Northern Illinois Service Co.

Plain-English summary

Northern Illinois Service operated a limestone quarry near Rockford, Illinois. MSHA cited the company for an uncovered energized electrical outlet box and uncovered valves on stored compressed-gas cylinders, under 30 C.F.R. §§ 56.12030 and 56.16006. The judge rejected the company’s arguments that the inspection was part of an earlier compliance-assistance visit and that the cylinders were in use. He affirmed both citations and the proposed $50 penalty for each, for a total civil penalty of $100. The order states that the case would be dismissed upon timely payment.

Decision snapshot

• Cited standards: 30 C.F.R. § 56.12030 and 30 C.F.R. § 56.16006
• Outcome: Both citations were affirmed, with total civil penalties of $100.
• Key point: A prior compliance-assistance visit did not prevent MSHA from issuing formal citations during a later regular inspection.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                       2 SKYLINE, 10th FLOOR
                        5203 LEESBURG PIKE
                   FALLS CHURCH, VIRGINIA 22041



                        June 26, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-229-M
Petitioner : A.C. No. 11-02963-05501
v. :
: Northern Illinois Service
NORTHERN ILLINOIS SERVICE CO., :
Respondent :

                           DECISION

Appearances: George F. Schorr, Conference and Litigation
Representative, U.S. Department of Labor,
Mine Safety and Health Administration,
Duluth, Minnesota, for the Petitioner;
David A. North, Esq., Rockford, Illinois,
for the Respondent.

Before: Judge Feldman

 This matter is before me as a result of a petition for civil

penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. ' 801 et seq., (the Mine Act). The petition seeks a
$50.00 civil penalty for each of two alleged non-significant and
substantial (non-S&S) violations1 of the mandatory safety
standards contained in 30 C.F.R. Part 56.

 1
   A violation is not significant and substantial if it is

not reasonably likely that the hazard contributed to by the
violation will result in a serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981).

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 This case was heard in Rockford, Illinois, on March 19,

1996.2 The parties stipulated the respondent is an operator
subject to the jurisdiction of the Act, the cited violations were
abated in a good faith and timely manner, and, the proposed civil
penalties will not affect the respondent=s ability to continue in
business. The parties= post-trial briefs are of record.

 Preliminary Findings of Fact

 Wayne Klinger is the sole owner of Northern Illinois Service

Company. The company extracts limestone at the subject quarry
located north of Rockford, Illinois, on Swanson Road. The quarry
had been inactive for approximately five years before it was
leased by Klinger in September 1993, for a five year term.
Normally, there are three employees working at the quarry --
a Ascale girl,@ loader operator Steven Yancy, and the Foreman,
Dan Kentner. (Tr. 99). The extraction process consists of
drilling and dynamiting the limestone deposits. The extracted
material is then transported to the primary crusher by a
front-end loader where it is processed and transported by belt to
stacker conveyors.

 Blasting by an independent contractor began in October 1993.

Klinger purchased new equipment including a Kamatsu loader, a
Boehringer primary crusher that was assembled by Murawski
Engineering in Rockford, Illinois, a screen and conveyors. The
primary crusher was installed in May 1994. The first bucket of
extracted limestone was loaded into the crusher on June 18, 1994.

 In April and May 1994, prior to commencing operations,

Klinger made several telephone calls to the Mine Safety and
Health Administration=s (MSHA=s) field office in Peru, Illinois,
to request a compliance assistance visit (CAV). A CAV is
performed, at an operator=s request, in order to ensure
compliance with mandatory safety standards by operators who are

 2
   The March 19, 1996, hearing in this matter was initially

scheduled for November 9, 1995. The hearing was continued until
January 23, 1996, due to an interruption in government operations
as a consequence of the budget impasse. The January 23, 1996,
hearing date was once again continued because of the government
shutdown.

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opening new mines, or who are operating new mining equipment.
Under this CAV program, an MSHA inspector visits the facility and
informs the operator of potential violations. The operator is
then given a reasonable period of time to correct the violative
conditions without the imposition of civil penalties.

 In response to Klinger=s request, MSHA Inspector

Robert Flowers performed a CAV on June 9 and June 16, 1994.
At that time, the primary crusher was out of service. Therefore,
Flowers could not perform a CAV to determine if the quarry was
operating in compliance with the mandatory standards pertaining
to dust and noise. However, Flowers issued numerous CAV
Nonpenalty Notices on MSHA FORM 4000-51. The CAV notices cited
various conditions including several for apparent violations of
the mandatory guarding requirements for conveyor belts and tail
pulleys. These CAV Nonpenalty Notices did not specify a
termination date before which the cited conditions had
to be corrected. (See Ex. R-1). The conditions were corrected
during the period June 15 through July 6, 1994. Foreman Dan
Kentner testified Flowers did not state that he would return for
a noise and dust inspection or that the CAV was otherwise
incomplete. (Tr. 103).

