Secretary of Labor v. Winn Materials, LLC

Read the official release (fmshrc.gov)

Plain-English summary

An anonymous complaint led MSHA to cite seven missing or inadequate tail-pulley guards at Winn Materials' surface limestone mine in Tennessee. Winn Materials accepted the underlying guarding violations but disputed the S&S, unwarrantable-failure, reckless-disregard, flagrant, and penalty findings. Judge David P. Simonton held that the Secretary had not shown workers were reasonably likely to approach the exposed pulleys while they were energized because routine cleanup used enclosed equipment and maintenance was performed under lockout. He changed all seven actions to non-S&S section 104(a) citations, reduced the negligence levels, and removed the flagrant designations from three violations. The total penalty fell from the proposed $547,100 to $44,000.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14107(a) and 56.14112(b)
• Outcome: Seven violations were affirmed but modified to non-S&S section 104(a) citations, with total penalties of $44,000.
• Key point: A guarding violation can exist without being S&S when the evidence does not show that miners are reasonably likely to enter the exposure area while machinery is energized.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
St., Suite 443

Denver, CO 80202-2500

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

May
23, 2014

SECRETARY
OF LABOR,                 

MINE
SAFETY AND HEALTH,

ADMINISTRATION
(MSHA),           

Petitioner,

v.

WINN
MATERIALS LLC,

Respondent.

WINN
MATERIALS LLC,

Contestant,

v.

SECRETARY
OF LABOR,                 

MINE
SAFETY AND HEALTH,

ADMINISTRATION
(MSHA),

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2013-50-M

A.C. No. 40-03094-303407     

Docket No. SE 2013-64-M

A.C. No. 40-03094-304286

Mine: Winn Materials, LLC

CONTEST PROCEEDINGS

Docket No. SE 2012-76-RM

Citation No. 8637419; 11/17/11

Docket No. SE 2012-77-RM

Order No. 8637420; 11/17/2011

Docket No. SE 2012-78-RM

Order No. 8637421: 11/17/2011

Docket No. SE 2012-79-RM

Order No. 8637422; 11/17/2011

Docket No. SE 2012-80-RM

Order No. 8637423; 11/17/2011

Docket No. SE 2012-81-RM

Order No. 8637424; 11/17/2011

Docket No. SE 2012-82-RM

Order No. 8637425; 11/17/2011

Mine ID: 40-03094

Mine: Winn Materials, LLC

DECISION

Appearances:               Angele
Gregory, Office of the Solicitor, U.S. Department of Labor, 618 Church Street,
Suite 230, Nashville, TN 37219 for Petitioner

Justin
Winter, Adele Abrams P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705 for
Respondent

Nicholas
Scala, Adele Abrams P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705 for
Respondent

Before:            Judge Simonton

This case is before me on a
petition for assessment of civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration, against Winn
Materials, LLC at the Winn Materials mine, 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”). These cases include seven citations and orders with a
total proposed penalty of $547,100.00. The parties presented testimony
and documentary evidence at the hearing held in Nashville, TN beginning January
8, 2014.

I.
INTRODUCTION

Winn Materials, LLC (Respondent) operates an
above ground limestone aggregate mine, the Winn Materials mine (the “mine”) in
Clarksville, Tennessee. Tr. 25. The mine is subject to regular inspections by
the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to
section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Winn
Materials, LLC is the operator of the mine and that its operations affect
interstate commerce and it is subject to the jurisdiction of the Mine Act. Tr.
9-10.

An anonymous
caller filed a hazard complaint at 7 PM on November 16, 2011, alleging multiple
safety violations at Respondent’s Winn Materials mine, including unguarded tail
pulleys on the “west side” of the plant. Tr. 11, 27. Acting on the report, MSHA
Inspector Michael Hollis inspected the mine the next afternoon, November 17,
2011. Tr. 34-35. Although Hollis was unable to confirm any of the other hazard
complaints, he did identify seven tail pulley locations that were either
inadequately guarded or completely missing the required guard. Tr. 150. At the
time of the inspection, only one of the unguarded belts was allegedly running
and no workers were observed in the vicinity of any of the missing guards. Tr. 107,

157. However, none of the conveyor belts were locked or tagged out prior to the
     inspection. Tr. 311. On the basis of these observations, Hollis issued one 104
     (d)(1) citation, five 104 (d)(1) orders for alleged violations of 30 CFR §
     56.14107(a) and one 104 (d)(1) order for an alleged violation of 30 CFR §
     56.14112(b). Tr. 13-14. During the penalty review process, Hollis eventually
     determined that all of the violations were the result of Respondent’s reckless
     disregard for the Mine Act and worker safety. Tr. 179-80. Hollis and MSHA
     supervisors also determined that Citation No. 8637419 and Orders Nos. 8637420
     and 8637422 were 110(b)(2) flagrant violations. Tr. 13.

Respondent filed
a notice of contest for each of the seven alleged violations on November 22,
2011. At hearing, Respondent did not contest any of the underlying violations,
but did contest the gravity, negligence, unwarrantable failure and flagrant
designations. Resp. Br., 1-2. Respondent also argued that the assessed
penalties are highly excessive. Resp. Br., 2.

I have prepared a Statement
of Law outlining the Commission’s instructions regarding: 1) Statute
Interpretation; 2) Burden of Proof; 3) Significant and Substantial (S&S) violations;
4) Unwarrantable Failure; 5) Flagrant Violations and 6) Civil Penalty and
Special Assessment. I have followed these guidelines for each of the seven
contested violations. As the parties generally constructed their arguments
regarding the gravity, negligence, 104(d)(1) and 110(b)(2) designations in a
cumulative fashion within their post-hearing briefs, I have set forth my
findings by citation element rather than by individual citation.

For the reasons
stated within, I affirm the underlying violation for all seven citations, but
find that the Secretary failed to show, in light of Respondent’s credible
evidence to the contrary, that any of the violations were S&S or the result
of reckless disregard on behalf of Respondent. As such, I have modified all
seven citations and orders from 104(d) (1) actions to 104(a) citations. Additionally,
having found that Citation No. 8637419, Order No. 8637420, and Order No. 8637422
were neither S&S nor the result of Respondent’s’ reckless disregard, I have
also removed the 110(b)(2) penalty designations from these citations. After
accounting for these findings and considering the six statutory penalty
criteria, I have ordered Respondent to pay a total civil monetary penalty of $44,000.00.

II.
STATEMENT OF LAW

A.        Statute Interpretation          

The
Commission has stated that:

the
operator is entitled to the due process protection available in the enforcement
of regulations... When a violation of a regulation subjects private parties to
criminal or civil sanctions, a regulation cannot be construed to mean what an
agency intended but did not adequately express. Laws
must give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.

Energy West Mining
Co., 17 FMSHRC 1317-18 (internal citations omitted).

However,
the Secretary is not required to provide the operator actual notice of its
interpretation of a mandatory safety standard, rather:

“the
Commission has applied an objective standard of notice, i.e., the reasonably
prudent person test. The Commission has summarized this test as ‘whether a
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard.”

Energy West Mining
Co., 17 FMSHRC 1318 (internal citations omitted).

In the context
of guarding violations, the Commission has stated,

“We find that the most logical construction of the
standard is that it imports the concepts of reasonable possibility of contact
and injury, including contact stemming from inadvertent stumbling or falling,
momentary inattention, or ordinary human carelessness. In related contexts, we
have emphasized that the constructions of mandatory safety standards involving
miners' behavior cannot ignore the vagaries of human conduct. See, e.g., Great
Western Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries,
Inc., 3 FMSHRC 2526, 2531 (November 1981). Applying this test requires
taking into consideration all relevant exposure and injury variables, e.g.,
accessibility of the machine parts, work areas, ingress and egress, work
duties, and as noted, the vagaries of human conduct. Under this approach,
citations for inadequate guarding will be resolved on a case-by-basis.”

Thompson Bros. Coal, 6 FMSHRC 2094, 2097 (Sept 1984).

B.        Burden of
Proof

The Commission has long held, “In an enforcement action
before the Commission, the Secretary bears the burden of proving any alleged
violation.” Jim
Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987); Wyoming Fuel Co.,
14 FMSHRC 1282, 1294 (August 1992). 

The
Commission has described the Secretary’s burden as:

the
burden of showing something by a “preponderance of the evidence,” the most
common standard in the civil law, simply requires the trier of fact “to believe
that the existence of a fact is more probable than its nonexistence.

RAG Cumberland Res.
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas Co.,
11 FMSHRC 2148, 2152 (Nov. 1989).

