Carder, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Carder operated several sand and gravel pits in Colorado, with cases involving crusher, dredge, screening, and related operations. Judge Richard W. Manning affirmed, modified, and vacated citations across ten consolidated civil penalty dockets after evaluating the cited conditions, negligence, gravity, and Carder's small-operator status. The order assessed a total civil penalty of $4,206. Carder was ordered to pay the assessed amount within 30 days.

Decision snapshot

• Cited standards: 30 C.F.R. Part 56, with additional provisions in Parts 46, 47, and 50
• Outcome: Citations were affirmed, modified, or vacated as specified in the order, with total penalties of $4,206.
• Key point: The Judge applied the statutory penalty criteria to a small operator and adjusted the citation results and penalties by docket.

Full text (FMSHRC public release)

CARDER, INC. -- November 28, 2005

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280

DENVER, CO 80204-3582

303-844-3577/FAX 303-844-5268

November 28, 2005

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

CARDER, INC.

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2004-269-M

A.C. No. 05-04209-21545

Crusher Operation #2

Docket No. WEST 2004-270-M

A.C. No. 05-04612-21601-01

Docket No. WEST 2004-271-M

A.C. No. 05-04612-21601-02

Crusher Operation #5

Docket No. WEST 2005-133-M

A.C. No. 05-04558-43192

Docket No. WEST 2005-218-M

A.C. No. 05-04558-48439

Dredge Operation #1

Docket No. WEST 2004-326-M

A.C. No. 05-04116-24225

Docket No. WEST 2005-132-M

A.C. No. 05-04116-43159

Docket No. WEST 2005-160-M

A.C. No. 05-04116-45725

Dredge Operation #3

Docket No. WEST 2004-491-M

A.C. No. 05-04581-35054

Docket No. WEST 2005-134-M

A.C. No. 05-04581-43233

Screening Operation/

Dredge Operation

DECISION

Appearances:  Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Mike Ausmus, Carder, Inc., Lamar, Colorado, for Respondent.

Before:  Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Carder, Inc., ("Carder"), pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was held in Lamar,
Colorado.

I.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

Carder operates several sand and gravel pits in Prowers County, Colorado. The citations
are grouped in this decision by operation rather than by docket number.

A.  Crusher Operation No. 2

1.  Citation No. 6298298, WEST 2004-269-M

MSHA Inspector Steven Ryan inspected Carder's Crusher Operation No. 2 on May 8,
2003. Inspector Ryan issued Citation No. 6298298 under section 104(a) of the Mine Act alleging
a violation of 30 C.F. R. § 56.14105. The body of the citation states, as amended:

A front end loader operator was observed cleaning out loose
material from the return end of the primary hopper discharge
conveyor [that was] being turned on and off at the start-stop
controls next to the hopper by another employee upon signals from
the front end loader operator cleaning the conveyor of material.
The power was not off and the conveyor belt was not blocked from
motion while the work was being performed. The company has a
lockout policy. An oral 107(a) imminent danger order was given
to Uraldo Bargus, another front end loader operator at the site.

The inspector determined that it was highly likely that someone would be injured as a result of
this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was of a significant and substantial nature ("S&S") and that
Carder's negligence was moderate. The cited safety standard provides:

Repairs or maintenance of machinery or equipment shall be
performed only after power is off and the machinery is blocked
against hazardous motion. Machinery or equipment motion is
permitted to the extent that adjustments or testing cannot be
performed without motion or activation, provided that persons are
effectively protected from hazardous motion.

The Secretary proposes a penalty of $750.00 for this citation.

Inspector Ryan testified that the primary feed hopper is where the raw mined rock is fed
into the plant. (Tr. 12). The rock leaves the hopper through a conveyor system under the hopper
which delivers the rock to a crusher. (Tr. 13). When Inspector Ryan arrived at the crusher
operation, the plant was energized but it was not running. He observed two miners on one side
of the feed hopper and another miner on the other side of the hopper, who was standing at the
stop/start control panel. (Tr. 16). The loader operator was "reaching in and cleaning material"
off the "return end of the belt going back to the self-cleaning tail pulley," which was under the
guard. He was using his bare hands to remove loose rock. The other miner was giving signals to
the miner at the stop/start switch to jog the start button so that the conveyor would move slightly
as the other miner was cleaning. Id.

Inspector Ryan told the miners to stop working because there have been serious accidents
at other plants when this same procedure was used. He issued the citation in conjunction with
an imminent danger order. (Tr.10; Ex. G-1). Ryan testified that he has personally investigated
two accidents in which miners were injured while cleaning belts using the same procedure. (Tr.
17). To comply with the standard, equipment should have been turned off and the moving parts
should have been blocked against motion while the cleaning was performed. He states that
start/stop buttons are not fail-safe and the belt could have started moving without notice. (Tr.
18). In addition, the miner at the start/stop switch could accidently turn the belt on while the
loader operator was reaching in to clean the belt. (Tr. 19).

Inspector Ryan believes that the miner could have been seriously injured if the belt had
started moving without his knowledge. He determined that the violation was S&S because he
has investigated serious accidents under very similar circumstances. Indeed, he testified that he
investigated a serious accident in which an employee got "caught up" in a conveyer belt at one of
Carder's other operations a few months later. (Tr. 21-22, 25).

Mike Ausmus, Carder's general manager, testified that the stop/start switch consists of
two separate buttons, one for on and one for off. (Tr. 33-34). He stated that the switch is
designed so that arcing will not occur between the poles which may accidently energize the
circuit. He has never seen a start/stop switch of this type malfunction. (Tr. 35). Ausmus said
that cleaning the belt was necessary so that it could be repaired.

I find that the Secretary established a violation. There is no dispute that power was on
and the belt was not blocked against motion. Adjustments were not being made and the
conveyor was not being tested. I also find that the violation was extremely serious and S&S.
The miner cleaning the belt could have been seriously injured if the other miner accidently
energized the conveyor with the start/stop switch. The miner operating the switch had been
working for Carder for one day and he apparently did not speak English. (Tr. 30-31). As
Inspector Ryan stated, "steel has no mercy." (Tr. 20).

A violation is classified as S&S "if based upon the facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for
analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining
operations." U. S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). 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 (April 1988). The Secretary must establish: (1) the
underlying violation of the safety standard; (2) a discrete safety hazard, 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. The Secretary is not required to show that it is more probable than not
that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June
1996).

I find that the Secretary established all four elements of this test. There was a violation of
the safety standard that created a discrete safety hazard. The violation presented a reasonable
likelihood that the hazard contributed to by this violation would result in an injury of a
reasonably serious nature, assuming continued normal mining operations.

I also find that Carder's negligence was moderate to high. The citation is affirmed and a
higher penalty of $1,500.00 is appropriate.

B.  Dredge Operation No. 1

1.  Citation No. 6311844, WEST 2005-133-M

MSHA Inspector Brad Allen issued Citation No. 6311844 under section 104(a) of the
Mine Act alleging a violation of 30 C.F. R. § 56.14112(a)(1). The body of the citation states:

A guard on the diesel motor driven water pumps located on the rear
of the dredge was not being maintained. The guard on the front of
the motor fell off and was laying down, fully exposing the moving
machine parts. Employees working/traveling near this area were
exposed to the possibility of injury from entanglement hazards
and/or pinch points. Employees work and travel this area several
times daily.

The inspector determined that it was reasonably likely that someone would be injured as a result
of this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was S&S and that Carder's negligence was moderate. The cited
safety standard provides that "[g]uards shall be constructed and maintained to withstand the
vibration, shock, and wear to which they will be subjected during normal operation." The
Secretary proposes a penalty of $177.00 for this citation.

Inspector Allen testified that he issued the citation because the guard covering the water
pump for the motor on the dredge had apparently vibrated loose. (Tr. 41; Ex. G-3). The guard
was replaced to abate the citation. The photo that the inspector took before the condition was
abated shows that the guard had fallen. Inspector Allen determined that the violation was serious
and S&S because a miner travels throughout the dredge and, if his clothing were to become
entangled in the moving machine parts, he would likely suffer a permanently disabling injury.
(Tr. 42). This employee's duties "required him to travel all the way around the dredge
throughout the day." Id. He stated that it was three feet "into the pulleys" from the travelway.
Id. He also stated that the "moving machine parts are frequently accessed by the dredge
operator." (Tr. 43). Allen estimated that the cited condition was about 25 feet from the dredge
operator's cab. (Tr. 58).