  In August 1994, MSHA Inspector William Hatfield reviewed

MSHA=s files on the subject quarry. Hatfield talked to Flowers
and his supervisor, Ralph Christiansen. They informed him the
CAV visits were completed. Christiansen assigned Hatfield to
perform a regular inspection. Ordinarily, Flowers would have
conducted the inspection. However, Hatfield was assigned because
Flowers was behind on his inspections due to illness.

 Hatfield arrived at the Swanson Road quarry at approximately

8:00 a.m. on August 4, 1994. Hatfield went to the scale house,
identified himself, and requested to speak to the foreman.
According to Hatfield, Foreman Kentner arrived at the scale
house, whereupon Hatfield, consistent with his normal procedure,
advised Kentner he was there to conduct a regular inspection.
Hatfield also testified he had no reason to represent that his
visit was for a CAV, as his assignment was to conduct a routine
inspection. Kentner testified Hatfield informed him that he
wanted to do a noise and dust inspection, although Hatfield did
not specify whether the purpose was a CAV or regular inspection.
(Tr. 103).

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 Kentner informed Hatfield that the primary crusher had been

out of service since August 1, 1994, due to a major breakdown
involving the clutch. Hatfield had intended to inspect the
entire operation including noise and dust compliance. (Tr. 48).
Hatfield observed two different types of material beneath the
stacking conveyor which led him to believe that extraction
operations had commenced. (Tr. 20). Kentner conceded there were
stockpiles of material, although he characterized the piles as
insignificant. (Tr. 185). Since the crusher was not
operational, Hatfield, accompanied by Kentner, inspected other
areas of the facility.

 Hatfield and Kentner were in the scale house at

approximately 9:30 a.m. when Hatfield observed an energized,
uncovered 110 volt duplex outlet box on the east wall. Hatfield
testified that the purpose of an outlet cover is to prevent
contact with inner wires that could result in electric shock
injuries. Consequently, Hatfield informed Kentner that a cover
was required and he issued Citation No. 4313030 citing a non-S&S
violation of the mandatory safety standard in section 56.12030,
30 C.F.R. ' 56.12030. This standard requires electrical boxes to
be covered at all times except during testing and repair.
Hatfield returned to the facility the following morning to ensure
that the violations had been abated. Hatfield terminated the
citation at 8:00 a.m. on August 5, 1994, after he observed that a
cover had been installed on the cited outlet.

 At approximately 10:00 a.m. during the August 4, 1994,

inspection, Hatfield and Kentner proceeded to the generator
trailer which contained the generator that powered the crusher
unit, screens and conveyors. Hatfield observed an acetylene tank
and an oxygen tank without valve covers. Acetylene is used as
fuel and the oxygen is used as an enhancer to power the cutting
torch. When in use, the valve caps must be removed to install
the regulator on the tanks. A regulator is attached to the tanks
and a 100-foot hose is attached to the regulator with the cutting
torch at the end of the hose. The long hose enables torch
cutting operations to occur outside the generator trailer without
removal of the tanks. The tanks remain stored in the generator
trailer when not in use.

 Hatfield concluded the tanks, also referred to as cylinders,

were not in use because they were not attached to any regulator

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gauges or torches. (Tr. 29, 58). Hatfield testified that these
cylinders contained compressed gas under pressure of up to 2,000
pounds per square inch. Hatfield opined these cylinders could
explode if an exposed valve was accidentally damaged by contact
with a tool or other object. Hatfield informed Kentner that the
valve caps were required. Hatfield issued Citation No. 4313031
for a non-S&S violation of section 56.16006, 30 C.F.R. 56.16006.
This mandatory standard requires valves on compressed gas
cylinders to be covered when the cylinders are transported or
stored. Kentner had the valve caps reinstalled within 30
minutes.

 Hatfield testified that he wrote Citation Nos. 4313030 and

4313031 during the evening of August 4, 1994, after returning to
his motel room after completing the day=s inspection. Hatfield
returned to the quarry the following morning where he conducted a
close-out conference with the end-loader operator because Kentner
was not available. Hatfield does not recall the name of the
end-loader operator and he could not identify Yancy who was the
respondent=s the end-loader operator at that time. Yancy could
not recall ever meeting Hatfield. (Tr. 145). The meeting
related by Hatfield reportedly occurred approximately 18 months
before the trial in this proceeding. Hatfield explained it is
difficult for him to recognize someone in a courtroom who had
been wearing a hard hat and who was last seen 18 months earlier.
(Tr. 197-98).

