Secretary of Labor v. A Mining Group, LLC

Plain-English summary

An MSHA inspector found one fire extinguisher at A Mining Group's limestone quarry was two months overdue for its annual inspection. Judge Priscilla M. Rae held that every extinguisher kept in service must be inspected annually, even if no regulation required the operator to place that extinguisher there, and that the mine operator remained liable for its contractor's missed inspection. She found extremely low gravity because of extensive firefighting equipment, water use, protected machinery, multiple exits, and no evidence that the extinguisher was defective. She also found very low negligence because the operator reasonably relied on an inspection contractor, promptly replaced it, and had more than 50 extinguishers on the property. The citation was modified to no negligence, and the proposed $285 penalty was reduced to $100.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.4201(a)(2)
• Outcome: The violation was affirmed, negligence was modified to none, and a $100 penalty was assessed.
• Key point: An extinguisher kept in service must receive its annual inspection, but strong fire controls and reasonable contractor reliance may substantially reduce negligence and penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

March 24, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

A
MINING GROUP, LLC,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2014-194M

A.C.
No. 08-01340-343320

Mine:
Bushy Hammock Quarry

DECISION AND
ORDER

Appearances:               Brooke
D. Werner McEckron, Esq., U. S. Department of Labor, Office of the Solicitor,
Atlanta, GA for Petitioner

Joshua
Conrad, Plant Superintendent, A Mining Group, LLC, Lamont, FL for Respondent

Before:                        Judge
Rae

This
case is before me upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d).

This
docket involves one citation issued under section 104(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820, (the “Act” or “Mine
Act”), for a violation of mandatory standard 30 C.F.R. § 56.4201(a)(2). A
hearing was held in Tallahassee, Florida on March 10, 2015 at which time the
parties presented evidence and made closing arguments. For the reasons set
forth below, I find the violation has been established and I modify the gravity
and negligence and assess a penalty of $100.00.

On
January 7, 2014, MSHA inspector John Howerton conducted a regular inspection of
the Bushy Hammock limestone mine operated by A Mining Group, LLC (“A Mining”). A
Mining employs twenty miners at this location. The mine has five towers, two
levels each, on which 7,000 gallons of water are poured over screens where the
limestone is washed and sorted and then dropped onto a conveyer belt below. During
his inspection, Howerton found that a fire extinguisher on one of the towers had
not had its annual inspection completed; it was two months overdue. He issued
Citation Number 8732840 under the mandatory standard which requires that all
firefighting equipment be inspected at least every twelve months to ensure the
mechanical parts, the amount and condition of extinguishing agent and expellant,
and the nose, nozzle and vessel are in effective operating condition.

Howerton
assessed the violation as unlikely to cause an injury and of moderate
negligence affecting one person. Should an injury occur it would be expected to
be permanently disabling. Ex. S-1. The Secretary seeks a penalty of $285.00.

A
Mining has stipulated to the fact that the inspection had not been done.[1]
It argues, however, that it had been using the services of an independent
contractor for at least the past eight years to perform the annual inspections.
Tr. 37. The contractor, it argues, rather than A Mining, should have been cited
for the violation. A Mining also argues that this fire extinguisher was not
required by the regulations, which Howerton confirmed, and therefore should not
have been cited.

The regulation imposes strict liability
requiring only that all fire extinguishers in service must be inspected
annually, regardless of whether they are required by another regulation. This
fire extinguisher was in service and available for use by the miners. The fact
that a citation would not have been issued had it not been in place, does not overcome
the requirements of the regulation. The Act further imposes liability upon
operators for the violations committed by an independent contractor. See
Asarco, Inc.-Northwestern Mining Dep’t v. FMSHRC, 868 F.2d 1195 (10th Cir.
1989). I am therefore compelled to find the citation was properly assessed
against A Mining.

The Secretary argues that the gravity of
this violation is unlikely to result in an injury-causing event; however, he
asserts there was a risk of an electrical motor or grease fire which would
cause permanently disabling injuries as a result of the violation. He also
asserts the operator’s negligence is moderate because both monthly inspections of
the fire extinguisher and daily workplace examinations of the towers were
required; therefore, despite having a contractor to conduct the annual
inspections, the operator should have discovered that the annual inspection had
not been performed.

A Mining contests the moderate
negligence assessment based upon the fact that the contractor was responsible
for inspecting this equipment and they discharged the contractor’s services as
soon as they learned of this violation. Additionally, they argue that there
were multiple factors which made the possibility of a fire virtually nonexistent,
which I have considered regarding the gravity of the violation.

