Secretary of Labor v. Oil Dri Production Company

Plain-English summary

Oil Dri Production Company litigated five citations from its Ripley Mine and Mill after settling seven others. Judge L. Zane Gill vacated a fire-hazard citation because MSHA did not prove that accumulated waste had an ignition source. He affirmed a $100 housekeeping violation and three significant-and-substantial, high-negligence violations involving an ineffective start-up warning, inadequate loading-dock illumination, and a truck backing without an alarm or effective observer. The three more serious violations created crushing or struck-by hazards for miners working around plant equipment and delivery trucks. Oil Dri was ordered to pay penalties of $100, $4,300, $4,800, and $6,000, totaling $15,200.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.20003(a), 56.4104(a), 56.14132(b)(1), 56.14201(b), and 56.17001
• Outcome: One citation was vacated and four were affirmed, with total penalties of $15,200.
• Key point: A fire allegation requires proof of an actual ignition hazard, while ineffective warnings and poor visibility around moving equipment can support S&S findings.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner,

v.

OIL
DRI PRODUCTION COMPANY,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. SE 2013-0507 M

A.C.
No. 22-00035-325870

Docket
No. SE 2013-0558 M

A.C.
No. 22-00035-328667

Docket
No. SE 2014-0104 M

A.C.
No. 22-00035-337763

Mine:
Ripley Mine and Mill

DECISION AND
ORDER

Appearances:               Daniel
Brechbuhl, Esq, U.S. Department of Labor, Denver, CO, for the Petitioner;

Douglas
Graham, Esq., Oil-Dri Corporation of America, Chicago, IL, for the Respondent.

Before:                                    Judge
L. Zane Gill

This proceeding, under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994), involves five
section 104(a) citations, 30 U.S.C. § 814(a), issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) to Oil Dri Production
Company at its Ripley Mine and Mill.  The Secretary and the Respondent settled
seven citations prior to trial: 8731992, 8731994, 8731995, 8731999, 8730316,
8730317, and 8730318.  The parties presented testimony regarding the remaining
five citations in Nashville, Tennessee.  In summary, I find that:

·        
For
Citation No. 8731981, the Secretary failed to prove by a preponderance of the
evidence that the accumulated waste material created a fire hazard.  I vacate
the citation;

·        
For
Citation No. 8731989, Oil Dri violated Section 56.20003(a), there was moderate
negligence, and I assess a penalty of $100.00;

·        
For,
Citation
No. 8731997, Oil Dri violated Section 56.14201(b), there was high negligence, the
significant and substantial designation was warranted, and I assess a penalty of
$4,300.00;

·        
For
Citation No. 8731998, Oil Dri violated Section 56.17001, there was high
negligence, the significant and substantial designation was warranted, and I
assess a penalty of $4,800.00;

·        
For
Citation No. 8636886, Oil Dri violated Section 56.14132(b)(1), there was high
negligence, the significant and substantial designation was warranted, and I assess
a penalty of $6,000.00.

Basic
Legal Principles

Significant and Substantial                         

The citation and orders in dispute and
discussed below have been designated by the Secretary as significant and
substantial (“S&S”).  A violation is properly designated S&S “if, based
upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.”  Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).  The question of whether a particular violation is
S&S must be based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987).  S&S enhanced enforcement is applicable only to
violations of mandatory health and safety standards.  Cyprus Emerald Res.
Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999).  The Secretary
bears the burden of proving all elements of a citation by a preponderance of
the evidence.  In re: Contests of Respirable Dust Sample Alteration
Citations: Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov.
1995), aff’d, 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter Res.,
Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s
burden is to prove the violations and related allegations, e.g., gravity and
negligence, by a preponderance of the evidence.”) 

In Mathies Coal Co., the
Commission established the standard for determining whether a violation was
S&S:

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

6
FMSHRC 1, 3-4 (Jan. 1984).

The third element of the Mathies
test presents the most difficulty when determining whether a violation is
S&S.  In U.S. Steel Mining Co., the Commission provided additional
guidance: “[T]he third element of the Mathies formula ‘requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury.’” 7 FMSHRC 1125, 1129 (Aug.
1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984)). 
The Secretary, however, “need not prove a reasonable likelihood that the
violation itself will cause injury.”  Cumberland Coal Res., 33 FMSHRC
2357, 2365 (Oct. 2011) (citing Musser Eng’g, Inc., 32 FMSHRC 1257, 1281
(Oct. 2010)), aff’d, 717 F.3d 1020 (D.C. Cir. 2013).  Further, the
Commission has found that “the absence of an injury-producing event when a
cited practice has occurred does not preclude a determination of
S&S.”  Id. (citing Elk Run Coal Co., 27 FMSHRC 899,
906 (Dec. 2005) and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC
853, 857 (June 1996)).  This evaluation is also made in consideration of the
length of time that the violative condition existed prior to the citation and
the time it would have existed if normal mining operations had continued.  Elk
Run Coal Co., 27 FMSHRC at 905; U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984).[1] 

Negligence

“Negligence” is not defined in the Mine
Act.  The Commission, has, however,

recognized that “[e]ach mandatory
standard … carries with it an accompanying duty of care to avoid violations of
the standard, and an operator’s failure to meet the appropriate duty can lead
to a finding of negligence if a violation of the standard occurs.”  A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983).  In determining whether an
operator met its duty of care, we consider what actions would have been taken
under the same circumstances by a reasonably prudent person familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation.  See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910
(Aug. 1984).