 The respondent alleges it received the subject citations via

certified mail on or about August 30, 1994, in an envelope
postmarked August 28, 1994. Hatfield testified that citations
are personally served on operators rather than mailed, with the
exception of citations that require subsequent laboratory
analysis such as respiratory dust samples. Therefore, Hatfield
maintained he personally served the subject citations to an
individual identified as the end-loader operator during a
close-out conference in the scale house on August 5, 1994.

 Ultimate Findings and Conclusions

 As a threshold matter, the respondent asserts that Hatfield

went to its mine site to complete the noise and dust CAV started
by Fowler in June 1994. The respondent contends that Hatfield
issued the subject wall outlet cover and tank valve cover

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citations only after Hatfield learned he could not conduct a CAV
for noise and dust compliance because the crusher was not
operational. The respondent speculates that the subject
citations were intended to be CAV warnings but were later written
as formal citations and initially served by certified mail on or
about August 30, 1994. Thus, the respondent argues the citations
should be treated as nonpenalty CAV warnings.

 The nature and extent of a CAV inspection is within the

discretion of the Mine Safety and Health Administration (MSHA).
Although the respondent characterized the stockpiles as
insignificant when Hatfield conducted his August 1994 inspection,
it is undisputed that mining activities began on June 18, 1994,
when the first bucket of limestone was loaded into the crusher.
The evidence also reflects Flowers had already conducted a CAV
which noted a variety of non-crusher related violative
conditions. (See Ex. R-1). Therefore, there is no basis for
disturbing Hatfield=s decision to conduct a regular inspection on
August 4, 1994.

 Moreover, it is well settled that MSHA is not estopped from

citing a violative condition simply because the violation was
overlooked during a prior inspection. See King Knob Coal Co.,
Inc., 3 FMSHRC 1417, 1421-22 (June 1981). Judge Morris
addressed this issue with respect to CAV reviews in Brighton Sand
& Gravel, 3 FMSHRC 127 (ALJ, Jan. 1991). Judge Morris stated:

 When A CAV inspection takes place, MSHA cannot guarantee
 that all areas of a mine will be inspected, nor can it
 guarantee that all possible violations will be detected by
 the inspector. This is because the primary obligation for
 compliance with the regulations rests with the mine
 operator. Id. at 128.

Therefore, the Secretary is not precluded from enforcing these
citations even if they existed but were not cited by Flowers
during his June 1994 CAV visit.

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 The citations in this matter identified as Exs. P-1 and P-2

were issued pursuant to section 104(a) of the Mine Act,
30 U.S.C.' 814(a). They cite violations of mandatory safety
standards that were observed by Inspector Hatfield on the morning
of August 4, 1994, in the presence of Kentner, the quarry
Foreman. In accordance with section 104(a), the citations
describe with particularity the nature of each violation and the
mandatory standard violated. The citations also provide a
reasonable period of time for abatement of the cited violative
conditions.

Section 104(a) provides:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator
of a coal or other mine subject to this Act has
violated this Act, or any mandatory health or safety
standard, rule, order, or regulation promulgated
pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator. Each
citation shall be in writing and shall describe with
particularity the nature of the violation, including a
reference to the provision of the Act, standard rule,
regulation ,or order alleged to have been violated.
In addition, the citation shall fix a reasonable time
for the abatement of the violation. The requirement
for the issuance of a citation with reasonable
promptness shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act.

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 I credit the testimony of Hatfield that he served the

citations on the morning of August 5, 1994, when he returned to
the quarry to determine the cited conditions were abated.
(Tr. 55-56). In this regard, the citations reflect the last
violation was terminated at 8:00 a.m. on August 5, 1994.
(Ex P-4). However, even if the citations were first served by
certified mail on or about August 30, 1994, as alleged, they were
served with Areasonable promptness@ as required by section 104(a)
of the Mine Act, and, the respondent has not shown any prejudice
by its purported receipt by certified mail. Therefore, whether
Hatfield personally served the citations, or mailed them, is not
a relevant issue that impacts on the citations= validity.

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 With respect to the issue of Hatfield=s credibility, there

is no evidence that Hatfield represented that he was performing a
CAV inspection. Moreover, the respondent=s prompt abatement
efforts reflect these violations were not viewed as informal CAV
warnings. CAV warnings are advisory in nature and do not have a
formal abatement date. Review of the subject citations reflects
the violative conditions were abated within one day -- well in
advance of the termination date specified in the citations. This
prompt abatement evidences that Kentner was aware that these were
formal violations that, unlike CAV violations, required immediate
correction.

 Having determined that the citations are valid, we turn to

the question of the fact of occurrence of the cited violations.
Citation No. 4313030 was issued for an uncovered, energized
110 volt duplex outlet box on the east wall of the respondent=s
scale trailer. The uncovered condition of this outlet box is not
in dispute. The respondent does not contend this outlet box was
undergoing testing or repair at the time it was observed by
Hatfield. Therefore, the Secretary has met his burden of
establishing the cited violation of the mandatory safety standard
in section 56.12030.