Conrad testified that each of the five
towers is equipped with two to four fire extinguishers as well as two-inch fire
hoses on each deck which also serve as a fire suppression system. Tr. 29. The
office, tunnels, and motor control center each have five fire extinguishers in
them as do all of the twenty pieces of equipment they operate, including the
welding carts and trucks. In all, there are more than 50 fire extinguishers on
the property. Tr. 6, 25, 37. When the mine is in operation, the screens are
doused with 7,000 gallons of water to wash the stone, which Howerton agreed
would prevent a fire. Tr. 24. The tower is accessed by miners to perform
maintenance work such as welding when the washer is not in operation, which
Howerton opined would be the most likely cause of a fire. Tr. 24-25. The towers
are not only equipped with fire extinguishers but when maintenance welding is
done, as Conrad explained, the miners put down a fire blanket to catch any
extraneous slag. Tr. 31. There were multiple exit routes from the tower that
would not be hindered by the fire hazards identified by Howerton. Tr. 23. Howerton
stated that unless a miner was standing at the exact location where a fire
broke out, his escape would not be blocked in any way, and would not require
the use of a fire extinguisher. Tr. 23-24. As Conrad stated, the purpose of the
fire extinguishers is not to enable the miners to stand and fight a fire, it is
to provide them with a safe means of escape which was already present. Tr. 44.

The
Secretary also raised concern that an electrical fire at the motor or a grease
fire would not be extinguishable with water. Conrad’s unchallenged testimony
was that the motor is located above the tower and it is equipped with overload
protection which would trip the breaker to the motor before a fire would occur.
Tr. 34. The only grease used on the tower is in a 3/8 inch diameter, 3 inch
long hose which was self-contained and would extinguish a fire. Moreover, the
grease used is not flammable and has a combustion flash point of approximately 450
degrees while the equipment operates at a substantially lower temperature of 50
to 60 degrees above ambient temperature. Tr. 31-38.

Conrad
testified that the annual inspection sticker on the fire extinguisher was
turned to face the back wall and it was locked in place. A miner conducting the
monthly inspections or a workplace examination would not have had cause to check
the annual inspection sticker during the course of his duties. Tr. 34.

Based
upon these factors, I find that the gravity of the violation is extremely low. I
also find significant mitigating circumstances leading me to the conclusion
that the operator did not know and could not have known that its contractor,
hired for the specific purpose of conducting the annual fire inspections, had
missed inspecting this one extinguisher out of the 50 or more on the property. The
condition had existed for only two months and there was no evidence that the
extinguisher, although not required, was not in proper working order. A Mining
discharged the contractor as a result of this violation and hired another
company. The operator has been diligent in its fire prevention efforts. The
negligence is very low.

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
requires that in assessing civil monetary penalties the Commission and its
judges shall consider the 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.

I
have considered each of the six criteria above. The parties did not stipulate
to the size of the operator, the ability to continue in business or the good
faith compliance by the operator. A Mining provided testimony regarding the
size of its business and I have reviewed the Assessed Violation History Report
submitted in the Secretary’s Prehearing Report which was not tendered as an
exhibit but was not objected to by the Respondent in pretrial proceedings. Absent
evidence to the contrary from either party, I assume the penalty I impose will
not affect the operator’s ability to continue in business and that it demonstrated
good faith in abatement of the violation. My gravity and negligence findings
are stated above.

Having
considered the six criteria and given that I have decreased the level of
negligence and gravity of the violation, I find a penalty of $100.00 to be
appropriate.

ORDER

It
is ORDERED that Citation No. 8732840 be MODIFIED to no negligence. It is
further ORDERED that A Mining Group, LLC, pay the Secretary of Labor the sum of
$100.00 within 30 days of the date of this Decision.[2]

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Brooke
D. Werner McEckron, Esq., Office of the Solicitor, U.S. Department of Labor, 61
Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

Joshua
Conrad, Plant Superintendent, A Mining Group, LLC, 19080 West US Highway 98,
Lamont, FL 32336

[1] The parties
have also stipulated to the jurisdiction of Mine Act over the mine as well as
the jurisdiction of the Federal Mine Safety and Health Review Commission and
its judges over this proceeding. They also stipulate to the authenticity of the
citation, the size of the operator, and the history of prior violations for
penalty purposes. Joint Ex. 1.

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