Brody
Mining, LLC,
37 FMSHRC 1687, 1702 (Aug. 2015); Jim Walter Res., Inc., 36 FMSHRC 1972,
1975 (Aug. 2014); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008).  “Thus
in making a negligence determination, a Judge is not limited to an evaluation
of allegedly ‘mitigating’ circumstances.  Instead, the Judge may consider the
totality of the circumstances holistically.” Brody Mining, LLC, 37
FMSHRC at 1702.

Indeed, Part 100 regulations “apply only
to the proposal of penalties by MSHA and the Secretary of Labor; under
both Commission and court precedent, the regulations do not extend to the
independent Commission, and thus the MSHA regulations are not binding in any
way in Commission proceedings.”  Id. at 1701-02 (citing Jim Walter
Res., Inc., 36 FMSHRC at 1975 n.4; Sellersburg Stone Co. v. FMSHRC,
736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the Commission
is bound by the Secretary's proposed penalties … we find no basis upon which to
conclude that [MSHA’s Part 100 penalty regulations] also govern the
Commission.”), aff'g 5 FMSHRC 287 (Mar. 1983)). Although the Secretary’s
part 100 regulations are not binding on the Commission, the Secretary’s definitions
of negligence in those provisions are illustrative.

Mitigation is something the operator
does affirmatively, with knowledge of the potential hazard being mitigated,
that tends to reduce the likelihood of an injury to a miner.  This includes
actions taken by the operator to prevent or correct hazardous conditions. 

Gravity

The
gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), “is often viewed in terms of the seriousness of the violation.”  Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone
Co., 5 FMSHRC 287, 294-95 (Mar. 1983), aff’d, 736 F.2d 1147 (7th
Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr.
1987)).  The seriousness of a violation can be examined by looking at the
importance of the standard which was violated and the operator’s conduct with
respect to that standard, in the context of the Mine Act’s purpose of limiting
violations and protecting the safety and health of miners.  See Harlan
Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver).  The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured.  The
Commission has recognized that the likelihood of injury is to be made assuming
continued normal mining operations without abatement of the violation.  U.S.
Steel Mining Co., 7 FMSHRC at 1130.

Penalty

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

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

The Commission has repeatedly held that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the Section 110(i) criteria.  E.g., Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000).  A judge
need not make exhaustive findings but must provide an adequate explanation of
how the findings contributed to his or her penalty assessments.  Cantera
Green, 22 FMSHRC at 621.

Stipulations

1.      Oil Dri was at
all times relevant to these proceedings engaged in mining activities at the
Ripley Mine and Mill in or near Ripley, Mississippi;

2.      Oil Dri’s mining
operations affect interstate commerce;

3.      Oil Dri is subject
to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq.;

4.      Oil Dri is an
“operator” as that word is defined in section 3(d) of the Mine Act, 30 U.S.C. §
803(d), at the Ripley Mine and Mill (Federal Mine I.D. No. 22-00035) where the
contested citations in these proceedings were issued;

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

6.      On or about May
20, 2013 through May 28, 2013, MSHA Supervisor Inspector Billy Randolph was
acting as a duly authorized representative of the United States Secretary of
Labor, assigned to MSHA, and was acting in his official capacity when
conducting the inspection and issuing the citations from dockets SE 2013-507-M,
2013-558-M, and 2014-104-M at issue in these proceedings;

7.      The citations at
issue in these proceedings were properly served upon Oil Dri as required by the
Act, and were properly contested by Oil Dri;

8.      The citations at
issue in these proceedings may be admitted into evidence by stipulation for the
purpose of establishing their issuance.  The truthfulness or relevancy of any
statements asserted therein is not stipulated to by the parties;

9.      Oil Dri demonstrated
good faith in abating the violations;

10.  Without Oil Dri admitting
the propriety or reasonableness of the penalties proposed herein, the penalties
proposed by the Secretary in this case will not affect the ability of Oil Dri to
continue in business.

Joint
Prehearing Report, pg. 1-2.

Citation
No. 8731981

Inspector
Randolph[2]
issued Citation No. 8731981, pursuant to Section 104(a) of the Mine Act, to Oil
Dri at its Ripley mine May 20, 2013, alleging a violation of 30 C.F.R. § 56.4104(a). (Ex.
S-3)  Section 56.4104(a), a mandatory safety standard, states that “[w]aste
materials, including liquids, shall not accumulate in quantities that could
create a fire hazard.”  30 C.F.R. § 56.4104(a).  The citation alleges:

Oil and other combustible material had
accumulated around the new Ag hot kiln.  55 gallon drums and gallon buckets of
lubricant were stored on the working platform.  Miner[s] are exposed to this
hazard daily during routine maintenance.  Injuries to miners would result in
smoke inhalation, burns, and other disabling injuries.