 With respect to remaining Citation No. 4313031, section

56.16006 requires valves on compressed gas cylinders to be
covered when not in use. The dispositive question is whether or
not the cited cylinders were in use when they were observed by
Hatfield without valve covers at approximately 10:00 a.m. The
respondent asserts the tanks were in use because: (1)they were
connected to a regulator and a hose; (2) they had been used by
Yancy immediately prior to Hatfield=s inspection; and (3) Yancy
used the cylinders for torch operations throughout the day, both
before and after the inspection. As noted below, the evidence
fails to support these assertions.

 Contrary to the respondent=s claim that a regulator and

torch were connected, Hatfield testified the regulator and torch
were not connected and there was no one observed preparing to use
the cylinders. (Tr. 29, 58). Similarly, Kentner testified that
no one was Aphysically cutting@ at the time. (Tr. 122).

 The respondent=s self-serving statements that the cylinders

were being used were not expressed to Hatfield by Kentner at the

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time of the inspection. (Tr. 137). Such exculpatory testimony,
the substance of which was first presented at trial, is of little
evidentiary value. Moreover, Citation No. 4313031 reveals the
valve caps were installed at 10:30 a.m., shortly after the
condition was cited. There is no evidence to support Kentner=s
self-serving assertion that the regulator was removed prior to
installation of these valve caps. (Tr. 123). For example, as
noted above, Kentner admittedly did not question Hatfield about
why he was required to remove the regulator if the cylinders were
being used. (Tr. 137). Kentner=s testimony that the 100-foot
hose was Awrapped inside@ next to the cylinders and not seen by
Hatfield is inconsistent with the respondent=s assertion that the
torch was being used outside the generator trailer. (Tr. 138).
In short, the regulator, hose and torch were not observed by
Hatfield because there is no objective evidence that they were
connected to the cylinders and being used. (Tr. 58).

 Significantly, although Yancy allegedly remembers using the

tanks off and on all day on August 4, 1994, his testimony is
inconsistent with his purported recollection. (Tr. 151-52).
In this regard Yancy testified:

 Q.   On that day [August 4, 1994], were you aware of the fact
       that there was some comment about the use of the oxygen
        and torch equipment?

 A.   Yeah, later towards quitting time in the afternoon he
        had gone, Dan [Kentner] was telling me -- about some
           caps that he had put on. (Tr. 151).

Yancy testified Ait [doesn=t] make any sense@ to remove the
regulator and replace the valve caps when the cylinders are used
intermittently throughout the day. (Tr. 152). However, the
substance of the above quoted testimony is that Yancy first
learned that valve caps had been installed by Kentner at quitting
time. If Yancy had used the cylinders throughout the day, as
alleged, he would have known Kentner had installed the caps
earlier that morning because Yancy would have had to remove the
caps and reinstall the regulator and hose in order to resume his
purported use of the torch.

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 Thus, on balance, I credit Hatfield=s testimony that there

was no evidence that the cylinders had been in use on the morning
of August 4, 1994. Accordingly Citation No. 4313031 is affirmed.

 In considering the appropriate penalty to be assessed, I

must consider the penalty criteria in section 110(i) of the Mine
Act, 30 U.S.C. ' 820(i). The minimal $50.00 civil penalties
proposed by the Secretary for each of the two cited violations
takes into account that the respondent is a small operator that
has cooperated with MSHA during the CAV process. These small
proposed penalties also reflect the low gravity of the
violations, the low degree of negligence attributable to the
respondent, and the respondent=s good faith efforts to achieve
rapid compliance. Accordingly, there is no basis for disturbing
the $50.00 penalties sought to be imposed.

 In affirming the proposed civil penalties, I am cognizant of

Hatfield=s testimony that the respondent is safety conscious and
runs Aa very good operation.@ (Tr. 95). This mitigating factor
is a consideration in the imposition of this small penalty.
However, concerns for safety are not a defense to the cited
violations.

                          ORDER

 In view of the above, Citation Nos. 4313030 and 4313031

ARE AFFIRMED. The respondent shall pay a total civil penalty of
$100.00 to the Mine safety and Health Administration within
30 days of the date of this decision. Upon timely receipt of
payment, this case IS DISMISSED.

                          Jerold Feldman
                          Administrative Law Judge




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Distribution:

George F. Schorr, Conference and Litigation Representative,
Mine Safety and Health Administration, U.S. Department of Labor,
Duluth Federal Building, U.S. Courthouse, 515 W. First Street,
Room 228, Duluth, MN 55802-1302 (Certified Mail)

David A. North, Esq., 216 Court Street, P.O. Box 17,
Rockford, IL 61105 (Certified Mail)

/mca

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