Mr. Ausmus testified that a preshift examination had been performed on the dredge at the
start of the shift and the guard was in place. (Tr. 68). He further stated that, contrary to the
inspector's testimony, the dredge operator does not walk around the dredge all day. Instead, he
remains in the operator's cab which is about 40 feet from the cited condition. Id. The dredge
operator must monitor gauges constantly and he only leaves the cab for short periods of time. Id.
Ausmus testified that the dredge operator does not walk near the diesel motor because there is
nothing there that he needs to do. (Tr. 69).

I find that the Secretary established a violation of section 56.14112(a)(1). Inspector Allen
cited that safety standard because the guard was in the position that it would be if it fell out of
place. (Ex. G-3, Photo 1). A miner who needed to remove the guard to perform repairs would
not have placed the guard in the position shown in the photograph. Thus, the guard was not
being maintained to withstand the vibration, shock, and wear it was subjected to. I find that the
Secretary established a prima facie case and that Carder did not offer any evidence to contradict
the inspector's assumption that the guard fell out of place.

The Commission and the courts have uniformly held that mine operators are strictly liable
for violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th
Cir. 1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty." Id. at 1197. The Secretary is not required to prove that a
violation creates a safety hazard, unless the safety standard so provides.

The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.

Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
determining the amount of the penalty. Thus, if a safety standard is violated, a penalty is
assessed even if there was no injury and the chance of an injury was not very great.

I find that the violation was neither serious nor S&S. The moving machine parts which
the guard protected were recessed three feet from the walkway. In addition, I credit Ausmus's
testimony that the dredge operator does not walk by the diesel motor with any frequency. In
addition, there has been no showing that there were any tripping or stumbling hazards in the area.
Thus, I find that it was highly unlikely that the dredge operator or his clothing would get caught
in moving machine parts. I also find that Carder's negligence was low. Carder established that
the cited condition existed for a short period of time and there has been no showing that anyone
knew that the guard had fallen out of place. A penalty of $20.00 is appropriate.

2.  Citation No. 6311846, WEST 2005-133-M

Inspector Allen issued Citation No. 6311846 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:

The engine powering the work boat contained exposed moving
machine parts that are not guarded. The alternator pulley, main
pulley and drive belts are open and exposed on the left side.
Employees are exposed to the possibility of injury if they were
accidently to contact the moving machine parts. The moving
machine parts are placed along a travel way that is regularly used
and the work boat is used at least twice daily, making the chance of
accidental contact reasonably likely.

The inspector determined that it was reasonably likely that someone would be injured as a result
of this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was S&S and that Carder's negligence was moderate. The cited
safety standard provides that "[m]oving machine parts shall be guarded to protect persons from
contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts that can cause injury." The Secretary proposes a
penalty of $177.00 for this citation.

Inspector Allen testified that the alternator pulley, main pulley, and drive belts were open
and exposed on the left side of the engine. (Tr. 46; Ex. G-5). The work boat is used for
transportation to and from the barge. Anyone who operated the boat or was a passenger in the
boat would be exposed to the hazard. Allen believed that the violation was S&S because it was
reasonably likely that someone would be injured as a result of the condition and that the injuries
would be permanently disabling. The inspector believed that miners could stumble or fall into
the moving machine parts. (Tr. 62). The opening in front of the cited moving parts between the
guard for the fan and the housing for the engine was about three inches. (Tr. 63; Ex. G-5, photo
1). The inspector believed that the motor had been recently installed and the guard for the left
side was inadvertently left off. (Tr. 49).

Carder admits that the cited condition violated the safety standard. (Tr. 60). Mr. Ausmus
testified that the exposure to the hazard was minimal. (Tr. 70). He believed that miners would
walk by the exposed area to get into the boat before the engine was started and would walk by
after the engine was shut off but that miners would not be in the area while the motor was
running. Ausmus also believed that the frame of the engine and the guard around the fan
provided sufficient protection for the area. He said that there was "maybe an inch of room." Id.

I find that the cited condition created a serious safety hazard. Although the opening in
front of the moving machine parts was not wide, the parts were nevertheless exposed. Several
people travel on the boat at least twice a day. I do not credit Ausmus's testimony that the engine
is always off when miners travel near the moving parts. It is reasonably likely that someone
would stumble and get his fingers caught in the moving parts. Although the injuries may not be
permanently disabling, they would be serious. The Secretary established that the violation was
S&S. Carder's negligence is moderate to low because the engine had only been recently
installed. A penalty of $100.00 is appropriate.

3.  Citation No. 6311848, WEST 2005-218-M

Inspector Allen issued Citation No. 6311848 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:

The self cleaning tail pulley on the Kolberg stacker conveyor was
not adequately guarded. The guarding provided on the south side
consisted of a loosely hung piece of conveyor belt, leaving
openings of one and a half foot wide, and contact less that one foot
away to the moving machine parts as well as a six inch by six inch
opening on the rear of the bearing block. The moving machine
parts were approximately 28 inches above ground level. This
condition exposed employees to the possibility of an injury if they
were accidently to contact the moving machine parts. The pulley is
not placed along a regularly used travel way and no foot prints
were observed in the area making the chance of accidental contact
unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was high. The Secretary proposes a
penalty of $500.00 for this citation.

Inspector Allen testified that when the conveyor is operating, a lot of water falls in the
area so miners would not usually be in the area. (Tr. 53; Ex. G-6). He designated the negligence
as high because Mr. Ausmus admitted that he observed the condition the previous day. (Tr. 54,
65). Allen believes that Ausmus should have recognized that the condition created a hazard.

Mr. Ausmus objected to the $500.00 penalty for the citation because the inspector
admitted that the condition was unlikely to cause an injury. Ausmus believes that, because the
cited area was in an inaccessible location, a miner would have to intentionally put his arm in the
opening in order to injure himself. He also contends that this stacker conveyor had been
previously inspected by MSHA in the same condition and no citations were issued. (Tr. 71).

I find that the Secretary established a non-S&S violation. I credit Inspector Allen's
testimony that it was unlikely that the guard was in the cited condition during previous MSHA
inspections. I find that Carder's negligence was moderate because, although Ausmus may have
previously observed the cited condition, he did not believe that a guard was crucial because the
tail pulley was in a rather inaccessible location. A penalty of $60.00 is appropriate.

C.  Dredge Operation No. 3

1.  Citation No. 6311828, WEST 2005-160-M

Inspector Allen issued Citation No. 6311828 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14130(i). The body of the citation states:

The seat belt on the John Deere front-end loader . . . company
number 373 did not meet the requirements of SAE J386. The belt
strap was worn frayed, and the right side of the belt contained a
tear approximately one and one half inches long, creating a hazard
to the operator of the loader by eliminating the ability of the
seatbelt to function properly in the event of an accident. The
loader is used on a daily basis in a fairly level area and light traffic,
making the chance of an accident unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides that "[s]eat belts shall be maintained in functional condition and replaced
when necessary to assure proper performance." The Secretary proposes a penalty of $300.00 for
this citation.

Inspector Allen testified that the seatbelt, while not completely ineffective, was not being
properly maintained. (Tr. 83; Ex. G-9). He determined that the violation was not S&S because
the loader is used in a flat area where there is little traffic. He concluded that it was unlikely that
the loader would be in an accident. Mr. Ausmus testified that he does not disagree with the
citation but that he contests the special assessment of $300.00. (Tr. 125).

I affirm the citation as written. I find that a penalty of $60.00 is appropriate taking into
consideration the gravity and negligence designated by the inspector.

2.  Citation No. 6299980, WEST 2004-326-M

Inspector Allen issued Citation No. 6299980 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14132(a). The body of the citation states:

The horn on the John Deere front-end loader, company number 404
. . . was inoperable. The front-end loader was not being operated at
the time, but was on the ready line. There was no record or tag to
indicate it was taken out of service. The defective horn had been
identified on the pre-operation checklist.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was low. The
cited standard provides that "[m]anually-operated horns . . . provided on self-propelled mobile
equipment as a safety feature shall be maintained in functional condition." The Secretary
proposes a penalty of $91.00 for this citation.

Inspector Allen determined that the condition was S&S because there was foot traffic in
the area where the loader would operate. (Tr. 86). The loader was not being operated at the time
of his inspection, but it was not tagged out. The pre-operation checklist indicated that the horn
had been operable for three days. Allen determined that the negligence was low because the
defect had been identified and documented.