(Ex.
S-3)

The
citation alleged that an injury was unlikely but could be reasonably expected
to be permanently disabling, one person could be affected, and the violation was
a result of moderate negligence.  Id.  The Secretary argued that the
accumulation of waste materials (excess oil from a kiln stored in open buckets)
could create a fire hazard if exposed to heat because of its inherent combustibility.
(Sec’y Br. at 6)  The Respondent argued that there was no risk of ignition
because the oil’s flashpoint exceeded the temperature in the area. (Resp. Br.
at 7)  The Respondent also argued a lack of fair notice because MSHA inspectors
had never cited Oil Dri for this or identified it as a violation in the past.
(Resp. Br. at 8)  

The Secretary bears the burden of
proving all elements of a citation by a preponderance of the evidence.  In
re: Contests of Respirable Dust Sample Alteration Citations: Keystone Coal Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, 151 F.3d 1096 (D.C.
Cir. 1998); Jim Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ
Zielinski) (“The Secretary’s burden is to prove the violations and related
allegations, e.g., gravity and negligence, by a preponderance of the
evidence.”).  Here, the Secretary must prove by a preponderance of evidence
that waste material accumulated, and that the accumulation “create[d] a fire
hazard.”  30 C.F.R. § 57.4104(a).

The regulation, however, is silent on
the quantity of waste that is allowed to accumulate before a waste pile is
considered to be a fire hazard.  Therefore, the appropriate analysis is 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.”  Canon Coal Co., 9 FMSHRC
667, 668 (Apr. 1987); Rock of Ages Corp. v. Secretary of Labor, 170 F.3d
148, 156 (2d Cir. 1999); Walker Stone Co. v. Secretary of Labor, 170
F.3d 1080, 1083-1084 (10th Cir. 1998).  This test is an “objective – not
subjective – analysis of all the surrounding circumstances, factors, and
considerations bearing on the inquiry in issue.”  Canon Coal Co., 9
FMSHRC at 668.  In Essroc Cement Corp., 33 [F]MSHRC 459 (Feb. 2011) (ALJ
Manning), Administrative Law Judge Manning vacated a citation that alleged a
violation of § 56.4104(a) and found that: “[T]he Secretary did not meet the
burden of establishing that the condition created a fire hazard.  The
flashpoint of hydraulic fluid is quite high and there were no ignition sources
in the area.  A spark or other similar event would be insufficient to ignite
the fluid […] Without a realistic possibility of a fire hazard, there is no
violation.”  33 FMSHRC at 465.

Hecla
Ltd.,
36 FMSHRC 2600, 2604 (Sept. 2014) (ALJ Gill) (footnotes omitted).   

A trunnion is used to rotate the kiln at
Oil Dri’s mine.  High flashpoint oil is used to prevent steel-on-steel contact
where the kiln drum contacts the trunnion.  The oil must be changed frequently.
(Tr. 238:25 – 239:17)  The waste oil at issue here came from the trunnion’s
oil-changes.  Id. 

There is no dispute that high
flashpoint waste oil was stored in buckets on a walkway near the kiln.[3] (Tr. 35:25
– 36:6; Tr. 40:18-23; Tr. 41:13-21; Tr. 241:25 – 242:3; Tr. 275:5-11)  The
Secretary argued that if the oil got hot enough, it would ignite. (Tr. 41:25 –
42:2)  However, Inspector Randolph could not remember what the oil was called
or what the label on the buckets said. (Tr. 119:1-11)  He believed that the trunnion
oil was a mixture of two oils, one with a flashpoint of 250 degrees Fahrenheit,
and the other 700 degrees. (Tr. 44:11-17)  Randolph did not say where he got
this information.  Respondent’s witness, Steve Gibens,[4] testified that
Oil Dri uses 460 oil, which has a flashpoint of 338 degrees Fahrenheit. (Tr.
243:9 – 243:16; Ex. R-7)  I credit Gibens’ testimony regarding the type of oil,
its flashpoint, and its use.

Despite the fact that Randolph testified
that it was hot in the area where the oil was kept (Tr. 40:25 – 41:6), he did
not measure the temperature. (Tr. 118:19-21)  Gibens, however, testified that at
the cap of the trunnion, where the oil is applied, the temperature is
approximately 200 degrees Fahrenheit. (Tr. 245:2-4)  Additionally, the
temperature of the handrails and the catwalk in the area was approximately 150
degrees Fahrenheit. (Tr. 245:5-6)  These temperatures are not high enough to
ignite the oil.  Randolph also testified that there were no open flames in the
area and no other ignition source. (Tr. 32:23 – 33:3; Tr. 42:9-12; Tr. 122:1-4) 
There was no realistic fire hazard here.  The Secretary failed to prove by a
preponderance of the evidence that the accumulated waste material created a
fire hazard.  The citation is vacated.

Citation
No. 8731989 

Randolph issued
Citation No. 8731989, pursuant to Section 104(a) of the Mine Act, to Oil Dri at
its Ripley mine on May 20, 2013, alleging a violation of 30 C.F.R. § 56.20003(a). (Ex. S-4) 
Section 56.20003(a), a mandatory safety standard, states that “[w]orkplaces,
passageways, storerooms, and service rooms shall be kept clean and orderly.” 
30 C.F.R. §
56.20003(a). 
The citation alleges that:

The work walk way adjacent to the RVBM
dryer had spillage running over the toe boards extending down approximately 8
feet in length[,] and also on the tail end of the walkway [there] was spillage
on the steps extending up [the] belt line another 8 foot [sic] approximately. A
slip and fall hazard existed.