The
Secretary may establish a violation by inference in
certain situations. Garden Creek Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary
facts and the ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132,
1138. (May 1984).

If the
Secretary has established facts supporting the citation, the burden shifts to
the respondent to rebut the Secretary’s prima facie case. Construction
Materials, 23 FMSHRC 321, 327 (March 2001) (ALJ Feldman).

C.        Significant and Substantial

A
violation is Significant & Substantial (S&S), “if based upon the
particular facts surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a
reasonably serious nature.” Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981) (holding that S&S language of Section 104(d) of
the Mine Act was not surplusage and required more than a showing of the
violation itself.)

In
order to uphold a citation as S&S, the Commission has held that 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. Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

An S&S
designation must be based upon the particular facts surrounding the violation
and must be made in the context of continued normal mining operation. Texasgulf,
Inc., 10 FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574 (July 1984). However, the Secretary “need not prove a
reasonable likelihood that the violation itself will cause injury.” Cumberland
Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (holding that failure
to maintain emergency equipment was S&S despite low likelihood of emergency
occurring); See also Musser Engineering, Inc. and PBS Coals, 32 FMSHRC
1257, 1280-81 (Oct. 2010)(stating that the third element of the Mathies test
requires a showing that the hazard contributed to by the violation is
reasonably likely to result in an injury).

The
Commission has mandated that ALJs perform a full analysis of all four Mathies
factors based on specific evidence, including the likelihood of an injury
producing event occurring. Wolf Run Mining Co., 32 FMSHRC 1669, 1678
(Dec. 2010). The Commission has also maintained that an S&S determination
must be based on more than a showing that a violation ‘could’ result in an
injury. Wolf Run Mining Co., 32 FMSHRC 1678 (quoting Peabody Coal Co.,
17 FMSHRC 26, 29 (Jan. 1995)).

As the Commission
decided to analyze the hazards of unguarded tail pulleys on a case-by-case
basis in Thompson Bros. Coal, recent S&S determinations involving
56.14107(a) violations appear to turn primarily upon the degree of exposure
created by the lack of guarding. See e.g. Stanley Mineral Resources, 34
FMSHRC 1500, 1507 (ALJ Barbour) (June 2012) (holding 56.14107(a) a violation
was S&S when employee was observed cleaning underneath an unguarded pulley
with a shovel); Holcomb, 33 FMSHRC 1435, 1447 (ALJ Manning) (June 2011) (holding
a 56.1407(a) violation was non- S&S when operator satisfactorily
demonstrated that all cleaning activities were conducted between shifts).

D.        Negligence     

The Mine Act defines
reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the
violative condition without mitigating circumstances; moderate negligence as
actual or constructive knowledge of the violative condition with mitigating
circumstances; and low negligence as actual or constructive knowledge of the
violative condition with considerable mitigating circumstances. 30 CFR § 100.3:
Table X. Deliberate action contrary to the Mine Act with the conscious
knowledge that such activity may seriously endanger workers constitutes
reckless disregard. Roxcoal, Inc., 36 FMSHRC 625, 634 (ALJ Barbour)
(March 2013) (finding reckless disregard when electrical foreman disabled
safety switch to a high voltage electrical panel so that workers could access panel
components while they were energized).

E.        Unwarrantable
Failure

Section 104(d)(1) of the
Mine Act states:

If, upon any
inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health
standard,… and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or safety
standards, he shall include such findings in any citation given to the operator
under this Act.

Unwarrantable
failure is defined as aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable
failure is characterized by such conduct as “reckless disregard,” “willful
intent”, “indifference,” or the “serious lack of reasonable care.” Id.
at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February
1991).

The Commission
considers the following factors when determining the validity of 104(d)(1) and
104(d) (2) orders: (1) the length of time that the violation has existed and
the extent of the violative condition, (2) whether the operator has been placed
on notice that greater efforts were necessary for compliance, (3) the
operator’s efforts in abating the violative condition, (4) whether the
violation was obvious or posed a high degree of danger and (5) the operator’s
knowledge of the existence of the violation. Consolidation Coal Co., 22
FMSHRC 340, 353 (Mar. 2000). All of the relevant facts and circumstances of
each case must be examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. IO Coal Co., 31 FMSHRC 1346,
1351 (Dec. 2009).

F.         Flagrant Violations

Under Section 110 (b)(2)
of the Mine Act, the Secretary may assess a civil monetary penalty of up to
$220,000.00 for “flagrant” violations. Section 110 (b) (2) defines a “flagrant”
violation as a:

“reckless or repeated failure to make reasonable efforts
to eliminate a known violation of a mandatory health or safety standard that
substantially and proximately caused, or reasonably could have been expected to
cause, death or serious bodily injury.”

30 USC § 820(b).

To date, the most
comprehensive analysis of Section 110 (b)(2) of the Mine Act is set forth in Stillhouse
Mining, 33 FMSHRC 778, 802 (March 2011)(ALJ Paez). Relying upon the
language of the statute, the ALJ stated that the Secretary must show the
following four elements in order to sustain a 110(b)(2) action: (1) A reckless
or repeated failure to make reasonable efforts; (2) A known violation of a
mandatory health or safety standard; (3a) That substantially and proximately
caused; or (3b) Reasonably could have been expected to cause; (4) Death or
serious bodily injury. Stillhouse Mining, 33 FMSHRC 802.

For the purposes
of 110(b)(2) actions, reckless behavior is defined as a conscious or deliberate
disregard of an unjustifiable risk of death or serious bodily injury. Id. at

805. The Secretary need not establish that MSHA had previously cited the
     operator for the violative condition. However, the Secretary does need to
     demonstrate than an individual “in a position to protect employee safety failed
     to act on the basis of information that gives him knowledge or reason to know
     of the existence of a violative condition.” Cougar Coal, 25 FMSHRC 513,
     517 (Sept. 2003). The likelihood of a resulting serious injury is
     evaluated under the specific set of circumstances present during the violation.
     Id.

G.   Penalty
Assessment

It is well
established that Commission administrative law judges have the authority to assess
civil penalties de novo for violations of the Mine Act. Sellersburg Stone
Company, 5 FMSHRC 287, 291 (March 1983). The Act requires that in assessing
civil monetary penalties, the Commission ALJ shall consider six statutory
penalty criteria:

(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 of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

30 U.S.C. 820(I).

These criteria are
generally incorporated by the Secretary within a standardized penalty
calculation that includes consideration of negligence and gravity finding and
permits proposed penalty assessments up to $70,000.00 per citation. 30 CFR
100.3: Table 1- Table XIV. In these cases, the Secretary has relied upon 30 CFR
100.5, and submitted specially assessed penalties for each citation, relying
upon the multiple unguarded pulleys found at the mine as justification for the
increase in penalty amount beyond the standard penalty calculation. Sec’y
Proposed Assessment Docket SE 2013-50 & 64: Narrative Findings For A
Special Assessment. Additionally, the Secretary has relied upon Section
110(b)(2) to designate Citation No. 8637419 and Order Nos. 8637420 and 8637422
as flagrant violations and assigned penalty amounts in excess of the Section
110(a)(1) cap of $70,000.00. Sec’y Proposed Assessment Docket No. SE 2013-64:
Narrative Finding for a Special Assessment; Sec’y Br. 30-31.

For all penalty assessments, the
Secretary bears the burden of establishing the proposed penalty is appropriate
based upon the statutory criteria of Section 110(i) of the Act. In re:
Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241
(ALJ Broderick) (January 1992) (Order). Similarly, for specially assessed
penalties in excess of the standard penalty calculation, the Secretary has the
burden of establishing the existence of aggravating factors to justify such an
increase. S&M Construction, Inc., 18 FMSHRC 108, 1052-53 (ALJ
Koutras) (June 1996); Freeport McMoran Morenci, Inc., 35 FMSHRC 172, 181
(ALJ Miller) (January 2013).

III. PLANT OPERATION

Respondent’s above ground limestone mine includes a
maintenance shop, office, scale house, pit quarry, secondary plant and
stockpiles. Tr. 25, 203-04. Raw shot rock is transported from the quarry pit to
the primary crusher. Tr. 191. The majority of the processed shot rock is then
transported to the secondary plant for further processing into commercial
finish products. Tr. 192. The secondary plant has a number of conveyor belts,
screens, and crushers. Tr. 191, 218, 235. The secondary plant is divided into a
wet and a dry side and different conveyor belts can be run independently
depending on what products are desired. Tr. 57. It is not necessary for all
belts to run in order for the plant to “operate”. Tr. 57. The wet side of the
plant uses water to process the material and the ground surrounding some
conveyor belts is saturated to the point that is difficult to walk in certain
areas. Tr. 307, 314.