Mr. Ausmus testified that the defect had been noted and the loader was not being used.
(Tr. 117). Because only three people work at the mine, it is not necessary for the operator to tag
out the loader. Only two of these employees would operate the loader and they both knew that
the horn was not working. (Tr. 118). The mechanics had been notified that the horn needed to
be repaired, but they had not been able to fix it by the time of the inspection.

I find that the Secretary established a violation. Although the loader apparently had not
been used, it was available for use. Because the loader was not tagged out, one of the two
employees who use the loader may well forget that the horn was not working and operate the
loader in the defective condition. Because there has been no showing that the loader was used
with the defective horn, I find that the violation was not S&S. Carder's negligence was low. A
penalty of $20.00 is appropriate.

3.  Citation No. 6299981, WEST 2004-326-M

Inspector Allen issued Citation No. 6299981 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14100(b). The body of the citation states:

The John Deere front-end loader . . . company number 404 . . .
contained a defect that affected the safety of persons. The brake
lights were defective and not maintained in a functional condition.
Vehicular traffic was observed in the area while the loader was in
operation. Miners were exposed to the possibility of injury due to
the inability of another equipment operator to know when the
loader is stopping.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was low. The
cited standard provides that "[d]efects 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
Secretary proposes a penalty of $91.00 for this citation.

The evidence on this citation was the same as for the previous citation. For the same
reasons, I find that the Secretary established a non-S&S violation with low negligence. A penalty
of $20.00 is appropriate for this violation.

4.  Citation No. 6299982, WEST 2004-326-M

Inspector Allen issued Citation No. 6299982 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11002. The body of the citation states:

There were no handrails provided on the top of the tank for the
diesel fuel trailer company number 537. Employees working on
top of the tank were exposed to the possibility of a fall injury of
approximately eight feet eight inches to the ground below. A
miner mounts and dismounts the tank once a week to check tank
levels. Failure to provide handrails and the rough walking surface
makes the chance of an accident reasonably likely.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be fatal. He determined that the
violation was S&S and that Carder's negligence was moderate. The cited standard provides that
"[c]rossovers, elevated walkways, elevated ramps, and stairways shall be of substantial
construction provided with handrails, and maintained in good condition." The Secretary
proposes a penalty of $217.00 for this citation.

Inspector Allen testified that there were no handrails provided on the top of the tank for
the diesel fuel trailer. (Tr. 91; Ex. 13). He further testified that employees told him that they
"were required to go up there at least once a week to check the levels of the tank." Id. They
gained access to the top of the trailer by climbing the ladder at the rear of the trailer. (Tr. 107-
08). Allen stated that the area was not a smooth walking surface. He determined that the
violation was S&S based on the conditions he observed and the fact that miners have fallen to
their deaths in similar circumstances. (Tr. 93).

Mr. Ausmus testified that the tank trailer cited by Inspector Allen has been in the same
location for four years without handrails and has never been cited by any MSHA inspector. (Tr.
119). He assumes that other inspectors observed the condition. Id. He also testified that there is
no need for employees to walk on the top of the tank to check fuel levels. (Tr. 119-20).

I find that the Secretary established a violation. I credit the testimony of Inspector Allen
that the top of the tank trailer was used as a walkway when employees needed to check fuel
levels. As a consequence, I find that the top of the trailer was an elevated walkway.

In some situations a citation should be vacated if the cited condition has been previously
inspected by MSHA without any enforcement action being taken. Prior inconsistent enforcement
of a safety standard at a mine is a factor that the Commission considers when evaluating whether
a mine operator has received fair notice of the Secretary's interpretation of an ambiguous safety
standard. Good Construction, 23 FMSHRC 995, 1006 (Sept. 2001). In this case, however, it is
not clear whether an MSHA inspector has actually inspected the trailer. Mr. Ausmus was not
sure if the trailer had been previously inspected but he assumed it had. (Tr. 119). In addition,
previous MSHA inspectors may not have known that miners walk on top of the trailer tanks to
check fuel levels. Consequently, I find that Carder did not establish this affirmative defense.

I also find that the Secretary established that the violation was S&S. The Secretary met
all four elements of the Mathies S&S test. Because employees must regularly walk up on the top
of the tank trailer, it was reasonably likely that the hazard contributed to by the violation would
result in an injury of a reasonably serious nature. Employees may not have to go up on the tank
on a weekly basis, but they travel there enough to create a hazardous situation. The top of the
tank has the potential to be slick if it is wet or if the employee's boots are muddy. (Tr. 109).

Because the condition had existed for four years and the application of the standard to the
top of a tank trailer is somewhat ambiguous, I find that Carder's negligence was low. A penalty
of $80.00 is appropriate.

5.  Citation No. 6299983, WEST 2004-326-M

Inspector Allen issued Citation No. 63299983 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11002. The body of the citation states:

There were no handrails provided on the top of the tank for the
diesel fuel trailer company number 538. Employees working on
top of the tank were exposed to the possibility of a fall injury of
approximately eight feet ten inches to the ground below. A miner
mounts and dismounts the tank once a week to check tank levels.
Failure to provide handrails and the rough walking surface makes
the chance of an accident reasonably likely.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be fatal. He determined that the
violation was S&S and that Carder's negligence was moderate. The Secretary proposes a penalty
of $217.00 for this citation.

The evidence presented for this citation was identical to the evidence for the previous
citation. The two tank trailers were immediately adjacent to one another. (Ex. G-13, G-14).
Consequently, I find that the Secretary established a S&S violation with low negligence. A
penalty of $80.00 is appropriate.

6.  Citation No. 6299985, WEST 2004-326-M

Inspector Allen issued Citation No. 63299985 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11002. The body of the citation states:

There were no handrails provided on top of the portable generator
set, unit number 488. The opening was four feet long and the
height from ground level was three feet and eight inches. The
opening was located over the right rear fender. Employees
working on top of the elevated work deck were exposed to the
possibility of a fall injury. A miner mounts and dismounts the
trailer once a week to service the motor which is mounted on it.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The Secretary proposes a penalty of $135.00 for this citation.

The generator cited by Inspector Allen is mounted on the back of a truck bed. The cited
area is the fender above the rear wheels of the truck bed. (Tr. 95, Ex. G-15). The fender is flat in
that location so that persons can stand on it and a tread is present. It was almost four feet above
the ground. Allen believed that a miner would be in the cited location twice a day to start and
stop the generator and to provide any maintenance on the generator. Inspector Allen believed
that it was reasonably likely that a miner would fall from the trailer and injure himself because a
miner must walk on the trailer on a regular basis. (Tr. 96-97). Serious accidents have occurred
in similar circumstances at other mines.

Mr. Ausmus testified that the generator trailer had been at the mine for two years. (Tr.
121). He stated that miners can reach all of the controls for the generator from the ground. The
top of the radiator is so high that employees must use a ladder to check the fluid level. He
implied that miners do not have to get up on the generator trailer during their work day.

I find that the Secretary established a violation. The photographs show that there were
stairs leading up to the cited area. I find that the top of the fender was an elevated walkway as
that term is used in the safety standard. Because I credit the uncontroverted testimony of
Inspector Allen, I find that the violation was S&S and that Carder's negligence was moderate. A
penalty of $120.00 is appropriate.

7.  Citation No. 6299987, WEST 2004-326-M

Inspector Allen issued Citation No. 6299987 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.12032. The body of the citation states:

The inspection cover plate was missing for the number seventeen
circuit inside the electrical breaker box located on the northwest
end of the scale house trailer. Miners could come in contact with
the one hundred and ten volt ac current that was exposed.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was low. The cited
standard provides that "[i]nspection and cover plates on electrical equipment and junction boxes
shall be kept in place at all times except during testing or repairs." The Secretary proposes a
penalty of $60.00 for this citation.

Inspector Allen testified that there was one cover plate missing on a breaker box in the
scale house. (Tr. 98; Ex. G-16). The breaker box was in a section of the scale house that Carder
leased to another company, but the box controlled the power for the entire building. Allen was
told that Carder miners flip the switches in the breaker box when there is a power outage.
Inspector Allen testified that it was unlikely that anyone would be injured as a result of this
violation. (Tr. 99-100).

Mr. Ausmus testified that the citation should be vacated because the breaker box was in
an area of the scale house controlled by another company. There is a locked door between the
two areas of the scale house so the exposure to Carder employees "would be zero." (Tr. 120).