(Ex.
S-4)

Violation

The citation
alleged that an injury was unlikely, that an injury could reasonably be
expected to be permanently disabling, one person could be affected, and the
violation was a result of the Respondent’s moderate negligence.  Id.  The
regulation has two elements: 1) the area cited must be a “workplace,” “passageway,”
“storeroom,” or “service room”; and 2) the area shall be kept clean and
orderly.  30 C.F.R. §
56.20003(a).
 The Respondent did not dispute that an accumulation existed, but it argued the
area was not a “workplace” or a “passageway.” (Resp. Br. at 9)

“Workplace” and “passageway” are not
defined in the Mine Act or in the Part 56 definitions section.  The Commission “looks
to the commonly understood definition of the term.”  Taft Prod. Co., 36
FMSHRC 522, 526 (Feb. 2014) (ALJ Gilbert) (citing Nat’l Cement Co., 27 FMSHRC 721,
726 (Nov. 2005);
Jim Walter Res., Inc., 28 FMSHRC 983, 987 (Dec. 2006); Drillex, Inc.,
16 FMSHRC 2391, 2395 (Dec. 1994) (stating that “[i]n general, absent express definitions,
statutory terms should be defined according to their commonly understood
definitions.”)).  However, the ordinary meaning of the words used in a statute
cannot be applied to produce absurd results.  Jim Walter Res., Inc., 28
FMSHRC at 987; Nat’l Cement, 27 FMSHRC at 728.  In Taft, the ALJ
defined workplace as “a place where work is done”; defined passageway as “a way
that allows passage”; and defined passage as a “way of exit or entrance: a road,
path, channel, or course by which something passes.”  Taft Prod. Co., 36
FMSHRC at 526 (citing Merriam Webster’s Online Dictionary).  When
applied to the facts before me, these definitions do not produce absurd results.

Randolph believed the area in question was
a travelway, or passageway, because there were handrails, toe boards, and a
ladder going up to a platform. (Tr. 47:2-8)  Additionally, miners worked in the
area.  Miners did various types of maintenance on the machinery in the area, e.g.,
changing out motors, equipment, belt sheathing, or simply greasing or servicing
equipment. (Tr. 47:12-23)
 No
one was working in the area at the time the citation was written, and there
were no footprints in the spillage. (Tr. 128:15-22)  The Respondent admitted
that miners would access the area from time to time to clean or perform
maintenance. (Tr. 251:18-22) 

A reasonably prudent person familiar
with the mining industry would recognize that the area in question was a
workplace and a passageway.  Accumulation of Oil Dri’s clay product in this
area was thus prohibited under the standard.  See U.S. Silica Co.,
32 FMSHRC 1699, 1706-08 (Nov. 2010) (ALJ Miller); USS, a Div. of USX Corp.,
13 FMSHRC 145, 153 (Jan. 1991) (ALJ Broderick); Brubaker-Mann, Inc.,
8 FMSHRC 1482, 1483 (Sept. 1986) (ALJ Morris).  I conclude that Oil Dri
violated Section 56.20003(a).

Gravity and Negligence

The spillage in question was approximately
four inches deep and eight feet long. (Tr. 49:11 – 50:5)  Randolph
testified that a miner could not access the middle of the belt line without
going through the spillage. (Tr. 131:12-14)  Randolph envisioned slip, trip, and
fall hazards, which could result in restricted duty injuries or worse. (Tr. 49:15
– 50:20)  Randolph believed an injury was unlikely because miners were not in
the area on a regular basis.  Management would have to send a miner to the area
for a specific reason. (Tr. 53:6-16)  Randolph did not expect more than one
person to fall at a time. (Tr. 51:14-20)  I agree.

Randolph characterized the negligence as
moderate because Oil Dri did not have a history of the committing violation, and
it cleaned the area daily. (Tr. 52:9-14)  A reasonably prudent person familiar
with the mining industry would not have allowed clay spillage to accumulate as
it did in this area.  The violative condition should have been found during a
workplace examination.  I agree that this violation arose from moderate
negligence.

Penalty

The operator does not have a history of
violating this standard.  The mine operates 128,832 mine hours per year.  The
operator was moderately negligent.  An injury here could result in lost work
days or restricted duty.  Payment of a penalty will not the affect the
operator's ability to continue in business.  The operator demonstrated good
faith in abating the violation.  For these reasons, I assess a penalty of $100.00.

Citation
No. 8731997 

Randolph issued Citation No. 8731997,
pursuant to Section 104(a) of the Mine Act, to Oil Dri at its Ripley mine on
May 21, 2013, alleging a violation of 30 C.F.R. § 56.14201(b). (Ex. S-5) 
Section 56.14201(b), a mandatory
safety standard, states: “[w]hen the entire length of the conveyor is not
visible from the starting switch, a system which provides visible or audible
warning shall be installed and operated to warn persons that the conveyor will
be started.  Within 30 seconds after the warning is given, the conveyor shall
be started or a second warning shall be given.”  30 C.F.R. § 56.14201(b).  The citation
alleges that:

Five open conveyors were noted as not
having an audible or start up warning system installed.  A system to alert
person who could be exposed of [sic] the hazard of the equipment starting was
not provided.  Other exposed belt conveyors were also not provided with a
warning system.  Crushing fatal injuries are likely to result if normal mining
operation continues to exist with this hazard.

