Loudoun Quarries, Division of Chantilly Crushed Stone, Inc.

Plain-English summary

MSHA cited Loudoun Quarries after finding inoperative brake lights on a parked spare loader and a pickup truck parked on an energized extension cord. Judge George A. Koutras vacated the brake-light citation because the loader had not been placed into service, no full preshift had occurred, and the company's established policy required a complete examination before use. He found that MSHA acted prematurely without showing that the defect would not have been discovered and corrected before the loader entered service. The Judge upheld the extension-cord citation because a cord's own heavy insulation is not the independent bridging or protection required when mobile equipment runs over it. The undamaged cord was tested and the violation was quickly abated, so the non-S&S citation remained at moderate negligence with a $100 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.12005 and 56.14100(b)
• Outcome: The spare-loader brake-light citation was vacated, the extension-cord citation was affirmed, and a $100 penalty was assessed.
• Key point: Parked equipment may be repaired after a pre-use examination, but an energized cord needs protection beyond its own insulation when exposed to mobile equipment.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Telephone No.: (202) 434-9950

Fax No.: (202) 434-9949

March 14, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

LOUDOUN QUARRRIES- DIV/ 

CHANTILLY CRUSHED STONE INC

Respondent 

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CIVIL PENALTY PROCEEDING

Docket No.VA 2011-268

A.C. 44-00071-245642

Loudoun Qrs - Div/ Chantilly Crushed

DECISION

Appearances:  Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for the Petitioner

Joshua E. Schultz, Esq., Law Offices of Adele L. Abrams, P.C., Beltsville,
Maryland, for the Respondent

Before:            Judge Koutras

STATEMENT OF THE CASE

This civil penalty proceeding pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 802, et seq. (2000), hereinafter the “Mine Act,” concern two Section 104(a)
non-significant and substantial (S&S), citations served on the respondent on December 8 and 9,
2010, for alleged violations of mandatory safety standards 30 C.F.R. §§ 56.14100(b) and
56.12005.

A hearing was held on November 9, 2011, in Winchester, Virginia, and the parties
appeared and participated fully therein. The parties waived the filing of briefs, and presented
their respective arguments on the hearing record. I have considered their arguments in the course
of this decision.

The Alleged Violations

Citation number 8578147 is a Section 104(a) non-S&S violation. It was issued on
December 8, 2010, and alleges a violation of 30 C.F.R. § 56.14100(b). It states as follows
verbatim (Exhibit G-l):

When checked there were no brake lights working on the 992 C
Cat front end loader. The loader was on the ready line next to the
shop to be used when needed. The loader was checked by company
employee before inspection and no brake lights was not noted. This
condition put at risk a rear end collision with no warning of
slowing or stopping which could result in lost work time injury if a
collision occurred. S/N 42X00800

Citation number 8578148 is a Section 104(a) non-S&S violation. It was issued on
December 9, 2010, and alleges a violation of 30 C.F.R. § 56.12005. It states as follows verbatim
(Exhibit G-l-4):

At the repair shop was found a company pickup truck that was
parked on an 120 volt electrical cord that was plugged in to the
heater on the truck engine. This condition put at risk employees of
a shock hazard that may be using the cord later and the cord
damaged by the sharp rocks the truck was parked on.

MSHA Inspector David Nichols testified regarding his mining experience, which
included maintenance and repair of mining machinery, ownership of a welding business, and
working with electricity and fiber optic communications. He has served as an inspector for nine
years and received training at the Beckley Mine Academy. He visited the mine on December 7,
2010, in preparation for his inspection the next day and he reviewed the mine files and prepared
his regular inspection information form and discussed it with plant manager, Rick Hoffman. He
issued no citations that day and returned the next day to conduct his inspection (Tr. 27-31).

Mr. Nichols confirmed that he issued Citation No. 8578147, after finding that both of the
992c front-end loader brake lights were not working (Tr. 32, 36; Ex. G-l, and photographic
exhibit G-3). The machine was parked in the “ready line” area where equipment is parked and
available for use as needed, and where spare parts may be obtained for equipment repairs (Tr. 32-34).

Mr. Nichols stated that based on his past mining experience, equipment on the ready line
would have been looked over and made ready for service and to insure that everything is
functional, and all the safety defects are corrected. This would be done in order to insure the
availability of dependable equipment that could quickly be returned to production (Tr. 35).

