Asphalt Paving Supply Inc.

Plain-English summary

Asphalt Paving Supply contested a citation involving a 110-volt cable whose outer jacket had pulled away from a junction-box bushing, leaving its insulated conductors exposed. The company did not dispute the condition but argued that it had arisen overnight, likely because of cattle near the pond, and would have been found during the still-unfinished workplace examination. Judge Gary Melick credited that evidence and found no operator negligence. He nevertheless affirmed the citation because the Mine Act requires an inspector to cite an observed violation even before the operator has finished its examination. Considering the low gravity and lack of negligence, he assessed a $25 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12008
• Outcome: Citation No. 6306160 was affirmed with a $25 civil penalty.
• Key point: An inspector must cite an observed violation even when the operator's ongoing workplace examination might soon have found and corrected it.

Full text (FMSHRC public release)

FMSRHC ALJ DECISION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

Washington, D.C. 20001

June 28, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Contestant

v.

ASPHALT PAVING SUPPLY INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. WEST 2006-577-M

A. C. No. 02-02135-95017

Prescott Valley Pit

DECISION

Appearances:  Isabella Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, San
Francisco, California and Ronald D. Pennington, Conference and Litigation
Representative, U.S. Department of Labor, Denver, Colorado, on behalf of the
Petitioner;

Jack Kolberg, Safety Director, Asphalt Paving & Supply, Inc., Prescott Valley,
Arizona, on behalf of the Respondent.

Before:            Judge Melick

This case is before me upon a petition for civil penalty filed by the Secretary of Labor
pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., the “Act,” charging (as amended) Asphalt Paving & Supply Inc. (Asphalt Paving) with one
violation of the mandatory standard at 30 C.F.R. § 56.12008. The general issue before me is whether
Asphalt Paving violated the cited standard and, if so, what is the appropriate civil penalty to be
assessed in accordance with section 110(i) of the Act.

Citation No. 6306160, as amended, charges as follows:

The 110 volt power cable feeding power to the pond pump condensation heater, located at
the upper pond, was not insulated and/or did not have adequate protection for the power
conductors. The conductors were exposed for approximately one-half inch where the outer
protective jacket had been pulled from the bushing of the junction box. Employees were
exposed to the possibility of injury from shock, flash or burn hazard if the conductors were
to become damaged. No bare copper wire was observed. The operator was unaware of the
electrical defect and the workplace exam was incomplete for this shift.

The Secretary alleges that the third sentence of the cited standard was violated. That sentence
provides that “[w]hen insulated wires, other than cables, pass through metal frames, the holes shall
be substantially bushed with insulated bushings.” 

The testimony of Bartholomew Wrobel, an inspector for the Department of Labor’s Mine
Safety and Health Administration (MSHA), is undisputed that June 14, 2006, the 110 volt power
cable feeding the pond pump condensation heater did not have adequate protection for the power
conductors. The undisputed evidence shows that the conductors were exposed about one-half inch
where the outer protective jacket had been pulled from the bushing of the junction box. Inspector
Wrobel issued the citation at around 7:00 a.m. on that date. He took photographs of the cited
condition and those photographs were admitted into evidence (Gov’t. Exh. Nos.3 and 3-1). These
photographs corroborate Wrobel’s testimony as they depict the power conductor pulled out of its
bushing with the individual conductors exposed. Wrobel opined that injuries were unlikely because
the conducting copper wires were not exposed. He also opined, however, that should an injury occur
it would reasonably be expected to be fatal. He noted that with 110 volts alternating current, a
person contacting the exposed wires would be unable to release their hold and fatal injuries would
reasonably be expected.

Inspector Wrobel opined that the violation was caused by “moderate” operator negligence
in light of his finding that the condition was obvious from 10 to 15 feet away. He conceded,
however, that the mine operator was not aware of the condition and that it could have developed only
minutes before it was discovered. Wrobel further acknowledged that the operator’s representative
accompanying him on the inspection told him that they had not yet completed their workplace
examination at the time the violation was discovered and argued that they would have discovered
and corrected the condition if they only had been given more time. The representative also told
Wrobel that “free-range” cattle water at the pond adjacent to the cited condition and that the
condition may have resulted from cattle pulling the power cable from its bushing. In this regard
Wrobel identified a cow hoof print in one of the operator’s photographic exhibits (Operator’s Exh.
No. 3).

Chris Mathern, a safety assistant for Asphalt Paving, testified that another problem had been
discovered during the operator’s pre-shift inspection that morning, before the violative condition was
cited, and that other condition needed to be repaired. As a result, their inspection had not yet been
conducted in the area where the violative condition was found.

Robert Smith, Asphalt Paving’s wash plant operator, testified that he performed the pre-shift
inspection on the day before the citation was issued and, in particular, inspected the cited area and
found nothing wrong with the wiring at that time. On the date the citation was issued he interrupted
his inspection to repair some screens and by the time he arrived at the scene of the violative
condition, it had already been repaired. Smith surmised that the damage to the wiring had occurred
the night before the citation was issued based on his observation of cattle hoof tracks in close
proximity to the condition. According to Mr. Mathern, the photograph depicting the cow hoof print
was taken on the 15th of June, the day after the citation had been issued.

I find the testimony of Mathern and Smith to be credible and conclude that indeed the
condition cited by the inspector on June 14th had occurred only the night before and prior to the
completion of the mine operator’s inspection that day. Under the circumstances, I do not find the
operator chargeable with negligence.

While not denying that the violative condition existed, the Respondent has presented
arguments that, in effect, it is unfair for the Secretary to issue a citation for a violative condition
before the mine operator has the opportunity to complete its examination of the workplace and to
correct conditions found during that examination. Section 104(a) of the Act mandates the issuance
of a citation, however, when an inspector finds that a mine operator has violated any mandatory
safety standard.

Civil Penalties

Under section 110(i) of the Act the Commission and its judges must consider the following
factors in assessing a civil penalty: the history of violations, the negligence of the operator in
committing the violation, the size of the operator, the gravity of the violation, whether the violation
was abated in good faith and whether the penalties would affect the operator’s ability to continue in
business. It may be inferred from the record that Asphalt Paving is a small size mine. Its history of
violations is not insignificant though most were assessed at the minimum level. Inspector Wrobel
also testified that the mine had shown recent improvement in the number of violations. The gravity
and negligence findings have previously been discussed. The record indicates that the violative
condition was abated in a timely manner. There is no evidence that the penalty would affect the
operator’s ability to continue in business. Under the circumstances, and, in particular, considering
the findings of low gravity and lack of negligence, I find that a civil penalty of $25.00 for the
violation charged herein is appropriate.

ORDER

Citation No. 6306160 is affirmed and Asphalt Paving Supply Inc., is directed to pay a civil
penalty of $25.00 for the violation charged therein within 40 days of the date of this decision.

Judge Melick

Administrative Law Judge

(202) 434-9977

Distribution: (Certified Mail)

Isabella Del Santo, Esq., Office of the Solicitor, U.S. Department of Labor, 90 Seventh Street, Suite
3-700, San Francisco, CA 94103-1516

Ronald D. Pennington, Esq., U.S. Dept. of Labor, MSHA, P.O. Box 25367, DFC M/NM, Denver,
CO 80225-0367

Jack Kolberg, Safety Director, Asphalt Paving & Supply, Inc., 7001 2nd Street, Prescott Valley, AZ
86314

/lh