The
secondary plant is staffed by seven or eight workers during a normal shift. Tr.
203-04. The secondary plant operator controls the plant from an elevated
control room where switches control all the conveyors and crushers. Tr. 203-04.
Two skid steer operators work continuously to clean the spillage around
crushers and conveyor belts. Tr. 204, 207. The skid steer operators are
enclosed in a protective cab and use an extended rake attachment to clean
around underneath the conveyor equipment. Tr. 207; Resp. Ex. 4, 3-4. The skid
steer is more efficient than manually cleaning by hand. However, with the
extended rake, the sensitivity of the controls lead to frequent guard damage. Tr.
214, 304, 329-30.

Front
end loader operators load out finished product from stockpiles at the perimeter
of the secondary plant to customer trucks. Tr. 204. A water truck operator
applies water to both the haul paths and occasionally uses a water cannon to
clean out from underneath conveyor belts. Tr. 208. Due to the high pressure of
the water cannon, the water truck does not have to come closer than 30’ to the
conveyor belt. Tr. 209. No employees walk the secondary plant on a regular
basis but foot traffic is not specifically prohibited by Respondent’s Safety
Policy. Tr. 209, 215, 274.

Routine
maintenance and greasing of the conveyor belts is performed between shifts
while the belts are de-energized. Tr. 200. All conveyor belts are equipped with
extended grease ports that allow the rollers to be greased without removing the
guard. Tr. 223. The maintenance team generally travels the secondary plant in a
work truck and only approaches a belt for repairs after it is de-energized and
locked out. Tr. 220. The maintenance crew has the authority to lock out belts
when needed and is expected to initiate necessary repairs without waiting for
upper management approval. Tr. 303.

A belt is shut
down when the control switch at the control tower is turned off and the belt is
not moving. Tr. 259. A belt is de-energized when the controlling circuit
breaker is switched off and power is not available to drive the belt even if
the control tower switch is put into drive mode. Tr. 259. A belt is locked out and
tagged out when the controlling circuit breaker is switched off and locked out
with a physical lock. Tr. 259. Respondent conducts regular weekly safety
meetings and had discussed lock-out tag-out procedures and conveyor belt safety
in the months prior to the November 17 hazard complaint. Tr. 197-99; Resp. Ex. 3,
1-6. At the time of the inspection, the on-site foreman for the secondary plant
was Jeremy Childress. Tr. 188. Sean Cotham was the area operations manager with
ultimate responsibility for Respondent’s mine at the time of the inspection. Tr.
187-88.

IV. TESTIMONY

A.   
   The Secretary

Inspector
Hollis testified regarding his observations at the mine and interactions with Respondent’s
management on November 17, 2011. Hollis stated that on Nov 17, 2011, his field
office notified him of a hazard complaint. Tr. 27. Hollis explained that he
reviewed the complaint documents and then met with the complainant who asked to
remain anonymous. Tr. 28-29. The complainant claimed, among other allegations,
that tail pulleys at the west side of the plant were not guarded. Tr. 29; Sec’y
Ex. 1. Hollis then traveled to Respondent’s plant and first notified Foreman
Childress and then shortly thereafter, Operations Manager Cotham of the hazard
complaint. Tr. 32-33. Hollis, accompanied by Cotham and Childress, proceeded to
inspect the wet side secondary plant and first identified a missing guard at
the tail pulley of the “10’s” belt. Tr. 36. Hollis stated that the guard for
the 10’s belt was completely missing and that he issued Citation No. 8637419
for this condition which is a violation of 56.14107(a). Tr. 41.

Hollis
stated that when he asked Cotham why the tail pulley was not guarded, Cotham
responded “production needs,” but also indicated that materials had been
ordered to replace the 10s guard. Tr. 62-63. Hollis stated that the 10’s belt
was a fluted tail pulley located 6 inches off the ground. Tr. 46-47. Hollis
explained that fluted tail pulleys are particularly dangerous as the flutes
will draw a worker’s entire body into the conveyor belt if a worker becomes
entangled in the belt. Tr. 58-59. Hollis stated that the muddy and sloppy
ground around the 10’s belt increased the possibility of a worker tripping and
falling into the unguarded conveyor belt. Tr. 48. Hollis stated that while the
10’s belt was not running at the time of the citation, Cotham informed him the
belt was not locked out. Tr. 56.

Hollis also issued the following orders:

Order
No. 8637420 for the lack of guarding at the wet side return conveyor. Tr. 76. Hollis
testified that the fluted tail pulley at this location was completely unguarded
and located approximately two and a half feet above ground level. Tr. 77. Hollis
indicated that this conveyor belt was not running at the time of the inspection
but that the belt was “operable.” Tr. 78.

Order
No. 8637421 for an alleged violation of 30 CFR 56.14112(b) after observing an
insufficiently guarded tail pulley on the return wash-plant conveyor belt. Tr.
93, 98. Hollis stated that while the sides and top of the conveyor belt guard were
intact at this location, the back of the guard was missing at the return point
and referenced an inspection photo taken of the return wash plant conveyor
belt. Tr. 93; Sec’y Ex. 13. Hollis stated that the belt was not running at the
time of the inspection but that the belt was operable. Tr. 98.

Order
No. 8637422 for an unguarded tail pulley at the blend conveyor belt. 102, 105. Hollis
testified that this conveyor belt was moving rapidly at the time of the
inspection and that the belt was located approximately two feet above ground
level. Tr. 107-108. Hollis explained that there was some partial guarding on
one side of the conveyor belt but that the majority of the tail pulley was
unguarded. Tr. 109-110.

Order
No. 8637423 for a partially unguarded tail pulley at the “1/2” belt. Tr. 119. Hollis
referenced an inspection photo and explained that although the belt had
guarding installed, it did not fully prevent contact with the bottom of
conveyor belt. Tr. 119; Sec’y Ex. 21. Hollis believed that workers could fall
into the conveyor belt by accident or during greasing or belt training
operations. Tr. 120. Hollis stated that he did not observe any adjustment bolts
at the tail pulley, that he did not actually know how the ½ conveyor belt was
adjusted, and that it may have been possible to adjust the conveyor belt from
the head pulley. Tr. 121.

Order
No. 8637424 for a partially unguarded tail pulley at the “4’s” belt. Tr. 129. Hollis
referenced an inspection photo and testified that on the right side of the tail
pulley, the guarding was damaged to the point that a worker could inadvertently
contact the conveyor belt and become entangled. Tr. 131; Sec’y Ex. 25. In
reference to this damaged guarding, Hollis stated that “no one is purposely is
going to stick their hand in there.” Tr. 131. On cross-examination, Hollis
stated that the inspection photo did not show the entire guarding and mainly
depicted only the exposed area of the conveyor belt. Tr. 167-68; Sec’y Ex. 25.

Order
No. 8637425 for an insufficiently guarded tail pulley at the dry side return
conveyor belt. Tr. 135, 141. Hollis stated that he initially observed the
deficient guarding from the west side of the plant and walked across to inspect
the conveyor more closely. Tr. 142. Hollis referenced an inspection photo and
explained that there was some limited guarding in place at the time of the
inspection but that the tail pulley was exposed. Tr. 142; Sec’y Ex. 29. Hollis
also stated that there were footprints within several feet of this conveyor
belt and that when asked, Mr. Cotham did not offer any explanation regarding
the footprints. Tr. 144-45.

For
Order Nos. 8637420-8637425, Hollis stated that Manager Cotham did not offer any
explanation for the lack of guarding, indicate that the plant was currently shut
down, or offer evidence of repair plans and/or purchases. Tr. 149, 175. Hollis
stated that all of the unguarded conveyor belts were very visible and should
have been identified during a proper workplace exam. Tr. 152-53.

On
cross-examination, Hollis stated that while he observed workers cleaning
miscellaneous trash around the secondary plant, he did not see or find evidence
of workers walking near any of the tail pulleys. Tr. 157-58. Hollis also stated
that prior to the November 17, 2011 inspection, Respondent had not received any
104(d) unwarrantable failure orders during the mine’s recorded inspection
history. Tr. 155. In regards to the ½ belt cited in Order No. 8637423, Hollis
confirmed that he had previously inspected the mine and had not found a reason
to issue guarding violations at this belt. Tr. 165-66. Hollis additionally
stated that he did not observe any belt adjustment or maintenance work at the
time of the inspection and did not question Respondent’s management regarding
their belt maintenance procedures. Tr. 162.

