges that the cited parking brake did not function, but argues that the
inspector tested the parking brake inappropriately; I reject Respondent’s
argument. The cited standard requires a functional parking brake, not merely
functional service brakes; Respondent’s assertion that the cited equipment
could be held using its service brakes is therefore immaterial. Respondent also
asserts that the inspector tested the brake improperly, possibly damaging it,
by having the vehicle pull through the brake upon a flat surface before testing
it upon a grade. (Tr. 80). I credit the inspector’s judgment and reject this
argument because the test implemented by Inspector Herndon is widely used and
accepted. The parking brake cited in Citation No. 8434074 violated 30 C.F.R. §
77.1605(b).

I
find that Citation No 8434074 was the result of Respondent’s moderate
negligence because Respondent knew or should have known about the condition. Respondent
was aware that the cited piece of equipment would be inspected before the
inspector did so. Mechanics were working on the vehicle when the inspector
entered the mine and later informed the inspector that the vehicle was ready to
be inspected. (Tr. 74-75). The inspector’s moderate negligence determination is
appropriate. A penalty of $125.00 is appropriate for Citation No 8434074.

F.
Citation No. 8437659; LAKE 2012-231

On October 3, 2011, Inspector Herndon
issued Citation No. 8437659 under section 104(a) of the Mine Act, alleging a
violation of section 77.1605(b) of the Secretary’s safety standards. (Ex. G-8).
The citation states that the parking brake of the 1148 Euclid end dump did not
function when tested. Id. Inspector Herndon determined that an injury
was reasonably likely to occur and that such an injury could reasonably be
expected to result in lost workdays or restricted duty. Further, he determined
that the operator’s negligence was moderate and one person would be affected. The
Secretary proposed a penalty of $334.00 for this citation.

For
the reasons set forth below, I affirm Citation No. 8437659.

Discussion and Analysis

I
find that the conditions described in Citation No. 8437659 presented a
violation of 30 C.F.R. § 77.1605(b). I credit the inspector’s testimony that
the parking brake did not function when tested. (Tr. 84, 89-91).

I
find that the violation was S&S because it was reasonably likely that
someone would be seriously injured if the operator used the cited equipment
with an inoperable parking brake. The vehicle presented a crushing hazard if
the vehicle collided with a person or another vehicle as a result of the defective
parking brake. The defective parking brake was reasonably likely to contribute
to an injury because the vehicle was used in various areas of the mine around
other equipment and miners, was parked upon a grade, not chocked, and was
available for use. (Tr. 90-91). The condition cited in Citation No. 8437659 was
reasonably likely to lead to a serious injury; the citation was therefore
S&S.

I
find that Citation No 8437659 was the result of Respondent’s moderate
negligence because Respondent knew or should have known about the condition. Steve
Edwards, a Safety Director for Respondent, told the inspector that Respondent
had trouble with equipment parking brakes “quite often.” (Tr. 89). The fact
that the safety director acknowledged that parking brakes upon trucks
frequently do not work suggests that the company should have more carefully
maintained the parking brakes and should have known of the cited condition. Respondent’s
moderate negligence caused Citation No 8437659. A penalty of $335.00 is
appropriate for Citation No 8437659.

G.
Citation No. 8437672; LAKE 2012-295

On October 25, 2011, Inspector Herndon
issued Citation No. 8437672 under section 104(a) of the Mine Act, alleging a
violation of section 77.410(a) of the Secretary’s safety standards. (Ex. G-10).
The citation states that the 1014 Hitachi shovel was readily available for use
but did not have a backup alarm. Id. Inspector Herndon determined that
an injury was unlikely to occur, but that such an injury could reasonably be
expected to result in lost workdays or restricted duty. Further, he determined
that the operator’s negligence was moderate and one person would be affected. Section
77.410(a) requires that “[m]obile equipment such as front-end loaders, forklifts, tractors, graders, and
trucks, except pickup trucks with an unobstructed
rear view, shall be equipped with a warning device that [g]ives an audible
alarm when the equipment is put in reverse or [u]ses…other effective devices to
detect objects or persons at the rear of the equipment, and sounds an audible
alarm when a person or object is detected.” 30 C.F.R. § 77.410(a). The
Secretary proposed a penalty of $100.00 for this citation.

For
the reasons set forth below, I affirm Citation No. 8437672.