(Ex.
S-5)

Violation

The
citation alleged that an injury was reasonably likely, could reasonably be
expected to be fatal, the violation was significant and substantial, there was
moderate negligence, and one person could be affected. (Ex. S-5)  There is no
dispute that the entire length of the conveyor was not visible from the start
switch. (Tr. 58:8-13; Tr. 234:2-8)  There were approximately five conveyors of
different lengths located throughout the mine. (Tr. 58:18-24)  The Respondent put
on evidence that a manual start-up alarm[5] was in place
and all operators were trained to use it.[6] (Sec’y Br. at
15; Resp. Br. at 10) 
Respondent argued that the citation should be vacated. (Resp. Br. at 10)

It was very noisy in the area where the
conveyors were located. (Tr. 59:3-5)  Inspector Randolph felt that a
permanently installed start-up alarm of some sort was needed to warn miners
working near conveyors to stand clear when the conveyors were about to start. (Tr.
61:15-23; Tr.139:19-23)  During the inspection, Randolph asked the plant operator
and the miners’ representative if there was a start-up alarm for the conveyor
belts.  Both admitted that there was none. (Tr. 55:23 – 56:18; Tr. 61:1-6; Tr.
136:14-20)  Both also admitted that start-up alarm systems had existed in the
past, but none was in place at the time of the inspection. (Tr. 136:14-20)

The day after the inspection, the
Respondent claimed that a manual alarm system was, in fact, in place. (Tr.
64:14-20; Tr. 228:25 – 229:14; Tr. 256:8-11)  The Respondent’s witnesses
testified that miners were trained to activate the alarm before the conveyor
belt was turned on.  But, the miners present during the inspection, including
the plant operator, did not know an alarm system existed. (Tr. 228:18-21; Tr.
279:4-7) 

Respondent’s post-hearing argument
focused on the language of the regulation.  Respondent argued that all the
regulation required was that a start-up alarm system, which could be a manual
alarm, be installed. (Resp. Reply Br. 18-19)  It is true that having a manual
alarm installed can satisfy the standard.  See Tilcon Conn., Inc., 18
FMSHRC 90, 95-96 (Jan. 1996) (ALJ Hodgdon); MSHA, U.S. Dep’t of Labor, Program
Policy Manual, Vol. IV, Part 56/57, at 54 (Feb. 2003: Release IV-21) (stating
the standard “has been uniformly interpreted by MSHA, and its predecessor organizations,
to include both automatic and manual conveyor alarm systems”).  However, merely
installing a manual alarm defeats the fundamental purpose of the Mine Act,
which is to protect the health and safety of miners.  To satisfy the standard,
an alarm must be installed and actually used before the conveyor
starts.  Anything else “would thwart the underlying purpose of the standard
and must be avoided.”  RAG Cumberland Res., 26 FMSHRC 639, 648
(Aug. 2004) (citing Consolidation Coal Co., 15 FMSHRC 1555, 1557
(Aug. 1993)).  Indeed, the purpose of the Part 56 regulations is “the
protection of life, the promotion of health and safety, and the prevention of
accidents.”  30 C.F.R. § 56.1.  The mere installation of a start-up alarm does
not satisfy the purpose of the standard.  I conclude that Oil Dri violated
Section 56.14201(b).

Negligence 

Randolph testified that there was an
alarm mechanism for shut-down, but not for start-up. To him, this proved that
the Respondent had to know that there was no start-up alarm. (Tr. 66:16-19)  Randolph
justified the moderate negligence determination because the violating condition
had existed for years, which he felt constituted a form of mitigation based on
“fair notice.” (Tr. 67:21 – 68:2)  It is unclear from the record what Randolph’s
reference to “fair notice” meant or how it related to mitigation.  In general,
fair notice is not considered a mitigating circumstance.  Mitigation is
something the operator does affirmatively, with knowledge of the potential
hazard being mitigated, that tends to reduce the likelihood of an injury to a
miner.  Nonetheless, Oil Dri was not performing required workplace exams, which,
if it had, would have alerted miners to the existence or lack of a start-up alarm.
(Tr. 62:22 – 63:2; Tr. 64:5-13; Tr. 135:20-24)

I find that the mine had not used a
start-up alarm system for years, had not been performing workplace examinations,
and the miners, including the plant operator, did not know anything about a
start-up alarm.  It is clear that the Respondent failed to train its employees
properly and failed to perform adequate workplace examinations.  A reasonably
prudent person familiar with the mining industry would have known of the need
for and lack of a start-up alarm system, would have installed such a system,
and would have trained miners to use the start-up alarm before starting the
conveyor.  I conclude that this violation arose from high negligence.

Gravity 

Randolph believed this violation was reasonably
likely to cause a fatal injury because he was aware of fatalities resulting from
this type of violation in the past. (Tr. 62:4-12)  He testified to the danger
inherent in a conveyor starting up when miners are not aware of it. (Tr. 62:4-12)
 Randolph believed that only one miner would be involved if the conveyor
started without an alarm. (Tr. 65:17-21)  I agree with the inspector’s
assessment.

Significant and Substantial

The first and fourth prongs of the Mathies
test have been satisfied.  Respondent’s failure to have and use a start-up
alarm created a discrete safety hazard which could have resulted in serious injuries
to a miner.  The remaining question is whether there was a reasonable
likelihood that the hazard contributed to would result in an injury.