Mr. Nichols concluded that the operator had an opportunity to look at the loader before
placing it on the ready line because he knew that he would inspect the equipment at that location
and had started the equipment because it was a cold evening. The equipment operator informed
him that it was preshifted “to make sure everything was good” (Tr. 36-37).

Mr. Nichols stated that after observing the inoperative brake lights, the equipment
operator informed him that he did not check them because he did not have a second person
available to assist him in observing the lights. Mr. Nichols confirmed that during his close-out
conference with plant manager, Rick Hoffman, he informed him that if the loader were needed it
would have been inspected and the brake lights problem would have been discovered (Tr. 38-40).

Mr. Nichols believed the inoperable brake lights presented the possibility of a collision
with equipment that is slowing and stopping. However, he determined that the gravity level was
“unlikely” because the loader would be located in the pit and basically driving into the pit and
leaving in the evening, and would necessarily be following other equipment (Tr. 41).

Mr. Nichols believed that any hazardous rear-end collision could possibly result in head
or neck whip lash injuries. However, he considered the fact that mine management has a good
seat belt policy that is well enforced, and that any injury would result in sore muscles and two or
three lost work days (Tr. 42). He further concluded that the violation was the result of moderate
negligence mitigated by the fact that it has a very good preshift inspection policy (Tr. 44).

In response to bench questions, Mr. Nichols stated that the machine back-up alarms and
seat belts were in working order, and no one would be on foot in the pit area where it would be
operated. He confirmed that he extended the abatement time in order to allow the respondent to
order and receive a required light switch and that the respondent has a good reputation for
terminating citations as soon as possible (Tr. 47-49).

On cross-examination, Inspector Nichols confirmed that there is no requirement for an
equipment ready line. However, any equipment in that area must be preshifted before it is taken
off the ready line and placed into service, and it is not considered to be into service until it is
needed.. He did not know how long a piece of equipment can remain on the ready line (Tr. 62-63).

Mr. Nichols stated that the loader was not in operation at the time of his inspection, and
he did not know whether it was intended to be placed in service before he inspected it. However,
the engine was running and the shop employee informed him that he had “checked it out”. Mr.
Nichols did not ask the employee if he conducted a preshift inspection, and the loader was taken
out of service until the brake lights were repaired (Tr. 64-67).

Mr. Nichols believed that the difference between a walk-around check of a vehicle and a
full MSHA required preshift is basically terminology, and would depend on the individual
performing this task. He stated he was informed that the loader was ready for him to inspect, and
not that it was ready to be put in service. He did not believe there should be a difference because
“our standards only specify one type of an inspection of equipment, whether it’s been put in
service or whether I’m there to inspect it, either one” (Tr. 69). He confirmed that there is no
preshift inspection required before a vehicle is inspected by an inspector. He confirmed that there
was no evidence that the loader was operated by anyone with defective brake lights and he did
not know how long they were defective (Tr. 70-71).

Jesus Vega, Respondent’s equipment operator, confirmed that he was working at the
mine on December 8, 2010, and his supervisor, Johnny Taylor, instructed him to check out the
Euclid 96 and 97, and the 992c Dozer. He confirmed that he started the Dozer but was not
instructed to perform a preshift examination and he did not perform one because that was the
responsibility of the operator of that piece of equipment and he did not operate it that day (Tr. 88-91).

Mr. Vega stated that he did not check the Cat 992 loader brakes because he cannot check
them by himself and needed help and he did not conduct a full preshift examination because he
did not operate the machine. He confirmed that when he performs a full preshift inspection he
includes the brake lights because the driver is present to observe whether the brake lights are
operable (Tr. 92-93). He stated that he is trained to perform a full equipment preshift inspection
examination when he is the operator. He explained the procedures he follows to conduct the
examination, included inspecting the equipment brake system. He confirmed that the full
examination takes one hour (Tr. 94-96”).

Mr. Vega stated that on the day of the inspection he started the cited loader, checked the
engine oil, transmission, hydraulics, and the antifreeze, and turned the lights on to insure they
were operative, but he did not conduct a full preshift examination because he did not operate the
loader that day. He was not planning to use it, was not instructed to use it, and did not move it.
He did not fill out a preshift inspection form which is normal if a full preshift examination is
done. He confirmed that he started four vehicles which took one-half hour, and that a full preshift
takes one hour (Tr. 96-99). Mr. Vega stated that his supervisor instructed him to start the
equipment because Inspector Nichols was coming. He turned on the loader lights but did not
check the brake lights because he had no one to help him (Tr. 99-101).