When
questioned by the Court on the difference between high negligence and reckless
disregard, Hollis stated:

“Reckless disregard, you know, is – is, again, the
operator displays essentially a total lack of concern of what they’ve got
there… High negligence is, okay, I knew about it—the mine operator knew about
it. They haven’t taken steps to take care of it immediately, but they have
taken steps to take care of it in the long term, over the – a longer period of
time.

They knew about it; they haven’t taken care; but maybe
they’ve ordered the parts. Maybe they’ve ordered the material to fix it. …”

Tr. 181.

B.    
   Respondent

Operations
Manager Sean Cotham testified for Respondent regarding the November 17
inspection and conveyor belt operations at the mine. Cotham confirmed that he
accompanied Inspector Hollis and he agreed that the tail pulleys cited in
Citation No. 8637419 and Order Nos. 8637420, 8637421, 8637422, and 86374255
were not properly guarded at the time of the inspection. Tr. 223, 229,231, 236,

250. For Order Nos. 8637423 and 8637424, Cotham stated the guarding present at
     those tail pulleys had always been installed in that manner and had recently
     been inspected by MSHA in August 2011 without adverse action or warnings. Tr.
     244, 248.

Cotham stated
that he had previously accompanied MSHA inspectors on other inspections at
other operations and at Respondent’s plant. Tr. 189. However, he testified that
he had never previously been involved in a hazard complaint or 104(d)
unwarrantable failure action. Tr. 191, 225. Cotham stated that he informed
Inspector Hollis during the inspection that the guards had likely been damaged
by skid-steer cleaning. Tr. 230. Cotham maintained that neither he nor Forman Childress
told Inspector Hollis that the guards were not being repaired due to
“production needs”. Tr. 224. Cotham testified that he was unfamiliar with the
consequences of a 104(d) order and that he decided to say as little as possible
after Inspector Hollis informed him that he intended to issue 104(d) orders for
the missing guards. Tr. 224-25.

Cotham
also testified in detail regarding conveyor belt operation, clean up, and
maintenance work at Respondent’s secondary plant. Cotham stated the vast majority
of clean-up operations were performed by the two skid steer operators assigned
to that specific duty. Tr. 207. Cotham explained that maintenance and
supervision personnel traveled the secondary plant in trucks. Tr. 218. Cotham
maintained that while foot traffic was not prohibited in the secondary plant,
there was no reason to walk through the secondary plant. Tr. 217-218. Cotham
also testified that greasing and routine maintenance tasks were performed between
shifts with the main electrical disconnect to the plant locked and tagged out. Tr.
216-17. On re-direct, Cotham stated that prior to the November 17 inspection, Respondent
had both hired an extra maintenance worker and purchased additional expanded
metal to better respond to ongoing problems with damaged guards. Tr. 296.

On
cross-examination, Cotham maintained that if a bearing had to be replaced mid-shift
due to sudden breakdown, the entire plant would be shut down for the repair. Tr.

275. Cotham explained that the extended grease port was used to avoid taking
     the guard off during routine greasing and that he had never observed anyone
     grease a conveyor belt while the belt was moving. Tr. 289. Cotham did state
     that at other mines he had observed belts adjusted with the tail pulley guard
     off and the belt running. Tr. 289. However, Cotham maintained that he had never
     directed such work at any mine and he that he had never observed or directed it
     at Respondent’s mine. Tr. 287-88. Cotham also stated that particularly during
     the night shift, it was possible for a skid steer operator to damage a guard
     without realizing it. Tr. 241-42.

Current
Quarry Foreman Jimmy Maclin testified regarding repair efforts at Respondent’s
plant. At the time of the November 2011 inspection, Maclin was the lead
mechanic in charge of plant and mobile equipment repair. Tr. 301. Maclin
testified that no one worked on foot in the secondary plant while it was
operating. Tr. 302. Maclin stated that equipment was first shut down from the
operator control room and then physically locked out before inspection and
repairs were started. Tr. 303.

Maclin
stated that in the weeks preceding the Novemeber 17, 2011 inspection, Respondent
had been working long double shifts. Tr. 304. Maclin noted that a substantial number
of guards had been damaged during this time, particularly during the night
shift. Tr. 305. Maclin testified that he had instructed the skid steer
operators to slow down and be more careful around the guards. Tr. 305. Maclin
also stated the maintenance crew changed the attachment system for the guards
to decrease damage and also provided additional lighting at the secondary plant
to increase visibility. Tr. 305-06. Maclin stated that in the weeks preceding
the November 17 inspection, guards were “constantly getting tore up” and
guarding repairs were necessary every day. Tr. 304-305.

Maclin
testified that during pre-shift maintenance checks on November 17, the
maintenance crew observed that the 10’s tail pulley guard was damaged. Tr. 307.
Maclin testified that the muddy conditions made it difficult to get close to
the tail pulley itself, but that the crew removed the damaged guard to take
measurements and begin repairs. Tr. 307. Maclin stated that no other guards
were reported damaged that morning. Tr. 308. Maclin stated that the secondary
plant did operate for approximately an hour until the primary crusher broke
down when a piece of metal got into the crusher. Tr. 308, 313. Once the primary
crusher broke down, the operator shut down the secondary plant and the primary
crusher itself was both de-energized and locked out by the maintenance crew. Tr.
308-09.

Maclin
confirmed that none of the conveyor belts at the secondary plant were locked
out until Inspector Hollis directed him to do so at approximately 2:30 PM. Tr.
311-12. However, Maclin maintained that the 10’s belt was not running during
the Nov 17 morning shift and that conditions were so soft at the 10’s belt in
particular that it was very difficult for someone on foot to get near the 10’s
tail pulley. Tr. 314, 317. Maclin stated that prior to November 17, he had told
Foreman Childress that the mine needed to hire different skid steer operators
to avoid persistent guard damage, but that he was not aware of any corrective
actions taken by Foreman Childress. Tr. 321.

V. ANALYSIS

A.               
The Violations

30    CFR § 56.14107
mandates that:

(a)    Moving machine
parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts,
fan blades, and similar moving parts that can cause injury.

(b) Guards shall not
be required where the exposed moving parts are at least seven feet away from
walking or working surfaces

30 CFR § 56.14112(b) requires that:

Guards shall be
securely in place while machinery is operated, except when testing or making
adjustments which cannot be performed without removal of the guard.

The Secretary has presented testimony and photos
demonstrating that tail pulley guards were missing, loose, or insufficient at
seven different locations. The testimony of Respondent’s maintenance foreman
Maclin, indicates that the conveyor belts at these locations were not locked or
tagged out prior to the inspection. Tr. 308-09, 311-12. Thus, the Secretary has
presented sufficient evidence to support his allegations that six separate violations
of 30 CFR 56. 14107(a) and one violation of 30 CFR 56.14112(b) occurred on Nov
17, 2011 at the Respondent’s mine. Respondent has conceded that the missing and
incomplete guards violated the cited standards. Resp. Br., 1. As such, I AFFIRM
the underlying violations contained in Citation No. 8637419 and Order Nos.
8637420, 8637421, 8637422, 8637423, 8637424, 8637425.

I must next determine the following
issues:

1) Did the lack of guarding at the tail pulleys
create a reasonable likelihood of a serious injury and constitute significant
and substantial violations?

2) Did Respondent display a total lack of care in
maintaining pulley guards and thus demonstrate a reckless disregard for the
requirements of the Mine Act?

3) Were the violations an unwarrantable failure to
comply with a mandatory safety standard?

4) Were Citation No. 8637419 and Order Nos.
8637420 and 8637422 the result of Respondent’s flagrant disregard for miner
safety?

B.                
Significant and Substantial

Inspector Hollis testified
specifically about the physical conditions of each guard individually and the
Secretary re-iterated these findings within her post-hearing brief arguments
concerning the S&S determinations. Sec’y Br., 20-23. However, when
testifying about repair, greasing, foot traffic, and possibility of injury at
the secondary plant, Inspector Hollis testified primarily in general terms that
applied to all seven of the cited conditions. As such, I have combined the S&S
analysis of the seven cited conditions in one section. I have considered and
noted all relevant specific evidence in making my individual S&S findings
for each citation. Nonetheless, I find that the Secretary has not demonstrated
a reasonable likelihood of a serious injury resulting at any of the cited
locations.

I have already found that the
Secretary has established the underlying violation in each of the seven
involved orders. Additionally, as none of the belts were locked out prior to
inspection, the lack of guarding at these locations contributed to the discrete
safety hazard of exposed and energized movable parts.