Discussion
and Analysis       

I
find that section 77.410(a) covers the equipment cited in Citation No. 8437672.
Respondent argues that the cited equipment, a shovel, is not covered by section
77.410(a) because the regulation does not explicitly include shovels. Where a
regulatory provision is clear and unambiguous, the provision must be enforced
as written. Wolf Run Mining Company, 32 FMSHRC
1669, 1678 (Dec. 2010); Bluestone Coal Corp., 19 FMSHRC 1025,
1028 (June 1997);
Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996); Nolichuckey
Sand Company, Inc., 22 FMSHRC at 1062. The “starting point” is the language
of the regulation itself. Dyer v. U.S., 832 F.2d 1062, 1066 (9th Cir.
1987); Nolichuckey Sand Company, Inc., 22 FMSHRC 1057, 1062 (Sept.
2000). The safety standard does list numerous types of equipment, but also
includes “mobile equipment[.]” The only exception to the standard is “pickup
trucks with an unobstructed rear view[.]” 30 C.F.R. § 77.410(a). The cited
equipment is mobile, has rear view obstructions, and is not a pickup truck. (Tr.
108-09, 185). The plain language of section 77.410(a) is clear and unambiguous;
section 77.410(a) covers the cited shovel.

I
find that the conditions described in Citation No. 8437672 violated section
77.410(a). Mobile equipment must be equipped with a warning device for when the
equipment is reversed. The cited piece of mobile equipment operated in reverse,
but lacked a backup alarm or other warning device in violation of section
77.410(a). (Tr. 209-10). Although the operator of the cited shovel can move the
cab in a 360 degree circle, Keith Lutgring, Respondent’s vice president of
maintenance and equipment, testified that the shovel does reverse short
distances. (Tr. 183, 209-210).

I
find that Citation No 8437672 was the result of Respondent’s moderate
negligence. Although the shovel was previously inspected without being cited,
Respondent had other shovels with alarms and should have known of the
conditions. (Tr. 113). A penalty of $100.00 is appropriate for Citation No
8437672.

H.
Citation No. 8437673; LAKE 2012-295

On October 25, 2011, Inspector Herndon
issued Citation No. 8437673 under section 104(a) of the Mine Act, alleging a
violation of section 77.1140 of the Secretary’s safety standards. (Ex. G-11). At
hearing, the Secretary modified the citation to a violation of section 77.1104 to
correct the inspector’s clerical error. (Tr. 120). The citation states that combustible
accumulations of oil and grease covered the lower section of the engines,
engine compartment, boom, and pivot section of the 1014 Hitachi shovel. (Ex.
G-11). Inspector Herndon determined that an injury was unlikely to occur, but that
such an injury could reasonably be expected to result in lost workdays or
restricted duty. Further, he determined that the operator’s negligence was moderate
and one person would be affected. Section 77.1104 requires that “[c]ombustible materials, grease,
lubricants, paints, or flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.” 30 C.F.R. § 77.1104. The Secretary
proposed a penalty of $100.00 for this citation.

For
the reasons set forth below, I affirm Citation No. 8437673.

Discussion
and Analysis

I
find that the conditions described in Citation No. 8437673 presented a
violation of 30 C.F.R. § 77.1104. Respondent does not dispute that grease and
oil accumulated upon the cited piece of equipment, but it does argue that the
accumulation did not create a fire hazard. (Tr. 127-29). [8]
I find that the accumulated materials were flammable and covered an engine that
was a heat and ignition source, which constitutes a violation of section 77.1104.

I
also find that Citation No. 8437673 was the result of Respondent’s moderate
negligence. Respondent should have known of the cited condition because the
accumulations were up to .25 inches thick and covered a considerable area of
the cited vehicle. (Tr. 121). A penalty of $100.00 is appropriate for Citation
No 8437673.

II. SETTLED CITATIONS

The parties
settled two of the citations in these dockets at the hearing. (Sec’y Br. 1). In
LAKE 2011-942 the parties agreed to settle Citation No. 8434040 by deleting the
S&S determination and reducing the likelihood of an injury from “reasonably
likely” to “unlikely.” For LAKE 2012-295, Solar Sources agreed to accept
Citation No. 8437674 as written.

III. APPROPRIATE CIVIL PENALTIES

Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. The Craney Mine had a history of 58 violations
(21 S&S violations) and the Lewis Mine had a history of 14 violations (1
S&S violation) in the 15 months preceding May 23, 2011. (Ex. G-16). At all pertinent times, Solar was a
moderately large coal mine operator. The violations were abated in
good faith. The penalties assessed in this decision will not have an adverse
effect upon the ability of Solar Sources, Inc., to continue in business. The
gravity and negligence findings are set forth above.