I find that the Secretary established a violation but the safety hazard created by the
violation was de minimis. As the inspector testified, a miner would have to purposefully stick a
tool into the small opening to sustain an injury. The violation was not serious and Carder's
negligence was quite low. A penalty of $20.00 is appropriate for this violation.

D.  Crusher Operation No. 5

1.  Citation No. 6299958, WEST 2004-270-M

Inspector Allen issued Citation No. 6299958 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.4230(a)(1). The body of the citation states:

The John Deere front end loader, company number 384 . . . did not
have a fire extinguisher on the equipment. This creates a potential
hazard to miners trying to escape in the event of a fire. No other
fire extinguishing equipment was provided on this equipment.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides that "[w]henever a fire or its effects could impede escape from the
equipment, a fire extinguisher shall be on the equipment." The Secretary proposes a penalty of
$60.00 for this citation.

Inspector Allen was concerned that if the loader were to catch on fire, the loader operator
would have a difficult time escaping from the vehicle. (Tr. 128). A diesel fuel tank was under
one door and a hydraulic tank near the other door. "Because there was a fire promulgator under
both exits, [Carder] needed a fire extinguisher for the miner to be able to escape from that piece
of equipment." Id. The inspector did not believe that the violation was serious or S&S because a
fire was unlikely. (Tr. 129). Not every piece of mobile requires a fire extinguisher, just those in
which a fire would impede escape. Id. In this case, there was a tank of combustible liquid
adjacent to the each door of the loader. (Tr. 154).

Mr. Ausmus testified that, because the loader had two doors, there would always be a way
for the loader operator to escape. (Tr. 173). He believes that a fire would most likely start in the
engine compartment and it would be highly unlikely that both doors would be engulfed with
flames. (Tr. 154-55). Ausmus noted that subsection (a)(2) of the safety standard provides that
"[w]henever a fire or its effects would not impede escape from the equipment but could affect the
escape of other persons in the area, a fire extinguisher shall be on the equipment or within 100
feet of the equipment."

I find that the Secretary established a violation. I agree with Mr. Ausmus that in most
instances a fire would not impede the loader operator from exiting the loader. Nevertheless, if a
fire were to break out quickly both tanks could catch fire and the miner would need to be able to
use the extinguisher to help him escape. The inspector admitted that it was not likely that the
extinguisher would ever have to be used.

I find that Carder's negligence is quite low. MSHA inspectors have inspected Carder's
facilities on a regular basis. No inspector has ever advised Carder that some of its self-propelled
equipment may require a fire extinguisher even if the equipment has two doors. I find that a
penalty of $20.00 is appropriate.

2.  Citation No. 6299959, WEST 2004-270-M

Inspector Allen issued Citation No. 6299959 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.4201(a)(2). The body of the citation states:

The fire extinguisher located on the Caterpillar 96F front end
loader, company number 532 . . . had not received a maintenance
check in the last twelve months (since October 1999), creating a
potential hazard to employees trying to use it to extinguish a fire.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides that "[a]t least once every twelve months, maintenance checks shall be
made of mechanical parts, the amount and condition of the extinguishing agent and expellant,
and the condition of the hose, nozzle, and vessel to determine that the fire extinguishers will
operate effectively." The Secretary proposes a penalty of $60.00 for this citation.

Inspector Allen testified that the "last proof" of any inspection of the fire extinguisher
was in October 1999. (Tr. 131). He did not believe that the violation was serious because the
loader was in good repair. Mr. Ausmus testified that, because a fire extinguisher was not
required to be on the loader, there could be no violation of section 56.421(a)(2). (Tr. 156-57,
174-75).

I find that the Secretary established the violation. If a mine operator places a fire
extinguisher on a piece of equipment, it must meet MSHA's testing and maintenance
requirements. A miner will assume that an extinguisher will function when fighting a fire. There
was no showing that his extinguisher was not working properly. The violation was not serious or
of an S&S nature. Carder's negligence was moderate. A penalty of $60.00 is appropriate.

3.  Citation No. 6299961, WEST 2004-270-M

Inspector Allen issued Citation No. 6299961 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:

The hopper feed conveyor contains two idlers that are not guarded.
The open and exposed idlers are eighteen inches and forty-eight
inches above the mine floor, respectively. This condition exposed
employees to the possibility of injury if they were accidently to
contact the moving machine parts. The idlers are not . . . along a
regularly used travelway, making the chance of accidental contact
unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.

Inspector Allen testified that the idler rollers were not guarded but that the rollers were
not close to a travelway. (Tr. 132; Ex. G-20). A miner or his clothing could become entangled
in the rollers. (Tr. 134). He admitted that MSHA has determined that conveyor belt rollers are
not considered to be moving machine parts for purposes of the standard. (Tr. 158). The
inspector testified, however, that this policy applies to "material-carrying rollers," not return or
idler rollers. (Tr. 160). The plant was not operating while the inspector was at the plant.

Mr. Ausmus testified that two miners work at the plant, one in a loader and the other in
the operator's station. (Tr. 159). As a consequence, miners are not walking around the plant
while it is operating. Ausmus also testified that, during previous inspections, some MSHA
inspectors have told him that return rollers do not have to be guarded and others have told him
that guards are required. (Tr. 175). Ausmus stated that one inspector told him that "there's not a
pinch point on the return roller." Id. Ausmus believes that when one inspector gives Carder "a
clean bill of health" for a certain condition, it is unfair for another inspector to issue a citation for
the same condition. (Tr. 176). If a condition is inspected and "accepted by an inspector," does it
mean that the inspector did "not do his job?" (Tr. 177).

As stated above, the Secretary must provide fair notice of the requirements of a broadly
written safety standard. The language of section 56.14107(a) is "simple and brief in order to be
broadly adaptable to myriad circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497
(November 1981); Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1992).
Such broadly written standards must afford notice of what is required or proscribed. U.S. Steel
Corp., 5 FMSHRC 3, 4 (January 1983). In "order to afford adequate notice and pass
constitutional muster, a mandatory safety standard cannot be 'so incomplete, vague, indefinite, or
uncertain that [persons] of common intelligence must necessarily guess at its meaning and differ
as to its application' " Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990) (citation
omitted). A standard must "give a person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly." Lanham Coal Co., 13 FMSHRC 1341,
1343 (September 1991).

When faced with a challenge that a safety standard failed to
provide adequate notice of prohibited or required conduct, the
Commission has applied an objective standard, i.e., the reasonably
prudent person test. The Commission recently summarized this
test as "whether a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would
have recognized the specific prohibition or requirement of the
standard."

Id. (citations omitted). To put it another way, a safety standard cannot be construed to mean
what the Secretary intended but did not adequately express. "The Secretary, as enforcer of the
Act, has the responsibility to state with ascertainable certainty what is meant by the standard he
has promulgated." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).

The Commission addressed this issue with respect to the Secretary's guarding standard in
Good Construction. In that case, the mine operator contended that it did not have adequate
notice of the requirements of 30 C.F.R. § 56.14107(a) because the language of the safety standard
"does not provide reasonably clear guidance regarding how any particular moving part should be
guarded, allows inconsistent interpretation by inspectors, and is unconstitutionally vague based
on the fact that other MSHA inspectors never cited these same conditions over the past 18 years."
Good Construction 23 FMSHRC at 1002. The moving machine parts were guarded, but the
MSHA inspector determined that the guarding was insufficient. The Commission remanded the
case to the administrative law judge for consideration of the notice issue.

In the present case, Carder believes that it has been led astray by MSHA's policy
statements and prior inconsistent enforcement. MSHA's program policy manual provides that
conveyor belt rollers are not to be construed as moving machine parts that must be guarded under
the standard "where skirt boards exist along the belt." The Secretary takes the position that the
statement in the policy manual applies only to "material-carrying rollers, not return rollers
return idlers." (Tr. 160). In addition, the cited idlers were not protected by a skirt board.