The Secretary has argued
that this exposure was reasonably likely to cause a serious entanglement injury
through one of three work practices: 1) routine greasing; 2) belt repair and
adjustment; and 3) accidental trips and falls by workers travelling on foot. Sec’y
Br., 18-19. Inspector Hollis felt that an injury was likely in this situation,
in part, because he had previously observed greasing and maintenance operations
performed at other mines with the conveyor belt moving. Tr. 94-95.

However, Operations Manager Cotham
credibly testified that the conveyor belts were only greased between shifts
when the belts were locked and tagged out. Tr. 217. Cotham and Maclin also
testified that the belt repairs were only made with the belts de-energized and
locked and tagged out. Tr. 192-93; Tr. 302-03. Safety meetings conducted in the
months previous to the November 17 inspection directing workers to lock and tag
out machinery before attempting any repairs support this testimony. Resp. Ex.
3, 1-6.

Inspector Hollis testified that he did
not observe anyone greasing or performing maintenance work on an operable or
moving conveyor belt during the November 17 inspection. Tr. 157. Hollis did not
claim to have seen this type of activity in his previous inspections of the mine
or to have been notified of such activity by other inspectors or inspection records.
The hazard complaint does not allege that repair work or greasing was being
performed on moving or energized conveyor belts. Sec’y Ex. 1.

Thus, the Secretary has not provided
any specific evidence refuting Respondent’s credible testimony that greasing was
performed through extended grease ports between shifts with the belts shut off
and repairs were only conducted with the belts locked and tagged out. Furthermore,
Inspector Hollis stated, that if “a miner de-energized a conveyor and shut it
down, there’s no entanglement hazard present.” Tr. 159-160. Additionally, Hollis
himself testified that MSHA regulations allowed belts to be adjusted with the
belt moving under controlled conditions and that the guard would have to be
removed in most situations regardless of whether it had been damaged or not. Tr.

96. Cotham similarly testified that when a belt was trained, all other belts
    were locked out to minimize exposure. Tr. 275-76. As such, I find that
    Inspector Hollis’s testimony regarding past observations at other mines are not
    sufficient to establish the reasonable likelihood of an injury occurring during
    greasing or repair work at Respondent’s mine.

Given the evidence referenced above, I
find that it was not reasonably likely for an injury to occur during greasing
or repair work at any of the seven cited locations. Accordingly, I proceed to
analyzing the likelihood of foot travel occurring at the cited locations and
resulting in an injury.

Respondent argues, in essence, that
workers simply do not walk in the secondary plant except for repair or greasing
work when the belts are shut down and locked and tagged out. Tr. 206-07, 216-17,

302. The photos entered into evidence demonstrate that Respondent does indeed
     use an enclosed skidsteer with an extended rake to clean underneath tail
     pulleys. Resp. Ex. 4, 3-6. Additionally, Operations Manager Cotham credibly
     testified, and the Secretary has not disputed, that the belts are operated from
     an elevated control tower. Tr. 206. Cotham further testified that pre-shift
     inspections were conducted by a drive through inspection and that the front-end
     loader operators worked at the outside rim of the secondary plant. Tr. 218,
303. Cotham also testified that the only time any workers cleaned the secondary
     plant on foot was “whenever the plant was down, something was broke down. And
     of course obviously the plant would be locked and tagged out.” Tr. 215.

Inspector Hollis stated that during
his inspection there were workers picking up garbage around the secondary plant
but he did not see anyone walk or work near the tail pulleys. Tr. 157. The presence
of workers on foot cleaning miscellaneous trash on November 17 is reasonably
explained by Maclin’s credible testimony that the primary crusher broke down
earlier that day and the plant was idled. Tr. 313. Maclin’s testimony that the
plant was idled is also substantially corroborated by the fact that only one of
the seven belts was moving at the time of the inspection and Hollis did not
observe any skid steer traffic. I do note that while the majority of secondary
plant belts were shut off, it appears Respondent did not follow its own policy
in locking and tagging out the secondary plant while cleanup work was performed
on foot. Tr. 308-09. However, having already found that the missing and
inadequate guards constituted a violation, this evidence is most properly
considered in my negligence findings.

Additionally, the mere presence of
workers on foot within some areas of the secondary plant does not automatically
make a guarding violation reasonably likely to result in an injury. An ALJ has previously
found guarding violations to be non-S&S when the Secretary did not show a
likelihood or reason for workers to travel near exposed tail pulleys. Bob
Bak Construction, 28 FMSHRC 817, 830 (ALJ Manning)(Sept 2006)(finding
guarding violation non-S&S when majority of work in area was performed from
within protected skidsteers and loaders but some foot traffic occurred). A
Commission ALJ has even relied upon the 7 foot exception of 56.14107(b) and
entirely vacated a 56.14107(a) citation when the judge credited an operator’s
testimony that only skid steers were used to clean up accumulations underneath
exposed rollers while a belt was in operation. C&E Concrete, Inc.,
34 FMSHRC 2987, 2991-92 (ALJ Tureck)(November 2012) (vacating 56.1407(a)
citation and holding that while workers were on foot in the general area they
did not approach within 30 feet of moving conveyor belt per their training). An
ALJ has found a guarding violation to be S&S when the majority of cleanup
work was performed by a skid steer, but in that case the ALJ relied on the fact
that the main roadway of that mine passed within 10 feet of the exposed pulley,
the inspector observed a beaten path passing by the exposed pulley, and there
was a shovel leaning up against a trailer within five feet of the exposed
pulley. Crimson Stone, 27 FMSHRC 980, 985-86 (ALJ Melick)(December 2005).

In this case, Inspector Hollis
observed workers within the secondary plant cleaning up trash, but he did not
observe any of them near any of the exposed tail pulleys. Tr. 157. For Citation
No. 8637419, Inspector Hollis testified that the area surrounding the 10’s tail
pulley was muddy and sloppy, increasing the possibility of a worker tripping
and falling into the exposed tail pulley. Tr. 48. However, while Maintenance Foreman
Maclin similarly described this area as wet and soft, he stated that this
condition made it very difficult for workers to approach the tail pulley on
foot, even if they tried to. Tr. 307, 314. After reviewing the testimony and
entered photos regarding this area, I find that as workers had no specific reason
to approach the 10’s tail pulley, the saturated ground conditions made it even
more unlikely for workers to travel near the 10’s tail pulley either inadvertently
or purposefully. Sec’y Ex. 5; Tr. 314.

Inspector Hollis did observe
footprints near an inadequately guarded tail pulley on the dry side of the
secondary plant. Tr. 144. However, as Manager Cotham credibly testified that
greasing operations were conducted before every shift with the belt
de-energized, the presence of footprints at that area is not surprising or
indicative of foot travel while the belt was operating. Tr. 274-75, 289.

The Secretary has argued, in essence,
that as Inspector Hollis traveled within several feet of the moving belt cited
in Order No. 8637422, it is reasonably likely that Respondent’s workers could
and would have done the same. Sec’y Br., 22. I do not agree. The inspection
photo of this tail pulley does not indicate that there is a build-up of
material or even that the belt is conveying material. Sec’y Ex. 17. As such,
the Secretary has not shown that at this location workers had a production
reason to approach this conveyor belt. Manager Cotham credibly testified that
workers were trained and warned about the dangers of pinch points and moving
conveyor belts. Tr. 197-98. Respondent has introduced records of safety meetings
focusing on the dangers of conveyor belts in the months prior to the November
17th inspection. Resp. Ex. 3, 1-6. None of the pictures presented by the
Secretary showed trash in the area of the tail pulleys. Sec’y Ex. 5, 8, 13, 17,
21, 25, 29. As such, I find that Respondent’s workers on temporary clean-up
duty did not have a reason to approach the tail pulleys and had recently been
specifically warned about the dangers of conveyor belts. Tr. 197-98. Therefore,
I find that the Secretary has not shown that workers traveled, or would travel,
near enough to any of the cited tail pulleys for there to be a reasonable
likelihood of an injury occurring.

While the Thompson
Bros decision instructed ALJs to consider the vagaries of human conduct,
including carelessness, in determining whether a guarding violation in fact
occurred, the Secretary has not shown a confluence of factors existed at any of
the cited locations that made an injury reasonably likely to occur. Thompson Bros. Coal,
6 FMSHRC 2097 (upholding violation and S&S designation when Commission
found mechanics were likely to make adjustments with engine and unguarded
cooling fan running). In making my S&S findings, I am not requiring
the Secretary to show that it was reasonably likely for a worker on foot to
actually contact the exposed tail pulley while it was energized. However, the
Secretary has not shown anything more than a remote possibility of a worker on
foot even entering the area around the exposed tail pulleys in which in injury
could occur.