IV. ORDER

Based
upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I
assess the following civil penalties:

Citation
No.                                        30 C.F.R. §                             Penalty

LAKE
2011-942

8434040                                              72.620                                
1,300.00

8434044
                                             77.1605(b)                               800.00

LAKE
2011-1038

8424059                                              77.1606(c)                  
VACATED                                                         

8434060                                              77.1606(c)                               750.00

8434074                                          
77.1605(b)                                 125.00

LAKE
2012-231

8437659                                              77.1605(b)                               335.00

LAKE
2012-295

8437672                                              77.410(a)                                 100.00            

8437673                                              77.1104                                   100.00

8437674                                              77.1104                                   100.00

TOTAL
PENALTY                                              $3,610.00

For the reasons set forth above,
I VACATE Citation No. 8434059 and AFFIRM Citation Nos. 8434044, 8434060, 8434074, 8437659,
8437672, 8437673, and 8437674. Citation No. 8434040 is MODIFIED
as set forth in the settlement of the parties. Solar Sources, Inc. is ORDERED
TO PAY the Secretary of Labor the sum of $3,610.00 within 30 days of the
date of this decision.[9]

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Courtney
Przybylski, Esq., Office of the Solicitor, U.S.
Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)

Mary M.
Runnells, Esq., 1329 S. High Street, Bloomington, IN 47401 (Certified Mail)

Jacqueline
B. Ponder, Esq., Solar Sources, Inc., P.O. Box 47068, Indianapolis, IN
46247-0068 (Certified Mail)

[1]
In that case, the judge granted the operator’s
motion for summary decision, deciding not to impose strict liability upon an
operator to comply with 56.14132(a). Instead, the judge ruled that the
operator, who insisted upon performing pre-shift examinations upon the two
cited vehicles immediately prior to inspection, had the right to do so. The
operator could then tag out the vehicles if any conditions were found and avoid
a citation. The judge held that “[s]ection 56.14100 and mandatory equipment
safety standards need to coexist because of the importance of a harmonized and
coherent treatment of all portions of the Miner Act and related regulations to
miners' safety, overall.” 33 FMSHRC at 1208.

[2] Respondent also cites Beverly
Materials, LLC, which is
dissimilar from this case. 35 FMSHRC 88 (Jan. 2013) (ALJ). In Beverly
Materials, the operator was cited for not performing a pre-operational
examination, but at the time of the citation the operator was in the process of
performing its examination. In the current case, the operator was cited for
failing to correct equipment problems before using the equipment. Here, the
operator’s examination was not interrupted by the inspection; the operator
requested to delay the inspection to begin its examination. Both of the cases
cited by Respondent, furthermore, are not binding precedent in this case.

[3] The citations before me represent numerous alleged violations
regarding equipment with ineffective service and parking brakes. By arguing
that pre-operational examinations would have corrected all these issues,
Respondent essentially asserts that each of these pieces of equipment was
damaged the shift before the inspections occurred and would be repaired before
use. This is unlikely. Respondent finished repairing the vehicle cited in
Citation No. 8434074, discussed below, for an ineffective parking brake
immediately before Inspector Herndon cited the vehicle for a violation of
section 77.1605(b). The inspector delayed his inspection of the truck because
it was being repaired. (Tr. 74). When Respondent informed the inspector that
the vehicle had been repaired and was ready for inspection, the vehicle still
had an ineffective parking brake. Id. Although it is possible that the
brakes on the cited equipment may have become defective at the end of the
previous shift, the preponderance of the evidence shows that Respondent’s
pre-operational examinations were ineffective and brake problems were not being
corrected. This conclusion is especially important to my analysis of the
violations of section 77.1606(c) because the standard requires defects to be
corrected prior to operation instead of mandating that defects not exist at any
time.

[4] The Secretary defines conduct
that constitutes negligence under the Mine Act as follows:

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. Under the Mine Act, an operator is
held to a high standard of care. A mine operator is required to be on the alert
for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions
or practices. The failure to exercise a high standard of care constitutes
negligence.

30
C.F.R. § 100.3(d).

[5] Gerry Hargus, a mechanic and
shop foreman for Respondent, did not testify concerning the condition of the
cited airline as the Secretary incorrectly states; he affirmed that the airline
could appear to be in poor condition but still function properly, which
undermines the argument that the appearance of the airline alone proves how
long the cited condition existed. (Tr. 230-31).         

[6] Respondent argues, furthermore, that based upon the
position and location of the cited vehicle, the airline could not have broken
before being placed in that position because the brake system would not allow
the movements required to do so. (Respondent’s Br. at 10; Tr. 258, 241-42).

[7] An S&S violation
is a violation “of such nature as could significantly and substantially
contribute to the cause and effect of a . . . mine safety or health hazard.” 30
U.S.C. § 814(d) (2006). A violation is properly designated S&S “if, based
upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). In order to establish the S&S nature of a violation,
the Secretary must prove: “(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard – that is, a measure of danger to safety
– contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury will be of a reasonably serious nature.” Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d
133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria).

[8] Respondent argues that a fire was not reasonably
likely to ignite, citing Eastern Associated Coal Corp., 13 FMSHRC 178 at
184 (Feb. 1991). This argument, however, does not relate to the fact of
violation, only an S&S designation. Citation 8437673 was not S&S and
therefore this argument is immaterial.

[9] Payment should be sent to the
Mine Safety and Health Administration, U.S. Department of Labor, Payment
Office, P.O. Box 790390, St. Louis, MO 63179-0390.