Randolph designated the gravity as reasonably
likely to occur because there were multiple conveyors in the plant, and because
the workspace next to the conveyors was confined. (Tr. 62:13-21)  A miner could
be seriously injured by a conveyor starting up without his knowing about it. (Tr.
73:16-20)  It is reasonably likely that an unsuspecting miner working on a belt
could get pulled into the conveyors. 

I conclude that the Secretary proved by
a preponderance of the evidence that the significant and substantial
designation was warranted here.

Penalty

The operator does not have a history of
violations for this standard.  The mine operates 128,832 mine hours annually.  The
operator was highly negligent, and the violation was S&S.  A fatal injury could
have resulted.  Payment of a penalty will not affect the operator’s ability to
continue in business.  The operator demonstrated good faith in the abatement of
the violative condition.  I assess a penalty of $4,300.00.

Citation
No. 8731998 

Randolph issued Citation No. 8731998,
pursuant to Section 104(a) of the Mine Act, to Oil Dri at its Ripley mine on
May 21, 2013, alleging a violation of 30 C.F.R. § 56.17001. (Ex. S-6)  Section
56.17001, a mandatory safety standard, states that “[i]llumination sufficient
to provide safe working conditions shall be provided in and on all surface structures,
paths, walkways, stairways, switch panels, loading and dumping sites, and work
areas.”  30 C.F.R. § 56.17001.  The citation alleges that:

The
truck warehouse loading dock employee is stated [sic] to average 4 to 6 trucks
at night being loaded.  The illumination where the trucks back up into the
locking system was not adequate. The light directly above the loading surface
perimeter would not come on.  Also four other lights surrounding the dock area
was [sic] not working.  Miners climb down the dock and manually chock the truck
wheels at times.  A hazard to one of these miners exist [sic] of being crushed
by a truck due to poor illumination.

(Ex.
S-6)

Violation

The citation alleged that an injury was
reasonably likely, could reasonably be expected to be fatal, the violation was
significant and substantial, there was a high degree of negligence, and one
person could be affected. (Ex. S-6)  The parties disputed whether there was
sufficient illumination at the loading dock.

The Commission has found that the judge must
make a factual determination based on the working conditions in the cited area
and the nature of the illumination provided to determine whether there was “illumination
sufficient to provide safe working conditions.”  Capitol Aggregates, Inc.,
3 FMSHRC 1388, 1388 (June 1981), aff’d, 671 F.2d 1377 (5th Cir. 1982)
(unpublished table decision).  Randolph admitted that MSHA’s standards do not speak
of a minimum number of lights.  It is up to the inspector to determine whether
there was sufficient illumination. (Tr. 148:21 – 149:15)

Randolph testified that when he
inspected the loading dock it was dark.  Five out of the seven lights installed
at the loading dock were not working. (Tr. 75:15-19; Tr. 78:20 – 79:1; Tr.
145:9-17; Ex. S-6)  He asked workers at the dock if the lights could be turned
on.  The lights were burnt out, not turned off. (Tr. 79:4-11)  Respondent
admitted that at least one of the loading dock’s main lights was not
functioning on the day of the inspection. (Tr. 255:25 – 266:15)  

Randolph testified that when a truck backed
into the loading dock, there was an area approximately 150 feet in back of it with
no light at all.  (Tr. 145:9-17)  He did not think there was sufficient
lighting at the loading dock, particularly in the area where the trucks
maneuvered to back into the dock.  He believed the lack of illumination
violated the intent of the standard, which is to prevent a truck driver from
running over a miner while backing up. (Tr. 156:20-23)

Respondent argued that the lights in the
loading dock area were sufficient to illuminate the dock itself and several
feet beyond it. (Tr. 196:18 – 197:7; Tr. 219:14-20; Tr. 222:24 – 223:2; Tr.
226:16-18) 

Respondent’s photo exhibits R-12 and
R-13 were not taken the day of the inspection.  They were taken at a later date
and showed more working lights than existed at the time of the inspection.  The
photos show a shed with lights which had not been built at the time of the
inspection.  All four lights on the loading dock are on in the photos, even
though the Respondent admitted at least one of them was out at the time of the
inspection. (Tr. 180:15-18; Tr. 284:16-23; Tr. 285:10-16; Ex. R-11) 

Based on Randolph’s testimony and the
photo exhibits R-11, R-12, and R-13, I find that the illumination at the
loading dock was insufficient.  Respondent violated Section 56.17001.

Negligence 

Randolph
chose to classify this violation as involving high negligence because there had
been a fatality at a sister plant under similar circumstances, and the miners
present during this inspection knew about it. (Tr. 81:15-17; Tr. 83:2-9; Tr.
92:3-10; Ex. S-10)  Additionally, Randolph testified that to ameliorate the
lack of lighting, the Respondent should have used a spotter to help drivers back
their trucks into the loading dock. (Tr. 91:11-16)  Respondent used a spotter at
another dock at the same mine site. (Tr. 80:22 – 81:6)  Randolph asked the
miners present during the inspection if the Respondent performed workplace
exams, to which they responded that they did not. (Tr. 75:20-23)  This was an
aggravating circumstance for Randolph.