I find that the standard applied to the cited idlers and that Carder had fair notice of the
requirements of the standard. Although the statement in the program policy manual is subject to
differing interpretations, it is clear that the statement does not apply to the idlers cited by MSHA
in this case. These return rollers were exposed moving machine parts that are similar to those
specifically mentioned in the standards. The Secretary has often applied this standard to return
rollers. See e.g. Heritage Resources Inc., 21 FMSHRC 626, 632 (June 1999) (ALJ); and Asphalt
Paving Co., 27 FMSHRC 123, 124 (Feb. 2005) (ALJ). In Heritage Resources a miner was killed
when he became entangled in a return roller and in Asphalt Paving a miner was injured when his
arm was pulled into a return roller. Unguarded return rollers are a known hazard in the mining
industry. I find that a reasonably prudent person familiar with the mining industry and the
protective purposes of section 56.14107(a) would have recognized the cited return rollers were
required to be guarded. Mr. Ausmus's testimony with respect to prior MSHA inspections is too
vague for me to find that Carder was a victim of prior inconsistent enforcement. The cited idler
was near the tail pulley in an area where cleaning would be required.

It was not reasonably likely that anyone would be injured by the violation. The return
rollers were in a rather remote area. In addition, with only two employees, the risk of injury was
reduced. The condition did create some measure of danger to employees.

I find that Carder's negligence was low. It is clear the Carder believed that these rollers
were not required to be guarded. A penalty of $20.00 is appropriate.

4.  Citation No. 6299962, WEST 2004-270-M

Inspector Allen issued Citation No. 6299962 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:

The cone feed conveyor contains a return idler that is not
adequately guarded in that the guard contained several openings
and the idler was readily accessible. The idler is sixty-eight inches
above the mine floor. This condition exposed employees to the
possibility of injury if they were accidently to contact the moving
machine parts. The idler is not . . . along a regularly used
travelway, making the chance of accidental contact unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.

The evidence presented with respect to this citation is essentially the same as the evidence
for the previous citation. (Tr. 135-37, 160-61, 175-77; Ex. G-21). Carder raised a general issue
with respect to this and other citations concerning the need to protect against intentional
misconduct by an employee. Carder believes than the only way for a miner to be injured by the
cited condition is for him to intentionally put himself in harm's way. Carder's position fails to
consider human error. The Commission interprets safety standards to take into consideration
"ordinary human carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September
1984). In that case, the Commission held that the guarding standard must be interpreted to
consider whether there is a "reasonable possibility of contact and injury, including contact
stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human
carelessness." Id. Human behavior can be erratic and unpredictable. For example, someone
might attempt to perform minor maintenance or cleaning near an unguarded tail pulley without
first shutting it down. In such an instance, the employee's clothing could become entangled in
the moving parts and a serious injury could result. Guards are designed to prevent just such an
accident. There is a history of such injuries at crushing plants throughout the United States.
"Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or
environmental distractions. . . ." Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983).

For the reasons set forth above, I find that the Secretary established a non-S&S violation
and that Carder's negligence was low. A penalty of $20.00 is appropriate.

5.  Citation No. 6299963, WEST 2004-270-M

Inspector Allen issued Citation No. 6299963 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states:

The screen feed conveyor contains a return idler that is not
guarded. The idler is fifty-four inches above the mine floor. This
condition exposed employees to the possibility of injury if they
were accidently to contact the moving machine parts. The idler is
not . . . along a regularly used travelway, making the chance of
accidental contact unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $60.00 for this citation.

The evidence presented with respect to this citation is essentially the same as the evidence
for the previous two citations. (Tr. 137-39, 162-63, 175-77; Ex. G-22). For the reasons stated
above, I find that the Secretary established a non-S&S violation and that Carder's negligence was
low. A penalty of $20.00 is appropriate.

6.  Citation No. 6299964, WEST 2004-270-M

Inspector Allen issued Citation No. 6299964 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.9300(a). The body of the citation states:

No berms or guardrails were provided on the banks of the elevated
scale roadway adjacent to the scale house, where a thirty-two to
thirty-six inch drop off exists. This condition creates a vehicular
overturn hazard. The scales are used daily to weigh over the road
haul trucks.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was low. The safety
standard provides that "[b]erms or guardrails shall be provided and maintained on the banks of
roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or
endanger persons in equipment." The Secretary proposes a penalty of $60.00 for this citation.

Inspector Allen testified that Carder's customers use the scale roadway. (Tr. 140; Ex. G-
23). Several trucks entered and exited the property during his inspection. He determined that an
accident was unlikely because trucks move very slowly over the scale. (Tr. 141). He determined
that Carder's negligence was low because its managers were not aware that the standard would
apply to the scale. (Tr. 142).

Mr. Ausmus testified that the scale has been in its present position for several years
through many MSHA inspections without guardrails or berms. (Tr. 176-77). The condition had
not been previously cited by MSHA nor had an MSHA inspector suggested the guardrails be
installed. Anyone entering or leaving the property would see the scale, as shown on the
photographs taken by Inspector Allen. (Ex. G-23).

I find that the citation should be vacated because Carder was not provided with adequate
notice that guardrails were required on the scale. The scale has been present for many years and
perhaps as long as 15 years. (Tr. 164). The scale would be quite obvious to anyone entering the
property. A reasonably prudent person familiar with the mining industry and the protective
purposes of section 56.9300(a) would not have recognized that the cited scale was covered by the
standard given the lack of enforcement at the mine and the fact that truck drivers drive over the
scale at a very low rate of speed. I further find that, putting aside the notice issue, the scale fits
within the scope of the safety standard. The scale is a roadway where a drop-off exists of
sufficient grade or depth that could cause a truck to overturn or endanger persons in the truck.
By issuing the citation, MSHA put Carder on notice that guardrails are required. The citation is
vacated.

7.  Citation Nos. 6299965 through 6299976, WEST 2004-270-M

Inspector Allen issued Citation Nos. 6299965 through 6299976 under section 104(a) of
the Mine Act alleging violations of 30 C.F. R. § 50.30(a). The body of Citation No. 6299965
states:

The MSHA #7000-2 (Quarterly Employment Report) for the 1st
Quarter 2001 (January, February and March) was not completed
properly in that the employment and employee hours for the mine
were not reported correctly.

The inspector determined that there was no likelihood that someone would be injured as a result
of this condition. He determined that the violation was not S&S and that Carder's negligence
was moderate. The regulation provides, in part, that "[e]ach operator of a mine in which an
individual worked during any calendar quarter shall complete a MSHA form 7000-2 in
accordance with the instructions and criteria in § 50.30-1. . . ." The Secretary proposes a penalty
of $60.00 for each citation. Each of the 12 citations charging a violation of section 50.30(a) are
identical, except that they cite a different calendar quarter. (Exs. G-24 through G-36).

Inspector Allen stated that he issued the citations following an audit of Carder's record-
keeping compliance. (Tr. 143). The audit revealed that Carder made the same mistake on the
7000-2 form in 12 consecutive quarters. A separate citation was issued for each quarter. (Tr.
144). Inspector Allen described the mistake as follows:

We identified during the course of the audit that the mine operator
was not reporting hours for the scale-house person. [Carder has] a
roving scale-house person that would bounce around for the
different mines, and they were not tracking the hours to associate
with each mine ID.

(Tr. 145). The same mistake was made with respect to Mike Ausmus, the general manager.
Inspector Allen testified that Carder has a unique situation because it has "people that travel to
[four] different mine Ids and it's a little difficult to track it." (Tr. 16).

Mr. Ausmus testified that he was surprised that he received these citations because Carder
has been reporting hours worked the same way for a long time. Carder was never advised by
MSHA that it was not correctly reporting hours worked. Ausmus testified that the scale-house
employee works about 40 hours a week in the summer, but does not usually work at all during
the winter months. (Tr. 178-89). Ausmus testified that he is at the No. 5 crusher about 10 hours
a week. (Tr. 178). When Mr. Ausmus asked Inspector Allen why the alleged reporting violation
was not included in one citation, he replied that it is MSHA's policy to issue a separate citation
for each quarter. (Tr. 166).

The Secretary is authorized to assess proposed penalties for violations of Part 50.
Consolidation Coal Co., 14 FMSHRC 956, 963-65 (June 1992). Inspector Allen did not refer to
a specific provision of section 50.30-1 that was violated. Nevertheless, section 50.30-1(g)(3)
requires mine operators to "[s]how the total hours worked by all employees during the quarter
covered." (Emphasis added). "Hours worked" includes work performed by employees who only
work part of their time at the No. 5 crusher. It does not appear that Carder's employment records
had been previously audited. In Consolidation Coal, the Commission recognized the Secretary's
authority to issue a separate citation for each calendar quarter.

I find that the citations should be affirmed as non-serious citations. I find that Carder's
negligence was very low because it believed that the hours were being correctly reported. Carder
relied on an administrative assistant to calculate and report the employment and hours worked.
(Tr. 146). A penalty of $10.00 for each citation is appropriate.