In making this ruling, I am aware
Commission precedent emphasizes that a worker’s exercise of caution does not
mitigate the S&S nature of a violation. Eagle Nest, Inc., 14 FMSHRC
1119, 1123 ( July 1992)(rejecting ALJ’s ruling that extensive water
accumulation ranging from 16 to 48 inches deep in an entry way subject to
mandatory examinations was non S&S because examiner could step cautiously
while wading through murky water). However, in that case, an examiner had to
enter the deep pool of water where injury was reasonably likely to occur in
order to comply with the inspection requirements of the Mine Act. Id. at
1121. The facts of this case present a much different degree of exposure, as
the Secretary did not show that workers on foot were required or reasonably
likely to enter the area in which an entanglement injury could occur. Furthermore,
the Respondent has presented credible evidence demonstrating that workers do
not travel on foot near the tail pulleys during operation. Tr. 206-07, 215,
302; Resp. Ex. 4, 3-6.

Therefore, I find that the Secretary
has not established a reasonable likelihood of an injury occurring at any of
the cited locations. As such, the likelihood of injury for Citation No. 8637419
and Order Nos. 8637420, 8637421, 8637422, 8637423, 8637424, 8637425 is hereby MODIFIED
from “reasonably likely” to “unlikely.” Additionally, Citation No. 8637419 and
Order Nos. 8637420, 8637421, 8637422, 8637423, 8637424, 8637425 are also MODIFIED
from “S&S” to “non-S&S.”

C.               
Gravity

For Citation No. 8637419
and Order Nos. 8637420, 8637421, 8637422, 8637423, and 8637425, Inspector
Hollis testified that the exposed fluted tail pulleys at these areas were
likely to cause a fatal injury if a worker became entangled as a worker’s
entire body could be dragged in. Tr. 58-59, 76-77, 101, 112, 122-23, 146. For
Order No. 8637424, Hollis determined that because the wings of the No. 4 tail
pulley were bent, that while a worker could lose a hand or arm, he did not
believe this tail pulley could hold someone in long enough to cause a fatal
injury. Tr. 133. Respondent did not directly contest the severity of injury
designations for these citations at hearing or within their post-hearing brief.
After reviewing the parties’ testimony and inspection photos, I find the Secretary
has produced sufficient testimony and evidence for me to uphold Inspector
Hollis’s severity of injury determinations for all six orders and one citation as
written.

D.               
Negligence

The Secretary has alleged
that the violations found at each of the seven cited locations were the result
of Respondent’s reckless disregard for the Mine Act and Worker Safety. Respondent
disputes this finding and argues, in essence, that it acted with, at most,
moderate negligence for all of the violations.

The Mine
Act defines reckless disregard as conduct which exhibits the absence of the
slightest degree of care, high negligence as actual or constructive knowledge
of the violative condition without mitigating circumstances; moderate negligence
as actual or constructive knowledge of the violative condition with mitigating
circumstances; and low negligence as actual or constructive knowledge of the
violative condition with considerable mitigating circumstances. 30 CFR § 100.3:
Table X. The Secretary and Respondent both set forth their negligence arguments
in a general cumulative fashion. Sec’y Br. 23-27; Resp. Br. 15-17. However, I
have analyzed the specific circumstances and operator’s level of knowledge
regarding each location individually and have set forth my negligence findings
separately for each citation.

1. Citation
No. 8637419

Inspector
Hollis testified that when he asked Operations Manager Cotham why the missing
guard at the 10’s belt had not been replaced, Cotham replied “production needs”
and indicated that he had been aware of the missing guard prior to the
inspection. Tr. 62-63; Sec’y Ex. 2, 5-6. After reviewing Inspector Hollis’
inspection notes, it appears that Hollis incorporated this alleged statement
into the text of every other citation. Sec’y Ex 2. 5-6; Sec’y Exs. 7, 11, 15,
19, 23, 27. Hollis did testify that although he did not observe any ongoing
repairs at the time of the inspection, Cotham informed him that he had previously
instructed his staff to “get the guards fixed.” Tr. 63; Sec’y Ex. 2, 4-5. Inspector
Hollis’s testimony that Foreman Childress told Hollis that he knew guards had
been missing for “two to three” days is supported by Hollis’s general
inspection notes. Tr. 151; Sec’y Ex. 2, 6.

Cotham
testified that he was not aware of the cited missing guards prior to the
inspection and that he never told Inspector Hollis “production needs” had
prevented the guards from being replaced. Tr. 223-24. Maintenance Foreman
Maclin testified that he first learned that the 10’s guard was damaged early on
the morning of November 17. Tr. 307. Maclin stated that his maintenance crew
began fabricating a new guard for this location until repair efforts were
directed to the primary crusher when it broke down. Tr. 308. Maclin maintained
that although some areas of the wet plant operated briefly on November 17, the
10’s belt did not run on the morning of November 17. Tr. 317. Foreman
Childress, who was responsible for pre-shift inspections at the secondary plant,
did not testify at the hearing. Tr. 326.

After
reviewing the parties testimony and Inspector Hollis’s inspection notes, I find
that when Cotham and Childress stated they knew about “guards” being off prior
to the inspection, they were most likely referring to their general knowledge
of the ongoing problem of skid steers damaging guards and requiring repair
rather than to longstanding knowledge of any specific missing guard.. Sec’y Ex.
2, 4-5; Tr. 280; Tr. 304. I also find that any comment from Cotham referencing
“production needs” was most likely a statement explaining how the guards were
damaged in the first place, given Cotham’s belief that using skid steers to
clean around the tail pulleys was both the most safe and efficient method. Tr.

287. It is simply not credible to conclude that Cotham, given his reticence and
     concern about saying something to Hollis that would make matters worse, would
     claim “production needs” trumped safety repairs in such an inflammatory and
     self-incriminating statement. Tr. 255.

Nevertheless,
it is clear that the 10’s guard was completely torn off the tail pulley prior
to the beginning of the November 17 morning shift. It is unclear whether
Foreman Childress took any action or even noted this obvious condition during
his required pre-shift inspection. Tr. 256-57. However, Foreman Maclin credibly
testified that the maintenance crew began fabricating a new guard once they noted
the problem during pre-shift maintenance check, and maintained that the 10’s
belt was not run that morning. Tr. 317. However, neither Childress nor Maclin locked
and tagged out the 10’s belt or barricaded the belt from access. Tr. 311, 314. As
such, I am left to determine whether uncompleted repair efforts and a failure
to lock and tag out a conveyor belt with a known missing guard constitutes
reckless disregard for worker safety. In these specific circumstances, I find
that due to Respondent’s credible evidence of general safety measures and
specific repair attempts on the 10s guard, the Secretary has not shown that Respondent’s
management acted with a complete absence of care for worker safety at this
location.

As a
general matter, Respondent presented credible and undisputed evidence that it
took considerable efforts to protect workers from entanglement hazards prior to
the November 17 inspection. Management conducted safety talks emphasizing the
importance of avoiding pinch points and locking and tagging out conveyor belts
when movable parts needed repairs. Tr. 197-98. Skid steers and water trucks
were used for routine cleaning at tail pulleys, distancing workers from the
tail pulleys. Tr. 204, 209. When night work led to an increase in guard damage,
additional light towers were brought in as an attempt to prevent further
damage. Tr. 305-06. Due to the increase in guard damage, the maintenance crew
began installing quick repair panels. Tr. 305-06. While not determinative, I
note these measures and Respondent’s clean accident and inspection history
leading up to this inspection in finding that the Secretary has not shown that Respondent
had a history of operating with indifference to MSHA regulations or worker
safety. Resp. Br. 17.

After
identifying the missing 10’s guard on November 17, Foreman Maclin apparently did
not believe the unguarded tail pulley at the 10’s belt needed to be locked and
tagged out because the belt was not running that morning and miners did not
normally work on foot in this area. Tr. 317, 322. This attitude failed to
consider the remote possibility of unplanned foot traffic and the 10’s belt
being inadvertently energized and fell below the high standard of care imposed
by the Mine Act on operators. However, I find Maclin’s action did not
demonstrate a complete absence of care for worker safety. Maclin did promptly direct
his crew to fabricate a new guard and under normal conditions the 10’s guard
would have been replaced within several hours if not for the primary crusher
breaking down. Tr. 308. This type of corrective action, albeit incomplete,
corresponds with Inspector Hollis’s explanation of the difference between high
negligence and reckless disregard:

Reckless disregard, you know, is – is, again, the
operator displays essentially a total lack of concern of what they’ve got
there. … High negligence is, okay, I knew about it—the mine operator knew about
it. They haven’t taken steps to take care of it immediately, but they have
taken steps to take care of it in the long term, over the – a longer period of
time.