A
reasonably prudent person familiar with the mining industry would have made
sure that the loading dock was adequately illuminated at night, especially when
trucks back into the dock.  Further, if the Respondent had been performing
workplace exams, the poor illumination issue would have been corrected.  I concur
with Inspector Randolph that this violation involved high negligence.

Gravity

It was reasonably likely that a
pedestrian walking in the poorly lit loading dock parking area could be hit and
possibly killed by a truck. (Tr. 81:10-12; Tr. 90:20-22)   If this were to
occur, it is likely that only one person would be injured. (Tr. 90:24-25) 

Significant and Substantial

The first and fourth prongs of the Mathies
test have been satisfied.  The lack of adequate illumination created a discrete
safety hazard which could have resulted in serious injury.  The remaining issue
is whether there was a reasonable likelihood that the hazard would occur.

Miners loaded five to seven trucks at this
dock every night. (Tr. 81:22-23)  Randolph observed truck drivers getting out
of their trucks and walking around the loading area. (Tr. 89:2-13)  There was poor
visibility due to insufficient illumination.  The truck Randolph saw backing into
the dock area had no back-up alarm (discussed below), and pedestrians were in
the area. (Tr. 92:11-20)  It was reasonably likely that this situation could
result in serious injury to a miner.  The Secretary proved by a preponderance
of evidence that the significant and substantial designation was warranted.

Penalty

The operator had no history of violating
this standard.  The mine operated 128,832 mine hours per year.  The operator
was highly negligent and the violation was S&S.  It was reasonably likely
that a fatality could result from this violation.  Payment of a penalty will
not affect the operator’s ability to continue in business.  The operator the demonstrated
good faith in abating the violation.  A penalty of $4,800.00 is justified and
reasonable.

Citation
No. 8636886 

Randolph issued Citation No. 8636886,
pursuant to Section 104(a) of the Mine Act, to Oil Dri at its Ripley mine on
May 28, 2013, alleging a violation of 30 C.F.R. § 56.14132(b)(1). (Ex. S-7) 
Section 56.14132(b)(1), a mandatory safety standard, states that:

[w]hen the operator has an obstructed
view to the rear, self-propelled mobile equipment shall have
--
(i) An automatic reverse-activated signal alarm;
(ii) A wheel-mounted bell alarm which sounds at least once for each three
feet of reverse movement; (iii) A discriminating
backup alarm that covers the area of obstructed view; or
(iv) An observer to signal when it is safe to back up.

30
C.F.R. § 56.14132(b)(1) (emphasis added).  The citation alleges that:

The 18 wheel over the road customer truck
Freightliner #104 vin# 211J44788 had backed into the loading dock without an
automatic alarm. The fork lift operator stated he was in the area on the ground
at this time [and] stated that he had spotted the truck.  The driver had no
idea of a spotter program and [the] plant supervisor stated they [did not have]
a spotter program. Crushing fatal accident had occurred at another Oil Dry [sic]
plant on Oct. 20th 2010[.]  [T]he company has exhibited aggravated
conduct by not controlling this violation at this operation.

(Ex.
S-7)

Violation

The citation alleged that injury was
reasonably likely and could reasonably be expected to be fatal, the violation was
significant and substantial, it involved high negligence, and one person would
be affected. (Ex. S-7)  This citation was issued a week after the first set of
citations described above, when Randolph went back to the mine for abatement
purposes.  He observed a truck at the same loading dock as the previous week (Tr.
94:10-18) backing up without a back-up alarm or spotter.[7] (Tr. 79:24
– 20:2; Tr. 94:20-22; Tr. 94:24 – 95:2; Tr. 95:25 – 96:6; Tr. 97:18-24)

The Respondent argued that it had an
observer program in place to signal trucks while backing up into the loading
dock. (Resp. Br. at 16)  It argued that as soon as a truck came on site, the
driver was directed by signage to go to the drivers’ lounge to sign in,  receive
instructions and a loading slip, and for the Respondent to tell the driver
which loading dock to use. (Tr. 182:11 – 183:6; Tr. 198:23 – 199:2)  After
that, the miner working the loading dock (the same miner who checked the truck
in) was to observe the truck back into the loading dock and lock the truck into
place. (Tr. 183:19 – 184:3; Tr. 199:19-25)  The Respondent claimed that
if the observer saw a pedestrian miner in the path of a truck backing up, the
observer could stop the truck. (Tr. 222:10-17)

Despite this argument and the testimony
of Respondent’s witnesses, Randolph testified that he saw no spotter or
observer and concluded that no such program was in place, and if it was in
place, it was ineffective. (Tr. 100:13 – 101:25; Tr. 173:2-5)  Indeed, when
Randolph asked a driver if there was a spotter program in place at the loading
dock, the driver denied knowing about it. (Tr. 89:25 – 90:9)  Randolph also asked
Diego Mejia[8]
if the Respondent had a spotter program, and Mejia answered in the negative. (Tr.
179:15-20)  Even
if the Respondent intended for there to be an observer in place, there was no
communication between the miner claiming to be the observer and the driver
backing into the loading dock. (Tr. 90:13-15)  This defeats the purpose of the
standard, which is to protect pedestrian miners from being hit by a truck
backing up. 