8.  Citation No. 6299957, WEST 2004-271-M

Inspector Allen issued Citation No. 6299957 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14100(b). The body of the citation states:

The John Deere front end loader, company number 384 . . .
contained defects that affected the safety of persons. The horn and
the lights were defective and not maintained in a functional
condition. Miners and other vehicular traffic were observed in the
area while the loader was in operation. Miners were exposed to the
possibility of injury due to the inability of the loader operator to
warn others in the event of an emergency. The mine operator was
not aware of the defects on the loader.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be permanently disabling. He
determined that the violation was S&S and that Carder's negligence was moderate. The
Secretary proposes a penalty of $154.00 for this citation.

Inspector Allen testified that the operator of the cited loader was loading a truck when he
arrived for the inspection. (Tr. 149). Use of the loader with an inoperable horn and lights
presented a serious safety risk to employees. When Mr. Ausmus attempted to turn on the lights
during the inspection, sparks were created under the dashboard. (Tr. 150). No defects were
noted in the pre-operational checklist. Inspector Allen could not determine how long the loader
had been in this condition because the loader operator did not speak English. (Tr. 151).

Mr. Ausmus testified that there was sparking when he turned the key for the loader. (Tr.
179). He believes that the problem developed at that moment. Ausmus contends that the
sparking indicated a short in the electrical system that caused the horn and lights to malfunction.
(Tr. 180). The citation is not fair because MSHA did not give Carder an opportunity to fix the
problem.

Carder argues that the standard requires that safety defects be corrected in a timely
manner. Because it was not given the opportunity to correct the problem that developed at the
time of the inspection, the citation should be vacated. Inspector Allen believes that the loader
operator knew that there was a problem with his equipment because he parked the loader and
started using another loader as soon as the inspector arrived at the mine. (Tr. 150-51, 167-68).

I find that the Secretary did not meet its burden of proof with respect to this citation. The
pre-operational checklist for the cited loader did not indicate that the horn and lights were not
working. If there was sparking under the dash when Ausmus and Allen inspected the loader, it is
possible that the lights and horn had been working that shift. See Lopke Quarries, Inc., 23
FMSHRC 705, 714-15 (July 2001). Consequently, I vacate this citation.

9.  Citation No. 6299960, WEST 2004-271-M

Inspector Allen issued Citation No. 6299960 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14100(b). The body of the citation states:

The Caterpillar 966F front end loader, company number 532 . . .
contained defects that affected the safety of persons. The brake
lights were defective and not maintained in a functional condition.
Vehicular traffic was observed in the area while the loader was in
operation. Miners were exposed to the possibility of injury due to
the inability of another equipment operator to know when the
loader is stopping. The mine operator was not aware of the defects
on the loader.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The Secretary proposes a penalty of $114.00 for this citation.

Inspector Allen testified that there was a possibility of a collision between vehicles at the
mine as a result of this violation. (Tr. 152). The defect was not noted on the pre-operational
checklist. He admitted that it was possible that the brake lights stopped working during the shift.
(Tr. 172). Mr. Ausmus testified that the citation was unfair because the defect was not noted on
the pre-operational checklist. (Tr. 181). He stated that the brake lights must have malfunctioned
during the shift. Ausmus believes that everything was working at the start of the shift. He
admitted that when he spoke to the loader operator after the citation was issued, he merely asked
him whether he did a preshift exam and whether everything checked out. (Tr. 182). The loader
operator spoke broken English.

I find that the Secretary established a non-S&S violation of the standard. Carder did not
effectively rebut the Secretary's evidence of a violation. It is not at all clear that the loader
operator checked the brake lights at the start of the shift. Although there was a possibility that
the hazard contributed to by the violation would result in an injury, such an injury was not
reasonably likely. Carder's negligence was moderate. A penalty of $60.00 is appropriate.

E.  Screening Operation/Dredge Operation

1.  Citation No. 6311741, WEST 2004-491-M

Inspector Allen issued Citation No. 6311741 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.16006. The body of the citation states:

The oxygen and acetylene tanks being transported on the company
number 170 maintenance truck were observed in the upright
position with no protective covers provided over the valve stems.
Employees working in this area were exposed to the possibility of
injury, should the cylinders tip over or receive an impact on the
valve body causing fire and/or projectile hazards.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it could be fatal. He determined that the violation
was not S&S and that Carder's negligence was moderate. The cited standard provides, in part,
that "[v]alves on compressed gas cylinders shall be protected by covers when being transported
or stored . . . ." The Secretary proposes a penalty of $60.00 for this citation.

Inspector Allen testified that the valves for the compressed gas cylinders were not
protected as required by the standard. (Tr. 186; Ex. G-40). He observed the cylinders being
transported in the cited condition while on the truck. (Tr. 189). The cylinders were secured to
the truck. (Tr. 213). He stated if the valves were "impacted and knocked off, those compressed
gas cylinders [had] the potential to become a rocket." (Tr. 187, 214). The violation could also
propagate a fire. (Tr. 188). There were covers available at the mine.

Mr. Ausmus testified that Inspector Allen admitted that the cylinders could not tip over
and there was nothing overhead that could fall onto the valves. (Tr. II. 8). Ausmus believes that
there was no safety hazard connected with the cited condition.

As stated above, the Secretary is not required to prove that an alleged violation created a
safety hazard. I find that the Secretary established a non-S&S violation. It was highly unlikely
that the violation would result in an injury. The gravity was quite low and Carder's negligence
was moderate. A penalty of $40.00 is appropriate.

2. Citation No. 6311743, WEST 2004-491-M

Inspector Allen issued Citation No. 6311743 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.12004. The body of the citation states:

The power conductors feeding power from the 12 volt DC battery
to the engine on the work boat were not insulated and/or provided
[with] adequate protection. The conductors had mechanical
damage near both electrical connections at the battery. A diesel
fuel tank is located in the near vicinity to the damaged conductors.
Employees working in and around this area were exposed to the
possibility of shock and/or fire.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The safety standard provides, in part, that "[e]lectrical conductors exposed to mechanical damage
shall be protected." The Secretary proposes a penalty of $154.00 for this citation.

Inspector Allen testified the conductors were damaged near where they were attached
with lugs to the 12 volt battery. (Tr. 190; Ex. G-42). He stated that having broken wires in the
conductors can create arcing and sparking if the battery is moved. The battery was on the bottom
of the boat and was not secured. (Tr. 224). He also stated that the conductors could overheat
since their current-carrying capacity was reduced. One of the conductors was "almost broken
clear off where it entered into the lug that mounts to the battery." (Tr. 218). The work boat is
used on a daily basis. A fuel tank was near the battery. (Tr. 191). Inspector Allen determined
that the violation was S&S because of the proximity of the fuel tank. (Tr. 192). On cross-
examination, Inspector Allen admitted that one of the cited conductors was the ground conductor
and that he did not know what would happen if that conductor failed. (Tr. 221). Allen stated that
he issued the citation because the conductors were damaged. (Tr. 222-23).

Mr. Ausmus testified that the conductor that concerned Mr. Allen was the ground
conductor. (Tr. II 9). The conductor on the ground can be a bare wire because the ground goes
to the frame of the equipment. There is no possibility of sparking from the ground conductor.
Mr. Ausmus introduced the ground cable (negative cable) as Exhibit R-1 and the positive cable
as Exhibit R-2. (Tr. II 11).

I find that the Secretary established a violation. Both conductors were badly damaged at
the point where they entered the lugs. Although this condition created a potential hazard,
Inspector Allen's testimony as to the likelihood that someone would be injured by the violation,
assuming continued normal mining operations, was not very convincing. The Secretary did not
show that it was reasonably likely that sparking would occur, that sparking would cause a fire, or
that a miner would be shocked by the condition. I find that the violation was not S&S and that
Carder's negligence was moderate. A penalty of $60.00 is appropriate.

3.  Citation No. 6311745, WEST 2004-491-M

Inspector Allen issued Citation No. 6311745 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14100(a). The body of the citation states:

The work boat used daily during the shift has not received an
inspection by the equipment operator before being placed in
operation on that shift. Several safety defects were found and cited
. . . on the work boat that should have been identified if a proper
pre-operational check had been made.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The safety standard provides that "[s]elf propelled mobile equipment to be used during a shift
shall be inspected by the equipment operator before being placed in operation on that shift." The
Secretary proposes a penalty of $154.00 for this citation.