They knew about it; they haven’t taken care; but maybe
they’ve ordered the parts. Maybe they’ve ordered the material to fix it.

Tr. 181.

The
Secretary has urged me to discount Respondent’s testimony regarding ongoing and
planned guard repairs prior to Hollis’s inspection. The Secretary has
essentially argued that as Respondent failed to detail these repair efforts
during the inspection or closeout meeting, these claims lack credibility. Tr.
151, Sec’y Br., 26. I disagree. Inspector Hollis himself testified and recorded
in his inspection notes that Operations Manager Cotham informed him that he had
previously requested maintenance workers to repair damaged guards. Tr. 63;
Sec’y Ex. 2, 4-5. Operations Manager Cotham testified credibly that he was not specifically
aware that the 10’s guard was missing prior to the inspection, and as he was
offsite on the morning of November 17, it is not surprising that Foreman Maclin
had started repairs, according to company policy, without notifying Cotham or
other management officials. Tr. 190, 223, 303. At hearing, Cotham named Dwight
Sisk without hesitation as the extra individual hired prior to the November 17
inspection to assist with guard repairs. Tr. 296-97. As such, Cotham and Maclin
testified with sufficient specificity and corroboration by Inspector Hollis’s
own testimony for me to conclude that repair efforts had actually started on
the 10’s belt prior to Hollis’s inspection.

Furthermore,
although the secondary plant operated some belts for approximately an hour
before the primary crusher broke down, all evidence indicates that the 10’s
belt was deactivated and the only workers who may have traveled in that general
area were skid steer operators enclosed in a protective cab. Tr. 317, 322. The
10’s belt was not running at the time of Hollis’s inspection while the plant
was idled and I have held that the saturated ground conditions made it highly
unlikely for workers on foot to approach the unguarded tail pulley. Tr. 55,

307. Thus, the possibility of injury was extremely remote under these specific
     circumstances. Most critically, as I have held that Respondent made genuine, if
     incomplete efforts to repair the 10’s guard, I find that Respondent did not act
     with deliberate disregard for an unjustifiable risk of harm. As such, the
     negligence designation for Citation No. 8637419 shall be MODIFIED from
     “reckless disregard” to “high.”

2. Order
No. 8637420

Inspector Hollis
testified and referenced inspection photos showing that the guard at the
wetside return conveyor was completely missing. Tr. 76; Sec’y Ex. 9. Although
maintenance Foreman Maclin testified that he was not aware of any missing
guards other than at the 10’s belt, the submitted photo depicts a clearly
obvious exposed tail pulley. Tr. 308; Sec’y Ex. 9. As such I hold that Respondent’s
management, notably Foreman Childress, should have identified the missing guard
during the November 17 pre-shift examination. Tr. 153-54. However, as I have
held earlier that all cleaning work during operations was performed from within
a protective cab and workers relied on their training and did not approach the
tail pulley on foot when the plant was idled, the Secretary has not shown that Respondent
deliberately disregarded an unjustifiable risk of harm. I also again take note
of Respondent’s general proactive measures of conducting safety meetings
focused on the dangers of moving parts, increasing lighting, and attempting to
install more resilient guards. While these measures are not sufficient specific
mitigating circumstances to reduce the negligence level to moderate, they do
demonstrate that Respondent took measurable efforts in preventing entanglement
injuries. As such I hold that the negligence designation for Order No. 8637420
shall be MODIFIED from “reckless disregard” to “high.”

3. Order
No. 8637421

Inspector
Hollis testified and introduced an inspection photo showing that the back of
the guard at the 6x16 tail pulley was missing. Tr. 93; Sec’y Ex. 13. In the
inspection photo, the tail pulley is approximately 6 inches above the ground with
the top of and sides of the guard intact thus appearing to substantially guard
the tail pulley from incidental contact. Sec’y Ex. 13. This defect could have been
missed during a routine pre-shift examination due to ordinary human error or an
imperfect inspection angle rather than a total absence of care. Furthermore,
the tail pulley is set back from the top and side guards approximately six
inches and the extended grease fitting is clearly intact. Sec’y Ex. 13. As
such, it appears that only a deliberate attempt to access the tail pulley with
the conveyor belt moving in violation of Respondent’s safety provisions could
result in an injury. I find the fact that this guard was substantially intact
and the defect was not readily apparent from all angles to be mitigating
factors. Therefore, I find that the failure to identify and correct this condition
shall be MODIFIED from “reckless disregard” to “moderate” negligence.

4. Order
No. 8637422                                                    

Inspector
Hollis testified and introduced a photo showing that the guarding at the blend
conveyor belt tail was insufficient. Tr. 107; Sec’y Ex. 17. Hollis testified
and the inspection photo appears to show that the blend conveyor belt was
running at the time of the inspection. The photo shows that there is only some
partial guarding on one side of this tail pulley and the tail pulley is exposed
on the top, bottom, and near side. Sec. Ex. 17; Tr. 107. Operations Manager Cotham
confirmed that the guard was missing at the time of the inspection but
maintained that workers did not walk in the area of this tail pulley and all
cleaning during operations were performed by a skid-steer or water truck. Tr.

236. As noted above, Inspector Hollis testified that he did not see any workers
     walking in the area of any of the cited conveyor belts, including the blend
     conveyor belt at issue in this order. Tr. 157.

As both
Cotham and Maclin credibly testified that they did not know that this particular
guard was missing prior to the inspection, I find that Respondent’s management
did not have actual knowledge that this guard was missing. Tr. 237, 308. However,
the area of exposure was obvious enough that Respondent’s management, namely Foreman
Childress, should have identified this condition during the November 17 pre-shift
inspection. Tr. 153-54. Still, as cleaning operations were performed from
within a protective cab and workers relied on their training and did not
approach the tail pulley on foot when the plant was idled, the Secretary has
not shown that Respondent deliberately disregarded an unjustifiable risk of
harm in failing to identify and correct this condition. I also again take note
of Respondent’s general proactive measures of conducting safety meetings
focused on the dangers of moving parts, increasing lighting, and attempting to
install more resilient guards. While these measures are not sufficient specific
mitigating circumstances to reduce the negligence level to moderate for this
citation, they do demonstrate that Respondent took measurable efforts in
preventing entanglement injuries. As such, I hold that the negligence
designation for Order No. 8637422 shall be MODIFIED from “reckless
disregard” to “high”.

5. Order
No. 8637423

Inspector
Hollis testified and introduced an inspection photo showing that while the ½ tail
pulley was guarded on the top, sides, and rear, the side guards failed to cover
approximately two to three inches of the bottom of the tail pulley. Tr. 119;
Sec’y Ex. 21. Operations Manager Cotham credibly testified that this guard had
been in place as pictured during previous inspections by Mr. Hollis and other
MSHA inspectors as recently as August 2011. Tr. 245-46. Hollis confirmed that
he had previously inspected Respondent’s plant without issuing guarding
violations but maintained he would have issued a citation if he had observed
this condition. Tr. 165. After reviewing the inspection photo and the language
of the standard, I find that as there is a visible area of limited exposure, Inspector
Hollis was within his authority to determine that additional guarding was
needed. However, the bottom rail of the side guard is intact, indicating that
this guard had not been recently damaged and was likely in this condition
during previous MSHA inspections. Sec’y Ex. 21. As such, the pre-existing guard
reduced the risk of contact all but entirely and it was reasonable for Respondent
to conclude on the basis of previous inspections that the guard was sufficient.
Having found that the minor deficiencies of the pre-existing guard were not apparent
during a regular pre-shift inspection, I hold that the negligence designation
for Order No. 8637423 shall be MODIFIED from “reckless disregard” to
“low.”