Johnny Taylor, head quarry pit foreman for 15 to 18 years, testified that there has never
been an area called a “ready line,” but there is an “available” area. He stated that the area
characterized by MSHA as a “ready line’’ is an area where equipment that is not in use is parked
together with equipment that is taken for use. The equipment that is not used on any day remains
parked (Tr. 103-104).

Mr. Taylor stated that the parked equipment is not ready for immediate use until it is
preshifted and is ready for use. A preshift is required if the equipment is scheduled for use,
regardless of the operational time (Tr. 105). He confirmed that he was present during the
inspection. He stated that the loader is a spare and may be used if needed, but only after it is
preshifted and it is infrequently used. He believed that it was not used during the week of
December 8 because it had not been inspected (Tr. 107).

Mr. Taylor stated that Mr. Rick Hoffman, his supervisor, instructed him to start the
parked equipment which was not to be used, including the loader, and four of five pieces of pit
equipment for the inspector to look at. He then instructed Mr. Jesus Vega and employee Juan
Maple to start the equipment and check it out because of the cool weather, but he did not advise
them that they were to operate the loader or to preshift it because it was not intended to be used
(Tr. 109).

Mr. Taylor confirmed that he trained equipment operator Jesus Vega to conduct full
preshift examinations that take 45 minutes to perform, as well as the preparation of the required
check list forms confirming the examinations. The training took place during personal safety
meetings and video presentations with Mr. Taylor’s crews, including Mr. Vega (Tr. 110-119;
Exhibit R-2 through R-5). He stated that in order to fully preshift the loader it would have to be
taken to the pit to check the parking brake because of the road grade where it would be operating.
That preshift would have included checking the brake lights (Tr. 111).

Inspector Nichols confirmed that he issued Citation No. 8578148, after observing a
pickup truck parked on a 120 volt extension cord used to heat the truck heater while parked, just
outside the shop on the gravel parking lot, and he photographed the truck (Tr. 50; Exs. G-1-4, G-3-2). He explained that an extension cord is generally hung up over the outside truck mirror
pursuant to company policy as a reminder to drivers not to drive over a cable and jerk it loose.
When not in use, the extension cord is normally kept outside of the shop (Tr. 52).

Mr. Nichols stated that the cited Section 30 C.F.R. § 56.12005, language requiring a
power conductor to be “properly bridged or protected” is intended to protect the cable insulation
from being crushed or cut if it were run over. Any damage to the cable insulation would expose
anyone picking it up to an electrical shock hazard. He explained that the standard requires a
structure, such as one using 2 x 4 or 2 x 6 wood placed on either side of the cable to protect it
temporarily if someone were to run over it (Tr. 52-55).

Mr. Nichols determined the gravity level as “unlikely” in that the cited occurrence was
rare and the respondent has a policy in place to prevent it. He believed that the truck operator
failed to notice that he had backed over the top of the cable that was under the rear tire
approximately twenty feet where anyone could pick up the brightly colored yellow cord and
drape it over the truck rear-view mirror. He stated the truck was used to transport tables that were
used for his safety meeting that morning (Tr. 55-56).

Mr. Nichols stated that the hazard presented by running over the extension cord included
damage to the inside conductors, and ground, and outer insulation cuts caused by the gravel that
could later expose someone to a 120 volt electrical shock hazard (Tr. 57).

Mr. Nichols described the hazards associated with the breaking of the outer extension
cord insulation, including a fatal shock from the 120 volt cord, as well as damage to the inside
cord conductors that are not visible and could do damage to the ground circuit which could result
in an electrical shock if anyone touched the cord (Tr. 57-59).

Mr. Nichols stated that the cited cord was tested to insure that the inside and outside
conductors were in good shape through a visual check of the cord exterior and a continuity test
by an electrician on the interior of the cord. He stated that he based his “moderate” negligence
finding on the respondent’s cord hanging policy, the fact that the cord was not damaged, and the
annual continuity tests conducted by the operator on all of its electrical cords (Tr. 60).

On cross-examination, Inspector Nichols believed the phrase “to protect a power
conductor” means insulated or isolated from damage. He stated that bridging or hanging up a
cord, as well as putting it in a piece of conduit and burying it in the gravel are examples of
protection (Tr. 72, 74).