Inspector Allen determined that the preshift examination had not been performed after
talking with Leonard Smart, the lead man on the shift. (Tr. 193). Smart told him that no pre-
operational check had been performed.

Mr. Ausmus testified that the work boat cannot be classified as self-propelled mobile
equipment under section 56.14100 because section 56.14000 defines "mobile equipment" as
"[w]heeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or
being moved." (Tr. 225; Tr. II 12). A boat does not fit within this definition.

I agree with Mr. Ausmus that a boat is not mobile equipment as that term has been
defined by the Secretary. The safety standard applies to self-propelled mobile equipment.
Consequently, the citation is vacated.

4.  Citation No. 6311746, WEST 2005-134-M

Inspector Allen issued Citation No. 6311746 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14103(b). The body of the citation states:

The broken window on the Collidge dredge impaired the operator's
visibility for safe operation and/or created a hazard to the
equipment operator. Numerous cracks running both vertically and
horizontally existed, creating a spider web effect. There [are] other
windows that are intact, making the chance of an accident unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
cited standard provides, in part, that "[i]f damaged windows obscure visibility necessary for safe
operation, or create a hazard to the equipment operator, the windows shall be replaced or
removed." The Secretary proposes a penalty of $425.00 for this citation.

Inspector Allen testified that he issued this citation because a window on the dredge was
cracked. He stated that it looked like an object had struck the window. (Tr. 196; Ex. G-44). Mr.
Ausmus testified that a dredge is not mobile equipment as that term is defined by the Secretary
and that the citation should be vacated. (Tr. 226-28; Tr. II 12).

Section 56.14103 is entitled "Operators Stations." Subsection (a) states that "[i]f
windows are provided on operators' stations of self-propelled mobile equipment, the windows
shall . . . ." Subsection (c) also limits its applicability to self-propelled mobile equipment.
Subsection (b) cited by Inspector Allen does not make any direct reference to self-propelled
mobile equipment. Nevertheless, the entire standard clearly applies only to windows on
operators' stations of self-propelled mobile equipment. This subsection requires the replacement
of damaged windows on such equipment but does not require the replacement of windows at
other locations at a mine. The preamble to section 56.14103 states "[t]his final standard sets
forth several safety requirements relating to the operator's station on self-propelled mobile
equipment." 53 Fed. Reg. 32507 (August 25, 1988). I find that the dredge did not fit within the
Secretary's definition of mobile equipment. Consequently, this citation must be vacated.

5.  Citation No. 6311747, WEST 2004-491-M

Inspector Allen issued Citation No. 6311747 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states, in part:

The drive shaft between the engine and the main pump located on
the Coolidge dredge contained exposed moving machine parts that
were not adequately guarded. The existing drive shaft guarding
contains a twenty one inch by fifty nine inch opening and is open
and exposed on the bottom side. There are also two seven inch by
nine inch lids on the top side that are not secured and were easily
opened. . . . The moving machine parts are along a travel way that
is not regularly used. . . .

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be permanently disabling. He determined
that the violation was not S&S and that Carder's negligence was moderate. The Secretary
proposes a penalty of $425.00 for this citation.

Inspector Allen testified that the rotating drive shaft was exposed to accidental contact.
(Tr. 198; Ex. G-45). There were also lids on the top side of the shaft which could be opened. He
testified that the drive shaft was about 30 inches above the walking surface. (Tr. 200). He took
the photograph of the alleged violation while he was on his knees with the camera pointing up.

(Tr. 201, 230-32).

Mr. Ausmus testified that the cited area was about 40 feet from the operator's station and
that there is no reason for him to be anywhere near this area while the dredge is running. (Tr. II
13). He testified that the bottom of the existing guard protecting the drive shaft was about 18
inches above the deck of the dredge. (Tr. II 14). He states that any greasing of the drive shaft is
performed while the dredge is shut down. The lids on the top side were closed and are only
opened for greasing operations.

I find that the Secretary established a technical violation of the safety standard. Moving
machine parts, that were within seven feet of an infrequently used walkway, were exposed. To
become entangled in the parts, a miner would have to be down on the deck kneeling or on his
hands and knees. I find that the existing guard would protect miners walking by the shaft. The
lids above the shaft were designed so that they could not flip open. I find that the gravity was
very low. Because this technical violation was not obvious, Carder's negligence was extremely
low. A penalty of $10.00 is appropriate.

6.  Citation No. 6311748, WEST 2004-491-M

Inspector Allen issued Citation No. 6311748 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 47.41(a). The body of the citation states, in part:

The [mine] operator failed to ensure that a five gallon container of
a hazardous chemical has a label that was located in the fuel area.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would result in lost workdays or restricted duty.
He determined that the violation was not S&S and that Carder's negligence was moderate. The
standard provides, in part, that the "operator must ensure that each container of a hazardous
chemical has a label." The Secretary proposes a penalty of $60.00 for this citation.

Inspector Allen stated that the cited container contained gasoline. (Tr. 202; Ex. G-46).
The container was a red five gallon metal can. (Tr. 233). Mr. Ausmus testified that MSHA has a
safety standard which provides that a gasoline container that is emptied every night is not
required to be labeled. (Tr. II 15-16).

The Secretary established a technical violation. Mr. Ausmus raised a defense, but he did
not present any credible evidence that the can was emptied every night. The violation was not
serious. The container in the photograph is a typical metal gasoline can. (Ex. G-46). It is highly
unlikely that a miner would mistake the container for anything other than a gasoline can. For the
same reasons, Carder's negligence is very low. A penalty of $10.00 is appropriate.

7.  Citation No. 6311749, WEST 2004-491-M

Inspector Allen issued Citation No. 6311749 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.4102. The body of the citation states, in part:

Excessive amounts of engine oil had been allowed to accumulate
under the engine (a pool approximately three feet long by four feet
wide) and the dirt around the genset was oil soaked for a distance
of approximately six feet wide by twelve feet long, on and around
the plant's Caterpillar generator that supplies the plant [with]
power.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would result in lost workdays or restricted
duty. He determined that the violation was S&S and that Carder's negligence was moderate.
The safety standard provides that "[f]lammable or combustible liquid spillage or leakage shall be
removed in a timely manner or controlled to prevent a fire hazard." The Secretary proposes a
penalty of $154.00 for this citation.

Inspector Allen testified that the accumulation created a serious fire hazard. (Tr. 203-04;
Ex G-47). He testified that miners were exposed to the hazard on a daily basis. He admitted that
it was possible that the oil line at the generator had broken the day before. (Tr. 235). Fuel was
stored in the area and, since he did not issue a citation for failure to post a No Smoking sign, it is
safe to assume that the area was posted. (Tr. 236). The inspector believes that a spillage of
flammable liquid must be cleaned up as soon as it is discovered. (Tr. 237).

Mr. Ausmus testified that the night before the MSHA inspection, a hose broke on the
generator which caused excessive amounts of oil to spill on the ground. (Tr. II 16). He believes
that the generator was not being used at the time of the inspection. Ausmus contends that a mine
operator must be given a reasonable amount of time to clean up a spill of flammable liquid. In
addition, there were "No Smoking" and "No Open Flames" signs posted in the area. (Tr. II 17).

I agree with Mr. Ausmus that, under the safety standard, a mine operator must be given a
reasonable amount of time to clean up the spill before a violation is established. A mine operator
must take steps to ensure that the danger is immediately mitigated, however. There is no dispute
that the oil spill described by Inspector Allen existed. Inspector Allen stated that it was possible
that the spill could have occurred the previous day, but Carder employees did not advise him of
that fact at the time of his inspection. He could not recall if the generator was operating at the
time of his inspection. (Tr. 235). On the other hand, Mr. Ausmus only "believed" that miners
were not using the generator at that time. (Tr. II 16). Although Carder generally outlined a
defense at the hearing, it did not present sufficient evidence to rebut the Secretary's prima facie
case. There were no warning signs or instructions given to keep away from the generator. I find
that the Secretary established an S&S violation and that Carder's negligence was moderate. A
penalty of $100.00 is appropriate.

8.  Citation No. 6311750, WEST 2004-491-M

Inspector Allen issued Citation No. 6311750 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.14107(a). At the hearing, Mr. Ausmus stated that he did
not have any objections to the citation and he admitted that the guarding on the generator set was
not adequate. (Tr. II 17). Consequently, the citation is affirmed as written. The Secretary's
proposed penalty of $203.00 is appropriate.