6. Order
No. 8637424

Inspector Hollis
testified and referenced an inspection photo showing that the guarding at the
4” tail pulley had an opening in the right side of the guarding. Tr. 130; Sec’y
Ex. 25. Inspector Hollis did not testify or list in his notes how large this
opening was but did state that it was large enough to allow for accidental
contact. Tr. 130; Sec’y Ex. 24. The inspection photo does not show the entire
guard or the opening itself, but shows a close-up view of the tail pulley.
Sec’y Ex. 25. The photo appears to have been taken very close to the guard as
the expanded metal webbing of the guard is visible in extreme close-up on the left
hand side of the photo. Sec’y Ex. 25. On cross examination, Inspector Hollis
maintained that he did not take the photo from inside of the guard and that he
took the photo from that point because he wanted to show the exposed tail
pulley. Tr. 167. Manager Cotham testified that he considered the tail pulley at
this location substantially guarded, and stated that this guard had been in the
same condition during recent MSHA inspections and had not been cited. Tr. 248. Although
Inspector Hollis stated that he believed the opening was large enough for
accidental contact to occur, without an estimation of the size of the opening
or a picture of the opening itself, I cannot conclude that the opening was
large enough to be readily apparent during a pre-shift inspection. In fact, the
inspection photo and both parties testimony indicate that the tail pulley was
substantially, if not completely guarded, and the opening was of limited size
and exposure. Sec’y Ex. 25. As the Secretary has not shown that the violative
condition at this location was readily apparent, I find that the negligence
designation for Order No. 8637424 shall be MODIFIED from “reckless
disregard” to “low”.

7. Order
No. 8637425

Inspector Hollis testified and
referenced an inspection photo showing that the guarding at the dry side return
belt was insufficient. Tr. 143; Sec’y Ex. 29. In the inspection photo, only one
side of the tail pulley is visible but it appears that this belt was only guarded
with small side guards at the time of the inspection. Sec’y Ex. 29. Manager
Cotham credibly testified that he was not aware that the guarding was damaged
at this area prior to the inspection and stated additional guarding was
normally present at this location. Tr. 249-50. Cotham’s statement is seemingly corroborated
by Inspector Hollis testimony that there was some additional guarding hanging
from the conveyor structure at the time of the inspection. Tr. 143-44. While
the partial guarding visible in the inspection photo did provide some degree of
protection from incidental contact, the area of exposure is apparent enough
that Respondent’s management should have identified this condition during a
pre-shift examination. Tr. 153-54. However, the only workers who entered this
area during operation were skid-steer operators enclosed in protective cabs and
Respondent had begun efforts to completely rebuild all guards in the secondary
plant. Tr. 249, 297. Thus, the Secretary has not shown that Respondent
disregarded an unjustifiable risk of harm or acted with a complete absence of
care in failing to identify and correct this condition. As such, I find that
the negligence designation for Order No. 8637425 shall be MODIFIED from
“reckless disregard” to “high.”

E.                
Unwarrantable Failure

Section
104(d)(1) of the Mine Act requires a finding that the underlying violation is
of a significant and substantial nature. 30 U.S.C. 814(d)(1). As I have found
that the Secretary failed to show that any of the seven violations were S&S,
I find that Citation No. 8637419, shall be MODIFIED from a 104(d)(1)
citation to a 104(a) citation and Order Nos. 8637420, 8637421, 8637422,
8637423, 8637424, 8637425 shall be MODIFIED from 104(d)(1) Orders to
104(a) citations.

F.                
Flagrant Violation Penalty Assessment

As outlined
in the Stillhouse decision, the Secretary may only assess penalties in
excess of $70,000.00 per citation per Section 110 (b)(2) of the Mine Act when
he has shown the violation was a reckless or repeated failure to correct a
hazard that was reasonably likely to result in serious injury. Stillhouse
Mining, 33 FMSHRC 802. For the six orders and one citation in these dockets
before me I have held that Respondent did not act with reckless disregard. I
have also found that the underlying violations in these actions were not
reasonably likely to result in an injury. As such, the Secretary has not shown
two of the elements necessary to support penalty assessments under Section
110(b)(2) of the Mine Act. Therefore, I find that none of the violations at
issue before me to be flagrant.

VI. PENALTY

In
determining the appropriate penalty for a violation, 30 CFR 100.3 generally
directs me to consider:

(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 of the person
charged in attempting to achieve rapid compliance after notification of a
violation.

Additionally, per 30 CFR 100.5, the Secretary determined that all six
orders and one citation warranted a special proposed penalty assessment with
penalties in excess of the standard penalty tables contained in 30 CFR 100.3. However,
the submitted special assessment narrative forms for the citations and orders simply
noted that other guarding violations had been identified on the same day and restated
the gravity and negligence determinations of Inspector Hollis. As such, these
forms do not provide me with a detailed basis to determine the appropriateness
of the specially assessed penalties. Still, the Secretary has argued, in essence,
throughout the hearing and her brief that the multiple guarding violations
found at Respondent’s mine demonstrated such a high degree of negligence that
enhanced penalties are needed. Tr. 13.

The Secretary’s proposed assessments
indicate that the Respondent had a total violation rate of 1.2 per inspection
day with zero repeat violations of the guarding violations at issue. Sec’y
Proposed Assessment Docket SE 2013-50 & 64, Exhibit A. The Secretary stated
at hearing that MSHA had previously issued two guarding citations in 2010, but
later informed the Court that that the two citations were not final when
Inspector Hollis issued the November 17 104(d) citations and orders. The
Secretary’s proposed assessment also indicates that Respondent’s mine is an
average size and that Respondent is a small operator. Sec’y Proposed Assessment
Docket SE 2013-50 & 64, Exhibit A; 30 CFR 100.3, Table III-IV. Although Respondent
has argued that the Secretary has proposed unjustifiably high monetary
penalties, Respondent has not argued or presented any evidence indicating that
the proposed penalties would affect their ability to continue business
operations. I have discussed the gravity and negligence of each citation within
my analysis. Both parties agreed that Respondent abated the violations by
constructing and installing appropriate guards by the next day, November 18,
2014. Tr. 89; Tr. 316. I also note that Jeremy Childress, the foreman
responsible for conducting pre-shift examinations at the secondary plant at the
time of the inspection, was apparently relieved of his management duties at
some point after the November 17 MSHA inspection. Tr. 251, 322.

Using the 30 CFR 100.3 penalty tables as a starting
basis, I find that after accounting for my gravity and negligence findings, the
standard penalty calculation would result in approximate penalties of $1,995.00
for Citation No. 8637419, Order Nos. 8637420, 8637422, and 8637425, $601.00 for
Order No. 8637421, $270.00 for Order No. 8637423, and $121.00 for Order No. 8637424.
However, I believe that increased penalties, specifically due to those guarding
violations that should have been identified during a diligent pre-shift
inspection and because the inadequately guarded tail pulleys had not been
locked and tagged out at the time of the inspection, are warranted in these
specific circumstances. After considering all six statutory penalty criteria,
including the effect on Respondent’s ability to continue operations, I believe
that the following penalties are appropriate:

Citation No. 8637419- $10,000.00

Order No. 8637420- $10,000.00

Order No. 8637421- $2,500.00

Order No. 8637422- $10,000.00

Order No. 8637423- $1,000.00

Order No. 8637424- $500.00

Order No. 8637425- $10,000.00.

Furthermore, I am confident these penalties further the
purpose of the Mine Act in motivating Respondent and other operators to
adequately conduct pre-shift inspections and promptly lock and tag out
unguarded tail pulleys, regardless of the likelihood of injury:

The complete summary of my judgment and
penalty determinations is as follows:

Citation
No.

Originally
Proposed Assessment

Judgment
Amount

Modification

SE 2013-50

8637421

$42,600.00

$2,500.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce
Negligence from

“Reckless
Disregard ” to “Moderate”

8637423

$42,600.00

$1,000.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce
Negligence from

“Reckless
Disregard ” to “Low”

8637424

$31,100.00

$500.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce
Negligence from

“Reckless
Disregard ” to “Low”

8637425

$42,600.00

$10,000.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce
Negligence from

“Reckless
Disregard ” to “High”

SE 2013-64

8637419

$129,400.00

$10,000.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce
Negligence from

“Reckless
Disregard ” to “High”

8637420

$129,400.00

$10,000.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce
Negligence from

“Reckless
Disregard ” to “High”

8637422

$129,400.00

$10,000.00

Reduce Likelihood of Injury from

“Reasonably Likely” to “Unlikely”

Remove Significant and Substantial Designation

Modify 104(d)(1) Order to a 104(a) Citation

Reduce Negligence from

“Reckless Disregard ” to “High”

Total

$547,100.00

$44,000.00

VII. ORDER

Winn
Materials, LLC is hereby ORDERED to pay the Secretary of Labor the total
sum of $44,000.00 within 30 days of this order.[1]  

/s/
David P. Simonton           

David
P. Simonton

Administrative
Law Judge

Distribution: (First Class U.S. Mail)

Angele Gregory, Office of the
Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville,
TN 37219 for Petitioner

Justin Winter, Adele Abrams P.C., 4740
Corridor Place, Suite D, Beltsville, MD 20705 for Respondent

[1]
Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390