Mr. Nichols stated that he found no evidence of any damage to the cord, and he
confirmed that his gravity finding of “unlikely” was based on the fact that the cord was a new
heavy duty and heavy insulated cord with no cuts and was tested and found to be “OK” (Tr. 75,
Exhibit G-2-2).

Mr. Nichols concluded that the cord was heavy due to its size and gauge. He confirmed
that the power conductors are inside of the cord and that the heavy insulation helps to protect the
conductors “to certain extents, except when you run over it”, and that it “probably helped”
protect the conductors in this case.

Mr. Nichols attributed the lack of damage to the cord to the tact that it was the first time it
was run over, and he did not take it out of service because it was tested and checked and no
damage was found. He then terminated the citation and the cord was in compliance and allowed
to be used (Tr. 77).

On re-direct examination, Mr. Nichols stated that the size of the truck parked on the cited
cord can damage a heavy duty extension cord, and if any danger is not visible from the outside, it
can still be damaged, and it must be tested to determine that damage has occurred (Tr. 81).

Discussion and Findings and Conclusions

The cited mandatory safety standard 30 C.F.R. § 56.14100(b), with respect to Citation
No. 8578147, states as follows:

Defects on any equipment, machinery, and tools that affect safety
shall be corrected in a timely manner to prevent the creation of a
hazard to persons.

The petitioner asserts that the evidence establishes that the loader brake lights were
inoperative and not functional when the inspector observed them and the loader was examined
before the inspector viewed it. The petitioner pointed out that the employee who inspected the
loader did not see the brake lights because he was not provided another employee to assist him,
but that the loader was nonetheless preshifted (Tr. 86).

The petitioner argues that although a violation may not be supportable if it were
impossible to discover the brake lights defect, in the instant case the respondent instructed its
employees to start the loader in order to insure that it is in order in the event it was needed and
put into use (Tr. 127).

Petitioner asserts that the respondent started the equipment in order to make it ready to be
inspected, and since the transmission fluid, hydraulics, all lights with the exception of the brake
lights, were checked, it was not impossible to check them after the loader was started and
checked (Tr. 128).

Petitioner concludes that it was unlikely that the loader would have been preshifted and
discovered the defect before taking it from where it was parked and using it in the pits, where it
would be hazardous to operate without brake lights. Petitioner dismisses the respondent’s
assertions that the loader was not being preshifted, but was just “looked at”, and did not require a
full preshift examination (Tr. 130).

The respondent asserts that the petitioner has not shown how long the defects existed, that
it was operated with any defect, that a full preshift inspection was made to discover the defect,
and that the defect would not be discovered and timely corrected during a preshift inspection
before the loader was next put in operation (Tr. 85).

The respondent argues that it has a system in place designed to stay in compliance with
Section 56.14100(b), by preshifting all vehicles before they are put in service to insure that
defects are corrected in a timely manner. Respondent maintains that vehicles are routinely looked
at when inspectors are on site through a cursory walk-around of the vehicle, and that the loader
was started and warmed up for the inspector to look at. However, the full preshift examination
pursuant to the respondent’s established policy to insure that defects are detected was not
performed on the loader. If it were to be put in operation, as it is normally done when a preshift is
performed, a full preshift would have been performed (Tr. 133).

Respondent further argues there was no loader hazard exposure or any indication that it
was ever driven with defective brake lights. Further, there is no showing how long the hazard
existed, or that it was ever a hazard to persons or that the hazard would not be corrected under
the respondent’s preshift policy which the petitioner acknowledges is strong (Tr. 133-134).

The respondent cited several decisions decided by Commission judges concerning the
interpretation and application of Section 56.4100(b). Petitioner’s counsel confirmed that she was
aware of the cases and discussed them with the respondent’s counsel. She believed that cases
concerned situations where there was a true impossibility that the operator could have discovered
the defect (Tr. 126).

The respondent’s counsel stated that this was not true, and that the cited cases involved
vehicles that were driving around the mine, and if the brake lights were defective they would
have been noticed by other miners and would have actively created a hazard. In the instant case,
the loader was never driven and if it were put into operation, it would have been corrected in a
timely manner before it created hazards to persons (Tr. 134).