I find that there was no observer
program in place, and if Respondent intended for there to be one in place, it
was ineffective.  A reasonably prudent person familiar with the mining industry
would have had an observer program in place, and would have communicated this to
the truck drivers.  Oil Dri violated Section 56.14132(b)(1).

Negligence

Randolph believed this citation arose
from high negligence because there had been a fatal truck accident at a related
company, the Respondent knew about it, and Randolph considered it Respondent’s
responsibility to ensure that a similar accident did not happen again. (Tr. 107:10-14;
Tr. 108:2-7) This was the only testimony regarding the negligence
determination.

This is sufficient evidence to support
the conclusion that a reasonably prudent person familiar with the mining
industry would have assured there was an adequate observation program in place and
properly implemented.  The inspector had been at the mine the previous week
discussing the fatality at the sister plant and the lighting issues at the
loading dock, which implicated a claim by the Respondent that it had an observer
program in place.  This violation involved high negligence.

Gravity

It is likely that a miner would be
killed if hit by a truck backing into the loading dock area. (Tr. 105:15-19)  Randolph
believed that one person would be affected per incident.  (Tr. 105:21-23)  I
agree.

Significant and Substantial

The first and fourth prongs of the Mathies
test have been met.  The failure to have an observer in place to monitor a
truck without an alarm while backing up creates a discrete safety hazard.  This
hazard could have resulted in serious injuries.  The remaining question is
whether there was a reasonable likelihood that the hazard would result in an
injury.

Randolph thought it reasonably likely that
an accident would happen because truck drivers get out of their trucks and walk
around in the loading dock area for various reasons, including chocking their
wheels (Tr. 105:25 – 107:1; Tr. 219:23-220:3) or going into the break room or
bathroom.  This increases the chance that one of them might get hit by another
driver’s truck, particularly at night. (Tr. 102:14 – 103:6; Tr. 1047:6-11; Ex.
S-8)  Randolph felt that the lack of a functioning observer system was unsafe, even
if the lighting issue were resolved. (Tr. 96:10-16)

The Secretary proved by a preponderance
of evidence that the significant and substantial designation was warranted.

Penalty

The operator does not have a history of
violating this standard.  The mine operates 128,832 mine hours per year.  The
operator was highly negligent and the violation was S&S.  A fatal injury could
have resulted.  Payment of a penalty will not affect the operator's ability to
continue in business.  The operator demonstrated good faith in abating the
violating condition.  The Secretary specially assessed this penalty at
$9,300.00.  I find that because Randolph had been at the mine the previous week
discussing the loading dock and the issues that were present, Oil Dri should
have been on notice that greater efforts to comply with the Mine Act were
warranted.  I therefore assess the penalty at $6,000.00.

WHEREFORE, it is ORDERED
that Oil Dri pay a penalty of $15,200.00 within thirty (30) days of the
filing of this decision.

It is further ORDERED that
Citation No.
8731981
be VACATED.

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Daniel
Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E.
Chavez Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204

Douglas
Graham, Esq., Oil-Dri Corporation of America, 410 N. Michigan Avenue, Suite
400, Chicago, IL 60611

[1] It must be
noted that the Fourth and the Seventh Circuits have changed the Commission’s
precedent under Mathies by placing the emphasis and bulk of the analysis
on the second element of the test.  See Knox Creek Coal Corp. v. Sec’y of
Labor, 811 F.3d 148 (4th Cir. 2016); Peabody Midwest Mining, LLC v.
FMSHRC, 762 F.3d 611 (7th Cir. 2014).  This Respondent, however, is not
located in either of those Circuits, and thus, my analysis uses the traditional
Mathies test.

[2] At the time of
the hearing, Randolph had been working for MSHA for approximately 15 years, and
had been a field office supervisor since 2005. (Tr. 21:5-22)  He had
approximately 40 years’ experience in the mining industry before coming to MSHA.
(Tr. 24:15-16)  A trainee, Bill Hyde, was present during the inspections,
shadowed Randolph, wrote the field notes, and assisted in drafting the
citations.  However, at the time of the inspection he was not an authorized
representative, and did not sign his name on the citations.  None of this
decision is based on Hyde’s field notes.

[3] There is a
dispute whether there were rags in the area as well.  However, the only
testimony from Randolph about rags in the area were “yes” answers to two
leading questions from Secretary’s counsel.  Rags were not mentioned in the
citation.  There is no testimony about how many rags there were, where the rags
were located, or whether they were saturated with oil.  There is also no
evidence in the record to show whether or how the rags could ignite.  I
therefore disregard all testimony about the presence of rags in the area.  It
must be noted, however, that even if I found that there were rags in the area,
there was no ignition source, and therefore, no fire hazard.

[4] At the time of
the hearing, Gibens was the plant superintendent. (Tr. 236:9-13)

[5] This case did
not deal with whether a visible warning device was in place.

[6] There had been
no training for a start-up alarm system since August 2011. (Ex. R-6)

[7] The Respondent
argued that there is a difference between a “spotter,” as Randolph testified,
and an “observer,” as the regulation signifies.  It is clear from the record that
“spotter” and “observer” mean the same thing for purposes of this regulation.
(Resp. Br. at 15)  As such, I find the Respondent’s argument unconvincing.

[8] At the time of
the inspection, Mejia was the night shift plant supervisor. (Tr. 177:18)