9.  Order No. 6311751, WEST 2005-134-M

Inspector Allen issued Order No. 6311751 under section 104(g)(1) of the Mine Act
alleging a violation of 30 C.F. R. § 46.11(b)(4). The body of the citation states, in part:

Three commercial over-the-road truck drivers at the mine have not
received site-specific hazard awareness training. The mine
operator was aware of the training requirements.

The inspector determined that it was reasonably likely someone would be injured as a result of
this condition and that, if an injury were to occur, it would be fatal. He determined that the
violation was S&S and that Carder's negligence was high. The regulation provides that mine
operators must provide site-specific hazard awareness training to "[c]ustomers, including
commercial over-the-road truck drivers." The Secretary proposes a penalty of $1,700.00 for this
citation.

Inspector Allen testified that he observed three over-the-road truck drivers lined up at the
pit getting ready to have their trucks loaded with product. (Tr. 208; Ex. G-51). When he talked
to the drivers, none of them had been given the required safety training. He considered the
violation to be S&S because an untrained person at a mine site is a hazard to himself and others.
He believed that this mine presented unusual hazards because it is a dredge site. He felt that
entrapment in a sand pile was a real possibility if the pile were to fail. (Tr. 209). Inspector Allen
believed that Carder's negligence was high because the lead man was not paying attention to new
truckers. Carder has been in operation for about ten years and it had knowledge of this training
requirement.

Allen admitted that there were no Carder employees at the scale house and that there was
a sign posted at the entrance to the mine. (Tr. II 5). The scale house was on the opposite side of
the dredge pond from the area where the trucks were lined up. The drivers did not adhere to the
signs at the entrance of the mine.

Mr. Ausmus testified that Carder has posted a sign at the entrance of the mine which
reads: "Customers & Visitors Must Report to Scale Office Before Entering Property." (Tr. II
17-18; Ex. R-3). Ausmus contends that, because no miners were manning the scale house,
drivers who were new to the property just drove around to where they saw activity. (Tr. II 18).
In doing so, these drivers disregarded the sign posted at the entrance to the mine. Ausmus
contends that if these drivers had remained at the scale house, someone would have driven
around the pond to greet them and given them the required hazard training. Carder had four
employees at the mine that day. Ausmus further testified that, as soon as the lead man noticed
the trucks, he would have asked them if they had the required training. If they said no, he would
have escorted them back to the scale house to provide the training. (Tr. II 19).

I credit the testimony of Inspector Allen. He testified that the lead man told him that he
thought the truckers had already been trained and that he was not paying any attention to new
truckers. (Tr. 209). Inspector Allen's notes corroborate this testimony. (Ex. G-51). I find that
the Secretary established an S&S violation of the training regulation. I also find that Carder's
negligence was high because Carder's employees were not paying attention to this requirement.
Carder should have expected new truckers would travel to the area of the mine where people
were located rather than sit at the scale house. The lead man should have asked each unfamiliar
driver whether he had received any hazard training. The Secretary proposed the penalty under
her special assessment regulations. I am reducing the penalty to $1,000.00 taking into
consideration the civil penalty criteria. This mine has no history of previous violations.

10.  Citation No. 6311753, WEST 2004-491-M

Inspector Allen issued Citation No. 6311753 under section 104(a) of the Mine Act
alleging a violation of 30 C.F. R. § 56.11003. The body of the citation states, in part:

The twelve foot ladder located on the #1 oversized conveyor was
not maintained in good condition. The ladder had two of the rungs
bent and a crack was observed in the right side frame that
penetrated approximately one third of the way through. . . .
Employees seldom use this ladder, making the chance of an
accident unlikely.

The inspector determined that it was unlikely someone would be injured as a result of this
condition but that, if an injury were to occur, it would be fatal. He determined that the violation
was not S&S and that Carder's negligence was moderate. The standard provides that "[l]adders
shall be of substantial construction and maintained in good condition" The Secretary proposes a
penalty of $60.00 for this citation.

Inspector Allen testified at to the condition of the ladder. (Tr. 210-12; Ex. G-50). He
believed that the ladder could easily fail with a miner on it. The ladder was not in use and he was
not sure if there were other ladders available in the area. (Tr. II 6).

Mr. Ausmus testified that there was another ladder in perfect condition in the area that
miners could use. (Tr. II 20). In addition, the ladder was used to access a platform. If the ladder
were properly placed, the bent rungs would be above the level of the platform and no miners
would be required to step on them.

I find that the Secretary established a violation. Although the hazard was not very great,
it was possible that the violation could contribute to an injury. The violation was not serious.
Carder's negligence was moderate. A penalty of $60.00 is appropriate.

F.  Citation Nos. 6311742, 6311830, and 6311847

Carder agreed to withdraw its contest of the above citations at the start of the hearing. As
a consequence, these citations are affirmed as written.

II. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. The individual operations have the following history of previous
paid violations during the 24 months preceding these inspections: Crusher No. 2 - no reported
history; Dredge Operation No. 1 - three; Dredge Operation No. 3 - six; Crusher Operation No. 5 -
four; Screening Operation/Dredge Operation - no reported violations. Carder is a small operator
and its mines are small. All of the violations that were affirmed in this decision were abated in
good faith. The penalties assessed in this decision will not have an adverse effect on Carder's
ability to continue in business. My gravity and negligence findings are set forth above. Based on
the penalty criteria, I find that the penalties set forth below are appropriate.

III. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

WEST 2004-269-M

Citation No.
30 C.F.R. §
Penalty

6298298 56.14105 $1,500.00

WEST 2004-270-M

Citation No.
30 C.F.R. §
Penalty

6299958 56.4230(a)(1) $20.00

6299959 56.4201(a)(2) 60.00

6299961 56.14107(a) 20.00

6299962 56.14107(a) 20.00

6299963 56.14107(a) 20.00

6299964 56.9300(a) Vacated

6299965 50.30(a) 10.00

6299966 50.30(a) 10.00

6299967 50.30(a) 10.00

6299968 50.30(a) 10.00

6299969 50.30(a) 10.00

6299970 50.30(a) 10.00

6299971 50.30(a) 10.00

6299972 50.30(a) 10.00

6299973 50.30(a) 10.00

6299974 50.30(a) 10.00

6299975 50.30(a) 10.00

6299976 50.30(a) 10.00

WEST 2004-271-M

Citation No.
30 C.F.R. §
Penalty

6299957 56.14100(b) Vacated

6299960 56.14100(b) 60.00

WEST 2004-326-M

Citation No.
30 C.F.R. §
Penalty

6299980 56.14132(a) 20.00

6299981 56.14100(b) 20.00

6299982 56.11002 80.00

6299983 56.11002 80.00

6299985 56.11002 120.00

6299987 56.12032 20.00

WEST 2004-491-M

Citation No.
30 C.F.R. §
Penalty

6311741 56.16006 40.00

6311742 56.14112(b) 203.00

6311743 56.12004 60.00

6311745 56.14100(a) Vacated

6311747 56.14107(a) 10.00

6311748 47.41(a) 10.00

6311749 56.4102 100.00

6311750 56.14107(a) 203.00

6311753 56.11003 60.00

WEST 2005-132-M

Citation No.
30 C.F.R. §
Penalty

6311830 56.14100(b) 60.00

WEST 2005-133-M

Citation No.
30 C.F.R. §
Penalty

6311844 56.14112(a)(1) 20.00

6311846 56.14107(a) 100.00

6311847 56.14112(a)(1) 60.00

WEST 2005-134-M

Citation No.
30 C.F.R. §
Penalty

6311746 56.14103(b) Vacated

Order No. 6311751 46.11(b)(4) 1,000.00

WEST 2005-160-M

Citation No.
30 C.F.R. §
Penalty

6311828 56.14130(i) 60.00

WEST 2005-218-M

Citation No.
30 C.F.R. §
Penalty

6311848 56.14107(a) 60.00

TOTAL PENALTY $4,206.00

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or
VACATED as set forth above and Carder, Inc., is ORDERED TO PAY the Secretary of Labor
the sum of $4,206.00 within 30 days of the date of this decision.

Richard W. Manning

Administrative Law Judge

Distribution:

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)

Mike Ausmus, Carder, Inc., P.O. Box 732, Lamar, CO 81052-0732 (Certified Mail)

RWM