Contrary to the petitioner’s argument that the loader was preshifted before the inspector
found the inoperative brake lights, the respondent’s credible testimony and evidence reflects that
although the loader, as well as other vehicles, were started and warmed up because pit foreman
Taylor’s supervisor Rick Hoffman was aware that the inspector was on site and would probably
inspect them, I cannot conclude that loader operator Jesus Vega’s rather brief preparatory work
of checking loader fluids and lights constituted a full preshift examination that normally would
take one hour. Consequently, I find there is no credible evidence that the loader was preshifted
pursuant to the respondent’s established procedures that are not in dispute.

Regardless of the characterization of the area where the cited loaders, as well as other
vehicles, were parked as a “ready line”, the inspector agreed that there was no requirement for
such a designation, and he conceded that any parked equipment had to be preshifted before it was
moved and placed in service. In this regard, I conclude and find that Section 56.12005 does not
require that all parked equipment not in service must be maintained and ready for use at all times.
On the facts of this case, I conclude and find that the inspector’s preemptive and premature
issuance of the violation in absence of any evidence that a full regular preshift examination was
performed on the loader, which would have put the respondent on notice that a defect had to be
taken care of, did not afford the respondent with a reasonable opportunity to perform a preshift,
discover the defect, and timely repair it.

I find no evidence to support the petitioner’s assertion that it was unlikely that the loader
would have been preshifted and the defect discovered. I credit the testimony of Mr. Taylor that
the loader was a spare that was not used during the week of the inspection, is used infrequently,
and that if it were needed to be placed in service, it would be preshifted. I also credit his
testimony regarding a rather extensive training program for its equipment operators. That
program was conceded to be “a very good preshift inspection policy” by the inspector (Tr. 44).

I further find that the cited loader back-up alarms and seat belts were in working order,
and that it was not in operation when the inspector inspected it. Further the inspector did not
know whether the loader was intended to be placed in service before he inspected it, and he did
not ask the operator if he had preshifted the loader, and the operator did not inform him that it
was ready to be put in service (Tr. 69).

I also take note of the fact that when the inspector initially observed the loader while it
was parked with the engine running, he concluded that the operator had “pre-inspected it”, and
simply asked him if he had “checked everything out” (Tr. 65-66). I find credible and persuasive
operator Vega’s testimony that he had not planned to put the cited loader in operation, that he
was not instructed to put it in service, and that he did not prepare a preshift inspection report that
he would normally submit after preshifting a vehicle.

I find the inspector’s belief that the difference between a “walk-around check” of a
vehicle and a full MSHA required preshift is “basically terminology”, that depends on the person
performing the task to be rather contradictory (Tr. 67-68). On the facts of this case, it would
appear to me that the loader operator and the inspector differed as to what had taken place with
regard to the vehicle inspection.

Based on all of the aforementioned circumstances, and after consideration of all of the
arguments advanced by the parties, I conclude and find that the petitioner has not established by a
preponderance of the evidence that the respondent did not correct the cited defect in a timely
manner within the meaning of Section 56.14100(b). Accordingly, the citation IS VACATED,
and the proposed civil penalty assessment IS DENIED.

The cited safety standard 30 C.F.R. § 56.12005, with respect to Citation No. 8578148,
states as follows:

Mobile equipment shall not run over power conductors, nor shall
loads be dragged over power conductors, unless the conductors are
properly bridged or protected.

In support of this alleged violation, the petitioner cites the photograph of the truck parked
on top of the regular heavy-duty electrical cord, and points out that this is a non-S&S citation
with moderate negligence (Tr. 86; Exhibit G-2-3).

The petitioner argues that in the event the extension cord were run over, any damage
would not be detected unless the vehicle was stopped to visually examine any damage to the
outside of the cord. In the event of any undetected interior cord damage, anyone subsequently
using it would be exposed to an electrical 120 volt shock hazard, particularly if the cord were
exposed to wet and cold weather while it were in use. The petitioner rejects any suggestion that
the cited extension cord was properly protected and concludes that it could be run over many
times and used continually (Tr. 131-132).

The respondent argues that the inspector agreed that a power conductor is protected when
it is insulated, and that the cited extension cord was a heavy-duty cord with heavy insulation.
Under the circumstances, the respondent concludes that the cord was protected in accordance
with the requirements of Section 56.12005, which states that a power conductor must be bridged
or protected (emphasis added) (Tr. 135).

After careful consideration of the arguments presented by the parties, I conclude and find
that the petitioner’s position is supportable and correct. Although the regulatory word “protected”
invites the defense advanced by the respondent, that any self-insulated heavy duty power
conductor inherently provides adequate protection against hazardous cable damages, it is
REJECTED.

I take note of the inspector’s testimony that the size and gauge of a power cord provides
some measure of protection, but only if the cord is not run over. In the instant case, the inspector
considered the absence of any cord damage, after it was further examined and tested, in his
determination that the violation was not significant and substantial.

I find credible the inspector’s testimony that given the size of the truck that was parked on
the cord, it could have damaged the cord. Further, conceding the fact that the cord was a heavy
duty insulated cord with no visible indications of any external damage, and passed a continuity
test, I find credible the inspector’s belief that any inside cord damages to the conductors and
grounding circuits, which are not visible and readily detectable, would expose anyone handling
the cord to an electrical shock hazard.

I conclude and find that running or parking over a power conductor cord presents a
realistic potential for interior cord damage that would not be immediately visibly detected, and
that any subsequent and continued use of the cord, without correcting the defect, by persons who
may not be aware that the cord was run over, would expose them to potential shock hazards.

I further conclude and find that in the context of any normal working environment with
the presence of mobile equipment, it would be unlikely that an equipment operator who may
have inadvertently run over a power cord, or dragged a load over it, would immediately stop the
vehicle or discontinue his work to perform more than a cursory visual examination of the cord.
Indeed, in the instant case, the truck was clearly parked over the cord in full view of anyone
passing by, with no corrective action until the inspector found it

I credit and adopt the inspector’s interpretation that Section 56.12005 requires some
independent physical protection other then the cord itself, and his examples of the use of
temporary bridging, conduit, or hanging or suspending a power cord off the ground, as a practical
and reasonable means of compliance. On the facts of this case, the lack of protection, other than
the cord, constituted a violation of Section 56.12005. Accordingly, the violation IS AFFIRMED.
The proposed civil penalty assessment that I find reasonable, is likewise AFFIRMED.

History of Prior Violations

Exhibit A to the petition for assessment reflects the absence of any repeat violations of
Section 56.12005, during the prior inspection period of 17-18 days and 50 inspection hours.
Exhibit G-5, the petitioner’s violation assessment history report from June 27, 2007, to October
2, 2009, reflects no prior violations of Section 56.12005. All of the 19 assessed violations were
Section 104(a) citations, 16 of which were non-S&S violations with penalties of $100 each, and
the remaining three were S&S violations with penalties of less than $500. Under the
circumstances, I cannot conclude that the respondent’s history of violations is such as to warrant
any increase in the civil penalty assessed for the violation that has been affirmed.

Good Faith Compliance

The record reflects that the violation was rapidly abated in good faith in 15 minutes after
the truck was moved and the extension cord was inspected and found undamaged.

Gravity

Based on the inspector’s non-S&S determination that any injury was unlikely, which I
adopt and affirm, I conclude and find that the violation was minor.

Negligence

The inspector’s moderate negligence finding was based on the respondent’s cord hanging
policy, its annual cord continuity tests, and the fact that the cord was not damaged. The
inspector’s moderate negligence finding IS AFFIRMED.

Size of Business and Effect of Civil Penalty Assessment on the Respondent’s Ability to Remain
in Business

In the absence of any evidence to the contrary, I conclude and find that the respondent is a
small mine operator and that the penalty assessed in this matter will not adversely affect its
ability to remain in business.

In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(a)
non-S&S Citation No. 8578147, December 8, 2010, for a violation of 30 C.F.R. § 56.14100(b),
IS VACATED, and the proposed civil penalty assessment IS DENIED.

In view of the foregoing findings and conclusions, IT IS ORDERED that Section 104(a)
non-S&S Citation No. 8578148, December 2, 2010, for a violation of 30 C.F.R. § 56.12005, IS
AFFIRMED.

The respondent IS ORDERED to pay a civil penalty in the amount of $100, for the
violation. Payment shall be made within thirty (30) days of the date of this decision, and remitted
by check made payable to “U.S. Department of Labor/MSHA”, P.O. Box 790390, St. Louis, MO
63179-0390. Upon receipt of payment, this matter is DISMISSED.

/s/ George A. Koutras

George A. Koutras

Administrative Law Judge

Distribution:

Willow Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite
230, Nashville, TN 37219

Joshua Schultz, Esq., Law Offices of Adele L. Abrams, PC, 4740 Corridor Place, Suite D,
Beltsville, MD 20705

/kss